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REPORTS OF CASES
-ARGUED AND DETERMINED
^ht Court ot l^ing'd H^pm^,
MICHAELMAS AND HILARY TERMS, TENTH GEO. IV.
AND
EASTER TERM, ELEVENTH GEO. IV.
BY
JAMES MANNING, Esq. of Lincoln's Inn,
^ AND
ARCHER RYLAND, Esq. of Gray's Inn,
BARRISTERS AT LAW.
VOL. V.
WITH AN INDEX
AND
TABLE OF PRINCIPAL MATTERS.
LONDON :
S. SWEET, 1. CHANCERY LANE; A. MAXWELL, 82, BELL YARD; AND V. & R. STEVENS {lau Suvem ^ Sont), 39, BELL YARD j
OiUD HootollfTft anH 9ubU((ers:
AND MILLIKEN AMD SON, GRAFTON STREET, DUBLIN. 1837.
f^nmoFTHE
LLi.':'' : ;.. .FORD JR. U!J !':::::. ii
JUL 15 1901
LONDON :
C. ROWOflTH ANO SON'S, rRINT£ltS, UI-.Lt-YAt(Z>,
TEMPLL-BAR.
JUDGES
OF THE
COURT OF KING'S BENCH,
During the period comprised in this volume.
Charles Lord Tentekden^ C. J. Sir John Batlet, Kijft. Sir Joseph Littledale, Knt. Sir James Parke, Knt.
ATTORNEY-GENERAL. Sir James Scarlett, Knt.
SOLICITOR-GENERAL. Sir Edward Burtenshaw Sugden, KdI.
b2
LIBRARY OF THE
LELAND STANFORD, JR., UNI¥ERSITr
UW DEPARTMENT,
TABLE
OF
THE CASES REPORTED
IN THE FIFTH VOLUME.
ASPINALL, Sharp v.
B.
Bagshaw, Wilson v. BcaleSy Brett 9. B«lfordy Rex 9. Bennett v. Daniel
r. Skandon
Berkeley v. Demery Beroasconi v. Farebrother Beswick, Worswick v. Betfamm, Obbard v. Bignell v. Ellis Blackawton, Rex v. Blake, Hammond v. Borough 9. Moss Boucher, Fisher 9. Bowen v. Fox . Brett V. Beales .
, Donlan r.
Brown p. Duncan Browne 9. Cumming Butcher, Power 9.
C.
Cann, Ware 9. . Capper, Davies 9. Cfaew Magna, Rex 9. Cliolaielej, Cockerell 9-
Page 71
448 433 174 444
14 442 364 586 632 165 G^o 361 296 589 4 433
29 114 118 327
341
53
635
509
Page
Clay 9. Harrison . • 17
Clement, Fisher 9. • . 730
Cockerell 9. Cholmeley • 509
Colley 9. Hardy . . 123
Const, Ward 9. . . 402
Cooper, Daubeny 9. . 314
1;. Meyer . . 387
Coster, Fowler 9. . • 352
Cumming, Browne 9. .118
D,
Daniel, Bennett 9. . • 444 Daniels, Macpherson 9. .251 Dare, Plaxton 9. • . I Daubney 9. Cooper . .314 Davies 9. Rex ... 78 Davis 9. Capper • . 53
^ Mercer 9. . . 735
Day 9. Picton . . .31 Demery, Berkeley 9. . 442 Dickinson 9. Valpy . . 126 Doe d. Christmas 9. Oliver 202 d» Evans v* Jones • 752 Grubb 9. Grubb . 666 Harris 9. Howell . 24 Jackson 9. Hiley • 706 Jones 9. Jones . 6i6 Mann r. Walters . 357 Nicholl 9. M'Kaeg 620 d. Wigan 9. Jones . 563
VI
TABLE OF CASES REPORTED.
Donlan v. Brett Dowbiggin, Harrison v. Drummond, Muskett 9. DuDcaOy Brown v. •
Page
. 431 . 210
. 114
Edingale, Rex v. . • 648 Edmunds, Price «. . . 237 Ellis, Bignell v. . • 1C5 Exeter, Bishop of, v. Gully 4.57 , Rex V. • . l67
Farebrother, Bemasconi v. 364
Faatitleroj, Horsfall v. . 653
Fisher r. Boucher • . 589
' V. Clement . . 730
Fotster, Heysham r, . .277
Fowler v. Coster . • 352
Fox, Bowen v. . . 4
Furnish v. Swann • • 452
a
Gainsford v. Marshall . 45 Garry v. Sharratt . . 609 Gaussen v. Morton . .613 Goodtitle, Williams r. . 757 Graham, Newsome v, . 64 Great Bentley, Rex v. . 559 Griffiths, Reece v. . .120 Grimwood, Wood ». 551, 584, 598, 622 Grubb, Doe d. Grubb r. • 666 Gully, Bishop of Exeter v. 457
H.
Hammond t^ Blake • .361
Hanford, Moseley r. . 607
Hardy, Colley v. . . 123
Harper v. Hayton . . 305
^, Stannard v. . . 295
Harrison, Clay v. • • 1 7
— — , t7. Dowbiggin . 43 1
V.Hodgson . 391
Hawkins V. Whitten . ^ 219
Hayton, Harper r. • Heysham v. Forster . Hiley, Doe d. Jackson t?. Hirst, Pease v. Hodgkinson, Rex v. • Hodgson, Harrison v. Holds worth v. Hunter Hop wood, Phillips r. Horsfall r. Fauntleroy Howell, Doe d, Harris v. Hunt v. Mortimer Hunter, Holdsworth v,
V. Leathley .
V. Wright
I.
Impey, Isaac v. Ingilby, Swaine v. Isaac V. Impey
Page 305 277 706
88 162 391 393
15 653
24
12
393
522
. 611
377 125 377
J.
James, Servante r. Jefferey, Spratt v. Jones, Doe d, Evans v.
Jones V.
• Wigan r. .
, Williams r. .
K.
Kell V. Nainby Kensington, Robertson v. .
L.
Langriville, Rex v. • Leathley, Hunter v. • Lent, Mann v. • Lewis V, Marling
M.
Macpherson v. Daniels Main waring. Rex v. • M'Kaeg, Doe d* Nicholl r. M'Knight, Rex r. Mann r. Lent • Marling, Lewis v.
299 188 752 616 563 3
76
381
726
660 66
251
36
620
644
6ec>
66
TABLE OF CASES REPORTED.
vu
Marsball, Gainsford v. . 45
Martlealiam. Rex v. . .82
MasoQ V. Wallis . . 85
Melton, Middleton v. . fif)4
Mercer v. Davis . . 735
Metcalfe, Wise v. . . 235
Meyer, Cooper v, . . 387
Middleton t?. Melton . 264
Mortimer, Huut r. . . 12
Morton, Gaussen v. . , filS
Moseley, Hanford r. . 607
Moss» Borough v, . . 29(i
Murdock, Bickards v. .418
Muskett €7. Druminond . ^JO
N.
Nainby, Kell v. . . 76
Newsoine v. Graham . 64
Nightingale v. VVilcockson 16'9
Nuitall, Wright v. . , 454
O.
Obbard v. Betham . . 632 Oliver, Doe d. Christmas v. 20Q Oiford Canal Company, Rex v.
J 00 P.
Pease v. Hirst . — ^, Rex r. . Phillips V. Hopwood Picton, Day ». Plaxtoo V, Dare Power r. Butcher Price t;. Edmunds Pritchard, Shaw r. •
Reece Rex v.
R.
V. Griffiths Belford
. Blackawton . , Chew Magna . Edingale . Exeter . . Great Bentley
88
507
15
31
1
327
237
180
120 174 695 635 648 167 559
Page Rex r. Hodgkinson . . 162
V. Langriville . . 726
V, Main waring . . 36
V. M 'Knight . . 644
V. Martlesham . . 82
V. Oxford Canal Company
100
V. Pease . . . 507
V. Roxley . . 40
V, St. Andrew the Less 639
p. St. Nicholas, Hereford 676
V. St. Paul, Exeter . 94
V. Scriveners' Company 543
V. South Killingholme 683
V. South Newton . 715
V. Southwood . .414
V. Upton Gray . 688
V, Willoughby . • 32
1;. Wilson • . 140
— — V. Wooburn . . 723 Rickards v. Murdock . 418
Robertson v. Kensington . 381 Roxley, Rex v. . . 40
S. St. Andrew the Less, Rex t;. 639 St. Nicholas, Hereford, Rex v. 676 St. Paul, Exeter, Rex v. . 94 Scriveners* Company, Rex t;. 543 Servante v. James . . 299
. 71 . 609 . 180 . 225 Jones 9.
443 . 225 124 683 715 414 47 188 295 125 452
Sharp V. Aspinall Sharratt, Garry v. Shaw V. Pritchard
, Smith t;.
Shenton, Thrustout d
Smith V. Shaw .
-; ", Wood r.
South Killingholme, Rex v. South Newton, Rex r. Southwood, Rex v. Spencer, Young t;. Spratt V, JelFerey Stannard r. Harper Swaine v. In^iiby Swann, Furnish v.
Vlll
TABLE OF CASES REPORTED.
T.
Page
Taylor, Tinmouth t;. . 44
Tharp, VVingfield t?. . . 745 Thomas v. Williams . . 625 Thrustout d. Jones v. Shenton
4'43 Tinmouth v. Taylor . . 44
U. Upton Gray, Rex v, . . 688
V.
Valpy, Dickinson r. . 126
W.
Wallis, Mason v. . .85
Walters, Doe d. Mann v. 357
Ward V. Coast . . . 402
Ware w. Cann . • .341
Waring, Williams r. • . 9
Watts V. Friend . . 439
Page Whitten, Hawkins v. .219
Wilcockson, Nightingale v. 169
Williams w. . .121
V. Goodtitle • 757
t;. Jones . . 3
, Thomas v. . 625
, Waring v. • 9
Willoughby, Rex v. . . 32 Wilson V. Bagshaw . . 448
, Rex V. . .140
Wingfield V. Tharp . . 745 Wise V, Metcalf . . 235 Wooburns, Rex t?. . . 723 Wood r. Grimwood 551, 584, 598, 622 Wood V. Smith . .124 Worswick r. Beswick . 586 Wright, Hunter t?. . .611 V. Nuttall . . 454
Young V. Spencer
47
TABLE
OF
THE CASES CITED OR REFERRED TO
IN THB FIFTH VOLUME.
A. ^'"
Abbott v. Barry . 657
Acherly v. Vernon . .766 Agar V. Morgan . • 230
Aglionby r. Towerson • 28 1 Agutter V. Wilson . . 46 Airy V. Bland . . .331 Alderson v. Clay . .130 Alexander v. Macauley . 170 Alpass V. Watkins . . I<J7 Althani's case . . • 734 Anderson v. Anderson . 569
V. Buckton . 326
1;. Cleveland . 289
Andrew v, Robinson . 334
Archbishop of Canterbury's case
468 Archer v. Bamford . . 634 Armington's case 456
Ashfond v. Thornton 504
Atkins t7. Seward . 625
Atkinson v. Hunter . .281 Attorney-General v. Bishop
of Litchfield . . 483
v. Downing 767
V. Tongue 508,
646 V. Woolhouse 508
Bacon v.
B.
Chesney Flatman
268 150
Page Badham v. Mee . , 573
Bailey v, Culverwell . 659
Baldwin's case . . . 753 Bampton v. Paulin . . 628 Bank of England v. Beresford 294 Bannister v, Fisher . . '""*'' Barchards v. Forrester Barclay r. Stirling Barker v. Bishop of London
V, Macrae
Barlow v. Bishop
V. Rhodes
Barnes v. Crow Hedley
Barney w. Fairchild . Barry v. Babington . Bartlett v. Ramsden . Bar wick v, Matthews Basten v. Carew Batchellor t?. Salmon Bates V. Winstanley . Bathe v. Taylor Beachcroft v. Broome Beal V, Simpson Bedingfield v, Onslow Beecher's case Beete v. Bidgood Bell V. Bell
V. Byhfie •
V. Hobson '
Benfield, q. t. v. Milner Benjamin t). Porteous Bensley r. Bignold •
326 331 534 483 529 296 452 766 557 750 272 196 452
61 453 742 398 345 468
51 321 584 427 261 534 584 529 115
TABLE OF CASES REFERRED TO.
Page Benton v. Trott . . 468
Beraasconi v. Farebrother . £21
V. Lord Glengall 368
Berry v. Adamson . . J £ 1 Berthon v. Loiighman . 424 Birch V. Bishop of Litchfield 484 Birks V. Tuppett . . 7oO Bishop of Durham's case • 24Q.
Salisbury's case 242
Salisbury v. Phillips
486 Blakemore v, Glamorganshire
Canal Company . 229 Bloxam v. Saunders Blunt V. Neads Board v. Parker Bodenham v. Purchas Boehm v. Stirling Bonifant v. Greenfield Borrowdale r. Hitchener Bosanquet v, Dashwood r. Wray
Bottomley r. Bovell . Bourne v. Freeth Bower v. Bower Bowse V. Carrington Bowyer v, Pritchard Bradford v, Bryan Bradley t?. Peixoto . Bragg V. Anderson . Branch r. Roberts . Brazier v. Jones Brewster v. Sewell . Bridgett r. Coyney . Brightwell v. Westhalley Bromage v. Prosser . Bromley v, Holland . Brooke v. Enderby . Brown V. Davies
V. Higgs
V. Pocock
Browning v. Beston • Brownsword t;. Edwards Brunton v. Hawkes . Bullen V. Michel Bullock V. Thorn
20 363 456
90 297 148
11 554
90 533 139 766 477 186 333 343 533 666 169 460 121 680 733 186
90 297 767 569 304
27
68 276 570
Burleigh v. Stott Burn r. Markham Burrows t;. Luscomb Butler and Baker's case Butts V. Bilke .
Caddy v. Barlow Cadwallader v. Bryan Calder v. Rutherford Calthorpe r. Hey ton Campbell V. Hodgson
t?. Leach .
V. Rickards
1,, Sandys
Cannon v. Bryce
r. Parke
Capper r. Desanges Carruthers v. Lamb
r. Payne
Carstairs v, Rolliston Carter v. Boehm Cashman v. Reid Castlin V, Aubert Charles r. Marsden Chater v. Beckett Chippendale v. Tomlinson Cholmley v, Cholmley Cholmondeley r. Clinton . Clampe v. Clampe Claridge v. Dalton Clayton v. Andrews . Clayton's case • Clements r. George • r. Lambert
Cole
t;. Gill t?. Green Greene
Coles V, Banow Collenridge v. Farqnharson Collier V. Hicks Collins V. Prosser Collott V, Haigh Constable v. Noble • Constantia, the^ case of
Page 90 660 741 148 366
119 171 281 469 609 194 418 583 115 57«
326
231
290
428
172
628
€97
627
353
767
583
468
291
441
90 623 452 583
49 477 353 297 324 303
537 00
TABLE OF CASES REFERRED TO.
XI
Page Cook V. Jones . . . 583
V. Leonard . . 228
r. VVherwood . . 750
Cooper t7. Elston . . 44 1
V. Thorpe . . 748
Copley V. Day . . . 433 Coppin V. Craig . , 697
V. Humand . . 75O
Corbett's case . . . 486 Countess of Northumberland's
case . . . 483
Plymouth v. Lady
Archer . .514
Court V. Martineau . . 423 Cowper t?. Langworth . 570 Cox V. Coleridge . .316 Cranley v. St, Mary, Guildford
637 Crawshay v. Maule . .132 Crisp V. BeUwood . . 436 Crosby v. Wads worth 44 1 , 56 1 Cross V. Kaye . . . 584 • Crowder v. Oldfietd . . 479 Cmmpton v. Ibbotson . 68 Cunningham v, Lawrents . 65 Curling v. Shuttleworth . 198 Cutler v. Newlin . . 268
D.
Dalbiac v. Dalbiac . . 583
Dalzellv. Mair . . 330
Dand V. Sexton • . 455
Dandridge v. Corden . 665
Davey r. Prendergrass . 290
Davie v. Mitford . . 379
Davies v. Bush . . 205
V. Thomycroft . 569
Davis V. Lewis . . 255
• 17. Russell . • 53
• t7. Vass . . 86
Day tj. Nix . . , 634
Dc Crespigny v. Wellesley 256
Deffle r. Desanges . .221
De Ganiinde r. Pigori . 332
Deverall v. Lord Bollon . J96
Dickins v. Smith Dickson v. Evans Digby V. Fitzherbert Dingwall v. Dunster Dixon V. Cooper
1;. Yates
Dobell V. Stevens Doe V. Britain •
V. Carter
V. Clark .
V, Davy .
r. Finch .
V, Fonnereau
V, Frowd .
1;. Gully .
— ~ V. Hulme
r. Jackson
V. Jones .
V. Lawson
r. Manning
V. Martin
V. Martyn
V. Mears
?;. Parker
V. Price
V. Read .
V, Routledge
V. Scudamore
V. Selby .
V. Shipley
V. Smyth .
v. Somerville
V. Steward
V. Tofield
V. Tyler .
— — r. Vowles
V. Whittick
V. Wilkinson
Doswell V. Impey Dover V. Maestair Dudley t;.* Watchom Duke of Dorset v. Sir
Wilson Marlborough v,
Godolphin
221 479 288 529 659 124 573 344 671 767 344
27 671 186 36 1
48 195 483 486 514 206 186 671 671 281 359 487
^7
26 453 148 186 572 149 135 276 671 671 378 584 171 Thomas
. 485 Lord J 1)6, 378
Xll
TABLE OF CASES REFERRED TO.
Page
Duncan v, Scott , . 664
Dunn t;. Shee . . 294
Durrell v. Beverley . 424
E.
Earl of Devonshire's case . 578
Falmouth v. Thomas 56 1
Rutland's case . 753
Uxbridge v. Bayley 198
Eaton r. Sanxter . . 572
Eccleston v. Clif^sham . 30 1
Edgar v. Fowler , . 3S2
Edge V. Parker . . 2W Edgington t>. Hood . .31
Edmeads v. Newman • 657
Edmonson 9. Hawkins • 583
r. Popkin . 583
Edwards v. Kelly . . 628
Eldridge v. Knott . • 636 Elliott V. Edwards . .197
Ellis V. Schonaeck . • 135
V. Taylor • . 485
Ellison V. Dezell . • 294
Elsing V, County of Hereford 83
'^ " " . 561
. 291
. 268
. 588 441,561
. 169
. 423
. 186
. 465 10
. 376
. 376
. 376
. 294
. 368
. 548
. 356
. 376
. 743
. 352
. 2*il
. 356
Emmerson v. Heelis English r. Darley Evans r. Beattie
t;. Prosser
V. Roberts
Everard r. Paterson Everett v. Desborough Everington v. Howard Ewer v. Moile . Exon r. Russell Ex parte Beadles
Beckwith
Day .
GiflFord
Herbert
Hill .
Hollingsworth
Horsley
Kite
Lane
Mavor
• Nunn
Ex parte Parry
Proudfoot
Robinson
Samboume
Schofield
Scrivener
Shadbolt
Shuttleworth
Small .
Smith .
Stone .
Tanner
Welsh .
Wetherell
Woodmason
Wride .
Fairlie v. Denton Falder v. Hooker Farebrother v. Worsley Farrant v. Thompson Fentum v. Pocock • Ferguson t;.
Cristall •
r. Rawlinson
Fisher v» Ball . Fitzroy v. Gwillim Fleming v. Simpson • Flight V. Chaplin Floyd V. Bethell Foster r. Frampton .
t;. Jackson
r. Stewart
Foy v. Belt Francis v. Crysell
v. Cry well
Freeland v. Glover . Freme v, Wright Fuller V, Terry
G.
Gaby 9. Wilts Canal Company
Page 376 356 354 376 376 583 376 354 367 376 221 368 352 557 376 376
• 166 . 199 . 376 I. 50
• 288
• 245 . 51 . 520 . 45 . 554
• 633 . 583 . 476 . 19
468, 570
. 657
. 332
. 340
. 340
. 423
. 197
. 416
Garbutt v. Watson
228 441
TABLE OF CASES REFERRED TO.
Xlll
Page
Gardiner v. i)a?i8 . .117
Gardner v. Jessopp . *. 455
Gamett ». Ferrand . .317
Garrett v. Jul! . . . 29O
George v. Lousley . . 86
Gevers v. Mainwaring . 529
Gibson v. Hunter ' . 390
V. Minett . 166, 390
— r. Rogers . . 767
Gilman v. Wright .315
Gladstone r. Clay . . 534
Glasscock r. Morgan . 570
Glover v. Cope 200
GoBF j7. Popplewell . . 584
Goodall V. Brigham . . 574
Gooding's case . . 58
Goodrigbt t?. Cater . . 570
V. Forrester • 483
Goodtitle v. Duke of Chandos
r. Meredith - V. Woodward
Goss V. Watlington Gould V. Robson Gofemors of British Plate Glass Manufactory v. Meredith Graham r. Pitman Grant r. Delacour
V. Paxton
Grave V. Dubois Graves v. Short Greene 1;. Cole Greenslade v. Dower Grills V. Mannell Grocers' Company v. Arch- bishop of Canterbury Groome v. Forrester Groves v. Buck Giymes r. Peacocke Guest v. Willosey Guidon r. Robson . Gulliver v. Wickett . Gully V. Bishop of Exeter Gunter v. Clayton Guthrie v. Fisk
271 765 359 267 294
281 666 538 537 332 520 504 136 467
465
61
441
451
767
77
26
488
170
213
H. Haddow r. Parry Haire v. Wilson Hale V. Small . Halifax's case . Hallden v. Glasscock Harding V.Wilson Hardy v. Ryle • Harper v. Tahourdine Harris v. Booker
V. Nichols
—V, Pugh
Harrison v. Courtould Harrow School v. Alderton Hartopp r. Hartopp Harvey t). Ramsbottom Haslewood v. Pope Havelock v. Geddes Hay don v. Myner . Haynes i;. Hay ton Hay ward v. Rogers . Haywood v. Rodgers
V. Rogers
Heane v.
Page 275 734 368 282
86 450
63 455 583 486 583 294
52 495 593 461
19 477 307 423 426 423 132 205 346
Helps v. Hereford . Henslow u. Fawcett
V. Bishop of Salisbury
520 Hewet V. Goodrick . 294
Heydon*s case . . 646
Hcyler r. Heyler . . 76(j Higham v. Ridgway . 272
Hill V. Bishop of Exeter . 487
v. Heale • . 169
V. Manchester W^aterworks
435 657 294 437 68 691 583 609 469 20 533 117
' r. Perrott
V. Read .
: r. Smith
V. Thompson
Hillary v. Waller Hindle r. O'Brien . Hoare v. Graham Hobson V. Middleton Hodgson V, Lay
• V. Richardson
r. Temple
XIV
TABLE OF CASES REFERRED TO.
Hodscbn V. Harridge Hodson V. Young Holland v. Jourdine Holloway v. Berkeley Hoist V. Powoal Hopkins v. Hopkins Horsfall v. Mathef . Houlditch V. Milne Hovill V. Browning Hudson V. Bankes • Hull V. Pickersgill . Hurd V. Fletcher Hyde v. HiM .
I.
Idle V. Cook Ingram v, Rouche In re Fowler
Freer
Merryweather
Pellow .
Taylor .
Irons r. Suiallpiece Isherwood v. Oldknow
J.
Jackson v. Garnsey t?. Ham
V. Hobho«ec
— V. Hurlock
. t?. Pesked
— V. Warwick
J amcs V. Green
Jefferson t;. Bishop of Durham
£42
Jeffreys v. Smith Jelfs V. Ballard Jellis T. Mountford . Jessor t?. Gifford • Jesus College v. Bloom Johnson v. Bray
r. Freeth
. V. Hudson
Page
. 7M
. 221
. 588
. 417
. 19
. 27
. 245
. 628
. 350
. 477
. 213 196, 579
. 405
. 583
. 750
. 352
. 354
. 352
. 315
. 548
. 660 200,579
. 487
. 487
. 568
. 767 51,169
. 663
. 744
Jones r. Hill V. Verncy
133 363 354 5i 133 456 569 115 244 1<)4
Page
Jordan v. Lewis . i 19
Joy V. Warren . . ^294
Judine r. Da Cossa • 221
Justice Windham's case . 364
K.
Keene t;. Deardon • • 636
Ke^iicott V. Bogan . . 467
Kerrison v. Cooke . . 289
King t;. Gosher • • 477
Kirby v. Smith . . 425
Kitchen v. Campbell . 333 Knightley and Spencer's cajje 468
Koowie V. Harvey . . ^42
Knowles «. Palmer • ^70
Kooystra v. Lucas , . 452
Kymer v. Suweraxip . 20
|
333 |
||
|
Lady Gresham's case |
195 |
|
|
Morrison t?. Cade |
«54 |
|
|
Lambert v. Liddard |
535 |
|
|
Lancaster r. Fielder |
670 |
|
|
Lane v. Howman |
264 |
|
|
Lang-u. Anderdon |
531 |
|
|
Langfort v. Tiler |
2\ |
|
|
Larke v. Kyme |
469 |
|
|
Law r. Hod son |
116 |
|
|
Lawrence r. Hodgson |
66 |
|
|
Laxton v. Peat |
988 |
|
|
Leak v. Bishop of Coventry |
485 |
|
|
Leatbley v. Hutit^r |
545 |
|
|
Lc Bret t;. Papilo« |
587 |
|
|
Lee V. Levy |
294 |
,587 |
|
V. Lingard |
11 |
|
|
1?. Nixon |
S04 |
|
|
Leigh V. H-unt |
lyo |
|
|
Lett V. Cowley |
£<2 |
|
|
Lewis V. Cosgrave . |
634 |
|
|
- V. Waller |
^55 |
|
|
Lexington -w. Clarke |
e97 |
|
|
Liardet v. Johnson |
TO |
|
|
Lickbarrow v. Mason |
^> |
|
|
Liford's case |
S42 |
TABLE OF CASES REFERRED TO.
XV
Lightly V. Clouston Liiidenau v. Devborougli . Lindon v. Hooper Little r. Poole Llojd r. Archbowle
V. Bethell
t?. Heariicote
Loddington r. Kine
Long r. Rankin
Lord Abergavenny's case .
Northampton's case .
Radnor r.Vandebendy
T7. VVormleigkton
Loved ay's case Lovie's case Low V, Burrows Lticas i;. Delacour
V. Nockells
Ljle r. Parry
Lynch v, Hamilton
Lyster t;. Dolland
Lytton V. Viscountess Falkland
765
Page
, 667
423
65
. 116
. 117
. 476
. 593
. 26
, 570
. 503
2^
568
526
504
583
666
117
468
166
430
572
M.
Maberly v. Robins . .197
M'Andrew v. Bell . . 425
Mace, q. 1. 1;. Lovett . 5H4 Maddock, q. t. v. Hanrott . 584
Maggs V. Hunt . 16
Maitland v. Goldney . 255
Maltby v. Carstairs . 290
Manning r. Lechmere . 275
Marriage i;. Lawrence . 435
Marshalsea the, case of . 169
Martin v. O'Hara . . 355
Massey v. Parker • 569
Matthews* Ex parte 117
V. Lewis . 583
Maundrell v. Mauudrell 195, 567
Mavor v, Simeon . • 332
Mawman v. Gillett . .117
Maxwell r. Jameson • 334
May field v. Wadsley 44 J , 56 1
Maynard v. Rhodes . 423
Mellifth V. Allnutt . 533
Mellisli V. Andrews
v» Richardson
Mercer v. Sparks Metcalfe v. Parry Middleton v. Crofts
— V. Hill
Mild may's case Miller v. Race Mills i;. Bennett
V. Spencer
Mole V. Smith Monke V. Butler Moore v. Edwards Morgan v. Bridges
^ r. Richardson
Morrii$ v. Edgington
V. Hayward
V. Hunt
V, Jones
t;. Pugh
Monys r. Leake
Much VValtham r. Peram
Munday v. Smith
N.
Nelson i;. Chenell
V. Pixie
Newton 1). Reid Nisbett V. Smith Nokes's case North v. Barker Notley v. Buck
O.
Oifard v, Betliam Oldiield v. Wilmore Orme v. Crockford
«. Young
Owston r. Ogle
P.
Page V. Tulse Palmer r. Knollis Parker v. Biscoe r. Staniland
Page
533
505
254
533
195
. 583
343
. 996
. 221
. 264
. 576
. 282
. 509
. 169
. 633
. 451
. 169
. 281
. 572
. 676
. 186
. 84
. 750
353 29^ 66Q 294 199 243 123
662 750 623
294 302
. 321
. 570
. 767
441,561
XVI
TABLE OF CASES REFERRED TO.
Parkes v. White Parton v. Williams . Paterson v. Gandasequi Patience v. Townley Peacock v» Monk Pemphrose v. Lord Lansdowne
765 Percival v. Cooke
V. Frampton
Page 569
334 171 495
Pereira v, Jopp Perring Vs Hone Petre v. Craft Phillips i;. Hopwood V, Pearce
. 239
. 666
. S94
. 134
. 584
. 357
. 709
. 298
. 294
. 343
. 766
. 452
. 276 392, 470
. 294
Philliskirk v. Pluckwell Philpot V. Bryant Pierce v. Winn Pigot V. Walker Plant V. James Plaxton V, Dare Plomer v. Ross Pole V. Ford . Pope V. Butt . . .750 Potter V. Potter . . 767
Pouiter V. Killingbeck • 56 1 Powel V. Milbank . .281 Powis t;. Smith • . 302
Pratt V. Hillman . . 228 Prestidge v. Woodman . 228 Price t?. Messenger . 741
Priddle and Napper's case 468 Pring r. Clarkson . 294
Pulvertoft V. Pulvertoft . 486 Purvis V. Rayer . .198
Pyeburn v. Gibson . . 455
Q. Queen*s College v. Hallett 52
R.
Raggett V. Axniore • 288
Rankingot v. Marsh . 584
Ravee v. Farmer . . 333
Rawlins's case . • 207
Rawson r. Walker . . 609
Page Ravi'thorn v. Arnold . 1 1
Ray V. Pung . . 195, 567 Raylance r. Hewling 44
Read v. Nash . . 628
Rees V. Marquess of Headfort
664 Regina 12. Simpson • .315 Reid V. Fryatt . • 86
Ren V. Bulkeley . . 580
Reniger t;. Fogassa • 657
Reppington v. Tarn worth
School . .461
Rex V. Ackley . . 42
V. Adiard . . 40
V. Aire and Calder Na- vigation V. Andrews
i;. Aythrop Rooding
V, Baker
1>. Banbury
V. Bard well
• w. Barham
V, Barker
V. Baw burgh
V* Benneworth
Berkswell
Berrington
Bishop of Llandaff
Worcester 496
. 637
-— V.
V.
V,
— r.
— V.
— t;.
— V,
— «.
— V.
4 488 179 618 562 728 561 754 97 727 178 290 480
Bitton
Blagdon
Boston
Bowness
Brangan
v. Brewers' Company
V. Burbach
V. Byker
V. Calow
V. Catesby
V, Chediston
V. Chertsey
«. Chipping Norton .
V. Clark
V, Clarke
v. Combe
1?. Commins
469 436 637 119 150 651 687 636 691
684 665 741 409 650 318
TABLE OF CASES REFERRED TO.
Rex V.
V.
V.
V,
17.
V,
Coombes
Coombs
Delamotte
Denbigh
Ditcheat
Page 572 28£ 572 641 560
V. Duke of Bridgewater,
Trustees of . 108
V. Duune . . 44
V. EatingtOQ . . 34
V. Edgemont . . 685
V. Ellis . • . 6ii
17. Farady . . 509
V. Fillongly . 637, 729
X?. Gash . . .75
V. Hackoey . . 562
V.Hall . . ,318
r. Hardhorn with New- ton ... 41
V. Hasling6eld . 286
V.Hawkins . . 313
r. Herstmonceux . 721
r. Hodgkinson . 509
V.Holland . .81
V. Holy Cross, Westgate 6 19
r. Horndoo on the Hill 178
V. Home . .81
V. Houghton-le-spring 34
V. Hubbard . . 44
V. Ingleton . . 637
• V. I?e8 . . . 744
r. Johnson . . 742
V. Justices of Essex 698
17. Somersetshire
699
■ V. Staffordshire
316
V. Yorkshire 698
V. Kelstern .718
- — V. King's Lynn . 650
V. Kingswinford . 106
- — V. Lakenheath «38, 72 1 - — V.Leake . . 282
- — V. Little . . 508
V. Liverpool • . 678
V. Lord of Manor of
Oundle . . 583
Rex V. Lower Mitton
V. Lydd .
V. Lyme Regis
V. M'Carther .
V. Macclesfield
V. M'Gill
V. Main waring
V. Manning
V. Marsh
V. Martin
V. Martley
V. Marwood
Mattishall . — '• — V. Mayor of Liverpool 282
xvn
Page . 100 . 685 . 171 . 171 . 717 163, 645 . 509 . 282 . 360 . 282 . 637 . 637 95
Milton
Minster
V. Mitcham
V. Myers
V. North Collingham
V. Curry
x;. Duffield .
106 720 409 742 560 178 641 177 721
V. Northweald Bassett
V. Owersby-le-Moor
V. Oxford Canal Company
107 V, Polesworlh
V. Potter Heigham
V. Preston
V. Ringstead
685 42
665 34
281 41
743
0. Rogers
» V. Rushall
V. Sainsbury
V. Si. Giles in the Fields 562
V. St. John, Glastonbury 637
V.St. Michael, Norwich 678
V, St. Nicholas, Colchester
562
V. , Leicester 83
V. , Rochester
562
V. Scammonden . 495
V. Selway . . 509
V. Shephard . . 744
V. Sheriff of Surrey . I69
V. Smith . . 577
V. Staplegrove 34, 178
XVUl
TABLE OF CASES REFERRED TO.
Rex
Page V. Stockley Pomroy . 177
1?. Stoke . . 560
V, Stoke Damarel . 96
t;. Stone . 177, S6S, 637
i;. Sutton St. Edmund's 728
V.Thompson . .314
V. Thornham . . 727
V. Tipton . . 649
V. Toddington . 178
V. Tonbridge . 360
V. Treasurer of Surrey 742
V. Turner . 37, 363
V, Ulverton . . 42
V. Upton . . 6s7
V. Waddington . l63
17. Warkworlh . 1 78
V. Wasbbrooke • 749
Websdell . . 589 Whateley . .316 Whitchurch . 69 1
r.Wid worthy . .177
©.Williams . 171,504
V. Willoughby . 562
V. Wootton . . 562
Rich V, Clarkson . . 749 Richards v. Thomas . 666
Richardson v» Mayor of Oxford
469 Ridley's case Ridout V. Bristow V. Pain
Rigg r. Parsons Right V. Cuthell
V, Hammond
Roach r. Wad ham • Roberts v. Goff
V. Wyatt
Robertson v. French Robinson v. Yarrow Roe V. Hicks • Rogers v. Dallimore
' t;. Humphreys
V. Pitcher
Romilly t;. James Rondeau v. Wyatt Rookeby's case Roper V. Halifax
. 80
. 609
. 765
. 52
. 359
. 342
195, 567
. 583
. 557
. 531
. 391
• 148
. 11
. 583
. 671
. 198
. 441
. 453
515,581
|
Page |
|
|
Ross V. Ross . |
. 345 |
|
Rowe V. Bellasys |
. 583 |
|
r. Brenton |
. €76 |
|
V. Peirce |
. 360 |
|
Russell V. Russell |
. 557 |
|
44 ^rnifnif^'i |
245 |
|
Rust V. Power |
! 583 |
|
Ryle p. H aggie |
. 276 |
|
S. Sacheverell v. Dale |
. 572 |
|
Salt V. Richards |
. 519 |
|
Samon v. Pitt |
. 750 |
|
Sansom v. Goode |
. 443 |
|
Saunders v. Mills |
. 264 |
|
Saundys v. Olife |
. 452 |
|
Sayer v. Pierre |
. 133 |
|
Scavage v, Talham |
. 56 |
|
Scorell V. Boxall |
. 561 |
|
Scott V. Gillmore |
. 665 |
|
v. Nesbitt |
. 583 |
|
V. Nicoll |
. 583 |
|
Scrafton v. Quincey |
. 196 |
|
Scurry v. Freeman |
. 602 |
|
Seddon v, Tutop |
. 333 |
|
Sellick v. Smith |
. 230 |
|
Shaw V. Evans |
. 443 |
|
Shelton r. Livins |
. 561 |
|
Shepherd v. Bishop of Chester |
|
|
Sheriff of Norwich r |
Bradshaw |
|
171 |
|
|
Shireburne r. Hitch |
. 480 |
|
Short V. Lee |
• 276 |
|
Silk 9. Osbom |
. 353 |
|
Silver v. Bishop of Norwich 186 |
|
|
Silversides r. Bowley |
. 30 |
|
Simpson v. Clarke |
• 666 |
|
Simson t;. Ingham |
. 91 |
|
V, Moss |
. 509 |
Sir Christopher Hatton's case 573 — Edward Clere's case • 195 Skaife v. Howard . .213 Slingsby's case • • 304
Smallcombe t;. Bruges . 374 Smith V. Huson . .281
TABLE OF CASES REFERRED TO.
XIX
|
Page |
|
|
Smith V. Johnson |
. 333 |
|
V. Sandilands |
• oOo |
|
. 436 |
|
|
r. Smith |
520,660 |
|
17. Surman . |
441, 56« |
|
V. Triggs |
. 148 |
|
V. Wheeler |
. 572 |
|
V. Wiltshire |
. 232 |
|
Snag V. Fox |
. 417 |
|
Snaith v, Mingay |
. 402 |
|
Soape V. Turton |
. 570 |
|
Solarte v. Melville . |
. 584 |
|
Sollers V. Lawrence |
. 244 |
|
Solomon r. Turner |
. 633 |
Solomons v. Bank of England
664
r. Jenkins . 584
Spencer t;. Billing . .221
V. Hamerton . 488
Spires r. Morris . . 276
Spitta V. Woodman 533
Stead V. Heaton . . 272
Steel V. Sowerby . . 5b4
Stephens v. Stephens . 27
Slerry v. Arden . 487
Stevens t?. Eliz6e . . 373
V. Lynch . 294
Stevenson r. Snow . .612
Stockman t;. Wither . 242
StofFe V. Everett . . 569
Storey r. Lord Windsor . 133
Stothert v. Goodfellow . 267
Strathmore v. Bowes • 766
Strother v. Barr . .51
Sturcb V. Clark -741
Suckley r. Whithorn . 83
Sutton V. Clarke . .281
Swannock r. Lifford . 568
Swift t?. Roberts .710
Symons v. Blake • 432
Talbot V. Habble Taylor v. Higgins
V. Lindon
Teed v. Elworthy
743
334
167
78
Page
Theobald v. Crichmore . 232
The Protector r. Holt . 468
Thomas v. Newton . 664
Thompson v. Shirley . 453 Thomson v. Leach . .148
Thornton v. Adams . l69
Thorpe v. Goodall • . 573
Thrale v. Bishop of London 479
'"' ^' . 442
. 342
. 354
. 294
. 297
. 356
. 628
. 441
. 148 9
. 208
. 666
. 435
. 479
. 495
. 67
. 633
. 476
Thrustout V. Shouton Tilburgh t;. Barbat Till V. Wilson Tindal v. Brown Tinson v, Francis Todd V. Maxfield Tomlinson r. Gill Towers v. Osborne Townson v. Tickell Trecothick r. Edwin Treviban r. Lawrence Trinder t>. S medley Truman t?. Walgham Tufton t;. Temple Tull V. Parlett Turner t;. Winter Tye V. G Wynne Tysonn t?. Hylyard
U.
Underbill v. Ellicombe
402
|
V. |
|
|
Veale r. Warner |
. 750 |
|
Vernon's case |
. 487 |
|
Vice V. Lady Anson |
. 131 |
|
Vick V. Edwards |
. 295 |
|
Violet V. Allnutt |
. 534 |
|
W. |
|
|
Waddington v. Bristow |
. 56l |
|
Waddington's case |
. 79 |
|
Wade V, Wilson |
. 601 |
|
Waggett t?. Shaw |
. 623 |
|
Wainwright v. Elwell |
. 149 |
|
Walker v. Gann |
. 453 |
|
Wallace v. Smith |
. 228 |
AX
TABLE OF CASES REFERRED TO.
Walsh V. Whitcomb Walter de Cherton's case Warre v. Miller Warren v> Greenville Warwick v. Bruce Wase t;. Pretty Watson V. Home
V, King
r- Wace
Way 9. Modigliani • Weale v. Lower Weatherhead v, Drewry Webb V. Home r. Paternoster
Page
615
378
. 533
. 271
441,561
. 417
. 405
. 616
. 367
. 535
. 207
743
169
615
228
84
461
451
172
Weller v. Toke Westbury v, Coston Westfaling r. Westfaling . Whalley v. Thompson Whishard v. Wilder White V. Bishop of Peterbo- rough • 486
V. Foljambe . . 195
V. Hussey . . 486
Whitehead v. Tuckett . 657
Whitfield V. Brandwood . 405
Wbitmash v. George • 267
Whitnash v. George . 267
Wilkinson V. Clay . . 334
V. Colley . 359
t;. Laudousack . 115
Pap Willes «. Glover . . 425 Williams r. East India Company
281
— V. Germaine . l69
v. Leper . 6^7
r. Morland . 51
Williamson r. Allison . 124
V. Beekley . 467
Wilmore r. Oldfield . 7oO
Wiltshire v. Lloyd . 455
Winne r. . . 520
Withall r. Masterman . 294 Witham v. Bland . . 567 Wohlenberg v. Lageman Wood bridge v. Spoouer WoodrofFe v. Williams Wood's case Wooldridge v. Boydell Woolnoth V. Meadows Wright V. Agar
v. Doe
V. Wales
668 584 240 535 264 584 276 229
Wy man's case . .171
Wynne v. Lord Newborough 559
Yelland v, Fielis Yeo t?. Leman Young V. Munsby
570 405
238
CASES
ARGUED AND DETERMINED
COURT OF KING'S BENCH,
IH
MICHAELMAS TERM,
IM THS TENTH TEAR OF THE RBION OF OBORGB IV.
Plaxton 17. Dare, Esq. and another. 1839.
TRESPASS. Declaration stated that defendants, on 19th The maniment August, 1828, and on divers, &c., with force and arms fjisor and^'his broke and entered a certain stable of plaintiff, situate, &c., assigns is the and then and there seized and took one mare and one halter for an eipired of plaintiff, of great value, &c., and kept and detained the '®*2.®' same for a long space of time, and until the plaintiff was leases and forced and obliged to pay a certain sum of money, to wit, expi^^kases fi/. l6s. in order to regain the possession of the mare and thongh can- halter. Second count, for an asportation generally. Plea, missiblein* * not guilty. At the trial before Gaselee, J. at the last evidence upon Chelmsford Assizes (a) the following facts appeared: — The boundary.
mare and halter mentioned in the declaration were taken ^'^ assess- ments to (a) Counsel for the plaintiff, the defendants, Gurney, Brodrick, church rate
^aaftie, Sent, and Bamewail; for and ChiUy. »** evidence
upon a ques- tion of boundary, though the parish officers do not charge themselves with the receipt of the rate, otherwise than by crosses set against the names of the parties rated.
VOL. V. 9
CASES IN THE KING*S BENCH,
1829. under a warrant of distress issued by the two defendants^ who were magistrates of the county of Essex, against the plaintiff, for the non-payment of 2/. Ss., for which he was assessed towards the relief of the poor of the parish of West Ham^ as inhabitant and occupier of a piece of land in that parish. The plaintiff, a farmer, residing at Ley ton, in Essex, was the occu- pier of a farm called Canhall Farm, and other lands, partly situate in the parishes of Wanstead and Leyton, and partly in the parish of West Ham. The plaintiff paid the sums at which he was rated for two closes in West Ham, bot disputed his liability in respect of eight acres, part of Great Ashfield, which he alleged was in the parish of Wanstead. In proof of this the plaintiff produced a lease of the close in question, dated 26th of November, 1646, from Richard Boothby to Thomas Mortimer* This lease was produced from the muniment chest of Major Colgrave, the present owner of Ashfield, in which Ashfield is described as being in the parish of Wanstead. On the behalf of the defend- ants it was objected that the lease, coming from the pos* session of Major Colgrave, who was entitled only to the possession of the counterpart, was inadmissible ; and that supposing this to be the proper custody, the lease, though admissible as proof of title, could not be used upon a question of locality, 8cc.; 1 Starkie on Evidence, S26; 1 Phillipps on Evidence, 7th edit. 250, were cited. The learned judge received the evidence but reserved the point. Another lease of 19th of March, 1712, from fVm. Colgrave to James Hutton, and another of 1760, from Wm. Colgrave to Edward Harvey, were put in. These two leases ap- peared to be cancelled. The church rates for 1737 and 1740 were then put in, and were admitted in evidence by the learned judge. The plaintiff then tendered a book produced from the parish chest, purporting to be a copy of the parish accounts, of the receipts and disbursements from 1712 to 1746. This being objected to, Mr. Serjeant Spankie insisted that this was a book of a public nature, and sufficient to charge the parish officers. The learned
MICHAELMAS TERM, X GEO. IV.
judge rejected this evidence, but took a note of its being 18^9. offered. The assessment to the poor rate for 1740 was put in. This contained no statement that the rates therein mentioned had been paid, otherwise than by containing crosses set opposite to certain names in the book. The learned judge said that he would receive the evidence, but that unless some proof of payment were given he should tell the jury to pay no. attention to it. A great deal of other evidence was gone into on both sides. The jury having found a verdict for the plaintiff,
Gurney now moved to set it aside. Neither the lease of 1646, nor the cancelled leases of 1712 and 1760, nor the rates, were admissible in evidence against the defend- ants. [Baylejfy J. Is not reputation evidence of the boundary of parishes ?]
Lord Tenterden, C. J. — This being a question where reputation would be evidence, this lease was properly ad- mitted. With regard to the rates, T am of opinion that they were properly received (a). Setting a cross against the names of the parties rated is the usual mode of denoting that the money is received. These documents being ad- missible, the question is reduced to a case of contradictory evidence ; and on whichever side we may think that the balance of evidence preponderated, there was clearly evi- dence on both sidesy upon which the jury might form their own conclusion.
Rule refused, (a) Vide ante, iii. 36a
Williams v. Jones.
A DISPUTE between the parties having been settled by An award an arbitration, a second dispute between the same parties was b^^ristercJin- not be qoestioned on the groand.oF any statement not appearing on the face of the award, or annexed to it.
b2
CAS£S IN THE KING S fi£NCH,
1899. referred to a secood' arbitrator, who made his award in favour of the defendant. The day before the second award was made the arbitrator wrote a letter to the plaintiff's attorney, stating that he felt himself bound to make an award in favour of the defendant on the ground that the measure in dispute had arisen before the former reference, and that although he thought the first arbitrator mistaken, he considered himself concluded by the award.
Campbell now moved to set aside the second award, on the ground that the arbitrator was mistaken in point of law, in supposing that he was concluded by the first award. In the late case of The Ayre and Colder NavigatioH (a), the Court set aside the award upon matter contained in a letter written by one of the arbitrators. [Littledale^i. That was to shew that the award extended to matters not within the submission.] The letter here may be considered as con- temporaneous with the award.
LiTTLEDALB, J. — If you refer to a gentleman at the bar
you are bound by his decision, unless it appear on the
face of the award, or of some paper annexed, that the
arbitrator wishes to raise the question.
Rule refused, (a) Ante, iv. 738.
BowEN and another v. Fox and others.
Trover will not XROVER for the certificate of registry of the ship Gra* [irtywhh* titude(a). Plea, not guilty. At the trial before Bur^
titrate of re- ^°) ^^ declaration contained deliver the certificate of registry,
eistry of a ship also special counts for refusing to which were not proved.
IS deposited as
a security for advances, upon a refusal to deliver up such certificate without payment.
Quart, What shall be a wilful detention of a certificate of registry, authorising the interference of a magistrate under 4 Geo. 4, c. 41, s. 85.
Qiutre, As tu the power of one part-owner of a ship to appoint a master, and to dis* place a master appointed bj^ another part-owner.
MICHAELMAS T£RM, X GEO. IV.
roughs, J. (a) at the last Bodmin Assizes, the following facts 1899 appeared : — The plaintiffs were the principal owners of the ship Gratitude, of which Bowen was captain, one sixty- fourth share being held by a seaman on board of the name of Myers. In 1823 the Gratitude being chartered to take a cargo of German linens from Hamburgh to Vera Cruz, in the course of her voyage was obliged to put into Rams- gate, at which place Myers, having taken offence at the captain, deserted the ship and went to London, where he remained. The Gratitude proceeded on her voyage down the Channel, and meeting with stormy weather, which oc- casioned some damage, she put into Falmouth, where, at the request of the defendants, they were appointed agents to the ship by Botcen, The repairs having been done and the Gratitude being about to sail, she sustained further injury in the harbour, rendering more extensive repairs necessary. Whilst these were going on, the butcher, who had supplied the crew with meat, arrested the captain. The defendants procured his liberation upon his depositing with them the certificate of registry, as a security for that and other advances made and to be made on account of the ship. The Gratitude being again completely repaired was removed into the outer harbour, upon which the de« fendants became apprehensive that the captain would sail without paying the ship's bill, though he had not taken his crew on board, and Bowen was again arrested, and was taken to Bodmin gaol at the distance of 35 miles. On leaving Falmouth Bowen appointed his brother Benjamin to be master during his absence. The defendants were requested by Benjamin Bowen to give up the certificate to the new master, and upon their refusal an application was made under 4 Geo, 4, c. 41, s. 25 (&), to the Mayor of
(«) Counsel for the plaiotif&i vAo/^t^r, should detain the certifi-
Meremeiher, Serjt., Manningy and cate of registry of any ship or ves-
Coleridge ; for the defendants, sel, or hold the same for any pur-^
ITi/^, Serjt., ErMne, and Follett, pose other than the lawful use and
(b) **' And whereas it is not proper navigation of the ship or vessel for
that an J penonpunder any pretence which it was granted, be it therefore
1829.
Bow EN V.
Fox.
CASES IN THE KINGS BENCH^
Falmouth, as a magistrate, to compel the defendants to restore the certificate of registry, but the mayor refused to
enacted, that in case the master of any ship or vessel, or any other person who shall have received or obtained, by any means or for any purpose whatever, tlie certificate of the registry thereof, (whether such master or other person shall be a part'K>wner or not,) shall wil- fully detain and refuse to deliver up the same to the proper officers of his Majesty's customs for the purposes of such ship or vessel as occasion shall require, it maj and shall be lawful to and for any owner or owners of such ship or vessel, the certificate of registry of which shall be detained and refused to be delivered up as aforesaid, to make complaint on oath against the master of the ship or vessel or other person who shall so detain and refuse to deliver up the same, of such detainer and refusal, to any justice of the peace residing near to the place where such de- tainer and refusal shall be in Greni Britain or Ireland, or to any mem- ber of the Supreme Court of Jus- tice or any justice of the peace in the islands of Jersey, Guernsey, or Man, or in any colony, plantation, island, or territory to his Majesty belonging, in Asia, Africa, or Ame- rica, or Malta, Gibraltar, or Heli- goland, where such detainer and refusal shall be in any of the places last mentioned ; and on such complaint the said justice or other magistrate shall and is hereby re- quired, by warrant under bis band and seal, to cause such master or other person to be brought before him to be examined touching such detainer and refusal, and if it shall
appear to the said justice or other magistrate, on examination of the master, or other person, or other- wise, that the said certificate of registry is not lost or mislaid, but is wilfully detained by the said master or other person, such mas- ter or other person shall be thereof convicted, and shall forfeit and pay the sum of JOG/, and on failure of payment thereof he shall be committed to the common gaol> there to remain without bail or mainprize for such time as the said justice or other magistrate shall in his discretion deem proper, not being less than three months nor more than twelve months; and the said justice or other magistrate shall and he is hereby required to certify the aforesaid detainer, re- fusal and conviction to the person or persons who granted such cer- tificate of registry for such ship or vessel, who shall, on the terms and conditions of law being complied with, make registry of such ship or vessel de novo, and grant a certifi- cate thi^reof conformably to law, notifying on the back of such cer- tificate the ground upon which such ship or vessel was so registered de novOy and if such master or other person who shall have detained and refused to deliver up such certificate of registry as aforesaid, or shall be verily believed to have detained the same, shall have ab- sconded, so that the said warrant of the justice or other magistrate cannot be executed upon him, and proof thereof shall be made to the satisfaction of the commissioners of his Majesty's customs, it shall
MICHAELMAS T£RM, X GEO. IV. interfere. Shortly afterwards, Myers was brought down frain 1829. London to appoint another master^ to whom the defendants delivered the certificate, under an order obtained by them firom the mayor ; and^ the vessel sailing upon her voyage, Bowen was immediately liberated from prison. He fol-: lowed the vessel to Vera Cruz, and on his arrival there found that the goods had been landed by the supercargo, and that his ship had been sold by the intrusive captain, from whom no information as to the grounds of this pro^- ceediug, and no account of the produce of the sale bad ever been obtained. Upon this state of facts it was contended on the part of the defendants, that the original delivery of the certificate of registry being made for a valuable consi- deration, the defendants acquiied a lien for their advances, and for their responsibility to the tradesmen who repaired and victualled the ship ; that the refusal to deliver the cer- tificate to Benjamin Botven was not evidence of a conver- sion, and that the subsequent delivery of this instrument to the master appointed by Myers, was justified by that ap- pointment. On the part of the plaintiffs, it was answered that the statute expressly provided that the certificate of registry should never be held for any other purpose except the navigation of the ship, and that therefore no lien could be acquired ; and that at all events a delivery to a person Dominated as master by Myers, who was the owner of a sixty- fourth part, and who had no power to displace a master who was appointed by all the part-owners, and who himself held an eighth share of the ship, was a wrongful conversion of the certificate, which had occasioned an utter destruction of the plaintiffs' property. The learned Judge ruled, that MyerSf as part-owner, had authority to appoint a master to the ship, and that the master so appointed was entitled to
be bwfal for the said commission- ship or vessel, in like manner as is
ers to permit such ship or vessel hereinbefore provided in the case
to be registered de navoy or other- wherein the certificate of re^stry
^'vt, in their discretion, to grant a is lost or mislaid." license for the present use of such
CASES IN THE KINg's BENCH,
have the certificate of registry. His lordship told the jury* however^ that if they were of opinion that the defendants had been guilty of fraud in the transaction, they should return a verdict for the plaintiffs. A verdict was found for the defendants, which
Merewether, Serjt. now moved to set aside. The statute 4 Geo. 4, c. 41, s. 25, prohibits, under heavy penalties, the detention of the certificate of registry, under any pre- tence whatsoever, for any purpose, except the use and navigation of the vessel (a), [Lord Tenterden, C. J« Look- ing at the language of the statute, this clause appears to be introduced not with a view to the interest of the owners, so as to prevent other persons from obtaining a lien. The certificate is to be given up to the officer of the customs.] The object of the clause was to prevent any impediment to the sailing of the ship. \,liffyfey, J. Suppose the ship requires repairs, and the master says, I have no money, but I will deposit the registry as a security that I can obtain it from the owners. Here it seems to have been placed in the hands of the defendant as a security for advances. The question is, whether a party can be said wilfully to detain where he has a lien.] The preamble seems to say that he would, because he cannot hold. It supposes every refusal wilfuU
Lord Tenterden, C. J. — It does not follow that this action can be maintained. This action is founded on the common law right of property, not upon the statute; but at common law the party cannot sue for a conversion without paying what is due. He should have pursued the remedy given by the act. The officer of the customs should be required to interfere* The effect might be to make the pledge of no avail.
(a) Ante, 5, {b).
MICHAELMAS TERM, X GEO. IV. 9
Bayley, J. — It is not necessary to give any opinion ^f*^9, whether the owners bad a right to have this certificate of j,
registry back again. o.
Fox.
LiTTLEDALE, J. and Parke, J. concurred.
Rule refused.
Williams v. Waring.
Assumpsit. The plaintiflf declared as the indorsee A memoran-
, , 1 • -iv • I - • <^Qin at the
of a promissory note, made to the plamtitf, without noticing foot of a pro-
any place of payment. Plea, non assumpsit. At the trial, P|?*®T "®^®
before Jervis, J. at the last assizes for the county of Den- particular
high, the note appeared to have the following memoran* P^*^ forms^no
dum: — ** At Messrs. B. & Co. Barbican, London.'' The part of the
whole of the note and memorandum was written by the though shewn
defendant at the same time. It was contended that this was *® be contem- poraneous a variance, and that the decimation should have described with the note
thi note as payable at the place mentioned in the memo- ^^^^^'
niidum. The learned judge over-ruled the objection, but
reserved the point.
Campbell now moved accordingly to enter a nonsuit. The
circumstance of the particular place not being contained
in the body of the note is immaterial, where it is shewn
that the whole was done at one and the same time. Thus
in Trecothick v. Edwin (a), it was held by Lord Ellenbo'
rough that where the place of payment is printed at the
foot of the note it formed part of the contract. That de-
ciaioo proceeded not upon any distinction between
printing and writing, but upon the evidence afforded that the
condition must have been there at the time the note was
signed. Here the fact was proved. The contract is to be
gathered from the four corners of the instrument. IParke,
(«) 1 Stark. N. P. C. 468.
10 CASES IN THE KIXG's BENCHi
1829. J. The late act (a) applies only to inland bills of ex-
.^^^'^'^^ change. Lord Tenterden, C. J. In point of practice there
V. IS a well known distinction between a place of payment in-
>RiNo. serted in the body of the note, and a place mentioned in a memorandum at the foot of a note; in the former case it is considered as forming part of the contract, but where the place has been mentioned only in a memorandum at the foot of a note, I am not aware of any inquiry as to the time at which the memorandum was made. Parke, J. The question is, what the party meant by it. Bayley, J. Exon v. Russell {b) appears to me to be in point. In that case the memorandum was on the note at the time it was signed by the defendant, which being declared upon as payable at a particular place, was held to be mlsdescribed.]
Lord Tenterden, C. J. — ^The distinction has been so long acted upon, and the case cited by my brother Bayley is so expressly in point, that I think this Court is bound to adhere to the course which has been hitherto adopted.
Rule refused.
(a) 1 & 9 Geo, 4, c. 78. no part of the contract, contrary
(6) 4 M. & S. 605. The ground to the doctrine held by the Court
of that decision was the opinion of Common Pleas, and to the ulti-
- then held by the Court of King's mate decision of the House of
Bench, that a particular place of Lords, in Rowe v. Young, 9 Brod.
payment designated in an accept- & B. 165.
aiice or in a promissory note, formed
Bennett v, Skardon and another.
Motion to set TRESPASS, quare clausum fregit. Plea, not guilty, and
S^arefe!^ liberum tenementum. At the trial, before Tindal, C.J.
enceatnisi at the last assizes for the county of Devon, a verdict
to^bemadcT was taken for the plaintiff, subject to a reference to an
after the first arbitrator, who was to set out boundaries, &c. The arbi-
term, where trator made .his award at Plymouth, 215 miles from Loq-
tlie award was
published too late in the vacation to take the necessary proceedings before.
MICHAELMAS TERM, X GEO. IV,
don, on the 4th of November, and thereby directed a ver- dict to be entered for the defendants. The plaintiff was advised that the awdrd was bad in p6int of law. The ex- amiaations being very long, it was impossible for the plaintiff's attorney to consult his client to get ready a case for the opinion of counsel, and to obtain that opinion before the expiration of the first four days of the term. On the second day of the term, 12. Bayly obtained the following rule : —
It is ordered. That all proceedings in this cause, and under the award made in this cause, be stayed until Friday next; and if any rule shall within that time be made to shew cause why the award should not be set aside, until such rule shall be discharged, and that if such rule shall be made absolute, then that there be a new trial in this cause. And it is further ordered, that if no motion to set aside the said award shall be made within the time aforesaid, the said award do stand absolutely.
This rule was applied for upon the following cases : —
Rogers V, Dallimore (a) ; Lee v. Lingard {b)\ BorvQwclale
V. Hitchener (c) ; Rawsthorn v, Arnold (d).
11
1829.
(fl) Though ihe Court would in general adopt the limitation of time prescribed by 9 & 10 WUL S, cap. 15, under an order of refer- ence, jei when Ihey see sufficient cause ihey will interpose their au- thority, though the time is elapsed. 1 Marsh. 471; 6 Taunt. 111.
(ft) 1 East, 401. When a ver- dict is taken pro form^, subject to an award, the sum afterwards awarded is to be treated as if it had origjoaily been found by tlie jury, and the plaintiff (and therefore also the defendant, where a ver- dict is directed by the award to be entered in his favour) is entitled to enter up judgment for the amooDt, without first applying to die Coart for leave to do so.
(c) 3 B. & P. 244. If a verdict be taken for the plaintiff at nisi prius, subject to an award, and the order of reference be made a rule of Court, the verdict may be en- tered pursuant to the award, with- out any application to the Court; if in such a case the award be made before the term, the opposite party can impeach it only within the first four days of the term.
(£2) 9 D. & R. 556 ; 6 B. & C. 629. Motion to set aside an award made under an order of nisi prius, must be made within the time allowed for moving for a new trial, although, per Abbotly C. J., the Court might not insist rigidly upon the compliance with that rule, if any sufficient ground were stated for indulgence.
12 CASES IN THE KlNO's BENCH,
1899.
^^'^^'^^ Hunt and another, assignees of W. D. Gilbert and
T. Gilbert, bankrupts, v. Mortimer and others.
l£A, ad- Assumpsit, for money had and received to the use of
to B. an in- ^^^ plaintiffs as assignees. At the trial before Lord Tenter- solvent trader, rfew, C. J., at the sittings at Guildhall after last term, the of enabling B. following facts appeared: — ^The defendants, who were ^Td^^^^tMd. i^'onmongers, had been in the habit of advancing money to opon the terms the Gilberts^ who were opticians, for the purpose of ena- out^ftSrp^ce *^'*°8 the latter to execute orders for the East India Com- ofthegoods,a pany, which advances were repaid out of the money re- by JB. to A, out ^^^^^^ ^^om the Company, whose payments were made in of the P"ce bills at six months. In May, 1827, the bankrupts applied to is not a fraa- ' the defendants for an advance to enable them to complete dulent prefer- ^^ ^^^^^ received from the Company, and the money, 2,500/., was advance:! by the defendants upon the terms of their being repaid out of the money to be received from the Company. Between July and November, 1827, the Gil- berts were arrested by several of their creditors, and one of the defendants became bail for them in six actions. In November, 1827, the amount of the order, being due, was received by the defendants. The Gilberts stopped pay- ment on the SOth November. The commission issued in May, 1828, upon an act of bankruptcy committed in De- cember, 1827, though T. Gilbert^ who lived in the country, appeared to have committed an act of bankruptcy in Octo- ber, 1827. The learned judge told the jury, that as in per- mitting the defendants to receive the money from the East India Company, the Gilberts appeared to have acted with good faith, in pursuance of a previous agreement, the trans- action did not amount to a fraudulent preference, and that as no commission had issued within two months, the pay- ment could not be invalidated by an act of bankruptcy of which the defendants had no cognizance. A verdict having been found for the defendants,
MICHAELMAS TERM, X GEO. IV. i3^
F. Pollock now moved for a new trial, on the ground ^ ^^^• thit the transaction amounted to a fraudulent preference, which was not protected in the manner stated to the jury. This debt was not assigned, nor was any notice given to the Company that the defendants had become interested iti the payment. [Baylei/fJ. The defendants lend money apon an express stipulation that they shall be repaid out of the particular fund.] A party has no vested interest in the proceeds of an adventure, in respect of which he ad- Tances money. The Gilberts had in law a right to apply the money due from the East India Company to any pur- pose which they might deem expedient. [Lord TeriUrden, C.J. The money was advanced for the very purpose of executing the orders. Parke, J. That is, in effect, an as- signment. Notice to the debtor is necessary only for the purpose of taking the case out of the statute of James (a).] By the acts of the defendants the credit of the traders was bolstered up till the defendants had recouped themselves by obtaining payment. The object was to enable the traders to linger on till the defendants had got the money. In the case of Parker v. Cox, which is now pending, a rule was obtained on the ground that the defendant bad kept up the credit of the bankrupt and had paid his clerks until the money was received. [Lord Tenterden, C. J. That case is quite different from the present. In Parker v. Cox there was no loan of money to enable the trader to execute the particular order.] That part of the present case, which is meant to be assimilated to Parker v. Cox, is the defend- ants' giving bail for the bankrupts in six actions, and there- by keeping them above water. It should have been left to the jury to say whether there was not an unusual interfe- /ence by the defendants in the affairs of the bankrupts for the purpose of putting off the evil day. That was a fraud on the bankrupt laws. Suppose a trader borrows money or obtains goods, and says, when the voyage is ended I will |Miy you out of the proceeds. [Bayley, J. That is not this case.] In the ordinary course of business the Gilberts («) tl Jae, 1, c. 19, s. 11; and see 0 Geo, 4, c. 10, s. 79.
14 CASES IN THE KING's BENCH,
1829. would have been bankrupts long before, but they were ^"^y^^^ kept out of prison solely by the interposition of the de- V. fendants, whose object was to defeat the statute, knowing
Mortimer. ^j,^j jJj^ Gilberts were irrecoverably insolvent. It would have been very different if the assistance given by the de- fendants had been a transaction in the ordinary course of business. Here they interfere in an unusual manner for the purpose of effecting a particular object. l^Parke, J. Have you any authority for saying that notice of the as- signment of a debt is necessary, except for the purpose of getting rid of the reputed ownership, under 6 Geo. 4, c. l6, 8. 72, following the provisions of the statute of James?^ None has been discovered. But as in the case of usury, the law will not suffer the spirit of the statute to be evaded. If any advantage was to be derived by the defendants from postponing the issuing of the commission, it should have been left to the jury whether the conduct of the defendants had not been directed to that object, which was to post- pone those who furnished goods to those who furnished money.
Lord Tenterden, C. J. — I thought at the trial that it would be carrying the law of fraudulent preference to a greater extent than it had yet been carried to treat this transaction as a fraudulent preference, and I am still of opinion that we ought not so to treat it.
Bayley, J. — I cannot see any premises from which «uch a conclusion can be drawn.
LiTTLEDALE, J. — Two things must concur to make a fraudulent preference, contemplation of bankruptcy and a voluntary payment. Here the money was lent for a spe- cific purpose, to be repaid out of a particular fund. Far from being voluntary, the payment was the subject of a specific contract. Where a creditor has trusted in respect to the genei^l credit of the trader, if he is paid he obtains
3£ICHA£LMAS TERM, X GEO. IV.
an advantage over those creditors who remain unpaid. In this case the defendants obtained no advantage at all. Here, but for the specific contract, the defendants^ knowing the traders to be insolvent, would not have lent the money at all; it would have remained safe in their own pockets.
Pabke, J. — There is no pretence for calling this a iraudalent preference. When looked at, this transaction is nothing more or less than an equitable assignment of a portion of the particular fund, in satisfaction of money lent for the purpose of creating that fund ; which is very different from the payment of an antecedent debt contracted without re- ference to such fund. If at the time of the bankruptcy the debt from the East India Company had remained unpaid, the bankrupt would have had no title to that portion of the debt which had been appropriated to the defendants, except as apparent owner under the 72d section of 6 Geo* 4, c 16. But here the money was paid over before the act of bankruptcy.
Rule refused.
Phillips, Assignee of Arton, v, Hopwood.
Trover. At the tnal before Lord Tenterden, C. J., at where a re-
the sittings at Westminster after last Trinity term, the case pealing statute
^ , 19 repealed,
turned upon the sufficiency of the act of bankruptcy^ The the nrst sta-
commission issued in July, 1 825. The alleged act of bank- ^ay SAch''
ruptcy was committed in March, 1825. By 5 Geo. 4, c.98y the third sta-
wfaich came into operation on the 21st of June, 1824, all feet revWeV
the prior statutes respecting bankrupts were repealed, and ab initio, and JT^ ^ t . r^ . r.r. 1 1 not merely as
by 6 Geo. 4, c. 10, the act 5 Geo. 4, c. 98, was repealed as from that day.
from the 2d May, 1825. The learned judge was of opinion
that the act of bankruptcy was sufficient to support the
comniission^and the plaintiff obtained a verdict.
\
16
1899. Phillips
V. HOPWOOD.
CASES IN THE KINGS BENCH,
' «J. Williams now moved for a new trial. Upon the Ist of May, 1825, all the bankrupt act9 antecedent to 5 Geo, 4, c. 98, stood, by that act, absolutely repealed. [Lord Ten* ierden, C. J. The 6 Geo. 4, c. 16, put an end to 5 Geo. 4, c. 98, as if it bad never existed.] Maggs v. Huni (a) is di* rectly in point. [Bay ley ^ J. Upon the 2d of May all the former statutes were revived.] It is submitted that they were revived only from the 2d of May, the date of the last repealing statute, 6 Geo. 4, c. l6. During the whole of the 1st of May the former statutes were dead, they would not revive retrospectively. [Bayley, J. This commission does not depend upon any thing done on the 1st of May. If the act of bankruptcy had been between the 2d of May and the 1 st of September, a commission might have been sued out before the 1 st of September (6).] In BacotCs Abr. Statutes, " From what time to have effect" (c), it is said, that " It is the general rule that no statute is to have a retrospect beyond the time of its commencement, for the rule and law of parliament is, that '' nova constitutiofuturisformam debet imponere, non prateritis.** And the same rule appears to be deducible from the cases which are collected in 19 Vin* Abr. Statutes, B.
Lord Tenterden. — The old statutes were in force in March, and also in July.
Pabke, J. — ^The statutes were in force when the act of bankruptcy was committed, and when the commission issued.
Rule refused.
(a) 4 Bingh. 212. (6) The day on which the pro- visions of 6 Geo, 4, c. iOf except
as to the repeal of 5 Geo. 4, c. 98, began to operate, (c) 5 Bac. Abr. Statutes, (C.)
MICHAELMAS TERM, X. 0£0. IV. 17
Clay, Assignee of Malleys, a Bankrupt, v. Harrison. 18S9.
Assumpsit on two policies of insurance, each for 100/., After stoppage on a cargo of deals, per Providence, Younge, from Peters- *" '^^""c^ges^ burgh to Hull, laying the interest in thjs bankrupt. At the to have an in- trial, before Bayle^, J., at the York Spring Assizes, 1828, l^^^^^ '""^^ the question raised was, whether the interest was in the And a policy btnkrupt at the time of the loss. A verdict was found for ^h^ stoppage
the plaintiff for 200/., subject to the opinion of the Court becomes
. , ,. , . , ^ « . /. ^ thereby void,
upon a special case disclosmg the followmg facts: — Un
the 20th January, 1825, Malleys, the bankrupt, ordered of Hubbard, who had a house at London and at Petersburgh, two cargoes of deals, to be paid for by Malleys's acceptance, at three months from date of shipment, on receipt of in- voice and bill of lading. In October, 1825, the deals were shipped on board the Providence for Hull. In November, 1825, Malhys received an invoice, with a bill of lading in- dorsed in blank, and accepted Hubbard^a draft, payable S4th January, 1826, for 923/. 2s. 6d., amount of invoice. In September and October, 1825, the defendant subscribed the two policies on which the action was brought. On her ▼ojage to Hull the Providence was wrecked near Elsinore, 5th January, 1826. The cargo was saved, but was so much damaged that Younge, the master, did not think it worth sending out a ship for. On the 2dd January^ 1826, Midleys first heard of the loss, and he immediately gave no- tice to the defendant of abandonment of all his right and interest in the vessel so far as concerned his subscription, and requiring payment of the same, as a total loss, which oodce the defendant refused to accept, unless he could put bim in possession of the goods saved. Malkys was insolvent on the 23d January, 1826, and on the following day his acceptance was duly presented for payment, and dishonoured., On the 4th February, 1826, Hubbard g2Lve notice to the defendant not to pay the loss otherwise than to die order of himself, as the person solely interested. On
▼OL, V. c
/
18 CASES IN THE KING S BENCH,
1829. the 11th February, 1826, Hubbard sent one of the bills of lading to his agent at Elsinore. This bill of lading, which was to order, and indorsed in blank, reached the agent on the Sd March, 1826; whereupon he applied to the agent of the ship, who agreed to deliver the cargo; but no further possession was taken until Hubbard received 271/- 7s. lOd., the net proceeds of a sale which took place on the 22d May, 1 826. An action was brought by Hubbard against MaUejfs in Easter term, 1826, on his acceptance, and notice of trial was given for the first sittings in Trinity term, but the re- cord was withdrawn. Malleys became bankrupt 23d May, 1 826. Malleys's acceptance still remains in the possession of Hubbard, but has not been proved on Malleys^s estate.
Patteson, for the plaintiff. The plaintiff is entitled to judgment on three grounds. First, there was a complete total loss before the attempt to stop in transitu, and which cannot be affected by any thing which occurred afterwards. Secondly, there could be no stoppage in transitu, because there was an abandonment and change of property, and be- cause the transitus was at an end before the supposed stop- page in transitu. Thirdly, the effect of stoppage in transitu is not to alter the property, but merely to create a lieii^ leav- ing an insurable interest in the bankrupt. Upon the first point the dates are very material. The contract was to pay by bills at three months; the loss happened on the 5th January, 1826, nineteen days before the bill became due; intelligence of the loss arrived on the 23d January, the day before the bill became due. [Lord Tenterden, C. J. I suppose no point is intended to be made as to the form of the abandonment. The notice is, that he aban- dons his interest in the ship, in which he had no inte- rest.] The objection taken to the notice was, that Jtfoi- leys was not in a situation to abandon. Mallej^s was bound to give every facility to the underwriters to obtain possession of the property abandoned. If any thing had been recovered from the proceeds of the sale, the bankrupt would have been bound to account to the defendant for the
MICHAELMAS TERM, X GEO. IV.
amount. Havelock s. Geddes{a). [Lord Tenterden, C.J. The whole case seems to turn upon the effect of the stoppage in transitu. Bctyleif^i. The question will be, whether the consignee can expedite his right. There would have been a right to stop, as against the consignee, whilst the goods were on their way to England. Lord Ttnterdm, C. J. Does an abandonment vest the property ? If it does, where is the use of asking for an assignment?] Circumstances equivalent to an indorsement of a bill of lading will prevent the right to stop in transitu. [Bayley, J. Supposing, after an abandonment, the goods were brought to England, would the vendor have a right to stop them in transitu?] It is conceived that he would not. The defendant cannot be allowed to take advantage of his wrongful act in refusing the abandonment which he was bound to accept. Secondly, there could be no valid stoppage in transitu, because the property bad been transferred. The transitus was at an end when the goods were landed. In HolU v. Pownal{b), it was held, that possession obtained by the consignee, be* fore the completion of the voyage, would not divest the right of the consignor to stop in transitu. But that nisi prius decision has since been qualified by the late case of Foster v. Frampton (c), in which it was held that if goods are shipped to be delivered at a particular place, and the consignee accepts them at an intermediate place, the tran- situs is at an end. Here the goods insured were accepted at an intermediate place by an abandonment to the under- writers. IBayky, J. In this case the abandonment is not accepted by the underwriters. The question now before the Court is, whether the goods were on their way to a port of destination. It does not appear whether the goods could have been sent home by another ship or not.] Thirdly, supposing the goods to have been stopped in transitu, the effect of the stoppage is not to rescind the bargain, but merely to give to the vendor a right to re-possess and hold
(«) 10 East, 565. (e) 9 D. & R. 168; 6 B. & C.
(« 1 E»p. N. P. C. 940. 107 ; « C. & P. 469.
C2
CASES IN THE KINO S BENCH,
the goods. [BayUy, J. After stoppage in transitu, the ven- dor may bring trover against the captain, if he withhold the goods.] That results from the vendor's qualified right of property, from his right of possession. In Hodgson v. Loy{a), it was laid down by Lord Kenyon that the right of the vendor to stop in transitu only created an equitable lien, and did not proceed on the grounds of rescinding the contract. By the sale itself the property passes to the buyer (6). The vendor has merely a right to retain the pro- perty until the price is paid, and not even that, if time is given for the payment. In Bloxam v. Sanders (c), it was held that trover would not lie for a vendee who had not paid for the goods, because though he had the property {d) he had not the right of possession. The whole judgment went upon that distinction. Com. Dig. Agreement, B. 3. This agrees with the judgment of Buller, J. in Lickbarrow V. Mason (e). Here, the price was to be paid by bill; but nothing has occurred to prevent the property remaining in Malleys. [Lord Tenterden, C. J. The vendor might stop ia transitu before the bill became due, if in the interval the vendee became notoriously insolvent. If the goods had re- mained in the hands of the vendor, might he not have said, unless you pay me I will keep the goods as my own? Bayley, J. May not the vendor re-sell, unless the vendee will pay the price ? And does he not abandon all claim against the vendee by re-selling?] In Kymer v. Suwer" cropp (f), it was held that where goods to be paid for on delivery are stopped in transitu, the vendor may still main* tain an action for goods bargained and sold, if he offer to deliver them on being paid. In a late case the Court directed an account to be taken, in order to enable the vendor to prove for the difference. In Bloxam v. San^
(fl) 7 T. R. 445. (e) 2 T. R. 63, 5 T. R. 367;
ib) t. e. by the sale and delivery, 683; 4 Bro. P. C. 2d ed. 57.
Vide ante, ii. 566 u. (/) 1 Esp. N. P. C. 240; ante,
(r)7D.&R.396;4B.&C.941. 19. {d) Sed vide ante, ii. 566, n.
MICHAELMAS TERM, X GEO. IV.
(ifrs(a), it was said that the contract was not rescinded by the stoppage in transitu. [Bayley,J. There the vendor had not any right of possesion. Lord Tenterden^ C. J. The property passed in the first instance by the sale and the delivery on board the ship (6), subject to being re-vested iQ the vendor under certain circumstances, which gave him aright to put himself in the same situation as if the con- tract had never existed. Littledale, J. In Langfort v. !R/er(c), Lord Holt says, " That after earnest given, the vendor cannot sell the goods to another without a default in the vendee ; and, therefore, if the vendee does not come and pay and take the goods, the vendor ought to go and request him ; and then, if he does not come and pay and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person." So if the vendee become insolvent.] The property is not re-vested until something be done by the buyer.
F. Pollock, contri. The great question in this case is, what is the effect of the stoppage in transitu. This is only a constructive total loss. The Court will not carry that to such an extent as to give it the effect of destroying the right to stop in transitu. The goods remaining may be worth more than the proof under the commission. The second point, which is the main question in the cause, has been argued upon a petitio principii. The distinction in the cases referred to is, between an executed delivery, and a stoppage in transitu, supported on the ground that the de- livery had not been complete. Bloxam v. Sanders {d) is a case of executed delivery; whereas a stoppage in transitu implies that goods are still to be sent. The consignor must stop at his own peril. In cases of executed delivery the vendor may sue for the price in an action for goods sold and delivered, and may take the same goods in execution.
(a) 7 D. & R. 596; 4 B. & C. (c) 1 Salk. IIS.
94J. (d) 7 D. & a. 396; 4 B. & C.
(b) Ante, ii. ^66, n. 941 ; ante, 30.
21
1839.
22
1839. Clay
V.
Harrisoic.
CASES IN THE KINGS BENCH,
By the contract of sale nothing passes but the right to have the goods. Until delivery the property is in the vendor. The vendee has jus ad rem^ but not jus in re (a). Where there has been no delivery, or where the delivery, being defeasible, has been defeated, as here, the vendor may, upon the expiration of a reasonable time, treat the contract as dissolved. After taking that course he cannot sue for the price. It is true that in Hodgson v. Loy (6), Lord Kenyon denied that the right of the vendor to stop in transitu proceeded on the ground of rescinding the contract. But certainly the current of authorities is the other way. Here it is more reasonable to consider the contract as re- scinded, the cargo having been sold by the vendor and the proceeds of the sale received by him. In Lett v. Cowley (c), Gibbs, C. J., says, that after stoppage in transitu the pro- perty is in the vendor; there is an actual re-vesting of the property. So in the case of The Constantia (d), it is termed a complete and effectual revendication. Whatever a bank- rupt holds merely as trustee for others, does not pass to his assignees (e), who, therefore, cannot sue. It is submitted that the vendor could not prove against the estate; he could only sue on the special contract for not accepting and paying, &c.
Patteson, in reply. Stoppage in transitu is not per se a rescinding of the contract of sale. It has been said that the vendor may wait a reasonable time. Here he has made his election by bringing his action on the bill, which he still retains in his possession. The vendor would have had no right to sue if the contract had been rescinded; the bill should in that case have been immediately given up to the bankrupt. The seller and the buyer may both be said to have an interest in the goods after stoppage in transitu. It is sufficient to maintain this action if the bankrupt had any
(a) Ante, ii. 506 n. \b) Ante, 20. (c) 7 Taunt. 109.
{d) 0 Rob. A. R. 391. (e) Vide Carpenter v. Marnell^ 3 B. & P. 40.
MICHAELMAS TERM, X GEO. IV.
interest. Lett v. Cowley {a) is very distinguishable. In the case of the Constantia, the question was, whether there Clay could be stoppage in transitu without actual insolvency, Harbison. [Bayley, J. In Lett v. Cmvley, it was said that the pro- perty re-vested by the stoppage in transitu.] All the autho- rities shew that the property passes by the sale {b), though it is said on the other side that nothing passes by the sale bat the right to have the property. In no case is it laid down in what manner the stoppage in transitu ope- rates. It is submitted, however, that it operates merely to re-vest the possession. In those cases in which the expres- sion ** re-vesting the property" is found, that point was not before the Court, By holding that the effect of the stop- page in transitu was to re-vest the property, the vendor would not be in a better situation than if it were consi- dered that the possesmn only re-vested. [Lord Tenterden^ C. J. This is a very important case. Kymer v. Suwer- cropp was a case of an executed delivery.]
Cur. adv. vult.
Lord Tentekden, C. J, delivered the judgment of the Court. — The question in this case was, whether, at the time of the lossj the bankrupt was interested in the goods in- sured. This depended upon the effect of the stoppage in transitu, viz. whether it operated to rescind the contract and to re-vest ihei property in the vendor, or only to retain to the vendor the right of possession and to replace him in the same position as before he parted with the possession of the goods. This point does not appear to have been ex- pressly decided; but we are of opinion that in the present case the bankrupt, after the stoppage in transitu, had
no property in the goods insured, and that the action
caooot be supported.
Judgment for the defendant, (a) 7 Taunt. 169. (b) Sedvide ante, ii. 566, n.
24 CASES IN THE KING's BENCH,
1829.
Doe, d. William Harris, t. Elizabeth Howell and
others.
J. devises to CjECTMENT for a messuage and lands at Clifton in mainder to C. ^^^ county of Worcester. At the trial of this cause, before in fee, with Vaughan, Baron, at the Spring Assizes for the county of case C. shoald Worcester, 1828, a verdict was taken for the plaintiff, sub- die ^fore B. j^^j ^^ jjjg opinion of this Court on the following case: — have no other Shortly before the 19th day of February, 1763, John her deaX^to' "^^ died, seised in his demesne as^of fee of the premises, devise as she having first duly made and published his last will and tes- proper. C. tament in writing, executed and attested so as to pass his *"d d*^d^* real esUte, bearing date the 29th Sept. 1762, whereby he the lifetime of devised as follows : ** I give, devise, and bequeath unto my ^d^visin^'***^ daughter, Elizabeth Harris, all those, &c. (the premises in given to B. is question,) To hold to her for and during the term of her
fee* to herTy'" ^'^^ » ^"^ '''^™ **"^ ^^^^^ ^®' decease, in case her husband, wayof execu- Wm. Harris, shall survive her, then I give and devise the during the life sc^me unto the said Wm. Harris for the term of his life,
of C, and and from and after the decease of the said Wm. Harris and
uuon the death ^ , . .^ . ^ , . ▼ .
or C. it be- £. his wife, and the survivor of them, then I give and
remSnderca- ^^^'^^® ^^^ ^*^ messuages, &c. (the premises in question,) pable of being unto my grandson, John, the son of my said daughter £/r- fine. ^* ^ zabeth Harris, and his heirs and assigns for ever; but in case my said grandson shall die before my said daughter, and she shall have no other child living at her death, then my will is that my said daughter shall give and devise the said premises to such person or persons as she shall think proper." The testator, at the time of his death was a widower : Wm. Harris and the testator's daughter, Eliza- beth, who are named in the will, were married on the 28th of April, 1762; John, the grandson, mentioned in the will, was the illegitimate son of the said Elizabeth by the said Wm. Harris, and died in April, 1763, aged about two or three years ; Wm. Harris, the lessor of the plaintiff, is the son and heir of the said Elizabeth and Wm. Harris, her
MICHAELMAS TERM, X GEO. IV. 25
laid husband, and was born in January, 1766; Wm. Harris, 1829. the husband, died in the month of November, 1770, leaving bis said wife and his said son, Wm, Harris, the lessor of the plaintiff, him surviving. On the 27th of December, 1772, the said Elizabeth, the widow and relict of the first- named Wm. Harris, intermarried with one Samuel Author^ nies. In Hilary term. Id Geo. 3, the said Elizabeth and Samuel Anthomies (her second husband) duly levied a fine with proclamations of the premises, in which fine one Ro- bert Jones was plaintiff, and the said Elizabeth and Samuel Anthornies and one James Payne were defendants ; Robert Jones afterwards conveyed the premises to one Child, from whom, by divers mesne assignments, they came into the possession of the Earl of Coventry, whose tenants the de- fendants in ejectment are. Elizabeth Anthomies died a widow in May, ]819, leaving Wm, Harris, the lessor of the plaintiff, and her then only child, her surviving. The lessor of the plaintiff made an actual entry upon the premises within five years next after the death of Elizabeth Jnthor^ mes and before the day of the demise laid in the declaration, for the purpose of avoiding the fine^ and also commenced this ejectment within one year after the making of such entry, and duly prosecuted the same.
The questions for the opinion of the Court are, Ist. What estate in the premises the said Elizabeth took under the devise; and, 2dly, Whether the title of the lessor of the plaintiff was or was not bound by the fine.
This case was first argued at the sittings after last Easter term, by Busby for the plaintiff and Shutt for the defendants.
A second argument was directed upon the question whe- ther an executory devise might be converted into a contin- gent remainder by an event happening after the death of the devisor, viz. by the death of John, his grandson.
The case was argued upon this point by
^aiby, for the plaintiff. The question is, whether the
CASES IN THE KINGS BENCH,
fee being displaced by the death of JohUf the estate of Wm. Harris, the grandson, became vested or contingent. No cases have been found directly id point. John was in existence at the time of the death of the testator, which distinguishes the present case from Loddington V, Kime (a). If John took a vested remainder, the limitation over could only be by way of executory devise. If there be a devise to A., with a vested remainder in fee after his death to £., a further estate to C. must be by way of executory devise by implication; there is no case to shew that the executory devise could be converted into a remainder by the death of the intermediate party. Dot v. Selby (6). In giving judgment in that case, Bayletff J. put the very case now before the Court. Gullivers.Wickett [c). ^Parke, J. He cannot have any vested estate if the child were living at the time of the death of tenant for life, the estate would be vested until the death of the tenant for life, it would be contingent. Bayley, J* No doubt, Johtt took a vested fee defeasible ; the question is as to the estate which William took. Lord I'enierden, C. J. No doubt, John took a vested remainder in fee.] If John took a vested remainder, the subsequent devise cannot be altered by his death. [Bayley^ J. If the previous fee is destroyed does the limitation over continue an executory devise?] It is submitted that it does, Gulliver v. Wickett. [Bayley, J. It was not held there to be an executory devise; Lee, C. J. says, ** The devise to Kaiherine for life, with remainder to such child as my wife is enceinte with in fee, is a good con- tingent remainder to a supposed child in ventre sa mere ; and if there had been no devise to the wife for life, the devise to the child in ventre sa mere would have been a good executory devise." There I think he was wrong. It was a limitation to a child defeasible (ci).] Here there is no child, even in embryo. [Lord Tenterden, C. J. No one can doubt that John took a vested remainder.]
{a) 1 Salk. 284, 228. (c) 1 Wils. 105.
(ft)4D.&R.608;2B.&C.926. (<0 8D.&R.718;5B.&C.86a.
MICHA£L>{AS T£RM^ X GKO. IV.
Shutt, contri. That which was originally an executory devise may become a remainder by an event occurring after the death of the testator ; the next question is, whether it b 80 in this case. There are many cases to sheWi that by the removal of the intermediate devisee, that which was at first an executory devise may become a remainder. Ste-^ fkem V. Stephens (a). It was remarked by Mr. Fearne {b) that in Hopkins v. Hopkins (c) it was held that the execu- tory devise having once vested^ the subsequent limitations thereupon became remainders* Brownsword v. EdiDardsid), Doed. Fonnereau v. Fonnereau(e). Then the only point is whether it became a contingent remainder; for this purpose it will be sufficient to refer to Doe v« Scudamore (/)•
Busby, in reply« In the cases cited from Lord Talbot, at the time of the testator's death, the first devisee died, and the devise lapsed ; in Brownsword v. Edwards the limi- tation was to take effect at twenty-one. The estate of Wm. Harris, the grandson, must depend upon the estate which John, the prior devisee, took. On the death of John, Wil-- liam, the grandson^ may be considered a3 taking a defeasi- ble fee.
Cfif. adv0 vult,
Baylet, J., now delivered the judgment of the Court. After stating the facts of the case, his Lordship proceeded thus: — This case depends upon the effect of the fine with proclamations levied by the testator's daughter and her second husband. When that fine was levied, the only parts of the will capable of operating were the devise to the testator's daughter, Elizabeth, for life, and the devise over, that in case she should have no other child living at her death, she should give and devise the premises to such person or persons as she should think proper. The ques-
(•) Cas. temp. Talbot, 298. (d) 2 Vez. sen. 243.
(A) Feame, C. R. 526. (e) Dougl. 470.
(c) Cbs. temp. Talb. 44 ; 1 Atk. (/) 2 B. & P. 294. 579.
CASES IN THE KINGS BENCH,
tion whether the title of the lessor of the plaintiff is barred by the fine, depends upon the quality and character of the power given to his mother, Elizabeth, to give and devise the premises in case she should have no other child living at her death. It is a maxim of law, that no limitation shall be considered as an executory devise which may take effect as a remainder, the law favouring the alienation of property. Here, at the death of the testator, the limita- tion could enure only as an executory devise, by reason of the previous disposition of the whole fee. Upon the death of John this reason ceased, and the premises stood limited to Elizabeth for life, remainder to her husband, Wm. Harris, with the power to her to give and devise the fee if she should have no other children at her death. Upon the death of John, therefore, the character and quality of this limitation changed, and it became a contingent remainder, conformably to the principle upon which executory devises are allowed, namely, that of giving effect to the intention of the testator. In Stephens v. Stephens the limitations over must have been executory devises until the estate vested in the devisee in tail, when those subsequent limitations took effect as vested remainders. In Hopkins v. Hopkins, limi- tations, considered as executory devises, became contingent remainders upon the birth of the intended first taker. If an executory devise shall become a contingent remainder after the death of the testator by the birth of a person capable of taking, the same change must take place by the death of a person whose interest alone caused the limitation to be considered as an executory devise. A limitation in a will which could at first have operated only by way of executory devise may, by a change of circumstances in the lifetime of the testator, operate so as to give a vested estate in possession, or a vested remainder, or a contingent re- mainder, as is laid down distinctly by Mr. Preston in his book upon Abstracts, vol. ii. page 154, and a change of circumstances after the testator*s death may make a parti-
MICHAELMAS T£RM> X GEO. IV.
colar limitation operate at first as a remainder, and after- wards as an executory devise, or i converso. So in Fearue (a) it is shewn, that where a limitation which causes subsequent limitations to operate by way of executory devise is removed, such subsequent limitations will operate in the same manner as they would have done had such prior limi- tations never existed. In Gulliver v. Wickett there was a devise for life, with a contingent remainder in fee and an executory devise over, and it was held, that upon failure of the contingent remainder in fee the ultimate limitation took effect as an ordinary remainder upon the determination of the life estate. Browtisword v. Edwards is to the same effect. Upon these authorities we think it clear that a change of circumstances after the death of the testator, may convert into a remainder that which at the death of the testator could have taken effect only by the way of execu- tory devise ; if this be so, this case is clear ; at the time the fine was levied the only vested estate was in Elizabeth, and the only other interest was a contingent remainder to such child or children as she should leave at her death, which remainder was destroyed by the fine.
Postea to the defendant. (a) Fearne, Coot. Rem. 6th ed. 626.
Don LAN r. Brett, Clerk.
1 HIS was an action for goods sold and delivered, money a plaintiff ar-
lent, &c., in which the defendant was held to bail for the !^*""8 ^^^ »
latter sum
sum of 575/. At the trial before Lord Tenterden, C. J., at than is legally Westminster, at the adjourned sittings after Trinity term, ^"Sourma. the plaintiff obtained a verdict for 82/. 9$. 6d. only. In the lice, is liable particulars of the p1aintiff''s demand he claimed a sum of fen^t's coms 400/, as money due from the defendant to the plaintiff, as ""^®'' ^ ^^^' per memorandum beanng date 22d of August, 1828. The
30 CASES IN THE KING's BENCH,
^99. ^ defendant obtained a rule, calling upon the plaintiff to shew cause why he should not pay the defendant's costs of the action. In the plaintiff's affidavit in answer to the rule it was stated, that this 400/. was the balance remaining unpaid of the purchase money for the next presentation to a living, which the defendant had repeatedly promised to pay, and that he was indebted in other sums amounting to 90/., for which the plaintiff held receipts signed by the defendant, but not stamped, and therefore not admissible in evidence.
Piatt now shewed cause. The facts diselosed by the affidavits sufficiently negatived malice. In Silversides v. Bowleg {a) it was held, that to entitle the defendant to his costs under this statute it must be shewn that the arrest was vexatious and malicious.
Hutchinson, contr^, was stopped by the Court.
Bayley, J. — This rule must be made absolute. There was no ground for the arrest.
Parke, J. — As this point has been held both ways, the best course will be to refer to the act, the words of which are, " without reasonable or probable cause," not using the words *' malice" or " maliciously.** If, therefore, without reference to the question of malice, the arrest was without reasonable or probable cause, the defendant is entitled to his costs; and inasmuch as the 400/. was not due on a valid contract, the arrest, quoad that sum^ was unfounded.
Rule absolute (6).
(d) 1 J. B. Mooi-e, 99. roll to evidence the defendant's
(fi) See the next case. right to the costs allowed b^ the
For the forui of the suggestion rule, see Tidd's Appendix, 4th
to be entered on the judgment edit. 396, 6th edit. 394.
MICHAELMAS TERM, X GEO. IV.
Day v. Picton.
The defendant, on the l6th of April, 1829, purchased of Where a de- the plaintiff 70 dozens of port wine, to be paid for one half rested without
in cash on the delivery of the wine, and the other half by a reasonable or
•^ , probable
bill of exchange payable four months after such delivery, cause, and the
The cash was paid, but no bill was drawn by the plaintiff ve^"iesg7han on the defendant for the other half. On the @3d of April the sum sworn the defendant purchased of the plaintiff 37 dozens of pale to'costs* under sherry at 3fis., and 33 dozens of brown sherry at 37*., to be *3 Geo. 3^ paid for one half in cash on delivery, and one half in a bill no malice be at four months from the 1st of May. The defendant having ^^^^^ W- made default in the payment of 64/., being the stipulated cash payment on the sherry wine, and the plaintiff having ascertained that the defendant was offering the wine for sale at 265. per dozen, arrested him for 193/., being the amount of the cash payment then due, together with the sums for which the bills of exchange were to have beeq drawn and accepted. At the trial the plaintiff obtained a ▼erdict only for the 64/. due in cash at the time of the action Irrought. A rule having been obtained calling upon the plaintiff to shew cause why the defendant should not be allowed his costs in this cause to be taxed by the master, pursuant to the statute of the 43d year of his late majesty King Geo. 3, c. 46, and ordering that in the mean time pro- ceedings should be stayed,
Gnmey and White now shewed cause. In Edgington v. Hood{b) the defendant was arrested for 60/., and the plain- tiff recovered 22/. only; but as there was no vexation, and the plaintiff conceived that he had a good cause of action for the whole amount, the Court discharged the rule. Here, the plaintiff acted bon& fidef he stated that he
(«) See the last case. the question as to his right to re-
(fi) S Chit. Rep. 147. In that cover the whole 60/., and inclined
case the Court were of opinion to think that he ought to have had
that the plaintiff had fairly raised a verdict for that sum.
32
1829.
CASES IN THE KINO's BENCH,
thought he had a right to arrest defendant for 129/.# and said he had reason to believe that unless he resorted to this measure the whole debt would be lost. There is, there- fore, no ground for imputing malice to the plaintiff, but both malice and the absence of probable cause must concur to entitle a defendant to the remedy provided by this sta- tute, which is merely a summary mode of giving the party the benefit of an action for malicious arrest.
Scarlett, A.G., and Paynct contri, were stopped by the Court.
Bayley, J. (a). — I think this rule must be made abso- lute. I take the rule to be, that where there is a reason- able and probable cause an arrest may be made ; otherwise not Now here every lawyer must have known» that at the time that the defendant was arrested for the 193A the plaintiff had no right to hold him to bail for that sum.
LiTTLEDALE, J. — The plaintiff may have felt, that ia justice and equity the money was fairly due to him, but in law it clearly was not.
Parke, J. concurred.
Rule absolute, (o) Lord Tenierden, C.J. was absent through indisposition.
The King v. The Inhabitants of Willoughby-with- Sloothby.
An estate in UPON an appeal against an order of two justices^ Sough vested, whereby William Stokes, his wife and children, were re- will not confer moved from Huttoft to Willoughby-with-Sioothby, in the parts of Lindsey, in the county of Lincoln, the Court of quarter sessions confirmed the order, subject to the opinion of this Court upon the following case : —
MICHAELMAS T£RM« X GEO. IV. The pauper being settled m Willougliby^with^SIoothby, Join Neal, by indentures of lease and release of the IQth ThTKiNG and 20th of March, 1825, in consideration of 105/., con- v.
ley ed a parcel of land and two unfinished dwelling-houses, aituate in Huttoft, to the use of Elizabeth Stokes for life or widowhood, remainder to the use of the pauper in fee. The 105/. was money which had been bequeathed by the father of the pauper to him absolutely, the interest of which the pauper had subsequently by his deed, in consi* deration of natural love and affection and lOs., settled upon bis mother for life or widowhood, the principal, after her death, to be paid to himself. A further sum of 50/. was expended by the pauper, after the execution of the convey* ance, in finishing the dwelling-houses, which sum had been bequeathed by the pauper's father to trustees in trust to pay the interest to the widow during her life or widow- hood, and the principal, after her decease or marriage, to the pauper. The pauper paid the interest of the 105/. to the trustees, and the trustees paid it over to the mother. The pauper entered upon one of the houses and part of the land at the time of the execution of the conveyance. The mother let the other house and the remainder of the land for the space of one year after the execution of the convey- ance, at the expiration of which year the mother told the pauper she would deliver up all the premises to him, and that he might do as he liked with them. The pauper then entered into possession of the other house and land, and let it, and received the rent himself and never accounted for it to his mother, and continued to occupy the same house he had previously occupied until 1828, when both were sold, aod were conveyed by a deed, to which his mother, who remained a widow, was a party. The pauper received the whole purchase-money, and did not account for it to his mother. They both joined in the receipt to the purchaser.
Aldenon, in support of the order of sessions. Unless ^ pauper had an immediate interest he had no right of
VOL. V. D
34 €AS£S IN THE KING's BENCH^
1829. residence. In Rex v. Eatington (a), where A*, residing -Jj^*^^***^ upon a cottage of his own, conveyed it by lease and release 11. to B., with a proviso that A. should live in and occupy the
WiLLouoHBY. ^.^j^3gg duriug his life, it was held, that inasmuch as the proviso reserved to A. a life estate, B. took only a remainder, which conferred no settlement by residence on the estate. It is immaterial for the present purpose to inquire whether the Court were right in putting that construction upon the proviso. The settlement was disallowed on the ground that the pauper took no immediate interest. The same principle was acted upon in Rex v. Ringstead (6). The operation of the will was inquired into for the purpose of ascertaining whether an immediate interest passed. Theu this is a purchase; but it does not appear that the pauper has any interest to the amount of 30/. It is impossible to determine the value upon the case as it is now stated.
N. R. Clarke, on the same side, referred to the cases of Rex v. Staplegrove (c) and Rex v. Hoiightou-leSpring (d).
Fi/nes Clinton, contri. Rex v. Eatington was decided upon another point. It was there assumed to be necessary that the party claiming a settlement by estate should have a right of possession. In Rex v. Slaplegrove, which was decided afterwards, it was held that it was not necessary that the party should have a right of possession at the time of the residence, but that he gained the settlement being entitled to the reversion only. [Parke, J. In that case there were strong grounds to believe that the demise for a thousand years was a mortgage term.] So here, the mother lets the pauper into possession. In Rex v. Houghtothle-Spring possession was held not to be necessary. The distinction is, that if he is in possession as mortgagor, he is in posses^ sion by leave and licence of the mortgagee. [Bayletf, J. In Rex V. Houghton-le-Spring the pauper had a present
(a) 4 T. R. irr. (c) 2 B. & A. 527.
(6) Anle, iv. 67; 9 B. & C. 318. {d) 1 East, 247.
MICHAELMAS T£RM» X GEO. IV. 35
estate of freehold, not what the law calls a reversion.] In ^829. fier V. Rmgstead the point was not fully considered.
V.
Whiiekursi, on the same side. In Iter v. Houghton^e- Willouohby. Sifmg, Lord Kenyan says, ** it seemed to nie to be a most atraordinary {uroposition .to establish that a man might be removed from a parish in which he had property, perhaps, to a considerable amount, but whether more or less in such a case is unimportant, because he has let it out, and that if be afterwards came there again he was liable to be treated as a vagrant. A man, though not in the actual occupation of bis own estate, may have many reasons for wishing to live in the neighbourhood of it. He is entitled to the pri- vilege of superintending it, but, according to the doctrine cootended for, he may be sent to another part of the king* dom, if his settlement happened to be there."
Bay LEY, J.-^A man who has a remainder only has no right to superintend. An estate in remainder expectant upon a prior estate of freehold, is not sufficient to confer a setdement. The party has no means of subsistence out of the actual profits or the rents. Rex v. Houghion^le-SpriHg only shews that if a party has a vested estate of freehold he need net actually occupy. There is a plain line of dis- tinction between this case and those which have been men- tioned. The Court cannot look at the quantum of rent^ but simply at the immediate estate of freehold. Here the son never had the present estate of freehold.
LiTTLEDALE, J., coucurred.
Parke, J. — This point was expressly decided, after a ▼ery long argument, in Rex v. Ringstead.
JLord Tenter DEN, C.J. — I concur in the opinion that ui estate in remainder is not sufficient.
Order of Sessions confirmed. d2
CASES IN THE KlNG^S BENCH,
The King t;. Mainwaring.
The exemption X HE defendant was convicted before a single magistrate c!4i,s.9S,(the ^^^ ^^^ P^('^ ^f Lindsey, in the county of Lincoln, under
Hawkers' and the Statute 50 Geo. 3, c. 41, of the offence of exposing
Pedlars Act,) . . . .
in favour of goods to sale without having obtained a licence. On
the real worker appeal, the sessions confirmed the conviction, subject to
ffoods, &c., or the opinion of this Court upon the following case: —
apprenft Zochariah Boyle, on or before the 21st of October, 18«8,
and known was and still is a large china and earthenware manufacturer
w^ usuaUy' ^^ Hanley, in Staffordshire. Before the said £ 1st of Octo«
residing with ^er he consigned to Gainsborough, a market town, to his
Dim, does not . .
eitend to an own order, a quantity of china and earthenware, of which
agent or ser- ^j^^ several articles mentioned in the conviction formed a
▼ant residing
in a separate part. The said china and earthenware were conveyed by a
hou8e'"Sough carrier's boat from Hanley to Gainsborough, and the said
solely em- Zochariah Boyle was the real worker and maker of all of
nloved bv
such woilLer ^^ ^^^ ^^ ^^^ manufactured by him at Hanley aforesaid.
or maker. William Mainwaringf the defendant, was, on or before the
said 21st of October, and still is, a servant in the sole employ of the said Zochariah Boyle ; he resided with his wife and family at Hanley, in a separate dwelling-house, his own freehold, being within three hundred yards of the house and manufactory of the said Zachariah Boyle, and never left that place except when employed elsewhere by bis master. When at Hanley he superintended and assisted in manufacturing, and was employed by the said Zacha- riah Boyle to sell the before-mentioned china and earthen- ware at Gainsborough. His salary was a fixed yearly sum, and did not depend upon the amount of any sale which he might effect; nor did he receive any commission or benefit, nor was he liable to any charges or loss whatever which might arise or be incurred in the sale, conveyance, or otherwise, of the said china and earthenware, but ren- dered a regular account of the same to his master, who bore all losses and expenses, and received all the proceeds
MICHAELMAS TERM, X GEO. IV. 37
ind profits. The defendant took possession of the china 1829.
and earthenware so consigned as aforesaid, and upon its ^^•'^'^'"^
arrival at Gainsborough took a room at an inn there, and 9.
00 the day mentioned in the conviction sold part thereof by Maikwarikc.
public auction* The defendant had no hawker's licence,
and had previously been selling at Nottingham and other
places.
N. R. C/ar&e and Fynes Clinton, in support of the convic- tion. The case depends principally on the construction of the 23d section of 50 Geo* 3, c. 41, by which it is enacted, " that nothing therein contained shall extend to prohibit any person or persons from selling any printed papers licensed by authority^ or any fish, fruit, or victuals, nor to hinder the real worker or workers, or maker or makers of any goods, wares, or manufactures of Great Britain, or his, her, or their children, apprentices, or known agents or servants, uMuaUy residing with such real workers or makers only, fi-om carrying abroad or exposing to sale and selling by retail or otherwise any of the said goods, wares, or manufactures of his, her, or their own making, in any mart, market, or fair, and in every city, borough, town corporate, and market town." The case of The King v. Turner (a) shews that an agent is within the act. The question for the consideration of the Court is, whether a person who resides in his own house, but whose principal employment is in the house of his master, can be said to be a servant or agent residing in his master's house. By requiring that the servant shall reside under his master's roof, the object of the statute will have been much better secured. If a person who forms no part of his master's family, may be sent about the country to sell goods in this manner, a great manufacturer may employ hondreds of agents in disposing of his goods in this manner, to the no small injury of the resident tradesmen, by whom the parochial and other local burdens are borne. From
(o) 4B.&A. 510.
CASES IN THE KING's BENCH,
these the itinerant vendor is exempted, and it is no great hardship that he should be subjected to the payment of the sum of 41. lOs. per annum. The maker or misuinfacturer Mainwarino. |,in,ggif jg exempted ; so are his servanto in some cases. But the question is, whether the additional words ** usually residing with such real workers or makers only/' are to have any weight.
Denman, Hildyard, and fVhitehurst, contri. The Court will pause before they act upon any supposed advantage to firise from extending the restriction. The exemption ought to have a liberal consti'uction. If the act had contained no specific exemption for servants, it might have been con- tended that they were within th^ same protection with their masters. According to all fair construction the defendant was a servant usually residing with the maker. The word " only" shews that the meaning of the legislature was, that the agent should not be a person residing with any other parties as his employers. The act imposes a penalty, and restrains the common law right of trading wherever the party finds it to his advantage to trade. The object of the act being to restrain dealers from going from town to town, the words *' usually residing with such workers or maikers" must be understood with reference to that object, and are satisfied if the servant resides in the same town with his master. It is not necessary that he should reside in the same house. In 52 Geo. 3, c. 108, it is not required that the person vending the goods shall reside with the owner. The object of the statute was to confine the exemption to persons who were regularly and bon^ fide in the service of the manufacturer, and to exclude those who were merely constituted servants or agents for the special purpose. Residing in a place, does not necessarily mean sleeping there. In 2 Inst. 122, Lord Cofte says, '* If a man hath a house within two leets he shall be taken to be conversant where his bed is, for in that part of the house he is fnost conversant, and here conversant shall be taken for most coh^
MICHAELMAS TERM, X GEO. IV* 39
vmafU" Lord Coke, therefore, impliedly says that a man I8i!9.
may be a resiant within two distinct leeta. So the word ^^^T^X^ . . . The KtMO
" inhabitant*' is not always used with reference to the place v,
at whicb the party sleeps, as in cases upon the Statute of Mainwariko. Bridges* The conviction also cannot be supported. [Lord Tenterden, C.J. The case is not before us for that purpose.] This Court has a general authority over the proceedings in inferior jurisdictions where the certiorari is not taken away. [Lord Tenterden, C.J. We must decide merely upon the point which the Court of quarter sessions have reserved for our decision. If the Court of quarter sessions had thought proper to put a question as to the form of the con- viction, we should have been authorised to answer it.] It may be contended that even if no case had been reserved by the quarter sessions for the opinion of this Court, the mere circumstance of having appealed took the case out of the prohibition. But if the Court are to look only at the terms of the special case, that itself contains no statement that the defendant had not obtained a licence. [Lord Tenterden, C.J. The Court of quarter sessions very properly state so much of the case only as is necessary to raise the point upon which they require our opinion.]
Lord Tenterden, C.J.9 after stating the language of the 23d section/ proceeded thus : — ^The words of an instni- ment are to be under^stood according to the subject-matter. Here they are explained by the context. The statute speaks of children and apprentices before it mentions the resident servants and agents. 1 think, therefore, that it means members of the manufacturer's family. If the construction which has been contended for were to prevail, a manufac- turer in London might employ as many agents as he pleased, provided those agents lived on the eastern side of Temple Bar.
Bavley, J. — ^The defendant had no right of appeal uakss it be given by statute. The same clause which gives
CASES IN THE KINGS BENCH,
the appeal takes away the certiorari. The meaning of the legislature must, therefore, be taken to be, that we are to consider the case only with reference to the specific point Mainwariko. ^^^^j j.^^ ^jj^ opinion of the Court A point has been raised as to the 52 Geo. 3, c. 108, in which act children and servants are omitted. I entirely agree with Lord Tmterden,
LiTTLEDALE, J. — I am of the same opinion. The word resident refers to the place where the party sleeps; that is so in all cases of settlement law. The position cited from Lord Coke, instead of assisting the defendant, seems to be rather the other way. In a late case (a) of an indictment against a party for not taking upon himself the office of constable. Lord Tenterden says, ** For all the purposes of pecuniary charge such an occupier is an inhabitant; and therefore he is liable to church rates, to the repairs of high- ways, and to the repairs of bridges."
Parke, J. — ^The only question for the Court is, whether
the defendant falls within the description of servant usually
residing with the real worker or maker. Taking these
words in the sense in which they are commonly used, they
mean a person who inhabits and sleeps in his master's
house; and this construction is strengthened by the pre*
ceding words.
Order of Sessions confirmed.
(a) Rex V. Adlard^ 7 D. & R. 340, 349; 4 B. & C. 779.
The Kino v. the Inhabitants of Roxley.
vearfv^hinne* XJPON an appeal against an order of two justices, where- from the 13th by Robert Farmen/, his wife and family, were removed following i*2th fr<^*^ Roxley to Winterton, in the parts of Lindsey, in the °f ^^fr""" ^^"°*y ®f Lincoln, the sessions quashed the order subject the service b^ to the opinion of this Court upon the following case : — a dissolution
of the contract, no settlement is gained, although the service continue 365 dajs, by reason of its being leap-year.
What shall be a dissolution of the contract, and what merely a dispensation with the service, is a question of fact for the Court of quarter sessions.
llICHA£LAlAS TERM, X GEO. IV. 4]
The pauper being unmarriedy and without children, was 1829. hired before old May day, 1819« (Idth May,) to serve James Barrett, in the appellant parish, from this old May day to old May day, 1820, as a servant in husbandry, at \5L wages. The pauper served Barrett in the appellant parish until the 11th of May, 1820, when wishing to visit his friends (fifteen miles distant) and to attend some sta- tutes (o) on the 12th of May on the way there, and avoid returning back to his master's, he requested his master's per* mission to go for altogether, and they settled the pauperV wages, and part was deducted for the time he had to serve* The pauper slept at his master's house, m ith his permis- sion, on the evening of the 1 1th of May, and finally left hi& master's on the 12th (6).
N. R. Clarke, in support of the order of sessions. A day was wanting to complete the year of service. No settlement therefore waai gained in Winterton, Whether the deficient day was caused by a dissolution of the con- tract or by a dispensation with the service was a question of fact, for the determination of which the Court of quarter sessions was the proper tribunal. That Court has de- cided, and there were abundant premises to warrant the conclusion to which they have come. If the inference was left to be drawn by the Court above, it was clearly a dis- solution and not a dispensation. There is a concurrence of authorities to shew that this was a dissolution. The true criterion is to consider whether the master could still insist upon the service. This is laid down as the test by Lord Ellenborough in Rex v. Rushall (c). [Bayley, J. Rex V. Hardhom with Newton {d) proceeds upon the same distmction.]
Fifnes Clinton, on the same side, was stopped by the Court.
(a) Fairs for the hiring of ser- (6) 1820 was leap year,
^wits; io some coanties called (c) 7 East, 471; 3 Smith, 45S.
"Mops.* (rf) 12 East, 51.
The Kino
42 CASES IN TITE RINO's BBNCH,
1829. Patteson, contrii. There was a good service for a year,
and there was a good hiring for a year. [Lord Tetiierden, V, ^ C. J. referred to Rex v. Uherstoneia).] There it was held RoxLEr. ^^^ service for 365 days was enough, although the hiring was from Whitsuntide to Whitsuntide, and the servant was discharged before the second Whitsuntide, which shews that a service for a year of that extent is sufficient. In Rex V. Ackley(Jb\ a service of 365 days, extending over a leap year, was held not to confer a settlement; but there the hiring was clearly insufficient, being from three days after Michaelmas until Michaelmas following, in leap year. The Court, however, seemed to think the service good. IBayley, J. If not a good year as to the hiring, it would not be a good year as to the service. If the servant went ^ . into the service on the 1 st of March^ and left the service \ on the 29th of February, it would not be sufficient.] No dissolution of the contract is actually found. The pauper bad a right in the morning of the 12th of May to go to the statute. [Lord Tenterden, C. J. He ceased to be a servant on the 11th.] In The King v. Potter Heigham (c) it was held that absence by consent of the master for one day be* fore the end of the year would not defeat a settlement by hiring and service. ^Parke, J. What did the sessions find in that case?] The sessions found nothing specifically on the question of dissolution or dispensation. [Lord 7Vfit- terderif C. J. Here the sessions only submit to this Court whether they lawfully may determine as they have done.]
Whitehurst, on the same side. This was not a dissolu- tion of the contract at the time the master and servant se- parated. In The King v. Potter Heigham, though nothing was said as to the finding a dissolution or a dispensation^ the judgment of the Court of quarter sessions implied that the contract had been dissolved. Here, if the case be understood to amount to a dissolution, to take effect from
(a) 7 T.R. 564, (c) Burr. S. C. 090; 2 BoU,
(6)ST.R. 350. 316.
liilCHAELMAS TERM, X GEO. IV. 43
the 12th of May, a settlement would be completely ^^^^- acqtiired. It was not the object of the pauper to quit on j^^ j^^^^ the ilth of May, but on the 12th. He merely wished to v.
visit his friends after the statute, instead of going back again. [Sayley^ J. It is stated that the pauper slept at bis master's house by his permission. No permission would have been necessary if the contract had not been dissolved.] The permission was introduced into the case for tlie purpose of shewing that the pauper did not sleep at his master's house surreptitiously. The master might employ him on the 12th before he went to the statute. \Parkef J. Where a bill of exchange is made payable at so many months after date, the calculation is made by calendar months, without reference to their length.] In the case of lapse the half year is computed as half S65 days, without regard to calendar months.
Lord Tenterden, C. J. — Whether that which took place between these parties amounted to a dissolution of the contract, or merely as a dispensation with the service, it was peculiarly proper for the Court of quarter sessions to decide. They have considered that what passed amounted to a dissolution. They have acted upon that view of the case in the order which has been made, and we could not interfere even if we thought the conclusion at which they had arrived to be erroneous. When a leap year occurs, a year must be understood to mean 366 days.
Bay LEY, J. — ^The statute 24 Geo. 1, c. 23, s. 2, speaks of bissextile, or leap year, consisting of 366 days (a).
The other judges concurred.
Order of Sessions confirmed.
(a) There appears to be no more short of a complete revolation of rattoo for designating as a year a the earth in its orbit, than a period period of 365 days, which falls of d(>6 days, which exceeds it.
44 CASES IN XU£ king's B£NCH»
TiNMouTH v. Taylor.
A plaintiff XHE plaintiff having been taken in execution for 34/., the
in execu- * . i . . • i •
tinn for costs costs of a nonsuit, and having remained m execution
£*^*^U not ^^^^^ a y®^*'* Archholdj early in this term, obtained a rule
entitled to his calling upon the defendant to shew cause why the plaintiff
der^48^eo"3 ^^^^"'^ °^^ ^^ discharged out of custody. The application
c. 123, after was founded upon 48 Geo. 3, c. 123, which enacts, " that
having lain in ., . . . , ....
prison twelve ^" persons m execution upon any judgment obtained lu any
months. Court, &c. for any debt or damages not exceeding 20/., ex-
the statute elusive of the costs recovered by such judgment, and who does not ap
to la'intifi^ ^^^^ ^^^^ '*^" ^" prison thereupon for the space of twelve any case. successive calendar mouths next before the time of their
application to be discharged, may, upon application for that purpose, in the manner therein mentioned, be forthwith discharged out of custody as to such execution by the rule or order of such Court."
Coltman shewed cause. The title, the preamblci and the provisions of the statute distinctly point to defendants and not to plaintiffs. It is true that in Roylance v. Hewling{a), it was held that a plaintiff was entitled to his discharge under this statute. But supposing that case to have been rightly decided, it proceeded on the ground that the costs were a judgment-debt. Here then the debt exceeds 20/. He also cited Rex v. Hubbard{b\ and Rex v. Dunne (c).
Archboldf control. After the case of Roylance v. HeW' ling, it cannot be contended that plaintiffs are not within the purview of the act. It is clear, from the language of the statute, that the party should not be detained in cus^ tody for the costs, whatever the amount might be, provided there were no debt or damages exceeding 20/., exclusive of costs.
(a) 3 M. & S. 289. (6) 10 East, 408. (c) 2 M. & S. 801.
MICHAELMAS TERM, X GEO. IV.
Batlby, J. — The langaage of the act, primft facie, ap- plies to defendants only, and none of its provisions seem to liave the least, reference to plaintiffs. Supposing Roy lance T. Hewling to have been correctly decided, the costs ^ould Jliave become a debt by the judgment exceeding 20/.
L1TTI.EDALE J. — ^The words of the statute manifestly apply to defendants. But assuming that plaintiffs may be included, the costs here would constitute a debt by judg- ment exceeding 20L
Paeke J., concurred.
46
1829. Tin MOUTH
V.
Taylor.
Rule discharged.
Gainsford v. Marshall.
The defendant, a prisoner in execution, obtained a rule caDjog upon the plaintiff to shew cause why he should not be discharged out of custody for non-payment of the allow- ance of 5j. 6d» per week, under the Lords' Act (a). This rule was obtained, upon an affidavit stating that the turnkey had received for the defendant a half crown and a shilling from a person sent by the plaintiff, and that upon its being delivered to the defendant he discovered it to be a bad one, and retuaiied it to the turnkey. The affidavit in answer stated that the plaintiff's son tried the shilling before he sent it, and that it was a good one, and that the person who carried it to the turnkey delivered the same shilling which he had received to the turnkey, who examined it, rung it, and said it would do.
The underta- king of the ex- ecution credi- tor to pay d<. 6d, per week to the debtor under the Lords' Act, is satisfied b; payment to turnkey,
the
Thesiger now shewed cause. The receipt by the turnkey was tantamount to a receipt of the money by the prisoner, Either V. Bull {b).
(a) 39Gfo.9,c.e8; S6 G^o. 3, c. 44 ; dSGeo.3,c.5; 39Gfo.3,c.50. {h) 5 TR. 37.
CASES IN THK KING S BENCH, ChiUy, coutii. The Court of Common Pleas, in a very GatnIford recent case, haa decided that the turnkey cannot bind the V- prisoner by the acceptance 'of bad moneyi Agutter v.
Wil8on.{a)
Bayley, J. — It is a settled rule in this Court that the turnkey is the person to receive the sixpences. If, as in the supposed case put by Mr. Chiity,. the plaintiflf's clerk had run away as soon a$ he had placed the money in the hands of the turnkey, or if the turnkey had promptly, after receiving the money, sent to say that it was bad, there would have been no acceptance by him. Here, on the contrary, ho complaint was made on that day that the money was bad.
LiTTLEDALE, J. — I am of the same opinion. For this purpose the turnkey is the agent of the prisoner, as it has been held in this Court; and it would be very inconvenient if it were held to be necessary that the party who brings the money should in all cases see the prisoner.
Parke, J. — I am of the same opinion. It is not satis- factorily made out that the money sent by the plaintiff was bad.
Rule discharged.
(fl) 7 Taunt. 7.
MICHAELMAS TERM, X GEO. IV. 47
T. M. Young v. T. Spenceb and C. Spencer. ^^^/^^
Case by reversioner. The first count stated that the Where, in an
defendanls, being possessed of a messuage in Stowell Street, re?ereioner^*
Newcastle, as teoants to . the plaintiff, without his licence against the te-
aod against his will, pulled down part of the wall and opened for opening a
a door into Stowell Street, whereby the said messuage was ^^J^ '° a walJ,
damaged and weakened, and the plaintiff was prejudiced in consent of the
bis reversionary interest therein. The declaration also con^ [herebfda"^
tained counts in which it was alleged that the plaintiff was maging the
owner of other houses in Stowell Street, which were injured j'udicing"the'^
by tfae opening of this door. Pleji, not guilty. At the plaintiff's re- . , ^ / tT , , , . . r , vereionary in-
tnal before i^ay/e^, J., at the spnng assizes for the town terest, the
and county of Newcastle, 1858, a verdict was, by the direc- ^^^^^ ^^^l^^
tioB of the learned Judge, entered for the plaintiff with and all actual
li. damage^, subject to the opinion of this Court upon the hous^fs d^is- ^
foUovring case : — proved, the
In March, 18^5, the defendants became tenants of the 'directed to in-
plaintiff of a house in Stowell Street, for a term of seveft V^^ whether
.the reversion- yeara. In lB27f the defendants, without the leave and con- ary interest of
trary to the wish of the plaintiff, opened a door from the }|^as ''or hil^not
house into Stowell Street, where the plaintiff had several been injured.
other houses near to that occupied by the defendants : and ^\^^ entered
evidence was given on both sides as to the effect thereby for the plaintiff
produced on the house in which the door was made, and ou; direction or
the plaintiff's other houses situate in the same street. The; inquiry, on the
"^ . ^ ground that the
learned Judge directed the jury at all events to find a ver- defendant had
diet for the plaintiff with nominal damages, on the gr<>wnd /JJ^j^j^^^jJ^'j^j^gj.^
that the defendants had no right to open the door; and also ation, was set
desired them to say whether any actual injury was thereby
done to the house occupied by the defendants, or to the
plaiatiff*s other houses in Stowell Street, in order that the
opbion of the Court might be taken as to the other point,
if they should find that no actual injury had been done.
The jury found that the defendants did pull down the wall
aad erect the door without the leave and against the wish of
the plaintiff, but Uiat the. house occupied by them was not
48 fcASES IN THE KING*S BENCH,
1830. thereby weakened or injured in any respect^ and that no injury was thereby occasioned to the plaintiff's other houses.
Inghamf for the plaintiff. All the rights of property remain in the landlord, except such as the landlord chuses to part with. In trees, the tenant has no interest, except as to the fruit and for repairs. If mines are mentioned in the lease, the lessee has a right to break the land in search of them. If mines are not mentioned, the lessee has only a right to work such mines as were open at the time of the demise. Here the door-way in question was not necessary, or even convenient. A tenant has no right to change the condition of the property, except so hr as it is necessary for the purpose of effectuating the object of the demise. In Doe d. Pickery v. Jackson, {a), a door-way broken through the wall of the demised premises, was held to be a continuing breach of the covenant to repair. The interest which the tenant takes was considered in Farrant v. Thompson (6), where it was held, that the landlord, who had demised mill machinery, might maintain trover against the sheriff, who had seized it under a ii. fisi. against the tenant. In that case Mr. Justice Bayley said, ** There the goods were parcel .of the inheritance, and let to the tenant, to be used during the term in a particular way, viz. in that particular place, and he, by his own act, put an end to that qualified posses- sion." In the case of waste, the materials belong to the person who has the estate of inheritance. Here the act of the defendant was wrongful. The next question is, whether the plaintiff is entitled to retain his verdict. In waste, if damage to a less amount than 40 pence be shewn, judgment is entered for the defendant; and it is said that an action on the case, in the nature of waste, cannot be supported under such circumstances. If the reversionary estate be prejudiced it is a present injury. There is a nia<» terial difference between an injury to the reversion and an injury to the property. The jury in this case have found (a) 8 Stark. N, P. C. S03. (b) 5 B. & A. 8«6; « D, & R. i.
MICHAELMAS T£RMy X GEO. IV.
that DO damage was done to the house^ but they have not found that no injury was done to the plaintiff's reversionary estate. In Cole v. Green (a), an action was held to be oiaintainable by reason of the alteration of the thing de* mised and of the evidence thereof. This is cited merely to shew what took place at the trial of the issue before Lord Hale, when it was resolved, that an act which affects the nature of the thing demised, or of the evidence thereofi is waste, notwithstanding any amelioration of the premiseSi* " If a lessee throws down a wall between a parlour and a cham- ber, whereby he makes the parlour larger, it is waste, because it cannot be intended for the benefit of the lessor ; nor is it in the power of the lessee to alter (a transposer) the house'' (&). Here the act done by the tenant amounts to a transposition of the house. Where a house is granted for a long lease, the throwing out of a door may alter the evidence and ren- der it difficult for the reversioner to identify his property. [Uitledale, J., Comyns's Digest (c), in citing the case from Rolkf says, '' if it can be shewn to be an advantage to the lessor, it may come from the other side"]. Where a com- moner has brought an action, it has been said, that if the action were not brought, the act complained of would be evidence of title. Where the evidence of title is affected, proof of actual damage is not necessary. In Serjt. Wilfianul's note to 1 Saunders, 346 b. it is said, that wherever an act iajores another's right, and would be evidence in future in bvour of the wrong-doer, an action may be maintained for the mvasion of the right, without proof of any specific injury ((/). If acts of this kind were continued during a long period, in the case of a long lease upon which no rent was
(a) 1 Lev. 311. of fishing was not only an infringe-
W 2 Rolle's Abr. 815, pi. 19. ineut of the plaintiff's right, but
(0 Com. Dig. Wait, D. 2. would, if overlooked, be evidence
(^Citing Patrick v. Greenwmff of right in the defendant; and re-
which was trespass for fishing in a ferring to WelU v. Watling, 2 W.
•ereralfisbery, without alleging that Black 1233; Hobwn v. Todd, 4
any fish had been caught. The T. 11. 71; Pindar v. Wadsaorlh,
Cooit of C. P. held, that the act 2 East, 154.
TOL. V. E
50
18S9.
YOCHO SPBSrC£B«
CASES IN THE KING S BENCH, reserved, the tenant might, at the expiration of the term, allege that he had done a series of acts which a mere lessee has no right to do. The heir of the reversioner might thus lose bis estate by acts ivhich a jury might consider as occa- sioning no actual damage.
Cresswellf contrd. Tliis is a case of great importance and extensive consequences. It would create great alarm if it should be decided that a tenant can make no alteration in the state of the demised premises without subjecting himself to an action. If it had been left to the jury, whether any actual injury had been sustained by the reversionary estate, they would have found that question in the negative, but the learned Judge refused to leave that point to them% Doe V. Jackson (a) is a very strong case, but it was not found there that no damage was done or that the wait was in repair. That was merely a nisi prius case, not afterwards moved. The action was founded on the contract to repair* It is not stated that it was properly fitted up with doors, of that the wall was repaired ; it is, therefore, difficult to say upon what ground the Court proceeded. In Farrant v« Thompson (fr), the defendant had detached part of the free* bold and had sold the materials. The plaintiff has treated this^ first, as a question of waste; secondly, he says, the present form of action is substituted for the writ of waste, which was first given by the statute of M arlbridge (c) ; but it was given against the tenant, and not against a mere wrong-doer. Lord Coke says, where land is on lease, and a stranger commits waste^ the landlord shall have waste against the tenant, and the tenant shall have trespass against him who did the waste (d). In the Year Book, 19M Hen. 6, 45 a (e), it is said (/) that if a man enter upon land let to a tenant at will and subverts the land, the tenant at will shall have trespass for the injury done to him, and the les<
(a) 3 Stark. N. P. C. 293; ante, 48.
(b) 5B.& A. 826; 2 D. & R. 1; ait/e, 48.
(c) 52flcn.3,c.24.
(d) 2 Inst. 146.
(c) M. 19 H, 6, fol. 45, pi. 94. (/) By Forletcue,
Spescer.
MICHAELMAS TERM, X GEO. IV. 51
tor shall have another acil<)ii of trespass for the destruction ^829.
df his land (o). In trespass for beating servant per quod, the Young
st&rvaAt niaj maintain an action without damage, the master
hot. Btdingjitld V. Onnltm (A)> is the first case in which an
action appears to have been brought by the reversioner. The
declaration stated that the plaintiff was seised in fee of a
dose, and that the defendant stopped a rivulet, which ran
between the plaintiff's close and the close of the defendant^
thereby the plaitatiff's close was drowned {mrrmnd), and
his tree$ perished. The defendant pleaded that one S. was
|>osse^sed of the plaintiff's close by virtue of a lease from
plaintiff's fihther, and that the defendant had paid to S.^ and
thiat S. had accepted, 20s. in satisfaction of the trespass.
Updk demtif rer it was held that this was no plea, and that the
plaintiff might sue in respect of the injury done to the
reversion. In Jtssor v. Gifbrd (c), it was held, that the
reversioner might sue, if the interest would be less valuable
if the plaintiff were to sell his reversion during the term,
although the injury might possibly be Remedied before the
expiration of the term. Here it is expressly found that the
wall was not weakened by the alteration made ; therefore, it
Would hot have b^eti less valuable upon a sale ; and unless
fist property be diminbhed in value this action is not main*
taibaUe, JtictcsoVi v. Pesked (d). In that case the evidence
tX the property was altered quite as much as here. In
Stmther v. Barr (e), the question imknediately before the
Court was as to the tenancy. But in delivering his judg-
neat, Bt^, C. J., sdy), '^ in order to support an action of
this nature there must be some actual damage." Ferguson
▼. Crttotffl (/). In William v. Norland (g), Littledale, J.,
»ji, " g^erally speaking there must be a temporal loss or
Aimsge^ accruing from the wrongful Act of another, to main-
(•) *" Qnbd conceditur per totam (e) .5 Bingh. 1 53; 2 M . & P. 207.
curiam;*M. 19 H. 6, fo. 45, pL 91. (/) 5 Bingh. 305; 2 M.& P. 524.
(*) 3 Lev. 209. (g) 4 D. & R. 583, 587; 2 B.
(c)4Borr. 2141. & C 910.
(lO 1 M. & S. 234.
£2
CASES IN THE KING*S BENCH,
tail! an action on the case." Here there is no injury to the right, nor could any adverse possession be founded upon the act complained of. [Bay ley, J. The plaintiflf's ac- quiescence in this act might possibly have weakened his evidence as to the right to the other door, which was originally the only door.] In Corny hs*s Dig. tit. fVast. D. 2, the cases are stated in which an action of waste may be maintained ; but no such imaginary injury as the present is there stated. In Green v. Cole there had been a total alteration of the demised premises ; and there it was said that if the alteration were an improvement it might be shewn on the other side. This proves that such an inquiry might be entered upon. Jn The Governors of Harrow School V. Alderton{a), it was held, that in an action of waste, the plaintiff is not entitled to judgment where the damages found are merely nominal ; upon the ^authority of which case it has also been held, that the plaintiff cannot have judgment in an action on the case in the nature of waste, where merely nominal damages are found. Rigg v. Parsons (6).
Ingham, in reply. The peculiar hardship attending the judgment in the action of waste has led to the rule, that unless the injury amount to 40 pence, the plaintiff shall not have judgment. Queen's College v. UalleU (c). In- jury to the title is sufficient without actual damage. If a series of acts of this nature were done and the title went into the market, it would be found to be less salable. If a tenant may open a door, he may shut up a door. [Hayley, J. In Slrother v. Barr{d) nothing was determined, except as to the point now before the Court. But it was said that the measure of damages would depend upon the length of the term.]
Cur. adxK vuli.
(fl) 2 B. & P. ST. (c) U East, 489.
(b) Cited in Pindar v. Wads- (d) 5 Bingh. 136; 2 M. & P.
worth, 1 Ensl, 164. 207 ; ante, 51.
MICHAELMAS TERM, X GEO. IV.
Lord Tbntbrden^ C. J., now delivered the judg- ment of the Court. After stating the facts of the case and the conflicting evidence, his Lordship proceeded thus: — We do not think that we can take upon ourselves affirmatively to say that there was an injury to the plaintiff's right, which would support an action. It might have been left to the jury to say whether there was or was not an injury to the right. Some of the old cases are not very reconcilable to our ideas of justice. One point, however, is intelligi- ble, namely, that if the evidence of the property be altered, the reversioner may maintain an action. We cannot take upon ourselves to say whether in the present case that is so or not. That is a question for the consideration of the jury. There must, therefore, be a new trial, unless the parties will consent to a stet processus.
Rule absolute.
53
1829.
Davis v. Capper, Esq. (a)
Trespass against the defendant, a magistrate of the county of Gloucester, for assaulting and imprisoning the plaintiff, and detaining her in prison fifteen days. Plea, not guilty; and issue thereon. At the trial before Gaselee,J. at the Gloucestershire Summer Assizes, 1828, the case was this : — Mary Davis, the plaintiff, had lodged in the house of one Ann Hamerton, at Cheltenham ; and on the 5th of January, 1828, she made a deposition that she had been robbed of various articles of property, and that some of them had been discovered in the possession of ^nn Hamerion. The parties appeared before a magistrate, but the charge against Ann Hamerton was at that time dis- missed. On the 27th of January Ann Hamerton sent for one Russellf the superintendent of police at Cheltenham, and informed him that she had been robbed while Maiy Davis
(«) See IXiiTtf T. Russell, 3 M. & P. 590; 3 M. Sc R. Mag. Cas. 296.
A warrant of commitment for re-exami- nation for an unreasonable time, as for fourteen da^s, is wholly void ; and trespass lies against the committing magistratei thouj^h he act- ed without any indirect or im- proper motive.
fi4
1899.
CASES IN THE KINGS BENCH,
lodged with her. She produced a letter addressed to the plaintiff at her, Ann Hamerton's, house, and bearing the London post-mark, stating that she had reason to believe the contents would lead to a discovery of the thief, whom she strongly suspected to be the plaintiff. Russell opened the letter, which was signed '^ Obadiah,*' and purported to be written by an accomplice in the robbery residing in London, who demanded payment of the plaintiff as the perpetrator of the robbery, and stated that he would wait a fortnight for her answer, jlnn Hamerion also informed Russell that four days after the robbery a letter in the same handwriting, and with the London post-mark, had been delivered to the plaintiff,, who refused to shew it ; and she concluded by requesting Russell to take the plaintiff into custody. Russell did accordingly apprehend the plaintiff late the same evening, detained her in prison that night, and on the following morning carried her before the de- fendant. The letter was tber^ produced and read, and Ann Hamerton deposed that during the time the plaintiff lodged with her she had lost various articles pf bed furniture and wearing apparel, and that she had reason to suspect, i^ad did suspect, that the plaintiff was concerned in the robbery. Upon this information the defendant committed the plain- tiff to the Bridewell at Northleach, under a warrant re- quiring the gaoler to keep her in custody until the 12th of February, and on that day to bring her up for further exa- mination. On the 12th of February the plaintiff waa brought up before two other magistrates for further exami- nation, and was by them re-committed. On the l6th she was again brought up before the defendant, who then dis- charged her, stating that there was no evidence against her, that he would have discharged her on the 12th if he had been present at the examination, and that he had com- mitted her in the first instance until the 12th under the expectation that she would by that time have explained the history and circumstances of the letter. No evidence was produced on the part of the defendant, but it was contended
MICHAELMAS TERM, X GEO. IV. S5
that the action could not be maintained on two grounds : 1829. firat, that the defendant had done nothing illegal, every magistrate having a discretionary power to commit for furthec enamination for such period as he thinks proper; apd« secondly, that even if he had abused his discretionary power, and thereby acted illegallyi case* and not trespass, was the proper form of action. The learned judge inclined to think that the action was not maintainable, but to save the expense of another trial he left two questions to the jury: first, whether the commitment was made bon&fide for the purpose of further examination, or for the purpose of compelling the plaintiff to state who was the writer of the letter; and, secondly, whether they considered the time for which the plaintiff had been committed was a reason- able time. The jury retired, and, after an absence of several hours, returned stating that they could not agree; whereupon the learned judge discharged them from giving any verdict and nonsuited the plaintiff. In Michaelmas terqi, 1828, a rule nisi for a new trial was granted, upon the grounds, first, that there was evidence to go to the jury that the commitment was made for the purpose of extort- ing a confession, and not for the purpose of further exami- nation, and therefore was illegal ; and, secondly, that even if the commitment was made bon& fide for the purpose of farther examination, it was made for an unreasonable time, and therefore was illegal. In Hilary term, IS29,
Taunton shewed cause against the rule. This nonsuit was right, for the form of action was wrong. Assuming that there was evidence from which it might be implied that the defendant acted maliciously in committing the plaiDtiff, the form of action should have been case, and not trespasf. If the defendant had jurisdiction over the sub- ject-matter of the complaint, and the warrant is good upon the face of it, trespass is not maintainable; because t(ie foundation of that action is, that the defendant had no jurisdiction, but was a mere wrong-doer. The defendant here clearly had jurisdiction, for a complaint was made
56
1899.
CASES IN THE KING S BENCH,
upon oath before him, and a felony charged. [Bayley, J. The complainant only swore that she had reason to sus- pect, and did suspect, that the plaintiff was concerned in the felony. Such a deposition would justify the apprehen- sion of the party, but I doubt whether it justified her com- mittal. Besides, is fourteen days a reasonable time for which to commit for further examination f] It may or may not be so, according to the circumstances. Generally speaking, the time for which a prisoner shall be committed for further examination is a matter in the discretion of the magistrate, and that discretion, exercised bon& fide, is con- clusive. But even if that be not so, still, if under any cir- cumstances the warrant can be good, it is an answer to the action. A fortnight may be too long, but it is not neces- sarily so. Here the letter produced before the defendant spoke of a fortnight ; he may have considered that letter as genuine, and believed that the writer would wait a fort- night; and upon that ground may have committed the plaintiff for that time for further examination. Scavage v. Tateham (a) may be relied on for the plaintiff, but that was a very different case from the present. There the magis- trate detained the prisoner in custody in his own house ; the detention was for the space of nineteen days; and it did not appear that there had been any examination at all.
Curwood, contri, was stopped by the Court.
Bayley, J. — I am of opinion that the rule for a new trial ought to be made absolute. Upon one question I entertain no doubt; it is clear that a magistrate may legally commit for further examination. But I think it equally clear that it should have been left to the jury to say whe- ther the commitment was made bon& fide for the purpose of further examination, or for the purpose of inducing. the plaintiff to make a confession. The declaration of the de- fendant^ that he had committed the plaintiff in the first instance until the 12th, under the expectation that she (a) Cro. Elic 8S9.
MICHAELMAS TERM^ X GEO. IV.
would by that time state who was the writer* of the letter, was certainly evidence to go to the jury that he did not commit for the purpose of further examination. Upon the otber ground, the authorities are very strong to shew that a magistrate ought not arbitrarily to commit, even for the purpose of further examination, for so long a period as the defendant in this case did. The duty of magistrates in this respect is pointed out in Hale*s Pleas of the Cro%on{a), and is this : — ^Where a party arrested for felony is taken before a magistrate, he must discharge, or commit, or bail him. But prior to so doing he must, by 1 and 2 Ph. i^ M. c. 13, and 2 and 3 PA. 4r M. c. 10 (i), (re-enacted by 7 Geo. 4, c. 64,) take the informations upon oath of the prosecutor and witnesses, and put them into writing. He must also take the examination of the prisoner, not upon oath, aod put that into writing. And because it may be un- reasonable to take these informations or examinations pre- aendy, or possibly it may take longer time, the prisoner may be continued in the custody of the officer, or may be detained in the magistrate's house, or committed to tome near safe place of custody, till the examination can be taken: but this must be dispatched in some convenient time. The case of Scavage v. Tateham(c) is there referred to. That was an action for false imprisonment in London from the iOth to the 29th of September. The defendant justified, that he was mayor and justice of the peace in Pomfret, and that robbery was done there, and the plaintiff was thereof suspected and brought before him, and there- fore he detained him in his house during that time to exa- mine him and one Pole, who was not apprehended, con- cerning the robbery ; and afterwards, on the 29th of Sep- tember, delivered him over to the new mayor; and traversed the imprisonment in London. And upon demurrer it was adjadged that the inducement to the traverse was not good ; for a justice of peace cannot detain a person suspected in prison, but during a convenient time only to examine him,
(•) Vol. I. p. 586 ; II. p. 120. (c) Cro. Eli». 889.
W Ante, iv. 4S7 (6).
67
1829.
CASES IN THE KINGS BENCH,
which the law intends to bQ three days, ^nd within that time to take his examination and send bjpi to priion, for he ought not to detain him as long as he pleaseth, as he did, eighteen days. That decision, if adopted as an autho- rity to its full extent, would shew that the law has limited the reasonable time to three days. But I am pot disposed to go to that length. I do notnhink it possible to fix any specific limit. The time for which a party may reasouably be committed for further examination must depend upon the nature and circumstances of the case. But then these cir<» cumstances ought to be detailed in evidence. They should have been detailed in evidence in this case. Then, if the question had proved a mere question of law, the judge should have determined it ; if a mixed question of law and fact, the judge and the jury should have determined it in Bum's Jmtice, vol. i. p. 1009, £4tb ed. n. there is this case (a): — Gooditig was convicted at the Ixindon Ses? sious, in May, 1820, of assisting Davis to escape from th^ Giltspur Street counter, where he had been in cus* tody, charged with forgery. The case was afterwards submitted by his majesty to the judges, in consequence of a petition presented by Gooding, alleging that DuvU was never in kgal custodyi and submitting that Goodiiig, therefore, could not legally be convicted of assisting him to escfipe. The fact was, that Davis, at the time of his escape, was under commitment for further exaniiiuition pply, and that no warrant, commitment, or any written authority was ever made out by the committing magistrate, or by any other magistrate. The only question submitted to ihe judges was, whether a commitment for further examination, not being in writing, was legal. The judges were unanimously of opinion that such a commitment, if made for a reasonable time, was legal, though not in writing; but they stated that they considered the question,
(a) Cited by Park, J. in his Chitty^s Bum*$ Justice, %'ol. ii. chaise to the grand jury, Mon- p. 100, n. mouth Summer Assizes, 1823,
MICHABLMA8 TERM, X GEO. IV.
what was a reasonable time, to be a mixed question of law and fact} and that as the facts of the case were not fully detailed, they could form no opinion, in point of fact, whether the time in the particular case was a reasonable time or not; but that they presumed it must have been profsd at the trial to be so, because otherwise the prisoner ought to have been acquitted. That statement of the jadges shews them to )\nvt been of opinion, that the ques- tion whether the time, for which the party v?as committed for further examination, wqs reasonable or not, depended i)pon the circumstances of the case, and that the judgment of the committing magistrate was not conclusive of that <|tiestion. I feel myself bound to act up to that opinion in the present ease, and to state, that the circumstances which iaduoed this defendant to commit the plaintiff for fourteen days not being detailed, I feel myself unable to say whether that time was a reasonable time of commitment for further eiamtnation or not. Upon this view of the case, upon bath grounds, I am of opinion that justice cannot be done widioQt a new trial being had.
dQ
1890.
Davis
Cappcb.
LrrrLBBALB, J.*-i-I also think that there ought to be a new trial in this case, for the purpose of trying the question, whether the plaintiff was committed by the defendant really sad bop& fide for the purpose of further examination, or for the purpose of forcing from her a confession regarding the person who wrote the intercepted letter. If the com- mitment was made for the latter purpose it is quite clear that it was illegal. Upon the question of the discretionary power of magistrates, as to the time for which they can legally commit for further examination, I should require opportunity for consideration before I came to any decision; but it is not necessary to decide that question in the present
Paike, J. — I am also of opinion that there must be a new trial had in this case, for the reason given by my brother
/
60 CASES IN THE KING's BENCH,
1829. LUiledale. Upon the other point I agree with my brother Bayley» that it is a mixed question of law and fact for the consideration of thejury^ after a detail of all the circum- stances, whether the time of commitment for further examination is reasonable, or not. The case of Scavage v. Tateham (a), in whatever view regarded, seems to me to establish that proposition; because^ though the decision there may have proceeded on the ground that the prisoner had been improperly detained in the magistrate's bouse instead of being committed to prison, or that he had been improperly delivered over to the new mayor without any examination having taken place^ still it appears from the report rather to have proceeded upon the ground that a magistrate has no authority to detain a suspected person in custody beyond a reasonable time for the purpose of his examination : and it is clear that Lord Hale takes that view of the decision in the part of his treatise referred to by. my brother Bayley. So, in Gooding's case {b)» it is clear that the judges thought the time for which the magistrate bad detained the party in custody was not to be considered conclusively as reasonable ; but that the reasonableness of the time was a mixed question of law and fact, to be deter- mined by the judge and jury. A new trial, therefore, must be had ; which, if there be any doubt upon this point, will give the defendant the opportunity of raising the question upon the record.
Rule absolute for a new trial.
At the Gloucestershire Summer Assizes, 1829, the cause was tried again before Vaughan B., upon the same evidence as before. That learned judge left two questions to the jury : first, whether the defendant in committing the plain- tiff for the time mentioned in the warrant acted bon^ fide» or was influenced by some indirect or improper motive ; and secondly, if they thought that the commitment was (a) Ante^ 57. (h) Ante^ 68.
MICHAELMAS TERM, X GEO. IV.
made honk fide for the purpose of further examination, whether the time was reasonable : and his lordship expressed his own opinion that the time was» under the circumstances, unreasonable. The jury found that the commitment was made bon& fide for the purpose of further examination only, but that it was made for an unreasonable time, and returned a verdict for the plaintiff with 10/. damages. The learned judge gave the defendant leave to move to enter a nonsuit, if the Court should be of opinion that trespass was not maintainable for an unreasonable commitment made with- oQt any indirect or improper motive. On a former day in this term
61
1839.
Taunton moved accordingly. Had the defendant acted wholly without jurisdiction, and shewn his want of juris- diction upon the face of his warrant of commitment, trespass would have been maintainable; but he had jurisdiction to commit, and his warrant was good upon the face of it ; therefore trespass will not lie. This distinction is taken in the late case of Groome v. Forrester (a). Lord Hale, speak- ing of commitment in cases of felony, says (b), *' The want of certainty seems not to make the commitment absolutely void, so as to subject the gaoler to a false imprisonment, but it lies in averment to excuse the gaoler or ofiicer, that the matter was for felony. '^ Here, the defendant having jurisdiction to commit for a reasonable time, and the rea- sonableness of the time being a mixed question of law and fact, (the law having assigned no fixed limit,) it Is im- possible to say when precisely the time became unreasonable, and the want of jurisdiction arose. The defendant, there- fore, at most, has fallen into an irregularity in the exercise of his jurisdiction ; and though that may render him liable to an action on the case, still, having had jurisdiction, he cannot be treated as a trespasser (c). It may be doubted whether the plaintiff would have been entitled to her dis-
(b) 5 M. & S. S14. (*) Bale's P. C. 683.
(c) Vide Baiten v. Carew, 5 D. & 11. 558; 3B.&C. 649.
6d CAS£6 tn THE KtVO^B fi&KeB,
1820. charge by habeas cdrpUs ; and trespass does not lie unless Vp'"^ Ihe cothinitment be so utterly void as to entitle the party V. committed to be discharged by habeas corpus^ although
CAPPta. |[jg converse of the proposition does not hold ; for a party may be entitled td discharge by habeas corpus, ahd Hot Entitled to maintain trespass for false imprisonmenti [Baylejff J. May not a warrant of commitment be good for part of the time, and bad for the residue P] Not ho as to make the magistrate a trespasser; It is impossible to draw the line. Besidea, herie tio psirt WAs bad. It Wis a mere irregularity. [Parke, J. Gt>odivg^B case (c), shews that a commitment for an unreasonable time is void altogether. Lord Tenterden, C. J. Suppose a magistrate had authority by statute to commit for one teionth, and he committed for two, would not trespass lie against him?] Uhdoubtedly it would, because the law having limited his jurisdiction to a month, the commitment would bo void for the second month, in respect of which he would be wholly without jurisdiction. Here the magistrate had jurisdiction to commit for a reasonable time; without ahy express limi- tation ; and there is hothing upon the face of the warrant to shew that the time for which he committed was unrea- sonable.
Cn^. idtt/o. vuU.
Lord fENTERbEN, C. J. now delivered judgment. — This was an action of trespass brought against the defendant, a magistrate^ who had committed tliie plaintiff for k period of fourteen diys for the purpose of further examihation. Tbe jury fout^d thit tho commitment was made boirfl fide for that purpose, and Without any indirect or improper motive^ but that the tithe for which it was made was unreasonable. It wks icontetided on the part of the defendaht that the fbnii of the action was improper, that it should have bech case and not trespaSi). We are, however, of opinion that trespass was the proper form of action. A special action on tbe (a) 1 Bum's S, 1009» 94th cd. ; 2 Cbitty*s 6urn*s J. lOO, n.
M ICHAELif AS T£RM> X GEO. IV.
case canDot be maintained against a magistrate for anjrthing done by him in that capacity, unless his conduct have been iiiBuenced by some improper motive, and here the jury expressly negatived such a motive. And whether we con* aider this commitment as absolutely void from the beginning, as being for an unreasonable time, or consider it as void only pro tanto, that is, for so much of the time as was unreason- ble, still an action of trespass would be maintainable; beeausis the legal character of the act is the same, and every continuance of the party in custody is a new imprisonment and a new trespass. It appears to us, however, to be the far better opinion that, in a case like this, where the time is unreasonable, the commitment is void from the beginning (a). The duty of a magistrate is to commit for a reasonable time, and if he commit for an unreasonable time, he thereby does an act Which he is not authorised by law to do. It is clear that in Gooding's case (6) the judges thought that a com- mitmient for an unreasonable time would be a void commit- ment ; for the report states, that they presumed that it must have been proved at the trial that the time was reasonable, because otherwise the prisoner ought to have been acquitted. That goes to the very point, that a commitment for further examination, if it be for an unreasonable time, is, therefore^ wholly void, because the judges were of opinion that the party so committed was not in legal custody, and, theriefore, that another person who had aided him to escape from prison was not guilty of any offence against the law. For this reason, as well as for the other which I have already stated, we are of opinion that trespass was the proper form of tdion in this case.
Rule refused (c).
63
1829.
Davis
V.
Capper.
(a) And see Rex v. EUii^ 8 D. k R. 173. (^) I Buro'B J. 1009, 24th ed.;
S Chitt/s Bum's J. 100^ n.; atUtj 58.
(c) And see Hardy y, Ryk, anie^ iv. 295; 9B.&C. 603.
64 CASES IN THE KING^S BENCH,
1829. ^- ^ , ,
y^^^^m^ Newsome V. Graham and another.
Rent paid by ASSUMPSIT for money had and received. Plea, non in'g as devisee, assumpsit ; and issue thereon. At the trial before Bayley^i,,
the amount of at the last Yorkshire Assizes, the case was this:— fT. D.
which J. IS . ,
afterwards laylor died in 1819, intestate, and without issue, possessed
M^i^ihifh^ir ^^ certain freehold estates. J. Taylor j his younger brother, maybereco- succeeded to the estates as heir at law, excluding the If.'ls money ^ daughter of B. Taylor, an elder brother, who was sup- had and re- posed to have been illegitimate. J. Taylor died iu 1820, ceived to his . . , ... i i i • • i i . ^ , use, B. setting having by will duly devised the estates to the defendants as
Swlwids when ^^"*^®®^- ^he plaintiff had been tenant of part of the pro- the action is perty under W. £). Taylor and under J. Taylor, and after thTtnaU^^ *^ the death of the latter continued to hold under the defend- ants, and paid thcni rent for seven or eight years. It was then discovered that R. Taylor ^ the elder brother, had been legitimate, upon which his daughter and heiress at law brought ejectment against the plaintiff, and obtained a ver- dict establishing her title. She afterwards brought an action for mesne profits against the plaintiff, and obtained a verdict for the amount of six years' reut. The plaintiff then brought the present action to recover that amount, together with the costs of his defence. The present de- fendants knew, while they were in the receipt of rent from the plaintiff, that there were doubts respecting the illegiti- macy of the elder brother. It was contended on the part of the defendants that the action for money had and re- ceived could not be maintained, because the title to the estates might have come in question, which could not have been tried in that form of action. The learned judge directed the jury to find a verdict for the plaintiff, but gave the defendants leave to move to enter a nonsuit. The jury having found for the plaintiff,
P. Pollock, on a former day in this term, moved accord- ingly. The title to the estates might have come in ques- tion, therefore this action cannot be maintained ; for title to
MICHAELMAS XERM^ X G£0. IV4
hod, or to an incorporeal hereditament, cannot be tried m » action for money had and received : Cunmngham v. Lawrenis (a), lindon v. Hooper (6). The plaintiff claims the money aa rent paid without consideration* The ground of the claim is, that the trustees had no tiUe. But it was open to them to shew that they had title, for the recovery in ejectment is not conclusive of that question; this action therefore might have turned upon a question of title, and caDQOt be maintained as an action for money had and re^ ceived.
Cur. ado, vulL
66
1829.
NawsoME Crabasi.
Lord Tentsrbbn, C. J. now delivered judgment. — We are all clearly of opinion that the action for money had and received is maintainable under the circumstances of this case. They are these: — ^The plaintiff had from time to time paid rent to the defendants for certain premises which be held of them. It turned out at length that the defend- ants had no title to those premises. The plaintiff was ejected, and compelled to pay the mesne profits for the time during which he had held of the defendants. And this action was brought to recover back the rent which he had paid to them. The objection was, that titl^ to land could not be tried in an action for money had and received. That is true; but there was no trial of title in this case. It hid been previously ascertained that the defendants had no title whatever to the premises; and the defendants did not, at the trial of this cause, claim to have any title. Two cases were cited at the bar, but they are both distinguish- able from the present in that respect. From the short note of the nisi prius case of Cunningham v. Lawrents{a) in Bacon't Abridgment^ it may be inferred that the defend- ant claimed title to the land at the very time when the MTtion of assumpsit for the rents received was brought. In lindon v. Hooper {b)y the right of common was in dis* (a) 1 Bac. Abr. 7th ed. «60. (t) Cowp. 414.
VOL. v. 1'
66 CASES IN THE RIKG'S BENCH,
1829. pute at the time when the action for money had and re* ceived was brought to recover back the money paid for the release of the cattle; the defendant, who had distrained the plaintiff's cattle, agreed to return the money, if the plaintiff should make out his right, and tlie action was brought for the express purpose of trying the right. In the present case it did not appear that the defendants, either at the time when the action was brought, or at the , trial of the cause, claimed to have any title to the premises. This, therefore, is the simple case of money paid under a mistake as to the facts, and fails within the general rule that money so paid may be recovered back as money had and received by the defendants to the plaiutifi^s use.
Rule refused.
A patent is Lewis and another v. Marling.
not avoided -^
by the specifi- OASE, for infringing a patent obtained by the plaintiffs
ing as part, f^^ improved shearing machines for shearing woollen cloths.
but not as Plea, not guilty ; and issue thereon. At the trial before
a necessary m i-i t
part of the Lord Tenterde/i, C. J., at the adjourned Middlesex sittings
somethin' ^^^^^ '**® '^^^ '^^"™' ^^^ ^^^^ ^^^ this:— The plaintiffs had
which proves obtained their patent in 1818, and in their specification, to
*^A pa*tenr which a drawing was annexed, they claimed as their inven-
for a machine tion, among other things, " thirdly, the application of a invented, and . ^ /? . • . i- . * , ,
first brought proper substance fixed on or m the cyhnder A. to brush
into use, by the surface of the cloth to be shorn ;" and " fourthly, the the patentee, . . •"
isnotavoided described method of shearing cloth across from list to list
a^simifaT^^ ^^ ^^ ^ rotatory cutter.*' It appeared that the brush was soon
machine hav- abandoned by the plaintift's, being found useless, and that
viousry'in-'^^" they never sold any machines with it; and upon this ground
vented by it was contended that they had claimed too much, and
another, b y , . , , . , ___. ,
whom it was therefore that the patent was void. With respect to the
never brought rotatorv cutter, it appeared that a similar machine was in
into usem this * » rr
country.
Lewis
V.
MICHAELHAS TERM» X GEO. IV. 67
use in America twenty years ago, and that a specification of iB29.
it was sent to England in 181 1 and seen by several persons,
though 00 machine was ever constructed by it; that in 18 1 6
a model of a similar machine was brought to England from Marliko.
America, and seen by some few persons, though no machine
was ever constructed by it^ nor was its existence publicly
or generally known ; and that about thirty years ago a
similar machine was constructed in England, and tried by
the defendant, who did not find it answer. Upon this
evidence it was contended that the invention claimed by
the plaintiffs was not new, and therefore that the patent
was void. The Lord Chief Justice was of opinion, upon
the first point, that as the specification did not describe the
brash as a necessary part of the machine, the patent was
still good, although, upon trial, that part of the machine
bad proved useless; and, upon the second point, that as
the rotatory cutter had not been publicly or generally used
or known in England, the plaintiffs must still be considered
as the inventors within the meaning of the statute 21 Jac. 1,
c S, 8. 6, although a specification and model of it had been
bfoaght from America, and a similar machine had been
constructed in England ; but his lordship left it to the jury
to say whether a similar machine had been generally known
in England, and whether the patent of the plaintiffs had
been infringed by the defendant. The jury found a verdict
for the plaintiffs.
jP. PoUock now moved for a rule nisi for a new trial, and renewed the objections taken at Nisi Prius. First, the patent is void, because the specification describes as part of the invention of the plaintiffs, the application of a brush to brosh the surface of the cloth; whereas it was proved that such brush was useless, and that the plaintiffs never sold a sii^le machine with the brush attached to it. Now a patent is void if the specification is either ambiguous or gives directions tending to mislead the public. Turner v. Winter {a) ;
(a) I T. R. 608. f2
68
i«e9;
Lewis Maruvo.
CASEd IK THE king's BENCH,
and here the public would be misled, if, at the expiration of the time for which the patent was granted, they attempted to construct a machine according to the directions of the .specification. It was suggested at the triai> as an answer to this objection, that the specification does not describe the brush as a necessary part of the machine. But this seems to be no good answer in hw, because the defendant is entitled to treat the case as if the patent had been ob* tained for the brush alone; and because in every patent^ all that is claimed must be new and useful, or the patent is void: Hill V, Thompson {a), Bruntonv^Hawkes{b\Cromp^ ton V. Ibbotson (c). Secondly, the patent was void because part of the invention claimed, namely^ the rotatory cutter, was proved not to be new ; at least there was strong evi-^ deuce upon that subject, and which was not left to the jury by the lord chief justice in the manner vvarranted by former decisions. The evidence was this: — About thirty years ago a similar machine was constructed in England; in 1811 a specification, and in 1816 a model, of a similar tnachine was brought to England from America, and though ho machine was ever constructed from either, both were seen by several persons. Now the proprietor of that spe- cification or model could not, after having so exhibited it, have maintained a patent for the machine ; and if he could not, it is difficult to understand why the plaintiffs should be in a better situation.
Lord Tenterden, C.J. — I am of opinion that we ought not to grant a rule to disturb the verdict in this case. With respect to the first objection, it does not appear^ upon adverting to the specification, that the patentees described the brush as a necessary part of the machine, although they claimed it as an invention. Before they applied for the patent they had constructed a machine, of which the brush formed a part, but before they made any utachines for sale
(a) 2 Moore, 424; 8 Taunt. 375.
(b) 4B.&A. 541.
(r) 1 Danson and Lioyd, 33.
.MICHA£UfA$ TERM, X GEO. IV. 6^
they difcotered the brush to he unnecessary^ and abandoned I89d. it I 9gree that if a patentee insert in his specification, as
Lewis
Marumo.
a accessary ingredient in the patent article, any thing which v,
proves not to be necessary, or even useful, and thereby misleads the public, his patent may be void; but I think it would be too much to say that this patent is void, because the plaintiffs claim to be the inventors of a particular part of the machine, not described in their specification as ne- cessary, and which turns out not to be useful. Several of the cases already decided have borne with sufficient rigour upoD patentees, but no case hs|s yet gone the length of decidiog that aiich a claim renders the patent void, and I, for oi9e> nm not disposed to create such a precedent. The pther ground of thisi motion was an alleged misdirection oi^ mj p^rt to the jury. With a view to impugn the novelty ef the invention, evidence was given that a machine similar to that of tbe plaintiffs had been previously constructed ii^ Englaadi but that it had not been approved of, ^nd never came into use. Another piece of evidence was, that a model bad been brought to England from America, and exhibited to some few persons, but that no machine had ever been nade from it. It was further proved, that a specification had been brought to England from America, and shewn to several persons, but that no machine was ever made from it. So that upon the result of all the evidence it appeared, that until the plaintiffs obtained the patent for their machine, W) similar machine had been publicly known or used in this country. I told the jury, that if it had been proved that the plaintiffs had seen the former model or specifica** tion, that might have been an answer to*their claim to the in-f veotion, but that there was no evidence of that kind; and I left it to them to say whether a machine similar to that of the pbuntiffs had been in public use and operation before the patent was granted. They found that there had not i «id I think there is no reason to find fault with their, verdict.
70 CASES IN THE KINO's BENCH,
1889. Bayley^ J. — I am of the same opinion. In order to
support a patent, the specification must make a full and fair disclosure to the public of all that is known to the patentee respecting his invention; the object being, that ultimately the public shall have the benefit of the disco- very (a). If, therefore, the patentee represent several things as competent to produce a specific effect, when only one will answer, that is bad; or if he suppress any thing which he knows will answer, that is bad also. It is ob- jected in this case that the plaintiffs described the appli- cation of a brush as a part of their invention. But at the time when the specification was made a brush was used ; and there is no reason to doubt that the plaintiffs at that time thought it necessary ; therefore that objection fails. As to the specification and model sent over from America, if it had been proved that the plaintiffs had seen them, or either of them, they could not afterwards have claimed the discovery. But if I discover a particular thing for myself, it is no objection to my claim to a patent that another has made the same discovery, provided I am the first to intro* duce it to public notice and adoption. Here, there was no ground to doubt that the plaintiffs were the inventors, if liot the first inventors, of the machine, and that they were the first persons who introduced it to public notice.
> Pabke, J. — I am also of the same opinion. The ob- jection to the patent, as explained by the specification, is, that it is for several things, one of which was then sup« posed to be useful, and is now found to be not so. Now although it has been decided that all the parts of an inven- tion for which a patent has been granted must be new, it has never been decided that they must all continue to . be useful. The law has not yet gone to that extent, nor do I think it desirable that it should. The prerogative of the crown as to granting patents was restrained by the statute
(a) JUardet v. Johntan, Bull. N. P. 76, b.; Godson on Patents, 121.
1(1CHA£LHAS TERM, X 0£0. IV.
SI Jac. \, c. 3» s. 6, '' to the true and first inventors of manufactures, which others at the time of granting the patent shall not use." The condition, therefore, is, that the thing shall be new, not that it shall be useful; and though the question of utility has been sometimes left to the jury, it appears to me that the condition imposed by the statute is complied with, if the subject-matter of the patent be proved to be new. There was nothing in this case to shew that the plaintiffs were not the first inventors of this machine, at least in England ; and its having been previously invented in America, does not affect the ques* tion. It is a further part of the condition of the statute, that the manufacture shall not have been used by others ; which^ it is said, has not been complied with in the present case. But there was no evidence of the user of this machine ID England before the plaintiffs obtained their patent ; and there b no authority for saying that a patentee is to lose the benefit of bis invention because it has been also invented bjf another, unless that other has also brought it into public use. For these reasons I am of opinion that neither of the objections urged against this patent ought to prevail, and that the plaintiffs are entitled to retain the verdict which has been found in their favour.
Rule refused (tf).
(a) LiUUdale, J^ was in the Bail Court.
Sharp v. Aspinall and Parker.
OECLARATION in trespass. The first count stated The proceed- that defendants, being justices of the county of York, j,"^"P?„Voni unlawfully issued their warrant to the constable of Slaid- member of a bum, authorizing him to levy the sum of 75. 6d. by distress ^^^ J^^^ ^g
and tale of the goods, chattels and moneys, of a certain Oeo, 3, c. i!25,
8. 3, must be all before two justices resident in the county in which the society is held.
Sbakp
V.
i2 CASES IN THE KING*S BENCH,
1829. friendly society called The Humane Charitable Fraternity, held at Slaidburn in the West Riding of the county of York| and in default of such distress being found, then to AspiNALL. i^yy iii^ said sum of 7^. 6d, by distress and sale of the goods, &c. of plaintiff, therein described as an officer of the said society; under which warrant defendants with force and arms broke and entered the house of plaintiff in the said county, and took away a writing desk of plaintiff of the value of 10/. and sold it, although defendants had no jurisdiction over the subject-matter of the complaint on which the warrant was grounded, and had no right to issue the warrant. Second count for breaking and entering plaintiff's house, and taking away his goods. Third count for taking away plaintiff's goods. Pleas : first, not guilty. Secondly, that before and at and after the said time when &c., one A, was a member of the said friendly society, held Sec, called Sec., the rules, orders, and regulations . whereof had been and were, before &c., duly exhibited, confirmed and filed at the general quarter sessions of the peace in and for the said West Hiding, according to the provisions of the statute 33 Geo. 3 ; and the said ^. so being such member &c., did before &c., complain to defendant Parker, being then and there a justice of the peace for the said west riding, and residing within the same, and also a justice of the peace for the county palatine of Lancaster, the said county palatine adjoining the said West Riding, of relief having been refused to him the said A, by the said society, to which he was lawfully entitled ; that a summons was issued to plaintiff as steward of the said society; that defendant Parker being such justice as afore- said, and defendant Aspinall being a justice of the peace for the said West Riding, and also for the said county pala- tine, and residing in the said county palatine, near to iS., attended at the time and place mentioned in the summons \ that plaintiff made default; whereupon service of the notice was proved on oath, and defendants proceeded to hear the complaint, and made an order that the said sum of
Sbakp
MICHAELMAS TERK, X GEO. IV. 73
7f. &/. should be paid to A* ; and because plaintiff refused )829;
to pay« defendants issued their warranty &c. Replication,
de iDJuri& sufty 8cc. i\t the trial before J3^/ey, J. at the Z.
lut York assizes, the facts were proved as stated on the Aspihali.
record. It was contended on the part of the plaintiff that
tbedefendantSf not being both resident in the West Ridings
kad no jurisdiction to make the order upon which the
warrant was founded, inasmuch as the statute 49 Geo. 3,
c. 1^, s. ly confined the power of making such orders to
two justices '* residing within the county, riding, division,
kc., within which such society shall be held.'' On the
part of the defendants it was contended, that the clause of
the statute referred to was only directory, and that the
order being made by two justices of the West Riding, though
not both of them resident within it, was good, inasmuch as
the statute 28 Geo. 3, c. 49, empowered justices to act for
soy two adjoining counties, provided they were personally
resident within one of them. The learned judge was of
opinion that the defendants had no jurisdiction to make
the order, and directed the jury to find a verdict for the
plaintiff, but gave the defendants leave to move to enter a
nonsuit
Vfightman now moved accordingly. It was assumed at the trial that the order in question was made under the authority of the Jir$t section of the 49 Geo. 3, c. 125, and the objection was founded upon that assumption. Now that was a mistake, for the whole of the proceedings were taken under the third section of that statute, which, as regards the present question, is essentially different from the first* The powers given by the first section are, no doubt, confined to justices residing within the county in which the society is held ; for the words ''such justices" in the latter parts of thdt section can only refer to the justices there first mentioned, namely, resident justices; and if the pro-< ceedings had been taken under that section, it may be
74 CASES IN THE KlNo's BENCH,
1899. admitted that the objection would have been fatal, notwith- standing the statute £8 Geo, 3, c. 49* But the subject- matter of these proceedings was relief, a word not to be found in the first section, and the whole scope and object of the two sections differ; for the first empoM^ers justices to enforce the obedience of the members to the rules of the society, and the third empowers them to give relief to the members of the society against the misconduct of the officers. The third section begins by enacting that "if complaint shall be made to two such justices by a member of relief having been refused, it shall be lawful for the mid two justices residing within the county in which the society shall he held, and such justices are thereby required, to summon the officer against whom complaint shall be made, and, upon his appearance,. &c.| such justices shall proceed," &c. Now the words ''such justices'' in the beginning of this section cannot be taken to refer to the justices men- tioned in the first section, because there is an intervening section, the second, which contains a long recital of two prior statutes, introduces a new set of enactments wholly independent of the first section, and twice mentions "justices,'' generally, without any definite description. Then, taking the words '^ such justices" in the third section to refer to the last antecedent justices, namely, those mentioned in the second section, which is the proper rule of construction, the complaint of relief being refused may be made to a;?y justices, who would have jurisdiction wherever resident; and the subsequent words in the third section, respecting residence, must be considered as directory only, and not restrictive. Ai all events those words, even if considered as restrictive, can apply only to the granting of the summons; and as the summons in this case was granted by the resident justice, the proceedings will still be valid by the 3 Geo. 4, c. 23, s. 2, which provides, *' that in all cases where two justices are authorized and required to bear and determine any complaint, one justice .shall be
AirCHAELMAS TERM, X GEO. IV.
competent to receive the original information or complaint, and to issue the summons or warrant requiring the parties to appear before two justices; and after examination upon oath into the merits of the complaint, and the adjudication thereupon by any such two justices being made, all subsequent proceedings to enforce obedience thereto may be enforced by either of the said justices, or any other justice for the same county/'
75
1899.
Lord Tenterden, C. J. —I entertain no doubt upon this case; the point is perfectly clear. The proceeding is under the third section of the statute 49 Geo. 2, c. 125. The early part of that section provides, that if complaint shall be made of relief being refused, two justices residing withiii the county in which the society is held, shall summon the part^ complained against; and the latter part directs all the subsequent proceedings to be taken before such justices. The word such can only mean resident; if the first proceed- ing is to be before two resident justices, the order must be made by them also. The direction of the learned judge, therefore, was perfectly correct, and no rule can be granted*
The other Judges concurred.
(a) A friendly Society, whose rules hare l>een allowed by the ma- l^stntes and registered in London, afterwards bold their meetings in Middlesex. Tlie magistrates of Middlesex have jurisdiction to de- ^<le DpoQ complaints made by
Rule refused (a)
members of the society. So held upon an indictment for disobe- dience to an order of two justices of Middlesex. Res v. Ga«A, 1 Stark. N. P. C. 441 ; Mann. N. P. Digest, 8d ed. S09.
76 CASES IN THE KING's BENCH,
1829. Christopher Kell, Gent, one, &c, v. Nainby.
An attorney ASSUMPSIT on an attorney's bilk At the trial before
busmess under Gaselee, J., at the last Sussex assizes, the case was this:—
the firm of *«K. fhe business, in respect of which the action was brought,
son not being was done by the plaintiff for the defendant in the years
in fact his i8«7and 1828. William Kell, the plaintiff's son, who
partner, may ^ "^
sue alone for proved the business done, stated, upon cross-examination,
his bill for pro- ^^^^ ^^ ^*® "^^ *" partnership with his father, but acted as fessional busi- his clerk, and received a salary. But he admitted that " Kell and Son** was on the door of his father's oflBce, and ihat letters relating to the business had passed between the parties addressed and signed, respectively, '' Kell and Son." It was thereupon contended that the son ought to have been made a co-plaintiff with his father. The learned judge told the jury, that if the action had been brought by the defendant against the plaintiff and his son jointly, either for a debt or for negligence, the evidence would have been auiRcicnt to charge the son, because he had permitted him- self to be held out to the world as a partner with his father. But as the action was brought by the plaintiff as a creditor of the defendant, it was perfectly immaterial to the debtor that the son had been held out to the world as a partner, if in fact he was not so, and had no claim upou the defendant. The son had sworn that he was not a partner Mvith his father at the time the business was done, and if they be- lieved his evidence, the plaintiff was entitled to a verdict. The jury found a verdict for the plaintiff.
Piatt now moved for a new trial. The question that should have been left to the jury was, not whether they be* lieved the statement of the son that he was not a partner with the plaintiff, but whether they believed, upon the whole evidence, that the plaintiff and his son were jointly employed by the defendant. The evidence was very strong to shew a joint employment of the father and son. It might be true that they were not, strictly speaking, partners.
MICHAELMAS TERM« X GEO. IV*
lod yet they might be jointly employed by the defeDclant; and if they were so, no private arrangement made between themselves could alter the nature and effect of that em- ployment. That employment formed the contract between the parties, and the son was as much a party to it as the father: the fact that they were not jointly interested in the profits made no difference, if they were jointly employed to do the business. The defendant addressed letters to the two as partners ; he received letters representing them u partners ; he never had any reason to doubt that they were partners. It is clear that the two would have been jointly liable to the defendant in an action for negligence, and that shews that the employment must have been joint. This case is not like that of partners in a mercantile esta- blishment.
Lord Tbntebden, C. J.— I think the question left to the jury was the right one, and that if they believed the son, the plaintiff was entitled to a verdict. If the son spoke truth, there was no partnership between him and the plaintiff. The son, by permitting himself to be represented as a partner with his father, may have rendered himself jointly liable with his father in an action for negligence ; but it by no means follows from thence that he was bound to sue jointly with his father, when he claimed no interest as a partner, and declared that in fact he was not one.
LiTTLEDALE, J., Concurred.
PabkE) J. — The person with whom a contract is actually made, may sue upon it without joining others with whom it is apparently made. They may be liable, as partners, to dl the responsibility attached to persons holding themselves out in that character (a) ; but they are not bound to join in an action from which they seek no benefit, and from which they declare that they are not entitled to receive «ny. («) S. P. Guidon v. Eofaon, 2 Cnmpb. N. P. C. 30^
78 CASES IN THE KING's BENCH/
1829. There was no evidence in this case to shew that the son was actually employed by the defendant* The son proved that he was not an actual partner; and although he may have appeared to the defendant to be a partner^ unless he was a party to the contract for a breach of which the action was brought, he was not bound to join in that action (a). There was no evidence to shew that he was a party to that contract.
Rule refused (A).
(a) Ace. Teed v. Elworihy, 14 (b) See Goa> <m Partnership,
East, S34. 125^130, 3d ed.
Davies and others t?. The King (in error). An indictment 1 HIS was an indictment for poaching. The first three !j.and"ot£, ^^"^^* ^^""^ founded on the statute 57 Geo. 3, c. 90, which on, &c. at,&c. proved to have been repealed before the alleged offence of three toge- ^^^ committed; they were, therefore, abandoned. The
ther, did by fourth count, the only one now relied on, stated, " that
night unlaw- t^. , . \«ir j
fully enter di- Davtes and others, (nannng them,) with force and arms, on
and were ^'a«» the 17th day of December, in the year aforesaid, at the and therein the parish of Whitegate, in the county of Chester, being to the armed wfth number of three or more persons together, did, by night, guns, for the unlawfully enter divers closes and inclosed lands there stroking game, situate, and being in the occupation of the said JS. C, and does not suffi- ^g,.g ^jj^^ g,jj there in the said closes and lands, armed ciently allege «. •
that the de- With guns and other offensive weapons, for the purpose of
l^nMi'm^ihe ^^^^ ^^^ *^^'^® taking and destroying game, against the closes, armed, form of the statute." At the trial before Jervis, J., at the of destroyi^ ^^^^ Spring Assizes for Chester, the defendants were con- game, victed upon this count, and sentenced to fourteen years'
transportation. A writ of error was afterwards brought,
which now came on for argument.
«7. Jervis, for the plaintiffs in error. The fourth count is bad in various particulars. The offence charged being
MICHAELMAS TERM, X GEO. lV« 79
one created by statute, all the particular circumstances 18^9. giveD to define the offence should be distinctly stated, and the case should be brought within the statute by express words: 2Ha/e,P.C.170; StaundJ. 139, h.\ Foster,C.L.423. The 9 Geo, 4, c. 69f s. 9* describes the offence as being, aoy persons to the number of three or more together by night unlawfully entering or being on any land^ open or iDclosed, for the purpose of taking or destroying game, any of such persons being armed; aud s, 12 declares^ that for the purposes of that act the night shall be considered to commence at the expiration of the first hour after sunset, and to conclude at the beginning of the last hour before sunrise. Therefore, first, it should have been stated at what hour between sunset and sunrise the defendants were in the closes, in order to shew clearly that they were there by night within the meaning of the act of parliament. That was the ancient rule with respect to indictments for bur- glary, although it may have been somewhat deviated from in modem practice. In 2 Hale, 179» it is said, " Where the time of the day is material to ascertain the nature of the offence, it must be expressed in the indictment; as, in an indictment for burglary, it ought to say, ' tali die, circa horam decimam in nocte ejusdem diei, felonic6 et burglari* ter fregit;' but, according to some opinions, ' burglariter' carries a sufficient expression that it was done in the night.'' And in Waddingions case {a) it was held that in an indictment for burglary, either at common law or upon 12 Ann, St. I, c. 7, (repealed, but re-enacted by 7 & 8 Geo. 4, c. 29), it was necessary to lay the crime to have been committed in the night, and at about such and such an hour, though the evidence need not strictly correspond with the latter allega- tion; but that an indictment making no mention of the hour would be insufficient for burglary, though it would hold for the larceny. Secondly, there is no allegation that the defendants were unlawfully in the closes for the pur- pose of destroying game, it is only stated that they unlaw-
(fl) 2 East, P. C. 513.
80 CASES JK THE KING's BENCH,
18S9. fully entered the closes. The intent is not coapled with their unlawfully being there. The entry might be unlaw- ful from the means by which it was effected, and jet the defendants, when there* might be in the pursuit of some lawful occupation. Thirdly, it is not alleged that the de- fendants were in the closes together to the number of three: it is merely stated that they entered the closes together to the number of three. In this the main object of the statute, namely, to prevent preconcerted resistance to apprehension* is lost sight of. Here no unity of purpose is alleged ; the statement is consistent with the supposition that the defendants entered together, and separated before the intent charged was contemplated by either of them. Fourthly, there is no description of the closes; the defend- ants are merely charged with having entered '' divers closes and inclosed lands.'' That is not a sufficient averment; the indictment ought in some way or other to particularise the place, because the defendant is entitled to know to what specific place the evidence is to be directed : Ridley^s case (a). Lastly, the allegation, that the defendants were armed, is mbplaced. The ofience described in the statute is, the being in the close with intent to destroy game, being armed ; the offence described in the indictment is, the being in the close, armed, with intent to destroy game : in tliis respect the indictment follows neither the letter nor die spirit of the statute, and is bad accordingly.
Cottiftgham, contrs^. The fourth count is good. [Lord I'enierden, C. J. Can you support this count in respect of the allegation that the offence was committed by night? Does the averment that the defendants were then and there in the said closes, necessarily imply that they were there by night? Does it imply any more than that they were there on the day and place aforesaid? If it mean the latter only, the count is clearly bad.] The averment tliat the defendants were then and there in the closes, folIoM'S
(a) R.&R.C. C.515.
£>AVI£S
MICHAELMAS TERM, X GEO. IV. 81
immediately the averment that they entered the closes by 1899. night. The entry by night is the last antecedent, and to that the words " then and there" must be taken to refer» ^ v! and so taken, there is, in effect, an allegation that the de- ^**® ^i^o. fendants were in the closes by night. The description of the offence in this count is sufficient according to the rule laid down by De Grey, C. J., in Rex v. Home (a), and Lord Kenyon, C. J., in Rex v. Holland (6). The former sajs, " The charge must contain such a description of the crime, that the defendant may know what crime it is which he is called upon to answer, that the jury may appear to be warranted in their conclusion of guilty or not guilty upoa the premises delivered to them, and that the Court maj see such a definite crime that they may apply the ponishment which the law prescribes :" and the latter, " It is argued that three things ought to concur in every crimi- nal proceeding ; first, that the party accused may be ap- prised of the charge he is to defend ; secondly, that the Court may know what judgment is to be pronounced according to law; and thirdly, that posterity may know what law is to be derived from the record. These are general propositions to which I assent." The count now in question should be read as one sentence, and then it clearly chaises that the defendants committed an offence by eotering and being by night in certain closes, armed, with intent to destroy game ; and that is the offence de- scribed by the statute.
Lord Tehterden, C. J. — It seems to me that the ob- jection to which I directed Mr. CoUiugham's attention cannot be got over. The count states that the defendants " did by night unlawfully enter divers closes, and were then and there in the said closes," &c. It does not state that they '' by night did unlawfully enter, and were," &c. If it had done so — if the wprds"by night" had been placed at the beginning of the sentence — they might have go- («) Cowper, 633. (6) 5 T. R. 607.
VOL. v. G
82
1889.
CASES IN THE KINGS BENCH,
verned the whole sentence. Or, if they had been placed at the end of the sentence, they might have referred to the whole sentence. But here they are placed in the middle of the sentence ; are applied to a particular branch of it ; and cannot, therefore, be extended to that which follows. The sentence contains two distinct branches. The firet states that the defendants by night entered into the closes, but does not state that they entered being armed, or for the purpose of destroying game. The second states that they were in the closes, armed, for the purpose of destroy- ing game, but does not state that they were there by night. These two branches of the sentence being distinct, there- fore, and neither of them stating all that is necessary to constitute the offence described in the statute, the count is bad. Upon this ground, without entering into the other objections that have been raised, I am of opinion that the indictment in this case cannot be supported, and that the judgment must be reversed.
The other judges concurred.
Judgment reversed.
A single wo- man, set- tled in J., WAS removed from B, to C. The order of removal was quashed on appeal, but she had been previously delivered of a bastard child in C.:— Held, that the child was not settled in ji.
The King v. The Inhabitants of Martlesham.
On appeal against an order of justices for the removal of Henry Athrol, otherwise Walford, from the parish of Play- ford to the parish of Martlesham, both in the county of Suffolk, the sessions confirmed the order, subject to the opinion of this Court upon the following case : —
Sarah Athrol, single woman, being pregnant, was re* moved by an order of justices from Playford to Stutton. Before the sessions, she was delivered at Stutton of the pauper, a bastard. At the sessions, Stutton appealed, and the justices quashed the order. It was admitted on the present appeal, that the mother, at the time of the bastard's birth, belonged to the parish of Martlesham.
MICHAELMAS TERM, X GEO. IV.
Scarlett, A. G. and T* Clarkson, in support of the order of sessions. Under the peculiar circumstances of this case, ^. y. the pauper, though born illegitimate in the pariah of Stutton, v.
was not settled there, but in the parish of Martlesham, the ^J^tlesham. place of his mother's settlement. It is a general rule, no dottbt, that a bastard, being nuUius filius, cannot take a set- tlement by parentage, and is settled where born \ but the present case seems to form an exception to it* It is the very case put by Bayley^ J. in Rex v. St. Nicholas, LeiceS' ter{a), where he said, *' If the mother of a bastard child is laid under constraint, and removed to a place against her will, and is there delivered, the law says that the child shall not be considered as settled in that place; because the mother was not there in the character of a free agent. The legislature presumes in such a case, that if she had been left to herself she would have remained' in the parish in which she was settled, and, consequently, that the burthea ought to fall in the place in which it would have fallen in the ordinary course of events but for her removal (6)." Here the mother was under constraint. She was settled at Martlesham, but was wrongfully removed to Stutton; therefore, she must be considered as having been resident at Mardesham at the time when the child was born. In any view of the case it is more reasonable to consider her, in construction of law, as residing in Martlesham, her own parish, than in Play ford. At common law, if an illegiti- mate child is born while tlie mother is in the custody of the law, as where she is in the house of correction, Suckley v. Whithorn (c), or in the county gaol. Eking v. The County of Hereford (d), it follows the settlement of the mother. Here, if the mother had been convicted of an offence in Plajford, and committed to a gaol in Stutton, the child would have been settled in Martlesham, the place of the mother's settlement, because her residence in Stutton, being
(«) 4 D. & R. 463 ; 3 B. & C. (c) 2 Bott, S; S Bulstr. 358.
889. (<0 9 Bott, 4.
{h) 4 D. & a. 467.
g2
84 CASES IN THE KING's BENCH,
18^9. constrained, would have been deemed in law a residence in
JI^^'C^ Martlesham : and the mother's removal to Stiitton had the The King ^ ^ . , , , . •
17. same effect, for it was made by an order of magistrates over
Maetlesham. ^j,Qnj (1,^ parish of Playford had no control, and who sent the mother to that place in which she then appeared to them to be legally settled. The cases of Much Walt ham V. Peram{a) and Westbury v. Cost on {b) do not affect the present question, because they only decide that if a woman be delivered of an illegitimate child pending an order of removal which is afterwards quashed, the child is not settled in the parish in which it was born ; they do not decide that the child is settled in the parish from which the mother was removed, if that parish is not the place of her settle- ment. In the first of those cases the mother's settlement was in Much Waltham ; in the other, it does not appear from the report whether the mother's settlement was in Westbury or not.
W. E, Taunton, contrd. If the parish officers of Play- ford had used due diligence they might have discovered that the mother's settlement was in Martlesham, and have re- moved her thither before the birth of the child ; instead of which they wrongfully removed her to Stutton, where she continued until the child was bom and the appeal deter- mined. The mother's residence in Stutton therefore, being the consequence of a wrongful removal, must, by construc- tion of law, be considered as a residence in Playford, and the child must be considered as having been born in Play- ford, and, consequently, as settled there. At all events the removal of the pauper to Martlesham is illegal, for he is clearly not settled there, because being illegitimate he cannot derive any settlement from his mother.
Lord Tenterden, C. J. — It is sufficient for present purposes to say that the removal to Martlesham cannot be supported. A bastard cannot acquire a settlement by parent- (a) 9 Salk. 474. (b) S Salk. 532.
MICHA£LMAS TKRM, X GEO. IV. 86
age, therefore the pauper was not legally settled in Martle- 1829. sham. The order of sessions must be quashed. ^, ^
V,
The other judges concurred. Mahtlesham.
Order of Sessions quashed.
Mason v, Wallis.
This was a rule nisi for an attachment for not performing When a cause an award. It appeared that by a judge's order dated igth a judge's or-
JuDC, 1B22. all matters in difference in the cause were re- der, empower-
logthe arbitra- ferred to an arbitrator, so as he should make his award in tor to enlarge
writing on or before the 1st day of July then next, or on or ghLfapp^t^
before such further or ulterior day as he should appoint in ond a judge
writing under hia hand, to be indorsed on that order, and ^n eolane^
tht Cotirt of King's Bench or a judge thereof should order* "^?* hy the
All the costs were to abide the event of the award. The aloDeisirregu-
arbitrator, by indorsement on the order dated 29th June, ^"* *?*^ *"? ' -^ . . ' aivardmaae
1822, enlarged the time until the 6th November then next, after such en* Bj a second indorsement dated 6th November, 1822, he J^^^™®"'** further enlarged the time until the 23d January then next.
By a third indorsement dated 2Sd January, 1823, he fur- ther enlarged the time until the l6th April then next. The last meeting before the arbitrator was on the 7th April,
1823. By a fourth indorsement dated l6th April, 1823, he further enlarged the time until the 1st June then next. No judge's order was obtained in respect of any of these enlargements. The arbitrator made his award on the3J8t May, 1823, ordering the defendant to pay the plaintiff 11/. 6s. 7d, in full satisfaction of all demands. The award recited the order of reference, but did not recite any of the enlarge- ments. The plaintiff proceeded to make the judge's order a rule of Court, and the several indorsements were made part of the rule. The plaintiff then taxed his costs, and demanded of the defendant the sum awarded, and the taxed costs ; and payment being refused, he obtained this rule for Vk attachment.
86 CASES IN THE KING's BENCH,
1829. Barstow shewed cause. The award was not made id
due time, for the enlargements of the time were not made in the mode prescribed by the order of reference. By the terms of that order the arbitrator was to make his award within a certain limited time, or such further time as he should appoint in writing, and the Court or a judge thereof should order. Two things, therefore, were necessary to the validity of any enlargement of the time, first, the arbi- trator's appointment, and secondly, a judge's order; and one of these being wanting, the award is a nullity. In Rdd V. Fryatt (a), where the terms of the order of reference were the same as here, it was held that the time was duly en- larged by the arbitrator's indorsing on the order, on the day preceding the expiration of the original time, that he re- quired further time, although the judge's order granting further time was not obtained until a subsequent day. But there a judge's order was obtained before the award was made, and it was assumed that without such an order the award would have been bad ; here no judge's order was ever obtained. Lawrence v. Hodgson {b) will be relied on by the other side, where it was held, that an objection that the time for making an award has not been duly enlarged, is waived by the proceeding in the reference, with a knoto^ ledge of that fact But here there is nothing to shew that the defendant knew of the irregularity in making the en- largements, and besides, there was one enlargement made after all the meetings before the arbitrator had taken place. This last fact is sufficient to shew that at the time when the award was made the arbitrator had no authority: George v. Lousley {c), Davis v. Vass{d), Wohlenberg v. Lageman (e), Hallden v. Glasscock (f), and Dickins v. Smith (g).
(a) 1 M. & S. 1. And see Good (e) 6 Taunt. 951.
V. WUks, 2 Tidd, 881. (/) 8 D. & R. 151 ; 5 B. & C.
(6) 1 Y. & J. 16. 390.
(c) 8 East, IS. (^) 8 D. fit R. 285; SB. fie C.
(</) 15 East, 97. 528.
/
MICHAELMAS TERM, X GEO. IV. 87
Hutchinson, contrd. The defendant is estopped from 18^9. teking this objection, because his attendance before the arbitrator after the time had been enlarged, amounted to an admission that the enlargements were duly made, and that the arbitrator had authority to act after an enlargement made by himself alone; Lawrence v. Hodgson {a). The rule of Court embodies all the enlargements, therefore the Court will presume that when that rule was granted proper evidence of the enlargements having been duly made was laid before them, for the defendant has not sworn that no judge's order was made. Against such an objection as this the Court will presume every thing, and at least will presume that the order of reference was not made a rule of Court without sufficient evidence of proper enlargement ; Dickmsv.Smiih(,b).
Batley, J. (c). — I think the objection is fatal, and that the defendant is not estopped from taking it. Assuming that he waived the objection by attending before the arbi- trator, still that waiver would extend only to prior enlarge- ments, and there was one enlargement here after all the attendances were over. The arbitrator, therefore, had no authority at the time when he made the award. We cannot presume that judge's orders for enlargement were obtained merely because the order of reference was made a rule of Court. Indeed, the presumption is the other way, for if such orders had been produced, the rule would have been drawn up '' on reading'' those orders as well as the arbi- trator's indorsements.
LiTTLEDALE, J. and Parke, J. concurred.
Rule discharged.
(«) 1 Y. & J. J 6. (c) Lord Tenterdeny C. J. was
(6) 8 D. & R. 285 ; 6 B. & C. absent from indisposition. 52H.
88 CAS£S IN THE KING's BENCH,
y,^^^^ Pease and others^ surviving Partners, v. Hirst and others.
A.fgtLve his ASSUMPSIT on a promissory note, dated 6th January, bankers, as a 1817, whereby defendants jointly and severally promised to advances, a pay on demand to plaintiffs and R. Harrison, or order, 300/., liraiid^B.^*^^ with interest. Pleas, non assumpsit, and the Statute of jointly and Limitations. At the trial before Bai/ley, J., at the York- promised to ^^^^^ summer assizes, 1828, the case was this: — In January,
pay on demand 1817, the plaintiffs and JR. Harrison, since deceased, car- lo the bankers . tt , m. or order 300/., ned on busmess m partnership as bankers at Hull. 1 he
Th*^b°^k^^^ defendant Hirst had for some years kept an account with credited A. them as his bankers, and at that time, for the purpose of amount^f the obtaining credit with them, he prevailed upon the other note, and defendants to join him in making the note in question. The yearly with ^^^^ ^^^ delivered to the bankers, who thereupon credited interest. Up- fji^st for 300/., and debited him yearly with interest on on a change » ^t .. 1 . • •«•
in the firm that amount. In November, J 820, two of the plaintitis
of the bankers rgji^ed from the partnership, when a balance was struck
the note umn- ^ '^'
dorsed, was, between the old firm and the new, and Hirst^s account was
count trans" transferred in the books from the old firm to the new. The
ferred to the note was at the same time delivered to the new firm, but
one time -4. was not indorsed to them. In December, 1821, Harrison
had a balance died, and the account was again transferred to the new firm
in the bankers* . / ** . , . •
hands exceed* as before. The surviving partners continued in the business
L^the^^ote ""' ^^^" *^ ^^^ ^™^ "^^^^ ^^^ ^^'^^" ^^* brought, but in the A. paid inte- interval two new partners were admitted, upon whose ad- note^vearly to mission Hirst^s account was again transferred, as on former thenewnswell occasions. At one period the balance of accounts was ia Held, first, Hirst's favour to the amount of nearly 700/., but that did
that the note, ^^^ appear to have been a cash balance. Hirst was debited bemg a con- ' *^
tinning secu- rity, might be enforced, notwithstanding the change in the banking firm.
Secondly, that the note not having been indorsed, the original payees (or the sarvi- ▼ors of them) were the proper persons to sue upon it.
Thirdly, that the note was not discharged by AJs having at one time in the bankers' hands a balance exceeding its amount.
Fourthly, that payment, within six years, of interest on the note by A. took the note out of the Statute of Limitations as to B.
MICHAELMAS TERM, X GEO. IV. 89
with interest upon the note by all the diiferent firms down 1829. to the year 18244 and he regularly allowed the same in his account. It was contended on the part of the other de- fendants, first, that they being merely sureties for Hirst, their liability had shifted with every change of the firm, and that they were now liable only to the persons constituting the last new firm, and not to the plaintiffs who constituted the original firm, which had long ceased to exist: and secondly, that as between the plaintiffs and those defendants as sureties, there was no payment of interest within six jears to take the case out of the statute of limitations, such payment having within that time been made, not to the plaintiffs who were the original payees, but to the different persons constituting the firm at the time of such payment. The learned judge overruled the objections, but reserved the points, and the plaintiffs had a verdict, with liberty for the defendants to move to enter a nonsuit. A rule nisi having been afterwards obtained accordingly,
Scarkii, A. G., now shewed cause. First, the defend- ants are liable to the present plaintiffs. The plaintiffs are the surviving payees of the note, they have the legal interest in the note, and are the persons entitled to sue upon it. The fact that Hirst had at one time in the hands of the bankers a balance exceeding the amount of the note, did not operate as a discharge of the note. It did not appear that that was a cash balance; but assuming that it was, the bankers were not bound in law to apply it in discharge of the note, and in fact they never did so. Nor was it intended that they should do so; the evident intention of all parties was, that the note should remain in the hands of the bankers as a subsisting security for all advances which they should from time to time make to Hirst. If Hirst had intended that balance to have been applied in discharge of the note, he would have specifically appropriated it to that purpose; and, in the absence of any specific appropriation, the bankers were entitled to apply the balance to a different
CASES IN THE KINGS BENCH,
purpose : Bosanquet v. Wray (a), Brooke v. Endtrhy (6). Secondly, the payment of interest upon the note was suf- ficient to take the case out of the Statute of Limitations. To this objection the late case of Burleigh v. Stott (c) is a complete answer; for it was there held, that a payment of interest by il. on the joint and several note of A. and B., is evidence of a promise by B*, and takes the note out of the Statute of Limitations, though JB. was a mere sure^, and the payment was made without bis knowledge.
F. Pollock, contrsi. The note was dated in January* 1817> and was given to the persons who then constituted the banking firm. When that firm ceased to exist, the liability of the maker to the original payees ceased also, and the note became the property of the successive firms to whom it was from time to time transferred. It was so treated both by the bankers and by Hirst* The property in the note, therefore, is in the persons constituting the present firm, and they are the only persons entitled to sue upon it. Three of the defendants are mere sureties, and all that they did was to agree, in January, 1817f to gua- rantee to certain persons then constituting the banking firm, the payment of 300/. advanced by that firm to Hirsi. [Bayley, J. They do not appear on the face of the note to be sureties.] They were such in fact, and the form of the note cannot vary the nature of the contract* The note is payable on demand, which in a case like this ia the same as if it had been payable one day after date. The sureties could not mean, by signing a note payable instanter, to take upon themselves a responsibility extending over a period of ten or twelve years ; and at any rate the bankers were bound, in favour of the sureties, to apply the first available balance in their hands belonging to Hirst in discharge of the note : ClaytorCb case (d), Bodenham v. Purchas (e),
(a) 6 Taunt. 597 ; 2 Marsh. 31 9. (c) Ante, ii. 93 ; 8 B. & C. 36.
(6) 4 Moore, 501 ; 2 Brod. & \d) 1 Meriv. 692.
Bingh.70. (e) 3 B. fir A. 39.
MICHAELMAS TERM, X GEO. IV. 91
Simson v. Ingham (a). With respect to the Statute of i829.
limitations, the evidence furnished no answer to that plea.
As against the plaintiffs the statute must be taken to run
from the date of the note« it being payable instanter; and
payment of interest by Hirst within the last six years to
other persons, is no acknowledgment of a debt due to the
plainti£& from the three defendants, who are mere sureties.
The payments of interest by Hirst were made generally on
account of his fluctuating debt owing to the bankers, and
were made, not to the plaintiff's, but to the persons who
from time to time constituted the banking firm.
Bayley, J. (ft). — I am of opinion that the verdict found for the plaintiff? is right,, and ought not to be disturbed. The action is brought upon a promissory note, and the first objection is, that three of the four defendants having joined in that note as sureties, to a banking firm then consisting of the plaintiffs and one Harrison since deceased, their liability has ceased by the subsequent change in the firm. Assuming that those defendants are. mere sureties, the question still remains whether they have restricted their liabiiity to a limited time and to particular parties. A swety, party to a bond or note, may confine his responsi- bility to a particular period and particular persons; but a surety bond or note may be so framed as to comprehend ao unlimited time, and future as well as present parties. In the present case no restriction either as to time or parties is apparent upon the face of the note* None of the makers have placed themselves in the place of sureties ; on the contrary^ the form of the note shews them all to be prin- cipals, and not to have confined their liability to the then existing firm, for the note is made payable to the plaintiffs, or order. This shews clearly that the note was intended by all parties to subsist from time to time as an available security to such persons as should constitute the firm, and
(«) 5 D. & R. S49; 3 B. & C. 65.
(^) Lord Tenterdetif C. J., was absent, from indisposition.
92 CASES IN THE KING's BENCH,
1829. supplies an answer to this objection. The next objection is« that the note was discharged by a balance belonging to Hirst, which at one time came into the hands of the bankers, because^ it is argued, the plaintiffs are bound to consider the debt owing upon the note as liquidated by that balance. Now it does not appear that that was a cash balance ; but if it had been, the bankers would not have been bound to apply it in discharge of the note, because Hirsi never specifically appropriated it to that purpose. Besides, it would have been directly contrary to the inten- tion with which the note was given, that it should be dis- charged by the first money belonging to Hirst which came to the hands of the bankers, for the object was, that Hirst should from time to time have advances from the bankers, and that the bankers should hold the note as a subsisting security for those advances. If the parties who were in substance, though not in form, sureties, had called upon the bankers to apply that balance in discharge of the note, they would, perhaps, have been bound so to apply it; but no such call was ever made. A third ground of objec- tion is, that the action is not maintainable by the present plaintiffs. It was in evidence that several changes in the firm took place, and that upon each change the note was transferred in account from the old firm to the new, and that Hirst from time to time paid interest to the successive firms, as upon a debt owing to the persons successively constituting the firm. It is argued that the property in the note, both in point of law and by the understanding of all parties, had passed to the last new firm, and that the persons constituting that firm were the only persons entitled tp sue. It seems to me, however, that the action was properly brought in the names of the partners to whom the note was given. They were the original payees; the legal interest in the note originally vested in them; and it was never divested out of them. The note was made payable to them or order, and if they had indorsed it to the new firms, the argument on this point would have been good.
MICHAELMAS TERM, X GEO. IV.
and the action must have been brought in the names of the indorsees; but not having been so indorsed, the action could only be brought in the names of the original payees, for the benefit of the parties interested. The last objection is founded upon the plea of the Statute of Limitations, in respect of which it is said, that as to the three defendants^ who are mere sureties, there was no acknowledgment of the debt within six years. But it was proved that interest upon the debt had been paid within that time by one of the four persons jointly liable; and it is clear upon the authority of the case cited for the plaintiffs (a), and other cases, that that payment operates as an acknowledgment of the debt by all the parties, and takes the case out of the statute as to all. Upon these grounds I am of opinion -that the verdict found for the plaintiffs is right, and that the role for entering a nonsuit ought to be discharged.
LiTTLEDALE, J. — I am entirely of the same opinion. It is clear that payment of interest by Hirsi, one of the jcMQt promissors, takes the case out of the Statute of Limi- tations as to all. All the defendants, therefore, are liable; and thej are liable to the present plaintiffs. The firm, indeed, was changed from time to time, and the securities beloogiog to the old firm were transferred to the new; but still the persons entitled to the legal interest in those secu- rities miist sue upon them, and those persons, as regards the note in question, are the plaintiffs. Suppose a bond instead of a note had been given, as a security for advances, to the firm as originally composed, as well as to any persons who might afterwards be added to it ; the proper persons to sue would be the surviving obligees. It is insisted that the note must be considered as discharged, by the circum- stance of the bankers having at one time struck a balance which was in favour of Hirst, Now it was plainly not the intention of the parties to consider the note as satisfied as
(«) Burleigh v. Stott, anle, ii. 93; 8 B. & C. S6. And see the cases there cited.
94
iee9.
CASES IN THE K^ING S BENCH,
80on as there should be a balance of equal amount in the hands of the bankers; the intention was, that the note should be a continuing security for advances to be made from time to time. It is made payable on demand, and to order. There was, therefore, no legal obligation on the bankers to appropriate that balance to the discharge of the note; and there having been no appropriation by the debtor, I think the debt cannot be considered as discharged.
Rule discharged (a), (a) Parke, J., having been of counsel in the cause, delivered no opinion.
An indenture of apprentice- ship to which pansh officers are parties, is valid if allowed by two justices under their hands only, though ex- pense be incur- red, but not clandettvnely, by the parish funds, under 56 Geo, 3, 0.139, ss. 1 to 10.
S. 11 of that act, which requires an allowance by two justices under their hands and seals, applies only to cases where expense is incurred by the parish funds, the pa- rish officers not
The King v. The Inhabitants of St. Paul, Exeteb. '
Two justices, by their order, removed Jane Bishop, single woman, from the parish of St. Paul, in the city and county of Exeter, to the parish of Tedbum St. Mary, in the county of Devon ; and the sessions, on appeal, quashed the order^ subject to the opinion of this Court upon the following case : —
The pauper, Jane Bishop, was, in the year 1818, bound an apprentice by the parish officers of Tedburn St. Mary to one H. Belworthy. The indenture by which she was bouud was made in pursuance of a previous order of two justices, to which reference was made by its date, and was duly eze« cuted by the said parish officers and by the master, ^n allowance of the same was written at the foot thereof, which was signed by two justices, but was not under seal. On occasion of this binding an expense of \7s, was incurred by the public parochial funds of the parish of St. Mary, namely, 75. as the costs of preparing the indenture, and 10s. which were given to the master with the pauper. Xhe pauper resided in the parish of St. Mary under this inden- ture for about four years, being parties to the indenture.
MICHAELMAS TERM, X GEO. IV.
Cratoder, in support of the order of sessions. The in- denture of apprenticeship in this case was one by reason of j^^ ^^o which expense was incurred by the public parochial funds, J.
and which ought to have been approved of by two justices Exeter.' tmder their hands and seals, within the express words of the statute 56 Geo. 3, c. 139i s. 11. Its approval by two justices was not under their seals, for which defect the sessions quashed the order of removal, as they were bound to do. The section referred to recites, that the salutary provisions enacted by the 43d of Elizabeth were frequently evtded in the binding out of poor children, and the premium of apprenticeship, or a part thereof, was clandestinely pro- vided by parish officers, who were thus enabled to bind out such poor children, without the sanction of justices; and enacts, ** that no indenture of apprenticeship, by reason of which any expense whatever shall at any time be incur- red by the public parochial funds, shall be valid and eifec- tual, unless approved of by two justices, under their hands snd seals, according to the provisions of the said act (43 EHzabeth) and of this act." The words of the enactment are undoubtedly more extensive in their import than those of the recital, and they were considered to be so, and full operation was given to them, by Bay ley, J. in Rex v. Mat- tishall (a). It is true that the first ten sections of this sta- tute apply to parish indentures, and require only that the allowance of those indentures shall be signed by two justices. But that cannot restrain the operation of additional words in the eleventh section, and that in express terms requires that every indenture by reason of which expense is incurred by the public parochial funds, shall be allowed by two jus- tices under their hands and seals. The object of the eleventh section was to place ail parish bindings under the superin- tendence and direction of two justices. There is nothing contradictory between that and any of the preceding dauses ; the one is cumulative upon, not inconsistent with the others. But independently of this, the words of the (a) Ante, iii. 386; 8B.&C.735.
96
1829.
The Kino
St. PAU^ Exeter.
CASES IN THE KINO S BENCH,
eleventh section are plain, express and positive^ and cannot be restricted in their fair operation^ Rex v. Stoke Da-- marel{a); where it was held that an indenture, in respect of which expense was incurred by the parish, must be al- lowed by two justices under their hands and seals, though the parish officers were not parties to it: and where Bay- ley, J., speaking of this section, said, " I do not know how to get over the words of this clause of the act of parlia- ment; they are plain and unequivocal: and I shrink from adopting a rule of construction with respect to them, which would have the effect of deciding that the legislature did not mean that which they have expressed" (6). IParke, J. In that case the binding was one clearly within the recital of the eleventh section ; Rex v. Maitishall (c) only shews that the enactment extends to cases ejusdem generis with those mentioned in the recital : in the latter case the parish officers did not provide part of the premium, but furnished money to purchase clothes for the apprentice.] Cases may come within the enactment which are not mentioned in the recital : the argument on the other side must be that the enactment is controlled and limited by the recital.
Coleridge^ contr^. The cases which have been cited do not apply to the present, because there the parish officers were not parties to the indenture, here they are. This is a parish indenture, and the question is, whether such an indenture must be allowed under seal by 56 Geo. 3, c, 139> s. 1 1 ; a question certainly not decided in either of the cases referred to. The mischief intended to be remedied by that statute was the improper apprenticing of poor children, and the remedy suggested is the securing in all cases the con- trol of two justices. The mischief extended to two cla.sse8 of apprentices, first, parish apprentices, or children entirely and exclusively bound out by parish officers ; and, secondly^ apprentices really bound out, wholly or in part, by parish
(a) Ante, i. 458; 7 B. & C. 563. (c) Ante, iii. S86 ; 8 B. & C. 73S. {b) Ante,'i. 466,
The KiMG
MICHAELMAS T£KM» X GEO. IV.
officers, but tiaminally by their parents or themselves, so as to evade the provisions of the statute of' Elizabeth. To the first of these classes the first ten sections of the present v,
statute apply; to the second, the eleventh section. The Exeter!' first and second sections direct in what manner parish ap* prentices shall be bound, and one of the directions is that the allowance of the indenture shall be signed by two jus- tices. The fifth section provides that no settlement shall be gained, unless the allowance of the indenture shall be signed as before directed. The sixth section imposes a penalty on the parish officers and the master, whenever a parish apprentice is bound without the allowance before directed. Looking at these two sections together, it is obvious that the same default is made the ground of avoid- ing the settlement on the one hand, and imposing the penalty on the other^ namely, the binding the apprentice without an allowance signed by two justices. But looking at the fifth section alone the inference clearly is, that where the directions there referred to are complied with, a settle- ment will be gained, that is, where the allowance is signed, and signed, only, by two justices. [Bayley, J. In this case expense has been incurred by the parish ; does not that bring it within the operation of the eleventh section?] It is submitted that it does not, because this is strictly a parish binding, to which that section does not apply. In Rex vj Bawburgh(a), which was the case of a parish binding, and where the indenture was held to be invalid under the first and fifth sections of the statute, Bayley, J. is reported to have said, " I doubt whether the eleventh section applies to such a case as the present, or whether it applies only to such cases where the binding is by the parents, and not by the overseers" (6). Indeed that section seems to have been introduced for the very purpose of meeting those cases in which the parish officers are not the parties binding; and here they are the parties binding. [Litiledale, J. Still there has been expense incurred by the parochial funds.] But not
(fl) 3 D. & R. 338; 2 B. & C. 222. (ft) 3 B. & C. 225.
VOL. V. H
98 CA8ES IN THE KINg's BENCH,
18^9. clandestinely^ The recital q{ the eleventh section speaks of J^I^^J^^^ *-' premiums clandestinely provided by parish o65cers." The ^. enactn^ent speaks of '* expense incurred by the public pare*
•^. Paul, ^j|,ij|| funds." Construing both together, and at least the recital is td be considered as the key for the proper con- struction of the enactment, the latter must be taken to mean " ei^pense clandestinely incurred." Now the sessions have not found that the money was advanced clandestinely in this case, and the Court will not presume fraud.
The case was argued at the sittings in Banc after the last term, when the Court took time for consideration^ Judgment was now delivered by
Bayley, J., who, after recapitulating the £scts of the case, proceeded to the following effect : — It was insisted that the fact of expense having been incurred by tfae public parochial funds brought the case within the operation of the eleventh section of the statute, the 56 Geo, 3, c. 139* Undoubtedly, if that section extends to cases where the binding appears, upon the face of the indenture, to be by the parish officers, the indentui^ now in question would be void for want of the seals of the justices. If, on the other hand, it applies only to cases where, the parish officers are not parties to the indenture, but where some part of the expense attendant upon the binding is paid out of the public parochial funds, the converse would be the result. After a careful consideration of the statute, and conferring with my Lord Tenierden, vfho concurs in the judgment I am about to pronounce, we are of opinion that the first ten sections are confined to cases where the parish officers are parties to the indenture of apprenticeship, and that the eleventh section is confined to cases where the parish officers are not parties to the indenture, but where expense is incurred by the public parochial funds. That this ia the true meaning of the eleventh section appears to us* to be evident from the use of the word '* clandestinely" in the preamble of that section. The mischief recited in that
MKHAZLAAS term, X GEO. 1 VX 99
preamble is, that the premium of apprenticeship, or a part ^S^- thereof, was clandestinely provided by parish officers, who r^^ ^iiYiG were thus enabled to bind out poor children without the ' v. ^ sancdon of justices; and, for remedying that mischief, the ExbterT enacting part of the clause provides, that no indenture, by reason of which any expense shall be incurred by the public parochial funds, shall be valid, unless approved of by twp justices under their hands and seals. The first ten sections, which evidently apply only to bindings by parish officers, require diat the indenture shall be approved of by two JQStices, under their hands only* Parish officers cannot be said to provide the premium clandestinely where they are parties to the indenture; therefore, the eleventh section can apply only to cases where they are not parties to the indenture, but where they do provide the premium, or i
some portion of it. In this case the parish officers were parties to the indenture, which, therefore, is one regulated by tfae first ten sections of the statute ; and the allowance of it being signed, though not sealed, by two justices, it is a vafa'd indenture, and the pauper gained a settlement by service under it in the parish of Saint Mary. The order o/ sessions must consequently be quashed.
Order of Sessions quashed.
h2
100 CASES IN THE KING's BENCH,
^'^^'^ The King v. The Oxford Canal Company.
ciniuct^S? ^^ * ""^^ ™*^^ ^^^ ^^^ relief of the poor of the parish of proprietors Foleshill, in the county of the city of Coventry, the Oxford ed to uke a Canal Company were rated for their messuages, buildings, mileap ton- stop-land, towing-path, and that part of the canal lying and other within the said parish^ and for the tolls, duties, and ton- p>ods, except- u^ges arising therefrom, estimated as of the annual value two miles, in of 9,0001., at 100/. On appeal, the sessions confirmed the whidb the pro- ^^^' subject to the opinion of this Court upon the follow- prietorsofthe ing case: — Canal were ^J ^ G^o. 3, c. 70, the appellants were empowered to
authorised to make and maintain a navigable canal from the Coventry
take all dues ...
payable under Canal Navigation to the city of Oxford. The appellants
uhat act "J^* are the owners and occupiers of the canal which has been
from the made by virtue of this act. The length of the canal is as
Oxford Canal ^ n ^ithinthose follows:—
two miles. From the northern extremity at Longford, where it joins act the pro- ^^^ Coventry Canal, to Braunston, the point of union with W^^^c^ ^\ ^^^ Grand Junction Canal, is thirty-four miles seven eighths, were authoris- From Braunston to Napton, the point of union with the di^pa^aWe Warwick and Napton Canal, is seven miles, under the From Napton to Oxford, the southern extremity, is forty- Caned act, ^^^^ miles one eighth; and the total length of the Oxford
for all goods, Canal is ninety-one miles, except coals, carried upon
the Oxford Canal, and afterwards upon the Coventry Canal, within three miles and a half of the point of junction of the two canals. That point of junction was in parish F., which contained one mile nine hundred and sixt^-tnree yards of the Oxford Canal, part of the two miles before mentioned, and two miles and a quarter of the Corentiy Canal, part of tfae three miles and a half before mentioned.
By the Grand Junction Canal act, reciting that that canal might be injurious to the proprietors of the Oxford Canal, and that compensation should be made to them for such injury, they were authorised to take 2<. 9d, per ton for all coals passing from the Oxford Canal into the Grand Junction Canal, without regard to tlie distance they might pass on the Oxford Canal; and 4s. Ad. per ton for all other goods passing from any canal into the Oxford Canal, and from thence into the Grand Junction Canal, or vice yersft, without regard to the distance they might pass on the Oxford Canal:—
Held, that the proprietors of the Oxford Canal were ratable in parish F. for all the dues received by them, in the proportion in which they were severall^y earned in that parish, but that, in 6xing the rate, all the expenses incurred in maintaining the part of the canal situate in that parish must be first deducted from the total amount of dues received.
H^ICRAELMAS TERM, X GEO. IV. 101
B; the said Oxford Canal act the company are empow- 1829. ered to levy a mile tonnage for coals and other merchandises xh K no carried upon this canal, which they levy accordingly, except^ v.
xng only that they are not to take a tonnage upon coals for a Cana^l^ distance of' two miles, measured from Longford towards Compast. Braunstofi, respecting which it is enacted as follows : — " Provided nevertheless, and be it further enacted, that it diall be lawful for the company of proprietors of the Coventry Canal Navigation, their successors and assigns, iirom time to time and at all times hereafter, to take and receive all the rates and duties payable by virtue of this act for all coals that shall be carried or conveyed from any part or parts of the said intended cut or canal, within two miles from the junction thereof with the Coventry Canal at Longford aforesaid; which said rates and duties so to be collected and received, shall be and are hereby vested in the said company of proprietors, their successors and assigns, and shall and may be collected and levied by them in such manner, and with such and the like remedies and [x>wers for collecting and levying thereof, as any rates or duties granted by this act can or may be collected or levied, and the same, when received, shall be applied and disposed of to and for the same uses, intents and purposes, as the several rates and duties granted by an act of 8 Geo. 3, enti- tled, 'An Act for making and maintaining a Navigable Canal from the City of Coventry, to communicate upon Tradley Heath, in the County of Stafford, with a Canal now making between the Rivers Trent and Mersey,' are thereby directed to be applied and disposed of, and to no other use or purpose whatsoever; and that it shall be lawfttl for the said company of proprietors of the navigation intended to be made by virtue of this act, to take all the rates and duties payable by the said recited act, for all goods, wares and merchandises, except coals, which shall be navigated, carried or conveyed upon any part or parts of the said canal intended to be made by virtue of this act, and afterwards upon the said Coventry Canal, within three
IIQ2 CASES IK THE KIXG's B£MCH»
18S9. .JDiles and a half of the junction of the two canals at Long
TheKiira ^^^* towards Coventry; which said last-mentioned rates
V. .and duties so to be collected and received, shall be and are
Canal^ hereby vested in the said company of proprietors of the
CovPAWY. Oxford Canal Navigation, their successors and assigns, and shall and may be collected and levied by them in sach manner, and with the like remedies and powers for collect- ing and levying thereof, as any of the rates and duties directed to be paid by the said recited act can or may be collected and levied, and the same, when received, shall be applied and disposed of to and for the several uses, intei^ and purposes, as the several duties granted by this act are directed to be applied and disposed of, and to and for no other use or purpose whatsoever; any thing contained in the said recited act or this act to the contrary notwith- standing/'
The said recited act of 8 Geo. 3, imposes a mile tonnage pn coals and all other merchandises passing along the Coventry Canal.
The point of junction of the Oxford and Coventry Canals is in the respondent parish, which parish contains one mile nine hundred and sixty-three yards of the Oxford Canal, being part of the two miles above mentioned, and also two miles and a quarter of the Coventry Canal, being part of the three miles and a half above mentioned. The com- pany of proprietors of the Oxford Canal are neither owners nor occupiers of any part of the Coventry Catial.
The Oxford Canal Company are further entitled to certain compensation tonnages, by virtue of the Grand Junction Canal act/ 33 Geo. 3, c. 80, which enacts as follows : — ** And whereas it being apprehended that the making of the said intended canal will be injurious to the compamy of proprietors of the Oxford Canal Navigation; it ia agreed that the compensation hereinafter mentioned shall be made to them as an indemnification against such itguty : Be it therefore enacted, that instead of the tolls, rates and duties which would have been payable to the company of proprte-»
MICHAELMAS T£RM^ X G£0. IV. 108
tors of the tmid Oxford Canal Navigation, by virtue of I8i9.
certun acta of 9« \5, and 26 Geo. 3, for making and main- .^iT^^T^
^ The Kino
Umuig the aaid Oxford Canal Navigation, or any of them, v.
for or in respect of the coals, goods, and other things here- c^al
iotfter mentioned and made chargeable with certain rates Compast.
to the company of proprietors of the said Oxford Canal
Nav^atiott^ in case no alteration had by this act been made
IB the tbUs, rates and doties payable to them, it shall be
lawful for the company of proprietors of the said Oxford
Caaal Navigation to take for their own proper use and
behoof the respective rates hereinafter mentioned ; that is
l9 say» for ail coats that shall pass from the said Oxford
Canal into or upon the said intended canal, the snm of
2$. 9d. a ton, and so in proportion for a less quantity than
a ton, without any regard to the distance the same shall
pias on the said Oxford Canal ; and for all other goods,
wares, merchandises and things which shall pass from any
navigable canal into or upon the said Oxford Canal, and
from thence into or upon the said intended canal, or from
the said intended canal into or upon the said Oxford Canal,
aod from thence into or upon any other navigable canal,
except lime and limestone, and also except all such articles
and things as are at present exempt from the payment of
any tolls, rates or duties to the company of proprietors of
the said Oxford Canal Navigation, the sum of 4s. 4d. a ton,
and so in proportion for a less quantity than a ton, without
any regard to the distance the same shall pass upon the
said Oxford Canal."
The Oxford Canal Company are further entitled to tolls, by the folbwii^ clauses of the Warwick and Napton Canal act, 34 Geo* 5, c. 38 : — " And whereas the making the said intended canal may be injurious to the company of pro- prietors of the Oxford Canal Navigation, unless provision be made for preventing any such injury : Be it therefore enacted, that it shall be lawful for the company of proprie- tors of the said Oxford Canal Navigation to ask, demand, take and receive, to and for their own proper use, over and
The Kino
V.
Oxford Canal
COMPANT.
CASES IN THE KINGS BENCH/
above all the rates of tonnage or duties which they are or shall be entitled to for or in respect of any coals, goods and merchandises, or other things navigated or passing in or upon any part of the said O&ford Canal, by virtue of any acts of parliament now in force, except as hereinafter is excepted, the rates or duties hereinafter mentioned; that is to say, for all coals which shall be navigated out of the said intended canal into the said Oxford Canal, the sum of 2s. 9d, a ton, and so in proportion for a less quantity than a ton; for all goods, wares, merchandises and things (except lime and limestone and manure) which shall be navigated out of the said intended canal into the said Oxford Canal, or out of the said Oxford Canal into the said intended canal, (except such as shall be bon& fide navigated from the Coventry Canal,) or from any intermediate place between the said Coventry Canal and the said intended canal, into the said intended canal, the sum of 4s. 4d. a ton, and so in proportion for a less quantity than a ton." . The Oxford Canal Company are rated in the parish of Foleshill in the aforesaid sum of 2000/., in manner follow- ing:—
£. i.d.
1. For tlie mile tonnage payable to the Oxford Canal Com- pany for merchandises (not being coals) passing along the Oxford Canal, in the parish of Foleshill, for as far as such merchandises pass in that parish 450 0 0
2. For the mile tonnage payable to the Oxford Canal Com- pany in respect of tolls collected on the Coventry Canal, in the proportion of one mile nine hundred and sixty- three yards to two miles 6000
3. For such a proportion of the compensation tonnage pay- able to the Oxford Canal Company under the Grand Junction Canal act, for merchandises (not being coals)
. passing from the Coventry Canal along the Oxford Canal into the Grand Junction Canal, and vice versd, and con- sequently through the parish of Foleshill, as one mile nine hundred and sixty-three yards bears to thirty-four miles and seven eighths 900 0 O
Carried forward .... 1410 0 O
The KiHG
V.
MICHAELMAS T£RM^ X GEO. IV.
Brought forward . .. . £1410 0 0 4. For the same proportioD of the compensation tonnage for coals passing along the same portion of the Oxford Canal
from the Coventry Canal into the Grand Junction Canal, 1090 0 0 Oxford
Canal
2500 0 0 COMPAMY.
From this sum of 2500/. a deductiob of 20/. per cent, has been made, as the reasonable profit of a supposed lessee, 500 0 0
£2000 0 0
Wbich leaves the sum of £000/. as the supposed rental of the above-mentioned tolls, and upon which the rate has been made. The mile tonnage payable to the Coventry Canal Company, for coals passing along the Oxford Canal, in the parish of Foleshill, is 350/. The parochial rates on landed property in Foleshill, payable by the occupiers, are all shillings in the pound on the amount of their actual rents. The sum which the Oxford Canal Company receive vpon all their compensation tonnages, taken in the propor- tion of one mile nine hundred and sixty-three yards to ninetjH>ne miles, is 1000/.; the expense of collecting the tolls for which the company are assessed is 6/. per cent. The annual repairs of the canal in the parish of Foleshill amount to 20L The annual repairs of the whole canal amount to 4000/. The expense of works, (such works not heing situated at Foleshill,) by which that part of the canal which lies in the parish of Foleshill is supplied with water, amounts to 100/. The works by which that part of the canal which lies in the parish of Foleshill is supplied with water, supply the canal for a distance of forty miles. The total amount of the tolls collected on the canal is 50,000/. The tolls payable throughout the said distance of forty miles, estimated on the principle of the assessment in the parish of Foleshill, amount to 95,000/. The questions for the consideration of this Court are.
First, For what tolls, and for what proportions of such tolls, are the Oxford Canal Company ratable in the respon- dent parish ?
Secondly, To what deduction are the Company entitled.
106
lSft9.
The KiMG
Oxford Caital
(kMfPAHY.
CAS£S IN THE KING S BENCH,
to place them on an equal footing with the other occupiers of land in the same parish ?
The rate is to be amended accordingly.
Amos, in support of the rate, and of the order of sessions. First, the Oxford Canal Company are ratable ** for the mUe tonnage payable to them for merchandises (not being coals) passing along the Oxford Canal, in the parish of Foleshill, forjas far as such merchandises pass in that parish.'' This is clear upon the principle laid down in Res v. Milion (a), and. recognised in subsequent cases (6), aamely, tkitf eveiy piuriah through which a canal pattes is entitled to reeetve from th^ canal company, oat ot Am general fiind arising from the tolls, a sum proportionate to that whick the land used by the company in that parish produces. Secondly, the Oxford Canal Company are ratable ** for the mile too^ nage payable to them in respect of tolls collected on the Coventry Canal, in the proportion of one mile nine hundred and sixty-three yards to two miles." The Oxford Canal ^ct vests in the Oxford Canal Company certain tolls earned on the Coventry Canal in respect of all mercfaan* diaea. (except coals) for the distance of three miles and a half on the Coventry Canal. The same act vests in the Coventry Canal Company the tolls for coals passing on the Oxford Canal for a di&tance of two miles measured from Longford, the point of junction, towards Braunston. In effect, the Oxford Canal Company give to the Coventry Canal Company two miles of their canal, part of which is in the parish of Foleshill, and receive from them the tolls earned on three miles and a half of the Coventry Canal. But the profit is produced by the two miles of the Oxford Canal, part of which is in the parish of Foleshill, and is, consequently, ratable in that parish. Thirdly, the Oxford Canal Company are ratable *' for such a proportion of the
(fl)-3B.&A. 112. (b) See Rex t. Kingmmford, ante, i. 80; 7 B. & C. 336; ReJi v.
Lower MUion, ante, iv. 711 ; 9 B. & C. 810; and the various autlKH riti^ thereili referred to.
The Kma
HICHA£LMA8 TERM, X GEO. IV. 107
compensation tonnage payable to them uoder the Grand 18S9.
JuQctioa Canal Act, for merchandises (not being coals)
passing from the Cov^itry Canal along the Oxfiird Canal Jf
ifito the Grand Junction Canal, and vice versft, and conse- q'^^^
quendy through the pariah of Foleshill, as one mile nine Couvaxys
kandred and aixty*three yards bears to thirty-four miles and
seven-eigktha.'' It is presumed that this proposition will
not be disputed, for it is founded upon the decision of this
Court in Rex v. Tile Oxford Canal Company {a), which is
expressly in point* Upon the. same principle it will follow
that, fourthly, the Oxford Canal Company are ratable ''for
die same proportion of the compensation tonnage for coab
pissing along the same portion of the Oxford Canal from
the Coventry Canal into the Grand Junction Canal."
There can be no distinction between the compensation
tonnage for coals and that given for other merchandises ;
or, if there is, it lies upon the other side to shew it : be^
cause, according to the decision in Rex v. The Oxford
Canal Company, the compensation tonnage in this case is
divisible among the parishes used by the Grand Junction
Canal Company in earning that tonnage. The Grand
Junction Canal Company, upon the supposition that they
might have occasion to use the Oxford Canal, gave the
Oxford Canal Company a compensation for that use in the
shape of a toll of 2s. 9d, on coals, and 4s, 4d. on other
merchandises* That supposition has been realized, the
Grand Junction Canal Company have used that part of the
Oxford Canal which lies in the parish of FoleshiU, for the
passage of coals out of the Coventry Canal from Longford
to Braunston. It follows that the Oxford Canal Company
are ratable for such proportion as their land lying in the
parish of FoleshiU bears to the entire distance. The ques-
lion of ratability being thus disposed o^ the only remaining
question is, what deductions from the gross amount of the
toUa are to be made in favour of the Oxford Canal Comr
pany. The principle upon which that question must be
(») 0 D. & R; 06r 4 B. & C. 74.
108 CAS£S IN THE KING's BENCU,
1829. decided^ is this, that the rent is the criterion of the value of
f^^^^^^^ the occupation of the land ; Rex v. The Trustees of the
V. Duke o/Bridgewaier{a). It was there decided, that the
Canal* Proprietors of a canal were ratable in respect of their occu-
CoMPANir. pation of land, upon the sum for which the land would let,
and not upon the net produce of the land. Here, infixing
the rate, a deduction of 20/. per cent, has been made, " as
the reasonable profit of a supposed lessee,'^ and the residue
of the tolls has been rated as the amount of annual rent
which a tenant would pay. \_Parke, J. The poor rate
certainly ought to be deducted, for if a tenant pays the
poor rate be will pay so much less rent to his landlord*]
Upon that principle, undoubtedly, it does seem just that
the poor rate should be deducted.
Hill, contri. It is not intended to dispute the ratability of the Oxford Canal Company, so far as respects the first three items mentioned in the rate; but it is confidently submitted that they are not ratable in respect of the com- pensation tonnage for coals mentioned in the fourth item. The term " compensation tonnage'* implies that such ton- nage was given in lieu of something given up. But the Oxford Canal Company gave up nothing for which they were ratable; therefore, they are not ratable for the com- pensation. The Coventry Canal was in work before the Oxford Canal was made. The Oxford Canal Company take the tonnage mentioned in the third item of the rate. The Coventry Canal Company take a tonnage for coals on a certain part of the Oxford Canal, covering the whole of the parish of Foleshill. Therefore, when the Grand Junc- tion Canal Act was passed, the Oxford Canal Company had no tonnage for coals passing through the parish of Foleshill. IParke, J. Surely under the act of 33 Geo. 3, the canal in Foleshill may be used for the purpose of carry- ing coals.] Not so as to afford a profit to the Oxford
(«) AfUe, iv. 143; 9 B. & C. 68.
MICHAELMAS TERM, X GEO. IV. 109
Canal Company, and^ therefore, not so as to render them i829.
ratable. T Parke. J. They received the compensation ton- ^"^^-^^^ > ^ .^ . . u . . 1^ The Kino
nage as an mderonincation agamst the injury they were v,
supposed likely to sustain by means of the formation of the Oxford Grand Junction Canal.] The Coventry Canal Company Company. bave still what they originally had, the mileage tonnage upon coals passing through the parish of Foleshill. If that which has been called compensation tonnage is to be considered as an indemnification against the general injury to the Oxford Canal, it ought to have been given in the proportion which the length of that part of the canal that is 10 the parish of Foleshill bears, not to the length of that portion of the canal which lies between the parish where it joins the Coventry Canal and Braunston, but to the whole line of the canal. When the Grand Junction Canal Act passed^ the mileage was Id. per ton for coals^ and \j^d, for other goods. The compensation tonnage of 2^.9^. and 4m. 4d. was evidently computed with reference to the Id. and IJcf. per mile. The mileage for coals at Id. for S4| miles would be Qs. 10^. But the Coventry Canal Com- pany was then entitled to the mileage over 2 miles. De- ducting then ^d. from the £«. lO^d., and giving the party to be indemnified the benefit of the fraction of (he compen- sation tonnage for coals would be reasonably fixed at2«.9d. The compensation tonnage therefore proceeds upon the principle that the Oxford Canal Company had no tonnage over these two miles ; and the legislature has not made the public pay double tonnage in the parish of Foleshill, which it would bave done if the portion of the canal which is in that parish bad been considered the meritorious cause of earning a portion of the compensation tonnage. Coals now pay and always did pay to the Coventry Canal Com- pany mileage for that part of the canal which is in Foleshill, and if the 2s. 9d. a ton relates to that portion of the canal^ coals would in Foleshill pay double tonnage In order to make a canal ratable, there must be not only a user of it in the parish, but a profitable user. Here, there was no pro-
CASES IN TH£ KINGS BENCH,;
fitaUe user of the canal by the Oxford Canal Company ill xJJ^'k^o respect of the carriage of coals in the parish of FoleshiU. V. The only remaining question is, what deductions ought to
Canal ^^ made; in other words^ what proportion of the total Company, amount of tolls received ought to be considered as consti-*- luting the sum for which that part of the canal which lies within the parish of Foleshill would let to a tenant. As there has never in fact been any tenant, but the canal has remained in the hands of the proprietors, who have col-* lected the tolls themselves, it 'is not very easy to ascertain that amount with precision. It is, however, admitted, sup- posing the canal to be let, that the tenant ought to have a profit of 20/. per cent. That must be taken to mean a net profits a profit resulting after deducting all payments made in respect of the canal: therefore, the poor rate, the ex* pense of collecting the tolls, and the expense of annual repairs, ought to be deducted from the total amount of tolls received. Now the annual repairs of that part of the canal which lies in the. parish of Foleshill amount to 20/. ; and the annual repairs of the whole line of the canal amount to 4000/.: there may be a question, therefore, whether the sum to be deducted should be such a propor<« tion of the total amount of repairs as the length of canal in the parish of Foleshill bears to the whole line of the canal, or only the amount of repairs incurred in that part of the canal which lies in the parish of Foleshill. {^Bayletf, J. I feel no doubt upon that question. The rate must be in proportion to the value of the land in the parish where the rate is made ; therefore all expenses incurred in repairing that part of the canal in that parish must be deducted.] The expense of supplying water for the canal must also be deducted. It is analogous to the expense of supplying manure for the cultivation of land. The real value of land is its value after deducting the expenses of cultivation* Without a supply of water the canal could never produce 9ny profit at all. [Bayley, J. No doubt there must be a deduction in that respect. The sessions must compute the.
MICHAELMAS TERM, X GEO. IV. Ill
({ttanlum. We can only lay down the principle. We never 1699. compute the quantum, except where the sessions tells us rpTTR^^ the principle upon which they have calculated the quan<^ o.
tttiD, and their calculation is evidently erroneous.] The Can^al case finds that the works by which that part of the canal Company. which lies in the parish of Foleshill is supplied with water» supply the canal for forty miles. The true principle, there* fore, will be to fis the quantum in the proportion which the part of the canal situate in the parish of Foleshill bears to forty miles.
BilYLBY, J., after conferring with the other judges. — The principle which we lay down is this: — ^The sessions must laake. an allowance for the proper proportion of the expense of supplying water; and they must make allowance for the poor rate, the expense of annual repairs^ and the expense of collecting the tolls. The only, question for our consi- deration is, whetlier any part of the compensation tonnage can be regarded as having been earned in the parish of Foleshill. With reference to that question we shall take time to consider of our judgment.
Cur. adv. vuli. .
BayleYi J. — The several questions which were argued
on both sides, in this case, were disposed of in the course
of the argument, except that arising upon the fourth item
of charge on the company mentioned in the special case.
It was contended that the company were not ratable in
respect of a proportion of the compensaUon tonnage for
coik passing along the portion of the Oxford Canal lying
IB the parish of Foleshill, from the Coventry Canal into
the Grand Junction Canal, because it was said that the
tonnage on coals was a compensation to the company for
tbe injury done by the construction of the Grand Junction
Canal, pursuant to the S3 Geo. 3, c. 80, to their former coal
tonnage; and that as the company had, before the4>assing
CASES IK THE KfNG*S BENCH, of that act« no coal tonnage in the parish of Foleshili^ no
The Kino P®*^* ^^ ^^^ compensation tonnage could be considered as
V. earned in that parish. It was further urged that the new
Canal tonnage dues were given by that act instead of the old dues,
Company. ^^^ must be considered as standing, with respect to their ratability, in the same situation. Upon reference, however, to the Grand Junction Canal Act, it would seem that the new coal tonnage is not given as a compensation for the injury done to the company, in respect of the old coal ton- nage, specificallj/. The recital shews that it was given because it was apprehended that the intended canal would be injurious to the Oxford Canal generally, and that certain compensations ought to be made for that general injuiy; and the legislature thought that an indemnification would be given by certain new dues upon coals and other goods carried to or from the intended canal by means of the Oxford Canal, without regard to the distance they might be carried on the latter. And these new dues do not appear to be in addition to the old dues, but the public are to pay one class of dues only ; and this seems to be the meaning of the introductory words of the clause, making them payable instead of the former tolls. The Grand Junction Canal would probably benefit the Oxford Canal in that part of it which formed the line of communication between that and the Coventi7 Canal, namely, from Long- ford to Braunston, and it would probably be in other parts where they to a certain degree were parallel, namely, from Napton to Oxford, that the injury would occur: and the intention probably was to recompence the injury in one part by compensation in another.
The question, however, is, not for what injury the right to receive the new tonnage dues is given as a compensation ; or, in other words, for what reason the legislature have given that right to the Oxford Canal Company ; but, what is the legal liability of the company in respect of these dues, when received by them, to contribute to the poor rate. The Company are. ratable in each parish for the net
M1CHA£LMAS TEKM, It GEO. IV.
annHal profit of the portion of the canal lying in that parish ; in other words, for what the canal earns in each parish; and the tonnage daes are paid by the owners of goods^br pasmg along the canal', and are received by the company /or the tite of the canals though the reason of their being enabled by the legislature to receive them was, that their canal was likely to be injured by the new navigation. It was upon this ground that these dues were received for the ase of the canal, and were -earned by the canal, that the company were held ratable in respect of them in Rex v. The Oxford Canal Company (a). For the passage of coals, therefore, along the part of the canal lying in tbe parish of Foieshill, some portion of the new dues is received by the company, and in respect of that portion the rate is proper. It is true that the consequence of this will be, that for coals passing along that part of the canal lying within two miles from the junction with the Coventry Canal, the com- pany will receive more dues, and therefore be ratable for more, than for those passing along other parts of the canal; because they will receive for such coals the proportion of compensation dues above mentioned directly, and indirectly a part of the tonnage dues on other goods on the first three miles and a quarter of the Coventry Canal, for which it is admitted by their counsel that they were properly rated in the rate in question. But this consequence can make no difference in the construction of the act of parliament, which makes the dues payable by tbe public to the com- fany for passing along their canal, so that those dues consti- tute a part of the profits of that portion of the canal along which they pass.
The canal earns no part of the original tonnage upon
coals carried along the two miles in the parish of Foieshill
into the Coventry Canal, because it receives its equivalent
by means of the tonnage upon other goods for the first
Arte miles and a half upon the Coventry Canal ; but those
113
1829.
The King
OXFORP
Canal Com PA NX,.
vol.. V.
(a) 6D. &R.86; 4B.&C. 74. I
114
1829. The King
Oxford Caval
Company.
CASES IN THE KING S BENCH/
two miles contribute to earn the compensation tonnage^ and for that there is no equivalent.
. The rate is therefore to be confirmed in this respect; but the case must be referred back to the sessions to make the several deductions to which the company were held. upon the argument, to be entitled.
Rule accordingly.
The breach of inere revenue regulations, which tend to insure the due
Sayment of uties imposed upon the ma- nufacture of an exciseable article, does not render the tmde itself ille- gal, so as to in- capacitate the manufacturer from recover- ing the price of such article, or from suing upon a gua- rantee given for the due payment thereof.
Brown and others v, C. Duncan.
Assumpsit on the following guarantee given by the defendant to the plaintiffs, Messrs Brown & Co. : —
" 7 January, 1826. Messrs. Brown & Co. I hereby undertake to guarantee the due payment of all sums of money which Mr. Alexander Glennie may become indebted to you as your agent in the sale of malt whiskey, and for which Mr. Glennie shall not duly account for or pay and discharge. Peter Duncan**
At the trial before Lord Tenterden, C. J. at the sittings at Guildhall after last Trinity term, it was proved, that after the guarantee Glennie became indebted to the plaintiffs within the terms of the guarantee in 2300/. On the part of the defendant it was shewn, that Clerk, one of the plain- tiffs, carried on business at Aberdeen as a retailer of spirits, within two miles of the plaintiffs' distillery, and that his name was not inserted in the licences taken out for the distillery under 6 Geo. 4, c. 81, sect. 7 (a). It was contended, that these circumstances rendered the joint trading of the five plaintiffs illegal under that statute and
(fl) " That in every licence lo be taken out, under or by authority of this act, shall be contained and set forth the purpose, trade, or bu- siness, for which such licence is l^nted, and the true name and place of abode of the person or
persons taking out the same, and the true date or time of granHof; such licence, and (except in the case of auctioneers) the place at which the trade or business for which such licence is granted shall be carried on."
MICHAELMAS TERM, X GEO. IV.
under 4 Geo. 4, c.94, sect. IS 1 (a), and sect.. 132(6), aiid that the plaintiffs were thereby disqualified from suing for the price of ^irits distilled by them, and from enforcing a guarantee given in respect of sales of such spirits. The learned judge directed a verdict for the plaintiffs, giving leave for the defendant to move to enter a nonsuit.
116
1829.
F. Pollock now moved accordingly. Clerk could not be
entitled to 8ue« even if the omission of his name in the
licences had arisen merely from negligence; but here the
omission of Clerk*s name in the licence was for a fraudulent
purpose; and the Court will not extend the same indu!^
gence to fraud as to errors. If Clerk had been let in as a
partner without the knowledge of the defendant, the dcr
fendant would have contracted no liability to him. He
would have a right to say, I was dealing with Brown 8c Co.,
not as they chuse to arrange amongst themselves, but as
they give out to the world. [Lord lenUrden, C,J, In
Johnson V. Hudson (c), it was held that the mere breach of
a revenue regulation, protected by a penalty, was no answer
to an action.] In Cannon v. Brt^ce ((2), 'the distinction
between malum prohibitum and malum in Se was expressly
overruled. In Bensley v. Bignold (e), a printer, who had
(a) ** That ifany distiller licensed wider this act shall at any time, doriiig the continuance of sach Koeooe, be directly or indirectly oonceroed or interested in the sale of any spirituous liquors whatever by retail, or in carrying on the bosineas or trade of a retailer of any spirituous liquors whatever, wtAh ^stiller, in each and every such case, shall foHeit the sum of
aoo/L"
(6) ** That no distiller licensed ander this act shall b« directly or indireclly concerned or interested in carrying on the trade of a whole-
sale dealer in spirits, or be con- cerned in trade with any whole* sale dealer in spirits at any place within the distance of two miles from the distillery of such distiller; and if any such distiller shall be directly or indirectly concerned or interested in the trade or business of a dealer in spirits at any place vrithin such distance of such dis- tillery, then, and in every such case, such distiller shall forfeit the sumofSOOr*
(c) 11 East, 180.
(rf) 3 B. & A. 179.
\e) 5 B, & A. 335* I 2
116 GASES IN THE KINO's BENCH,
1889. not affixed his name, was not permitted to recover for his labour and materials. [Parke, J. Your argument goes to shew that the plaintiffs cannot sue for any purpose.] It was so held, in Bensley v. BignoM. [Lord Tenierden, C.J. There the act of printing was illegal. Here the distilling was illegal, but not the sale.] The goods might have been seized in transitu if it had been known that five persons were interested in the distillery. If Caiman v. Sryce and Bensley v. Bignold are law, this action cannot be supported. In Cannon v. Bryce it was held that the plaintiff couM not recover, because he knew that the money which he lent was intended to be applied in paying stock-jobbing diffe- rences, which the law had said should not be paid. la that case, it was said by one of the judges, that the only way to make parties obey the law is to make it their interest not to violate it. In Law v. Hodson (a), a brick-maket was not allowed to recover the price of bricks sold, because they were not of the statutable size. [Parke, J. Here the provision is not for the protection of purchasers, -as in the case of brick-making.] The 4 Geo. 4, c. 94, 8. 131, ini- poses a penalty on a licensed distiller carrying on the trade of a retailer. A party is not at liberty to pay the penalty and do the act. The IS^d sect, is however clear of any difficulty, that section expressly prohibiting distillers from being concerned or interested in the trade of a wholesale dealer in spirits within two miles distance from the distil* lery. The 6 Geo. 4, c. 81, s. 7, requires the time, name and place of abode of the distiller to be mentioned in the licence, the name having been required by the previous statute 4 Geo, 4, c. 94, s. 7* After an experience of two years, the legislature found that requiring the name only was not sufficient. These spirits were seizable any where. They might have been followed to the Port of London. [Lord Tenterden, C. J. Is there any clause to that effect, or is that merely your own inference ?] It is understood that they are clearly seizable. [Lord Tenier-
(a) 11 East, 300. And see WUkinsm v. Loudonsackj 3 M. Sc S. 117.
MlCilA£Ll<A$ TERM, X GEO. IV.
^,C. J. You object that the dormant partner could not m.] That might be contended, but it is unnecessary to go 50 far. A dormant partner need not be joined as a co- pluQtiS^ Lloyd v. Archbowh (a). Clerk bad no property in tbeae goods. By reason of the illegality of the transaction, he could not huve fUed a bill against his partners to account for the profits of the trade.
Cur. adv. vult.
117
16f9.
Bbowk
V.
Duncan.
LordTENTERDENy C. J. uow delivered the judgment of the Court, after stating the facts of the case and refer- ring to the statutes. It was contended at the trial, that Clerk having acted in violation of these statutes, it was iacompetent to him to sue for the price of the spirits ill^;ally distilled, and that, therefore, the present defendant, who has guaranteed the price, could not be sued. But we thiofc that this objection cannot be supported. The acts in qoestion contain no clause preventing the carrying on of the trade of a distiller by persons who have not complied with the regulations prescribed for the security of the revenue. Hodgson V. Yemple(J>) was a very sfrong case. The goods were sold with a knowledge on the part of the vendor that the vendee filled the incompatible characters of rectifier and retailer, aiid they were delivered at a place where the vendee carried on business, not in his own name, but in the name of another person, which was contended to be a clear violation of the law. In Johnson v. Hudson (c), the vendors recovered the price of tobacco which they had sold without being licensed, on the ground that this was not a fraiid upon the revenue, but merely the breach of a fiscal regatation, protected by a specific penalty. The present
(«) 9 Taont. 324. And see Mma v. Giikti, lb. SS5, n.; Xiuw V. Delacmtr^ 1 M. & S. 249; Msttkeam, ex parte, 3 Ves. & B. 125; Gardiner v. DavU, 2 C. & P. ^9. It appearB tp be in the option
of the plaintifis to sue with or without joining the dormant part- ner. Skinner and others v. Siockt, 4B.& A.437.
(b) 5 Taunt. 181.
(c) li East, 180.
118
1829.
BfiOWN
V,
DUKCAV.
CAS£S IN THE king's BENCH/
case is very different from those which turn upon acts of parliament having for their object the protection of the public, as the acts against stock-jobbing, and those against usury, or against the fraudulent making of bricks below a certain size; we are, therefore, of opinion, that the plaintiffs are entitled to recover, and the defendant will take no rule.
Rule refused (a), (d) Antl see Little v. PooUy 9 B. & C. 192.
Where a party suing for a malicious pi-o- secution, had obtained a copy of the indictment by virtue of the attorney- general 8 fiat, granted under a mis-state- ment as to the view enter- tained by the judge before whom the indictment was tried, the Court refused to stay the proceedings or to prevent the plaintiff from using on the trial the copy so obtained.
Semble, that the indictee is entitled, as of right, to a copy of the record of the acquittal (6).
Browne v. Gumming and others.
XHE plaintiff, a bankrupt, was indicted for concealing the sum of 24/* 15s. At the trial before Burroughs J., at the Bridgewater assizes, 1827, the plaintiff was acquitted; upon which his counsel, Bompas, Serjt., applied to the learned judge for a copy of the indictment. This his lordship refused to grant. Upon a representation made to the attorney-general that the learned judge had changed his mind, and would now grant the application if he had power to do so, the attorney-general (c) gave his fiat for the grant- ing of a copy; but upon the learned judge's stating that his views had been misrepresented, a rule was obtained, calling upon the plaintiff to shew cause why he should not be restrained from using such copy of the indictment.
C F. Williams and Bompas, Serjt., now shewed cause. The learned judge had no power to withold from the plaintiff a copy of the indictment. Prasf. 3d Coke Rep. SI. 1 Mann. & Ryl. 279, n. {a). By the Parliament Roll there vouched, the right of all persons to free access to records in which they are interested is fully recognized. The first restriction upon this right was made by an order of some of the judges at the Old Bailey, immediately after the
{b) Et vide ante, i. 279, («).
(c) Sir Cfiarlei WethtrelL
MICHAELMAS TERM, X GEO. IV.
Restoration. Here the learned judge thought, that under the seTentb reeolution he had no power to make an order lor a copy of the indictment. In Jordan v. Lewis {a\ the pliintiff offered in evidence the copy of an indictment which had been granted to his co-indictee only; and upon its bfitig objected, under the Old Bailey order, that a copy could not be read, Lte, C. J. 6aid, that he could not refute to let the plaintiff read it, and tlie Court refused to set aside the ▼erdict obtained by the plaintiff on this evidence. The same point was decided in the late case of Caddy v. Bari(ati;(6), where the Court refused to entertain the ques- tion, as to tbe alleged fraudulent manner in which the copy bad been obtained. It is true that Foster, J. says, that the statute 46 Edw, 3 relates to those records in which the subject may be interested, as matters of evidence upon questions of private right; and he cites what passed at Lord Preston^s trial, which however does not support the distinction taken. But supposing the copy to have been irregularly obtained, that circumstance would only furnish the ground for an application to the discretion of the Court. In Rex V. Brangan (c), the prisoner being acquitted upon an indictment which appeared to have beeu brought merely for the purposes of vexation and oppression, his counsel applied to the Court for a copy of the indictment, IfiUes, C. J. acknowledged that the prosecution bore the strongest marks of being unfounded and malicious, but refused the application, because it was not necessary that he should grant it; declaring, that by the laws of this realm, every prisoner, upon his acquittal, had an undoubted right and title to a copy of the record of such acquittal, for every use they might think fit to make of it; and that after a demand of such copy had been made, the proper officer might be punished for refusing to make it out.
119
1899.
Scarlett, A. G. contrA. The defendants are entitled to have the rule made absolute upon a very narrow ground.
(«) S Stra. 112?. {b) Ante, i. 275. (f) 1 Leach, C. C. 3?.
120
1829.
CASES IN THE KING S BENCH,
The fiat was obtained under a misapprehension as to the view taken of the case by the learned judge who tried the cause. Upon that mistake being discovered, the plaintiff ought to have gone again before the attorney-general, and have discussed the merits of the application. The plaintiff has received a copy of the indictment upon a representation which appears at least to be founded on mistake. If, as contended on behalf of the plaintifi^i he has a right to have a copy of the indictmenti this rule will not prevent him.
Lord Tenterden, C. J. — Upon the whole we think the mistake or misapprehension not to be of such a nature as to justify the interference of the Court.
Rule discharged.
Where in tres- pass the de- fendant justi- fies under mesne process, and the plain- tiff replies a detention after a bail-bond given, an ac- tual arrest must be prov- ed; proof of the execution of the bail- bond, coupled with the ad- mission of the trespass in the special plea, is not suffi- cient.
Reece V. Griffiths and others.
XHIS was an action of trespass and false imprisonment brought against the sheriff of Herefordshire! bis under- sheriff, and bailiff. The defendants pleaded, first, not guilty; secondly, a justification under a latitat against the plaintiff. Replication, by way of new assignment, that the sheriff accepted a bail-bond from the plaintiffs, which bail-bond he kept in his possession until and at the time of the tres- passes newly assigned. The defendants pleaded not guilty to the new assignment
At the trial before Faughan, B. at the last Hereford assizes (a), the learned judge held that the plaintiff was bound to produce and to prove the execution of the bail-bond; upon which the plaintiff called the attesting witness^ Moss, a sheriff's officer. Upon his cross-examination, Moss stated that the attorney for the now plaintiff came to him and desired, that if he knew of any writ against Reece be would
(a) Counsel for the plaintiff, Tdfourd; for the defendant, €}ampbclL
Griffiths.
MICHA£Z.]tfAS TERM, X GEO. XV«
ialorm ham of iv^od be would put in bail. Upon tbe latitat
in (|ue6tipn. coming to tbe sheriff's office^ Reece was not ^rT^
actuaUjarre^tedy but he executed a bail-bond. The witness ^ v,
swore that he did not take the bail-bond absolutely^ but
subject to ai^proyal upon inqifiring into the circumstances
of the bail. Upon this it was contended by tbe plaintiff
that the . replication i\ad Jl^een .piade ,Qut. The learned
judge. w9s,«}}owf^yer^ of a different. opipiqn^ and directed, it
i)9DiQit,.w||ioh
^Afffntrd now mov^d to set aside. The fir^t arrest is 9iim9^ on the r^cpr<4. Jt is also, admitted. by the execu- tion of the bail-bond.
Lord Tbntebden, C.J..— It |ias jat^ly be^p d^c^ified in this CpMrt(a)j that .merf^ly ^ij^ring into ^.b^i^bond dpes qot cQi|9(i^^e ap .^rrest Qi)e ^rrest is fi^tfnitted .pfk ,the recQrd; t»ut uqI^q^ .the plfijntiff proyf^ two arre§^ (^) be V48 QQt Qn)illed.to,r<^<;pvQr, apd .that.hp,|iP8 f^M in.^oin^.
S^le refpsed (p),
(a) Berry v. AtUmuonj gent. 6 states a second arrest after the nc-
B.fcC. 598; S C. & P.503. And ceptance of the bail-bond.
see Bridgeti v. Cqyn^, ante, i. (r) In this case it would appear
2U. that t^ej^lai^^ff ai^sfhaY^fdiled
(6) The plea confesses one arrest under the general issue, under the latitat. Tbe replication
Williams v.
Assumpsit on a promissory note for 375/., drawn by In an action
tbe defendant, payable to the order of fVade, and by Wade ^ory nm^S"
indorsed to the plaintiff. At the trial before Lord Tenterden, declaration
C. J., at the sittings at Guildhpll after last Trinity term, the Sainti/before
plaintiff', who was a pawnbroker, rested his case upon proof "« ^came the ,. ^, iri- holder, is evi-
ofthedefendantssiguatureofthe note aud of the indorsement, denceto inva- lidate the note.
<;ab£s in the king^s bench,
On the part of the defendant it was shewn that the note in question had been given in substitution for a former note given upon a gaming transaction. At the time the former note became due it was in the hands of one ChristUf and before the plaintiff had any thing to do with the substituted note, in a conversation between the plain- tiff and the witness, the plaintiff stated the consideration for the drawing of the former note. It was objected, on the part of the plaintiff, that this evidence was inadmissiblet inasmuch as the plaintiff was a stranger to the note declared on at the time of the supposed admission. The learned judge, however, received the evidence, and the defendant obtained a verdict, which
Gumey now moved to set aside. The ground upon which the unsworn declarations of parties have been re- ceived in evidence to defeat an action upon a bill of exchange, is, that the declarations have been against the interest of the party making them. Here the plaintiff, at the time of the alleged conversation, had no interest in the transaction, and was under no inducement to speak with accuracy. No relation existed between the plaintiff and the defendant until this note was indorsed over.
Lord Tenterdbn, C. J. — ^The declaration was made prior to the plaintiff's receiving the note; and on that ground I thought it admissible.
The other Judges concurred.
Rule refused.
MICHAELMAS TERM, X GEO. IV.
CoLLEY V. Hardy.
In August last the defendant's goods were seized by the Where the
sheriff of Middlesex, under a^.yb., founded on a judgment nedected his
by confession. On the 28th of October a commission ^^y» ^^^.,, 1 , , ... rr. • Court Will not
of bankruptcy issued agamst the defendant. The assignees enlarge the
gave notice of the bankruptcy to the sheriff, and claimed JJj^Vrit'^aU™
the goods. On the other hand, the plaintiffs had, before thoagh the
ihe bankruptcy, repeatedly urged the officer to sell. The creStor'and
sheriff having been unable to obtain an undertaking from the assignees ., t^ . J , , , , . of the defend-
either party, obtained a rule to shew cause why the time ant refuse to
fof making his return should not be enlarged. indemnify.
Campbell now shewed cause. The officer not having proceeded to sell as requested, has placed the plaintiff in a dangerous position^ under the 108th section of the bank* nipt act. The difficulty in which the sheriff was placed vises entirely from his own neglect of duty. The Court will therefore not interfere to assist him.
Halt, in support of the rule. The sheriff requires nothing but the ordinary protection which the Courts give where both parties refuse to indemnify. The commission did not issue till October, but it is highly probable that an earlier act of bankruptcy will be set up, the validity of which the sheriff ought not to be drawn in to contest.
Lord Tenterden, C. J. — There is no reason to sup- pose that a prior act of bankruptcy could be established* It was the duty of the sheriff to sell. The officer, who for this purpose is the sheriff, was required to sell, the plain- tiff having an obvious interest in an early sale, his judgment being founded upon a cognovit, and therefore within the 108th section of 6 Geo. 4, c. l6. The sheriff having neglected his duty is not entitled to the assistance of the
Court (a).
Rule discharged.
(a) Vide Noiletf v. Buck^ ante, ii. 68; S. C. 8 B. & C. 160.
134 CAS£S IN THE KIN&*8 BENCH,
\^,.^ Wood r. Smith (a).
«I believe the ASSUMPSIT. The declaration stated, that in consider- sound, but I ation the plaintiff would bu^ a mare of the defendant, the will not war- defendant undertook and faithfully promised the plaiotiff tUe vendee that the mare was sound to the best of his knowledge, i" Msumwh B«'«acl^> ^^^^ •t *e time of the promise th^ mar^ was as upon a war- unsound, as the defendant then and there well knew* At mare is sound ^^^ ^"^' before Lord Tenterdeti, C, J. at the sittings at
to the best of Westminster after last Trinity term, it appeared that when . the vendors i -•«•,, • / •• » T «• i
knowledge. the plamtiff sold tbe^ mare, he said, ''I believe th^ mare 'to.
be sound, but I will not warrant her." The unsQUtwhiesjS.
being proved, it was objected, on the part of the defendant,
that the «otioD should have been in toi^t upon the deceit.
The learned judge w«s of opinion :that the represehtation
made at the lime of Side was part of the contract, and
directed a verdict for the plaintiff, but gave the defendant
Iruve' to imove to enter ^ nonsuit.
Gumey now moved accordingly. The contract is m'ls- described in the declaration, which does not notice the qutflifying words, **but I will not warrant her/' This is a case in *wbich it w*as peculiarly proper to bring tort, and Dc^ assumpsit, Wiliiamsonv. Allison, {5) Dobellv, Stevens (c),
LordTBKTBrBDEH,'e. J. — ^^No doubt the action might have been in tort.
Parke, J. — The words omitted do not qualify the contract.
Batley, J. — The defenclant means to say I will not give a general warranty.
Rule refused.
(a) S, C. at Kibi Prias, 4 Carr. (6) 2 East, 446.
& Payne, 45. (c) 5 D».& R.400; 3 B.&.C.<)<i3.
MICHAELMAS TKRM, X GEO. 1\^. 126
1829.
SwAYNE V. Ingilby, Bart. ^"^v^^
Assumpsit by indorsee for not accepting a bill A plaintiff of exchange drawn by Ward, a miner engaged to go ^^^^^ q^ to Mexico by a mining company in London, upon formal proof, whom the bill was drawn. The plaintiff having failed lieved upon iu proving a presentment at the office of the drawees, at payment of Pinner's Hall, was nonsuited. Gurney moved in the beginning of this term to set aside the nonsuit on payment of costs^ upon an affidavit stating that before the bill became due the drawees had broken up their original establishment at Pinner's Hall, and had removed their busi- ness to the office of one Gregson ; and that an application for payment had been made at GregstnCs when the bill became due. A rule nisi was granted upon payment of costs, but it was directed not to go into the new trial paper.
Denman and Chitty now shewed cause. The plaintiiF is not concluded by this nonsuit, and it is contrary to the practice of the Court to relieve a plaintiff from costs occa- sioned by his own negligence.
Gumey, contr^. This rule being subject to the payment of costs, which will give the defendant the costs of the trial, it is better for both parties that the previous costs should not be incurred again.
Lord Tenterden, C. J, — ^Tbe plaintiff must seek his remedy by a fresh action. It is a general rule not to grant a new trial upon affidavits of the witnesses as to matters of fact It would be dangerous to encourage such an appli- cation.
The other judges concurred.
Rule discharged.
126 CASES IN THE KINO's BENCH, .
1829.
v^N-^/ • Dickinson v. Valpy.
To make a ASSUMPSIT. The declaration stated, that the defend- thii^perMuis^ ant and divers other persons, under and by the description of «» * ^^"^°^ '* '^^ Corawall and Devonshire Mining Company," by one be in fact a Rowland Wilks^ their agent in that behalf, on the 20th day partner, or ^f March, J 826, at &c., according to the usage and custom bim&elf out to of merchants, made their certain bill of exchange in writing, M ^pwita^'r! *^ca"ng date &c., and then and there directed the said bill The appro- of exchange to certain persons^ by the name, style, and de- shares ia a scription of" The Cornwall and Devonshire Mining Corn- mining asso- pany, Lombard Street, London," and thereby, two months ciation to a . , party at his after the date thereof, required the said last-mentioned
request, the persons to pay to the order of one Mr. Thotnas Teaeue 300/.
payment of an "^ ...
instalment on value received^ as advised; which bill of exchange the said
litendan^^^^^ drawees, by one John Wood, their agent in that behalf,
the counting- afterwards, to wit, on &c., at &c., upon sight thereof, ac-
association cepted, according to the said usage and custom, payable at
and there iI^q house of certain persons in the said acceptance men-
signing some ...
deed (not pro- tioned, to wit, at Sir William Kay, Price, 8c Co., bankers,
frii^andsub- ^on^^n; that Teague indorsed the bill to the plaintiff;
sequent at- that the bill was duly shewn and presented for payment,
general meet- when due, to, and at the house of, the said SirWilliam Kay,
mgofihe Price, 8lCo., bankers, London, but that the said last-men-
(his conduct, tioned persons did not, nor did the drawees pay, thereof
at which he is defendant had notice, whereby defendant became liable
not allowed to . m •
shew) do not and promised. The second count described the defendant
S^be a oart^ alone as drawer. The third count described the defendant ner:— as sole drawer, but stated the bill to be directed to the
who has been' defendant and others. The fourth count stated, that
induced by
fraud to enter into a partnership, can set up thai fraud against his liability to a party
who became a creditor, without knowing J. as a partner, qtuere.
The directors of a mining association cannot bind the members by accepting a bill of exchange, unless they are authorized so to do by the deed or instrument of copartner- ship, by the necessity of such a power to the carrying on of the business, by the usage of similar establishments, or the express assent of the party sought to be char|E2ed. Still less can the directors bind the members by a bill drawn upon the directors hj their own servant, such a bill being in effect a promissory note.
MICHAELMAS TERM, X GEO, IV.
certain persons* under, and by the style* firm* and descrip* tioQ of " The Cornwall and Devon Mining Company/' drew upon the defendant, who accepted. The fifth count described the instrument as a promi38ory note drawn by tbe defendant under and by the name and description of '*Tbe Cornwall and Devonshire Mining Company/' by one Rowland Wilks, the defendant's agent in that behalf (a). The declaration also contained the usual money counts. Plea, non assumpsit. At the trial before Burroughs J., at the Bridgewater assizes* 1827 (6), the following facts ap^ peared: — Several persons used to meet at a counting-house iu Lombard Street* under the firm of '^ The Cornwall and Devonshire Mining Company*" and carried on business to a considerable extent. On the 6th of April* 1825* they received from the defendant the following letter: —
'' 6th April* 1825. 6, Brunswick Square. " Gentlemen, — I shall feel obliged for 30 shares in the Cornwall and Devonshire Mining Company.
(Signed) ^. J. Valpy:*
In consequence of this letter a communication was made to the defendant. When persons applied for shares, they paid tbe money to tbe bankers for the concern* and took receipts. In July* 1 825* the defendant brought two bankers' receipts to the ofiice of 50/. each* and applied to have them exchanged for shares or certificates. He then paid 10/. more on each share, and executed a deed. The certificates were filled up with the defendant's name* but were never
(a) Considenng a bill drawn by contract* it woald seem to be* in
ft partj apon himself as a promis- point of Jaw, a note made by the
sory note* the instrument seems to doable agency of the clerk who
be complete as soon as it is drawn, drew the bill, and of the clerk who
It seems, therefore* to be properly wrote the acceptance.
described as a note made by the (6) Counsel for the plaintiff*
agency of the clerk who drew the Wilde, Serjt.* C. F, William, and
bill, and not as made by the agency Carter; for the defendant, Crow
o€ the rferk who accepted it. If, der, Meretoether, Seijt., who was
indeed, tbe acceptance were so with him* being absent at Maid«
framed as to alter the terms of the stone.
CASES IN THE KINGS BENCH,
called for by him, or sent to him. The defendant only
^ attended at the office or counting-house when he delivered
'DicxrNdoN ...
V. in the receipts and signed the deed, and at a meeting of
^^'^' shareholders in July, 1826. At the special meeting of the
directors of the company on the l6th of March, 18^, th^
following minute and resolution were entered in their books:
^ It was reported by the mine cashier and accountant that
a balance of 884/. fis. 2d. remained due to Captain Teagtte,
for advances made by him to the company, as appears by
the account submitted to the committee and approved;
and Captain Teague stated to the committee that he desired
to receive bills to that amount : — Resolved, that the mine
cashier and accountant draw bills on the company for the
amount in favour of Captain Teague, and that the secretary
be authorised to accept the bills for the directors on behalf
of the company, and to make them payable at Messrs. Kay,
Price 8c Co., the London bankers of the company/' Bills,
for one of which this action was brought, were drawn in
pursuance of the above resolution. The bill declared upon
was in the following form : —
" No. £7. <£300. Redruth, March £0, 1826.
*' Two months after date pay to the order of Mr4 Thoma$ Teague three hundred pounds, value received, as advised. '* For The Cornwall and Devonshire Mining Company,
" Rowland WUks. " To The Cornwall and Devonshire Mining Company, Lombard Street, London.
" Accepted, for The Cornwall and Devonshire Mining Company, John fVood, Secretary."
The meeting of the 7th of July, 1826, was the first meet- ing of shareholders. The defendant attempted to shew, by the cross-examination of the plaintiff's witnesses, that the defendant attended this meeting merely for the purpose of protesting against his liability as a member of the asso- ciation, on account of the fraud in which the scheme had been originally concocted; and he proposed to go into evidence of such fraud. The learned judge refused to
MICHAELMAS TERM, X GEO. IV. 129
permit the cross-examination or to receive the evidence ^^^^- tendered^ unless it could be shewn that the plaintiff himself Dickinson was privy to the fraud. The jury having found a verdict «•
for the plaintiff,
Scarlett, A. G., in the following term, moved for a rule to shew cause why a nonsuit should not be entered, or a Dew trial had, upon the following grounds : — First, that die evidence of the object for which the defendant attended the meeting in July, 1826, viz. to disclaim the partnership as a fraud, had been improperly stopped. Secondly, that the learned judge had ruled, that the fraud in which the association naight have been concocted could not be ;ooe into unless it could be brought home to the plaintiff. Thirdly, that this was not such a partnership as would eotitJe the parties to bind one another by the drawing of a bill of exchange. Fourthly, that the drawing of such a bill was proJiibited by the bank act (a). Fifthly, that the instrument declared on was not a bill of exchange, nor was it a pro- missory note assignable under the statute (6). A rule having been granted upon all these points, cause was now ihewn by
C. F. Williams. It is admitted on the part of the plaintiff,
t&at the defendant's counsel wished to cross-examine the
plaintiff's witness as to what took place at the meeting in
July. But that meeting was after the bill in question had
heen drawn, in fact, after it had become due. It was shewn,
aad not disputed, that the plaintiff was a bon& fide holder.
The defendant knew the directors, and took receipts from
them, thereby admitting that they constituted the execu-
&ve of the company. [Parker J. It was proved that the
defendant paid 50/., but it doe9 not appear that he got any
certificates.^ 1"^^ certificates were made out, but the de-
/eiidaot never called for them. [Lord Tenterden, C. J» It
'^ said that the defendant signed the deed, but it is not said
(«) Sg Sc -40 Geo. 3, c. 28, s. 15. (6) 3 & 4 Anne, c. 9.
VOL. V. K
130
1899.
CASES IN THE KING S BENCH,
what deed.] The deed was in their hands. [Bayky, J. There is no proof of that. Positive assertion leads to no result.] There is no suggestion that the defendant could not produce the deed. The plaintiff is not fixed with know- ledge of any improper proceeding either in the original con- coction of this mining speculation, or in the representations under which the defendant was induced to become a partner. It was not the fault of the directors that the defendant did not call for his certificates. The defendant finds that the company is in a perilous state, but he has no right, on Uiat ground, to look back to the motives of some of the original projectors. [Lord Tenterden, C.J. The name of the de- fendant is not held out.] There are many great concerns in which the names of the individual partners do not appear. [Bayhy^ J. But then you make out a partnership aliunde.] A partnership deed is not necessary, Alderson v. Clay (a). {^Bayley, J. There, probably, the party acted as a part" ner.] The defendant has recognized the respectability of the directors.
FoUettj on the same side. Upon the first point, namely, that it was not sufficiently proved that the defendant was a partner, it is submitted that no greater evidence of that fact could be required from the plaintiff, who is a stranger, than was actually adduced by him to shew that he was a partner, and that he held himself out to the world as a partner. [Parker J. Holding himself out to the world as •a partner, is only evidence that he so held himself out to the plaintiff. It is merely evidence from which a jury may infer that credit was given to the defendant.} A jadge would not hesitate to direct a jury, that if the defendant so held himself out to the world, he so held himself out to the plaintiff. The evidence of. the defendant's interference was ▼ery strong. After attending a meeting, he writes, asking for shares. That, it is submitted, is an act done by him for the purpose of becoming a member of the association. (a) 1 Stark. N. P. C. 406.
MICHAELMAS T£RM| X GEO. IV. 131
He pays his money and obtains a receipt, expressing that ^^^^' it is paid on account of shares. On taking, that receipt to i>ickin9on the counting-house he became a member of the association. v*
Then he attends a meeting and pays a further sum of money. How would the matter have stood if this had not been the case of a joint stock company ? and there was no evidence that it was. Suppose three persons agreeing to work a miaei and a fourth applies to them to join them, pays money in respect of his share, and attends meetings of the coQoem, would not such application, payment and attend- ance be sufficient evidence of partnership f Some members were there in April, on which occasion the defendant also attended. He left the receipts to be exchanged for other documents; he paid an additional sum at the countings house. All this would, in an ordinary case, have afforded ample evidence of a partnership as regarded a stranger. It would be impossible for him to go further, and produce documents establishing the partnership. No jury could hesitate to presume a partnership under such circumstances. Then it can make no difference what the object of the partnership is; the object here was trading in ore. Vice V. Lady Amon (a) does not go to the length relied on by the other side. In that case there was no evidence that the defendant had gone to the counting-house. [Baylei/y J. She had received her certificates, paid her deposit, and represented herself as a partner.] The certificates were not shewn to have been issued by proper authority, and that circumstance was relied on in Lord Tenterden's charge to the jury, in which he also says that it does not appear chat the defendant's name was registered. Actions for goods supplied to mines are of constant occurrence on the western circuit, and no evidence is ever given to fix the shareholders with an interest in the soil : no such evidence cooid be produced. The ordinary course is this: — The cost^book of the mine is produced, and it is shewn either
(a) Ante, i. 113; 1 Mood. Sc M. 96; reported also as to other points 7 B. & C. 409.
K 2
132
1839'.
CASES tVr THE KINgV B£KCH,
that the defendants attended meetings of the adventurers, or that their names are entered in the cost-book. If fur- ther evidence of interest was required, the plaintiffs mast in every instance fail, the adventurers never taking any interest by deed. [Bayley, J. There it is shewn that the defendants participate in the profits.] This class of cases was referred to merely for the purpose of answering the objection, that it is not shewn that the defendant had an interest in the soil. Then this case has been likened to the farming of an estate, which does not subject the parties to the operation of the bankrupt laws. It appears to be immaterial to the present question whether adventurers in mines are subject to the bankrupt laws or not, but it would rather seem that they are so. Edeti, B. L. 4. Crawshay V. Maule (a). [Parke, J. All the cases were considered in Heane v. Rogers (6), in which case it was held, that where a trader purchased materials for brick making, he was liable to the bankrupt laws.] But it is not necessary to shew that this defendant was liable to the bankrupt laws. In Cratoshay v. Mauley Lord Eldon, C. says, " It is said that this is only the case of tenancy in common of a mine, if so, I think the doctrine with respect to land would apply, and not the doctrine with respect to trading partnerships; but a very difficult question may arise, whether, if the parties, being originally tenants in common of a mine, agree to become jointly interested in the manufacture of its produce for the purpose of sale, they continue mere tenants in common of the mine; still more, if not only carrying the produce of their own mine to market, they become purchasers of other property of a like nature to be manufactured with their own. On such a case in bankruptcy it might be a question whether they were purchasers for the mere purpose of better bringing to market the produce of their own mine, or for the purpose also of bringing a distinct subject to market as traders/'
(a) 1 Swanston, 513.
{h) Ante, iv. 486; 9 B. «c C 577.
MICHAELMAS TERM, X GEO. IV. l33
And in Jeffreys v. Smith (a), his lordship says^ " The case 1829. I alluded to was one before Lord Hardwicke in 1737, and it probably did not occur to Lord Thurlow, when he eipressed his doubt as to the interference of this Court iu cases of trespass. Lord Hardwicke, in that case, says, ' that a colliery is to be considered in the nature of a trade (b); and where persons have different interests in it, it is to be regarded as a partnership ; and that the difficulty of knowing what is to be paid for wages and the expenses of management, gives the Court a jurisdiction as. to the mesne profits which it would not assume with respect to otiier lands. On this ground, and on account of the pecu- liarity of this species of produce, the Court gives an injunc* tioD apinat trespass, and allows a party to maintain a suit for the profits which in other cases it would not do. Here there are twenty shares, and if each owner may employ a manager and a set of workmen, you destroy the subject altogether; it renders it impossible to carry it on. It appears to me, therefore, upon general principles, without reference to the particular circumstances of any case, that where persons are concerned in such an interest in lands as a miDing concern is, this Court will appoint a receiver, although they are tenants in common of it.' '*
In Storey v. Lord tVindsor (c), it was held, that a colliery was a trade, and that the adventurers were therefore entitled to an account in equity. So in Jesus College v. Bloom {d), the digging of mines was said to be a sort of trade, entitling parties to the same remedy as in other kinds of trading. If necessary, therefore, this association might to a certain extent be considered as a trading company. [Bayley, J* Y'ou do not shew a participation of profits]. There were no profits ; but ore was raised by the persons whom the defendant met at the counting*house. A resolution was
(«) J Jac. & W. 298. Sayer v. Pierre, 1 Vez. sen. 332;
(ft) Vuie Storey v. Jytrd Windsor, Belt's Suppl 127. 3 Atk. 630, and cases there cited; (c) 2 Atk. 630.
(d) Ambler, 5i, 56.
134 CASES IN THE KINg's BENCH/
1899. entered into, authorizing the drawing of these bills. [Parke, J. It does not appear that the defendant saw the book.] If there was enough to fix him as a partner, it will be presumed that he had access to the book. [Parker J. Supposing the act of drawing this bill to be out of the legal scope of the authority of the directors, there must, in ordet to charge the defendant, be not only a subsequent know* ledge but a subsequent ratification.] The party has the opportunity of inspecting the book, and no disclaimer is shewn. It would be incidental to such a partnership to draw bills. One partner is supposed to be authorized to do acts necessary to the carrying on of the trade. It is not a necessary consequence of all partnerships, nor wou\d such an authority exist, when it would be contrary to the original agreement between the parties. [Bay ley, J. Can it be necessary for the association to act before all the money is received ?] The drawing of bills is as necessary in their case as in that of any other trade. [Bay ley ^ J. If it be put on the principle of necessity, must you not shew that the necessity existed ?] It is not put upon the necessity of drawing this particular bill. How is a stranger to know whether the necessity exists in the particular case or not. It is not necessary that the trading should be such as would bring the association within the operation of the bankrupt laws, in order to enable it to draw bills of exchange. If the trade can be carried on more easily with the power than without it, such a power will be presumed. [JBaj^Iey, 3. Here it appears there were to be 10,000 shareholders.] That circumstance does not appear to affect the question of authority. Perring v. Hone (a), was a much weaker case than the present. Though it is not mentioned in the report, the argument turned upon the evidence of the plaintiffs having got rid of their scrip. [Bayley,3. There the plain- tiffs affirmed their being members by selling.] Here the defendant was a party contributing. [Bajy/ey, J. In
(a) 4 Bifigli. 2U.
MICHAELMAS T£R3I« X GEO. IV. 135
Ptning y. Hone the plaintiffs were parties to the original 1829. undertaking.] In Ellis v. Schm€eck{a), the defendants ^^^^'^ purchased the scrip after the company had been formed. v.
It is stated in the marginal note» that the goods had been Valpt. famished after the defendants had become holders of the scrip; but from the case itself it appears that that state- ment applies only to part of the sum for which the plaintiff sued and recovered. [Parke, J. Have you a right to take advantage of the meeting in July? You could not be entitled to use that fact without allowing the defendant to expluB his conduct upon that occasion. Bayley, J. You did JO effect use it.] If there was sufficient evidence aliuodi, the Court would not grant a new trial merely on tkis ground (6). [Parke, J. It is impossible to say whether the jury would have come to the same conclusion if that evidence had neither been excluded nor explained.] If the defendant became a partner by fraud, still« being a partner, he was liable. Suppose bankers represent them- selves as solvent, when they are certainly otherwise, and by such fraudulent representation induce a person to join them, that person would still be a partner, and liable to any engagements which the firm might afterwards contract, unless notice of the fraud is brought home to the plaintiffs; and it is immaterial, as far as he is concerned, under what circtiixistances the partnership was formed.
Scarleti, A. G. contrd. One fact has not been adverted to, namely, the consideration given by the plaintiff for this note. There being fraud in the concoction of the note, it lay upon him to shew from whom he took it. [Parke, J. That point does not appear to have been made at the trial. lArd Tenterden, C. J. You ought to have desired that point to be left to the jury if you meant to take that objec- tion.] I consider that it makes the point as to the fraud stronger, but I pass by that. In order to make the de- fendant liable in this action^ he must have held himself out
(a) S Bingh. 5'i1. Tfynhamv, Tyler^ € Bingh. 561;
(*; Vid€ S. P, ace. Doe d. Lord 4 M. & P. 377.
Dickinson
136 CASES IX THE king's BENCH^
I8e9. &s a partner, or he must have been a partner. It was ob- jected under the bank acts that it was not competent to .-.«ww„ ^jjgg^ parties to draw a bill. [Parke, J. There was no Valpv. evidence of any custom of otiier companies to draw bills, therefore it must be left as a question of law. Lord Ten-' terden, C. J. I think there must be an authority to draw bills, but it is quite a distinct question whether the directors had authority to bind the company by issuing this instru- ment. If the execution of the deed was one mode of shewing that the defendant was a partner, it lay on the plaintiff to produce that evidence.] Without question the directors might bind tbemselvesi but if they can bind the shareholders by any bills which they may choose to draw, such a power would be so full of mischief, yet it was not left to the jury. [Lord Tenterden, C. J. My only doubt is whether there should be a nonsuit or a new trial.] If the law furnishes no proof of authority the plaintiff must be nonsuited, unless he produces the proof. It is a great deal too much to say that the directors have power to bind by accepting bills* It may be competent for them to bind shareholders for goods ordered for the mine, whether they are general partners or only in respect of the particu- lar transaction. Part-owners of ships may bind one another for repairs, not by accepting bills. So, joint occupiers of land. Greenslade v. Dower (a). In that case, though a partnership existed, it was held not to be such a part- nership as to entitle, one to bind the other by accepting bills. Here the partnership was limited to certain opera- tions ; nor was it so conducted as to render it necessaiy that any such power should exist. No presumption there- fore of authority is raised.
Lord Tentekdbn, C.J. — Assuming that the defendant
was shewn to be a partner, and not merely to have done
acts in contemplation of a partnership, it was not proved
that he was a member of a company with an authority on the
{a) 1 M. & R. 640; 7 B. & C. 635.
MICHAELMAS TERM, X GEO. IV.
part of that company to bind him by drawing a bill. The plaintiff should have shewn that the defendant, by deed or itherwise, had authorized the directors so to bind the share- holders. In the absence of such evidence no authority could be presumed, and there was nothing to fix the de- fendant with the bill. The plaintiff ought to have been paid in money.
Batley, J. — I am not prepared to say that sufficient was made out to charge the defendant as an actual partner, or as having held himself out as a partner ; but that would only go to a new trial* The learned judge has assumed that that was done which amounted to an actual partnership. It should be made out affirmatively that it was such a concern >u entitled the directors to bind all the members. The only 4|'iestion for the jury would be, whether in such companies suih a power is in constant use, or it is necessary that there ahouU be sucb power. There was no evidence on either point which would warrant its being left to the jury to find whethi r such a power was necessary. No evidence was given o." what was done in other companies. I apprehend that such a power was not necessary, and that the payments should be made in ready money. To hold otherwise would be to give the directors an unlimited power to pledge the credit of persons who could by no possibility interfere.
LiTTLEDALEy J. — ^Thcre must either be a nonsuit or a new trial. The form of the bill declared on is very un- uaoal. It is not a bill drawn by individuals or by persons carrying on a particular business. Persons taking such a bill had full notice that it was not an ordinary bill. It was therefore incumbent on them to ascertain and to prove that tbe parties by whom the bill was drawn had authority to bind the shareholders. In ordinary cases there is an implied authority resulting from the relation of partner. That is not the case in a mining company. The nature of the association should have been shewn.
Valpt.
138 CASES IN THE KING's BENCH,
1899. In the case of a farm it is not competent for one Dickinson J^^"^ owner to bind his companion by drawing a bill of V* exchange. The object of such a partnership is to sell the
produce of the farm. It is true that in the course of that business it may be necessary to buy many things, but that does not make it necessary that bills should be drawn. Here, if the nature of this business is in fact such as to render it necessary that such a bill should be drawn, it was for the plaintiff to shew it. A man may be secretary to such an association without having any power to bind the shareholders by drawing bills even with the sanction of the directors. It was not shewn that it was necessary that there should be a power to draw bills, still less to draw bills in this particular form. In order to prove that such a power was necessary in the present case, it was incumbent on the plaintiff to shew the nature of the concern carried on by the defendants, or by others in the same business. The instrument declared on is, in effect, a promissory note; and it would require a great deal of evidence to make out that the shareholders would be bound by a promissory note if they would be bound by a bill. If this point was reserved there must be a nonsuit, if not, a new trial.
Parke, J.*-I am clearly of opinion that there must be a nonsuit if this point was reserved ; if not, there must be a new trial, upon more grounds than one. This bill not being accepted by the defendant personally, the plaintiff was bound to shew that the acceptance was given by his authority, or that he has ratified it, notwithstanding the plaintiff may be a holder for a valuable consideration. Here, there was no express authority, and no ratification. But it was contended that an implied authority arose bj reason of partnership; and it was said that the defendant held himself out as a partner, and that he was in fact a partner. If the defendant represented himself to the plaintiff as a partner, or held himself out as a partner in such a manner as to lead the jury to iufer that the plaintiff gave
MICHAELMAS T£RM» X GEO. IV. 139
credit to the defendant as a partner, the defendant would 1829. be liable. But no such representation appears to have been made. Nor was there any evidence that the defend- ant was in fact a partner. The facts proved are all consis- tent with ao intention to become a partner at 'a subsequent period upon certain conditions, until the performance of which no partnership would be constituted. Supposing, however, that the defendant was a partner, no authority appears to arise out of the relation of partner in a mining compaoj to draw any more than in that of joint occupiers of land to draw bills of exchange, and certainly never to draw such a bill as this, which is in substance a promissory note. The argument of the plaintiff would go to shew that is a mining partnership each partner, by drawing bills and passing them into the hands of iudorsers, might pledge the liability of his co-adventurers to any amount. I offer no opinion upon the question whether the proposed evidence of fraud would have constituted a defence. In contending that such evidence would not affect the plaintiff without shewing him to be conusant of the fraud, it appears to be usumed that he was acting on the belief that the defendant was a partner. If the defendant had made a representation to that effect, the fraud practised against himself would be no answer to this action. But the question here is whether an actnaj partnership has been formed as between the parties, and whether evidence of fraud is admissible to negative the execution of any partnership inter se, a question of con** sidenble nicety.
Rule absolute to enter a nonsuit (a). (•) See Bomme v. Freeth, ante, iv. 513 ; 9 B. & C. 633, S. C.
140
CAS£S IN THE KING S BKNCH»
The King v. Sir Thomas Maryon Wilson, Bart., Lord of the Mauor of Hampstead, and William Lyddon,
18^9. . ^ * \m
N^-vi^/ his Steward of the said Manor.
The lord of a A MANDAMUS issued to the lord of the mauor of
bound to ad- Hampstead and his steward, commanding them to admit
init the cus- Joseph Wabnsley, the heir at law, according to the custom
a copyholder of the manor, of Henry Flitcroft, deceased, to the imme*
there'be'a^siu-- ^*^''^ tenancy in possession of certain estates held of the
render to the manor (tf) by copy of court roll, of which Flitcroft had use of a will, and a devise by the surren- deror, there being no claim of admittance on the part of the devisee.
what
This expression is some- incorrect. The copyholds are witliin and parcel of the demesnes of the manor; they are not held of the manor, but are So, although i^u^ manerium. Lands held of
IV'S^jlT^ the manor are those lands which tne return to a . , - ,
mandamus) bavmg been formerly parcel of the
that the non- manor were severed from it by claim of ad- subinfeudation before the passing mittance on ^ y^^ ^^^^^ ^f q^j^ Emptoies, in the part of the ^^^,. . ^^ ^ ',,
devisee, is the ^^^ (*» ^« ^^^ ^^^ ^^^^ ^^^ result of a con- of a subject), or before the statute £)e Pnerogativft Reg^s, in 1SS4(in the case of a manor held of the crown). These sob-infeoflees be- came the freehold tenants of the
trivance be- tween him and the cus- tomary heir to deprive the
loraofthe fine lord, the barons of his curia baro-
which would be payable upon the ad- mittance of the devisee.
In the case of a devise of copyhold sui^ rendered to the use of the
num. {Vide post^ 155.) Their lands were no longer parcel of tl)e manor, but were held of the manor, or, to speak with more precision, they were held of the lord, at of hit manor, ut de manerio. The services of these tenants are parcel of the manor, and so much
will, the estate so, that if their services be de- descends uDon g^ ^j^ ^r severed from the de- the heir, sub- »k k i
ject to contm-
mesnes, the manor has no longer a
legal existence. One of these ser- vices, namely, the secta ad curiam baronum, is so essentially parcel of the manor that it is said that upon the number of suitor-freeholders being reduced so low that no court baron can be held, the estate ceases to be a manor in law, and is only a manor in repntation. By this expression however, nothing more seems to be meant than this : a court baron is a necessary inci- dent to a manor; if, therefore, the power of holding a court baron be destroyed, the estate, though re- taining its manerial character in every other respect can no longer be legally designated as a manor. If, therefore, the lord were to re- lease to hb freehold tenants the suit of court, the manor would be as effectually destroyed or reduced to that imperfect state in which it receives the rather inappropriate name of a manor by reputation, as if all the freeholds had escheated, or as if the lord had aliened his seigniory over these freeholds. Where a manor has become an
gency of being
devested by the admittance of the devisee.
No disclaimer by the devisee is therefore necessary to vest the estate in the heir.
A copyhold may be disclaimed by parol, or by other matter in pays.
MICHAELMAS TERM, X GEO. IV.
died seised, besides the estates held of this manor to which ff'almsley had been already admitted, or to shew cause to the contrary. This writ was founded upon a sug- gestion, first made by affidavit upon the motion for the man- damas^and afterwards inserted in the writ, that Hampstead is an ancient manor, within (a) which are various copyhold tenements parcel of the said manor (a), and granted by and held of {b) the lord of the manor, according to the custom of the manor, and demised and demisable (c) by copy of
imperfect manor, or a manor in repatatioDyby the destruction of all the suit-readeriog tenements ex- cept one (or perhaps two), it would leem that the manor would revive whenever the remaining freehold tenement was divided amongst several tenants holding in several- tv, or even as tenants in common, sooe each of these new tenants wooid owe suit at the court baron, snch toit not being a service arising oot of cHtfoHt, but a service neces- sarily incident to a seigniory by the common law. (Post, 157). The re- daction, therefore, of the number of thefireehold tenants to one (or two, if three be necessary to* constitute a court baron,) seems rather to create a suMpenshn than an extinc- tion of the manor. So, it would ap- pear that the manor would be sus- pended if the lord made a lease for years of the services of his freehold tenants, as during the term the te- nants would owe suit and service at the court of the lessee, who, not being lessee of the demesnes, would not be lord of the manor even du- ring the term.
(«) The copyholds are within and ptrcel of the manor, suprd (a).
(h) These words would apply to the lands of the freeholders or tene- noentanands. With reference to the copyholds they are incorrect.
(c) No land can be granted by copy of court roll which has not been demitable by copy of court roll from the commencement of legal memory, which, though for- merly altered from time to time, has long remained fixed at the coronation of Richard I. (6 July, 1189). If, therefore, it can be shewn that at any time within that period the power of demising has been suspended by the intervention of an estate for life or for years^ all subsequent copyhold grants are void. But it is not necessary that the land should have been actually demited by copy of court roll. Lands which have always remain- ed in the hands of the lord, or in the hands of his tenants at will, whether by free tenure, at the will of both parties, or by villein tenure, at the will of the lord only, may still retain their customary dimisii- hiUty^ or may still be demisable by copy of court roll. The term " al- ways demised and demisable by copy of court roll'' does not ap- pear to be strictly correct. For though the tenant is said to hold by copy of court roll, because, the copy is the evidence which he pos- sesses of his estate, yet the demise is by tlie roll itself, and is antece- dent to the copy. Nor does the granting of the copy seeixi to have
142
1899.
The King
V, WiLtOV.
CAS£S IN THE KINGS BENCH,
court roll of the manor by the lord of the manor for the time being, according to the custom of the manor, to any peraon or persons willing to take the same in fee simple (a) or otherwise (b) at the will of the lord, according to the cus- tom of the manor, and in which manor during all the time aforesaid the lord of the manor or his steward of the manor for the time being, once or oftener in each year, have held, and still of right ought to hold, customary (c) courts of the manor, and have at such courts admitted and ought to admit such persons as have been and are entitled to be admitted as tenants of the customary tenements, and to such interests as they have required and may require^ ac- cording to the custom of the manor ; that Henry Flitcroft was in or about the year 1769 duly admitted to certain copyhold tenements parcel of the manor, consisting (among
been coeval with the practice of entering the admittance upon the rolls. The tenants were called '' tenants by the rolls of the manoi^' before they acquired die name of tenants by copy of court roil. M. 49 £. 3, fo. S5, pi. 9.
(tf) Though in point of tenure a copyhold is an estate in villenage, being held at the will of the lord, and not at the will of the tenant also, yet, if the custom warrant such an extension, it may in point of duration of intertU be held in fee simple. The Cornish villein te- nures III nativft coniientJone, de tep- tem annos in ieptem annoi, appear also to have been susceptible of an extension, in point of duration of interest, to a fee simple. These estates, though, like copyholds, not inconsistent with the personal free- dom of the tenant, have long since disappeared. The higher species of conventionary tenure, in liber& conventianef de teptem anntn in ieptem anno$, which still subsists,
is likewise capable of acquirinp; a customary duration in fee simple. In copyholds, however, the exten- sion of the original interest in point of duration is noticed in the instru- ment of grant to which the lord is party; whereas in the Cornish as- sessionable manors, though the cus- tomary tenant surrenders to the purchaser, in fee according to the custom of the manor^ the surren- deree is admitted, by the duke's commissioners upon the assession roll, merely to the original estate from seven years to seven years, according to the custom of the manoTy which words seena, in the former place, to point to the septennial tenure, and in the latter, to the customary permanence of the interest.
(b) Where the custom warrants a grant in fee simple, the lord may create any less estate. 4 Co. Rep. 23 a; Co.Litt. 52, b.; 1 Roll. Abr. 511, 1. 30.
(c) Vide post, US, (a).
Wilson.
MICHAELMAS TERM, X GEO. IV. Other tlHDgs) of a bouse and 46 acres of land at West End, in the said manor, and a house at Frognall, in the said manor, xhTking to hold the same to him and his heirs at the will of the lord, v.
according to the custom of the manor ; and that Fiitcroft, on or about 3d April, 1826, died so seised of the said copy- hold tenements, and that Walmdey is the heir at law, accord* ing to the custom of the manor, of Flitcroft; that at a general customary (a) court holden for the manor, on or about the eighth day of January 1829, application was made to the steward, by and on behalf of Walmsley, to admit him, Wabndeyf so being heir at law, according to the custom of the manor, of Flitcroft, to the said copyhold tenements, as tenant thereof in possession, and that frequent application bad since been made by Walmsley to admit him to the same copyhold tenements as the right heir and heir at law of Flitcroft, according to the custom of the manor ; that the steward had refused to admit Walmsley as tenant in pos- session of the said copyhold premises by reason or pretence of a certain alleged surrender made by Flitcroft in his life time to the use of his will, and of certain life and other estates alleged to have been devised in and by the will of Flitcroft after the time of the said surrender; and that on the twenty-eighth day of May, in the year 1829, at a certain customary court then held in and for the manor, Walmsley had attended the said court, and had again requested the said steward to admit him, Walmsley^ to the said copyhold tenements as tenant in possession, and pro- duced and tendered to the steward a certain disclaimer duly made and executed by James Fletcher and Anna Maria Etcher, the only surviving devisees under the said will, whereby they the said James Fletcher and Anna Maria Fletcher disclaimed, renounced, and relinquished all right and title whatsoever of, in or to the said copyhold tenements ; yet the defendants well knowing the pre-
(«) The proceedings in this case freeholders only, and in which the would take place, not in the Coart suitors are judges, but in the Cus- fiaroD, which is the Court of the tomary Court, at which the copy^
144
J82g.
The Kino
V,
Wilson.
CASES IK THE KINGS B£NCH|
mises, but not regarding their duty in that behalf, had absolutely refused^ and still did refuse, to admit Walmsky to the said copyhold tenements as tenant in possession thereof, according ta the custom of the manor.
To this writ the defendants returned, that at a court baron (a) held for the manor, 8 May, 1769, Flitcroft had been duly admitted as tenant to the copyhold tenements holden of the lord of the manor (6) and parcel of the manor, to hold the same to him and his heirs at the will of the lord of the manor, according to the custom of the manor, as in the
holders are bound to attend, bat in which the steward of the manor IS the judge. For the sake of con- venience both Courts are generally held at the same time, as is also the Court Leet, where the lord pos- sesses that franchise; but though these three Courts, or any two of them, may, by usage, be held at the same time and place, and the pro- ceedings entered in the same book, they are perfectly distinct and in- dependent.
(a) But see the preceding note.
(6) Copyholds being part of the demesnes are parctl of the manor, and not htld oftYit manor, stiprd, 143 (a). The tenemental lands, or lands held by the freeholders of the manor, are not, stricdy speaking, jMirce/of the manor, yet as the ser- vices of these freeholders are par- cel of the manor, and as the lands jihemselves must have been once part of the demesnes, and are still within the seigniory, such tene- mental lands were said (by Shard, J.) to be quasi parcel (par roaner parcel) of the manor. Fitz. Abr. 12 Ass. 18, Auncien Demesne, pi. 33, which is a more full report than is to be found in the Year Book, 12 Ass. fol. 35, pi. 18.
where this dictum is not men- tioned.
Much confusion often arises in the use of the terms ** within the * manor," " within the fee and seig> niory of the manor,** and ** within the ambit of the manor.** The first of these terms applies to land in the possession of the lord, or of his leaseholders or copyholders. The second, to lands which, being formerly within the manor, were, before the statute of Quia Emp- tores or De Praerogativft Regjis, granted by the lord to be held of the grantor in fee /is of his manor. The term ** within the ambit of the manor," is applicable to land wluch, though surrounded by the manor, is neither parcel of the manor nor held of the manor; land which never was connected with the manor in point of tenure, or which, having been formerly within the manor, has been aliened from it in fee, either by a direct conveyance, tenendum of the chief lord of the fee, before or since the statutes, or by a subin- feoffment before the statutes, :iince followed by an alienation of the seigniory to a stranger, or by a re- lease of the seigniory to the tenant.
WlLSOV.
MICHAELMAS TERM, X GEO. IV.
said writ is mentioned; and that Flitcroft did at such Court, after his adoiission to the copyhold tenements as aforesaid, xu^X^ duly surrender the same into the hands of the lord of the v.
maDor, by the rod, by the hands and acceptance of the steward of the manor, according to the custom of the manor, to and for such uses, intents, and purposes as he, JFYtVcro^, should, in and by his last will and testament in writing, thereof direct, declare, limit, or appoint; that on the Sd day of April, 1826, Flitcrqfi died so seised of the copyhold tenements as aforesaid, having first duly made and published his last will and testament in writing, duly exe- cuted for devising copyhold estate, whereby he devised the copyhold tenements to his mother for life, with remainder, after her decease, to the use of James Fletcher for life; and from and after the determination of that estate, to the use of trustees in trust to support and preserve. Sic. ; and firoffl and after his decease to his first and other sons in tail male, with remainder to all and every the daughter and daughters of J. Fletcher in tail general; and on failure; of issue of J. Fletcher, to the use of Anna M. Fletcher for life, with like limitations to her issue; and in default thereof to the use of M. Fletcher for life, with like limitations to her issue, and the ultimate remainder to the right heirs of Ffiicrofi; that Lyddon did, on the 15th day of June, 18£7, make search at the Register Office for the county of Middlesex, and on such search did find an entry in such register of the memorial of an indenture of release, bear- ing date the 24th day of August, 1826, made between J. Fletcher of the first part, A. M. Fletcher of the second part, and Walmsley of the third part; by which release J. Fischer and J. M. Fletcher, for the considerations therein expressed, did demise, release, and for ever quit claim unto Walmsley, all the copyhold messuages or tenements, lands and other hereditaments, situate and being within and held of (a) the said manor of Hampstead, of or to which Flitcroft was seised or entitled at the time of making (fl) Vide supra, n. (a). VOL. V. L
146 CASES IN TH£ KINO's B£NCH,
18S9. his thereinbefore recited mlU and also at his death, with
,^!r^C^ ^he appurtenances and all the estate, &c« : to hold the said The KiHo ;\^ o , . , . ,
o. copyhold messuages, &c., thereby released^ and every part
Wilson, thereof, to Walmsley, his heirs and assigns, for and during all the rights and interests by or under the said will of FUtcrtfi devised to or otherwise vested in J. Fletcher or il. M. Fletcher, or either of them ; to the end and intent the same rights and interests might severally merge and be extinguished in the estate which had descended upon Walfnslejf as customary heir of F/itcroft; that Lyddon also found on such search another entry in such register of the memorial of another indenture bearing date 25 August, 16^, and made between Walmsley of the first part, A. M. Fletcher of the second part, and J. Fletcher of the third part; by which indenture, in consideration of a covenant entered into by J.Fletcher and il. M. Fletcher to surrender all their estate and interest in certain copyhold estates of Ftitcrqfi, and also in consideration of 2,500/. to Walmsley paid by J. Fletcher^ the said Walmsley, with the consent and approbation, and at the request of A. M. Fletcher, did grant, bargain, sell, alien and confirm, unto J. Fletcher and his heirs, all that the remainder or reversion in fee simple, to take effect in possession upon the several deceases of J. Fktcher and A. AL Fletcher, and failure of th« issue of the respective bodies of J. Fletcher and A. M. Fletcher of and in the therein described lands, tithes and hereditaments in Hendon, and all other the manors, rectories, advowsons, messuages or tenements, lands, tithes, hereditamei^ts and premises whatsoever of Flitcroft in Hendon, habendum unto the use of J. Fletcher and his heirs ; that the said copyhold tenements mentioned in the said indeoture of the 24th of August, 1826, and the said copyhold tenements mentioned in the said indenture of the 25th of Augnst> 1826, are the same copyhold tenements, and not other or different, and that they comprise the said copyhold tene- ments devised by the will of Flitcrofl ; that the supposed disclaimer by the said J. Fletcher and A, M. Fletcher bears date the 4th of May, 1827, and subsequently to the indeu-
Wilson.
MICHAELMAS TERM, X GEO. IV. tores of 24 and 25 August, 1826, and is colourable only, »d was made for the purpose of depriving and defrauding xhe Kino the lord of the said manor of the fines which would have __. v. beea payable to him on the admissions of J. FleUhtr and A. If. Fletcher respectively to their said life estates in the said copyholds, according to the custom of the manor; that »t a general court baron {a) held for the manor on the 8th of January, 18279 Walmsley was admitted, as the heir (JFUicrofl, to the immediate tenancy in possession of the copyhoM estate in the manor, late of Flitcroft, not surren- dered to the use of his will, and that Walmsley was so admitted by Lyddon, tlie steward of the said manor, from his erroneous belief that the said copyhold estate did not pass by the devise in the said will, because it had not been surrendered to the use of Fliicroft's will, and therefore descended to Walmsley as heir, and that Walmaley was admitted to the same estate upon no other ground than that the same had so descended to him ; that within the manor there now is, and from time whereof &c. hath beeut a certain ancient and laudable custom there used and ap« proved of, that is to say, that when a customary tenant has surrendered a customary tenement of the manor to the use of his will, and has afterwards devised the same to any person or persons for life or in tail, with remainder to any other person or persons for life or in tail, or in fee, such devisee or devisees has or have been admitted by the lord of the manor to the same for or according to the estate or interest, or respective estates or interests of such devisee or devisees therein. And these are the causes, 8cc.
Longf for the prosecutor of the mandamus. Upon this writ and return five points are raised for the consideration of the Court. First, on the death of Flitcroft the estate de- scended to bis heir. Secondly, on the neglect of the de- visees to come to be admitted, and more especially after their disclaimer, the heir had a right to be admitted.
(fl) AniCy 143 (fl). l2
148 CASES IN THE KlNO's BENCH,
18^9. Thirdly, the deeds of 24th and 25th of August, 1826, did not take away the right of the heir to be admitted. Fourthly, the ieiniount of the fines payable to the lord io respect of the admission of fValmsley, cannot be gone into upon a return to a mandamus. Fifthly, the custom stated in the return does not vary the right of the heir. On all these grounds Walmsley is entitled to a peremptory mandamus. On the death of Flitcroft, the estate of which he died seised vested in his heir. Roe d. Jeffereys v. Hicks (a). In that case Joseph Jeffereys surrendered to the use of his will, and devised to his niece Elizabeth, who was attainted and exe- cuted for the murder of her uncle, and it was held that the estate descended upon the heir of the uncle, and that the niece, who was not the heir, had nothing to forfeit to the lord. In the case of a surrender to the use of a will, the estate remains in the surrenderor and his heir until the admittance of the devisee. Smith v. Triggs{b). A surren- deree cannot devise before admittance. The cases which shew that where there is an intermediate life estate, the estate does not descend, are not disputed. Here, in whom M'ould the estate be, if it did not descend ? In no case can there be any thing like' an abeyance of the copyhold. As soon as one person ceases to hold, another becomes tenant. The estate descends, but liable to be divested upon the admittance of the surrenderee. Secondly, if the devisee do not choose to take the tenancy upon himself, either the lord has a right to compel the heir to be admitted, or the heir has a right to assume the tenancy. Here there is a distinct disclaimer. In Townson v. Tickell (c), a disclaimer
(a) 2 Wils. IS ; 1 Ken. 110. cordance with that given in Tovn-
(6) 1 Stra. 487. son v. Tkkelly was reversed in the
(c) 3 B. & A. 31, overruling House of Lords. For a full no-
Butler and Baker*s case, 3 Co. Rep. count of the proceedings in 7a»ii^
25, upon the supposed authority of son v. 'HckeU^ and the peculiar
Bonifaut v. Greenfield, Cro. £1. 80, circumstances attending that case,
which turned upon the wording of vide ante, iv. 189, (a)< And see
a particular act of parliament, and litt. Sect. 685; Co. Litt. S60, n. ;
of Thomson \\ Leach, 2 Ventr. 196, Doe v. Sn^th, 6 B. & C. US; 9
the judgment in which case, in ac- D. 6c R. 136.
The Kino
V.
MICHAELMAS TERM, X GEO. IV. 149
bj deed, by the devisee of a freehold estate, was held to be ^q29. sufficient to divest the estate. The present case is stronger, because in a copyhold the estate does not vest in the devisee by the will, which only operates as a designation of the Wilson. person entitled to be admitted under the surrender. In Towmofi \. Tickell, Lord Tenierden says, " the law is cer- tainly not so absurd as to force a man to take an estate against his will." Ilolroyd, J. says, '' that even a parol disclaimer would be suflScient," relying upon Bonifaut v. Greenfield (a). This will apply with still greater force to the case of copyholds. In the case of the devise of a free- bold, the devisee becomes seised upon the death of the devisor, by force of the Statute of Wills. A plausible argu- ment is raised in Tawnson v. Tickell in favour of the neces- sity of a disclaimer in a Court of record, but that objection was overruled. In Wainwright v. Elwell{b) it was held by Plumer, V.C. that the devisee of a copyhold surrendered to the use of the will of the surrenderor could not devise. [Bayley, J. A surrenderee cannot surrender before adniit- Unce, Doe d. Tofield v. ToJield(c).] Thirdly, the deeds of S4th and 25th of August, 1826, do not take away the right of the heir to be admitted. An equitable interest is assign- able, and it would be strange if the interest of the devisee of a copyhold could not be got rid of. The second deed {d) states a transaction which is partly in the nature of a sale and partly in the nature of an exchange. The lord has nothing to do with either of these deeds, and cannot take adtautage of the arrangements effected by them, whatever question they, may give rise to between the heir and the devisees in a Court of equity. The heir has given a valua- ble consideration for the release of the surrenderees.
(a) Which merely decided what ance of such executorship. See
shoold amount to a refusal of the this case stated and eiaraineil,
office of executor, and what should an/e, iv. 190, n. (not divest an estate, but) prevent (/>) 1 Madd. 687.
an estate from vesting, which was (r) 1 1 East, 246.
made depeudant upon the accept- (</) 25 Augubt, 1826, vnte, 146.
CASES IN THE KING S BENCH,
Fourthly^ no question as to the amount of fine can arise until after admittance (a). [This was conceded on the other side.] Fifthly, the customs set out pervade all copy- hold manors. [Comyn, It is not admitted that the lord cannot compel the devisee of the surrenderor to come in and be admitted tenant. Bayley, J. The custom stated is in effect, that the lord may compel the devisee to come in, and may seize quousque.^ If the devisee be not compella- ble to come in, the heir must come in, as the lord must not lose his tenant. These rights are reciprocal.
Comyn, contrsk. It is the right and the duty of the lord to see that he has a proper and legal tenant admitted to the copyhold. All will resolve itself into a question whether the heir has a right to be admitted tenant in possession. It is submitted that he has no such right, because the estate has not descended to him though heir^ and he is only entitled upon failure of all the intermediate estates. He is heir at law in remainder. The lord is bound to see that a proper person is admitted tenant. [,Bayley, J. What authority is there for that proposition?] It requires none. [Lord Tenterden, C.3. The question is the same as if the surrenderor had devised away in fee.] Until the death of the appointees, the heir has no estate. The heir can have no estate until the life estate is extinct and upon failure of issue in tail. [Bayley, J. He does not claim under the remainder, but as heir of the person last seised, no other person appearing to claim to be admitted.] The lord knowing that another, person is entitled, is bound to hold the estate for the party entitled. It is merely co\onr- able and fraudulent in Walmsley to claim as heir, when he has a secret deed from the persons interested under the devise. The cases cited to shew that a party is not bound to take an estate against his will, do not apply. There is no doubt but that such party may disclaim, but it is denied that the devisee has a right to claim an interest, and to convey that interest clandestinely to the heir, for the pur- («) S. P, Bucon v. Flatman, cited 4 Co. llep. 28, a.
The King
]UICHA£LMAS TERM, X GEO. IV. 151
pose of getting rid of the liability of the devisee to he i8«0.
admitted. [Boy/ey, J. What right has the lord but to
have a tenant i The estate remains in the surrenderor and
bifi heirs until the suiTenderee comes in to be admitted. Wilson.
If the surrenderee surrender before admittance, he conveys
00 estate of which a Court of law can take cognizance. So
if such surrenderee devise before admittance.] The writ
does not state that the claimant is heir at law of the estate.
[Bayleyf J. It alleges that F/ilcroft died seised, and that
Walmtky is heir according to the custom, upon which the
law says that he is heir of the estate.] He is not heir at
liir of this estate, but he is entitled under the intermediate
devise. [Parke^ J. The estate must be taken to descend,
UQtil the contrary be shewn.] The mere neglect of the
teoants for life to come in does not affect the rights of these
parties. The Court will not say that the lord shall have a
tenant although he has no right to refuse to admit the
proper tenant.
Loitg, in reply, was stopped by the Court.
LordTENTERDEN, C.J. — By the common law the estate is in the surrenderor and his heirs until the surrenderee comes in to be admitted. Here the estate descended sub- ject to the right of the appointees to come in and claim admittance. When they declare that they will not come in, that obstacle is removed. If the effect of the deeds were to shew that the devisees were taking a benefit under the will, and that a loss accrued to the lord by the arrange- ments made between these parties, the lord must proceed in another way. We have only to see whether the heir has a right to be admitted.
Bayley, J. — The Court is bound to look to the legal title. The lord has a right to have a person in whom the legal estate is, admitted on the roll, and that person has a right to be admitted. The estate is in the surrenderor and
The Kino
152 GASES IN THE KlNC's BENCH,
1829. in bis heirs until the devisee^ ivho is the surrenderee desig- nated by the will, comes in. Until he comes in, the estate V, is in the heir, who now claims to be admitted, not in respect
Wilson. ^f j^jg reversion, but in respect of his immediate estate. FlUcrofi died seised, therefore the estate descended. The heir may bring trespass ; which shews that the estate de« scends upon him. Except as against the lord, the heir M'ould have the whole estate in him. l^e admittance is for the benefit of the lord. The lord cannot seize or make proclamations, except for the purpose of placing himself in a situation to do what the mandamus requires, and it is only when he has so done that he will be entitled to the fines. My only doubt was, whether the heir could obtain a mandamus, because the right of possession was in him before. But that doubt is removed by the case of JBejr V. The Brewers' Company (a).
LiTTLEDALE, J. — I am of the same opinion. It is not necessary to consider what fines the lord is entitled to receive. If this is, as has been insinuated, a scheme and contrivance to do that which the law does not sanction in defeating the claim of the lord to new or greater fines, the lord must have his remedy either by action or by bill in equity. Here the legal estate is to be considered as if it virere a case of ejectment. It is the same thing whether the surrenderor makes a will or not; and it is clear that if the surrenderor die without making a will, the estate de- scends to the heir. If the life estates created by the will be disclaimed, it is the same thing as if they had never b.een limited. In some manors the custom requires that the pre- sentment be made at the next Court; in others, that it«be presented within the year. The situation of the parties is the same as if the appointees had not chosen to come to the next Court, or at the Court at which they were entitled to be admitted, except that the disclaimer makes the case still stronger. The effect of the disclaimer is to place the parties in the same situation as if no devise had been made.
(fl) 4 D. & R. 492; 3 B. & C. 172.
MICHAELMAS TERM, X GEO. IV.
Pabke, J. — I am of the same opinion. The question lies in the narrowest possible compass. Not a single au- thority has been cited to impugn the grounds upon which this writ was obtained. Upon the death of the surrenderor the estate descended to the heir> who has a right to a man- damus to admit him^ he taking his chance whether the devisee will apply to be admitted. Any dii&culty is, how- ever, removed by the disclaimer of the devisees ; though I think that without a disclaimer the heir would have been entitled to be admitted. If a fraud has been practised upon the lord, he has his remedy in another shape (a).
153
1829.
The Kino
V.
Wilson.
f^y^ («) A manor is commonly said
mm, bj the text writers to consist of
demesnes and services. This is
rather a statement of some of the
incidents of a manor, than a strict
bgal de6nition. On the other
handy persons who are not lawyers
fieqoently comprehend under the
term manor, circumstances which
hate so necessary connection with
tbb species of esute. Thus the
i right to wastes within the district
/ ofer which the manor extends, is
frequently called a manorial right ;
l&oogh the right of the lord to such
•rastes, where there has been no
actoaJ possession, rests merely upon
the presumption that they belong to
cbe lord as the present owner of
^ demesnes, and as the ancient
o*Der of the tenemental lands, by
*hich these wastes are surrounded.
^ same presumption would arise
io hnmr of any other owner of an
eUeosire district enclosing wastes.
&,the seigniory of copyholds is
fnqoently an incident to a manor;
but there are many manors in
whidi this species of tenure does
not appear to have ever existed,
and still more in which it has been
kM^ extinct; and though no copy- *
holds unconnected with a manor exist at the present day, the custom of demising by the lord's rolls ap- pears to have formerly been com- mon to every lord who had de- mesnes which were held in vil- lenage. So, the right to have a Court-Leet is a royal franchise, under which the grantee holds a court of criminal jurisdiction in the king's name, over the resiants (residents) within a particular dis- trict. This privilege may be granted to persons who are not lords of manors; and where the grantee has a manor, the limits of the manor and of the leet are not necessarily co-extensive. So, ex- cept in the case where a grant of free warren or free chase is an- nexed to a manor, the lord has no other privilege in respect of gamCf than the power given by modem statutes of appointing a gamekeeper. With this, however, is frequently confounded the ad- vantage derived from the pre- sumption of ownership over ex- tensive wastes, which has already been shewn to have no necessary connection with mmima/ rights. A correct legal definition of a manor,
154
CASES IN THE KINGS B£NCH,
1829.
The Krifo
V,
Wilson.
Mnotloii-hoiiM, how far neeeanry to a
tb« terms of which nothing can be added to or taken from, it would be difficult, if not impossible, to find in our text writers. An at- tempt to supply this apparent omis- sion may not be considered to be misplaced. A manor contitit of demesnes and an appendant mesne seigniory ovtrfreehoUerSj qualified^ in respect of quantity of estate^ and sufficient^ in point of numbers, to constitute a Court- Baron.
Formerly there could be no manor without a mansion* bouse (manerium, manoir) at which the services were due and might be ten- dered and from which this peculiar species of estate derived its appel- lation (Maseres, Ubtoriae Angli- cans Selecta Monumenta, 256, n.). At the present day the demesnes may, and very frequently do, con- sist entirely of land; and there may be a good legal manor, although the mansion-house, or the spot on which it stood, (usually described as the scite (site) of the manor,) have been aliened from the manor; (and see Winter v. Love- day, 5 Mod. 382; Owen, SI; 4 Inst. 268;) or it cannot he now shewn that any mansion ever existed on the land; though it would seem that no estate could ever have acquired the name of a manor without possessing a man- sion-house on the demesnes. Be- fore the statute of Quia emptores terrarum, 18 Edw. I. cap. 1 & 2, when seigniories might be created at pleasure by unlimited sub-infeu- dations, the existence or the non- existence of a seigniory at any par- ticular period would be an imma- terial circumstance in comparison with the lord *s mansion, by services to be perfonned or tendered at which the subtenure was distinguished.
And see Plowd. 169; Fulb. Par. 18 a, b; Maseres, Hist. Ang^. Sel. Monumenta, 255 n; Appendix to 3d Report of the Common Law Commissioners, B. 20.
The demesnes are an integral p^"*" and necessary part of the manor; for if the lord alien all the de- mesnes, bis remaining estate will not be a manor, but a seigniory in gross, a species of estate verj com- mon in the earlier periods of our legal history, but now practically almost unknown in England, though still subsisting, in a somewhat simi- lar form, under the name of supe- riorities, in Scotland (a).
The demesnes are those lands of which the lord is seised, whe- ther they are in his own occu- pation, or in that of his tenants at will, or for years. Of these the former have either a customary es- tate, as holding at the will of the lord, according to the custom of the manor, or they have a common law estate, holding at the will of both lessor and lessee. The te- nancy for years is, in modem times, usually a common law estate, though in the assessionable manors, parcel of the duchy of Cornwall, customary estates for years are still subsisting. (^Rowe v. Brenian^ ante, iii. 133, 143,b. 243,310,311, 313, 314, 315, 316,318,326, 357, 358, 362, 363; Mann. Exch. Pnict. 2d edit. 357, n.) If the lord of a manor were to make a gift in tail or a lease for life, of all the demesnes, there would, during the continuance of the particular es- tate, be no demesnes within the manor. The services of the free- holders of the Court- Baron would not be appendant to the demesnes, but to the reversion of these de-
(a) The Tnnch Jirft en Cair^
UICHAELMAS TERM, X GEO. IV.
155
expectant upon the deter- I mination of the particalar estate.
I Daring the continuance of this
I state of things it would seem that
the lord woold have, not a manor, bot a doable seigniory in gross, one io respect of the donees in tail or lessees for life, the other in re- spect of the ancient freehold te- Daots of the manor. And see Bartop ?. Tuck^ Hetl. 14; Brace- ^iev, Coote, Plowd. 4«2, b. J^^"- To constitute a manor there
■tosarj
biiAf. most not only be demesnes, but also, appendant thereto, a seigniory Ofer freeholders. And this must be a flteme seigniory (a) ; since DO freeholder, holding in capite, can, in respect of the same free- bold, hold of a manor; and, e coweno, the king cannot, jure (oroMj be lord of a manor (6). These freeholders, we have seen (c), constitute the curia baronom, the word baron having been formerly bynonimoQS with freeholder (c/). In order to determine that a parti- Cblar district constitutes a manor, it mtst be ascertained that a per- son seised of land within that dis- trict is also seised of the services of twoor more other freeholders of in- beritance within the same district, aod that the seisin of the land and the seisin of the services of the freebolders have,yor any thing thai en he tketpn to the contrary^ been mited ever since the statute De Pnerogaiivft Regis, if the land be holden immediately of the crown, or »nce the statute of Quia emp- tores, if the land be holden of a subject.
(a) 2 Inst. 501.
{b) Eiundk'f case, 12 Co. Rep. 1 36.
(c) Antt, 143.
(<0 In Gennany baroDji bv tenure, and in later times, same of tiie titular biroos are qalledjrce lords, /rryfccrrrn.
TheKrMG
V.
Wilson.
In honors or very eitensive ma« 1899.
nors, a distinction appears to have been drawn between the greater and the lesser barons, the former only being acknowledged as the pares curi*. The We of Wight l^r.^SToV was granted by King Stephen to Wight, ciUcd W.de Redvers, and was surren- dered by his descendant, Isabella de Fortibus, to King Edward I. in 1993. During the 150 years that this honour was in the bands of a subject, the freeholders holding im- mediately under the lord of the island, owed suit and service at the lord's court. Those tenants however only were summoned who held to the extent of a knight's fee (e). Hence the Court was not simply Curia Baronum, but Curia Militum; and it still exists (/), (by the name of the Knighten Court; the suitors being those who hold of the king, as of his cas- tle of Carisbrook, (the maneriwn of the island) to the value of SO/, per annum (g). It does not appear that the machinery of these Courts has proceeded so (ar as to allow of the lesser barons appearing by a select portion of their number, as in the great Conrt-Baron of the realm.
So much importance attaclied to the possession of a mansion- house, at which the services of tenants might be rendered, that a villein who had a man- sion upon his villenage, might grant portions of his vittenage
(e) Knight's €ees were usually either manors or seigniories in gross, T. 16 £3, 7m»er Temple MS, ; M. 17 £.3, fo. 8,pl. 10.
(/) Now held within the borouah of Newport, but/or the whole island.
(f) from the documents produced at the trial of the case of Mayor, ^c. of Newport v. Saundert, Winchester spring Assizes. 1832, cor. Park, J.: And see .Sir R. Worsley's History of the Isle of Wight.
156
CASES IN THE KING S BENCH,
1829. The KiNC Wilson.
Power of crown to create a nanor.
to be holden of him as of his ma^ nerium. The estate of the grantor, consisting of this mansion-house and the ungranted portions of the viilenage,in demesne, and of the ser- vices of the granted portions of the villenage, was called a customary manor (a). See Sir Henfy NevilTs case, II Co. Rep. 17 ; Moore v. Goodgame, Cro. Jac. 397; Reg v. Sianton, ib. 259; Rex v. Stafferion, 1 Bulstr. 54.
It has been said (Morris v. SmUh, Cro. £1. 38, arg. ; Shower, 142, ai^.) that the king cannot, at this day, create a manor. And this is per- fectly true; because the king neyer could create a manor. If before the statute De Prserogativft Regis the king had granted land to ^., the grantee might have 8ub-infeo6Fed B., C, D:, £., and F. of parcels of the land, retaining the rest in his own hands,' or in the hands of his te- nants for years or at will. A. would then have had a manor; but this manor could not be said to be created by the crown, as the king could not create the sub-tenure, by which the manor was constituted. So, since the statute De Prserogati- to create a manor, vft Regis, if the crown grant land to J., and either at the time of the grant or subsequently, license A, to sub-infeoff B., C, D., E. and F., of parcel of the crown grant, the effect would be the same as before the statute, that statute making no other alteration in the law than imposing the necessity of obtain- ing a licence for sub-infeudation. Even in land which not being held
(a) Another species of customary manor might, and may still, be created by a grant or a demise to a stranger of the seigniory of all the copyholds, or of all the copyholds withm a cettain district. 4 Co. Rep. 26, 7.
Power of fobjcct
immediately of the crown, falls within the provisions of the statute of Quia Emptores, there appears to be no other obstacle to the creation of a new manor than the necessity of obtaining the li- cence as well of the crown as of all intervening lords. Thus Lord CoAe says, (2 Inst. 501,) ** these general words iia tamen quod feoffatus te- neat terram illam seu tenementum iUud de capiiali domino feodi illius have a tacit exception, viz. unless all the lords, mediate and imme- diate, do assent thereunto, for guilibet renunciare potest benefido juris pro se introducti.*' (And see Co.Litt. 99, d.) The language of the Stat. De PrserogativH Regis is, '< nullus qui teneat de Rege in capite per servicium milUare poterit alie- nare mnQorem partem terrarutn sua- rum, iia quod residuum non sufficiat ad faciendum inde servicium^ sine LiCENTiA REGIS.** In tlio printed statutes the following words are added, which evidently form no part of the act. '< Sed hoc non consttevit intelligi de membris et particulis terrarum earundemJ* It seems also to be questionable whether, as the language of the statute De Prsro- gativ& Regis is '' qui tenet de Rege in capite per servicium militare,'* its provisions are not become in- operativeby theabolition of military tenures. If so, then inasmuch as the statute of Quia Emptores does not extend to lands holden in ca- pite, but speaks of the '< emptores terrarum et tenementorum dejeodis iiAONATUM et tdiorum dominorum, in prajudicium eorundem^{b) it will follow that a freeholder holding in capite may at this day, without
(6) And see 1 Tho. Co. Litt. 527, n. (1.) ; 2 Tho. Co. Litt. 21 1, n. (A.)
MICHAELMAS TERM, X GEO. IV.
157
liceoce, make a sob-infeofihient or grant land in fee simple to be boideo of himself, as be undoubt- edly may do wUh tbe licence of the crown, under the express (vorisions 6f the statute De Prae* ropidvft Regis, if the land be holden in capite, or with tbe licence of the lords mediate and immediate, under the implied, or^ u Lord Coke calls it, tbe tiKti ex- ception in the statute of Quia Emptores, where the lands are bol^cn of a subject. Hdmet v. Etmh, U Mod. 494. The posi- tion of Mr. Baron Maseres (Hist* Angl. Sel. Mon. 256, n.) and of others {Morris y. Smith, Cro. £1. 98, 39; Marsh v. Smith, 1 Leon. S6) that ** it has been impossible to create a new manor ever since 1290,** appears, therefore, to be ex- pressed too generally. It is said indeed in an original case in Brooke,(Bro. Abr. Comprii, pi. 31,) to hare been held in 33 H. 8, that a man cannot create a manor by grantiug estates tail to hold by service of suit of court, because a etmri cannot he but by continuance ca^ contrarium, jrc; but a Court- Baron appears to be incident to tcnofe at common law, requiring ndeber grant nor prescription to aphold it. Rex ▼. Stafferton, 1 Boise. 54; & C. per nomen Rex v. Stmntcn, Cro. Jac. 260; Brown v. GoUtmith, F. Moore, 870; Pell v. •Soners, Noy, 20; Co. Litt. 58, a. ; 9 lost. 43; Maseres, Hist. Angl. Sel. Mon. 256, n.; ante, 140, (a). Before the statute of Quia £mp- tores a tenant in fee simple might hare created a tenure under him- self as laige, in point of duration, as his own estate; and in the case of an entry upon the sub-tenant
1829.
in fee for a forfeiture before or since the statute, the lord is said to be in of his reversion. So, upon judgment of ouster, for non- performance of the services re- served, in a writ of Cessavit per biennium, F.N.B. 208, Fitz. Abr. 20 Edw. 2, Brief, pi. 826, though the statute (6 Edw, \, c. 4,) says nothing about revert- ing or reversion. So, the writ of escheat, which is at common law, is *^ qua ad ipsum reverti debet tan- guam escaeta sua,** F. N. B. 144.
As the statute of Quia Emptores Power of t does not affect chattel interests, it teauicy duriag seems to be not unreasonable to ***« ''*^** *•""• contend that a termor may create a sub-tenancy equal, in duration, to his own term, and that, as in the case of a sub-tenure in fee, the sub- lessor has such a reversion as will enable him to distrain for the rent or other services reserved upon the creation of the sub-tenure. To entitle a lessor to distrain, . it is necessary that he should have a reversion to which the rent may be incident, litt. sect. 215. By the term reversion, is meant the returning of the estate to its ori- ginal owner. During the parti- cular estate upon which the rever- sion is expectant, the reversion is the • expectancy of such return; after that estate is determined, the reversion is the land itself so returned, Plowd. 158, b.; ib, 160. But to constitute a reversionary interest, it is not necessary that a particular estate be so limited that the land will certainly return to the party creating the limita- tion or to his representatives. It is sufficient if the estate may so return; as in the case of a sub- tenure in fee simple, Litt. sect.
168
CASES IX TH£ KINGS BENCH,
18^.
The Kino Wilson.
^iOf Plovrd. 159, or io fee tail» IiU.9ect. 18, Plowd. 159, it never being questioned but that a donor in \Ail might distrain, though the contingency of the failure of the estate tail seems at one period to have been considered too remote to entitle the heir of the donor to devise the reversion under a cufr* torn to devise fjands, SI A as. fo. 185, pi. 3. A distinction is in* deed sometimes made between a reversion expectant upon an estate tail or other less estate, and the contingent interest of the lord in the case of a sub-tenure in fee by calling the latter <* a right of re- verier r hut this distinction is of little consequence, either being sufficient to support a distress.
This principle appears to be equally applicable to the case of a term of years created by a party who holds fur a term, of the same duration in point of express limitation, but which it may possibly exceed. It is the common practice to limit an es-^ tate to A, for life, remainder to B. during the life of A. ; which re- mainder consists in the expectancy of the possible determination of ^.'s estate by forfeiture or other- wise, during the life of A. Now if this be a valid limitation, so that on a forfeiture by A,, A.'s remainder shall vest in posses- sion, it seems difficult to say that if B. were afterwards to make a new lease for life to A., tenendum of £., B. would not have as good an estate in reversion as he had before in remainder. With re- spect to sub-tenures in fee simple and in fee tail no question seeoM to have been jaised. But as some doubt has been thrown upon
the right of the sub-lessor lor yesn to distrain where the seooad* ary term is for the same period as the primary, it may not be im< proper to examine the cases in which this point has come before the Court.
The earliest mention of this subject is in P. 45 £. 3, fo. 8, pi. 10. That was an acdon of debt brought by a party who had onljf a chattel interest, (the ward* sliip of an heir,) against his les- see, for arrears of rent. The de- fendant pleaded, that the rent would not be payable till the end of the term. In overruling this plea, Finchden^ C. J. says, " If I be seised of certain lands and let them to a man for a term of years rendering 40^ per annum, I may have an action of debt for' each term (a), and I may also distrain, but if 1 have only a term of years, and I let to you my estate of the term rendering to me certain rent, I believe (jeo croy) that I cannot distrain. Seoqu^cre; wherefore answer over." This i& the whole of the dictum as it stands in the Year Book; and it is thus abridged, or rather altered, in Bro. Abr. title Distress, pi. T, ** Nota per Finch, arguendo. If a man has lands for years, and grants all his terna rendering rent, he cannot distrain ; but if he grant part, he can distrain, 45 £. S,8." And in his title Dett, pi. 39, after stating the decisioo with respect to the action of debt, Brooke adds, *' And in that case it is admitted (conceditur) by Finch, that if a man has land for years, and grants all the term, rendering rent, he cannot distrain."
(a) Which was the point in dispute.
'^i
MICHAELMAS TERM, X GEO. IV.
169
Tilts dictum seems to have been (fast broogbt before the Cottit, in
v.Cotvwr, SWlls.<S73. "In
" ieplefin,tbe defendant avows on- ^ dfir a distress for rent doe fix>m ' the plaintiff to bim, upon an ot- " s^Mieiif of a lease of a term for *<^eirs to the plaintiff, in which " mipiment there is no clause of " distress; the aingle question is, '^ whether this is such a rent for
* which a distrefts lies, there being " 2X> reversion in the defendant. It *^ WIS said for the defendant, that " alifaoagh rent be incident to the ** refcrsion, yet it is not an inse- ^panhle incident, and therefore " it Httj be severed from the rever- "lioa; and although there is no ' dnse of distress in the assign-
* meot of the term, yet the rent "mtrved thereupon may be con- "ndered as a rent^seck, and dis-
* mined for by the statute 4 Geo. " 9, c. 98, sect. 5, and that it ap- ** peen dearly to be the intent of ''the parties that the plaintiff
* dMMdd pay rent to the defendant. ' This case was so clear, that the *CoQft gave judgment for the 'pbiadfTwithout hearing his coun- " seL Curim : There are two ways " cf creating a rent ; the owner of ** the lands either grants a rent out ** of it; or grants the lands and re- ^seiTcs a rent; there is no such ** diing ss a rent-sed[, rent-eervice, ''or reDt-charge issuing out of a *tefiaforyiears(ii). Bro.Dette,pl.
* 59,drei 43 JEtf 3,4(6), per FyncA- "* de«,Ch. Justice, C. B. * Ifa man " hath a term for years, and grants
* ill his estate of the term, ren- *deriag certain rent, he cannot ** dlstnda if the rent be in arrear;* ** This case is law, and in point ;
f8> Qusre.
'» Brooke cites correctly 45 K. 3, 8.
** therefore, \\ the avowant wtU ** recover what is owing to him ** from the plaintiff, he most bring ** his action upon the contract. << Judgment for the plaintiff per ** totara curiam.*' In Pmbner v. EdmardSf 1 Dougl. 187, n., Ed- SMmfon, the lessee, expressly a*- iigned to Wumer (the party under whom the plaintiff claimed) at the yearly rent of 26i. 2s. pmfMt to Edmonony and it was held by BulietyJ. and Wiilet, J. that the conveyance from £dbiioason to Palmer operated as an assign- ment, and not as an underlease. These two decisions appear to be unquestionable. A lessee mojf auign his term, and if the assignee be accepted as tenant he cannot reserve rent-service, though he may create a rent-chaige or a rent- seek. (Litt. sect. 217.) So, if be- fore the statute of Quia Emptores, the tenant in fee had made a feofiinent, tenendum (not de sr, but) de capUali domino feodi (a), no rent- service could have been reserved upon such feoAnent. But where a termor, whether lessee or assignee, indicates no intention to part with the term, and thereby determine the privity of estate between himself and the lessor, there appears to be neither principle nor authority to preclude such termor from making an underleax for a period com-» mensurete in point of computation with the original term.
This appears to reconcile all the cases prior to 1818, including the decision in Poultney v. Holmes, 1 Stra. 405, in which it was held
(a) This coald be only where the entire property was aliened. Where a part was aliened, the alienee roust have held of the alienor. Hence the interminable mesnalities of the 1 3th & 14th centuries.
18<9.
The King
V, WiLSOJI.
160
CASES IN THE KING S BENCH,
1899.
that when a termor agrees that another shall have the premuei for the remainder rf the term, pacing the termor the same rent as was reserved upon the original lease, such an agreement must be taken as a lease and not as an assign- ment, because the reservation was to the lessee and not to the original lessor. In that case, however, it seems to have been inconsistently, and as it would appear, gratuitously, admitted on the part of the original lessee, that he could not distrain for want of a rever$ion.
Thusstood tbelawtill 1818, when the case of Parmenter v. Webber, 8 Taunt. 593, and 9 J. B. Moore, €56, was decided in the Court of Common Pleas. That was an ac- tion of replevin, in which the de- fendant avowed, first, for one year's rent, and, secondly, for half a year's rent; plea in bar to both avowries, non tenuit. It appeared that the avowant being lessee for years, under two several leases, entered into a written agreement with the plaintiff, by which the plaintiff was to have (not the leases, but) the two farms during the leases there- of, and to remain tenant to the avowant during the said leases. It was contended by the plaintiff, that the agreement operated as an absolute assignment of the avow- ant's interest in the two farms, and that having thus parted with the re- version, he could not legally dis- trai n (a). In gi ving j udgment, Dal" lot, C.J. says, ''lam of opinion that, " according to the legal effect of the ** agreement, it amounts to an ab- '' solute assignment by the defend- ** ant, so as to operate as a stirren-
*'der(b) of the whole of his '' term under the two leases in
" question. In v. Cooper, it
** was expressly determined that a " lessee for years, who assigns his ** tenn, cannot distrain for renr. " And although in this case the '< plaintiff has paid the defendant ** one yearns rent, and he was to ** remain tenant to the latter during " the leases, still as the defendant ** had parted with his interest, I ** think the plaintiff is entitled to '' judgment.** This was followed by the case of Preeee v. Carrie, 2 Moore & P. 57. That was an action of replevin, in which the defendant made cognizance as bailiff to ff^hUe under a demise from the llth of November, 1836. llie plaintiff pleaded in bar, first, non tenuit; secondly, that by the supposed demise in the cognizance mentioned. White demised and granted the premises to plaintiff fur the residue and remainder of his, White% estate, term, and in- terest of and in the same; and that he, White, had not then, or at the time when, &c. or at any time during the supposed demise to the plaintiff, any reversionary estate, term, or interest of, or in, the pre- mises or any part thereof, expect- ant, or to take effect, upon, or at any time after, the expiration of the term granted to the plaintiff by the said supposed demise. The de- fendant joined issue on the first plea, and replied to the second, that by the demise in the cogni- zance mentioned, White did not demise and grant the premises to the plaintiff for all the residue and remainder of White's estate, term,
(a) Vide poH, 161,2.
(b) Qiuere.
MICHAELMAS TERM, X GEO. IV.
and interest of and in the same, ia White had granted all his estate to
manner and form as the plaintiff had in his second plea in that be- half alleged : and on this issue was joined. At the trial it appeared that WhitCf being tenant for a term eipiring the llth of November, 1836, by an agreement in writing, Md Janoaiy, 1826, agreed to give op possession of the farm to l^ plaintiff in consideration of kis pajing the ralue of the growing crops then belonging to White ; and ti* plaintiff was to hold the fann for the remainder of Whites tenn « the same rent that Etutwick Jttid; the rent to commence and ^ payable by the plaintiff from ^ llth of November then past; but it was provided, that in case ^plaintiff should not be enabled to pay for the crops by the 1st of Miy, 1886, WhUe might retain die form for the remainder of the <«»; diatoia the llih ofSeptem- *w following, the plaintiff, by bill of sale, assigned all the growing crops and effects on the farm to White, and that afterwards, and in tbe course of the same day, White "greed verbally with the plaintiff, ^ die presence of two wiuiesses, dMt he would become tenant to ^^e from that day till the 1 1th of November following, at the rent of 970^, payable in advance im- mediately. The jury found that d>ere was a demise from WhUe to die plaintifl^ and secondly, that ^<^ had parted with th« whole <tf his term ; and the verdict was entered for the plaintiff. A motion was made to set aside this verdict, 00 the groond that the demise had . l>ceo (bund upon the 6rst issue, And that the plaintiff bad not, un- ^ the second issue, proved that
the plaintiff, and had no reversion- ary interest after the expiration of the plaintiff's term. The Court of Common Pleas held that the find< ing of the jury on both issues was proper, on the ground that though the demise to the plaintiff amounted to an under-leatCf yet White could not distrain for want of a reversion. And see 5 Bingh. 24, S. C.
The result of the cases appears to be this— In 1371, a judge, while deciding in favour of the right of a guardian in chivalry, who had let his ward's lands during the whole pei-iod of the minority, to bring an action of debt for the rent toties quoties, as it accrued, which was the only question before the Court, expresses a doubt as to the right of a termor to distrain after he has let all his estate of the term. In an abridgment of this case, published in 1573, it is stated to have been admitted by that judge, that a man who grants all his term, rendering rent, cannot distrain. The doubt thrown out in 1371, improved into tLConceditur in 1573, is in 1763 cited as a decided case no longer to be impugned or examined. The authority thus oddly obtained isap- plied however in 1768 to the case of a termor who has absolutely as- signed his term, and who, there- fore, according to every legal prin- ciple and analogy, would have no reversion of any kind, and conse- quently no right to distrain. But in 1818 and 1838 tbe doctrine is extended to an underlease ; where- by an entirely new principle has been introduced into. the law of tenure with respect to leasehold interests; the cases of Parmen/er v. Webber and Preece v. Corrie
161
1829. The King
V.
Wilson.
^OL. V,
162
CASES IN THE KINGS BENCH,
1839.
The Kino
V.
Wilson.
appearing to decide that a rent reserved upon a tenure under the party to whom the rent is payable, and which is therefore a rent-ser- vice (Litt. sect SI 3), may exist witliout a power of distress inci- dent thereto. The point arose incidentally in Burton v. Barclay^ 7 Bingh. 745, but it became un- necessary to notice it in the judg- ment. And see Hick% v. Than' lingf 1 Salk. IS, less distinctly reported 1 Lord Raym. 99 ; Wil- iton V. Pilkney, 1 Ventr. 242, and 2 Lev. 80 ; Curtwright v. Pinkney, 1 Ventr. 272; Navcombv. Harvey , Carth. 161; Smith v. MapUback, 1 T. R. 444. Should it be consi- dered that the analogy between a grant in fee, tenendum of the grant- or, and a grant by a termor for the whole duration of the term, tenen- dum of the grantor, cannot be main« tained, inasmuch as the termor is,
or originally was, rather the Astt^ than the tenant of the freeholder, still it is conceived that the right to distrain for the rent reserved, may be supported upon another and a distinct ground. Where A. being possessed of land for a term of 90 years, demises and leases that land for 80 years to B., rendering rent to il.,his executors, administrators, and assigns, it is evidently the in- tention of the parties, to he col- lected from the instrument itself, that il. should have the ordina^ remedies of a landlord for the re- covery of the rent reserved. If then, by the rules of law, the demise can only operate by way of assignment, A. cannot obtain the consideratioa for that assignment unless the rent be treated as a reni'Charge.
See further as to the origin of manors Cragii Jos Feud. lib. i. tit. 10, §2.
Yeast is a victual within the exception in 50 Geo. 3, c. 41, (Hawk- ers* and Ped- lars' Act.)
The King v. William Hodokinson.
At the Quarter Sessions for the county of Derby, a conviction under 50 Geo. 3, c. 41, was confirmed, subject to the opinion of this Court on the following case: —
The defendant, who had been for some time past in the habit* of purchasing yeast at Burton, and carrying the same about to the neighbouring towns and villages, and selling it for the purpose of being used in the making of bread and beer, took a quantity of yeast to Litchurch, in the countj of Derby, on the 1 4th November, 1828, and there exposed the same to sale in his usual way, without a hawker's licence. The question for the opinion of the Court is, whether the yeast so exposed to sale is to be considered as victuals within s. 23 of 50 Geo, 3, c. 41 (a).
(a) By which it is provided and son or persons frona selling (inter enacted, '' That nothing in this act alia) any fish, fruit, or victuals.** shall extend to prohibit an^ per-
T
The Kino
MICHAELif AS TERM, X GEO. IV. 163
N. £. Clmrkes in support of the Order of Sessions. Yeast 18S9. is Dot wctvals, by which mast be understood that which is in a state fit to be eaten ; it is merely a substance used in v.
the preparation of victuals. Rex v. Waddmgton (a) was cited Ho^*«»»- below for the defendant. There^ however^ it was not neces- sary to consider this point. In Rex v. M*Gill{b) it was held, that selling tea as a hawker required a licence. [Bay' %,J. That was prohibited by a former statute.] The Court said it was a double offence. Yeast is not victuals iQcofflmon parlance. It is not even an ingredient in a vie- toal, bat merely a substance applied to cause fermentation, and thereby render the bread lighter.
Fynes Clinton^ on the same side. Rex v. M'Gill is quite coDcJBsive. Hops would seem not to be within the 5 & 6 Eiw,6, c. 14(c). In the case of Rex v. Waddington, how- ever, it was determined, on looking at the words of that act, that as growing com could not be treated as victuals, the words of the statute must be considered as shewing the intention of the legislature, that every thing which might in any shape become victuals should be included in the prohi- bition against forestalling. Here, the word victuals is found in company with fish and fruit only ; which shews that nothing was intended to be exempted, except that which is sold in a state fit to be used as food.
Brodrick, contrd. Yeast is a victual within the meaning of this act ; it comes from one victual, and forms a neces- sary iDgredient in another. Rex v. M'Gill was a case de- pending upon the construction of 10 Geo. 1, c. 10, s. 14, and 9 Geo. 2, c. 35, s. €0. The restrictions in these sta- tutes upon the sale of tea, rendered it impossible that that
(a) 1 East, 143. groiu, butter, cheese, fish, or other
(6) 3 D. & R. 377; 2 B. & C. dead victaals whatsoever, within
14S. the realm of England, with intent
(c) Which prohibited the en- to sell the same again.^ Repealed
grossing of ** anj com growing in by 13 Geo. 3, c. 71.
the fields, or any other com or
M 2
The King
V.
164 CASES IN THE KING's BENCH,
1829. article sbeuld be exempted from the operation of' tbe Hawkers' and Pedlars* Act; nor was the exception urged. Beer and wine are considered as victuals by 12 Edw.4t, c. 8. HoDGiiNsoH. By 12 Edw. 4, c. 8, beer is expressly made a victual [Bayley, J. Whatever contributes to the support of life is a victual.] By 55 Geo, 3, c. 99, yeast is recognized as an ingredient in inaking bread. In 3 Inst, {a) it was adjudged that salt is a victual, because it not only is necessary itself for the food and health of man, but that it seasoneth and maketb wholesome beef, pork, 8cc., butter, cheese, and other viands. To hold that yeast is not within the excei^ tion, would have the effect of imposing a most inconvenient restriction upon the sale of an article of very general use.
Lord Tenterden, C.J. — ^The word " victuals^' in this statute may fairly be understood to comprise every thing which constitutes an ingredient in food, and to extend, therefore, to this article^ which is generally, though not, perhaps, necessarily » used in the making of bread.
Baylby, J. — Rex v. M*Gill was a case totally different from the present. It was not there agitated whether tea caine within the exception in the 2Sd section of the Hawk- ers' and Pedlars' Act. I do not think that tea would come within that exception, because the sale of tea, under such circumstances, was already illegal. The true construction of this section has been pointed out by kny lord.
LiTTLEDALE, J., Concurred.
Order of Sessions quashed.
(fl) 195.
MICHAELBIAS TERM, X GEO. IV. 165
BiGNELL r. Ellis. vJ^^
Assumpsit for money had and received. Plea, non Where ii. assumpsit; and issue thereon. At the trial before Garroto, ^dn^goods^ B. at the last spring assizes at Chelmsford (a), the follow- oi B, at a ing facts appeared. The plaintiff rented a farm under \q yj^
Colonel Struttf at 140/. per annum, and being distrained against a debt
. . due fipom B,
upon for half a year's rent, and being indebted to one to ^., and the
Mfe in 93/., the following agreement was signed by 5^4^^^,^,^
Cobnel Strutt and the plaintiff: — C. for the
"I hereby sell all my property, of whatsoever kind I Eeingwird
now possess on the farm I now hold of J. W. Strutt, Esq. over to I).,
,.,-_,-, ,. If' 1 when it should
to the said J. H. Strutt, according to the valuation taken \^ ascertained
before me, and written by Mr. Robert Ellis, junior, in my *S^*'?^*"'" ,
presence, amounting to the sum of 103/.; and 1 hereby to D., itis
authorize the said J. H. Strutt to deduct 73/. as rent due r*^iT^^!f
tor 15. to coon-
to him on Michaelmas day next, and to pay over to Robert termand the JE/A's to hold till the account of Jacob Bignell and George ^JmitiUhe ' Solfe, of Billericay, is settled by their respective signatures,, account is which Robert Ellis will pay as far as the sum of 90/.; and hold the whole should the account between the said George Rolfe and ofsuchrwidue the said Jacob Bignell not amount to the said sum of 90/. the balance then to be paid by the said Robert Ellis to the said Jacob Bignell.
Signed, J. H. Strutt.
Jacob Bignell:' Before the 90/. had been paid over to Rolfe, the plain- tiff directed the defendant not to make such payment, but to pay the money to himself. This, however, the defendant itfused to do. The learned judge was of opinion that the clefendaot, as stakeholder, was entitled to hold the money until the account between the plaintiff and Rolfe were adjofted. The jury accordingly found a verdict for the defendant In the following Easter term, Comyn obtained a rule nisi for a new trial, against which
(o) Counsel for the plaiottfT; Comyn and Chitty; fur the defendant,
CASES IN THE KINGS BENCH,
Gumey now appeared to shew cause. But the Court called upon
Comyn, in support of the rule* The memorandum of sale is not an agreement between the plaintiff and Roffe, who notwithstanding that arrangement might have sued plaintiff next day. The money in defendant's bands is the money of the plaintiff, \_Parke, J. That b the point. The question is, whether the transaction was not io effect a purchase by Colonel Stnitt, at a price partly to be set against the rent and partly to . be paid to Rolfe. This is, therefore, not like the case of a party putting bis own money into the hands of a third person. Bayky, J. How does it appear that Colonel Struit would have con- sented to become the buyer on any other terms?] Here the third party does not, as in Fatrlie v. Denton (a), assent to the transfer. \_Parke» J. If Rolfe had uss^nted, there would have been no difficulty, but here Struti is a party.]
Baylby, J. — If the plaintiff had any control over the money, Rolft being no party to th^ agreement, the plain- tiff might have revoked the authority to pay him; but that is not the state of things here. The plaintiff has goods which were seized under a distress for rent, and enters into a bargain with his landlord, who is willing to buy the goods at a specified price upon two conditions, namely, that the plaintiff should pay him 73/. and should pay 90/. to Rolfe. The defendant is, by this agreement, constituted a stakeholder between the parties. It was in the option of Colonel Struti whether he would buy or not. What interest he had in protecting Rolfe, we do not know; hot he might not have chosen to buy without a power to satisfy Rolfe. The plaintiff is not at liberty now to turn round and refuse to allow the payment to Rolfe, which payment formed the consideration for Strutt's purchasing the goods at the price he gave for them. But coiisi-
MICHAELMAS TERM, X GEO. IVv
dering this a$ money deposited, it is not deposited by the plaintiff alone, but by plaintiff and Struit jointly, until they came to an agreement. The defendant is justified in retaining the money in his hands.
LiTTLBOALE, J. — If this had been a mere power to pay fio/fe, it HfQuld have been revocable ; but that is not the state of things, though it bears some resemblance to it. It must be presumed that StruU would not have bought without this stipulation.
Parke, J. — I am of the same opinion. I quite agree that if it could be established that this was the money of the plaintiff, he might have reinstated himself, but the goods were sold for money to be paid to Strutt and to Jioijk. The plaintiff acquires no interest in the money, except a contingent interest in the surplus.
Rule discharged (a).
(o) And see Lyte v. Farry^ Dyer, 49 ; Gibtonv, Mineti, 2 Bingh. 7 ) 49, a.; Taylor v. Letuiaw, 9 East, 9 J. B. Moore, 31.
The King v. The Tkeasurer of the County of the City of Exeter.
(^OLERIDGE had obtained a rule calling upon the de- fendant to shew cause why he should not pay to the pro- dictment for secutorthe expenses of the prosecution of an indictment moveVby^er-
for felony against one ElHs. A former application for the tiorari, and - - ••lit 1 tried at Nisi
eipense of a former conviction had been granted. pnu^^ neither
the Jndge at
^, , 1 1 o« • •• ^"* ^""® ^^^
Lrowder now shewed cause. Six indictments were re- this Coarc has
moved by the prisoner, one of which only was tried. At awarT^oste to
tbe trial the learned Judge doubted whether he had any the prosecutor
power to give the prosecutor his costs. The rule was c."64'^s.82^ '
granted for the costs of that prosecution only ; nothing was whether the
indictment be renioTed by the prosecutor or by the prisoner.
Where an in-
The KiMO
168 CASES IN THE KINOS BENCH,
1829. said about the costs of the other five, although they are now included in the rule. The Court has no power to gWe V. the prosecutor his costs. The words of 7 Geo. 4, c. 64,
w^'^Ex'eteb* *• ^^' ^^^* " "^^^^ ^^^ ^^"""^ before which any person shall be prosecuted or tried for any felony, is hereby authorized and empowered, at the request of the prosecutor, or of any other person who shall appear on recognizance or subpoena to prosecute or give evidence against any person accused of any felony, to order payment unto the prosecutor of the costs and expenses which such prosecutor shall incur/' &c. The Judge before whom the felony was tried is the person most competent to form a judgment as to the propriety of allowing costs.
Coleridge, in support of the rule. It is now too late to re-agitate the question whether this Court has authority to award these costs. The provisions of 58 Geo. 3, c. 70, s. 4, difier but slightly from the subsequent enactment of 7 Geo. 4, c. 64, s. 22. The cases upon 7 Geo, 4 are cases of mis- demeanour removed by the defendant* Even when a bill is thrown out, it is the constant practice to apply for costs. [Lord Tenterden, C. J. If we have done wrong before, we will not amend the rule for the purpose of giving you the costs of the other indictments. We have since considered the point. Littledale, J. The act only applies to indict- ments tried before the Courts in which they were found.] This view of the statute would put it in the power of the prisoner to deprive the prosecutor of his costs.
Lord Tentebden, C. J.-^If the costs of the prosecu- tion could be granted at all, they ought to be granted by the Judge who tried the prisoner.
Littledale, J. — Even the Judge has no power where the case has been removed by certiorari. There is no dif- ference in substance between an indictment removed by the prisoner and an indictment removed by the prosecutor.
Rule discharged (a).
(a) And see Ryan & Moody *5 Crown Cases, 73.
MICHAELMAS TERM, X GEO. IV. 169
1829.
Nightingale v. Wilcockson. ^^-v^-^
Case for an escape against the SherifF of Cambridge- In declaring
shire. The declaration^ after stating that Kirke was indebted sheriffVor^an
to the plaintiffs below in a large sum of money, to wit, 50/., escape upon
to recover which they had issued a capias against Kirke, \i {^ sufficienc'
directed to the SherifF of Cambridgeshire, averred, that ^p a^^e ^^^^ ,,,,,. ^ , ,,.«•• . thewntwas
bjBtore the delivery of the writ to the sheriti to be executed, duly indorsed
the said writ was duly marked and indorsed for bail for 251. i^Jj^3|}|„gllb"
and upwards. Averment, that the writ was delivered to virtue of an
the sheriff who arrested Kirke, and afterwards suffered him ^^^ ^^^ ^f
to escape. To this declaration the defendant below de- record "
marred specially ; assigning for cause that it was not alleged
that any affidavit of the cause of action was ever made.
Joinder in demurrer. The Court of Common Pleas (a)
gave judgment for the plaintiff below, whereupon the
defendant below brought his writ of error.
Wybum, for the plaintiff in error, contended, that the declaration does not shew any obligation on the part of the sheriff to arrest Kirke, but on the contrary, shews that the sheriff would have been a trespasser in arresting him. Case of the Marshalsea (6), Hill v. Heale (c). Rex v. Sheriff of Surrey {(1), He also cited Morris v. Hayward{e), and Morgan v. Bridges (f). The language of pleadings is to be construed most strongly against the pleader. Jackson v. PeskedXg), Thornton v. Jdams{h), Webb v. Home (i). Secondly, the word "duly" will not supply the want of an allegation of those circumstances which are necessary to render the transaction legal. Everard v. Paterson (A;), Wil- liams V. Germaine (/), Brazier v. Jones (iw).
(a) 4 fiiagh. 501 ; 1 Moor« & (g} 1 M. & S. «34.
IViyoe, ^9. 00 5 M. & S. 38.
* (A) 10 Co. Rep. 76. (i) 1 Bos. & Pul. 281.
(c) 2 N. R. 202. (k) 6 Taunt. 645; 2 Marsh. 304.
(£0 1 Marah. 75. (0 Ante, i. 394, 403; 7 B. &
(O 6 Taunt. 569. C. 468:
(/) 2 Stark. N. P. C. 317 ; 1 B. (w) Ante, ii. 88; 8 B. & C. 124. «c A. 647.
WltCOCKSON.
CAS£S IN THE KING S BJCNCU, Russell, Serjt. contri. The declaration contains a suf- NioHTiNGALE ^^^^^^ avcrment that the statute has been complied with. V. Before 12, Geo. I, c. £9^ a defendant might have been
arrested for any sum without an affidavit. By that statute it is enacted (a) that no person shall be held to special bail upon process issuing out of the superior Courts where the cause of action shall not amount to 10/. or upwards (i); that where the cause of action shall amount to 10/. or upwards, affidavit shall be made and filed of such cause of action, and the sum or sums specified in such affidavit shall be indorsed on the back of such writ or process; There can be no id-* dorsement, therefore, except of the sum specified in the affidavit. The term ** duly indorsed/' here implies a com- pliance with the statute; nor can the averment be sup- ported without proof of a bailable cause of action. It was held in Gunter v. Cleyton (c) that in an action against a sheriff for an escape, the plaintiff must shew a good cause against the original defendant. The same point was de- cided in Alexander v. Macaulay {d). [Bay ley, J. That was a case which turned upon the sufficiency of the evidence.] The plaintiff was nonsuited in both these cases for not proving a cause of action against the original defendant. Since the statute the plaintiff must prove a bailable cause of action against the original defendant. [Liord Tenter* den, C. J. No doubt the plaintiff would be nonsuited unless he proved a bailable cause of action.] The term '' duly marked and indorsed for bail/' implies that an affidavit had been made and filed. It is not contended that the word '* duly'' will supply the omission of a distinct and independent fact. In Williams v. Germaine(e), the word ^* duly" could only refer to a presentment at the place , mentioned in the acceptance supra protest, and to a demand of payment from the acceptor, and could not supply the omission of an allegation of a presentment to the drawer,
(a) Sect. 1. (d) 4T. R. 61J.
(*) Sect. 2. (<) Ante, i. 394; 7 B. & C. 468.
(0 2 Lev. 85.
UICHAELMAS TERM, X GEO. IV.
which in that case was considered to be necessary (a). In
Eoawrd v, Paiierson (i), the word " duly" did not neces- Niohtisoalr
Miily import that the special authority given by the sub^ v-
mitsion to arbitration had been pursued. It is merely the
conclusion which the party chose to draw. CUbbs, C. J.
there says, ''In Dudley v. Watchorn the word duly had
reference to the subsequent words accoreUng tojke custom
snd practice of the said Court. Here the declaration does
Dot state that the award was made in pursuance of the said
sHtkority(Jby* In the case referred to by Gibbs, C. J. that
of Dudley v. Watchom (c), lK>rd Elknborcugh says " Here
the allegation is that no writ of capias ad satisfaciendum
was duhf issued against the principal^ which refers to the
purpose for which it is proposed to be issued^ that of
charging the bail, and is equivalent in eifect to saying that
BO ca. sa. was sued out in the manner required by the
practice of the Court to charge the bail" {d ). The word
'' duly** supplies the omission of a statement of circum->
stances required by law both in civil proceedings. Rex v.
Lyme Regis (e). Patience v. Townley (/), and in. those which
are substantially. Rex v. M*Carther (g), or formally. Rex v,
P. Williams (h), of a criminal nature. It is not necessary
in pleading to state facts which are implied in those which
are suted. fVyman's Case{i), Sheriff of Norwich v. Brad-
ekam{k),CadwaUader,r. Bryan (J). The course of prac*
tace is for the officer not to issue bailable process without
first seeing the affidavit. [BayUy^ J. We can only take
notice of what the duty of the officer is. No argument can
be foouded upon his practice. Lord Tenterden, C. J.
The process issues from the same officer, whether it be
bailable or serviceaMe.] It is not meant to be contended
(a) But see ante, ii. 398 (a). (h) Ante, iii. 409; 8 B. k, C 68 1,
(&) STaunt 645 ; 3 Marsh. 904. (0 8 Co. Rep. 81, b.
(r) 16 But, 39. Ik) Cro. Eliz. 53.
(<0 Ibid. (/) Cro. Car. 169. And see
(e) 1 Doug). 79. Plow. 105 a, 149 b: Co. Utt.
(/) 9 Snitfa, 293. 903 b; S Tbo, Co. litt. 406: 2
ii) Peake, N. P. C. 155. Wms. Saund. 305 n, 13.
Nightingale
V.
172 CASES IN THE KING*S BENCH,
. 1829. ^^^ ^faii' Statute is merely directory; though it appears to have beeo at one time so considered. Whiskard v. Wilder (jot). In Hill V. HeakXb) the indorsement on the vrrit is treated WiLcocKsoN. as a sufficient authority to the sheriff. Webb v. Heme{()t Cashman v. Reid (d), 1 Wms. Saund. 896.
: Wybum, in reply. It is of great, importance that it should not be held that, a party may be arrested without an affidavit filed. [Bayley, J. The point presented. to the Court is, whether under such an allegation-as that /contained in the present declaration the plaintiff is bound to prove at the trial an affidavit for 25L and upwards. Lord Tenter- den, C. J. It must appear by the declaration in some way Or other that an affidavit was filed.] .The second poiut of plaintiff in error is> that this is not sufficiently shewn. It is not enough to allege a compliance with one part of the statute only.. The precedents of Mr. Baron W<H)d always state that an affidavit was made and filed. [Bayleyj J. I have seen precedents in which the allegation is» that the writ was duly indorsed. LiUledale, J.I have seen many precedents so framed.] The declaration does not specifi- cally charge the existence of a debt above 10/. [Lord Tenterden, C.J. The question is as to the effect of the averment; as to what proof, is required under it.] In Brazier v. Jones (e), it was held that you cannot substitute imprisonment under one authority for an imprisonment under another. In. Thornton v. Adams {/), where the de- fendant justified entering a warehouse for the purpose of taking goods which had been fraudulently and clandestinely carried, off the defendant's premises by his tenant. Lord Ellenborough says, *' I cannot say. that, the teims fraudulently and clandestinely, supply by necessary intendment the alle- gation that these goods were the goods of the tenant."
Cur. adv, vult,
(fl) 1 Burr. SSO. (<0 2 B. Moore, 60.
(b) 8 N. R, 208; supra, 169. (e) jinte,u^QS; 8 B. & C. 124.
(r) 1 Bos. & Full. 28. (/) 6 M. & S. 38.
MICHAELMAS TERM^ X GEO. IV. 173
Batley^ J. now delivered the judgment of the Court. 1829.
After stating the pleadings, his lordship thus proceeded : The ''^^^^^-^ t rji • 1-11. 1 1-1 Nightingale
fonn of declaration which has been adopted in the present 9.
case has prevailed extensively for more than 20 years with- Wilcockson. oat objection. The form is a convenient one, and we are of opinion that it may by law be supported. The declara- tion states that Kirke was indebted to fVilcockson in a large sum of money, to wit, 50/. This, where a sum or time, 8cc. is material, will be taken to be an allegation of the time, sum, be. though laid under a videlicet. Upon demurrer, there- fore, this declaration must be considered to contain a precise allegation that 50/. was due. The safer mode of pleading would have been to allege Kirke was indebted to fVilcock- lofi in a sum exceeding 10/., to wit, 50/* The declaration then proceeds to state, that for the recovery of this debt they issued a capias ad respondendum with an ac etiam against Kirke; that this writ was duly indorsed for bail for 25/.; that, being so marked and indorsed, it was delivered to the sheriff to be executed. We think that this is sufficient, and that the writ, which is stated to have been prosecuted out of this Court, is to be presumed not to have been awarded improvidently. The presumption is, that all things have been done rightly, and that all steps have been taken which are necessary by statute or by the practice of the Court to the due issuing of the writ (a). The statute does not apply to all cases. It has been held to restrain pbintiffs only, and not to affect the power of the Court on the special application of the plaintiff. Before the statute the present form of declaration would have been free from objection; and as since the statute the affidavit is not required in all cases, it does not appear on the face of the record that this is a case to which the statute applies. We are, therefore, of opinion that the declaration alleges
all that is necessary.
Judgment affirmed.
(#) The objections of the plaintiff mon law, but to the sufficiency of
in error appear to have been di- the stateroentofihe process, after it
reeled, not to the tssoing of the had issued, having been dealt,with
pn)ce99, which remains as at com- as required by the statute.
174 CASES IS THE KINO *S B£NCH,
vjl^ The King t;. The InbabiUnto of Bblford.
A burgess re- UPON an appeal against an order of two justices^ whereby
afbtra^iuU*"* ^^^^^' ^^^ "^^^ of JoAn M'Queen, then a prisoner in the
the burgesses, gaol of Berwick, and their children, were removed from
thrrent°of ^ Berwick-upon-Tweed to Belford, in the county of Northum-
lands held by berland, the sessions confirmed the order, subject to the
does not"gain Opinion of this Court upon the following case: —
a setdement The pauper, J. M., being a burgess of Berwick-upon- by estate. ••• • «■••»■!•■ •
Tweed, and being then settled in Belford, came in 1807 to
reside at Berwick-upon-Tw*eed, where he continued up to the date of the above order, at which time he was a prisoner in Ber- » wick gaol, and his wife and five children became chargeable to the parish of Berwick-upon-Tweed. For the last three years of his residence in the parish of Berwick-upon-Tweed the pauper enjoyed, as such burgess, certain pecuniary benefits arising out of the estates of the corporation lying in the same parish, in the manner after mentioned. The mayor, bailiffs, and burgesses of the borough of Berwick, by virtue of a charter granted 1 Jac. 1, and confirmed by act of parliament, hold, to the use of them and their suc- cessors, a large estate in land, situate in the parish of Berwick-upon-Tweed, which parish is co-extensive with the borough. This estate is chargeable in the first instance with the payment of salaries of officers and other corpora- tion expenses imposed by the charter, but has from an early period after the grant of the charter, and from thence hitherto, been distributed into three portions, and each portion applied to distinct purposes. The first portion consists of several farms, which are demised to tenants by the mayor, bailiffs, and burgesses, the rent being reserved to the mayor, bailiffs, and burgesses, or to their treasurer for the time being, and collected by him. This rent, toge- ther with the proceeds of other property, called the Town's Ancient Revenue, now form a separate fund, out of which the salaries of the officers and other corporate expenses authorized by the charter are defrayed. These farms are
The King
Bblford.
MTCHAELMAd T£tlM» It GEO. IV.
called *• Treasurer's Farms." The second portion is sttl>- dWided into several parcels, varying in quantities from an acre and a half to two acres and a half, and in value from v.
£l.to 9/. per annum. These are called Meadows; and at an annual meeting of the burgesses called " a Meadow Guild/' are distribufed, as they become vacant by the death or non-residence of the last occupiers, tfmong the lenior resident burgesses and widows of burgesses who succeed to the rights of their husbands as to meadows and stints, though the charter has no provision in behalf of the uridows, the eldest resident burgess being entitled to choose the most valuable vacant meadow, and so in succession down to the junior, till the number of vacant meadows is exhausted. The burgesses may either occupy those mea* dows themselves or let them to tenants^^ reserving the rents to themselves. The lands forming the third portion were, op to the year 1761, open fields, upon which each bui^ess was entitled to a certain right of depasturing; but at that period they were inclosed, and have ever since been let in guild, as farms, to tenants for various terms of years, and are now demised by lease under the corporation seal, and die rent has been, since the year 1810, uniformly reserved to the mayor, bailiffs, and burgesses, (which is the name of incorporation,) their successors or assigns, or to their trea- surer for the time being. Previously to that period, how- ever, several instances occur of leases of stint land, wherein the reservation of the rent was made " to the mayor, bailiffs, and burgesses, their successors or assigns, or to dieir treasurer for the time being, or to the several respec- tive burgesses or burgesses* widows who should from time to time during the said term have shares in the said farm hold in equal portions.'' The rent of each farm is divided into a certain number of equal portions, generally eleven, but in a few instances twenty-two. At another annual meeting, called *' a Stint Guild," a portion is allotted upon a specific farm to each resident burgess or burgess's widow, or to as many of these as there are vacant portions. These
170 CASES IN THE KING's BENCH,
1829. portions are called '' Stints/' and they, like the. meadows,
^^HT^^T^ vary in value from 2/. to 9/. per annum, the senior bur- The King • • • ••! • i i i. t
v. gesses being m like manner entitled to a preference as the
Belford. more valuable stints become vacant, the younger burgesses succeeding as vacancies, by the death, removal, or promo- tion of their seniors, occur. The portions of the rents called stints are paid annually by the treasurer of the cor- poration to the burgesses who are entitled to them ; but, until the last fourteen or sixteen years, the burgesses in many instances received their stint money immediately from the farmers or lessees of the specific farms upon which their several stints were assigned. The burgesses in guild have, by their charter, a power of making bye-laws for the good rule and government of the corporation, and for the better preserving, governing, disposing, letting, and demis- ing of their lands. Sec. In the exercise of this right the burgesses assembled in guilds make bye-laws to regulate the enjoyment of the meadows and stints, and have pre- scribed the conditions of husbandry under which meadow and stint lands may be broken up and converted into tillage, and (in the case of the meadows) the terms for which they may be let by the individual burgesses to whom they are allotted. They also decide upon the title of those who claim to enjoy meadows and stints according to such bye- laws; and instances occur upon the records, of forfeitures, both of meadows and stints, either absolute or for limited perio()s, inflicted by the burgesses in guild for infraction of bye-laws or other gross misconduct. But unless there be such forfeiture, or the party either become non-resident or relini)uish his stint or meadow by choosing one of more value, he may remain in the enjoyment of riie stint or meadow which has at the first been allotted to him for the term of his life. Some burgesses are permitted to enjoy one stint only, others two stints, and others again one meadow and one stint. Those who enjoy two stints are said to hold one of the stints for or in lieu of a meadow. The pauper was for the three years next preceding this.
MfCUAELMAS TERM, X GEO. IV. order of removal, and still is, in the enjoyment of one stint assigned within the parish and borough of Berwick-upon- xJJ^^Kino Tweed, called the Burrs, and annually receives from the v.
treasurer of the corporation, for his portion of the rent, the sum of 3/. 5s. 9d. He is also in the enjoyment of another portion assigned upon another farm, called No. 12 of the outfields, under the description of " stint for a meadow ;** his share of the rent of the last named farm being 3/. U. 9d. The rents of these two farms are now and during all the time of the pauper's sharing in them have been reserved to the mayor, bailiffs and burgesses, or to their treasurer, and these rents are received by the treasurer, and the above are paid to the pauper by him. The pauper is not at pre- sent entitled to a meadow, but he will be entitled (if he so long live) to claim one as soon as a vacancy occurs in regular rotation. The pauper, in his character of a burgess of the borough of Berwick-upon-Tweed, is a member of the assemblies of burgesses, called guilds, held under the provisions of the charter or otherwise, and, therefore, en-> titled to a vote as well in the meadow and stint as in other guilds.
The question for the opinion of this Court is, whether the pauper John M' Queen was, during his residence under the above circumstances in the parish of Berwick-upon' Tweed, irremovable therefrom so as to acquire a settlement in die said parish.
Ingham^ in support of the order of sessions. No land in the parish was held by the pauper, or in trust for him. Aer V. Slofne (a). An indirect interest in the land is not sufficient; as an annuity charged upon the land, IZex v. Stockkjf Pomroy (6), a right of dower before assignment. Rex V. Northweald Bassett (c), a distributive share before adasinistration granted. Rex v. lfidworthy(d), Rex v. North
(«) 6T.iL 895. (c)4D.&R.876;SB.&C.7M.
(*) Burr. S. C. 76«. (d) Burr. S, C. 109.
▼OL. ▼, N
fiCLFORD.
CASES IN THE KING's BENCH, Curry (a). Rex w. Berkswell (b), a licence to occupy. Res ThTKT^o ^* Horndon on the Hill{c), or a doubtful equity, JR^j v. V. Toddington{d}» Here the burgesses have at the most
only a right to call upon the treasurer to account to them .for the rents allotted to them respectively. If the cor- poration were dissolved, the lands would revert to the heirs of the donors without regard to the individual members. 8 Vin. Abr,{e). He was stopped by the Court.
Alderson, contrsl. The pauper was irremovable, Rex v» Warkworth (f), and therefore gained a settlement. The burgesses have the power of determining in what manner the land shall be occupied. The receipt of rent is equiva- )ent to actual enjoyment of the land. The pauper is entitled to be present at the guild at which the lands are let. His removal would deprive him of that privilege, and of his undivided share of the rent. He is, therefore, irre- movable. XBayley, J. He has a right to vote whether entitled to a stint or not.] A mere claim is sufficient. Rex V. Siaplegraveig). [Bay ley ^ J. That was the case of a reversioner who went to reside on what he believed to be entirely his own estate ; and he could not have been removed until the parish officers had found the deed creating the term.] The pauper had not then the right which he claioied, though the parish officers were not prepared to disprove it. The decision of the Court proceeded on the ground that a coming to settle under such circumstances was not within the prohibition of the statute of Car. 2.
. T. Greenwood, on the same side. By Magna Charta, disseisins are prohibited not only where a person has
(a) Caldec. 137. Henry 8, the reversionary interest
(&) dD.&R.9; 1B.&C.642. of the beira of the respective
(e) 4 M. & S. 569. donors was destroyed by an act
(cO 1 B. & A. 560. of parliament^ which vested the
(«) 8 Vin. Abr. Corporation, fee simple in the crown. *
H. S, pi. 9. Upon the dissolution (/) 1 M. & S. 473.
of monasteries in the reign of {g) 2B. fie A. 527.
HICHAELMAS TERM, X GEO. IV. 17^
afireebold but where be has a franchise of any kind (a). ^^^^* He is, therefore^ irremovable from such franchise (6). The jj^^ Kikg rule was first narrowed in Ret v. Warkworth. There, 'o-
however, the party was merely entitled to a right of com- mon which he had not the means of exercising ; here he hu s specific rent-charge issuing out of the particular land. IBajfley, J. No burgess is seised in his individual capacity.]
Lord Tenterden, C. J. — I am of opinion that the paoper is not seised of any estate legal or equitable. The estate is in the corporate body ; and it is immaterial whether the corporation allowed the pauper to enjoy the whole or a certain portion of the rents, or assigned to him the rent of a particular estate. The pauper had -no right to enter upoo the land or to make over his interest to another^ He was entitled even to the rent only so long as the cor* poration pleased.
Bat LEY, J. — Rex y. Warhworth shews that the posses- sion of a right of common is insufficient. Here, the pauper bad no estate either legal or equitable. The rent is dealt eat under the bye-law as the burgesses think proper.
LiTTLBDALE, J. — ^The pauper had no right to occupy the land.
Parke, J. — ^The pension was determinable at the plea-^ sure of the corporation.
Order of sessions confirmed.
(a) Cap. 29. Nallos liber homo legalejudiciumpariumsuorum vel
disseissiatur de libero tene* per legem teme.
nento vel lUferiatilms vel liberis {h) And see Rex v. Aythrop
coQBoetadinibos sois nisi per "Rooding, Burr. S* C. 4f4.
N 2
\60
CASES IN THE KINGS BENCH/
1899.
A demise of tbe glebe by Incambent of a benefice with care of souls, to secure an annuity, is ▼oid by 57 Geo, Sy c. 99, reviving 13 £lix. c SO.
Shaw r. Fritchard, Clerk, and others.
XHE following case was sent by Lord Eldon, C* for th^ opinion of this Court
By indenture, bearing date the 8th of September, 1826» and made between the Reverend William Pritchardt clerk, being then and still rector of the rectory and parish church of Yeldham, in the county of Essex, and also vicar of the vicarage of Great Wakering, in the same county, of the first part: BeNJamin Shaw, of Kilburn Priory, in the county of Middlesex, Esq. of the second part: and William Stephens, of Bedford Kow, in the county of Midn diesex, gentleman, of the third part : and duly executed by the said William Pritchard, after recithig that the said William Pritchartf was rector of the said rectory and parish church of Great Yeldham, and in right thereof was seised or entitled of or to the glebe lands, together with all and singular the great, or predial, and small tithes, tenths, moduses, or customary payments in lieu of such tithes or tenths, rents, offerings, and oblations, and other appurte- nances to the same rectory or parsonage belonging or appertaining; and also reciting that the said William Pritchard was also vicar of the said vicarage of Great Wakering, arid in right thereof was seised or entitled of or to the vicarial tithes to the said vicarage belonging; and also reciting that the said William Pritchard, together with John Daniel Haslewood, clerk, rector of the rectory and parish church of Boughton Winchelsea, in the county of Kent, had contracted to sell to the said Benjamhi Shaw one annuity or clear yearly sum of 93/. lOs. to be paid to the said Benjamin Shaw, his executors, administrators, or assigns, during the natural life of the said William Pritchard, at or for the price of 750/. : And that in pursuance and part performance of the said agreement on the part of the said William Pritchard and John Daniel Haslewood^ they the said William Pritchard and John Daniel Haslewood had, by a certain bond, bearing even date with tl>€ said
MICHAELMAS T£RM, X GEO. IV. 18L
indenture, become bound unto the said Benjamin Shaw, 1829. his executors, administrators, and assigns, in the penal sum ^"^^^^ of 1500/., with a condition thereunder written for making 9.
the same void on payment by the said William PrUekard P*»tc"a»»^ and John Daniel Haslewwd, or one of them, or one of their executors, or administrators unto the said Betgamin Shaw, Us executors, administrators, or assigns, yearly and every jear, during the natural life of the said William Pritchard, the said annuity of 93/. 10s. by four equal quarterly pay- ments on the 8tb of June and the 8th of September in each and every year, (the first quarterly payment to be made •n the 8th day of December the next ensuing,) together with a proportionable part of the said annuity up to the day of the death of the said William Pritchard, in case, he should happen to die on any other day than one of the said <|08rterly days of payment. It was by the said indenture witnessed, that in pursuance and performance of the said ^reement on the part of the said William Pritchard, and in CDouderation of the sipd sum of 1500/. then paid by the Slid Benfamin Shaw to the said William Pritchard, and for the nominal consideration therein mentioned to have heen paid by the said William Stephens to the said William Pritchard, he the said William Pritchard did, at the re- quest of the said Beigamin Shaw, grant, bargain, sell and demise unto the said William Stephens, his executors, administrators and assigns, all that and those the said, rectory and parish church of Great Yeldham, and the si|id vjcarage of Great Wakerjng, in the said county of Essex; and all the messuages or tenements and glebe lands, tithes, tenths, oblations, obventions, offerings, portions, profits, emoluments, rights, members and appurtenants. whatsoever, aitnate and being within or forming part or parcel of, or issaiog from, the same rectory and vicarage respectively, or thereunto or unto any part thereof respectively belonging or in anywise appertaining; To have and to hold the said victory and vicarage, messuages or tenements, glebe Ituds, tithes, hereditaments, and all and singular other the
\^ .CA9£S IN' THIS kino's BENCHi
I98a< pfenisefi thereby granted, : bargained^ so\d and demised, or ^]J^^' Qipressed or intended so to be, with their rights^ members,. v. and appurtenances, unto the said William Stephens, his
.A,/^ \ executors, administrators, and assigps, thenceforth for aod during the full end and term of ninety-nine yenrs thence qext ensuing, if he tbe said William Pritckjtr4 should so long live: Yielding and paying therefore yearly and eveiy. year during the said term, unto the said William Pritchari or his assigns, the rent of a pepper corn, if lawfully de^ manded : Upon trust to permit the said William PriUhard. or hia assigns to hold and enjoy the said rectory and vicar-. age» and lands and premises, and to receive ^ rentSr issues, and profits thereof respectively, for his and their proper use and benefit, until the said . annuity, or some quarterly .payment thereof, should be in arrear by the space of twenty-one days next after the same should become payable as therein mentioned: And upon further trusty that in case default should at any time thereafter be made i» payment of tbe.ftaid annuity, or any part thereof, bj the. apace of twenty-one days next after the same should become payable as aforesaid, the said William Stephens, bis executors, administrators, or assigns, should enter into the actual possesion of all and singular the said rectory and vicarage, hereditaments and premises, and should, so lopg as the said annuity should be payable, continij^ in siich possession, and receive all the tithes or compositions or payments for or in lieu of tithes, and all other the renta^ issues, and profits of or belonging to the same rectory and yicarage, hereditaments and premises respectively, . and should from time to time set, let, order, or manage the same rectory or vicarage, hereditaments and premises^; in such manner as to him should seem reasonable : And upon trust, out of the residue of the said moneys to. pay the said Benjamin Shaw, his executors^ administrators, or aas^ns, die said annuity, or so much thereof as should not have been otherwise satisfied, and to pay the ultimate residue or surplus of the said moneys unto the said William I^ritchn.
MICHAELMAS TERM, X GEO. IV. 1%^
irdf clerk, his executors, administrators, or assigns: And it i849^. WIS also thereby declared, that if the said annuity, or any ^ ' part thereof, should at any time be in arrear by the space v.
of forty days next after any of the days on which the same P*"<="^«>^« ought to have been paid as aforesaid, it should be lawful for the said William Stephens, his executors, administrators, or assigns, and he was thereby directed, if requested so to Jo by the said Benjamin Shaw, his executors, administra- tors, or assigns, by demising, leasing, mortgaging, or selling the said rectory and vicarage, hereditaments and premises; or any part thereof, for all or any part of the said term of ainety-iiine years, or by such other ways and means as to hiia or them should seem meet, to levy and raise such som and sums of money as would be sufficient or as he or they should think fit or expedient to raise, for paying and satisfying the said Benjamin Shaw, his executors, adminis^ trators, or assigns, the said annuity, or such part thereof as should be in arrear, and all costs, charges, and expenses which the said Benjamin Shaw, his executors, administra-^ tors, or assigns, or the said William Stephens, his executors, administrators, or assigns, should sustain by reason of the non-payment of the said annuity, on the days aforesaid, or otherwise in the execution of the trusts of the said inden- ture: And the said William Pritchard did thereby, for him-' self, his heirs, executors, and administrators, covenant M^itb the aforesaid Benjamin Shaw, his executors, adniinistrators, and assigns, that in case the said annuity, or any quarterly payment thereof, should happen to be behind or unpaid by the space of forty*five days next over or after any of the said days and times on which the same were then appointed to be paid as aforesaid, and the said Benjamin Shaw, his . executors, administrators, or assigns, should deem it expe- dient to sequester the said rectory and vicarage, or either of them, it should be lawful for the said Benjamin Shaw, his executors, administrators, or assigns, and the said WilHam Pritchard did thereby authorize and empower him and them to sequester the said rectory and vicarage, or either of them, for payment of the arrears of the said
Shaw
V.
184 CA8£6 IN TH£ KIKO*S BI^NGH,-
1H49. annuity* or any part thereof, and particularly to iDstruct counsel or civilians to act for the said Benjamin Shaw, bis executors, administrators and assigns, and for the said Paitchard. William Pritchard, and in his name, either in Courts of common law, civil law, or equity, or elsewhere, as occasion should require, to assent to and concur in ail such proceed* ings as might be necessary to obtain an immediate seques- tration of the said rectory and vicarage, or either of them, and that without giving notice to or advising or consulting with the said William Pritchard thereupon.
The question for the opinion of the Court is, — whether the above demise for securing an annuity, being subsequent to the act of parliament passed in the 57th year of the reign of his late majesty Geo. 3, intituled, ** An Act to consolidate and amend the laws relating to spiritual persons holding of farms, and for enforcing the residence of spiri- tual 4>er8ons on their benefices, and for the support and maintenance of stipendiary curates in England," is valid or not.
Mannings for the plaintiff, and for the defendant 67e- phens. It M'as the intention of the 57th Geo^ 3 to repeal the whole of the statute of £/u., which relates entirely to leases. The 57th Geo. 3, after enumerating twelve statutes, four of which had been passed in the reign of Elizabeth^ enacts, " that so much of the said several recited acts passed in the reign of his majesty King Henry the 8th» and sb much of the said acts in the reign of her majesty Queen Elizabeth, of the said recited acts of his majesty King Charles 1, as relates to spiritual persons holding of farms, and to leases of benefices and livings,and to buying and selling, and to residence of spiritual persons on their bene- fices, and also so much of the said recited acta of her majesty Queen jinne, and of the said recited act of the 36th year of the reign of his present majesty, as relates to the maintenance of curates within the Church of England, and making provision for appointing stipends for such curates, and all the said several recited acts, passed in the
MICHAELMAS T£HM, X GEO. IV. 195
reign of his present majestyi shall be, and the same are re* J85{9. spectively hereby repealed." Some of the statutes of EUz. coDttin clauses wholly unconnected with the objects falling within the purview of 63 Geo. 3. This explains the use of the words " so much/' but it was clearly not the inten- Uon of the legislature to leave standing any part of the 13 Eliz. c. 20. The title of that statute describes il as " an Kt touching leases of benefices and other ecclesiastical benefices with cure.'' The first section of that statute runs thus: '* that the livings appointed for ecclesiastical ministers may not» by corrupt and indirect dealings, be Inosferred to other uses* be it enacted, &c.^ that no lease, after the 15th day of May, &c., to be made of any benefice (NT ecclesiastical promotion with cure, or any part thereof, and not being impropriated, shall endure any longer than while the lessor shall be ordinarily resident and serving die cure of such benefice, without absence above fourscore days ID any one year^ but that every such lease, so soon as it, or any part thereof, shall come to any possession or use above forbidden, or immediately upon such absence, shall cease and be void, and the incumbent so ofi^ending shall for the same lose one year's profit, to be distributed by the ordinary among the poor of the parish; and that all chargiogs of such benefices with cure hereafter with any pension or with any profit out of the same to be yielded or taken hereafter to be made, other than reots to be reserved upon leases hereafter to be made according to the meaniiig of this act, shall be utterly void." The provision in this act by which the presenjt demise would have been affected is evidently that con- tained in the former part of the first section, the words of which are sufficient to avoid a lease made for the purpose of transferring a living to other uses than the support of ecclesiastical ministers ; and though the words " charging of such benefices/' in the latter part of the section, might have affected such a lease as the present, if the statute had contained no clause directly applying to leases, it is too
F8&' CASES IN THE KING's B£NCH| '
1829. much to say that leases which had been already expressly ^'^^'^^ provided for were meant to be attacked again under the V. general description of chargings. At common law this
PniTciiARD. lease would have been undoubtedly good ; and while the statute of IS Eliz. c;20, was in full operation, and before the enabling statute of 33 Geo, 3, c. 84, demises in this form were common. Errtngton v. Howard (ct). Doe d. Rogers v. Mears (i), Mouys v. Leake (c), Bromley v. Hoi' land (rf), Boxoyer v. Pritchard (e), fVhiie v. Bishop of Pe- terborough (f), Silver v. Bishop of Nortoich (g), Co. UtU 45y a. In Doe d. Cates v. Somerville {h), and in Doe d. Broughton v. Gully (t), the leases being granted after the repealing statute of 43 Geo. 3, c. 84, and before 57 Geo. S, c. 99> were clearly good ; and though in those cases the circumstance of the demises having been made before 57- Geo* 3, c. 99* was mentioned by the Court, it was not in either of them necessary to consider whether the repeal of 13 Eliz. c. 20, would have been less complete under 57 Geo. 3, c. 99, than it was under 43 Geo. 3, c. 84. The reference by the learned judges, therefore, to 57 Geo. 3, c. 99> amounts to no more than this, that the leases then before the Court having been granted during the conti- nuance of 43 Geo. S, c. 84, which undoubtedly repealed the statute of Eliz., they would be valid, even assuming that the prohibitory clauses of the statute of Eliz. were restored by 57 Geo. 3, c. 99.
Supposing the second branch of the first section of 15 Eliz. c. 20, to apply to leases, notwithstanding they have been already provided for by the former branch of the section, then the second branch would also come within the repealing clause of 57 Geo. 3, c. 99i in which the term '^ leases*' is not confined to leases described eo nomine in
(fl) Ambler, 485. (/) 3 Swanst. 109.
(if) Cowp. 199. (g) Ibid. 119, n.
(c) 8 T. U. 41 1. (A) 6 B. & C. 126.
(«0 5 Vcs. 610 ; r Ves. 3. (i) Ante, iv. 249 ; 9 B. Ac C. 344. ^(f) il Price, 103.
HflCHAELMAB TERM, X GEO. IV.
tbe repealed statutes. The 14 EKz. c. I T, is one of the sUtutes partially repealed, and jet that statute contains no profision upon which the repealing clause a? to leases can operate, except a clause for avoiding bonds, contracts, promises, and covenants for permitting parties to enjoy a benefice, or take the profits thereof. The repealing clause of 57 Geo. 3, c. 95, would therefore have no operation upon 14 Eliz. c. 1 1, unless the leases there spoken of embraced all contracts for divesting the incumbent of the possession of the profits of the living, whatever shape they might be' made to assume.
CUtty, Patteson, and Follett, appeared for several de- fendants, ^ho, being also incumbrancers on the living, were interested in upholding the demise, and shortly sup* ported the arguments which had been adduced for the plaintiff.
' BnjSriekj for the defendant Osborne, contri^. In passing 13£/i2, c.^0, the intention of the legislature was to protect the successor. The object was also to protect the incum* bent himself, first against leases, then against other chargings« Leases are avoided by non-residence, or by being so dealt with as to make them operate as charges; but direct cbarges, whether in the form of leases or in any other forra, provided they are not intended to enure as boni fide leases, ire absolutely void. This wholesome provision had beed inadvertently repealed by 43 Geo. 3, c. 84*. The efl^qct of the 57 Geo. 3, c. 99, is to restore the prohibition as to charges, but to cootinue the repeal of the former part of the 1st section of 13 JB/iz. c. 20, under which it had bcTen held, that an incumbent, by his own wrongful i|ct in ab- senting himself from his benefice, might avoid his owa bonft fide lease. The demise in this case is clearly in sub- stance not a lease, but a charge. In Doe v. Somervilte and Doe V. Gutly it was not doubted but that if the charges in the form of demises then before the Court, and which
188 CASES IN THE KING's BENCH/
1829. are precisely in the same form as the present had been ^T^'^^'^ created since the passing of 57 Geo. 3, c. 99> they would V. have been void»
PRITCUikBD.
The following certificate was afterwards sent: — *' This case has been argued before us by counsel, and we are of opinion that the demise for securing the annuity in question is invalid, being in substance a charging of the benefice within the meaning of the 13 Eliz.c*20, which, as far as relates to chargings of benefices, is now in force*
J. Baylby,
J* LlTTLEDALEy
Jas* Pabke.'*
^. agrees to eiecute to B, an effectual assignment of the two leases of a house and shop for 4250/, ** as he holds the same for term of S8 years," and B. agrees to ac- cept *< a proper assignment of the Teases as above de- scribed, with- out requiring the lessor's title:"— Held, that B. was bound to take an assignment of two conse-
cuuve tboush the se- cond was void, b«ng executed under a power which had not been pui sued.
Spratt v. Jeffbry.
Assumpsit. The declaration contained special counts for non-perforinance of the agreement mentioned below, for the sale of a public-house, 8cc., alleging defect of title^ the non-payment of a penalty of 300/., and of the expenses of endeavouring to obtain an assignment, and the non-retura of a deposit of 2O0L paid by the plaintiff under the agree- menty with the usual money counts* Plea, non-assumpsit* At the trial before Lord Tenterden, C. J. at the sittings at Westminster after Michaelmas term, 18£8(ii), a verdict was found for the plaintiff, damages 230/. (6), subject to the opinion of this Court upon the following case.
On the 23d of April, 1828, the plaintiff add defendant entered into the following agreement (r) : —
'' Memorandum of an agreement made this ttoenty^ihird day of jtpriU 1828, whereby it is witnessed, that WilUam Jtfftry, ofb^c. victualler, doth agree to sell unto Williaia
(a) Counsel for the plaintiff, Sir X Scarlett and Jardine ; for the defendant, Campbell and . (6) The amodnt of deposit and
expenses of inTestigating the title and the broker's charges.
(c) The words in iulics are written, the rest printed*
MICHAELMAS TERM, X GEO. tV. 189
Spratt, of Shad well, the two leases and good-^will in trade of le^g. the house and premises now occupied by him, known by ^IT*^''^^ the sign of The Rockingham Arms, and shop adjoining, tr.
Bitaate at i^c^ for the sum of 4250/. as he now holds the J^fi'eR^* 9uae,for terms qf2S years from Midsummer next ensuing^ at the annual rent of 126/. and under fair and usual cove^' natUs, only except that the lessee is to insure and to keep the house as a tavern or coffee-house, to be caUed The Rockingham Arms: also such of his household goods, fixtures and effects now on the premises as he has a right to sell, at a fair valuation,, by &c. ; also his saleable stock in trade, not ex- ceeding the undermentioned quantities and value, viz. por-» ter, nine butts, &c. ; such stock to be valued by proper persons or their umpire: And the said William Spratl doth hereby agree to accept a proper assignment of the said leases and premises as above described, without requiring the lessor*s title; and that he will pay unto the said William Jeffery the said sum of 4£50/. for the same; also the amount at which the goods, fixtures, effects, and stock in trade shall . be valued as aforesaid, together with the proportionate value of the unexpired term in the licences (after deducting the sum of two hundred pounds, which has now been paid as a deposit,) and take possession of the said house and premises on or before the 5th day of May next ensuing, at which time, upon payment of the several sums as aforesaid, ilf the said William Jeffery doth agree to execute an effectual mgmnent of the said leases, and deliver up possession of sll the said premises except the shop, which is underlet at will, sod also the effects and stock in trade, and to assign over good and sufficient licences to the said William Spratt; also to repair or allow for the external damaged windows, and pay and allow for all rent, taxes, gas, and outgoings, op to the day of quitting possession. And it is mutually agreed, that all reasonable expenses of carrying this agree- ment into effect shall be paid in equal moieties, and that if either of the said parties shall not fulfil all and every part f>f the same, the party not fulfilling shall pay unto the other
i90 CASES IN THE KINGA BENCH, ^
1829^ of them who shall be ready >nd willing to fulfil the saint the sum of Jive hundred pouocls hereby settled and fixed as liquidated damages, the deposit now paid to be forfeited in part of such damages, or returned in addition thereto |i8 the case may be/'
. Then followed an engagement by Je^ffhy not to be con^ cerned in any victualling-house within half a mile {a).
Shortly after the above agreement was executed, th^ plaintifl^'s attorneys received from the defendant's attorneys an abstract of the vendor's title to the premises in question, entitled 'f Abstract of the title of Mr. W. Jeffery to lease- bold premises, called the Rockingham Arms, in the parish of St* Mary, Newington, in the county of Surrey/' The abstract (to which either party may refer) set forth an in« denture dated the 2d of March, 18 IS, made between J^hn Carter and Samuel Brandon (therein described as Ibe. then trustees of the will of Thomas Brandon, deceased) of the firsi part, Stephen Hall, on behalf of himself and his infiiBt children, WilUam Smith and Mary Ann his wife, Thomas Fleming and Harriet his wife (which, said Mary Ann Smith and Harriet Flemit^ were stated in such lease to be the only then surviving children of the said Hummt Brandon, deceased, and to be with the infant children of tiia said Stephen Hall, by his late wife Elizabeth Hall, de« ceased, another of the daughters of the said Thomas Branr don deceased, the only devisees and legatees named in htt last will and testament) of the second part; and Joseph Denyer of the third part By this lease, John Carter and Samuel Brandon, with th^ consent and approbation of the parties thereto of the second part, demised the premises in question to Denyer for 25 years from the 24th June, 1812, at the yearly rent of 126/. After stating several mesne assignments the abstract shewed, that by an assignmenl dated 2d June, 1824, the lease and premises became vested in Alexander Magnus for the residue of the term. The abstract then set forth an indenture of lease dated the 17th of Jun^j 18^5, between. JoAn ^e&s/^,, therein described ^» (a) As to mode of computing distance, vide Leigh v. Hunt, ante, iv. 579.
Spratt
V.
MICHAELMAS T£RI^ X GEO. IV. 191
the then only continuing trustee of the estates of the said I839. Thomoi Brandon, deceased, of the first part, Stephen Hall, Thomas Fleming, George Webster and Elizabeth his wife, late Elizabeth Hall, spinster, Mary Ann Hall and Jane ••!^i'^^.<^^- Hall, of the same place, spinsters, Stephen Hall, Thomas Brandon Fleming and Harriet Fleming, therein described as parties beneficially entitled to the estates of the said Thomas Brandon, of the second part, and the said Alexander Magnus of the third part. By this indenture it was wit- nessed, that in consideration of 1000/. paid by Magnus to the parties thereto of the second part, the said John Webster, by the consent and direction of the parties thereto of the second part, demised the premises in question to Magnus, his executors, administrators and assigns, for 19 years from the 24th June, 1827, at the yearly rent of 126A The abstract then stated a bond also dated the 17th June^ ]8£6, from the parties of the second part to the last men^ tioned indenture of lease to Magnus, his executors, adminis- trators and assigns, in the penal sum of dOOO/. for quiet en- joyment of the premises against John Webster, his exe- cutors, administrators and assigns, themselves, and any claimants under them or the said Thomas Brandon, de- ceased. The abstract, after divers mesne assignments, then shewed an assignment by indenture, dated 10th June, 18£6, of both the above leases to the defendant, the consideration for which assignment was 4000/. After perusing the ah* stract, the plaintiff's Attorneys returned it to the defendant's attorneys with several queries on the title, written in the margin, and amongst them were inquiries whether the trnstees under the will of fhomas Brandon, named as the granting parties in the two indentures of lease of the 2d March, 1813, and 17th June, 1825, had power to grant leases upon a premium, and whether the respective direct- ing parties to those leases were all the parties beneficially interested in the demised premises.
On the 5tli. May, the vendor's attorneys returned the abstract, and in answer to these inquiries referred generally
id2
1830.
CASES IN THE KINGS BENCH,
to the will of Thomas JSrandon, and at the same time re* quired the plaintiff's attorneys to forward the draft assign- ment as soon as possible. Upon examining the will it appeared that Thomas Brandon devised the premises in question, with other property, to trustees, amongst whom was John Carter, one of the granting parties in the lease of 2d March, 1813, in trust for his, the testator's, three daughters, Mary Ann Brandon, Elizabeth Brandon^ and Harriet Brandon^ in equal shares as tenants in common, and not as joint tenants, and for their respective executors, administrators and assigns, subject to a proviso that it should be lawful for the said trustees, or the survivors or survivor of them, to demise the estate devised to thetn in trust on building or repairing leases, or common tenants leases, for any term of years, so as all such leases made in pursuance of that his will should be made to take effect in possession, and not in reversion, or by way of future interest; and so as upon every such lease or demise there should be reserved, during the continuance thereof, the best and most improved rent that could be reasonably had or gotten for the same, without taking any sum or sums of money by way of fine or foregift. At the time when the indenture of lease dated 17th June, 1825, was granted, several children of 'Elizabeth Brandon and Harriet Bran^ don, mentioned in the will of Thomas Brandon, beneficially interested in the premises under the will, were living, and infants, and did not join in the lease; and some of such children were living and infants at the time when the above agreement was made between the plaintiff and the de- fendant, and also at the time when the cause was tried.
On the 5th May, the day appointed by the contract for the completion of the purchase, the defendant was pre- pared to give possession of the premises, and to assign the leases ; and plaintiff attended on the premises with his broker, but his attorneys did not attend, and on the follow- ing day by letter to defendant's attorneys, plaintiff's attor- neys stated, that before they proceeded any further in the
MICHAELMAS TERM, X GEO. IV. 193
businesa^ or gave any answer to the question put to them 1829. by the defendant's solicitor that morning, requiring to be informed whether they meant to complete the purchase or not, wished to be informed whether the answers returned to the plaintiff's solicitor's queries on the abstract contained all the information intended to be furnished, and whether the deeds which they, the plaintiff's attorneys, required would be produced to them. To which letter the defend- ant's attorneys returned for answer that they did not feel themselves bound to give any further answers to the queries 00 die abstract ; that the deeds required to be produced were not in their possession, and that the same related to the lessor's title> which the purchaser was not at liberty to inquire into. Oa the 12th May, the plaintiff's attorneys by letter informed the vendor's attorney that they had inspected the will of the late Thomas Brandon at Doctors' Commons, that it appeared that the will gave a power to the trustees to grant leases, so that no premium were taken for the granting thereof, and that the term were made to commence in possession, and not in reversion. They further stated that the title to the second lease appeared on the face of the abstract (connected with the information acquired by the inspection of the power under which it was granted) to be decidedly defective, a premium having been taken for the granting thereof, and the term being made to commence in reversion and not in possession. Under these circum- stances they informed the vendor's attorneys that it was the intention of their client to rescind the contract, and to re- quire the payment of the deposit money with interest and the expenses, together with 500/. agreed to be paid as liquidated damages. With this requisition the defendants refused to comply.
All the parties interested, who were of age when the second lease was granted, joined therein and received the consideration money, a«d laid out the whole of it in bene- ficially improving other parts of the property devised by the will, of which devised property the premises in ques-
VOL. V. o
194 CASES IN THE KING's BENCH,
1829. tion are part, for which purpose money was wanted. The defendant, at the time of making the contract, declared to plaintiff and his broker, that he, defendant, would sell no other title than what he held, and would not sign the agree- ment unless the stipulation respecting the non-production of the lessor's title were introduced. The rent of 1262. per annum was not at the time of the trial of the cause the best and most improved rent that could reasonably be had or gotten for the premises.
Jardine, for the plaintiff. This was an entire agreemeal for the sale of two leases. On the first lease no question arises; but the lease of 1825 was, in equity, absolutely void, being made in contravention of the power in three particu- lars ; J St. it does not reserve the best rent ; 2dly, it is granted in reversion ; and Sdly, a sum of money is taken by way of fine. This is not a formal defect in the execution of a power, in which case equity may relieve; but the lease is granted in direct contravention of the terms of the power, and is, therefore, absolutely void (a), and cannot be con- firmed (ft). Upon the face of the abstract also the title is defective. It is not shewn that Dn Webster had any inte- rest at all ; he is not named as a trustee in the will, nor does his authority to demise any where appear. The de- fendant asked for the deeds by which Dr. Webster was appointed trustee, but they were not furnished, and he had therefore no reasonable satisfaction that Dr. Webster bad any title whatever. The whole question is^ whether the plaintiff has contracted by the terms of his agreement to accept such title as tbe vendor had, whether good or bad. There are only two parts of the agreement upon which the defendant can rely as compelling the plaintiff to take the title whether good or bad. The Court must be satisfied
(d) Campbell w Leach, Ambler, v. Verney, Willes, 169; Doc v. 740 ; Sugd. Powers, 377. WatUy 7 T. R. 83.
{b) Co.Litt. 895. And bee Jones
MICHAELMAS TERM, X GEO. IV.
(bat the purchaser explicitly contracted for such title as the Tendor could give, or that he had notice of the badness of the title before they will enforce payment of the 50001. Of the latter circumstance there is no evidence in the case. It win, however, be contended for the defendant, from two passages in the agreement, that the purchaser is bound to take such title as the vendor could give. The first of these is the words '' as he holds th^ same." By the con- text it will clearly appear, that these words were not in^ tended to be used in the sense which it is now attempted to affii to them. They were merely used as descriptive of the manner and circumstances of the occupation. They relate to the possession, and not to the title. The expres- sion relied on is found in that part of the agreement which points out those things which are to be done by the vendor. In the purchaser's part there are words of more limited extent, which would have been useless if the words in question were to be understood in the manner contended for by the defendant. If these words referred to title, the stipulation as to non-production of the lessor's title would be wholly unnecessary. With regard to the second expres- sion, namely, that the plaintiff was not to require the lessor's title, its effect is merely to exempt the vendor from the necessity of proving that his title is as good. In White V. Foljambt (a). Lord Eldon says, " Do you carry it to the extent that the defendant could not be permitted to shew you had a bad title (&) ? The plaintiff's case is quite clear of any difficulty. His objection is not to the lessor's title, but to that of the lessee. Thomas Brandon^ who created the power (c) under which the leases were executed, must
195
1829.
(•) 11 Vcs. 33r.
(h) Ibid, 359.
(c) The title of an appointee is the same as if the estate had been expressly limited to him by name in the deed creating the power. SlrBdmfardCiere*$casey6Co.Bjep. 18; Lady Graham\ case, F.
Moore, S61 ; MiddUton v. Crqfti, 2 Atk. 661 ; Koach v. Wadham, 6 East, S89, &2 Smith, 376; Mound- rell V. Maundrell, 10 Vesey, 355 ; Ratf V. Pungy 5 B. & A. d61 ; Doe d. Wigan v. JoneSf 10 B. &C. 458 ; S Johns. (American) Chan- cery Reports, 550. Tor some O «i
196
1829.
CASES IN THE KINGS BENCH,
be considered as the lessor. The plaintiff does not dispute the title of Brandon as lessor; but he says that Brandon did not demise. There is another objection founded upon a variance between the defendant's title and that which he contracted to sell. The agreement treats these leases as concurrent leases. A fair presumption upon this memo- randum is. that the defendant was selling the leases under which he held the premises. They should have been leases to which his possession could be attributed. The cases of M^hite V. Foljambe (a) and Deverell v. Lord Bolton (6) are extremely apposite. [Bayley, J. In White v. Foljambe it was said that he held the residue of a term; here the interest is described.] There they would be supposed to be leases of different parts ; Deverell v. Lord Bolton.
Campbell, contrsl. This is a case of extreme hardship upon the defendant^ who had most carefully guarded him- self against warranting a complete title^ and declared to the broker that he would not sell any title but what he had. No bad faith can be imputed to the defendant, it being entirely the fault of the plaintiff that the bargain has not been carried into effect. To begin with the last point which has been made on the part of the plaintiff. No fraud and no misdescription are chargeable upon the de- fendant, and he has been at all times ready to execute an assignment. In White v. Foljand>e and in Deverell v. jLor J Bolton there was misdescription. In the former of these cases the interest of the vendor was described as one term of 50 years, whereas he held under two terms. The incum-
purposes, however, the appoint- ment is treated as a distinct sub- stantive act. It is considered as a conveyance with reference to the provisions of 87 Eliz, c. 4, as to fraudulent conveyances, Duke of Marlborougk v. Lord Godol- phifiy 2 Vez. sen. 61, 65; and with reference to the statutes requiring registration, Scrafton v. Qtiincei/,
ib. 4tS. So, the appointee is looked upon as a party claimiDg under the appointor within a co- venant against the acts of persons claiming vtuler the appoiotor; Hurd V. Fletcher, 1 Dougl. 43. And see Bartlet v. JRamscfen, 1 Keble, 570; po$ty 200 (a).
(a) 11 Vesey, 337.
(6) 18 Vesey, 505.
MICHAELMAS TERM, X «EO. IV.
brances also will dispose of that case as an authority. Here there is an express allegation in the declaration which may always be adverted to^ of the existence of the two leases. [Bayley, J. No question is referred to us as to the form of the declaration ; the question is, whether this was a warranty of title, or merely an undertaking to assign what he has.] It is of the last importance that parties should be able to stipulate so as to avoid any questions of title. There are few titles in which a conveyancer will not discover defects. The words*" as he holds the same," relate to the title. The antecedent referred to is the lease. The words are a qualification of the vendor's engagement. It b said that he knew the objection to the lessor's title ; if 80, the case of Freme v. Wright (a) is very nearly in point. In that case a party who had contracted with assignees to purchase the interest of the bankrupt under such title as he lately held the same, was compelled to accept a lease which the lessor had no power to make. [Littledale, J. That is not the case here. The plaintiff does not mean to say that the testator had not a good title.] It is not shewn that Carter did not assign to WatkiiiSL It is necessary to refer to the title of the lessor, in order to attack the lease in question. That the purchaser has precluded himself from doing. Then it is objected that the interest is only equit- able. In Alpass v. Watkins {b) the Court said, that upon a question as to the right to a return of the deposit, they would only look to the legal title. It is true, that in Elliott V. Edwards (c) it was held, that the liability of the purchaser in equity was a sufficient objection; but that was a case of an actual incumbrance to the extent of the pur- chase-money, which the vendor had not paid. \Parke, J. Prim4 facie a party bargains for a good title in equity as well as at law.] The agreement was qualified to meet certain objections to the title of the lessor.
157
1829.
(«) 4 Mndd. 364. (6) 8T.R. 516.
(c) 3 B. & P. 181. And see Maberly v. Robins, 5 Taunt. 626 ; 1 Marsh. 268.
CASES IN THE KING S BENCH,
Jardine, in reply. The plaintiff bargained for a good derivative title. In Curling v. Shuttleworth (a) the Court of Common Pleas thought that the purchaser was not bound to proceed where even a reasonable doubt existed. [Bayley^ J. There must be a good title. There can be no middle course, Romilly v. James (6).] It is admitted that if the present case fell within Freme v. IVright, a difficulty might arise. That case, however, has since been over- ruled. [^Parke, J. The question is, whether this is the lease of the person who executed the indenture, or of the donor of the power. At the time the contract is entered into, the existence of the power is unknown. The point to be con- sidered is, what was the meaning of the contract at the time it was made.] In the Earl of Uxbridge v. Bayley (c) it is said, that " whenever parties have power by deed to do a particular act, when done under the power it is as if incorporated in the original deed when executed/' [ParA'e, J. The rule is thus laid down in Purvis v. Rayer (rf), " It is a general rule in equity, that if a person, generally speaking, offer any thing for sale^ the vendee is entitled to see that the vendor has it with the quali6cation and in the way in which he the vendee understood that he bought it."]
Bay LEY, J. — I cannot say that I entertain any doubt in this case. The plaintiff has all that he bargained to have. He is bound to pay the purchase-money, or at least he is not entitled to recover back the deposit. At the time of the sale the defendant had two leases, under which the pur- chaser might occupy during the whole period of 28 years mentioned in the agreement, if the leases were valid; and if he were evicted he would have his remedy against the trustee upon the implied covenant contained in the word ** demise," which is found in both leases (e). The defendant
(«) 6 Bingh. 121. (e) That the assignee of the
(b) GTuunt. 2C3; 1 Marsh. 592. lessee may maintain covenant on
(c) 1 Ves. juM. by Lonl Com- the word dimisi, see the dictum iM9swner Ashhurst, of Bro&n, J., Dyer, 357 b.
{d) 9 Price, 488, 518. In the present case, however,
MICHAELMAS TERM, X GEO. IV.
agrees to sell, not the Rockiugham Arms, but '' the two leases and good-will in trade of the house and premisesj for the sum of 4Q.50L, as he holds the same for the term of 28 years." Now it is objected on the part of the plaintiff, that these words must be understood to mean not two con- secutive, but two concurrent leases; and While v. Foljambe and Deverell v. Ijord Bolton are referred to. But in those cases the language of the contract is very different; there one term is spoken of, whereas here, as the contract speaks of two leases and one rent, the leases might be either con- secutive or concurrent. There is, however, one clause ivhich shews them to be consecutive. The premises are described as being held at one rent. The defendant having bargained to sell the two leases and the good-will, &c., the plaintiff agrees to accept an assignment of the said leases and premises as above described, without requiring the lessor's title. The money is to be paid for an assignment of the leases and premises ; and this without requiring the lessor's title. The only fair construction of the agreement is, that the defendant is to sell the leases only, and that his title to those leases is not to be questioned. The plaintiff may have possession of the premises during the whole term; if not, he has his remedy over against the party who granted the lease. The plaintiff would therefore become entitled either to the leases or to an equivalent from the lessor. The true construction is, that the defendant sells and assigns the leases only, and that the plaintiff has precluded himself from questioning the plaintiff's title.
199
1829.
LiTTLEDALE, J. — I have some doubts, but upon the vhole I think that judgment must be for the defendant. One objection is, that the leases are misdescribed in the
both the lease of 1813 and that of Rep. 80,) gave no remedy against
1895 contained covenants against the acts of the lessors, which qua> Ufied covenants, while they de- strojed the right of action upon the word dimniy (Noka's case, 4 Co.
the lessors in respect of the im- perfect execution of the power. And see Falder v. Hooker, 2 Men v. 427.
200
1899.
Spratt
V.
Jefvery.
CASES IN THE KING S BENCH,
agreement, which must be taken to mean that the premises are held for different terms in different parts of the premises. And this would be the construction if the words had stood alone. To justify that construction, the words should have been, not at the annual rent of 120/., but at several annual rents, amounting in the whole to 120/. The expression used in the agreement is satisfied by consecu- tive leases. The words " as he now holds the same/' 1 consider to be mere words of description, meaning that the vendor has a lease of them for 28 years; not restricting the sale to the interest which the lessor has, but leaving the question of title to be collected from other parts of the instrument. The defendant was not the original lessee, and the plaintiff did not mean to exclude himself from the right of objecting to any defect in the assignments which connected the defendant with the original lessees. But taking the agreement together, it appears that the plaintiff was willing to accept a qualified title. The lessor's tide is not to be inquired into. The whole difliculty in the case arises upon the words ** without requiring the lessor's title." Then who is the lessor here? The plaintiff contends that Brandon, the party who created the power, must be con- sidered as the lessor. In many cases it is so; but in JsAer- %oood V. Oldknow (a) it was held, that a remainder-man taking after tenant for life, who had granted a lease under a power, was entitled, under 32 Hen, 8, c. 34, to take ad- vantage of a covenant made with the tenant for life and his assigns. Upon the whole I rather think that the construc- tion set up by the defendant is the true one. The pur- chaser can hardly be supposed to have been willing to accept a lease void under the power. But as nothing is said in the contract about the power, it may be supposed that the parties knew nothing about it (6). In speaking of the lessor's title, therefore, they would in all probability
(a) 3 M. & S. 382. And see ante, 195 (o); Glover v. Cope, Carthew, 205; Skinner, 305; & 3 Lev. 326.
{b) Qu. Whether the vendor could set up his own ignorance of tlie state of his title ?
Spratt
MICHAELMAS TERM, X GEO. IV. 201
mean the title of the party (a) by whom the lease pur- 18^9.
ported to be granted ; that, perhaps, is the better mode of
construing this agreement. ^'v?
Jeffert.
Pabkb, J. — I do not feel much doubt on this question. The action is brought to recover back money paid as a . consideration, which has failed, and the expenses which the plaintiff has incurred, on the ground that the defendant has not made a good tide. If the defendant has performed aU that he undertook to perform^ the plaintiff cannot main- tain this action, though he may have discovered that his bargain is worth little or nothing. If the defendant is ready to deliver all that he has engaged to deliver, the plaintiff is not entitled to recover. All depends upon the terms of the agreement. It is said that the defendant agreed to assign two concurrent leases. The contract is not very dearly expressed ; but the defendant agrees to sell " the two leases and good-will in trade, as he holds the same, for the term of twenty-eight years,'' and only one rent is mentioned. In Purvis v. Rayer (b) it was held, that under a general contract for the purchase of a lease, the vendee it not bound to take only the instrument and the title which the lessee had under that instrument. This had long before been settled with respect to purchasers of freehold interests. It is, however, competent to parties to enter into a qua- lified contract. Here the question mainly turns upon the qualification introduced by the words " without requiring the lessor's title.'' Upon this the plaintiff says, first, that he is at liberty to object to the lessor's title, though the defendant was not bound to produce it. This would be very unreasonable. Then he says, that the title here spoken of, and which is not required to be produced, is the title of the donor, not the title of the party making the lease. At die time of entering into this agreement the parties knew
fa) £acb lease, however, and shews that the nominal lessor was paiUcolarly the second, distinctly a trustee for others.
(6) 9 Price, 488, 590.
CASES IN THE KINGS BENCH,
nothing about the power. The proviso therefore means» that no objection is to be taken to the title of the party making the lease. We have no evidence that these leases were under a power. That is assumed by the plaintiff. The leases purport to be made by the party who under ^randofC^ will had the whole legal estate out of which the terms were derived. The provision respecting the mode of leasing, only means that the cetteux que trust shall not object where the leases are in the form prescribed. Upon the true construction of this agreement therefore every thing has been done which on the part of the defendant ought to have been done.
Postea to the defendant.
Doe, on the demise of CHRisTMAS^t?. Oliver and Oliver.
Same v. Oliver, Arnold, Barton, Read, Biggs,
Storer, and Knight.
Devise of JtiJECTMENT for certain messuages and lands, situate
lands to A. for jp ji,g paj-jgh of St. Margaret, in the town and borough
life, remainder / . .
to the children of Leicester. Plea, not guilty. At the trial before
TheUmeof^/s D* Oj/ley, Serjt, at the Leicester Summer Assizes, 1828,
death. B. \e(i a verdict was found for the plaintiff by consent, subject to
who, with her ^^ opinion of this Court upon the following case : —
husband, in Theophilus Holmes, being seised in fee of certain tenements,
the hfeiirae of , , . f .„ ' ® /
A., levied a by bis last Will and testament m wntnig, bearmg date 29th
^c'^ The fine September, 1784, duly executed and attested for the purpose
operates by of passing real estates, gave and devised as follows : — ** I
duHnK^the^lffe &^^ ^^^ devise the messuage or tenement wherein I now
of .^., but after dwell, with the appurtenances thereto belonging, and the
operates upon ^^^ ^^ ^^^ ^7 household goods, plate, linen, and other house*
the estate, [jqIj furniture of every sort and kind which shall be about vesting the
right of posses- my said messuage or tenement at the time of my decease and sion in C. jjjgQ j^y messuage or tenement in Belgrave Gate, Leicester,
MICHAELMAS TERM, X GEO. IV. 203
onto my wife Christian Holmes for and during her natural ]8<29. life; and from and after her decease, I give and devise the laid messuage or tenement wherein I now dwell, with the appurtenances, and also my said messuages or tenements'' (in the said will described, being those for the recovery of which these actions are brought,) ** with warehouses, stables and other buildings, yards, gardens, and backsides thereto belonging, in case I shall die without issue (but not otherwise), unto, between and among all the children of my brother, the Rev. Mr. William Holmes, that shall be living at the time of my said wife's decease, and to their beirs and assigns for ever."
The testator died, seised of the premises in question, in September, 1785, without issue, and without altering or revoking his said will. On his death his widow, who after- wards married Joseph Chamberlain, entered into posses- sion of the tenements in question, and so continued until the time of her death, which happened in or about Sep- tember, 1826. The William Holmes, mentioned in the will of the testator, had issue three children only, viz. JameS" Harriman, Ann^Mary, and Thomas^Bradgate. James* Harriman Holmes and Thomas-Bradgate Holmes died without issue in the lifetime of the testator's widow. Ann^ Marg Holmes married Joseph-Brooks Stephenson, and was the only child of William Holmes living in March, 1814, and at the time of the death of the testator's widow.
On the 4th March, 1814, and during the lifetime of the testator's widow, by indenture duly made between the said J. B. Stephenson and Ann'Mary, his wife« (therein de- scribed as devisee named in the last will of the said Theo^ philus Holmes then deceased,) of the first part,</. Connor, Gent, of the second part, Charles Waldron of the third partj and Thomas Chandkss, Gent., a trustee on behalf of the said diaries Waldron, and also of the said J. B. Ste* pkenson and Ann^Mary his wife, of the fourth part ; the 1atter,in consideration of 600/., granted to CharlesWaldron, his executors, administrators and assigns, for and during
204 CASES IN THE KING's BENCH,
1B99. their natural lives and the life of the survivor, an annuity of 100/. to be charged upon and issuing out of the said mes- suages or tenements devised by the will of TkeophUw Holmes; and for better securing the payment^ granted, bargained and sold to Thomas Chandless, his executors. See, all the said premises, to hold, from and immediately after the decease of Christian Holmes, for the term of ninety- nine years. And then, after reciting that the said J. B. Stephenson and Jnn-Mary, his wife, did, as of Hilary term then last, levy before the Court of C. P. at Westminster unto T. Chandless and his heirs, one fine sur conusance de droit come ceo, &c., of the said premises, by the descrip- tion of seven messuages, seven gardens, and one acre of land, with the appurtenances, in the parish of St. Margaret, in the town and borough of Leicester, of which fine no uses had as yet then been declared, it was by the said indenture agreed and declared that the said fine should be and enure, in the first place, for confirming the said yearly rent-charge of 100/. and, in the next place, to the use of T, Chandless, his executors, &c., for and during the said term of ninety- nine years. The said last mentioned indenture was duly executed by the parties, and a receipt for the consideration money indorsed, and a memorial of the same was duly in- rolled in the Court of Chancery. The fine referred to by the said indenture was duly levied according to the same in Hilary term, 54 Geo, 3, with proclamations. On the 11 th April, 1823, 1\ Chandless died, having made a will and several codicils, and appointed Sir William Long, Knt. and Henry Gore Chandless, executors. On the 27th January, 1827, by indenture of that date, between the said C. Wal- dron of the first part, the said executors of T, Chandless of the second part, Newbold Kinton, one of the lessors of the plaintiff, of the third part, and James Christmas, one other of the said lessors, of the fourth part, for the consideration therein expressed, the said annuity was assigned to the said N, Kinton: and the said term of ninety-nine years, for securing the satoie, was assigned to the said J. Christmas.
f
MICHAELMAS TERM, X GEO. IV. 205
On the 4th June, 18£7j 1275/. became due in respect of 1829. the said annuity. The day of the demises laid in the de- claration is the I St November, 1827* The questions for the opinion of the Court are. First, whether A, M. Stephenson, who was the only child of William Holmes living on the 4th March, 1814, and at the time of the death of Christian Holmes (after- wards Chamberlain), took a vested or contingent remainder uader and by virtue of the will of Theophilus Holmes; Secondly, whether the fine levied by Mr. and Mrs. Stephen^ son worked any forfeiture of the estate of the latter, or transferred any interest therein.
The case was argued at the sittings in Banc after Trinity term, 1827, by Preston (with whom was Denman) for the plaintiff, and by N. R. Clarke for the defendant.
It was admitted, on the part of the plaintiff, that the estate given by Theophilus Holmes to the children of William Holmes was contingent during the lifetime of the testator's widow ; but it was contended, that the fine levied by the daughter of W. Holmes, though operative only by way of estoppel during the lifetime of the testator's widow, operated after her death, when the contingency happened, on the estate which then became vested in the daughter of W. Holmes. And the cases of Fick v. Edwards {a). Helps V. Hereford (6), and Davies v. Bush (c) were cited, and relied on.
For the defendant it was contended, that the estate given to the daughter of W, Holmes could not be conveyed by tlie fine levied during the lifetime of the widow of T. Holmes the testator, because a contingent remainder could not be so conveyed; and, therefore, that the estate still remained vested in Mr. and Mrs. Stephenson. That the fine levied by them operated by way of estoppel only, and that of that a stranger was not entitled to take advantage. And
(a) 3 P. Wmt. 372. (c) 1 M'Clel. & Y. 58.
(6) 2 Bam. & Aid. 243.
206 CASES IK THE king's BENCH,
1839. ^^^ ^^^ '^^^ position Doe v. Mariyn (a) was cited and relied on.
The Court took time to consider of their judgment, which was now delivered by
Bayley^ J. — ^This case depended upon the eflfect of a fine levied by a person who had a contingent remainder in fee. The short facts were these : Ann-Mary, the wife of Joseph'Brooks Stephenson, was entitled to an estate in fee upon the contingency of her surviving Christian, the widow of Theophilus Holmes ; and she and her husband conveyed the premises to Thomas Chandless for a term of ninety-nine years, and levied a fine to support that conveyance. Chris- tian, the widow, died, leaving Mrs. Stephenson living ; so that the contingency, upon which the limitation of the estate to Mrs. Stephenson depended, happened, and this ejectment was brought by the assignees of the executors of Thomas Chandkss, in whom the term of ninety-nine years was vested. It was admitted in argument on the part of the defendant, that the fine was binding upon Mr. and Mrs. Stephenson, and all who claimed under them, by estoppel ; but it was insisted that such fine operated by way of es- toppel only; that it, therefore, bound only parties and privies, not strangers ; that the defendant, not being proved to come in under Mr. and Mrs. Stephenson, was to be deemed, not a privy, but a stranger ; and that, as to bim, the estate was to be considered as still remaining in Mr. and Mrs. Stephenson. In support of this position reliance was placed upon the latter part of the judgment delivered by me in the case of Doe d. Brune v. Marty n {a), and that part of the judgment certainly countenances the present defendant's argument. But the reasoning in that case proceeds upon the supposition that a fine by a contingent remainder-man operates by estoppel, and by estoppel only ; its operation by estoppel, which is indisputable, was suf- ficient for the purpose of that decision; whether it operated (a) Ante^ ii. 485 ; 8 B. & C. 497.
MICHAELMAS TERM, X GEO. IV. 207
by estoppel only, or whether it had a further operation, was i829. perfectly immaterial in that case ; and the point did not there require that investigation which the discussion of this case has rendered necessary. We have, therefore, given the subject that further consideration which it re" quired, and we are satisfied, upon the authorities, that a fine by a contingent^remainder-mau, though it operates by estoppel, does not operate by estoppel only, but has an ulterior operation when the contingency happens ; that the estate which then becomes vested feeds the estoppel ; and that the fine operates upon that estate, as though that estate had been vested in the conusors at the time the fine was levied.
The first authority which it is necessary to notice is RawKns's case (a). There, Cartwright demised land, not his own, to Weston, for six years. Rawlins, who owned the land, demised it to Cartwright for twenty-one years ; and Carttoright re-demised it to Rawlins for ten years. It was resolved that the lease by Cartwright, when he had nothing in the land, was good against him by conclusion, and that when Rawlins re-demised to him, then was his interest bound by the conclusion; and that when Cart- wright re-demised to Rawlins, then was Rawlins concluded also. Rmalins, indeed, was bound as privy, because he came in under Cartwright; but the. purpose for which I cite this case is, to shew that as soon as Cartwright got the land, his interest in it was bound. In Wealev, L<noer{b), die case was thus : Thomas, a contingent-remainder-man in fee, demised to Grylls for five hundred years, and levied a fine to Grylls for five hundred years, and died. The con- tingency happened, and the remainder vested in the heir of Thomas, and whether this demise was good as against the heir of Thomas was the question. It was argued before Hek, C. J., and his opinion was, that the fine did operate at first by conclusion, and passed no interest, but bound the heir of Thomas ; that the estate, which came to the (tf) 4 Co. Rep. 5?. (h) Pollexf. 54.
CASES IN THE KINOES BENCH^
heir when the contingency happened, fed the estoppel ; and then the estate by estoppel became an estate in in- terest, and of the same effect as if the contingency had happened before the fine was levied : and he cited Rawlins's case, 4 Coke, 53, in which it was held, that if a man leased land in which he had nothing, and afterwards bought the land, such lease would be good against him by conclusion, but nothing in interest till he bought the land ; but that as soon as he bought the land, it would become a lease in interest. The case was again argued before the Lord Chancellor, Lord Chief Justice Hale, Wild, Ellis, and Windham, justices, and they all agreed that the fine at first enured by estoppel ; but that when the remainder came to the conusor's heir, he should claim in nature of a descent* and, therefore, should be bound by the estoppel ; and then the estoppel was turned into an interest, and the conusee had then an estate in the land. In Treviban v. Lawrence {a), Lord Holt cites 39 Ass. 18 (b), and speaks of an estoppel as creating an interest in or working upon the estate of the land, and as running with the land to whoever takes it. In rick V. Edwards (c), cited by Mr. Preston, Lord Talbot must have considered a fine by a contingent-remainder- man as having the double operation of estopping the conusors till the contingency happened, and then of passing the estate. There lands were devised to A. and B. and the survivor, and the heirs of such survivor, in trust to sell. Upon a reference to the master, he reported that they could not make a good title, because the fee would vest in neither till one died. On exceptions to the master's report. Lord Talbot held that a fine by the trustees would pass a good title to the purchaser by estoppel; for though the fee was in abeyance, one of the two trustees must be the survivor, and entitled to the future interest; couse- quently, his heirs claiming under him would be estopped
(a) S Ld. Raym. 1048; 6 Mod. man brings a writ of error, and S58. then purchases the land, he is
(b) Fol. 287, where it was said ousted of the error for ever, by Cavendish, arguendo, that if a (c) 3 P. Wins. Sri.
I
MICHAELMAS TERM, X GEO. iV. 209
by reason of the fine by the ancestor, from saying quod partes 1829.
fatis tdkil habuerunt, though he that levied the fine had at
tbe time no right or title to the contingent fee. On the
following day, he cited the case of Weale v. Lower {a),
which I have before cited. Now, whether Lord Talbot
was right in treating the fee as being in abeyance, and the
limitation to the survivor and his heirs as a contingent
remainder, or not, it is evident he did so consider them ;
and he must have had the impression that the fine would
have operated, not by estoppel only, but by way of passing
the estate to the purchaser, because, unless it had the
latter operation as well as the former, it would not pass a
good title to the purchaser.
Mr. Fearne, in his work on Remainders, c. 6, s. 5, says, "We are to remember, however, that a contingent re- mainder may, before it vests, be passed by fine by way of estoppel, so as to bind the interest which shall afterwards accrue by the contingency ;" and after stating the facts in fVeale v. Lower, he says, " It was agreed that the contin- gent remainder descended to the conusor's heir ; and though the fine operated at first by conclusion only, and passed no interest, yet the estoppel bound the heir ; and that, upon the contingency, the estate by estoppel became an estate in interest, of the same effect as if the contingency had happened before the fine was levied."
Upon these authorities, we are of opinion that the fine in this case had a double operation — that it bound Mr. and Mrs. Stephenson by estoppel or conclusion so long as the contingency continued ; and that when the contingency happened, the estate which devolved upon Mrs. Stephenson fed the estoppel ; the estate created by the fine, by way of estoppel, ceased to be an estate by estoppel only, and be- came an interest, and gave Mr. Chandless, and those having a right under him, exactly what he would have had in caqe tbe contingency had happened before the fine was levied.
Judgment for the Plaintiff. (a) PoUexf. 54. vol*. T. P
210 CA$£S IN THE KINO's BENCH,
MusKETT and others. Assignees of Taylob, a Bankrupt, ^^?\ V. Drummond,
by the^as- XrOVER by the plaintiflfs, as assignees of Taylor, to
signeesofJ.y recover certain goods and chattels, the stock in trade and
IV here ihe pe- .
titioning ere- household furniture of the bankrupt, alleged to have been
f isne^TofB ^^^^ *"^ converted by the defendant after the bankruptcy. the proceed- Plea, n6t guilty ; with notice of disputing the petitioning wmm?Miof * ^ creditor's debt, the trading and the act of bankruptcy, are not evi- At the trial before Lord Tenterden, C. J., at the London 6Geo!4,c. 16, adjourned sittings after Hilary term, 1828, a verdict was 8. 98, of the found fof the plainiiflFs, damages 427/., subject to the of B. opinion of this Court upon the following case : —
by^helord ^^^ bankrupt Taylor, for several years previous, and Chancellor down to the time of the issuing of the commission of bank- 4"cri6, 8. 18, ^"P^ against him, carried on the trade and business of a substituting a builder, at Balham Hill, in the county of Surrey. On the ing creditor's Idth November, 1826, and two or three days previously,
debt for one jj^ committed two several acts of bankruptcy. On the
alleged in the *^ ^
petition to 18th November, 1826, one Samuel Rothwell issued ^ fieri
x^'^^^'nT f^^^^ directed to the defendant, then sheriff of the county
commission, of Surrey, commanding him to levy 440/. 4s. on the goods
direct the ^^^ chattels of the bankrupt, under which writ the defend-
commissioners ^^^ q^ ^j,g ^^^^ igth November, seized, and afterwards
to inquire only , /
as to tlie suffi- sold, the goods and chattels mentioned m the declaration.
new^JebL^and "^^^ commission under which Taylor was adjudged bank- is silent as to rupt issued on the 9th December, 1826, and the plaintiffs cy of the old. ^^^^ afterwards duly chosen assignees, and the usual "y^hethera assignment was made to them on the 29th December, under that 1826. The commission issued on the petition of the section made assignees of one James Kenworthy, a bankrupt, to whom, lite, would prior to and at the time of his bankruptcy, Tai/lor was ^t^fa""* indebted in the sum of 150/. and upwards. The commis- partj^ who . sion, adjudication, and assignments, and other proceedings of such order, in the bankruptcy of Kenworthy, were given in evidence, quare. du]y entered of record. That commission was dated 6lh
Drummond.
MICHAELMAS TERM, X GEO. IV. November, 1826, and the assignment to the provisional assignee was on the same day, and that to the plaintiffs m'T^t oathe£5th November, 1826; but no other evidence M'as _ v, given of the petitioning creditor's debt, trading, or act of bankruptcy, than by the production of such proceedings. The present action was commenced on the 24th January, ]8£7. The notice to dispute was given on the 17th Fe- broary, 18£7> An order of the Lord Chancellor was put in and proved, dated 25th February, 1828. The order was made under the statute 6 Geo. 4, c. 16, s. 1 8, (a) on the petition of the plaintiff Muskettf which it set forth. That petition stated, that the commission against Taylor had bsued on the petition of the assignees of Kemvorthy; that Taylor bad been declared a bankrupt ; that Muskett and the other plaintiffs in this cause had been appointed his as- signees ; that an action of trover having been brought, it bad been found, on preparing for trial, that the petitioning creditor's debt was not such a legal debt as would support a commission, and that it would be necessary, in order to support the commission, that there should . be another />etitioDing creditor's debt substituted in the place of that of the assignees of Kenworlhy; that before and at the time of issuing the commission, the petitioner was a creditor of the bankrupt to the amount of 552/. ; that his debt was incurred subsequently to that of the assignees of Ketmorthy, and that he had proved that debt under the commission. The prayer was, that the commission might be supported hj, and the proceedings carried on, upon the debt of the petitioner, instead of that of the assignees of Kenworthy.
(a) Which enacts, " that if after to support a com mission, (provided
adjadication the debt or debts of such debt or debts has or have
the petitioning creditor or creditors, been incurred not anterior to the
or aoj of them, be found intuffi- debt or debts of the petitioning
citni to support a commission, it creditor or creditors-,) to order the
shall be lawful for the Lord Chan- said commission to be proceeded
cellory Qpon the application of any in ; and it shall by such order be
other creditor or creditors, having deemed valid." proved mnj debt or debts sufficient
P 2
CASES IN THE KING S BENCH,
The order then stated, that upon hearing the petition and _ the affidavits filed in support thereof read, and what was
MUSKETT "^^
v. alleged by the counsel for the petitioner and the counsel
RUMMOND. f^^ ^jjg assignees of Kenworthy, the latter appearing and consenting thereto, the Lord Chancellor ordered, that upon the commissioners named in the commission being satisfied that the debt proved by Muskett was incurred not anterior to the debt of the assignees of Kenworthy, and that it was an existing debt, and sufficient to support the commission, the commission should be proceeded in ; and his lordship referred it to the said commissioners to make the inquiry.
The commissioners did find that MusketCs debt was an existing debt, and sufficient to support the commission *, and that it had been incurred subsequently to that of the assignees of Kenworthy ; also that a debt amounting to 492/. was due to Muskett previously to, and at the time of the committing of, the acts of bankruptcy by Taylor, and the issuing of the commission against him, and is now due. It was objected on the part of the defendant, first, that the title of the assignees of Kenworthy to become petitioning creditors was not sufficiently proved ; and, secondly, that the order of the Lord Chancellor, and the proceedings under it, were not sufficient proof of a debt to sustain the present action.
Hutchinson, for the plaintiffs. The first objection taken to the right of the plaintiffs to recover in this action is, that there is not sufficient evidence of the title of the as- signees of Kenworthy to be petitioning creditors. Now, by the 6 Geo. 4, c. 1 6, s. 92(a), where the bankrupt has
(a) Which enacts, <' that if the United Kingdom) within twelve
bankrupt shall not (if he was with- calendar months after the adjudi-
in the United Kingdom at the cation, have given notice of his
issuing of the commission) within intention to dispute the commis*
two calendar months after the ad- sion, and have proceeded therein
judication, or (if be was out of the with due diligence, the depositions
MICHA£LMAS TERM, X GEO. IV.
Bot giveo notice to dispute tlie commission, the procedinge before the commissioners are made conclusive evidence of
. , . . , . „ . . . MUSKETT
toe matters therein contamed, m all actions at law, or suits v.
inequity, brought by the assignees for any debt for which Dr^'mmond. tbe bankrupt might have sued. Here the proceedings uader KentDorihy*s commission were produced, and the debt was one for which Kenworthy might have sued, therefore the proceedings are sufficient evidence. [Parke, J. Is a commission of bankrupt an action at law, or a suit in equity (a), within the meaning of the statute ?] Ken- woHhy*s assignees might have sued Taylor: and if they had, Skaife v. Howard (b) is an authority to shew that the proceedings would have been sufficient evidence in that suit. [Bayley, J. No. That case only decided that the depositions which were made evidence by the statute 49 Geo, S, c. 121, s. 10, were primd facie evidence of the facts contained in them.] Secondly, it is objected, that the Lord Chancellor's order, substituting Muskett as peti- tioning creditor instead of the assignees of Kenworthy, having been made after the present action was commenced, could not have a retrospective effect, and therefore could not furnish evidence of a petitioning creditor's debt suffi- cient to support the action. But the very object of the statute 6 Geo. 4, c. l6, s. 18, seems to be, by substituting a new petitioning creditor's debt, to render the commission valid ab initio, in order to prevent the just title of assignees from being defeated upon objections beside the merits. If that be so, (and if it be not so, the provisions of s. 18,
taken before the commissioners at for which the bankrapt mi^ht
the time of^ or previous to the ad- have sustained auy action or suit.''
jodicatioD, of tbe petitioning ere- (a) As an authority that a com-
ditor*s debt or debts, and of the mission of bankrupt is not an ac-
trsding and act or acts of bank- tion or suit, see the case of OtfM-
nipccy, shall be condosive evidence rk ▼. Fitk, 5 D. & R. S4; SB.
of the matters therein respectively & C. 178.
contained, in all actions at law, {b) 4 D. & R. 37 ; S B. & C*
or nu9 in equUy, brought by the 560. assignees for any debt or ('emand
MUSKETT
CASES IN THE KING S BENCH,
would seem to be wholly nugatory^) this commission is rendered valid ab initio, and all the proceedings under it are v.' as regular as if it had been originally sued out upon the Drummomd. p^titi^^n of Muskett, whose debt is now substituted for that of the assignees of Kenworthy*
I^siger, contrs^, upon the second point, to which Uie Court desired him to confine his attention. The Lord Chancellor's order cannot have a retrospective operation ; and if not, it cannot support the present commission. The assignees have no right to use the order for the purpose of maintaining the present action ; for they had no title at the time when they commenced the action, and therefore can- not be allowed to support it by a title subsequently acquired. The power given to the Lord Chancellor by s. 18, is con- fined to the working the commission^ and does not extend to the carrying on actions at law or suits in equity. The dates in this case are not unimportant; the notice to dis- pute the petitioning creditor's debt is given on the 17th of February, 18279 and the order for substituting the new debt is obtained on the 25th of February, 1828, an interval of somewhat more than a twelvemonth. [Parke, J. It was held in Hull v. Pickersgill {a) that an uncertificated bank- rupt could not maintain an action of trespass against subse- quent creditors for breaking open his house and seizing his after-acquired property, although his assignees did not ratify the seizure, and were unknown to the defendants until after the commencement of the action.] To give thb order a retrospective effect would be to fix the defendant with the costs of an action, which the plaintiffs in the first instance had no right to bring, and which he might believe he had good grounds to defend. [Bayley, J. He might have applied to the Lord Chancellor.] He had no notice of the proceedings before the Lord Chancellor, and had no means of knowing of the existence of the order for substi- tuting a new petitioning creditor's debt until it was pro- (d) d J. B. Moore» 612; 1 Brod. & B. 283.
MUSKETT
MICHAELMAS T£RM» X G£0. IV. 215
duced at the trial. Besides, the Lord Chancellor's order 18S9. does not find the fact upon which alone he had jurisdiction to make it. It is no where found by him that the original v,
petitiooing creditor's debt was insufficient. His order ^*^*'''^^^* merely recites that the petition presented to him asserted that fact ; and in the reference which he directs to the com- Dussioaers, be does not require them to examine into the alleged insufficiency of that debt« but merely into the suf- ficiency of the debt proposed to be substituted. The order, therefore, does not shew that the Lord Chancellor bad jurisdiction, within the words of s. 18, to make if, and is consequently bad in to to. lParke,J. There is certainly DO evidence that the Lord Chancellor found the original petitioning creditor's debt to be insufficient. Bayley, J. And there may be a great difference between a petition founded on the insufficiency of the debt, and on the mere difficolty of proof. The jurisdiction of the Lord Chancel- lor certainly seems to be confined to the former.]
Hutchinson, in reply. The Court will presume that the Lord Chancellor was satisfied of the truth of the facts stated in the petition, before he made his order. That order was never appealed against, nor were any attempts ever made to reverse or alter it ; the present objection, therefore, cones too late. Unless when made, it bad a retrospective effect, it would be altogether inoperative. To hold it now inoperative would be productive of great inconvenience ; for the proofs of debts, the choice of assignees, the assign- ment to them, and all conveyances by them, would be
thereby invalidated; and many questions would also arise
as to the effect of the prior examinations of the bankrupt. The case was argued at the sittings in Banc after Easter
temiy 18299 when the Court took time for consideration*
Jodgment was now delivered by
Baylet, J. — This was an action brought by the assig- nees of James 2'ayhr^^ bankrupt, and the defendant having
216 CASES IN THE KINg's BENCH,
1829. given notice to dispute^ among other things, the petitioning ^^"^^ creditor's debt, there were two questions: one, whether
MVSKETT ... . ,
V. there was sufficient proof of the petitioning creditor s debt,
Drummond. ^jjg Qijjgy^ whether the plaintiffs had entitled themselves to resort to a debt due to Muskett, one of the assignees, to support the commission, under the 6 Geo. 4, c. l6, s. 18.
The commission against Taylor was sued out by the as- signees of James Kenworthy, a bankrupt, and the debt to Kenworthy and the assignment to his assignees were duly proved ; but there was no evidence to support the commis- sion against him, except the proceedings under his com- mission : and whether they were sufficient evidence of the debt from him to his petitioning creditor, or of bis trading and act of bankruptcy, was the first question in this case. The Court intimated an opinion during the argument that they were not, and that opinion is confirmed by the con- sideration we have since been able to bestow upon the point. It is clear that these proceedings are not evidence except as far as they are made so by act of parliament, and it is only by the ninety-second section of the late bankrupt act, 6 Geo, 4,c. 16^ that they are made evidence in any case. The ninetieth and ninety-first sections having provided, that in actions by or against assignees, or in actions against commissioners or persons acting under their warrant, or in suits in equity by or against assignees, no proof shall be required of the petitioning creditor's debt, the trading, or act of bankruptcy, unless upon notice ; the ninety-second section enacts, that if the bankrupt shall not have given notice, the depositions taken before the commissioners of the petitioning creditor's debt, the trading^and act of bank- ruptcy, shall be conclusive evidence of the matters therein contained in all actions at law or suits in equity brought by the assignees for any debt or demand for which the bank- rupt might have sustained any action or suit. It is only, therefore, in actions or suits brought by his own assignees for a debt or demand for which he might have sued, that the depositions under a commission against a man are made evidence; and as this action was brought, not by Ken-
MICHAELMAS TERM, X GEO. IV. 217
«or%'s assignees^ but by Taylor* s, and for a demand for 1829. which Taylor alone^ not Kenworthy, could have sued, the '^■^*v*^-^ depositions under T'aylor's commission were within the v.
provision, and would have been evidence, the depositions Drummond. under Kenworthy'a commission would not.
The second question depends upon the 6 Geo. 4, c. 16, s. 18, and the right of the plaintiffs to resort to it in support of this action. By that clause it is enacted, that if after adju- dication, the debt of the petitioning creditor be found insHf- dent to support a commission, it shall be lawful for the Lord Chancellor, upon the application of any other cre- ditor having proved any debt sufficient to support a com- mission, and incurred not anterior to the debt of the petitioning creditor, to order the said commission to be proceeded in, and it shall by such order be deemed valid. Muskett had proved a debt under the commission, that debt was sufficient to support the commission, and was incurred after the debt to Kenworthy, and he petitioned the Lord Chancellor for an order under this clause. The Lord Chancellor made an order, that upon the commissioners being satisfied as to Muskeit's debt in the several particulars which the clause specifies, the commission should be pro- ceeded in ; and the commissioners were satisfied. That petition was not produced, nor the affidavits on which it was grounded; but according to the recital of it in the Lord Chancellor's order, which was produced, it stated that the debt was not such a legal debt as would support a commission, and the prayer of it was, that the proceedings therem might be supported by and carried on on MusketCa debt instead of Kenworthy's. The Lord Chancellor's order says nothing as to the insufficiency of the debt; but, upon reading the affidavits, hearing counsel for Muskett and the other assignees of Taylor, and the petitioning creditor consenting thereto, it orders that, upon the com- missioners being satisfied as to the sufficiency of Muskett^s debt, and the time it was contracted, (as to which the commissioners were afterwards satisfied), the commission
218 CASES IN THE KING's BENCH,
1829. should be proceeded in. It does not appear that the Lord ''■^'^^^ Chancellor was apprised, when he made the order, of the
MUSKETT r t • 11 t -
V. existence of the present suit, so as to call his attentioQ to
Dbummond. jjjg propriety of making any provision as to giving it in evidence in this suit. No notice of the application to the Lord Chancellor appears to have been given to the defend- ant, against whom this suit was pending, so as to give him an opportunity of interposing in the Court of Chancery, to prevent its being improperly used to his prejudice.
It is not necessary in this case to give any opinion whe- ther a valid order of the Lord Chancellor, under the above mentioned act, would support a commission by relation in an action already commenced, and especially when the opposite party in the suit had no notice of «uch a proceed- ing, because we are satisfied that this order is not valid. The statute gives a special power to the Lord Chancellor to make an order of this nature only where the debt of the petitioning creditor '^ Ufound insufficient ;*^ but in this case, that insufficiency of the debt is not found as a fact by the jury, nor does it appear that it was so found by the Lord Chancellor, the order containing no adjudication by him on that subject. It appears to us, therefore, that the order was not valid.
The Lord Chancellor's order does not import that the debt had been found insufficient before the petition vras presented to him; he pronounces nothing as to its suf- ficiency ; and there is no fair ground for presuming that he examined into its sufficiency. The petition does not pray that he should. The order is made upon the consent of Muskett and the assignees on the one hand, and the petitioning creditor on the other : the defendant, against whom it is to operate is no party to it, and does not appear to have known of it until it was produced against him at the trial; and the conduct of the plaintiffs, in relying upon the debt to Kenworthy at the trial, is a pretty strong ground for believing that the Lord Chancellor had not passed any judgment upon its sufficiency. Without entering, therefore.
MICHAELMAS TERM, X GEO. IV. 219
iDto the question bow far an order by the Lord Chancellor, 1829. when he pronounced upon the insufficiency of the original ^"^""^^ debt, or when such debt had otherwise been judicially v.
found insufficient, would operate upon a depending suit, Dbuumond. espedaliy against a party who had no notice of such order, lod was not apprised that he would have to meet the sub- stituted debt, we are of opinion that the order in this case is iniafficient for that purpose, and that judgment of non- suit ought to be entered.
Judgment of nonsuit.
Hawkins and others, Assignees of A. Morton, Rodick, and C. Morton, Bankrupts, v. Written.
Assumpsit on the money counts. Plea, non as- in an action
•ompsit, with notice of set-off. At the trial before Hol^ l^hS^""^
rojfef, J., at the Northamptonshire Spring Assizes, 1827, the defendant
tlie case wa» this :— The action was brought by the plaintiffs ^^^^^ q q^q^
as assignees of the bankrupts, who had carried on business ^^ c- ^M- ^^f
as bankers at Wellingborough in Northamptonshire, to aebt due to
recoTer a sum of 75/. the balance of an account, admitted bim from the
bankrupt, if, to be due from the defendant to the bankrupts before their when he gave
bankruptcy* It was also admitted that the defendant was b^nkJap/he
entitled to set off a sum of 10/. for goods sold and delivered had no notice
by bim to the bankrupts before their bankruptcy ; and the of b^kruptcy,
oaW question in the cause was, whether he was.entitled to though he had «.*. i.^1 1 ii.li' - notice that the
set off a further sum of Oo/. under the followmg circum- bankrupt had
stances. On the l6th of December, 1825, the defendant "^PP*^ Pay- ment.
got possession of potes of the Wellingborough bank to that amount, after taking some trouble to procure them. On the 14th of December the bankers had stopped pay- ment, and issued the following notice, addressed to the debtors and creditors of the house : — '' Messrs. Morton^ Rodick & Co. hereby give notice, that owing to the alarm- ing state of nx>ney matters in London, their agents cannot possibly remit them the funds which are in their hands :
220 CASES IN THE KINg's BENCH,
18S9. they are therefore under the painful necessity of suspending ^"^^^^ their payments for a short time." This notice was printed by xf, the defendant, who was a printer and stationer at Welling-
Whitten. borough. On the same 14th of December, the bankrupts ordered their bank to be closed at half past ten in the morn- ing, which was done accordingly. A. Morton, tlie senior partner, who was eighty years of age, was so much affected, that he became very ill, and was confined to his bed in his dwelling-house, which was distinct from the bank. C. Morton stationed one of the clerks at the dwelling-house of A, Morton, to inform those who might call why the bank was closed, and then retired to his own dwelling-house in Wellingborough. Rodick also retired to his dwelling-house in Wellingborough, but desired the clerk to inform those who might inquire for him, that he should be glad to see them there; and he went to the bank on the 15th of December. The bank continued closed, and many persons applied there for money, but none were admitted ; some received no answer, and others were told that they could not be paid. Some persons who called at A. Morton's house were told that he was too ill to be seen, which vi*as true, and that the other partners were at their own houses. Upon this evidence it was contended on the part of the plaintiffs, first, that all the partners had committed an act of bankruptcy on the 14th of December, by absenting them- selves from the bank ; and, secondly, that as the defendant knew when he took the notes that they had stopped pay- ment, he must be presumed to have also known that they had so committed an act of bankruptcy. For the defendant it was insisted, first, that there was nq evidence that the three partners had each committed an act of bankruptcy, because the elder Morton had not voluntarily absented him- self from the bank, but had been compelled to do so by illness ; and, secondly, that assuming an act of bankruptcy had been committed by all the partners, still as there was no distinct proof that the defendant knew of any act of bankruptcy, or of the circumstances supposed to constitute it, at the time when he took the notes, the mere knowledge
(
MICHAELMAS TERM, X GEO. IV.
ofihe insolvency of the bankers did not deprive him of his right of set-off. The learned judge directed the jury to find a verdict for the plaintiffs, but gave the defendant leave to move to enter a nonsuit, if the Court should be of opioioo that he was entitled to set off the notes. A rule nisi having been obtained accordingly,
Clarke and GauUmm shewed cause. First, the three jMrtners all committed an act of bankruptcy on the 14th of December, for their closing their bank, and absenting them- selves from it on that day, constituted an act of bauk- niptcy by all, Judine v. Da Cossen (a), though the same act done by one only might only have been evidence of an act of bankruptcy by that one ; Mills v. Bennett (6). Se- condly, the defendant, under the circumstances of this case, most be presumed to have known of this act of bankruptcy, and is therefore deprived of his right of set-off. It is clear that be knew at the time when he got possession of the notes that the bankers were insolvent and had stopped payment. Under the old bankrupt acts that degree of knowledge would have been sufficient to bar his right of set-off; Hodson v. lowwg (c), Dickson v. Eoans (d), Ex parte Stone (e). But admitting that under the late bankrupt act it was necessary, in order to deprive the defendant of his
221
1829.
Hawkins
V,
Whitten.
(c) 1 N. R. 834. There, a trader, laTing a couoting-house in town aod a dweUing-hoase in the coun- ti7, left the former, to which he never retamed, taking his books vitb biiD, and slept at his dwelling- bome a few nights, when he finally left that also. It was held, that having quitted his connting-house witboot the oiitimit revertendi, he began to absent himself from that dajp within the meaning of the 13 £/ii. c. 7, 8. If and thereby com- mitted an act of bankruptcy. That case does not. appear to support
the position for which it is cited. See the cases of Spencer v. Billings 3 Campb. 313, and Capper v. Desangesy 3 J. B. Moore, 4 ; Deffle V. Desanget, 8 Taunt 671, which appear more applicable. See also Bemasconi v. Farebrother, pott; Goto on Partnership, 268, 3d ed.
(6) 2 M. & S. 556. And see Ex parte Mavor, 19 Ves. 543; 6om on Partnership, 259, 3d ed.
(c) E. T. 1814. Archbold's Bankrupt Laws, 88, cited.
(rf) 6 T. R. 57.
(«) 1 Glyn,&J. t91.
CA8£S IN THE KING's BENCH,
right of seUoff, that he should have had notice of an act of Hawkins bankruptcy committed by all the bankrupts before he took V. ilie notes^ the facts of the case supply that notice. He
took the notes on the l6th ; he knew that the bank was closed on the 14th ; he must have known that in the in- terval, creditors holding notes had applied at the bank for payment of them, and had been unable to obtain it ; he must have known, therefore, that all the partners were insolvent and had absented themselves from the bank before the l6th, . and had thereby committed an act of bankruptcy.
' AdamSf Serjt., conti*d. Unquestionably the defendant was aware at the time he took the notes that the bank had been closed and the business suspended. But that was an equivocal act. The notice to creditors stated that the bankers were obliged to suspend their payments ** for a short time ;*' and the defendant might reasonably believe that after a short time the bank would be reopened and its business resumed, without any act of bankruptcy having been committed. In. point of fact, no act of bankruptcy was proved to have been committed by all or any of the partners between the 14th and the l6th of December; it was impossible, therefore, that the defendant could have notice of any. But the late bankrupt act, 6 Geo. 4, c. l6, s. 50, gives the right of set-off in all cases where the party claiming it has no notice, at the time when the credit is given, of an act of bankruptcy by the bankrupt committed. It was incumbent upon the plaintiffs, therefore, to prove actual notice to the defendant of an act of bankruptcy committed ; a constructive notice will not satisfy the statute, though even that is wanting here. [Lord Ten- terden, C. J. If the defendant took the notes, knowing that the bankers had suspended their payments, intending thereby to get twenty shillings in the pound on his own debt, and so defeat the object of the bankrupt act, is not that a fraud upon the statute ?] There is no proof that be
Whitten.
MICHAELMAS TERM, X GEO. IV.
bad any such intention $ but even if there was, the law
allows a creditor to do that which the defendant did, and „
Haweiits
that can hardly be termed a fraud upon a statute which v.
the statute allows to be done.
The case was argued in the course of Michaelmas term, 1827, when the Court took time for consideration. Judg- ment was now delivered by
Bayley, J. — The plaintiffs in this case were the as- signees of the partners in the Wellingborough bank, and the question for our decision depended upon the right of the defendant to set off certain notes of that bank, which he had industriously Obtained after the bank had stopped payment, against a debt due from him to the bank. This tamed upon the construction of the 6 Geo. 4, c. I6, s. 50. fiy that section, where there has been mutual credit given by the bankrupt and any other person, or where there are nrntual debts between the bankrupt and any other person, the commissioners are to state the account between them, and one debt or demand may be set against another, not- withstanding any prior act of bankruptcy committed by such bankrupt before the credit given to or the debt con- tracted by him, and what shall appear due on either side OD the balance of such account, and no more, is to be claimed or paid on either side respectively, and every debt or demand thereby made provable against the estate of the bankrupt may also be set-off in manner aforesaid against such estate ; provided that the person claiming the benefit of such set off had not, when such credit was given, notice of an act of bankruptcy by such bankrupt committed. Before this statute passed, there were three provisions for setting off mutual debts and credits in cases of bankruptcy; one by the 5 Geo. £, c. SO, s. 28, another by the 46 Geo. 3, €• 135, 8. 3, and the third by the 5 Geo. 4, c. 98, 5, 48. The first gave the right of set-off, if the credits were given or the debts incurred at any time before the person became bankrupt, without any qualification. The
224 CASES IN THE KIKG*S BENCH,
1839. second gave the rights notwithstaDding the existence of a
„ prior act of bankruptcy, in the same manner as if there had
9. been no prior act of bankruptcy, provided the credit were
HiTT£N. gjyg„ (Q ^iig bankrupt two calendar months before the date and suing out of the commission, or provided the person claiming the benefit of the set-off had not, at the time of giving such credit, notice of any prior act of bankruptcy committed by such bankrupt, or that he was insolvent, or had stopped payment. The 5 Geo. 4, which repeals the 5 Geo. 2 and the 46 Geo. 3, consolidates the two provisions which I have mentioned in those statutes, but, instead of the concluding provision in the 46 Geo. S, excludes from the benefit of the set-off such persons only has had, when they gave credit to the bankrupt, notice, either actual or constructive, of an act of bankruptcy by the bankrupt committed, or that he had stopped payment; and the two provisions contained in the 46 Geo. 3, were in terms confined, as they probably would before have been confined in construction, to those cases in which there had been a prior act of bankruptcy. At the time, therefore, when the 6 Geo. 4, was passed, every man was entitled to the benefit of a set-off, if the credit between him and the bankrupt were given, or the debt between them existed, before any act of bankruptcy had been committed ; and he was also entitled, notwithstanding an act of bank- ruptcy, if the person claiming the set-off had not, when he gave his credit or trusted the bankrupt, notice of an act of bankruptcy by the bankrupt committed, or that he had stopped payment. The 6 Geo. 4, takes away the latter part of this qualification, namely, the notice that the bank- rupt had stopped payment, and gives the right of set-off in all cases where it existed before any act of bankruptcy committed, and gives it also where there has been a prior act of bankruptcy, if the party claiming the set-off had no notice of the act of bankruptcy.
Notice of insolvency, therefore, or notice of having stopped payment, are no longer ingredienta upon this
MICHAELMAS TERM^ X GEO. IV.
poiot. Notice of an act of bankruptcy is alone the cri- terion or dividing pointy and before this period, the de- fendant takes the notes he claims to set off, and thereby becomes a creditor of the bankrupts and makes them his debtors. It may be true, and we believe is, that he took the notes for the very purpose of making them the subject of his set-off, and of getting, in substance, twenty shillings in the pound upon them ; but as this is not prohibited by the statute, we cannot say that it js illegal. As the set-off, therefore, must be allowed, and covers the debt, the rule for entering a nonsuit must be made absolute.
Rule absolute.
225
1829.
Hawkins
v.
WuiTTEM.
Smith v. Shaw.
Case for injury done to plaintiff's vessel. Plea not A dock act au-
guilty, and issue thereon. At the trial before Lord IV/i- '!!!!l**^f *,^ ^ ^ company to
teritn, C. J. at the London adjourned sittings after Michael- make and
mas term, 1828, a verdict was found for the plaintiff^ docks and to
subject to the opinion of this Court upon the following appoint a
dock-master, Cise : — who should
The plaintiff was the owner of the ship Rebecca, of 313 ^f^'^^^e*''^ '"^
tons, llic defendant was the treasurer of the Commercial mooring, un-
Dock Contipany. The Rebecca, on her homeward voyage movi"g^and
from Dant2ig, arrived in the River Thames the latter end removing of all
o/June^ 1 827, and in the afternoon of the 28th of June in the docks,
was made fast to the buoy belonging to the company, it *°^ should
being the plaintiff's intention to discharge his cargo in their over the space
dock. In the same afternoon an attempt was made by the froJiuhe*en-
company's servants to take the vessel into dock; and in trance into the
docks, so far as related to the transporting of vessels in and out; the company to be sued in the name of their trea- surer ; and every action brought against any person for any thing done in punuance of ike met, to be commenced within six calendar months after the fact committed. In an action brought against the treasurer for damage done to a vessel by means of improper directions given by the dock-master in transporting her into the ducks : — HM, that giviiig soch directions was a thing done in pursuance of the act, and that the action should bave been commenced within six calendar months after those directions were pven.
▼OL.'V. Q
22ff
1899.
Smttb
V.
Sbaw.
CA9» IN TH£ ii;iN0 8 BENCH.
the course of sttcb attempt, owing to the negUgenoe ((f the persons employed by the company in that behalf ^ tbe iojufy detailed ia the declaration was sustained. More thaa «iK months intervened between tbe time at which tbe injvrjr waa sustained and the commencement of the action.
By 50 Geo. 3, c. 207, intituled, " An act for maintaining and improving the docks and warebouaes called tbe Com« mercial Docks, and for making and maintaining other docks and warehouses to communicate therewith, all in tbe parish of St. Mary, Rotherhitfae, in the county of Surrey," the Commercial Dock Company was established as a joint stock company, and certain powers were conferred upon the company, which are more particularly set forth in the act (a). And by s. 94 it is enacted, " that if any action or suit shall be brought or commenced against any person or persons, bodies politic or corporate^ for any thing done in pursuance of this act, every such action or suit shall be brought or commenced within six calendar months after the fact committed, or in case there shall be a continuation of damages, then within two months after the doing or
(a) By s. 68, the company were authorised to sue and be sued in the name of their treasurer for the time being.
By B, 71, the dimclora of the compaoy were authorised to ap- point a dock-master, who should have authority to direct the moor- ing, unmooring, moving and re* moving of all vessels entering into, lying, or being in the docks, as to the time and manner of their en- trance into, lying in, or going out of the same, and their position, londing and disehaq^of; therein; and the time of opening and shut- ting the gates; and in case the owner, master, &c. having the care of aoy vessel, should refuse orneg*
lect to moor, unmoor, move or re- move the same according to such direction, within two bours aRer notice, then it diould be Vclw(oI for the dopk-iQaster to mpor, &c. such vessel, and the charge t\iere- of respectively shoal d be repaid, together with the sam of 10/. for each ofbiice, by the owner or master of Boch vmei.
By s. 7S, no vessel should be moored or anchored within the distance of 100 yards of the eiH trance of the docks, and over that space the dock-master should have control, so far as rriated to the transporting vessels coming in or going out of the docks.
Shaw,
IfilCHAZLMAS TB^Mj X G«0« iV. 227
f
cAuiioitting such damage sball buve c^^od, and not afteiv .18^9.
wards '* "^^N^W
\ By 51 Geo» S, Cp 66, tbe powers of tiie company Wfer« ^ v.
eolaiged, and w«re extended to certaiq pr^mie^i not con^
frised in the former act, 3y a. 20, of the h»t act, it is
eoac^ed^ that in case any person or persons shall at any
tiaie or times, by or through tbe negligence, carelessness* or
I omission of tbe company, or tbeir servants or workmen,
laSer or susuin any damage or injury exceeding the sum
f Qf 5if thep and in every such case the whole of the damages
10 suffered or sustained shall and may be recovered from
|he company or their treasurer for the time being, in any
of his majesty's Courts at Westminster, by action of debt,
or on the case, or by bill| plaint, or information^ together
I with costs of suit And by s* 97 it is enacted, that all the
I powers, provisions, penalties, forfeitures, clauses, matters
} and things in the ^0 Geo* S, shall extend to, and be exer
f cated, applied, used and put in force to all intents and
purposes as to this act, and the several matters and things
therein contained, and all the clauses, powers and provi-^
lioQs of tbe 50 Geo. 3 and this act shall be put io force,
sod used and applied for carrying into execution the pur^*
; poses of the said act and this act ; and the said act and thia
act shall be construed together as one act, as fully and
effectually as if all the powers and provisions^ matters and
thmgs in the said act were repeated and re-enacted in this
9Ct, and made part thereof.
The question fgr the opiniou of this Court is, whedier
I this action was commenced by the plaintiff against the
'^ defendant in proper time.
R. F. Richards, for the plaintiff. This action was com- menced in proper time. The question is, whether the injury complained of was a '^ thing done in pursuance of the statute/' 50 Geo. 3, c. 207. The injury is found to have arisen through negligence ; the defendant, therefore, has heen guilty of a nonfeasance merely, and that cannot be
q2
228 . CASES IN THE KINO's BENCH,
1829. considered as a thing done in pursuance' of the statute. Even if the directions given' by tl:e dock-master can be considered as a thing done by him, still the question is, whether that was such an act, that he might reasonably suppose that the statute gave him authority to do it ; be- cause if it were, he is within tlie protection of the statute : otherwise not. That is the rule of construction laid down in Cooke v. Leonard {a), and does not operate in favour of the present defendant, for there was nothing here to lead the dock-master to suppose that he was acting under the authority of the statute, inasmuch as he might have acted precisely the same if no such statute had ever been passed. Edge V. Parker (6) is in principle very like the present ease, for there it was held that an entry by assignees into the house of a third person to take the goods of the bankrupt, was not " any thing done in pursuance of " the bankrupt act, 6 Geo, 4, c. 16, s. 44. In Wallace v. SmUh{c), which may perhaps be cited on the other side, the words of the statute were " in pursuance, or under colour** of the act ; which are much more general and comprehensive than those of the act in question. The cases in which questions of this nature have arisen upon actions against magistrates and constables, do not apply, because a very liberal construc- tion is given to clauses protecting persons of that descrip- tion. Pratt v. Hillman (d), and Gaby v. The Wilts Canal Company {e), were cases upon awards, where the Court was concluded by the finding of the arbitrator. Weller v. Toke (f) and Prestidge v. Woodman (g), were actions
(a) 9 D. & R. 339 ; 6 B. & C. had authority from the act of par-
351. ^ Where an act of parlia- liament to do it." FerBayle^^J.^
nient provides that in case of any 9 D. & R. 343.
action brought against any person, (6) 3 M. & R. 365 ; 8 B. & C.
for any thing done in execution or 697.
in pursuance of the act, the de- (c) 5 East, 115.
fendant shall be entitled to certain (d) 6 D. & R. 360 ; 4 B. 3c C.
privileges, the true meaning », 269.
that the act done must be in its (e) 3 M. & S. 580.
nature such, that the person doing (/) 0 East, 364.
it may reasonably suppose that he ^) 3 D. & R. 43 ; 1 B. & C. 19 »
MICHAELMAS TERMf X GEO. IV.
•gainet magistrates. Parton v. Williams (a), was an action against a constable. Wright v. Wales (b) was an action against a fen-reeve. These cases shew that the protection has been generally considered as given only to persons who £11 some public situation. In this case^ the proper con- struction of the statute seems to he, to confine the proteo- tion which it gives to things done for the purpose of effec- tuating the principal object of the act^ namely^ the making and maintaining the docks. The legislature never can have intended to give the company, who derive a profit from carrying on the business of wharfingers and warehousemen, protection in cases where they are guilty of negligence in the conduct of their business. Besides, by the 51 Geo. 3, C.66, S.20, the company are subjected to a general liability, without any limitation of the time within which an action must be commenced. Under this clause the action seems clearly maintainable.
F. Pollock, contri. The general object of the clause of iiffljtation was, to protect the company from all claims in respect of any act done by them in pursuance of the act, unless such claims were enforced within a reasonable time, namely, six months after the act done. In order to eifec- tnate that object, the protection ought to be extended to all cases where the company have acted bon& fide, sup- posing themselves to be within the authority of the statute, although they have in fact exceeded that authority ; and that is the principle laid down in Blakemore v. The Glamor- ganshirt Canal Company (c). The decision in Edge v. Pariter (d) does not at all affect the present case, because that proceeded on the ground that the assignees in seizing the goods acted in virtue of their ownership, and not in pursuance of the statute. Here, the very form of the record shews that the act complained of was done in pur-
(«) 3 B. & A. 830. (e) 3 Yonnge & J. 60.
(&) 5 Bing^. 336; 2 MoorB& ((f) 3 M. & R. 365 ; 8B.&C P. 613. 697.
330 CASES IN THE KINQ's BEKCH, .
1829. stiance of the statute. TbedefendtiDt is irned as treasurer: of the company^ and it was only by virtue of the statute that the plaintiff was enabled to make him defendant. Tbe plaintiff himself, therefore^ as was said by Lord JEtfen- borough IB Wallace ▼• Smith (a), has recognised tbe act of which he complains as done under the statute. The 61 Geo. 8 does not vary the case, because that re-enacts all tbe provisions of tbe former statute, and provides that tbe two statutes shall be construed and applied as one. StUkk V. Smith (6) is decisive of the present case. That was an action of trover brought against tbe treasurer of the West India Dock Company, for refusing to deliver articles depo- sited in tbe West India Docks. It was held by Bezt, C.J* at nisi prins, and afterwards by the whole Court of Com- mon Pleas, that the defendant was entitled to the protection of the dock act, which required that actions for any thing done in pursuance or under colour of that act should be brought within three months. There the company were ^barged with a misfeasance, but so in effect they are lidre, tor the directions given by the dock-'master, which caused tbe injury, must be considered as an act done by him whilcL acting ib the discharge of his duty as a servant of tbe conw pany. Agar v» Morgan (c) also is a strong authority ia favour of the present defendant. That was an acten brought against a canal company for acts committed iia pursuance of an act of parliament, which provided that no plaintiff should recover in an action for any thing done m pursuance thereof, without notice to the defendants «yf such intended action; and it was held, that a deviation from the line df canal described by the act of parliaraenf^ did not deprive the defendants of their r^ht to notice befbvo action brought, on the ground that such deviation mtsui not an act done in pursuance of tbe act of pflrliament. The declaration in this case states that the defeddant's servanta
.(a) 5 East, 115. (c) 2Pnce» 186.
(b) 2 Carr. & Payne, 284.
MICttAtLMA&TBflMi X OKC. IV. 231
Imi die care ftiid tUftoagemetit of the plaintiiTs vessel by ^^^^' tirtne of the aet of parliamenC ; and aniens that were w, jgHiTa the company could not, under any circomstances^ be an- *•
sweraUe, nor the defendant^ as their treasurer, be liable to be sued.
Richards, in reply. Great incontenience, and even in- jostice, may follow, if the company are held to be protected IB a case like the present. A foreign owner might find it impossible to give instructions to his agent to commence an actian within six months. The decision in Sellick v. Smiih(a) cannot be supported. Its authority seems to have been doubted in Carruihen v. Payne {b)*
Cur. adv.vulL
Batley, J., now delivered judgment-^This was an action brought ag^ainst the treasurer of the Commercial Dock Company, for damage done to the plaintiff's vessel. The damage resulted from improper directions given by the dock-master of the company, upon an attempt by the vessel to enter the docks, within the limits in which the dock-master was authorised by the dock act to give direc* tioiu ; and the question before us was, whether the action was commenced in time, or whether, under the provisions in the statute which regulate these docks, and give the right to sue the company in the name of their treasurer, it ought not to have been commenced within six calendar months after the directions were given, and the injury done : and we are of opinion that the action was not commenced in time, but that it ought to have been commenced within those six calendar months^ The language of the provision in the Commercial Dock Act, 50 Geo. 3, c. 207> s. 94, is, that if tny action shall be brought against any person, or body poli* tic, for any thing done in pursuance of that act, such action shall be brought within six calendar months next after the
(a) 8 Carr. & Payne, 884. (5) 5 Bingb. 270 ; 2 Hoore & P. 429.
232
1899.
CASES IK THE KING S BENCH/
fact committed ; or io case there shall be a continuation of damages, then within two months after the doing or com- mitting such damages shall have ceased; and the action shall be laid and brought in the county where the matter in dispute shall arise, and not elsewhere. Now, according to the decisions upon similar words, a thing is to be con- sidered as done in purmance of the act, when the person who does it is acting honestly and bon& fide either in execution of the powers which the act gives, or in discharge of the duties which it imposes. Though he may errone- ously exceed the powers the act gives, or inadequately dis- charge the duties it imposes, yet if he acts bon&fide in order to execute such powers, or to discharge such duties, he is to be considered as acting in pursuance of the act, and is to be entitled to the protection conferred upon persons while so acting. This is established by Gaby v. The Wilts and Berks Canal Company (a), Theobald v. Crichmore (6), and Parton v. Williams (c) : and Smith v. Wiltshire {d) and Cooke V. Leonard (e) establish the same point as to- consta- bles and other persons acting in obedience to a magistrate's warrant. Indeed this position was not controverted upon the argument ; but the points insisted upon were, first, that the first of the Commercial Dock Acts, 50 Geo. 3, c. 207» s. 94, gave the protection in those cases only in which the act done was done for making and maintaining the docks, and did not extend to the conduct of the dock-master in giving directions for transporting vessels into the docks ; and, secondly, that the 51 Geo. 3, which gives the remedy by action against the company for the negligence, careless- ness, or omission of themselves, their servants, or workmen^ when the damage exceeds 5/., though it contains a clause which virtually re-enacts and applies to the cases within the latter act, the protection given by the former act, s.94, did not mean it to apply to actions against the company like
(a) S M. & S. 580. {b) 1 B.& A.897. (c) 3 B. & A. 330.
(d) 2Bro.&Bingh. 619.
(e) 9b.&R.339; 6 B. ic C. 351.
MICHAELMAS TERM, X GEO. IV. 233^
the present for negligence, but meant to confine it to what 18'29. was done under the powers of that act, towards maintaining and improving the docks. Upon an attentive considera- tion, however, of the two dock acts, it appears to us, that if the second act had never passed, the protection given by 8, 9^ of the first act would have applied to any action which might have been brought for the injury in question ; and that if this action is to be considered as founded on the second act, the re-enactment in the second act of what forms s. 94 of the first act, will also apply to it.- By 50 Geo. 3, many powers are given for making and maintaining the docks, and no doubt the protection given by s. 94, would apply to any action which might be brought for an excess in the execution of those powers ; but it does not follow that it would be confined to them. By s. 7 1, the company are to appoint a dock-master^ who is to have power to direct the mooring, unmooring, moving and removing of all vessels into or being in the docks, 8cc. Bjf 8. 72, he is to have the control over the space of 100 jards from the entrance into the docks, so far as relates to the transporting vessels coming in or going out. It was from impropriety in the directions which the dock-master gave, and from the improper exercise of this control, that the injury in question happened. But was not the dock- master actings in giving those directions and exercising that control, in pursuance of the act ? It was only under the act that he had authority to give any directions; but for the act, the captain and crew of the vessel might have disre- garded those directions. Supposing, then, that the 51 Geo. 3 had never passed, and that the case had stood upon the 50 Geo. d, and that an action had been brought against the dock-master for the injury which his improper direc- tions had occasioned, would he not have been entitled to the prote<:tion given by s. 94 ? Would he not have been entitled to say, " I acted under, and therefore, in pursuance ^ the. statute. I should never have acted but for the statute. The statute made it my duty to act; and if I
SmTtt
V.
234 CASta m I'fie rti^6"B AtHCti,
1820. acted erroneously, I nm entitled to the protection the itatufe meant to gire to an boneat but erroneons exercise of ita powers*'*
Shaw. Then, if in an action against tbe dock->maftter nnder 50
Oeo. 3, s. 94 of that act would have applied to him, tbe argument which would deprite the company of tbe like protection when they are soed under 51 Geo. 3, fails. They are, under 51 Geo. 3, in at least as farourable a situation as the dock-master was under 50 Geo. 3, and what woald have been a defence for faim» will be also a defence for them. Wallace v. Smith {a) seems to us at least as strong a case as the present. There tbe ground of com* plaint was, that the West India Dock Company had wrong- fully prevented the plaintiffs, as brokers or agents, from landing goods from vessels in the docks, and delivering them to tbe owners ; and tbe question was, whether the 99 Geo. 3, c. 69» s. 185, which required fourteen days' notice before any action was brought against the company for any thing done in pursuance or under colour of that act, was a bar to the action, no notice having been given; and after takiug time for eonsideration, tbe Court held that it was* The defendant's counsel immediately agreed to waive the advantage, and to refer the injnry complained of to arbitration. In deciding this cade, it is not necessary to go the length of Selliek v. 8mith{b), which was cited at the bar, rtor to say whether a mere nonfeasance would be an act done within the meaning of this and similar statutes ; a point much doubted in Blakemore v. The Olamarganskire Canal Company (c). In the present case, tbe statuta authorises the giving directions, and giving directions is doing an act. There must, therefore, be a nonsuit*
Judgment of noaaint^
(a) 5 East, 115. (c) 3 Youngs & J. 60.
(6) S Cftir. & Payne, 884.
MlCrfAfiLHAS n.ViU, X oeo. iV. 236
Wise o. Metcalfe, Executor of Metcalfe, deceased.
Case by the plaintiff^ rector of the church of the parwh The incam-
of Barky, in the county of Hertford, againat the defendant, ;^ \^ bound"
eiectttor of the Ute rector, William Metcalfe, the imrne^ to keep the
pareonage- diate predeceaaor of the plaintiff, to recover the aoioaut of (jouse, build-
tlie dilapidationa of the rectory-bouse, bama, stables and j.^^^^^ out-bonsea thereto belonging, of the said rectory^ and of good and the cbancsl of the said church, which had ariaen at die jl^MiTrastor- timeof the death of the said William Metcalfe. At the ing and re- trial before Garrow, B., at the Herts sununer assizes, id^S, when neces- a verdict was found for the plaintiff, damages 999i* ^Bs. Qd*^ ^^> accord-
Sttlgect to the opinion of this Court upon the following onginal form, ^>^P ,_^ wiuiout addi-
tion or mo- The deceased^ William Metcalfe, became rector of the dem improve-
cbarch of the parish of Barley, in 1814, and soon after- |^ o'l^t'b^und'
wards received from the personal representative of his im^ to supply or
,. - , , i. / f • . , maintain any
mediate predecessor the aum of 1 I5i<, bemg the amount thing in the
of the dilapidations of the rectory-house, out4iuildings and nature of or-
chanceU at the death of hia said predeceasor; Mr. Metcalfe painting (un-
continued to be rector until hia death, which happened on t^^!^e*^
the l6th of May, 1827, at which period the annual value of eiposed tim-
tbe said rectory, waa 600/., out of which the sum of 46/« ^y\ and
was payable annually for Iand*tax. .In the month of July, whitewashing^
1827> the plluntiff became the rector of the church of the and man ac-
said parish, and has so continued ever sroce. The rectory<« ^-^^tkuis b^'
house is an ancient structure, built with timber and plaa-* the successor
tared on the outside, and has upon it the date of 1624« The ^^^^11^^'
bams are also old, but not of equal age with the rectory^ of a deceased . r«i i-i . 1 . ^ . 1 « rector, the da-
bouse. The dilapidations of the rectory-house, bams, mages are to
stabka, oul-buildings, and of the chancel of the church, ^ ^^jj^*^^
aaDonoted to 890/* 169. 6d., provided the principle upon principle.
uhicb the estimate had been made was correct. That
principle waa, that the former incumbent, William Met*
tatftf ought to have left the rectory-house, buildings and
chancel io good and substantial repair ; the painting, pa^^
236 CASES IN THE king's BENCH,
1899. pering and whitewashing being in proper decent condition for the immediate occupation and use of his successor ; that such repairs were to be ascertained with reference to the state and character of the buildings which were to be restored where necessary, according to their original foroii without addition or modern improvement. It was proved by the several surveyors of experience, examined on the part of the plaintiff, and also of the defendant, that they had invariably estimated the dilapidations between an in- cumbent of a. living and the representatives of his predeces- sor upon the above principle.
If, however, the rectory-house, buildings and chancel were to be repaired in the same manner only as buildings ought to be left by an out-going lay tenant, who is bound by covenant to leave them in good and sufficient repair, order and condition, the expense of such reparations amounted to 310/., the painting, papering and whitewash- ing not being included in the last estimate.
And if the former incumbent, William Metcalfe, was only bound to leave the rectory-house, buildings and chan- cel, wind and water tight, or in that state of reparation which an out-going lay tenant of premises, not obliged by covenant to do any repairs, ought to leave them in, then the expenses of repairing the rectory-house, buildings and chancel, amounted to 75/. lis.
The question for the determination of the Court is, which of the above principles of valuation is the correct one; and according to their decision the damages will stand at 3gg/. ISs. 6d., or be reduced either to 310/., or to 76/. 1 1*.
Brodrick, for the plaintiff. The first principle of valua- tion stated in the case is the correct one, and ac(x>rding to that the plaintiff is entitled to retain his verdict for the full amount of damages given at the trial. The action for dila- pidations is a branch of the common law ; for it is founded on the custom of England, which is the common law.^ Now
MICHAELMAS TERM, X GEO. IV.
by that custom, as it will be found to be described in all the aocient authorities upon the subject/ the incumbent of a living is bound to leave the premises in the same state of repairs as he is bound to keep them in. In Degge{a) the rule is thus laid down : — '* Omnes et singuli prebendarii, rectores, vicarii regni AnglisB pro tempore existentes, omnes et singulas domos et edificia prebendaruni, rectorianim, et Ticarianim suarum reparare et sustentare, et ea successori- bus suis reparata et sustentata dimittere teneantur/' That language clearly shews that the premises ought to be left to the successor in the same state of repairs in which they ought to be kept by the predecessor. In Gibsort's Co- ^{b)j there is given a legantine constitution of Cardinal Othobon{c), by which it is ordered that none through co- vetousness may neglect the house, nor suffer it to go into ruin or dilapidation. It is in these words : — ** Improbam quorundam avaritiam prosequentes, qui ciim de suis ec- clesiis et ecclesiasticis beneficiis multa bona suscipiant, dofflos ipsarum, et cstera edificia negligunt, ita ut integra ea non conservent et diruta non restaurent; propter quod ecclesiaram ipsarum statum deformitas occupat et multa Jocommoda subsequuntur : statuimus et praecipimus, ut universt clerici, suorum beneficioruni domos, et caetera edi- ficia, prout indiguerint reficere studeant condecenter." lAfndewode, in his comment upon this constitution (e/), particularly notices the term *' prout indiguerint/' and says, ** necessariam refectionem importat ; non ergo loquitur hie de refectione preciosa* pictune Parrhasii vel Apellis, immo oec de aliis voluptuosis impensis.'' Still the term *' studeant*' implies that care is to be taken from time to time to keep the premises in decent and becoming repair. The word ^ dilapidations" means the neglect of such repairs as are necessary to make the house habitable — habitable, that is,
(«) D€gge*8 Parson's Counsel- (d) Lyndewode's Provinciole.
lor, p. 138, pi. 94. Constitutio Obothokii, tit. 17. De
(^) Gibs. Cod. Jus. Eccl, 751 . Domibus Ecclesiarum Reficiendis,
(c) A. D. 1368; 52 Heo. 3. p. 112, £d. Oion.
238 ^ASES IN THE KTNG'b BENCH,
1829. with a reasonable degree of respectability and conveqitfiicfl •r-regard being had to the value of the bene6ce to vbicb the house belongs. Gibson, in the appendix to the Qh deje(a)f gives directions for parochial visitations, and eau** merates among the things to be inspected, the mai|sionw bouse of the rector, and other houses and buildings thereto belonging, all of which, he says, ought to '' be kept in good and suflScient repair; and particularly that the mansion op dwelling-house (over and above the repairs which aro deemed necessary) be kept in such decent manner as is suitable to the condition of the rector, vicar or curate/' and be refers to the words in the constitution of OihobotSf ** re^ ficere studeant condecenter." In the present case the rector derived an income of 600/. a year from his rectory ; surely then he ought to have devoted a portion of that io« come to the keeping the premises in repair, and in a stats generally, with respect to painting, papering and whitewash- ing, suitable for the convenient occupation of a man of that income. In GodolphitCs Repertorium it is said (6), that in the injunctions of King Edward the Sixth to all his clergy, it is required '^ that the proprietors, parsons, vicars and clerks, having churches, chapels^ or mansions, shall yearly bestow upon the same mansions or chancels of their churches, being in decay, the fifth part of their benefices, till they be fully repaired, and the same so repaired shall always keep and maintain in good estate." That the exe- cutors of a deceased incumbent are liable by the common law for dilapidations, is clear upon all the authorities (c); though it is not so clear in what state the premises must be in order to make it necessary to put them intp repair* The true principle, however, seems to be, that every incum- bent ought to leave the premises in the same state of repair in which be is bound to keep them, that is, in a state fit for the occupation of a person holding such a benefice. The
(a) P. 1554. tit. Dilapidations ; Watson's Cler*
(b) P. 176, ed. 1689. gyman'i Law, p. 409 ; Y^9mg v.
(c) See Bum'9 £ccl. Law, ^ Mani^, 4 V * 4c S, 18^.
UlCHAKhMAS TERM, X GEO. IV.
die of Perdval v^ Cooke (a) will be relied upoq b; the other side. That was an action similar to the presenti upon the trial of which Best, C. J. expressed his opinion^ that the executors of a deceased incumbent are not bound to put the rectory*4iouse into a finished state of repair ; but are otJjbpund to restore what is actually in decaj, and to make Mich repairs as are absolutely necessary for the pre^rvation of the premiaes. The parties in that case deferred to the learned jiidge's opinion and compromised the suit> so that diere was no opportunity or occasion to discuss the pro* priety of the rule by him laid down; but it is not too much to observe that it is a mere nisi prius dictum, and as such eatitled to little weight. An authority of quite as much weight might be cited in an opinion given by Lord Slowell, when at the bar, upon this subject, which goes all the kngth of the arguments used in behalf of the plaintiff in the present case, and which has been very generally acted upoo by surveyors in estimating the amount of dilapida* tion8(A). An incumbent may be compelled, under the
.239
1699.
(fl) S C. & P. 460.
(b) The following is a copy of the case kid before Sir William Scottj and of hb opinion referred to io the text.
Cabb.
"IHere being a difference of opinion between tbe Rector of •i. in the connty of York, and the necutor of the late incumbent thereof, respecting the sense of the irord * dilafttdations,' and a very wide difierence, in consequence, between the estimates of the work* men employed by the same par- ^; Sir William Scoii is desired to give the l^gal acceptation of the word ' dilapidations,' that is, irbetber it implies the same as, or more than, what is generally ondentood by the words ' com- plete repair/ in common tenancy;
Wisa
METCALrib
and if more, how far he thinks it extends beyond them.** Opinion. '^ I am of opinion that ' dilapi- dations' go beyond what is gene* rally understood of * complete re- pairs' in common tenancy ; at least, beyond what I understand by thut expression. I understand by dilapidations, apd I think I am fully supported by the decisions of competent Courts in understand- ing so, such repairs and renewals, and, if I may use the won)^ reno- vations, if necessary, of the house and its appendages, as will enable the incumbent to enter upon and inhabit them at the period the law entitles him to take possession, or as soon after as may be, allowing reasonable time for the repairs^ (lc. Dilapidations, therefore, will
240
1890.
CASES IN THE KINGS BENCii,
ecclesiastical law, not only to repair but to rebuild; Dr. Wood^s case {a) ; where a bishop (Jb) was suspended for di- lapidationSy and the profits of his bishopric sequestered, until the episcopal palace was rebuilt out of them. So, the profits of a benefice may be sequestered by the ordinary, and applied in such repairs as the ecclesiastical law re- quiresy or the incumbent visited with ecclesiastical censures, even to deprivation^ if necessary (c). And the statute 57 Geo. Sf c. 99i requires non-resident incumbents to keep their houses in good and sufficient repair; and provides ((/), that where curates are appointed by incumbents, and receive the entire profits of the benefice, they shall allow any sum not exceeding one-fourth of the profits that may have been expended in repairs.
Thesiger, contrsl. It is immaterial to consider what has
include not only all repairy merely substantial, but likewise some of a more ornamental liature. Hie house must be in proper condition as to whitewashing and paint, be- cause it cannot otherwise be de- cently inhabited.
^ I do not mean that it is to be new whitewashed and painted, if the whitewashing and painting be fit for use; but if ic is not so, tlie eiecutor is bound to whitewash and paint it anew. I need not add, that the floors, ceilings and cornices, must all be in good con- dition, as likewise windows, frames, doors and locks, and every part of the apparatus of a decent habitation. When I say in a good condiiion, I mean that each should be in a sound and proper condi- tion fit for its respective use. Their being plain is no sufficient objec- tion against them. It would be endless for me to particularize the articles to which * dilapidations' applies; nor could I do it from
mere memory, without having the several articles proposed to roe with an inquiry upon each : but I may lay down the general princi- ple to be this — that dilapidations are such repairs and renovations as are proper to make the house ha- bitable with decent convenience, respect being had to the value of the benefice to which the boose belongs.
** I take this to be the strict principle of law apply ing to dila- pidations. I need not add, that in practice this principle ought not to be acted upon with a niinute and sordid rigour, but ought to be mo- derated in the adjuscment by a li- beral disregard of things trifling in their own nature and value.^
(a) Cited in IS Mod. 237.
(6) Litchfield and Coventry.
(c) See Burn's Eccl. Law, 9, tit. Dilapidations, and the cases there collected.
(d) In section 63.
MICHAELMAS TERM, X GEO. TV. 241
been the prevailing custom or practice in estimating dilapi- ^^^^* dations hitherto ; the Court are now called upon to esta- ^j^^ blish a legal principle upon which such estimates shall be v.
made in future. Of the three principles stated in the case, (he last is that upon which the estimate in the present instance ought to have been made, namely, that the incumbent is bound to leave the buildings belonging to his benefice in such a state of repair only, as an outgoing lay tenant, not bound by covenant to repair, ought to leave his premises in. Dilapidation may be almost called a synonymous tenn with waste. Damages are recoverable at law for di- 'apidations upon the same principle that they are recoverable for permissive waste. The definition of the word given by the best authorities fully supports this argument. Cozre//, in his Dictionary, calls it *' a wasteful spending or destroy- ing, or the letting buildings run to ruin and decay for want of due reparation.*^ J^^gg^f in his Parson's Counsel lor {a),cM9 it| '' the pulling down or destroying, in any manner, any of (be houses or buildings belonging to a spiritual living, or the chancel, or suffering them to run into ruin or decay, or wast« ing and destroying the woods of the church, or committing or suffering any wilful waste in or upon the inheritance of the church." (&) Blackstone, speaking of dilapidations, 99ys{c), ** It is also said to be good cause of deprivation, if the bishop, parson, vicar, or other ecclesiastical person, dila-^ pidates the buildings, or cuts down timber growing on the pitrimony of the church, unless for necessary repairs;''
(a) P. 134. to repair the same; and it likewise
(^) Riackstone, in his Com- extends to his committing, or suf-
mentaries, iii. 91, calls it, ** a kind fering to be committed, any wilful
of ecclesiastical waste, either vo- waste in or upon the glebe-woods,
laotary by pulling down, or per- or an^ other inheritance of the
mi^ire by suffering the chancel, church :** and he cites Ayliife's
parsonage-house, and other build- Pnrcrgon as his authority. Cham-
ings thereunto belonging, to de- hers, in his Cyclopaedia, calls it,
cay." Johnson, in his Dictionary, " a wasteful destroying, or letting
calls it, ** the incumbent's suflfcr- buildings, especially pnrsonnge-
ing the chancel or any other edi- houses, run to ruin and decay, for
6ces of his ecclesiastical living, to want of necessary reparation/*
go to rain or decay, by neglecting (c) 3 Bla. Comm. 91, 18th ed.
VOL. V. R
242 CASES IN THE KTNG's BENCH,
18«9. and he cites I lioL Bep. 86, 1 1 Rep. 96^ and OodboU, ad9) as authorities. And those cases are good authorities for bis position. In Stockman ▼« Wither {a), the very point was so decided^ and there waste and dilapidation were treated as synonymous terms. In The Bishop ofSaliiburp^n ca»e(A) it was held, that if a bishop, parson, or ecclesiastical person, do cut down trees upon the lands, unless it be for repara- tions of the ecclesiastical house, or do or suffer to be done any dilapidations, they may be punished for the same in the Ecclesiastical Court, and a prohibition will not lie, and the same is good cause of their deprivation of their ecclesiftstieal livings and dignities. But yet for such waste done, tbey may be punished also at common law, if the ptrty will site there. In Lifortts case(c) it is said, if a bishop or arch- deacon abates or fells all the wood he has, as bishop, be shall be deposed as dilapidator of his house* In other cases, prohibition has been resorted to, as a milder mode of restraining ecclesiastical persons from committing dilapi* dation or waste ; Knowle v. Harvey {d), The Bishop of Dar' ham's case(e) ; though in one case the Court of Common Pleas held that they had not power to award a prohibition : Jejersony, The Bishop of Durham{f), In addition to the modes already noticed, of deprivation and prohibition, % third, namely, sequestration, seems to have been founded upon the constitution of Cardinal OMo60M(g), cited on the other side. By that bishops and archdeacons are required to ad- monish their clerks decently to repair the houses and buildiogB of their benefices ; and if they neglect for the space of two months, the bishop is to cause the same to be effectually done at the costs and charges of the clerk, out of the profits of the church and benefice, causing so much thereof to be received as may be sufficient for such reparation. Originallyp the amount to be sequestered was in the discretion of the
(a) 1 Rol. Rep. 86. (e) Cited in Lifordth case, 1 1
(6) Godbolt, 259. Rep. 49.
(c) 11 Rep. 49. if) 1 B. & P. 105.
(rf) 1 Rol. Rep. 335 ; 3 Biilstr. (g) A.D. 1?68,5« Hen. 3, Gibs.
158. Cod. t5l.
MICHAELMAS TERM, X GEO. IV. 243
ordinary, but by injunctions in the reigns of Henry 8, EtU 1099.
nmrd 6, and Etizabeih (a), the amouul was limited to one
iifthi which was afterwards by the Reformatio Legum Ec«
cleiiaiticarum reduced to one seventh. This last mode of
repairing dilapidations in the life-time of tbe incumbent
still prevails, and the amount usually allowed by the Ecclesi*
aatical Court is one fifth; North v. Barker (A). It is to be
obwrved, that all these modes of proceeding, deprivation,
prohibition, aod sequestration, assume a species of waste
as their foundation. Such was, and still in part is, tbe law
respecting repairs done during the incumbency. The next
step if to consider what provisions have been made with re-
gsrd to dilapidations existing at the time of the resignation
or deceue of the incumbent. The first is a canon of Ed^
mmd, archbishop of Canterbury, in the reign of Henry
5, in these words : — ** Si rector alicujus ecclesise decedens
domos ecclesiflB reliquerit dirutas vel ruinosas, de bonis
ejai ecclesiaaticis, tanta portio deducatur quae sufficiat ad
reparandum hsec, et ad alios defectus ecclesiae supplendos :
semper, tamen, rationabilis consideratio sit habenda ad facul-
tates ecclesiae, cum hsc portio fuerit deducenda" (c). Lynde*
wodt'i gloss upon this Canon is-^on the word ^* dirutas, "
"totaliter prostratas"— on '' ruinosas," ''de proximo vel
verisimili casuras, *' — on ''ad reparandum," ''et intellige
banc reparationem fieri debere, secundum indigentiam et
qualitatem rei reparandas, ut scilicet impensae sint necessarise
000 voluptuosaa, " — on "facultates ecclesias,*' secundum
quarum considerationem haec reparatio est facienda ; quia
in beneficio pinguiori requiruntur edificia magis sumptuosa,
quam in beneficio minus pingui." This is the first autho-
nty touching the nature of the repairs, and it is observable
that it eipressly refers to the value of the living. At com-
nuMi bw, probably, there always existed a remedy against
the executor of a deceased rector, though Gibion (d)
(a) Gibs. Cod. 753, in nocis. p. Q50, ed. Oxon.
0) 1 Phill. Rep. 309. (d) Gibs. Cod. 753.
(c) Ljodew. Prov. lib. iii. tit. S7,
r2
244 CASES IN THE KING's BENCH,
1839- mentions Degge as the first author who suggested the pos« tT"" sibility of maintaining such an action in the common law
V. CourtSf and cites Jones v //?'// (a) as the first instance o(
Metcalfe. ^^^^^1^ ^^ action being entertained. Degge gives the custom upon which the action is founded, in these words : — '' Et si hujusmodi prebendarii| rectores, et vicarii domos et edificia hujusmodij successoribus suis sic, ut praemittatur, reparata et sustentata, non demiserunt et deliquerunt ; sed ea irre** parata et dilapidata permiserunt, executores sive administra- tores bonorum et catallorum talium pragbendariorum, rec- torum, et vicariorum, post eorum mortem de bonis et catallis decedentium successoribus talium prcbendariorum, recto* rum, et vicariorum, tantam pecunia3 summam quantam pro necessari& reparatione et ediiicatione hujusmodi domoruni et edificiorum expendi aut solvi sufficiet, satisfacere tenean* tur *' (b). This shews the measure of damages to be re* covered against the executor, namely, so much only as is required to repair and sustain that which is out of repair and dilapidated, and which it is necessary should be repaired and sustained. Now that is the very principle of permissive waste. The foundation of this action is a tort, and it is an exception to the general rule of law, *^ Actio personalis cum personft moritur. " In SoUers v Lawrence (c), Wi/les, C. J. gives as a reason for the action being maintainable, ** be- cause it is not considered as a tort in the testator, but as a duty which he ought to have performed, and therefore his representatives, so far as he left assets, shall be equally liable as himself" (r/). But "the action is in form an action on the case in tort, and could not possibly be framed in as- sumpsit, as on a contract, for the plaintiflf must be the succeeding rector, who cannot be known until after the death of his predecessor, and of course could not contract with him " (e). Then as the action is founded on the breach of a duty cast by law upon the incumbent, it becomes ne-
(a) 3 Lev. 268. (c) Willes, 413.
(6) Degge's Pars. Couns. 138; (d) Id. 421.
and see 1 Lutw. 116. (e) 1 Saund, 216, note, last ed.
UICHAELMAS TERM, X GEO. IV. 245'
cessary to consider in wliat relation tlie incumbent stands to ^ 1829. the benefice. Now he is considered as having the fee, when it is for the benefit of the church tliat he should be so considered ; when otherwise, he is considered as tenant for life. He is in the condition of a tenant for life, with im- peacbment of waste, or like tenant for years, or from year to year, not bound by covenants. Such persons were not originally liable for waste at all, and though they have been made so liable by the Statute of Marl bridge, still that is to a limited extent only. It is quite clear that an outgoing lay tenant is not bound to do more than merely necessary re- pairs. In Rollers Abridgement it is said (a), ''if a tenant permit a chamber to be in decay for default of plastering, whereby the great timber becomes rotten, and the chamber becomes very foul and filthy, an action of waste lies," So, if the lessee permit the walls to be in decay for want of daubing, whereby the timber becomes rotten (b). Ferguson
V. (c), Russell V. Smithies {d J, and Horsfallv. Mather (e),
are all authorities shewing that the liability of a tenant, oot bound by covenant, extends to necessary repairs only. No case can be found expressly defining the nature and ex- tent of this liability in ecclesiastical persons. In North v. Barker (/), Sir John Nichol expressed himself of opinion that the executors of a deceased incumbent are not bound to renovate a building, even in its ancient form, much less in its pristine beauty, and that the thorough repair of the old building is not to fall on one incumbent. Assimilating tbe liability of an ecclesiastical person with that of a lay tenaoC for life or years^ the rule laid down by Best, C. J. in Perdval v. Cooke (g), appears by no means unreasonable. The statute 13 Eliz, c. 10, declares what dilapidations the executor of a deceased rector shall be liable to pay for. It recites, that persons endowed of buildings belonging to ec-
(«) II. 816, tit. Waste, pi. 36. (e) Holt's N. P. C, 7.
(*) Id. pi. 37. (/) 3 Phill. Rep. 307.
(O 2 Esp. 390. ig) 3 C. & P. 460. (<0 1 Aii5tr. 69.
346 CASES IN THE KlNO's fi£NCH»
1829. clesiastical beaefices had not only suffered the same, for want of due reparation^ to run to decay, converting the tim- ber, lead, and stones to their own benefit, but had also made deeds of gift and other conveyances of their goods and chat- tels in their livestiaie, to the intent, after their death, to defeat and defraud their successors of such just actious and remedies as otherwise they might have had for the same against their executors of their goods by the laws ecclesi- astical : and then enacts, that, if any incumbent of any ecclesiastical living, whereunto belonged any house, &c. which by law he was bound to repair, should thenceforth make any conveyance of his goods, to the intent above men- tionedj his successor may have remedy in the Ecclesiastical Court against the person to whom such gift had been made, for the amendment and reparation of so much of the dilapi- dations and decays as hath happened by his fact or default^ iQ such sort as he might have had if the donees were eae- Ctttors of the last incumbent Thb confines the liability of the fraudulent donee to such dilapidations as happen by the fact or default of the incumbent. Now dilapidations oc- casioned by the hand of time, as the wear and tear of a house, cannot be said to happen by the feet or default of the incumbent ; the words of the statute iticlude so act whicli would not be waste in a tenant for life or for years : aottd if this is the measure of damages fixed by the statute to be paid by a fraudulent donee, it is a fair inference that the legislature intended to cast upon him the same burthen which the common law had already cast upon an incumbent who had been guilty of no fraud. Again, by the statute 1 7 G. 3, c. 53, the incumbent, where there is no house, or wheiB the house is so ruinous and decayed that one year's prodiioe of the living will not suffice to repair it, may have «ai esti- mate made, and, with the consent of the ordinary, borrow money to rebuild upon mortgage of the glebe, tithes^ &c. ; and the statute goes on to charge the living with (he iiKMBMes so raised, and to direct that all sums recovered by sttit, or secured by composition of any former incumbent, sliall be
M1CHA£LMAS TERM, X GEO. IV. 247
applied in part of the payments under the estimate. Now, I82d. if the argument on behalf of the present plaintiff be correct, this statute can never apply, except in cases where the in- cumbent dies insolvent ; for if his executor is to supply and restore >vh«tever he leaves deficient or decayed^ the house never can become ruinous or decayed, because if it should be destroyed by lightning or prostrated by tempest, it must be rebuilt by the incumbent under his common law obliga- tion. Every incumbent is entitled to the fair use of all the property attached to his living, and should be allowed to deal with it in the same way as a prudent man having a per- petual interest would do. Tlie property must be in a gradual course of decay ; but if it be in such a state of pre- servation that tlie incumbent might fairly take another year's wear out of it, the mere circumstance of his dying in the course of that year ought not to throw upou his executor the burthen of repairing it sooner than the iucumbent him- self need have done; the succeeding rector will have his proportion of the profits, and should injustice bear his pro- portion of the expense.
Cur. adv. vuH.
BAYtEY J. now deli^rered JMlgnent. — This was an action for dibpidaliotts, broiigliit by the successor against tlie exe- cttlor of tke deeeated rector, and the question was, foy what rule the ^ikpidations as to the rectory-hou«e, buildings and rhwmrti, vere to be estimated. Tkree rules were pcoposed for our coaaaderataiMi. First, that the predecessor ought to have left die pretnises in good aiid aubstaiitiai repair, the peiniaig, pampering and whiteweshing being iii proper and dnoent conditioa for the immediate oecufMtion and use of his enccetsor, and tliat auch repairs were to be a«certamed wilk tmkmmem io the etate and dmracter of the buildings, which were to be restored, where neceemry, according to their origiMl fanny witboot nddkton or modern improve- ment, and the eattmnte, according to this rule, came to 9001. lftt.&2.
CASES IN THE KINGS BENCH,
The second rule proposed was, that tliey were to be left as an outgoing lay tenant ouglit to leave bis buildings, where he is under covenant to leave them in good and sufficient repair, order and condition, and the estimate, by tliat rule, was 310/. the painting, papering and whitewashing not being included.
llie third rule was, that they were to be left wind and water tight only, or, as the case expresses it, in such condi- tion as an outgoing lay tenant, not obliged by covenant to do any repairs, ought to leave them, and by that rule the estimate would be 7o/« 1 Is,
We are not prepared to say that either of these rules is precisely correct, though the second approaches the most nearly to that which we consider as the proper rule.
The law and custom of England, or, in other words, the common law, as stated in some of the earliest precedents, p. 12 and 13, Henry 8, Rot. 12G, C. B., and others which we have searched, and in 1 Lulw, 116, is as follows: — <' Omnes et singuli prebcndarii, rectores, vicarii, &c., pro tempore existentes, omnes et singulas domos et edificia pre- bendariorum, rectoriarum, vicariarum, &c., reparare et sus^ tenlare, ac ea successoribus suis reparata et sustentata dimittere etrelinquereteneantur, et si hujusmodi prebcndarii, rectores, viearii, &c., hujusmodi domos et edificia successo- ribus suis, ut prasmittatur, reparata et sustentata non dimi- serint et reliquerint, sed ea irreparata et dilapidata per^ miserint, eidem prebendarii, 8cc., in vitis siiis, vel eorum executores, sive administratores, 8cc., post eorum mortenn^ successoribus prebendariorum, &c., tantam pecuniae sum- mam, quantam pro reparatione, out necessarid re-^di/ica^ tione hujusmodi domorum et edi6ciorum expendi aut solvi sufficiet, satisfacere teneantur." An averment in terms nearly similar has been usually introduced into all declara-' tions on this subject.
From this statement of the common law, two propositions may be deduced. First, that the incumbent is bound, not only to repair the buildings belonging to his benefice, but also to restore and rebuild them, if necessary. Secondly
MICHAELMAS TERM, X GEO. IV. 249
that he is bouud only to repair, and to sustaitiy^ and to 1B29. r^ildf when necessary. Both these rules are very reason- able, die first, because the revenues of the benefice are given as a provision^ not for a clergyman only, but also for a suit- able residence for that clergyman, and for the maintenance of the chancel : and if by natural decay, which, notwith- sUnding continual repair, must a^ last happen, the buildings perish, these revenues form the only fund out of which the means of replacing them can arise. The second rule is equally consistent with reason, in requiring that which is useful only, not that which is matter of ornament or luxury. It seems naturally to follow, from the first of these propo- sitions, that the third mode of computation proposed in the case cannot be the right one, because a tenant, not obliged by covenant to do repairs, is not bound to rebuild or re- place. The landlord is the person who, when the subject of occupation perishes, is to provide a new one, if he thinks fit. And if the second proposition be right, a part of the charges contained in the first computation must be disal- lowed ; for, papering, whitewashing, and such part of paint- ing as is not required to preserve wood from decay, by exposure to the external air, are rather matters of ornament and luxury, than of utility and necessity.
The authorities which have been cited from the canon law, agree with that which we consider to be the rule of the common law.
The earliest provision on this subject is the provincial constitution of Edmund, archbishop of Canterbury, made A. D. 1236, 21 Henry 3. It is in the following terms : — '^ Si rector alicujus ecclesiae decedens domos ecclesiae reli- querit dirutas vel ruinosas ; de bonis ejus ecclesiasticis tanta portio deducatur, quae sufficiat ad reparandum haec, et ad alios defectus ecclesise supplendos." That constitution, therefore^ directs the repairing *' domos ecclesise dirutas vel ruinosas.*' And Lyndewode*s commentary upon the word^ ** ad reparandum" is, " scilicet diruta vel ruinosa. Et intellige banc reparationem fieri debere secundum iDdigeotiam et quaiitatem rei reparandse ; ut scilicet, im^
260 CASES IN THE KIKG's BENCH,
laeo. pensae sint iiecessaris non volupUiosae/* Tba next autho- ^'^^ rijty cited from the cauon law, was the following legaoUoe V. constitutioo of Otbobonf promulgated A. D« 1£68» 52
Man;Ai.ni. ffmry 3 :— '* Improbam quorundam avaritiam pro6«- quente^i qui cum de tui« ecclesiis et ecclesiasticis beneficiii multa bona auscipiaoty domo» ipsarum, et castera edificia negligunt» ita ut Integra e^ non cooservent, et diruta noa reataurent." That ia the imputation againat the ckfgy. The conatituUon then proceeds : — '^ atatuimas et prvcipi* muf ut universi ckrici auorum beoeficiorum domoii et eastern edificia prout indiguerint reficere atudeant cgode- center^ ad quod per epiacopos auos vel arcbidiacoQaa aoUi- cit6 mooeantur. Cancelloa etiam accieaia^ per eos qui ad hoc ieoeotur refici faciaot, ut superiua est eapreaauoi* Ar* cbiepisGopos vero et apiscopoai et alios ittferiorea praelatoa, domos et edificia sua aarta tecta, et io atatu auo eonserrare et tenere^ aub divini judicii attestatioue pradciptmoa^ «it ipsi ea refici faciant^ quae rafiacUooe noveriut iodigere/'
The statute 13 Eti24ibeih^ c, 10, speaks of occleaiaaUcal peraoos au&riag their buiUingap for want of due reparation, partljr to run to ruiu aad decay, and im $ome part vtierkf io fall io the graaudp which, by law, they are bound to keep and maintain in repair ; and maizes the fmudulent donee of the goods of aa incumbent liable for aueh ditopidalkm as hath happened by his fiuct and default. If die iacttAbeni was bound by law to keep and maintain the dweUiiig-l»Mi«e in repair, any breach of liis duty an that respect would be a default. The statute 57 George 5, c. 99, a. 1^ enacia, that a uoo-resideBt spiritual person shall keep the boiiae of residence iu goad and sufficient repair ; and directs, dsat if it be out of repair, and remain so, the parson ia Io be IwUe to the peualOes <^ nooHfesiileiice, until it is put into goad and tifffide/U repair, to the aatiafactian oi the basbop^ Tlieie is «olJung, eilJber an the authorities eiled froan die canon law^ or in tlM^ acta of parliaaieat, to ^bew ihiai tlu^ obJigatioo of an iacumbent to repair is e(tber iJben that wkaeii I. have already ateted the coaiukmi law east afma Jbii% namely, to austaii^ 4«^io Md rebuild* when necessary.
MiCUAELMAS TEHUf X GSO. IV.
Upon tbe wbole, therefore, \ve are of opioion that the
iacttmbeot was bound to maintain the parsonagei (which
we must afsuoie upon this case to have been suitable in
point of mty and in other respectSi to the benefice,) and
abo die chancel, and to keep them in good and tubttantial
lepair, rtttoring and rebuilding, when necessary, according
to the originml form, without addition or modern improve*
neatf but that he was not bound to supply or mainlatn
wf tking in tho nature of ornament, to which painting,
(onieM necessary to preserve exposed timbers from decay,)
and whitewashings and papering belonj^; and that the
<laauges in this case should be eetimated upon that footing.
It wSI be found that this rule will oorrespond nearly with
the second mode of compnlation, and probably wtii be the
Miae as if the terms ** order and condition" are meant, as
(hey most likely are, not to include matters of ornament
and luxury.
Judgment for tbe plaintiff.
261
tM9.
Wna MarcAi^ftf
It was afterwards referred to the master to calculate tlie dtsM^es upon this principle, and to report for what snm the jadgaaent sbooM be entered ap ; and he directed it to be for SGgL IBs. fid, for which sum the plaintaff ultimately bad jwdgment.
M'Pherson 17. Damikls*
L/ASE for slander. The declaration stated^ that the plain- tiff, before the time of committing the grievances therein- after mentioned, and from thence had been and stiTI was a coach proprietor, and sold and disposed of cattle for divers persons for commission, and that he had never been sus- pected to be insolvent, or unable or nnwilKng to pay bis jaaA debts; that flie defendant contriving, and wickedly atrf naaliciottsly intending to injure tlie plaintiff, and to cause
n*o>«d ; he mast also shew that he repeated them upon a justifiable that he believed them to be true.
A defendant . cannot justify the repetition of slanderous words, by merely shew- ing that at the time when he repeated them, he stated that he had heard them from ano- ther, whom he occasion, and
M*Pberson
Dahiels.
CASES IN THE KING S BENCH,
it to be suspected and believed by liis neighbours that the plaintiff was poor and in indigent and bad circumstances, If. and incapable of paying his just debts^ and debts to be by
him contracted, and thereby to injure him in his trade and business, falsely and maliciously spoke and published, in the presence and hearing of divers good and worthy subjects of this realm, of and concerning the plaintiff, and of and con- cerning and relating to him in his trade or business of a coach proprietor, the false, scandalous, malicious and defa- matory words following, that is to say : — '^ His (meaning the said plaintiff's) horses have been seized from the coach (meaning the said plaintiff's coach), on the road, he (mean- ing the said plaintiff) has been arrested, and the bailiffs are in his (meaning the said plaintiff^s) house," thereby then and there meaning and intending that the said plaintiff was in bad and indigent circumstances, and incapable of paying his just debts. By means of the committing of which said grievances by the defendant, he the plaintiff was greatly injured in his good name, &c. ; and also, by means of the premises, one Morrison, who before the committing of the said grievances was about to send, and otherwise would have sent, divers, to wit, eleven head of cattle to the plaintiff, for the purpose of being sold and disposed of by the plaintiff' for Morrison, for commission and reward payable to the plaintiff in that behalf, to wit, on the day and year aforesaid, wholly refused and declined so to do, and thereby the plain- tiff lost and was deprived of the commission which would have been payable by Morrison to the plaintiff. Plea, that before the speaking and publishing of the several words in the declaration mentioned, and therein supposed to have been spoken and published by the said defendant, of and concerning the said plaintiff, and of and concerning and re- lating to him in his trade or business of a coach proprietor^ to wit, on &c., at &c., one T. W. Woor, of Swaffhatn^ in the county of Norfolk, spoke and published the following words to the defendant, of and concerning the plaintiff, aud of and concerning and relating to him in his trade or busi-
MICHAELMAS TERM, X GEO. IV.
iiess of a coach proprietor, that is to say : — " His (tne'aniitg the said plaintiiTs) horses have been seized from the coach (meaning the plaintiff's coach) on the road ; he has been arrested, and the bailiffs are in his house ;" thereby then and there meaning that the plaintiff was in bad and indigent circumstances, and incapable of paying his just debts. And the defendant further saith, that at the time of speaking and publishing the said several words in the declaration as therein mentioned, he the defendant also declared, in the presence and hearing of the same persons in whose presence and hearing the said words were so spoken by him the de- fendant, that he had heard and been told the same from and by the said T. W» Woor, of Swaffham, in the county of Norfolk; wherefore, he the defendant, at the said time when &c., in the said declaration mentioned, did speak and publish, of and concerning the plaintiff, the said several words in the said declaration mentioned, as he lawfully might for the cause aforesaid. General demurrer to the plea, and joinder in demurrer.
^53
1829.
F. Kelly, in support of the demurrer, was stopped by the Court.
Plaltf in support of the plea. It is a good plea to a declaration for slander originally uttered by a third person, that the defendant mentioned the name of that person at the time he repeated the slander. It is said in the fourth reso- lution in Lord Northampton's case (a), " In a private action for slander of a common person, if J. S, publish that he hatti heard J. N. say that J. G. was a traitor or thief; in an action on the case, if the truth be such, he may justify. But if J. S. publish that he hath heard generally, without ^ certain author, that J. G. was a traitor or thief, there an action sur le case lietli against «/. S., for this, that he hath not given to the party grieved any cause of action against
(a) la Rep. 134.
264 CABES IN THE KINO's BEKCH,
1M0. any, but against himself^ who publiahed the wordsi although J^^^^ that hi truth he might hear them \ for otherwise this might 1^. tend to great slander of an mnocent/ [Parke i. But this
DAHietfl. pi^i^ Jq^^ j^^ come witbio the terms of that resolution. That resolution requires that the party repeating the slander shall give the party slandered a complete cause of action against the original author* That is not done here. This plea does not shew that the words were spoken by Waor under circumstances which would give the plaintiff any cause of action against him* It does not aver that fVoar spoke the words falsely and maliciously. It does not shtWj therefore^ that the plaintiff has any cause of action against TFoor.] If the words were false> it is submitted that the plaintiff has a cause of action against Woor ; if true> he has no claim to a cause of action against either party. It is not necessary in an action for words to allege malice ; if the words are actiounble. the law implies malice : Mercer V. Sparh (a). [Parke J. That was after verdict, and malice must have been proved at the trial.] In La4y iU or- rison v. Cade (6), the report is this : — " Action for words : Whereas she was a widow, and in communication with the Earl of Kent about her marriage. That the defendant said^ Askot had reported that he had had the use of her body (inuendo that he had had carnal copulation with her), ubi revera he never made any such report." ** And it was moved in arrest of judgmenti that the words were not actionable ; for the first words may have a good intend* ment| as a physician may have the use of her body, Scc« And the inuendo cannot alter the words : sed non alloon* tur ; for the words in themselves cannot have any reasonnble constructioui and they shall be taken according to the uaunl and common sense of them, which is very slanderous to a lady of such reputation t Wherefore it was adjudged for the plaintiff. And this judgment was afterwards affirmed in a writ of error." [Parke J. It is alleged there that Aekoi
(a) Owen, 51 ; Noy, 3I»« (6) Cro. Jac. 162.
MICHAEtllAd TEtlM^ X 0C0« IV. 256
Mter iiNide any sdcb report, which is equiimtent to an 18^.
illegation that the defcodant spoke the words falsely.] juip^^^^n
Is Imf V. Walter {a), it was held thai the report of the v.
sptecb of anotberi who never used such words^ is ac- akibls.
tionible. [Bajfky^ J. The plea ought to confess and
ivoid the cause of action stated in the declaration. Tlie
charge io the declaration is^ that the defendant spoke
irordi amounting to an unqualified assertion. The answer
in the plea is, that Woor first spoke the words, and that
tlis defendant afterwards repeated them, adding, that he
had heard and been told those words from and by Woor*
So that, according to the plea, the defendant first made
ibe assertion as of his own knowledge and authority, and
then qualified it by alleging that he had previously heard
itfiom Woor. The plea, therefore, does not confess and
atoid the cause of action stated in the declaration.] It
clearly confesses the cause of action, by shewing that
die defendant spoke the words charged in the declaration,
and, it is submitted, it then avoids it, by shewing that he
named the person from whom he heard the words. The
principle upon which the naming of the first publisher of a
iibel constitutes a defence is, that the defendant thereby
negatives malice. In Dam v. Lewu (A) it was held, that
it is no justification to an action for slander to plead that
such an one told the slander to the defendant ( but, that if
the person repeating the slander at the same time mentions
die name of the person from whom he heard it, that may be
pleaded in justification to an action brought against the
former. The present is the very ease there put, which
supports the fourth resolution in Lord Northampton's
c«se(e)» which was there spoken of by Lord Kenyon without
disapprobation. A defendant cannot justify the repeating a
report which he knows to be falaei by shewing that he heard
it from others, Maitland v. Goldney (ef) ; from which it
(«) Cro. Jac. 406. (c) 1« Rep. 134.
(^) 7 T. R. ir. (i/) a East, 408.
CASES IK TH£ KING'S BENCH,
would appear that if be had not known it to be false^ the hearing it from others would have been a justification. The same rule is laid down, without any qualification, in RoUts jibridgement (a). The decision in De Crespigny v. ffe/Zes- ley (b), that it is no justification for the publishing of a libel, that, at the time of publishing it, the name of the person who communicated it to the defendant was also published, applies only to cases of written slander. There is a mate- rial distinction between written and oral slander, Maitland V. Gold/tey (c), where it is said, '^ Quaere^ whether a defend* ant can, by naming the original author, justify the publish^ ing in writing slanderous words spoken by such other; especially after knowing that they were unfounded ?" There are many instances where an action may be maintained for written slander, which could not be maintained if it were spoken.
Bay LEY, J. — I am clearly of opinion that this plea is bad. The declaration charges, &c. (Here his lordship stated the declaration as set out at the commencement of this case). Now, that imputes to the defendant an unqua-^ lified assertion ; and if he had pleaded the general issue only^ it would have been necessary for the plaintiff to have proved that the defendant in fact made such an unqualified assertion : and if he had failed in that proof, and had proved only that the defendant said that Woor had told him that the plaintiff had been arrested, &c., the defendant would have been entitled to a verdict or a nonsuit. The defendant, however, has pleaded specially ; it was, therefore, his duty^ according to the first principles of pleading, to confess the charge which he undertook to answer, and then to aver some matter amounting to an answer. The charge is, that the defendant made an unqualified assertion that the plain* tiff had been arrested^ &c. Unless the plea, therefore, contains an admission that the defendant spoke words bear-
(a) P. 46. pi. 9. (b) 5 Biiigh. 392. (r) 2 East, 426.
M^Phersoit
MICHAELMAS TERM, X GEO. IV. 257
mg that unqualified meaning, it is bad. Now the plea does 1829. not admit that the defendant spoke the words in an unqua* lified sense ; therefore it is bad because it does not confess «.
the charge stated in the declaration. Another objection I^anibls. ]x>inted out by mj brother Parke is, that the plea does hot give the plaintiff any cause of action against Woor ; and that, e?en according to Lord Nort/iampton's case {a) a per- son, in order to justify the repetition of slander by naming t&e original author^ must give the party slandered a cause of action against the party he so names. Now this plea merely states that the words were spoken by Woor; it does not state that they were spoken falsely and mali- ciously. For all that appears, they may have been spoken kj Woor upon a justifiable occasion^ — as by way of a confi- dential communication to a creditor, or in a court of justice. Woor may upon some occasion have been examined as a witness, and the words may have been extracted from him upon cross-examination. Assuming, therefore, that the de- fendant might rely upon the fact of his having heard the words first spoken by Woor, and having named him at the time when he repeated them, as an answer to the action, atill he ought to have shewn by his plea that the words were spoken by Woor under circumstances which did not jnadfy the speaking of them.
Upon the general question, — whether it is a good defence 10 an action for verbal slander, to shew that the defendant heard it from another, and named the author at the time, — I 101 of opinion that it is not. It has been already very pro- perly decided that such evidence is no defence to an action fof written slander (6); and I am of opinion that the rule ooght to be extended to cases of verbal slander. It is true that IB Davis v. Lewis {c)^ Lord Northampton's case{d) was alluded to without disapprobation by Lord Kenyon, a
(•) 12 Co. Rep. 134 a, in the Payne, 695,) where all the authors
Scar Chamber, foarth resolution. ties upon the subject are collected.
(h) In De Cretpigny v. Welles- (c) 7 T.R. 17.
/^, (5 Bii^. 392, and 2 Moore & (d) 12 Rep. 132.
VOL. V. S
258
1829.
M'Pherson
V.
Daviels.
CASES IN THE KING S BENCH,
nan of powerful mindi acute discriiniQatioD| and deep learn- ing. But much as I respect the memory of that noble and learned judge, I cannot carry my respect so far as to sur- render my own judgment to bis. Let us examine the terms of the resolutiouj and try it by the simple test of reason and common sense. '^ It was resolved that if A. say to B., did you not hear that C. is guilty of treason, &c. i this is tan- tamount to a scandalous publication ; and in a private action for slander of a common person, if J. S. publish that he hath heard J. N. say that J. G. was a traitor or thief; in an ac- tion on the case, if the truth be such, lie may justify •** Now, assuming that it is not there stated, as a qualified proposi- tion,— that a person may justify if he believes the slander to be true, and repeats it on a juUiJiable occasion, — but as a general proposition, that if be in fact heard the report from another, and named that other at the time he repeated the slander, that is in all cases a justification : I (hink that is a proposition which cannot be supported. I very nMtck doubt whether the repetition of slander is justifiable in a^y case, unless the party really believes it to be true. A per* son who repeats slander, even though he states at tbe time that he heard it from another, gives it a certain degree of credit; for the mere act of repetition imports a degree of belief in the truth of the slander. It seems to me, therefore, that a person cannot be justified in repeating slander, unless he really believes it to be true. But I think that is not enough* I think it must be repeated tq^m. a justifiable OC'- casion. Every publication of slanderous matter is^ prim& facie, a violation of the right which every person poaaeaaea in his character and reputation. The law^ upon grotmds of public policy and convenieacej allows, under certaki cir- cumstasces, the publication of slanderous matter, although it may be injurious to a particular individual. But tbe act being prim& facie unlawful, it properly lies upon the person charged with uttering slander, whether he be the origioal utterer or not, to shew that he uttered it upon some lawful occasion. Upon the whole, 1 am of opinion that a man
MICHAELMAS TERM, X GEO. IV.
cumot by law justify the repetition of slander by merely Muning the person who first uttered it ; he must also shew Aat be repeated it on a justifiable occasion, and that he htheeed it to be true. Upon this view of the law, the plea is this case is bad, and the plaintiff is entitled to judgment.
LrTTLEDALE, J. — For the reasons stated by my brother Bay%, I agree that this plea is bad; and upon that part of the subject I do not feel it necessary to add any thing ; but with reference to the fourth resolution in Lord Northamp^ tons case (a), I think it right to make a few observations. That resolution has been frequently referred to during the hst thirty or forty years, and though never expressly over- ra/ed, has been generally disapproved of. The latter branch of it is extra-judicial, fen- it was not necessary to come to any resolution respecting private slander in the Star Chamber. It is in some degree inconsistent with the third resolution ill the same case, which lays down, '* that if one hear false and horrible rumours, either of the king, or of any of the gran- dees, it is not lawful for him to relate to others that he heard J' S, say sach false and horrible words, for if it should be lawful, by this means theif moy he published generally. ** M^ow the inconvenience there pointed out, namely, the general publication of slander, though differing^ in degree^ would follow from the repetition of slander in every case, whether of king, lords, or commons ; therefore the distinc- ioa taken in*the two resolutions seems to involve some in- consistency. Perhaps, however, the fourth resolution may be considered as not going the length of saying, in terms, thsii a defendant may justify the repetition of slander gene- rally, bat only that he may justify under certain circumstances. If it mast be taken as importing that a defendant may justify ^ repetition of slander generally, by merely shewing that be named the original author, I am of opinion that it is not haw. A brief consideration of the form of the record, and the
(a) 12 Co. Rep. 134 a. S 2
S59
18129.
M'Pherson
V.
Daniels,
26a
1829.
M'Pberson
V.
Daniels.
CASES IN THE KING S BENCH,
nature of the evidence proper to an action for slander^ will, I thinky prove this opinion well founded. The declaration^ which is a technical statement of the facts necessary to sup* port the action, alleges that the defendant falsely and mali- ciously uttered the slander, to the plaintiff's damage. In order to support that statement, there must, in general, be proof of malice in the defendant, of damage to the plaintiff, and that the words are untrue. Where, indeed, words falsely and maliciously spoken, as in this case, are actionable in themselves, the law presumes a damage ; in other cases, an actual damage must be proved. Such an action can only be answered, — where the publication of the slander is not in- tended to be denied, — by the defendant's refuting the charge of malice, or shewing that the plaintiff is not entitled to recover damages. The charge of malice may be refuted, under the plea of the general issue, by shewing that the words were spoken upon au occasion, or under circum- stances, which the law, upon the grounds of public policy, allows, — as in a parliamentary or judicial proceeding, or in giving the character of a servant. Where the truth of the words is relied upon as a defence to the action, the defend- ant must plead that matter specially ; and for this reason^ that the truth is an answer to the action, not because it negatives the charge of malice, (for slanderous matter, though true, may be uttered MTongfuUy and maliciously, so as to render the utterer liable to an indictment,) but because it shews that the plaintiff is not entitled to recover damages: for the law does not allow a man to recover damages for au injury to a character which he either does not possess, or does not deserve. Now a defendant, by shewing that, at the time when he published slanderous matter of a plaintiff, he stated that he had previously heard it from another, whom he named, does not negative the charge of malice, for one person may wrongfully and maliciously repeat that which another may have uttered upon a justifiable occasioa. Such a plea does not shew that the slander was published upon an occasion, or under circumstances which the law, on
M'Phersok
MICHAELMAS TERM, X GEO. IV. 261
grounds of public policy, allows; nor, that the plaintiff ha«i '1839. j)ot sustained an injury, or is not entitled to recover damages. ^8 much mischief may be done by the wrongful repetition "' * V/ of a slanderous tale, as by its original publication ; for the Daniels. 6rst utterer may have been a person insane, or of bad cha- racter. Every person who repeats a slander gives it some additional weight and credit. A plaintiff is not the less en- titled to recover damages for slanderous matter published concerning him, because another person previously pub- lished it. That shews, not that the plaintiff is a man of such conduct or character as deprives him of the right to recover damages, but that he has been wronged by another person as well as the defendant ; and that he may, conse- quently, if the slander was not published by the first utterer upon a lawful occasion, have a good cause of action against that person as well as the defendant. It seems to me, there^ fore, that such a plea is not an answer to an action for slander, because it does not negative the charge of malice, and does not shew that the plaintiff is not entitled to recover damages.
Parke, J. — It is not necessary, in disposing of this case, to decide whether the latter part of the resolution, so often alluded to, is good law or not ; because, assuming it to be good, this plea is bad, for two reasons. To be a good plea it JDust confess and avoid the cause of action stated in the declaration. This plea either does not confess^ or if it con- fesses, does not avoid, that cause of action. It appears from the case of Bellv.Bt/me{a)f that if a defendant has not made an assertion as his own, but has merely alleged that some other person had made it, it must be so averred : and that an averment in a declaration, that the defendant used slanderous words, must be taken to mean that he used them as bis own words, and as a substantive allegation of his own ; and will not be supported by proof that he used them as th^ words of another person. Applying the principle of that de* cision to the present case, if the plea be understood to confess that the words were spoken as those of another person, and (a) IS East, 554.
CASES IN TH£ KING 8 BENCH^
Bot as a direct assertion of the defendant himself, it does not properly confess the charge made in the declaration ; if, o. on the other hand, the plea be considered as confessing the
DAjvi£ts. words to have been used as those of the defendant himself» and as a substantive allegation of his own, it does not coi^ tain any proper avoidance of the matter so confessed : for if one roan makes such an assertion of slander as his own, it can be no answer, even admitting the latter part of the fourth resolution in Lord Northampton's case to be law, if in the same conversation he adds that another man has also said the same thing. Secondly, the plea is bad, because it does not give the plaintiff any cause of action against Woor, It does not allege that Woor spoke the words falsely and maliciously; and though malice may be implied of words actionable in themselves, still the defendant ought to have stated in his plea, (as it must have been stated in a declaration against IVoor,) that Woor spoke the words falsely and maliciously.
But assuming that the plea was not bad for the reasons I have mentioned, I am clearly of opinion that the latter part of the fourth resolution in Lord Northampton's case is not law. The twelfth part of the Reports was never much looked up to as a book of authority. Mr. Hargrove {a) deems it of small authority, being not only posthumous^ but apparently nothing more than a collection from papers neither digested nor intended for the press by the writer (ft). Mr. Serjeant Hill, in his copy, refers to folios 18 and 19(c), as shewing that the twelfth part is not fit to be allowed. Mr. Justice Holroyd, in Lewis v. Walter (d), gives an opinion unfavourable to its accuracy. Besides, the language of the resolution itself is equivocal. It does not say, in direct terms, that if the defendant gives a cause of action against another, it will be in all cases an answer to an action for slander ; and if it is to be understood as importing generally
(a) 1 1 St. Tr. 30. were printed early in the reign of
(b) It is obserrable, that 12 James 1, in Frejich.
Rep. was printed in 1658 in Eng- (c) Case of Non Ohtante, lish, whereas the previous parU ((/) 4 Bam. & Alders. 614.
MICHAELMAS TERM, X GEO. IV. thit tbe repetition of dftiider is lawfoh provided the pm*!; at the time he repeats it mentions the name of the author^ M*Pheiwow
I tUak that upon no principle can such a proposition be v,
1 J • . ^ ,,..... Daniels.
supported, and I see uo satisfactory distinction, m this re*
tpecty between oral and written slander. A man's reputa* tion is entitled to the protection of the law against those slanders which it deems injurious ; and as every one who publishes such slander injures that reputation, he is guilty ofa wrongful act, and is, upon principle, liable in a civil action for any damage arising to another from that wrong*- fal act Lord Chief Justice Be$t, in De Crespigny v. Tfir/- ksky, says, '' because one man does an unlawful act to any person, another is not to be permitted to do a similar act to tbe same person; wrong is not to be justified, or even excused, by wrong "(a) : and I entirely agree with the senti- ment. Every repetition of slander is a wrong done, for which an action lies ; and the repeating of a slander cannot be less a wrong because the person who repeats it is not the same who first uttered it. The degree of injury may vary greatly, according to the character and condition of the individual who utters the slander, and the number and cha«- ncter of the persons in whose hearing it is uttered. Tbe original utterer may have been a person of bad character, or may have uttered it when in a state of intoxication (6). Slander uttered by such a person, or under such circum- stances, would find little credit ; but if a person of good character, and in a sound state of mind, were afterwards to repeat that slander, he would thereby not only circulate it more widely, but he would give it credit by his repetition of it, even though he stated at the time that he heard it from another. Every wrong to property is the subject of a civil action, and upon what principle can it be said that every wrong done to a man's reputation is not equally so i A wrong to property cannot be justified by shewing that another person has previously committed a similar wrong, and why should it be otherwise in the case of a wrong to reputation i In this case, moreover, the plaintiff alleges (o) 6 Bingb. 404. (fr) 12 Co. Rep. 134 a.
264
18«9.
M'Phbrsoh V, . Daniels.
CASES IN THE KING S BENCHj
that in consequence of the words spoken by the defendant he sustained a special damage, by the loss of a customer, and non constat that any such special damage would have accrued from the original uttering of the words, if they had not been repeated by the defendant. In every point of view, therefore, it is clear that the plea is bad.
Judgment for the plaintiff (a).
(a) See Maitland v. Gcldney^ S East) 426 ; Woolnoth v. Meadowsy 5 East, 463, and 8 Smith, 88; Lane V. Howman, 1 Price, 76; MUU v.
Spencer, Holt, N. P. C. 583 ; Saun- der§ ▼. Mills, 6 Biogh. 813, and 3 Moore & P. 580.
A private book kept by a de- ceased collec- tor of taxes, cot as a mat- ter of dut^, but for his own conve- nience, con- taining entries by him, ac- knowledging the receipt of sums of money in his charac- ter of collec- tor, is admissi- ble evidence in an action against his surety, — al- though the parties who iiad made the payments were alive, and might have been called as wit-
MiDDLETON and another v. Melton.
Debt on bond. The declaration stated that the defend- ant, in the life-time of Thomas Squire^ deceased, (who was the collector for the Second Part of the Bishop's Liberty, appointed by the commissioners acting for the Second Divi- sion of East Brixton, in the county of Surrey, in execution of certain acts of parliament, passed in the 4Sd, 48th9 ^^» ^^^ o9th years of Geo* 3, and the 1st, 2d, and 3d years of Geo. 4, relating to the duties under the management of the commis- sioners for taxes,) on the 10th of October, 1 8£5, as surety for Squire, as collector of taxes, by his certain writing obligatory, became bound to the plaintiffs in the sum of 3226/., being a sum equal to the amount of the whole duty and sums of money (including compositions under the act of 3 Geo. 4) assessed, and to be collected by Squire as such collector, and that the bond was subject to a condition; which con- dition, after reciting that Squire had been appointed collec- tor of the rates and duties granted by the above-mentioned acts of parliament, and that one of the duplicates of assess- ment and of the abstracts of such of the said rates and duties as had been compounded for under the act of 59 Geo. 3, had been delivered to Squire with warrants for
MiDDLBTON V.
MICHAELMAS T£RM, X GEO. IV. 265
collecdog the same, and that Squire bad been required by i829. the plaintiffs to give security iu pursuance of the first-men* tioned act of 43 Geo. 3, — was, that if Squire, and the defend- ant, and one Frosi, or either of them, should pay, in pur- Melton. suaoceof the directions of the said statutes, all such sums of money assessed and to be collected in the said Second Part of the Bishop's Liberty, by Squire as such collector; aod \{ Squire should duly enforce the powers of such acts against such as should make default, — then the bond was to be void, otherwise to remain in full force. Breach : that Squire collected large sums of money on account of the rates and duties granted by the said several acts of parlia- ment, but that Squire, Frost, and the defendant, in the life- time of Squire, had not paid, nor had Frost, or the defend- ant, since the death of Squire, paid the said sums of money collected by Squire, or any part thereof. Plea : that Squire in bis life-time paid the sums collected by him. The re- plication denied the payment.
At the trial before Alexander, C. B., at the last Kingston assizes, the case on the part of the plaintiffs was this : —
A duplicate assessment was delivered by the commission- ers for taxes to Squire, in which he occasionally made entries of tbe sums received from the persons assessed. From the entries there made, it did not appear that Squire had received any moneys which he had not paid over to the commissioners. It did appear, however, that for his own convenience he l^ept a private book, containing entries (which were appa- rently copied from the duplicate assessment) of the names of the persons, and of the sums in which they were respec- tively assessed, and that it was his usual habit to collect by that private book, and to mark with ticks all the sums he received from the several persons therein mentioned. This book was inspected by two persons on the day after Squire*s death. They stated that they found in it entries with ticks against them, denoting the sums received from tbe persons against whose names those ticks were placed, for which there were not corresponding entries in the du-
266
1829.
MlDDLETOV
Melton.
CASES IN THE KING S BENCH,
plicate assessment It was proved tbat this prifate book bad been delivered by Sfuire*s daogliter to the defendant, and that the defendant had had notice to produce it The sums which appeared to be due from Syaire^ by the entites he had himself made in the private book, over and above what appeared by the duplicate assessment to have been collected by him, amounted to 996/. For some of those sums the plaintiffs further produced receipts given to seve- ral persons for taxes paid to Squire, and signed by bim. On the part of the defendant it was objected that the re- ceipts were not admissible in evidence, because the parties who paid the money might have been called; and that although entries made by Squire in any book which he, in the course of his duty as collector, was bound to keep, would be evidence against the surety, still entries made by him in a private book, kept for his own convenience, were not receivable in evidence to charge the surety. The Lord Chief Baron received the evidence, reserving to the defend* ant liberty to move to enter a nonsuit, if the Court should be of opinion that neither the receipts nor the entries in the private book were evidence; or to reduce the verdict to a proper proportionate amount, if they should be of opinion that the entries in the private book were not admissible in evidence, but that the receipts were. A verdict was there- upon found for the plaintiff, and damages were assessed upon the breach assigned in the declaration at 996/., the full amount claimed.
In Easter term, 18£9» a rule nisi was granted, pursuant to the liberty reserved for that purpose, against which
Andrews, Serjt. and Hutchinson now shewed cause. The entries made by Squire, the deceased collector, in his private book, were, in effect, declarations made by him against his own interest ; for by means of them he charged himself with the receipt of various sums of money, which he was liable in point of law to pay over to other persons. As such, the entries would clearly have been admiasible in evidence against Squire, the principal; and as the defendant.
JUICHAELMAS TERM, X GEO. IV.
when he became his sorety, undertook that Squire should 6ithfuily perform his^Juty, he was bound to know and must be presumed to have known in what manner Squire kept his sccountSy and to have been aware of the existence and coDteots of the book; and if so, the entries in that book were equally admissible in evidence against the defendant, the surety. Upon the same principle the receipts also were admissible in evidence against the defendant; the plaintiff was not bound to call as witnesses all the persons who had made payments to Squire. It however seems unnecessary to labour this point, for if the entries in the book were evidence, they were sufficient to entitle the phintiff to a verdict for the full amount of damages given by the jury.
267
1829.
MlDDLETON
V,
Melton.
Spankie, Serjt. and Chitty, contraL First, the entries made by Squire in his private book, were not evidence against the defendant as his surety. If they had been made by Squire in the regular and necessary discharge of that duty for the faithful performance of which the defendant had become surety, it seems that they would have been evidence against the latter; Goss v. Watlington{a), Whit" Hash V. George {b); but that was not the case, for these entries were made in a private book kept by Squire for his own convenience only, and which he was not under any obligation, in the discharge of his duty as collector, to keep. It is true that the defendant, when he became surety, un- dertook that Squire should faithfully perform his duty ; but it was no part of that duty to keep the book in which these entries appeared. Squire's duty consisted in making entries in the public book, on the duplicate assessment, of all sums of money which he received as the collector; and such entries would clearly have been evidence against his surety; but where no such entries appeared in the public book, the presumption was that no money had been received. The
(«) 9Bro. &Bingh. 1SS; 6 B. pernom* Whitmashv. Genge^ ante,
Moore, 356. iii. 42. And see Stothert v. Opod-
(b) 8 Bam.& Cressw. 556; S. C. fellow, 1 Nev.&Man.202, 204,(tf).
268
1889.
MiDDLETON V.
Meltov.
CASES IN THE KING S BENCH,
entries in the public book did not shew that Squire had received any money which he had not paid over. Entries made by a principal, privately and gratuitously, for his own convenience, may be evidence against himself, but cannot be received to charge his surety. They are not the best evidence; and the best evidence must be adduced in order to charge a surety. An express admission by a principal is not, in his life-time, sufficient to charge a surety; Cutler V. New/in {a\ In Goss v. WailiNgion{b), the entries were held admissible upon the ground that the book in which they were made was a public book, and one which it was the duty of the principal to keep and make entries in. In Ifhitnash v. George {c), the entries were admitted, not altogether as entries made by the principal against his own interest, but because they were made in accounts which it was his duty to keep, and which the surety had contracted he should keep faithfully ((/). In the case of a guarantee, it has been held, that on a guarantee to pay for goods sold and delivered to a third person, the admission of such third person that he has received the goods, is not evidence to charge the guaranteeing party; the delivery of the goods must be proved; Evans v. Beattie{e). There seems to be no case in which it has been held that the mere admission of a principal is evidence to charge a surety even after the death of the principal. The book in this case was a mere copy of the duplicate assessment; and the only evidence to charge the defendant consisted of certain ticks made by Squire in that book. That was extremely loose and uncertain evi* dence, such as it would be highly dangerous to act upon. The ticks by no means certainly indicated that the sums to which they were annexed had been paid; they may have been made by Squire as indicating only that he expected that such sums would be paid; they may even have been made
(a) MannifiG^'s Digest, Sded. 137.
(b) 3 Bro.&Bingh. 139; 6 B. Mcx>re, 355.
(c) 8 B. & C. 556 ; ante, iii. 42.
(rf) See 2 Stark. Ev. 777.
(e) 5 Esp. N. P. C. 26. And see Bacon v. Chetmy, 1 Stark. N. P. C. 192.
MICHAELMAS TERM, X GEO. IV.
to indicate that such sums were in arrear, and required collectioo.
Secondly, the receipts were not admissible in evidence against the defendant. They were not sufficiently explained to render them admissible as evidence at all. It did not appear whence they came. The parties who made the payments ought to have been called as witnesses to prove the fact. That was the best evidence; and no supposed inconvenience can control the rule of law which requires its production. Besides, the bond in this case was given in conformity with the provisions of an act of parliament. Now, if the commissioners had done their duty under that act, (as the surety had a right to presume they had,) no de- fault could have been made by Squire: for they are required to call the collectors before them, and to examine them upon oath as to the moneys collected by them. If that course had been pursued, no difficulty could have arisen.
269
1829.
MiDDLETON V.
Melton.
Bayley, J. — The question in this case is, whether the contents of a private book, kept by a collector of taxes, (being entries whereby he purports to acknowledge the receipt, in bis character of collector, of certain sums of money,) can be received in evidence against a surety, the collector having been appointed to collect the taxes men- tioned in the bond executed by him as principal, and by the defendant as surety, pursuant to the provisions of an act of parliament. Squire, the deceased, was the collector, and after his death the book in question was found by his daughter, and was by her delivered to the defendant. There was, therefore, evidence to shew that the book when last seen was in the defendant's possession, and he having failed to produce it at the trial, after notice so to do, secondary evidence of its contents was admissible, if the book itself would have been so. It was proved that Squire was in the habit of collecting the taxes by this private book, and of marking with ticks the sums which he received, and that these ticks were used by him to denote that he had
270 CASES IX THE KIXg's BENCH,
1889. receiTed those snms*. There v/as also a questioB whether ^/^^"^^^ certain receipts were admissible in evidence; but as ibc
MiDOLETON ... . .
V. entries in the book, if they were admissible to shew that
JMeltok. Squire had received those sums, will be sufficient to entitle the plaintiff to retain the verdict for the full amoant, that second question will not necessarily arise. It was coo- tended on the part of the defendant, tliat the entries in the book were not receivable in evidence against him, upon the ground that it was a private book which it was not the duty of Squire in his character of collector to keep, and which he kept merely for private purposes ; and it was said that the decisions in Go$s v. WaiHftgioH {a) and WhitwnK V. George {b), proceeded on the ground that the entries in those cases were in books which it was the duty of the principal, by the very terms of the bond, to keep, and to keep faithfully. The principle laid down in those cases was quite sufficient to support the decisions. But as the book in which the entries in the present case were made, was one which the collector was not, as such, bound to keep, it becomes necessary to inquire whether the rule established in those cases may. not safely and properly be further extended; and whether the entries made in this pri- vate book may not be evidence against this defendant, con- sidering him as a stranger, and without reference to his cha- racter of surety, in respect of which he may be identified in interest with his principal: and the question then will be, whether such entries, made by an individual against his own interest, may not be evidence, against a third person, of the fact of the receipt of the money. Now, it is a general and well-established rule of evidence, that decla^ rations or statements of deceased persons are admissible where they appear to have been made against their own interest. Thus, an entry in a book, by which the person making it charges himself with the receipt of money on account of a third person, or acknowledges the payment of
(a) 3 Bro. & Bingh. 1S2, and 6 B. Moore, 355.
(b) Ante, iii. 42; 8 B. & C. 556.
MICHAELMAS TER&l, X GEO. IV.
mtmy doe to himaelf, haa been held good evidence of the
receipt or payment of such money. The case of Warren
i»GrtamUe(ja) is an early authority upon this subject, and
does not appear to have been considered in the case of
Go» V. Wailington (ft). There, upon a trial at bar in 1740,
the lessor of the plaintiff claimed under an old entail in a
frfflilj settlement^ by which part of the estate appeared to
be in jointure to a vridovr at the time when her son suffered
acommoo recovery* which was in 1699; aad the defendants
sot being able to shew a surrender of the mother's estate
for life, it was insisted that there vras no tenant of the
precipe for that part« and that the remainder, under which
tbe lessor claimed, was not barred. Oa the other hand it
was said, that at that distance of time a surrender should
be presumed ; and to fortify this presumption, the defend*
tot offered to produce the debt-book of Mr. Edward*^ an
attoroey, long since deceased, in wbich there was a charge of
S^L for suffering the recovery; two articles of which were,
for drawing a surrender of the nM>tber's interest 20s.»and for
engrossing two parts thereof 20f. more; and it appeared
by the book that the bill had been paid. ** And this being
objected to as improper evidence, the Court was of opinion
to allow it, for it was a circumstance material upon the
in4uiry into the reasonableness of presuming a surrender^
and could not be suspected to be done for this purpose; that
if Edufards was living, he might undoubtedly be examined
to it, and this was now the next best evidence. And it was
accordingly read." Now tbe principle upon which that
case was decided was, that, upon looking at the deceased
allomey's book, it appeared that he had made a charge for
the surrender, and acknowledged that he had been paid the
charged (c). So it was held in the case of Stead v.
<«) 2 Stn. 1 199; infrd, 972. and the Court said that they would
(6) S Bro. & Bingh. 132, and 6 have presumed a surrender after
B^ Moore, S55. such a length of time, without this
(c) Bat this was forty years additional evidence. In Gifodiiile
^fter tbe time of the surrender, v. The Duke of Chanehs, 9 Burr.
272 CASES IN THE KING's BENCH,
1829. Healon (a), that an entry in the parish books, made by the , '^'^^''^^*^ officers of one township, of the receipt of a proportion of the
MiDDLETON ^, ^ ,«. .., ,.
V, church-rates from the officers of another township, was evi-
Melton, dence to charge the latter with the payment of the same sums in future, and that the title at the head of the page, stating the customary proportion to be so paid, was also evidence : and it was there said by Ashhurst, J., that the last entry of the payment by the officers was clearly admissible, because the officers thereby charged themselves with the receipt. In Barry v. Bebbington (b) the right to the soil was in issue, and the plaintiff, who derived title under Lord Bar^ rymofCf offered in evidence several items contained in a book, in the handwriting of one Ashley, who had many years before been steward to Lord Barrymore, and who was then dead. The items were memoranda of receipts of money by Ashley from different persons by name, but whose situations were not mentioned, for trespasses com- mitted on the common in question, paid on account of Lord Barrymore. The evidence was rejected ; and a rule for a new trial was obtained on the authority of Warren v. GreenvUle{c), upon the ground that the evidence was im- properly rejected; and that rule was afterwards made absolute. And Lord Kenyan there said, '' It is clear that where a steward charges himself with the receipt of money, it shall be received in evidence before a jury, to shew that such sum was received by him." In Higham v. Ridg- way{d) it was held, that an entry made by a roan-midwife in his book, of having delivered a woman of a child on a particular day, referring to his ledger in which he had made a charge for his attendance, which was marked as paid, was evidence upon the trial of an issue as to the age of such child at the time of his afterwards suffering a common
1079, Lord Mansfield says, that presume a conditional surrender,
the Court did not rely upon the 1 Stark. Ev. Sd ed. 31S, (6). entry ; but he also states, from his (a) 4 T. R. 669.
own note, that the Court said, (b) 4 T. R. 514.
that after forty years they would, (c) 9 Str. 1199.
without any other circumstances, (</) 10 East, 109.
MICHAELMAS TERM, X GEO. IV.
recover^^ (a). These cases establish, as a general principle^ that where a person makes an entry charging himself with the receipt of a sum of money, that entry is evidence of the fact of the receipt of that money against a third person. The question as to the receipts then becomes immaterial. Bat if the entries in the book are admissible in evidence, because the ticks annexed to them denote that the collector had received the money, the receipts signed by him must, apoD the same principle, be evidence of the fact of the receipt of the money by him. For these reasons I am of opinioQ that all the documents objected to in this case were properly, received in evidence, and, consequently, that this rule must be discharged.
273
1829.
MlDDLCTOir
Meltov.
LiTTLEDALE, J. — I am of the same opinion. For some time I entertained considerable doubt whether entries made in a private book, kept by an individual for his own coDveoience, could be evidence against a third person. In Goii V. Watlington {b) the books in which the entries were, made by the deceased collector were public books, delivered to him by his predecessor in office ; and in Whitnash v. George (c), the book in which the entry was made was one which the principal was bound to keep in performance of the very duty for which the surety had become bound. The rule established by those cases is a limited one, and I have felt some doubts as to the propriety of extending it to a case like the present. If, however, a private book ought, for this purpose, to be regarded in the same light as a pub- lic book» these . entries were receivable in evidence. The
(«) But the evidence seems to htve been received in that case principally upon the ground that the entiy was made, of a fact with- lA the peculiar knowledge of the V^'^Jf against bis interest; and LeBhnCyJ.^ seems to have found-
ed his assent, partly at least, on the particular nature of the fact, as being matter of pedigree. 1 Stark. £v. 319.
(b) 3 Bro. & Bingh. 132.
(c) 8 Bam. & Cressw. 656; antCt ^1* iii< 42.
CASES IN THE KING S BENCH,
receipts, which were entries made on separate pieces of paper, would also be receivable upon the same principle ; V, because the book is nothing more than piecea of paper put
Meltok. together. The cases referred to by my brother Bayly certainly establish this general principle, that where an individual, having peculiar means of knowing a fact, makes a declaration, verbal or written, of that fact, it being against his interest at the time, it is evidence of the fact, as between third persons, after his death. Those cases, however, are distinguishable from the present. There, the entries coa- stituted all that the party making them intended to do. Here, the party evidently intended to make further entries in the public book; so that his acts were incomplete. Still, looking to the principle established by the several cases which have been referred to, I think the entries made in this private book were receivable in evidence; and if they were receivable as acknowledgments of the receipt of money, for which the party making them would otherwise have a claim, it follows that the receipts themselves must equally be receivable upon the same principle.
Parkb, J. — I am also of the same opinion. Secondary evidence of the contents of the private book was properly received, the defendant, who had the possession of it, not producing it after notice. Then the question is, whether the book itself, if produced, would have been receivable in evidence-— that is, wliether entries made in a private book, acknowledging that the party making them had received certain sums of money, are, after his death, admissible evi- dence against third persons, to prove the fact of the receipt of the money. The general rule undoubtedly is, that facts must be proved by testimony on oath. But there is an exception necessarily engrafted on that rule, within which the present case falls, namely, that an admission of a fact made by a deceased person against his own interest, is evi- dence of that fact as between third persons. Upon that
MICHAELMAS TERM, X GEO. IV.
ground entries made by receivers, stewards, and agents of varioos kinds, charging themselves with the receipt of money, have been held good evidence, after their death, to prove the fact of the receipt of such money,— without refer- ence to the particular character of the person making the entries. Thus, in Warren v, Greenville {a) the person making the entry was an attorney ; in Manning v. Lech-- mere{b), a baiiiiF; m Higluim v. Ridgway{c), a surgeon. In Haddow v. Parry (d), where a bill of lading had been signed by a master of a vessel, since deceased, for goods to be delivered to a consignee or his assigns, on his paying freight, the document was held to be evidence to shew that the consignee had an insurable interest in thet goods (e). Having then established that such admissions are evidence d the fects admitted, it can make no difference that the same facts might have been proved by other means, as, for mstance, by a living witness; and accordingly there are cases in which the admissions of deceased persons have been received, though the testimony of living persons might have been given. Thus, in Barry v. Bebbington (/), which wu tried in 1791> one of. the entries was of the receipt of a sum of money so recently before as 1 785. The fact of that payment, therefore, could doubtless have been proved by the person who paid the money, and yet it was held that the entry made by the deceased steward, charging himself with the receipt of the money, was evidence of the
275
1829.
MiDDLETON
Melton.
(a) 2 Str. 1129.
(() 1 Atk. 453. It was held in that case that old rentals, by ivhich bailiflb bad acknowledged the re- ceipt of moneys, were evidence of the pajment of such rents, and of ihit n^t to receive them, if the bmUff or recover were dead.
{e) 10 East, 109.
{€) 3 TaonL SOS.
(e) ** But if, in such case, the should guard his acknow-
ledgment by saying — 'contents unknown/ so that he does not charge himself with the receipt of any goods in particular, the bill of lading, it is said, would not be evidence either of the quantity of the goods, or of property in the consignee." 1 Stark. £v. 309, 2d ed. referring to an observation of Lawrence, J., 3 Taunt. 305. Tamen qiutre as to the latter position. (/) 4 T. R. 514.
T 4
276
1829.
MiDDLKTON V.
Melton.
CASES IN THE KING S BENCH,
fact of such receipt, without calling the person who paid it. Upon the same principle, the entries made in thi» case by the deceased collector were evidence of the fact of the receipt of the several sums of money, without calling the persons who paid them. In Goss v. IVatUng' ton (a) and Whitnazh v. George (6), the ground upon whicb the entries were held admissible undoubtedly was, that they were made in a book which it was the duty of the principal to keep, and for the performance of which duty the surety was responsible. But it seems to me that those decisions may be supported on the more general principle, that an entry made by an individual cognizant of the fact, and having no interest to make a false entry, whereby he charges himself with the receipt of money, is evidence of the fact of the receipt of such money. It is unnecessary to consider the question as to the receipts, because the entries in the book being admissible, they are sufficient to entitle the plaintiff to the full amount of damages which he has recovered. But I cannot help thinking that they were admissible ; and I doubt the propriety of that part of the decision in the case of Goss v. Watlington (a), by which the receipts of the deceased collector were held inadmis- sible.
Rule discharged (r).
(a) 3 Bro. & Oiugli. 132; 6 B. Moore, S55.
(6) 8 Barn. & Cressw. 550; ante, vol. iii. 42.
(c) And see Bullen v. Michel, 2 Price, 399, 413 ; Rawe v. Bren- ion, (fii'ih day) ante, vol. iii. 268; H^le V. Maggie, 1 Jacob & Walk.
234 ; Short v. Lee, 3 Jac.& Walk. 489 ; Doe d. Gallup v. VawUs, 1 Udood. & Rob. 261; Spires r. Morris, 9 Biogh. 687, and 3 Moore & Scolt, 124; Flaxton v. Dare, ante, 1, and 10 Bam. & Crc;ssw. 17 ; Wright v. Doe d. Taiham, 3 Nev. & Man. 268.
MICHAELMAS TERM, X GEO. IV.
271
1829.
fl£Y5HAM, Esq. V. JoHN FoHSTER| the Treasurer of the Commissioners appointed for putting in execution a cer- tain Act of Parliament, passed in the Forty-fourth Year oftbe Reign of his late Majesty King Geo. 3, intituled, *^ An Act for Lighting the Streets, Lanes, and other public Passages and Places, within the City of Carlisle, in the County of Cumberland, and the Suburbs of the said City, for Paving the Footpaths of the Streets of the said City and Suburbs, and for otherwise Improving the said City." (a)
The declaration stated, that a messuage, situated in a A local pRTing
certain street, called Watergates Lane, on the south side of coramission-
ere, at a meet- happen that there shall be no ad- ipS'?*'*^*"*'^
(a) B; this act, sect. 1, certain <0(DiDJ&sioners are appointed.
By sect. 4, " The said commis- siooers, or any five or more of them, shall meet together in the Guild- kail of the said city, or at »uch other place within the said city as the; shall appoint for that purpose, 00 the 26th day of June, 1804, between the hours of ten and twelve oftbe dock in the forenoon of the same day, and shall then proceed to pot this act in execution, and tbsH and may then, and from time to time afterwards, adjourn themselves to and meet at the place aforeaaid, or at any other convenient place within the said city of Carlisle, as they or any five ormore of them shall appoint; and if it shall happen that there shall not appear at any »uch meeting a sufl&csent number of the said com- fflissionera to act or to adjourn to another day, or in case the com- missioiiers so assembled shall omit Of neglect to adjourn themselves, er in case it shall hy any means
. ; " " „ for that pur joumment made, or if there shall '^^^^ ^^ order
be any special occasion for any footpaths to
meeting, between the time of any be raised &c.,
meeting or any adjournment there- ^, directs
r • .u *• .u J that the en-
of, or at any other time, then and • • ^^^
in any of the said cases, any three commissioners
or more of the said commissioners, books may be
or their clerk, shall and may ap- '^■d in evi-
point a meeting to be holden at ^*"^®: ;^" , , ... entry >" the
the place where the last meeting |j„oj[j statine
was appointed to have been held, that such an or at some other convenient place order was within the said city of Carlisle, or ™^^® *' * the suburbs thereof, as they or he ^^p,JJIfjc no- shall think proper, between the ^ice, does not hours of ten in the forenoon and prove that the four in the afternoon of such day |?®,®'*J°S r** on which such meeting shall be g"iioi^Ri. called, notice thereof being given \^ ^^e order, as hereinafter mentioned ; and It should ap- that at all meetings to be held in pea»* by the pursuance of this act, the said ejitry, or be '^ . „ jj r shewn auund^,
commissioners shall pay and defray ^i^^^ notice
their own charges and expenses.^ was given of By sect. 5, " Previously to any the purpae
meeting of the said commissioners, for which the , , ,j . r.i_- meeting was
to be held in pursuance of this act, r,a\\»^
278
1829.
CAS£S IN THE KINO S BENCH*
the said street, in the parish of St. Cuthbert, Carlisle, in the county of Cumberland, was in the possession and oc- cupation of Isaac Bell, as tenant thereof to the plaintiff, the reversion thereof then and still belonging to plaindff,
subseqaent to snch 6rst meeting as aforesaid, notice tliereof in writing, signed by the clerk to the said commissioners, of the time and place of every such meeting, shall be affixed on the Market Cross of the said city of Carlisle, and upon such other places or buildings as the said commissioners shall from time to time direct or appoint, at least three days before every such meeting.*'
By sect. 6, " No act, order or proceeding of the said commission* ers, shall be valid, unless made or done at some meeting to be held in pursuance of tliis act.*'
By sect. 8, " Fair and regular entries shall be made in a book, to be provided for that purpoee,of all the acts, orders, and proceedings of the said commissioners, relative to the execution of this act, and of the names of the commissioners who shall be present at the respec- tive meetings; and one or more of the said commissioners, who shall be present at such meeting, or their clerk, shall always subscribe bis or their name or names at the end of the proceedings of the respective meetings; and all such entries, be- ing so signed, shall be deemed ori- ginals, and shall be allowed to be read in evidence in all causes, suits, and actions, to u ching any thing done in pursuance of this act, and that such book shall at any of the meetings of the said commis- sioners, and ai all other reasonable times, be open to the inspection of
the said commissionert, and of all persons rated or assessed for the purposes of this act.**
By sect. 55, " The said commis- sioners shall and may from time to time, and at all times, after the passing of this act, direct and or- der the present or future pavements of the footpaths of such of the streets and lanes within the said city of Carlisle, aud the suburbs thereof, (except the footpaths within the abbey of the said city, and the precincts thereof) as the said com- missioners, at any meeting or meet* ings to be called for that purpose, shall think proper, to be taken up, nnd the said footpaths to be raised, lowered, altered, and repaired, or new paved, or to be laid with flaf: or paving stones, as to them shall seem fit; and the persons to be appointed by them, for the purpose aforeswd, shall and have hereby full power and authority to do and perform the same; and if any person shall at any time wilfully obstruct, hinder, or molest any sur- veyor or other officer or person whatsoever, employed by virtue of this act, in the performance or ex- ecution of his duty or work, every person so offending shall for every such ofience forfeit any sum not exceeding SO^ nor less thao SLi provided always, that the breadth of the flagged or broad pavements to be laid on any of the said foot- paths shall not exceed in any oo9 place seven feet.** (Local and per- sonal acts, cap. Iviii.)
MICHAELMAS TERM, X GEO. IV. 279
vhicfa messuage then fronted and doth front the said street, i8^9. and had sod of right ought to have a door and passage from the groDod floor thereof into the said street. Yet defend- lotvell knowing Su:., but contriving and intending to injure plaintiff in his reversionary estate and interest of and in the aid messuage, whilst the same was so in the possession and occapation of Bell, as tenant thereof to plaintiff, and whilst plaintiff was so interested as aforesaid, to wit, on 28th Maj, J828, and on divers &c., wrongfully and unjustly, without the licence and against the will of plaintiff, raised, aod caused to be raised, a certain footpath in and upon tbe said street, on the south side thereof, of great breadth, U> wit, of &c., and before and in front of the said messuage, ad extending along the whole front of the same, by placing aod laying divers great quantities of earth &c. in and upon the said street, to a much greater height than the said street, or the soil and pavement thereof, on the south side thereof, before were raised, and to the height of one foot higher than the level of the ground floor of the said messuage or dwelling-bonse, and so near and so close to and against the mi front of the said messuage or dwelling-house, towards the said, street, that the aforesaid door and passage of the iiid messuage or dwelling-house, from the ground floor thereof into the said street, became and was and still is greatly blocked up and obstructed, so that the said tenant and occupier of the said messuage or dwelling-house could not pass through or go out of the same door and passage thereof into the said street, nor from thence back again into the said messuage or dwelling-house, in so free, easy, and beneficial a manner as he might and would otherwise have done, and still of right ought to do, but was and still is ob- structed, hindered and prevented, by the means aforesaid, from so doing. By means of which said several premises he the said plaintiff hath been and is greatly prejudiced, in- jured, and aggrieved, in his reversionary estate and interest of and in the said messuage or dwelling-house, with the appurtenances, so in the possession and occupation of the
280 CASES IK THE king's BENCH,
1899* said Isaac Bell, as tenaot thereof to the said plaintiff as aforesaid, to wit, at &c. Second count, for wrongfully continuing a raised footpath theretofore wrongfully placed and raised in the said street. Third count, as the second, but in respect of a house occupied by another tenant. Plea : not guilty. At the trial before Hullock, B., at the last spring assizes, the injury stated in the declaration was proved, and the book of proceedings kept by the commis- sioners, which is made evidence by the statute, being called for by the plaintiff's counsel, was produced by Vfilloughbyy the present clerk of the commissioners ; from which it ap- peared that on the Sd of March, 1828, an order had been made by them for flagging the footpath in question. Hie following is a copy of the entry: — " City of Carlisle, to wit. At a meeting of the commissioners, for putting into execu- tion an act of parliament intituled ^ An act for lighting the streets Sec.,' held by public notice at the Town-hall, on Monday, the Sd day of March, 1828: Ordered, that the footpath leading from the top of Watergates Lane be flagged, to join the raised pavement made, by Mr. John Brown, and also that the footpath be flagged from the top of Watergates Lane to the top of the brow. (Signed) James Bowstead, clerk." On the part of the plaintiff it was urged, on the 5th section, that the commissioners had no jurisdiction affecting footpaths, except at a meeting called for that purpose, which ought to have appeared on the face of the book. The learned judge was of opinion that the objection could not be sustained, inasmuch as the 4th section, which requires notice, is general, — and that as the beading of the proceedings stated the meeting to have been held iy public notice, at the Town-hall, he was bound to presume that notice had been given in the form required by the act, and that if a special notice of the object of the meeting were necessary, he would presume that such a no- tice had been given. He therefore nonsuited the plaintiff, giving him leave to move to enter a verdict with nominal
MICHAELMAS TERM^ X GEO. IV.
In Easter term last, £. H. Alderson obtained a rule nisi for a new trial, or for entering a verdict for the plaintiff, upon three grounds ; first, that the meeting at >vhich the order was made was not a legal meeting; secondly, that the no- tice for convening the meeting should have specified the object for which it was to be held ; thirdly, that the order was not for ra'ning^ but for flagging the footpath.
281
1829.
Patteson shewed cause. The only question is, whether the order was made at a legal meeting, so as to give the commissioners jurisdiction, for if the act complained of was within the scope of their authority, no action lies for the consequential damage; Sutton v. Clarke {a). Governors and Company of the British Plate Glass Manufactory v. Mere- dith{b). By the 4th section, if the commissioners do not adjouro themselves, no subsequent meeting is to be held withoat notice, which must be given in the form prescribed by the 5tb sectiod. It was contended, that under the 55th sectioD, it was necessary to state in the notice that the ob- ject of the meeting was an alteration of the pavement ; and it was said that there was no proof of any notice; but it is snboiitted that it lay on the plaintiff to prove the negative. The declaration states that the defendant, contriving to in- jure the plaintiff, raised a footpath in the street, whereby the plaintiff's interest in the house was injured. The action is brought against the treasurer of the commissioners in that capacity, which mode of proceeding assumes that the act complained of was done by the commissioners in pur* mance of their authority, for if that were not so, the action should have been brought against the party who did the act. In Williams v. The East India Company (c), it was held.
(a) 6 Taant. 29; 1 Marsh. 429.
(4) 4 T. R. 794.
(c) 3 East, 192. And see At- kiun y. Hunter, 2 Lutw. 1359; 12 Vio. Abr. Evidence, (S. b.) 3; ^^ionby V. Tomenon, Sir T. Rayro. 400; Fotocl V. MUhunk, 2 W. Bla.
851, 853, and 3 Wils. 355, 366; Eefv. r.Rtfgerf, SCaropb. 654; Smith V. Htaoit, 1 Phillimore, 387 ; Calder v. Rutherford, 3 Bred. & Bingh. 309, and 7 B. Moore, 158; Morris v. Hvnty 1 Chitt. R. 453 ; Doe d. Jame$ v. Price^ on/e,i. 683.
282 CASES IN THE KING's BENCH,
18S9. that where the omitting to do a particular act would be cri- minal, the proof lies upon the party asserting such omission. [Bayley, J. Putting the oil of fitriol on board without no- tice, would clearly be criminal.'] So here, it would be a wrongful act to make the order in question, if not made at a legal meeting. In Williams v. The East India Com^ panjff Lord Ellenborough says that the rule of law is, that where any act is required to be done on the one part, so that the party neglecting it would be guilty of a crimi- nal neglect of duty in not having done it, the law frt- sumes the affirmative, and throws the burden of proving the contrary, — that is, in such case, of proving a negative,— on the other side. [ Bayley, J. A criminal neglect of duty.] The cases cited by Lord JEUenborough are not of so cri* minal a nature as the act of putting oil of vitriol on board without notice, which might have endangered the lives of every person in the ship. Monke v. Butler (a) was a suit for tithes in the Spiritual Court, in which the defendant pleaded that the plaintiff had not read the 39 articles, and the Court put the defendant to prove that he had not done it. [Bayley, J. There the rector was in possession, and unless the possession be shewn to be illegal, it will be pre- sumed to be legal.] Lord Ellenhoraugh also refers to Lord Halifax^ $ ca8e{b), where, upon an information against Lord Halifax for refusing to deliver up the rolls of the auditor of the Exchequer, the Court of Exchequer put the plaintiff upon proving the negative, viz. that he did not deliver them, for a person shall be presumed duly to execute bis office until the contrary appears; and to Rex ▼. Coombs{c)i where the defendant having sworn an affirmative, and an information having been exhibited 'against him, tbe Court directed that the prosecutors should first give their pro- bable evidence of the negative, and that the defendant should afterwards prove the affirmative if he could ; and to Gilbert's Law of Evidence ^ in which it is said(<f)y that
(a) 1 Roll. Rep. 83. (c) Coraberb. 57.
(h) 13 ViD. Abr. Evidence, 209, (i) Page 148. And see Rex v.
(S. b) 3, and Bull. N. P. 298. Leake, 2 Nev. & Mann. 583.
MICHAELMAS T£RM» XGEO. IV. 283
when the law supposes the matter contained in the issue, 1829. (ben the opposite party, that is, the party who contends for t&e contrary of what the law supposes, must be put unto proof of it by a negative. Here, in order to prove that the commissioners did this wrongful act, the plaintiff, not coDteot with shewing that the pavement was raised by the order of the commissioners, put in their books, which are made evidence by the 8th section, and which contained the order in question. This evidence, thus produced by the plaintiff himself, proved that proper notice had been given. Iq answer to the first objection, therefore, the defendant says, that the plaintiff was bound to prove the negative ; and he further says, that the evidence produced by the plaintiff himself did, in fact, prove that affirmative, which he contends the defendant was bound to establish. But the statute requires a general, not a special, notice. It does not say that the commissioners shall be convened by a notice specifying the object of the meeting. The person who drew this act was aware of the form necessary to be osed when a special notice was to be required ; for in the 7th section such a notice is directed to be given, and no similar direction being in the 55th section, no special notice is required. The legislature did not mean that the notice under that section should mention the occasion of the meeting. This brings us back to the question, whether a general notice was given. The meeting in January broke vp without adjourning. A subsequent meeting was held on the 4th of February, at which time an adjournment took ;>lace to the 3d of March, when the order was made. No person was called to prove the notice of the meeting of the 4th of February, but it appeared by the books that the meeting held on the 4th of February was adjourned to the 3d of March; that being a meeting by adjournment, it would be questionable whether a notice was necessary. The books put in by the plaintiff state, that the meeting was held by public notice. Bowstead, the clerk, had ab- sconded, so that he could not be called to prove that the
284
1899.
CASES INT THE KIK6 S BENCH,
provisions of the act had been complied with. But the books were evidence of all the circumstances stated in them. In Rex V. Martin (a) the indictment averred, that Best had been appointed treasurer of the parish of Greenwich, and that the management of the poor in Greenwich was regulated by a local act, which provided that notice should be given, in a certain manner therein specified, of a vestry to be held on a certain day for the election of a treasurer. To prove the appointment of Best, there was offered in evidence an entry in the vestry-book, stating that at a vestry duly held in pursuance of notice, Best was appointed treasurer for the year ensuing. Macdonald, C. B. held, that due notice of the holding of the vestry was proved by the recital in the vestry-book. That was a stronger case than the pre- sent, because the Greenwich local act contained no clause to make the books evidence. If the act complained of here had been done without authority, the proper person to be sued would have been the party who did the wrongful act, and not the clerk of the commissioners. The books being put in by the plaintiff, he must take them for better and worse. [Bayley, J. The act was done by a person employed by the commissioners. Parke, J. The commis- sioners are not bound to act personally in the execution of the orders which they make. This is therefore unlike the case of a sheriff, who, being bound by law to act himself, is responsible for the misconduct of the person whom he may choose to employ. Littledale, J. Since the case of the Governor and Company of the British Plate Glass Manufactory v. Meredith, actions have been brought against commissioners for consequential damage, as for not shoring up a wall.] With respect to the third objection/ the order, upon the face of it, imports that the footpath was to be raised. If, therefore, it were open to the plaintiff to take this point, it would not support the action.
(a) 2 Carapb. 100. And see Rex V. Manning, 1 Burr. 377;
Rex V. Mayor^ ^, of Uterpeolf 4 Burr. 3^44, third point.
MICHAELMAS T£RM, X GEO. IV.
DundaSf on the same side. The third point was not Ukeo at the trial. The nonsuit proceeded upon the over- niliog of the first two objections. With respect to the first pointy it was admitted that the meeting would have been good if notice had been duly given. Upon the se- cood point, the learned judge thought that it would have been better if a notice had been given signifying the object of the meeting, in order that the attention of persons in- terested might be drawn to it ; but he said, that whether the notice should have been special or not, the entry on the book was evidence that a proper notice had been giveo. Graham J the inspector, is not dead, and might luve been called.
285
1829.
Courtenay, contr^. The plaintiff's house was injured by the raising of the pavement. This was not an action of trespass for entering and flagging the plaintiff's land, but case for the injury to the. reversion. The 77th section of the act is that under which the defendant must justify.
The plaintiff's first point is, that by the 6th section it was necessary to shew that the meeting was held in pursu^ ance of the act. The 4th section regulates the meeting. The book is made evidence of what it contains, that is, of acts done, but it is denied that it is evidence of all that is there stated. But supposing the book to be evidence of every thing that appears on the face of it, it does not prove that the forms required by the act have been complied with; it only proves that a public notice had been given. If a witness had been called, and had said that a public notice had been given, that would have been insufficient, for such a notice may have been given by sending a bellman about the streets. Rex v. Martin is very distinguishable. There the entry was, " at a vestry duly holden pursuant to notice."
Then the order is not for the raising of the footpath, which is the specific injury of which the plaintiff com- plains. The flagging alone would have occasioned no in- jury. If the case had been within the act, the plaintiff
286
1889.
CASES IN THE KINO'S BENCH,
would have had no right of action, his remedy would have been by appeal within six months ; but he sees an order for flaggings and does not suppose that any appeal was neces- sary. [ParktfJ. That would have been a very good argu- ment if the action had been brought against the party who did the act.] The commissioners forbade us to interfere. [Parke^J^ That is, certain individuals took upon them- selves to forbid you. That might give you a remedy as against them.] If the plaintiff had indicted the parties for what they have done, he must have shown them guilty of criminal negligence. But here, the plaintiff is in possession, and it lies upon the party who intermeddles with that pos- session to prove his right so to do. [Parke^ J. It does not appear that any person had a right to be present except the commissioners ; but that does not remove the plaintiff from his argument, because if he had had notice of the object of the meeting, he might have petitioned, and he may have been lulled into security by the entry in the book.]
£. H, Alderson, on the same side. Public notice is necessary after an adjournment. Taking the whole toge- ther, it does not appear that due notice was given. [Bay- letf, J. Did you produce any evidence that notice had not been given ? Parke, J. In Rex v. Haslingjield{a) the rule is stated to be (b), " that where a person is required to do an act, the not doing of which would make him guilty of a criminal neglect of duty, it shall be intended that he has duly performed it, unless the contrary be shewn." Would it not be '' a criminal neglect of duty" to hold a meeting without due notice in this case, just as much as in the case of commissioners of inclosure in Rex v. HaslingfieldT]
Armstrong, on the same side. Here, an act injurious to the plaintiff, is done under the order of the commission- ers. The defendant was therefore bound to shew clearly that the commissioners were justified in making the order.
Cur. adv. vult» (a) 2 Maule & Sel. 558. {b) Ibid. 561.
MICHAELMAS TERM, X GEO. IV,
On a subsequent day the judgment of the Court was proDoanced by
BayleTi J. in favour of the plaintiff, on the ground, tbat as the act required a special notice to be given, and the eutry in the book was in the form usual in the case of a mere common notice^ a doubt was raised whether the com- musiooers had done their duty by giving the proper notice, — Old that the defendant was therefore bound to prove that tbej had done so.
Rule absolute to enter a verdict for the plaintiff.
287
1899.
Price v. Isaac Edmunds.
Assumpsit, by payee against maker of two promissory ^„'jP^"^^P^l;
notes for 150/. each, payable at three and four months from gnve their pro-
ibe 3rd July, 1827, tried before Park, J., at the Gloucester "o 'a'^C.'iues
city spring assizes, 1829. The note produced purported to ^n ""^ ^fi^*:^
be the joint note of the defendant and Abraham Edmunds, payable by in-
Thc defendant had siirned the note as a surety for his bro- Jtalments, the r« • •«• • J » » first instalment
ther Abraham. The plamtiff havmg sued Abraham, had, to be paid on
on 28th March, 1828, just before the assizes, accepted a Ihattif ^itlT
cognovit from him, payable by three instalments ; 70/. on C. might have
the twenty-eighth of April, 70/. on the twenty-eighth of jjj^lment'in
May, and the residue on the twenty-eighth of June, with the action if
liberty to issue execution for the whole in case of default, had been gi-
Had no coirnovit been taken, and the plaintiff had obtained ^^"> ^*^^.
® . power to i3sue
a verdict in that action, he could not, according to the execution for
practice of the Court, have issued execution until the JiebruTcase
of default. A. makes default at the day: Held, that fi. is not discharged (a). Whether JB. would have been discharged if the first instalment had been duly paid, tod (be further instalmeots had thereby stood deferred to a day subsequent to that on whicfa final judgtaDeDt coold have been signed if no cognovit had been given, quare.
(a) 5«2oi<l« port, 292 («).
288 CASES IN THE KING's BENCH,
1829. twenty-ninth of April (a). Defaalt was made in the pay- ment of X}ie first instalment.
Under the direction of the learned judge a verdict was found for the plaintiff, leave being reserved to move to enter a nonsuit. A rule nisi having been obtained.
First point: Campbell now (&) shewed cause. This rule ought to be
o ime given. Jigdjarged on two grounds. First, no time was in fact given by this cognovit. The first instalment was payable on the 28th of April, and if any default was then made, the whole would become due. Now, Easter term, 1828, having begun on Wednesday the 2dd of April, the plaintiff, if he had tried his cause at the assizes, could not have had exe- cution until Monday the 28th, or Tuesday the £9th of April ; and as the condition was not complied with, the parties are in the same situation as if the further extension of time had never been granted. [Littkdale, J. I rather think we must look to the time when the cognovit was given, without reference to what took place afterwards.} The condition was not performed, and therefore no time was given. It is perhaps unnecessary to inquire what the effect would have been if the first instalment had been Second point : paid on the 28th April. But, secondly, supposing time time imniate- ^^^ '^^^^ given, the nature of the contract which this de- ^^^' fendant entered into, by signing the promissory note, was
such as to entitle the plaintiff to give time to the other maker, without discharging the defendant. The ruling of Lord EUenborovgh, in Laxton v. Peat(c), is certainly against this position ; but this case has often been cited, and as often overruled: Ragget v. Axmore{d), Fentum v. Pocock (e). So, in the earlier case of Dingwall v. Dan- st€r(f), it was said by j4slihurst,3; and Buller,J., that
(a) The sixth day of Easter Change, partie 1, chap. 6, No. term. 177, 178.
(b) 13th December, 1899, in the {d) 4 Taunt. 730.
Outer Court. (e) 5 Taunt. 198, and 1 Maiab.
(c) 2 Campb. 185. And see 14.
Pothier, Traits du Contrat de (/) 1 Dough 347.
MICHAELMAS TERM, X GEO. IV.
aotfaing but an express agreement can discharge an ac- ceptor; and in Kerrison v. Cooke (a), Gibb8,C.J., was of opioioD that the acceptor was not discharged by time given to the drawer, for whose accommodation the acceptance had been given. In Anderson v. Clef3ela7id {b). Lord Mamjield said, " The acceptor of a bill, or the maker of a Dote, slwajs remains liable." [LiUkdale, J. No time was given there.] But the proposition that an acceptor is absays liable was laid down without qualification.
289
1899.
Russell, Serjt., and Busby, in support of the rule. Time vas clearly given. With regard to Raggett v. Jocmore, the rule is correctly stated on the other side, provided it be onderstood to refer to the rights of third persons, and not to tnmsactions between the surety and the party who gives the time. It is not necessary here to decide whether an acceptor of an accommodation bill is to be considered as a mere surety, as in Laxton v. Peat{c\ and in Collott v. Ha^h ((/), which is to the same purpose. Fenton v. Po^ cock, if attentively considered, is in favour of the defendant. [By ley y J. Does not the maker of a note, by signing the Histroment, make himself absolutely liable at all events? If you had wished that the defendant should be merely a surety, you should have made the defendant payee of the iiote, and his liability would have been only a collateral liability upon his indorsement Parke, J. Have you any case where the party was allowed to shew that he stands m a different position from that in which he would appear to be on the face of the bill ? Here, you are seeking to shew that the contract expressed in the note is not the real contract between the parties.] If a bill or note be made payable at a certain day, you are not allowed to say that there was an agreement between the parties that the bills shouki be renewed, but you may shew, as between the
(a) 3 Cunpb. 362. (i) 13 East, 430, n. VOL. V.
(c) SuprH, 288, (c).
(d) 3 Campb. S81.
I L
290
1899.
PRICB
Edmunds.
CASES IK THE KINGS BENCH,
immediate parties, that no value was received, thoagh the bill is expressed to be drawn for value. In the case of a bond, it is competent to a co-obligor to shew that the plaintiff was merely a surety. [Bayley, J. The contrary was held in Davey v. Prendergrass (cr). LiUledale, J. In Rees V. Berrington (b), it was held that the surety was eati- tled to relief; but that was in equity.] Garrett v. Jull(c) shews that the Court may look to see who is the principal and who the surety. [^Bayley^ J. That case goes no fur< ther than this, — that if you receive from the principal a smaller sum in lieu of the whole, you cannot sue the surety for the residue, as he might be entitled to say*-I have aright to be put in a situation to sue my principal. So, if you sue one of two partners, and discharge the partus whom you sue.] It must be admitted that if the Court think that the effect of the agreement now set up is to alter the written contract, the defence cannot be supported. [Boylry, J. Suppose a joint liability to exist, as in the case of two part- oers, one of whom obtains time,— >will the other partner be discharged ? Parke, J. Shewing the party to be a surety does not shew that he is discharged from the contract by which he engaged as a principal.] The cases as to the dis- charge of sureties are collected in a note to Maltby ▼. Carstairs {d), Laxion v. Peat (e) is still law. In Ragget ¥• Axmore, it was not made out in evidence that the bill was accepted as an accommodation bill. The cases there- fore are not parallel in two respects: first, the plaintiff there, when he took the bill, was not aware that it was an accommodation bill. Indeed, it did not there appear that the defendant knew it at any time. So, in Fenttm v. Po' cock, the defendant did not know that it was an accoramo- dation bill. In Carstairs v. RoUiston {/), Gibbs, C. J., flays that he would give no opinion upon this point This
(a) 5 B.& A. 187; 9 Chit. 336.
(b) 9 Vesey^ jun. 540.
(c) B. R., M. e2 Geo. 3, Se!w. N. P. 7th cd. 377.
{d) Ante, vol. u 568(a). (0 Supnl,a88(c), S89(c). (/) 5 Taunt. 55t; 1 Marsh. 207.
I
MICHAELMAS T£RM, X GEO. IV.
WIS after the decision of the cases of Ragget v. Axmort aod Fenion v. JPocock, The point may be considered as res iDlegre. [Bayleyj 3. Might not a party be continually sur* prised by evidence to shew that the defendant was merely a surety, and that he had notice of that fact, although in realily no such suretyship ever existed ?] A party may be surprised vrith false evidence in any case. After the giving of this cognovit, the plaintiff could not have received the debt from the surety without a breach of the contract, for iodolgence entered into with the principal. \^Bayley, J. Suppose the surety willing to pay, his right so to do would oot be superseded.] It would be a fraud upon the prin- eipal. [Parke, J. It is entirely a new case.] Every ac- ceptince purports to be an acceptance for value. No person ever thought of accepting a bill, expressing in such acceptance that it was for the accommodation of the drawer: — Yet, in an action by an indorsee against the drawer, it is competent to the former to excuse himself from presentment for payment and notice of dishonour, by sbewiog that the bill was accepted for the accommodation of die payee. Again, an accommodation acceptor may sue the drawer for any damage he may have sustained by rea- son of the bill's not having been taken up, when it became doe, by the drawer. English v. Darley(a), Claridge v. Aa//ofi(6).
Cur. adv. vult.
Batley, J., now (c) delivered the judgment of the Court. — ^The first question in this case is, whether the de- fendant is at liberty to shew that he was only a surety. If l>e is at liberty to do this, then he contends that time was given to the principal, and that he is thereby wholly dis- charged. The first question, namely, whether the defend- wt ia at liberty to deviate from the form of the instrument
(«) 2 Bos. & Pull. 62. (c) 15th Decembor, 1839, in the
W 4 Maole & Selw. 226. Outer Court.
U2
i
V
292
1839.
CASES IN TH£ KING S BENCH,
which he has signed, would render it necessary to decide upon the conflicting cases of Laxton v. Peat^ Garrett v. Ju/l, &c. I reserve to myself full power of considering that point when it shall become necessary. But we are all of opinion that the foundation here fails. It is said that time was given to the principal by the cognovit, the terms of which were to pay 70/. on the ^8th of April, with a pro- viso for giving further time for the payment of the remain- der of the debt, if the 70/. were paid on that day. Time therefore was given, at all events, until the 28th April. Whether any further time should be given depended upon the contingency of the payment of 70/. on that day. The first instalment was not paid. The bargain was, to surcease until the 28th of April. Then we are to consider what was the fair intent of that bargain. The principal debtor bad a right to keep the plaintiff* out of his money until the 29th or the 30th of April. He had pleaded the general issue; the effiect of which was to prevent the plaintiff obtaining finaf judgment until the fifth day of the folio wii^g term. This question has frequently arisen as between principal and bail, though not in the form in which it was here presented to the Court. Here is a defendant, who has a right to postpone {a) the payment till a certain day ; but he says he
Diatinction be- tween time given to the principal debt- or, in cases where the surety is immediately liable, and time given in cases where the liabi- lity of the sure- ty does not arise until the expiration of jucb time.
(a) Where the time given to a defendant, by cognovit or otherwise, does not extend beyond the period at which final judgment could have been signed in case no time bad been given, neither the position of the bail (whose liability cannot attach until final judgment has been signed and a ca. sa. issued,) with respect to the plaintiff, nor that of the defendant cowards the bail, is in the slightest degree altered or affected. Whether a cognovit be given or not, the plaintiff cannot^ by attackiog the bail, set the bail in motion against
the defendant. The case would be the same with respect to aoy other surety, whou liabUUtf did not attach before the day on wkk^ by the terms of the cognovit, tkt plaintiff would be at liberty to pro- ceed against the defendant. But where the default for which the surety is answerable is complete at the time the cognovit is taken, or at any time before the daj to which the payment is postponed, the position of the surety with re- spect to the plaintiff, and of the defendant towards the surety, ap- pears to be altered in the very
^sk f
tlsi;!
•. T.
It:.?
|>. •
t:.'!
MICHAELMAS TERM, X GEO. IV.
will withdraw bis plea if the plaintiff will not put him in a wone situation, but will give him till the 28th of April; He bad a right to indulgence up to that time. It was oolj that which the defendant had a right to insist upon ; a benefit which be possessed and had a right to keep. It was therefore not a giving of time to the principal.
LiTTLEDALE, J. — I am of Opinion that this was not ibat sort of giving of time which will discharge the defend- ant. If, when the note became due, the bolder had en- tered into an absolute engagement to give six or twelve months, the case would have been very different. Here, an action is brought, and there is a proposal of a cognovit. If the time specified in the cognovit for the payment of the money is earlier or the same as that on which the payment woald have otherwise been enforced, it is all right ; for why should the creditor be put to the expense of trial and execution, when he can obtain the same objects without. Here, the principal had shewn his intention of taking that
293
1829.
poiDt which forms the ground of the discharge of the latter, viz. that if the surety were not dis- diarged, it would be competent to the plaintiff to enforce imme- £ate payment from the surety, who would have his remedy over Bgaiosc the defendant before the fogmmit became due, in violation of the terms of that cognovit. <* If a bolder e^ter into an agreement with a prior indorser, in the mom- ioft not to sue him for a certain period of tiQie, and then obliges a subsequent indorsee, in the even- ing, to pay the debt, the latter must (may) iromediateijr resort to the very person for payment, to whom the holder has pledged his iaith that he shall not be sued.** Per Lord Eldon, C. J., in Eng/isA T. Barley, 2 Bos. & Pull. 62.
In the principal case, if the cog- novit given by Abraham Edmunds did not discharge bis brother Isaac, it would have been compe- tent to Pricey the plaintiff, to ar- rest Isaac the hour after the cog- novit was given; and if Isaac paid the money, (which it would be bis duty and interest to do,) it would have been competent to him to arrest Abraham by return of the mail from London ; and Abraham, who had waived his defence to the action in order to purchase his liberty till the 28th April, would find himself in custody on the 30th March, — precisely as if no cogno- vit had been given, and no indulg- ence had been stipulated for as the price of his submission in the action.
294
1899.
CASES IN THK KING S BENCH,
time which the forms of the law would have allowed him to take, whether the plaintiff had assented or not Here time was not given, because the condition was not com* plied with. Though this is not precisely the s^me as the case of bail, we ought not to enter into nice distinctioDS. Bail are not discharged if the same time is given which the principal would otherwise have been entitled to.
Whether, upon an instrument in this form, thie defendant could set up such a defence, is a question of more difficulty and of great importance. Upon this point there is a dif- ference of opinion upon the bench.
Parke, J. — I concur in thinking that the defendant is not discharged, because no time was given. Bail would not be discharged under such circumstances.
Upon the other point there is a difference of opinion in the Court. I have already intimated a strong opinion upon it I think Fenton v. Pocock very good law.
Rule discharged (a).
(a) And tee Bank rf Irdand r, Bererfordy 6 Dow, 854; Dunn v. She, Holt, N. P. C. 399; EUiMon V. DtxeU, Selw. N. P. 7ch ed; 355; EngUih v. Barley^ % Bos. & Pull. 61, 3 Esp. N. P. C. 49, and Bayley on Bills, 159; Ex parte Gifford, 6 Ves. 807 ; Gould V. Robion, 8 East, 576 ; Harriton V. Courtauid, 3 Barn. & Adol. 36; Hewet V. Goodrich, 8 Carr. & Payne, 468; HUl v. Read, DowL k %1. N. P. C. 26; Jay ▼. War- ren, 1 Carr. & Pajne, 532; Lee
V. Levy, 6 DowL <& RyL 475, 4 Barn. & Cressw. 390, 1 Carr. & Payne, 553, 675 ; NtMbei v. SmUk, S Brown, C. C. 570; Orme t. Young, Holt, N. P. C. 84; PAii- pot V. Bryant, 4 Bingh. 717, 1 Moore & Payne, 754, 3 Carr. h Pajrne. 346 ; PUe v. Ford^ S Chit. Rep. 125; Pring ▼. Clarksan, 3 Dowl. & R^rl. 78, and 1 Bam. & Cressw. 14; 7^»£lri/ ▼. Brown, 1 T. R. 167 ; Withali ▼. Masierman, 9 Campb. 179 ; Sievens ▼. I^nch, ibid. 333, and 12 East, 38.
MICHAELMAS TERM, X OSO. IV.
Stannard 17. Harper.
tiSE. The second count charged the defendant with Slanderous
kiviflg slaudered the plaintiff by defamatory words, ad- ]^s"^d^'J2d "^
dressed by the defendant to the plaintiff in the second to the plaintiff
persoo. At the trial before Vaughan, B., at the Suffolk i^ion.Tr"*
spring Maizes, 1829, the words proved were words defama- "<>* supported ,..,.._ , . , . .11 1 ^y evidence of
10701 the plaintiff, used m his presence, but addressed to words spoken
one J. S.,and in which the plaintiff was spoken of in the g^.^'"* '^J^®
tiird person. A Terdicl was found for the plaintiff, the though so
leinied judge giving leave to the defendant to move for p?^|^*"ce^ **"
kive to enter a nonsuit* jP. Kelly having accordingly ob-
iuoedaiule,
Storhf Serjt., now shewed cause. As the plaintiff was ptwii when the defamatory charge was made, the change ^pmon does not vary the sense. There can be no sub- •Untial difference between saying to A. — " You are a ^ef/*and saying to B. of A., in the presence and hearing ofJ."" He 11 a thief/'
Pabke, J. — ^The rule is, that you must prove the pre' ^ words laid in the declaration ; not indeed all the vords which are charged, but so much of them as will constitute a sufficient cause of action.
liiTTLEDALB, J. — No distinction can be made as to vlttther the party, of whom the words are spoken, is pre* Kntor absent. It would be introducing quite a new rule.
Batley, J., concurred.
Rule absolute (<f)«
(•) Contii per Lord Hmrdwkkef have sUted the law of defamatioB
CJ^ at nisi prias, in NeUon v. in the manner in which be is
IHne, Cas. temp. Hardw. 305. there represented to have done.
B«t it Mens to be impossible to And see Cro. £1. 645, 857 ; 3
bctieve that the learned judge can Mod. 72 ; 8 Salk. 601 .
CASES IN TH£ KING S BENCH,
Borough v. Moss, Gent.| one &c.
A debt doe ASSUMPSIT on a promissory note, bearing date I3tb sola, cannot February, 1826, whereby the defendant promised lo pay
be set oflf jQj^n Fearne, by the name of Rachael Feame, or order, against a note ,.,. - t e • ju
given to the \50L, With mterest, at nme months after notice, and by
rii^Vff thT*^ ^^^^ jFeame indorsed to the plaintiff. Plea: non assump- husband elect sit. At the trial before Burrough, J., at the last Derby SJ)te'*M his^se- «P"ng assizes, the following facts appeared: ▼eral property. Rachael Harrison^ the holder of a promissory note for sues upon it in 200/., made by one Birchj having married Feamey Feame
bis own name, requested the defendant to enforce payment from Birch,
Or indorses -.., , ^ , . , V.
it over to a The defendant, as an inducement to Feame not to sue
*5uiS*U?°* ^*''^*' ^^^ ^*' ^^^ client, paid Feame 50/., and made and immaterial delivered to Feame the note in question for 150/. joinVin the ^^ April, 1826. Feame gave notice to the defendant to
indorsement, p^j off the note at the end of nine months, debt could January, 1827. The defendant paid 50/. with the interest
have been set then due.
off man action ...
brought on the March, 1827. Feame and his wife indorsed the note to
busband'and ^^® plaintiff, who paid Feame the amount then remaining
wife, qyare, due for principal and interest.
of an over-due ^^^ defendant gave evidence of two professional bills,
bill or note, is one for 51/., due to him from Rachael Harrison, dum sola, affected by all , , ^ «. i. t^ i • i^.
equities at- aud another for 28/. from Feame himself.
taching to the rpjjg learned judge was of opinion that these sums could
bill or note ; .
but not by a not be set off, and directed the jury to find a verdict for the
^^l have^ plaintiff for 100/. and interest ; but gave the defendant leave
been available to move to reduce the verdict, if the Court should be of
ij^rser.* opinion that either of the bills of costs ought to have been
allowed. A rule nisi having been obtained,
Balguy now showed cause. This note operates, b point of law, as if it had been made payable to Feame only, and his wife had not been noticed; Barlow v. Bishop {a), BufL
(o) 1 East, 432.
MICHAELMAS TERM, X GEO. IV.
M P. 1799 Boehm v. Stirling (fl). At the time when this note was indorsed, there was nothing upon the face of it denotbg that it had been reduced, either by payment or by let-off, beyond the sum of .50/., which the defendant had ptid in January, 1827*
^'. JL Clarke, on the same side. There is no case in iriiich it has been held that the indorsee of a bill or note takes it subject to any right of set-off' which may have ex- isted against the indorser; Charles v. Marsden{b). In Broivn v. Davies (c), the note had been paid ; Boehm y» &tr/tRg is to be taken with reference to a question of fraud; Tinson ▼. Francis {d), was the case of an accommO' dation note. In all the cases in which this defence has pre^ vailed, there has been something to affect the note itself. The latest case is Colknridge v. Farquharson (e). In that case, a bill was indorsed over by a party with whom it had been deposited merely as a security, and the only point de- cided was, that the books of the indorser were inadmissible to shew the state of the accounts between him and the party by whom the bill had been deposited. The question there raised was, not as to the point of law, but as to the mode of proof. The objection would apply to notes payable on demand. [JBayley, J. No, it would be laches to keep a banker's cheque.] No notice of set-off was given. [LtV- tltdale, J. That only applies to actions between the parties.] Coppin V. Craig (/) shews that such a set-off may be pleaded. [Uttledakf J. It may be pleaded, but it would be admis- sible in evidence under the general issue.] Secondly, if the defendant is to be placed in the same situation as if he had pleaded a set-off, he ought to have given some notice of hia intention to set up these cross demands, and not to have taken the plaintiff by surprise.
(«) 7 T. R. 42S. (d) 1 Campb. 19.
(4) 1 TauDL 2^4. («) 1 Stark. N. P. C. 259.
(c) 3 T. R. 80. (/) 7 Taunt. 243; 2 Marsh. 501.
BOROUGB
298 CASES IN TH£ KING's BENCH,
1899. AdamSf Serjt. contri. The statutes of set-oflf may always
be evaded by the holder of a note, if by indorsing it over, ""vr^" after it has become due, a right of action can be transferred Moss. iQ iii^ indorsee discharged of the set-off. Husband and wife may sue jointly on a note given to the wife duriog coverture, Philliskirk v. Pluckwell (a), and if the husband had died first the right of action would have survived to her, and the debt due from her before marriage might have been set off* And if Fearne had sued in his own name, either during the coverture or after his wife's death, the debt due from him might have been set off. If Ftame had brought an action in the joint names during the coverture, the debt due from her before coverture might have been aet off, and also the debt due from him, inasmuch as the money recovered in such joint action would enure to the benefit of the husband.
Baylby, J. — I am of opinion that the defendant has no right of setoff in respect of the 5 1 /. The note being made payable to the wife, it was optional with the busband to treat it as jomt property or as his own exclusively. If be had elected to treat this note as their joint property, a sett- off in respect of the 5lL, due from her before coverture, might perhapa have been let in; but by indorsing the note over, he has elected to treat it as his several property, and die bill of costs due from the wife before coverture cannot be set off. With respect to the 28/., I wish to consider the case further.
LiTTLBDALE, J. — If Ftamt had brought an action on the note in his ovni name only, no debt could have been set off except that due from Fearne himself. And if a joint action had been brought, I do not think it olear that the 51/. could have been set off.
{a) 9 Maule & Selw. 393.
MICHAELMAS TERM, X GEO. IV* 299
Pabke, J. — ^Ao agreement, %q which the holder is a i8f29. partj, affecting the note, creates an equity which attaches itself to the note, and is binding upon any person who takes it after it is over-due. It does not however follow that a right of le^^ would also be available against such an indorsee. If aoj set-off can be claimed, it can only be hi respect of tbe 28/., the husband having 4:learly elected to treat the note as being his own, and not the joint property of himself and wife.
On a subsequent day, Bayley, J. saic^ that upon dis* OisaiDg the pobt as to the 28/., with Lord Teaierden and tbe two other judges, they were all of opinion that the in- dorsee of an over-due bill of exchange or promissory note, was affected by such equities only as attached on the bill or note itself, and not by claims in respect of collateral cir-
Cttmstances (a).
Rule discharged.
(a) QHiere, if tbe indorsee had notice of tbe matter of set-off.
Sertante and others v. James.
Covenant. The first coi^t stated, that by articles a covenant
of agreement, made 30th August, 1815, between defendant q^^^J®/^^"
ol tbe one part, and Elizabeth Servante, £. James, M. Ste- sbip, and tbeir.
phens, T.Brilton, and J.BuU, the plaintiflfe, W. Bakery^^^f^^
71 Read, R. Russell, and W. Slocombe, since deceased, of ecuton &c.,
tbe other part, after reciting that the defendant was com- ^ i^rue^ibr^'
mander of the Lady Hobart, employed in the service of the ^jj? hire of tbe
Postmaster-General, and that the plaintiffs and fV.B., T.R., of goods and
A. K,, and fV. S., were owners of the vessel in the shares ^?^ compensa-
. , tion for tbe
set opposite their names, the defendant, for hamself, his use of tbe
sbtp's tackle &c, to tbe covenantees, tbeir and every of their several and respective executors &c.^ at a certain banking-house, in such parts and proportions as were set against their several and respective names, is a several covenant, and cannnot t>e sued upon by tbr covenaotecsjomtly.
300
1829. Servante
V,
James.
CASES IN THE KING*S BENCH,
executors See, covenanted with the several other persons, who should execute the articles, and their several and re- spective executors &c.» that during so long time as the vessel should be so employed, and he should continue to be commander thereof, he the defendant would pay unto the owners of the vessel| and to their and every of their several and respective executorsi administrators and assigns, the yearly sum of 480/., or such other sum as should be allowed to the owners of the vessel by the Postmaster-General for the time being, for the hire of the vessel, to commence from 25th August then instant, and to be paid to them at See., and In such parts and proportions as were set against their several and respective names, and would pay half- yearly, at 8cc., unto the owners, and to their several and respective executors &c., one-third part of the freight of all coin 8cc., for which freight should be paid, as should be conveyed in the vessel, during so long time as she should be so employed, and he should continue commander. And it was thereby mutually covenanted by and between the parties thereto, that when the vessel should be discharged from such service, or the defendant should die, give up, or quit the vessel, the cables &c. should be appraised by two sets of tradesmen, one set to be chosen by and on the be- half of the defendant, his executors &c., and the other by and on the behalf of the owners, their executors &c., and the difference of value between such appraisement and the original cost of such cables 8cc., or the cost of the like articles, if to be purchased new at the time of such appraise- ment, should be made good to the owners, their executors &c., according to their shares and proportions aforesaid, by the defendant, his executors &c., which difference the de- fendant thereby covenanted to make good and pay accord- ingly, immediately after such appraisement. Averment: that the plaintiffs and the deceased subscribed their names and affixed their seals to the articles in manner following; that is to say, R. J., H. S., W. B., T. B., T. R., R R.^
MICHAELMAS T£RM« X GEO. IV. 30L
ukI J. B.f as respectively being each the owner of one 1899. liiteentb share of the vessel, the said W, S. as the owner of two siiteenth shares, and the said E. S. as the owner of six siiteeoth shares ; that the vessel continued to be em- ployed in such service from 25th August, 1813, to 8th October, 1828, during which time the defendant continued to be commander ; that the Postmaster-General, during all that time, allowed 480/. for hire &c/
Second count, for non-payment of a penalty of 1000/. vpon non^performance of the same covenant Breaches vere assigned in non-payment of the money allowed for liire of the vessel, of one-third part of the money paid for freight of coin &c., and of the difference between ttie valu- ation of the cables &c., when defendant gave up the com- maod, and the original cost.
General demurrer, — and joinder.
Campbellf in support of the demurrer. The plaintiffs D«c- ^ i- baTe declared jointly upon alleged breaches of three cove- nants; but as by the terms of the articles all moneys now sought to be recovered are made payable to each of the ship- owners who should execute the articles, no such joint action can be maintained. The question who are to be plaintiffs in an action of covenant, must be determined by the nature of the interest of the parties suing. The cases are collected with great care by Seijt. Williams, in his note to Eccleston v. Clip$ham{a). It is immaterial whether the language of the covenant is joint or several. It is true, that in the case of t several action against one of two joint covenantors, the omission of the other covenantor can only be taken advan- tage of by plea in abatement; but in the case of covenantees suing, there is no option; the form of the action must pursue the legal interest in the subject-matter of the cove- nant. If the action may be brought by three, it cannot be maintained by one. Here, a separate action might have been maintained by each ship-owner. It was originally
(<i) 1 Wms. Saund. 154, note (1).
:302
1689.
CASES IN THE KING's BENCH,
contemplated, that all the owners might possibly not eie» cute the articles. The defendant therefore covenants to pay them in such parts and proportions as are set against tfteir several and respective names. Suppose all the ship-owners to be paid except one, it is clear that such unpaid owner would have a separate and distinct interest. The right accrues to each owner, according to his share in the vessel* The covenant is with their respective executors^ administro' tors and assigns, whereas if the right of action is joint, it would survive, and the executors and administrators of ihe deceased covenantees would take nothing. The plaintiffs must contend, that if all had been paid except one, and that one had died, his executors could.not sue. Owston v. Ogk{a} is directly in point, and differs no otherwise from the present case than in this, that the contract there was not under seal. But that circumstance is immaterial with reference to the present question. The law as to joinder of parties is the same in assumpsit as in covenant. That was an action for not accounting and dividing the net profits. Lord EHen- borough says, ** each of the adventurers was to derive from the ship's husband the account of the ship's proceedings; what had been disbursed, and what she had earned ; in order that he might have the means of ascertaining the amount of his own share. Is it not then reasonable that the cove- nant to account should be several ?** [Bay ley, J. In Owston V. Ogle it was held, that the action might be several. In Ponds V. Smith (6), Abbott, C. J., in delivering the judg- ment of the Court, said, '* I take it to be quite settled, that where there is a joint lease by two tenants in common, reserving an entire rent, the two may join in an action brought to recover the same; but that if there be a sepa- rate reservation to each, there must be separate actions (c).
(a) 13 Easty 538. in 1 Dowl. & Ryl. 491, the wor^s
(b) 5 Bam. & Alders. 850, and are given thus: ** I take it lobe 1 Dowl. & Ryl. 490. quite settled, that where there is a
(r) 5 Bam. Bt Alders. 85 h Bat joint lease by tenants in common,
MICHAELMAS TERM, X GEO. IV.
/Mf, J. The question is here upon the construction of this particular covenant. Littledale, J. In Collins v. Proth ur{a) the Court held, that under the words ** for which paymeDt we bind ourselves, and each of us for himself, for the whole and entire sum of 10/. each" the parties were lisUe separately, but not jointly.']
303
1829.
£, H, Jlderson, contrd. In this case the interest in the coveaant is joint. The defendant does not covenant to pay separately to each, but to pay the whole into a bank, on the joint account of the covenantees. [Parke, J. In order to comply with the covenant, must not the defendant psj the money into the bank to the credit of the respective owners, according to their respective shares and interests ?] It would be a breach of covenant if the portion of Jl. were paid in without the portion of B. The interest in the cove- nant is joint. Then the question arises, whether it is not optional here to sne jointly or severally. There is nothing in Owston v. Ogle to shew that a joint action would not have lain.
Bayley, J. — To make this a joint covenant, it would be necessary to strike out the words " according to their respective shares and proportions." The defendant might pay one share in at one time, and another at another, spe- cifically to the use of a particular owner. If the defendant paid one man in full, the remedy as to the residue would be to be enforced by the parties who had not been paid. Each sustains a separate and independent injury. By the terms of the covenant, the defendant is not to pay the whole to the surviving covenantees.
reserfing a joint and undivided reoc, they may both join in an action for the renty^Hmd the same frndpie teems to govern where the
letae is joint and the rent is reserved separalefy,'*
(a) 3 Dowl. & Ryl. 112, and 1 Barn. & Cressw. 68S.
304 <:as£S in TflE king's bench,
1829. LiTTLBDALEy J. — ^Though the Covenant purports to be
with the ship-owners jointly, its legal operation must ensue the nature of the interest. The rule is correctly laid down in Eccleston ▼• Clipsham (a), and the notes — in which the cases are collected. Supposing one of the covenantees, who had been paid his sixteenth share, had survived the rest, could it have been contended that he would be the person to sue for the share due to the representatives of the deceased covenantees ?
Parke, J. — It was settled in Slingsby^s case (6), that *' where it appears that every one of the covenantees hath or is to have a several interest or estate there, when the cove- nant is made with the covenantees et cum quolibet eorum, these words, cum quolibet eorum, make the covenant several in respect of their several interests (c)" Here, the interest was clearly several. The money ought to have been paid in to the separate credit of each part-owner (d). If it had been paid to one joint account at the banker's, it could not have been drawn out without the concurrence of all the parties. This inconvenience it was probably the object of these articles to avoid.
Judgment for the defendant (e).
(a) 1 Saund. 154, and note (1), words ^ et cum qaolibet eorum" in the fourth and fifth, and note (a) appears to be immaterial; vide in the fifth edition. Etvidetupri, note(c) to 1 Wms. Sauod. (fifth 301. edition) 155.
(b) 5 Co. Rep. 18 b. (J) Vide 1 Nev. & Mann. 594,
(c) But as tlie right of one or of note (a). ieveral parties to bring an action (e) And see Jtatice Windham's of covenant, must in all cases en- case, 5 Co. Rep. 7 b.; Broamii^ sue the nature of the estate or v. BeitoH, Plowd. 140 b.; Lee y. interest of the covenantees, the Nixon, 3 Nev. & Mann. 441. insertion or the omission of the
MICHAELBIAS TERM, X GEO. IV.
305
Harper v. Hayton, Esq.
Assumpsit for money had and received against the late sheriff of the county of Hereford. At the trial before Park, J,, at the Hereford Spring Assizes, 1829| the fol- lowing facts appeared :
The plaintiff having entered into a recognizance in 40/. coDditioned for her appearance at the quarter sessions, and having made defaulti the recognizance was forfeited and es- treated. A copy of the estreat roll, including the estreat of the plaintiff's recognizance^ being sent to the defendant, as sheriff^ with the writ of distringas, fieri facias, and capias, as required by the second section {a) of 3 Geo. 4,
{a) Which enacts ** that all fines, issues, an]erciaments,yor/et7ec^ re- ctgnizancet, sum or sums of money pnd or to be paid in lieu or satis- /action of them or any of them, (sare and except the same shall by nrcoe of any act or acts of (Mr- Hament made or to be made, be otherwise directed to be levied, recovered, appropriated or dis- posed of,) which already are or Kereafter shall be set, imposed, k>sf, or forfeited, by or before any jasdce or jostTces of the peace in that part of the United Kingdom called JBogland, shall be and are hereby required to be certified by the justice or justices of the peace by or before whom any such fines, isniea^ amerciaments, forfeited re- cognismstceM^ sum or sums of money fid or to be paid in lieu orsatisfac- tioo of them or any of them, shall be see, imposed, lost, or forfeited, to the cierfc ef the peace of the coanty, or town clerk of the city, borough* or place, in writing, con- taining the names and residences, trade, profession, or calling of the
VOL, V. X
parties, the amount of the sum forfeited by each respectively, and the cause of such forfeiture, signed Dv such justice or justices of the peace, on or before the ensuing- general or quarter sessions of such county, city, borough, or place re* spectively; and such clerk of the peace or town clerk shall copy on* a roll such fines, issues, amer- ciaments, forfeited recognizanceSy' sum or sums of money paid or to he paid in lieu or satisfaction of them or any of them, together with all fines, issues, amerciaments, forfeited recognizances, sum or sums of money paid or to be paid in lieu or satisfaction of them or any of them, imposed or forfeited at such Court of General or Quai> ter Sessions; and shall within such time as shall be fixed and deter- mined by such Court, not exceed- ing twenty days, after the adjourn- ment of such Court, send a copy of such roll with a writ of distrin- gas and capias or fieri facias and capias, according to the form and efiect in the schedule marked (A.)
18^9.
Where upon a recogniiance forfeited at quarter ses- sions, the she- riff has levied part of the pe- nalty, and has the defendant in execution for the residue, the sessions have jurisdic- tion over the whole repogni- zance, and if the sheriff has notice that they have dis- charged the de- fendant wholly therefrom, before the money levied had been paid over to the treasury, an action for mo- ney had and received lies against the sheriff for the amount.
Whether any notice of the order, or any demand of repayment is necessary.
306
4899. Harper
H^LYTOV.
CASES IN TH£ KINOS 9ENCH«
c. 46 (6)9 the defendant levied to the amount of 1/. 8i. Id., and took the plaintiff in execution for the residue. She was afterwards discharged from her recognizance by the Court of Quarter Sessions, under the sixth section (c) of the act. The defendant had not, previously to the discharge of the plaintiff, passed his accounts at the Exchequer, but he had returned the I/. 85. Td. 99 levied under the estreat and writ. The learned judge, upon being pressed with the authority
annexed to this act, to the sberi£f of such county, or the sheriff, hailifl^ or officer of such city, bo- rough, or place having eiiecution or process therein respectively, as the case may be, which shall be the authority to such sheriff of such county, or the sheriff, bailiff, or officer, as the case majr be, for proceeding to the immediate levy- ing and recovering of such fines, &c. CIO the goods and chattels of such several persons, or for taking into custody the bodies of such persons, in case sufficient goods and chat- tels shall not be found whereon distress can be made for recovery thereof; and every person so taken shall be lodged in the common gaol until the next general or quarter sessions of the peace, there to abide the judgment of the taid Court, ^
(b) Amended by 4 G. 4, 0. 97.
(c) Which enacts ^that the Court of General or Quarter Ses- sions, before whom any person so committed to gaol or bound to appear shall be brought, is hereby authorized and required to inquire into the ctrcumstniices of the case, and shall, at its discretion* be em- powered to order the discharge of the whole of the forfeUed recogni- zance, ftr turn of money paid or to be paid in lieu or satisfaction thereof or any part thereof; and
such order shall be made in the form or efiect of the schedule marked (C.) to this act annexed, aod shall be signed by the clerk of the peace, which said order shall be a discharge to such* sheriff, bailiff, or officer, on the passing of his accounts at the Exchequer, or before any auditor or other proper officer duly authorized to pass the same; and in all cases where the party shall have been lodged in the common gaol by such sheriff, &c. the justices of the peace so assembled are hereby empowered either to remand such party to the custody of the sherifl^ &c., or, upon the release of such party firom the whole of such forfeited rccogni* zanoes, to order such party to be discharged from custody; and such order shall be a full and suf- ficient discharge to the said sheriff, &c. on passing of his accoonts at the Exchequer, or before any au- ditor or other proper officer dul; authoriaed to pass the same; and it shall and may be lawful to and for the said Court of Geoeral or Quarter Sessions to award such costs, charges and expenses, to be paid by either party ts^ the other, as to the said Court shall seen just and reasonable. '^
^ Sie in the act, though the sheriff it not neatioiied before.
MICHAELMAS TERM, X GEO. IV.
of Haynes v. Hayton (a), was of opinion that the Court of Quarter Sessions had no authority over the recognizance^
307
(a) This was aa action of as- iom]Mit for money had and received, bimght against the present de- fendant to recover back a payment made to him, as sheriff of the ooimty of Hereford, on accouot of tvo foifeited recognizances of 40/. each. At the trial before BouLn- fui, Serjt at the Hereford Spring Anizes^ 1827» it appeared that an indictnient for a forcible entry bad been found against the plaintiff and his wife at the Easter sessions, 1824; that the plaintiff entered into the recognizances in question bt the ttppetnnce of himself and wife respectively; that the indict- Bient was immediately removed hj eertioran, at the instance of the indictccB; that at the July sessions 1824^ the recognizances were es- tieated; that at the Spring assizes, 1825, the indictees were acquitted; tiiat on the 25th August, the derk «f die peace prepared and sent to the dieriff a writ containing a copy of (inter aHa) the two recognizances sf the ]Jainti£^ together with a writ sf distringas, fieri ftcias, and ca- |iss; that the defendant having idled the pbiintiff's goods imder •ndi writ for the 80/., and having icftaed to take securities, the plain- tiff paid the amount to the defend- >Bt in redemption of his goods, vhidi were thereupon restored to him; that the defendant returned theatreatraU and the writattbefol- Waing Michaelmas sessions; when tiist Court, upon the application of Aeplamtiff, made an order miti- fitiog each recognizance to 13f . 4c/., nd requiring the derk 6f the peace *B make out the necessary orders
for discharging the sheriff on pass* ing his account from the residue; that the clerk of the peace duly transmitted the orders of sessions to the defendant; that the defend- ant had, on passing his accounts at the Exchequer, been discharged from the amount of the recogni- zances, except the two sums of 13f. 4d, ; and that the defendant had Bubsequentiy promised to re- pay the residue to the plaintiff on being allowed to retain his pound- age.
It was contended by ToMniom, fbr the defendant, that from the language of the enacting part of the statute, and the form of the writ, the sessions had power to order the recognizances to be dis^ chaiged only where the party was in custody or had given security, and not where execution had been executed on his goods, upon which the money levied belonged to the crown, and must be paid as directed in the act. The learned judge, however, being of opinion that the amount received by the defendant was "a sum of money paid in satisfaction of a forfeited recognizance," and that the se^^ sions had authority to make the order, directed a verdict for the plaintiff, recommending that the • poundage should be deducted, in order to avoid a motion for a new trial. A verdict was accordingly taken for 74/. 15f . 8</.
A rule nisi having been obtained by Taunton for a new trial, cause was shewn by MatUe and WkUcoa^^ who again niged, that under thei discretionary power given to tlie
182d.
HARPBa V.
Hayton.
Where upon a reco|Di]sance forfeited at ses- sions, the de- faulter has paid the penalty to the sherilf, in order to prevent a sale of bis goods taken in execution, the sessions have no power of miti- gating the pe- nalty, under S Geo, A, c. 46, s. 6.
308
CASES IN THE KING S BENCH,
liAUPER
V. ilAYTOK.
and nonsuited the plaintiff, was obtained by Maule for a
justices at sessions by section 6, not only over the forfeited recogni* zance, but over money fKtutf or to be paid in satisfaction thereof, the Court of Quarter Sessions had, not- withstanding the payment, autho- rity to mitigate the recc^izances. They also urged, that supposing the quarter sessions had executed their authority, the defendant, by retain- ing the 74/. 15c. Bd. from the crown, and expressly promising the plaintiff to return that sum to him, liad admitted that he held it for the plaintiff's use.
On the part of the defendant it was contended by W. E. Taunton, that the authority of the sessions was confined to two cases: viz. where the defendant was actually in custody, or where he had given the security required by sect. 5.
The Court [HayUy, J., Little- iaU, J^ and Parke^ J.,) having taken time for consideration of their judgment,
Bay ley f J., after stating the tacts of the case, proceeded as follows : — It has been insisted that the plain- tiff was entitled to recover; first, on the statute,— secondly, on the un- der«heriff's promise, — and thirdly, on tiie ground that the sheriff took credit in the Exchequer for tiie two sums of 39/. 6s. 8(/., and 39/. 6j. Bd. As to the latter ground, it appears to us, that if the sessions had no authority to make l!he order in question, that order is wholly void, and the sheriff's omis* aion to- insert these sums in his accounU delivered into the Exche- qu8T does noj. alter the case ; for he
In last Easter term a rule nisi new trial ; against which
is still accountable there; and if that be so, there was no comidera- thn for his promise to pay the plaintiff, and it becomes nudoni pactum. The question depends upon this, whether the 3 G. 4, c. 46, s. 6, authorizes the sessions to discharge the recognizance in ail cases, or in those cases only where the party has been committed to gaol or become bound in sureties to appear at the sessions. If a gene- ral jurisdiction is given to the ses- sions, then the plaintiff is right; otherwise he is wrong. It was ad- mitted by the plaintiflTs counsel, that the sessions had no other ju- risdiction than that given by the 3 G. 4, c. 46. By section 2 of that act, it is enacted, '' that all fines, forfeited recognizances, sum or sums of money paid, or to be paid in lieu or satidaction of them, shall be certified by the justices of the peace, by or before whom such fines, forfeited recognizances, &c., ihall be imposed or forfeited, to the clerk of the peace; and that such clerk of the peace shall copy on a roll such fines, forfeited recog- nizances, &c. and send a copy of such roll, with a writ of distringas and capias, or fieri fecias and ca- pias, to the sheriff, which shall be the authority to such sheriff for proceeding to the immediate levy- ing of such fines, forfeited recogni- zances, &c. on the goods and chat- tels of such several persona, or for taking into custody the bodies of such persons, in case auifident goods and chattels shall not be finind." Then section 5, (which is very inaccurately worded,) protide*
MICHAELMAS TERM, X GEO. IV.
TaufitoM, now shewed cause. The plaintiff must reco- ver by force of his own title. It is no matter whether the
309:
1599.
"that if any person on whose goods and chattels suchsherifl' shall be authorized to levy any such Wwted recognizance, or sum of nooe? to be paid in lieu or satia- fcction thereof, shall give security to the sheriff for his appearance at the next general or quarter sessions, there to abide the decision of the Coor^ and also to pty such for- feited recognizance, or sum of money, &c. together with all ex- peotes, as shall be ordered and adjudged by the court, it sluUl be Isvibl for such sheriff to discharge >i^ person, so giving such secu- rity, out of custody; provided also, that in case such party so giving nch security shall not appear in pumiance of his undertaking, it ihsO be lawful to the Court to issue a writ of distringas and capias, or fieri fadas and capias, against the nrety or sureties of the person so boond as aforesaid." I think that dsnae does not extend to cases wbere the party pays the money, or where the sheriff /Itvief on the goods, hot is confined to cases where the iheriff has taken ike body. Then comes section 6, under which alone the plaintiff bad power to apply to the sessions, and they had jurisdic- tioo. That section enacts, ''that the Court of Quarter Sessions, before whom any person committed to gaol or bound to appear shall he hrought, is authorized and required to inquire into the circumstances of the case, and shall, at its discretion, be empowered to order the dis- charge of the whole of the forfeited recognizance, or sum of money paid in lieu or satisfaction thereof,
or any part thereof; which order shall be a dischai^ to the sheriff, &c. on the passing of his accounts at the Exchequer.*' The power given to the sessions to order this discharge of a forfeited recogni- z^ce is, therefore, confined to cases in which a party brought be- fore the sessions has been com- mitted to gaol or been bound to appear. If it had been intended to give the sessions a general dis- cretion in all cases, it is impossible to suppose that this language would have been used. By the second section, the plaintiff might be com- mitted to gaol. By the fifth sec- tion, he might be hound to appear at the next quarter sessions; but in this case the party was nei- ther committed to gaol nor bound to appear at the next sessions. He paid the money. Therefore, it seems to us, that as the authority of the sessions was limited to those cases only, they had no power to make the order in question. The 4 G. 4, c. 37, s. 3, (which is a legislative exposition of the former statute,) enacts, **that where » party subject to any fine, forfeited recognizance, &c. shall reside or shall have removed from or out of the jurisdiction of • the sheriff in which such fine, &c. shall have been incurred, &c. it shaU belawfiil for such sheriff to issue his war* rant, together with a copy of the writ, directed to the sheriff acting for the county or plaoe in which such person shall then reside or be^ or in which any goods or chattels shall be found, requiring such she- riff to execute such writ \ and th^
CAS£S IN THE KINO 8 BENCH,
sberiflF wrongfully retained the money, unless he also wrong- fully received it, or retained it to his own use. In Haines V. HaytoHy the plaintiff was not committed and did not give the security. Here, the plaintiff did not pay the whole : 1/. 85. Id. only was paid instead of £0/., and the party was committed for non-payment of the residue.
It is submitted that though the magistrates had jurisdic- tion, it was a limited jurisdiction, and they had no power to order the discharge of the plaintiff from the whole recogni- zance. As soon as the 1/. 85. Id. was paid, it was money had and received to the use of the crown, and ought to be paid over to the treasury. It was not competent to the ma< gistratea to arre^ the money and prevent its reaching the treasury. The magistrates having exceeded their authority in ordering a general discharge, their order, according to Haynes v. Hayton, was void. But supposing the Court of Quarter Sessions had power to discharge the plaintiff from the whole of the recognizance, even then the case does not become the same as if no recognizance had ever been exe* cuted, and no levy made. If so, the imprisonment would be a wrongful act, for which there is no justification.
The sheriff must, at all events, withhold the money, sub- j)sct to the direction of the treasury. The course for the plaintiff to take should be either to present a memorial or a petition to the king. If this action is maintainable, the
Raid sheriff, &c. within thirty days have received the same. " Ifthesbe-
after the receipt of the warrant, is riff is to make that return, it shews
required to return to the sheriff that the party had no power to go
from whom he shaU have received to the sessions unless such secuii^
ihe same, what he shall have done were given; and as the sessions
in the execution of such process, have power to award costs under
and whether the party $hall have the fifth section of the 3 G. 4, c.
ghen good and tufficient iecurity 4<S, that power would he nugatory
to appeal at the enming general or unless the security were given.
quarter sessions to he held for the Upon the whole we are of opinicA
county from which the writ issued ; that the sessions had no power orer
and in case a levy shall have heen the recognizance. The rule for a
made, to pay over all monies re* new trial must therefiore be made
oelved in pursnance of the warrant absolute, to the sheriff ftom whom he shall Rule abaohite. .
Mauk, contra. Tbe justices bad jurisdiction to make ^^^ the order for discharging the plaintiff from the recogni* zasce, and money had and received is the proper remedy. [Parke^J. The justices have an absolute discretion. It was competent to them to bate ordered the money to re*- nain in tbe hands of the sheriff to the U9e of tbe croitn.] The liability of the sheriff to the trown arises from the estreat, and that being doubtful, it stands as if no forfeiture had been incurred and no estreat made. Here be was stopped by tbe Court*
Batlby, J., after adverting to the provisions of 3 Geo. ^t c. 46, sect. ^, 5, and 6, proceeded as follows: — In Hoyuft V. Hayton the Court decided, that^ except in the two cases of commitment and security^ the justices at lessions bad no jurisdiction. The authority given is not a general but a limited authority. In this case tbe party has been committed. The sessions had, therefore, no donbt, ^me jurisdiction. We must go on further and see whether soy limitation is imposed. It is quite clear that the justices were enUtled to take something into their consideration. It would be singular if the party were bound to seek his
IIarpbk Hayton.
MICHAELMAS T£RM, X GEO* IV. 311
ing^l plaintiff might have sued tbe sheriff tbe very moment that 1829. /fj^ tie recognizance was discharged. [Bay ley, J, Must not gi the sheriff be served with an order? The sheriff cannot p3| ^ be accountable to the plaintiff until be has bad notice of 1,^^,^ the discharge from the recognizance. That point, however,
does not arise here ; tbe sheriff is not answerable to the ^^ aown if the recognizance is discluirged by a competent ^,jr' suthority.] There is no proof of notice oh the sheriff. ^^, [Baykf,J. In this case the sheriff m6st have bad notice.] ^^ It is not shewn that the defendant was authorised by .^.,; the treasury to return tbe money to the plaintiff; or that ^|.j, be was actually discharged from the estreat. {Bayley^J.
The statute does that. Parke, J. After tbe order, the sheriff
ns Dot answerable to tbe crown.]
»12
1899.
CASES IN THE KING S BENCH,
discharge partly at the sessions and partly at the treasury; the statute uses the words *' paid or to be paid.*' They may therefore discharge money paid. But they have juris- diction over the whole matter. If the sheriff continued to be accountable to the treasury, he would clearly not be bound to pay the plaintiff. But the act says '^ that the Court of Quarter Sessions shall at its discretion be empowered to order the whole of the forfeited recognizance, or sum of money paid or to be paid in lieu or satisfaction thereof, or any part thereof, and such order shall be in the form or to the effect of the schedule marked (C.) to this act annexed." Then the order framed according to the form giveu by the act distinctly says that he is to be discharged as to the whole. Then the recognizance being out of the way the sheriff is not accountable to the treasury, but to the party. No tender having been pleaded, it is immaterial to consider whether the defendant was authorized to make a tender.
LiTTLEDALEy J. — There does not seem to be any good reason why there should not be jurisdiction where the money has been paid. Here, however, the party is brought before the sessions, and therefore that Court has jurisdic- tion. The sessions are authorized not only to discharge the whole recognizance, but by express words that Court has jurisdiction over any part paid or not paid. The ques- tion is, whether the defendant is to pay to the treasury or to the plaintiff, the defendant having levied part of the money, and taken the party in execution for the remainder. The sheriff having levied part, would not make his payments into the Exchequer by piecemeal, but would wait to see what was done as to the residue (a). The sessions might not have discharged the plaintiff, who then would have been bound to pay the remainder. Here, the sheriff is forbidden to pay into the treasury.
(a) But if the sheriff had to pass ration of the defendant, he woold bia accounts before any further be bound to account for so much tf sum was obtained by the incarcc- he had received.
MICHAELMAS T£RM» X GEO. IV.
Pkymeut was demanded of the sheriflf, though I doubt \ili€ther any demand was necessary. It was the duty of the defendant to know what was doing at the sessions; knowing . that an order might be made, it was the defendant's duty to ascertain whether any order teas made.
313
1829.
Parke^J. — lam of the same opinion. The plaintiff was brought before the sessions, and that Court had juris- diction to discharge in whole or in part. The defendant was originally bound to account to the Court for the sum which he had levied. But from this he was discharged by the order. It is not necessary to say whether any notice or demand was necessary.
Rule absolute (a).
(«) Since the pasdng of 3 G. 4, c. 46, the Court of Exchequer has ceased to have jurisdiction under 4 G, 3, c. 10, or the standing writ of privy seal, (whereby the barons «e empowered to discharge, miti- gste, or compound forfeitures or penalties estreated into the Exche- quer from other courts,) over re- cognisances forfeited at quarter ses- BODi, whereof the yearly duplicate or certificate required by 3 G. 4, c 46, s. 14, has been delivered into that Court. Therefore, where • recognizance for appearing and pfeferring an indictment at sessions had been forfeited and certified into file Court of Quarter Sessions, and the forfeiture had been levied by the sheriff, the Court of Exche- quer Held, that they were not au- tiiorized to order the discharge of the Rcog;ni2ance, although the jus- tice of peace, before whom the re- cosoiance had been taken, had notcompfied wiUi the fourth sec- tim of the statute, by giving the y^ bound, notice of the time and
place at which the sessions were holden, and although the party had unsuccessfully applied for re- lief at the ensuing sessions. Rex v. Hawkinty Macleland & Younge, 27.
An indictment for an assault had been traversed by the indictee, who with two sureties entered into a recognizance conditioned for his appearing, entering, and trying the traverses at the next sessions. The traverser gave the prosecutor no notice of trial before the next ses- sions, but moved there to respite the recognizances to the following sessions. The application was re- fused, and the recognizances were ordered to be estreated. A dis- tringas, fieri facias, and capias issued against the traverser and his sure- ties. On motion to bring in recog- nizances, estreats, and warrants into the Court of Exchequer, it was held, that inasmuch as the estreats were not returned into the Exche- quer, that Court had no jurisdic- tion, and that relief could be granted
314
1839.
CAS£S IN THE KINO S BENCH,
by the quarter teadons only. Rex y. Thompwn, 3 Tyrwh. 33.
But where forfeited recognizances have in fact heen estreated into the Exchequer, that Court is not ousted of its jurisdiction by 3 G. 4, c. 46, or by 4 G. 4, c. 37, and such re-
cognizances may be discharged or compounded by that Court aococd- ing to the circumstances of the particular case. PelloWf in re, 13 Price, 299, S, C, per nomen Pel- lem, Ex parte, MadeUmd, Ul.
Daubney^ Gent, one &c. v. Cooper and others.
A conviction TRESPASS. Tbe declaration stated tbat the defendaoU tra^eT, ^poiT assaulted and beat the plaintiff, and forced him out of a
aninforniaiion room called the Justice Room, in a certain inn called the
under the • wt m.r t t* • • •
game laws, is White Hart, at Market Raisin, in the county of Lincoln,
ceedln^^at"^ '" which room the defendants, as justices &c., assigned 8u:., which all the were then holding a court of petty sessions, whereby the for whoro?here plaintiff was prevented from exercising, following and trans- is room, and acting his lawful and necessary business as an attorney ia there rests no ^he said room. Plea : not guilty. At the trial before
special ground ^^^ Q^ J ^t the last Spring assizes for the county of
for exclusion, ' .
have a right to Lincoln, the following facts appeared:
be present. ^^ information, under 5 Ann, c. 14, was laid against
James Preston, for using a gun to kill game, not being qua- lified. Preston requested the plaintiff, who is an attorney, to appear for him upon the information. Upon the plain- tiff's presenting himself accordingly, at the petty sessions, he was informed by the magistrates that it was their rule not to admit attorneys, and that therefore he would not be allowed to appear for Preston. The plaintiff withdrew, but no conviction took place. Another information was afterwards laid against Preston^ upon a similar charge, for an offence alleged to have been committed on the Sd Janu* ary, 1828, On 14th February, Preston was summoned to appear on this information on the 18th. Preston again employed the plaintiff to appear for him, and did not him- self attend tbe sessions. The plaintiff again presented himself at the justice room, at Market Raisin, at the time
MICHAELMAS T£RM, X GEO. IV« 315
lod place oq which the sumoions was retaniable. The 1889. defendant. Cooper, who was one of the magistrates present, being infonned that the plaintiff attended on behalf of PreUott, told him that the magistrates had resolved not to aHow an attorney to appear for parties summoned before them, and desired him to leave the room. The plaintiff insisting upon his right as an attorney, to appear for PreS" Urn, opoo the information, refused to leave the room ; upon vhich Cooper directed the constable to remove him, which ns accordingly done. It was urged on the part of the defendants, that the plaintiff bad no right to insist upon attending before the magistrates as an attorney for the de- fendant in the information; that this was a sufficient justi- icition for the defendants, — who were proved to be magis-' Iratea, — upon the general issue, under 7 Jac. 1, c. 5. A ver*' diet was entered by consent, for U. damages, against all tbe defendants, leave being reserved to them to move to enter a nonsuit. A rule nisi having been obtained accord-* inglj, in Easter term,
Demnan now shewed cause. The question to be con- Dec. 15, 1829* iidered is, whether, upon the evidence given at the trial, the learned judge ought to have nonsuited tbe plaintiff. I am not disposed to inquire whether the objection could be raised on the general issue. [Bayletf, J. Were they attending at tbe Petiy Sessiom?"] Tbey were. An attor- ney has generally a right to be present during the proceed- ins^ against his client (a), Gilman v. Wright (A). In The Quern V. Simp$on{c)t whch was a case of deer-stealing, it vas held that a party duly summoned might be convicted in his absence. As in the case of deer-stealing, Preslon was
(«) March, 141, pi. S14, where ron for refusing to suffer a defend-
the Cooit said, " that an attorney ant to put in any otheratcorney than
at common law is an attorney in one of the attorneys of that Court, em; inferior Court, and therefore (6) 1 Ventris, 1 1 ; 3 Keble, 477;
ooglit not to be refused," and emit' 1 Siderf. 410. mitUi the steward of a Court Ba- (c) 10 Mod. 344; 1 Stra. 44.
316
1829.
CASES IN THE KINGS BENCH,
not bound to appear in person (a). [Liitledale^J. The mv* gistrates had authority to issue the usual summons.] llie magistrates may convict in the absence of the party charged; it is a privilege belonging to the attorneys of the superior courts to be entitled to practise in any inferior court.
The Statute Westm. 2, c. 10, was cited at the trial as an authority for the defendants, but it appears on the contrary to establish the plaintiff's right to appear for his client. In jRex V. A. B. and C. £)., Justices of Staffordshire {b). Bay ley, J. is reported to have said, ** an attorney in all events has no right to appear." Rex v. A. jB. and C. D., Justices of Staffordshire^ was cited in the argument of Cox V. Coleridge (c); but in the latter case Bay ley, J. dis- claimed being bound by the obiter dictum which he is re- ported to have used on the former occasion. The decision in Cox v. Coleridge proceeded on the ground that what had taken place before the magistrates, was merely a preli- minary inquiry (<i). The decision proceeded entirely upon that ground. The Court pointed out the inconvenience which would result from giving publicity to such previous inquiry. [Bay ley, J. I believe that in that case a distinc- tion was taken between a preliminary inquiry and an inquiry upon which there may be a conviction.'] Lord Tenterden there says {e), " This being only a preliminary inquiry, and not a trialy makes, in my mind, all the diffe- rence.*' The question here is, whether the proceeding before these defendants was not a trial, and whether
(fl) Vide Rex v. Hall, 6 Dowl. & Ryl. 843; Rex y. Commins, 8 Dowl. & Ryl. 344.
{b) 1 Chit. Rep. 219. And see the notes to that case.
(c) 1 B. & C.37, 2 D. & R. 86.
Id) But see Rex v. Whately, ante, iv. 437 n., 438 n., and the observations there made upon the eircumstance, that in Cor v. Cole^ ridge, the attention of the Court does not appear to have been
drawn to the cases in which it has been held, that if a witness eza- mined under 1 & 9 P. 4^ Af. c. 13, and 2 & 3 P. 4-. Af. c. 10, die before the trial of the felony, bis examination may be received iu evidence against the prisoner, he- caute the prisoner had an opportu- nity of cross-eiamining him. And see Hale, P. C. 262, «63 ; Sir Tbo. Jones, 53; Kelynge, 18. (e) t Bam. & Cress%v. 50.
MICHAELMAS TERM, X GEO. IV.
k was necessary, for the purposes of justice, that the defendants should have such professional assistance as he deemed it expedient to engage and employ. Was the plaiotiff lawfully present i He might be there for several lawful purposes; one such purpose might be to state an acute for the non-appearance of his client upon the sum- mons. He might plead guilty, and pay the amount of the penalty instanter, for the purpose of avoiding an execution; be might plead not guilty^ and examine witnesses to esta-' Ush a lawful defence. Much injustice might be done, if tbe party were liable to be convicted without being heard through the person whom he had employed to appear for kim. It is said that as the party was not present, he had 10 right to appear by attorney, even assuming that if he bad himself attended, he might have had his attorney by his tide. Upon further consideration, the circumstance of the absence of the party charged, will be found to strengthen the argument in favour of the right of his attorney to appear. He can never be in a worse situation, as to the right of being represented, by not being able to attend in person* [ParkeyJ. There is a third question not touched upon, namely, whether the plaintiff was entitled to be present as* one of the king's subjects.] In Garnett v. Ferrand (a), which was the case of the coroner, that defence was pleaded specially. [Bay ley j J. The coroner's court is a court of preliminary inquiry {b),] In this case, the nature of the in- quiry which was going on at the sessions, was not perhaps much considered. The justices were judges of record, sitting in judgment upon the question, whether the then defendant had incurred a forfeiture or not, — and their judg- ment was not traversable.
317
1829^
Fynes Clinton, on the same side. Cox v. Coleridge is an
(a) 6 Bam. & Cressw. 611, and 9 Dowl. & Ryl. 657.
(h) The decision however pro- ceeded on the s^round that no ac-
tion lies against a judge of a court > of record, for an act done in his judicial ctLpfkchy, In the present case that poini was not raised.
318
1899. Daubmbt
V. CooPfiB.
CASES IN THE KING S BENCH^
autborifj for the plaintiff. IParke, J. The decision in Cox V. Coleridge turoed upon its being a case of prelimi- nary inquiry. The other point was not decided either one way or the other.] The first point to be considered is, whether a party brought before magistrates, upon a charge in a case in which the magistrates have power to convict, is entitled to professional assistance ; the second point is, whether, when the party charged is absetH, it is competent to him to depute another person to appear for him. The cases which have been cited appear to leave no doubt upon that point. Under 5 Jnn. c. 14, the party may, upon proof of service of the summons, be convicted, though he do not appear (a). Suppose the case of a person duly sum- moned and unable to attend, it would be a great hardship and injustice to exclude the defence which his attorney was ready to make for him. The mode in which attorneys were formerly appointed, rests in much obscurity; 2 Inst. 376* IParke, J. Are there any statutes authorizing the appoint- ment of attorneys in all sorts of actions i Bayley^ J. A deaf and dumb person may appoint an attorney in all ac- tions.] There are many cases at common law in which a man may appoint an attorney to appear for him ; F. N. B. 156. This, however, appears to be mere matter of anti- quarian research. The general inference of law is, that in all inferior coiu-ts the attorneys of the superior courts are entitled to appear. In most courts of requests acts, a clause is introduced to exclude attorneys* The object of this clause is to avoid expensive costs. The exclusion may be considered as a legislative recognition of the rights [Parke, J. That does not follow. The attendance before courts of requests, which the legislature thought it right to prevent, may, in the absence of such a legislative power, have been matter of right or matter of favour only. Such an enactment may have been necessary for the purpose of excluding an admission of the attorney by favour. It can
(a) The Queen ▼. Simpion, 10 Mod. 345; Res v. Hmii, 6 Dowl.
& Ayl. 84; Rex v. Cmmmh 8 Dowl. k Ryl. 344.
MICHAELMAS TERM, X GEO. IV.
hardly be said that the petty sessions were not a rotfit.] The petty sessions did not exist at the time when this statute passed. The lirst acts empowering to convict by summary jurisdiction, passed in the reign of Charles 2. \^Bayley, J. The statute of Anne does not require that the conviction should take place at the petty sessions.] Every magistrate acting under that statute is a judge, and the room in which he sits is a court. It cannot be contended that a man may be coKcicted of a misdemeanor iu private* The power entrusted to the magistrates by the statute, is in derogation of the common law, and at variance with all the princi- ples of that law. This makes it the more necessary to adhere to rules of the common law in every particular not expressly taken away; more especially when it is considered. that under some of these statutes the magistrates have power, upon conviction, to inflict two years* imprisonment. [Byky, J. The Court cannot look into the question of more or less jurisdiction.] A party summoned to appear before magistrates on such a charge, ought to have the nine means of defending himself as in any other Court. The question is, whether, when called upon to make his defence, a party charged with such an offence is not entitled to professional assistance. [Parke, J. And to see what is proved against him.] In cases of misdemeanor, the de- fendant may be convicted without being present. The defence may be conducted by counsel, or where no counsel is employed^ by an attorney, not qui attorney, but as an advocate, as in criminal proceedings there is no attorney on the record, [ficry/ey, J. How would you draw up the con- viction ?] The conviction might set out the fact specially, or state the appearance of the defendant generally. In the crown office it is not necessary that any appearance should be entered; the attorney merely goes to the crown oflice and enters the defendant's plea. There is no statute en- abling such defendant to appear by attorney. As far as appears by the record in the crown office, the defendant nay have been in Court the whole time. The plaintiff may
Dakjbncy
V.
320 CASES IN THE KINo's BENCH,
1889J have come for the purpose of stating his client*s inability/ by reason of sickness, to attend. By this statute, if the money is not paid immediately, the justices are to imprison CoopBn. ^|jg defendant for three months, and they have no power to relieve against such imprisonment, although the money be paid on the very next day. It appears from GlanviiU, that at common law the defendant in a real action might send 4xnif person to excuse his non-attendance {a). In Cox v. Cokridge{b)j Abbott, C.J. says, *'The nature of the pro- ceedings also shews that this cannot be demanded properly as a right. What is it? It is only a pre/tmi/iary inquiry^ — whether there is sufficient ground to commit the prisoner for trial." Holroyd, J. says(c), ** A magistrate, in cases like the present, does not act as a court of justice. He is only an officer deputed by the law to enter into a preliminary inquiry" Best, J. 8ays(d), *' So far was this examination (under 2 & 3 Phil. 4r Mary, c. 10,) from being a judicial inquiry, which means an inquiry in order to decide on the guilt or innocence of the prisoner, &c/' Here, the proceed- ing was an inquiry to decide on the guilt or innocence of the party. Even where the evidence is set out upon the face of the conviction, it is not competent to the party convicted to raise any question as to the character or the credibility of the witnesses. The justices perform the functions of a jury, but their decisions are not, like those of a jury, subject to revision. In modern acts of parliament, a summary form of conviction is commonly given, which by excluding all mention of the evidence upon which the justices pro- ceed, renders the correction of any improper decision still more difficult; and when the grossest errors in law are committed, it is almost impossible to set the matter right. Garnett v. Ferrand{e) decided nothing more than this,— that a coroner being a judge of an ancient court of record,
(a) And see Com. Dig. Exoine, (d) Ibid. 53, r*4.
(B. 4.) (e) 9 Dowl. & Ryl. 657, aud 6
(6) 1 Bam. & Cressw. 49, 50. Barn. & Cressw. Oil. (f> Ibid. 51, 52.
MICHAELMAS TERM, X GEO. |V.
00 action lies against him for an act done in his judicial capacity. Assuming that his conduct has been as corrupt as po!»8ibIe, no action lies, — the remedy, or rather the punish- ment, must be by a criminal prosecution. Ganiett v. Fer^ rW is in effect an authority for the plaintiff, as shewing that this defendant had no power to exclude him. It was coDleuded there that the coroner's court was a court in which Bideodand might be forfeited; but the answer given(£r) is conclusive, namely, that the inquest is traversable in every particular. [Farke, J. I do not consider that the Court decided that. The judgment of the Court in Garnett v.' Ferrand proceeded on the ground, that the judge of a Court of record must be invested with a discretionary power, and that the exercise of his discretion cannot be made the sub- ject of inquiry in an action of trespass,]
Adams, Serjt., in support of the rule. It may be matter of regret that the question intended to be raised by th/e parties cannot properly be raised in this action. It is a question which has created a great deal of agitation in the country, but the point cannot be decided upon this motion. If any doubt existed as to the conduct of the plaintiff, the case might go to a new trial. IBayteif, J. Upon the evi- dence, there is no ground for saying that the plaintiff mis- conducted himself] The question is, whether a party can, without any cause being assigned, appear before justices by attorney. At common law, every man was bound to appear in person, and not by attorney; Beecher's case (A), 2 Inst. 249, 377, 378; F. N. B, 25; Page v. Tnlse(c), Tidd, 9% n.(c2). By 6 Geo, £, c. 27, s. 2, any person admitted an attorney in any of his majesty's Courts of record at West- minster, is made capable of being admitted to practise as an attorney in any inferior court of record^ " provided such person be in all other respects capable and quali6ed to be admitted an attorney, according to the usage and custom of
(a) 6 Barn. & Cressw. 616. W 8Co. Rep. 68. ▼OL. V.
(c) S Mod. 83.
(d) 9tb edition.
322
182d.
Daubney
t;. Cooper.
CASES IN THE KINO S B£NCH,
such inferior court" This enactment is extremely im- portant^ as regulating the admission of attorneys in inferior courts. They are to be Courts of record ; but the pettj sessions is not a Court of record. An attoniey can only be appointed by matter of record. [Parke, J. What do you say to the court-baron?] Even in criminal proceedings an attorney may be appointed in all cases below treason and felony^ but this is by the indulgence of the Court; Bac, Abr, tit. Attorney^ B. [Clinton* That is because the in- dictee is under recognizance to appear in person."] Here, the public has no security for the appearance of the party charged, which makes this case stronger than where a recog- nizance has been entered into. This is a much graver offence than many cases of misdemeanor; yet in cases of misdemeanor, the indictee must appear in persou, unless he is out upon bail. Here, no bail is given. [Bayley, J. Suppose you convict the party, what can you do? In cases of misdemeanor the defendant, upon conviction, is liable to immediate imprisonment.] It is submitted that the distinction cannot be taken between cases in which the proceeding is against the person, and where it is against the goods. Upon conviction for a misdemeanor in dis- turbing a meeting-house, there is no power whatever to proceed against the person ; the sentence is limited to the imposition of a penaltyof 20/. (a). It is true that in the pre- sent case the conviction is final. But that circumstance can- not form a ground of distinction. This is the only case in which a case may be brought directly into this Court, with- out going through the sessions. [Bayley, J. Now sup- posing there had been a right to appeaPto the sessions in this case, how would the party have known whether he had any ground for appealing ?] The evidence is set out, and appears upon the face of the conviction. [Parht, J. Suppose the party could not write, and that he wished to indict witnesses who had given false evidence against him? Bayley, J. If the party charged is not bound to attend personally f why should he not be allowed to appear by an (a) Toleration Act, \ W. ^ M, sess. 1, c. 18, s. 18.
IIICHAELHAS TERM, X GEO. IV.
attorney f] It is not contended that this is not a public court [Parke, J. There are two statutes of Elizabeth atttboriziDg the appearance of defendants by attorney to answer informations on penal statutes (c/). The defend- ants seem to have considered, that if the party charged was Bot entitled to appoint an attorney, they had a right to turn the plaintiff out of the justice-room. Does that follow ?]
Gintlburfi, Serjt. on the same side. The first point to be decided is^ whether a party summoned to appear before magistrates is entitled to attend accompanied by an attor- ^J' The next point is, whether, supposing him to be eotided to the assistance of an attorney, when he is himself present, he can refuse to appear in person, and send an. attorney in his stead. In Hex v. Justices of Siaffordshire{b), this Court held that an attorney has no right to be present OB the hearing of an information of$ the game laws* But it ^ said that the rule laid down in Cox v. Coleridge, and in Ferraml v. Garnett, applies only to cases of preliminary inquiry. The reasoning of the judges in those cases is not confined to that narrow point Lord Tenterden\ judgment in particular proceeds upon general principles. Though the act here complained of was done at petty sessions, it
(a) By 29 Elix. c. 5, s. 91, after reciting that ** divers her majesty's kmog sabjects, • dwelling in the itnoce parts of this realm, are many times maliciously troubled, QpoD informations and suits exhi- bited in the Courts of K. B., C. P. snd Eicbeqaer, upon penal sta- Co(es,and are drawn up upon pro- cess out of the counties where they dwell, and desire to attend and put ia bul, to their great trouble and ondoiDg^'' it is provided and en- acted, « that if any person or per- Mos shall be sued or informed >g^Dsty opoo any penal law, in aoj of the several Courts of K. B.,
C. P., or Exchequer, where such person or persons are bailable by law, or where by leave or favour of the Court such person or persons, so to be impleaded or sued, shall and may, at the day and time con- tained in the first process served for his appearance, appear by at* torney of the same Court where the process is returnable, to answer and defend the same, and not be urged to personal appearance, or to put in bail for the answering such suit." By 31 FMm, c. 10, s. so, this indulgence is limited to natural-bom subjects and denizens. (b) Supri,S16.
323
1829*
DAt^BNET
V,^ COOFEB.
Y 2
324
1829.
Daubket Cooper,
CAS£S IN THE KINg's BENCH/
ivas not done by them as sitting in petty sessions* Thtf question therefore is simply whether, when parties are summoned to appear before a justice of the peace, any person may come in and say that he is sent by the party summoned to appear in his stead. [Bayley^ J. At present, I am disposed to think that this was a court at which every person had a right to be present* It is very desirable that the public should see what is passing in Courts of Justice. Parkej J. Especially where the same person is performing the functions of judge and jury.]
Cur. adv. vult.
On a subsequent day, the judgment of the Court was delivered to the following effect, by
Bayley, J. — ^The Court has already intimated an opi- uion upon the right of the public to attend upon the hear- ing of an information before magistrates, under a penal statute, and after having had an opportunity of giving far- ther consideration to the subject, and of conferring with Lord Tenterden, we adhere to the opinion which in the course of the argument we threw out. One of the ques- tions which the parties were desirous of agitating was— whether, upon a summary conviction under the game laws, the party informed against had a right to appear by attorney. In this case the party himself was not present, but he in- sisted upon a right to appear by his attorney. We do not think it at all necessary to give any opinion upon that point. Whether it may be matter of right, whether it may be mat- ter of indulgence or not, or whether the magistrates have or have not a right to exercise a discretion upon that subject, are questions upon which we say nothing (a). The ground upon which our opinion is formed in the present case is, that the magistrates were proceeding in a case of summary conviction, and therefore exercising a judicial authority, constituting a court of justice for that purpose; and we are of opinion that it is one of the essential qualities of a
(a) Vide CoOkr v. Hicks, 2 Bam. & AdoU 663.
MICHAELMAS TERM, X.OEO. IV. 325
court of justice, that its proceedings should be public/ and 1899. that all parties who are desirous of hearing what is going on have a right to be present, provided there be sufficient room for them, that no interruption is offered to the pro- ceedings, and that no specific reason exists for their exclu- sion. Here, the defendant Cooper, and without any offence given by the plaintiff, ordered him to be turned out of the room. The plaintiff had come into the room as the friend of Preston, the party charged, but was entitled to be there as one of the public. As the friend of Preston, he might be desirous of knowing by what witnesses and by what evidence the information was supported; and it might be of great importance to Preston, with a view of ulterior pro- ceedingSy if the witnesses misconducted themselves and stated what was not true. Preston should have the oppor- tunity of knowing what had been proved against him, and of calling the witnesses to account for that misconduct. Tbe point which we decide is, that the magistrates, in the exercise of their duty, in summarily convicting, are a species of court, and exercise a judicial function, and that on this ground their proceedings ought not to be private, but pub- lic; and that therefore the removal of the plaintiff was not warranted. Cooper being the only defendant who inter- fered in turning the plaintiff out of the room, in which trans- action the other defendants took no part, the verdict ought to stand against Cooper only; and a verdict ought to be entered in favour of the other two defendants.
Postea to the plaintiff (a).
(•) The verdict in thif case be- been obtained on behalf of the ^" tretpass for
ing onder 40t., nnd ihc learned plaintiff, calling upon the Master pfiinliff o^t ©f
jtidi^e befort* whom this cause was to review his taxation, ■ mom per
tried not having certified under Adnmt, Serjt., in shewing canse, <J""<* '"* TJ*
ttk 23 Car. 2, c. 9, s. 136. the relied u|K>n the 29 & 93 Car. 9, J.^^J'^i^ j,™"
faster refused to allow ihe plain- c. 9, s. 136, which enacts, '' that in boftineM of an
tiffany further costs than U., that all actions of trespass, assault and f"*JJT[J ^^\^
l^eing the amount of the danuiges battery, and other personal ac- iiffobMiina^Ter-
foand bt the jorv. A rule bavins tions, wbereia the judge at the diet for lets
^ ^ than 401. be is
not entitled to full costs without a judge's certificate, under t9 & f5 Cor. 2, c. 9» s. 136L
326
CASES IN THE KING's BENCH,
1899.
trial of the cause shall not find and certify under his hand, on the back of the record, that an assault and battery was sufficiently proved by the plaintiff against the defend- ant, or that the freehold or title of the land mentioned in the plain- tiff's declaration was chiefly in question, the plaintiff in such ac- tion, in case the jury shall find the damages to be under the value of 40s., shall not recover or obtain more costs of suit than the da- mages so found shall amount to; and if any more costs in any such acuon shall be awarded, the judg- ment shall be void, and the de- fendant is hereby acquitted of and from the same, and may have his action against the plaintiff for such vexatious suit, and recover his damages and costs of such his suit, in any of the said Courts of record." Denman and Clinton^ contr^ The plaintiff is entitled to full costs. The action was brought not for the assault and battery only, but also for preventing the plaintiff from exercising his profession. [Bay- lefff J. That is only laid as a con- seguential damage.] Where the consequential damage would of it- self support an action, the plaintiff is entitled to full costs without any certificate. In Anderton ▼. Buck- ton, 1 Stra. 19?, which was an action of trespass, for entering with diseased cattle upon the plaintiff's land, whereby his cattle were in- fected, upon not guilty pleaded, a verdict was found for the plaintiff, damages SOf., and it was said by the Court, "The true distinction is, where the matter all^d by way of aggravation, will entitle the party to a dittinct uititfactum^ he is entitled to fuU costs.'' In Car-
ruthert v. Lamb, Barnes, 120, which was trespass for an assault and tearing the plaintiff's clothes, it was held that the plaintiff was entitled to full costs, although the damages were under 40t. •
Lord TenUrden, C. J.— In Car- ruthert v. Lamh^ the tearing of the clothes was laid as a distinct tres- pass, and not as an aggravation of the assault. I certainly was not aware of the case of Anderson v. Bucktofiy nor can I consider it as good law. It has never been acted upon or referred to in modefv books of practice. (But see Hall. Costs, 2d ed. 7 1 .) There is hardly any action of trespass without a per quod the plaintiff was put to expense, Ice. &c. The general opinion has been, that if the con- sequential damage is laid as an aggravation of the trespass, and the verdict is under 40s., the plain- tiff can recover no more costs thaa damages, and in that opinion I fully concur.
Bayley, J.— Where less dian 40f. damages are found in actions for slander with special damages, and the words are actionable in themselves, and the damages are less than 4O5., the plaintiff cannot recover more costs than damages, but if the words are actionable only in respect of the special da- mage, the plaintiff is entitied to full costs. So in an action for a trespass accompanied with special damage, if the verdict be under 40«. the costs cannot exceed the amount of the damages found by the verdict.
IMikdaUj J. concurred, and re- ferrtsd to Bannuter v. Yuker, \ Taunt. 357.
Rule discharged.
MICHAELMAS TERM, X GEO. IV. 327
1829.
Power and another. Assignees of Fulton, v. Butcher ^^^s/'m^ and Capet.
Assumpsit, upon an indebitatus to Fulion before By the custom his bankruptcy for work and labour, in making out policies premiums of
of insurance and effecting insurances, — for money paid for ^"'"fance are
® . . matters of ac-
premiums, — and for money due to Fulton in respect of his count between
having underwritten and procured to be underwrit tea divers [gr and^the""
policies of insurance for the defendants. The declaration broker, and
ilso contained counts for premiums paid fdr insurances, broker and the
for work and labour, for money paid, for money had and assured, with-
out any privity received, and upon an account stated with Fulion before between the
his bankruptcy. wsurtjd and
■^ •' .^ the underwn-
Both the defendants pleaded the general issue. ter. The bro-
Bu/cAer (a) pleaded further, that in Easter term, 1827, the fore^a^cUi^
phindffs impleaded him on the same causes of action; that upon the as-
in Trinity term, 1827, he pleaded the general issue in that amount of the
action: that in the same term he obtained a rule to pay 5/. 15s. P"*™"™ as
loto Court; that this sum was accordmgly paid mto Court; policy is eflfect-
that under that rule the plaintiffs* cosU were taxed at h^i ^^^^d^^^he®
8/1 OS. &/.; that the plaintiffs agreed with Butcher to take underwriter or
the 5/. 15s. out of Court under the rule; that Butcher paid J^heihwfhe
the 8/. 5$. 6J. costs to the plaintiffs, who accepted and re- underwriter
cehed of Butcher the 51. 15s. and 8/. 5s. 6d. costs, in satis- policy ,^con*
faction and discharge of the causes of action mentioned in the ^^^^ the pre-
o ^ -^ mmm to be
declaration in that cause. Averment : that the causes of paid ; or has
action are the same, and that the money now sought to be **^®° r^% ^?' ' ^ •' ^ ® venant of the
recovered might have been recovered in the former action, broker to pay Replication: that the plaintiffs did not agree to take *^'in assump-
sit, the de- (c) It would seem that both the action Butcher was the only party fendant pays tldeodants might have joined in sued, the cause of action would be money into this pica; for though in the former discbaiiged, if at all, against both, Court, and the
to take the iDoney and his costs. The costs are taxed, and paid by the defendant and nioeiredby the plaintilf. The plaintiff, altering his mind, does not take the money out of Court, aad offers to return the costs, which the defendant refuses to take. The plaintiff <iiKootinoes the action, and the costs of the discontinuance are taxed and paid to the defendant. These facts will not support a plea in another action for the same demand, alleging that the plaintiff received tne money paid into Court, and the costs, in full dis- cha^e of the cause of action.
328
1889. Power
V.
, Butcher and Capet.
CASES IN THE KING S BENCH,
the said 5/. 15s. out of Court under the rule, and did not accept and receive the 5L 15s. with the costs io satisfaction and discharge of the causes of action mentioned in the said declaration. At the trial before Lord Ttiiterden, C. J.y at the sittings at Guildhall after Michaelmas term, 1828, a verdict was taken for the plaintifls, subject to the opinion of this Court upon the following case: —
Fulton, an insurance-broker, carrying on business at Lloyd's coffee-house, was employed by the defendants to effect, and did effect for them, policies of insurance, at the premiums mentioned in the following account: —
October 22, 1825, losiiniice
November 2, November 14,
|
£. |
£. «. |
£. 1. |
|
|
3000 |
Huotcliffe at |
12 0 .. |
360 0 |
|
eoo 2000 |
2 5.. 12 0 .. |
13 10 |
|
|
Jalius Cesar |
240 0 |
||
|
100 |
Fame |
15.. |
I 5 |
|
300 |
St. Lawrence |
1 10 .. |
4 10 |
|
500 |
Fame . |
1 10 .. |
7 10 |
The policies, which are under the seals of two directors of, and were effected by Fulton with, the Indemnity Mutual Marine Assurance Company, recited that Fulton, upon his representing that he was interested in, or duly authorized as owner, agent, or otherwise, to make assurance upon, the vessels mentioned in each policy, and desirous of making such assurance, had covenanted with the Company to pa; them the premiums. The names of the defendants do not appear in the policies. . Fulton, who was a member of the Company, paid the Company I/. 5s. and 4/. 10s. in respect of the policies of 100/. on the Fame and of 300/. on the St. Lawrence, but has not paid any of the other premiums. The defendants never were members of the Company.
The commission in respect of the policies amounts to 31/. Is., which Fulton would have been entitled to deduct and retain from the premiums.
In 1826, the plaintiffs being ignorant of the joint liabi- lity of Capets commenced an action for the amount of the premiums against Butcher alone.
Trinity term, 1826, Butcher pleaded the general issue.
find Capct.
MICHAELMAS TERM^ X GEO. IV. 329
Ist June, 1826, Butcher paid 51. Ids., the amount of the i82P. premiums of the Fame and of the St. Lawrence, into Court, ^^^>^^^^ nodcr the recent rule. The plaintiffs' costs, up to the time ^^^" of paying the money into Court, were taxed at 8/. as. 6d. Butchek
2d June, 1826, the plaintiffs received their taxed costs aforesaid, but the money paid into Court was not, though it might at any time afterwards have been, taken out of Court by the plaintiffs.
Sd January, 1828, the plaintiffs' attorneys gave notice to Bellf {Butcher* s attorney,) that he would not take the sum of 5/. 15s. out of Court, but that he should take out a rule to discontinue on payment of costs ; and at the same time left at Belfs office 8/. 5$. 6d., which had been received as before mentioned, as the costs incurred by the plaintiffs up to the time of paying money into Court, but which Bell refused to accept as a repayment of the said costs*
Ist February, 1828, a rule was taken out by the plaintiffs to discontinue the action against Butcher on payment of costs. A copy of this rule was served on Bell with three appointments to tax; Betl not attending these appointments^ the master marked the costs of such defaults at 3s. 4d.
2d February, 1828, the plaintiffs' attorneys received from Bell the following note: —
''Gentlemen, — Mr. Bell will feel obliged by your letting the appointment to tax tliese costs stand over till after the term, he being very busy now."
To this proposal the plaintiffs' attorneys assented, and in May following Bell delivered to the plaintiffs' attorneys a bill of costs from the beginning of the action, as upon a rule to discontinue. This bill amounted to 18/. 12^. 4d. From this l6s. Bd. was deducted on taxation, which taxation Bell attended, and the balance was on the ISth May paid to Bell by the plaintiffs* attorneys.
The Company knew soon after the bankruptcy of Fulton^ diat the policies had been effected by him on behalf of the defendants, and proposed that the defendants should pay the premiums remaining due.
330
1839.
POWEK V.
Butcher and Capet.
CABES IN THE KING S BENCH,
The question for the opinion of the Court is, whether' the plaintiffs arc entitled to recover the whole or any pari of the 621/. I0s.(a)
R. F. Richards, for the plaintiffs. In this case two questions arise : £rsty whether the plaintiffs would be entU tied to recover, supposing the former action had not beetf brought: and if so, secondly, whether the proceedings id the action against Butcher are a bar to the present action
This action is brought in form by the assignees of aii^ insurance-broker, but in substance it is the same as if \h& broker himself were the litigating party. An insurance- broker may sue the assured for the amount of the pre* miums, although he may not have paid those premiums to j the underwriter, according to the practice at LloycFs. The i present case, however, differs from the common form. Here the contract is under seal, and contains no direct ac- knowledgment of the payment of the premiums, but a covenant is taken from the broker that he will pay the pre- miums. In Dalzell v. Mair{b) it was held, that in an action by the assured against an underwriter for a ritum of the premium, the policy, whereby the underwriters confessed themselves paid the consideration due unto them for that assurance by the assured, was conclusive evidence of the receipt of the premium by the defendant. That case, it must be admitted, differs from the present, as there can be no estoppel here arising out of conclusive evidence of pay- ment Lord Ellenboroughy however, in giving judgment, says, '' it is well known that there are running accounts kept between the insurance-broker and the underwriter;
(a) At the conclusion of the case it was stated that it had been agreed '^ that the Court should be at liberty to draw aay conclosion from the facts stated, which a jury ought to have drawn/' The Court always has this power upon a spe- cial cote, though it is otherwise upon
a special verdict. But the Court has, of late, frequently said that conclusions of fact ought to be stated in special cases, and that they ought not to be called upos to decide both on the law and tb« fact. (6) 1 Campb. 532.
Power
MICHAELMAS TERM* X GEO. IV.
and Lord Kenyon held that the former^ before paying the premiams to the latter, might maintain an action against the assured to recover the amount of them as for money v.
paid:' In Airyv. Bland {a). Lord Mansfield MovieA the ^JJcrpw. assignees of a broker to recover premiums which the latter bad not paid. The opinion of Lord Ellenborough in Da/- zell V. Mair, and that of Lord Mansfield hi Airy v. Bland, are decisive to shew that if no covenant had been taken in diis case, the defendants would have been liable to pay the premiums to the bankrupt. It is evident how the differ- ence arises between the case of premiums of insurance and other cases where no action for money paid will lie without proof of actual payment. It will be said that the differ- ence arises from the recital of the payment contained in the policy, but in an action against the assured they would not be bound by the acknowledgment made by the under- writer. The true ground of distinction is this, that the insurance-broker is the agent of both parties; in respect of the premium he is the agent of the underwriter. In Minett and another, assignees of Barchardv. Forrester {b). Sir James Man^U in delivering the judgment of the Court, says, " The broker is agent for the assured, and also for the un- derwriter; he is agent for the assured, first, in effecting the policy, and in every thing that is done in consequence of it; then he is agent for the underwriter as to the premium, but for nothmg else; and he is supposed to receive the premium from the insured for the benefit of the underwriter, but the whole account with respect to the premium after the insurance is effected, remains a clear and distinct account between the underwriter and broker. Exclusive of fraud and other similar circumstances, there is an end of every thing with respect to the premium, I mean between the in- surer and the insured. The insurer, with respect to the insured, is supposed to have received the premium; the broker in fact gives the underwriter credit for it in his books^ and the underwriter debits the broker for the amount of
(a) Mareb« Insurance, 309. (6) 4 TaunL 541 n.
Power
V.
332 CASES IN THE KING's BENCH,
1899. the premium in his books, and there is a running account between them.'' If the Court should hold that the practice at LloytTs, in the cases cited, ought to be discontinued, a diiB- BuTCHER culty would arise to the underwriter in obtaining payment! In De Gamifide v. Pigou (a), it was held, that an under- ift'riter sued by the assured for a loss, could not set oflf the amount of the premium, although such premium had never been paid. In Grove v. Dubois, Buller, J., said that it made no difference, whether at the time of the policy the underwriter knew the principal or not, and that he gave credit only to the broker. In Edgar and another, assignees of Earden v. Fowler, it is considered as acknowledged law, that the underwriter may sue the broker. It follows that the assured cannot be sued by the underwriter, but must be liable to the broker. This is much stronger than the ordinary and common case. Ordinarily the underwriter cannot be sued, because credit is given him by the broker- that is merely an inference.
Here, the underwriters have taken a covenant under seal They not only give credit to the broker, but they obtain from him a security of a higher nature. This is much stronger than the ordinary case, for this reason, that Fulton was a member of the Company. [Baykif, J* It does not appear that a member was, by the rules of the society, entitled to (effect insurances upon property not being his own.] Such insurances were allowed to be made. Foy v. Btlliff), ^ Mavor v. Simeon (c), will perhaps be relied on by the de- fendant ; but those cases were decided on the ground of fraud. [Parke, J. The case might be put thus: — The broker has done more than is usually done, he has given the defendants the full benefit of the insurance, he has per- formed a service, in the course of which he has entered into a covenant and discharged the assured from their lialNlily to pay the premium to the underwriters, and they are in the «ame situation as if the premiums were actually paid.] The broker never has paid and never can pay, and the assured
(a) 4 Taunt. 246. (5) 3 Taunt. 498. (c) Ibid. 497.
MICHAELMAS TERM^ X GEO. IV.
would ride off without any payment. [Littledale, J. The: particulars contain no specific claim for the 3\L iOs.] The.
POWEH
31/. \0s, is contained in the premium, and would be a de<- v,
duclion to be made by the underwriters out of the pre-* - ^od'cAPET, niums in favour of the broker or his assignees.
If. It is contended that what took place in the former action was a bar to any further proceedings. If the money bad been paid and nothing further had been done, the former action might have been a bar. The payment, how** ever, has been long since waived. That took place in June^ J827. In January, 1828, the rule to discontinue waa served. If the defendants had meant to insist that the previotts payment had put an end to the action, they should lave repudiated the rule to discontinue. They should not have acquiesced in it, and taxed and received their costs. So far from repudiating the rule to discontinue, they write in February to request a postponement of the taxation. It does not stop there. Beil attends the taxation. But if the* money had even been taken out of Court by the plaintiffs, tbe subsequent proceedings would have set the matter at '•fge- [Parke, J. That should have been replied,] The whole matter was in fieri. Nothing was taken iu sati^ae^ tiott of the former debt. A former judgment is no bar where the plaintiff sues upon two causes of action and re- covers upon one only; Seddon v. Tutop (a). It is otherwise if the demand is one and the same in both actions. [ParAe, J. Does not your replication admit that the causes of action are the same ?]
Broderick, contri. The principle is not disputed, that an action cannot be maintained for money paid where no money has been paid; but it is said that though this is so in general, it is not so here. It has however been held, that
(«) 6 T. R. 607, and 1 Esp. Campbell, 3 Wils. 304, and 2 W.
N.P. C.401. And see M. 11 R. Bla. 897; Bradford v. Bryan^
S,Firi.Abr./</. Trespass, pi. 207; Willes, 268, and 7 Mod. 349;^
Xdcdav. Barnard, Cro. Car. 35; Ravee r. Farmer, 4 T. E. 146;
Winch, Eot. 62, ^9; Kitchen v. Smith v. Johnson, 15 East, 213.
334 CASES IX THE KINO's BENCH,
1829. an agreement to pay is not sufficient to support such an ^"T^"^^ action. In Taylor v. Higgins (a), a note had been received V. in payment and satisfaction. [^Bayky, J. Does it appear
Butcher ^i^^^ ^\^^ Court considered that the principal was discharged 1] Maxwell V. Jameson {b). Where an agent intervenes, he always acts for both parties. The intervention of an agent is therefore not the true ground upon which the assured is discharged from his liability to pay the premium to the underwriter^ in the case of an ordinary policy. The true ground of his discharge is the estoppel arising out of the receipt. IParke, J. Here, the underwriter insures in con- sideration of a covenant f and not in consideration of money,] He case of an ordinary policy is an exception from the general rule, which does not apply here* It is not pre- tended that in this case there wi6 a running account be- tween the broker and the underwriters. Airy v. Bland does not go the length which has been contended. Jn^ drewv. Itobinson(c). {^Bayley,J. It is material to con- sider whether the underwriters could have called upon the defendants for payment of the premium.] They were not estopped by what had taken place between them and the broker. In Peterson v. Gandasequi (d) it was held, that if at the time of a contract made by an agent, the principal is unknown, the other party may, as soon as the principal is discovered, sue either the principal or the agent — at his elec- tion. Here, the underwriters made their demand upon the assured, as soon as they were known. But supposing that the underwriters could not recover against the defendants, it does not follow that the assignees of a broker are entitled to recover in the present state of things. The assignees of the broker may pay the premiums to the underwriter and then sue the assured. The plaintiffs are.proceeding against the defendants for money paid, and not for work and labour done by the bankrupt. The commission of 31/. lOs. is payable by the Company. Between the Company and the
(a) 3 East, 169. Wilkinson v. Clay, 6 Taont. 110,
lb) 3 Barn. & Alders. 51. and 4 Campb. 171.
(c) 3 Campb. 199. And see (d) 15 East, 62.
MICHAELMAS TERM, X GEO. IV.
bankrupt it is a partnership transaction. {^Parke, J. Al-> though the bankrupt be a partner, yet if he enters into a covenant with his partners he may be sued upon such covenant, l^he broker says to the assured, *' I have got the policy underwritten, which is as valuable as if the pre- mium had been actually paid."] Where no money passes for effecting a policy, it is difficult to say how much the broker is entitled to receive.
The issue raised by the replication is found for the defend- ut [Bayley, J. The 5L 1 5s, was never received by the plaintiffs. There was no entry on the record to shew that the suit was put an end to.] The taxation of costs is as between these parties tantamount to an actual receipt and acceptance of the money. If the plaintiffs relied upon any thing which took place afterwards, they should have replied such matter specially. The officer signs the receipt, and after the taxation of the costs he becomes, in respect of the money paid in, the agent and banker of the plaintiffs, who are therefore in the sanae situation as if the money were in their own possession.
335
1829.
Power o.
BUTCUER
and Capet.
Bickards, io reply. It is said that the discharge of the assured from the premium in the ordinary case arises from the language of the receipt. [Parke, J. And the account between the broker and the underwriter.] No such estop- pel can arise where the action is not against the underwriter. [UttledaUfJ, Could not a count have been framed to meet the bets of this case ?]
Bayley, J. — I am of opinion that the plaintiffs are en- titled to recover the whole sum claimed in this action, which is brought by the assignees of Fulton, an insurance- broker, for work and labour, and premiums, against ship- owners^ by whom FuUon was employed to effect certain policies with a company of which he was a member. Ge- nerally speaking, according to the course of business, the assured does not himself pay the premiums immediately to the broker, nor the broker to the underwriter, but it is con*
386
1829.
Power
o.
Butch EB
and Capet.
CASES IN THE KINO S BENCH^
sidered as if they were paid instanter. The underwriter looks for payment to the broker, not to the assured, of whom he often knows nothing. The broker is the parly who, as principal, is to receive of the assured, and pay to the underwriter. The policy in the present case departs from the ordinary form. The policy is by deed, and by it the underwriters take the broker's covenant to pay the pre- miums. This action is brought on the ground that the broker was entitled to call upon the assured for payment of the premiums. If the assured are not liable to be called upon by the underwriters, the failure of the broker could not destroy the right to call on the assured. It seems impossible to say that the underwriter has any claim on the assured. In ordinary cases the underwriters would not have any claim, because, by the form of the policy, they would have confessed that the premiums had been paid. No promise can be raised by implication where the parties have entered into jii\ express contract. Here (a)i there is an express covenant. The assured has the same benefit as if money had been advanced by the broker on his account. If the defendants cannot be called upon to pay the underwriters ; they ought to pay some one. The broker, if he has assets, is liable to the underwriter for the full amount of such premiums, and his estate is now liable for the full amount of such premiums. A difficulty arises upon the form of the action, whether it is rightly brought or misconceived. This cannot be treated as money paid. Though the assured are no longer liable to the under- writers, yet in point of fact the premiums have not been paid to the underwriters. A case has been put by Mr. Richards, where notes were considered as money. Here nothing is paid, but security is given. If the 6£l/. had beeu paid, the broker would have been entitled to deduct 31/. Is. This 3i/. \s. would be considered as compensa- tion for the broker^s trouble. The count for work and la- bour clearly covers this part of the demand. With respect
(0) No promise however was here ^ho were partk* to the txpreu fought to be implied between those contract.
MICHAELMAS TERM, X GEO. IV.
to the grounds on which the plaintiffs are entitled to the residue. In the latter part of the first count, the words " Qoderwritten and subscribed'' may be rejected, and if enough remains, the plaintiffs may recover upon the words " cause and procure to be underwritten." The plaintiffs are not bound to prove the entire count. These latter words seem fairly and exactly to meet this case.
Upon the special plea, the affirmative lies on the defend- iDts. In that plea it is alleged, that not only the 8/. 5s. 6d. bot also the 5L [5s. were accepted and received by the plaintiff. In fact the 51, \5s. remained in court. There may be cases in which the money brought into Court would be at the risk of the plaintiff, in case he refused to take it out after receiving the costs. But the payment into Court is not of necessity payment to the plaintiff. If the plaintiffs abandon the claim and discontinue the action they are at liberty to do so. I do not think that the money paid into Court was effectually received by the re- ceipt of the taxed costs.
LiTTLEDALE, J. — The first point is, whether the plain^ tiffs have launched themselves, and have made out a case to recover any thing. The term " insurance" in the parti- culars of demand may mean any thing to which the broker was entitled by reason of his having effected these policies. The 3l/. Is. commission, I think, may be recovered, inas-* much as the broker was entitled to retain it out of the pre- miums which he had covenanted to pay. In the common form of a policy the broker is entitled to recover against the assured by usage, otherwise it would be difficult to say that the principle was well founded. Here, instead of being liable to pay over the premiums to the underwriters, as matters of account, the broker has bound himself by cch venant to pay those premiums to the underwriters. If the premiums had been actually paid, the assured would have been bound to repay the amount. Here, they are not ac- tually paid, but by the usage they are to be considered as
vou V. z
"336 CASES IN THE KING's B£KCH,
18«9. ff^id; and I think the pltii»Uffs might have dedared m '^"'^^ upon a apecial undeitaking lo indennify Fulton againit htt y, covenant. I have no doubt whatever ihaC if a «pecifti
•Ifd'crpCT ^^^^' aUtiug the form of the policy; and that Fultou bid covenanted at the request of the astnred, and a promise to pay the broker before actual payment by him to the undeN writers, would have been anpported by the usage. I wiU not| however* say that the count in the present action is bad, as my learned brothers are against me. In the first count, the claim for work and labour ia confioed to com* mission, aad for divers sums of money before that time ad- vanced and paid by Fulion for the defendanta, at their re- quest, to divers persona, as and for certain prenunms and rewards for underwriting and subscribing the said policies. Then comes the part upon which the plaintiffa are said to be entitled to recover, " and for divers sums of money due and payable to FuUou, for and in respect of Fukon's having before then underwritten and subscribed, and caused and procured to be underwritten and subscribed, divers policies of insurance for the defendants at their request*' That part of the count cannot be separated, because it has no meaning apart from the rest. It appears to me that tke words '* divers premiums" can apply only to policies un- derwritten 6y the j»Aitit<s^^ which are out of the ca»e. The amount may in some sense be said to be due to Fulton, but it is not a direct debt due from the defendants to Ful^ tan. If this objection prevailed, the assignees wouU have to bring another action.
There would have been e\idence to go to a jusy that the plaintiffs chose to leave the money m Court, aad thit is the same thing as if they bad actually received the mooej. Afterwards the plaintiffs take out a rule to discontifitie on payment of costs; — the costs are taxed aad paid; — the defendant jBn/cAcr assents to the discoatiauaoce. It is said that the plaintiffs ought to have replied the wmver. It seems to me that that was unnecessary. If the fact had been that the two sums had been accepted and received ia
MiCHAELMAS TERM, X GEO. IV. S^^
Ml salisfaetioii, and the phihtiffs had afterwards didtdfi- iQ^t^^
faadi the action, it frould have been iiecessarjf to rteply ^'^^^'^
the vaiveh Here, the acquiescence in the discontinuance ^'^^
is no otherwise material than as fonniiig some evidence ^utcher tfat the p?atrttiff^ nevftr intended to take the tlidney in full ^tisftction.
Parke, J. — I am of opinion that the aiitioli t!annot be mtontaiiied fot money paid. Without proof of payisienti Of of tfiflt wtHtb lis Equivalent to paymeflt, tto actioti fof nosey puti tkn be tHaiAtained 5 Taylor v. Higginh{a\ Mtix- ^11 V. Jameson (A). In the case of art ordinary policy, it h^i ^ i^ld th^t an action for money paid lies, bnt that t^M opw f*ro grdfttrds, whicfa do not occur id the present case. First, the receipt as for money paid, — and, secondly, the ptssing the amount in account, the effect of which may be to entitle the broker to treat the amount of the premiums as money paid by him to the underwriter, and re-lent to him* Iq the ordinary case, the claim for ntoney paid rests on the fonn of the policy, (which contains an ackhotvled^inetft of the (>ayment of the premium,) — and on the accodht betweeo the broker and (he underwriter. Neither that form >or the aeooarnt are t6 k^ found in the |[>resent case. The plaintift could no doubt recovfer 31/. Is. for work and la- hour. The plaintiffs claim in respect of divers policies of nuoraoce which Fulton bad cati«ed and procured to be QDderwritten and subscribed. He has caused them to be underwritten and subscribed in as beneficial a manner for the defendants, as if the premiums had been actually paid to the underwriters. The declaration would, perhaps, hare been better in a diffierent shape. If it had contained ^ special count, such count would have been on the im- pbed undertaking to indemnify the broker against his co- venant; if an indebitatus count had been framed to meet
(«) 3 East, 169 ; et vide suprd, (6) 2 Barn. & Alders. 51 ; suprd, ^' 334.
z2
340
1829.
CASES IN THE KING S BENCH,
the circumstances of the case^ it would have been a count for work and labour bestowed by the bankrupt in effecting the policies. The objection only amounts to an imper- fection in the description.
The plea is, in substance, a plea of payment and accept- ance in satisfaction (a). If the payment of the money into Court operated of itself as a discharge, the defence should have been so pleaded. Under the present plea, the de- fendant has undertaken to shew that the plaintiffs actu&l\]f received the money. If the defence of a discharge by pay- ment of the money into Court, is to be considered as having been given in evidence by the defendants under the plea of the general issue, non a8sumpsit(&), what took place after the alleged payment would amount to a com- plete waiver of such a defence.
Postea to the plaintiffs.
(a) And see Francit v. CryweU,
5 Barn. & Alders. 886; S. C by its proper title of Francis v. Cry idly 1 Dowl. & Ryl. 546.
(b) Payment made and accepted in satisfaction, whether made by one or by all of several promisors, might, previously to the Rules of H. T. 4 W. 4, (which see 3 Nev.
6 Mann. 7,) have been given in evidence under die general issue,
non assumpsit After those rules had come into operation, sacb a defence must have been pleaded specially. It would not, however, have been necessary to confine the defence, as was done here, to the exoneration of the party nuking the payment, as the acceptance in satis&ction would dischar^ the cause of action as against all tbe promisors.
END OF MICHAELMAS TERM.
CASES
AAGUED AND DETERMINED
nr THE
COURT OF KING'S BENCH,
IV
HILARY TERM,
IK THE TBMTH YBAR OF THB REION OF QfOBOB IV.
MEMORANDUM.
In the coarse of last Vacation the Honourable Sir James Burrough, Knt« resigned his office of one of the Justices of ibe Common Pleas (a).
Id the course of this term he was succeeded by Mr. Serjt Bosanquet, who took his seat on the bench on the 3d of February, and afterwards received the honour of loigbthood.
(a) To which be had been appointed in Easter term, 1816.
WabE V. CaNN. 1830.
•By an order of Sir L. Shadwell, V. C.« a case was stated A, devises
for the opinion of this Court upon the construction of the his heirs but
foUowing devise in the will of one William Reynell: ^ All in case B. dies
the rest, residue, and remainder of my personal estate and then to C. and
laads in South-Tawton and in Sampford-Courtenay, I ^^ heira, or in
. . case B, ofiers
give unto Richard Ware, and to his heirs for ever; but to mortgage or
levy a &e, or nSttz recovery,upon the whole or any part thereof, then to goto C.and his heirs — B, and ^ ue strangers in blood. The fee vests in B., and the executory devise to C. is void.
342 CASES IN THE KING's BENCH,
1830. ^° c^s^ Richard War^ dies i)irit||ou| }^em, then to John Powlesland and bis heirs ; or if in case Richard Ware offers to mortgage or suffer a fine or recovery upon the whole or any part thereof, then to go to the said John Powlesland and his heirs." Powlesland was a stranger in blood to Ware.
The queatioos «t9ted for th^ opii^ion of this Court were —
First : What estate and interest Ware took.
Secondly, Whether, if Ware conveyed a part of the de- vised lands to a purchaser in fee, the purchaser's title could be affected by IVare's afterwards mortgaging the residue, or levying a fine, or suffering a recovery thereof.
Thirdly. Whether, if Ware conveyed the whole of the devised lands to a purchaser in fee, the purchaser would have a good title to the fee against all persons claiming under the will (a).
ff. Rogers for the plaintiff. Two principal questions are raised, — the first is, whether Ware took an estate tail or a fee. This is disposed of by the fact stated^tbat Powlesland, to whom an estate is limited after a devise to Ware apd lys heirs, was a stranger in blood to Ware. [Parke, J.. That point was abandoned in the Court of Chancery.] If that point was abandoned, it \yill still be necessary to send a special certificate stating such aban- donment. Right V. Hamond (A). The point is rendered so clear, that in Tilburgh v. Basbut (c), the Court would not allow it to be argued.
The second point is one of greater importance. The estate is.giveu oyer not^upo^. s^iooatv>9^ b^ut if Ui&teu^l offkrs to. moitagage,, 8^c. It i^ ^ ckar e^taWsbe^ pnncipl^)
(ft) Lord Tdfa^ewioi,, C. J^, pJh case s^t by. th« VU>q. Ch#mcellor
served, th^t the 2d ai^d 3d q^ues- should have slated U^e facts oat
dons were not properly raised, — of which those questions arose,
that it was irregular to propound (6) 1- Stra« 4S9.
specuktUve questions for th^ opi- (c) % Ve^ sen. 89. Hipp of the Cour^ — and that, the
HILABT TERM, X GEO. IV.
tbi thmigb a restriction upon mi act may he good, jet a nitrictkNi apoR aa offer to do soinethiiig, u too vagae; Aflcordtiig to the oM eases, tbia is bd4 an iasuaUe fact; Pinxf V. Win (a)* In that ease* the devise over was difected by the will to take effect, is case the devisee ii tail sbottW " go about or attenpt to alien or sell the stid nwssaages^ &c. ;" and it was held that a feoffment by tbe devisee in tail did not onke his estate void. The (Unctioa as to the validity of conditions prohibiting attempts to do an act, and of those which prohibit the act it»lf,is clearly hid down in Miidmay*»cmBe (^). In Brad- kfi.PdxolQic), the words of the Condition were very simibr to tbe present, bat the Master ol the RoQs held tint the coadition was of no effect (d)* Tliere is no case wkere a condition restmining a right6il alienation has beta sustaioed. Bat an alienation by an infant may be restrained ; so, a fine by tenant in tail* because it is a wroogful conveyance, which not only destroys the estate ttil, bat also devests the reversion and the remainder, if aiij(f). [BayleyJ. Tenant in tail cannot be restrained boa aoffering a recovery.] Becanse that is a rightful eon- vejaoce. In the present case, the restriction against levy- ing a fine is void, because that is a lawful conveyance for tcsim in fee Mmple. Upon tbe grant of a oMUor in fee, the gnuitee cannot be restrained from making grants of copyhoUs. [Bayky J. A copyholder has a right vested ii kirn.] The condition wooU be void though it merely re-
343
i8sa
(a) 1 Vcntr. 321, and 3 Keble, 787. PoOerfen has reported the cne Bore folly, and has stated bis own aijomeot at length; but he kasDot given the judgment of the CoQit. Poll. Rep. 435.
(^6Co. Rep. 40.
(0 S Vesey, jno. 324.
(if) In Brodley v. Peixoto, the vords were "I will and roost ^cdj ordain, that if my wife o^ uj oDe of roy children shall at-
tempt to dispose of all or any part of the bank stock, such an attempt shaH exclude them, him, or her from any benefit in this will, and shall forfeit the whole of thei share, &C.'' Nothing turned in that case upon the distinction be- tween the act and the attempt,
(«) As to the effect of fines and recoveries in devesting estates, see tbe notes to Doe d. Cooper v. Finch, 1 Nev. & Mann. 130.
CA9E8 IN THE KING S BENCH^
strained the lord from regranting after the escheat of a copyhold. Littleton says, sec. 360, '^ If a feoffment he made upon such condition, — that the feoffee shall not alieo the land to any one, this condition is void, because, when a man is infeoffed of lands or tenements, he has power by law to alien them to any person." And, s. 36l, '' But if the condition be such, — that the feoffee shall not alien to such a one, naming him, or to any of the heirs or issue of such a one, &c., which conditions do not take away all the feoffee's power of alienation, such condition is good." Also, s. 362| " If tenements be given in tail upon such condition, — that the tenant in tail and his heirs shall not alien in fee, or in tail, or for the term of any other life except their own, such condition is good." Upon which Lord Coke says, ** And therefore, if a gift in tail be made upon condition that the donee, &c. shall not alien, the condition is good to some intents and void to some ; for, as to all those alienations which amount to any discontinuance of the estate tail, or are against the statute of Westminster 2 (a), the condition is good without question, but as to a common recovery, the condition is void, because this is no discontinuance, but a bar, and this common recovery is not restrained by the said statute, and therefore such a condition is repugnant to the estate tail.'' Here, the devisee is restrained from mortgaging, levying a fine, or suffering a recovery, all which are lawful conveyances for tenant in fee simple. A condition requiring the tenant in tail not to leat>e for bis own life is void, Sheppard's Touchstone, 133. In Doe d. Mitchinson v. Carter (Jb\ Lord Kenyon, in giving the judg- ment of the Court, says, '' A grantor, when he conveys an estate in fee, cannot annex a condition to his grant — not to alien; nor, when he conveys an estate tail— a condition not to bar the entail. Such restrictions are imposed to pre- vent perpetuities." The same rule was laid down and acted upon by Grant, M. R., in Bradley v. Peixoto (c) ;
(<i) IS Edw. I, r. 1, (the statute (6) 8 T. R. 57. tie donU.) (c) 3 Vcsey, jun. 324.
HILARY TERM, X GJ^O, IV.
Ems v. Ross (a), is another authority to the same effect {Here he was stopped by the Court.]
Preston, contri^. The first pointy namely, as to the quantity of estate which passed to Ware by the devise, is quite settled : it is too clear to be disputed. But there is a shorter answer. This is not a condition^ but a condi- tional limitation, an executory devise. [Bayhyt J. Who is the executory devisee f] The person who would take the remainder, supposing the estate limited to Ware had been an estate tail. It may be doubted whether Littleton has act stated the rule too broadly. A restraint is not void, if imposed for a reasonable time or the life of the party. It is conceded, that a man may annex a restraint upon alie- nation to a particular estate. The condition cannot be considered as repugnant to the estate conveyed, except in the case of an estate tail or an estate in fee. The real ground upon which conditions prohibiting attempts at alienation are void, is, that where you cannot restrain the alienation itself, you cannot restrain the attempt, and thereby produce the same effect in defeating the aliena- tion. Bradley v. Peixoto and Ross v. Ross cannot govern the present case, because those were cases of personal estate, which is governed by the civil law, Beachcroft v. Broome {b). Eveiy testator who has devised a fee may affix a qualifica* tion,(the benefit of which he may reserve to his heirs, or give to strangers,) by way of executory devise. The king may- impose a restriction upon his grants, prohibiting alienation generally, even at the present day, Com. Dig. Condition, (D.) His power of imposing such a restriction is derived, not from his prerogative, but from his interest in the estate. Here^ there are two limitations, one of which is admitted to be void; the second is good as an executory devise. The testator might have good reason for restraining his devisee from executing a mortgage. He might say, I will not give
(c) 1 Jac. & Walk. 164. {b) 4 T. R. 441.
CASES IN THE KING S BENCH,
my estate ta a oian who would be aiicb a fool as ta iiiort« gage it. Then there is 90I aa abaolule restraint upon an alienation. It is open to the party to convey by feoffment, or by lease aad release. If the testator had said that the estate should go over upon the party's goiag to ibe top of St. PauFsy sucb a limitation would have been good.
The next question is» whether the mere ofkr ta morlg^e. is open to the objection which lias unexpectedly been taken. It is said| tliat an attempt cannot be put in issue. That may have been law in the reign of Elizabeth, but cannot be so in that of George th« Fourth. What is said in Mildmays case must be takea cwn grano seUis, and with reference to the restriction then, under the consideratioa of the Courts What is an offer is matter of evidence for a jury. If a man actually mortgage, it cannot be doubted but that he has offered to mortgage. If a bribe ts offered tq a voter, tlie crime is compkte, although the bcibe be not accepted (a). Ware took an estate in fee, subject to an eaecutory devise, — and that devise over is lawful, reasonable, and, depending upon a fact, capable of uiaU
Rogers 'm reply. A man cannot convey property and withhold the itucidtnis to that property. An act which cannot be restraiaed by condition cannot be restrained by aift executory devise over,, where the conditian would be contrary to law, Shepp. Touchsi, 133, In one of the cases referred to by Lord Coke, in the margin of Co, Li/^ namely, IS If. 7, 23 (fi\ tbe Court would not bear it argued
(a) Vide tamsn Heruloa v, Faw- if the donee, or any of the heirs of
eeiif 4 Ner. & Mann. 585. his body, shoold alien in fee, or
(6) P. 13 H. 7, fo. 82, 25, pL in fee tail, or for term of lifii, «•
9. That was a case of formedon should grant in any other maoner
in the remainder, in which the a greater estate than they bad,
tenant pleaded that his ancestor then the donor and hts heirs might
was seised and gave the manor in relator ; and that eocb a person,
tail, remainder to the right heirs issue in tail, being sdsed by force
of the donee, upon condition that of the entail,, dieoooiiaued tbe
HILARY TERM, X GEO. IV.
that such a restraint could be annexed to aa estate in fee mfi%. Lord Coke also cites 21 H. 7, 11(a)* and 91 H.6{b), Shepp. Touchst. 129, ISl.
against law» it seeco3 to be void altogether. Wherefore, &c.*' Kcble^ conlri. *'It seems to roe that one may make a condition with a fcoflfee in fee 9iniple that he shall not alien." Here Brian J. interrupted him, say- ing— ^Xhat they would not hear him argue to this purpose (a cest conceit) f ** because it is merely con- trary to our common erudition, and is now become in a mcuiner a principle; for by this means we should disturb (transpoier) all our ancient precedents. Where- fore say no more of this point.''
(a) H. 21 H. 7, fo, 11, pi. 12. That was a case in the Common Pleas to this effect. A man seised in fee made a gift in tail, upon condition that if the donee died without issue, or if he or his issue aliened in fee, then his estate should ceasei and the land should remain to a stranger. Tbe donee aliened in fee, had issue« and died. And the question was, whether he in tj^ remainder might enter or not. Kingtmil — In tbe firsic place* when a.man has land whereof he wishes to create a particular estate, he may make it. conditional. As if I give land in tail, — u^a condition that neither the donee npj his heirs shall alien in fee>.— ^a condition is good; for,.if he aliens in fee, he does wrong to me who am in the reversion : so that this condition is good, to restrain him ftom doing an act contrary to law. And if I make a lease for teim of life, apon con<i^tion that he shall not alien over his
to a stmnger in tail, re- mainder to the ancestor of the demaodant in fee, and because this discontinuance was against the condition, he, as heir, entered, lasqpporting a demurrer to this plo. Rede says,—" The condition B contraiy to the estate, because te donee is tenant not only of tk esute tail, but also of the fee siipple. For where there is a feoffinent in fee upon condition that the feoffee shall not alien, thf QooditioQ is void, because it is ©crely contrary to the estate ; for the condition, goes in de- feasance of all his estate. Where- fon it should be taken as void io respect of the remainder in fee, bat being void in part it is void in all; and suppose that I make a lease for a term of life, upon coodiiion that if I grant the re- ▼enioo, the tenant shall have fee, I say that this condition is void, be^iW by the grant of the revei^ sioo, a third person has a rightful iflCtrest before the condition caa take ellecc So. here, by the grant of toe remainder of the fee simple Mf tbe donee hijopsell^ by rea^oA of tbe interest which be had ia the fee sinipJie> tbe condition, annexed to the estate tail cannot take cSect, becaase i( goes in destruc- tioB of both. And ijt is clear tbat this fee. simple can lawAiUy he aliened, ootwitbstanding such CQocfitioQ, faiecaMse it; is contcaiy to.iheeKate of fee simple. Aad^^ tktifetqne, becaase tbe condition is io pait contnuious, and in pait
348
CASES IN THE KINGS BENCH,
1830.
Waeb
V.
Cakn.
estate, the condition is good^for I may make such condition as I like, with every one who will take such an estate from me. And therefore it seems to me, that if I infeoff one, upon condition that he shall not alien to any one, the condition is good. And if I make lease for term of life, upon con- dition that if he die the land shall remain to J. S., this remainder does not take effect by the condi- tion but by the livery. And the law is the same of a gift in tail, upon condition that if the donee die without issue the land shall remain over. But the case at the bar is, that if the donee alien in fee, then his estate shall cease, and the land shall remain to a stranger; so that here the re- mainder can only take effect upon the condition. Then it is to be seen whether this condition be good, and it seems to me that it is not, for the condition is in itself repugnant; for when the donee has made feoffment in fee, then the feoffee has a fee in him, and the land cannot remun over when another has a fee therein in pos- session. And therefore the con- dition is in itself impertinent and repugnant. As in this case: I make a lease for term of life, re- mainder over, and there was a condition that if the 6rst lessee pays to me a certain sum, &c., J. S. shall have the land in fee immediately after the death of the first lessee ; I say that this is void and repugnant in itself, for there is a mesne estate which can- not be defeated by the condition which comes afterwards; for it cannot be that he shall have the remainder for the term of his life,
and that the other shall have the land immediately after the death of the first tenant. So here, by the feoffment, the feoffee has fee sim- ple, during which the remainder cannot so take effect, for another has a mesne interest ; and a stran- ger cannot enter in this manner. And the common case proves this ; if I make a lease for term of life, reserving a rent to a stranger, the reservation is void, because he was a stranger to the lease. The law is the same, if I say that for non-payment a stranger shall enter ; the entry is void. So here, notwithstanding that such entry might be reserved to the donor, still to a stranger it cannot be reserved ; and if the donor enter, he cannot give the land to a stranger by this entry. And thus it seems to me, that in no way can this remainder take effect; for there is a case in our books which proves this case. In quid juris clamat against a tenant for term of years, he said that the lessor leased to him upon condition that if he granted over his remiunder, the tenant should have for the term of his life — and thus he claims for term of his life ; and it was adjudged, that because this condition was repugnant in itself, he should only have for term of years, for when the reversion of the freehold was granted, then the lessee could not by the con- dition have freehold, for this was in the grantee of the reversion by the fine. So here. Frowiche — It seems to me, that he shall not have this remainder in this form, and still the condition is good, for the condition is, that if he die without issue or aliea in fee, the
HILARY TERM, X GEO. IV.
349
estate shall cease; so this re- mainder is dependeot upon both the one condition and the other, and therefore if any words in the deed can make the condition and the reinaioder dependent thereon to be good, still that condiUon is good, and the condition is in the disjunctive; and for one part it is good, that is to say, if he die without issae, and although it be Toid for the other, yet the con- dition is good But 1 think that no one by such a condition can grant any action or entry to a stranger, but only a chose in pos- session. As of a lease for term of life, remainder after the death of the tenant for term of life to another in fee, there he has the remainder in possession ; but if I make a lease, rendering a certain rent to a stranger, the reservation of rent is void, because he cannot have the rent unless he enter and distrains for it, and I cannot ^ve distress to one who is a stranger to the lease. The case here is, the g^ft was in tail upon condition that if he discontinued in fee, hia estate should cease; and I have taken it, that an estate of ioherit- snce cannot cease by force of the condition broken only, but there most be an entry together with this. But of a particular estate, ss for term of life, the law is other- vise. And the reason is, that such estate may cease and be de- tenuioed by par^l as well as by wrrender, and therefore it may be detennined by the words of the condition in the same manner, for heto€k this at first with the con- dition, which is understood to be to agreement that he shall sur- fcoderhis estate if the condition
be not performed. So that such a condition for the taking of the estate countervails a surrender for the non-performance of the con- dition. As if I make lease for term of life, or of years, upon con- dition that if I pay him 20^ on such a day, his estate shall cease. Now, by the performance of the condition, the estate determines without any other entry; but of an estate of inheritance, the law is otherwise, for this cannot be de« termined by naked words; nor can it pass by such means, but by livery. And therefore if I make feoffment upon condition that if I pay certain money upon a cer- tain day the estate shall cease, and I pay the money, still the estate is not determined until I have entered. The difference is apparent. But if I make lease for term of years, upon condition that if I alien the reversion in fee, he shall have for term of life, the condition is good. And the cause is, that the fee remains in me who made the condition; and when the fee remains in me I may con- didon it in such manner as I like. And I will not agree with the case which Kingsmil has put, —of quid juris clamat,^{oT when the fee re- mains in the lessor, he may bind this >yith condition in whatever manner he wills. And if I make lease for term of years, upon con- dition that if I enter upon him he shall have for term of life, the condition is good; for thereby I have restrained myself firom com- mitting a tort; for if I do so, I have bound my land with the con- dition, which is good ; but, on the other hand, I cannot diminish the interest of a stranger by my con-
1830.
dfio
OA^ES IN THE KING'S BENCH,
lOOl
rfitlooi WheM nothing Vftuiaiiied in me^ but all in di« strkajget. And Vark m>w in chji ctMi here the ctmdi- Q^* tion is, thiit if he aliened in fee,
it sbCNjld remain, kt. But if he doee alieni the alienee will have the fee. Ilien *ben the alienee has thelee^ thie hm^ eannot re- main by Che oendition, for it is Mpagnabt that the alienadon sboaM be made^ and tiial y^ the remainder tboatd take eflfeet, and that for the catHe aforesaid. And for other eanse it seems void, for the rase is, that his estate shall cease faid the land remain, and a remainder cannot be without a precedent estate. Then when the estate upon which the re- mainder fthoald cease is deteN mined, the remainder cannot take effect, for it must be taken upon some estate. And for this cause, it seems, that the condition is as to this point Toid." The reporter adds, ** Note and qa. — for Vavisor was of the seme opinion.**
(*) H. 21 H. 6, fo. 33, pL 21. "Note, that this question was moved among the justices — New- ton being absent. A lease is made for a term of years, upon condition that the lessee shall not grant over his estate. A nd whether that condi- tion be void or not was the ques- tion. Faiton, — The condition seems clearly void, for in making the lease is included that the lessee may grant over his estate ; for sup« pose that a feoffment be made in foe simple, upon condition that the feoffee shall not do waste, the condition is void, because it is in- cluded in the feoffment that he may do waste; so that it is but eppatkmm in offjetio. Ytlverton, — In year case, when a feoffment i»
made in foe, upon coiidition that he shall not do waste, or that he shall not alien, t admit that the condition is void, because, at the time of the feoffment the fee and (he right pass out of the person of the feoffor, so that he has no right reserved in him, and thus the con- dition by him reserved is void; but, in the case now moved, the freehold and the fee do not pass out of the person of the lessor, so that he may well reserve this con- dition, &c. Paiton, — Suppose a lease be made for term of lifei upon such condition that he shall not commit waste, I say that this condition is void, and yet a rever- sion in fee simple still remains in Ae lessor; and I say that in sudi a case the condition is void, but this is not on account of the da- mage which may arise, but for the inconvenience (inconsistency). AiftA.— Suppose that one gives land in tail, upon condition that the donee shall not discontinue tfte entail. Is this condition void ? I think not-^for Thitning^ vrho was chief justice, here gave his land to his eldest son, upon such condition that if he aliened, &c. it shouhd remain to his younger son, and thus he made the remainder to two or three over. Astke, — I think that such a gift in tail, with the condition, is good and effec- tual; for Thiming made such a devise by the advice of the justices of his time, &c. Patton. — ^No, truly— and this I know, that it was done by the assent of such justices, but he said, that he would have the gift openly notified in the Common Pleas; and Hank, said that he might well do it, and laughed, and said that tSie whole
HILARY TER^, X GEO. IV.
The neat point is» that the cffer is net bsutbte. la Pierce V. Win, after an elaborate argument, it was decided that sach a condicion was void, both for uncertainty and because it was not issuable^ It was urged by Pottexfm, who has sported his own argument at great length, that the condi- tio Dot to attempt or offer to alien, operated as a restriction upon the act of alienation itself; but the Court thought ' that tliey must look at the express words of the will, and that they had no power to frame a different condition. In Beechcroji v. Broome the facts of the case did not call for any decision upon the point now before the Court. That case was not pnt npon the point, that an alienation by a lawful act would necessarily pass the estate to the pur- chaser. The true distinction is, that a condition to restrain legal acts is void — illegal, good. No restriction can be imposed upon any particular mode of alienation, unless that mode be illegal. Then, as here the first devise passes an estate in fee, the condition is ¥<^id. [Buyley, J* Sup- pose an estate tail granted to A., with a proviso that if A. should attempt to alien, the land shonid go over.] Upon the authority of Mildmay*s case> this condition would be void.
Cur. udv. TuU.
The following certificate was sent to the Vice-Chan- cellor.
This case has been argued before us by counsel. We are of opinion — First : That Ware took an estate in fee
condition was void, and so it Mems to me. And note, that in Assize 24, pi. 8, there was found »di a fph in Xajil, upon sik^ eon* <htiQD as is meotiooed by FuUh, aad Atcue ; and there the coodi- tioB was held good by all the Court; but it was said, that with tttpect toyi;« strnpicy the contrary » Ukw. And note, that this was
after averment; and also note, that such gift in tail was made with great deliberation upon the cooclu8k)n of an accord between Lord Fkz-Uugk and the Loiti Lescrope.'*
The reporter adds, « Vide 13 H. 4, which accords with what PaMon has said, in a writ de eftctione Jirma, fee."
352
18S0.
GASES IN THE KIKG'S BENCH,
in the devised lands, under the will, with an executor; devise over, to take effect upon conditions which are void in law. Secondly: That if Ware conveyed a part of the devised lands to a purchaser in fee, the title of the pu^ -chaser would not be affected by Ware's afterwards mort- gaging or levying a fine, or suffering a recovery of, the residue. Thirdly: That if Ware conveyed the whole estate to a purchaser in fee, such purchaser would have a good title to the fee against all persons claiming under the will.
Tenterden.
J. Bayley.
J* LiTTLEDALE.
J. Parke.
Where a trader, afler liaviQg obtain- ed his certifi- cate under three commis- sions of bank- rupt, under none of which auy dividend had been paid, was arrested for a debt con- tracted be- tween the second certifi- cate and the third bank- ruptcy, the Court refused to discharge him out of custody on filing common bail.
And such third commis- sion was said to be a nul- lity (c).
Fowler v. Coster.
A Commission of bankrupt issued against the defendant in 1814^ under which be obtained his certificate; a second commission issued in 1826, under which he also obtained his <;ertificate; and in 1829 a third commission(a) issued, under which he also obtained his certificate. The defendant being arrested upon mesne process for a debt which had accrued in 1828, Piatt in last Michaelmas term obtained a rule under 6 Geo, 4, c. 16, s. 126(6), calling upon the plaintiff to shew cause why the defendant should not be discharged out of custody on filing common bail. By the plaintiff's affidavits in answer, it appeared that no dividend had been paid under any of these commissions.
Corny n shewed cause in the same term. The plainuff is
(a) Since superseded, Ex parte LanCf in re Fowler, Mont. 12.
(6) Which enacto, ^ That any bankrupt who shall, after hb cer- tificate shall have been allowed, be arrested, (or have any action
brought against him,) for any debt, claim, or demand hereby made provable under the oommissioa against such bankrupt, shall be dis* charged upon filing common bail.''
(e) Vide lumai Ex pairte WM, U re Merrtftoeaiher, Mont. 276, rviifrd.
HILARY TERM, X GEO. IV.
not barred of his common law remedy by action. Both the last commissions issued since the present bankrupt act came into operation. The debt is not provable under the second bankruptcy, inasmuch as it had not accrued at the tiine when the second commission issued. The plaintiff could not prove under the third bankruptcy, because the third commission was a nullity, on the ground that as 15s. in the pound had not been paid under the second^ the after- acquired property (a) of the bankrupt vested in the assignees uoder that commission by 6 Geo. 4, c. l6, s. 127(b), and
353
1880.
(c) A right of action accruing to the bankrupt against his assig- nees, by virtue of an express con- tnct with them, (CoUs v. harrow, 4TaaDt 754 ; Chippendale v.Tom- linom, Cooke's B. L. 6tb ed. 446 ; 5itt V. (hb(fm, 1 Esp. N. P. C. J 40;) would not, however, vest in those assignees.
So, if the bankrupt, with the consent of his assignees and cre- ators, trade for his own benefit, it woold be a fraud upon subsequent creditors to seize the property with which they bad entrusted him, spon the fiiith of such assent, and distribute it amongst the old ere* diton.
Aootherspecies of property which covld not vest in the assignees nnder a precedent commission, but which might be rendered available to creditors under a new commis- BOO, would be goods which, sub- lequently to the awarding of such pneedent commission, are in the possesnoQ of the trader, by con«» sent of the true owner (such owners not being the former assignees, ^«&MiT. CkerreUj 7 Bingh. 663, s&d 5 Moore fc Payne, 680.) Such Swds could not vest in the ex- i<tiog assignees under 6 Geo. 4,
c. 16, s. 197, as part of the fu- ture estate of the bankrupt — since the bankrupt himself would have no estate or interest therein — and yet the possession of these goods may have been the sole cause of the credit given.
So, if the bankrupt, having paid lOi. in the pound, received 500/. from the estate as his albwanct under 6 Geo. 4, c. 16, s. 128, such allowance could not be seized for the benefit of the former creditors; but there seems to be no reason why this money should not be made available towards satisfying debts contracted in the course of a tubtequent trading.
(6) By which it is enacted, " That if any person who shall have been so discharged by such certificate as aforesaid, or who shall have compounded with his creditors, or who shall have been discharged by any insolvent act, shall be or become bankrupt, and have obtained or shall hereafter obtain, such certificate as aforesaid, unless his estate shall produce (after all charges) suflScient to pay every creditor under the commis- sion fifteen shillings in the pound, such certificate shall only protect
VOL. V.
A A
GASE^ IN THE KIKG S BENCH,
•consequently the bankrupt could have acquired no property upon which a third commission could operate. Till v. Wilson (a) and cases there cited (5), Robinson, Ex parte, (m the matter of Freer (c). [Litiledale,J. A commission msy be taken out against an insolvent debtor whose effects are vested in the assignee (<f).]
Gurney, contri. The third commission may have been snpersedable, but it was not absolutely void. In Robinsonj 'Ex parte, the Court was merely unwilling to expose the parties to the risk of being turned round for want of a suf- ficient petitioning creditor's debt, where the doubt might be removed by substituting the name of the petitioner RoMn" son. To hold that the third commission was an absolute nullity, would render all acts of the commissioners and assig- nees void. [Parke, J, Under the old acts, after-acquired property is not vested in the assignees, but is made liable to judgments. Bayley, J. The defendant has obtained bis certificate, but it is obtained under a commission under which the plaintiff could not have proved.]
Piatt on the same side* Till v. Wilson is the case that
bis per<of» from arrest and im* who, under a second commission,
prisonment, but his future eitoto has not paid ]5«. in the pound,
and effects, (except his tools of cannot be a petitioning creditWy
trade and necessary household his propertjf being vested io tbe
furniture, and the wearing apparel assignee ander the second oomtus*
of himself, his wife and children), sion. This would not, howe?er,
shall vest in the assignees under prerenc such bankrapt (inom suing
the sfdd commission, who shall be out a commission of bankrupt a-
antitled to seize the same in like gainst an assignee under the second
manner as they might have seiaed commission, who had since be-
property of which such a bank- come indebted to tbe bankrapt bj
rupt was possessed at the issuing eapress contract. F«fe wtprij
the commission.'' 358 n.
. (4) wiM<(?»i.580; 7B»fcC.684. (d) As to which, see Jcl/tf t.
(() Tliese cases are all noticed MotiiUfitrd, 4 B.& A. 356; Skd-
in the judgment, pof^, 356. ileworth, Ev parte, 2 CAyn k
, (c) Montague & M'Arthur, 44, Jameson, 68. where it was he]d> that a bankrupt
HILARY TERM, X G£0. IV.
fi«sMB mo8l Strongly against the defendant. In that case^ however, no certificate had been obtained under the first eonunission before the second commission issued. A writ of extent (a) may issue against the lands, goods, and person, akbough the extendee has neither lands nor goods. If the baakrupt had secreted goods under the third commission he would have been guilty of felony, and would have been estopped from saying that the third commission was void, sod not merely voidable, if such commission had not been ID fact abandoned. [Day ley, J. The submitting to the secood commission raises a presumption. Parke, J. It is a •trong argument for the defendant that the certificate is Dide conclusive evidence of the trading, Slc If the cer- tificate cannot be avoided by shewing that there was no tiading, &c. why should it be avoided by shewing a prior coounissioo ?]
Cur. adv. vulU
In this term. Lord Tenierden, C. J. after stating the facts and the arguments, delivefed the judgment of the Court. We are of opinion that the 126th section of 6 Geo, 4, c. l6, Bttkes the certificate conclusive evidence only of theyoc^ of the trading* act of bankruptcy, commission, and other pro- ceedings, leaving untouched the vahdky and gff^ect of those proceedings, and the manner in which they may be ques- tiooed. Iq Martin v. OHara (6) it was held by Lord Man^iekif that an uncertificated bankrupt is incapable of trading or contracting for his own benefit: that all the property which he acquires belongs to his creditors,
(a) The Court of Eicheqner, in legal impowhiliiy of the tnider>
ivuding the writ of capias extendi having any property upon which the
/mi, has tio jndicial knowledge eomtaisBion criuld operate. T6
that the extendee has no goods or make the analogy from the writ of
laiHhyStiU less that he will have extent applicahle to this view of the
DODe before the retnin of the writ, case, that writ should be supposed
Tlie dedsioo in Till y. Wilton, to issueagainsta party under a &^/
(«/«, vol. i. 580, and r Bam. St impauibUUy of possessing properly.
Cfosw. 684,) proceeds upon the (6) Cowper, 893.
A AS
3^6 CASES IN THE KING's BENCH,
1850. and that as he cannot trade for himself he cannot be thtf object of a second commission ; and it was said by Bulkr.i* to be perfectly clear, that a second commission cannot be taken out against an uncertificated bankrupt. Lord Hard^ wicke, in Proudfooty Exparte{a), and Lord Loughborough/m Nunn, Ex parte (b), have stated that a second commission before the trader has obtained a certificate under the first, is void at law. The same opinion has been expressed by Lc^d Eldon on several occasions (c). In HoUingsworih, Ex parte {d). Lord Thurlow appears to have entertained a different opinion; and in Butts v. Bilke (e), Thomson, C. B. doubted, and the Court of Exchequer desired that the question might be stated in a special verdict. In the very recent case of Till v. Wilson (f), this Court, however, decided that a second commission issued before a certificate had been obtained under the first, was absolutely void at law ; and from that decision we see no reason to depart. We consider that it is fully settled by the above authorities that the great seal has no power to award a commission for the purpose of distributing effects already vested in as- signees under a prior commission, and that a commission so awarded is void. A third commission, where 1 5s, in the pound has not been paid, appears to us to be equally void. The 6 Geo, 4, c. 16, s. 127, differs from 5 Geo.% c. dO,s.5» which directs that the future effects of the bankrupt shall remain liable to creditors, that is, to individual creditors. This, according to Hovill v. Browning {g) and Todd v. Max- Jield{h) did not prevent such future effects from vesting in the assignees under a subsequent commission. But by the present act, the property is expressly vested in the assignees under the former commission, who are therefore entitled to all the effects of the bankrupt ; so that there is nothing upon
(a) 1 Atk. 951. (e) 4 Price, S40.
(6) 1 Rose, 3««. if) Ante, 285(6).
(c) 15 Vc8. 114, 543; 16 Ves. (g) 7 East, 154.
«36,478;lRose,13tf,^85;2Ro9e, (A) 5 Dowl. & Ryl. 258; 5
159, 17S. Bam. & Cressw. 932.
ift) Cooke B. L. 10.
HILAHT TERM, X CEO. IV. 357
irfcich a subsequeot commission can operate (a). In this 1830. respect the present case is brought precisely within the proper ground of the decision in Martin v. G'Hara. We caoDot think that, for the purpose of enabling a party to obtain his discharge, we are bound to give effect in a Court of Law to a commission which for any other purpose is wholly ineffectual. Frequent discharges under the bank- rupt laws are injurious to the honest tradesman. Under a second commission, therefore, \5s. in the pound is required to be paid before the bankrupt is enabled to trade again. We must follow the spirit of that enactment, by deciding against the validity of a third commission where no such pajment has been made. The consideration of the bank- rupt's discharge is the giving his property up to his cre- ditors. Here, the defendant had nothing to give up — and kafiog nothing,' he, in some sort, committed a fraud upon every person from whom he obtained credit.
Rule discharged (A).
(«) Std vide ante, 353 (a).
W Aod fee Phillips v. Hopwood, ante, 15; 1 Bam. & Adol. 619.
Doe d. Mann v. Walters.
Ejectment for lands in the parish of Mawgan iq An agent to Mcneage, in the county of Cornwall. At the trial before has no implied
BttTrough,J. at the Bodmin Assizes (c), 1829, the following n?«hority to r _ ** give notice to
lacts appeared : — quit.
The lands in question were part of the glebe of the , Wherenotice ^ ^ ^ o to quit 1ft given
parish of Mawgan in Meneage, and had been demised by byana|;ent,the tic lessor of the plaintiif^ who was the rector of the parish^ sucbaijentmust
to the defendant from year to year. The lessor of the he complete a
half year be- (c) Coanael for the plaintiflfy Wilde, Segt. and Coleridge ; for the fore the expi- ^efakdaoty FoUeii, ration of the
notice, or at M«t before the day of the demise laid in a declaration in ejectment^ brought in re- 1*«t of such nouce.
CASES TS THE KINg's BENCH^
plaintiff being non-resident^ the defendant's rent was ptid from time to time into a banking-house in the neighboaring town of Helston, upon the following receipts : —
'' Union Bank, Hebton,25th January, 1823.
*' Received of Mr. Joseph Walters, twenty-five pounds to account of Rev. Horace Matm.
" For Grylb * Trevenem, £25. ^ John Kendall, junior.*'
" Union Bank, Helston, 10th January, 1824.
" Received of Rev. Horace Mann, seventy-five pounds to account. 25 rent. " For Grylls Sf Trevenem,
50 cattle, corn, &c . ** R. Edmonds, junior.*^
£75.
The receipts for the two following years were in the same form as that of 25th January, 1823. On the 22d June, 1 827, the following notice was served on the defend- ant's wife at his dwelling-house : —
'* Mr. Joseph Walters,
^^ I do hereby, as the agent for and on the behalf of the Rev. Horace Mann, your landlord, give you notice to quit and deliver up, on the twenty-fifth day of December next, the possession of the dwelling-house, farm lands, and premises, with the appurtenances, which you now bold of the said Horace Mann, situate in the parish of Mawgan in Meneage, in the county of Cornwall, or at the end of the current year of your tenancy, which shall expire next after the end of one half-year from the time of your being served with this notice. Dated the 22d day of June, 1827. " Yours, 8ic. H. M. Grylis,
" Agent for the said Horace Mann*'
HILARY TEAM, X GEO. IT. 358
H. M, Grylb was an attorney residing at Helston^ and 1830. was also a parser ip the Helston bank. It was contended ^^^ for the defendant, that the notice was void for want of d.
authority. The learned judge was however of opinion that ^
H, M, Grylh, as a receiver, had authority to determine the Waltsm. tenancy, inasmuch as it had been repeatedly held that a rtceiver has such an authority (a) ; and the jury, under his lordsbip a direction, returned a verdict for the plaintiff.
Id Michaelmas term, 1829> Folleii obtained a rule nisi /or a new trial ; against which,
Coleridge now shewed cause. It will not be necessary to rely upon the cases in which a receiver appointed by the Court of Chancery, has been held to be an agent sufficiently authorized to give a notice to quit. In Goodtitle d. King v. Wooiward{b), where the notice was signed by an agent, and purported to be given by him as agent for all the lessors of the plaintiff, (who were trustees for the repair of a highway «) it appeared that at the time that the notice was served,, the Mtbority to the agent had been signed by part only of the trustees, and that the rest had signed it subsequently ; and it was held that the subsequent recognition gave effect to the authority. So here, the bringing of this action is a fufficient recognition of the authority of the agent. The distinction is between a recognition of the notice, which would not be sufficient, inasmuch as the lessee must receive inch a notice as he can act upon at the time, and a recog« aitioQ of the agency, which is sufficient upon the principle adopted in Goodtitle v. Woodward — omnis ratihabitio retro* traUtur et mandato aquiparatur. In Right v. Cuthell{c) ikt notice was insufficient, because by the terms of the lease it waa required to be given in a particular form.
(•) Tdt WiOdmon ▼. CoUey, (c) 5 East, 491; 5. C. differently
S Ban, $694; Doe d. Marsack v. reported as to the proviso in the
lUid; IS Bast, 57 ; H^nne v. Lord lease, 9 Smith, 83, 84 n. ; 5. C. 6
JStBienmgK 1 Ves. jan. 165. Esp. N. P.C. 149.
(i) 3 Bam.& Alders. 689.
<360 CASES IN THE KINg's BENCH^
1830. Here, the notice upon the face of it, appears to be good, and the only question is as to the agency, which is suf- ficiently ratified here by the adoption of the act in bringing the ejectment. Rotoe d. Dean and Chapter of Rochester v.
Pierce {a).
Follett contr^. In Goodtitk v. Woodward, the notice was read to the tenant and not objected to by him. Here, the service was on the wife. The defendant could not have safely acted upon this notice. Nor was there, indeedi any evidence that the lessor of the plaintiff had authorized the bringing of iht present action.
Bayley, J. — ^There must be a new trial. The autho- rity to give the notice to quit is a question for the jury. I at present give no opinion whether Goodtitle v. Woodward was rightly decided or not; but supposing that case to have been rightly decided, it does not make out the plaintiff's proposition, as no recognition of the agency before the daj of the demise laid in the declaration is shewn, which at all events is essential.
LiTTLEDALE, J. — ^There must be a new trial. Upon this evidence, if I had been on the jury I should have found for the defendant. There was no proof of authority. The supposed recognition is clearly insufficient here. But my present impression is, that the notice to quit would be invalid unless it were ratified full six months before the day on which the notice would expire.
'Parke, J. — I am not prepared to say that if the notice had been delivered personally to the defendant, and he had assented to the statement of Grylls^s being agent; the notice would not have been sufficient ; but it appears to me that there is no proof that the lessor of the plaintiff delegated any general authority to Grylls*
{a) 2 Campb. 06.
HILARY TERM, X GEO. IV. 361
A persoo entrusted by the landlord to receive rents has isso. DO power to give notice to quit. ^^^"^"^^^
Rule absolute (a). <r.
•Maitv («) See the cases collected and exanuDed in Doe d. EUioU v. HuUne, ^*
Ha*mmond v. Blake.
Debt upon 6 Geo. 4, c. 125 (A), for a penally incurred by the defendant for acting, himself, as pilot of a vessel of which be was master, and of which a duly licensed pilot had offered to take charge. Plea : nil debet.
At the trial before Lord Tenterden, C.J. at the sittings at Guildhall after last Michaelmas term, a witness proved that he oflfered bis services to the defendant, who knew that he was a pilot, and refused to employ him, and continued to pilot the vessel himself, though navigating within the limits where he was bound to take a pilot, if one duly qualified should tender himself. It was not proved that the witness prth- duced his licence, and no question was asked about it.
The master of a vessel does not incur the penalties im- posed by 6 Geo, 4, c. 126, B. 58, for refusing to take a pilot on boar(1,Sinless it distinctly appear that the pilot at the time ofoffering his services produced hit licence.
(h) By which it is enacted (sec- tioo 58) " that every roaster of any ' sliip or vessel, 'who shall act him- 9tif at a pilot f or who shall em- ploji or continue employed, as a pilot, any unlicensed person or »nj licensed person acting out of the limits for which he is qualified, or beyond the extent of his quali- fication— after any pilot licensed tad qualified to act as such, within the limits in vrhich such ship or vessel shall then actually be, shall have offered to take charge of such ship or Tessely or have made a signal for that purpose, shall for- feit for every such ofience double ^ amount of the sum which would have been legally demand-
able for the pilotage of such ship or vessel ; and shall likewise for- feit for every such offence an ad- ditional penalty of £d for every fifty tons burthen of such ship or vessel, if the corporation of Tri- nity House, of DeptfordStrondy as to cases in which pilots licensed by or under the said corporation shall be concerned, or the said lord warden for the time being, or his lieutenant for the time being, as to cases in which the cinque port pilots shall be concerned, shall think it proper that the per- son prosecuting should be at li- berty to proceed for the recovery of such additional penalty, and certify the same in writing/'
Hammond
362 CASES IN. THE K1NG*S BENCH,
18S(K For the defendaDt it was contended, that it was necessary to prove that the licence had been produced by the pilot, on the ground that a penalty is imposed by 6 Geo. 4, c. 125,
Blaxs. 9. 66 ^£|)^ Qn pilots acting in that capacity without producing their licence. Lord Tenterden, C. J. adopted this con- struction of the statute and directed a nonsuit, which
Scarlett, A. G. now moved to set aside, and contended that the production of the licence was unnecessary. The defendant thought fit to pilot the vessel after he had re* ceived an offer of the witness's assistance. It was proved that the defendant knew that the witness was a pilot The provisions of the sections 58 and 66 are separate and dis- tinct. If the defendant had demanded to see the licence under a doubt of the witness being a pilot, it might have been an excuse. But if he does not chuse to ask for it, the case must be decided according to the real fact. Where a provision is accompanied with a qualification in the same clause, the plaintiff is bound to negative the qualification. But if the clauses be distinct, the qualification is matter of defence to be proved on the part of the defendant. This may be illustrated by a reference to the game laws. In a declaration you must negative the exception, because it is
(a) Which enacts, ^ that no be desirous of employiDg him as a
person shall take charge of any pilot, or to whom he shall offer his
ship or vessel, or in any manner services, on pain of forfeiting a
act as a pilot, or receive any com- sum not exceeding 30/. nor less
pensation for acting as a pilot, un- than 10/. for the first offence; and
til his licence shall have been re- for the second or any subsequent
gistered by the principal officers offence, a sum not exceeding 5QL
•f the custom-house of the place nor less than 30/., and upon lor-
at or nearest to vhich such pilot ther pain as to any person U-
shall reside, (wliich officers are censed as aforesaid, of forfeiting
hereby required to register the his licence or being suspended
same without fee or reward), nor from acting as a pilot by and at
without having his licence at the the discretion of the corporation
time of his so acting in his per* or other authority from whidk
sonal custody, and producing the such pik>t's licence was derivsd,
same to the master of any ship or either for the first, second, or any
vessel, or other person who dull sabsequtnt offence."
HILARY TERM, X* GEO. IV*
coDtaiDed in the same clause (a). If it had been meant that 1830. the master should not be liable unlesa the pilot produced his licence, it would have been easy to have said so.
Lord Tenter DEN, C. J. — ^We cannot say that a master is liable to a penalty for refusing to allow the pilot to do an act which would have rendered the latter liable to a penalty.
Batley, J. — Though the 58th section contains no pro- I'ision for the production of the licence, the 70th section provides that no person shall take charge of a ship without producing his licence.
LiTTLEDALE, J. — The Subsequent section contains a prohibition restraining all persons from acting as pilots without producing their licence.
Parke, J. — Upon the evidence it must be taken that the licence was not produced. This is required by the act to be done before the pilot can take charge of the vessel. It is of great consequence that the master should have the means of knowing whether the person to whose care the ship is to be trusted is duly qualified.
Tbe 66th section containing no provision requiring a de- mand of the production of the licence; the pilot must pro- duce it, whether demanded or not.
Rule refused.
U) But io a declaration for pe- evidence. Jelfs v. Ballard, 1 Bos.
oalties (broSeoces against the game & Pol. 468, 469. lawB a general averment of want As to the course pursued with
ofqualiScatioo is sufficient, without respect to negativing qoalification
specially negativing the particular in cases of summary conviction
^wKBcations mentioned in 32 St before justices, see Rat v. Stone, J«3 Car. 2, c. 35, Bhet v. NeedSf . 1 East, 639, 649; Ret v. Tyrner,
3 Conyiis, Kep. 524. 5 Manle & Selw. 806; Rex v.
Nor is it incumbent on the plain- Marsh, 4 Dowl. & Ryl. 360, and
^towfsktart the qualiiications in 3 Bara. & Cressw. 717.
363
364 CASES IN THE KINO's BENCH,
s^^?^ Beknasconi and others v, Farebrother» Winchesteh,
and Wilton.
A trader does 1 HIS was an action of trespass, for breaking and entering
not commit an . , . ^ . V . .«- , • • •
act of bank- the house and lands of the plamtinB, and seizing and carry-
7g7o r'c ''' '"8 "^"^ ^^^^^ Soo^s and chattels.
16, sect. 3, by Plea by Farebrother and Winchester, first, not guilty, STunlCTshT secondly, a justification as sheriff of Middlesex, under a absent him- fieri facias against J. II. Chambers the elder, at the suil of | place at which ^^^ defendant Wilton^ under which they entered the dwel- 1 '*'?S'^' '" ling-house in which &c., the door being open, in order to course of his seize the goods of A. H. Chambers the elder then being
life and busi- therein, and did seize and carry them away. Replication:
ness, ne ex*
pected to be de injuria su& propria, absque tali caus&. i
whShehas The defendant Wilton pleaded, first, not guilty; and
appointed to secondly, that in Easter term, 8 Geo. 4., he obtained judg-
lar creditors, ment against A, H. Chambers the elder, for 1828/. debt,
A comrais- ^^^ 7/^ costs, whereupon he issued a fieri facias directed sionofbank- . "^ .
rapt, describ- to the sheriff of Middlesex, which writ was delivered to
Ls*«^ban^kere^* ***® defendants Farebrother and Winchester, then being
being traders such sheriff, to be executed ; and that he, the defendant
the^romion ^H^on, as the servant of the defendants Farebrother and
of the suitute Winchester^ and by their command, entered the said dwel-
tituled, &c." ling-bouse in which, 8cc., the door being open, and seized
is good, ^uj carried away certain soods of A. H. Chambers the
though they -^ ...
had ceased to elder, then being therein. Replication, de injuria sua,&c
b^fore^hat ^^ ^^^ *"** **®'^°''® ^^^^ Tenterden, C. J., at the ad-
statute passed, journed Middlesex sittings after Hilary term 1829* the ^^^ for the word . .
'•bankers "is was this :—
descriptive of The goods in respect of which the action was brought only, and bad been the property of A* H. Chambers the elder, wba !!*f d**"^"ig a bad carried on business as a banker in partnership with his sufficient alle- son, A. H. Chambers the younger, until the year 1824, Sey°were,'as ^^^^ ^^^y 'topped payment. In November 1825 a com- snch, liable to the bankrupt laws.
Such a commission may be supported by evidence of any species of trading carried on by the bankrupu after the passing of the statute.
HILARY TERM, X GEO. IV. 365
loission of bankrupt issued against them, under which the 18S0. present plaintiffs were chosen assignees, and in February r^^^^^^^^ 1826 an assignment was executed to them :. but they did and others Dot declare in the present action as assignees of the bank- v ^' h rupts((i}. Subsequently to this assignment, the defendant andothersi Wilton had brought an action against A. H. Chambers Xhe elder, for an alleged debt of 1828/., in which action judg- ment was suffered to go by default, and a writ of fieri facias afterwards issued, under which the defendants Fare^ brother and Winchester, then being Sheriff of Middlesex^ seized the goods now in dispute. The commission, which was produced on the part of the plaintiffs, described the bankrupts as *^ bankers, being traders, according to the pro- visions of the act, 6 Geo. 4, intituled/' &c., upon which it was objected on the part of the defendants, that the Bank- rupt Act not having passed till 1825, and the bankrupts baTJng ceased to trade as bankers in 1 824, they had never traded as such since the act came into operation ; that it was necessary to shew a trading, such as that described in the commission, carried on since the passing of the act ;
(ff) See the case, entitled Ber^ though they act as trustees for the
MieoM atui others v. Farebrotker general creditors. Chambert be'
ud Wincketter, Sheriflf of Middle- came a bankrupt in 1825, and the
sex, and Henry Wilton, 7 Barn. plaintiffs were chosen assignees
h Cress. 379, where a motion to immediatelj^ afterwards. Tliey
stay the proceedings in thU action have been in possession of the
ttotil the sheriff was indemnified, farm and stock ever since; they
was refused, on that very ground. have renewed part of the stock.
Lord Tenterden, C. J., there said, and have brought in fresh stock of
"Ifwe were to stay this action of their own. After such a posses-
tJespsss, we should take from the sion, the sheriff is to be deemed
piaiDtiffit that ordinary protection prim& facie a trespasser if he
to which they are by law entitled, levies upon it. He may, perhaps,
In the first place, the plaintiffs do be able to defend himself in the
notbriog this action in the charac- present action, by shewing that
ter of assignees, but upon their the commission against Chambers
owQ possession. If they had sued is invalid, but even such a case
as assignees affirming the commis- would only protect him as to the
sioojic would have opened another seizure of stock which had pre-
consideration. They claim the viously belonged to Chambers^* property legally as their own,
CASES IN THE KING S BENCH,
and that for want of such evidence the present commiuioB ^^^y^ could not be supported. It was answered^ that it was uii* ^d others necessary for the commission to describe the trading at all; Farebrotheb ^^^^ ^^® general term " traders " used in this comniissioo and others, was sufficient, and that the word '* bankers " might be taken as a description, not of the trade, but of the persons of the bankrupts; and that evidence of a subsequent and different trading, which it was proposed to give, would support the commission. Lord Tenierdeng C J. was of that opioion, and received the additional evidence, from which it ap* peared that the bankrupts, since the passing of the act, had carried on business, in conjunction with one White, as pozzolana manufacturers. An act of bankruptcy by Cham* bers the elder was clearly proved, and not, indeed, disputed. To prove an act of bankruptcy by Chambers the younger^ which was alleged to be by abunting himself from bis usual place of abode^ with intent to delay his creditors, the following facts were given in evidence. After Messrs. Chambers had stopped payment as bankers, a committee of their creditors was appointed to wind up the affiairs of the concern, which committee hired a house for that purpose in South-Molton Street, where they met and carried on the in- vestigation of the accounts. A letter of licence was granted to Messrs. Chambers to protect them from arrest, and they undertook to attend the committee in South-Molton Streeti and to assist them in winding up the affairs, whenever thej should be required so to do. The committee continued their investigation up to the 9th of November 1825, and up to that time Chambers the youi^er did attend them whenever he was required to do so. Upon that day the committee was dissolved, and the letter of licence revoked, and Chambers the younger was never afterwards seen in South-Molton Street. Between that day and the 19th of November, a sheriff ^s officer, who had a writ against him, frequently searched for him there, but always unsuccess- fully ; and it was afterwards discovered that, during thst interval, he was residing in a house in North Cresceat,
HILARY T£RM> X 0£0. IV. 367
Tottenimiii-Court Rosd, which be had occupied for two 1830.
jcars. It was contended on the part of the defendants^ that S^^^^^^
Bernasooni this was not aufBcient evidence of an act of bankruptcy bj and otben
Chambers the jounger ; but Lord Tenterden was of opinion p-^^BBaoTHE*
that there was some evidencey though slight^ of an ab^ andotben.
anting himself, and that it ought to be left to the jury. It
was further contended, that Chambers the elder, having stfi-
mtted to the commission and received the benefit of it,
was estopped from disputing its validity in a Court of
Law {a) ; and that Wilton had acted in colUisioa with him
in obtaining his judgment, end was therefore estopped in
like manner. Lord Tenterden was of opinion, that even if
Wihon had acted collusively, (which was a qaestson for the
jory), and was thereby estopped> the other defendants
dearly were not; and left the case accordingly to the jury,
who found a verdict for the plaintifKu In Easter term
18^9, Gumejf obtained a rule nifi for a new triaU on the
ground of the invalidity of the commission, and of the in*
efficiency of the evidence of an act of bankruptcy by
Chambers the younger. Lord Tentetdin referred to Small,
Ei parte (b).
Scarlett, A. G., F. Pollock, and Hutchinson shewed cause. First, the description of the bankrupts in the com* mission was sufficienti and the plaiotiffs were properly al- lowed to give evidence of a trading by them as pozsoiana(c) manufacturers. The commission described them as *^ bank- ers, being traders within the meaning of the statute t> Geo. 4, c. 16." The secofkl section of that statute con* tains an enumeration of the persons who shall be deemed traders liable to become bankrupt, and it was sufficient to shew that Messrs. Chambers came within the description of one or other of those persons. The word '' bankers " is descriptive, not of the trade, but of the person, and may be either treated as mere addition^ or rejected altogether as
(a) See Watton t. Yf ace, 7 Dowl. cited. k Rjl. eSS; 5 Barn. & Cress. (6) 2 Wils. Chancery Cases, 85.
15S, — end the authorities there (r) A sort of cement.
368 CASES IN TH£ KINC'S BENCH^
1830. surplusage; and then the bankrupts will stand described „ ^'^^'^^ simply as *' traders/' which is quite sufficient. If they had
BERNASCONf ,'^, ., , , .. ,, ....r
and others heen described as '' traders, being bankers, instead of ^* *• bankers, beinir traders," there micht have been some
rABEBROTRER .
and others, ground for the objection. In Hale v Smali (a), a commis- sion of bankrupt was issued against a trader, describing him as *' a dealer in cattle, and seeking his trade of living by buying and selling/' without the words ''dealer and chapman/' At the trial of an action of trespass brought by him against his assignees, evidence was received of a dealing in hops, and a verdict was found for the defendants. That verdict was afterwards set aside, and a new trial granted, not upon the ground that the evidence was inad- missible, but that it might have operated as a surprise upon the plaintiff. On the second trial the same evidence was again received, after objection, and was held to have been properly received, as the words '' dealer in cattle " were descriptive of the person only ; and the general statement that the bankrupt got his living by " buying and selling," was sufficient to let in evidence of any trading whatever. Upon the same principle the language of the commission here, '' being traders according to the provisions of the statute," forms a sufficiently general statement to render evidence of any species of trading admissible (6). In £i parte Herbert (c) the bankrupt was described as ''a water- man, dealer and chapman," and Lord JEldon, C. held, that the general allegation which followed, of '* seeking a living by buying and selling/' was sufficient to render the com- mission valid. In Smith v. SandilaMds{d)t where the bank- rupt was described as *' money scrivener" o///y, it was held, by Holroyd,J.f that the plaintiff, in an action to try the validity of the commission, was not precluded by that limited description from proving any species of trading.
(a) 4 B. Moore, 415; 9 Brod. (c) 9 Ves. & B. 399; 9 Rose,
& Bingh. 25. Reported also in 8 248. Taunt. 730 ; 3 B. Moore, 58. (rf) Cow's N. P. C. 171. And
(6) Vide Bemasconi v. Lard see Tanner, ex parie^ 1 Mont, k
Clengall, nntty vol. i. p.S27,n.(&). Bligh, 391.
* HILARY TERM, X GEO. IV. 369
In Bemasconi v. Lord Glengall(a), where the commission 18S0. stated that A. and JB., bankers, being traders according to Bebvascoki the provisions of the 6 Geo. 4, c. l6, some time since nad others became bankrupt, within the intent and meaning of that Fj^bebrothbb statute, it was held that it was sufficiently alleged that the and others, bankrupts had traded, and had committed an act of bank- ruptcy, since the passing, and within the operation of that statute. And Lord Tenterden, C. J./ in the course of his judgment, said, '' The use of the word ' bankers ' only ih this commission, without the words 'dealers and chapmen/ upon which an objection has been founded, presents in reality no difficulty at all ; because that word is descriptive, not of the tr<ide of the bankrupts, but of their persons only. The commission is awarded against them as ' being traders according to the provisions of the statute/ which is a per- fectly sufficient allegation of their being traders."(^) That seems decisive of the present case upon the first point. [Parke, J. Might not a commission of bankrupt issue against J. B. without^any description ?]
Then, secondly, there was evidence to go to the jury of an act of bankruptcy having been committed by Chambers the jounger, by absenting himself from the house in South- Molton Street, and the jury having been satisfied with that evidence, the verdict ought not to be disturbed on that point. It was clear thzi Chambers the younger did absent himself from the house in South-Molton Street, and it was for the jury to say with what intent he did so.
Gurney, on the following day, in support of the rule. The Court ought not to be called upon to make good the blunders of the parties. In Smith v. Sandilands (c) the parties had omitted to draw the legal .result. In Bemasconi v. Lord Gler^aU(d) this objection, was not taken, and the Court was therefore not called upon to decide the point.
(a) Jnte, vol. i. p. 326. (c) Suprd, 368.
(6)r6irf.830. (d) AnU/u S26.
VOL. V. B B
870 CASES IN THE KINO*S BBNCH^
18S0. In Hak v. Small (a) the party was described as seeking his ^^^^"^^^ living by buying and selling. Here« the manufactaring of and others cement would have been a particular instance of such ^- trading. \Bayley, J. You do not notice the ChanceUor's
and othen. order of 18X6, which directs that no commission shall be issued in which the bankrupt is described only as ''/crrmer, grazier, drover ^ or underwriter** {p\ and that, where no other description is given in the bond and affidavit, the words '' dealer and chapman" should be added in the petition sod commission.] That order does not apply since the late act. \^Bayley, J. The object of that order was to obviate objections on the ground of the non-appearance of the liability of the party to the bankrupt laws, and the conse- quent jurisdiction of the Chancellor to issue a commission. The only use of referring to it now is to shew that the Chancellor thought a specific order necessaiy.]
Campbell, on the same side. As to the tradipg as poz- zolana manufacturers, the understanding of the profession has been, that in all cases where a different trading from that set out in the commission has been admitted to be set np, the commission has had the words dealer and chapman, or the party has been described as carrying on one of the trades mentioned in the act. This was the case in Herbert, Ex parte {c), and Hale v. Smalt. In each of those cases, the description of '* persons using trade of merchandize" occurs. To shew the general understanding of the pro- fession upon this point, Mr. Eden*s book(d), though not an authority, may be adverted to. In the case referred to bj the L#rd Chancellor, in Small Exparie{e), evidence of a trading of a different description from that mentioned in the com- mission was admitted under the general words ; because it
(a) 8 Brod. & Bingh. 85, and 4 at that time brii«r the parties who R Moore 415, after a lecond trial, eiercised then, wiriim the ope- overruling S, C, upon a former ration of the bankrupt laws, trial, 8 Taunt. 730, and 3 B. (c) Sujtrd, 368, w/ri, 3T2. Moore, 58. (rf) Eden, B. JL first ed. 53.
(b) Which occapations did not (e) Stqnri, 367.
HILART T£RM, X 0£0. IV. 371
was necessary for the plaintiff, vfho, by bringing an action 1830. complaining of a commission^ admitted that he was the per* n^^^*^^*^^ son against whom it issued, to shew, not merely that the and others commission was supersedable, but that it was absolutely » ^' void at law. As to the suggestion thrown out yesterday and others, by Parke, J. as to whether any trading at all was necessary to be stated, and whether a commission might not issue simply against A^ B,^ — it is to be considered that the power ^veo by the commission" is enormous, extending tb the body, lands, 8lc. of the party : — In the exercise of such a power, it is necessary that the jurisdiction should be shewn. This is very analogous to the case of warrants granted by magistrates, in which it is necessary that it should appear upon the face of the instrument that the magistrate is acting within his jurisdiction, and that the party has been charged with an offience witliin his cogni- zance. In an award, the authority of the arbitrator need not perhaps be recited (a), — not so here. It is sub- mitted that it would not be enough to say ** being a trader." The second section enumerates the trades which subject and which do not subject the party to the opera- tion of the bankrupt laws. Both classes may be con« sidered to be traders, but the commission should shew that the party comes within the first division. It should state precise facts, or at least allege that the party was a dealer UKi chapman. Then the Court cannot strike out the word " bankers". The words '• bankers being traders" must mean traders as bankers. It would have been different, if, instead of "bankers/' the word "esquires'* or ''gentlemen'' had been used. Suppose the commission had stated that the Chancellor had been informed that Chambers had com- mitted an act of bankruptcy by publishing a declaration of insolvency in the London Gazette, such a commission could not have been supported by proof of any other act of bankruptcy. [^Parke, J. The commission does not state the petitioning creditor's debt, nor does it state the nature
(«) The parties maat take notice of the terms of their own sobnussioa. BBS
CAS£S IN THE KINGS BENCH,
of the act of bankruptcy.] It states that the party has
become bankrupt; but it is submitted that the commission Beanasconi and others would be good« if instead of reciting that the party had
^- become bankrupt, it had said '* provided he has committed
and others, an act of bankruptcy, &.c/' A decision in favour of the present commission would lead to great looseness of de* scription. Before the Vice-Chancellor the point respecting the manufacture of pozzolana never arose, nor did it arise in Bernasconi v. Lord GkngalL \Scarleltt A. G. The trading as pozzolana- manufacturers was before the Chan- cellor.] The case went before the Chancellor upon the second point, — whether thp act of bankruptcy was sufficient. No act of young Chambers after the alleged act of bank- ruptcy can be given in evidence to support this commission. It might be said that Wilton is affected by the act of the elder Chambers in surrendering to the commission. It was necessary to prove an act of bankruptcy between the 1st of September and the 19th of November. The sheriff's officer proved a going to South-Molton Street, and that young Chambers was not found there, but there was no occasion for his being there after the committee for l^rinding up the affairs had ceased to act. {_Bayky, J- There was an accumulation of letters in South-Molton Street.] It must be a place from which he absents him- self. Where a trader breaks an appointment to meet a party at a particular spot, that is an absenting himself; but the usual case of absenting proved, is an absenting from the dwelling-house. Young C/uimbers*8 dwelling-house was in North Crescent, where no one went to inquire after him. There was no reason to suppose that he might not have been found there at any hour. The not going from his dwelling-house to South-Molton Street, where he had no business to transact, was not an absenting himself. Chant' bers had carried on business in Bemers Street. In 18^4 Chambers ceased to carry on the business, and it was con- ducted under inspectors, who employed other bankers. This is not like the case which has been referred to of a
' HILARY T£RM, X GEO. IV. 373
limber-merchant winding up his business. The office in isso.
South-Molton Street was taken by tht trustees. Young J^^"^^^ y„ . 1 1 i. • • ..... Bernasconi
tnamben attended from time to time to assist m winding and others
up the concern until the deed was executed, after which ^ ^'
• 1 1 . -TT Farebrother
te would have been an intruder and trespasser there. He and others.
had no licence to go to South-Molton Street after the 9th
of November. If a person changes his chambers in the
Temple he would send for letters to his former residence,
but it would be verj hard to say that he committed an act
of bankruptcy in not going there. [Scarlett, A. G. The
Cbaocellor has given judgment upon this very pointy as ap*
pears fi-om the short-hand-writer's note. Lord Tenterden,
C.J. It does not come to us properly accredited.]
F. Kelly, on the same side. By the 8dd section of tho late statute^ the issuing of a commission is made notice to all the world for several purposes. Many questions in- volving property to a great extent have been decided upon this clause^ or upon similar provisions in former statutes. This might work great injustice ; for how can persons take notice, that the commission issued in the present form was in reality a commission not against Chambers and Co. the bankers, but against fVhite and Co. the pozzolana-manu- facturers? A commission might thus have the effect of directing the attention of the public to quite different per- sons from those against whom it was really taken out (a). In Herbert, Ex parte, the allegation of " seeking his living hj buying and selling" was the statement of a particular node of trading pointed out by the act. That is a matter of fact. Here, if the trading can be made out at M, it most be a conclusion of law.
The alleged act of bankruptcy is open to this observa- tion—that the motive of the absence of young Chambers from the office in South-Molton Street is explained by the clause in the deed. He had nothing to do there but to come when he was required by the trustees. After the re- location of the letter of licence he had no business there, (a) Vide Sievem v. EUzie, 3 Campb. 956.
374 CASES IN THE KING's BENCH,
1880. IBayky, J. He went for the letters. Lord Tenterden, C.J.
^ ^'-^^'^ He leaves his books and papers there.] There was no cove-
Bebkasconz , ,,.,., ,^, , J
and others n&ot by young Chambers, as by old Chambers, to attend.
c ^* The difference between the effect of the acts of old Cham-
jrAREBBOTHEB
and others, bers and young Chambers was not pointed out to the jury* The learned judge told them that although any thing accom- panying the act of bankruptcy would be evidence against all the world, and that the conduct of the parties since (be commission, as the claim of protection by young Chambers immediately after the bankruptcy, might be taken into con- sideration^ yet what he said after the time of the supposed act of bankruptcy is not evidence for the defendants (a)»
Scarlett, A. G. It is an important question whether a bankrupt^ by contracting new debts, shall enable creditors to dispute a commission which the bankrupt himself could not have disputed.
Cur. adv. vult.
Lord Tentbrden, C. J. afterwards delivered the judg* ment of the Court. After stating the objection to the form of the commission, his Lordship said '' We think that the word " bankers" as there used, may be considered as a description of the person ; that it is not necessary that the particular species of trading should be set forth ; and that the commission would have been good, if *' esquires" or " gentlemen" had been substituted for *' bankers.'* This objection therefore fails.
The second ground of the application for a new trial is, that no such evidence was given of an act of bankruptcy committed by Chambers, junior, as ought to have been left to a jury. The plaintiff's answer to this objection at the trial waS| that the connection between Wilton and Chambers senior was such as to preclude Wilton from disputing the commission as against Chambers, senior ; and that be was therefore equally estopped from disputing the commission
(a) Vide Smallcambe ▼. Bruges, M'Oel. 45, more ftiUy repotted 13 Price, 1S6.
HILARY TERM, X GEO. IV. 375
IS tgtiast Chambers, junior. We think tbat however this 1830. fflay be with respect to fVillon, the other defendants, who ^ are not bound by any such estoppel^ have a right to require and otben (he plaintiffs to establish a valid commission, by shewing FAj^xBrnoraEa acts of bankruptcy committed by both. If Chambers, and others, junior, committed an act of bankruptcy, it must have been bj absenting himself; but this has been hitherto confined to the case of a party absenting himself from his regular place of business, at which a man would be expected to be found, or from one or more particular creditors ; for in- stancei the Royal Exchange^ where he expected to meet the persons to whom he was indebted ; going behind the Kenesat the theatre to avoid them; and so on. Now there was, at the time at which this act of bankruptcy is supposed to have been committed, really no place of busi* oess, properly so called, to which the younger Chambers could have occasion to resort. The business of the bank- ing-bouse had, for a considerable time before, been placed under the management and control of a committee ; and 10 long as the committee continued to act, so long the 7onnger Chambers attended upon them at their meetings whenever they wanted him. The committee, under a clause in the deed, put an end to the trust, and revoked the deed; the consequence of which certainly was, that the books and all the concern would return and devolve >gain upon the two Chamberses, But it does not appear that there was any business for either of them to transact at this place in South-Molton Street. It is true, their names were over the door, but there does not appear to hare been any thing they could have done, or had occasion to do, by attending at that house. Inquiries were made for the younger Chambers there, and it appears that no person there could say where he was. Inquiries were also made for bioi at his father's, but there no information could be obtained respecting him. There is no proof, however, that he directed any person to either of those places, but that they inquired there in consequence of not being aware
376 CASES IN THE KINg's 3ENCH,
1830. what .was his place of abode. . It appears that, after somet
^•^^^'^^^ time^ a person came to the house in South-MoUon Street,
and others ^^d fetched away such letters as had in the interval been
^' left there for Chambers and Son; but what was his autho-
f AREBROTHER
and otbera. rity for so doing. does not appear, nor whether it was at all under the direction of the younger Chambers. It further appears^ that long before the time at which he is supposed to have committed an act of bankruptcy by absenting faim- selfy he had a house in one of the Crescents in the neigh- bourhood of Tottenham-Court Road. He had been re- peatedly seen in that house for some period previously to that. One sheriff's officer had known where to find him, and had arrested him there some time before; and other sheriff's officers, in whose hands writs were placed (for there were many writs out against both the father and the son), not being aware that he lived at that place, knew not where to look for him ; and it appears further, that as sood as the commission issued he made bis appearance, and took the benefit of it. Still we cannot allow the verdict to stand, if this evidence was not sufficient to justify the jury in coming to the conclusion that this party had com- mitted an .act of bankruptcy, within the meaning of the statute ; and he not having absented himself, as far as we can judge from the evidence, from any place in which, in the ordinary course of his life and business, he would be expected to be present, namely, his place of abode, or any place in which he had business to transact, we tbiuk that the second objection ought to prevail, and that upon that objection, and that alone, there ought to be a new trial.
Rule absolute for a new trial (a).
(a) And see Woodmason, Ex Ex parte, «6u/. 995; Bemdlesy Ex
parte, 1 Cox, 308; Stevens v. parte, ibid, 943; Hortlejj Ex
Elizce, 3 Campb. 956, and 1 parte, 9 Madd. 11; Day, Ex
Rose, 360; Schofield, Ex parte^ parte, Mont. & Mac. 208; SM-
2 Rose, 946; Beckwitk, Ex parte, bolt, Ex parte, MonL 89; Sam-
1 Giyn & Jameson, 20; Smith, bourne, Ex parte, 2 Deacon &
Ex parte, ibid, 956 ; H^ride, Ex Chitt. 22 ; Farebrother v. ITors-
parte, 9 Olyn & Jam. 99 ; Parri/, ley, 1 Crompcon & Jervis, 549.
HILARY TERM, X GEO. IV.
Isaac V. Impey and others.
Trespass, for false impriaoDment: Plea, not guilty, and Commission-
issue thereon. At the trial before Lord Tenterden, C. J. at ^^^^ ^^y^ ^^
tbe London adjourned sittings after the last term, the case authomy to
. . commit au
wu this : — ^The defendants were commissioners under a examinant for
commission of bankrupt, issued on the 13th of June, 1827i ^f(»>ng>upon
• rcc|uc9tj to
against one Samuel Owen. The plaintiff had been sum- read an entry
mooed before the defendants, as a person capable of giving *" ^ exami*
iDformation concerning the person, trade, dealing,. and estate nant being
of the bankrupt. It appeared by the defendants' warrant j^the com-
of commitment that the plaintiff had been examined several missionen to , - , . , ... "^^^ an entry
tunes before them, m order to ascertain whether certam in a ledger,
securities were affected with usury. At the last meetine an^^^^iog
•^ . ^ to do so, was
he had been examined touching certain sums of money bjr them corn- entered in his books of account, amounting together to "fu^jnJ ^ 9000/., which was, as he had stated, composed of two sums, answer a^ the proceeds of Russian stock, the property of a Mr. Leon. ^dd,*^hatthe
Tie examination then proceeded as follows : — request to read
was neither in ^ Q. Does the account headed " Russian Stock '' in ledger form nor sub-
G., p. 101, contain an account of all the purchases and *^"^Vat"the sales of Russian stock, for Mr. Leon's account, made by commitment fou? was illegal;
^ "" and that an
A. Yes, it does ; — as well as of those purchased by action of tres-
Mr. Leon himself. thTc^f^
Q. Do you mean to state, that in such account there are sio"^" ^^^ ^^
imprisonment entries of Russian stock purchased and sold — or purchased was maintun-
or sold, — by Mr. Leon. himself, on his own account? ***^®*
A. Yes ; — both bought and sold by Mr, Leon himself.
Q. Refer to ledger G. and to the account in it headed, ''Russian Stock."
A, I have now referred to it.
Q. You are now requested to read all the entries in that account,
A. Acting under the advice of my counsel, I demur to answer the question, inasmuch as the matters in that account
Isaac
378 CASES IK THE KING's BENCH,
laao. are not relatiDg to the bankrupt, Owen. It is, therefore, I submit, with the advice of my counsel, that I am not bound to read the entry ; and I request the commissioners to allow d^^hl ^^ ^^ consult my counsel on the propriety of the question put, so that I may give a proper and legal answer to it. But in case the commissioners refuse, I request that my counsel may be allowed to enter, for me, such proper pro- test as he may see necessary. When I say that 1 demur to answer the question, I mean to say, that I refuse to comply with the request to read the entries contained in the account alluded to."
The warrant then concluded in these terms :—
** Which last question the witness having so refused to answer, these are, therefore, &c. him to keep without bail &c., until such time as he shall submit himself to us, the said commissioners, and full answer make, to our satisfaction, to the said question"
Lord Tenterden was of opinion, that the request to the plaintiff to read the entries was not a question either in form or substance, and, therefore, that the warrant, which purported to commit the plaintiff for not answering a legal question, and to require his detention until such supposed question should be answered, was illegal.
The jury having found a verdict for the plaintiff, with 250/. damages,
JP. Pollock now moved for a new trial. First, this action is not maintainable at all against these defendants. It was decided by this Court, in the case of Doswell v. Impey (a), that trespass will not lie against commissioners of bankrupt for committing a witness to prison for not satisfiactorily answering questions put to him while under examination, even though the questions may appear to the Court to have been satisfactorily answered. [Lord Tenterden, C. J. The objection here is, that the plaintiff was committed for not
(a) S D.& R. S50; 1 B. &C. 163.
HILARY TERM, X GEO. IV.
answerkig a question^ when^ in fact, no question was asked of him.] It is submitted that the commissioners did, in sabstance, ask the plaintiff a question, when they desired liffl to read the entries in a particular account. The ex- pression of that desire must have given the plaintiff to onderstaDd that the commissioners required information re- specting that account ; and the mode in which that infor- mation was sought for, though not strictly in the form of a question, was really one in substance* It is clear that the plaintiff so understood the language of the commissioners^ for be says expressly, '' I demur to answer the question." [Bayky, J. He explains that by adding, " When I say that I demur to answer the question, I meun, that I refuse to comply with the request to read the entry." The com- missioners had done no more than request the plaintiff to read an entry, which they might equally well have read themselves (a).] The language of the warrant, namely, that the witness refused to answer a question, is satisfied^ if it appears that the mind of the witness was informed that the commissioners required information, and he withheld it. Here, the plaintiff must have known that the commissioners did not want him to read the entry, but to give them an ex- planation of its contents. The refusal to comply with that request, was a refusal to give the commissioners the infor- mation they required, namely, an explanation of the entries in the account. In Davie v. Mitfordip) a bankrupt who had been committed for not producing a balance-sheet, was heM to have been properly committed. Although his was not, in strictness, a commitment for not answering a question^ that case is analogous to the present, and seems to justify the application which is now made.
37*
18S0.
Isaac
t;.
Impey
and ochen.
Lord Tbkterden, C. J. — ^The authority of commissi- oners of bankrupt to commit persons summoned before
(a) The examinaot woald rather ^)pear to have been directed to vMd the entries to himself as pre-
paratory to farther qaestions being pnt with respect to such entries. (b) > Bam. & Alders. 356.
-380
1830.
CASES IN THE KINGS BENCH^
them to give evidence touching a bankrupt's estate^dependf entirely upon the Bankrupt Ac t^ 6 Geo. 4^ c. l6; and to that we must look for the purpose of seeing m what cases they are authorized to commit. Now, the onlj two cases in which that statute authorizes them to commit witnesses are, firsty for a refusal to answer lawful questions respecting the bankrupt's estate; and, secondly, for a refusal to produce books or other documents (a). It is impossible to say that the plaintiff in this case came within either of those pre- dicaments ; he did not refuse to answer any question ; he did not refuse to produce any book or document. All that he did was, to refuse to reaid an entry in an account which he had produced, and which the defendants might have read for themselves (6). The Bankrupt Act does not give the commissioners power to compel a witness summoned before them to read documents; much less does it give them power to commit such a witness for refusing to read an entry from a document which he has produced before them. It seems to me that no man of plain common sense can contend that requesting a person to read an entry in an ac- count, is asking him a question.
Ba YLEY, J. — If the plaintiff, iafter notice, had refused to produce his ledger, and had thereby prevented the commis- sioners from reading the entries, they might have cooimitted him, and he would not have been entitled to his discharge until he had produced it. The warrant of commitment states that the plaintiff was committed for refusing to answer a question f the examination, on the contrary, shews that the commissioners requested him to read certain entries in a book, and that he refused to do so. It is quite impos- sible to say that the requesting the plaintiff to read those entries was, either in form or substance, putting a question to him ; and if so, the commitment was clearly illegal, — for he has been committed for refusing to answer a question which was never asked him.
(fl) Vide section S4. (b) Vide tupri, 379 (a).
HILARY TERM, X GEO, IV. '
LiTTLBDALE, J. and Parke, J concurred.
Rule refused (a).
(a) See Ex parte ItaaCy in re illegal. That Coart discharged OiKx, a bankrupt, 3 Y. & J. 38, the applicant out of cutody, hold- «hich was an application to the ing, that cqpimissioners of bank- Court of Exchequer to discharge nipt ha^ no authority to commit the plaintiff in the principal case a witness for refusing to read an Ml of cnstody, upon the ground entry in a book; and holding also,. rl»t bis commitment, (the same that refusing to read an entry was stated in the principal case,) was not refusing to answer a quesUoo.
Robertson v. Kensington and another.
1 ROVER^ for coffee-warrants. Plea : not guilty ; and The right issue thereon. At the trial, before Lord Tenterden, C. J., unjer^e G* 4
It the London adjourned sittings after Michaelmas term c. 94, s. 5, to lo^i/^ 1 1 • pledge the
1828, the case was this : — ^ds of his
The plaintiff was a merchant at Pertb^ where he carried pnnt^ipalf d«-
on business jointly with the firm of Young, Ross &. Co., in the question
which he was a partner, and also separately on his own ac- thlTface'o*^^
county and was in the habit of consigning to Fennell & Son, whoU account
commission-agents in London, various goods for sale on thel>rfncipar'
commission, some belonging to his firm jointly, and others! » indebted to
belonging to himself separately. The goods, when re- a factor,
ceived by Fennell & Son, were, at the plaintiff's desire, ^7 ^^V^. °^, .... . . his pnncipal,
distinguished by them by marks in their accounts-sales, the kept separate
accounts of sajles, m some of which the principal was solely, and in others but partly, interested ; bat be regularly posted all tlie items of both those accounts into one general account. The factor pledged goods consigned to him on the joint account, for the purpose of neeciog a draft drawn on him by his principal against that account At the time of the pledge, the factor, upon the general account, was indebted to his principal in a larger sum than the amount of the draft; but upon the separate account, against which the draft was drawn, and to which the goods pledged belonged, the principal was indebted to his factor. Held, that the factor had no right to pledge, and that the pkdgee could not retain the goods against the principal.
Where, in such a case, the principal for some time after notice of the pledge, for- bore to make any demand upon the pledgee: — Held, that such forbearance was not an ioqaiesoence in the pledge,— and that in the absence of any evidence to shew that the dfect of such forbearance had been to alter the situation of the pledgee for the worse, or that of the principal for the better, the right of the principal against the pledgee remained entire.
Robertson
382 CASES IK THE KING's BENCH,
1830. goods beloDging to the firm being carried to an account
called the H. JR. account, and those belonging to the
plaintiff to one called the H. F. account. Both, however,
Kensington ^ere posted up into one general account with the plaintiff, and another, n *f o *-. i i i- . , .•
Fennell& Son had no direct correspondence or dealing
with any other of the firm of Young, Ross & Co. In 1826 Fennell & Son received a consignment of coffee on the joint, or H» K., account, for which they procured the delivery-warrants, the subject of the action, in the usual course. Shortly afterwards they received a letter from the plaintiff, in which he said, ''To reimburse Mr. Hunter for some payments, I have this post sent him my draft on you at three months for 1278/. 105., on account of the if. R. account; which please honour: if you are not in funds when it becomes due, it can be renewed.'' The bill there mentioned was accepted by Fennell & Son, and became due on the first of May, when they, not being in funds, applied to the defendants, who were brokers in London, for an ad- vance of money to meet the bill, offering to deposit with them as a security the coffee-warrants in question. The defendants thereupon gave their acceptance for IdOO/. to Fennell & Son, who got it discounted, and with the pro- ceeds paid the bill due to Hunter; and Fennell fl Son de- livered to the defendants the coffee-warrants in question. The defendants were informed that the advance was wanted to take up the plaintiff's bill, and it was stated to them by one of the FennelU, that it would be a great injury to tbem if that bill was not taken up. At this time Fennell & Son were indebted to the plaintiff on the whole account, in 1500/. ; but if the two accounts were separated, there was, npon the H» JR. account, a small balance due from the plaintiff to them. Fennell & Son afterwards became bank- rupts, and in September 1827| they, for the first time, in- formed the plaintiff of their having pledged the ^varmnts with the defendants. The plaintiff then desired that no demand should be made on the defendants for the warrants until he had settled accounts with the FennelU i and no such demand was in fact made till the end of October
HILARY TERM, X GEO. IV. 383
1887; and then oo offer was made by the plaintiff to isso.
satisfy aoy supposed lien of the defendants. In April
1824 the plaintiff had written to Fennell & Son, saying,
"For the account of the H. R. I inclose the following, per Keksinoton
and aDother. Alfred, iu:. I inclose two bills of lading for a different
iccouDt, say H. F., and these you will keep entirely sepa-
rate and apart, taking my instructions and holding the
proceeds at my disposal." In point of fact, the accounts of
sales had been kept distinct before the receipt of this letter,
and DO alteration was made afterwards in the mode of
posting the accoants, the whole being brought into one
general account with the plaintiff as before.
It was contended on the part of the defendants, first,
tkat as the goods consigned to Fennell & Son belonged to
two aets of persons, whose distinct interests in them were
known to the consignees, who were expressly required, by
the plaintiff himself, to keep separate and distinct accounts
for each, they, as factors, had a right to do so, and to insist
OB their lien for the balance due to them on the account to
which the coffee belonged at the time of the pledges, (which
was Ike H. R» account), and, consequently, that the de-
feodants were entitled, under statute 6 Geo. 4, c. 94, s. 5 {a),
to Hi up that lien as a defence to the action ; secondly,
that the plaintiff was by his own conduct estopped from
<^jing the right of the defendants to set up such lien, be-
caase by neglecting to demand the warrants as soon as he
knew of the pledge, he had in effect assented to and
airmed it ; that, at any rate, his demand came too late, for
that he had no right to lie by for a period during which the
(fl) Which enacts, 'Hhat it shall said goods, &c., than was posses-
^ lawful to and for any person to sessed or coold have been enforced
vcepc and take any goods, &c., hy the said factor or agent at the
in deposit or pledge from any fac- time of such deposit or pledge;
toror agent, notwithstanding such but that such person shall and
posoQ shall have notice that the may acquire, possess, and enforce
posoo jnakiog snch deposit or such right, title, or interest, as was
pledge is a factor or agent; but possessed and might hate been
^ in that case snch peison shall enforced by such factor or agent,
icqiore no farther or other right, at the time of such deposit or
<>t^ or inCerest ib, upon, or to the pledge.*'
384
1830.
Robertson
V.
Kensington aud another.
CABES IN THE KING S BENCH,
situation of the parties, either way* might have been mt» teriallj altered.
Lord Tenterden, C. J., was of opinion, — first, that as the dealings of Fennell & Son were with the plaintiff alone, as it was for his use only that the goods were distinguished by separate accounts, (apparently for convenience,) which were all, as between the factors and the plaintiff, brought into one general account, upon which they were indebted to the plaintiff, the plaintiff had as against them, and, therefore, as against the defendants, the legal title to the whole; and that the defendants had no right to insist upon a lien as to a particular portion of them ; — secondly, that the mere neg- lect of the plaintiff to demand the warrants for some time after he was informed of the pledge, could not be taken as an assent to or affirmance of the pledge, — at least without evidence to shew that the situation of the defendants had been made worse, or that of the plaintiff better, by means of the delay : and no evidence of that sort being given on the part of the defendants, the jury, under his Lordship's direction, found a verdict for the plaintiff. A rule nisi for a new trial having been obtained in the following term upon both points,
Scarlett, A. G., and Campbell, now shewed cause. It is clear that the statute (a) gave the defendants no authority to hold the warrants against the plaintiff, unless Fennell & Son, the factors, who pledged them, had themselves a lien upon them against the plaintiff, at the time of the pUdge. Now Fennell & Son had no lien at the time of the pledge. It was in evidence that at that time Fennell & Son were in- debted to the plaintiff, upon the whole account between them, in a larger sum than that for which the warrants were pledged. By what right can the defendants assume to dis- sect that account, distributing some of the goods toff, i!., and others to H, F,, merely to snit their own purpose in saying, '' these warrants belonged to H. R. f*" As against (a) 6 Geo. 4, c. 94, s. 5. See the preceding note.
Robertson
HILARY TERM, X GEO. IV. 385
ttnntU & Son, and, consequently, as against the defendants, 1830.
who can stand only upon the rights of Fetmell & Son, all
the goods were the property of the plaintiff| by whom, ex- v.
dusifcly, Fennell & Son were employed ; though it might fnTano^heJ!
be necessary, for his own convenience, that he should
direct his agents to distinguish the several accounts. If the
warrants had remained in the possession of Fennell & Son,
the plaintiff might have sued them for them in his own name
only, and they would have had no answer to the action.
Then it is said that the plaintiff has acquiesced in the pledge, and cannot now dispute its legality. There is no evidence to support such a proposition. All that the plaintiff did, was to delay demanding the warrants from the defendants, until he had, by an investigation of the accounts between himself and Fennell & Son, ascertained whether the latter had any lien upon the warrants, which could by means of the pledge have passed to the defendants ; and having satisfied himself tliat no such lien existed, he made a demand of his property, and upon a refusal brought the present action. It is impossible to hold that this amounted to an acquiescence in the pledge, and therefore, upon both the points made at the trial, the plaintiff is entitled to retain the verdict.
Denman and Hibbert, contri. It is admitted on the other side that the accounts were kept distinct by the ex- press direction of the plaintiff himself; therefore it cannot be nrged as an argument in his favour, that those accounts were afterwards posted into one general account. He had always the means of ascertaining at once what was the exact state of each account, though both might be transmitted to him upon one sheet of paper. The subsequent reduc- tion of the two accounts into one general account, cannot alter the legal character of the original arrangement. The plaintiff had the benefit of the 1300/. advanced by the de- fendants upon the warrants ; and his bill, to provide for which that money was so advanced, was drawn specifically
▼ou V. CO
386
1830.
ilOBERTSOIl V.
Kewsinotoh and another.
CASES IN THE KINGS BENCH^
ttgahiBt the M. R. irccounty to which tfafe goods repre^ seated by the warrants belonged ; and, bat for the m6\tq procured by means of the pledge, the plaintiff must have paid that btl) himself. [Lord Tenterden, C. J. The F^nnelh clearly considered that they wete borrowing the money for their own accommodation, for they said at the time, that it would be a great injury to them (a) if the bill was not paid.] The Fennelk had once a lien as against the plaintiff upon the H. R. account, and nothing having been done to satisfy or destroy that lien, it passed to the defendants by opera- tion of the statute. As to the affirmance of the pledge, the plaintiff, by not interfering after he knew of the pledge, must be taken to have acquiesced in it. Whether the situa- tion of either party was improved or otherwise, is not the question ; the plaintiff had no right, by his silence, to lead the defendants to suppose that he acquiesced in the pledge; and having done so, he must not now be allowed to evade the consequences of his own neglect.
Lord Tenterden, C. J. — I am of opinion that the plaintiff is entitled to retain the verdict in this case. All the goods that came to the hands of Ftnnell & Son, came to them directly from the plaintiff. He was the only per- son with whom they had any correspondence or dealing with relation to the goods, or with whom they kept any account. At his desire they made a distinction as to par- ticular goods coming by particular ships. That was done in order that he might know how to charge or give credit to other persons jointly interested with him in those goods; but they also kept one general account with him ; they made him debtor and creditor for every item, whether the goods came by one ship or another ; in short, he was the only person with whom they dealt Such being the rela- tive situation of these parties^ it is perfectly clear that fen- fiell & Son could have no right to separate the account, for
(a) The injury to the FenmdU would have been the disclosure of their insolvency, — to the plaintiff the liability to take up his dis-
hoooured draft, — finom which he was redeemed by the advance made by the doleiidaiits oo the i coflnse-wanants.
HUJiKT TERM, X QEp. IV* 387
the pttrpof e of giving themselves a lien od a particular part issQ. of it; but that, as between tbem and the plaintiff, they ^'^^^^ codM look only to the whole account, and that if, upon the 9.
bee of that, they appeared indebted to the plaintiff, they Kbotihoton bid DO lien, and consequently could transfer none to the persons to whom they professed to make the pledge.
But it has been urged on the part of the defendants, that the plaintiff, by forbearing to give notice that the goods were his as soon as he heard of the pledge, acquiesced in and affirmed it. The doctrine that a mere nonfeasance can operate as an act of confirmation, unless it be followed by cerlun consequences, I cannot concur in* If it had ap* peared in this case that the consequence of the plaintiff's forbearing to give notice had been an alteration in the de- faidants' situation for the worse, or even in his own for the better, there might have been ground for the argument; but nothing at all of that sort appeared upon the evidence* That being so, it seems to me that there is no ground for contending that the plaintiff by his forbearance acquiesced io the pledge.
He present rule, therefore, must be discharged.
Batlby, J. and Iattlkdalb, J, concurred.
Rule discharged (a), (a) Parke, J. was gone to chambers.
Cooper v. J. Meyer and W. B. Meyer.
Assumpsit, by the plaintiff as indorsee, against the By acceptina defendants as acceptors, of three bills of exchange, one of ^^/^^^
which purported to be drawn by Edmund Woodman, pay- er*B order,
drawn and todoned in a fictitious name, the drawee undertakes to poy to the signature of the fine persoo as indorser, who signed as drawer.
The indoraee of such a bill suing the acceptor, may, by comparison of the signatures^ iWw that the diawing and the indorsement are in the same hand-writing.
c c £
CASES IN THE KING S BENCH,
able to his order, indorsed by him to John Darby & Co., and by them to the plaintiff; the others purported to be drawn by Henry Vllock & Co., payable to their order, in- dorsed by them to Johi Darby & Co., and by them to the plaintiff. Plea : non assumpsit, and issue thereon. At the trial before Lord Tenterden, C. J., at the London adjourned sittings after Michaelmas term, 1823, the case was this:— John Darby was a tradesman, carrying on business under the firm of John Darby & Co. The defendants were in partnership as American merchants. The bills in questioa were, in point of fact, drawn by Darby. There was no person in trade of the name of Edmund Woodman. There was a person of that name, a relation of Darby^ but be, being examined on the trial, stated that he had never autho- rized Darby to use his name. There was no firm of Hinry UllockSi Co,; there was a firm of Ullock, Lancaster & Co., but a member of that firm being examined, stated that Darby never had authority to use their names. The bills thus drawn by Darby, were accepted by J. Meyer, one of the defendants, in the name of the firm, for the accommo- dation of Darby. Being accepted. Darby indorsed them: the bill payable to the supposed Edmund Woodman he first indorsed in that name, and afterwards in the names of John Darby & Co.; the bills payable to the supposed Henry Vllock 8l Co. he first indorsed in those names, and afterwards in the names of John Darby 8l Co. Tbe bills thus indorsed were taken to a person named Green, a re- lation of the plaintiff, and were by him discounted for, and with the money of, the plaintiff. The defendant J. Meyer afterwards admitted to Green, in the presence of Darby, that neither he nor his firm ever had any dealings with the supposed drawers of the bills, and that he did not know of such a firm as Henry Vllock & Co. When this admission was made, the other defendant was abroad. A witness, called for the defendants, stated that he did not believe that the' drawers* and indorsers* names were written by Darby. Ooi cross-examination, he was asked, whether he believed thel bills to have been signed and indorsed by the saaie person.
HILARY T£RH, X Q£0. IV. 389
This was objected to as a comparisoo of hand-writing (a), i^^* but Lord Tenterden allowed the question to be put, and the witness answered it in the affirmative. His lordship then (old the jury, that as there was no proof of the existence of such persons as Woodman and Ullock & Co.« in whose names the bills were drawn, it was sufficient^ as against the acceptors, to prove the indorsement to be in the same hand- writing as the drawing, which had been done; but he de- sired them to say, whether, upon the evidence before them, tbej believed the bills to have been drawn and indorsed by Darbif. The jury said they did, and found a verdict for the plaintiff. In Hilary term, 1829^ a rule nisi for a new trial was obtained, on the ground, first, that the question objected to at the trial should not have been allowed to be put; and secondly, that the case was not correctly left to the jury, inasmuch as it was competent for the defendants, as the acceptors, to dispute the regularity of the indorse^ nunU, although they admitted the bills to be regularly draum^ and although the bills appeared to be drawn and indorsed in the same hand-writing.
Scarlett, A. G. and Campbell, now shewed cause. It must undoubtedly be admitted as a general principle, that a mere comparison of hand-w*riting cannot be allowed as evidence of a particular written document ; but this is a very peculiar case, and must be considered as excepted out of the general rule. But the question objected to in this case, was not strictly a comparison of hand-writing. - The bills were evidently drawn in fictitious names, and the ques- tion asked of the witness was, not whether the bills were indorsed by one person or by another, but whether they were drawn and indorsed by the same person. That ques- tion seems unobjectionable; and the question left to the jury was equally so, for they were only asked whether they believed the bills to have been drawn and indorsed by Darby; and there certainly was ample proof to justify them
(fl) Vide 2 Stark. Evid. 9d cd. 374, 6; 1 Phill. Ev. 7th ed. 490, S.-
390 CASES IN THE KING'S BENCH^
1830. in finding that they were so. Under the circumstances of this case^ it was not competent for the defendants, as ac* ceptors of the bills, to dispute the validity of the indorse- ments. If a bill is drawn in favour of a fictitious payee, and that circumstance is known to the acceptor as well at the drawer, and the name of such payee is indorsed on the bill, an innocent indorsee, for a valuable consideration, may recover upon it against the acceptor; Gibson v. Minet{a), Gibson v. Hunter (6). So here, the defendants, by accept- ing the bills so drawn, recognized the authority of Darby to draw them in fictitious names, and also gave him autho- rity, as against themselves, to indorse them in those names. Besides, here there was the admission of one of the defend* ants, (which was equally binding on both,) that he had accepted on the credit and for the benefit of Darby, and that he knew there were no such persons as the supposed drawers.
Gumey and F. Pollock, contrA. The bills were accepted by one of the defendants in the name of the firm in which they were partners ; but they were drawn in fictitious names, and were in fact forgeries; and one partner cannot bind another by his acceptance of a bill which is a foi^geiy* Neither ought the admission made by one of the defend- ants to be held binding upon the other, who was not pre- sent when it was made, but out of the country, and entirely ignorant of the transaction. The admission itself amounts to very little; it only shews that at that time the defendant J. Meyer knew of no such persons as the drawers, which is not inconsistent with the fact of his believing, at the lime of the acceptance, that such persons existed. Although the defendant J. Meyer has by his acceptance precluded him- self from disputing that the bills were duly drawn, it was still competent for him to dispute that they were duly in- dorsed; for the acceptance of a bill of exchange admits
(a) 1 H. Bla. 569; 3 T. R. 481; (b) 2 H. Bla. 888; 6 Bro. P. C.
2 Browo, P. C. 60, Sd edition. 395, 2d edition.
HILARY T£IUr, X GEO. IV. 391
merdy the drawing, but not the indorsement of the drawer; 18S0. Rdimon v. Yarrow {a)i where it was held, in an action by c" the indorsee against the acceptor of a bill, drawn and in- v.
dorsed by procuration, that the indorsement by procuration MEYEa, not being proved, the plaintiff was not entitled to recover. That is an authority to shew that the indorsements in this case should have been proved in the regular way. The eyidence that the drawings and indorsements were in the same hand-writing should clearly not have been admitted. If it were admissible in this case, it would be equally admis- sible in all others; for the acceptor is always precluded from disputing the hand-writing of the drawer.
Lord TsNTEBDEN, C. J. — I am of opiniop that both the defendants are bound by these acceptances, for the know- ledge and the act of one of them must, in such a transaction* be taken to have been the knowledge and the act of both* Now it is dear that the defendant John Meyer knew that be was accepting on the credit and for the benefit of Darby f aad the jury have found as a fact that the bills were both drawn aod indorsed by Darby, The acceptor of a bill is bound, and must therefore be presumi^d, to kuow the hand- writing of the drawer, aad is consequently precluded from disputing it. But it is said that he may, nevertheless, dispute the indoraement. Where the drawer is a real person, he may do so; but where there is in reality no such person as the drawer, I think the fair and proper construction of the acceptor'a undertaking is, that he will pay to the signature, as indorser, of the same person who signed as drawer. For these reasons I am of opinion that the verdict in this case was right, and that the rule for a new trial ought to be discharged*
Batlet^ J. — The defendants ought not to have accepted the bills without ascertaining whether or not there were sach persons as the supposed drawers, and if they chose to
(a) 1 B. Moore, 150; 7 Taunt. 455.
CASES IN THE KING 8 BENCH,
accept without making that inquiry, I think they must be: considered as undertaking to pay to the signature of the person who actually drew the bills.
Parke, J. (a) concurred.
Rule discharged.
(a) LUtledaUt J. was gone to chambers.
Harrison v. Hodgson.
Under pard- X HIS was an action of trespass for an assault and false »tances*'onr" '"nprisonment, to which the defendant pleaded, first, not man may be guilty; and secondly, that the plaintiff had first committed laying hands ^° assault upon him, whereupon he gave the plaintiff into upon another, tijg custody of a peace-officer, who was present. The for the purpose , . .-« i« i • • • i i i
of serving him plaintiff replied, that he was employed to serve the de-
with process, fendam ^jth process, and in order to do so, necessarily laid hands on him, which was the same assault mentioned in the second plea. The defendant rejoined that the plaintiff had used more violence than was necessary; and there- upon issue was joined. At the trial beford Lord Tenter- den, C. J.« at the adjourned Middlesex sittings after the last term, a verdict having been found for the plaintiff,
J. Williams now moved in arrest of judgment(&), con- tending that the replication was bad, inasmuch as it could not have been necessary for the plaintiff to lay hands on the defendant for the purpose of serving him with process; and that, at all events, if any special circumstances bad existed which did render that necessary, those special cir-
(b) Qucrty whether the objec- $hent 9 Vide Anon, March, 78,
tion, if valid, would not have been pi. 125 ; Plomer v. Rou^ 5 Taant.
ground for awarding a repleader, S86, and 1 Marshall, 95; Com.
rather than for arresiing ihejudg- Dig. Pleader, (R) J8.
HILARY T£RM, X GEO. IV.
cumstaQces nbould have been fully set forth in the replica^ tioo.
Lord Tenterden, C. J.— The defendant, by rejohiiog excessi has admitted, that if, in any supposable case, it can be necessary to touch a party in order to serve him with processi it was necessary in this case ; and I am not pre- pared to say that it may not, under particular circum- stances, be necessary and lawful to do so. There seems to me, therefore, no ground for arresting the judgment.
393
1830.
Harrisoit
V.
Hodgson.
The other Judges concurred
Rule refused (a), (a) Vide ante, vol. i. S15 (a).
HoLDswoETH V. James Hunter the younger.
Assumpsit by the plaintiff as indorsee, against the A set of foreign J r . r /.•-•.. ^ , bills, drawn
defendant as acceptor of two foreign bills of exchange, one abroad, was
for 5000/., the other for 4399/. \9s. Id., drawn by M'Ken^ dTral^ ^who de and Co. in the following form : — was also the
"<£5000.
Calcutta, leth July, 1825.
!)avee,) the de- ei ■
fendaiit, who
''At six months after sight pay this our first of ex- parts, and in-
cfaange, (second and third not paid,) to the order of dorsed one to
Messrs. William Hunter and Co, the sum of five thousand value, prior to
pounds sterling, value in account per advice. othlerhad^^
" T. M. M^Kenxie and Co. indorsed by
^'To Messrs. James Hunter, Jun. and Co., London.'' ^^ y^\^ father
. . * • . conditionally,
Flea: non assumpsit; — and issue thereon. At the trial bat who had
before Lord Tenterden, C. J., at the London adjourned sit- "n'^J^Iy')^^^^^^
tings after Michaelmas term, 1828, the following appeared but gave it tip ^ i_ <^i. • • 1 r -^ • ^i_ on the substi-
to be the principal facts m the case:— tu,;^„ of other
The bills in question were drawn by M*Kenzie and Co. securities:— . ^ "^ Held, that the
plaintiff was entitled to recover, and that the bill did not require a stamp; held, also, by Lord Tenterden, C. J., and Parke^ J.— dubitante Littledale, J. — that \t would have been the same if the first part had been indorsed and delivered unconditionally^
394 CASES IN THE KING'S BENCH,
1830. at Calcutta. In December, 1895, the defendant, Jamt$ jS"^^^^"^^ HurUer, who carried on business in London under the firm 9 of James Hunler/}\xn. & Co., and was also a partner in the
HuMTER. firm of William Hunter 8c Co., who carried on business in Glasgow, received the second parts of these bills, which he accepted and indorsed to his father, to whom the firm of William Hunter & Co. were largely indebted. In Ja« nuary, 1826, the defendant received the other parts of the bills, which he also accepted, and indorsed the first parts to one Fennell, who indorsed them to the plaintiff for value. The acceptances were ante-dated 14th November, 1825. At the time of the actual acceptance and indorse- ment of these last-mentioned parts, the parts first accepted were in the hands of the defendant's father; but other bills were afterwards substituted for them, and they were given up to the defendant. Upon these facts it was contended by Scarlett, A. G., on the part of the defendant, that the plaintiff could not recover, upon two grounds : — First, that the party who first obtained the acceptance of any one part of a set of bills, was entitled to the whole of them, all the parts of a set constituting, in fact, only one perfect bill; and, consequently, that the plaintiff had no right to those parts upon which the action was brought; and in support of this proposition he cited a case of Pereira v. Jopp and another (fl): — Secondly, that if, on the other band, the de-
(a) Tried at Gaildball, before which appeared to be ihe second
Lord Kenym, in 1793, bat not re- of a set of bilk drawn in favoor of
ported. The case, as stated by Maa, dated the 5th of December,
Scarlett, A. G., from a note taken 1799, and which was indorsed u
by himself at the trial, appeared stated in the declaration. It was
to be this: — proved, that on the 2 1st of Octo-
** The plaintiff declared in tro- ber, 1793, more than ten months ver for a bill of exchange for after the date of the bill, it wu iOOO/.y drawn by certain persons presented to the defendants for in Jamaica upon the defendants, acceptance, and that they, apon a in favour of one Mm, and by him subsequent demand, refused to re- indorsed to the plaintiff. Notice turn it. It was then proved, on had been given by the plaintiff to the part of the defendants, that tha defendant to produce the bill, one Lieven had absconded in Sep
HILARY T£RH, X GEO. IV.
feDdant was to be held boand by his acceptance of the second part, and consequently was estopped from saying
396
tember^l792; that after he. had abscooded, the plaintiff purchased a debt doe from LUven to Hunter fc Co. ibr ten shiUings in the ponnd, and obtained the necessary power for attaching certain pro- perty of Lieven\ then in Jamaica^ b the bands of MaU; that before tbe attachments were laid against Mait in Jamaica, namely, on the 5th December, 1792, Mais had transinitted the first of the sec of bdls of which the second was now sought to be recovered, indorsed loLieven; that in consequence of heven's absconding, the letter in- doiing such first bill did not reach other bis hands or those of his assignees, he having been made a bankrupt, until the 8th of Nof ember, 1793; that in the BMsntime the fdaintlff having heard of the transaction respecting the first bill of the set, and that it bad not come to hand, sent out to Januuca, and prevailed upon JUftf, on receiving an indemnity, to indorse and transmit to him the second bill of the set, which anived on the Slst of October, 179S, and was, when presented to the defendants, retained by them, in consequence of a notice given to them by the assignees of Lie- veaofthc circumstances; and that a few days afterwards, the letter containing the first bill of the set indorsed to Ueven, was disco- vered. This bill the defendants prodoced, and it appeared to be the first of that set of bills of which the plaintiff claimed the second. Upon this evidence Lord J^cmfon was of opinion that the
defendants were entitled to a ver- dict, because the sum which the bill represented had never been attached in the hands of Mais, he having indorsed and transmitted the first bill to Lieven before the attachment could operate; conse- quently the property represented by that bill, and in the hands of the defendants as the drawers, was vested in Lieven or his assignees, and Mais, the indorsee, could not divest that property by indorsing the second bill to the plaintiff; the plaintiff, therefore, had no title to the money which these bills re> presented.*
Minga^f who was of counsel for the plaintiff, then submitted, that if the plaintiff was not entitled to the 1000/., the sum expressed npon the bill, he was at least enti- tled to the piece of paper which he had left in the possession of the defendants, and which they had refused to deliver up. But this Lord Kenyon denied, and cited a case of Miller v. Hace, tried before Lord Mamfiddy in which this very point was con- tested in an action of trover for a promissory note; and in which Lord Mansfield said, he could not bring himself to think for a mo- ment that the man who had no title to the value of a bill or note, could recover in an action of tro- ver for the paper merely, which was of no value whatever. Upon this, Lord Kenyan continued, Sir Richard Lloyd put this case to Lord Mansfield, whether if, instead of a piece of paper, a diamond ring had been given for a promissory
1830.
HOLDSWOBTB
V.
.HUNTEB.
HOLDSWORTH
V*
396 CASES IN THE KING's BENCH,
1630. that all the parts constituted only one bill, it must follow that such second part must be treated as altogether a se- parate bill, drawn, as well as accepted, in England, and HuMTBR. therefore requiring a stamp; and that as the bills in ques- tion were not stamped, they were invalid. For the plain- tiff it was answered, by i**. Pollock, that it was a question to be left to the jury, whether there had ever been, in fact, a perfect unconditional assignment to the defendant's father of the parts first accepted, or whether they bad merely been deposited with him until other bills could be substi- tuted ; because, in the latter case, as soon as those parts Mere restored to the acceptor, the right of the father ceased, and could not be set up in answer to this action. Lord Tenter den, C. J., concurring, left that question to the jury, directing them to find for the plaintiff if they were of opinion that the parts of the bills first accepted were depo- sited with the defendant's father only as securities till other bills could be substituted. The jury were of that opinion, and found a verdict for the plaintiff. In Hilary term, 1829, a rule nisi for a new trial was obtained, upon
note, the pereon who possessed stolen out of the mail, in the night
the ring, though without title to the of the 11th of December, llbG,
value it represented, might not and on the 12th came to the
bring trover for it? To this Lord hands of the plaintiff for a fbll
Mansfield replied, that the case and valuable consideration, in the
was very ingenious, and that he usual course of his busiuess, and
might not, perhaps, without some without any knowledge that it
consideration, be able to answer had been taken out of the mail;
it satisfiictorily; but yet it did not he afterwards presented it at the
shake his opinion that the plaintiff bank for payment, and the de*
ought not to recover for the piece fendant, being one of the clerks,
of paper under the circumstances stopped it; upon which an iccioo
of the case before him. Mingay of trover was brought; and upon
then elected to be nonsuited." a case reserved upon the point,
The case of Miller v. Race, as whether the plaintiff had a saffi-
reported in 1 Burr. 459, does not cient property in the note to eo-
seem very well to answer the de- tide him to recover, the Court
scription above stated to have were dear in opinion that he bad,
been given of it by Lord Kenyan, and that the action was well
There, a bank note, payable to brought. William Finney or bearer, was
HILARY TERM, X GEO. IV. 397
the grounds urged at the trial, and also upon the ground 18S0.
that the point ought not to have been left to the jury as a ^^,^^^5^^^,^^^
question of fact. Against that rule, v.
. HUNTSR.
F, Pollock and Patltson now shewed cause. The case of Pereira v. Jopp, which was cited at the trial, and will now be relied upon by the other side, has no analogy to the present case. In that case, the first part of the bill had passed to an indorsee for value; and the acceptor was al- lowed, on the indemnity of that indorsee, to resist the pay- ment of the second, because he was considered to have ac- cepted it for the benefit of such indorsee; therefore that action, though defended by the acceptor, was substantially an action between the holders of the two parts of the bill. It is material to observe, also, that in that case but one part was accepted, and that no intention was expressed or evinced by the acceptor to make himself liable upon more than one. Here, the defendant has accepted both parts of the bill; and he is defending the action, not on the bon& fide title of a holder for value of one of them, but on the ground that he has fraudulently deposited one part with his father, with a power of redeeming it, having, in fact, redeemed it. He cannot be allowed to set up his own fraudulent act to defeat his own acceptance. Besides, the jury have found that the bill was deposited only till the de- fendant should redeem it, and substitute other securities for it, and not for the purpose of payment to the father. The defendant has, in fact, been charged only once, for the other parts of the bill have never been paid. Whether the drawer, if sued, could set up this defence is not the pre- sent question ; it is enough that the acceptor cannot, for he, by his acceptance, has estopped himself from doing so.
Secondly, there is no weight in the objection respecting the stamp* A bill drawn in Calcutta, for acceptance in England, does not require any stamp. In order, therefore, to make a stamp necessary in this case, the bill must be considered as one made entirely in England. But it can-
3d8 CASES IK THE KlKo's BENCH,
1880. not be 80 considered, without making the defendant gniit; of forgery, and he cannot be allowed to set up his own guilt as a defence to the action,
Scarlett, A. G., and Campbell, contri. It is a principle recognized in the case of Pereira v. Jopp, that all the se- veral parts of a foreign bill constitute togeUier but one bill, and that the party who first acquires title to any one part has also a right of property in the other parts« In this case, one part of each bill was indorsed by the defendant to his father, for a valuable consideration; and though it was left to the jury, as a question of fact, whether they were so indorsed in order that the father might sue upon them, or only that he might hold them until other securities should have been substituted, Uiere was no evidence before the jury of any agreement having been made one way or the other. In point of fact those parts remained in the father's hands, and he had the legal right to them at the time when the other parts were indorsed to the plaintiff. The pro- perty, therefore, in both was in the father, and it is unma- tarial that he afterwards exchanged the parts in his posses- sion for oUier securities. The only way in which the plaintiff can get over this difficulty, or set up any right at all, is, by treating the two parts of the set of bills as sepa- rate and distinct bills, and even by doing that, he falls into an equal difficulty, though of a different kind. If the parts uow sued upon are treated as separate and distinct bills, they must also be treated as bills manufactured entirely by the defendant in this country, not as forgeries upon the drawers in Calcutta, for it is not necessary to go that length, but. as drawn in England in a fictitious name; uid if so, they cannot be sued upon for want of a stamp. The case will then come within the princif^e of the decision in Bathe v. Taylor{a), where it was hdd, that a bill drawn on die l8t of August, at two months, by A» on jB., payable to
(a) 15 East, 413.
HOLDSWORTS V.
HILART TEEM, X GBO. IV. 399^
tte order of the drawer, aiMi aeoepted and re-delif ered by isdo. S. as a security for a debt, and kept by ji. for twenty days, coQld not be altered in its legal effect, by bringing forward the date twenty days, without a new stamp, HtynTEii. though with the consent of the acceptor, and before in~ dorsement and delivery to a third person.
Lord Tentebden, C. J. — ^The verdict of the jary, after my direction to them, must be taken to find as a fact, that the delivery of the first parts of the bills by the defendant to his fiither was not an absolute delivery, but conditional only, that the father would re-deliver them upon receiving other securities ; and in my opinion that finding was well justified by the facts of the case. Those parts, there- fore, which were the first accepted were not in fact paid, »d cannot be considered as having constructively been ptid, for tbey were redeemed by the substitution of other secarities. What was diere then %o prevent the defendant from potting into circulation other parts of the bills? In that view of the case it seems to me quite clear that the plaintiff is entitled to recover; but I am inclined to go fur- ther, and to say that the plaintiff would have been entitled to recover, even if the delivery to the father had been ab- solate and unconditional. Suppose this case:— Two parts of a foreign bill come to the hands of the party who is at ODce drawee and payee. He accepts both, and indorses, first, one part to A., and afterwards the other part to B, In a question between ihem, as to the right of property in the bills, A. might be entitled to both; but here the ques- tion is, whether the acceptor and indorser of both parts shall be allowed to defend himself against the holder of one party on account of the previous circulation of the oAer. I am not aware of any principle of law upon which such a defence can be supported. But then it is con- tended that these bills must, by construction of law, be considered as drawn in England, and therefore liable to the stamp duty. To hold that, would be to place the law in direct opposition to the fact, for we know that the bills
•400 CASES IN TH£ KING's BENCH,
1830. were actuallj drawn io Calcutta; aod I thiok we ought not ^^'"''^'^'^ to strain the stamp act to favour such an objection as thii.
HOLDSWOETB . ,
V. If the bills .had been actually drawn in England, though
Hunter. purporting to be drawn in Calcutta, the case would have been different. I think this rule must be discharged.
Baylby, J. — There can be no doubt on which side the justice in this case lies, and I think there is no real dif- ficulty in point of law to. prevent our carrying that justice into effect Where a bill is drawn in sets, the party claim- ing as holder ought to have all the parts, for the paymeot of any one part to another person may defeat him. In this case there were three parts, and it happened, from the cir- cumstance of the same person being a partner in two firms, and at once the drawee and payee of the bills, that all the parts came into his hands, and he had the opportu- nity of dealing with them in these several characters. Of that opportunity he availed himself; for he accepted two of the parts, and the plaintiff claims as indorsee of one of them. The other was indorsed by the defendant to his father, and that indorsement had priority in point of time; and if it had been followed by an absolute and uncondi- tional transfer of the bill, and payment had been actually made to the father, there might have been a difficulty in « the case which does not now exist, — for the jury have
found, and I think properly, that the indorsement and deli- very to the defendant's father were conditional only; and as he did not insist upon payment to himself, but returned the bill to the defendant, upon receiving other security, the subsequent indorsement to the plaintiff is clearly available. The defendant, by his acceptance, undertook to pay that . first of exchange, the second and third not being paid; they have not been paid, nor is there any person that has a valid claim upon them; it follows that the plaintiff is entitled to recover on the first.
LiTTLEDALE, J. — I coucur in the opinion that the plain- .tiff is entitled to recover. In the. first place, T think that a
HILARY TERM, X GEO. IV. 401
stamp was not necessary for these bills. They were bon& 1830. iidedrairn in Calcutta as foreign i>ills: they were intended ' ^
° "^ HOLDSWORTH
to be treated as such, and what was done by the defendant v,
in England cannot make them otherwise. Even if they are "unter, to be considered as binding upon the defendant by estop- pel, 88 separate bills^ they still cannot be treated as drawn in England. I feel, however, some difficulty in putting the case on this ground, for I doubt whether the doctrine of titoppel czn be properly imported into a transaction taking effect according to the usage and custom of merchants. The three parts of each bill originally formed but one bill, and I do not see how the defendant could convert one bill ioto two or three. Still, upon the other ground, I think tbe plaintiff is entitled to retain the verdict. The defend-* ant has accepted and indorsed two parts. He cannot be iield liable upon both of them; but he must be liable upon one or the other. If the part first indorsed had been de- livered unconditionally to the father, and the amount paid to bio], the defendant would not have been liable upon the part subsequently indorsed to the plaintiff. But as the de- lirefy to the father was conditional, and he afterwards vaived his claim and gave up the bills, the indorsement of the other part to the plaintiff is binding.
Parke, J. — I have no difficulty in concurring with the rtil of the Court, that the plaintiff is entitled to recover. The action was brought upon two foreign bills accepted by die defendant, and the defence was, that he had before accepted another part of each bill, and indorsed it away for valae. Assuming that to be so, (and I, for one, am of opinion that it was so,) I still think that, although the defendant had no power, after so doing, to create a fresh -liability in tbe drawer, he might create a fresh liability in himself, and that he is estopped from disputing the regularity of his own acceptance. I cannot agree that the doctrine of es-> «oppel is inapplicable to bills ; for the general rulie is, that the acceptor of a bill is estopped from disputing that the
FOL. V. D D
HOLDSWORTB
CASKS IK THE KING S B£N^,
bill was regularly drawn. The simple question then it, whether there is any provision in the Stamp Act« 55 Geo. V. 3, c. 184, under which these bills are liable to stamp duty.
nuNTER. Now they were clearly not liable as foreign bills, for they were not '' drawn in, but payable out of, Great Britain;" nor were they liable as inland bills, for they were bon& fide drawn out of Great Britain. Snaith v. Mingay{a) seemi in point, where Le Blancj J., said, *' Whether this was s perfect bill in Ireland, is not so much the question as whe- ther it was a bill drawn in England/' So here, the ques* tion is, whether these bills were drawn in England; they clearly were not; and I agree that we ought not to eitend Che provisions of the Stamp Act to meet such a case, and favour such a defence as this.
Rule discharged.
{a) 1 M. ^ S. 87. There, a bill negociated. It was held, tbat thU
9vas drawn in Ireland, and blanks was to be considered as a bill of
lefl for the date, sum, time when exchange from the time of signing
payable, and the name of the and indorsing it io Ireland, and
' drawee, and transmitted to £ng- that an English stamp was «ot oe-
j land, where it was completed and cessary.
Waeo v. Co^st.
of a hous?*' I^EBT for 31/. 5s. for five quarters^ rent of a messuage which, in con- fcc, demised by the plaintiff to Jefferson by indenture 29th jSm"p2d^ September, 1799, and for 15/. {a) due from the defendant to the lessor, to the plaintiff on the 55th March, 18«8, for two yearly and a cove- *r*i,r^- ... •• />
nant to repair payments of 71, \0s. issuing out of the said messuage &c,
and finish, had piea : nil debet. At the trial before Lord Tenterden, C. J., been oemised
lISiifunt'ingTr (fl)Thatcfc6^istheproperformof demand, see UnderhiU v. EUi^ less than the '^^^^ '" respect of the part of the comber Madeland & Younge, 452. annual valae,
redeems the land-tax thereon, under S8 Geo. 3, c. 5. A> is entitled to an anaaal pay- ment from B, in respect of the difference between the rent and the annual value, vif. an annual payment bearing the same proportion to the whole land-tax redeemed, wbidi the difference between the rent and the annual value bears to the annual valae.
BILAmr TEBH, X OSO. IT. 403
al the littiogs at Westminster, in December, 18fi8| the laso.
phiotiff was nonsuited, with leave to move to enter a ver* ^'
dkt Oo the motion being made, it was agreed that the v.
6cts should be stated in a special case, which case was Co**** to the affect following:—
The plaintiff being seised in fee of a messuage &c., by iodenture made on the 29th September, 1799, between the phiotiff and Jeffenon, the plaintiff, in consideration of Ml. paid by Jeffenon, and of the other charges wUcb J^enon would be at in repairing and finishing the pre* niset, demised the same to Jejfenon, habendum for 09 years, tt the yearly rent of 25/. ; and Jefferson thereby covenanted vith the plaintiff and bis heirs, that Je/ferion, his executors* ftc. would pay to the plaintiff and his heirs the said rent of UL The indenture contained the usual covenants to repair, and to deliver up in repair; but no covenant, con- dition, or stipulation respecting taxes or rates of any de* Kfiption. At the date of the lease the premises were metied to the land-tax in 10/. being two shillings in the pound apon an estimated annual value of 100/. In I8OO4 the Isod-tax valuation was reduced to 90/.; this valuation continued at the time of the redemption of the land-tax thereon, at which time the assessment was ?/• lOi., being 1<« BcL in the pound.
ilst February, 1800, by deed poll duly registered, the cpamissionera appointed under 42 Geo. 3, c. 116^^ for the citj and liberties of Westminster, certified that they ha4 Mtttneted with the plaintiff for the redemption by him for W5/« tbee per cent, consols of 7/. lOi. land-tax, being the hnd-tax charged upon the premises, which premises were nted in the assessment for 1803 as follows: —
** Geot^e Ward, esq. proprietor — Received, Joseph Jef* firm, occupier, 71. 10s."
The 275/. consols were duly transferred.
In 1819-22-23, Jefferson paid the plaintiff 7/. lOf. in ^tion to his rent. Jejfferson dying in 1824, his personal ^presentatives continued to pay the iL IO5. until die sale
dd2
404 CASES 13^ THE KING's BENCH,
1830. of the term by them to the defendants in May, 18S6. The rack rent value of the premises in 1799 was 120/., and they are not now of greater value, if any thing be payable by the defendant in respect of the redemption of the land-tax* Two years of such payment were in arrear on the 25th Marcb, 1B28.
Patteson for the plaintiiF. By the first land-tax act, 4 TT. 4r M. c. }, after reciting (sect. 5,) that many of the manors, messuages, lands, tenements, and premises in* tended by that act to be charged with a pound rate* stood incumbered with or were subject and liable to the pay- ment of several rent charges or annuities issuing out of the same, or to the payment of divers fee-farm-rents, rents- service, or other rents thereupon reserved or charged, by reason whereof the true owners of such manors &c., did not in truth receive to their own use the true yearly value 6f the same, for which nevertheless they were by that act charged to pay the full pound rate of fqur shillings for every twenty shillings of the true yearly value; it was en- acted (sect. 6), that it should be lawful for the landlords and owners of such manors 8cc. as were charged with the pound rate aforesaid, to abate and deduct, and to retain and keep in their hands four shillings in the pound for every fee-farm-rent or other annual rent or payment charged Upon or issuing out of the premises or any part thereof, or thereupon reserved; and all and every person and persons Entitled to such rents and annual payments were thereby required to allow such deductions and payments upon the receipt of the residue of such moneys as should be due and payable to them, for such rents or annual payments yeserved or charged as aforesaid. Thus each party inter- ested was to bear the tax in proportion to bis interest. The last annual land-tax act, 38 Geo. S, c. 5, shews that the landlord is to pay only in respect of that sum which he actually received. The first land-tax-redemption act (a)
(a) 38 Geo. 3, c. 60.
BILARt TERM, X GEO. IV.
gives to landlords the option of extinguishing thd tax^ or continuing it as a charge on the land. By 42 Geo. S, c. 1 16, no such option is given, but the plaintiff is entitled to recofer under sec. 123(a) of that act. Where premises ire improved, the landlord is liable only for so much of the land-tax as would have been payable in the state in which the premises were demised. Yeo v. Leman{b), Hyde v. flt//(c), Whitfield V. Brandwood{d), Watson v. Home {e). The 520/. consideration is to be considered, not as rent paid in anticipation, but as the purchase-money of an interest of which the purchaser becomes the owner, and in respect of which he is liable to be assessed as the party beneficially interested. Before this land-tax was redeemed, the tenant was entitled to deduct from the rent such part
405
1830.
(a) By which it is enacted " that wbere any person having any estate or interest, otiier than an estate of mfaeritance, in any lands &c., shall ndeem the land-tax charged there-' 00 out of their own absolute pro- perty, such manors, messuages, &c. duD be and become chargeable for tile benefit of inch persons, their execntoTs, &c. with the amount of the three per cent Bank annuities vliich shall have been transferred, or with tiie amount of the moneys psid as the consideration for the ndemption of such land-tax, as the case may be, and with the pay- ioeot o{ a yearly sum or sums of anoey by way of interest thereon, e^Qsl in amount to the land-tax redeemed. Provided always, that BO penon or persons in remainder, revoiioD or expectancy, or having aoy future interest in such manors, iBessoageiy Sec, who shall after- wards, in order of such succession; eoBie into the actual possession, or be beneficiaUy entitled to the rent and profits of any such manorSi
messuages, lands, tenements, or hereditaments, shall be liable to the payment of any yearly sum or sums of money by way of interest as aforesaid, save only for the time they shall respectively come into possession or be beneficially enti- tled as aforesaid: Provided also', that where the land-tax charged on any manors, messuages, &c. shall be redeemed by any persons having any estate or interest in remainder, reversion, or expectancy; such persons in remainder, reversion, or expectancy, shall in the meantime, until their respective estates and interests vest in possession by rea- son of the determination of the preceding estate, be entitled to have a yearly sum issuing out of such manors, messuages, &c. equal in amount to the land-tax so re- deemed."
(6)2Stra.ll91, S.C. lVVil8.21.
(0 3 T. R. 377.
(<i) 2 Stark. N. P. C. 440.
(e) ^nte, vol. i. 191 ; 5.C. 7Bami & Cress. 285.
Waid
406 CASES IN THE KIN6*8 BENCH,
laso. only of the laod'tax as bore the aame pfoporlieii to the residtte of such land-tax, as %5L, the rent resened, bears la 100/., or 90/., the amount at which the premises
^^^^^' weiv valued. The landlord is not bound to pay kod-tti i» fespeet of the premiani. By 42 Gea» S, c Il6» s. 10 and ]9> A tenant for a term of years, granted on a fine or premkmv is treated as a person interested in the redeap* tion of the land-tax, which he could not be if he were not Ike party Kable to /Niy sueh portion of the tax.
FMM contriL Before the redemptiott of the hnd^tax |ha tenant was not bouad le pay any part of this assess* ■enl, and no new liability can be thrown upoA Uia kj the hoMllerd's ehoossng lo redeem. The foffmer part ef sec- tion 123 (a) of 42 Geo* S, c. 1 16, applies to redemption bj tenants of particular estates, and the latter part of the sec- tion applies to persons in remainder, reversion, or ezpec- tmcy, and not to persons in the actual possession or imme- diate receipt of the rents and profits, otherwise the wAofe burthen would be thrown on the tenant, whether a fine were paid or not. If the plaintiff is entitled to any thing under this statute he is entitled to the whole assessments which would be absurd. [Parke, J. The land-tax can be considered as redeemed by the plaintiff in his character of veftrsioner in respect of that part of the assessment onlj which the defendant might have redeemed under 42 Geo, S^ c. 1 16, s. 123.] The fine was not paid in respect of a particular and distinct portion of the property. Neither the 123d nor 12dth section applies to a redemption by a party entitled to receive rent. By 4 IF*. ^ M. c. 1, s. 4(6),
(a) Suprd, 405 n. of Berwick upon Tweed, or within
lb) Which enacts ''that all ma- any of the counties, dfjea, bo-
Qon, messuages, &c., quanies, &c. loughs, towns, divisional ndingi^
and all hereditaments of what nar hundreds, lathes, wapentakm,
ture or kind soever they be, situate, parishes, and places AereoC
lying, and beings happening or aris- well within aoeient dememe and ing within die kingdom of Eng- other liberties andprivOi^^^ilaoea landy dominion of Walei^ ortown as without^ ■'Y^Hmrisrnhiiahj
HILARY TERM, X GEO. IV.
the land-tax was laid on the owner. The tenant is not chvgeBbk, except where the value has been increased after tki granting of the kaies, and the assessment has been made upon a value exceeding the value of the premises of the laudbrd. In the cases cited such improvement had been made. Here no such improvement appears.
Cur. adv. vuU.
Oo (lie following day the judges delivered their opinion seriatim.
407
1830.
Baylet, J. — There are two questions in this case; first, io what condition did the lessee stand in respect of the land- tu assessed on these premises, when the lease was exe- cttted? Secondly, whether, supposing tlie lessee to have been then liable to pay any part of the assessment, the plaintiff, after having redeemed the whole, has a right to sue for such proportion as the lessee was previously liable to pay.
dmgeiifermie year only, and no ^ger, with the sum of four ahil- Bngs for every twenty sliillings of die foil yearly value, and so in pnportkm for any greater or leaser rahe; and all and every person and pencils, bodies politic and corpo- rate, guilds, miateries, fraternities, od brotherhoods, (whether corpo- rate or not corporate) hamng or folding any manors, messuages, &c. liuiO yield and pay unto Their Ma- j^es die sum of four shillings by cveiy twfntf dullings by the year, which the said manors, messuages, ^c. are now worth to be leased, 7 the same were truly and bon& Me leased or demised at a rack ittt, and aooordmg to the fall true 7»iiy value thereof without any i^eipect had to the present rents i^Mted fhr flie nme, if such rents ^ hem leaenrtd upon such
leases or estates made, for whidi any fine or income hath been paid or secured, or have been lessened, or abated upon consideration of money laid out, or to be laid out in improvements, and witiiout any re- spect had to any former rates or taxes thereupon imposed, or mak- ing any abatement in respect to reparations, taxes, parish duties, or anyotherchaiges whatsoever; which said sum of (four and twenty shil- lings for the yearly profits of every 100/. value of all personal eafatss as aforesaid, and) four shillinga for every twenty shillings by the year of the said true yearly value of all other the premises, shall be assessed, levied and collected in manner hereinafter mentioned, and shall be paid into the Receipt of, &c. by quar- terly payments, the fint payment thereof ftc."
408 CASES IN THE KING's BENCH,
1880. I. The situation of the lessee before the redemption, de-
pends upon the land-tax act in operation at the time when the land-tax redemption act passed, viz. 3S Geo. S, c. 5, which provides that all lands, and all persons having or Si'tuaiion'of ^^'^'"g lands, shall be charged, with as much equality as lessee before possible, with a pound-rate. It was suggested by Mr. iand™ax!^" ^ Follett that the tax was imposed on the landlord. There are no words imposing it on the landlord, but on lands and on persons having and holding such lands. These words would apply to persons receiving rents, and I think the right construction would be, that if, instead of being entitled to the whole, one person is entitled to a limited extent only, and another to the residue, (and the words are sufficiently accommodating,) to bring in both. Immediately after this lease was granted the lessee had land of the annual value of \2i)L on paying ^5L And it might be said that the landlord was the person '^ having and holding," as to €5/., and the tenant as to the residue. The 4 TV. ^- 31. c. 1, imposed the burthen on the land ; and persons ** having and holding'* are directed to pay. The law would be the same if the lease had been made whilst that act was in operation, at the rent of a peppercorn. Mr. FoUelt says, that, to a certain extent, the landlord is liable : that is not so, the land has to pay, and the party who pays must have the rents and profits to pay it with. If, when there is a nominal rent, the tenant is to provide the fund, the argument mnst equally hold where the rent, though not nominal, is below the real value. It is only a question of degree. Here, justice would require that the landlord should pay in the proportion of ^5 to 05. This does not, however, stand on these words alone ; it is clearly explained by SS Geo. 3, c. 5, s. n, by which the several tenants of all houses, lands, &c., rated by virtue of that act, are to pay such sum as shall be rated thereon, and to deduct out of the rent so much of the said rate as the landlord ought io pay, and the landlords, mediate and immediate, are to allow such de^ duction upon payment of the residue of their respective
HILARY TERM, X GEO. IV. 409
rents. The tenants of the land are required and authorized ^gso.
to do two things, — required to pay, and authorized to de- duct (a). The deduction should be, not of the whole, but y^ of 80 much as the landlord, in respect of the rent, ought to Cowst. bear upon receipt of the residue of the rents — put the case of lord, mesne, and tenant — the lord receiving ^0/. rent, the mesne 40/., and the tenant '' having and holding" land of (he annual value of 100/., each would have to pay in pro- portion to his interest. So no doubt, on the execution of this lease, Jefferson was liable to contribute in respect of 95/. and Ward only in respect of £5/. II. This principle being established, no difficulty re« Second point:
mains, provided the statute under which the plaintiff re- Remedy of re- ... . . deeming
deemed contains sufficient words to support this action, lessor.
It seems to me that the plaintiff is entitled under 42 Geo* 3, c. 1J6, s. 123 (6) ; but that, under that enactment, he cannot claim more than a proportion. The plaintiff having carved out this interest cannot complain of this payment, because it was made for his benefit : the words of the section are, '* that where the land-tax charged on any manors, mes- suages, 8cc. shall be redeemed by any person having any estate or interest in remainder, reversion, or expectancy, soch person in remainder 8cc. shall in the meantime, until his estate and interest vest in possession, by reason of the determination of the preceding estate, be entitled to have a yearly sum issuing out of such manors, messuages, &Cj equal in amount to the land-tax so redeemed,'' No doubt the plaintiff, when he redeemed this land-tax, was a penon " in reversion'* (c). The difficulty pressed upon our consideration was, that the plaintiff would be entitled to a sum equal in amount to the land-tax redeemed ; but he is himself made liable to the payment of part, and therefore could not claim from the tenant repayment of that part.
(a) And see Bex v. Mitcham, v. Clarkcj 4 Nev. & Mann. 671.
Caldec. 276; 3 Bum, 194, 24th (b) Vide iuprit, ^5 n.
edition. Andes to the power of dis- (c) Sed vide suprd, 406, per
tKttgirenby this section, see Jkir ParkCfJ.
L
$}6 CASES lUf THE KINO's BENCH,
1^. Looking at tke substance of At transaction, tke tedemption bas €xlingHi»hed that portion of the land-tax which the party redaeming wouU have had to pay, and injustice tbe .9^"- land-tax should be considered as redeemed as far as the landlord was liable^ and as subsi$iing as far as the tenant was liable, and the landlord should receive from the tenant a sum equal in amount to thai portion of the land-tax from which the tenant was liberated by the purchase. I think, tkereforei that the plaintiff is entitled to 10/., that sum being two-thirds of the whole assessment. This is exacdy ia conformity with the cases of Yeo v. Leman{a) and Hyde ▼. HiU{b\ though in those cases the assestment to the land- tax was increased. The language used by the judges in those cases shews that the landlord was considered as liable to bear the tax only in proportion to the rent which he re- ceives.
LiTTLEDALE, J. — ^The first question is, wljether this is a landlord's tax or a tenant's tax. It has generally beea considered as a landlord's tax ; it is, however, incorrect to consider it wholly so. By 4 W.Sf M.c. I, s. 13, *^ the seve- ral and respective tenants of all and every of the manors, messuages, &c. which, by virtue of this act, shall be charge- able with any pound-rates as aforesaid, are hereby required and authorized to pay such sum or sums of money as shall be rated upon such manors, messuages, &c., and to deduct out of their rents so much of the said rates as in respect of the said rents payable for such manors, messuages, &c. the hindlord should and ought to bear." There is uo material difference between 4 W. Sf M. c. I, and 38 Geo. 3, c. 5. The words ** having and holding" are applicable to all es- tates whatever, from a fee-simple to a lease for a year. The tenant is thereby authorized and required^ that is, he is authorized to deduct the proportion which the landlord ought to pay in respect of the rent It seems to be a legis- lative enactment that the tenant is to pay^ though not di-
(d) SHprd, 4b5. (b) Ibid.
HILART TKEM^ X GEQ. IT. 4U
fifllfy. It is a bodlord'a tax only jb raspect. of tlie rent wUch the lamBord has to receive. Any other coostmction woaid laake the enactmeDt lureasoiiable. There might be 10/. to pay, and only 5l. to reeeite; so, if the amoont ot the tn it increased by inproTenieDt of the ^ne^ WnJUom T. JiMNe(a), WkUJieli y. Bramdwood{b). The 49 Geo^ S, c ll6w s^ 10, directs^ ^' thit il AaU be hnrfnl for aH other pcnons faafiDg any estate or interest in any sunors, nea- s, ko., wbareoD any land-tax shall be .churged^ except at rach-rent for any term of years^ ei froaa year to year, or at will, to contract and agree for the redemption of mch hnd-tax, or any part thereof." By the 19dd sen.(c) of tint stnlvie (upon which il is said that the plmatiff is ear btlsd to recoTer)» it is provided " that where the.land-lm chsiged on any manors^ aMssnages, 8ic. shall be redeemed by aay person having any estate or interest in remainderi Mversion^ or expectancy hereon, such person shall in the B, until his estate and interest vest in possession, be to receive a yearly sum issuing out of such manors, s, kc. eq)ttal in amount to the land-tax so re- deemed.'' I entertain, however, considerable doubt whether the plaintiff iaUs within the 12Sd section, and can be consi- dirsd aa a rweraiontr {d). It seems to me rather to apply la those who have merely future interests. A distinction i» amde betvseen persons being entitled to rents and persons having » reirersion : it would rather appear to me that a person being in the beneficial enjoyment of the proper^ is not a reversioner within the meaning of this section^ This does not signify much, because it may be considered as a general purchase of the land-tax by the plaintiff beyond his own pn>portion ; it would MI within the equity of the I24th section (e), and die plaintiff would be entidisd to Ae remedies of a landlord on a leate.
(o) Suprt, 40S. (a) Which enacts <' that the i«*
(6) Ibid. lipective purefaasenr of such kncl-
(c) 9kpri,4Q$n, tBt, and their heirs, Miccesaora,
(^ Sedvidem^^ 400. and aangtn, sball^ fiom soch pe^
CASES IN THE king's BENCH,
The next question is, whether the action is brought
against the proper defendant. This is a point not made in
the argument ; it appears to me that the action ought to be
brought against the person in possession of the land. At Third point: . " . . ,
Whether pro- common law a party may recover upon a lease setting out
per defendant, the special circumstances of the reservation. So here, the
plaintiflf might have made his statement according to the
special circumstances of the case. Jefferson was not liable
to pay as lessee, but as occupier of the land. [Bay%, J.
The defendant is in possession.] If so, that objection fails.
tint point. Parkb, J. — The first question is, what was the relative
situation of the parties at the time of the redemption of tbiB land-tax. The act then and still in force, 38 Geo. 3, c. 5, 8. 4, directs that certain sums shall be raised amounting together to a fixed sum, and that towards the raising that sum, all manors, lands, and annuities, yearly profits, apd other real property, and all persons having and holding the same, shall, in respect thereof, be charged, with as much equality and indifference as possible, by a pound-rate. The 17th section authorizes a distress, and directs that the tenants of houses, lands, &c. rated shall pay such sums as shall be rated, and shall deduct out of the rent so much of the said rate as, in respect of the said rents of any such houses, lands, Sec. the landlord should and ought to pay and bear, but there is no provision that the whole shall be deducted. Looking at these clauses, the object of the legislature seems to have been that each party should pay according to his interests Whether a lessee is to be considered as a pro-
rtod of exoneration, be entitled to her, or them, free of all chai^i
demand, have, and receive, for and deductions whatever, to be i»-
their, his, or her own use for ever, soing and payable out of the ma*
and shall, by virtue of this act/ be nors, messuages, lands, tenements,
adjudged, deemed, and taken to or hereditaments, vrhereoii the
be in the actual seisin and posses- land-tax so purchased was cborg*
sion of a yearly rent or sum as a ed, on the same days as'sach land-
feerfarm rent, equal in amount to tax was pajpaUe at the time of the
the land-tax so purchased by him, puicbase thereof!
»>
HILARY ^»M, X <5E0. IV. 41*
prietor subject to the payment of rent uDder section SX^)i 1830,
or as a tenant under section 17(6), all that the. lessor is ultimately to pay is such a proportion as the rent received 9.
by bim bears to the entire annual value of the premises. Const, It 18 immaterial for what reason he ceased to have a title to a certain portion of rent* But it could not be contended that be continued to be chargeable with the whole of the land-tax. Supposing that the lessor assigns part of the rent to a stranger, it can make no difference whether he bb- signs the rent to a stranger or discharges the tenant. Nor can it be material for what consideration he gives up the rent, whether money is paid down, or money is to be ex^* pended in improvements. None of the cases cited appear to be in point, except that from Siarkie (c). The dicta in Hydev, Hill{d) are in favour of this construction of the act, and it is most reasonable that the lessor should pay such proportion only of the tax as the rent which he re- ceives bears to the total annual value. The amount of the annual value is in this case conclusively fixed by the form of the declaration.
II. What was the effect of the redemption of the tax Second point: by the plaintiff? The act of 42 Geo. 3, c. II6, is compli- f^^^^^^ cated, and not clear, but the plaintiff is clearly entitled either as a reversioner or as a stranger. The 123d sec- tion (e) admits of this construction, in my judgment, and was, I thinks intended to meet this case. No power is given to the person who is seised in fee, because upon the redemption of the land-tax he only exonerates himself. To a certain extent the plaintiff here exonerates himself; as to the other part he exonerates the defendant. He has a right, therefore, to have, as against the defendant, a rent- charge equal in amount to the lessee's proportion of the land-tax redeemed. The defendant must be considered to
(«) Suprd, 408. suprit, 405.
(*) IWd. (d) 3T. R-377.
(c) WkUfield v. Brandwood, (e) SuprH, 405 n.
Wabd
be in poMeiiioo^ he being the leisee, and no olber penon being steted to be in possesiion.
Postea to the plaintiff (n).
(ii) AadieoBrYMttwyT. Wright, e J>Qfi§ji. 694 i Stubb$ V. Panom, 3 Bvfi, & Aid. 516; Watson v.Ai- kbUf ibid. 647; Spragg v. Ham' mmd, t Biod. k Bingb. 69, iind 4 B.Moore^ 431; Dmotom t. Xia- fon, 5 Barn. & Aid. 591, and 1 Dowl. & R^l. 117; Sparket, Ex parte, Maolel. 518; Bennett ▼. Wmm€lh ealc^ >• 644^ 7 Bam. fc
Crw. 087, ani 3 Car. Ik Pb/at, 96; tTamer v. Potchett, 3 Bern. &AdoU9Sl; AmJUld w. WkUt, Ryan & Mood. 946.
See ako Jlw V. JltfdkoMb 1 Doug). S26 o., and Caldecott, 976 : In re St, Lamrence, YTtn/pn, Cald. 379; Rex w, Folkestone, 3 T. R. S05;Do$d.Stmu^ufyr.Arkmrigkif 1 Ne?. k Maim, 731.
ii. and B., joint tenants of aeopjhold, maka paitition by paral with- out tbe assent of the lord, and afterwards occupy in severalty.— A. surrenders to C. by gene- ral words. — C. is not enti- tled to be ad- mitted to the parcels occu- pied bv A, in seyerelty.
The King v. Thomas Southwood, Esq. Lord of the Manor of Taunton-Deane {b).
A Customary estate (c), parcel of the manor of Taun- ton-Deane {(i), in the county of Somerset^ was aurren- dered to the use of Richard Staple and I'hamas ValetUine Stapki their heirs and assigns for even according to tbe cuftom of the manor. Richard Staple paid more than one half of the purchase-money. This estate waa pw« ^fiased by the Staples in pursuance of a parol agreeoient between tbem» that Thomae V. Staple should have aucli part as was situated on one side of tbe river (which intersected the estate,) and lay contiguous to his own lapds, Richard
(b) This case was aigoed in Trinity term, 1827.
(e) The properly was dasoribed in tha a^svits on whidi the role was obtained as a customary free' hold; but it was admitted that this estate, e?en if properly so designated, beloQged to that class of customary freeholds which are
within and parcel of the manor, and of which the frmehoid is in tha lord. See the disUactifm b^ tweea this spades of teoMW and freehold in ancient demesney Man- ning's Exch. Praot ed ad. 369, 360, 361.
(d)A3 to die pacnliar tonitras in this manor, tfide ibitL 364 n. (r).
SOUTHWOOP*
aiLABr T1MX, X 6S0. XV. 415^
StapU taking tbe oilier part of the estate, which wa« more l^M* than ooe half thereof, and which lay contiguous to his TVeKiHo own lands. The respective parts were accordingly entered ^ v« upon, and occupied and enjoyed in severalty. Rkhard Staple occupied his part of the estate until his death, and eiercised acts of ownership on the same as the sole pro- prietor thereof. The rates and tases were divided between tbe purchasers according to the parts of the estate which they so respectively occupied and enjoyed.
la this state of things Richard Staple made a dormant ffarrender(a) of ail his messuages, &c. within the manor, to the use and behoof of Lee, his heirs and assigns for ever, aeoofding to the custom of the said manor; to be holden spon condition that Lee, bis heirs or assigns, should pay til bequests contained in the last will and testament of the said Richard Staple, which on the part and behalf of Zee, his heirs or assigns, out of, for, or in respect of the pre«n mises therein mentioned, were to be paid, performed, ful- fifled, and executed; and upon a further condition that if Richard Staple should happen to die before Lady-day, 18%, and should not in the meantime dispose of or sur- render the premises, or revoke that surrender, then such last-mentioned surrender was to be and remain in full force and virtue. After the dormant surrender, Richard Staple omde bis will, and thereby gave all his messuages and par- ! oeb of the manor, 8cc. to certain trustees^ their heirs, 8lc. \ apos certain trusts therein mentioned.
(«) A itomumt surrender in this self the present possessioq and in«> is s sorreoder made ^* for terest of the lands so surrendered.
the purpose of settling his land In every of which surrendefs there
opoo aoy person or persons whom must be a condition inserted, by
the snrreoderor intends to make which a power is reserved to the
bfs heir or heirs, or, to charge the surrenderor to revoke, frustrate,
with may sum or sums of and make void tbe same surrender
y, or, for the performance of within the space of seven or eight
b» last will and testament — such years, according to the custom of
surreoders to be published and the manor/' — Ancient Customs
take efiect after the death of the of the Manor of Taunton-Deane,
saocnderor, be leaving in him- (Taunton, IBSl,) 9th Custom.
Tfie KiKO
V.
411^' CABIES JJT THE KING*S BENCH,
I8d0. Within the time limited by the custom for "making en-
tries" or being admitted tenant to the lord, Lee applied to W. Kinglake, gent*. Clerk of the Castle of TauntoD| and SortHWooD. steward or agent of Thomas Southwood, esq., lord of the said manor, and requested Kingtake to allow him to make the psual Entries (a) in respect of a certain messuage, &c. which had been so occupied and enjoyed by Richard Slapk in severally » and also to admit him tenant to the same pur- suant to such dormant surrender. Kinglake refusing so to do, a notice (b) was addressed to Southtvood and Kinglake, and served on Kinglake, stating the surrender. Lee afterwards attended at the law-day court, (or court-'leet(c),) of the manor, in order to make the usual Entry or Entries, and gave notice of his being there for that purpose; but neither Kinglake nor the lord^ who was then present, would then or at any tin^e since make or allow such Entries to be made^ or admit Lee as such tenant.
Bayly obtained a rule calling upon the lord and steward to shew cause why a writ of mandamus should not issue^ commanding them or one of them to admit Lee tenant to the said customary lands; against which.
Manning shewed cause. Copyholders cannot make partition without the licence of the lord. Fuller v, Terry (d)] apd even if copyholders could make a valid partition, to
(a) An to which, vide pott, session of the said Rkhard SiapU
(6)'' I, the undersigned Richard at the time of his death, and partt
Xee, the dormant surrenderee of an estate lately belonging to
-named in the dormant surrender John Dyer, situated in the sud
of Richard Staple, late of Corfe, parish of Corfe, and parcels of the in the county of Somerset, yeo- . manor of Taunton-Deane, and
roan, deceased, do hereby, as such also to admit wc tenant of the
dormant surrenderee, request and same, pursuant to such dormant
' require you immediately to allow surrender. [Here follow the par^
mo to make the usual Entries in eels.] Dated the 93d April, 18^. respect of the undermentioned (Signed) Richard Lee.^
messuage or site of a house, closes (c) Vide ante, 143 n. of innd, and hereditaments, which {d) Hai^gr. Co. Dtt. 59 a, noie
belonged to and were in the po8« 395.
The Kino
HILARY TERM, X GEO. IV. 41*^
endare whilst the existing grant continued, it would be un- 1830. reasonable to require the lord to make re-grants in seve- ralty, as the lord would thereby lessen his remedy for his *"" i? rent. At present every part of the copyhold is liable for the Southwood. whole rent; whereas after a severance assented to by the lordf he could distrain only pro particul^ ill^. Besides whicb^ if this mandamus were to issue, by whom is the rent to be apportioned between Lee and the surviving brother? It is not disputed that the effect of the dormant surrender was to sever the joint- tenancy, and create a tenancy in common; and the lord has always been ready to admit Lee to an undivided moiety of the whole tenement. The notice confounds the legal severance of the joint-tenancy by the dormant surrender, and the actual severance of the parcels by an occupation in severalty of distinct parts of the cus- tomary lands.
Bayly, in support of his rule, cited Snag v. Fox (a), iu which a copyholder aliened part of his copyhold to one and part to another, and retained part in his own hands, and no question was made as to the right of the copy- bolder 80 to deal with his estate ; and the only doubt was, whether the lord was entitled to more than one heriot {b). [Bey ley, J. There the lord assented to the alienation.] He also referred to Wase v. Pretty (c).
Lord Tenterden, C.J. — Two persons are joint te- nants of the copyhold. They occupy in severalty, but tfaeir esiaie is joint. One of the joint-tenants surrenders to the lord by words capable of passing the whole. That
(«) Palm. 343 ;&C.S Roll. Abr. heriot; HoUoway v. Berkeley, 9
514; SO Vjn. Abr. ^43. Dowl. & Ryl. 83, and 6 Barn.
{b) Where the lord has become & Cress. 2 ; unless during the se- eotitled to several heriots by the ferancethe lord has, by perception sererance of a heriotable tene- of the several heriots from the re* laent, and the different parts of spective tenants, obtained actual the severed tenement are after- seitin of such new heriots. Man- wards re-united in the same tenant, ning's Exch. Prac. 2d ed. 341. ibe lord is only entitled to one (c) Winch, Rep. 3; Hetley,150.
VOL. V. E E
CA8E6 IH THE KlNO's BENCH, Mvers th« joint-tenaney* The suironder can only Dpente
_, _, upon that which the party has, and can pass. .
The KiHd
v. SocTHwooD. B^YLfiY and HoLROYD, Js., concuwcd.
LiTTLEDALE, J. — ^Thc Only course which Lee cati ado^t seems to be to procure the surviving tenant in common to join in a surrender of the whole, and then to apply to the lord to grant out the parcels in severalty.
Rule discharged.
Mumnng applied for the costs of the motion, which the Court refused^ on the ground that it did not appear by afii- davit, that when Lte applied to be admitted in aevcralC) any oifer was made to admit him to an undivided tnoiety.
RiCKARDS t). MuRDOCK aud another. A. at Sydney, XHIS was an action of covenant, upon a policy of indar- JB.'^l^t L^ndolT *^"^® ^" g^^^® ^y ^^^ ^ Cumberland, at and from Sydney by the ship C, to London, effected by the plaintiff as agent for one Camp- next ship ^^^A ^nd f<>r his benefit, with the Mutual Marine Insurance
writes to him, Company, of which the defendants were directors. The directing mm, , •, r i mL
if the letter claim was for a total loss by perils of the seas. There
the C* to^ wntt ^^^^ several special pleas, but the questions in the cause
thirty days, in arose upon two only, the fifth and the seventh. The fifth
every chantTe P'^* Stated, that before the making of the pcJicy, to wit,
for her arrival, on the 28lh May, 1827, Campbell sent from Sydney to one
and then to "^ ...
insure the goods. £. receives the letter, and after waiting thirty^ix days, insures the goods, telling the underwriter when the C. sailed and where the letter was written, but not telling him when he received the letter. The C. never arrives. This is a materUI concealment, and avoids the policy.
In an action on the policy, under such circumstances, the om'nion of undervrriters as to the materiality of the matter concealed, was held to be admissible evidence (a).
(a) Coatri Camj^tll t. Bichirdt, 2 Ney. & Mann. 543.
HiLAilT TERM, X 0£0. IV. 419
Ibrm^X Londoo a letter, containing tbe order for effecting 1830.
the policy, by another ship called the Atutralia^ which had ^^^^^
sailed from Sydney a long time, to wit, more than a month «.
after tlie Cumberland had sailed from thence on her voyage ^*'**^tk^,
meatioDed in the policy ; that Campbell thereby instructed
Harris to deliver the said letter to one Emmett, who had
before then sailed from Sydney to London on board tbe
Cumberlafidf in case Emmeit should have arrived in England
viieD Harris should receive the said letter ^ but if Emmett
Wiould Bot have then arrived, Campbell thereby instructed
Harris to retain the said letter in his possession for the
i^ce of thirty days after be should receive it, and at tbe
«ipiration of that time to deliver the same to the plaintiff,
^ Campbell^ having in the said letter intimated that he had
directed Harris not to deliver the same to the plaintiff,
until the exf^iration of thirty days after the arrival of the
Australia in London, in order to give every chance for
Enmeii's arrival in England before the said letter should be
delivered to the plaintiff, (he, Campbell, thereby meaning,
tiiat ttoiess Emmett did arrive in England before the expi-
ntion of thirty days after tbe arrival of the Australia m
Loadoo, be, Campbell, bad little hope that the Cumberlaud
would arrive in safety at LoadcMi with Emmett on board ;)
that the said letter was dated at Sydney on the 2Bth May,
1827, and stated that the Cumberland sailed on her voyage
ODthe e.5th April, 1827; that before tbe making of the
poBcy^ to wit, on (he 8tb October, 1827, the Australia did
VHTe at London from Sydney with the said letter, and that
Harris did receive and detain the said letter in his posses-
noB for tbirtf days and more after tbe receipt thereof, and
at the expiration of (hat time did deliver the same to the
pUatiff, who thereupon caused tbe policy to be effected ;
dnt tbe plaioliff did not disclose, aor was it disclosed to the
^fandsnls or tbe said company, before or at tbe time of
nalui^ tine policy, tdbat the said letter came by (he Australia,
or that tbe Australia bad sailed from Sydney so lo^g or at
*B after tbe Cumberland, or that Campbell bad so requested
E E 2
CASES IN THE KING S BENCH,
the said letter containiDg the said order to be so detained by Harris, or that the same had been so detained by bim, V. or that Campbell had so intimated in his said letter the pur-
oDd another. P<>8e for which he so directed the said letter to be so de- tained by Harris, or that Campbell had so intimated that be had little hope of the safe arrival of the Cumberland at London with Emmetl on board, in case she did not arrive within the space of thirty days of the arrival there of the Australia ; that the several matters and things so concealed from the defendants and the said company at the time of making the policy, and not disclosed, materially affected and increased the risks, touching which the funds of the said company were by the policy intended to be made liable; and which matters and things, if the same had been ilis- closed, would have materially affected and increased the premium or consideration for the said insurance. The seventh plea stated, that the plaintiff, before and at the time of making the policy, concealed from the defendants and the said company divers facts and matters which, at the time of making the policy, materially affected and increased the risks, touching which the funds of the said company were intended to be made liable, and were thereby made liable ; and which facts and matters^ if disclosed, would have materially affected and increased the premium or con- sideration for the said insurances. Replication : to the fifth plea, de injuria su&, 8cc. : to the seventh, that the plaintiff did not, before or at the time of making the policy, conceal from the defendants and the said company any fiicts or matters which, at the time of making the policy, materially ' affected or increased the said risks ; or which, if disclosed, ' would have materially affected or increased the premium or ' consideration for the said insurance. At the trial before ' Lord Tenterden, C. J. at the London adjourned sittings after Hilary term, 1829(a), the following facts appeared:— Mr. Robert Campbell was a merchant at Sydney, and the person interested in the policy in question. He had been
(a) Vide 1 Dans. & Lloyd, 221, and I LI. & W. IS«.
HILARY TERM, X GEO. IV.
for some years a correspondent of the firm of Rtckards, Mackintosh, & Co., in which the plaintiff was a partner. In April, ]827> he shipped on board the Cumberland, then about to sai] from Sydney for London, vi& Hobart-Town, a lai]ge quantity of seal skins, (the goods insured by the policy in question,) under the care of a Mr. Emmett, who was going as a passenger in that vessel.
The Cumberland, with Emmett and the skins on board, sailed from Sydney on the 27th of April, 18«7, and upon hearing of her safe arrival at Hobart-Town^ Campbell wrote and forwarded the following letter: —
" Sydney, New-South-Wales, 28th May, 1827.
" In case of the non-arrival of Mr. Emmett per ship Cumberland, you will herewith receive the seconds of ten sets of treasury bills, amounting to SOOO/., and the second of exchange, Elizabeth von Bibra on Henry Powell, for BO/.y making 3080/. ; which amount I will thank you to in- vest agreeably to the accompanying instructions.
" I will also thank you to effect insurances, at market price, on forty-nine casks, containing 4175 New-Zlealaud far seal skins, shipped to the consignment of Mr. Emmett per Cumberland, or, in case of death, to your house ; for which IHirpose I inclose you the bill of lading. The Cumberland left Port-Jackson for London, vi4 Hobart-Town, on the 25tfi of April, 1827, and by letters received from Mr. Emmett, was at Hobart-Town on the 10th of May, 1827, and was expected to sail from thence in ten or fourteen days from that date.
" Insurance to be effected on the goods shipped to my consignment, and the freight payable in New-South-Wales. I wish the goods to be shipped by two or three oppor- tunities, and, if practicable, by vessels coming direct to Sydney.
** To give every chance to Mr. EmmetVs arrival in Eng- biKl, I have directed my friend Mr. Harris not to de- liver this until thirty days after the arrival of the Australia in London ; and should Mr. Emmett arrive after you have
421
1830. Rtckards
V, MURDOCK
and another.
422
i8sa
RiCKARDB MOIIDOCK
and another.
CASES IN TttE kino's BENCH,
fulfilled these instructions, you will communicate to him what you hate done, it having been mutually agreed upon, previously to his leaving New-South-Wales, that in case of any accident to him you should be appointed agent of this concern/*
This letter was inclosed in an envelope, which bore the following address : —
" This letter is to be delivered by Mr. Harris to Mr. Emmett, if he has arrived, and if not, to be retained in Mr. Harris's possession thirty days from the date he receives it, and then to be delivered to Messrs. Richards^ Mackintosh, 8c Co., London."
This letter was forwarded by the ship Australia, which sailed from Sydney on the 2d of June, I827> and arrived io London on the 6th of October, ISd?^ and was delivered ia London on the Bth of October, i827y to Mr. Harris^ who retained it in his possession thirty-six days ; at the end of which time, namely, on the 13th of November, 1827, no news having been received either of the ship Cumberland or of Mr. Emmett, he, Harris, handed over the letter to Messrs. Richards, Mackintosh, 8c Co.
Messrs. Richards, Mackintosh, & Co., on the same day that they received the letter, delivered it to their clerk, Mr. Towers, for the purpose of hk effecting the insurance therein ordered. Towers first went to Lloyd* s, where be was asked a premium of 70s. per cent. He then went to tihe office of the Mutual Marine Insurance Corapavy, where he saw the managing clerk, a Mr. Ellis, to whom be read the second paragraph of the letter, and no more; but he stated the date of the letter and the place from whence it was written ; and no further particulars being inquired into by Mr. Ellis, Towers and he agreed upon a premiuiD of 60s» per cent., and the policy was effected on those terms. Tbe Cumberland was never afterwards heard of, and was presumed to have foundered at sea. Two vessels that had saikd from Sydney after the Australia, arrived in EagiaDd two or three days before the policy was effected, aod their
RiCKARPS
Hii^av TERM, X Of o, IV, 4^3
anivsil was annouiic^d in X'/oyfiTs Uft ^ Ul9 HK^rning of tb^ 1830.
(iaj when the policy was eifect^d^ Several Maderwriter-i,
who were called as witnesses on the part of the defendants, v.
stated, that in their opinion the whole of the letter ought aJd^nuaih^r.
to have been read to Mr. JEJln, af^d that the pi^fft omitted
was material. This evidence was; objected to, but wa9
admitted by the Lord Chief Justice, who left the question
of materiality to the jury. The aame witnesses stated upon
cross-eiamiiiatioii, that if on^ underwriter refuses a risk,
that circumstance is never communicated by the broker to
9,uy otiier underwriter to whom the risk is afterwards of-
fered. The jury having found a> verdict for the defendants^
Scarlett, A. G., in Ei^ster term^ ] S2Q, obtained a rule nisi for a new trial, on two grounds ; first, that evidence of tbe opinion of the underwriters ought not to have been ad* naitted ; and, secondly, that the part of the letter which had not been read could not properly be deemed material, inas* mueb as it did not relate to any facts, but only to the apprehensions of the writer, and that the party effecting an iosurance was not bound to communicate any thing but facts, unless questioned by the underwriter: Haywood (or Eaystard) v. Rodgers (o), and Freetand v. Glover (6).
F. Pollock and Tomlinson shewed cause. First, evi« d^ce of the opinion of the underwriters was properly admitted in this case, for the purpose of shewing that the Blatter withheld from the insurers was material, and ought to have been communicated. It was decided in Lindenau V. Desborough{c\ that it is tbe duty of a party effecting an insurance on life or property, to communicate to the under- writer all tbe material facts within bis knowledge, touching
(a) 4 East, 590; 1 Smith, 289. vol. iii, 45. And 8«e the note ante
(&) 7 East, 457; 3 Smith, 424; iii, 47(fl), in which are cited
6 Esp. N . P. C 14. And see Ctmrt Maynard v. Rhodez, 5 Dowl. & Ryl.
▼. MorfiaeoifyS Dougl. 161. S66, and Everett v. Detbaroughf
(c) 8 Barn. & Cress. 586; ante, 5 Bingh. 503, 4 Moore & P. 100.
424
1830.
RiCKARDS
V. MURDOCK
and another.
CASES IN THE KINO's BENCH,
the subject-matter of the insurance^ M^hether he believes such facts to be material^ or not ; and that it is a question for the jury whether any particular fact was or was .not material. Upon that question the judgment of the jury must be aided and guided by evidence ; and the opinion of persons conversant with the subject-matter of the inquiry, is efficient and proper evidence for that purpose. In Ber- thon V. Loughman (a), where the defence was, that material information, as to the time when a ship sailed, had been withheld from the underwriter, Holroyd, J. held that a wit- ness, conversant with the subject of insurance, might give his opinion, as a matter of judgment, whether particular facts, if disclosed, would have made a difference in the amount of the premium. In Durrell v. Bederley {b), Gibhs, C. J. said (c), ** It is the province of the jury, not of indi- vidual underwriters, to decide what facts ought to be com- municated," and he received the evidence of underwriters with hesitation ; but the question there asked was, — not whether the matter in dispute was material, — but whether the witnesses would have accepted the risk.
Secondly, the part of the letter not read was material, and ought, therefore, to have been communicated. Hay- ward V. Rogers (d), and Freeland v. Glover (e), — the cases cited when this rule was obtained, — are very different from the present case. In the former of those it was held, that a letter stating that the ship insured had been surveyed on account of her bad character, need not be communicated ; but the ground of that decision was, that the assured always impliedly warrants the ship insured to be seaworthy. In the latter, two letters had been received by the assured re- specting the state of the ship, and the second only was communicated to the underwriter; but as that expressly referred to the first, so that the underwriter knew that further information had been received, and might have
(a) 2 Stark. N. P. C 258.
(b) Holt, N. P. C. 283. (f ) Ibid. 286.
(rf) 4 East, 590; 1 Smith, S8P. (e) 7 East, 437 ; 3 Smith, 424; 6 Esp. N. P. C. 14.
RiCKARDS
HILARY TERM, X GEO. IV.
called for it, it was held that bis omitting to do so was an answer to the objection. Jin the present case the insurer had no means of knowing that the plaintiff had received any v.
information respecting the Cumberland beyond that which ^j^^j^^^'r was read to him ; nor could he know that the letter was not brought by one of the two vessels which arrived imme- diately before the policy was effected : but the plaintiff was aware of both those facts, and therefore the whole of the letter ought to have been read, and the fact that the letter came by a vessel which sailed after the Cumberland, and arrived a month before the policy was effected, ought to have been distinctly communicated. In Kirby v. Smith (a), where a ship had sailed from Elsineur, on her voyage home, six hours before the owner, who followed in another vessel on the same day, and who, having met with rough weather in his passage, arrived first, and then caused an insurance to be eflfected on his own ship, it was held, that these circum- stances were material to be. communicated to the under- writer, and that it was not sufficient to state merely that the ship msured was '^all well at Elsineur on the 26th. of July," the day of her sailing. In Willes v. Glover {b), the plaintiff, the consignee of goods, received a letter from the consignor, dated SOth November, stating, *^ I think the captain wUl sail to-morrow; but should he not be arrived in your port, you will be so good as to make the insurance as low as you possibly can for my account :" — This letter arrived on the 12th December, and on the following day the plaintiff ef- fected the insurance, without communicating the letter; and it was held that this was a material concealment. In M'Andrew v. Bell{c) the insurance was on a ship from Lisbon to London : — On the 24th of November the plaintiff ia London received a letter from Lisbon, dated the 8th, informing him that the ship would sail on that day :^On the 2d of December, and after the arrival of another ship which sailed at the same time, the plamtiff effected the in-
(a) 1 Barn. & Alders. 672. (6) I N. R. H. (f) 1 Esp. N. P. C. 373.
42<^ CASKS IN THE KMO & BENGV,
1890. 8iiraiiee» but wiihoiMi coDnnimicfttin^ to the underwriter the
J^*""^^^^ letter that he bad receivedl. Lord Kawon held that this
V. was a material cancealaieiit, a»d obeerved, that " rt ap-
a^^t^Ir P^^r^^ ^^^^ ^^^ pkaintiff did not intend to inaure Hotol he
believed hef to be a misemg shipv^-a» he did not effect the
policy for ten da^rs after the letter arrived, and not until
another ship wUcb had saikad at the same time with hi*
own had arrived in safety." That case is not, in substance
or in principle, distinguishable from tlie- present; for it is
clear that Campbell did not intend to have the insurance
upon the Cumberlcmd effieeted, unii), in bis c^imoBi aU
hope of her safe arrival would have ceased.
ScarkU, A. 6«, Campbtll, and Maule, contri. All the facts which it was necessary for the fair protection of the underwriter that he should know, were communicated to him at the time when this policy was effected ; it was not necessary that he should be informed of mere matters of opftiriVvf. It is not pretended that wf fraud was practised; and therefore the case last cited has no bearing upon the present. It is not even pretended that the Cumberland was in fact a missing ship when she was underwritten, but only that Campbell the owner must have thought her to be so, and that his opimon on that point ought to have been communicated to the underwriters. There is no authority for that argument. The underwriter is always presunsed to know the general nature and ordinary duration of the voyage for which he insures ; and he is entitled to be in- formed, where the means of such information exist, of the time when the ship sailed, or was expected to Mail^ and of all other facts which would in any degree vary the general character of the risk. Beyond this the assured is not bound to volunteer information, and if the underwriter wishes for further infoirmatioB, it is bis duty to ask for it. This distinctiou is stroqgly pointed out by Lord EUtU" borough in Haywood v. Rodger${a). The defendants in
{a) 4 East, 590; Hayward v. Rodgert, 1 Smith, $89.
HILARY T£Rlf, X GEO. IV. 427
this case had as good means of fbrroing ao opinion a& to issa the probability of the safe arrival of the Cumberland, as ^"^vW the owner had ; and the opinion either of the one or the 9,
other could not by possibility vary the real nature of the ^^"''^^ risk. It seems admitted that if the letter had arrived only a day or two before the policy was effected, it would not have been necessary to mention it. The material fact opoB which the calculation of the underwriter always depends, is the date of the ship's sailing; and that waa truly communicated in the present case. The argument OD the other aide must go this length — that a party about to iasure is bound to communicate to the underwriter all the fears which he himself entertains. Suppose CamjAeU himself bad been in England ; had received information of the Cumberland having sailed from Sydney on a particular day; bad neglected to insure her for thirty days; had then become alarmed, and employed an agent to effect an in- surance, stating to him the alarm he felt — would the agent have been bound to state that circumstance to the under- writer? If so, a policy may be good or bad according to the strength or weakness of the nerves of the ship-owner, or according to his habit of expressing or concealing the anxiety or alarm he feels about the safety of his property. The opinion of an underwriter as to the probable safety of a ship upon a particular voyage, roust be at least as import** aat as that of the owner; and yet it was in evidence in this cause, that where oae, underwriter refuses a risk, that circumstance is never mentioned to any other underwriter to whom the same risk is afterwards offered. In Bell v. Bell (a), the assured upon a policy from Riga to London had received a letter from their correspondents at Riga, stating that the papers of all vessels arriving in that port had been ordered to be sent to Petersburgh, and that the order had produced a great sensation, on account of the detention occasioned by it, and expressing considerable apprehension for the safety of the ship. This letter was
(a) 3 Caropb. 479. And see 3 Dougl. 41.
428
1830.
RiCKARDS
v.
MU&DOCK
and another.
CASES IN TH£ KING*S BENCH,
not shewn to the underwriter when the policy was effected, but he was informed by the broker that the ship's papers had been sent to Petersburgh. It was contended that this was a material concealment, which rendered the policy void, but Lord Ellenborough ruled otherwise, and said, '• The assured are only bound to communicate yac/«. The broker did communicate the fact of the ship's papers being sent to Petersburgh for examination. He was not bound to communicate the sensations and apprehensions which that fact produced at Riga;" and this ruling was after- wards supported by the whole Court. Carter v. Boehm {a) had previously decided that the apprehensions or opinions of a party insuring need not be stated, and that case is also a strong authority to shew that the opinions of the under- writers upon the materiality of the matter not communi- cated, ought not to have been received in evidence in this case. There, the broker who effected the insurance was allowed to state at the trial that, '^ in his opinion certain letters ought to have been shewn, or their contents dis- closed, and that if they had, the policy would not have been underwritten {b) :*' — After argument upon a motion for a new trial, Lord Mansfield, referring to this evidence, said(c), '' We all think the jury ought not to pay the least regard to it. It is mere opinion, which is not evidence. It is opinion after an event. It is opinion without the least foundation from any previous precedent or usage. It is an opinion which, if rightly formed, could only be drawn from the same premises from which the Courts and jury were to determine the cause, and therefore it is improper and irrelevant in the mouth of a witness." And the judg- ment of Gibbs, C. J., in Durrell v. Bederley (d), is to the same effect. He there said, '' I am of opinion that the evidence of the underwriters, who were called to give their opinion of the materiality of the rumours, and of the effect they would have had upon the premium, is not admissible
(fl) 3 Burr. 1905. (b) Ibid. 1914.
(c) Ibid. 1918.
(d) Holt, N. P. C. 283.
HILARY TERM, X GEO. IV. 429
evidence. It 18 the province of the jury, not of individual 1830. underwriters, to decide what facts ought to be communi- J^"^^"^^^
n«*^J T* • • - . ^ RlCKAUBS
caiea. it is not a question of science, on which scientific v.
men will mostly think alike, but a question of opinion ^SSer. liable to be governed by fancy, and in which the diversity might be endless. Such evidence leads to nothing satisfac- tory, and ought on that ground to be rejected." Lindenau y. Desborough (a) cannot be regarded as a conflicting au- thority; for there the opinions given did relate to a question of science.
Cur. adv, vult.
Judgment was now delivered by
Lord Tentehden, C. J. — This was an action on a po- licy of insurance on goods by the ship Cumberland, at and from Sydney to London. A verdict having been found for the defendants, a rule nisi for a new trial was granted; and on the argument, the main question was, whether a certain letter, which had been received by the piaintiflf, was material and ought to have been communicated to the defendants. One part of it, stating the time when the Cumberland sailed from Sydney, and when she was ei^pected to sail from Ho- bart-Town, was stated, but the residue was not. The part which was not stated contained this expression: — " To give every chance for Mr. Emmetfs arrival in England, I have directed my friend, Mr. Harris, not to deliver this until thirty days after the arrival of the Australia in London.^' The Aus-- tralia did arrive, the thirty days elapsed, and Mr. Emmett, who was on board the Cumberland, did not arrive; and in tbe meantime two other vessels that sailed from Sydney after the Australia, had arrived. The question was, whe- ther this part of the letter was material, as altering the risk and the premium that the assured would have to pay. It was contended, for the plaintiff, that this fact of the letter having arrived so long before the insurance was effected.
(a) 8 B. & C. 586; 3 M. & R. 45.
CASES IN THE KlNO's E£IfCH,
was not of siicii a nature as tfaat, if it had be«n commum- catedy it M^oald have affected the risk; that» at ail events, it V. would only go to affect the araount of the premium. But,
^^^''^^ in our opinion, nothing can affect the amount of the pre- mium, without also affecting the risk. That was the wiy in which the point was put in Lynch v. Handlton{a)y where Man^dd, C. J., said, ** A person insuring is bound to communicate every intelligence he has, that may affect the iMind of the underwriter in two ways — first, as to the point whether he will insure at all; and secondly, as to the point at what premium he will insure." At the trial of this cause some witnesses stated that they thought that the letter was material and ought to have been communicated* It has been contended that no such evidence ought to have been received. I know not how the materiality of any matter is to be ascertained but by the evidence of persons conversant with the subject-matter of the inquiry. If such evidence is rejected, the Court and jury must decide the point according to their own judgment, unassisted by that of others. If they are to decide, all the Court agree in thinking that the letter was material and ought to have been communicated, and tliat a jury would have been bound to come to that conclu- sion. The case is somewhat peculiar. The abtp was at Hobart-Town. The owner, who was a resident at Sydney, and who must be taken to have known the character of the ship, wrote to his agent here by another vessel sailing from that place at about the same time that the Cumheriand was expected to sail from Hobart-Town, and directed him, after the receipt of the letter, to give his ship every chance of arriving before he effected the insurance. If the fact that the letter had been so long received and detained by his direction before the insurance was effected, bad been made
(a) S Taunt. 37, where it was choice, whether be will iasnre «c
held, that it ^ is the duty of the all, and at what premium he will
assured not only to communicate insure, but likewise aTl rumours
to the underwriter articles of in- and reports which may tend to eo-
telligence which may affect his hance the magnitude of the risk/'
HILARY T£lial> X &£d. IT.
known to the uitilerwfiter, it nwaM ranH probability hwe bad some influence on bis tnind. Mid l¥Ould -have induced biro, as was said in Lynch v. Hamilton (a), either not to underwrite at all> or not to iMMkrwriCe ^xtept upon an in- creased premiuin* There \v%n another fact iiiso not imma- terial—two ships had arrived from Sydney M^ithm two or direfe days before the insarance was m/Btde, and the utider- writer might natorally suppose that the letter Aad come by one of tbem; he should therefore h»e htm informed of tbe true time at which it had been received^,
For these reasons we are of opintevi that the verdict found for tbe defendants was right, «md dfai this nile for n new trial ought to be discharged.
Rule discharged (&).
431
1890.
Rtckahd/s t.
and another.
(a) 9 Taant. 37.
(b) Vide Selw. N. P. 085, 7th ed.
Harrison, 'Executor of Harbison, v. Dowbiggin, Ad- niinistratrixy cum lestamento annexo, of Dowbiggin.
dCIRE facias on a judgment of nonsuit in an action in which tbe now defendant was plaintiff, and Harmon, the testator, was defendant. The nonsuit took place 15lh December, 1827* Before Hilary term, viz. 5th January, 1828, the testator died. In the following October an appli- cation was made in the name of the testator by his executor (tbe now plaintiff) to tax the testator's costs, %i4ich the master refused to do. This Court granted a rule niai for directing tbe master to tax the costs, which after argument (in the course of which no allusion was made on either side to tbe circumstance of the testator's having died), was made absolute (c). The costs having* been taxed and the master's allocatiir given, judgment was, on the llth November, 1829« signed in the name of the testator; a scire facias s)id an alias sci. fa. were sued out calling upon the defend*- (c) jtnie, Tol. iv. 699, and 9 Bam. & Cress. 666.
A suit abates by the death of either party between a non- suit and judg- ment, notwith- standing 17 Car. 2, c. 8. So, if the death occur between r^r- divt and judg- metft, unless judgment be nntuaily signed within two terms after verdict.
432
1830.
Harrison
V. DOWBIOOIN.
CAS£9 IN THE KING S BENCH, ant to shewcause why the plaintiff, as executor of Hamson, should not have execution upon the judgment.
Godson, in this term, obtained a rule to shew cause why the writs of sci. fa. should not be set aside. The motion was made on the ground of irregularity, the alleged irregur larity being that the action had abated by the death of the testator, it being submitted that the statute of 17 Cor. 2, c. 8, which authorizes the entering up of judgment within two terms after verdict, does not apply to a case in which the plaintiff has been nonsuited, or to any case in which three entire terms have been suffered to elapse before the signing of the judgment.
Campbell Tkovf shewed cause. The Court will not favour the defendant's application, for she is now setting up a new objection, after having been already before the Court since the death of the testator, to take her chance of success upon another question. At common law no doubt all suits abated by the death of either party before judgment, but by 17 Car. 2, c. 8, it is enacted, that in all actions the death of either party, between the verdict and the judg- ment, shall not be alleged for error. Although this in its very words applies only to cases in which a verdict has been given, yet the mischief which the statute was intended to remedy is the same in the case of a nonsuit. Even if it be doubtful whether this construction is correct, the Court will not give the defendant a summary relief, but will leave her to plead to the scire facias, or to bring a writ of error(a).
Godson, contr^ It is now usual for the Court to relieve a party in such a case as this upon motion. The Court
(a) So, although the Court will interfere upon motion where a party is clearly entitled to a writ of audita querel^ ^et if the right to the relief be dcubtful, either
upon the facts or upon the law,— the Court will leave the party to his remedy by audita quereU. Sy- mom V. Blake, 2 CrompL Mees. & Rose.
HILARY TERM, X GEO. IV. 433
will interfere in a summary way instead of putting parties isdO. to the expense of a writ of error, or of pleading to the sci. ^■^^'-^^ fa. With respect to what is said in allusion to the plain- «.
tiff's having already been before the Court, the answer is, I>o^»«aa'»» that the defendant's representative is not injured by the discussion of the question respecting the plaintiff's liability to pay costs. Supposing that instead of a nonsuit there hid been a verdict in this case, the right of the defendant to avail himself of the provisions of J 7 Car. 2, c. B, would have been lost before that discussion took place, by reason of bis having omitted to enter up judgment within two terms; Copley ▼• Day{a). But the statute of Car, 2, clearly does not apply to cases where the action has been terminated by a nonsuit.
Lord Tentbbben, C. J. — If the case of a nonsuit were within the statute of 17 Car. 2, c. 8, the judgment must be signed within two terms. The words of the statute are, *^ So as such judgment be entered within two terms after such verdict." This must mean that no greater time is to intervene between the verdict and the time when judgment is actually signed. But as a nonsuit is not mentioned in the statute, the case of a nonsuit is left as at common law.
Rule absolute* (a) 4 Taaot. 703.
Bbbtt v» Bealbs and others.
Assumpsit for tolls. Plea: nou assumpsit. At the Liability to re- trial (6) before Lord Tenterden, C. J., at the sittings at ^^''^f^^'' Westminster after last Michaelmas term, the following town, is not a bet» appeared : The plaintiff is lessee of the tolls in ques- gideracion foe tion under the mayor and burgesses of Cambridge^ who toll-thoroagh have immemorially repaired all the quays and bridges and thevAo/etown.
(f) The trial occopied three days. tOL. V. F F
434 CASES IN THE KfNO's BENCH,
18S0. oie of the streets of the town. The modern perosptioD of the tolls was proved, and it was shewn by Domeadij* Book that iiwsuetudines{a) were paid to the king, to Mrhom the town then belonged. From the Pipentdis of 31 flint. I, ( 1 1 84,) and 1 Joham. ( 1 IdSy) it appeared that the bargemt had held the town at farm, and by a charier 8 Joham the town, with the appurtenances, was granted to the bar* gesses and their heirs, habendum of the king and bis heir8{&).
A composition deed, temp. if. 8, between die Corpon* tion of Cambridge and the University, reciting and confirah iDg an award made between the same partiesi one of the provisions of which fixed the rate of the tolls to be taken by the corporation, was admitted as evidence of repntatioo as to the existence of the tolls, though the modem payments had not been made in perfect conformity with the deed,
A table of tolls in the possession of the corporationi fron which copies had been delivered out to officers who had collected under such copies, was received in evidence.
The plaintiff also tendered in evidence an old hock pro* dttced from the muniments of the mayor and baifesses, called the ** Common Day Book/' containing entries of tke proceedings of the corporation. From this book the plain- tiff had proposed to read orders made by the corporation directing the collection of tolls (c). This evidence was
(a) As to this temi, vide Mad. had in demepie; and a seigniory £xcb. 525; F. N. B. 151; ante paramount in respect of the pro- iii, 340 n; Ducange, Ghaar. in peity (the burgage tenares), as to verbo. which he had previously to the
(b) The effect of this grant (in- grant, an immediate seigniory, dependently of the question as to (c) The following is a copy of the tolls,) was to pass from the one of the orden:-^*< 1617, Aug. king to the corporate body Uie let- 25. It is likewise this day agieed lift of the lands and hereditaments that a letter of attorney be made which the king or lord of the tothefo«rbaili6l,aeithoniuiglbm borough had in demesne, and the to receive all lawful tolls and on- immediate seigniorjr over the bnr- toms belonging to the ooipontioo. gage tenures (vide Litt. s. 162), The same to be drawn up by the leaving to the king a seigniory in advice of the recorder «nd then respect of that which he before sealed with the town seal."
IIILAHt TERM, X GEO. IV. 436
okjMfed to ott tbe part of the defendant* on the ground isso. dm! Aese of&etn were merely private memoranda^ Lord Tenierden, C J»> npon the authority of Marriage v. Law^ tmceiu}, r^eeted the evidence.
For the defendant, it was contended thai thei*e was no evideDce to support a claim for toll-traverse, and that there WM to «ODSidenition to support a claim for toll-thorongh, for which IVtiiRm V. Wafgham(h) was cited.
The learned Judge elated to the jory that the law recog- ines two aocts of loliy-^toU-tliorovgli and tolKtraverse ; toll- dNMtMigh, wfaet« % pBttf is enlMed to take tM in considera- fiM of a liabiHlyto repair public highways; toU-traverse, there tlie toil is dedicated by tlie owner to the public, sub- ject «a the retervaiioa of a t^U to be paid by those who pass over k; that in this ease, Ihotigh the ptaintifF bad proved dnt the corporation repaired one of the streets, he had ftiied to prove thai all the roads and streets in Cambridge, (ia Inspect of the passifq; through any part of which the toH ii daimed,) were repaired by the corporation ; that the eon- fldcmtioK therefore was not co-extensive with the toH diuned) that bis was iberefore of opinion that the claim kt tM-th^rougk could not be supported :-^hat with re- spect to tolUtr4nm^ it appeared that at the time of the CMBpilaCibn of Domesday-Book(c)i the town of Cambridge Hfts put of the possessions of the crown, and that at that time there appeared to have been a town and highways at Cambridge; thai as the reservation of toll-traverse must be made eo instanti with the dedication of the soil to tk pttbtic, the dedication in Ibis case must have been u early as the reign of William the Conqueror; that if the king wws ^eieed of toll-traverse prior to the grant of Iht town, ^ ^iritb its appurtenances,*' in the charter of J ohm dkose words would be sufficient to pass the right to such isl, bat tiMit k was for the jury to say whether, from the
(^3BankfcAldm.l4d. Aud 573. « mU y. Manchater and SaU (6) 3 Wils. 296. W WatermorkM, t Nev. & Mwrn. (c) A.D. 1086.
F F 2
Brett
V.
bal; and othen.
436 CASES IN THE KING's BENCH,
18S0. term " eonsuetudine$'' in the Domesday-Book, and from the modern usage, tbey were satisfied that such toll-traverse was reserved upon the original dedication of the soil of n^'^tk!!. ^^^ highways to the public. The jury having found a ver- dict for the defendants,
W. E. Taunton now moved for anew trial, oti the ground of the improper rejection of evidence and of misdirection, (the Court expressing a strong opinion upon the former point, he confined himself to the point of misdirection.) The repairs done by the corporation prove their title to toll- thorough. It was not necessary to shew that the repairs had extended over the whole town. Truman v. Walg- ham {a) cannot be supported. That case is at variance with former decisions. In Rex v. Boston {b), a toll- thorough was supported upon the consideration of re- pairs done to a bridge, the pavement of a street, and to a sea-bank. In Smith v. Shepherd (c), it was said that the maintaining of a way or a bridge was a good consideration for a toll-thorough. In Crisp ^> Bellwood{d), the repair- ing of a certain wharf for the landing of merchandize was held to be sufficient consideration for toll upon merchan- dize landed within any part of the manor. The repairs done afforded evidence of a general liability to repair, which general liability would, at all events, have supported the claim.
Cur. adv. vult.
On a subsequent day the judgment of the Court was delivered by
Lord Tenterden, C. J. — After stating the form of the action and the evidence, bis lordship proceeded thus:— Being of opinion that the decision in Truman v. Walg- ham was correct, and that it had been so considered, I pre- sented the case to the jury as a question of toll-traverse, having its origin at the same time as the streets. A new
(a) 2 WiU. 296. (c) Cm. Eliz. 7 10.
(6) Sir W. Jones, 162. (d) 3 Lev. 424.
HILARY TERM, X GEO. IV- 437
trial was moved for^ on the ground that the case ought to 1830. have been left to the jury as a case of toll-thorough. Since the case of Truman v. Walgham, the same question has arisen in Hill v. Smith{a). There the defendanU justified under the title of the mayor, aldermen, and citizens of Worcester, for toll of goods and corn sold by sample in the market-place, and afterwards delivered within the city. In Hill V. Smith, one of the pleas stated an immemo- rial custom for the corporation to hold a market. One plea stated that the corporation repaired the pavement of the corn-market, and certain highways and streets, and had immemorially taken a reasonable toll for corn sold by sam- ple. The jury found a verdict in favour of the toll for corn sold by sample. This Court refused a new trial. Some allusion was made to this claim on the part of the corporation in respect of the repairs of the pavement of the corn-market. That Lord Ellenborough dismisses very lightly, and says, that the objection is on the record. A writ of error being brought in the Exchequer Chamber the judgment was reversed, that Court being of opinion that the pleas were bad as to the corn sold by sample. Sir Jame$ Mansfield, C. J., in delivering the judgment of the Court, says, " the defendant pleads a right under the cor- poration of Worcester to take a toll upon what is called in the pleadings a sale by sample. The sole question is, whether the prescription is such as can be sustained in law. If claimed as toll-thorough, it cannot be supported, for it is not alleged that the corn passed over any street which was repaired by the corporation, therefore there is no pre* tence for calling it toll-thorough." That is precisely to this point. Mr. Taunton pressed the authority of Smith v. Shepherd, in which Popham, C. J., says, " One may have a totl-traverse by prescription, and so he may have toll- thorough, but it ought to be. for some reasonable cause which must be shewn, viz. that he is to maintain a cause- way, or to repair a way, or a bridge, or such like; and the
(a) 4 Taunt. 6S0.
CASES IS TIi£ KIKG'S BENCS,
queeq at Ais day may grant such toll, being but a pf Uy thing, in respect it shall be a greater benefit or ease to the people for the repairing of a dangerous way, or the like/' Mr. Taunton says, that the language of PopAnm^C. J., doea not imply that it roust be a particular way, or particular pbfie* in respect of which the toll is claimed; but I think it niust be so understood even upon that report alone ^ but &e same case is reported in Sir F. Moore {a\ wl^re it is wd, " the prescription is not good or reasonable for any to take toll for passage in vi& regi&, and the inheritance of each man in the passage in viis regiis is precedent to all pre* scriptions; but if the party shows a cause for the toll» as ii he is bound to repair the bridge or the causeway Scc, there may be a reasonable cause for the commencement of the toll and prescription; but that is not shewn in the principle ease; but for toll-traverse it is clear that a man may pre- scribe, because this is for passage over his own fiieehold; it is otherwise for toll-thorougb» as this is in the caae at bar.** According to that report the right is put upon the liabibtj to repair the particular road« In ^ RolL Abr. Prerogatifei £• p\,20{b), it is said that the king cannot ehargo hie sub- jects by an imposition, unless it be for the benefit of the subjects who shall be charged, and where they shall have quid pro quo. A person passing along one street cannot be benefitted by the liability of the corporation to repnir some other street;-^such liability therefore cannot be sttflksicwt consideration to support a claim for toll*thorougb. We are not called upon to say in what cases a claim for toll* thorough can be sustained.
Rule refused*
(a) Page Bfi, No. 793. inclose my town, and grants diat
(6) Translated 16 ViD.Abr.580y I may take a halfpenny or ocber
citing 13 If. 4> 14 b, and 11 Co. sum of every horae»load or csit*
Hep. 86 b, (which merely re/erj to loud which passes through die
13 H. 4.) In ff. 13 H. 4, fo. 14, town, to have the money to in*
pi. 1 1, Gascaigne, C. J., says, '' If close the same; and also the king
the king grant to me that I may grants to me pontage, and that I
BILART TERM, X GEO. IV.
43d
Dttf taU of trwy load a cerlaia sun for the making the bridge with the same money, the grants are good, because the king may cbaip bb people of the realm witboot spedal aseent of the CommoiiS) to a thing which may be to the profit of the common people. Bet if the king grant such fflonp to a many and grants fartber that he may take a certain custom of every load when I and mj tenants shall pass through the sdd towB) altfaoi]^ two or more of my Maants pay to him rent or custom for their loads, I may well Ustiub him from taking such cus- una when I pass through the town vitb my loads; for the grant is void ia such case, because no man shall be charged in special in such case/' And Skreney J., says, (fo. 5 a.) "Thorough-toll is a toll which is taken ftom persons who pass with carriages through a town from time inmiemorial, and he
who is now lord of the towa for- feits the seigniory to the king, and afterwards the king by his pa- tent grants that I may collect his toll; now this is an office whereof there was no officer before. And so it is where murage is granted to a man, and by the same patent the king grants that I may GoUe<)C it, and moreover a writ issues to the sheriff to proclaim the said patent in the county. After that is done it is a good office in me. And also to the other extent I say that I may have a ferry over a certain water adjoining my own land, and that 1 may take of every man a farthing (un mail), or more or less, the grant is good." Euk, J., says, *' In your case of thorough* toll it is not marvel, because such toll was not due before the patent made to you ; and of your case of the ferry it is not marvel, because those who make the payment have quid pro quo»^*
1860.
Watts v. Friend.
Assumpsit. The declaration stated that on the 28th An agi«ement May, 18«7, in consideration that the plaintiflf would supply ^^^rto^^fumish the defendant with turnip-seed to sow certain land of the B. with turnip- defeodant, the defendant agreed to sell to the plaintiff j^j^ i^„^^ ^^ Ac whole of the turnip-seed which should be pro- B. was toseU fluced from the land, at the price of one guinea per Wiff tumip^eed diattr bushel, and deliver the same to the plaintiff at the ^j^^J^^"5[^ luoa] time after harvest and thrashing. Averment, that is. per bushel, the piaktiff supplied the seed, and that the defendant J^^^Ji^
note in writing nder the If th section of the statute of frauds, the value of die crop having in fact nonded 102.
Whether under 5 Geo, 4, c. 74, s. 15, an agreement to sell seeds by the Winchester Inshel, without expressing the ratio or proportion which such Winchester bushel bears to the standard measure, is void, qu^re.
440
1890.
Watts
V,
FftlEVD.
CASES IN THE KIKG'S BENCH,
sowed ]t» and harvested the crop, which prodaced 240 bushels of turnip-seed. Breach: that the defendant did not within 'such several times, or at any other time, deliver the turnip-seed to the plaintiff, but delivered it to some other person, whereby . plaintiff was obliged to purchase at a higher price in order to enable him to deliver the same tp persons to whom he had sold. Plea: non assumpsit. At the trial at the last Maidstone assizes before Lord Tenterden, C. J. the following facts appeared :
28 May, 1827. A verbal agreement was entered into between the parties, to the effect stated in the declaration* The price of turnip-seed having afterwards risen, the de- fendant refused to deliver the seed according to his con- tract, and the plaintiff was obliged to make purchases else- where to enable him to complete contracts of sale which he had made in anticipation of receiving the defendant's seed. The defendant contended that the contract was void under the 17th section of the statute of frauds, and also under the Uniformity of Weights and Measures Act (a). A verdict was found for the plaintiff, and the learned judge gave the defendant leave to move on both points. A rule nisi for entering a nonsuit having been obtained,
Gurney (with whom was Comyn) shewed cause. At
(a) 5 Geo. 4, c. 74, which enacts (s. 15), '' that from and after the first day of May, 1895, all contracts, bai^ains, sales, and dealings which shall be made or had within any part of the united kingdom, for any work to be done, or for any goods, wares, merchan- dize, or other thing to be sold, delivered, done, or agreed for by weight or measure, where no spe- cial agreement shall be made to the contrary, shall be deemed, taken, and construed to be made
and had, according to the stand- ard weights and measures ascer- tained by this act; and in all cases where any special agree- ment shall be made, with refer- ence to any weight or measure established by local custom, the ratio or proportion which every such local weight or measure shall bear to any of the said standard weights or measures shall be ei- pressed, declared and specified ia such agreement, or otherwise such agreement shall be null and void.'*
HILARY T£RH^ X GEO. IV.
the trial two objections were raised. The first rests upon the late statute respecting weights and measures, (5 Geo. 4, c. 74, s. 15.) The answer to that objection is 'simply this, that the clause in question refers to local measures only, and not to sales by the Winchester bushel, which, at the time when the statute passed, was not a /oca/ -measure, but general throughout the kingdom. The second objection js, that the contract was not reduced into writing and signed at the time, though it was reduced into writing imme- diately afterwards. The cases which have been decided with reference to the 17th section of the statute of frauds, shew that a written contract was not necessary ; Towers v. Osborne (a), Clayton v. Andrews {b). Rondeau v. fVyatt(c\ Cooper V. jElsion {d). In Groves v. Buck (e), a contract for the delivery of oak-pins which were not then made, was held not to be within the 17th section, because '' the subject-matter of the contract did not exist in rerum na- taiiy — it was incapable of delivery and of part acceptance, and when that is the case, the contract has been held not to be within the statute of frauds." So here, the seeds to be delivered had no existence at the time of the contract, Garbutt v. Watson(f), Crosby v. Wadsworih(g), Parker \. Stamland (A), Warwick v. Bruce (i), {Bayley, J. referred to Mayfield v. Wadsley{k), and Evans v. Roberts (I).) It has been held that growing crops are seizable under a fieri facias; they are therefore goods and chattels which go to the executor, and not to the heir.
441
18S0.
Wato
v. Friend.
Spankie, Serjt. contrsi, was stopped by the Court.
(a) J Stra. 506. (^) 4Barr. 210]. (e) » H. Bla. 63. {d) 7 T. R. 14. (e) d Maule & Selw. 178. (/) 5 Barn. & Aid. 613; and iDowL&Ryi. 219. (g) 6 East, 602.
(A) 11 East, 362.
(t) 3 Maule & Selw. 205.
(k) 3 Barn. & Cressw. 357, and 5 Dowl. & %1. 224.
(/) 5 Barn. & Cressw. 829, and 7 Dowl. & Ryl. 611. And see Smith V. Sumian, ante, vol. iv, 455, and 9 Barn, & CressVr. 561;
iMiva.
442 CASES TV THE CIN^gV BEKCH,
im^. Im4 Tehterdbn. C. J.r-*Thi8 rale most be made
^ al^sohite. We need not decide tke question upoa the
«. sMute of weigbto ami meaMires, which is a very important
oae. If persons may kwfiiUy eontraet by the Winchester measore, the statute wiH be in a great neasitre nugatoty. in every sense of the words, whether we look to their legal construction or to their eomoion accepti^on, dua is a contract respecting the sale of goods. Being a contract for the sale ol goods above (a) the value of 10/. it is void by the 1 7th section of the statute of frauds, for want of a note in writing.
Rule absolute.
(a)».6.notnepefliart/^9butbythe therefore, whether the originil
event. If the quantity of seed pro- agreement was a " contract for the
duced had not exceeded 9 bushels sale of any goods, wares, aod mer-
the price would have amounted, not ehandicee Jm* tk$ prke of 102. or
to U)/* but to QL 9«. ooly* Quicyv^ upwards."
Berkeley v. Demery and White.
Where fi. TRESPASS fioi entering the close of ibe plaintiff) trespass on *i>^ Giittiog. fjifzo and heath there growing. Plea: not
the land of il. milty. At the trial at the last summer assizes for the by the direc- -^, . ,, .i^, ij
tion and for county of Gloucester, it appeared that the defendants bad
the benefit of ^^^ ^,,6 furze and heath by the direction of one Hilii
C, and A, • •'
sues B. alone, by whom they were afterwards used. Verdict for the
no^t oide?a^^ plaintiff. Judgment having been signed for 41 IL 13$. 6d.
to pay 2[/s damages and costs, and the defendants being unable to costs. °
pay the same>
Taunton now moved for a rule calling upon ffifl to sfaaw causo why he should not pay to the plaintiff die amount of the judgment, and r^rred to Thmstout ^. tihen(oH{a).
(a) Pot/, 443 b;
HILART TERli, X GSO. IV» 443
Lord TBirrRSDBN, C. J. — There is a imtorwl distine- l^sa tion between an action of trespass quare clansum fregit g^jy^juiy and an action of ejectment In ejectment no person is «•
allowed to defend as tenant but the party in actual pos- f^J^^ sesMon; in trespass, all the parties may be sued. Before White. tliewrit issues the plaintiff should take the trouble to inquire what parties are chargeable with the trespass of which he complains. If this rule were granted applications of this nature would be without end.
LjTTLBDALEi J. — Granting this rule would be opening tdoor for a simiUr motion in every species of action.
Rule refused (a).
(a) Thhustovt d, JoMEs sad another v. SasiTTOir.
Sbtaeatb dedazaftiona in ejectment were served upon the defendant, upon Separate eject- HflijM, and upon Wright. Wright occupied part of the pemises ?®°^.^j*^ . might to be recovered, and the remainder was in the occupation of the agai^t Bl and defendant and of Hmvford respectively, as tenants to Wright. Wright, C. tenants in iuiesdof dtfrniling as tenant for part, and as landlord for the remainder, possession re- obtained a rule ordering that the three causes should be consolidated and ^^ ^^ j). abide the event of the trial of the action against Shenton. The defence who is tenant
was conducted by Wriehfs attomer. A verdict having been found and *? possession of . , , - , 1 . .«.. <! . . «, 1 the remainder
judgment entered up for the plamtiff m the action agamst Shenton, at the ^f ^^ premises
Stafford spring assizes 18299 the lessor of the plaintiff executed a writ sought to Be of habere &cia8 possessionem, and was put into possession of all the pro- ^^^®T^.> ^^ peitf. A rule nisi having been obtained, calling upon Wright to ^w be landlo^ cause why he should not pay the costs of the action tried against Shentan of B. and C, wd the costs of the application^ obtaioa a rale
^*^ to consolidate
the causes^ Gwn^ and Whatde^t in shewing cause, contended Umt the lumat ef the ejectmaots tbe pUintiff had mistaken his course,— that if he waa apprehensive of Jf ^^*|,.^" ^ looDg bis costs io case he succeeded against Shenton, whom he knew to event of th^ trfal be insolvent^ he might have required as a term of the consolidation rule, of tbe action
te flwaelftonagaiBsSllVki^dundd be selected as the aetion to be tiM; '^^^ ^ ^^ ^ verdict being
found for 4*
Caufhell and W. J. Akxander contrk. Wright is the person benefi- against C. tbr
dalhr mterested in o/^ the property, and as such du^cted the defence. 5®^** oidared
JD. to pay to ii.
his costs of the
action tried ; but refused to order him to pay the costs of tbe application to the Court.
SembU, that J/s proper course would have been to have brought only one ejectment against
As thict,— «r to have moved to set aside tbe appearance and pleas, unless D. would defend as
Uadloid,— or to have obtained a consolidation rule in which D. should have been directed
^ ptj tbe oasts in all ths adions^ ia ease a veidiet should be found for the plaintiff.
444
1830.
CASES IN THE KING S BENCH,
The eonaolidatioii rule wai a mere contriTanoe for the pmpoee of ending die payment of the costs of an action which his wrongful occupation, by himself and his tenants, of the property helonging to the lessor of the plaintifi^ rendered unavoidable.
Bayley, J.— The action against Shenton having been defended by tbe durection of Wright and for his benefit, he ought to pay the costs of the action. But Wright ought not to be required to pay the costs of thii application. If one action only had been brought, an order might hsre been obtained to include all the three tenants in possession in the dedsr ration, in which case Wright might have been called upon for the oosti,— or after appearance a rule or order might have been obtfkined cslling upon the defendants to shew cause why the appearances and pleas should not be set aside, and judgment signed against the casual ejector, unles Wright would defend as landlord in respect of the premises in Uie pos* session of Shenton and Hawford, — or a consolidation rule might have been obtained on behalf of the pUuntifi; directing that the gectments brought against Shenton and Hawford should abide the event of the verdict in the action against Wright, and that Wright should pay the costs of sU the actions in the event of a verdict being found for the pUuntiff. As the lessors of the pUuntifi* chose, however, to proceed against Shenton snd Haitfbrd, without making any application to the Court or a Judge, I think they are not entitled to the costs of this motion.
Rule absolute without
A wairant-of- attomey sub- ject to a de- feasance which is not written upon the same paper or parchment, is valid between the parties, though it would be void agunst the assignees of a bankrupt or of iln insolvents
B&NNETT V. Daniel.
Upon a reference to the Master, of a rule for setting aside a warraDt-of-attomey, an objection was taken that the defeazance was not written upon tbe same paper with tbe warrant-of-attomey, and that the instrument was therefore void under 3 Geo. 4, c. S9| s. 4, and the case of Morris f . MeUin(a) was left with the Master. The Master holding tbe instrument to be void, reported in favour of the defend* ant| without entering into tbe merits. In Michaelmas term Coleridge obtained k rule for the Master to review his re- ports In the same term,
Folkti shewed cause. The Master was right in coDsi«^ (a) 9 Dowl. & Ryl. 508, and 6 Bam. & Cress. 406.
HILARY TERM, X GEO. IV. 445
daiDg the warrant-of-attoraey as void^ under S Geo. 4, c. 18S0. 59. Having seen the affidavits, and read the case of Mor-- fit V. MelUn, he had a right to form his own conclusions. If he had all the facts and the law before him, the Court will not send the case back to him. The Master has not decided od the ground of the instrument being void, but if he had so decided, it is submitted that such decision would have been right. The defeazance should have been written on the warrant-of-attomey before it was filed. Morris v. MelUn was the case of an insolvent| Shaw v. Evans (a), sodSansom V. Goode{b). The two clauses (of the Act) apply to distinct matters. The clause on which the Master has acted is that contained in the latter part of the fourth section. The first section gave liberty to file the warrant- of-attomey vrithin twenty-one days. The second section makes warrants«of-attomey, which have not been so filed, void as against the assignees of a bankrupt conusor. The third section puts cognovits upon the same footing. [Bay* %y J. The third section is compulsory.] It b difficult to see that the third section is compulsory. The fourth sec- don makes the warrant-of-attomey void, where the defeaz- ance is hot upon the same paper or parchment, not as agamst the assignees, but to all intents and purposes. The introduction of the latter words shews that the intention of the legislature was to make a difference between omitting to file the warrant-of-attoraey and omitting to enter the defeaz- ance. \Parkef J. The object seems to be to compel the creditor to give a trae account] It is said that this must be understood to apply only to cases of bankruptcy, be- cause it is extended by the Insolvent Debtors' Act to persons taking the benefit of that act. Such a provision was necessary, because the second and third sections are confined to cases of bankruptcy. The word such, relied ou in Moms v. MelUn, means that the judgment must be confessed in a personal action.
(a) 14 East, 576.^ (&) 2 Ban. & Alders. 568.
446 CASES i«r toe king's bench«
1630. Coleridge, contfd. Ttus rule nnist be insde absohrte on
^' two grouads: — Fir»t, the merits were never iovestigairi,
9. Secoad^ the Master was botind by the decisioii of tins
Dakibl. q^^^ Iq ji^^^ ^ jf^.^ [Bay^, J. He is bouad by
the Ime, and not by the mistahe rftke Carni. He ihoald have beard the law diacitssed,] The wairant^^f-attoreey need not be filed where the judgaaeot i» ealered ap wttUo the twenty^ae days. It is unnecessary to write Ifae defcte- ance where it is unnecessaiy to file the wamnt^of-at- toraey, I
Ciir.«dp.twft.
Lord TsNTEnDBK, C. J^ now delivered jadgonat^^ I This oasa was bn>«ght before ns for the purpose of r»- viewng the jodgaftent of thb Court in Morrii ▼. MeUin. I am of opiaioo that the constniction there put au the sUtate, 3 Geo, 4f c. 39, by the majority of the judges, was oonect, and that this mstrument is not void as between the psitie^ firom onutting to put the defeazance upon the same paper. The act is intituled, '< An act for preventing finuds apoa creditors by secret warrsnts»o£4ittoiiiey to ooafess jndg- meat/' The preamble of die act recites (hat iajastioe ii finequendy done to creditors by secret wwvants-ofcutlonMy; and the first section enacts that every warrant^of^rttoniey (o confess judgment in any personal acdou, or a inie copy thereof, and of the attestation thereof, and the defeaanoe and indorsements thereon, shall, if the holder think fit, be filed widiin twenty-one days after the execution thereof The second section enacts^ that '' if at any time after the expiration of twepty-one days after the execution of suck warrant-of««ttomey, (extended to cognovits by section S,) s commission of bankrupt shall be issued against the penoa who shall have given such wsrrant-of-attomey, under whidi he shall be duly found and declared a bankrupt, then sad in such case, unless such warrBnt-4>f4itton]ey, or a copy thereof, shall have been filed as aforesaid, within the said space of twenty-one days from the execution thereof, or un-
BJLARY TXftMi X HEO. IT. 447
kn jttdgfliMt shall bave been signed, or execatioa issued, i8Se. so such warraDl^-attorney within the same period^ sncfa cTT^ wsmnt-of-attorney, and the judgment and exeonlioD v.
AereoB^ shall be deemed fraodolent nnd void against the «s- I>aaiti. i^^nsei under «iich commisston, «id such asstgnees shall be SBtided to recover back and receive, for the nse of the era- ditsrs of Buch bankrapt at fange, aU and every the moneys levied, or effects seized, imder and by virtue of such judg^ jaent and execution." Then comes the fourth saclaon, on nhich the question arises, '< That if aoch wammt-olHat- tarnsy or cognovit shall be given^ sabject to any dofeannce orcsnditioa, such defeazance or condilaon dmll be writton on the same paper or parchment on which ouch warranMiC- attoroey or cognovit actionem shall be written, before the tifiM when She same or a copy llvereof respectively shall be filed, otherwise such warrant-of-attomey or cognovit no- tiooem shall be null and void to all intents and purposes.^' It was oanSended^ that by reasen of the generality of the latter words, all warrants-of-attomey are included hi the foarth sQetioUi But even this section only says that the defeazance shall be written on the warrant-of-attomey or cognovit, '' before the time ^en the same, or a copy thereof, shall be filed** It does not therefore extend to warraots-of-attovney not filed. This seems to restrain the generality of the words in question. The fourth section spedLs of such warrant-of-attomey or cognovit This is a donMe reference to the securities mentioned in the preced- Bg sections, and it appears, by 7 Geo. 4, c. 57^ s. 3d, that Ae S Geo. 4, c. 3% s. 4, was miderstood by the legislature to lie applicable to those securities only which are men- tioned in the second and third sections. I therefore think tet the Master was mistaken in supposing that he was re- stricted from inquning into the merits of the case.
Parke, J. — My opinion is at variance with the opinion pronounced by my Lord^ in which my learned brothers, I imderstand, also concur. The fourth section declares the
448
1830.
CASES IN THE KIKO S BENCH,
securities to be absolutely void. The only safe mode of construing an act of parliament is to take words in their plain and ordinary sense, unless a different intention clearly appears. There is not, I think, sufficient in this act to au- thorize our construing these words in any other sense. It is true, that in some cases words may be construed othei^ wise. Gifts and grants declared by 1 Eliz. c. IQ, s. 5, to be '' utterly void and of none effect to all intents, construc- tions, and purposes,'' have been held to be good against the lessor, though granted for a longer term than twenty-one years, or three lives. There, however, it appears from the language of the statute that its object was to protect and benefit the successor.
Baylby, J., expressed his concurrence with the judg- ment of Lord Tenterden.
Little DALE, J., concurred, and referred to the reason stated in Morris v. Mtllin.
Rule absolute.
Wilson v. Bagshaw and another (a).
wJlSS of Trespass for breaking and entering a close called Whiteacreand Burr's Hill, at Great Hucklow, in the county of Derby, ways used a* ^nd depasturing cattle there. Pleas: first, the general wf ^'^^ issue; secondly, that long before the plaintiff had any Blackacre,and thing in the said close in which &c., to wit, on the lOtb ^w'ed* "^P"'' ^®^''' ®°® ^^^^ Remington, and one Barnard John Blackacre, Wahe, at one and the same time, were seised in their
illTa^s^Md demesne as of fee of and in a certain close, called Black
appurtenances
wnatsoever,**
to B., is not a
sufficient justificadon of an entry into Whiteacre by B.
If at the time of the conveyance A, had no access to Blackacreby a way appoiteoaDt in niieno solo, that circnmstanoe should be alleged.
Or it should be pleaded as a^onr of the \Tay.
(a) Aligned in the Bail Court, 25th April, 18S9.
HILARY TERM, X GEO. IV.
Titcb, whereof the said close in which 8cc. then was parcel,
and of and in certain other closes called Lou re Greaves and
Wilson
Fox Burrs, and the said J. R., and B, J. W., by themselves^ v.
their farmers and tenants^ occupiers of the said last-men- ^nd another, tioned close, during all the time they were seised of the said several closes as hereinbefore mentioned, and until and at the time of the alienation thereof by the said J. R. and B. J. W., as hereinafter mentioned, used and enjoyed a certain way for themselves and their servants to go, return, pass and repass on foot, and with cattle, carts, carriages, and waggons respectively, from and out of a certain common highway, into, through, over, and along the said close called Loure Greaves, unto, into, over, and along the said close called Black Titch, unto, into, through, over, and along the said close in which &c., so being part and parcel thereof as aforesaid, unto and into the said close called Fox Burrs, and so back again from the said close called Fox Burrs, in and along the said way, unto, and into the said common highway, every year and at all times of the year, for the more convenient use and occupation of the said close called Fox Burrs. And the defendants further say, that the said JR.andB.J, W., being so seised of the said several closes as hereinbefore-mentioned, and so using, having, and enjoy- ing the said way in this plea mentioned, afterwards, to wit, on &c., at Sec., enfeoffed defendant Bartholomew of the said close called Fox Burrs, together with all ways and appur^ tenances whatsoever to the said last<*mentioned close belong- ing, habendum unto defendant Bartholomew, his heirs and assigns; by virtue of which feoffment defendant Bartholo- fnew afterwards, to wit, on &c., at See, became and was seised of the said close called Fox Burr^, with the appur- tenances^ as hereinbefore-mentioned, in his demesne as of fee, and became and was entitled to such way as in this plea mentioned, there being before and at the time of the said feoffment no other way to the said close called tlie Fox Burrs from the said common and public highway, and which
VOL. V. GO
450 CASES IN THE king's BENCH,
1830. last-mentioned way hath from time to time since been used
^IP'^^^ accordingly by the defendant Bartholomew and his tenants,
V. ' occupiers of the said last-mentioned close. And the defend-
Bagshaw ^pjg^ jjj f^^^^ ggy jjjjjj iijg defendant Bartholomew^ being so
seised of the said iast*mentioned close, and being so enti- tled to the said way as aforesaid, afterwards, and at the said several times when &c. having occasion &c.
The third plea, instead of claiming the way a^ all times of the year, stated the right to be '* at certain periods of the year, ss. at those periods when the close called Black Titch was not under the plough or sown with com."
The fourth plea stated, that J. R. and B. J. fV. having no other way to Fox Burrs, used the said way as a way of necessity, and that the defendant Bartholomew has, since the alienation, used it as a way of necessity.
The plaiutiff demurred generally to the second and third pleas, and took issue on the fourth plea.
The plaintiff also newly assigned trespasses on other oc- casions, and with unnecessary violence.
To the new assignment the defendant pleaded, first, not guilty; secondly, leave and licence; and thirdly, a plea simi- lar to the third plea to the declaration.
The plaintiff took issue upon the leave and licence alleged in the second plea to the new assignment, and de- murred to the last plea.
Holroydf for the defendant, in support of the demurrers. The question here is, whether, under this feoffment, a right to a way used by the feoffor over his own land passed. [Bayley,J. The pleas do not negiitive there being any other way to get at the close. Parke, J. Where there arc ways in alieno solo, these words of conveyance will be satisfied.] In Harding v, Wilson (a) it was held, that by a demise of land, ** with all ways thereunto appertaining," t road over the soil of the lessor would not pass; but that it
(a) 3 Dowl. & Ryl. 987; S Barn. &Cressw. 96.
451
1830.
HILARY TERM, X GEO. IV.
vould ba?e been otherwise if the lease had contained the
words " heretofore used/' (a) In this case the feoffor could
not have a way appurtenant, being seised of the whole.
The words " belonging to or appertaining/' will not operate ^nd anIoSier.
as a Dew grant, Grymes v. Peacocke (6).
Wightman, contrd. This plea was framed upon the au- thorit^ of the case of Morris v. Edgwgton{c), where it was held, that if a party having used a way from his close over other land of his own adjoining, demises the close with alt Wtti/s appurtenant, such way passes to the lessee. The language of the deed is to be taken most strongly against the party whose words are to be construed (^.
Bayley, J. — In Morris v. Edgington, it appeared that the lessor had no way appurtenant in alieno solo, and it was taken as a question of fact, whether, under the cir- cumstances, the way passed under the words of the demise. In pleading a deed the party pleading it is bound to state the deed according to its legal operation(e). If the defendant had pleaded that he was enfeoffed of the close and way, the jury might have found that he was so, if the whole of the facts taken together would have warranted such a con* elusion. The rule fortius contra proferentem does not apply to a case where the adverse party has pleaded accord- ing to the legal operation of the deed. Here, the Court are bound to consider whether the way was appurtenant at the time of the conveyance.
L1TTLEDALE9 J., concurred.
Pabkb, J. — To bring himself within the case of Mor- ris s. Edgington, the defendant might have alleged that
(a) And see Wkalle^ v. Thomp- s«m Bos. & Pull. 371. (6) 1 Bulstr. 17. (c) 3 TaunL S4.
(d) Vide 1 Wms. Saund. 258 a.
(0 Vide ib. «35, b. n. (9); 2 Wms. Saund. 97, b. n. (3); Com. Dig. Pleader (CS7), GG 2
CASES IN TUB KING S BENCH,
there was no way appurtenant in alieno solo, or he might have pleaded a grant of the close and way (a).
^d^^otTer. Judgment for the plaintiff(ft).
(a) Under an issue taken upon (b) And see Saundeys v. OUfe,
the former allegation, it would Sir F. Moore, 467 ; Ciements v.
lie upon the plaintiff to prove the Lambert, 1 Taunt. 205; Barwkk
existence of an appurtenant way; v. Malthewt, 5 Taunt. S65; Kooy-
Hliereas under an issue taken on Mtra v. Jjucas, 1 Dowl. & Ryl. 506,
the grant, the defendant must prove 5 Bara. & A.lders. 830; Barkm v.
the grant before he could require Rhodet, 1 Cxompt. & Mees. 439,
proof of the way. This would, 3 Tjrwh. 680; Plant v. James, i
however, give to the defendant the Nev. & Mann. 517, 5 Barn. &
opening and the reply. Adol. 791.
Furnish r. Swann.
Where an ac- TROVER in the Court of the Guildhall of the citv of tion of trover, ^y , . rr* • • • "
in which the Norwich. The damages were laid m the declaration at
fa*i™under*20/ ^^'" '^'*® defendant removed the cause by certiorari, but is removed by omitted to enter into the recognizance for payment of the from an infe- ^^^^ ^^^ costs in case the judgment should pass against him, riorinto a su- which is required by the 7th and 8th Geo. 4, c. 71, s. 6, without entei^ upon the removal of actions in inferior Courts where the
ing into a re- cause of action does not amount to ttO/. After the return
cognizance to . . .
pay the debt to the Writ of Certiorari had been filed, a rule was obtained
8uanUo7^8 ^^"'"8 upon the defendant to shew cause why a writ of
Geo. 4, c. 71, procedendo should not be awarded. 8. 6, the plain- tiff is entitled
to a proceden- Austin now shewed cause. This being an action of tro- do. ...
So, though ver, It was unnecessary to enter into the recognizance men-
thc return to jjQned in the act. That recognizance is for payment of the
the certioran , ^ ^ ^ *^ \
has been filed, debt and costs; but in trover^ uhich is an action brought
to recover damages resulting to the plaintiff from the
wrongful act of the defendant, in appropriating to his
own use certain specific chattels belonging to the plaintiff.
HILARY TERM, X GEO. IV.
there is no debtia), or at all events none of an assignable amount.
Another objection to making this rule absolute is, that it was obtained after the return had been filed; and therefore, according to the rule of practice, the record cannot now be remanded (6).
F. Kelly, contri. The act of 7 & 8 Geo. 4, c. 71, ex- tends the provisions of IQ Geo. 3, c. 70, s. 6, to all actions in inferior Courts where the cause of action shall not amount to 20/., exclusive of costs (c). This enactment is general in its terms, and applies equally to actions of trover as to all others. A positive enactment of the legislature cannot be nullified by a rule of practice ; and therefore the rule which has been referred to, if any such there be, can furnish no answer to this application.
By the Court. — llie enactment requiring the recogni- zance to be entered into, is general, and applies equally to actions of trover as to other actions. The record having been brought into this Court in direct contravention of the terms of an act of parliament, which says, that no such record shall be removed unless the defendant shall have entered into the recognizance, cannot be retained ; it must
go back to the inferior Court,
Rule absolute.
(d) It was ruled by Lord Ellen- horougkf C. J., that an action of trover brought to recover damages for the convenion of goods by means of a wrongful sale, may be described, even in pleading, as an actioQ brought to recover the par- ticular sum for which the goods were sold. And the Court of King's Bench confirmed this ruling, sod refused to grant a rule nisi for a new trial. Baickellor v. Salmon^ i Campb. 525. So, e converso, n dtmand of the " amount of goods
which you have disposed of»** and a refusal to pay, are a good de- mand and refusal to constitute evi- dence of a conversion in trover. Thompson v. Shirley, per Lord Kefiyon, C. J., 1 Esp. N.P. C. 31; Rookeby*9 case, Clayton, 129, pi. 114.
(6) Vide Walker v. Gann, 7 Dowl. & Ryl. 769.
(c) But not to ejectment. Vide Doe d. Stamfield v. Shipley, 3 Duwl. P. C. 408.
454
1830.
Under 43 EHm. c. 6, a judge may certify to de- prive of his costs, a plain- tiflF who re- covers less than 40s., even where the de- fendant is pri- vileged to be sued in the superior Courts only. So, where the defendant is not anaena- ble to an infe- rior Court by reason of his not residing within the jurisdiction within which the cause of action arose, aemble.
CASES IN THE KINg's BENCH,
Wright, Adoiinistratrix, r. Nuttall, Gent., ooe&c.
Assumpsit for work and labour done by the intestate, who was a sherifTs officer, brought to recover the balance of an account for caption fees. Plea : non assampsit as to all but 105. 6d., and as to that sum a tender to the plain- tiff'as administratrix. Replication ; denial of the tender.
At the trial before Alexander, C. B., at the last Notting- ham assizes, the plaintiff obtained a verdict negativing the tender, (which had been made before administration granted,) damages lOs, 6d,; and the learned judge certified under 45 E/iz.f c. 6, to deprive the plaintiff of her costs. In Michael- mas term a rule was obtained by White, calling on the de- fendant to shew cause why the Master should not tax the plaintiff's costs, notwithstanding the certificate, on the ground that where the defendant is an attorney the statute does not apply.
N. R. Clarke, on a former day in this terra, shewed cause (a). By 43 Eliz,, c. 6, s. 2, " If upon any action personal, to be brought in any of Her Majesty's courts at Westminster, not being for any title or interest of lands, nor concerning the freehold or inheritance of any lands, nor for any battery, it shall appear to the judges of the same Court, and be so signified or set down by the justices before whom the same shall be tried, that the debt or da- mages to be recovered therein in the same Court shall not amount to the sum of forty shillings or above, the judges and justices before whom any such action shall be pur- sued, shall not award for costs to the party plaintiff any greater or more costs than the sum of the debt or damages 80 recovered shall amount unto, but less, at their discre- tions." The reference, in the preamble of the act, to suits " which, by the due course of the laws of this realm, ought to be determined in inferior Courts in the country,*' will be
(a) Before Bayify, J. and Parke, J., 6 Feb. 1830.
HILARY TERM, X GEO. IV.
relied on for the plaintiff; but where the enacting part of a statute is clear, it is not to be controlled by the preamble. Here, the enacting clause is clear, and extends to attorneys as well as all other defendants. [Bayky, J. The plaintiff cannot know that the defendant, if sued in the County Court, will not set up his privilege. Parke, J. In many cases the County Court may not have jurisdiction, — as where the cause of action arises in one county, and the defendant is resident in another.] That is a case in which a judge, in the exercise of the discretion given him by the statute, would refuse to certify. This, which is a statute for the prevention of vexatious litigation, has been always cousi-> dered to be very beneficial to the public, and therefore en- tilled to receive a liberal construction. For this reason it has been held that the large words of the enacting clause are not to be narrowed by the more limited expressions of the preamble. Dand v. Sexton {a), Pyeburn v. Gibson{b).
White, contri. Had the plaintiff sued in the County Court, the proceedings in that Court would probably have been defeated by the defendant's privilege. It cannot be said that the defendant is entitled to be sued in a superior Court only, and yet that the plaintiff was boand to sue in the inferior Court. The defendant could not have pleaded to this action that he was resident in an inferior jurisdic- tion, and that the debt sued for was recoverable there. Gardner v. Jessop (c), Wiltshire v. Lloyd (d). This there- fore is not an action ** which, by the due course of law, ought to be determined in an inferior Court.'* The privi- lege of an attorney is considered as the privilege of the client, whose business ought not to be delayed by with- drawing the attorney from the Court of which he is an officer, to a»remote jurisdiction. Harper v. Tahourdin{e).
455
18SIK
(fl)dT.R.S7.
(6) 8 B. Moore, 450.
(c) 3 Wils. 43.
(cO 1 Doiigl. 381. (e) 6 Maule & Selw. 383. And see Bac. Abr. tit, "Attorney"(0).
Waioht Ndttali:..
456
1830.
WmoHT
V, NUTTALL.
CAS£S IN THE KING S BENCH,
Attorneys are therefore not liable to be sued in Courts of Conscience, unless brought within the jurisdiction by express enactment. And in analogous cases, arising on other statutes, the like construction has prevailed. Armng- torC% case(a), Board, oneSfc. v. Parher{J}\ Johnson, oneSjC. V, Bray{c).
Car, adv, vult.
Bayley^ J.y after stating the facts and the argument, now delivered the judgment of the Court as follows: —
No costs were recoverable at common law. Costs were first given by the Statute of Gloucester (J). The right created by that statute is limited by 43 Eliz. For the plain- tiff it was contended, that as an attorney is privileged to be sued in the Court in which he is admitted, and the pream- ble of the statute refers to suits ** which ought to be deter- mined in inferior Courts in the country,'' suits which can- not be so determined are to be considered as impliedly excepted out of the enacting clause, notwithstanding the generality of the language there used. Dand v. Sexion is an express authority against such a construction of the statute ; and we are of opinion that it ought not to be so construed. If the objection founded on the attorney's privilege were to prevail, there would be the same reason for excluding the power of certifying in the case put by my brother Parke during the argument, of a defendant residing in a different county from that in which the cause of action accrued; for then the plaintiff would not have the means of summoning the defendant in any inferior Court.
Lord Tenterden, C.J. — I entirely agree with the judgment which has just been delivered. The statute of Eliz. ought to receivts a liberal construction, so as to pre- vent the bringing of actions in the superior Courts for
(a) Palmer, 403.
(6) 7 East, 47.
(c) S Brod. & Bingh. 698, and
5 B. Moore, 699.
(rf) 6 Edw. 1, c. 1. Iiisc. 288.
And see 3
HILARY TERM, X GEO. IV.
small lums and for trifling causes. Where less than forty shillinis is recovered in a superior Court, no benefit can tccru^ to the plaintiff. Such suits can be commenced only from liodictive motives (ir), or for the benefit of those per- SOD/ by whom they are professionally conducted.
Rule discharged.
457
(a) A trader may perhaps, with- out vindidive motives, find it ex- pedient, with reference to his ge- nenl dealiiigs, to sue a customer
who refuses to pay a debt of SOf ., solely and avowedly because it would cost bis creditor five times as much to pioceed agunst him.
1830.
WaiOBT
V. NUTTALL.
William, Lord Bishop of Exeter and George Pyke DowLiSG, clerk, v. Jenefer Gully, Jeremiah Trist, John Hearlr Tremayne, and Thomas Gbaham, in Error.
J^RROR upon a judgment in quare impedit, given by the A presentation
Court of Common Pleas, for Gully and others, the plaintiffs fiJi^'tV«»e«-
below, (now defendants in error,) against the Bishop and &ion to sup-
Dowling, the defendants below, (now plaintiffs in error). impedit by £.,
The declaration stated, that Richard Roberis.Esq., on the ? party claim-
ing under ^rd May, 160S, being seised of the advowson of the rectory the youngest
and parish church of Berrynarber, in the county of Devon, ^ohw of ^^
and diocese of Exeter, in gross by itself, as of fee and of after sever- ance amongst the coparceners, by reason of their disagreeing in presentation.
In qaare impedit by B. a party claiming under the fourth daughter and coheir of il , the declaration alleges, that after severance by disagreement, the eldest daughter pre- sented in the first turn, and that unknown persons successively presented a$ tn the turns of the second and third coparceners. Held, that these presentations must be taken to bare been by rights and not by usurpation i — but that if made by usurpation, they would not destroy the effect of the presentation by the common ancestor, as sufficient to topport the pdteuory right of all the coparceners.
A conveyance of the purpart v of the youngest of four coparceners, when the church is full upon the presentation o^ the eldest, expressed to be made *' in consideration of ^. aod of faithful service done to the grantor, as also for divers good and valuable ouset and considerations him thereunto moving," is not necessarily fraudulent as •gainst a subsequent purchaser for value.
A Court of Error will not inquire into the propriety of a rule made by one of the Superior Courts for amending the declaration; or of a rule for setting aside a rule to Rwsd several matters, and for striking out pleas filed in nccordance with such rule,; — orof a rule for setting aside a nonsuit, although the nonsuit has been obtained in a form of action (quare iinf«dit) in which a nonsuit is made peremptory by statute.
458
1830.
Bishop of
Exeter
and another
V.
Gully and others.
CASC:S IN THE KING S BJ£NCH,
right, pr^seuted to the said church, then being vacant by the death of the then last incumbent thereof, one Wm.Searle, his clerk, who, on the presentation of the said JRkhard Roberts, was afterwards, to wit, on the day and year afore- said, admitted, instituted, and inducted into the same in time of the peace of the Lord James 1, late king of England ;— that Richard Roberts died intestate on the 25th December, 1622, whereupon the advowson descended in coparcenary to his four daughters, viz. Mary the wife of Thomas West- cott, Jane the wife of William Squire, Prudence the wife of John Amory, and Grace the wife of Francis Isaac: whereupon the said Thomas Westcott and Mary his wife, in right of the said Mary, the said William Squire 2nd Jane his wife, in right of the said Jane, the said John Amory and Prudence his wife, in right of the said PrudencCj and the said Francis Isaac and Grace his wife, in right of the said Grace, became and were seised of the said advowson, in gross by itself as of fee and of right; — that the said church, on the 27th of January, 1630-1, became vacant by the death of the 9aid William Hearle, whereupon it belonged to the said Thomas Westcott and Mary his wife, in right of the said Mary, the said WiiUam Squire and Jane his wife, ia right of the said Jane, the said John Amory wad Prudence his wife, in right of the said Prudencej and the said Franch Isaac apd Grace his wife, in right of the said Grace, to present a fit and proper person to the said church, so then being vacant; but because they did not agree among them- selves jointly to present, it belonged to the said Thomas Westcott and Mary his wife, in right of the said Mary, as eldest daughter of the said Richard Roberts, to present a fit person to the said church, so being vacant, for that turn, being the next and first avoidance after the death of the said Richard Roberts; whereupon the said Thomas Westa>tt and Afary his wife presented, in the first turn, one George IFes/- cott, their clerk, who was thereupon admitted, instituted, and inducted; — that Francis Isaac and Grace his wife, on the Ist November, I66O, died so seised of the said purpart/, or
HILARY TERM, X GEO. IV.
one-fourth part of the said Grace, of the said advowion^ upoD whose death the same purparty, &c. descended to Robert Isaac, her son and heir (a); thereupon the said Jio« bert Isaac became seised of the said purparty, or one-fourth part of the said advowson as of fee and of right ;-^ that on tbe 10th July, 1674, the said church became vacant by the death of the said George Westcott ; that thereupon one Grace Westcott afterwards {b)^ as in the said second turn which was of the said Jane Squire, on the 1 1th July, 1674^ presented to the said churchy so being vacant, one Thomas Westcott, her clerk, who was thereupon admitted, instituted/ tnd inducted; — that on the 10th September, 1674, the church became vacant by the death of the said Thomas Westcott; that thereupon one Edward Gihbors and Frances his wife, as in the third turn, tvhich was ofthf said Prudence Amory(c), afterwards, on the 24th Sept. 1674, presented to the said church, so being vacant, one Henry Chichester, their clerks who was thereupon admitted, instituted, and inducted ; that the said Robert Isaac, being so seised of the said purparty, &c. formerly of the said Grace Isaac, of the said advowson, on the 29th April, 1672, by deed- poll, sealed with the seal of the said Robert Isaac, (prolate in curiam,) tit consideration of the sum of twenty shillings vnto him Robert Isaac y by Lewis Stevings o/Braunton, in the county of Devon, gentleman(d), and for true and faithful ser-- vice{e)done nnto him the said Robert Isaac, by the said Lewis' Steoings, as also for divers other good and valuable causes and considerations him thereunto moving, did freely and clearly give and grant unto the said Letois Stevings the same pur- party or fourth part of the advowson of th^ said chuTch(f), habendum to the said Lewis Stevings, his heirs and assigns for ever; whereby the said Lezns Stevings became seised as*
(a) The declaration had origi- naiij stated the descents from the three elder sisters also.
(b) As to the necessity of shew- ing III what right the presentations were made during the first, second, tod third turns, see poit, 485.
459
IBSO.
Bishop of
Exeter
and another
V. GOLLT
and others.
(c) The descent to Frances Gib- bon had been originally stated in. the declaration.
(d) Not said « paid."
(e) Vide 5 Bingh. 171, and 2 Moore & Payne, 366.
(/) Vide poit, 470.
460
1830.
Bishop of
Exeter
and another
V,
Gully and others.
CASES IN THE KING 8 BENCH,
of fee and of right of the same purparty 8cc.» formerly of the said Grace Isaac ; that being so seised, the said Lewis Stevings died, leaving John Stevings, bis eldest son and heir, to whom the same purparty &c. thereupon descended, and who thereupon became seised thereof as of fee and right ; that the said John Stevings being so seised, on oth January, 1699-1700, (the said church being then filled by Henry Chichesier,ihe then incumbent thereof,) by indenture delivered to Henry Chichester, and therefore not in possession of the plaintiffs, who produce counterpart (a), made be- tween the said John Stevings of the one part, and Henry Chichester of the other part, the said John Stevings granted to the said Henry Chichester, his executors &c., the ad- vowson &c. of the said church, for the first and next avoid- ance thereof; by means of which indenture the said Henry Chichester became possessed of the right of presentation to the said church for the next turn only, the reversion of the said purparty &c. formerly of the said Grace Isaac, belonging to the said John Stevings; that the same reversion, so belong- ing to the said John Stevings, the said church, on the 1st No- vember, 1714, became vacant by the death of the said Henry Chichester; that thereupon one Sir Nicholas Hooper, on the 8th November, 1714, as in the fourth turn, formerly of the said Grace Isaac as aforesaid, presented to the said church, so being vacant, one Edward Chichester, as the said Sir Ni- cholas Hooper's clerk, who, upon such presentation, was admitted, instituted, and inducted into the same: that the said John Stevings, on the 1st January, 1719-20, died seised of the said last-mentioned purparty 8cc., having first de- vised the same purparty (6) &c. to his brother, Richard
(a) After the presentation had taken place, or at all events after the death of tlie presentee, the in- denture would belong to the re- versioner, to whom the grantee ought, and to whom he would be presumed, to have returned it; as in \he case of a lease which, after the expiration of the tenn, belongs to the lessor, who theuce-
forwards is entitled to both lease and counterpart as muniments of his title. P. 38, II. 6, fb. 84, pi. 1 ; Brewttery. Setoelt, 3 B. & Aid. 301. (6) The language of the will was, ** all my landt and tenements."* An ad vowson in gross will pass by the word '' tenement*' in a devise, 4 Bingh. 290, and 12 B. Moore, 591; so k fortiori it will pass^by
HILARY TEEM, X GEO. IV.
Stevings, (who died in the life^tinie of John Slevings^ if be should be living at the time of the death of the said John Sievings, otherwise to the children of the said Richard Stevings, as tenants in common ; whereupon Ka^ therine, afterwards Katherine Boweti, Thomasine, afterwards Thomasine Maunsel, Susarmali, afterw^ards Susannah Burgh, Jane, afterwards Jane Burgh, Grace, afterwards Grace Ridgate, and Elizabeth, afterwards Elizabeth Atidreios, who at the time of the making of the said will, and from thence- forth, until and at the time of the death of John Stevings, were the only children of Richard Stevings, became and were seised of the said last-mentioned purpartj &c., for- merly of the said Grace Isaac, in gross by itself, as of fee and right, as tenants in common thereof (a). The declara- tion then stated a conveyance by the nieces and their hus- bands, in 1719 and 17^0, by bargain and sale iurolled, fine and recovery, and declaration of uses, to Thomas Maunsel
the word "hereditament," West- faling V. Westfalmg, 3 Atk. 460; Httsetwood V. Pope, 3 Peere Wins. Sti; but before the statute of 3 & 4 ^iU. 3, c. 74, it woald not have passed by the word " land."
(a) Though the six nieces were hein at law of John Sievingi, yet the limitatiou to them expressly as tenants in common in the will,made them take by purchase as tenants in common, and not by descent as coparceners.
The will of John Sievings, after limiting several estates for life, de?ised the residue to his brother Rkkani, if living, otherwise to the children of Richard, with a proviso that three of those children should hare 200/. more than the others. It was held, that a fee passed to the children of Richard under this devise, 4 Bingh. 293 ; 12 B. Moore, 591. Ill order, however, to avoid any question as to the effect of
461
1830. Bishop of
EXBTER
and another
V.
Gully and <»thers.
the will upon the second trial, a rule was obtained to amend the declaration, by adding a count, stating that the children of Richartt took a life estate by devise as tenants in common, and the r0- version in fee by descent as copar- ceners. This rule was made abso- lute upon Argument, 4 Bingh. 595, and 2 Moore & Payne, 105. The necessity for this amendment was afterwards obviated by the re- scinding of the rule to plead several matters, and by the refusal of leave to insert a plea taking issue upon die devise by the four nieces, in addition to the pleas impugning the deed-poll. Ibid.
As to amendments of the decla- ration in Quare impedit, see Rep- pington V. Tamtcorth School, 2 Wils. 1 18, 150. As to the inser- tion of a second count, see Shep' herd v. Bishop of Chester, 6 Bingh. 435, and 4 Moore & Payne, 130.
462
1890.
Bishop of
Exeter
aod another
V. GULtY
and otliers.
CASES IN THE KING S BENCH,
and Robert Andrews, (the husbands of two of the nieces,) and Robert Incledon and Edward Fairchild, in trust for sale; the death of FairchUd, and a conveyance by lease and release from the surviving trustees, in November, 1731, to John Davie; — that in 1770 Jehu Davie died, having by his will devised the said purparty &c. to bis eldest sod John in tail male, other than the next presentation in his said fourth tum» which he devised to his second son, William; that in April, 1777» William Davie conveyed his next pre- sentation, by lease and release (a), to John Davie, the en- tailee; that John Davie dying in 1790| the said pMrparty &c. descended to Joseph, his eldest son and heir male of his body, whereupon the said Joseph Davie became seised in tail male ; that on the 5th May, 1731) the church became vacant by the decease of Edward -Chichester ; that there- upon one Richard Hill, as in the said first tarn, which was formerly of the said Mary IVesicott, presented one Robert Bluett, his clerk, who was admitted, instituted, and in- ducted;— that on the 27lh February, 1749, the church again became vacant by the death of the said Robert Bluett^ whereupon one James Pearce and Mary his wife, as in the second turn, which was of the said Jane Squire, pre- sented one John Seddon, their clerk, who, upon the pre- sentation of the said James Pearce and Mary his wife, was admitted, instituted^ and inducted; — that on the 4th Fe- bruary, 1780^ the church again became vacant by the death of the. said John Seddon, whereupon one Thomas Edvcardsj as in the third turn, which was of the said Prudence Amory, presented one Powell Edwards, his clerk, who was admitted, instituted, and inducted ; — that the said Joseph JDavie, being so seised as aforesaid, on the 6th July, 1814, by a certain other indenture, for the considerations (6) therein mentioned, granted unto the said William Slade Gully, his executors, &c., the first and next advowson or avoidance, and donation, collation, right of nomination, presentation, and free dis-
(a) The word « grant" in this indenture of release would operate
by way of^ surrender. Ante, 461. (6) As to which see post, 487.
HILARY TERM, X 0£0. IV.
position of the churchy when the same should first and next bappeti to become void by the death, resignation, ces- sion, or deprivation of the said P. Edwards^ or by any other ways or means whatsoever; by means whereof W» S. Gulfy became entitled to and was possessed of the then next avoidance and right of presenution to the said church, upon the death &c. of the said Powell Edwards^ the then incumbent; — that being so possessed, the said. W. S. Gully, on the l6th of November, 18 16, died, having de- vised the said then next avoidance and right of presentation to the plaiijtiffs (below); — that the said church, in the life- time of the said Joseph Davie, on the 30lh of October, 18^, again became vacant by the death of the said P. Edwards, and yet is void ; that such avoidance was the first and next avoidance of the said church, after the said grant to the said W. S. Gully, and after the said devise by the said W. S. Gtilly to the plaintiffs (below), to whom it there- fore belonged to present a fit person to the said church, so being vacant as last aforesaid, as in the said turn formerly of die said Grace Isaac as aforesaid; but that the defend- ants (below) unjustly hindered them.
The bishop disclaimed.
Bowling craved oyer of the deed poll, 20th April, 1672, which was set out in haec verba: — '^ To all Christian people to whom tliese pr*nts shall come, I Robert Isaac, of West- downe, in the counly of Devon, gent., the true and un- doubted patron of the parish church of Berrynarber, in the county of Devon, in the diocesse of Exeter, send greetinge in our Lord God everiasteinge. Knowe yee that I the fore* said Robert Isaac, for and in cons'eracon of the sume of twentye shillings of lawefu II money of England, unto me the said Robert Isaac, by Lewes Stevings, of Braunton, in the county of Devon aforesaide, gentleman, and for true and faithful service downe unto me the saide Robert Isaac by the said Lewes Stevings, as ailso for flivers other good and Talluable causes and consideracous me hereunto moveinge, have given and graunted, and by these presents doe freely
463
1830. Bishop of
£XET£R
and another
V,
Gully and others.
464
1830.
Bishop of
Exeter
and another
V.
Gully and uthers.
CASES IN THE KING S BENCH,
and clearely give and graunt unto the said Lewes Stevingx, the advowsioni donacon, free disposition and right of patron- age, and presentation of the rectorye and parish church of Berrynarber, in the county of Devon : To have and to holde the said advowson, donation, free disposition, and right of patronage, and p^sentation of the said rectory and parish church of Berrynarber aforesaid, unto the said Lewes Ste- vings, his heires and assignes forever: To the onely use, benefitt, and behoofe of the said Lewes Stevings, his heires and assignes for evermore. In wittness whereof, I, the said Robert Isaac, have hereunto set my hand and sea(e, the nine and twentyeth day of April^ in the fower and twentyeth yeare of the raigne of our souveraigne Lord Charles the Second, by the grace of God, of England, Scotland, Fraunce, and Ireland, Kinge, Defender of the Faith, Sic. Annoque
Domini 1672.
(Signed) Robert Isaac" (l.s.)
Endorsed, ** Sealed and delivered, p*sence of us,
Robert White, Ralph Perrin, John Tucker."
Dowling then pleaded, — first, that Robert Isaac did not give or grant the said purparty of the advowson to Lewis Stevings, — secondly, that the deed-poll was made to defraud persons who had purchased, or should thereafter purchase, the said purparty, — that Robert Isaac, upon his marriage with Elizabeth Skiffe, in I692, conveyed such purpart; to the use of the issue of that marriage in tail, — that JR. Isaac and his wife died, leaving a daughter, — that in 1714, Sir N* Hooper presented in right of the daughter, or in right of R. Isaac, accruing after the fraudulent deed poll, — the plea then deduced a title to Dowling, aa issue in tail (a).
(a) The pleas were originally forty-three; by which Dowling put ID issue every link of the title, from the deed-poll downwards, and de- nied the execution of the deeds stated in the declaration, and also the operation of the same deeds, in distinct pleas. As Dowling was
not party or privy to those deeds, the former course appears to ha\'e been irregular^ vide 3 Nev. & Mann. 50 (e).
After attacking the title thos in detail, Dowling also pleaded "diac neither W. S. Gully, nor any of his ancestors, nor any person under
HILARY TERM, X OEO. IV-
The replication joined issue upon the first plea, and took issue upon the allegation in the second plea that the deed-
wbom he claimedi afler Robert hauc was or were seised of the said propertj — wiihout tku that the piaintiffi became or were pos- sessed of the next avoidance and right of presentation on the death of the said TaweU Edwards, raodo et formft,** thus putting the whole title io issue by one sweeping tra- • verse of the legal result of the matters stated in the declaration, la The Grocers' Company v. The JrekhUhop of Canterbury, as re- ported, 3 Wils.214, 234, DeGrey, C. J., is stated to have said, '< As to the traverse, we think matters of law, or rather matters of right (as this is), resulting from facts, are traversable: whether one ob- tained a church by simony, is tra- versable; Rase. £nt. 532; orwhe- tiier one is seised in fee, or in tail, is traversable ; Yelv. 140, Ewer V. Moik. It is the common aver^ wn/ m a quare impedit, * that it hhmged to A. B. to present to the chaxh a^<ii the same became va- ^nt* whkh may, or rather must, ^tpend upon both law and facts, «^ the some is traversable:* The ^ords in italics are omitted in the nport of the same case in S W. Bla. 770, 776, and the judgment of the Court proceeded, not upon the sufficiency of the replication cootuning the traverse, but upon ^ insufficiency of the plea. As tbe Court however goes on, though' QDDecessarily, to pronounce an opinion in favour of the sufficiency f'f the replication, it may be de- sirable to shew the state of the pi«ading8.
VOL. V,
The declaration set forth the following title.
The plaintiffs, being seised in fee of the advowsonof Allhallows, Honey Lane, presented Hutchin- son, The Archbishop of Canter- bury, being seised in fee of the advowsons of St. Mary-le-Bow and St. Pancras, Soper's Lane, collated Smallwood and Dillingham, The three churches were destroyed by the Great Fire. By 22 Car. 2, (c. II, s. 63,) it was enacted, that the three parishes should be united, and that Bow Church should be the parish church ; that the respec- tive patrons should present by turns to that church only ; the first presentation to be made by the patron of the church, the endow- ments whereof were of the greatest value. By virtue whereof the Arch- bishop and the plain tiflfs became seised of the advowson in fee, and entitled to present to Bow Church. After the statute the church be- came vacant by the death of Small- wood, and the Archbishop collated Puller, The church became va- cant by the death of Puller, and the Archbishop, as in his second turn, collated Bradford, who was afterwards created Bishop of Ro- chester, and the church thereby became vacant; whereby King Geo, 1, by his prerogative, pre- sented Lisle, who was afterwards created Bishop of St, Asaph; whereupon King Geo. 2 presented Newton, who resigned. By reason whereof ii belongs to the plaintiffs in their turn, being the third turn, to present, &c.
U H
465
1830. Bishop of
EXETEU
and another
9.
Golly and others.
466
1830. Bishop of
£XETER
and another
V,
Gully and othera.
CASES IN THE KlPfGS BENCH,
poll was made to defraud persons who bad piirchasedi or should purchase, the said property.
The plea admits the seisin of the advowsonsy &c., the presenta- tion and collations before the fire, the burning of the three churches, and the statute of Car. 2, and that thereupon the Archbishop and the plaintiffs became seised and enti- tled to present, and that Bow Church became vacant b/ the death of Sntallwood; but says that Bow Church was of greater Talue than the other two, and that AllballowSy H. L., was of greater value than St. Pancras, S. L. ; by reason whereof the Archbishop became entitled to present to Bow Cbnrch in the first turn, the plaintiffs in the second, and the Archbishop in the third turn. That true it is that the Archbi- shop, on the death of Smalkoood, did in his first turn collate Puller, and that the church became vacant by the death of Puller; but that thereupon, according to the statute, it belonged to plaintiffs to present in their tecond turn ; but that the Archbishop collated Bradford by usurpation; that Bradford, being in the said church, was created Bishop of Rochetter ; that Geo. 1 presented Lisle; that iii/e was created Bishop of St. Ataph, and Geo. 2 presented Newton, who re* signed ; by reason whereof it be- longed to the Archbishop to pre- sent in his third turn, and that he collated the defendant Backhouse.
Replication: That the church became vacant by the resignation of Newton, and it belongs to plain- tiffs to present in their third turn, yet the defendants hinder them. Without this that it belonged to
the plaintiffs to present at the second turn, when the church be- came vacant by the death of Ful- ler, as alleged in the plea.
Demurrer to the replication, shewing for cause that the plain- tiffs have traversed not any znatter of fact, but matter of law.
It therefore appears that though the declaration contained the usual allegation that it belonged to the plaintiffs to present, yet no tra- verse was taken upon that allega- tion (as, according to the state- ment in the report in Wilson, the Chief Justice thought might have been done), but that the traverse in question was taken by the plaintiffs upon their own tide to present in the second turn. The argument for the plaintiffs (3 Wils. 229) was, that the question be- tween the parties was, whether the plaintiffs were entitled to the second or to the third turn; thai the relative value of the three livings was merely evidence of the turns, and that the plaintifi might possibly have waved the second turn, if it was theirs, and by agree- ment with the Archbishop have taken the third turn. Neither these reasons, nor the analogies relied upon by the Court, may perhaps be thought quite satis&c- tory ; but as the Court held that the declaration was good and that no title was made out by the plea, the question as to the traverse in the replication became wholly im- materiaL Nor could the defend- ants have raised the question in a court of error without first satisfy- ing the court of error that they
HILARY TERM, X GEO. IV.
In the rejoinder the defendant joined issue upon the repli- cation to the second plea.
467
bad conveyed a good title to tbem- selres by their plea. The position sUted in the judgment of the Lord Chief Justice, as reported by Wil- son,—that the common averment in a quareimpedit, that it belonged to A. B. to present to the church when it became vacant, is travers- able,—appears to be at variance with the established coune of fieading in quare impedit, and •gainst principle. The case in Bastall, referred to in the above jttdgmeat, was an action of quare impedit, by W. B,, against the Bishop of Salisbury, for refusing to admit his clerk, J. L. The Bi- shop pleaded that he refused be- cause J. L., ante prsesentationem hctam obtained the rectory from 1^. B. per simoniam; and the pbiotiff replies, quod J. L. ante prasentationem factam non obti-* nuit rectoriam praedictam per si- moniam. Here simony was a dis- tinct substantive allegation, not <lepeDdent upon any antecedent natement of fiicts. In Ewer v. MoUe (reported also Cro. El. 771,) the plaintiff declared in waste, Qpon a seisin in fee, against the ^efimdanty as his lessee for years. ^ defendant pleaded that he, heii^ seised in fee, conveyed to the plaintiff^ — ^habendum to the plaintiff and bis heirs so long as A. B. should have issue of his body; that the plaintiff demised to the defendant, and afterwards i. BL died without issue of his body. This plea was held bad for Qot traversing the unqualified seisin a fee, npon which the plaintiff ^ declared. Here, again, the
seisin of the plaintiff was a simple, original fact, not founded upon any precedent matter, and which fact would be equally true whe- ther the seisin of the plaintiff were acquired by descent, conveyance, or disseisin. But whether, in the principal case, the plaintiffs below were possened of an expectant presentation, was not a matter of fact, but a mere legal inference from the precedent matter, upon which a jury are not qualified, and cannot be called upon, to decide. Willion v. Berkley, Plowd. 230 b, 231a; JJCeniror v.Bqgan, Yelverton, 200. Thus, if it be alleged that A, was seised in fee, and that A,, being so seised, conveyed by lease and release to B. and his heirs, whereby B. became seised in fee, the adverse party may traverse the seisin of A., that being an allega- tion of fact; but he cannot traverse the seisin of B., because that seisin is a mere inference of law, result- ing from the prior seisin of A. and the execution by .^. of a convey- ance capable of passing the fee.
In GrUU V. Mannell, Willes, 378, the avowry stated a convey- ance by lease and release from the avowant to the plaintiff and his heirs, in consideration of a rent charge of 7L 10s., by virtue where- of the plaintiff entered and became seised of the premises in his de- mesne as of fee. The plaintiff pleaded that he never was seised of the premises in his demesne as of fee. Upon demurrer, it was objected that the plea denied what was before (impliedly) admitted, and that the traverse was only of a H H 2
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
468
1830.
Bishop of
Exeter
aud another
V.
Gully and others.
CASES IN TU£ KING S BENCH,
The return theo stated the venire and habeas corpora juratorum — the postea, finding both issues for the plaiatiSii
consequeDce of law. Willet, C. J., in delivering the judgment of the Court, said, ** We are of opinion that the first plea is bad in both these respects; first, because the plaintiff has denied that he was seised in fee by virtue of the lease and release, though he has in ef- fect admitted it before; for in this plea he has not denied, not even by way of protestando, that Mary MannM (the avowant) was seised in fee at the time of making the lease and release ; and as he has admitted in this plea that Mary Mannell was seised in fee, and that being so seised she made a lease and release to the plaintiff and his heirs, the necessary conse- quence of that is, that he must be seised in fee by virtue of such lease and release ; for I defy any one to put a case where a person seised in fee makes a lease and release to another and his heirs, and yet the grantee shall not be seised in fee ; and yet this is the very thing denied by this plea. Secondly, If there could be any doubt of. this (but there certainly is none), the only doubt would be, whether this be the necessary con- sequence in law, that is, whether these deeds of lease and release have this operation in law or not. And it is a certain known rule, never that I know of once contro- verted, that a man cannot traverse a conteqnenct of law ; and for this plain reason, because it is a matter of law and not of fact, and therefore not proper to be tried by a jury." In Beal v. Smpion^ 1 Lord Haym. 408, 410, (see the plead-
ings, 3 Lord Raym. 314, 1 Lutw. 627,) the same principle was re- cognized. Trehyj C. J., differed from the other judges as to the propriety of the traverse upon the virtute cujus in that particular case. Tliis difference in opioioD, however, was not as to the general rule of law, but as to its applica- tion, the Lord Chief Justice being of opinion that the case fell within the general rule, and the three other judges holding that the Ti^ tute cujus in that case did not serve, as in ordinary cases, merely to collect, and draw an inference from, facts previously alleged, but that its operation there was to as- sert substantively, as a new fact, that the act stated under the vir- tute cujus was done in assertion of and with reference to the parti- cular authority to which the virtute cujus referred. A similar doubt as to the operation of the virtute cujus in the particular case (and no question as to the general rule) created the difficulty in the recent case of Lucas v. Nocktlls, 4 Biogh. 729, 1 Moore & Payne, 783; S.C in dom. proc. 10 Bingh. 157, 3 Moore & Scott, 627, 7 Bligb, New Series, 140. And see PriddU and Napper's case, 11 Co. Rep. 30 a, (the dictum in which case upon this point is adopted in Doctr. Plac 351, and cited and approved in The Protector v. Halt^ Ilaidr. 70;) Archbishop of CoHlerbury's case, S Co. Rep. 48; Knightity and Spencers case, 1 Leon. 333 ; Benton v. Troty Sir F. Moore, 530, 534; Clampe v. CUnmpe^ Cro. El. 29; Foster v. Jackson^ Uob. 5-:;
HILARY TERM, X GEO. IV.
below, and that the church was not full and had become void 25th October, 1825, and that the yearly value of the church was 6OOL, and that the quare impedit was sued out within six months after the avoidance (a)— rand the judgment of the Court of C. P., (signed IQth November, 1828,) in accordance with the verdict for the plaintiffs below, to re- cover their presentation against the defendant G. P. Dow- ling, and also their damages (A) to the value of the said church for half a year, which, as assessed by the said jurors in manner aforesaid, amount to 300/., as and for the damage sustained by the plaintiflFs below, by reason of the said disturbance.
The errors assigned were.
First: That the plaintiffs had not merely stated defectively their title to present, but had shewn a defective title to any separate purparty or fourth part of the advowson, and no title or right in themselves.
Secondly: That the declaration was insufficient.
Thirdly: That there was a material variance between the deed-poll and the statement of it in the declaration.
Fourthly : That the deed-poll does not support the alleged title.
Fifthly. That by the record it appeared that the deed-poll
CoUkorpe ▼. Heyton, 2 Mod. 55; Rex V. Blagdon, cited 2 Stra. 841 ; HkkardMOn ▼. Mayor of Orford, « H. B]a. 182 ; Eobson ▼. Middleton, 9 Dowl. & Ryl. 249, 6 BarD. & Cressw. 295; 1 Wms. Saund. 23, c, (5); Ibid. 298, n, (3); Stephens, Plead. 3d ed. 191.
The Court of C. P. reduced the record to its present form, by re- minding the rule to plead several (natters, although the declaration ^ad been amended twice, and afcer tbe plaintiffs had been erroneously ijOTfSU J ted . Vide 4 Bi ngh. 525, and 2 Moore & Payne, 105.
(a) As to the obligation on the
jury, where a verdict is found for the plaintiff, to inquire ex officio whether the church is full — if full, of whose presentation— the annual value of the church — and how Jong vacant, see Larke v. Kyme, Kcilw. 57 b.
(6) By statute Westm. 2, (13 Edw. 1, St. 1, c. 5,) if the six months are nut past, (and the plaintiD* has tlierefore not lost his presentation,) damages are to be adjudged to the plaintiff to the half-year's value of the church, or as the expression is, to the value of a moiety of the church for a year — ad valorem medietatis ecclesia per annuoi.
4C9
1830.
Bishop of
Exeter
and another
V.
Gully and others.
470
1850.
Bishop of
Exeter
rikI another
V.
Gully and others.
CASES IN THE KING S BENCH,
was fraudulent, and void in law as against purchasen, as stated in the plea of the defendant Dotolingf and that there- fore the Court below ought to have given judgment for Dowling non obstante veredicto {a).
Sixthly: That judgment ought to have been given for the defendant below.
Seventhly : That before the making of the said count or declaration, in the form contained in the said record, in Easter term, 7 Geo. 4, the plaintiffs below counted and de- clared against the defendants below, on the same writ in the plea aforesaid, in another and different form, and upon ano- ther and different title to present to the said church, from the form or title set forth in the count or declaration contained in the record now before the Court, as appears by the court rolls of that term, now remaining of record in the Court of the Bench ; to which count or declaration so contained in the said court rolls, other and different pleas were pleaded than those contained in the record now before the Court ; and that such other proceedings were had on the said pleas so pleaded to the first count or declaration in the Court of Common Pleas, that afterwards, in Hilary term, various issues in fact to be tried by the country and by the record respectively, and also an issue in law on a demurrer to the replication to one of the said last-mentioned pleas, were joined, as appears by the issue-rolls of that term remain- ing of record in the Court of C. P.; that to try the said last-mentioned issues, a venire issued; that a record of nisi prius was made in the same suit, in order to try the said last- mentioned issues; and that afterwards, on the 21st day of March, at the Castle of Exeter, in the said county, a jury was sworn to try the said last- mentioned issues, but before they had given their verdict, the plaintiffs below being solemnly
(a) As the replication does not confess the plea, it would seem that there could be no judgment non obstante veredicto, and that sup- loosing the issue taken by the repli-
cation to be improper, and Dot cured by verdict, the Coart below ought to have merely aw&rded a repleader; Phmerw, RotSy 1 Marsb. 95; 6 Taunt. 386; on/e, 392, (a).
HILARY T£RM, X GEO. IV.
cilledcame not, and were nonsuited at that trial| upon the nisi prius record; which nonsuit was duly entered; and although anoosuit in quare impedit is by law final, yet by a certain rule of the Court of Common Pleas made in Easter term« 1828, it was erroneously ordered by that Court, that the defendants below should shew cause why the nonsuit entered on the trial of the said cause should not be set aside, and a new trial had between the parties ; that afterwards, in Trinity term, 8 Geo. 4, by a certain other rule of the Court of C. P., on reading the former rule and hearing counsel, it was errone- ously ordered by the same Court, that the nonsuit should be set aside, and a new trial had between the parties; that the said rules did not appear to have been granted on the ground of any irregularity, misconduct, or mistake, or on aoy affidavit, but on reading the said record of nisi prius and hearing counsel only, as will appear by the said rules when certified to the Court here; that after it had been so ordered by the Court of C. P., that a new trial should be had between the parties, by a certain other rule of the same Court, made on the '22d day of November, in Michaelmas term, 8 Geo. 4, it was ordered, that the defendants should, on the second day of Hilary term then next, shew cause why all the pleas in the record should not be struck out, except those which referred to the deed of the 29th April, 1672, or why the plaintiffs should not be at liberty to amend their declaration in the said cause; that the rule was eu- lafged, and that it was erroneously ordered by the Court of C. P. that the rule for pleading several matters obtained in 3Iicbaelmas term, 7 Geo. 4, should be vacated, or that the plaintiff should be at liberty to amend the declaration as the Court should direct, upon payment of certain costs (a) ; that the said last-mentioned rules do not appear to have been granted for any irregularity, misconduct or mistake, but only on the supposed grounds therein mentioned, and which will appear by the same rules and affidavits, when certified to the Court here ; that by another rule of the said
(o) Vide 4 Bingh. 5^5, and 2 Moore & Pa^ne, 105.
471
1830.
Bishop of
Exeter
and another
V.
Gully and others.
472
1830.
Bishop of
Exeter
and another
V.
Gully and others.
CAS£S IX TH£ KINGS BENCH,
Court of C. p. made in the said cause, it was ordered that the two last-mentioned rules should be discharged^ and that without payment of costs.
Eighthly : That by another rule of C. P., it was errone- ously ordered, that the defendants below should shew cause why the plaintiffs below should not have leave to amend their declaration, according to several amendments thereof mentioned in the said rule of 1st May, upon payment of certain costs. And by a certain other rule of the Court of C. P., made on the 12th of May, 9 Geo, 4, it was errone- ously ordered, that the plaintiffs should be at liberty to amend their declaration, as the Court should order and direct, upon payment of certain costs; and that if the said G. P. Dowlifig should be minded and desirous to resign, tod would actually resign to the plaintiffs below, and aban- don all his right, title and interest to the rectory, and would consent to the plaintiffs below signing judgment, the plain- tiffs below should pay to the defendants below, all their costs of and occasioned by their defence, the said G. P. Dowling having until the last day of that term, to signify to the Court of C. P. his assent thereto or dissent therefrom.
Ninthly: That by a certain other rule of the Court of C. P., made the gth of May, 9 Geo. 4, it was erroneously ordered, that the plaintiffs below should have leave to amend their declaration, according to certain amendments thereof mentioned in the rules, upon payment of certain costs; and that a rule for the defendants below to plead to such decla- ration, when amended, should be given ; by and under the authority of which erroneous rules, or some or one of them, the plaintiffs below were permitted by the Court of C. P. to amend, alter, and depart from their said first count or declaration, and to count or declare, and did count or de- clare in the form contained in the said record now before the Court here ; and after the declaration was so amended, the same in the said amended form was entered of record in I the said Court of C. P. i
Tenthly: That after the plaintiffs below had declared as|
HILARY TERM, X GEO. IV.
hst aforesaid, it was erroneously ordered by the Court of C. P. that the defendants below should plead to such amended declaration on or before the 23d of May, in the ninth year aforesaid.
Eleventhly : That it was ordered that the plaintiffs below should shew cause why the defendants below. should not ha?e leave to plead to the amended declaration, the several matters specified in the rule; that on the 17th of June, it was ordered that the said G. P. Dowling should, within three days, elect whether he would plead to the amended declara* tion, that the deed of the 2gth April, 1672, was fraudulent against subsequent purchasers, and a plea of non concessit as to that deed only, — or plead some other single plea alone to the amended declaration; and that he should, within three days, plead either those two pleas, or such other one single plea, as he should elect; and the said rule, as to all the other pleas therein specified ' was discharged {a) ; that the said G. P. Dowling, under the authority of the Court of C. P., and of such rule, and in order to prevent judgment being signed, or incurring contempt by repleading the same pleas, was compelled to plead, and did plead the two pleas con- tained in the record now before the Court only (6).
473
1830.
Bishop of
Exeter
and another
V. GULI.Y
and others.
(o) The collateral matters here alleged not being stated in the re- torn to the writ of error, the plain* ti& in error made several appli- cations to this Court and to the Coart of Chancery, a statement of »hich applications will be found pott, 499, 501, 502.
{h) The marginal points submit- ted to the Court by the plaintiffs io error, were these:
First: That in case of parceners entitled to an advowson in gross, and being married women, disa- greemeot between them to present io the first set of turns, and pre- .lentatioD by the eldest and her Husband in her right in the first
turn of that set, is not sufficient to sever the inheritance of the advow- son, so as to entitle an assignee claiming under the youngest par- cener to present separately in the second set of turns, without any disagreement to present jointly in ihat set, or any partition, compon^ tioriy or agreement between the parceners, or their assigns, to pre- sent by turns. Vide Mallory Quart Impedit,7U pl« ly ^; ib. 7S; Anon, Co. Litt. 166, n. 13.
Secondly : That mere disagree- ment between the husbands of the parceners and their wives, to pre- sent jointly in the first set of turns, could not sever the inheritance of
474
1830.
Bishop of
Exeter
and another
o.
GCLLY
and others.
CASES IN THE KINGS BENCH,
Twelfthly: That the several rules for amending the declft' ration and pleading de novo, amounted in law to the order-
the wives, the latter not being sai juris at the timey — and chat nothing but partiiion could effect such severance, which, if it had been made, ought to have been stated in the declaration; and that the im- perfect allegation, " that the said Francu ItaaCf and Grace his wife, died so seised of the same one fourth part of the said Grace of the said advowson,'' cannot help the declaration. (5 Bingh. 173; 8 Moore & P. 376.)
Thirdly: That no presentation subsequent to that by the eldest parcener and her husband appear* ing to have been made by right, and all the subsequent ones ap- pearing to have been made by strangers, such presentations must be taken to have been made by usurpation^ — which deprived the plaintiffs below of this possessory remedy by quare impedit, whatever they may have by writ of right of advowson.
Fourthly: lliat the declaration professing to state, that by the deed-poll of the 37th April, 1672, Robert Isaac, in consideration of the sum of 20s. and for service done, and other considerations, granted to Lewis Slevings the same purparty or fourth part of the ad- vowson in fee, and that deed on the oyer appearing to be a grant by Robert Isaac, as patron of the church, for that same sum and those same considerations, of the fee of the whole advowson, the deed does not support the title as set out in the declaration, and the defendant is entitled to judgment on the plea of non concessit.
Fifthly: That the deed of the 29th April, 1673, is on tlie faoeof it fraudulent in law and void hj the statute of Eliz^ (the conside- ration of 20s. being merely noni- na/, and the service not appareotlj done on any contract,) and that do evidence could be admitted to- contradict or explain the deed or the consideration of it, as expressed in the instrument; and that the defendant is therefore entitled to judgment non obstante veredicto on tlie special plea.
Sixthly : That the plea of in ndio est erratum to an assignment of errors out of the body of the re* cord, is a confession of the matters assigned for error, and operates as a demurrer to their legal efficac/, as in the case of an assignmeat of error in fact; and that the Coart of Common Pleas could not legally grant a new trial, and afterwards alter the record, so as to prevent the trial of issues originally joined, without objection either at com- mon law or by any of the statutes of amendment, and that the roles granted in the present case amount- ed to an improper granting of are- pleader.
The points submitted to the Court by the defendants in error were these:
First : The defendants in error mean to insist that a severance of the estate in coparcenary in an advowson, is the necessary conse- quence of disagreement in presen- tation, in whatever way that dis- agreement may have arisen, or by whatever acts it may have been ma- nifested. A severance ouce made
HILARY TERM, X GEO. IV.
tng of a repleader, in a case where the awarding of a re- pleader was altogether unauthorized by law.
bj parties having the right at the time, must go on; othenvise the mt will be prejudiced, as also the party preseotiDg in the first turn, or her representatives ultimately.
Secondly: That the act of the husband and wife, seised in right of the wife, binds the wife and her heirs until disagreement to such act.
Thirdly : That since the statute of 7 Aim, c 18, an usurpation is no bar to a quare impedit.
Fourthly : That the plaintiff was bound to plead the deed according to its l^al effect, anie^ 451, (e); and that the legal effect of a deed, professing to grant the entirety in consideration of a sum of money, executed by a party who has only one-fourth, is, to pass to the ven- dee all that the vendor had in the entirety, viz. one fourth; so that a deed purporting to be a grant of on advowson generally^ eiecuted by a party who appears by the plead* ings to be seised ofapurparty only, enores and is truly pleaded as a grant of that purparty.
Fifthly: It having been found opon the issue, by the verdict upon that record, that Robert Itaac granted for the considerations ex- pressed in the deed, and those con- siderations being valuable in point of law, the grant could not be defeated by a subsequent convey- ance in consideration of marriage.
Sixthly: That a plea of in nuUo est erratum, even in ordinary cases, only admits such matters of fact as ne properly pleaded; but in this particular case, where in nutlo est erratum was not pleaded until after
the alleged erroneous matter of fact bad been disproved by the non return to the writs of certiorari, the plea of in nullo est erratum would not amount to an admission of the truth in fact of the matters so alleged and not verified.
The Court of C. P. had a right to regulate the course of its own proceedings, and to set aside an improper nonsuit, if it saw it to be reasonable so to do. Such non- suit, when set aside, is no nonsuit within the statute of Westm. 2, (13 Edw. 1, St. 1,) cap. 5, but has become an absolute nullity.
Seventhly: That the sixth and subsequent assignments of error relate to matters not assignable for error.
Eighthly: That the matters so assigned for error form no part of the record.
Ninthly : That the sixth and sub- sequent supposed errors relate to matters of practice not cognizable by any other authority than that of the Court in which they arise.
Tenthly: That supposing these matteis of practice were cognizable in this Court, the several matters alleged as error were perfectly war- ranted by the course and practice of all the superior Courts.
Eleventhly: That supposing the proceedings in the Court of C. P. had been irregular, such irregula- rity would have been waived by the plaintiffs in error joining issue and going to trial upon the substi- tuted record.
Twelfthly : That supposing no effectual disagreement and nu se- verance to have taken place, before
475
1830.
Bishop of
Exeter
and another
V.
Gully and others.
V.
Gully
and others
476 CASES IN THE KING's BENCH,
1830. Tbirteenthly: That the said rules do not, nor do any of
^'^''^'^^^ them, authorize any amendment or alteration in or from the Exeter court rolls, or issue rolls, or nisi prius record, or any rolls and another or record of proceedings in the said cause; nor were any such amendments or alterations authorized by law^ especially after the cause had been once tried on the said issues in fact, and the new trial ordered, which could only be of the same issues of fact before joined and carried down to the said assizes for trial, and contained in the said nisi prius record.
Fourteenthly: That the jury on the last trial gave no ver- dict, nor has the Court of C. P. given any judgment, upon the several issues originally joined between the said parties, and contained in the said court rolls, issue rolls, and record of nisi prius, whereon the said first trial was so bad as aforesaid (a). All which before-mentioned rolls, record of
the conveyance from Robert Isaac to Lewit Slevings, on the 27th April, 1672, that conveyance would enure as a severance of one-fourth part of the coparcenary estate, and the subsequent presentation of Ed- ward Chichester in rif^ht of Robert Isaac\ turn, and the following pre- sentations of three clerks in the turns of the three remaining copar- ceners, would vest the right to the next turn in the party claiming under Lewis Stevings, as tenant in common of the advowson with the three remaining coparceners.
(a) The last eight assignments of error appear to be quite a novel ex- periment, and to admit of several answers :—
First: That these rolls' &c. nei- ther are nor can be parcel of the record: That the chief justice and the officers of C. P., to whom the writ of certiorari is prayed to be directed, have no power to certify the matters which they would by
such writ be required to certify; as the former pleadings and the fonner postea are no longer in the legal custody of those persons, and these matters have no legal exist- ence, or they may be taken to be proceedings in another cause be- tween the same parties; Tysonn V. Uiflyardy 2 Lord Raym. im: That nothing can be certified which will not stand with the record fine returned by the Court below, in obedience to ^the writ of error; Lloyd V, Bethelly 1 Roll. Rep. 200; FUnfd V. Bethell, 1 RoU. Abr. 764, 1. 22, S. C. (translated, 9 Vin. Abr. 552); Com. Dig. tit. Pleader, (3 B 16).
Secondly : That the Court of C. P. had full authority to make the several rules and orders com- plained of.
Tliirdly: That the power of ibe Court of C. P. to make such rules and orders must depend upoo the practice and course of that court,
HILARY TERM, X GEO. IV.
nisi prius, writs, panels, posteas, entry of nonsuit, rules, orders, a£Bdavits and proceedings, above mentioned, will appear to the Court here, when duly certified to the said Court.
And hereupon the said G. P. Dowling prays the writ of our lord the king to be directed to the Right Hon. Sir William Draper Best, Knt., his majesty's chief justice of the Bench at Westminster, to certify to our said lord the king the said court rolls, and issue rolls, now remaining of record in the same Court, before the said chief justice and his companions, justices of the Bench aforesaid, and also to certify to our said lord the king the said record of nisi prius, with the postea» or entry of the said nonsuit, thereon, men- tioned in the said rule of the said Court of the Bench, made in Easter term, in the eighth year of the reign aforesaid, together with the writ of venire facias and writs of habeas corpora jurat orum, and panels of jurors annexed thereto, and the entry or minute of the said nonsuit, and all other things belonging to the laid last-mentioned record, and the proceedings had thereupon, or otherwise relating to the matters aforesaid, above assigned for error, in his custody or power: and also another writ of our said lord the king, to be directed to George Watlingion, Esquire, H. JB. Raj/,
477
1830.
Bishop of
Exeter
and another
V.
Gully and others.
of which the Coartof King's Bench, as a court of error, has no judicial knowledge, every Court being enti- tled to regulate its own practice.
Fourthly : That it is not compe- tent to the defendant below to join issue^ go down to trial, and take the chance of a verdict, and then say that such issues ought not to have been tried: That by so doing be has assented to all d)at has been done, and consensus tollit errorem, if error there had been: That though a defendant in «rror, by pleading in nullo est erra- tum, admits the facts assigned for
error, provided they are not incon- sistent with the record, yet where errors are assigned, which are not by law assignable, the defendant in error may either demur to the errors so improperly assigned, and plead in nullo est erratum to the other errors, or may plead in nullo est erratum to the whole, which plea is in the nature of a demur- rer, and refers the matter to the judgment of the Court; Hudson v. Banks, Cro . Jac. 28 ; Binvsse v. Car^ rington, ib.244; Hay don v. Mynn, ib. 521 ; King v. Cosher, Yelv. 58; Cole V. Greene, 1 Lev. 311.
478
1830.
Bishop of
Exeter
and another
V,
Gully and others.
CASES IN THE KING S BENCH,
Esquire, and Thomas Hudson, Esquire, prothonotaries of the said Court of the Bench, and to George Griffiiht, Esquire, Jonathan Hewlett, Esquire, and John Henry Can* cellor, Esquire, secondaries of the said Court of the Bench, to certify to our said lord the king the said several rules, and all other rules and orders of the said Court of the Bench in the said cause, and touching or in anywise relating to all or any of the matters aforesaid above assigned for error, together with all aflBdavits and things relating thereto, affiled of record, in the custody or power of them, or any of them, ^nd such writs respectively are granted to the said G. P. Dowling, &c.(a).
And he prays that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings aforesaid, may be reversed, annulled, and altogether held for nothing, and that he may be restored to all things which he hath lost by occasion of the said judgment, and that a writ to the bishop may be granted to him, &c.
E. Lawes, Serjt., for the plaintiffs in error.- Neither the presentation by Grace Westcott, in J 674, nor the presenta- tion by Sir Nicholas Hooper, in 1714, are connected by the declaration with the title set up by the plamtiffs below.
The second plea states that the presentation by Sir N. Hooper was made in right of R. Isaac's daughter, or in right of R. Isaac himself, through some right derived from him under the execution of the fraudulent deed of l67S. And that statement not being traversed, the plaintiffs below must be taken to have admitted that this was the true cha- racter of that presentation. It was therefore adverse to the title of Stevings, and a usurpation upon him, supposing him to have been then entitled under the deed of l672{b). This
(a) These writs were taken out in the usual course sub silentio, but the plaintiffs in error were un- able to get any return to them. Vide post, 501.
(6) The plaintiffs below had no opportunity of trarersing this state- ment. To do so, they must citlier have replied double, or have ad- mitted the allegation that the deed
HILART T£RM, X GEO. IV.
is a possessory actioD, as appears by the statute of West- minster 2 {a), which recites, that of advowsons of churches there are but three original writs^ one of right and two of possession, viz. darrein presentment and quare impedit. Though the action is brought in respect of a possessory interest only, yet the plaintiff is bound to shew a title to the advowson, or to that turn of the advowson which he claims (6). A declaration on a right to present by turns to an advowson in gross, must shew a presentation in that turn in which he claims, where that is possible ; and also, in such a case as this, the conveyances &c. constituting the title to present in the other turns, must be shewn as at common law. This appears from the language of Lord Hobart in Digby v. Fitiherbert (c\ Lord Chief Justice Vaughan in Tufton v. Temple {d). Lord Loughborough in Thrale ▼. The Bishop of London (e), and also from Watson^ s Clergyman^s Law^ 245, 267» which is most full in shewing the sort of title which a plaintiff in quare impedit is bound to disclose upon the record. The plaintiff must possess the same estate, — it must be the same estate, or parcel of the same estate, — in respect whereof the presentation was made.
The distinction between a defective title and a title defec- tively set out is admitted (J^. Here, however, the declaration is bad in substance, because it sets out a title which is equally defective, whether the inheritance be taken to be divided or not, by the non-agreement of the coparceners in the first turn. For assuming that the tenure in copar- cenary was severed by the non-agreement, the declara- tion is insufficient, in not alleging any presentation by right, by those under whom the plaintiff derives title in the fourth
479
of 167S was fraudulent. The title set out in the second plea was merely in the nature of a tuggek- tkmj for the purpose of entitling ibe defendant, G. P. Dcwling^ to a writ to tLe bishop, in case one of
1830.
Bishop of
Exeter
iind another
V.
Gully and others.
(a) IS Edw. 1, Stat. 1, c. 5.
(6) Com. Dig. Pleader, (3 I 4).
(c) Hob. 101.
Id) Vaugh. r & 8.
(e) 1 H. Bla. 409.
(/) Vide Cromkr v. Oldjkld,
the issues had been found for him. 1 Salk. 365^ 2 Lord Rayni. 1225.
480
1830.
Bishop of
Exeter
and another
V.
Gully and others.
CASES IN THE KINGS BENCH,
turn in which he claims, or any conveyance or descent under which any of the six previous presentations were made. In Shireburne v. Hitch {a), the plaintiff claimed the second turn, but in his declaration did not lay any pre- sentation in the second turn. He also admitted a tide in the defendant to the first turn, but did not set out the mesne conveyances to the defendant. The declaration in that case, (the decision in which gave rise to the statute of Anfie{b)t) was held to be insufficient, because it set up a title to present in the second turn, and shewed no presen- tation in that turn. [Parke J. That case is distinguish- able from the present, on two grounds: no presentation by the ancestor was alleged, nor a presentation by any person who claimed title to the advowson in such a way as that the Court could take notice of it. The declaration averred a presentation by a person whose title was not shewn. No seisin by actual presentation was alleged. Here, both are found ; the common ancestor is stated to have presented, (which presentation is analogous to seisin by taking the esplees in a real action,) and after the non-agreement the first coparcener presented.] The ground of the decision in Shire- burne v. Hitch was stated to be, that the declaration con- tained no allegation that any person entitled to the advow- son had presented. But seisin .of the manor is equivalent to a presentation. [Bayley, J. Seisin of the manor, without actual presentation, would not be sufficient.] Seisin of an advowson appendant to a manor may be gained by obtain- ing seisin of the manor; but an advowson in gross, as here, cannot be acquired without that which is an actual seisiiii viz., presentation ; per Lord Hardwicke, in Rex v. Bishop of Landaffic). In Hargrove's note to Co. Liit. 15 b, it is said, that seisin of a manor is a good seisin of an advowson, common, &c. IBayley, J. If appendant or appurtenant.] The Year Book, 18 Hen. 6, and Hale's MSS. are there re- ferred to; and in Watson, 130, it is said, that an advowson
(a) 1 Bro. Pari. Ca. 2d edit. J10;pat^, 481, 489,493.
(6) 7 Ann. cap. 13. (c) 2 Stra. 1012.
HILARY TERM, X GEO. IV.
may be regained, after usurpation, by re-entry into the land to which it is appendant. There can be no possessio fra- trisof aa advowson in gross. In Shireburne v. Hitch (a), although no presentation was alleged to the whole advow- son, it was stated that 1{. N. and his wife were seised of the manor and advowson to which &c. ; and that was equiva- lent to the statement of R. Roberts % presentation in this case. Secondly, in that case paHilion was alleged. But though the advowson became an advowson in gross, that was held not sufficient to create a severance of the inherit- ance. . Thirdly, presentation in the first turn was alleged, and that a presentation by right. Here, there is no such allegation. In that case it did not appear that any op- portunity had occurred of presenting in the second turn, which turn the plaintiff claimed. Here, an opportunity had occurred, to present in the fourth turn. . Independently of the decision in Shireburne v. Hitch, this declaration would have' been bad for want of an allegation of seisin ; for a presentation, in a case of an advowson in gross, is as essen- tia! as possession is in an action of trespass, since, in the case of an advowson in gross, there can be no seisin or possession, but by presentation. Rex v. Bishop of Lan- ^ff{b) shews, that the want of an allegation of a presen- tation is error, unless the plaintiff declare on the seisin of the crown (c). Here, the several presentations alleged negative any presentation in the right of the plaintiffs below in the fourth turn, and shew that «7. Stevings and his devi- sees could acquire no seisin. [Bayley, J. Put it as seven usurpations — what then ?] The usurpations before the sta- tute are not cured. \^Bayiey, J. These would be usurpations on parceners. If there be four parceners, and a stranger presents in the third turn, that does not affect the right of the fourth parcener to present when his turn arrives; Thrale
(a) 1 Bro.P. C. 2d ed. 110. (6) 2 Stra. 1006, 1012; 5,C. 2 Barnard. B. R. 72, 189, 371. (c) As to the effect of the pre- VOL. v.
481
1830.
Bishop of
Exeter
and another
r.
GuLi.Y
and others.
sumption in farour of the crown, in giving to the crown in that very case a title whicli it never possess- ed, vide ante, vol.i. 286, n.
1 I
482
1830.
Bishop of
Exeter
and another
Gully
and othen.
CASES IN THE KING S BENCH,
V. Bishop of London (a).] The declaration is bad, inasmuch
aa these presentations must be taken to have been made
by usurpation, and thus to have creatdd a seisin io the
usurper. IBayle^f J. referred to 2 Inst. 365 (6), and
2 Roll. Abr. 346, (G),(c).] The 7 Anne, c. 18, was passed
to obviate the inconvenience of requiring, an allegation of
title, and may be considered as a legislative recognitian of
the authority of Shirebume v. Hitch. By that statute it
is enacted, '' that no usurpation upon any avoidance in
any church, shall displace the estate of any person entitled
to the advowson or patronage thereof, or turn it to a right,
but he or she that would Jiave had a right if no usurpation
had been, may present^ or maintain his or herquare iropedit,
.upon the next or any other avoidance; and if coparcenen,
joint-tenants, or tenants in common be seised of any estate
of inheritance in the advowson of any church, &c., or other
ecclesiastical promotion, and a partition is or shall be made
between them to present by turns^ every one shall be taken
and adjudged to be seised of his or her separate part of the
advowson, to present in his or her turn; as if there be
two and they make such p^rtition^ each shall be said to be
seised, the one of the one moiety to present in the first
turn, the other of the other moiety to present in the second
turn ; in like manner if there be three, four, or more^ everj
one shall be said to be seised of his or her part, and lo
.present in his or her turn/' As the plaintiflFs have not the
•estate of ii« Roberts, his presentation, on the death of his
clerk, ceased to operate. Supposing the possession to have
been severed for the first set of turns, it cannot be inferred
that the parceners did not agree afterwards to present
jointly. IBayley, J. No joint presentation took place in the
Jifth turn. Lord Tenterden, C.J. Is there any autfaonty in
the books for saying, that after a disagreement and severance
the parceners may present jointly.] Upon all the authorities
it is necessary to state disagreement for each set of turns.
Translated, 17 Vin. Abr.
(ft) I H. Dla. 37G. (6) Post, 4«7.
(0. 395.
and others.
HILARY TERM, X GEO. IV. 483
Supposing that JoAn StevingSf or bis grantee, were entitled, i830. be might have presented in the fourth turn, and the plaintiff ^T^''^^^. might have claimed the title by it; Countess of ^orthum* Exetea berland's case (a). This was not done, and John Stevifigs *"<^ another had no actual seisin, but a mere right (b). He could not Gully therefore devUe it; for a mere right cannot be the subject of conveyance, or pass by will; but it descends, and the tirle is to be madcf under the heir at law; per Lord Eldon, in Attorney-General v. Bishop of Litchfield {c). [Bayley, J. Then where there has been one usurpation upon a single pre^ seotation, the patron cannot afterwards convey his interest. The statute of Jlnne says, that no usurpation shall displace the estate, or turn it tq a right. Littledale, J. In Co* Lit. 166 b, it is said, " If there be divers coparceners of an ad-» vowson, and they cannot agree to present, the law doth give the first presentation to the eldest; and the privilege shall descend to her issue; nay, her assignee (d) shall have it."] A party cannot convey a mere chose in action; Goodright V. Forrester {e). . [Bayley, J. In Barker v. Bishop of Lon^ don{f) there was a usurpation upon the first avoidance, the third daughter devised, and the devisee presented {g) : — that was an advowson in gross.] Doe d. Lidgbird v. Lawson{h). There it was decided, on the authority of previous cases, that an advowson would not descend in a new family with- out a seisin, and the 3 H. 7, fo. 5, pi. 19, was referred to, as shewing that there could be no possessio fratris. [Bayley, J. There must be a taking of the esplees. One coparcener cannot know what is done with the others* shares, and therefore cannot know whether the presenta- tions are rightful or wrongful.] That was urged in Sher^ home V. Hitch. [Lord Tetderden^ C. J. There it was not
(fl) 5 Co. Rep. 98. (h) i. e. a right of act ion, (c) 5 Ves. 831.
(<0 Vide Butter r. BiMliop of heUr, 1 Vez. sen. 340. if) 8 East, 552. C0Willes,69d; I H. Bin. 412.
(g) But the devisee who pre- sented, (or mther who recovered in that quare impedit,) was enti- tled also to the second turn by descent,
{h)AntejV\l \H, Doe (i, Lidgbird V. Besty 8 Barn. & Cressw. C06.
I I 2
484
18S0.
Bishop of
Exeter
and another
V.
Gully
and others.
CASES IN THE KING S BENCH,
shewn bow the presentation was made; a coparcener would know that she had no right to present until her turn came; she would know how the right originally vested, but she cannot be required to know how the presentations were made in the other turns. Lex neminem cogit ad impossi- bilia.] The coparceners are privies in estate. [Baylet/f J. One coparcener does not claim under the others (a).]
The second objection is, that the declaration does uot state any conveyances by which any presentation, subse- quent to that of the eldest coparcener in the first turawas made, or even that the subsequent presentations were made by title at all. To entitle the plaintiffs below to avail them- selves of the provisions of 7 Ann. c. 18, it would be neces- sary to shew seisin; Birch v. Bishop of Litchjield{b). And if the declaration be not upon the statute, it must be framed agreeably to the principle of the common law. All the pre- cedents deduce a title to each turn. Tufion v. Tempkic), Thrale v. Bishop of London (d), Barker v. Bishop of iow- don{e)f Birch v. Bishop of Litchfield(f). This is ne- cessary upon two grounds; the plaintiffs below are privies in estate with the parties entitled in the preceding turns; and it was necessary to negative usurpation before the statute of Anne\ secondly, the present claim is in the second round of turns, and the declaration, instead of pur- suing the form given by the statute, shews two such usurp- ations without any subsequent presentation; and thirdly, the mere fact of presentation, without shewing in what right, is a matter wholly indifferent, as, for any thing that appears, it may be founded upon a title in the defendants (g).
But supposing non-agreement to present jointly to enure as a composition to present by tunis, a third objection to the declaration is, that the presentations in the second and
(a) Sed vide Doe d. Strode v. Seatotif 4 Nev. & Mann. 81, as to claiming through^ but not under,
(6) 3 Bos. & Pul. 444.
(f ) Vaugli. 7 & 8.
(J) 1 II. Bla. 376. (e) Ibid. 412; WiUes, 659. (/) 3 Bos. & Poll. 444. (g) Hob. 109; Mallory, Q. I. 200; Vaughan, 57, & P.
HILARY TERM, X GEO. IV.
third turns being usurpations/all the parceners were put out of possession. [Lord Tenterden, C. J. The allegation is, that the presentations were '' as in the second and third tuni8."J It is like shewing possession in another in trespass; Anon. £ Ventr. ^9; Watson, 1^24; Degge, I9. Composi- tion would not have severed the estate; Fitz. Abr. 54, pi. 196; ib. tU. Darrein Presentment, pi. 11. Usurpation on a grantee of the first of two avoidances is a usurpation of the second, and reduces it to a riglit of action; Ellis v. Taylor {ay^ and on tenants in common, turns their right of entiy to a right of action ; Co. LUt. 1 98 a. At common law, usuqmtion operates more strongly upon the seisin of an ad- vowson, than disseisin upon the seisin of land. The provi- sions of 7 Annej c. 1 8, are not retrospective, and do not affect usurpations then exuting; Duke of Dorset v. Sir Thomas Wiison{b). These usurpations prevented any subsequent title being acquired by purchase from John Sievings; Wat* urn, 125, 129; as there can be no conveyance of the pos- sessory right after a usurpation; Leak v. Bishop of Coven^ try{c). After a usurpation the fee is in the usurper, and any conveyance must be pleaded as a grant of the right. In qoare impedit, a presentation by usurpation is a sufficient title; 16 H. 7, B{d); Show. P. C. 213. If the declaration is good, the plea is good. [Lord Tenterden^ C. J. But the plea is found against you. Parke, J. Have you any autho- rity to shew that the right of presenting in the subsequent turns does not go on, notwithstanding a usurpation upon a prior turn?] Co. Lilt, 18 a(e). [Liitledale, J. It stands
485
1830.
Bishop of
Exeter
and another
V.
Gully
and olbifrs.
(a) 3 Roll. Abr. 373, pi. 11; translated 17 Vin. Abr. 405.
(h) Cited 5 Ves. 828.
(c) Cro. £1. 811. But in that C2$e it wai held, that a usurpation upon one tenant in common .should not prejodice his companion ; as ^iost wtiom this was to be con- ^densd as a nerving of the turn, altlmugh it was not and could not
be alleged that the presentation was in right of the turn ; Sir Wii- liam Etvit V. The Archbishop of York, Hob. 322.
(d) Margaret, Countest of Rich- mond V. The Bean of WintUor, T. 16 H. 7, fo.7, 8, pi. IJ.
(e) " But if there be two copar- ceners, and they agree to present hy turn, each ut' thero \n truth has
and otlien.
486 CAS£S IN THE KING*8 BE^CH,
18S0. Upon the same ground as if, instead of a disagreement to ^y'^^P present, there had been a partition of the advowwn.] Exeter Bishop of Salisbury v. Phillips (a) was the case of an agree- nnd mioth^r ^^^^ j^ present by turns. [Bayley, J. In ^ Just. 364, dis- Gully agreement to present jointly is put upon the same footing as an agreement to present by turns. Have you any autho- rity that where three coparceners agree to present by turns, usurpation upon one turn shall be deemed usurpation upon the subsequent turns ?] Here, the plaintiffs are not copar- ceners. [Bay ley, J. They are assigns of a coparcener.]
The fourth objection is, tliat the declaration does not allege any non-agreement to present jointly upon the. first vacancy occurring in the second round of turns, and present- ation by the eldest sister in the first turn of that round, could not afiiect the subsequent turns in that round, or sever the inheritance of coparceners who were not sui juris. The allegation that Francis Isaac, and Grace his wife, died so sei^eAofthesame one fourth part of the said Grau of the advowson, is bad even aft^r verdict. The authority of the dictum in Keilw, 49, to the contrary, has been since disputed. Co. Litt. 166 n. £. An advowsoh is entire. lb. 164 b, 169 a; Mirror, 107; « Boll. Abr. Partition, (B), pi. I (6); ^ Inst. 365 'j Corbet's c^e{c); Harris v. Nichols (d). [ffciy- ley, J. It was not necessary to prove non-agreement.]
Then as to the principal question. The deed must fail on the face of it: This is ^ voluntary deed. [Lord Tenter- den, C.J. The jury have found that the deed was not fraudu- lent.] Upon this plea, as it is framed, the allegation of fraud and covin raised a question of law only ; White v. Hussey{e), Doe d. Ottley v. Manmng{f)^ Pulveriqfi v. Pul-
but a moiety of the church; but (a) 1 Salk. 43; Carih. 505.
for that there is but one incumbent, (b) Translated, 16 Vin. Abr. 19-
if either of them be disturbed, she (c) 1 Co. Rep. 87.
shall have a qunre impedit &c. (d) 1 Anders. 63, cited, Cro.
prffisentare idoneam personam ad Eliz. 19.
ecclesiam; for that ihere is but one (c) Prec. in Ch. 14.
rhiirch and one incumbent." (^f) 9 East, 59.
HILARY TERM, X GEO. IV.
tutoft(a). Doe v. Rouiledge {b)^ [Bayley, J. How can it be cootended that as a point of law, '' services, — 208., — and other good and valuable considerations/' could not form a suiScient consideration for this deed of grant. It would be competent to the plaintiff to shew by evidence what those other considerations wej^.] There were no other consi- denoioni. [Bayley^ J. That should have been pleaded, Parke, J. After verdict, th^y will be presumed.] There can be no distinction ^ade between a consideration of SOi. and a consideration of 5s., both are merely nominal. [Lx)rd Tihterden, C. J. This was a conveyance of the third turn after the subsisting incumbency. Can we, at this distance of time, say, that tiie consideration for the sale of this remote isterest was n^cesMiWfy. insufficient?] The jury have only found that there was no fraud in fad* [BayUy, J. This graat would be fraudulent as against the second deed, if there were no valuable consideration.] Hill v. Bishop of Exeter {c). It was a mere question of construction. [Bayley i. In Hill v. Bishop of Exeter^ die deed pur- ported to have been given in consideration of natural love and affection; and it was adtnitted on the pleadings that there was no other consideration except those which were OD the face of the deed. That was :B good but not a valu" able consideration* JParke^ J. Here, the jury have found that there was a valuable consideration. Here, too, the coosideratioo of the conveyance is stated in the deed to be for services performed.] The services would not constitute a valuable consideration, unless they are shewn to have been such as the party was bound to pay for, [Parke, J. Sup- pose 501. to have been then dte for services. Bayley^ J. Can ve say that the master was not bound to pay his steward for bis services ?] Vernon^ case, 5th Resolution (rf).
W 18 Ves. 84.
(*) Cowp. 705. See Juckion v. Hff«, 15 Johns. (American) Rep. 263; Jackton v. Garnsey, 16 Johns. Kcp. 189. Secnlso Sterryw Arden,
1 Johns. Chanc. Rep. 261, in which the leading English cases are re- marked upon hy AV^^ C.
(c) 2 Taunt. 09.
{d) 4 Co. Rep. 3 a.
487 1830.
Bishop of
EXETRR
aad another
V.
Gully and others.
488
18S0.
Bishop of
Exeter
and another
w.
Gully and othera.
CASES IN THEKINO'S BENCH^
Then as to the errors assigned dehors the record returned here by the Court of Common Pleas. Matters contained in collateral records. are specially assigned for error. The defendant, by pleading in nullo est erratum, instead of deny- ing those records by pleading nuls tiels recordsi admits their existence, and refers it to the consideration of the court of error whether the existence of those records makes the prio- cipal record erroneous; Rex v. Andrews (a). [Bayltyyi. There the trial was without authority.] The question whe- ther the Court below was authorized, either at common law or by statute, to amend the declaration, or to strike out pleas, or to grant a new trial, after a nonsuit, was a question of law* At common law, amendments could only be made during the same term ; and though under 4 /lnn> c. 16(6), the Court has a right to grant or refuse leave to plead particular pleas, jet where leave to plead such pleas has been obtained, and issue has been joined on those pleas, the Court is functus officio under the statute, and w^ithout power to vacate that rule (c). [Lord Tenterden, C.J.I feel great pleasure io read- ing the report of the proceedings in the Court of Common Pleas id). It was a most wholesome exercise of authoritj.] But in quare impedit, the Court has no potoer to grant a new trial after a nonsuit; a nonsuit being peremptory by the statute (f). [Lord Tenterdeny C. J. So it is while it stands; and the party can bring no other action; but it does not follow that the Court may not, as in the case of a verdid, in furtherance of justice, set aside the nonsuit, and grant a new trial.]
(fl) Yelv. 57.
(6) Sect. 4.
(r) As to the jurisdiction of the Courts over the costs of such pleas, where some are found for the plaintitT and some for the defend- ant, vide Spencer v. Hamerton, 6 Nev. & Mnnn. ^^. That the judge at nisi prius, where one issue, which decides the whole action.
has been found, may, of his own authority and independentlj of an/ consent of parties, discbarge tl* jury from inquiring into the other issues, vide ibid. 95 (a), 36.
(rf) Gulfy V. Bhhop of EitUr and DowUngj 4 Bingh. 5^; ^ Moore & Payne, 105, S. C
(e) Westm.2,(l3£rf«'.l,st.1,)
c. 5.
.HILARY TERMi X GEO. IV. Mannwgf contrd, was stopped by the Court (n).
Lord Tenter DBN| C.J. — I am clearly of opinion. that this judgment ought to be affirmed. I believe this to be the first .time in which a court of error has been asked to reverse a judgment, on the ground that the Court below has made rules which ought not to have been made. It is competent to every superior Court to grant a rule for a new trial. Whether in this particular case ^uch a rule was granted on sufficient grounds or not, is a matter into which we cannot inquire. It must be assumed that sufficient grounds were laid before the Court of Common Pleas for granting a new trial. So with respect to the rules for amend- ing the declaration, and for vacating the rule to plead seve- ral matters, and imposing upon the defendant the terms of not pleading more than two pleas (6). The course adopted hy the Court of Common Pleas, has given me very great satisfaction. The defendants below had pleaded thirty pleas, which were quite beside the merits of the case. Here, both parties claimed under Robert Isaac, and the real question between them was, whether the first or the second conveyance made by that person was valid.
In support of the objections to the declaration, it is said that the plaintiffs below did not shew a title to present in the turn now claimed, — that they ought to have shewn a presentation in that turn by themselves, or in those under whom they claim. Sliireburne v. Hitch (c) was cited in sup- port of this objection. In that case the declaration alleged no presentation by any person under whom the plaintiff claimed. Here, the declaration contains a distinct allega- tion that Richard Roberts, under whom both parties claimed, was seised and presented. That presentation by him was quite sufficient. It is impossible for the person claiming in the second turn to shew presentation in the first turn by
483
1830.
Bishop of
Exeter
and another
V. GULLT
and others.
(a) The arguments intended to Have been used fur the defendants in error, mny be collecird from the
points stated ante, 470, n., 472, n. (6) Vide pott, 499, 500, (f) Ante, 480, 481.
490 CASES IN THE KlNO*S B£NCH,
I830i himself. It is mifficient for him to shew seisin aod presen-
^^ry^^"^^ tation in a party under whom he claims. Bishop of * , . .
ExBTER Another objection, to the declaration was this^ — thatthere
aod anoUier ^^^ jj^g^ ^^ severance of the interests of the coparceners, it
Gully appearing only that the sisters did not agree to present on
the first vacancy, whereupon the eldest sister presented,
and that between that presentation in the first turn aod
the vacancy at which it would be the turn of the fourth
sister to. present, two usurpations intervened; the effect
of which was to convert the estate of the party who
claimed to present on the fourth turn, into a mere right,
and therefore a possessory ACiion vf^n no longer maintaio-
able« I do not think it necessary to inquire whether a
usurpation would, under thesa circumstances, have had that
effect, for here it does not appear that any usurpation took
place. We are not to presume a wrong. The declaration
states that one Grace WesUottfViherwurds, as in the second
turn^ which was of the said Jane Squire, on the 1 1th July,
1674, presented to the said church, so being vacant, one
Thomas fVestcott, her clerk, who, upon such presentation,
was admitted, instituted, and inducted into the same. If
that presentation was 6y vsurpation^ and tlie eflfect of such
usurpation was as contended, it was for the defendant below
to. prove the usurpation (a). The declaration then states a
presentation as in the third turn, in similar terms. With
respect to the first presentation in the fourth turn, — taking
place after the conveyance by Robert Isaac, under whom
the plaintiff claims, it is alleged that one Sir Nicholas Hoo*
per, on the 8th of November, 1714, as in the fourth turn^
which was of the said Grace Isaac, presented to the church,
so being vacant, one Edward Chichester, as his the said Sir
Nicholas Hooper's clerk, who upon such presentation was
admitted &c. Supposing that to have been. a presentation
by usurpation, yet it being after the 7 ylnne, c. 18, such
usurpation would not affect the title.
(a) To let in such evidence, would have been equally fatal to the usurpation should have been the title of G. P. Dooflingf under pleaded. But such a plea, if good, the marriage seulcment of 1692.
. HILARY T£RM, X GEO. IV.
Another objection is, that the plaintiffs below have not shewn the presentation of the other sisters^ in the first and second set of turns^ to have been made bj persons having a right to present. That objection would amount to this^ — that a party claiming the fourth turn could not recover unless those persons who presented in the second and third turns, presented by good title, although it is not to be supposed that be can have any knowledge whatever of the state of their title; and it would therefore require him to shew their title, which, according to all human probability^ he would be unable to do.
The main point in the case relates to the operation of the two deeds. The conveyance by Robert Isaac to Letvis Stevings, is in cofisideratiou of ^5. by Lewis Stevings paid, and for true and faithful service done unto Isaac, and also for divers other good and valuable causes and considera- tions. To this there are two pleas : one is, that Isaac did not grant, &c. : the second is, that twenty years afterwards, Isaac being about to marry, executed a deed of settlement, by which he conveyed the fourth turn for the benefit of his wife and children. And the plea alleges that the convey* ance by Isaac to Lewis Stevings was a fraudulent convey- ance, and void. The issues joined on both these pleas were found against the party pleading theip. But it is said that the jury only fqund that there was no fraud in fact, and that here, on the face of the conveyance, there is fraud in law; that the Court, looking at the terms of the conveyance and the considerations therein mentioned, must see that it was a voluntary conveyance, and consequently void ; that is, vie roust of necemtif see that the conveyance in 1672, of a fourth part of the advowson, — the turn of presentation not being to take effect until after three incumbencies,— was void, — that the sum of 20s., and the services performed, could not be a sufficient valuable consideration. The distinction between good and valuable consideration is this, that a good consi- deration means a consideration good as between the parties ;
491
1830.
Bishop of
Exeter
and another
V,
Gully and otberSb
492
1830.
Bishop of
Exeter
and another
V.
Gully and othera.
CASES IN THE KING 8 BENCH,
but a valuable coosideration makes the conveyance good against a subsequent purchaser. Without relying oo the words, ''other good and valuable causes and considerations/' I am not prepared to say that the sum of $0s., and tlie service performedi were not in themselves a suflScient valuable coo- sideration for a right such as this (a), which, according to the probable duration of human life, could not come to be exercised for more than half a century (//). That being so, and the jury hzvmg found that the deed was not frauduleoti I think we cannot say that it is so.
Bayley, J. — I agree that a quare impedit is a posses- sory action, and that a presentation must be shewn. Here, we have the presentation by Richard Roberts^ the common ancestor; and I think that it would have been suflScient to state the presentation made by the eldest sister, without shewing the presentation by Roberts, because if Roberts was seised in fee, but had no possession, and the advowson had descended from him to his four daughters, the presentation by the eldest would have vested the right in all (c) ; which distinguishes this case from Shireburne v. Hitch. It has
(a) Ace. per GoMtlee^ J., 5 Bingh. 175.
(Jb) The price at which W, S, GuUy, in 1814, hoaght the pre- sentation at the then next avoid- ance, was 3000/., of which 2000/. was paid down, and lOOO/. was covenanted to be paid upon the induction of the presentee of the purchaser. The church became vacant in 1825; the induction took place in 1830. Nothing of this, however, appeared on the re- cord ; for though profert was made of the deed of grant of 1814, no over was craved of it ; and though, as the pleadings originalljr stood, the defendant G. P. DowUng stated, in his 30th plea, that the
deed of 1814 was not the deed of Joseph Davict and in his 31st plea that Joseph Davie did not grant by the deed, (vide ante^ 464, n.) upon which pleas issues were joined, the plaintiflls were nonsuited before they came to that part of their case, and upon the second trial the grant from Joseph Davie to IT. & Gtdfy was admitted by the defeud- ants' pleas being restricted to the deed of 1673. All that the court of error could know on the subject of value therefore would be, that 600/. had been found hj the jury to be the annual value in 1825. Ante, 469. (c) Sed vide post, 496.
HILARY TERM, X GEO. IV.
been insisted that the right of presentation was destroyed, or its continuity interrupted, by two usurpations which took place in 16*74. In the first place, we are not at liberty to say that there has been any usurpation. When coparceners present separately, a separate right accrues to each copar- cener, in her own respective turn, and they become to a cer- tain degree strangers. The fourth coparcener may not know in what right persons have presented to the second or third turn. That is a matter with which she, who is entitled in the fourth turn only, has no concern. It cannot affect her.
I agree that the 7 Afme^ c. 18, is not retrospective; but in order to ascertain whether the presentation in 1674 was a presentation by usurpation, (and if it was so, the fact ought to have been pleaded (a),) that would displace the other coparceners, I must look to the authorities. Lord Coke sajs(6), '' By the common law, if an advowson descend to divers coparceners, if they cannot agree to present, the eldest sister shall have the first turn, and the second the second turn, et sic de caeteris, every one in turn according to seniority; and this privilege extends not only to their heirs, but to the seve- ral assignees, whether he hath (c) the estate of them by con- veyance, or by act in law, as tenant by the curtesy, he shall have the same privilege by presenting in turn as the sisters had. Therefore albeit the, coparceners do make composition to preseut by turn, this being no more than the law doth appoint, expressio eorum quae tacite insunt nihil operatur; therefore they remain coparceners of the advowson, and the inheritance of the advowson is not divided ; and notwithstand- ing the composition they may join in a quare impedit, if any itranger usurps in the turn of any of them; and the sole presentation out of her turn did not put her sister out of possession in respect of the privity of estate, no more than if one coparcener taketh the whole of the profits. If one joint-tenant present alone, this doth not put the other out of possession, in respect of the unity of the title; but the ordi-
493
1830.
Bishop of
Exeter
ftnd another
V.
Gully and others.
(a) Tide ante, 485 {n), {h) S Inst. 365. (r) i. e. the^ have.
494 CAS£S IN THE KING*S BENCH,
1830. r^ary might have refused his presentee, as he might the pre-
^^'y^^^ sentee of one tenant in cominoni in respect of some varying
Exeter opinions in old books; therefore this act doth declare the
and miother j^^^ ^^ i,^^^ j^ appeareth. This law doth extend to usurps- GuLLT tions by one coparcener upon another, as well before parti-
fin o ers. ^j^^ ^^ after." This was considered as the rule of law io Barker v. The Bishop of London (a).
Before 17099 (in which year the statute of Anne took effect,) nothing had occurred capable of affecting the right of the fourth coparcener. The vacancy in that coparcener's turn did not arise till 1714- The statute was then in full operation, and it seems clearly to apply to the present case. The language of the statute is *' that no usurpation upon auy avoidance in any church, vicarage, or other ecclesiastical promotion, shall displace the estate or interest of any person entitled to the advowson or patronage thereof, or turn it to a right ; but he or she that would have had a right if no usurpation had been, may present, or maintain his or her quare iropedit, upon the next or any other avoidance, if dis- turbed, notwithstanding such usurpation ; and if cvparcentn or joint-tenants or tenants in common be seised of any estate of inheritance in the advowson of any church &c., and a partition is or shall be made between them to present by turns, that thereupon every one shall be taken and adjudged to be seised of his or her separate part of the advowson to present in his or her turn." If, therefore, at the fourth turn, when a vacancy occurred, there was a usurpation on the turn claimed by the plaintiff, that would not displace the estate or interest, or turn it to a right, but would leave it as it was, except with reference to that turn ; and when a fourth turn again occurred, the party entitled in that turn might exercise his right of presentation. In this case the period at which that fourth. turn again occurs has now arrived. The plaintiffs below therefore have shewn a pos* session by presentation in the person under whom they
(a) VVilles, 659, and 1 H. Bla. 412.
HILARY TERM, X GEO. IV.
claim ; because although there should have been one usur- patioo upon the fourth turn, the right as to future turns was protected by the statute of Anne.
Another point made is, — that the deed-poll of 1672 is, as matter of Icno, fraudulent and void. This deed purports to be a grant in consideration of 20s. and of faithful service performed, and of divers other good and valuable causes and. considerations; and i^t/mer v. Gott(a) is an authority for saying that in such a case a party is entitled to shew, as matter of fact, the existence of other considerations besides those which are expressed in the deed. The defendant be* low pleaded that this was a fraudulent deed; and if there were no consideration for it, — if the 20i. was not paid, and no services were rendered, and there were no other conside- rations of a valuable nature, — the deed would be fraudulent; bat the jury having found that the deed was not fraudulent, we cannot, as matter of law, say that it is fraudulent.
LiTTLBDALE, J. — The plaintiffs below have clearly shewn a title, by descent and by conveyance, to the undi« vided fourth part of thir advowson, in the party who granted the next presentation to their testator; and the question is, whether they, being grantees under the owner of that undi- vided fourth part, can maintain quare impedit.
It is first objected that the declaration contains! no allega- tion of a presentation in the fourth turn ; but I apprehend
(«) Brown^ P. C. l0t edUion, roJ.vii. 70; 2d edition, vol.iv. 230.
Whatever is wanting to shew ^bat the consideration is, and from »bom it moves, may be snpplied by etidence dehors the deed, provided such evidence does not contradict the deed; Hartopp v. Hartoppf 17 Ves. 183, 192; Peacock v. Monk, 2 Ves. sen. 128. Thus, where a conveyance purports to be made ^in consideriition of esteem for A*,
and for diven other good cmuex and comideratioJM^ it may be shewn that the deed was executed in con- sideration of an intended marriage ; TuU V. Farktty Mood. & Malk. 472. And see iler v. Scdfliinondlpn, 3T.R. 474.
But where one consideration only is mentioned, and it is not said also ** and for other consider- ations/' no other consideration can be shewn.
495
1880.
Bishop of
Exeter
and another
v.
Gully
and others.
496
1830. Bishop of
£XETER
and another
V. GULLT
and others.
CASES IN THE KING S BENCH,
that it 18 quite sufficient to shew a preseutation by the owner of the entire advowson. In Comym's Digest, tit. P leader ^ (3 1 5.) it is laid down, that " the plaintiff in quare impedit ought always to allege a presentment by himself or ancestor, or some other under M'hom he claims (a) ;" and afterwards, *' and regularly a presentment ought to be alleged to have been by him who has the inheritance (by In the case there cited the plaintiffs declared as coheirs of Lord Lath mer, '' and it was moved that the declaration was insuffi- cient; for the plaintiffs in. their declaration entitled them- selves,— that Lord Lathner was seised of the advowson in fee, and granted the next avoidance to Dean Carew, and afterwards the church being void, Dean Carew presented'' It would have been, no doubt, sufficient to lay a presenta- tion in Lord Latimer; but the allegation was held sufficient, because the presentation was shewn to be in the right and title of the grantor. Suppose a quare impedit brought in 1714, after the third presentation, for theirs/ turn of the fourth coparcener, I know no other way in which presenta- tion cou/d have been alleged than in the person who had been once seised of the entirety (c). It would have been clearly sufficient for the owner of the fourth part to shew that the owner of the fee had presented, and that the other copar- ceners had presented in their turns. That does not differ from. the present case.- But it is said that there have been several usurpations, and that the plaintiff, therefore, has now a mere right. With regard to the second and third presen- tations,— which were in J 674, — ^it does not appear that they were usurpations, — that they were not made by persons re- gularly entitled as coparceners ; and although not by the co- parceners themselves, they may have been made by persons claiming under them ; and if the defendant bad meant to
(a) Citing Vaughan, U^^Tufton V. Temple,) and 57, (Rex v. Bishop of Worcester),
(b) Citing the Countess of Nor-
thumberland's case, 5 Co. Rep. 97 b; also reported in Cro. £1.518, Sir F. Moore, 455, 2 Anders. 48. (a) Vide ante, 499.
HILARY TERM, X GEO. IV.
insist that the persons who made the second and third presentations had no right, he ought to have alleged that those presentations were made by usurpation, upon which allegations the plaintiff might have taken issue. It seems to me quite clear upon this record, that these presentations caonot be treated as usurpations.
The presentation in the fourth turn was after the statute of Anne.
The question then is, whether the grant contained in the deed-poll of 1672, is to be considered fraudulent and void as against purchasers. That grant purports. to be made in coBsideration of a nominal (a) sum of money, and also in consideration of service and for .divers other good and valu<- able considerations. The defendant did not demur on the ground that these considerations were not stated. The matter went to a jury, who found that the deed was made for a good and valuable consideration. That finding cannot DOW be questioned. I think, therefore, that the judgment ought to be afiirmed.
497
18S0.
Bishop of
Exeter
and another
V.
Golly
ond others.
Parke J. — This appears to me to be a very clear case. Numerous objections have been taken to the form of the declaration^ which resolve themselves ultimately into very few.
The first objection is, that the declaration contains no all^ation that anyone presented in right of the fourth turn; and much reliance was placed on Shireburne v. Hitch. From . the marginal note of that case, it would appear that some such proposition was laid down. But the case of Shire* hume V. Hitch is distinguishable from the present upon two groundf. In that case there was no allegation that any person had been seised of the entire advowson, .or of any
(a) Notwithstauding the proba- bilitj that the right of presentation m the then next turn would not conie to be exercised for '' half a ceotarj," (ante, 487,) 20*. could lordly be considered as any thing VOL. V.
more than a nominal sum, even in 1672, with reference to the fourth part of the advowson in fee of a church, of which the (minimum) value in 1896 was assessed at 600/. a year, {anttt 469.) K K
498 CASES IK THS KINo's BENCH^
1830. right or interest in the advowson, so as to have that seisia Bisho of ^^^^ ^^^ '^^ requiresi and which is analogous to the taking
Exeter of esplees in a writ of right or other real actions. There, anot er ^^ person previonsly seised of the advowson, had presented
GuLtT Here, the declaration contains two averments; first, that the party seised in fee of the advowson presented ; secondly, that the eldest coparcener also on non*agreeinent presented.
The next objection proceeds on the supposition- that tht second and third presentations were by usurpation, and many authorities were cited to shew the effect of a presentation by usurpation. The foundation of this objection fails, for upon this record we cannot take it that any of those presen* tations were 1^ usurpation. It is said| that the first pre- sentation in die fourth turn must be taken to have been by usurpation, inasmuch as an allegation to that effect in the second plea (a) is not traversed. Assuming this to be so(i)y that usurpation was after 7 Ann. c. 18(c), and therefoie can have no effect in displacing the possessory title, upon which the writ of quare impedit is founded. •
A third objection is, that although non-agreement in pre* sentation may operate as a partition of the advoWson for a number of turns equal to the number of coperceners, yet it cannot have that effect afttncariit and tbat it ought to have appeared that after the fourtli turn, the coparceoen ugam disagreed. For this no authority has been cited; and the effect of dUagreemeni by coparceners, as Lord Coke states (cJ), is the same as if they had made pariUian of the advowson; and the effect of that, as he also states (e), would be to give to each coparcener an interest in an tin* divided portion of the advowson, — ^which must continue until altered by all the parties by some fresh deed or sotne new agreement.
The next objection is disposed of by the verdict, the jury having found that the deed-poll of 1672, which imported
(a) Ante, 464, 405. of quare impedit in S & 4 Wdl. 4,
(6) Sed vide ante, 478 (b). c. S7, ss. 80, 31, 39, 33, 34. (c) And see the proTision9 as to (d) 2 lost. 365; anie, 493. the times of limitation in actions (e) Co. Dtt. 18a.
HILARY TERM, X GEO, TV. 499
on the face of it to be for money and for service performed, 1830. (which may be a valuable consideration,) and for other ^^^^r valuable causes and considerations besidesj was a deed made Exeteb for valuable considerations. We cannot upon a writ of error ^^^ another lay, that that finding of the jury was wrong. Gully
The other objections relate entirely to collateral matters ^^ ®"'
which were disposed of upon motion in the Court of Com- mon Pleas. This is the first time in which any objection arising out of collateral matters has been taken on a writ of error, and probably it will be the last.
Judgment afihtned (a).
(a) The following application had been uDsuccessfuUy made to the The Coart of Court of Chancery. Chancery will
Lincoln's Inn Hall, Saturday, 25 July, 1829. "f d?mUiation "*
Mr. Seijt. Edward Lawes moved upon notice " that his Majesty's requiring one writ might be issued out of and under the seal of the High Court of 9^^^ sapcrior Chanceiy, directed to the Right Hon. Sir N, C, Tindal, knt. Lord Chief h^^v^ a ' Justice of his Majesty's Court of Common Bench at Westminster, requir- judgment upon ingthe said Chief Justice to send the residue of the record andproceu T'hich error in a certain action of quare impedit, lately depending in that Court^ ^ ceitKv the whereupon a writ of error has been brought, and which is now depend- residue of the iDg in his Majesty's Court of King's Bench at Westminster, wherein Wil- record and pro- Hem Lord Bishop of Exeter^ and George Pyhe Dowling, are plaintiffs gestlonsupport- io error, and Jenefer Gully, Jeremiah Trist, John Hearle TremaynCf and ed by affidayit, Tkmoi Graham, are defendants in error, and all other things touching Jj*** *"*^^ Court the same now remaining of record in the same Court of the Bench." ^n original re-
Ihis motion was founded upon an affidavit made by the agent of the cord existing in plaintiffe in error, in which the following facts were stated: — the cause, for
''That the writ of error was brought upon a judgment given by the Court returned has tit Common Pleas in an action of quare impedit, wherein the plaintiffs in been substituted error were defendants, and the defendants in error were plaintiffs, which }^ '°*^^ d°"^i action was commenced in the early part of 1826, and first tried before ordered to be Park, J., at the Devon Spring Assizes in 1827, on a nisi prius record made by rule of coDtainiDg various issues of feet, chiefly on facts stated in the declara- •n^Court. tion as constituting the title of defendants in error, and several issues in j^^^ ^ o^ct- law triable by records, and one on a demurrer to the replication; and ing to such on that trial the defendants in error were nonsuited, the judge being of "mendments is opinion that they had failed in proving that one John Stevingi devised |,||| ^f ezcep- a purparty of the advowson in question, as stated in the declaration ; tions. which question turned on a point of law, whether an advowson in gross passes in a will under the word '< tenements ;" and the Court of Com- mon Pleas, in the following Trinity term, made a rule absolute for
KK 2
500
18S0.
Bishop of
Exeter
and another
GULLT
and others.
GASES IN THE KING S BENCH,
setting aside the nonsuit and granting a new trial, on the grotiod that the judge*s opinion was wrong in point of law, and the Court aAerwanb made various rules for giving the defendants in error leave to alter theii declaration in the statement of their title in many material respects, on which issues had been before taken and joined, and made other rales compelling the plainti£Fin error, G. P. Dov/tng, to plead de novo, and refusing him leave to plead so as to enable him to take the opinion of a Court of Error on the construction of the devise, or to plead any other of the pleas on which issues had been before joined, except two, whidi were confined to one point, namely, the validity or efficacy of a certain alleged deed of grant, of 6th April, 1672, stated in the declaration, and that a new record of Nisi Prius was made, and the cause tried again at the last Devonshire Summer Assizes before the same learned judge, when a vexdict was given for the defendants in error.
That all the said matters will appear from the court-rolls, issue-rolls, record of nisi prius, panels of jurors, and postea or entry of nonsuit, and writs of venire &cias and habeas corpora juratorum, relating to the Bist trial, and the subsequent rules of Court and affidavits filed of record in the Common Pleas, which, or some of which, this deponent is advised fay the counsel of the said Geo. Fyke Bowling are erroneous in point of law, and material to be certified to tlie Court of King's Bench on the writ of error there now depending, but that the record certified therpoo contains the last declaration, and the pleadings and proceedings thereon only; that for the obtaining a reversal of the said judgment for divers errors in the body of the record so certified, as well as for other errors of the Court of Common Pleas in not giving judgment on the said non- suit, and in the subsequent rules and proceedings of the said Court abo?e suggested, errors were assigned and diminution alleged on the writ of error in the Court of King's Bench, in Hilary term last, and a writ of certiorari awarded and issued thereupon, directed to the Right Hon. Sir William Draper Best, krt'ighij then His Majesty's Chief Justice of the Court of Common Pleas at Westminster, to certify to our lord the king certain court-rolls and issue-rolls, then and now remaining of re- cord in the same Court in the cause, and also a certain record of nisi prius, with a certain postea or entry of nonsuit thereon, and certain writs of venire facias and habeas corpora juratorum in the same cause, and all things belonging to the said record of nisi prius, and the pro- ceedings had thereupon, or otherwise relating to the matter so assigned for error, in his custody or power, — ^which writ of certiorari was so issued out of and under the seal of the Court of King's Bench on tbe 4th of May last.
That the writ of certiorari was by this deponent delivered to and left with Mr. Charles Harden, then the principal clerk of the said Lord Chief Justice, at his chambers in Serjeant's Inn, Chancery Lane, on the 5ih of the said month of May, when this deponent pointed out to Mr. Harden the several records required by the writ to be certified, and informed him what officers bad the custody of them.
. HILARY TERM, X GEO. IV.
Tbat another writ of certiorari was awarded and issued on the said asngnment of errors and allegation of diminution^ directed to George
Wailingion, esq., Henty Beliwood Ray^ esq., and Thomas Hudton,e9q., prothoontaries of the Courtof Common Pleas, and to George Griffith, esq., Jonathan Eemktt^ esq., and John Henry Cancelhr^ esq., secondaries, to certify to our said lord the king certain rules and orders of the Court of ConuDon Pleas in the said cause, touching the matters assigned for error therein as aforesaid, together with all affidavits and things relating thereto filed of record, in the custody or power of the said prothonotaries and secondaries, or any of them j which last-mentioned writ of certiorari vas ddiTered to and left with Mr. Sherwood, the principal clerk to the said prothonotaries, on the 4tfa of May last, at the prothonotaries* office in the Inner Temple, London.
That the defendants in error having given rules in the Court of King's Beoch to return the said certiorari, this deponent applied to the officers whose duty he conceived it was to forward the preparing of the copies of the several documents required to be certified, respecting the same, when this deponent was informed by such officers that the said late Lord Chief Justice had received the said first-mentioned writ of certiorari.
That a rule for returning the same having been given and expired, and 00 return having been made to either of the said writs of certiorari, this, deponent, on Friday 29th May last, waited upon the said late Lord Chief Justice, at bis chambers in Serjeants' Inn aforesaid, and respectfully requested of his lordship to make a return to the said first-mentioned writ of certiorari ; but his lordship was pleased to declare to this deponent that he should not make any return to the writ.
That on application to the said Jonathan Hewlett to ascertain if it was intended to make a return to the said other writ of certiorari, this deponent was informed that such. return was intended to be made; and being advised by the counsel of the said George Pyke Bowling that it was material and necessary to procure the said first^mentioned writ of certiorari directed to the said Lord Chief Justice to be returned in sup- port of the said assignment of errors and allegation of diminution, this deponent instructed the said counsel to move the said Court of King's Bench for that purpose, and an application was accordingly made to the said Court on Uie part of the said G. P. Dowling^ on or about the 30th May last, being the last day but one of the last term, for an alias wrrit of certiorari, directed to the said late Lord Chief Justice, but the said Court did not then grant a rule for such alias writ.
That he hath not yet been able to procure any return to be made to either of die said writs of certiorari, the prothonotaries and secondaries also having since tefus^ to make 4ny returns to the said writ of certio- nri so directed to and served on them as aforesaid.
That since last term Sir NicoUt Conyngham Itndal, knight, hath been appointed and taken his seat as Lord Chief Justice of the said Court of Common Pleas, and that no motion or application hath at any time been made by or on the part of the said defendants in error to
501
1830.
Bishop of
Exeter
and another
v.
GULLT
and others.
502
laso.
Bishop of
£XETBR
and aooiher
V.
GuLLr
and otlien.
CASES IN THE KINO 8 BENCH^
quaah or let'aside or vacate the said writa of oertiorari or eithar of them, and that all the records and matters stated in the aaid assignnoitQf erron and allegation of diminution eaist in fiioty and are therein tnly and bonft fide stated, and he is advised by the coansel of the wid George Pyhe BowUngy that it may be very important to the inteiests of the said G. P. DomHng that the several matters and things allesed ai diminution of the said record now before the said Court of King's Beocb, or such of them as he may be by law entitled to, should be certified (0 the said Court.
Hiat since the applications so made to the said Court of King's Bendi in last term as aforesaid, the said defendants in error have pleaded is nullo est erratum in this cause, and have moved, and obtained a rale, for a concilium, and have set down the said cause for argument
That a renewed application was, on Friday 1st July instant, made to the Court of King's Bench for leave to issue other writs of certiorari, but the said Court of King's Bench refused to grant permission to istoe either of the writs of certiorari prayed.
Hiat on the 8th day of July instant a motion was made by eouDiel on ,the part of the said George Pyke Dov/iii^, before the Right Hoo« the Lord High Chancellor of Great Britain, for leave to issue out of and under the seal of thii Honourable Court, His Majesty's writ of diiu- nution, directed to the Bight Hon. the Lord Chief Justice of Hii Mi- jeaty's Court of Common Pleas, commanding the said Chief Justice (o send into this Honourable Court, under his seal, distinctly and plainly, the residue of the record and process of a plaint which was in the said Court of Common Pleas before the Right Hon. Sir WiUiam Ihoftr Best, knight, late Chief Justice of the same Court, and his associates, jas- tices of the said Court, between the said Jenejkr Gulfy^ &&, phuntifi, and the said WiUiam Lord BUhep of Exeter, and the said George P^ Jhwling, defendants, in a plea of quare impedit, for not permittmg the said Jtnrfer Gully, &c. to present a fit person tn the rectory and paiiih church of Berrynarber in the county of Devon, which was void and in the gift of the said Jentfer Gully, &c. and also all other things touching then which, as it was said, remained in the said Court of C. P. to be sent
That upon such motion being made, the Lord Chancellor was pleased to state that he considered it to be quite of course that the said writ of diminution should issue, and directed application to be made to (be proper officer of the said Court, and stated that if he made any difficulty about it, or refused to issue the same^ then thai the counsel fbr the said George Fyke DaetUug was to be at liberty to apply tpeoisiUy to (his Honourable Court
That in consequence thereof this deponent did, on Hiundi^y the 9lh day of July instant, apply to Mr. Jppleyard, who b or acts as conitor id this Hon0urabl6 Court for the county of Devon, in which the said paridi of Berrynarber is situate, for the said writ of diminution, and at the same time this deponent acquainted him with what had passed in this Honourable Court upon the aforesaid inotioD, and requested him te
HILART TERM, X GEO. IV.
iwie the nid wrk of dimhratioo, which die said Mr. JppUyard did not theo object' to do, but at he had never had occasion to iMue such a writ in his pnotice as a cursitor, he requested deponent to bring to him the dnk or form of the said writ.
That in consequence of snch request tliis deponent did get the form of rach writ dmwn by the counsel of the said 6. P. Damlingf and on Friday the lOih day of July instant delivered a fair copy of the said form so drawn by the counsel for the said G. P« DowUng to Mr. Appieyardp and Again requested him to issue the said writ, but the said Mr. Apple' jfortf at that time declined to issue the said writ until he had an oppo^ tunity of consulting with the secretary of the Lord Chancellor thereon, io oonsequenee of the inftequency of such writs being issued, and pro* miied this deponent that he would take an early opportunity of seeing the nid sscntary upon the subject, and of informing this deponent thereof.
That the said Mr. AppUyard hath since caused a message to be coo- veyed to deponent that ho could not issue the said writ until an order ferthat purpose was obtained from the Right Honourable the Lord Chancellor.
That a true copy of the errors assigned and dimfaiution alleged by the said G. P. Dsv/Jn^,in the said Court of King's Bench, in tbe said writ of error, so Ihr as relates to the motion intended to be made before the Lord Chancellor, on Saturday the 25th day of July insUnt, is set forth in the eihibil or paper writing, marked with the letter A., produced and shewn to this deponent at the time of swearing this his afiidavit."
603
1880.
Bishop of
£XBT£R
and another
.«.
GvhLX
and otben;
£ Lames, Seijt, in snpport of the motion. The writ for which the pisktiib in error now apply is to be found in the Register. It is trae, as was thrown out by the Court upon the former application, that DO precedent for such a motion can be referred to. The reason is obvious, namely, that the issuing of such a writ has been considered a mttter of course, and it might issue without motion, and no case can be foand in which such a writ has been denied. The usual mode has been to take the writ from the office as a matter of course. It was» however, thought more decorous to apply to the Court* The only qiMfltion now is, whether the writ shall be refbsed or not. The form of the writ was sent to the office with no other deviation from that in the ngister than the nature of the action rendered necessary. When the spplication was made In the King's Bench, the Court said, ** You ought to lUege diminution.'' I said, ** I had alleged diminution," and I now spply fof the writ moved for in the Court of King's Bench. [Lord JjfMmnifC. The writ prayed for recites that it is skeem to the king that Mme part of fiie leeord and process, and certain other things touching the Mne^ still remain in the Court below. You are bound to satisfy me that the proceedings are part of the record.] From the alteration which has been made in the record, the plaintiflT in error is prevented from ^iog (he opinion of the Court of King's Bench as to the construction of <he devise-. Error is assignable upon every part of the record, 1 1
504 CASES IN THE KING*8 BENCH,
1830. ^' ^^- 3^» ^^' ^^ ^^^ ^^^ '"'^y ^ ^<^^ ^® ^^^ '^^
vi^s/i^^ ought to be returoed. Here are two declarations and two rolls upon
Bishop of the same original. In Style, 292, it was held that the imparianoe roll
Exeter ought to be returned as part of the record. [Lord Lyndhuntf C. Hie
and another ij^parfance roll and the plea roll are part of the same recotd.] Hie
Gu I LY plaintiffs in error are entitled to have the two declaiationsy and the pleu,
and others. a°<1 ^^ issue roll, and the nisi prius record; 2 Nels. Abr. Err0r,(D);
10 Vin. Abr. Error, (I c. 4.)
The documents which it is the object of the present motion to get returned, are records, and ought to be certified. The plaintiff in enor wishes to raise the point, whether the Court has authority to grant a new trial upon a point of law. Th^ law is not altered by the mere drcnm- stance of there not having been any occasion to resort to the particolv remedy for a considerable length of time* Thus the Courts hare lately recognized the right of the subject to insist upon wager of law, Xiii^ r. William^ 4 Dowi. & Ryl. 3 ; and wager of battle, Askfotd v. TkamUm, 1 Bam. & Alders. 405. [-^rd Lyndhurst, C Can you cite a case in ivhidh a Court of Error has inquired into the interlocutory proceedings of the Court below ?} In Greene v. Cole, 2 Saund. S52, the granting of a new trial was expressly assigned as error. [Lord Lyndhurstf C. Tbtt was the case of an inferior Court.] In the Palace Court, which is an iDfi^ nor Court, it is a matter of every day's occurrence. In 1 Jicv. SIC, it was said that the proper course was to return the two verdicts in the first instance, because being an inferior Court dimnution could not be alleged. If, therefore, it had not been an inferior Courts it follows that the omission to return the first verdict upon the writ of error might have been alleged as diminution. [Lord Lyndkurst^ C. They were bound to return the two verdicts, and they had no power to grant a new trial.] In Lovedays case, 8 Co. Rep. 65 6. error was assigned upon the granting a venire de novo. The rules of the Court are often ai important as its judgments. How is a nonsuit in quaro impedit peremp- tory, if it can be set aside at the pleasure of the Court? A nonsuit in quare impedit is a bar to another action. [Lord Lyndhursi^ C Why should not the Court set aside a nonsuit or a verdict in quare impedit, as in any other action? A learned judge says at nisi prius ^ that the action cannot be maintained," and he turns out to be mistaken. Cannot the Court set this right? A nonsuit is mere machinery in modern times. The Court of King's Bench, upon the application for the alias certioian, according to the note which has been furnished me by Mr. MmKKȤi thought that the granting of such a writ would introduce great oonfii- sion. The amended record is not, in fact, a second record, but a is^ etUuted record. The Court of Common Pleas had power to amend the record upon a summary application.] Where is the power of a Cooit of common law to substitute one record for another? [Lord lysd- hunt, C. They have power to grant leave to the parties to amend.] If the plaintiffs below had any objection to make to the pleas, they sbonld have shewn cause against the rule to plead several natters. - Ihts writ
HILARY TERM, X GEO. IV.
biods the Chief Justice to certify the original record. [Lord I^d- kuntj C. The effect would be to carry before the Court of Error all the mass of interlocutory matter. Have you ever seen an example of fuch a writ? llie Court of Common Pleas assume the right to make these rules, and act upon it. If you thought they had not the right, you might have tendered a bUi of txceptimt. In Grune v. CoUy the only case which has been referred to upon this point, a new trial was granted by an inftrior Court which had no power to grant one.]
limmingf conttk. In Greene v. Cole a venire de novo was granted, which is very distinguishable from a new trial. The award of a venire de novo is always founded upon some irregularity or miscarriage apparent upon the hot of the record ; whereas a rule for a new trial is an interpositioU by the Court in the discretionary exercise of its equitable jurisdiction, for the purpose of relieving the party against a latent injustice. After a new trial has been had, the record is in the same state as if no trial except the last had taken place, whereas, upon a venire de novo, the iact of the first trial and the circumstances under which that trial be- came nugatory, and rendered a second trial not a matter of ditcretion, btttofnj^A^ necessarily appear on the record. When that distinction is adverted to, Greene ▼. Cole will be found to have no bearing upon the present case.
Lamet^ Serjt A venire de novo is always awarded upon a new trial. [Lord L^ndkurstf C. I think no ground has been laid to induce me to interpose and give any special direction to the officer.] In MelUsh v. Rkhardtonf 7 Bam. & Cressw. 819, the Court of King's Bench granted a writ of certiorari to bring up rules from the Common Pleas for the purpose of putting them on the record in the King's Bench. [Lord I^fndkwttf C. In Melluk v. Richardson rules had been granted in the Common Pleas for amending the record, which had been sent up to the King's Bench without those amendments. The Court of King's Bench directed these rules to be sent up, for the purpose of enabling them to make corresponding amendments in the King's Bench. {Vide 1 Clark & Finn. 244.)] Office copies of rules are received in evidence, which proves that they are records. The plaintiffs in error wish to have an ofH portanity of trying whether the Court has the power to grant a new trial in quare imped it, and whether, after granting leave to plead several matters, they have power to withdraw that leave, and make such rules tf they have done, without the party's having any power of appeal.
Lord Ltsdbubst, C-^My judgment is, that the plaintiffs in error have not made out a case for having this writ. After an amend-* ment is made, the amended record is the record. No sufficient ground has been laid for my interference^ and I give no direction on the subject The Court of King's Bench have refused an application, whiclr though not for a writ of diminution, was similar in effect, and was movtd for on the same grounds, and I entirely concur with that Court
605
1830.
Bishop of
Exeter
nnd another
Gully fln(l others*
608 CA8» IN THE KlVO'f B£NCH,
1830. in thinking that suoh a coane would iotiodiice the gieatait covhaaa io ^■^'w'^^ the administration of juitioa. Bishop of Eule refilled*
and another ^^^ ^^ ooneoit being obtained at the first irial upon the lecord u GuLLT i^ originally stood, K Ltua, Serjt«y applied for a writ to the Biihop to
yuid o(hen, admit the defendant under the provision in Westm. 3t c. 30, " excepto ... quod assises ultinwe ptsesenUitionis et inquisitiones super quare impedit
justices of assise ^^tei^incDtur in proprio comitatu coram uno justiciario de banco et uno to giTe j ttdg- milite» ad certos tamen diem et locum in banoo stfttutoe, sire deleadeiu inentBnd Bwaid ^Qaentiat, sive non ; et ibi tiatim reddatur judicium, the defendant ^® application was heard and discussed at the judges' lodgiogi at upon a nonsuit £xeter, before Parkf J* and LitiUdakt J*, the former (as obserred by in^quare impe- the learned judges) being jas/icuirJM de bmco and both being milUes.
B.X«0n^8erjt» for the defendant. In quare impedit a nonsuit ii pe* remptoryand finals Com. Dig. tit. PUader{3 1 11). The statute diredi that judgment shall be given immediately; and Lord Cofte^ in can* menting upon this statntOy says, *' And this brandi giving to the justioM of nisi prius power to give judgment, they have thereby power, inda* dedly as incident, given to award execution, that is, a writ to lbs bishop; but that writ is not returnable." S Inst 424. .
Bajfy and Mankingf ooattk, Tliough the judges are oMikariMeihy Westm. 9, c. 30, at nisi prius to pronounce judgment and award a writ to the bishop, they are merely placed in the situation of the Court above, and are not required to deprive that Court of the opporttini^ of ooo* sidering the eorreotnees of the Tiew of the law taken at the trial, and ths propriety of the verdict or nonsuit. That statute has passed more than 500 years, and no instanoe is shewn in which the diseretionaiy power it gives has been acted upon, though eases, both of verdicts and (tf noo- suits, must often have occurred in which the titio of the defendant to tbe presentation has been perfectly dear. Here, on the oontraiy, the plain- tifis have been nonsuited on a point which at least is sufficiently doubt* ful to require the examination of the Court out of which the record oones; for though a nMmii in quare impedit is pertmptorjfy it is not more to than a fterditi. No evidence has been given in support of the title which the defendant has thought proper to set out on tho record, but whkb the plaintifis have had no opportunity of controverting. {Ante, 4f 8((» It may be difficult to say what is meant in the books by the defendsot*! making title, yet whilst a defendant's title rests upon his own simple unsupported aesettloili the Court sdll febt interfere in this eitmefdiiisiy
The learned judges thdught that this was not a case in wbish tbaf %ere called upou to etercise the p^wer given by the statdtCi
' Writrefhsed.
HILARY TBBMi », QJiQ. IV. fi07
18S0.
The King v. Robert P£Asfi(a).
iHE defendoqt was convicted, b; a justice of the p^cc^ A timber-tner-
of having, on the 6tb day of November, IMS. within the chant, residing ,.,,.. * Jt . • at the town of
extni-paiochial limits of the castle of Nottingham, as a a., and send- hawker, exposed to sale c^rtaiq goods, wares and mercbanr fro„J*5he*town diies, to wit, a quantity of timber, without having any of B. to the licence so to do, contrary to the form of the statute, whereby ^h!^^^ is' the defendant had forfeited for the said offence the sum of >old by auc- 10/. At the Epiphany setsionsi 1889, the Court of Quarter hawker re- Sessions quashed this order, subject to the opinion of this q^i^ng a
^ 'J r licence under
Court upon the following case ;--^ 50 Geo. 3,
The appellant is a timber-merchant, residing and carrying ^* ^' aithougb on husinesa at Leeds. Barly in November last he bought the place of a large quantity of mahogany at Hull, which he caused to ^g^, be conveyed by water through Nottingham, and deposited oa a wharf situate withm the extra^parochial limits of the castle of Nottmgham. On the 6th November the appel- lant employed an auctioneer to sell the mahogany by public suction, and a considerable quantity of it was sold by auo* tion on that day. The appellant attended the aale, and assisted thereat. The appellant had no hawker's licence* and had no place of residence or business at. Nottingham*
Su^^, in support of the order of seasions quashing tbo coDTiction. This case depends upon the construction of ^Geo.3, 0.41. s. 7; and the' question is, whether/ up6n the facta stated in this case^ the Court can say that the de- fendant is a hawker, or a person trading from town to town* The Court of Quarter Sessions have held that the defendant did not come within either of these descriptions. This is Qot the description of person* nor is it such an a^t pf selling, as was contemplated by the legislature. I| is diflScult to say tbat this defendant was a hawker; but it will probably be'
(a) This ta^ was decided in kst Michaoln^ss term..
CAdES IN THE KINO S BENCH,
contended that he was a trader from town to town. No act of trading is stated, except the consignment of goods from Hull. Only one town is mentioned. The goods merely passed through Nottingham. [Lord Tenterden, C.J. A village would do. The place of sale need not be a cor- porate town.] Rex v. Utile (a). The prosecutor ought to 3how an act of trading before the doing of the act com- plained of; as otherwise, not having become a trader till then, he would not have been under any previous obliga* tion to take out a hawker and pedlar's licence. It ii pro- per to state to the Courts however, that in The AUormtf General v. Tongue (6) and The Attorney-GeHeral v. Wool- house (c), it was held that one act of selling was sufficient. This timber was a raw material, and, not a manufacture. [Lord Tenterden, C.J. — Fruit and vegetables are excepted^ but there would have been no necessity for such an excep- tion if the general prohibition had been restricted to manu- factured goods.} The object of the statute was to protect the resident dealer. [Bay ley, J. Here, to protect the resi- dent timber-merchant.] The cases which have been decided upon this statute are all of small retail dealers. The cases are all where the goods are manufiictured or in a state for immediate consumption. The expression^ ''selling from house to house," shews that the goods contemplated by the legislature were goods ready for immediate use. The tim- ber described in this conviction must be taken to be the raw
(a) 1 Burr. 609; 5. C* 8 Ld. Zoucb,where he employed an anc Keayon, 317. tioneer, and sold the goods by auc-
(b) Cited 1 Younge & J. 466, tion; it was held that he was a frt)m a Bum's Just. 785; since le- trading person, travelling from ported 12 Price, 51. town to town, within 50 Geo, S,
(c) 1 Younge & J» 463, and 12 €• 41, s. 7, and that it was not Price, 65. In that case a cabinet- necessary, in an information for maker, who resided at Ldeester the penalties thereby incurred, to and had a shop there, sent certain state that Uie defendant sold b; goods to Ashby-de-Ja-Zouch in a auction, &c. by opening a room or cart, which he accompanied on shop, and exposing to sale hiit foot part of the way, and then goods, &c. by retaih
went by coach to Ashby»de-la-
The Kma
HILARY TERM, X GEO. IV. 509
commodity in bulk. Instead of injuring the retail dealer, 1830. such a sale would be likely to benefit him. It seems to have been thought unnecessary to except any articles in '"v. bulk, on the ground that none such were within the purview I^^P^ase. of the act. {Bayley, J. This is not the case of a sale by accident of goods not originally intended to be sold there.]
K R, Clarke and CUnton^ contri, were stopped by the
Coart.
Lord Tenterden» C.J.*^I cannot distinguish this case from that of The Attomey^C^eneral v. Weolhouse.
The other judges concurred.
Rule absolute to quash the order of sessions (a).
(a) And tee Moore y. EdwardSy AdoK 875; Simton v. illoft, 3
2 Chit Rep. 213 ; Hex ▼• Sdwm/, Barn. & Adol. 643 ; Rex v^Mam-
\h. 522; Rex v.Websdell,^ DowL waring^ ante, 36, 10 Barn. &
k Ry). 360, 2 Barn. & Cressw. Cressw. 66; Rex v. Hodgkinton,
136; Rex v. Farady^ 1 Barn. & aii/e,162» 10 Bam. & Cressw. 74.
CocKBBBLL and another v. Cholmelby.. (In Error.)
CiRROR upon a judgment in formedon. The count set out Land with the a portion of the will of Sir Henry Englefield, Bart., by which wM^detSS**
to A. and his beiTs for the use of B. for life, without impeachment of watte, with remainders ower, with power to ^., at the request of the successive cetteux que use, to sell the estate; and to that end A, was empowered by deed to revoke the uses in the will, and by the same or any other deed to convey the estate to the purchaser. A. sold the estate, ex- clusive of the timber upon it, and by deed revoked the uses in the will, and conveyed the estate to the purchaser; and by the same deed B. sold and conveyed the timber to the purchaser :— Held, that the power was not well executed, and that the revocation was void.
Where, in formedon, the demandant succeeded upon a demurrer to the replication, aod obtained a verdict upon the trial of an issue in fact, and judgment was given thereon that he should recover his seisin against the tenant, and upon writ of error brought, the common errors were assigned, and judgment was affirmed :-^Held,that the demand- ant was entitled to double costs under 13 Car. 2, st. 9, c. 2, s. 10.
610 CAfiM {N TH^ KlVa'f BEKCH,
1830. he dovised certain mtoors and tenements^ with the appurte* CocKERBu ^^°^* therein mentioned^ to Lord Cadogan and Sir Charla and another Buck, and their heirs, upon trust (a)» — for the eldest son CholmeIey. ^^ ^^^ ff^rjf Engl^ld for life^ without impeachment of waste; remainder to the trustees* to preserve, contingent remainders) remainder to the first and. other sons of his eldest son, in tail male ; remainder to his second son for life, without impeachm^Hit of waste; remainder to trustees, to preserve contingent remainders ; remainder to the fint and other sons of his second son, in succession in tail male; rei»aiikder to the demandant's mother for lifoi without im- peachment of Waste; reouiinder to trustees, to preserve contingent remainders; remainder to her first and otber sons, in succession in tail male. The eount then alleged the death of the testator (6), the death of his two sons with- out issue, the death of the demandant's mother^ and that the demandant was her eldest son, and as such entitled to the estate, as entailed in remainder.
The eighth plea (c) stated that the testator^ bj his will, declared '' that it should be lawful for the trustees and the survivors of them* at tb^ request and by the direcuonand ' appointment of the person who for the time being should be in possession of, or entitled to, the rents and profits of the manors and tenements aforesaid, with the appurtenances above demanded, by virtue of the limitations therein con- tained, signified by any deed' or writing under his or her band and seal, attested by two or more witnesses, to make sale and dispose of, or to convey ip exchange for otber manors, lands, tenements and hereditaments, any part or parts of the manors and tenements aforesaid, with the ap-
(a) i. e. '^ tp the me of;'' these trutii being executed by the sta- tute.
(b) The count also alleged the death of the testator's wife, fot whose benefit a term had been created, which had determined by her death.
(e) There were other pleas npoo which i^ues were joined and the demandant proceeded to trialyaod had a verdict, but the question be* (bre the Court turning exdosivdy upon the eighth, it is unnecessaiy to set out the rest
HILAftT TSRH, X GEO. IV« dH
piirtemiDcefl above deoiaud^dy to aoy person or person^ isao. whatsoever, either together or in parcels, for such price "^^^^^^
... . . , , , COOREIIBLI
and pnces in moaey or any other equivalent, as to them the and another
triiitees. or the survivor of them, or the heirs of such sur- ^ ^
mor, ibould seem just and reasonable, and to that end for
the said trustees or th^ survivor of theip, or the h^irs. of
loch survivor, by any deed or deeds, writing or writings,
Moder dieir hands and seals, senled and delivered in th^ pre*
lence of two or more witnesses, to revoke, determine and
make void all and every or any of the uses, trusts, powers,
provisoes and limitations thereinbefore limited, createdi
provided and declared, of and concerning the manors and
teaements aforesaid vyitb the Appurtenances above de*
madded, to be sold, disposed ofj or ei[changed, aiid by the
•ame or any other deed .or deeds, Writing or vrritingsi to be
Msled and attested as aforesaid, to limit end appoint the
manors and tenements aforesaid, with the appurtenances
above demanded, whereof the uses should be so revoked,
either unto such purchaser or purchasers, qr to the person
or persons making such exchange, and his, heri or their
beirs or otherwise, and to limiti direct or appoint such new
or other use or nses» trust or trusts, of or concerning the
manors and tenements aforesaid, with the appurtenances
above demanded, as should be requisite and necessary for
the executing and effecting of such salesi disposals or es-
ehsoges; end opon payment and receipt of the money
ariiiog from the sale of the said premises, or any part or
parts thereof, which should be absolutely sold as aforesaid,
to give and sign proper receipts for the money for which
the same should be so sold." The plea then stated that Lord
Cadogan^ in pursuance of this power, after the decease of
Sir Charhs Biick, at the request of Sir Henry Charles
t^UfUldf tho first tenant for life, sold the estate to Byam
Martin for 13,400/., which Lord Cadogan judged to be a
reasonable price for the same, and then set out so much of
the deed from Lord Cadogan to Byam Martin as revoked
the original uses of the will, and conveyed the estate to
512 CASES I^f the kino's bench,
1830. trustees for Bt/am Martin, in fee, for the sum of 13,400/.^ ^^■^^''^^ making profert of that deed ; and then deduced title froni and another Byam Martin and his trustees to the tenant. ^ ^' The replication to this plea craved oyer of and set out
the deed of conveyance from Lord Cadogan to Byam Mar- tin. By that deed — reciting the power, and that Lord Cadogan had contracted to sell the estate, exclusive of' the timber growing upon it, to Byam Martin, for 13,400/., and that Sir H, C. Englefietd had contracted to sell the timber to Byam Martin for 2448/. — Lord Cadogan appointed the estate, exclusive of the timber, to Byam Martin and bis heirs; and Sir H. C. Englefield sold and assigned the tim- ber to Byam Martin and his heirs, and acknowledged the receipt of 2448/. for the same, both in the body of the deed and by a receipt on the back of it. The replication then set out the will of Sir Henry Englefield, and the power therein contained as stated in the plea, and alleged the exe- cution of the power to be imperfect, inasmuch as the trustee, Lord Cadogan, htid sold the land on\y, and had allowed die tenant for life. Sir H. C. Englefield, to sell the timber grow- ing thereon and to receive the price of such timber.
To this replication there was a general demanrer, and a joinder in demurrer.
The case was argued in the Court of Common Pleas in Michaelmas term, 1825 (a)» when judgment was giten for the demandant. There were other pleas upon which issues were joined, and the demandant proceeded to trial, and obtained a verdict. The record being removed by writ of error into this Court, the case was now again argued by
Peake^ Serjt., for the plaintiffs in error. The questioa in this case is, whether the deed of conveyance from Lord Cadogan to Byam Martin was a good execution of the power of sale contained in the will of Sir Henry Englefield* The objection taken is, that Lord Cadogan sold the land only, and permitted Sir Henry Charles Englefield to sell the
(a) Exported B. Moore, vol. x. 246, xi. 17; Bingh. liL 307, ▼. 48,
HILARY TERM, X G£0. IV.
timber aiid to receive the money for it. Notwithstanding this objection, it is submitted that the deed is a good and sufficient execution of the power. Sir H. C. Englefield, being tenant for life without impeachment of waste, would have been entitled, if tlie estate had not been sold (and it could not be sold without his consent), to cut down the timber and receive the value of it; and if he preferred to waive his right tp do so, and to consent to the estate's being sold, together with the timber, he was equally entitled to take that coarse, and to receive from the purchaser of the whole so much of the purchase money as was the actual value of the timber. If that be so, the trustee, in permit- iag him to receive that money, has not deviated from the power. This, like every power, must be construed with reference to the objects which the testator had in view in creating it. His ficst and favourite object was to keep the estate m the family, giving the timber to the tenant for life ; his second object was, in the event of its being found more beneficial to the family to sell or exchange the estate, to empower the trustees to do either the one or the other, at the request of any person in possession as tenant for life. The power to sell the estate, therefore, was made dependent upon the request of the tenant for life for the time being ; and it is dear that no tenant for life would ever make that request, unless he was to have at least the same advantages as he would have had if the estate continued unsold. One of those advantages was, that while the estate continued nnsold, he might at any time have cut down the timber, and have applied the proceeds of it to his own use. To have done this would not only have lessened the estate in value to the amount of the money for which the timber was sold, but would also have taken from it that imaginary and yet marketable value which invariably attaches to estates upon which old and ornamental timber is standmg. It was therefore clearly for the interest of all parties that the tim- ber should stand, and be sold together with and as part of the estate; and if the tenant for life consented to that VOL. V. L L
513
1830.
COCKERELL
and another Cbolmeley.
514
1830.
COCKEJIELL
and another
t. Cbolmeust.
CASES IV THE KIKO's BENCH.
course^ upon ivhat priocipb of jastice can it be said tbat he was 'not entitled to receive the money which that timber was worth i In The Counteu of Plymouth v. Ladt/ Ar<^er(a)t where lands were devised to trustees to be told, and odier lands were to be purchased in their stead, and A. was to be tenant for life, without impeachment of waste, of the lands to be purchased, and the rents and profits of the lands to be sold were to be to the same uses, it was held that A. could not cut down timber on the lands to be sold; but the reasons were^ first, that A. had no interest in the lands to be sold, as they were givpn to the trustees in the first instance ; and secondly, that as A. was to be tenaat for life, without impeachment of waste» of the lands to be purchased, if he might cqmmit waste upon the other estate before it was sold, he would have the benefit of doable waste. But, even if the tenant for life was not entitled to the value of the timber, still the pow^r was well executed by the deed, so fer as it revokes the uses of ^he wilL The power, in express terms, authorises the revocation of the old uses by one deed, and the conveyance of the estate and creation of new uses by another. Now, if the old uies have b^en revoked, (as they have been, — for the conveyance of the estate operated as a revocation of the usee of the wUI,) the demandant cannot sue in formedon, for his estate is thereby divested. This case is perfectly distinguishable from that of Doe d. WillU v. Martin {i), by whieh it was contended in the court below it must be governed ; for, ia the first place, that case was decided principally on the ground of fraud ; and, in the second. Lord Ketytm there said, *^ the revocation and conveyance were necessarily one act, and must be done by one and the same deed." Here, no fraud is or can be imputed ; and the applicatiDn of the money produced by the sale is a distinct and separate act, to be done after the sale of the estate. Even if the pay- ment by the trustee to the tenant for life of a part of the
(fl) 1 Bro. Ch. Rep. 159,
(6) ♦T.R,39.
HILARY TERM, X GEO. IV. 515
purchase money, namely, the price of the timber, is con- 1830. lidered a misapplication pro tanto, still it was done bonii ^ ^^'^ fide, and th^re is nothing to shew that it shall affect the and another porchaser: on the contrary, payment to the trustees b ^ '^' made a discharge for such money as is paid, and the re- jnainder-man can have at most only an equitable lien as against the tenant for life for such money as has been im- properly paid to him. Roper v. HaUifax (a).
Cvm, Serjt., contri, was stopped by the Court.
Lord Tbntbbden, C. J. — I am of opinion diat the judg- ment of (he Court of Common Pleas, in this case, ought to be affirmed. Tn forming that opinion, I have not treated this case as one of fraud, but as a case of failure of compliance with the condition upon which alone the uses mentioned in the testator's will could be revoked, and the estate applied to other uses. It has been argued, that the revocation of the OSes may be good under the power, though there may not have been a valid sale according to the power. That argument rested mainly on the observation, that the old uses may be revoked by one deed, and the estate conveyed, and new uses created, by another, — which is certainly not imMNisistent with the language of the wUl. But looking at die whole of the language of the power contained in the testator's will, it seems to roe quite clear, that there can be no valid revocation of the uses mentioned in the will, unless that revocation is made, (to use the very words of the power,) <« to the end** that a conveyance may be made of the estate. A conveyance of the estate must be the very end and object of the revocation. The question, therefore^ is, whether, looking at the whole of this deed, the end and object of die revocation was a conveyance of the estate. Now it appears, as well by the contract made prior to the revocation, as by the deed of conveyance, that the trustees
(a) 8 Taunt. 845 ; and Sugd. Pow. App. No. 4. hh2
616
1830.
CoCKERELL
and another
V.
Cbolmelbt.
CASES IN THE KIN6*S BENCH,
contracted to sell the land " exclusive of the timber growing upon it/' for a certain specific sum of money ; and that the tenant for life, by the same instrument, contracted to sell the timber growing upon the land, for another specific sum of money; and wheii these contracts were executed by the deed of revocation and conveyance, the trustees con- veyed the land in consideration of one sum of money, and the tenant for life conveyed the timber in consideration of another sum of money paid to him. This, it is said, might lawfully be done, because the tenant for life, being without impeachment of waste, might lawfully have cut down all the timber, and converted the proceeds to his own use. It does not seem to me material to consider, whether he could by law have cut down timber to the extent of that which be sold, because I am of opinion that, according to the terms of the testator's will, if the tenant for life thought fit to con- sent that the estate should be sold, he was bound to suffer it to be sold in the same state in which it was then« and not to sever the timber from it, but to let the whole go toge- ther. There would then be one entire sum to be received for the whole, part of which would be applied to the inte- rest of the tenant for life, and the residue would go to tbe remainder-man. It is said that the mode of dealing with tbe estate, adopted in the present case, was beneficial to thefimulj, because, if the tenant for life had cut down the timber be- fore the estate was sold, it would afterwards have fetcbed much less money. And probably that would be so; hot still I think the testator clearly meant, that if the tenant for life consented, to a sale at all, he should consent to the estate being sold with all that was on it, as it then stood. That 18 the ordinary sense and meaning of the words, '' sale of an estate ;*' for diough, in estimating the price, tbe land and timber are sometimes valued separately, still the whole Slim is paid at once, and it is considered as one price, and that is, in my opinion, what the testator in this case intended. That being so, the intention of the testator has not been complied with, therefore the power given by his will bas
HILARY T£RM» X GEO. IV. 517.
not been well executed, the uses have not been revoked, 1830. and the demandant is entitled to recover. We may regret. J"'^^'^^
... . . COCKERELL
and 1 certainly do for one, that a transaction which, so far and another as we can judge of it, appears to have been fairly intended, ^ olmelet should fidl in its e£fect ; but whatever regret we may feel, we are bound to decide according to law. In that view of the case, I think we are bound to say, that the power has not been well executed ; that the demandant is entitled to recover ; and, consequently, that the judgment of the Court of Common Pleas must be affirmed.
Batlbt, J. — I am of the same opinion. I think it clear beyond all doubt, that the deed was not a good execution of the power. The power was to sell tf^e estate. The estate, at the time of the sale, consisted of land and of timber growing upon it. The trustees were to sell it in the condition in which it was at that time. The timber was part and parcel of the estate at that time, and the tnistees had no authority to divide one part from ano- ther. It is said that the tenant for life might, if he had chosen, have severed the timber from the land, and have thereby acquired to himself a distinct interest in the former. It is sufficient in answer to observe, that the tenant for life had not acquired such a distinct interest ; and having not done so, but allowed the timber to continue parcel of the estate at the time when the conveyance was made, the whole of the purchase-money of the estate, comprising the timber as well as the land, went by law to the person in whom the estate was vested.
With respect to the revocation, if any authority were wanted upon that subject. Doe d. Willis v. Martin (a) is in point. It was there held, that the power to revoke was conditional, that is, a power to revoke, and to sell, and to substitute other land, and therefore there could be no valid revocation without a sale and a substitution, as parts of the same transaction. In the present case, indeed, as was sug-
(o) 4 T. 11.39.
518 CASES IN THE KING*S BENCH,
1830. gested in argument^ the trustees might have revoked by one p^"*"*""^^ instrument, and have sold by another ; but if they revoke aud another by an mstrument which shews that the sale which they in- Cholmelet ^^^^^ *^ effect would be in its nature a defective sale, and not a valid execution of the power, such a revocation can- not be supported. Here they had a right to revoke,— but only to the end that they might sell, and that they migbt Hell pursuant to the power, that is, the entire estate toge- ther. Such a sale would put into the possession of the remainder-man, the whole of the money resulting from it; but here, before they revoke, they state, by way of recital in the deed, that there had been a bargain, by i^hich the land was to be sold for one sum of money, and the timber for another, the purchase-money of the timber to be applied, not for the benefit of the remainder-man, but for that of the tenant for life. Now that is a revocation, not for the pur- pose of making a valid sale, but for the purpose of making a sale which the power does not authorize. I am therefore of opinion that the judgment of the Court of Common Pleas ivas right.
LiTTLEDALE, J.^-The power giveti to the trustees is to sell and dispose of the estate. That can only mean, to sell Imd dispose of the estate with every thing on it, as it stood at the time. They had no power to divide the land and the timber growing upon it. It was not d good execution of the power, therefore, for them to sell the land, and then for the tenant for life to sell the timber. But then it is said they have at all events revoked the uses in the will Now a valid revocation could only be made " to the end" that they might make such a sale and conveyance as tbej were authorized to make; and if they have made a sale and conveyance, but not such a one as they were authorized to make, the end of the revocation is not accomplished, and the revocation itself fails. Though they might make the revocation and the conveyance by separate deeds, it must all be considered as one act. If they made the
HILART TERM, X G£0. iV. 619
refoetttoa to-daj, they might make the conveyance to* isso.
morrows still they would be parts of the same transaction; ^^"^^
and u toe conteyance in this case cannot be carried mto wid anodier
cfccl, the vocation iaUs also. Cholmilit.
Pakkb, Ji^-^I am of the same opinion* To the second |K)int madei that the revocation had taken place, and there* fore that the demandant's estate had been ditestedi the answer is, dmt the power of revocation is given only to the end that such a sale shall be made as is permitted by the power; a revocation made for any other purpose is, there» fore^ void. That brings us back to the first question — whether the sale made in this case was such a sale as is au** thorized by the power f Now, I thmk it cleari from the terms of the power, that the trustees were not authoriaied to sell the estate without the timber,--tbat they must sell both together. But they have sold the estate without the timber ; tbat^ therefore, is not such a sale as is authorized by the will creating the power; and the power of revoca* tion, having been executed for the purpose of making a sale not warranted by the power, is void.
Judgment affirmed.
Cross, Serjt. then applied for, and obtained a rule for the plaintiffs in error to shew cause why the defendant in error should not recover his damages and costs against the plain* tiffs, m error, pursuant to the statutes in that case made and provided ; against which
Pedhtf Serjt. afterwards (a) shewed cause. This appli- cation is founded upon two statutes, S H. 7, c. 10, (con- firmed by 19 S. 7» c. 20,) and Id Car. 2, st. £, c. 2. The former statute directs the Justices (that is the Court, (6) )
(a) This rale was argued and (6) The Court of Error. See
decided ia Easier term, 1880, but Salt t. Richards^ 7 East, 111.
from its immediate connection with Where the House of Lords af-
tiie foregoing case, it was deemed firmed the judgment, and remitted
advisable to insert it here. the record without awarding costs
520
1830.
COCKERELL
and another
V.
Cholmelby.
CASES IN THE KING S BENCH,
before whom a writ of error is sued, to give damages and costs for the delay and wrongful vexation, according to his discretion (a). It has been sometimes doubted, whether this statute extends to cases where no damages are recover- able in the original action (&)• In Henslow v. The Bishop of Salisbury (c), one of the earliest cases upon the subject, it was held, that costs were recoverable in a writ of error in quare impedit, though no costs could be recovered in the original writ ; and there have been subsequent decisions to the same effect. In Graves v. Short {d), costs were allowed in a writ of error in formedon ; but in Smith t. Smith ie)f a directly contrary decision was come to ; and in Wiimev, Lloyd (f)f costs were refused on a writ of error to reverse a recovery. However, in Ferguson v. Rawtin' son ig), it was decided that the plaintiff in a qui tam action was entitled to costs; and it must be admitted, that since
in parliament, it was held that the Court of King's Bench could not order the Master to allow the costs in parliament. Beale v. ThompiOMf 9 Maulo & Selw. 249.
(a) The 3 H. 7, c. 10, recites, ** that where oftentimes plaintiffs or demandants that have judg- ments to recover, be delaj^ed of execution, for that the defendants or tenants against whom judg* ment is given, or other that havo been bound by the said judgment, sucth a writ of error to annul and reverse the saidjudgment, to the in- tent only to delay execution of the saidjudgment ;*' and enacts, *' that if any such defendant or tenant, or if any other that shaU be bound by the said judgment, sue, afore execution had, any writ of error to reverse any such judgment, in delaying of execution, that then if the said judgment be affirmed good in the said writ of error, and not erroneous, or that the said
writ of error be discontinued to the default of the party, or thic any person that soeth such writ of error be nonsued in the sane, that then the said person agaimt whom the said writ of error is sued shall recover his costs and damage, for his delay and wrongful vexf tion in the same, by discretion of the justice afore whom the said writ of error is sued,"
(6) " It seems that it does ei« tend to cases in which the plaintiff is not entitled to costs in die ori- ginal action ; Ferguson r.Ramiinr son, Andr. J 13; 3 Str. 1064; (accord. Cro. Eliz. 616,) over- ruling Smiih y. Smithy Cm. Car. 425; Winney.Llcyd, lLev.i46; Raym. 134,contrJi.'' 1 Chitt.SuU. «r4,(f.)
(c) Dyer, 76 b.
(d) Cro. Eliz. 616.
(e) Cro. Car. 4S5.
(/) 1 Lev, 146; Raym. 134. (g) Andr. ItS; 2Str. 1064.
HILARY TERM, X GEO. IV. tbat decisioD the statute has been considered as applying to all cases ; so that^ perhaps^ it cannot now be successfully r ^"^"^^ contended, tbat the defendant in error in this case is not and another entitled to costs under the statute 3 H. 7, c. 10. But the QaoLiiBLEr. present application does not stop there^ for it is contended on the part of this defendant in error^ that he is entitled to double costs under the statute 13 Car. 2, st. 2/c. 2, s. 10 (a). To these it is submitted he is clearly not entitled, as this statute extends only to writs of error after verdici, which most mean writs of error on a judgment founded on a ver- dict; whereas this writ of error is not on the judgment founded on the verdict of the jury, but on the judgment founded on the facts admitted by the demurrer to the eighth plea. Thisris, therefore, not a writ of error *^ after verdict" within the fair meaning of those words, as applied in the statute. Besides, the statute is directed only against vex- atious writs of error (6), brought for the purpose of delaying execution upon judgments after the jury have decided a question of fact, and not against a case like the present, which involved a serious and important question of law.
Crou, Serjt. contrs^. It is conceded that the defendant in error is entitled to his ordinary costs under the statute of Henry 7, and it is equally clear that he is entitled to double costs under the statute of Charles 2. The latter statute is general in its terms, for it speaks of '' any writ of error for reversal of any judgment whatsoever, given after any ver- dict." That it refers to vexatious writs of error is true ; but it comprehends all writs of error after verdict; and
(a) Which enacts, ** that if any error, his double costs, to be as-
penoD shall sue or prosecute any sessed by the Court where such
wiit of error, for reversal of any writ of error shall be depending,
jodpnent whatsoever given, after for the delaying of execudon.'^ anj verdict, in any of the Courts (6) The sUtute is intituled ^ An
aforesaid, and the said judgment act for prevention of vexations and
shall afterwards be affirmed, then oppressions by arrests, and of de-
every such person shall pay unto lays in suits of law.*' the defendant in the said writ of
5B2 CA8£S IN THE klKO's BENCH,
16io. etery writ of error^ brouf^ht after verdict^ nmat be
CocKfeKiBtL ^^^^^ vexatioust Id tbis case^ it appears by the record,
and Bflotber that the writ of error wa« brought after a Terdict found
CaoLKBLtr. ^P^" ^^® issues id fiict^ aUd therefore it falls moat strictly
within the scope of the statute.
The Court took time to esamme the assigometit of errors, and to consider of their judgmentj -which was afterwards thus delivered by
Lord TftNTBRdBK; C. J.-^We have examined the as- signment of eiit>rs in this case, and find the first to be, diat the count or declaration is insufficient. Upon that ground, had it been well founded^ the judgment ought to have been reversed, notwithstanding the verdicti The writ of enror, therefore, was brought for the reversal of a judgment after verdict^ within the meaning of the statute 13 Car. 8, St. 8, C. % s, 10, and is not as if it had been brought merely to reverse the judgment on the demurrer to the replicatioD. This rttle> therefore, must be made absolute.
Rule absolute.
HuNTBB and others v. Lbathlby.
l^aI"^^tMSn Assumpsit on a poHcy of insurance at and from
of a policy, Singapore, Petiang, Malacca, and Batatia, all or any, to
which he
effected, and on which he has a lien^ is compellable to produce it under a subpceos
duces tecum, on the part of the assured, on the trial of an action against the ondei^
writers.
And he is a competent witness, notwithstanding his lien, to prove aU matteis eoo- nected with the poHcjr.
Policj of insurance on goods bj ship ** at and from Singapore, Penang» Malacca, and Bata?ia, all or any, to the ship's port of discharge in Europe, with leave to touch, itij, and trade at all or any ports and places whatsoever and wheresoever in th^ East India, Persia^ or elsewhere^ &c., beginmna the adventore upon the goods fh>n the loading thereof on board the ship as above. The ship took in some goods at Batavia, then went to Sourabaya, a port in the East Indies, but not in the direct course from B^taria to Europe, and took in other goods, then returned to Batavia, and afterwards sailed froin thence for Europe, and was lost by perils of the sea. Held, that the going to Sonn- baya was no deviation, and that the goods taken in there were protected by the policj.
HILAE7 TERM, X GEO. Vt.
the ship's port or ports of discharge itt Great Britain^ or to any port or ports in the United Netherlands, or to Altona or Hamburgh, or to all or anj, with leave to tbacfa, stay and trade, at all or any ports and places whatsoever and wheresoter, in the Bast Indies, Persia, or elsewhere, as well beyond as at and on this side of the Cape of Good Hopei in port or at sea^ at all times and in all places^ and ualil safely arrived and landed at the ship's final port br place of discharge ; upon any kind of goods and tnerchan* dize, and also upon the body, &c., of the good ships or fessels called the Albimi Bolivar, Jai)a PackH, and Blose, beginning the adventure upon the said goods and mei^ chandize from the loading thereof on board the said ships as above, with leave to call at or off any ports or places in Great Britain, and wait for orders, 8tc. And it should be lawful for die said ships, &e., in that voyage, to proceed and sail to, and touch and stay at any ports or plaeeft whaU loever and wheresoever^ in any direction) and for any pur* pose, necessary or otherwise, particularly Singapore^ Pe-> nang, Malacca, Batatia, the Cape of Gckni Hope> and St Helena, with leave td take on board, discharge, reload> or eicbange goods and passengers, without being deemed any deviation from, and without prejudice to that insur* ance. By a memorandum, the policy Was declared td b^ on goods, as interest might appear^ with leave to declare the same thereafter. Averment: that afterwards> to witi on &c., the interest in the said goods and merchaudtste so in^ tended to be insured by the said policy, was duly declared to be all in the Java Packet on coffee, and that the defend^ ant subscribed the policy for 300/., at a premium of 6/. 651 per cent. That afterwards, to wit, on ka, at Batavia, itl the policy mentioned, coffee to the value of 10,000/w had beea and was shipped and Idaded in and on bodrd of the said ship tailed the Java Packet, to be carried therein oti the voyage in the policy mentioned, to wit, towards and onto Antwerp, being a port in the United Netherlands ; and that also afterwards, to wit, on 8lc., to wit, at Sourabaya^
dOd
1880.*
HuKtSA
fltid oHien
524
1880.
Hunter and others
V.
Leathlby.
CASES IN THE KINO S BENCH,
being a certain port or place which the said ship proceeded and sailed to^ and touched and stayed at» under and by virtue of the said policy^ to take on board other goods, divers other goods* to wit, 10,000 peculs of coffee, and 10,000 bags of coffee, of great value, had been shipped and loaded in and on board of the said ship, to be carried and conveyed therein to Antwerp aforesaid. Averments of interest, and of a total loss by perils of the sea. Plea : noa assumpsit. At the trial, before Lord Tenierden, C. J., at the London adjourned sittings after Hilary term, 1828, the broker who had effected the insurance, and who had been served with a subpoena duces tecum to produce the policy, was called as a witness on the part of the plaintiffs for that purpose, but objected to produce it, on the ground that he had a lien upon it, for premiums advanced, the value of which would be lost by his producing the policy, as it would no longer be the interest of any one to take it ajK Lord Tenterdm, however, was of opinion that the witness was bound to produce the policy, and that he would nof thereby be deprived of his lien. It was then objected on the part of the defendant, that the witness, having a lien, was interested, and therefore incompetent, and that be could not be examined. Lord Ten^^rdm overruled the objection, and the witness was examined. The jury found a special verdict, in substance as follows :— -
The policy of insurance mentioned in the declaration was effected by John M^jlUan, as agent for the plaintiffs, and was subscribed by the defendant for 3O0L The in- terest intended to be insured was duly declared^ to hfi all in the Java Packet, on coffee. At Batavia, coffee to the value of 9^8/. 3«. 6d. was loaded on board that vessel, by the plaintiffs, to be carried to Antwerp. Batavia is a port in the island of Java, which is one of the islands in the East Indies. The vessel proceeded from Batavia to Sourabaya, which is another port in the island of Java^ where coffee to the value of 5865/. l6f. 6d. was loaded on board her by the plaintiffs, to be carried to Antwerp. The
HILARY TERM, X GEO. IV.
total value of the coffee loaded on board at Batavia and Soarabaya was 6^9%L 65.; the amount insured by the po- licy was 7500/.; no other goods were shipped by the plaintiffs on board the vessel, in respect of the insurance effected by the policy. The vessel returned from Soura* baya to Batavia, and afterwards sailed from Batavia for Antwerp. Sourabaya is not in the direct course from Batavia, Singapore, Penang, or Malacca to Europe, nor in the direct course from any one to any other of those four places, but is directly out of the course from each of those four places to Europe, and from each of those four places to any other of them, and is distant from Batavia four hundred miles eastward. Singapore, Penang, Malacca, and Batavia are not, according to the order in which they are mentioned in the policy, in the direct course of a voyage therefrom to Europe ; but the direct course of a voyage from those four places to Europe, is according to the fol- lowing order : — Penang, Malacca, Singapore, and Batavia* Any port or place in Persia is more than 1000 miles out of the course from any one of those four places to Europe. The whole of the coffee was the property of the plaintiffs, who were interested therein, as mentioned in the decla- ration. The vessel was, before her arrival at Antwerp, wholly lost by perils of the sea, and the coffee thereby whoUy lost to the plaintiffs.
526
1880.
Hunter and others
V.
Leathlet.
In Easter term, 1828, JP. Pollock, on behalf of the de- fendant, moved for a rule nisi for a nonsuit or a new trial, OD two grounds : first, that the broker ought not to have been compelled to produce the policy ; and, secondly, that he was not a competent witness. First, the broker was not bound to produce the policy. He had a lien upon it, and he had a right, at his own discretion, to refuse to ex- hibit it, until that lien was satisfied. It was for him to de- termine, whether it was prudent to submit the instrument to the inspection of the plaintiffs, as it might turn out to be utterly worthless. [Lord Tenierdm, C. J. Then he
528
1850.
HVHTEB
aodothcm
V, l4SATHLBr.
CASES IN THE KING 8 BENCH,
would have made a worthless paper the means of obtaibiog a large sum of money.] He was entitled to render his security available if he could. [Bajfky, J. Suppose I have a lien on goods in my custody, and the owner withes to shew them to a customer, or to inspect them for the purpose of ascertaining their value, can I refuse him this?] There is no case which decides that a party so situated is compellable to produce the goods. A lien is a right to keep the goods or papers of another, and to compel paymeet of a debt, by reason of the inconvenience to which the owner may be thereby put. The owner of a document, upon which another has a lien» may wish to inspect it, in order to judge whether it is worth his while to redeem it; but it seems no more than just that the party claiming the liea should have it in his power to exercise his paramount right by denying the inspection. The contract between the parties upon which a lien arises, is» that the one shall keep the goods until his lien be satisfied by the other. [Btgle^t J. But the production of a document, as evidence, does not teke it out of the possession of the witness.] Its pro- duction puts it into the possession of the Court The case of Lofd V. WiiTnddg1U&n{a\ seems much in point In that case the defendant having died, his solicitor claimed a Uea for his costs upon the papers in the cause^ which had been revived against the executors of the defendant who em- ployed another solicitor. The executors moved, that the former solicitor might be ordered to permit an inspection of the papers, and to produce them when necesaary for the purposes of the cause. Lord Eldon, 0. said, ** I think it would be a greater hardship on him, to make him produce them, than on the client to refuse it My present impres- sion is, that he ought to be al|le to make use of the non- productbn of the papers in order to get at what is due to him ;'* and his lordship having afterwards conferred widi the Master of the Rolls and the Vice Chancellor, in order that the point might be settled, reAised to make the order
(a) 1 Jacob, 480.
HILAR? TERM, X 0^0. IV. prayed* Secondly* Ibe broker wm qoI an admissible wit- (Here he was stopped by ibe Court.)
527
0688.
1830.
Xiord TENT^RQBKy C. J.— We are all of opinion that th« broker was compellable to produce Ibe policy, not- withstaqdiifg bis lien upon it. The case cited was essen- tially different from the present* That was an application to the dmretion of the I^ord Chancellor) a discretion slways exercised in the way most likely tg do justice between tbe parties. In ibia case the witness oame into Court under a subpcnna duces tecum, a writ which the psr^ requiring tbe production of a document baa a fight to tske Qutj and to insist that it shall be obeyed. The policy bsTipg been once brought into Court, if we were to allow the broker to withhold it on account of bis lien, we should permit that which would work great inconvenience and in- justice, and should enable brokers to assist the undei^ writers in defeating the juat claims of the assured. We do not, by this decision, deprive the party of bis lien ; he still has the policy in his possession, and has the same right in re8pect of it as before. Whether the broker was a com- petent witness, is a question worthy of further considera- tion) and upon that there may be a rule to shew cause.
Bay LEY, J.-rTbe lien of an attorney is different from liens in general, as there is an understanding between him aad his client, that if the dient shall think proper to change his attorney, the papers shall be retained until the bill of costs is paid. The attorney looks not so muek to the V9ht of tbe papers be holds to secure payment, as to the mooimenitntt that mi|y be produced by his detaining them until his bill is paid ; but where goods or papers are in tbe hands of an ordinary creditor, there is no understanding that be is to have more than the possesnon, and the pro- ducing those goods or papers to the owner, or to a third person, or in evidence at a trial, does not take them out of his possession. The distinction between the two cases is
528
1830.
Hunter and others
V.
Leathucy.
CASES IN THE KING S BENCH,
this, that in the one the value is the security for the debt, and in the other the inconvenience.
LiTTLEDALE, J. — Whether the witness was entitled to the lien which he claimed, it seems to me it was not for the Court to inquire. He claimed a lien upon a docu- ment be had in his possession, and which he objected to produce, unless the Court would impose terms upon tbe party calling for it. I think It was not in the discretion of the Court to impose any terms, but that the witness was bound to produce the policy under the subpoena duces tecum. If it were held that a witness ought under such circumstances to have his lien discharged, it might be im- possible to ascertain the amount of it at the moment in a satisfactory manner ; and at all events, long and irregular discussions would arise. Or the plaintiff might be non- suitedy and the statute of limitations^ or some other matter, set up in defeat of a future action, and the broker would have it in his power to prevent the success of the plaintiff whenever he thought proper.
Parke, J. — A lien is a mere right of possession, and does not relieve the party claiming it from the necessity of producing the instrument which he holds, when regularly required to do so for the purposes of a cause. The lien of carriers, of manufacturers, of warehousemen^ or wharf- ingers, gives them only a right of possession; and tbe owner of the goods may inspect them himself, or shew them to others, so long as he does nothing to interfere with that possession. The case cited is applicable only where a solicitor is called upon to produce papers; and the true distinction between that case and tlie present has been pointed out by the Court.
Rule refused on the first ground.
Rule nisi granted on the second ground ; against which
Scarlett, A, G., Campbell, and Joshua Evans now shewed
HILARY TERM, X GEO. IV.
caDse» The single question now before the Courtis, whether the broker, having a lien on the policy, was a competent wit- ness. If he is incompetent, no attorney or agent can be a competent witness for his employer. Every attorney has a lien upon tlie judgment obtained by his client^not merely for the costs of the particular action, but for his general bill of costs; but that has never yet been held to render him in- competent* Now the broker hds a lien, '•ot upon the judgment, but upon the policy only, therefore his interest is much more remote than that of the attorney. Indeed, lie bas no direct legal interest in the event of the suit, and consequently he is competent. In Dixon v. Cooper (a), a fMtor who sold for the plaintiff, and was to have a shilling io the pound for himself, was held a competent witness to prove the contract and sale. So, in Benjamin v. Porteus (6), a person who was employed to sell goods, and was to have for himself whatever money he could procure for them beyond a certain sum, was held a competent witness to prove the contract between the seller and the buyer* Be- sides, servants and agents are, in all casesi competent wit- nesses ex necessitate. Barker v. Macrae {c)»
52d
1830.
Hunter and others
V, LEATflLET.
F. Pollock, Monk, and Paiteson, contri. The broker in this case cannot be considered as a witness ez necessitate, for he was not called to prove a mere matter of form, ne- cessarily within his knowledge as agent, but to prove the substantive allegation in the declaration of the interest of . tbe plaintiffs in the goods insured. In Gevers v. Mainwar^ isg(i), in an action against the principal for negligence tod misconduct in a purchase, the broker, who made the contract for him, was called to prove that there was no negligence or misconduct ; and it was held that he was not competent without a release from his principal. \Parke, i' There the verdict would have been evidence against him,] The lien claimed in this case was not of the ordi-
(o) 3 Wilson, 40. (&) 3 H. Bl. 590.
VOL. V.
(c) 3 Campb. 144. (rf) Uolt, N. P. C. 139. M M
aod others
LEATBLSr.
CASES IN THE KIK6 8 BENCH,
Dary nature, and the witness admitted that he looked for piy- ment of his claim solely to the funds to be derived from the action. [Lord Tetsterden, C. J. Suppose as attorney ad* mitted that his client could not pay his costs unless he recovered a verdict, would that render him incompeteat?] Even witnesses ex necessitate may be incompetent by res* son of their interest. Where the interest of the witness may be got rid of by the payment of money due to him, that ought to be done. If a servant, for instance, is inoom* petent by reason of wages being due to him, the maslw ought to pay him, and so destroy his interest, befove be hss the. benefit of his evidence. . So here, the plaoitiffii ought to have paid the broker what was due to him, and then there would have been no objection to bis testimony*
Lord Tenterbbn, C. J. — We have already decided that the broker in this case was compellable to produce the policy itself; and I am also of opinion that he was compe- tent to prove the facts and circumstances connected with the policy. I cannot distinguish this case from that of sa attorney who has a Hen upon the judgmeQt. Besides, the broker here was a witness ex necessitate, for he made the contract between the parties. In Beigwnin V. PixrUiu{a), a factor was, under such circumstances, admitted to prove the contract, although he was to be paid according lo the price obtained for the goods.
Bayley, J«— The plaintiffs might, by paying off the bro- ker's demand, have destroyed his interest and removed aH objection tohipi; but i do not thifik they were bound to do so. He was a witness ex necessitate, and as such the plaintiffs were, notwithstanding his intereat, entitled to his evidence, do far as the necessity extended.
LiTTLBDALE, J. — I am of the same opinion. The bro- ker was the agent of both parties, for they had both em-
(a) 9 H. Bl. 590.
Hit ART T£ft^f| X GEO. IV.
ployed hiiD in tho management of the policy; neither of tfaeoii therefore, can be permitted to object to his compel tenc; to prove the matters connected with the policy.
Pabib, J. — I think the broker was a competent witness. The fini objection is, that he was a creditor of the plain* tiA; but I cannot spe that the (ijefandant has any thing to do with that. Next, it is said that he was interested as ageat; but it is clear that an ageqt is admissible ex neces* titate rei to prove all matters relating to a contract made by bimseif. Lastly, it is said, that he had such a special inters eit in the policy as rendered him incompetent. If he had b^ the assignee or mortgagee of the polioy, that objection night hav^ b^en available, but that did not appear to be the cise; he had a mere Hep } and an attorney, though he has a lieoonthejudgment, is competent; and I take the reason of the niie to be, that whatever may be the result of the action', bis legal rights remain the same. If he looks lo the judg^ meat alone for payment, that may affect his credit, but nOI bii competency.
Bnle disph^ged, .
T1|0 special verdict was now urgued by
JdiJkM MPttfii, for th0 plaintiffs, Two objectiop^ will, U is suppoaedf be taken to the plaintiffs* right to re^y^Frr- firat, tbiit the going to SpurabayA wi^s » devjatipp; ^qd ^mmily, ibat the coffee tbwe tpH^n on.bofird wa9 apt proi- Iccted by the policy, The fMc of both those objectiops villilepeiKl upon the construction tp bp put upon the policy* IV mlo of construction, M laid down by Lford Elhnbo^ '^A ill U^rt9Qn v* Fnnch (a), and cited with approba- tion by tiord Ttnimt^n in L^ng v. Anderdon{h), is this — Ib^t the wpfds of a policy are tp be construed in their plain, Mytioaryf and popular sense, unless they have generally, in reipecl tci the subject-matter, as by the known usage of
(s) 4 East, 130. (6) 5 D. &' li. 397; 3 B. & C. 500.
M M 2
531
1830.
HUVTSE
and othen
a.
532
iBSO.
HUNTEll
and othen
V,
Leathley.
CASES IK THE KING S BENCH,
tradei or the likci acquired a peculiar sense distinct from the popular sense of the same words; or unless the context evidently points out that they must, in the particular in* stance, and in order to effectuate the immediate intention of the parties, be understood in some other special and pecnlisr sense. The description of the voyage in the present policy is — '' at and from Smgapore, Penang, Malacca, and Bata- via, all or any, to the ship's port or ports of discharge b Great Britain, or to any port or ports in the United Nether- lands, or to Altona or Hamburgh, or to all or any, with I leave to touch, stay, and trade at all or any ports and places whatsoever and wheresoever in the East Indies, Persit, or elsewhere, as well beyond as at and on this side of the Cape of Good Hope." Such a description clearly proves that the parties contemplated what may be termed a roving or seeking voyage; and independently of authorities, it is diffi* cult to understand how any serious doubt can be suggested, of the run to Sourabaya being within the '< leave*' given by the policy. Nor does there seem any reason to doubt that the coffee taken on board at Sourabaya was protected bj the policy. After the enumeration just adverted to, of the places at which the vessel was at liberty to touch, stay, and trade, the policy proceeds thus — ** beginning the adventure upon the said goods and merchandize from the loadmg thereof on board the said ships a$ abovei^ which can odI; | mean a loading at any of the ports or places above mea- |, tioned, as those at which the vessel was at liberty to touch, .' stay, and trade. It may be said that the vessel ought to | have gone to the several places mentioned in the policy is their geographical order, and could only touch at other places in so doing. [Lord Tenlerden, C. J. That siirel; will not be contended, after the finding in the special ver* diet upon that subject.] If it should, the Court has antici- pated the short but conclusive answer, which is, that it is impossible to go to those places in the order in which thej are mentioned in the policy. Without authorities then, the natural and obvious meaning and construction of the policy
HILART TERM, X GEO. IV.
is dearly in favour of the plaiotiffs; but in case of any doubt upon that point, the authorities are as clearly in their &vour^ In Bragg v. Anderson {a), it was held that a policy ^' at and from Martinique, and all and every the West India Islands/' warranted a. course from Martinique to islands not in the direct homeward voyage. Lambert v. Liddard (6), Metlish V. Andrews {c)^ and Metcalfe v. Parry {d), are all decisions to the same effect; for it was held in all those cases, that vessels touching at places out of the direct course of their voyage from the ports where the policies attached, were protected by those policies; and the policy in this case is quite as general in* its terms and comprehensive in its operation, as any one of those referred to. As to the object of the vessel's going to Sourabaya, it is clear that she went thither bon& fide in the prosecution of the adven- ture, and with a view to the ultimate accomplishment of the voyage to Europe, and therefore she was protected; Warre y.MiUer{e), BoltomJUy v. BovilHf). Secondly, the coffee taken on board at Sourabaya was protected by the policy. Upon thia point there are some cases which will probably be relied on for the defendant, but they are all distinguish- iUe from the present. In Hodgson v. Richardson (g), a policy << at and from Genoa" was held not to cover goods previously laden at Leghorn ; but that was upon the ground ibat there had been a concealment of the true port of load- ing, which vitiated the policy. In Spitta v. Woodfnan{h) it was held, that '' if a policy be effected on goods on a voy- sge defined from A. to B., the risk to commence ' at and from the loading thereof on board,' not saying where, it most be intended a loading at the place at which the voyage commenced." And in Mellish v. Allnutt (t) there was a
533
1830.
HUNTBR
and otbers
V.
Leatblby.
(«) 4Tannt. 2^9. (h) 5TauDt. 480; 1 Marsh. 14d. (c) 5 Taunt. 406; il^ M. & S. 57; 16 East, 319. (<0 4 Campb. 1$3.
1 C. & P. 237.
(/)rD.&E.70^; 5B.&d. 210. . (g) 1 W. Bl. 463.
{h) 8 Taont. 416.
(0 7 P. & a. 1; 4 B. &C. 538; (i) 2 M. & S. 106«
634
1830.
HOWTEII
And others
V. LEAttlLET.
CASES IN TH£ Rlko's BENCH,
ditnilar decision upon pi-etisely the sariie principle; The distikiction between M these cases and the present iS| that here tlie policyi after enumerdting the various places al which the vessel may touch, declares that the risk shall cotrimeoce from the loading of the goods as ahoi^l cleaHy tneabittg.t loading at any of the places before enbmerat«d> The rule of construction adopted in the clises last referred to, hM been since (considered as one not to be favoured of ekteod* ed(a); lind any oircumstance, however slight, wiH silflSte to tak« a cdse out of it. Thus^ in OlddHMi v. Cithf{b\ the introduction of the word ** wheresoever/' After the wonh V from the loading thereof on board the ship)'' Was heM sufficient for that purpose. But the cUse of Vwki r. AH- nmt (c)i is expressly in point for the presetit piaiiltiffSj for k was there held> that liberty to touch At a port for Any pur- pose whatever, includes liberty to toueh fdr th^ purpose of taking on board part of the goods insured \ and that hoMing was confirmed in Barclay v. Stirlitig{d)^ which WAS tb the same effect, except that there the hisuraiiceWAA on freight instead of goods.
Pniteson^ control There at^ threA objectfoiM lo die plaintiffs' right to recover in this case— first, the VAisCl ttem sailed on the voyage insured; secottdlyi If the did ssil os that voyage^ the going to Sourabaya was a de^hlioni sod thirdly^ the policy does not cover the gilods tttken on board at that place*
First— *The voyage insured was " at and ftom Sibgaporr, Penangi Malacca^ and Bataviai tiH or aH^i to tbA ships
(a) See the observations bf I^ord ElUnborough on the decision in SpiUa v. Woodman, in Bell v. Uolh son, 16 East, S40.
(6) 1 Milule&Selw^41d.
(c) 3 Taunt. 419. The policy there was on' goods at and from Pl^rnoath to Malta, with liberty to touch at Penzaiice; or any port
hi the Clkannel tb the wcstwanl, for anv purpose whatever, ** ban- ning the adventure ftom the \o^' ing of the said goods on houi the l^^id ship as choice :^ and it was held, that goods loaded at Pen- zance were protected by the policr. And see post, 541, 549. ((0 6 Maule & Selw« 6.
HILARY T£RM| X GEO. IV.
port or ports of discharge in Great Britain, or to any port or ports in the United Netherlands^ or to Altona or Ham- burgh| or to all or any." There the description of the voy- age ends. The words which follow, '' with leave to touch, stsyi and trade/' ftc, form no part of the description of the foytge; they merely give a liberty to touch at the places there mentioned, without the doing so being deemed a de- riation from the voyage before described as the object of die insurance 3 the voyage insured was to commence from one of the four places originally named. If those places were not to be considered as distinguished from the other places mentioned in the general words, for some purpose or other, there seems no reason for mentioning them at all; •lid the otily imaginable purpose for which they could be inteoded to be so distinguished is, that one of them should form the terminus a quo the voyage to Europe should com- mence. Now the ship did not sail from any one of those four places ob a voyage to Europe; she sailed from Bata- f ia to Sourabaya, four hundred miles out of the course of a voyage from Batavia to Europe, for the purpose of pro« curing a cargo. She did not, therefore, sail on the voyage iosured at all, consequently the policy was discharged; WooUhdge v. BojfdeU{a), Way v» Modigliani (6). Bottom'^ fey V. Bavill{c)f which was citfed on the other side, belongs to a class of cases very different from the present. That wts a policy on a voyage from London to New South Wales and back{d), with liberty to go to certain places in the
535
1880.
(a) 1 Dougl. 16) where it was heM, that if a ship insured for oM voyage smls upon another, dmig^ she is taken before reach- ing the dividing point between the two vojages, the policy is dis- cbii|^d.
{h) 9 T. R. 30, where it was held, thai if a ship, insured from a ccftaia lime, sails before that lime 00 a different voyage from that in- sured, the asBttted cannot recover,
HUNTiR
and othen
V.
though she afterwards get into the course of the voyage described in the policy, and is lost after the day upon which the policy was to have attached.
(c) r D. & R. ro«; 5 B. & C. 910.
(d) The policy in that case was not from London to New South Wales and hack. It was " from London to New South Wales, and frbm thence to all ports and places
536
1830.
Hunter and others.
V. LSATBLET.
CASES IN THE KING*S BENCH,
East Indies. The vessel did sail from London to New South Wales, and the question in the cause arose upon a subsequent loss (a). But the present was not an insurance on a voyage out and home, to the East Indies and back, but at and from four particular places named in the policy, or any of them, to Europe. The argument on the other side must go this length — that if the vessel bad taken in the whole of her cargo at Sourabaya, and bad never gone to any one of the four places named, the policy would still have attached; for that argument in substance and effect is, that all the places included in the leave to touch, &c., are embodied in the description, and made parts of the voyage insured* Unless that is so— unless the policy would attach even under those circumstances — it is quite immaterial that the vessel had been at Batavia before she went to Sourabaya, because she did not go there in the course and for the pro- secution of her voyage to Europe, but out of her course and for a different purpose, namely, to take in goods and then, to return to Batavia, In order to protect such a course, the policy should have been ** at and from Java /' not " at and from Singapore," See.
Secondly, if the ship did sail upon the voyage insured, and the policy ever attached at all, the going to Sourabaja was a deviation by which it was at once discharged. The permission to touch and stay at porta and places in the East
in the East Indies, or South Ame- rica, with liberty to take in and land goods and passengers, and to frade backwards and forwards, and forwards and backwards; premium SOf. per cent, to return 29<. 6d* if the voyage ends at New South Wala, and 15i. 6d. if the voyage endi at South America.'* On ar^ riving at New South Wales, the captain was ordered by the owners to proceed on a trading voyage to New Zealand, and from thence di" red to South America. He pro-
ceeded to New Zealand with JM^ sengere, and was returning from thenu to New South WaleSy whea the ship was totally losL It was held, that the sailing from Nev Sooth Wales to New Zealand and backf was a deviation from tht voyage insured, by which the in- surers were dischaiged; 7 D. ft E. 702. It seems difficult to see how that decision has any bearins upon the principal case on one ttde or the other, (a) See the last note*.
HILARY TERM, X GEO. IV.
Indies and Slsewhere, means only a touching or staying in the course and prosecution of the voyage insured, %vhicb was, a voyage at and from Singapore, Penang, Malacca, aad fiatavia, all or any of them, to Europe ; whereas the toucbiog and staying at Sourabaya was not in the course or prosecution of a voyage from Batavia to Europe, but of a voyage from Batavia to Sourabaya and back.
Thirdly, the goods shipped at Sourabaya are not pro- tected by the policy. The expression, '' beginning the adventure upon the said goods and merchandize, from the loading thereof on board the said ships as above" refers to the description before given of the voyage, to the four spe- cified places, at and from which the goods were insured ; and, ia order to be covered by the insurance, the goods must have been loaded at one of those four specified places. In SpiUa V. Woodman, (a), the insurance was on goods on a voyage at and from Gottenburgh to the ship's port of dis- charge m the Baltic, beginning the adventure, *' from the loading thereof on board the said ship;" and it was held to cover only such goods as were loaded at Gottenburg. The absence in the policy there of the words *' as above," and their presence here does not vary the cases, for those words cannot extend the operation of the instrument. The policy in this case: would have been equally extensive if it had omitted those words, and bad stated only, in general terms, that the adventure on the goods should commence from the loading of them on board the ship ; and in that view of this case. Grant v. Paxton (6), SpUta v. Woodman (c). Con- ^ble V. Noble (d), and Mellish v. Allnutt(e), are direct au- thorities in favour of the defendant. Nor is Gladstone v. Clay (f\ an authority against him, because there the policy was made to attach upon the goods *^ wheresoever-' loaded, upon the insertion of which one word that whole case turned^ 9nd which wholly distinguishes it from the present. In
537
1830.
Hunter and others
V.
Leathlev.
(a) S Taunt. 416. (*) 1 Taunt. 463. (e) 2 Taunt. 416.
(<l) 2 Taunt. 403. (e) 2 M. & S. 106. (/) 1 M. & S. 418.
538
1880.
HUMTEE
and others
V. LlATHIiBY.
CAS£S IN THE KtNG's &EMCH»
Orani v. Delacaar {0), the policy was on goods on ft voyage from London to the East Indies and back, beginning die adventure on the goods *' from the loaditig thereof on bosnl the said ship at London.'* That was held to protect goods not loaded on board at London, add necessarily so^ for to bold otherwise would have been to decide that the policy applied only to goods carried fit)m London to Indisi and brought back again from India td London ; which Would have been absurd on the face of it. The only cases that can at all be regarded as authorities for the plaintiffs are those of Violet v. AUntUi{b)t wd Barclay v. Stitlmg{c). As to those it is enough to say of the first, that it was but little considered, and that the goods there were taken on board in the prosecution of the voyage insured ; of the second, that it was decided entirely upon the authority of the first, and that there also the goods were taken on board while the vessel was prosecuting the voyage insured.
The Court took time to consider of their judgmenti which was afterwards delivered by
LordTfiNTBRDBN, C. J.| who, after stating the hcU found by the special verdict, thus proceeded. It is obvious, on the perusal of this policy, (in which So many places of departure and four ships are mentioned, with liberty to de- clare and speciiy the particular ship and goods ttflerwardS)) that at the time of the insurance the assured must have been ignorant of the particular port in the East at which goods for them would be shipped, as well as of the name of the ship and the species of the goods; and must, therefore, have intended to protect themselves from loss, whatever might be the sort of goods, by whichsoever of the four shipa socfa goods might be sent, and at whatsoever place or placea in the East they might be put on board t and the defendant, by subscribing such a policy, must be understood to hftve in- tended to afford a protection equally extensive, if the tenns
(a) 1 TauDt 466. (6) 3 Taunt. 419.
(c) 5 M. & S. 6.
HILARY T£RM^ X GEO. IV.
of the pdii<9 will admit of such Aki effect being given to Ihe instrument*
The mli^ for the construction of marine poltciea is tery well laid doWn by Lord Etlenborough in the case of Robert*- mn V. jFVericA (a)> which was cited in the argument. Hia lordship there said^ " Jtt the course of the argument it seems to have been assumed that some peculiar rules of eoastrttction apply to the terms of a polioy of insurance^ which are not equally applicable to the terms of other in- ^tniments^ and in all other cases ; it is therefore proper to state oil this head> that the same riile of eonstraetion ap- plies equally to this instrument of a policy of insurance $ namely, that it is to be construed according to its sense and meanings as collected, in the irst place^ from the terms used in it; whith terms are themselves to be understood an their plain^ Dlrditaaryi and popular sense, unless they have gene«> rally) in respect of the subject-matter, as by the known usage of trade>or the like, acquired a peculiar sense distinct iiroljli the popular sense of the same words ; ori unless the conteit evidently points out that they must) in the pardcukr instance and in order to effectuate the immediate intention of the parties to that conduct, be Understood m some other spetifti and peculiar sense*''
Such, theUi being the object bf the assured^ and such the rale of construction, we ere to look to the policy, in order to gather from thence whether or no the whole or any part of the plaintiflfs' interest can^ consistently with such de€i« sions as have taken place on similar subjects^ be cbnsidered it protected. The plaints contend that their entire in* Uerest) as well it) the goods shipped at Sourabayaas in those shipped at Batavia> is protected: the defendant insists that no part -is protected; or^ supposing the goods shipped at Batavia to be protected^ that the shipment at Soarabaya is, nbt% The grounds on which it was contended that no part was protected were, first^ that the policy did BOt attach ; the goods shipped at Batavia being, As it Wall urged, shipped, not for a voyage to Antwerp^ but for a voy- (a) 4 East, ISO.
539
\9S0.
HottTsa aad others
LBAtStiat.
540
1880.
Hunter and otlien
liEATHLBr.
CASES IN THE KING S BENCH,
age to Sourabaya and back to Batavia ; from ivhence a distinct voyage to Antwerp commenced. Secondly, tbat| supposing the policy to have attached on those goods while the ship remained at Batavia, yet the voyage to Sourabaya was a deviation. The ground on which it was contended that the goods shipped at Sourabaya were not protected, was, that Sourabaya could not be considered as a port of loading, or terminus a quo, within .the meaning of the policy.
We are of opinion that the goods shipped at Batavia were hi reality shipped for a voyage to Antwerp by way of Sourabaya, and that the ship^s first departure from Batavia was on such a voyage. And considering the very extensive powers given by this policy, both in the first and last clauses, we think the sailing to Sourabaya was not a deviation ; it could not be so deemed without a direct contradiction to the terms of the policy, it being clear that the ship sailed to Sourabaya for the purpose and in the prosecution of the original adventure contemplated by the policy. Upon these points the princi- ple of the decision in Melluh v. Andrews (a), is applicable to the present policy; the only difference between the two case sbeing, that in MelUsh v. Andrews, the places of i&- charge or termination of the voyage, and the course of sail- ing for that purpose, were left undefined, by reason of the uncertain state of commerce in the Baltic; and in the pre- sent case the places of shipment or commencement of the voyage, and the course of sailing for that purpose, are left undefined, by reason of the ignorance of the assured as to those particulars. The order in which the fonr places named stand in the policy, shews plainly that a voyage in the direct geographical or nautical course was not thought of, it. being clear that it was thought possible that goods might be laden at each of those places.
With regard to the goods shipped at Sourabaya, theqnei* tion is, whether that place can be considered as a loading port or terminus a quo within the meaning of the policy*
(r) 5 Taotit 496; 8 M. & S. 27 ; 16 East, SIS.
HILARY TERM, X GEO. IVi
Soambaya is certainly a place in the East Indies, and so within the meaning of the words used in that part of the policy wherein the voyage is described. But it is said that the words '' ports and places in the East Indies, Persia, or elsewhere,*' not following directly after the four places first named as the termini a quibusj^ but after the places named as the termini ad quos, and being introduced by the words '' with leave to touch, stay, and trade,'^ cannot be under- atood to designate places of shipment; but only places to which the ship might be permitted to sail for some other purpose. On the other hand, it was contended that those words might, according to two decided cases which I shall presently mention, be considered as designating places of shipment, and that in this particular policy they must be so considered, because the places to which the ship might sail without deviation or prejudice to the insurance, are afterwards mentioned and provided for by the policy in a dutinci clause, of which the language is more loose and comprehensive than the language of the first clause. Now, if we suppose that a shipment of goods by the plaintiffs at some place that might be imagined, as, for instance, on the coast of Brazil^ would not be a shipment within the first clause, and so not be protected by the policy ; but that, nevertheless, if the ship, after receiving the plaintiffs' goods, had sailed for that coast for some other lawful purpose, the benefit of the policy would have been saved by virtue of the latter clause; the two clauses will have each a distinct and appropriate sense. And without determining what efiisct the latter clause might have on a question as to the places of shipment, we are clearly of opinion that the words 'Sports and places," Sec., in the first clause may and ought to be understood as designating such places. And the two cases of Violet V. Attnutt(a), and Barclay v* SHrling(fi), are plain authoritiet to shew that a place mentioned after the words ''with leave to touch," Sec, may be understood as designat- ing a loading port. The first of those cases was an insurance on goods by a ship at and from Plymouth to Malta, with (fl) S Taunt. 419. (6) 5 M. & S. 6.
18S0.
Hunter and others
V. LSATHLSY.
1830.
Hunter
and others 1?.
liSATBLBT.
CASES IN THE KING S BEVCH,
liberty to touch at Pensance, or any port in the diaimel to the Westwfirdy for any purpose whatsoeTer. The ship, after receiving some of the plaintiff's goods at Plymouth^ sailed to Penaance, and there received other goods of the plaintiff} after which a loss happened* The only question was^when ther the insurance attached on the goods shipped at Pen-r sanee. The verdict had been taken in respect of those goods ; and the Court was cleiirly of opinion that the in- surance did attach upon |hem| and refused even a rule nisi for setting aside the verdict.
The case of Barclay v. Stir Hug (a) arose out of an ii|9ur* ance on freight The voyage described in the fiolicy wa% '^ at an<| from her port or ports of loading in Jamaica to her port or ports of discharge in the United |[ingdpni> with leave to call at all, any, or every one of the Bri- tish and foreign West India Islands^ to seek, join* and ex- change convoy, beginning the adventure upon the goods from the loading thereof on board the said ship as afore- said.*' In a subsequent part of the policy, after the psual declaration that it should be lawful for the ship in diat voyage to proceed and sail to, and toqch and stay at any ports whatsoever, the following words were iBtM)diiced> ^^ and wheresoever, with leave to dischaige, exchange^ and take on board goods at any ports pr places she may call at or proceed to, without being deemed any deviilito from and widiout prejudice to this insurance.'' That was an in- surance^ not on the goods of any particular person, bot on thfi freight lo be earned by conveying tl^e gqodl of any person; but the question was the same as on a policy on goods, ^he ship took in a cargo Ht Jamaica, got on shor§ off the island of Cuba, and grM part of her cargo was there lost. Sjie was afterwards taken to the Havannab and repaired, and tbere took h aome freak goods for London « and the question was, whether the freight of these latter goods was proteoted by tha policy. The Court held that it was protected, considering the peHcy to attach on die freight qf goods laden fit any intermediate (b) 6 Maule & Selw. 6.
HILARY TERM, X GEO. IV.
place in the course of the voyage, and not to bv confined to the freight of goods shipped al Jmiraica.
For these nasene^ and upon these authorities^ we think die ylsiiliffii entitled to lecover in respect of all their goods* No question was made as to the short interest, the actual valoe of the goods being less than the value mentioned i|i the policy ; and therefore the judgment will be, that the plaintiflfs recover the sum of 254/. 145.
Judgment for the plaintiffs (a)
(a) On error broaght, this judg- ment was affirmed; Leathley v. Hva/^r, 5 Moore & P. 457; 7 Bingh. 517; 1 Croinpt. & Jery.
423; 1 Tyrwh. 355; Dans. & LI. 232; LI. & Welsb. 125; 4 Nev. & Mann. 545.
543
1880.
Hdvtbr and others
V. LSATBLET.
Tb^ KiNQ V, The Scriveners' Company.
Mandamus. This was a mle calling on the defend- ^^^^^^
9Qts, the incorporated Company qf Scriveners of the City prentice to a
of Ii>Ddoi]. to show cause why a writ of mandamus should ^^^^?1^
not issue, directed to them, commanding them to admit and during the
Alexander Fox Ridgway to thp freedom of the Company, term acted as a
The afiidavits upon which the rule nisi was granted, ^.?"^®'^® f^** ^ o ' jjjl £yg oclock
stated, m substance, as follows: — in the afler-
That by an indenture of apprenticeship, dated 19 June, 3" h^'^^ent
18S2i fU^waji had l>ound himself clerk of apprentice ^p to the notary's
one Drake^ a notary pi^blic, to learn the art, trade, busi- pio^aThe ^°^"
ness, profession, or mystery of a notary-public and scri- evening in pre- i- 11 i. 1 • 1 1 i. «i renting bills of
veneri tq serve from the date of the mdenture unto the full exchange and
end find term of sev^p yevs; tha^t J^i^g^aj/ did, by virtue preparing pro-
tests, IS not a of the indenture, actually and really serve, and was em- person who
plo^ei] by Drake, i^s his clerk or apprentice, for and during ^^ emproyed
the i|fhQ]e |im^ and terip of seven ye^rs thereip specifiec] ; by the notary
that lUdgway being desirous on the expiration of bis ap- Jhob term,
in the proper biifioesi pf a noUiy, withip the rpeaning of the statute 41 Geo. 3, c. 79, s. 7, and is not entitled to act as a nptary.
Nor is such a person entitled to be admitted to the freedom of the Scriveners' Com- pany, for the purpose of being enabled to apply for a faculty to practise as a notary, within s. 13 of the same statute.
644
1830.
TTie KivG Scriveners'
COMPAVT.
CASES IK THE KING S BENCH^
prenticesbip^ to be sworn, admitted, and inroUed as t notary public, with a ^iew of practising in such professkn within the City of London and liberties thereof, Drake, on 25 June, 1829* made the affidavit of the due ^nrice of Bidgway under the indenture, to the purport tnd effect prescribed by the stat. 41 Geo. 3, c.79t intituled ^ An Act for the better Regulation of Public Notaries in England" (a),
(a) By that Act, s. 1., reciting *' that it is expedient for the better prevention of illiterate and inexpe- rienced persons being created to act as, or admitted to the fiiculty of, public notaries, that the said faculty should be regulated," it is enacted, " that no person shall be created to act as a public notary, or use and exercise the ofllce of a notary, or do any notarial act, unless snch person shall have been duly sworn, admitted, and inrolled in man- ner hereinafter directed, in the Court wherein notaries have been accustomarily sworn, admitted, and inrolled."
By s. 2, <' No person shall be sworn, admitted and inrolled as a public notary, unless such parson $hall have been bound by contract in writing, or by indenture of ap- prenticeship, to serve as a clerk or apprentice for and during the space of not less than seven years to a public notary, or to a person using the art and mystery of a scrivener, according to the privi« lege and custom of the City of London, such scrivener being also a public notary, duly sworn, ad- mitted and inrolled, and that such person, for and during the said term of seven years, shall have continued in such service."
By s. 6, " No public notary, or scrivener being also a public no*
taiy, shall take, have, or receire any dak or apprentice, who shiU become bound as aforesaid, qftet such public notary, or scnveneT being also a public notary, ifaaU have discontinued or left off, tf during such time as he shall not actually practise or cany on, the bu»ness of a public notaiy."
By 8. T, " Every person irbo shall become bound by coatraa is writing, or indenture of appieo- ticeship, to serve any public no- tary, as hereby directed, shaB during the whole time and tens of service to be specified io ndi contract or indenture, or doiiog the time and space of seven yens thereof at least, if bound for i longer term than seven yeuti continue and he actualfy o^p^ by tuch public wdmry, or terhcMir being alto apMie notary^ t» t^ proper 6ttsiaeu, practice^ or emfitf ment of a public notary."
By s. IS, reciting, that die is- corporated Company of Scrivenen of London, by virtue of its chiitff had jiuisdiction over its membtis being resident within the City of London, the liberties of Westmin- ster, the borough of Southwari, or within the circuit of three miles ot the said City, and had power to make good and wholesome laws and regulations for the gotern- ment and control of such membcfs
HILARY TERM, X GEO. IV. 545
ibat Ridgway, in order to enable himself to apply for a i83o.
faculty, aa directed by that act, ou 29 July, 1829, applied ""^^^^^
CO the Scriveners' Company, at a meeting of the said Com- v.
pany, to be allowed to take up the freedom of the said Scriveners' ^ . , . Company.
Company, as directed by the said act; but that on such
occasion the said Company refused to admit Ridgway to
the freedom of the said Company, without assigning any
reason; and that, by reason of such refusal, Ridgway was
prevented from applying, or founding any application, to
the Court of Faculties, as prescribed by the said act.
The affidavits in answer to the rule contained the fol- lowing statement: —
That the freemen of the science, art, or mistery of scri- veners of the city of London, and suburbs thereof, were, bj letters-patent of King James the First, bearing date the 28th of January, in the fourteenth year of his reign, incor- porated by the name of the Master, Wardens, and Assist- ants of the Society of Scriveners of the City of London; that by the said letters-patent it was ordained, that at all times thereafter there should be one master and two war- dens of the said Society, and twenty-five other persons of
ind the said Company of Scri- payment of sach and the like fine reners practising within the afore- and fees as are usually paid and said limits, and that it is there- payable upon the admission of fore expedient that all notaries, persons to the freedom of the said Ksident within the limits of the Company, and shall, previous to said charter, shall come into and the obtaining such faculty, be ad- be under the jurisdiction of the mitted to the freedom of the said ^d Company, it is enacted, Company, and obtain a certificate ** that all persons who may here- of such freedom, duly signed by after apply for a faculty to become the derk of the same Company apablic notary, and practise with- for the time being; which certifi- in the city of London and the cate shall be produced to the iiherties thereof, or within the cir- master of faculties, and filed in cuit of three miles of the same his office, prior to or at the time citj, shall come into and become of issuing any such faculty to such membeis, and take their freedom person to enable him to practise of the said Company of Scriveners, within the jurisdiction of the said according to the roles and ordi- Company." ttoces of the said Company, on VOL. V. N N
^46 CASES IN THE KINOES BENCH,
18S0. the laid Society, Darned asaktants; tliat they, the master,
The King ^"**^***» "°<* assistants of the Society, should make bjfe- V. laws for the better goversmeDt of the Society; that they,
CoMPAMT. ^^^ master, wardens, and assistants, had divers ancient rules by their predecessors established, and some others by themselves, for the better government of the Society, and, among others, the following: — '* That no person thereafter should be enfranchised or admitted into the free^ dom or liberties of the said Society, to make open profes- sion of the aforesaid science or art, until sach time as he should have fio'st been duly eiamined touching his soffici- ency and ability to use and exercise the same, before the master, wardens, and assistanto of the said Society, or any six of them, and should have been, by the said master, wardens, and assistants of the said Sodety, or such six of them as aforesaid, upon auch examination, declared and approved to be of sufficiency and ability, and should have taken an oath as was thereinafter appointed :'* That these bye-laws, and the oath thereby prescribed, were, with the other bye-lawa of the master, wardens, and assistants, (in pursuance of an act of the 19 Hmry 7,) duly approved and allowed by the Lord Chancellor and two Chief Justices in the 16 James 1 ; that they remained unaltered, and bad from time to time been observed; that since the passing of the statute 41 Geo. S, c. 79» the master, wardens, and as- sistants had, previously to the admission of any person applying for the freedom of the Society, for the purpose of obtaining a faculty to practise as a notary-public, required all such persons to produce evidence before them of the actual service of all such persons respectively to notaries- public for the full time and term of seven years, according to the tenor and effect, true intent and meaning of the said act. That at a Court holden on the 29th July then last, the indenture of apprenticeship between Drake and Ridgeat/ was laid before the master, wardens, and assistants bj Ridgway, and he then applied to be admitted to the free- dom of the said Society, for the purpose of obtaining a
HILARY TERM, X GEO. IV. 547
ftcolty to practise as a notary-public within the city of IBSO. London and the liberties thereof; that being interrogated _,. ^ as to bis service under the indenture of apprenticeship^ he, v,
in answer to several questions put to him by the roaster. Company.* wsrdens and assistants, stated, that previously to, and at the time of the execution of the indenture, and during the whole of the term of seven years mentioned in the inden- ture, he, Ridgway had been and then was a clerk in the service and employ of Messi's. Hopkinsons, bankers, in Re- gent Street; that the hours of business at their banking- house were from nine o'clock in the morning until five in the afternoon; and that he, Ridgway, had been accus- tofDed to attend at the office of Drake to transact and be employed in the business of a notary after the hour of five o'clock in the afternoon of each day; that the master, wardens, and assistants, considering such alleged service colourable, and an evasion of, and contrary to the tenor and effect and true intent and meaning of the said act of 41 G.3, c. 79, and calculated to defeat the intention thereof, by the admission of unqualified persons to the freedom of the said society, and thereby enabling them to obtain faculties as notaries-public, refused to admit him, Ridgway, to the freedom of the said society.
Campbell, Denman, C. S., and Piatt, shewed cause. This rule must be discharged. The service with Drake die notary was merely colourable, and did not satisfy the requisitions of the act of parliament. The real service was with Messrs. Hopkinsons, the bankers. If this person is entitled to the freedom of the Company, every banker's clerk in the metropolis, who occasionally employs his even- ings in presenting bills for payment, must be equally enti- tled. Unless every thing has been done which the act of parliament requires, the party is not qualified to be ad- mitted to practise as a notary. Here Ridgway was bound apprentice to a notary for the term of seven years ; but he did not '^ continue and be actually employed 'n the proper
N N 2
Hie Kino
S48 CASES JN THE KING's BENCH,
1830. business and practice of a notary during the term of seven years ;" which the seventh section of the statute expressly V. '**' required him to do. A very small portion of his time daily ^RfVENERs' ^38 employed in the service of the notary; the great bulk of his time and attention was given to the business of the bankers. Such a course of life would not enable him pro- perly to qualify himself for practising as a notary, and he must have been, therefore, one of those ** inexperienced persons" whom, it is clear from the preamble of the act, it was the object of the legislature to exclude from so prac- tising. The provision in this statute, as to service with notaries, is very similar to that in 2,2 Geo. 3, c. 46, s. 8, as to service with attorneys, which is, that every person bouad to serve any attorney shall, during the whole term and time of service, continue and be actually employed by such attorney, in the proper business, practice, or employment of an attorney. Under that act it was held, that a derk to an attorney, who, during the term for which he was bound, held the office of surveyor of taxes, could not be considered as having served his whole time and term in the proper business of an attorney, within the meaning of the act; In re Taylor {a). Now that case is precisely in point, therefore Ridgway has not duly qualified himself to prac- tise as a notary, and the Court will not compel the Com- pany to admit him to the freedom.
Scarleii, A. G. and Manning, contrjl. First, the service with the notary was sufficient. The provision, that the clerk shall be employed in the business of a notary ** during the whole time and term of service," does not mean that he shall be so employed every hour of every day, during the term for which he is bound; but that he shall be so
(a) 5 B. & A. 538. S. C. 6 D. and that the statute was not com-
& R. 428; 4 B. & C. 341 . And plied with by the derk serving ptrt
see £r pArte HtU^ 7 T. R. 456, of the time with another attornev,
where it was held, under the same though with his master's consent,
act, that the clerk must actually and the rest of the tinne with bis
serve the five years under articles, master.
The King
HILARY TERM, X GEO. IV, 549
employed during those hours in which the business of a 1830. notary is usually transacted. Now the business of a notary at the present time, whatever it may have been formerly, ©.
consists solely in presenting, during the evening after bank- Scriveners ing hours, such bills and notes as the drawers have refused to accept or pay during the day, and to prepare the protests in respect of them. The whole of that may be done, and in point of fact is done, during the evening, commencing after 6ve in the afternoon, when the banking-houses close, and till when dishonoured bills and notes do not find their way from the bankers, or other holders, to the notaries. Therefore Ridgway% employment with the bankers, during tie morning, was perfectly consistent with his being employed by the notary for the remainder of the day, which comprised the usual and regular hours for transacting the business of a notary; and it is not denied that he was so employed regularly in the evening. Then, secondly, if he has served bis apprenticeship pursuant to the provisions of the act, he is entitled, as of right, to be admitted to the freedom of the Company. The act is imperative. The Court of Assist- ants have but one thing to do, namely, to admit; they have no authority to examine the applicant as to his fitness. That power is vested in other hands ; the Court of Faculties is the place where the qualifications of a party applying for a faculty are to be inquired into and judged of: and the admission to the freedom of the Company by the Court of Assistants does not enable the party to practise, but merely places him in a condition to present himself before the Court of Faculties, who are to decide whether he shall be allowed to practise or not. Upon both these grounds it seems clear that this rule ought to be made absolute.
Lord Tenterden, C.J. — I am of opinion that this rule ought to be discharged. The act of parliament cannot be considered as imperative upon the Company to admit any person who applies: the utmost effect we can give to it is
550 CASE3 IN THE KINg's BENCH,
1830. to say, that it is imperative upon tbeni to admit every per* fr^T^^C^ son who has duly served such an apprenticeship as the act V. of parliament requires. The act requires that he shall,
^CoMprN^y" during the whole term, be in the employ of his master as a notary. It is conceded that Mr. Ridgvmy was a bankers clerk during the whole term, and employed as such daily until live o'clock in the afternoon; that after five o'clock in the afternoon be went to the ofiice belonging to Mr. Drah, where, it seems, he made some entries in a book of the bills he had to present, and then took them out and pre- sented them : and it is suggested that the whole buaiaess of a notary consists in presenting bills of exchange ami drawing up protests. Even if that were so, it would be very difficult to make out that this young man, between five o'clock and bed-time, could draw up the protests upon the bills he had presented in that interval ; but it is by no means correct to say that that is the whole business of a notary. A notary in the city of London has many more duties. Almost all the charter-parties are prepared by no- taries, as appeared in a very late case in a trial before me at Guildhall. The ship's broker prepares the minutes of the contract, which is afterwards put into form by a notary. There is another part of the duty of a notary, which is, to receive the affidavits of mariners and masters of skips, and . then to draw up their protests, which is a matter requiring care, attention and diligence. Besides that, many docu- ments pass before notaries under their notarial seaU which gives effect to them, and renders them evidence in foreign courts, though certainly not in our courts of common law. There is a great deal, therefore, to be done by a notary, perfectly distinct and independent from this mere matter of presenting bills of exchange and drawing up protests. It seems to me, that to bring a person within the terms of this act of parliament, he should be apprenticed to a notar) who can and does employ him in that which is the proper business of a notary, and not to one who is to employ him
HILART TERM, X GEO. IV. 651
only in going about late in the evening and presenting bills 1830.
of exchange, which was the case in this instance. ^T*"!!^^
° The Kino
V.
LiTTLEDALE, J. (o) and Parke, J., concarred. Scriveners'
' ^ ^ * ' Company.
Rule discbarged. (a) fiffyl0y» J., was gone to cbamben.
Bbkjanin Wood and Gboboe NoTTiifOE the younger, Assignees of Isaac Briohtwen, Robert Briohtwen, and Isaac Bbiohtwen the younger. Bankrupts, v. Grimwood.
i ROVER by the plaintiffs, as assignees of the bankrupts, A.9 having
Brightfoens, for title-deeds. The first count was upon the chaseaDestate
possession of the bankrupts, Isaac Brightwen and Robert ?^ ?•» *"^ . D-i t*. t*»i • having receiv-
nngntwen, before their bankruptcy : the second count was ed the title-
upon the possession of the assignees. Plea : not guilty, ^IJ^on'^'^'''
and issue thereon. At the trial before IjOTdTenterderifCJ., C., and depo-
at the adjourned Middlesex sittings after Hilary term, 1829, J^. wtih'*'*"
the case was this : — him as a se-
The plaintiffs were the assignees under a commission of j^g to murt-
bankrupt, which issued on the 22nd of May, 1828, against gsgotheesuite
the three Brightwens^ under which they were duly declared ever he should
bankrupts. Isaac Brightwen carried on, at Coggeshall in Jl^'^^Jf^^n.
Essex, the business of a brewer, in partnership with the veyance. A.
other two bankrupts, his brother and son, and also the ^{J^fromT
business of a maltster and corn-dealer on his own separate B. ihe deed of
account. The derendant was a considerable farmer in the ||,e estate,
which he then dfJirered to C as a farther securitf . In the interval C. refused to oomplete the mort- pige unless A. woald pay usarious interest on the money lent, to which A, agreed. A, afterwards became bansropt, and his assignees brought trover against C. for the deed tif conveyance: — Held, that the original possession of the tide-deeds being good, gave C. a right to the estate whenever it should be conveyed to A,^ and therefore that C «as entitled to retain the deed of conveyance of the estate against the assignees of ^.
Orimwood.
552 CASES IN THE KINg's 0ENCH5
1830. same neiglibourhoocL In the year 18^ the tMinkruptf
were indebted to the defendant in the sum of 5000/. for Wood V. ' money lent, secured by the mortgage of an estate belonging
to Isaac Brighlwen, which he having agreed to sell to Mr. Alderman Bridges, he gave the defendant notice of his intention to pay oflf that mortgage. In May, 18^59 Isaac Brightwen agreed to purchase of a Mr. Tabor of Colches- ter, for tlie sum of 16,000/., an estate partly freehold aod partly copyhold, comprising a brewery and several public* houses, and applied to the defendant to advance him 8000/^, proposing to secure 5000/. by a mortgage on the freehold part of the estate purchased of Tabor, and the remaining 3000/. by the bond of himiielf, bis brother and son. On the 31 St of August, 18^, Mr. Alderman Bridges completed the purchase of the estate he had agreed to buy of Isaac Brightwen. The parties met at the office of the defend- ant's solicitor, and the defendant was there. The 5000/- was paid over to the defendant by the solicitor of Alderman Bridges, and the defendant re-lent it to the BrighiwenSt who gave him their promissory note for it as a security until the purchase of Tabor*s estate could be completed, and the mortgage deeds of the freehold part of that estate could be executed. In the month of September, 18^5, the de- fendant advanced the Brightwens a further sum of 5000/. On the 19th of April, 1826, the title-deeds of Tabor's estate were, with his consent, delivered to the defendant's solicitor, who signed a memorandum in writing, acknow- ledging that the Messrs. Brighlwen had deposited with him, as solicitor to the defendant, the several dtle-deeds relating to the estate therein mentioned, and which was intended to be mortgaged to the defendant, for securing the sum of 5000/., immediately upon the conveyance of such estate to Messrs. Brightwen. On the 28th of September, 1826, the defendant having previously claimed to have the copyholds as well as the freeholds included in the mortgage deeds, Isaac Brightwen went to the defendant, and re- minded him that by the agreement between them the free-
HILARY TERM, X O£0. IV.
hold part of the estate only was to be mortgaged to him. The defendant said he had a quantity of beans and barley, which he wished the BrightweM to purchase* Hie pro- duced a sample of each, and . asked 558, a quarter for the beans, and 48s. a quarter for the barley, which was much above the market price. Isetac Brightwen said, ^* It was 100/. more than they were worth, and he could not afford: to lose so much money." The defendant said, ** He knew it waS| but that was the price he meant to have for them.*' Isaac Brightwen said, ** Then you mean to have a bonus?" The defendant said, " Yes, it is worth something for the risk." Isaac Brightwen said, " It will be well to take care of usury." The defendant said, ** He thought he could manage that, but he did not know he should have anything to do with it;" and afterwards added, ** He would let it stand over till Braintree fair, in the next week, and then Brightwen must give him an answer." It was agreed among the Brightwens, that as the loan would be for their joint use, the loss upon the transaction should be a joint coocem. On the 4th of October, 182G, Isaac Bright- wen met the defendant at Braintree fair, when the conver- sation about the beans and barley was renewed. The de- fendant said, ** He would not take any less than the price be had mentioned." Isaac Brightwen said, " He (the de- fendant) knew it was more than the market price." The defendant said, '^ / mil have that price, or I will not com- plele the mortgage.*^ Isaac Brightwen said, " If it must be so, I will take them ; but I must have six month«^' credit, for it will take some time to turn them into money." The Brightwens accordingly had the beans and barley at the price named by the defendant, and they sold them at a loss of 81/., though the market price was higher when they sold them than it was when they bought them of the defendant. On the 2nd of September, 1826, the brewery and public- bouses were conveyed by Tabor to Isaac and Robert Brightwen, and on the 25th of October, 1826, the mortgage from them to the defendant was executed, and the convey-
553
1830.
554
1830.
Wood
V.
Grimwood.
CASES IK THE KINGS BENCH,
ance to them from Tabor ii?as at the same thne handed over to the defendant's solicitor, and the transactions be- tween the parties closed.
Upon this evidence. Lord Tenterden left it as a question of fact to the jury, whether the bargain respecting the beans and the barley was made as the price of accepting the mortgage and continuing the loan, directing them diat if they thought it was. that was a corrupt contract, which would vitiate every thing done afterwards, -and the plaintiffs would be entitled to recover in respect of the deeds depo- sited with the defendant on the 25th of October, 1821, after the completion of the contract respecting the beans and the barley : if they thought otherwise, the defendant would be entitled to a verdict. The jury found a verdict for the plaintiffs, with nominal damages, the defendant un- dertaking to deliver to the plaintiffs the deeds deposited with him on the 25th of October, 1826.
In Easter term, 1829, Tindal, S. 6., obtained a rule nisi for a new trial upon two grounds : first, that the plaintiffs, in order to entitle themselves to maintain an action for the recovery of the deeds, ought to have tendered to the defend- ant all the money really advanced; and for this he cited Fitzroy v. GwilHm {a): secondly, that by the deposit of the title*deeds of Tabor^n estate in April, which was prior to the making of the usurious contract, the defendant became the equitable mortgagee, and was entitled to have the legal estate conveyed to him, and the deeds, which were the evi- dence of the legal estate, delivered to him, upon the com*
(a) 1 T. R. 153, where it was held, that where goods have been pawned to secure an ad\'ance of money on an usurious contract, the owner cannot recover the goods in trover without tendering the money and legal interest, — upon the general equitable principle that he who seeks equitable relief must
do equity. And see Bomtqtui v. Doikwoodt Cas. temp. Talbot, 38; Vin. Abr. tit. " Usury," p. 315, to the same effect. It was, however, agreed on all hands, upon the ar- gument of the principal case, that the decision in Fitzroy v. GmUim could not, upon any legal prioci- pie, be supported.
HILARY TERM, X GEO. IV. 555
pletioo of the purchase and the perfecting of the title ; and 1B30. that the deeds deposited in October were in fact deposited in pursuance of that contract, and not in pursuance of the usurious contract
In the same term ScarUti, A. G., obtained a cross rule for extending the verdict for the plaintiffs to all the other deeds.
Scarktt, A.G., and Fallett, on a former day in this term, shewed cause against the rule for a new trial. The case of Fitzroy v. GwUlinif which wjis cited when this rule was moved for, cannot be supported upon any principle of law. It is, indeed, a decision against all legal principle; for a person can have no title, legal or equitable, to the possession of deeds obtained under a contract founded upon an usurious consideration. The mortgage here was founded upon an nsu^ rious contract, and is therefore void; and the mortgage itself being void, the defendant can have no right to the possession of the deeds by which Tabor conveyed to the bankrupts, and which were delivered to the defendant on the very day the mortgage was executed. [Brougham^ who was to support the rule, here admitted that he could not rely upon the decision iu FUzrojf V. Gtoillim, and must therefore abandon the first ground upon which the rule was obtained,] Then, as to the second ground. Assuming that the deposit of Taboi's title-deeds in April gave the defendant an equitable title, from that time, to the deeds of conveyance from Tabor to the bankrupts, still the subsequent corrupt contract ren-» dered him a party in delicto^ and prevented him from setting up that title as an answer to the claim of the assignees. That the mortgage was ultimately accepted in pursuance of the corrupt contract is clear, for the defendant refused to go on with the original bargain : he is told that the price he asks for the barley and beans is more than the market price, which he does not deny, but says in answer, '' I will have that price, or I will not complete the mortgage.** [Parke^i. The only question in the case is this — Had he, or had he
CASES IN THE KING S BENCH,
not, an equitable title to the deeds of conveyance from Tabor to the bankrupts before the mortgage was executed? If be had not — if his title first accrued at the time of the execution of the mortgage, — it is quite clear that it cannot be supported, because of the usurious contract; but it seems to me that he had an equitable title to those deeds prior to that usurious contract : and if he had, such a title is certainly a good answer to an action brought by the assignees of a bankrupt. Suppose those deeds had been handed over to the defendant at the time when this usurious contract was made, — he would then have had a legal title to them ; — would he lose that title by any subsequent usurious transaction, as by refusing to continue the loan without a bonus i If he would not, neither does he lose his equitable title in this case ; and if he does not, he is not answerable to the assignees. He did not acquire his equitable title bj the corrupt bargain : he had it before. If, when he threat- ened not to complete the mortgage unless he had a particu- lar price for the com, he meant to abandon his right to have a mortgage at all, and no longer to enforce the con- tract for that mortgage made in April, — in that case he has lost his equitable right by his own act. If, on the other hand, which seems to me the real effect of the transaction, he meant, not to abandon his existing right, but merely to say that he would not allow the money to remain any longer on loan, — in that case he has not lost his equitable right; and that right is an answer to this action.] The deeds de- posited in April were not intended as a security for the 5000L advanced, but were deposited for the specific pur- pose of completing the mortgage security; and having been deposited for that purpose, and the person with whom they were so deposited having refused to complete the mortgage, he could no longer have any equitable right arising out of the deposit, because he had refused to perform the specific purpose for which the deposit was made.
Broughdm, F. Pollock, and Wightman, contri. The
HILARY T£RM, X GEO. IV. 567
plaintiflfs cannot recover the deeds deposited with the de- i830. feodant subsequently to the alleged usurious transaction, because the execution of the mortgage by the party depo- siting those deeds was not voluntary. The deeds deposited with the defendant in April, prior to the alleged usurious traosaction, as a security for the advance of the 5000/., gave him an equitable right from that moment; in fact, he then became the equitable mortgagee ; Russell v. Rus- sell (fl) : if so, he had then a right to have the legal estate conveyed to him as soon as that was feasible, for the deposit of title-deeds upon a loan of money, or for any legal con- sideration, gives the pledgee a right to have the legal estate conveyed to him : Ex parte Wetherell (Jb). Upon a contract for the sale of an estate, the title and abstract to be made at the vendor's expense, the purchaser is entitled to the cus- tody of the abstract until either the purchase is finally rescinded by consent, or is declared impracticable by a court of equity : Roberts v. tVyatt (c). In this case the defendant had nothing to complete : he had performed his part of the contract by the advance of the 5000/. But the borrower of that money had something to complete; he had partially secured the lender by depositing with him Tabw*9^ titlenieeds, and thereby giving him an equitable right to the estate which was to be mortgaged as the security for the loan ; but it still remained for him to secure him entirely, by giving him Tabor^% deeds of conveyance, and thereby clothing him with the legal right to that estate. The con- tract made in April gave the defendant a right to the con- veyance made in October, and he did not lose that right by agreeing in the interval to give an illegal consideration for the conveyance, because his right existed before the agree- ment for that illegal consideration was made. In Barnes v. Hedley (d) it was held, that after usurious securities given for a loan had been destroyed by mutual consent, a promise by the borrower to repay the principal and legal interest
(a) S Bro. Ch. Ca. 990. (c) 9 Taunt. 268.
(6) 11 Vesey, 401. ((i) 9 Taunt; 184.
558 CASES IN THK KIKO'S BENCH,
aaaa was founded on a Mifficieot coondenilkm and blading. As to die other deeds, which were deposited with the defendant
Wood
Gbiuwood.
V. before the alleged usurious transaction, the plaintiffs cannot,
at all events, recover those ; for they were deposited in pur- suance of the original contract made in April, which was a perfecdy valid contract, upon which the subsequent corropt contract conld not have a retrospective effect.
Cur. adv. vali.
The judgment of the Court was now delivered by Lord Tenterden, C.J. — We are of opinion that the rule for a new trial in this case ought to be made absolute. The defendant had, in April, 1826, obtained the possession of the title-deeds of an estate about to be purchased of Mr« Tabor by two of the Brighiwem, npon a good and valid consideration, unmixed and untainted with any usury what- ever ; and the question is, whether or not he is entitled to retain the deeda of conveyance of that estate from Mr. Tabor to the Brightwens, which were deposited with him in October in die same year. The objection taken to his right to do so was. that in the interval between the depoAt of the titie-deeds in April and of the deeds of conveyance iu October, there had been conversations between one of the Brighhoens and the defendant, in whicdb the defendant had insbted upon having a bonus, *^ otherwise" — according to his own phrase— '^ he would not complete;** and it was con* tended, on the part of the plaintifiEs, that the deeds of coo- veyance having been delivered after that conversation, that conversation being evidence of an usurious contract, the defendant could not retam those deeds* We are, however, of opinion that the original possession of the title-deeds being perfectly good, and free from any vice or any kind of usury, gave him a right to the estate whenever Mr. Tabor should convey that estate to the Brightwem; and that be, having a right to the estate itself whenever it should be con- veyed, had a right also to the deeds of conveyance of that
HILARY T£RM, X 0£0. IV. 559
estate. The verdict takeo was cpnfioed to those deeds; 1830. and we think the deCendant is entitled to those deeds» aiic|» coasequently, that the rule for a new trial ought to be made absolute. The rule obtained on behalf of the pbua- tifiiiy that the verdict should stand as a security for the delivery up of the other deeds, must, of course, be dis-
Rule for a new trial, absolute.
Rule to extend the verdict, discharged.
The King v. The Inhabitants of Great Bentlet.
Upon appeal an order of removal from little Clacton to Under 6 Geo, Great Bendey, in Essex, was confirmed, sul^ect to the fol- ^^'^V WUL lowing case : — 4, c. 18, a set-
Tfae pauper (Johu PeUiag) hired a tenement, consisting Ja^^byrent- of a separate and distinct dwelling-boose and a field of two |ng<^ dwelling- acres, in Little Clacton, from 25th December, 1826, for land at a rent two years, at 13/. 10». a year. In March, 1827, the pauper ^JJ|^,'"^ ^j'" sold the grass in the field from that time till Michaelmas^ provided the for 10 guineas, to JoAii Taumsend, to be mowed or fed, ^ent^fl^JToc- during which time the pauper discontinued turning a cow cupied under and an ass into the field, as he had before done, because although me
be did not consider that he could feed the grass after the ^^ were not
. occupied by
sale to Tawnsend. The pauper asked and obtained Toioits* the renter him-
€Mf s leave to stack some clover in the field, and abated one '^^.i^^^of shiUmg from a claim which he had against Tawnsend for the land. labour, as an acknowledgment for damage done to the grass by the clover stack. The pauper sold the grass to Totms- end m the same way in 1828. The court of quarter ses- sions held, that no settlement was gained, inasmuch as during the pauper's agreements with Totcmetid, he did not occupy the field under his yearly hiring in the manner re- quired by 6 Geo. 4, c 57.
fi60 CASES IN THE KING^S BENCH,
18S0. Knox and Brodrkkf in support of the order of sessions.
The occupation of the house aud the occupation of the V. land were distinct, aud if ejectment had been brought to re-
" Great^ cover both, there must have been a separate service of a BBNTLEr. declaration in respect of each, upon the pauper and open Townsend. So each would have been separately liable to assessment to the poor-rate. This distinguishes the present case from Rex v. Ditcheai{a), where the tenement consisted of a house only. Besides which that case is of doubtful authority. The decision was not unanimous, aud one of the learned judges, who concurred in the judgment, thought that the intention of the legislature would be thereby defeated. By this statute it was intended to place houses on the same footing as land, and not to place land in the situation of houses under 59 G, 3, c. 50. Rex v. North Collingham{h\ Bex V. Toubridge (c). The 59 Geo. 3, c. 50, expressly requires the occupation for a year to be by the person fairing. The latter words are not found in 6 Geo. 4. c. 57* which requires the occupation to be for a year under such yearlv hiring; but the omission of these words ought not to be allowed to defeat the clear intention of the legislature. The words even of the latter statute are, however, not satisfied. No person but the lessee and his assigns can be said to occiipy under the original yearly hiring, the occupation of a sub-lessee being referable to the sub-letting. A sub-lessee, therefore, does not occupy under the original yearly hiring, and here the original lessee does not occupy at all. The agreement with Townsend amounted to a sub-lease. Rex v. Stoke (d).
Mirehouse control. The 6 Geo. 4, c. 57, requires an occupation under the yearly hiring ; here the tenement was occupied by the pauper or his sub-lessee. The pauper was
(a) ilnfo. vol. iv. 151; 9 Bam. (c) 9 Dowl. & Ryl. 1S8; 6 & Cressw. 176. Barn. & Cressw. 88.
(b) 9 Dowl. & Ryl. 745; 1 (d) 8 T. R. 451. Bam. & Cressw. 578.
The King
HILARY TERM, X GEO, IV.
the legal tenant, he was rated and was liable to a distress, and. to an action for use and occupation. By omitting the words ''by the person hiring the same;" the late statute v.
dispenses with an actual occupation by the lessee, and occu- ^"^^ORErr* °^ pation under the yearly hiring will be satisfied by the occur Bent let. pation of a sub-lessee. The Court will not do violence to the words of the statute in order to give effect to a sugges- tion as to the intention of the legislature. Rex v. Bar^ kam{a\ But the agreement between the pauper and Townsend was not a sub-lease, it was merely a sale of the grass (i).
Cur. adv. vult.
Lord Tenterden, C. J. — We are of opinion that every thing required to be done by 6 Geo, 4, c. 57, s. 2, was done in this case, and that the pauper gained the settlement in question. That statute enacts, that no person shall acquire a settlement in any parish or township maintaining its own poor, by or by reason of settling upon, renting, or paying parochial rates for, any tenement not being his or her own property, — unless such tenement shall consist of a separate and distinct dwelling-house or building, or of land, or of both, bona fide rented by such person, in such parish or township, at and for the sum of 10/. a year at the least, for the term of one whole year, — nor unless such house or build- ing, or land, shall be occupied under such yearly hiring, and the rent for the same, to the amount of 10/., actually
(d) 8 Bam. & Cressw. 99. Selw. 205; Waddington v.Btiiiow,
(b) That an interest in the soil 2 Bos. & Pull. 452; Majffield v.
passes upon the sale of growing Wadtky^ 5 Dowl. & Ryl. 224, 3
grass, ^etCroiby v. WadtwoHhyCi Bam. & Cressw. 357; Eoam v.
£ast, 602, and 2 Smith, 559; RoberiSf b Dowl. & Ryl. 611, 5
Skelion r. Livins, 2 Crompt. & Barn. & Cressw. 829; SrnUh v.
Jerv. 4tl, 2 Tyrwh. 420. As to Surman, ante, vol.iv. 455, 9 Bam.
other growing crops, see Parker v. & Cressw. 561 ; Scorell v. Boxali,
SlanUmnd, 11 Rist, 362; Pauller 1 Younge & Jerv. 396; Earl of
y. Killhobeck, 1 Bos. & Pull. 397; Falmouth v. T/wwiflf, 1 Crompt. &
^fantrum v. HteliSf 2 Taunt. 38 ; Mce?. 89, 3 Tyrwh. 26. Wanckk V. Bniff, 2 Maule &
VOL. V. O O
CASES IV THE KIKg's BENCH, paid for the tenn of one whole year at the least. Here the The Kino ^^'^ question was, whether there was an occupation of (he I h b'^* f ^^^^^ ^^ ^^® tenement under the yearly hiring ? It wa« ob- Gbeat jeeted that the pauper did not occupy the whole under the Behtlby. yearly hiring; that he let oflf the land; and that this cltuse of the act of parliament, therefore, was not satisfied. There is a difference between the language of the statute 6 Geo. 4, c. 57, s. ^, and that of the 59 Geo. S, c. 50. The last-mentioned statute required that the house should be held, and the land occupied, by the person hiring the iame; but the latter words are omitted in the 6 Geo. 4, c. 57* The legislature, when they passed that statute, must be pre- sumed to have bad in their minds the very act (59 Geo. S, c. 50,) which they were repealing. We cannot, therefore, but consider that those words were left out by design. Then the only question is, whether the whole was occupied under the yearly hiring i It is clear that it. was. That being so, every condition of the act of parliament has been complied with, and the pauper has gained a settlement
We think it much safer to adhere to the words of the statute according to their ordinary import, than to eater into any inquiry as to what may have been the intention of the persons who framed it. The order of sessions mosl therefore be quashed.
Order of Sessions quashed (a).
(a) Bat now, by 1 Will. 4,0 AS, the same. And see JRer v. 8L
no person shall acquire a setde- Nicholai, Rochetier, S Nev. &
ment by reason of each yearly Mann. 91, 5 Bam. & Adol. 319;
hiring of a dwelling-house or build- Rex v. Baubwy, S Nev. & MtDs.
ing, or of land, or of both, unless 292, 1 Adol.k Ellis, 136; Jttf v*
such house or building, or land, Wooitam, 3 Nev. 5c Mann. 312, 1
shall be actually occupied under Adol. & Ellis, 239; Ru V' SL
such yearly hiring by the penon John, Hackney, 4 Nev. & Maoo.
Airing the iame, for the term of 336; Rex v. Si.NUh6la$,Cokka'
one whole year at the least, and ter, ib.499, 2 Adol.&EUis,599;
unless the rent for the same, to Rtx v. WiUoughky, 5 Nev. &
the amount of 10/. at the least, Mann. 457 ; Rex v, St. Gilet in
shall be paid by tlie person hiring the Fklds, 6 Nev. & Mann. 5.
HILARY TERK, X GEO. IV. 563
1830.
DoEj dem. John Alfred Wig an v. Thomas Jones.
Ejectment for lands at Mayfield. At the Sussex ConveTance
Summer assizes^ 1828, Garraw, B. nonsuited the plaintiff, J^s^ ghalU
giving him liberty to move to enter a verdict. Upon the point; inde-
iDotioD the Court directed a special case, with leave to nfe^ remainder
either party to turn it into a special verdict. to a dower
Michaelmas term, 1822, a judgment was entered up at wf^^ remainder
the soit of the defendant Jones against Thomas Baker, clerk, ^ ^' ^° ^'^-
. B' recovers
for 0000/., on which Jones issued an elegit into Sussex on judgment
15th December, 1827. Under an inquisition finding Baker X"afte1-'
seised, the sheriff delivered the premises to Jones as his wards appoints
freehold (a), according to the statute (6), until he should fee to c! Iliis
thereof have fully levied the debt and damages. appointment
The title and seisin of £ailcer commenced by indenture th^ judgment,
bearing date 29th and 30th November, 1826, whereby the andenutlesC.
' "^ to enter upon
premises were conveyed to such uses, and for such estates B/s posses-
tnd interests, intento and purposes, and upon such trusts, u^jep^^e^t aad charged and chargeable in such manner, and subject issued subse- to ittch powers, provisoes, conditions, limitations, declara- apTOintment^ tioQS and agreements, as Baker, at any time or times, and from time to time thereafter, by any deed or deeds, mstru- ment or mstruments in writing, with or without power of revocation and new appointment, to be sealed and delivered bj Baker, in the presence of, and to be attested by two or more credible witnesses, should direct, limit or appoint, and in default of, or until such direction, limitation or ap- pointment, or in case any such should be made, then sub- ject thereto, and when and as the estate or estates, interest or interests thereby directed, limited, appointed or created, should respectively end and determine, and in the mean time subject thereto, and as to such part or parts of the same several hereditaments and premises, and all such
(a) The tenant by elegit, not- interest. Vide 9 Inst 396; Mann, withstanding these words, follow- Excb. Pract. Sd ed. 39, 43, 46^n. iag the statute, has only a chattel (6) 13 Edm, 1, (Westm. 2) c. 18.
ooS
664 CASES IN THE KIKG's BENCH,
i830. estate and interest therein, of which no such direcUoD limi- tation, or appointment should be effectually made as afore- saidy to the use of Baker and bis assigns, for and during the term of his natural life, without impeachment of waste; and from and after the determination of that estate by any means in his lifetime, to the use of Beriah Drew and his executors and administrators, during the life of Baker, in trust, nevertheless, for Baker and his assigns, and to permit and suffer him and them to receive and take the rents and pro- fits thereof to his and their own use and benefit, and also to prevent any wife of Baker from being entitled to dower out of or in the premises, or any part thereof; and from and after the determination of the estate so limited in use to Beriah Drew, and his executors and administrators, during the life of Baker, in trust as aforesaid, and in the mean time subject thereto, to the only proper use and behoof of Baker, his heirs and assigns for ever.
By indenture, dated SQth March, 1827, and made between Baker, of the one part, and Wigan, the lessor of the plaintiifi of the other part, and duly executed and attested according to the said power, after reciting the said indentures of lease and release, and stating in that recital the said power, and also reciting a loan of 4000/. from Wigan to Baker, and after reciting that Wigan, being satisfied that the heredita- ments thereinafter described were a sufficient security for the repayment of the said sum of 4000/. and interest, had agreed to accept a mortgage of the same, and to release other hereditaments situate at West Mailing and East Mailing from the charge or lien created by the therein re- cited bond ; and by such deposit of the title-deeds relating thereto, as in the said bond mentioned, it was witnessed, that in pursuance of the therein recited agreement, and in performance of the condition of the bond, and in consider- ation of 4000/. so due to Wiganfrom Baker rs aforesaid, aud for a nominal consideration, he. Baker, pnrsuant to and in execution of the said power or authority, and of all other powersor authorities, did direct, limit, and appoint, tliat the
HILARY TERM, X GEO. IV.
messuages, lauds, and iierecHtaiuciits thereinafter described, with their appurtenances, should thenceforth remain, con- tiuue and be, — and that the thereinbefore recited indenture of the 30th November, 18'26, should thenceforth operate aud enure, — to the use of IVigan, his executors, administra- tors and assigns, for the term of 500 vears, to commence and be computed from the day of the date of the then re- citing deed, and fully to be complete aud ended, without impeachment of waste, subject, nevertheless, to the pro- viso for cesser thereinafter contained. And it was thereby further witnessed, that in further pursuance of the said agree- ment, and for the consideration aforesaid, Baker did grant, bargain, sell, and demise unto Wigati, divers hereditaments, situate at Mayfield, and including all the lands in question, to hold the same unto Wigan, his executors, administrators, and assigns, for the said term of 500 years, to commence and be computed as thereinbefore mentioned, without im- peachment of waste,, with a proviso for cesser of the said term, if Baker, his heirs, executors, administrators or as- signs, or some of them, should pay to Wigan, his executors, administrators or assigns, the sum of 4000/. on the 11th day of October, I829» with interest, at the rate of 51. per cent, per annum, to be paid half-yearly, on the 6th day of April and 11th day of October, in the meantime, without deduction or abatement. And it was agreed that until default should be made in payment of the said sum of 4000/., and interest, or some part thereof, contrary to the true intent of the deed, it should be lawful for Baker, his heirs and assigns, peaceably and quietly to hold and enjoy the premises, and to receive the rents thereof for his and their own use, without any hindrance, suit, eviction, claim or demand whatsoever by IVigan, his heirs or assigns, or any other person or persons claiming by, from or under hiin, them, or any of themi The said Baker made default iu payment of the interest before the 12th April, 1828, on vf hich day the demise to the nominal plaintiflf is laid.
566 CASES IN THE KINOES BENCH,
1830. Preston (with whom were Broderick and Manning) for
the plaintiff.
The question in this case is, whether priority belongs to the mortgagee, or to the judgment creditor. It may be admit- ted that the judgment attached upon the life estate and apoo the ultimate fee. But consistently with principle and with the rule of law and rule of property, the debtor, by executing the appointment, defeated his own life estate and ultimate fee. It may be admitted, that if he had made a demise wiAout mentioning the power, the judgment would have had pri- ority over the demise. The appointee is enabled to claim without noticing the ulterior uses. So, in pleading (a)i [Bayley, J. Being in, as you say, paramount.] The judg- ment creditor does not come in under the conveyance. There is no law to prevent a debtor from defeating his cre- ditor by executing an appointment, provided the act done be not contrary to good faith. In Sir Edward CUr^i case (6) an attempt was made to avoid the restriction in the statute of wills, as to devises of land held by knight's ser- vice. The only question there was, whether the devise took effect by virtue of the power, or by virtue of Ae
(a) Iftwojointteuantsbeseised hold the laod charged is, for dot of an estate in fee simple, and the he claimeth the land from thefint one grant a rent-charge by his feoffor, and not by his comptDiony deed to another, out of that which which is Littleion*B meaning vbto to him belongs ; in this case, dur- he saith '* that he claiaietb bj sor- ing the life of the grantor, the vivor,'' for the turwoing fta§tt rent-charge is effectoal ; bat after may plead a feofment to kaue^f his decease the grant of the rent- wUhoui mentioning his joint fetftt; charge is void as to charging the and this is the reason, that if two land, for he who has the land by joint tenants be in fee, and cbe survivor, shall hold all the land one maketh a lease for yearty re discharged, and the course is, serving a r«nt, and dieth, die su^ that he who survives has the land viving feoffee shall have the met- by surviving, and has not, nor can sion bjr survivor, but he shsll oot he claim any thing thereof by de- have the rent, because he daimeth scent from his companion, &c.^ from the first feofR>r, which is, litt. 286 ; upon which Lord Coke paramount the rent. Co. litt. 195, says, '< Here ag^in Littleton shew- a ; 1 Tho. Co. Lite 750. eth the reason; and the cause (6) 6 Co. Rep. 18^ a. wherefore the survivor shall not
HILARY TERM, X GEO. IV.
ownenbip. It was admitted, that if the devise operated by 1830, virtue of the power, it would defeat the prohibition of the statute. In Ray v. Pung (a) the question was, whether the wife was dowable of a fee of which the husband had seisin? It was admitted, that there was a time when she was dow- able; but the power of appointment was exercised, and the Court decided that the fee was defeated, so that the title of dower which had attached was defeated. If dower can be defeated, why not a judgment creditor? at least as far aa the appointment goes. That case runs upon all fours with the present ; or if there be any difference, it is, that dower is more favoured. In Roach v. Wadham{b), the question was, whether a covenant was so knit to the estate that an appointee could not take advantage of it. It was held, that the appointee was in, not by the donee of the power, but by the donor, and by title inde- pendent of the covenant. AH these cases are directly in point. So, in Maundrell v. Maundrell{c). In WUham v. Bland{d) it was held, that a sequestration was over-* reached by the execution of a power. There is no differ- ence between the effect of a sequestration and of an elegit. No doubt was entertained in that case as to the operation of a limitation taking effect under the power, supposing it to be duly executed. If the estate had continued in the same state, the sequestration would have been available. The only question was, whether a donee of a power to re- voke uses had an implied power to create new uses.
Richmond, contr^. This mode of defeating judgment creditors is a perfect novelty, and cannot be supported. It is usual in practice, for conveyancers to direct searches to be made for judgments. It has never been considered that protection from judgments could be obtained by this
(a) SBarD. & Aid. 561; 5 {d) Finch, 136; since also re-
Madd.SiO. ported from Lord Nottingham's
(6) 6 East, 889; 2 Smith, 376. MSS. 3 Swanst. 877 n. (c) 10 Ves. 846.
667
568
1830.
CASES FN THE KINGS BENCH,
short course. Lord Eldon has repeatedly said, tliat the practice of conveyancers is evidence of the state of the law (a). The absence of express autliority on this point is
(a) Perhaps the oiost remark- able instance of judicial deference shewn to the practice of convey- ancers is afforded by the doctrine, that dower may be excluded by the assignment of a prior legal term to a trustee for a purchaser, with full notice; and that, although the term may have been previously assigned to attend the inheritance gene- rally, yet there must be a fresh assignment in the particular trans- action ; a doctrine which appeared to Lord Eldon so contrary to principle as to produce from that learned judge the strong declara- tion, that if the point were res In- tegra, the proposition, that the purchaser should get in the term, and with full notice, not squeeze out any other incumbrancer^ but exclude the dower, would be mon- stroui. His lordship was at first inclined to treat the assignment to u new trustee as '*an idle cere- mony,'* but he afterwards admit- ted the distinction between the effect of a term assigned, and not assigned, in excluding the dow- ress, to be established, though " it had prevailed upon no principle, but merely upon the practice of conveyancertf** and stated that the Court was bound, " not by a prin- ciple, upon which it can well rea- son, but by a practice of convey- ancers, found to be inveterate, to confine the protection against dower to the case of an actual assignment/' Maundrell v . Maun- drell, 10 Ves. 262, 271, 272 ; and see Lord Hardwicke*s observations in Swannock v. lAfford. fiutl. Co.
Litt. 208 a, n. (105.) From Lord Hardwickes judgment in that case it appears, that in Lor*d "Radnor v. Vandebendtf^ where Lord Samm had reversed a decree of Lord JefferieSf setting aside the assiga- ment of a term, assigned to a trustee for the purchaser for lire purpose of defeating a claim to dower, of which the purchaser had notice, '' there was a great inclination in the House of L(irds to reverse that decree of Lord Somen ; but when the counsel came to the bar, the Lords asked whether it was usual for convejf' ancers to convey terms for years to attend the inheritance to pre vent dower; and the counsel, with great candour, saying that it wa», the Lords affirmed Lord Somersi decree."
On other occasions convey- ancers have been less favourably treated. Their doctrine and prac- tice as to inalienable trusts for married women, was not, as in the former case, an inveterate abuse, but reserved, as Lord EldoUy in 1805, says, {Parkes v. WkUt, 11 Ves. 221,) upon true principle, and originated in the suggestion and practice of Lord ThurlatCy C, conveyancers merely adoptingwbat the Court had sanctioned. In 1817, Lord Eldon, addressing him- self to the clause against antidpa- tion, said (in Jackson v. HobkoAV, 2 Mer. 1487,) " Lord Altanky, who followed, thought it a valid clause, and so it has been con- sidered ever since. It is mm too late to contend against the
HILARY TERM^ X GEO. IV. in the defendant's favour. By the statute of Westin. 2, cap. 18 Judgments bind the land, and in 30 Ed. S, 24, a (a),
569
1830.
validity of a clause in restraiut of aoticipatioo.'* Nearly twenty years, bowever, after the decision in Jack- ion y, HMoHse, the whole system, which, after being established by Lord Thurioze, has formed so im- portant a branch of modern con- vejaociog, appeared to be menaced with destruction. See Newton v. Unrf, 4 Simons, 141; Brown v. Po- foc*, 3 Sim. 663 ; Ma!i%ey v. Parker^ 3 Mylne& Keen, 174. But see Anderson v. Anderson, ibid. 4t7 ; Daviesv. Tliomycrofl, 6 Sim. 420; Johnson V. Frecth, ib. 423, n. ; Sloffe f. Everett, 1 My Ine & Craig, 37.
The doctrine upon this point, as long receired and acted upon by conveyancers, is stated to be, that a gift to the separate use of a female, expressly without power of anticipation, was effectual, as well to confer the sole enjoyment as to restrain alienation, whenever the restricted gift and the state of coverture coexisted; but that, as without coverture there cannot be separate estate, and as the right of disposition incident to property cannot, even with reference to u life interest, be denied, except in the instance of separate estate, it was competent to the object of the gift, whilst discovert, to dispose of her interest absolutely. — Vide Hayes, Separate Estate, 39.
(fl) M. 30 E. 3, fo. 24. " A man had recovered a certain debt against Sir John de Mokyns, and had an elegit; the sheriff returns that JaAn has nothing.
"MowiJ. [John de Mowbray, Kng's Serjt.] prayed a capias.
^'Fuk. \Eiihide.'] Since you
had execution at your electioui and you elected an elegit, you can- not now have another execution.
** il/om6. After fieri facias, if the sheriff returts that he has no- thing, a man shall have an elegit.
"&/on, [King's Seijt.]. Every elegit includes a fieri facias.
''Finch IFinchden'l, If at the time of judgment rendered he had some land, but has since aliened it, you may have execution of that, and if he purchases land after- wards, you shall have execution of that, for you shall have elegit sicut alias et sicut pluries. And if you have no land at the time of judg- ment rendered, it was your own folly that you would pray an elegit, when you were informed that he had nothing; wherefore there is no mischief although you have not the capias," &c.
In abridging this case, Filzfier^ bert adds,—" and Thorpe, (C. J. of C. P.) says, that the cause is, because tlie entry is, that such a one comes et elegit executionem suam de medietate, &c., which is the highest execution, &c." It was afferwards, however, held, that if an elegit be returned nihil within the year, the party may, within ibe year, have execution by ca. sa. or fi. fa. Andrews v. CopC, 1 Roll. Abr. 904, 905. And upon further consideration of statute West ra. 2, c. 18, it was adjudged, that neither the entry of a prayer of the elegit, or even an award of the writ upon the I oil, should, without the she* riiTs return of the delivery of land according to the exigency of the writ, be any bar to an exccu-
CASES IN THE KING 8 BENCH,
it was heldy that where a debtor agaiost whom jodgmeat is recovered, aliens his lands, such lands are liable to execa* tion, as are also lands acquired after the judgment The second statute for the rejection of uses (a) made them sub- ject to judgment creditors. The judgment binds the use, and the elegit is in the nature of a grant. [Bayley, J. Sup- pose that Baker, without referring to the power, had granted an estate for life, would that have prevented the execution of the power ?] A lease granted by tenant for life cannot be defeated by the subsequent execution of a power vested in him. Snape v. Turton(b)f YeUand v. FicUi{c\ Bullock V. Thome (d), Goodright v. Cater (e). Powers are but a modification of uses, and uses were expressly made subject to an elegit by 19 Henry 7, cap. 15, which remedy is extended by the Statute of Frauds (/). It is said that these statutes do not affect powers of appointment The abstract idea of a power had no existence at common law. It would have been thought strange that a person
tion by fi. fa. or ca. sa. KnomUi V. Palmer^ Cro. £1. 160; Coaper V. Limgwortht ib. 608, and Sir F. Moore^ 545; Foster v. Jackton^ Hob. 57, 58; Pilmer v. KnoaUu, 1 Leon. 176 ; Qlatcock v, Morgaut iLev. 93; Lancaiter v. Fielder, 2 Lord Ra^m. 1451.
(a) 19 H. 7, c. 15, which, after reciting that divers and many per- sons be defrauded of their eiecu- tion, as well of and upon recog- nizance, statutes of the staple, statutes merchant, to them made, as of their debts and damages re- covered in action of debt, tres- passes, or other actions, enacts, ** that it shall be lawful for eveiy sherifF or other officer to whom any writ or precept is or shall be directed, at the suit of any person or persons, to have any execution of any lands, tenements, or other hereditaments, agaiitst any person
or persons, of, for, and upon any condemnation eetatate-mercfaant, estatute of the staple, recogniianoe hereafter to be made or had, to do, make, and deliver eiecation unto the party in that behalf suta^ of all such landa and teoements, as any other person or persons be in any manner of wise seised, or hereafter shall be seised in any wise, to the only use of him against whom execution is so sued, like as the said sheriff or other officer might or ought to have done, if the said party against whom exe* cution hereafter shall be so sued, had been solely seised of to his use at the time of the said execu- tion sued.'' (6) W. Jones, 398.
(c) F. Moore, 788.
(d) Ibid. 618.
(e) 8 Dougl. 477.
(/) 89 Car. 8, c. 5, s. 10.
HILARY TERM) X GEO. IV. 671
should have lui estate^ and a power of conveying a differeni 1830.
estate from that which he had. Sir Edward Clerks ca«c shews '^"^^^
Dob that a statute may be defeated^ but even then it was only held d.
that the acts of the appointor superseded the power pro Wiqar tanto. The doubt was^ whether such acts did not suspend the Jokbs. power altogether. It was held that it was not in the nature of a condition, and therefore entire. In Lang v. Rankin {a), Abbott, C. J., in delivering the opinion of the judges in the House of Lords, says*^" It is true that Robert Craw^ fard could not, after having conveyed his life^estatCi dero** gate from the effect of that conveyance by an execution of his power; and the inability to derogate from a prior con« veyance, works what is usually called a suspension of a power. As if land be granted to A. and his heirs, to such uses as B. shall appoint, and in the meantime to J3. for his life or any greater estate, here B» has a power to limit and appoint the uses of the fee; but if he makes a lease for years or for life, before he executes that power, common jyttice requires that he should not derogate from his own grant by a subsequent appointment of the fee; and his power, therefore, is suspended as hr as regards the lease and the interest of the lessee, and his appointee must take subject to the lease. Lord Chief Baron Gilbert says (6), ' If tenant for life, with power to make leases or revoke, grants a rent<harge, and then makes a lease according to his power, the lessee shall hold it charged during the life of the tenant for life^ for he hath power to charge his own interest, which| by his own act, cannot be avoided. And if in this case he covenant to stand seised to the use of a stranger, be cannot, by any after*act, revoke the uses; for since the execution of this power falls within the compass of the estate, (so that, unless it be executed during the con- tinuance of the estatCi it can never be executed;) therefore^ whatever act passes away the estate, hinders the execution of this power of demising; for a man cannot demise that estate which he hath passed away to another J " Here, the
(a) Sttgd. Pow. App. No. 3. (h) Glib. Uses, 14S.
672
1830.
CASE3 IN THE KING S BENCH,
power is appendant, and not simply collateral; Sachewrtll V. Dale (a). That was the case of a lease; but what sub- stantial difference is there between an interest created by lease and an interest created by elegit (6) ? In either case the power must be suspended pro tanto; and if the power can be suspended by the act of the party^ ^ fortiori may it be suspended by the act of the law. It may be said that a judgment is a proceeding in itvoUumic). But it is not always so ; a judgment may be entered up on a cognovit, or on a warrant of attorney, and it does not appear upon this special case whether the judgment was obtained by consent or in an adverse suit (d). (a) Latch, 268. equity, {po$t, 580,) because by
(6) Ante 563, (a); 566 ; posl, 576. means of ao elegit, the lands may
(c) Videpoityb^^,
(</) The judgment was in truth upon a warrant of attorney, but this fact not being stated in the ad- missions upon which the trial took place, was not introduced into the special case. But though an execu- tion of a power of appointment for the purpose of defeating an elegit upon a judgment by consent, is in derogation of the party's own act, it has been since held, that the appointment shall have pri- ority over the execution, whether the judgment be in invitum or by consent, and whether the ap- pointee has or has not notice of the judgment. Eaton v. Sanxter, 6 Sim. 517. Yet, in equity, a judg- ment is considered a present lien upon a trust estate, such trust estate being rendered liable to exe- cution by the Statute of Frauds, (25 Car. 2. c. 3,) 8. 10. But a mere equity of redemption, unac- companied by any legal reversion, or any express trust for sale, is not subject to execution {LyiUr V. Ddlandy 3 Bro. C.C. 478,) but the judgment creates, a lien in
be equitably put in charge. And therefore, like any other speci- fic charge upon the property, it may be lacked to a prior mortgage, (Fonbl. Treat. Equity, 5th ed. S70; Coote, Mortgages, 393, 422, 423; Sugd. V. & P. 9th ed. 542.) Where however the land is not liable to process by elegit, as in the case of a copyhold, the judgment cannot be tacked to the mortgage. (C«iMa V. Fork, 6 Vin. Abr. 222, <i(. Copy- hold, (O. e),.pl. 6 ; and see Jfor- r» V. jGne$y 3 Dowl. & RyL 60S.) But an equity of redemption may be taken by the Crown, under an extent. Rex v. Coomba^ I Pnce, 207; Rex v. Delamotte, Forrest, 162. In Smithy. Wkeeler, 1 Vent. 128, it was found by a special verdict in ejectment, that in 1643 Simon Maine, being possessed of a rectory for a term of eighty years, assigned it to A. nndB., in trust for himself for life, and after his death for payment of debts, &c., and for his issue, with a proviso, that if Simon Maine should be minded to make void the indenture, or fms^ trate any use. or trust tbereiOf or
HILARY TEEM, X GEO. IV. 573
By 21 Jac. 1, c. IQ* s. Ifi, commissioners of bankrupts isso. are authorized to convey '' any manors, lands, tenements, or hereditaments, whereof any bankrupt should, is, or shall be in any manner seised."
By 13 EHz. c. 7 (a), commissioners of bankrupts are authorized *' to take by their discretion such order and direction, with all his or her lands, tenements, heredita- ments, as well copyhold or customaryhold as freehold, which he or she shall have in his or her own right before he or she became bankrupt, and also with all such lands, tenements, and hereditaments, as shall have been purchased or obtained for money or other recompence, jointly with his wife, children, or child, to the only use of such offender or oflfendcrs, or of or for such use, interest, right, or title, as such oflfender or offenders shall then have in the same, which he or she may lawfully depart withal, or with any person or persons of trust to any such use of such offender Of offenders." Under this enactment it has been held, that the bargain and sale inrolled, though in invitum, destroys the power; Doe d. Coleman v. Britain (b). That is a case
create any new, or to dispose the made a grant to the plaintiff
estate in any other way, and such Smith, It was held in Common
his purpose should declare by writ- Pleas and King's Bench, upon er-
ing, &c., then the trusts therein, ror, that the term was not for-
or so many of them, &c., should feited, notwithstanding the power
be roid, &c. ; that in 1644 he had of revocation. Simon Maine, the
issae, a son ; that he took the cestui que trust of the term for
rents and profits during his life, life, not having jut disponendi,
and made leases ; that Simon though in a qualified manner, and
Mtune committed treason in 1648, to be executed with certain cir-
of which he was afterwards at- cumstances, he had potestatem dis-
rainted ; that be died in 1661 ; that ponendi. And see Sir Christopher
A. and B. had no notice of the HaUon*B ca^e, post, 578, 58 j. assignnoent till after the death of (a) Sect. 2. And see 6 Geo. 4,
Simon MaiiUf when A, assented c. 16, s. 13; Doe d. Sham v. Stew-
and B. dissented to the assign- ard, 3 Nev. & Mann. 372; 1 Adol.
meat ; that by 12 Car. 2, c. 30^ & Ell. 300. all manors, lands, &c., leases, &c., (b) 2 Barn. & Alders. 93. And
which Simon Maine, or any to his see Thorpe v. Goodall, 17 Ves. 388,
use, or in trust for him, had, 85th 1 Rose, 40, 270 ; Badham v. Mce,
Mardi, 1646, or at any time since, 7 Bingh. 695, 1 Moore & Scott, 1 4 ;
forfeited; that the king iinon. LofTt, 71.
674
i8sa
Doe d,
WlOAH
V. JOVBS.
CASES IN THE KIKO 8 BENCH,
expressly in point. In Bro. Abr. tit Feoflfemeatfl si aies, pi. 25 (a), it 18 said cestui que use is bound in a statute
(a) Citing 7 H. 76. " One T. L. broaght a writ of trespass against W, de S.t and said, that /. 8. made a feoffinent of the same land to the said W, sur confidence, and afterwards he made the recogni- sance in statute merchant to the plaint! ffy who by force thereof sued execution against /. S. And ail the matter was pleaded in certain, and the trespass is supposed to be done in the time of the now King (H. 7), and execution was in the time of King Edward 4; and the defendant said, that in the time of EdmardA, after the said execu* tion, he entered upon the plaintiff and ousted him, and afterwards, in the time of King Rkkard, the plaintiff entered upon him, and shews the year and day, which was after the statute of Bkhard^ de feoffment sur confidence, and the defendant re-entered.
Ke^ Serjt. It appears to me that this plea is not good, for two causes. One, because the statute is as well of a thing done before as of a thing done after the statute, and then such execution was good by the statute, for the statute is, << of feoffments, leases, grants, re- leases, made or to be made," and although it does not speak of exe- cutions by statute merchant, still this shall be taken within the letter of the statute, for this is a dis- chaige, and is in effect but a lease ; and so held all the Court, that the tenant by statute merchant or sta* tute staple shall be taken within the case of the statute, so that ex- ecution cannot be sued; and also the tenant by elegit, ^ Then
when by the statute since made this was a good execution, althoogfi be could not enter before the its- tttte, yet when the statats was made, he who had the execocioQ might enter again, which execotioo is good, because it is in certMD, bj the issuing of the execntion bslbce; and the defendant has shewn ia his bar the re-entry by the plaiotiflf after the making of the statute, for which entry upon the (whole) mat- ter he cannot be punished. As suppose that the lessee taking un- der a demise by the feoffor, before the statute enters upon the fooffae, and the feoflee ooats him, u ba well may, and afterwards the star tute is made, and then the lessee enters again; now this entry is law- ful, and he cannot be pnnisbed for it: so here.
Jmf, J. It seems to me the coo- trary, for allhoo^ the feoflbr had entersd before the statute of Bkk, and made a (second) feoffinent in fee, and the feo£fee sur ooafidenoe had re-entered upon the (second) foe. Now thb (second) feoff- ment is utterly Trad, and now al- though the statute is made after- wards, (and enacts that) as well a thing done before as afterwards shall take effect, still the statute shall not make that (second) feoff- ment good, because by the eotzy of the (first) feofiee the (second) feoffinent is void. Quaerabbene.'
In GoodeU v, Brigham, 1 Bos.& P. 19d, Le Bhnc, Serjt. says» ''The word * power^ in law may be tbeie defined, viz. an authority §i»ea to one person to be eserdsed oxr tie estate rfanother^ which defiaition,
HILARY TERM, X GEO. IV.
merchant, and the Court held that execution should be sued of the land in use, and that the same law is of statute
675
183a
though adopted bj BuUer^ ibid. 196; has since been exploded. MmadreU v, Maundrell, 10 Ves. 265. This definition^ however, ap- pears to be strictly applicable to the power given by 1 iUeh. 8, c. 8, to feofibn sur confidence, (or ra- ther to cestui qoe use,) to create a legal estate without being them- selves seised. Thus in M . 5 H. 7, ib. Site, pl« 11, a question was demanded by Fineux of the jus- does. If a man has enfeoffed sur coofideooe, and the feoffor makes a lease for term of years, whether the iwanion is in the feoffor or in the MSdi^ and the opinion of all the Court, except Davers^ {Dan' ten, Just. C. P.) was, that the re- version vras in the feoffee. And this was their reason: because at the conunon law the feoffor would have been a disseisor, and now the itatute says, that the lease or the feoffinent shall be good against the Mht and tha feoffee, and their heirs. The statute gives authority to the tefibr to create such estates, sad therefore the feoffor shall not he a dissmsor, if he enter and make a lease or feoffinent, because the statnte gives power to him to do tlus lawfully, and that for the sole advantage of the lessee, and not for the advantage of the feoffor. Then notwithstanding the statute pves a lavrful power to make the lease, yet it does not (give power) to have the reversion thereby. As the statute of Marlebridge^ c. 6, is, that the lord lecoTer the wardship, still the reversion remains in the feoffee. And also by the common bw and cnstom need, executors
may make a feoffment or a lease, by the will of their testator, of lands devisable. And if they make a lease, the reversion is not in them, but in the heir. So one may make a gifl, a lease, or a feoffment of land, although he has nothing in the land when he makes it; and so inasmuch as the statute is made for the advantage of the lessee, so that the feoffor may make a lease by authority of the statute, and he shall not be a tort-feasor therein, but may lawfully enter to make a lease, still they shall have nothing in the reversion causft quft suprc^. Also because this statute was made for the advantage of the lessee or donee, and not for the advantage of the feoffors sur confidence. Still he shall not be a trespasser by the entry and making the lease or feoff- ment. And this lease or feoffment must be made immediately upon the entry, otherwise he is a dis» seisor, as if he enters, and a long time afterwards makes a lease or feoffment, that lease or feoffment shall not pui^e the tort, but not* withstanding that the feo£be shall have assize, quod Brian and others concesserunt expressly and clearly, and the opinion of all the Court was, that if the lessee do waste, the feoffee (sur confidence) shall have an action of waste, notwith- standhig that he has no privity, for he has no mean to make any pri- vity, as the lord shall have an action of waste after the reversion is escheated &c.
Brian (C. J. of C. P.) said, that if a rent be reserved to himself, (i. e. to the feoffor sur confidence,
676 CASES IN THE KING S BEKCH»
1830. Staple and elegit by the statute of 1 Rich, 3, for that is in effect a lease. Thus the lien of the judgment creditor is expressly assimilated lo an estate created by the party. It is to be regretted, that the reasons upon which the judges of this Court decided Ray v. Pttng do not appear. It may have been thought that dower only created an inchoate lien. But a judgment is an immediate absolute lien upon the lands of which the debtor is then seised, and becomes a lien upon after-acquired lands from the moment that they vest in the debtor. It is true that in some respects dower is favoured. It is nevertheless looked upon with jealousy, as forming an impediment to the free alienation of property. [Lord Tenterden, C. J. A good many contrivances have been resorted to for defeating dower.] Even in equity the title to dower is allowed to be defeated by the assignment of a terra though with notice (a). And in Mole v. Smith {b)t a woman was compelled to assign a term for the express purpose of barring her, own dower.
The statute of fraudulent devises (c) expressly meets the case of a power. That statute, after reciting '^ that it is not reasonable or just, that by the practice or contrivance of any debtors their creditors should be defrauded of their just debts: and nevertheless it hath often so happened that where several persons having, by bonds or other specialties, bound themselves and their heirs, and have afterwards died seised in fee simple of and in manors, messuages, lands, tenements, and hereditaments, or had power or authority to dispose of or charge the same by their wills or testaments, have, to the defrauding of such their creditors, by their last wills or testaments devised the same, or disposed thereof,
the cestui que use.) because he deed, but with deed he can. And
Imtli not die reversion, as before so can the feofibr sur confidence,—
said, it is void without deed, and quod alii justiciarii coocesscniot.
to the feoiTee it cannot be reserved, (a) Vide aalCt 668.
because he is a stranger, and thus (b) Jacob, 490; 1 Jac. & Wall,
the rent is void, unless it be by 66o; tamenquert,
deed. Since the statute of quia (c) 3 (or 3 & 4) WULS, c 14,
omptorcs terrarum, a man cannot altered by 11 Geo. 4 and 1 WilLi^
reserve to himself rent without c. 47, s. C, and 3 & 4 Wili.4, c. 104.
HILARY TERM, X GEO. IV. 577
in such manner as such creditors have lost their said debts/' isao. enacts and declares, that all wills and testaments, limita- tions, dispoiilions, or appointments, of or concerning any manor be, shall be deemed and taken as against such cre- ditors to be fraudulent and void. It is evident that at the time of the passing of this statute, an execution could be defeated by the fraudulent execution of a power of appoint- ment. It cannot be supposed that the legislature would have omitted to provide for judgment creditors, if they had been within the mischief, as, according to the plaintiff's argument, they certainly would have been. It will hardly be cootended, that if the estate had been actually vested in the judgment creditors, under an extent upon an elegit, laeh estate could have been divested by the execution of the power. The principle would extend to protect the estate against a process of extent issued by the crown. Unfortonately for the plaintiff he is met with a direct authority, which deprives him of that protection. In Rex V. Smith (a) it was expressly decided, that an outstanding term does not protect a purchaser against the claim of the crown, in respect of debts due from the seller (ft). In Sir
(a) Sug4. Vend. & P. 4th ed. secure the unpaid portion of the
347. And see the Pleadings, purchase-money upon a sale by a
Mano. Excb* Pract. 2d ed. 235. former proprietor to Lacy; that
(6) Upon Rex v. Smith being upon a sale by Lacy to Turton,
cited upon the aiguroent in Rex v. Turton paid off the portion of the
Lamb, Mann. £xch. Pract. 39 n., original purchase-money secured
S47, a copy of the record in the by the term, and took a convey-
fonner case was produced, by ance of the freehold to himself,
which it appeared that to a plea and an assignment of the term to
of an outstanding term, the A ttor- Lamb; that^at the time of the
ne;-Geoeral replied, that it was n payment of the money, Turton had
itti^ed term held in trust for the do notice of the debt to the crown,
debtor, and that the case was ar- ^x v. Lamb was argued upon s
gaed upon a demurrer to the demurrer to the plea and mon-
replicatioD. In Rex v. Lamb straunce de droit filed by Idunb,
it appeared that the land of one in assertion of his claim to the
locy, seized under an extent, property during the term. In
"^a» claimed by Lamb^ under support of the demurrer '.t was
a term of 1000 years, created to insisted, on the part of th% crown,
VOL. V. P P
578
1830.
Doe d.
WlGAN
V. JOITES.
CASES IN THE KIKG'S BENCH,
Christopher Haiion^n case (a) it was resolved, that the lawis of the crown debtor, though subject to a power, were liabk to execution. There A., before he became indebted to the crown, being seised of the land in fee, covenanted to sttod seised thereof to the use of himself for life, remaioder for ten years to the covenantee for payment of debt, re- mainder to the issue of A. in tail, with power of ret oci- tion. A. died indebted to the crown; it was agreed by the judges and decided by Crawford, Master of the G>uit of Wards, and the whole Court, that the lands were liable to an extent notwithstanding the power of revocatioa. It is true, that for feudal purposes the appomtee is consi- dered as a party coming in under the donor of the power, and not under the immediate appointor, the donee of that power. But for many purposes he is treated as a party taking by conveyance from the appointor. Thus, an ap- pointment of real estate, under a power, is within die statute (6) against fraudulent conveyances, DukeofMarU
that the title set oat by the claim- ant in his plea and monstraunce de droit, did not affect the right of the crown to take the absolute and unincumbered fee. For the claim- ant it was urged, that the out- standing term never having been held in trust for Lacif, the crown debtor, the property could only be taken by the crown, subject to the estate and interest of the termor. And the Court held accordingly, that although where the term is a satisfied term attendant upon .tlie inheritance, the crown, by acquir- ing an interest in the inheritance, acquires a corresponding interest in the term, the crown's debt does not aflect a term in grou, whether legal or equitable, until the teste of the extent, that being the period for which the chattel interests of the crown debtor are* bound. And
that here the daimaiit was entided to judgment, inasmuch as the tenn of 1000 years was Tested not id or in trust for Lacy^ the crown debtor, but in the original vendor, Lacy never having discharged the incumbrance, by paying o£f the re- sidue of the purchase-money, sixl by such payment placing the term in the same state as the tenn in Rtx v. Smiik, Mann. Exch. Prac. 350.
(a) Godb. 399; & C. 3 Roll. Rep. 394. In Hob. 3S9, it is said, that in Sir C. HaUan*s case it was resolved that the lands were sub- ject to the debt at common law, without any avermeot of fiaod. And see Waiter dc Ckartom'^CMatj Godb. 293, Dyer, 160a; Etrlcf Devon»hire*s case. It Co. Rep. 98, 93.
{b) 13 Eliz. c. 5.
HILARY TERM, X GEO. IV.
boroi^h V. Godolphin{a), and is subject to the other inci- 1830 deats of coDveyaoces. Lord Hardwkke says, (6)/' Every person claimiDg under the execution of a power must claiin« not only according to the power, but according to the nature of the instrument by which that power is executed, and therefore a will, in execution of such a power (supposing it was of lands,) would be alienable or revocable, according to the Statute of Frauds, by cancelling, or any of those methods as a proper will would be, because it is the nature of the instrument which causes that." In Scrafton v. Quin- eey(c) a deed of appointment of lands, in Middlesex, was postponed to a mortgage executed subsequently, but re- gistered before the appointment (d). In Hurd v. Fletcher (e) sfioe was levied of the estate of a feme covert, with a power to husband and wife to declare uses. Uses were declared, under which an estate in remainder was limited to A. in tail. The husband made a lease, and covenanted for quiet possession gainst any person or persons claiming or to claim by, from, or under him. The lessee being evicted by A., it was held, that the representatives of the husband were liable in covenant, as for an eviction, by a person claiming under him. [Lord Tenterden, C.J. Mr. Preston concedes that a man cannot defeat hii own grant by the execution of a power.] Lord Hardwicke, in a sub- sequent part of his judgment saysC/"), '* I admit the prin- ciple, that where a person takes by execution of a power, whether of realty or personalty, it is taken under the autho-
(«) 2 Ves. sen. 61. jection was taken on this ground ;
(ft) Ibid. 77. '^^^ ^^ ^® circumstance noticed
(c) Ibid. 413. in the judgment.
{i) The deed creating the power («) 1 Dougl. 43. But see 2
bore date in 174'i; the appoint- Sugd. Vend, and Purch. 9th ed.
meat was in 1744: the mortgage 78, as to covenants in appointments
in 1746. The mortgage was re- to uses not running with the land,
gistered in 1746, and the appoint- And see Itherwood v. Oldknowy 3
meDtinl748. The deed creating Maule & SeKv. 382; 5 Nev. &
tbepower, does not appearto have Mann. 518, (a) ; «nte, 200, (o).
bfen registered at all, but no ob- if) 2 Vcz. sen. 78.
PP 2
579
580
1830.
CASES IN THE KINGS BENCH^
rity of that power ; but not from the time of the creation of that power. There is no case that the relation shall go back for that which is quite of another nature, and (that is the point which must be contended for here,) that they must take by relation so as to make them take from the time of the creation of the power, for which there is no authority, aod that would be unreasonable. The meaning of the expres- sion, that the persons must take under the power, or as if their names had been inserted in the power, is, that they shall take in the same manner as if the power and instrument exe- cuting the power had been incorporated in one instrument;" that is, of the date of the latter instrument, <' then they shall take as if all that was in the instrument executing had been expressed in that giving the power. So is it in appointments of uses. If a feoffment is executed to such uses as he shall appoint by will, when the will is made, it is clear that the appointee cestui que use is in by the feoffment but has nothing from the time of the feoffment, so as to vest the estate in him. The estate will vest in him, — according to the nature of the act done, and appointment of the use,— from the time of the testator's death. This, therefore, is not a relation so as to make things vest from the time of the power, but according to the time of that act exe- cuting that power ; not like the referring back in case of assignment in commission of bankruptcy, that is, by force of the statute, and to avoid mesne wrongful acts." A judgment creditor is a purchaser for a valuable considers* tion, and in equity it is considered as an actual chaise upon the land {a). In Ren, lessee of Hall, v Bulkele^ (6), it was held, that if a tenant for life, with power to grant leases in possessidn for twenty-one years, at the best rent, convey his life estate to trustees to pay an annuity for his life, aod the surplus to himself, the power is not thereby extinguished, but he may still grant a lease agreeable to the terms of the power. In giving judgment in that case Lord Mamjitld says, *^ It is contended, that by granting away his life estate,
(o) Vide ante, 512 n.
{h) 1 Dougl. 292.
HILARY TERM, X GEO. iV. he (Lord OnsioWf the tenant for life,) extinguished the power. Certainly, when the whole life estate is conveyed away, by the intention of the parties, the power must be at an end, and cannot afterwards be executed to the prejudice of the grantee. But the conveyance here was only to let in a particular mortgage, subject to which the rents and profits still belonged to Lord Onslow. Roper v. IIallifax{a).
581
1830.
Preston, in reply. It is admitted, that if the plautiff had done any act to encumber the estate, he could not have executed the power to the extent of derogating from that act. With respect to the judgment of Lord Hardwicke, it is sufficient to say, that in Maundrell v. Alaundrell, Lord Eldon says, that '^ the fee vests until the execution of the power, and the execution of the power is the limitation of a ose under and by the effect of the instrument by which the power was reserved," that '* when the tenant for life exe- cutes the power, the effect is not technically, making a lease ; but that lessee, in fact, stands precisely in the same relation to all the persons named in the first settlement, as if that settlement had contained a limitation to his use for twenty-one years, antecedent to the life estate and the ultimate limitations (6)." [Bayley, J. That is, as to persons named in the first conveyance.] It is the same here as if the term of 500 years had been created in the first conveyance. It will be unnecessary to advert to the former statutes respect- ing uses, these statutes being all repealed by £7 H. 8, c. 10. The question is not affected by the remedies given to cre- ditors by the Statute of Frauds, or by the rule of equity framed upon that statute. In Sir Christopher Hatton^s case there was no taking of the power in execution, but it was held, that the settlement was void as against the Crowu^ because it was fraudulent, the fraud being evidenced by the revocation of those uses, under which the property was vested in the crown debtor (c). Under the bankrupt laws^ the commissioners execute a conveyance of the fee, which
(«) 8 TaoDt. 845; 5.C. Sugd. Pbw. 5th ed. App. No. 4.
(6) 10 Ves. 855, 256 (c) Sed vide antCf 577 (b).
582
1830.
CASES IN THE KING'S BENCH,
relates back to the act of bankruptcy (a), and the act of parliament seises the alienee, and will defeat a fee which may have vested in the lord by escheat, as an act of the party, by which he may have bound his own estate. No conveyancer will advise a purchaser to abstain from search- ing for judgments in the present (6) state of the law. If it could be avoided, the convenience would be very great, as the expense of making searches is immense. The usage is to search for ten years (c). A purchaser and a judgmeot creditor are in a very different position. The former may protect himself by taking an assignment of a term, whidi a judgment creditor cannot do.
In this term the judgment of the Court was delivered by Lord Tentekden, C. J., who, after stating the fccts found by the special case, proceeded as follows: — ^Tbe question for the Court was, whether this conveyance, under the power of appointment, defeated the judgment creditor i It has been established ever since the time of Lord Coke, that where a power is executed, the persoa taking under it, takes under him who created the power, and not under him who executes it. The only excep- tions are, where the person executing the power has granted a lease, or any other interest, which he may do by virtue of his estate ; for then he is not allowed to defeat his oum act {d). But a judgment is not within the exception as an act done by the party, for it is considered as a proceed- ing in invitum (e), and therefore falls within the general rale.
(a) Vide antCy bis.
(6) But where an over-reach- ing power may be exercised, there seems to be no reason why, wiu the decision in the principal case, any search should be made.
(c) This seems to be a mere ar- bitrary period, as judgments may be enforced at any time within txoenty years ; and the correct and the only to/e practice (if not the usage,) appears to be to canry the
search back for 20 years, io afl cases where a search is necessary.
{d) Vide ante, 571,579.
(e) So under the statutes of usury it has been held, that usury cannot be pleaded to a scire fiuaas, or an action of debt on a j«d^ ment. Tbe8tatate(13£(a.c.8») which avoids bonds^ osntncts and assurances, has been hdd not to estead to a jadgpnenty Mpeoally as it was Gompetent to diedefend*
HILARY TERM, X GEO. IV.
We are therefore of opinion that the nonsuit must be set aside, and a verdict entered for the plaintiff.
583
1830.
ant to have pleaded the usury to the original action, and not have suffered a jodgment, which, in- stead of a contract or aMurance, is rtdditum in invitum. Middleton y.UUl, Cro. £liz. 588; Goldsb. 128/ &C.; Bjoaey.Bdlatetft, 1 Siderf. 18S. In the case of a jadgment upon a warrant of atcor- oej, where the defendant has had no opportunity of pleading the itatote, the proper coarse is to move to sec aside the warrant of attorney, and vacate the judgment. KmU^. Power ^ Cases temp. Hardw. 9SS, % Stra. 1043; EdmoMon^. Fvphmy \ Bos. & Pal. 370. And lee Emdlt ▼. (fBrien^ 1 Taunt. 413 ; Edmonson y. Hawkins, Peake, N.P. Add. Cases, 173. And where, upon the affidavits in support of, and in answer to the motion, the existence of a corrupt contract ap- peared to be doubtful, the Court of King's Bench directed an issue. Cookie, Janes, Cowp. 7S7. Vide Umen Mathews v. LewiSf 1 Anstr. 7. And see Scott v. Netbitt, $ Cox, 183 ; Scott v.Nieoll, 4 Dougl. 315 ; Dalbmc V. Dmllnac, 16 Ves. 124; Scruxner £x parte, 3 Ves. & Bea. 14 ; Roberts v. G(ff, 4 Barn. & Alders. 93; Cole v. Gill, 7 B. Moore, 353; Flight v. Chaplin, % Bam.&Adol. 112.
\a) So where A. surrenders a copyhold to sach ases as B. shall appoint, and until appointment to the use of B. in fee,the lord is bound to admit the appointee of B. as the wmedkUe surrenderee of i1., and cannot reqaire th« admittance of
Postea to the plaintiff (a).
B, Rex \, Lord of Manor of Oundle, 3 Nev. & Mann. 484 ; 1 ^dol. & Ellis, 283. And where lands stand limited to A. for 1000 years, and subject thereto, to B. for life, remainder to C for 2000 years, remainder to D, for life, remain- der to trustees to preserve, &c., remainder to the issue of P. sue* cessively in tail, with the nltimate remainder to the heirs of D. ; and the trusts of the first term are, upon non-payment of 800/. lent by /I. to D. to raise that sum by sale, mortgage, &c.; and the trusts of the second term are, to repay to B. any interest paid by B. to J., and to raise a further sum for B. ; power to B. to demise for ten years, or for seven years from B.'s death, to take effect in possession, reserving the best rent, &c., and B. demises under the power, for seven years from her death, to £., reserving rent toD., or to the person entitled for the time being to the freehold or inheritance : the lease takes effect as an appointment under the power, in advance of the term for 1000 years. Rogers v. Humphreys^ 5 Nev. & Mann, 511. And see Lord Abergavenny* s case, (J!Co. Rep. 78; Leonard LoMs case, 10 Co. Rep. 78; Idle w.Cooke, 2 Lord Raym. 1150 ; Cholmondeley V, Clinton, 2 Jac. & Walk. 40; Campbell v. Sandyt, 1 Sch. & Lefr. 293; Harris v. Booker, 4Bingh. 96; 12 B. Moore, 283; ante, 195, (c) ; Harris y. Pugh, 4 Biogh. 335 ; 12 B. Moore, 577.
CASES IN THE KING S BENCH,
Wood and another v. Grimwood.
Where the DEBT for penalties under the Statute of Usury, 12 Jnn. qui tnm'nction ^^' ^' ^* ^^' ^^^^ alleged usury was committed io April, for usury, sued 1827. The writ was sued out in September, 1828. The out his writ 10 J,. - ' r^ .i-j-
September, declaration, contammg nfty-two counts, was delivered m
e^hls dldal" '^""*^y ^^™' ^^^9* The plaintiff took down the record ration in Tri- for trial at the summer assizes for the county of Essex, in mprtwk the ^^^9' ^^^ withdrew the record. A rule nisi to amend the record down declaration, by adding sixteen counts, Mas obtained in
summerns- Michaelmas term, 1829; against which
sizes, 1839,
and then with- „ j • t i . r - i ■ l
drew the re- JSrodrtck now shewed cause* it is a general rule that
refwedio X^ the Court will not permit any amendment to be made in
low him to a penal action, where the plaintiff has been guilty of delav
daration" ** in carrying on the suit; Rankin q.t. \. Marsh {a), Steeh.
Sowerby (6). This case is clearly within that rule, for the
plaintiff has suffered two assizes to elapse since the action
was commenced.
Scarlett, A. G., contrd. The rule referred to applies only in cases where there has been great and unreasoDable delay, as in Goff v. Pappletoell (c), where the action had been depending four years. In Mace q. t. v. Locett{d), a declaration in an action for usury was amended, after the record was made up, carried down for trial, and withdrawn by the plaintiff. In Cross v. Kaye(e), the Court allowed a plaintiff to amend his declaration in a penal action, after the time limited for bringing another action. He also cited Maddock q. t. v. Hammeti {/).
(a) 8 T. R. 30. Pdre v. Craft, 4 East, 4SS ; DtfKf
lb) 6 T. R. in. V. Mataer, 4 East, 435, and 1
(c) 3 T. R. 707. Smith, 123; Woodroffey.WWiams,
(d) 5 BurR. 8833 6 Taunt. 19, 1 Marsh. 419; Soh-
(e) 6 T. R. 543. mqn$ ▼. Jenkins, % Cbitt. Rep. S3; (/) 7 T. R. 55. And see ^fi- Anon. ibid. 45 ; Wright r. Affr^
field, q. t. ▼. MUner, % Burr. 1098; 5 B. Moore, 330.
HILARY T£BM« X GEO. Iv. 585
Lord T£NT£BDBN« C. J. — ^The statute has limited the isso. time within which a penal action like the present shall be **^"^^ commenced; clearly intending also, that such an action shall and amither be pro$ecttied without delay. 1 think a party who, after he ^ ^' has commeaced such an action, has been guilty of any delay, is not entitled to any indulgence. Here, the action was commenced in September, 1828, and the plaintiff did not declare till Trinity term, 1829^ and then did not proceed to trial at the next assizes. The time which has elapsed is so great, that I think this rule ought to be discharged.
The other judges concurred.
Rule discharged (a).
(a) And see further as to |4ead- Sdarle ▼. MehiUe^ ibid. 198 ; and ings under the statutes of usury, the notes to those cases; anie, 589, Butt T. Bidgood, anie, vol. i. 143 ; note (c).
END OF HILABY TERM.
CASES
ARGUED AND DETERMINED
IV THE
COURT OF KING'S BENCH,
IV
EASTER TERM,
IK THE ELEVENTH YEAR, OF THE EXIOK Of OIQEOB IT.
1830. WoRswiCK, Administrator of Wood, v. Beswick.
In an action 1 ROVER for household furniture, the property of the ihiKir^l" plaintiflF as administrator. Plea: not guilty, and issue Bench by bill, thereon. At the trial before Parke, J., at the last Laoca- fhe piahniff, *''"''® assizes, the case was this : —
after the writ In August, 1829, the defendant had sold certain goods declaration, which belonged to the plaintiff as administrator of Wood,
of a sum in ^^j j^^ ^ jj,g proceeds. On the 14th of December, 1829,
satisfaction ot .
the damages the plaintiff issued a latitat against the defendant, retoroa-
bfgiven'in"'*'^ ble in Hilary term, 1830, when the declaration was filed, evidence un- On the l6th of January, 1830, the defendant, without coin- issue, andTwUl niunicating with the plaintiff's attorney, paid over to the
be an answer plaintiff the amount produced by the sale of the goods, to the action. - , , . , , ., , ,
after deducting expenses ; and there was evidence that toe
plaintiff was, at the time, satisfied with that payment It was contended, on the part of the defendant, that evidence of this payment was receivable under the general issue, and that, being received, it was an answer to the action. For the plaintiff, on the other hand, it was insisted that the latitat was the commencement of the action, and that no- thing done after that could be given in evidence under the
EASTER TERM^ XI GEO. IV.
general issue^ so as to defeat the action ; and> further, that the supposed settlement of the cause was a fraud upon the plaintiff's attorney^ and that, in either view of the case, the plaintiff was entitled to a verdict for nominal damages. The feamed judge was of opinion that the evidence was receivable, and that, if the plaintiff received the money in satisfaction of his claim for damages and costs, it was an answer to the action, unless the jury found the transaction fraudulent; and he directed the jury to find for the defend- ant, if they thought that the money was received in satis- faction, and that the transaction was not fraudulent, for the purpose of depriving the plaintiff's attorney of his costs. The jury found a verdict for the defendant ; but the plain- tiff had leave to move to enter a verdict in his favour, with nominal damages, if the Court should be of opinion that the ruling of the learned judge was wrong.
Alderson now moved accordingly. The jury have found that the money was received in satisfaction ; and they have negatived fraud: still the question remains, whether evi- dence of the settlement of the action brought ought to have been received in evidence, in answer to the action, under the general issue. It is submitted that it ought not. In Lee V. Levy (a) it was held, that matter of defence arising after action brought could not be pleaded in bar of the ac- tion generally, and therefore could not be given in evidence under the general issue. There Abbott, C. J., said, ''The question, whether matter of defence arising after action brought could be pleaded generally in bar of the action, was very fully discussed in the case of Le Bret v. Papii" lon{b). That case decided that no matter of defence, arising after action brought, can properly be pleaded in bar of the action generally, but ought to be pleaded in bar of ike further maintenance of the suit; and it was founded on
(a) 6 D. & R. 475. S. C. 4 B. & C. 399; 1 C. & P. 555, 575. {b) 4 East, 501.
587
18S0. >^^/-^
WOBSWICK V,
BeswicK.
588
1830.
CA5£S IN THE KING S BENCH,
the authority of Evans v. Prosser (a). [Parke, J. The payment in this case was before declaration, which upon the record appears to be the commenceinent of the action.] The real question is, what is to be deemed the commence- ment of the action i Where the time is material, the plain- tiff is always at liberty to treat the issuing of process as the commencement of the suit ; for instance, to shut oat a tender between the writ and the declaration, or to prevent the statute of limitations from operating. In Holland v. Jourdine{b) it was held, that even payment of the debt and costs, after the issuing of the writ, would be no answer to the action under the general issue ; but that the plaintiff would be still entitled to a verdict for nominal damages. \LiUledale, J. That was a case in the Common Pleas, where the writ is always considered as the commencement of the action, and therefore does not apply to a case in this Court, where the practice is different.]
Lord TfiNTEBDEN, C. J. — I think we ought not to grant any rule in this case. In proceedings by bill in this Court, the declaration is considered as the commencement of the action, unless, for the purposes of justice, the plain- tiff is allowed to shew an earlier commencement by the suing out of the writ. The instances put, of avoiding a tender after the writ, and of replying the writ to save the statute of limitations, are only exceptions to that general rule. In this case the jury have found that the money was paid and received in satisfaction of the costs as well as the damages; and they have negatived fraud. If, therefore^ we allowed the writ to be considered as the commencement of this action, it would have the effect of defeating instead of advancing justice. This is the same, in effect, as a plea*
(a) 3 T. R. 186, where it was held that a plea of set-off, that the plaintiff was indebted to the de- fendant ^^ at the time of the plea pleaded," was badi it should state
that he was indebted ''at the time of the commencement of the ac-
tiODi''
(h) Holt's N. P. C. 6.
WORSWICK V.
EASTER TERM, XI GEO. IV. 589
of accord and satisfaction as to damages and costs before 1830. bill filed ; and in such a case, a replication of a latitat sued out before satisfaction would be bad. I am, therefore, of opinion that the ruling of the learned judge was right. Beswick.
Baylet, J., and LittlboalEi J;, concurred.
Parke, J. — The plaintiff may, if he pleases, treat the writ as the commencement of his action; but if the defend- ant in this case bad pleaded the facts which he proved in bar of the action and costs generally, a replication that the writ was sued out before the payment would have been bad, for the plea would have disclosed matter which would ba?e been an answer to the writ as well as the action. In the instances put in argument, the plea is no answer to the writ ; and, therefore, the replication is good.
Rule refused.
Thomas Fisher and Malachi Fisher, Assignees
of George Ord Houliston, a Bankrupt,
V. Boucher, Esq.
Assumpsit for money had and received. Plea: non ^^^^ ^^^^
^ ^o deny a
assumpsit, and issue thereon. At the trial before Gase' trader to a
ke, J., at the last assizes for the county of Dorset, it was ^^ ^jl^^Ji^^
admitted that a commission of bankrupt had issued against nial takes
HoulUtoii, under which he had been declared a bankrupt, ac^^ofconc^U
and the plaintiffs had been appointed his assignees, and ^^^^ >• done,
that the defendant, as sheriff of Dorsetshire, had seized stitute an act
certain effects of Houliston under a writ of 6. fa.: and the of Umkruptcy
by beginning only question in the cause was, whether Houliston had or to keep house
with intent to
delay creditors.
A departing by a trader from his dvreUing-bouse with the intention not to return if a
given event occurs, which does not occar, whereupon the trader returns in the ordinary
coarse, does not constitute an act of bankruptcy, oy departing from the dwelling-house
with intent to delay creditors.
590 CA8E8 IN THE KING's BENCH,
1830. bad not cominitted an act of bankruptcy; as to wfaicb die
TT" evidence was as follows : —
Fisher V. Houliston had been a grocer, carrying on business at
BopcHKR. Blandford, in the county of Dorset. On the 1 1th of Juae, 1829y he received a letter from Francis 8c Co., of London, who had supplied him with goods, threatening to arrest him unless a debt of 70/. were paid them. On the 15th of June HouUsion wrote a letter to the plaintiff, Thomas Fisher^ to whom he was indebted 600/., informing hioi that, on taking stock, he found it was impossible for hioi to meet his creditors in full, and that he feared his estate would pay little more than 105. in the pound. He then proposed to assign the whole of his property to Fisher io trust for the benefit of himself and the other crediton, adding, that it was of the utmost importance that some arrangement should be made immediately, as he was threatened to be arrested for 70/., which he was then iid- able to pay, though he was confident of being able at some future day to pay the full amount, if his affairs could be so arranged as to prevent his property being wasted in law. On the same day he called his shopman into the parlour behind the shop, told him that Francis & Co. had threat- ened to arrest him, and that he had written to Fisher, his principal creditor, and that probably his goods might be seized; and desired him, if Pitney, the sheriff's officer, came to the door, to say that he {Houliston) was not at home. On the 17th of June, being Wednesday, be toU his wife that he was going out, and that if any thing parti- cular happened, she was to send to him at the Shillington turnpike gate« He then left home, for the avowed purpose of going his journey through Durweston, Shillington, and other places in the neighbourhood, to deliver goods which had been previously ordered, and to take fresh oiders, in the usual course of his business. It had, however, been his habit on former occasions to take this journey on a Tuesday morning, and to start between eight and nine o'clock : on this occasion he started soon after seven on a
EASTER TERM, XI G£0« IV. 591
Wedoesdaj morning, before the London mail had arrived, 1830. by which a letter might have been received by him from his creditors, Francis & Co., or a warrant by Pitney^ the sheriff's officer, to arrest him. He went on slowly through Durweston, without calling at any house, and through the Sbillington turnpike gate, and stopped at a house a short distance beyond the gate, where he went in, left a small parcel, and settled an account; and there he waited till the mail cart came up, when the driver delivered to him a letter from Francis & Co., which had been received at his house after he left it. That letter contained the following pas- sage : — '* We are not inclined to be unnecessarily harsh in the arrangement of our account. You say you can pay IDs. in the pound now, and the remaining lOs. at some future time. Let us have a good guarantee for the pay- ment of tlie first 10s. at as short a date as can be accom- plished, and we will take your own note for the remaining 10s., payable some time hence, provided the time be not too long.'' Having read this letter, HoulistoH wrote with a pencil on the back of it, ** I shall now return with com- fort to my wife and children/' and sent it to his wife by a private messenger. He then went on to Tippy Oakford, the next village to Shillington, called at one house there> and then returned home by a different route from that which he usually took. On the same morning, before he left home, his wife had packed up some clothes for him in a deal box, which he was in the habit of taking with him when he went on a long journey. Upon this evidence it was contended, on the part of the plaintiffs, that Houliston had committed two acts of bankruptcy ; first, by beginning to keep house, he having given orders to be denied to the sheriff's officer; secondly, by departing from his dwelling- house; — each with intent to delay his creditors. The learned judge was of opinion that Houliston had not com- mitted any act of bankruptcy by beginning to keep house with intent to delay his creditors, the direction given to the shopman to deny him to the sheriff's officer, if he called.
592 CASES xN THE KING's BENCH,
1830. being evidence only of an intention to delay his creditors, and not of an actual beginning to keep house for that pur- pose. Upon that point, however, his lordship reserved liberty to the [ilaintiifs to move to enter a verdict in their favour, in case the Court should be of opinion that the facts proved amounted to a beginning to keep house. Upon the other point, the learned judge was of opinion that the ques- tion, whether Houliston had committed an act of bank- ruptcy by departing from his dwelling-house, depended upon the intention which he had at the time when he so departed. If at thaftime he intended not to return unless he should receive a letter from Francis 8c Co. and should be satisfied with its contents, that might be a departure with intent, in a given event, to delay his creditors, and might, possibly, constitute an act of bankruptcy; but if be departed from his dwelling-house to go his usual roonds in the ordinary course of his business, intending to return, that was not a departing with intent to delay his creditors, and, consequently, not an act of bankruptcy : and his lord- ship left it to the jury to say, whether Houliston departed from his dwelling-house on the morning of the 17th of Jnne with intent to delay his creditors, or merely to go his usual rounds in the ordinary course of his business. The jury found that Houliston did not depart from his dwelling- house on the morning of the 17th of June with intent to delay his creditors, but to go his usual rounds in the ordi- nary course of his business. A verdict, therefore, was en- tered for the defendant.
Wilde, Seijt., now moved, agreeably to the leave reserred, to enter a verdict for the plaintiffs, on the ground that Houliston had committed an act of bankruptcy by beginning to keep house ; or for a new trial, upon the ground that the finding of the jury, as to the intent with which Houliston departed from his dwelling-house, was against the weight of evidence.
First, there was a beginning to keep house, with intent
EASTER TERMj Xl GEO. IV.
to delay creditors, such as constituted an act of baukruptcy. An intent to delay is sufficient, although no creditor is ac- tually delayed ; Lloyd v. HeaihcoU (a) ; and the order here given to be denied to the sheriff's officer, who vi as expected to call with a writ at the suit of Francis 8c Co., was suffi- cient evidence of an intent to delay them. A mere order of denial given by a trader, though no denial may take place, is evidence that he desires to conceal himself from the creditor who is to be denied; and the desire to conceal himself from a creditor can only be with intent to prevent or delay that creditor from recovering his debt. In Harvey V. Ramsbotiom (A) a trader ordered his servants not to let any one into the house whom they did not know, stating thai he was afraid of being arrested. The next day the servants did not open the door without ascertaining from the windows what persons required admittance, and the outer gate of the house was kept locked. That was held to constitute an act of bankruptcy, by beginning to keep house, though no creditor was actually denied or delayed. These cases shew that it is not necessary, in order to con- stitute an act of bankruptcy by beginning to keep house, that any creditor should be actually denied, or actually de- layed : therefore Hoitlistofis order to be denied to the she- riff's officer was of itself an act of bankruptcy, although the sheriff's officer did not call.
Secondly, the finding of the jury with respect to the intention with which Houliston left his dwelling-house, was against the weight of evidence. The circumstances attend- ing his departure clearly shew that he did not intend to return ; and if he did not intend to return, he did intend to delay his creditors. What are those circumstances ? Im- pressed with a strong apprehension of being arrested — his Wife having previously packed up his clothes — he sets out upon a journey^ on an unusual day and at an unusual hour.
593
(a) 2 Brod. & Bingh. S88; 5 B. Moore, 129. 55.
VOU V. Q Q
(6) 3D.&R. 142; 1 6. & C.
18S0.
594
1830.
CASES IN THE KINGS BENCHt
Having gone a short distance, he waits till he receives a letter, which relieves him from his apprehension of arrest; he says, " I can now return in comfort to my wife and children ;" and he then abandons his journey, and returns home by an unusual route. The object, therefore, for which he left home, was to avoid being arrested ; and to effectuate that object his intention was, not to return home unless the letter which he expected proved favourable, aod enabled him to do so safely. That being the case, it is clear that he departed from his dwelling-house on that oc- casion with intent to delay his creditors.
Lord Tenterden, C.J. — I think we ought not to grant any rule in this case. Two points have been made before us : one depending upon a question reserved by the learned judge who tried the cause ; the other depending upon the propriety of the finding of the jury. The ques- tion reserved by the learned judge is, whether Houliston committed an act of bankruptcy, by beginning to keep house. It appears by the evidence that he had given directions to his shopman, if the sheriff's officer called at the house, to say he was not at home. If he had followed up that order by withdrawing himself to a part of the house which he did not usually occupy, that would have been evidence of a beginning to keep house with intent to delay bis creditors, although no creditor was actually denied or delayed ; but he did nothing of that kind. We should be going much further than any authority will warrant us in doing, if we were to hold that a mere direction given by a trader to his servant to deny him to his creditors generallyi or to any particular creditor by name, not followed up by an actual denial, or by any other act which is evidence of an actual beginning to keep house, was an act of bank- ruptcy. Here the facts proved were evidence of an intent to begin to keep house in case the sheriff's officer should call, but not of an actual beginning to keep house. Then, as to the finding of the jury with respect to the other sup-
EASTER TERM^ XI GEO. IV.
posed act of bankruptcy. Construing the evidence most favourably for the plaintiffs, it appears that there was no- thing more than an inchoate intention by Houliston to delay his creditors, by not returning to his dwelling-house, in case a particular event happened. That event not having happened, he did in fact return to his dwelling-house, ac- cording to his usual habits. That was a departure, not with an absolute, but only with an inchoate intent to delay; and I am not aware ttvat that has been ever held to consti- tute an act of bankruptcy. Besides, there was ample evi- dence to warrant the jury in finding that he departed from his dwelling-house with an intent to go his rounds in the usual course of his business, and not with an intention to delay bis creditors ; and that being so, there is no ground for saying that he committed an act of bankruptcy^ by de- parting from his dwelling-house with intent to delay his creditors.
595
1830.
Bayley, J. — Upon the second point, the departing from the dwelling-bouse, the jury have found that Houliston de- parted from his dwelling-house for the purpose of going his rounds in the usual course of his business, and not with intent to delay his creditors ; and I cannot say that they were not justified by the evidence in coming to that conclu- sion. But looking at the evidence independently of the finding of the jury, and taking it most favourably for the plaintiffs, I should doubt whether there was any departure with intent to delay creditors ; for the bankrupt, at most, only intended to delay his creditors in case a given event should occur. That event did not occur; therefore the intent was never more than inchoate. If the letter had proved unfavourable, and he had delayed, even for a short time after receiving it, to return home, that might have been an act of bankruptcy, by absenting himself. How- ever, the jury, by their finding, have negatived any such act of bankruptcy; and I see no ground for disturbing that finding.
Q Q2
596
1830.
CASES IX THE KING'S BENCH,
Then, upon the first point, the beginning to keep house. I am not a\i'are that the mere giving directions by a trader to deny him to a creditor, unless there be some act done to shew that he began to keep house, is an act of bankruptcy. If Houlistoftf to prevent his being seen, had retired into a seduded part of the house or adjoining premises, or if there had been an actual denial to a creditor, by his order, then such acts would have been evidence of a beginning to keep house. The two cases that have been cited were very different from the present. In the first of them, Lloyd V. Healhcote (a), there was an order to deny all creditors generally, and an actual denial of a particular creditor, and when that creditor called, and was denied by the bankrupt's wife, the bankrupt retreated into the garden, which shewed that he intended to withdraw himself from the view of per- sons who called. In the other case of Harvey v. Rams- bottom {b) there were not only directions to be denied, but tbe doors of the house were kept shut, and no person was admitted until it had been ascertained by the servants from the window who he was. Moreover, in that case the bankrupt removed from one apartment of his house to another to avoid being seen by a person who called, and whom he supposed to be a creditor ; so that he was not conducting himself in his usual manner in his own house, but was actually concealing himself from a supposed cre- ditor. All the authorities concur to shew that a mere direction given by a trader to deny him is not an act of bankruptcy, unless that direction is followed by an actual denial, or by concealing himself, or by some other act which is evidence of a beginning to keep bouse. A locus poenitentiae is allowed to the debtor; for notwithstanding his direction, he may, before a creditor calls, revoke it, and elect to see him ; and in that case there would be no begin- ning to keep house. Unless the direction is followed bj
(a) 2 Brod. & Bingb. 888; 5 (&) 9 D. & R. 149; 1 B. & C.
B. Moore, U9. ^5.
EASTER TERM, XI GEO. IV.
some act done in pursuance of and consistent with the direction, it is not an act of bankruptcy.
LiTTLEDALE, J. — I also think that the question, whether Boucher. there was a '* departing from the dwelling-house within the meaning of the bankrupt act, was properly left to the jury, and that their conclusion was warranted by the facts of the case. It appears by the evidence, that HouUsIon, when he departed from his house, doubted whether he should return. He probably intended, if the letter from Francis & Co. was unfavourable, not to return ; and if so, he also intended, in that case, to commit an act of bank- ruptcy. But the letter having turned out favourably, he did not carry that intention into effect. I cannot say that this was a departing from the dwelling-bouse with intent ta delay creditors.
As to the question, whether there was a beginning to keep house within the meaning of the bankrupt act, — ac- cording to the earlier cases on that subject it seems for some time to have been considered that an actual denial was indispensable to prove an act of bankruptcy by begin- ning to keep house ; but it has since been settled that a denial is not the only evidence of a beginning to keep house, — that it may be proved by other circumstances. In this case, if there had been any thing to shew that Houlis- ion, after he had given directions to be denied, had not conducted himself in his house in his usual manner, — that he had withdrawn himself into a retired part of his house, contrary to his ordinary habits, — I think that would have been evidence of a beginning to keep house : but there must be some act done by the trader to shew that he actu- ally began to keep house. Here, the direction given by Hottliston to deny him to the sheriff's officer, was evidence of an intent to keep house, and thereby to delay the cre- ditors ; but It was not followed up by any act shewing tha^ he had actually begun to keep house.
CASKS IN THE KING S BENCH,
Parke, J. — I am of the same opinion. As to the de- parture from the dwelling-bouse, I think the question was properly left to the jury, and that their conclusion was right. Houliston may possibly have intended to do that which would have amounted to an act of bankruptcy, if the information he should receive at the turnpike proved un- favourable. It was more favourable than be expected; he returned to his dwelling-house according to his usual habit; and there was no act done out of the ordinary course.
As to the other alleged act of bankruptcy, the beginning to keep house, the authorities go no further than this;— that an actual denial to a creditor is not necessary to con- stitute a beginning to keep house, but that it may be shewn by other circumstances. It may be sufficient if the creditor is excluded from the debtor while he remains in or about his house. Here the case slops at the fact, that Houliston gave directions to his shopman to, deny him to the sheriff's officer, if he called. That shewed an intention to delay his creditors; but the mere intention to delay creditors, without any act done, is not a beginning to keep house.
Rule refused.
Wood and another v. Grihwood.
il., having lent DeBT for penalties under the Statute of Usury, 12 Ann.,
B. a sum of '^ . . •'
money, agreed St. 2. c. lo. The first count m the declaration stated, that
lLTo"an"Jbr ^^^^'- ^^^ ^^^^ '^"^ ^^ ^^^ defendant to J. B.. R. 5., and one year, from J. B., the younger, and secured to him by their promissory
182MO Sep- "^^^> ^"^ ^^^^ 3000/. had been lent by him to the same tember, 1827,
on condition that JB. would pay a bonus in the first instance, and legal interest apoo the sum lent half-yearly. jB. paid the bonus in January, 1827, and legal interest apoa the money lent half-yearly, in April and October, 1827. In June, 1828, an action was commenced against A. for usury : — Held, that the action was not commenced withio one year after any offence committed, for that the only otfence committed was cooplete in April, 1827, when the first paymerit of interest was made, and that the bonus coald not be apportioned to the second payment of interest, so as to render that asurious.
EASTER TERM, XI GEO. IV.
persons, and secured to bim by their bond ; that it bad been agreed that the 5()00/. should be further secured by a mortgage to be granted by J. B. and JR. J5.; that the said sums had been forborne by the defendant upon the note and bond, before and from the gth of September and £8th of September, 1 826, respectively, until the time of the con- tract next mentioned ; that on the 4th of October, 1 826, it was corruptly agreed between the defendant and J. JB., that the defendant should sell certain beans and barley to J, B., at prices far exceeding their value, and should take, by way of shift, the difference between the prices and the true value thereof as a bonus for the further forbearing of the said sums as next mentioned, over and above 5l, per cent. to be also paid upon them while forborne ; such prices to be paid at three months' credit : that the defendant, in pur- suance of that contract, forbore the 5000/. upon the note until the execution of the mortgage next mentioned, and, from its execution, upon the mortgage, until the 8th of Sep- tember, 1827, and forbore the SOOO/. upon the bond until the 28lh of September, 1827 : that on the 25th of October, 1826, J. B. and R, JB, executed a mortgage, bearing date the 9th of September, 1826, in which the 5000/. was men- tioned as a sum lent by the defendant and one «7. C. to J. B. and i2. J3., and was made payable to the defendant and J. C, at the expiration of one year from the date, with interest at 51, per cent., payable on the 8th of March and 8th of September ensuing the date: that on the 10th of January, 1827, the defendant was paid the prices agreed upon for the beans and barley, amounting to 760/. IO5., and took the said difference, amounting to 1 14/. 125. Sd. as a bonus as aforesaid : that on the 25th of April, 1827> the de- fendant and J. C. took from «7. JB. and R. £., 125/. for for- bearance of the 5000/. from the 9th of September, 1826, to the 8th of March, 1827, and the defendant took from /. J5., R. B., and J. B. 75/. for forbearance of the SOOO/., from the 28th of September, 1826, to the 28th of March, 1827 : that on the 28th October, 1827, the defendant took
699
1830.
600
1830.
CASES IN THE KINGS BENCH,
200L, for forbearance of the 5000/. and the 3000/1, that is to say, 125/. from J.J?, and R.B.^ for forbearing the 5000/. from the 8th of March ,1827, to the 8th of September, 1827, and 75/, from J, B,^ R. B. and J. J3., for forbearing the 3000/. from the 28th of March, 1827, to the 28th of Sep- tember, 1827; and that the defendant, by so taking the 200/. over and above the bonus, and the other sums, took above 5/. per cent. &c., contrary to the form of the statute, &c. Plea : Not guilty, and issue thereon. At the trial before Bay ley, J., at the last assizes for the county of Essex, the counsel for the plaintiff stated the facts dis- closed in the former action, between the same parties (a), and also the following additional facts : — that the payment of the 760/., the stipulated price of the beans and barley, in January, 1827, exceeded the market price by 114/.; that by the mortgage deed the 5000/. was payable at the end of one year, with 5/. per cent, interest, payable half-yearly, on the 8th of March and 8th of September ; that in pursuance of that deed, 125/., half a year's interest, due on the 8th of March, 1827, was paid in April to the defendant; that 126/., another half year's interest, due on the 8th of September,
1827, was paid to the defendant in October, 1827; and that the present action was commenced on the 28th of June,
1828. The learned judge, after hearing this statement, being of opinion that if all the facts contained in it were proved in evidence, the plaintiffs would not be entitled to recover, or even to call upon the defendant for an answer, directed a nonsuit, which was submitted to. The ground of his lordship's opinion was, that the action was not com- menced within the time limited by the statute, namely, one year after the alleged usury was committed, the usury being complete in April 1827, when the first half-year's interest re- served by the mortgage deed was paid, and the defendant having received only legal interest in October, 1 827, when the second half-year's interest was paid.
(a) Set out aniCf p. 551.
EASTER TERM, XI GEO. IV. 601
Stephen, Serjt. now moved to set aside the nonsuit, and isso. for a new trial. The action was commenced in due time; ^■^•^v*^^ There were two offences of usury committed, and the action p.
vas brought within a jear from the commission of the Obimwood. second of them. The bonus was taken by the defendant as a consideration for the forbearance of the principal money lent during the period of one whole year, and though the whole of that was received at once, still, as the interest was received half-yearly, a portion of the bonus must be consi- dered as forming a. part of the consideration for the forbear- ance during each half year. It follows, then, that although the defendant committed one offence of usury, when he re- ceived the first half-year's interest reserved by the deed, he committed another distinct offence when he received the' second half-year's interest. Wade v. Wibon {a), upon the authority of which this case was disposed . of at nisi prius, does not seem inconsistent with this view of the transaction. There the contract was for the loan of 600/., for a year, re- serving interest payable half-yearly, at the rate of 51. per cent., but a premium of ten guineas was paid in the first instance. The action was brought upon the payment of the first half-year's interest, and it was contended, that the loan being for a year, and the premium paid for that time, the usury was not complete till the end of the year, when the whole interest was received in addition to the premium. But the Court held, that the usury was complete upon the lender's receiving any part of the growing interest within the year; Lawrence, J., observing, that there was a pre- mium of ten guineas paid at first, which was to run through the whole year : and Le Blanc, J. expressing his opinion, that at least one moiety of the premium was to be appor- tioned to the half-year's interest which was received, and that the true spirit of the agreement was, that the premium tpas to run through the whole year, in proportion as the in^ terest accrued. Now, though the decision in that case is an express authority to shew, that one offence of usury was
(a) 1 East, 195.
602
1830,
CASES IN TU£ KINGS BENCH,
tommitted here when the first half-year's interest was re- ceived, it is not at all inconsistent with the inference arising from the opinions expressed by Lawrence, J. andZe BlanCf J.p namely, that a second and distinct offence was committed when the second half-year's rent was received. In Scurry i. Freeman (a). A, lent JB. 500L upohhis bond, and an assign- ment by way of mortgage of leasehold premises, and at the time of the loan it was agreed that the latter should giye something more than legal interest as a compensation, but no particular sum was specified. After the execution of the deeds, B. gave A, 50/., and paid interest at the rate of 5L per cent, on the 500/., for five years, at the end of which an action was brought against^, for usury, founded on the receipt of the last half-year's interest. It was held, that the action was. not barred by lapse of time, for the loan was subrtantially for no more than 450/., and consequently the interest, at the rate of 5/. per cent, on the 500/. received within the last year, was usurious. That case is an autho- rity to shew that the present action is maintainable in re- spect of the second half-year's interest received by the defendant, that interest being, coupled with a portion of the bonus, usurious ; because it shews, that a bonus originally taken renders all subsequent payments of interest, though not in themselves exceeding 5l. per cent., usurious, and that every such payment constitutes a distinct offence.
< Lord Tentebden, C. J.-^I am of opinion that the action in this case was not commenced in due time, and that the nonsuit, therefore, was right. The facts of the case .were shortly these: — Prior to September, 1826, the defendant had advanced the Brightwens 5000/., which was partially secured by their promissory note, and which it was agreed should be further secured by a mortgage to be after- wards executed. Before the time arrived for the execution of the mortgage, the defendant gave the Brightwens to un- derstand, that he would not complete it unless they wooM
(a) 3 Bos. & Pill. 381.
EASTER TERM, XI GEO. IV. 603
purchase of him. some beans aDcl barley, at a much higl^r 1830. price than they would have fetched in the market; aodt^ey agreed to do so. The mortgage de^d was executed on .the eoth of October, 1826, but was dated on the 9th of Sep- tember in that year. The dOOOL was payable at the end of one year, with interest at oL per cent., payable half-yearly, on the 8th of March and 8th of September. In January, 1827, 760/., the stipulated price of the beans and barley, was actually paid to the defendant, exceeding the market price by 1 14/. On the 25ih of April, 1827, 125/., the half- year's interest, due by the mortgage deed on the 8th of March, was paid to the defendant. On that day, therefore, the defendant had actually received 239/* for the forbear- ance of 5000/.. for half a year, and an action might then have been broijight against him for the penalty, namely, treble the amount of the money lent. ,No such action was brought. On the 8th of September, 1827, another half- year's interest became due, for which, on the 25th of Oc- tober, another sun) of 125/. was paid to the defendant. The present action was commenced on the 25th of June, 1828, more than a year after the payment of the interest made in April, but less than a year after the payment made in October. It is clear, therefore, that no more than the legal interest was received in October, 1827, unless we can consider part of the bonus of 1 14/. as having beien then paid ; but as the whole of diat was in fact paid in January, we cannot, especially for the purpose of subjecting the defendant, to a penalty, consider any part of it, contrary to the fact, as having been paid in October. . Our present decision will not militate against that in the case of Wadty* Wibon{a). It was not decided there that an action for penalties was maintainable in respect of the 5/. pier cent, interest received for the last half-year ; but merely that the receipt by the defendant of interest received for the first half-year, which, with what he had before received, amounted to more than 5/. per cent., constituted usury : and in deciding that, the Court decided
(a) 1 East, 195.
604 CASES ly THE king's bench,
iBSOi. all that was necessary for that case. Scurry v. Freeman {a) was decided on the ground that the amount of the actual loan must be deemed to have been 450/. only, and not 500/., and that therefore the receipt of 25/. for one year's interest was usurious. In this case the facts are very diflFerent, and I think we should be doing great violence to the words of the act of parliament, if we were to hold that in this case more than 5/. per cent, interest was received withm the year before the action was commenced.
LiTTLEDALE, J. — I think we ought not to grant any rule in this case. Here is a contract for a loan of 5000/., se- cured in the first instance by a promissory note, and agreed to be afterwards secured by a mortgage. Before the mort- gage is executed, the lender, the defendant, informs the borrowers that he will not complete the mortgage unless be has a bonus. They agree to give a bonus, and do give it by paying him a sum of 1 14/. in January, 1827. The mortgage deed, bearing date on the 9th of September, 1826, is exe- cuted in October in that year. The first half-year's interest reserved by that deed becomes due on the 8th of March, and is paid on the 25th of April, 1827. By the payment of that money the usury was complete, for the defendant had then received a sum exceeding the amount of interest, at the rate of 5/. per cent, upon the money lent. I think the 114/. cannot be extended over the whole period for which the money was lent, and apportioned to the several payments of interest, in order to make the party receiving in regular course the half-yearly payments of Icfgal interest, guilty of - usury. But even if the bonus were divisible and could be apportioned over the whole period for which the loan was to continue, I doubt whether any action for penalties could be maintained after the receipt of the first half-year's in- terest, because the offence was complete at that time. The defendant had then taken more than 5/. per cent, in respect of the corrupt contract, and had thereby subjected himself
(a) 2 Bos. & Pul. 381.
EASTER TERM, XI GEO. IV.
to the penalty imposed by ihe statute, of treble the sum lent ; and the statute does not subject a party to a second penalty for taking usurious interest a second time, in respect of one and the same contract.
605 1830. Wood
V, GrI¥WOOD.
Parke, J. — lam of the same opinion. The only sura received by the defendant within one year before the coni- mencement of this action, was 125/., the second half-year's interest at 5L per cent, upon the original loan, due on the 8th September, 1827. That was, prim^ facie, legal interest, and no offence against the statute was committed by the receipt of it. But it is said that the bonus of 1 14/. was paid for the forbearance of the 5000/. for the whole year, and that a por- tion of it must be considered as paid for the forbearance during the last half-year, the interest for which was received within one year before the commencement of the action. Upon principle^ I cannot concur in that argument, and no autho- rity has been cited in support of it, for it is founded entirely upon some expressions reported to have fallen from LaW" fence, J. and Le Blanc, J. in Wade v. Wilson (a), which can- not be adopted as an authority, having been extra-judicial, and not at all necessary to the decision in that case. But even admitting that argument to be correct, I cannot agree to the conclusion attempted to be drawn from it — that an action for penalties is inaintainable against the defendant for the receipt of that last half-year's interest ; because, looking at the words of the statute, I am of opinion that after one penalty has been incurred upon one bargain or loan, no other offence can be committed in respect of the same bar- gain or loan, by the lender receiving a further sum by way of usurious interest. The statute 12 Ann. st. 2, c. 16, s. I, enacts, in substance, that all persons who shall upon any contract take, accept, and receive, by way or means of any corrupt bargain or loan, for the forbearing or giving day of payment for one whole year, of and for their money, above the sum of 5/. for the forbearing of 100/. for a year, and so,
(a) 1 East, 195.
606
1830.
CASES IN THE KING S BENCH,
after that rate for a greater or lesser suniy or for a longer or shdHer time, shall forfeit and lose for every such offence the treble value of the money lent. The statute, therefore, makes two things necessary to constitute the offedce of usury : first, a corrupt bargain or loan ; and, secondly, an actual receipt of a higher rate of interiest than 5L per cent, for the forbearing or giving day of payment of the money lent. As soon as these two things concur, the offence con- templated by the statute is complete; The party who has recefived the usurious interest in respect of the corrupt bar- gain or loan, has then incurred the penalty, and, I think, the only penalty attached by the statute to that bargain or loan, and to the receipt of usurious interest upon it, by forfeiting treble the value of the money lent or forborne. If this were not so — if every subsequent payment of legal interest on a loan, where a premium has been given which renders the first payment, though legal in itself, usurious, would constitute a distinct offence of usury — the consequence would be, that if the lender received legal interest on such a loan, at intervals, he would be liable to forfeit treble the value of the money lent, not once only, but every time he received the interest ; and if the intervals wer^ short, penal- ties to the amount of many thousand pounds might be m- curred upoti the loan of a single hundred pounds. I cannot bring my mind to think that such a result was intended by the legislature : I think their meaning must have been, that no more than treble the value of the money lent should, under any circumstances, be forfeited by the offender b respect of one and the same transaction. In the case of Scurry v. Freeman (a), it does not appear that this point was pressed upon the attention of the Court
Bayley, J. — The offence of usury, as defined by the statute creating it, consists in the receiving more than 51. per cent, interest upon a corrupt bargain or loan. In de- ciding this case, we must consider the provisions of the
(a) 2 Bos. & Pul. 381.
EASTER TERM, XI GEO. IV.
statalc as embodied in the declaration, and then we are to see whether the defendant has received more than 5L per cent upon his loan, within one year before the commence- ment of the action. Now, in point of fact, two sums onlj, of 1£5/. each, were received by the defendant within the^ jear before the action was commenced ; and they did not exceed 5/. per cent, upon the money lent, provided the debt- of 5000/. continued. Now, it has been decided, • that the taking of usurious interest upon a pre-existing debt, does not destroy that debt, although the party may be liable to penalties (a). The 5000/., therefore, continued a debt, and two payments only, not exceeding the legal rate of interest, were made upon it within the year before the commence- ment of the action. The decision in Scurry v. Freeman (b) may be right, and would undoubtedly be so, if the lender of the money, after the 50/. had been retained, had claimed
only 450/. as the debt.
Rule refused.
607
18S0.
(a) See the law upon this point stated, and the aothorities col- lected io Comyn on Usury, Part iii.
chap. J, sects. 2 & 3, page 183 to 195; an/f, 582,n., 584. (b) 2 Bos. & Pul. 381.
MosELEY, Assignee of Robikson^ a Bankrupt, v. Hanford.
Assumpsit, by the plaintiff, as assignee of a bank* nipt, against the defendant as maker of a promissory note for 233/., payable to the bankrupt or his order, on demand. Plea, Don assumpsit, and issue thereon. At the trial be^ fore Alexander, C. B., at the last assizes for the county of Derby, a prima facie case having been made out, on the part of the plaintiff, by proof of the defendant's handwriting to the promissory note in question, the following evidence was given on the part of the defendant: — The defendant and one Richardson, being in partnership as booksellers at Derby, agreed to purchase of the bankrupt certain pre-
In an action on a promis- sory note made payable on demand, parol evidence of an agree- ment entered into when it was made, that it should not be put in suit until a l^iven event happened, is not admissible.
60S
1830.
CASES IK THE KINGS BENCH,
mises belongiog to him, and of which he andertook to de- liver up possession on the 1st of August. 1825, or to paj for the time he should keep possession beyond that day, a rent agreed upon between the parties. On the 1st of August. 1825. Richardson and the defendant paid up the whole of the purchase money, except 25SL (the amooot of the promissory note.) and the defendant, with the con- sent of the bankrupt, then gave his sole note for the balance, it being expressly stipulated that it was to be paid only on the bankrupt's delivering up possession of the pre- mises, and accounting for the rent from the 1st of August The bankrupt did not deliver up possession of the pre- mises, according to his undertaking, and part of them con- tinued in the possession of the bankrupt's sister down to, and since the commencement of the action. The jury found a verdict for the plaintiff.
Denman, C. S., on a former day. moved for a new trial, on the ground that the verdict was against the weight of evidence. [Lord Tenterden, C. J. But I have great doubt whether the evidence itself was admissible. Have you any authority to shew that a promissory note like this, absolute on the face of it, can have its effect restrained by parol evidence? Bayhy J. Is not the case of Wood- bridge V. Spooner {a) an authority to shew that such evi- dence is not admissible? Parke, J. The proper distinc- tion I apprehend to be this. — Every bill or note imports two things, value received, and an engagement to pay the
(a) 3 Barn. & Aid. 233; 1 Chit. R. 661; where it is said " it is an inflexible rule not to adroit parol evidence to contradict a written instrument, unless the considera- tion be illegal ; therefore, where a testatrix gave in her life-time to the plaintiff a promissory note to pay him or order * on demand, the sum of 100/. for value re-
ceived, and his kindness to me,* with a verbal engagement on the part of the plaintiflf that the note should not be demanded till after her death: it was held, in an ac^ tion upon the note, that parol eri* dence could not be received to shew that it was not pven for a valuable consideration."
EASTER T^RM, XI GEO. IV. 609
amount at a certain 8pe€ified time ; you may give evidence 18S0. to disprove the receipt of any consideration, but not to ^^ vary the engagement.]
V. H4NF0RD.
The Court, however, took time to consider of their judgment, which was now delivered by
Lord Tenterden, C. J., who, after recapitulating the facts of the case, thus proceeded: — When the applica- tion for a new trial was made in this case, it occurred to some of the Court that the evidence given on the part of the defendant ought not to have been received, on the ground that evidence of an agreement, that the note should not be put in suit until a given event happened, was not admis- sible, the effect of it being to contradict by parol the note it- self, And upon consideration we are all of opinion that, upon principle as well as authority, that evidence was not admissi- ble. There are several cases in the books to that effect (a).
(a) See Campbell v. Hodgton^ Gow, N. P. C. 74; Hoare v. Gra- hom, 3 Camp. 57; Rawton v. Walker, 1 Slark. N. P. C. 361;
Rule refused.
Ridout V. BrUtow, 1 Tyr. 84, 1 C. & J. 331; Woodhridge v. Spooner, iupriif(a).
Garry v, Sharratt.
Assumpsit by the plaintiff, as assignee of Flowers, an insolvent debtor, against the defendant, for money had and received by him to the use of Flowers. Plea : non assumpsit, and issue thereon. At the trial before Little- dale, J. at the last assizes for the county of Stafford, the following was the evidence on the part of the plaintiff: — An indenture of assignment of 1 May, 1828, from Flowers to Dance, provisional assignee of the Insolvent Debtors^ Court — a rule of that Court of 13 September, 1828, au- thorizing. Dance to assign to the plaintiff-^an indenture of VOL. V. R R
The assignee of an insolvent cannot recover from a person with whom the insolvent has deposited the title-deeds of an estate, as a security fur a debt, the rents^ of the estate received by such person subsequently to tlie assign ment.
CAS£S IN THE KING S BENCH,
assigDment of 27 April, 1829* from Dance to the plaintiff, of all the estate and effects of Flowers — tljat the defendant, after the discharge of Flowers, had received 71. Is. on account of rent of an estate belonging to Flowers — and that Flowers, prior to his discharge, had always received the rent of the estate himself. On the part of the defendant, the insolvent, Flowers, was called, and stated, that in IB26, being indebted to the defendant, he deposited with him the title-deeds of the estate in question, as a security for what he then owed, or might thereafter owe him, and that he had, prior to his discharge, given to the defendant a verbal authority to receive the rent of the estate. The learned judge directed the jury to find for the defendant, if they believed that he had received authority from Flcmer$ to receive the rent, and that that authority had not been revoked. The jury said, they considered the deposit of the title-deeds a sufficient authority to receive the rent, and found for the defendant. The plaintiff had leave to move to enter a verdict in his favour for ?/• \s,
Campbell now moved accordingly.' First, the defendant never had a legal authority to receive the rents. Secondly, if he once had, that authority was revoked by the assign- ment to the plaintiff. The deposit of the title-deeds made the defendant equitable mortgagee of the estate; but such a mortgagee has not, necessarily, authority to receive the rents. The legal estate was in the insolvent, as the owner, up to the time of his discharge, and he was entitled to the possession of the land and the perception of the rents. The defendant, as equitable mortgagee, might in a Court of Equity have compelled the conveyance of the legal estate to himself; but he cannot, in a Court of Law, set up his equitable title against one in whom the legal estate is vested. But, assuming that the defendant once had authority from the insolvent to receive the rents, that authority was revoked by the assignment of the insolvent's estate and effects to the plaintiff, and the legal estate iben
EASTER TERM, XI GEO. IV.
vested in the plaintiff, who thereby acquired a better title than that of the defendant.
Lord Tenterden, C. J. — By the assignment of the insolvent's estate and effects to the plaintiff^ all that the insolvent was entitled to at law and in equity passed to the plaintiff, and vested in him as assignee. Now, the insol- vent was at law entitled to the land, but the defendant was in equity as mortgagee entitled to the land, and to the rents accruing from it. The assignment to the plaintiff, therefore, could not give him any right to the rents, nor any title to receive them. The verdict, consequently, was "ght.
The other Judges concurred.
Rule refused.
Hunter i;. Wright.
Assumpsit, by the St. Patrick Assurance Company Policy of in-
in Ireland, in the name of their Secretary, to recover the ^uf^^J^e on a
•" ship (or a year,
balance of an account alleged to be due to the Company with a stipu-
from the defendant, an insurance broker, for premiums on proportionate
policies on ships effected by the Company. Plea: non return of pre-
assumpsit, and issue thereon. At the trial, before Lord every uncom-
Tenterden^ C. J., at the London adjourned sittings after nienced
, ! , , . ,. . . . , month if the
last term, it appeared that the policies in question contained ship should be
a stipulation for the return of a proportionate part of the **^'^, ^^^^^^
premiums " for every uncommenced month, if the ship ship was laid
should be sold or laid up.'' Under this stipulation, the ll^ IdisTuriSg
defendant claimed a return of premium for a vessel called the year, but
tlie Lord Stanley, which had been insured by the Company ^^^ds em- ployed within the year. Held, that the words " laid up" meant a permanent laying up, such as woold pot a final end to the policy, and therefore that the assured was not within tb« ttifHilation, nor entitled to any return of premium.
R R 2
612
1830.
CASES IN THE KINGS BENCH,
from Ladj-daj 18^6, to Lady-daj 1827, and which in the course of that year had been laid up several months for the purpose of repair. It was admitted that if the defend- ant was entitled to this return, the plainUff was not entitled to a verdict; but it was contended, that as the vessel was laid up only during part of the year, and was employed during the residue, it was not such a laying up as was con- templated by the policy, and therefore did not entitle the defendant to a return of premium. Lord TenUrden, C. J. was of opinion that the words " laid i/p," connected as they were with the word •* sold," in the policy, meant a laying up of the vessel for the season or winter, without her being employed again during the current year; and his lordship therefore directed the jury to find a verdict for the plaintiff, but gave the defendant leave to move to enter a nonsuit, in case the Court should be of opinion that such direction was wrong.
Campbell now moved accordingly. Policies of insurance are to be construed liberally. In Sfevetison v. Snow (a), Lord Mamifieldf speaking of them, says, ** These contracu are to be taken with great latitude. The strict letter of the contract is not to be so much regarded, as the object and intention of it.*' (6) According to that rule the present defendant seems clearly entitled to the return of premium which he claims. By the stipulation in the policy the assured was at liberty to lay up the ship, and to suspend the policy, and the risk upon it, for any entire month; and the fair effect of that would be, to suspend the payment of premium during the same period. The meaning of the stipulation is, '' no risk, no premium," whether for one or more months, or for the whole year. The risk would equally cease, and the payment of premium, therefore, should equally cease, whether the policy were only sus- pended or entirely put an end to. Unless this be so, the
(a) 3 Burr. 1237; 1 W. BI.315.
(h) S Burr. 1240.
£A$T£K TERM, XI GEO. IV. 613
Stipulation becomes useless, for it cannot be supposed that 1B30.
a party would insure his vessel for a whole year with the Hunter
intention of laying her up for the whole year. v.
Wright.
Lord Tenterden, C. J. — I am of opinion now, as I was at the time of the trial, that the words 'Uaid up'* being in company with the word ** sold," must mean a permanent iajfing up, similar to that which would take place if the ship were sold — ^in other words, such a laying up as would put a final end to the policy. I therefore think we ought not to grant any rule.
Bayley, J. and Littledale, J. concurred.
Parke, J. — I am of the same opinion. The meaning of the parties may certainly have been, to stipulate in the manner in which it is contended for the defendant that they did stipulate, but they have not expressed themselves in words capable to convey that meaning. The only true construc- tion of the words '' laid up^^ as used in this stipulation, is such a laying up as must put an end to the policy altoge- ther.
Rule refused*
Gaussen and others v. W. Morton and E. Morton.
IRESPASS for breaking and entering two closes of the A power of
plaintiffs, situate in the county of Hertford. Pleas: first, 5"°'Xlt£*i"
not guilty; second, that the closes in which &c., were par- a creditor, an-
cel of the manor of Park, in the county of Hertford, and to^^eU an *°^
customary tenements of that manor, demised and demisable estate, and to
appi V tbe pro- by copy of court-roll by the lord of that manor, or his stew- ceeds inliqai-
ard for the time being, to any person or persons willing to j^bt*",®^*'
aathority coupled with an interest, and cannot be revoked.
614 CASES IN THE KINg's BENCH,
1830. take the same in fee-simple or otherwise, at the will of the
^ lord, according to the custom of the manor: that hefore the
Gavssen . .
and others said time when &c., to wit, on 8lc., the Earl of Essex, then
Morton being lord of the said manor, at his court then holden id and and another, for the manor, before A. B., then his steward of the court of the said manor, bj copy of the court-rolls of the said manor, granted to one J. L. the said closes in which 8cc., in fee, at the will of the lord, according to the custom of the said manor; that by virtue of such grant, the said J. X. after- wards and before the said time when &c., to wit, on tu„ entered into the said closes in which &c., and became and was seised in fee thereof &c., and died so seised ; that there- upon the same descended to one M. Z., as eldest daughter and heiress of the said J. L., who thereby became and was seised in fee of the said closes in which &c., and being so seised, intermarried with W. Morton, (one of the defendants,) and thereby the said W. M. and M. his wife, b right of the said AT., became and were seised in fee of the said closes V in which 8cc.; and that therefore the said W. M. in his own
right, and £. Morton, (the other defendant,) as his servant, and by his command, broke and entered the said closes in which 8cc. Replication : that J. L. at the time of his death was not seised of and in the said closes in which &c., in manner and form as alleged by the defendants* Issue thereon. At the trial, before Ttndal, C. J., at the last assizes for the county of Hertford, it appeared that the question whether J. L. had died seised in fee or not of the premises in question, depended upon the legality of a power of attorney which he had executed, authorizing the surrender of the estate, and upon the question whether such power of attorney had or had not been legally revoked. I1ie facts proved in evidence upon that subject were as follows: — In 1787, J. L. became bound to W. F. & Co. for a debt of 230/., due to them from his son. The money not having been paid according to the condition of the bond, J. Z., in order to discharge the debt, being seised in fee of the cus- tomary premises in question, executed a warrant of attorney
EASTER TEKM, XI GEO. IV. . 616
on the 3d of December, I787i authoriziug W, F. to appear 1830. for biin at the then next or any subsequent court baron or n u n customary court, holden in and for the manor of Park, and and others surrender the premises to the use of such person or persons Moktom as might become purchasers thereof; and he further autho- «««d another, rized W, F. to sell the premises and receive the purchase- money. Under this power W. F., on the 7th of February, 1788, sold the premises by auction for 105/., and received 20/. from the purchaser as a deposit. On the 12th of April, 1788, J, Z. contending that PV. F. had violated some of the stipulations in the agreement between them, executed a deed-poll, revoking the power given to W, JF., and gave notice thereof to the steward of the manor. In May, 1788, W, F, applied to the steward to take his surrender of the premises to the use of the purchaser. This the steward at first refused to do, on account of the revocation of the power ; but afterwards, on receiving an indemnity, he took the surrender and admitted the purchaser, from whom title was deduced to the plaintiffs. The plaintiffs being in pos- session, the defendants entered and took away some hay; Upon this evidence it was contended, on the part of the defendants, that as J. Z. had revoked the power of attorney before the surrender was made, he had died seised of the premises as alleged in the plea. That point the Lord Chief Justice reserved, and the plaintiffs had a verdict, with leave to the defendants to move to enter a nonsuit.
Rrodrkky on a former day, moved accordingly. The authority given by the power of attorney had not been exe- cuted at the time when the alleged revocation took place ; this case therefore comes within the principle of the rule laid down by Houghton^ J. in Webb v. Paternoster {a), that a licence, when executed, is not countermandable, but it is otherwise while it remains executory. [Parke^ J. But in Walsh V. Wkitcomb (6), Lord Kenyan held, that a power of attorney, given as part of a security for money, was not
(«) Popham, 151. (6) 2 Esp. 565.
616
1830.
Gaussen
and others
V.
Morton and another.
CASES IN THE KING S BENCHj
coontermandable; and in Watson v. King {a) j Lord £//eii- borough expressed a similar opinion.] That certainly b so; but in fValsh v. Whiicomb (6) the power had been executed before the countermand; and in Watson v. King it became unnecessary to decide this point, because the person giving the authority died before it was executed.
The Court took time to consider of their judgment, which was now delivered, after adverting to the pleadings, by
Lord Tenterden, C. J. — ^The question, whether J« L died seised of the premises in which the trespass was alleged to have been committed, depended upon this; whether he could revoke the power of attorney which be had given to W. F. Upon consideration, we think that that power of attorney was not a simple authority to sell and surrender the premises, but an authority coupled with an interest, for W. F. was to apply the proceeds of the sale in liquidation of a debt due to himself and his partner; and there are several cases in which it has been held that such an autho- rity cannot be revoked.
Rule refused.
(u) 1 Stark. 131; 4 Caropb. 272.
(6) 2 Esp. 665.
The duly elected minis- ter of a dis- senting congre- gation, wlio is |>at in posses- sion ofa cha- pel and dwel- ling-house by trustees, in
Doe on the demise of Benjamin Jones v. Michael Jones.
•■-EJECTMENT, to recover the possession of a chapel and dwelling-house situate in the county of Merionedi. Plea: not guilty, and issue thereon. At the trial before Raine, C. J. at the last great sessions for the county of Merioneth, the case was this : — By lease and release of 4th and 5th August, ] 783, a piece of land, therein partica-
whom they
are \e^\]y vested, in trust to |>erroit the chapel to be used for the purpose of religioos worship, is mere tenant at will to such trustees, and his tenancy is determined bja demand of possession, without any previous notice to quit.
EASTER TERM, XI GEO. IV.
larlj described, and the structure or lueetiDg-house thereon erected and built, were conveyed unto Benjamin Jones, and nine other persons therein named, and to their heirs and assigns, to have and to hold the same, with their and every of their appurtenances, unto the said Benjamin Jones and the nine other persons therein mentioned, and their successors, ministers of the respective meeting-houses or places therein mentioned, for the time being, for ever, in trust, and to the intent and purpose that the said structure or building should be used as a meeting-place or house for public and religious worship, by the society or congrega- tion of protestant dissenters, called Presbyterians; and that they should permit and suffer the same from time to time to be used, occupied and enjoyed, as and for a meeting- house, place, or house for such public and religious worship, by such society or congregation of protestant dissenters, and for no other use, intent, or purpose whatsoever. The de- fendant had, sixteen years ago, been elected by the congrega- tion, according to the usual practice, minister of the chapel, and was then put into possession of the house and pre- mises by officers acting under the authority of the tiustees. At a meeting of the congregation in the year IB£8, it was determined that the minister should be changed; but no other minister was elected. Possession of the chapel, dwelling-house, and premises was afterwards demanded of the defendant, but he refused to quit. The lessor of the plaintiff was the grandson and heir at law of another Ben- jamin Jones, vfho hsid been the last surviving trustee of those named in the deed. Upon this evidence it was con- tended on behalf of the defendant, that he could not be considered as a trespasser, and consequently that the lessor of the plaintiff could not recover possession of the pre- mises against him, so long as he continued minister of the chapel — that by the very deed under which the lessor of the plaintiff claimed, the trustees held the chapel in trust to permit and suffer it to be used as a place of religious worship — and that the defendant, having been duly elected
618 ' CASES IN THE KING^S BENCH,
1830. to fill the office of minister of the chapel, had an office coupled with an interest, and must continue to hold that office until another minister should be duly elected, accord- ing to the usual course adopted on former occasions. The learned Chief Justice, however, was of opinion that the legal estate was in the lessor of the plaintiff, as heir at law of the last surviving trustee named in the deed; and he directed the jury to find a verdict for the plaintiff, re- serving to the defendant leave to move to enter a nonsuit.
Campbell now moved accordingly. The defendant having been duly elected minister of the chapel, continues ao until another has been regularly appointed by the con- gregation; and while he continues minister, the trustees cannot treat him as a trespasser, and maintain ejectment against him. The proper course would have been for the congregation to have elected another minister; and then the Court, by mandamus, would have compelled the de- fendant to give him possession of the chapel and other premises. So long as the defendant continues in his office of minister, he has a possessory right to the house. In Rex V. Baker (a). Lord Mansfield^ speaking of a case rery similar to the present, says, '' The deed is the foundation or endowment of the pastorship. The form of the instru- ment is necessarily by yvay of trust: for the meeting-house, and the land upon which it stands, could not be limited to Eniy(b) and his successors. Many lectureships and other offices are endowed by trust-deeds. The right to the function is the substance, and draws after it every thing as appurtenant thereto. The power of the trustees is merely in the nature of an authority, to admit. The use of the meeting-house and pulpit, in this case, follows, by neces- sary consequence, the right to the function of minister, preacher, or pastor, as much as the insignia do the office of a mayor; or the custody of the books that of a town-
(a) 3 Burr. 136«. in the deed, and the mioisier
(A) One of the trustees named thereby originally appointed.
EASTER TERM, XI GEO. IV. 619
clerk." And Foster, J. added, ** Here is a legal right. ^^^o. Their ministers are tolerated and allowed. Their right is established, therefore, as a legal right, and as much as any 'other legal right." [Parkey J. The result of that case was merely this — that the Court granted a manda- mus to admit the party elected to the use of the pulpit as minister, preacher, or pastor. That is perfectly con- sistent with the legal estate in the chapel being in the trustees. The use of the pulpit is no more than an ease- Dieot; it is like a right of common, or a right of way. In this case the defendant had no other estate in the premises than that of tenant at will, which has been put an end to by the demand of possession. The right to the chapel is clearly in the trustees. The defendant may possibly have a remedy against them in equity, if they have improperly turned him out, but at law he has clearly no title to set up as against their's.]
Lord Tenterden, C. J. — The right to the use of the pulpit, or to the pastorship, by no means leads to the con- clusion that there is any legal right to the chapel, or to the dwelling-house* The building, in cases like this, is generally vested in persons other than the pastor. For the reasons given by my brother Parke^ I think it perfectly clear that the legal estate in the premises was in the lessor of the plaintiff.
Bayley, J. — I am entirely of the same opinion. We do not decide that the defendant may not have a right to the use of the pulpit, but merely that he has no legal estate in the buildings. The highest estate at law which he ever had in them, was an estate at will, and that has been determined by the demand of possession. If he is aggrieved by the proceedings of the trustees, he must seek bis remedy against them in equity.
Rule refused.
CASES IN THE KING S BENCH,
Doe on the demise of Nicholl and others v. M'Kabg.
The minister EjECTMENT, to recover the possession of a cbapcJ congregation, ^^^ dwelling-house, situate in the county of York. Plea:
who is put in not guilty, and issue thereon. At the trial, before Park.h possession of a T i ".r • • • rri
chnpeland at the last Yorkshire assizes, the case was this:— The
house"lw tras- ^®^®"^**"t ^^^ ^^^ minister of a dissenting congregation,
tees, in whom and, as such, in possession of the premises sought to be
gaily vested in recovered. They consisted of a meeting-house and dwcl-
trust to permit ling-house adjoining, both which had been conveyed to the chapel to , ®, ^ . f • •«. ^ , •
be used for the uie lessors of the piamtitr as trustees for the congregation.
purpose of 'The defendant had been elected minister by the memberJ religious wor- ^ . . i
ship, is mere of the congregation, and had been put in possession of the
to^s^udTtrus- P'®'"'*^* ^y the trustees. The congregation becoming
tees, and his dissatisfied with the defendant, came to a resolution to
termined remove him, and the trustees made a demand of possession,
inttanter by a which not being immediately complied with, they served a
posse&sion, declaration in ejectment. The defendant had an annual
without any g^j ^f ^q/. as minister, but paid no rent. No notice to
previous , "^ ^ » r
notice to quit, quit had been given. It was objected on behalf of the
defendant that he was a tenant of some sort, and entitled
to some notice to quit, and a nonsuit was pressed for on
that ground. The learned judge declined to nonsuit, but
reserved the point, and a verdict was found for the plaintiffi
with liberty for the defendant to move to enter a nonsuit.
JP. Pollock, on a former day, moved accordingly. The defendant was entitled to some notice, and as no notice at all was given, but the declaration in ejectment was served immediately after the demand of possession was made, the plaintiff ought to have been nonsuited. The defendant was not, strictly speaking, a tenant at will — he was not like a servant occupying by permission a part of his master's house — he had the exclusive occupation of the house — be occupied the house as part of his reward for doing (be duties of minister to the chapel. He was, therefore, a
EASTER TERM, XI GEO. IV.
tenant of some sort, and was entitled to some sort of notice. If he had been paid entirely by a salary, and had rented the house of the trustees, it is clear that he would have been a tenant entitled to a regular notice to quit. In effect he stood in the same situation — the only difference was, that instead of paying rent in money, he paid rent by bis services. But, admitting that he was not entitled to a regular notice to quit, he was surely entitled to some rea- sonable notice, and was not liable to be turned out of possession at a moment's warning, and driven with his family and furniture into the street, upon peril of being treated as a trespasser. In all cases of a continuing con- tract, some reasonable notice must be given of putting an end to it. What is such reasonable notice, it must be for the Court or the jury to decide; but it seems most unrea- sonable that the exclusive occupation of a dwelling-house by a minister,, as a part of the reward for his services, should be determined without some notice, and here there was none.
The Court took time to consider of their judgment, which was now delivered by
Lord Tenterden, C. J. — ^Tliis was an ejectment brought to recover from the defendant, who was minister of a dissenting congregation, a chapel and dwelling-house, which be was put into possession of by the lessors of the plaintiff, in whom the legal estate was vested, in trust to permit the chapel to be used for the purpose of public worship. The defendant was tenant at will to them. It was contended that a demand of possession was not suffi- cient to determine the tenancy in this case, but that a rea- sonable time ought to have been allowed to the defendant for the purpose of removing his goods. We can find no authority in the law for such a position. The general rule is, that where an estate is held at the will of another, It demand of possession by that other determines the estate. If we were to hold otherwise in this case, we should be
M<Ka£C.
622 CASES IN THE KING's BEl^CH,
1830. introducing a new rule, not to be found in the books, and ^^^"^^ which might be productive of great inconvenience; because d, then, in every case of a tenancy at will, a question might
^d^"ih^^ arise, what was a reasonable time to be allowed for the V, removal of the tenant's goods. If the tenant in this case,
after the determination of his tenancy by the demand of possession, had entered on the premises for the sole par- pose of removing his goods, and continued there no longer than was necessary for that purpose, and without excluding the landlord, perhaps he might not have been a trespasser; but, however that may be, we are of opinion, that he being a tenant at will, his tenancy was determined by a demand of possession, and consequently, that the lessors of the plaintifF were entitled to recover.
Rule refused.
Wood and another v. Grimwood.
The 6 Geo, 4, 1 HIS was a question of costs. The cause was first set applies only to ^^wn for trial at the Essex summer assizes, 1829, when the
cases where a plaintiffs withdrew the record. At the spring assizes, verdicrisac- * „^ • . #. - , i l
tuallyfoand: 1830, the cause was agam set down for trial, when the
therefore a plaintiffs were nonsuited. On both occasions a special who has moved jury was moved for and nominated on the part of the de- tafn^ a^spe- f"^°*l^^^ > ^^^ ^^ ^^^ second occasion the learned judge cial jary, is certified that the cause was a proper one to be tried by a under that ' special jury. On taxation, the Master allowed the defend-
section, to the ant the costs of both special juries. On a former day costs of such *^
jury, where
the plaintiff Follett obtained a rule for the Master to review his tax-
«ither with- draws the re- ation, and to disallow to the defendant the costs of both
«uii^d; ^al-^**" special juries. As to the first jury, he contended that the though the record having been withdrawn before they were sworn, and
tified that the ^^^J having been afterwards unnecessarily paid by the cause was
proper to be tried by a special jury. But see 3 & 4 Will. 4, c. 42, s. 35.
EASTER TERM, XI GEO. IV.
plaintiffs, the Master was not justified in visiting the de* feodant with that expense. Secondly, as to both juries^ he contended that the judge had no power to certify, the cause never having been tried. By the 24 Geo. % c. 18, s.l, it was enacted, '* that the party applying for the special jury shall pay the costs and expenses thereof, unless the judge before whom the cause is tried shall, immediately after the trials certify in open court, under his hand, upon the back of the record, that the same was a cause proper to be tried by a special jury." Upon that statute it had been held, first, that it did not extend to a case where the record was withdrawn; Clemen is v. George (a) ^ and, se- condly, that it sb far limited the discretionary power of the judge, that he could not grant a certificate on the day after the trial ; Waggett v. Shaw (A). As to the nonsuit, in ' Orme v. Crockford{c), where the plaintiff was nonsuited without any evidence being gone into. Lord Tenterden had refused to certify, on the ground that the case had not been gone into. Then the more modern statute of 6 Geo. 4, c. 50, s. 30, contained a provision precisely similar to that in 20 Geo. 2, c. 18, s. 1, except that it substituted the word " verdict*' for the word *' trial,'" which made the present argument still stronger; for even if it could be said that there Mas a trial in this case, it could not at all events be contended that there was a verdict.
623
1830. Wood
V,
Griuwood,
Brodrick now shewed cause. The cause was, in effect, tried. The plaintiffs, through their counsel, had stated to the jury all the facts which they were capable of proving, and the learned judge, being of opinion that if all the facts stated were proved upon oath, and were unanswered, the plaintiffs would not be entitled to a verdict, nonsuited the plaintiffs, and immediately afterwards certified that the cause was a proper cause to be tried by a special jury. It is true that the statute 6 Geo. 4, c. 50, s. 30, does substitute
(a) 11 Moore, 510. {b) 3 Campb. 316.
(r) 1 Car. & P. 537.
624
1830.
Wood
V.
Or I If WOOD.
CASES IN THE KING S BENCH,
the word verdict for that of trial in the former statute ; but that is immaterial, for though the term is changed, the meaning of the proviso and the intention of the legislature continue manifestly the same*
Follett, contr^, was stopped by the Court.
Lord Tenterden, C.J. — We must construe the term " verdict/' in the present act of parliament, in its ordinary sense. Here, there was no verdict, and, consequently, the learned judge had no power by his certificate to charge the plaintiffs with the costs of a special jury, which was moved for by the defendant. The rule, therefore, must b^ made absolute.
Bayley, J. — I am of the same opinion. The term *^ verdict" must be construed in its ordinary sense. Here there was no verdict.
Parke, J. — I am also of the same opinion. We cannot presume that the legislature have, in the present instance, used the term verdict without some meaning ; and it seems to me their meaning must have been, to give the judge a discretionary power of allowing the costs of a special jury to the party at whose instance it was obtained, in those cases only where the jury have been called upon to exercise their judgment by returning a verdict. They may have intended otherwise; but we can only collect their intention from the words they have used, construed in their ordinary sense. The statute 49 Geo. 3, c. 121, s. 10, has received a similar construction. That enacts, that in actions by as- signees of bankrupts^ the commission and proceedings shall be evidence of the trading, &c., unless notice shall have been given to dispute ; and that where such notice shall have been given, the judge may grant a certificate that the matter disputed was proved, and the assignees shall be en- titled to the costs occasioned by such notice, and such
KASTER TERM, XI GEO. IV.
costs shall, in case the assignee shall obtain a verdict, be added to his costs ; and if the defendant shall obtain a ver- did, shall be set off or deducted from the costs which such defendant would otherwise be entitled to receive from such assignee. It was held that assignees were not entitled to costs upon a judge's certificate, under this section, where they had been nonsuited; Atkins v. Seward {a).
Wood
V.
Grim WOOD,
Rule absolute (b).
{a) 3 Moore, 60i; I Bro. & Bing, «75.
(b) Since the decision of this case it has been enacted, by 3 & 4 Wilt, 4, c. 42, s. 35, that the provision of the 6 Geo. 4, c. 50,
s. SO, and every thing therein con- tained, shall apply to cases in which the plainiilT shall be nonsuited, ns well ns to cases in which n verdict shnli pass agtiinst him.
Thomas i\ Williams.
Assumpsit. The second count of the declaration plaintiff's
(upon which the case turned) stated, that before and at *«"«*"^ be^pg , . , . . 'n arrear for
the time of the maknig of the promises and undertakings half a year's
therein mentioned, one Thomas Thomas was tenant to the j^L.^L*'*
plaintiff of a certain farm with the appurtenances, and was defendant, an
indebted to the plaintiff in the sum of 17/. 10s. for rent in ^.^ in August
respect of such farm; that thereupon, in consideration about to sell 11 . . •«• 1 1 /- ■ /. 1- • • 1 - the effects on
that the plamtiff would forbear from distrainuig the goods the premises,
upon the farm, for the rent so due from Thomas Thomas, "^l^l"^^^^'^^^
the defendant promised the plaintiff to pay to him the rent threatened to
that would be due at the Michaelmas then next following from fjnda^?' ;„ ^
consideration that plaintiff would not distrain, verbally promised to pay him the rent then due, and the rent which would become due nt Michaelmas. In an action to recover both amounts of rent: — Held, that plaintiff could recover neither; for that the promise to pay the accruing rent was founded on a new consideration, distinct from the demand which plaintiff had on his tenant, and was therefore void under the fourth section of the statute of frauds; and that such promise being entire, and void in part, was void altogether.
VOL. V.
s s
626 CASES IN THE KING's BENCH,
1830. Thomas Thomas to the plaintiff in respect of the fann. ^^T^^^"^ Averment, that the plaintiff did forbear from distraining; V, that the rent due ai ihj Micliaelmas then next foUcmng
WiLLiAMg, yg^ 33^^^ j^jjj breach for non-payment of that sum. Plea: non assumpsit, aad issue thereon. At the trial, before GotJbum, i. at the spring great sessions for Carmarthen, 1899, the case was this: — Thomas Thomas was tenant to the plaintiff of a farm in the parish of Llangudock, in the county of Carmarthen, at a yearly rent of 40/., payable half-yearly, at Lady-day and Michaelmas. The defendant was an auctioneer, and in August, 1827, was employed to sell off Thomas Thomases effects upon the farm. The plaintiff went to the farm on the day of the sale, widi a bailiff and a notice of distress for 1 7/-, being part of a half* year's rent due on the Lady-day preceding, the rest having been paid, and told the defendant that there would be nearly a year's rent due to him at Michaelmas, and that unless he, the defendant, promised to pay him the rent that would then become due, he, the plaintiff, would put in the distress. The defendant thereupon did verbally promise that if the plaintiff would not distrain for the rent then due, he, the defendant, would pay him the rent that would be due at Michaelmas. The plaintiff did not dis- train, and the sale proceeded. It was objected on the part of the defendant, that the promise not being in writing, the case was within the fourth section of the statute of frauds, 99 Car. % c. 3, and the defendant was entitled to a general verdict. The learned judge directed a verdict to be entered for the plaintiff on the second count for £2/. lQs.f a sum composed partly of rent due at the Lady* day preceding the promise, and partly of the rent which became due at the following Michaelmas, and for the defendant on the other counts; but gave the defendant's counsel leave to move to enter a verdict for him on the second count also, in case the Court should be of opinion that the promise ought to have been in writing. In Easter term, 1899,
£AflT£R TERM, XI GEO. IV. 627
John Evam moved accordingly, and obtained a rule to 18SQ.
shew cause why a general verdict should not be entered t^^^^*^
for the defendant ; and at the sittings in banc after Hilary v.
term, 1830, Willums.
RuMseil^ Serjt. and £1* V. Williams, shewed cause. The cases oi Lexington v. Clarke (a), and Chater v. Beckett (b)^ will be relied upon for the defendant as authorities to shew that where part of a promise is within the fourth section of the statute of frauds, and is thereby required to be in writing, the whole is void if the promise is merely verbal. Even if those cases can be considered as having esta- blished that position, it will not apply to the present case, because no part of the promise upon which the plaintiff founds his claim is within the fourth section of the statute. The plaintiff had an unquestionable right to distrain upon, his tenant for the rent due at Lady*day. That right he intended and was prepared to exercise, and he forebore to do so in consideration of the defendant undertaking to pay, not only the rent then due, but also the rent which would become due at the following Michaelmas. The defendant, on his part, gave that undertaking in consideration of the plaintiff abandoning his right to distrain ; there was, there* fore, a new consideration moving from the plaintiff to the defendant, totally distinct from any contract between the. plaintiff and his tenant. It follows, that the defendant's undertaking is original and not collateral, and is not. affected by the statute, which was meant to apply to such only as are collateral. The case of Williams v. Leper (c), is in principle this very case. There the defendant had promued to pay the debt of the tenant, in consideration of the plaintiff forbearing to distrain, and allowing the de- fendant to have the goods which were liable to the distress; and it was held that as there was a new consideration for the defendant's promise moving to him, the statute did not
(a) 2 Vent. 923. (c) 3 Burr. 1886; 2 Wils. 308.
{b) 7 T. R. 201.
S S2
628
laao.
Thomas
V.
Williams.
CASES IN THE KIKG's BENCH,
apply. The principle there laid down is in conformity with the decisions and the opinions expressed by the judges in several other cases; as Read v. Nashua), Cast^ ling V. Aubert(b), Edwards v. Kelly {c), Bampton ▼. PauUn (d), Houlditch v, Milne (e), and Tamlinson v. Gill (J*). [Bayley.i. But in this case the promise ex- tends far beyond that in Williams v. Leper{g), and there Asion, J. was of opinion that the defendant was not liable beyond the value of the goods.] That is certainly so; bat there is no autliority which lays it down that the consider- ation and the promise must be co-extcnsive, in order to support the action.
Campbell and John Evans, contr^. In order to render any promise to pay the debt of another binding under the fourth section of the statute of frauds, there must be a new consideration moving to the party making the promise; a consideration merely moving from the creditor is not suffi- cient. Nor is the fact of the original debtor continuing indebted, sufficient; for that is in truth no consideration at all. Williams v. Leper and all the other cases which have been cited for the defendant, are perfectly distin* guishable from the present. In each of those cases the defendant received from the plaintiff, or was permitted by him to receive aliunde, certain property on which the plaintiff had a lien, which the defendant promised to dis- charge upon having the property delivered to him. This is the view taken of that case by Le Blanc, 3. in Castling v* Auberij where he says, '* This is a case where one man having a fund in his hands, which w'as adequate to tlie dis- charge of certain incumbrances, another party undertook that if that fund were delivered up to him, he would take it with the incumbrances ; this, therefore, has no relstioo
(fl) 1 WiLs. 305. (6) 2 East, 325.
(c) 6 M. & S. 204.
(d) 4 Bingh. 264.
(e) 3 Esp. 86.
(/) Ambler, 330.
(g) 3 Burr. 1886; 9 Wil5.308.
£A8r£R T£RM^ XI GEO. IV.
to the statute of frauds." Here, the plaiatiiF had no lien whatever on the property delivered to the defendant, for the rent which was to become due at a future time. It is this circumstance which so broadly distinguishes the pre- sent case from all the authorities cited on the other side. As to that portion of the rent, therefore, the promise was within both the letter and the mischief of the statute, and was unsupported by any consideration : and if the part of the promise relating to the rent which would become due at Michaelmas, M'as within the statute and void, the cases of Lexington v. Clarke {a), and Chalet v. Beckett {b), are decisive to shew that the plaintiiF cannot separate the two parts of the contract, and that the whole is void together.
The Court took time to consider of their judgment, which was now delivered by
Lord Tenterden, C. J. — We are of opinion that this action is not maintainable. The facts of the case were shortly these:— One Thomas Thomas was tenant to the plaintiff of certain premises, and indebted to him in a sum of about 17/. for rent due at Lady-day. In August the defendant, who was an auctioneer, was about to sell the goods of the tenant upon the premises. The plaintiff went to the premises, and was about to distrain for his rent. The defendant then promised that if the plaintiff would not distrain, but would suffer the sale to proceed, he would pay him the arrears of rent then due, and also the accruing rent up to Michaelmas then next. The plaintiff did not distrain, and the sale proceeded. The defendant's promise was by word only, without any writings Some money had been paid, but not quite so much as the amount of the arrears due at Lady-day. At the trial the plaintiff bad a verdict for the whole difference between the amount of the money paid, and the amount of the rent up to Michaelmas, including the arrears of the rent due at Lady-day. The question was, whether the plaintiff could
629
1830.
Thoicas v.
\YlLLUMf.
(«) 2 Vent. Ti3.
{h) 7 T. R. 201.
630
1830.
CASES IN THE KING's BENCH,
recover the whole of that sum, or the difference between the money paid and the arrears due at Lady-day, or whe- ther the whole contract was void, within the fourth section of the statute of frauds — and we are of opinion^ that the whole contract was void. Several cases were quoted at the bar in support of the plaintiff's claim ; but there is do case in which the promise to pay has gone beyond the amount of the right vested in the party to whom the pro- mise was made, or beyond the assumed value of the fund out of which the payment was to be made. In Edwarday^ Kelly (n), the landlord to whom the promise was made had actually distrained the goods of his tenant, and delivered them to the defendant to be sold in consideration of his promise to pay the rent due for which the distress had been made. In Castling v. Aubert {b), the plaintiff gave up to the defendant policies of insurance, on which the plaintiff had a lien, to secure himself against bills which he, on the faith of that lien, bad accepted for the accommoda- tion of the assured, and the person to whom he delivered them promised to discharge the bills and give to the plain- tiff the same indemnity that his lien had afforded him* In those casetf, the promise was founded on a new consider- ation distinct from the demand that the plaintiff bad against the third person, although its performance w^ould have the effect of discharging that demand, and releasing that person. In Williams v. Leper ic), there was no actual dis- tress, but there was a power of immediate distress, and an intention to enforce it; and we think the judges must be understood to have considered that power equivalent to an •actual distress (d). It is not necessary now to decide whe>
(a) 6 M. & S. 204. lb) 2 East, 325.
(c) 3 Burr. 1886; 2 Wils.308.
(d) It seems clear that three of the judges did so consider. Lord Mansfield said, << The landlord had a legal pledge. He enters to distrun. He has the pledge in
bis possession. The plaintiff had a lien upon the gpods. X^per was a trustee for all die creditors; and was obliged to pay the landlord, who bad the prior lieo." WU- mot, J. said, " The plaintiff b in possession of the goods; htinog entered with ioteot to fistiaio
EASTER TERM^ ZI GEO. IV.
ther it was rightly so considered^ because supposing it to have been rightly so considered^ the decision will not go beyond the amount of the arrears then due^ and for which the right of distress might have been immediately exer- cised (a).
But this reasoning will not apply to the accruing and future rent. The plaintiff could not have distrained for . that rent The defendant, by paying all that was due at Lady-day, might have proceeded to sell the goods. If that sum were paid or secured, the plaintiff sustained no loss or detriment by the sale of the goods. So that the promise to pay the accruing rent exceeded the considera- tion« and cannot be sustained on the ground on which the cases referred to are to be sustained, but is nothing more than a promise to pay money that would become due from a third person, and is within the words of the statute, and the mischief intended to be remedied thereby.
The next question then, is, whether the promise, being void in part, can be held good as to the other part, namely, the arrears of rent due at Lady-day, in respect of which it might have been good, if confined to those arrears. Upon this point the two cases of Lexington v. Clarke (6), and Chater v. Beckett {c), which were quoted at the bar, are direct authorities against the plaintiff. In each of those cases the promise was held, as to a part, to be within the statute, and as to a part to be not within the statute ; and the action proceeded upon the part not within the statute, the other part having been satisfied. But it was
631
1830.
them. I consider this distress as being actually made. Leper be- came the bailiff of the landlord; and when he had told the goods, the money was the landlord's, in his own bailiff's hands." And Yat€9f J. said, ''The defendant was in possession of the good«», and aboat to sell them. The plaintiff entered witli intent to dis- train them for 45/. The defend-
ant says, ' let me go on to sell them and I will pay you the 45/.' He undertook to pay this, in bU re- spects, peremptorily and absolute- ly. This is an original considera- tion in the defendant." 3 Burr. 1889, 1890.
(a) See Baylei/i J. on this pointy citing Aston, J., ante, p. 698.
{b) 8 Vent. 223.
(c) 7 T. II. 20J,
632
1830.
Thomas
V.
Williams.
CASES IN THK KING S BENXH,
held that the promises were entire, and that, being in their commencement void in part> they were void altogether. For these reasons, and upon these authorities, M'e are of opinion that the plaintiff in this case can recover nothing. The rule for entering a general verdict for the defendant must^ therefore^ be made absolute. ^
Rule absolute.
^ partial lilure of i
failure ot con< sideration cannot be ll^iven in evi* dence in an- swer to an action by the drawer, or his Jejuni represen- tative, against the acceptor of a bill of exchange.
Obbard and Another, Assignees of Blofield, a Bank- rupt, V. Betham.
Assumpsit on a bin of exchange, drawn by the bank- rupt and accepted by the defendant. Plea non assumpsit, and issue thereon. At the trial before Lord Tenterden, C. J., at the adjourned Middlesex sittings after Michaelmas term 1829, the case was this : — In the year \S25 the bankrupt, a perfumer and cutler in London, furnished to the defendant, the captain of an East Indiaman, a quantity of perfumery and cutlery goods to carry out to India, They were de- livered ready packed, and the defendant had no opportunity of inspecting them until he arrived at the end of his voyage. The price charged for the goods was 400/., of which the defendant paid 250L in cash, and for the remainder the bankrupt drew upon him the bill in question, which was dishonoured when due. It appeared by a written contract entered into by the parties, that the goods were to be charged at a fair marketable price, and were to be of a good merchantable quality, and it was proposed to prove in defence to the action that they were of a very inferior quality, not merchantable, and that they sold for 150/. less than the price charged for them by the bankrupt, so that he had in fact been already fully paid. It was objected for the plaintiffs, that such evidence could not be received, in- asmuch as it would constitute no defence, because a partial failure of consideration was no answer to an action upon a bill
£ ASTER TERM, XI GEO. IV. 633
uf exchange : aud Tye v. GxDynne(a) was cited. The Lord leso.
Chief Juslice, being of opinion that the objection was well ^T^^^^
founded* rejected the evidence, and the plaintiffs had a ver- and another diet for the full amount of the bill. In Hilary term 1830,
V.
Bbtuam.
Scarlett, A. G. movfd for a new trials upon the ground that the evidence had been improperly rejected. This being in effect an action by the drawer of the bill against the acceptor, and they being the same parties between whom the original contract was made, any defence which would have been available in an action founded directly on the contract, seems equally available in an action on the bill, which is indirectly founded on the contract. The mere act of giving a bill of exchange for a part of the price of the goods, cannot vary the situation of the parties, or affect their respective rights. It was therefore competent to the defendant to prove, in answer to this action, that the bank- rupt bad been fully paid. The decision in Tye v. Gwyntte must be taken with this qualification, namely, " unless the failure of consideration arises from fraud in the first instance/' Fleming v. Simpson (b)\ and it seems not too much to say that a delivery of goods under this contract, which realised little more than half the price charged for them, must have been fraudulent in the first instance. In that view of the case the evidence was clearly admissible, Solomon v. Turner (c), where it was held, that though a de- fendant, who had given his note for the stipulated price of a picture, could not give in evidence the inadequacy of the consideration, with a view to diminish the damages, he might do so for the purpose of shewing fraud, to defeat the
(a) 2 Campb. 346, where ic was held, b^ Lord EUenhoroughy that " it is no defence to an action by the drawer and payee of a bill of exchange against the acceptor, that the consideration has partially failed on account of the badness
of the quality, and improper pack* age, of the goods delivered.^ And see, S. P., Morgan v. Rkkardtonf 1 Campb. 40, n. ; 7 East, 48S ; 8 Smith, 487.
(6) 1 Campb. 40, n.
(c) 1 Starkie, 51.
634 CASES IN THE KINO*8 BENCH,
1830. contract altogether. In Lewis v. Cosgrave (a), in an actioo ^T^'^^'^ on a bill given for the price of goods sold under a warranty, and another it was held, that proof of a breach of the warranty was an Beth AM ^^^^^ ^ ^^^ plaintiff's demand, the defendant having ten- dered back the goods, though the plaintiff refused to rec^ve them. Here the goods were sold under a warranty, and a breach of that warranty could have been proved ; and the fact of the goods not having been tendered back is not ma- terial, because the situation of the defendant rendered Im doing so impossible, he having had no opportunity to in- spect the goods until he arrived in India, and beii^ there obliged to sell them for the best price he could obtab.
Cur. adv. tuli.
Judgment was now delivered by
Lord Tentbrden, C. J. — We have considered this case, and are of opinion that we ought not to grant a rule for a new trial. The case of Tye v. Gwyntie (6), which was cited at the trial, and other cases, which are all col- lected in my brother Bayley's work upon Bills, the fourth edition, pages 395 and 396, are authorities to shew, that though a total want of consideration may be given in evi- dence in answer to an action upon a bill of exchange, a partial failure of consideration only cannot. The deciiioB at nisi prius, therefore, was right.
Rule refused (c).
(a) 2 Taunt. 2. Moore, 159; Archer r. Bamfrrd,
(b) 2 Campb. 346. 3 Stark. 175; 1 Car. &P. 64.
(c) And see Ihnf v. Nix, 9
£AaT£R tKKU, XI GEO. IV. 635
1890.
The King v. The InbabitanU of Cheiv Magna.
JBY an order of two justices, James Nai$h and Joanna his A f^h of land wife were removed from the parish of Ubley to the parish f^^^- ^ of Chew Magna, both in the county of Somerset. Oli estate at will; appeal, the sessions confirmed the order, subject to the turbed posses- opinion of this Court upon the following case :— "«>° ^^^ ^^^^ William Bath, about 179^, being seised in fee of a close no setUemeat of land in the parish of Ubley, gave a small piece thereof ^ ^^'f Jj^ by parol to his nephew James Naisht the pauper, whereon will, upon an to build a cottage. NaisA, who had no settlement in ^^^an^ Ubley, took possession of the spot, and built his cottage, lo/. a year, and inhabited it with his family* In Octoberi 1800^ while ^^ent. he so resided in Ubley, his wife and children became ill, and he applied to the overseers of that parish for relief, and obtained the same; and on their complaint, an order for the removal of Uaish, his wife, and their children, to the parish of Chew Magna, was made by two justices, and NatiA was, under that order, removed and delivered to the overseers of Chew Magna, who relieved 'NatsA from time to time, tiaish slept in that parish one night only, and the next day returned to the cottage in Ubley, from whence neither his wife nor children, on account of their illness, had been removed. Haisk continued to reside there till about 1810, when Bath told him that he had sold the ground to one Carpenter f and asked NatsA to give him free possession, and to sell him his right. Naish was unwilling to do no^ but before he said any thing, Bath proposed that NatsA should receive d/« for giving such possession, and should also take away the materials of the cottage. JVotiA never paid Bath any acknowledgment. Bath paid the SL to Naish: and Naish pulled down the cottage, carried away the materials, and delivered possession to Carpenter. No writing passed on the occasion* The question for the opinion of the Court was, whether the pauper, James Naish, had gained a settlement in the parish of Ubley.
636 CASES IN TU£ KING's BENCH,
1830. Jeremy f in support of the order of sessioas^ was stopped
^l^^ by the Court. The Kino "^
V.
a rightful possession, though not, in the first instance, a legal title to the land ; and long possession under such a gift confers a legal title from the beginning: Rex v. Cah}w{a). That was a very similar case to the present; and Bay ley, J., there observed, ** It cannot be said that the father was in without any pretence or title, for the case states that he had b gift of the land ;" and Dampier, J., added, *' The subsequent possession legalises the fonner possession* and shews that it was of right." The mle of presumption is, *^ ut res riti acta est;*' Keene v. Deardon{by, and that rule is always applied where the possession is rightful to give that possession a legal title ; and is always construed liberally where the object is to support aright: Eldridge v. Knott (c). In this case the pauper was in pos- session for fifteen years under the gift, which was as long as the period of possession in Rex v. Calow {d). But besides, in tliis case, at the end of fifteen years' possession by the donee, there is an express recognition of his title by the donor, the only person competent to question it; for at that time Bath tells the pauper he has sold the land to Carpeif ter, and asks him to give him free possession and to sell him his right. This was in 1810; and as the owner then admitted that the person in possession had a beneficial and saleable interest in the land, (the quantum of interest being
(a) 3 M. & S. 22. son ceased to be a part of his fa-
(6) 8 East, 863, per Ix>rd £/• mily, had been io possession of
lenborougky C. J. the estate for fifteen years (cndIjf);
(c) Cowper, 214, per AttaiifJ. bat he was in under some citJe or
(iQ 3 M* & S. 22. The period other, under which he has conti-
of possession in that case was nued the possession for fifteen
thirty ^rears and more, but the years more, and up to the piesetit
Court presumed a title at the end time; therefore, looking at the
or fifteen ^ears, Lord Ellenborough^ whoky we must infer a title in him
C. J., observing, " It is true that at the former period.*
the father, at the time when the
EASTER TERM, XI OEO. IV. 637
for this purpose immaterial^) which interest it appears had jsso.
been acquired fifteeu years before, — there is an unbroken
possession for thirty-five years — fifteen years by the pauper,
the vendor, and twenty years since by the vendee ; for the Jjihnbuants of , . ChewMaoka.
possession of the vendee is the possession of the vendor :
fiftr v. Baton {a).
But, secondly, the pauper was the donee of an estate at will, and gained a settlement by residing on his own estate. There are only two exceptions to the established rule of the common law, that a man is irremovable from his own estate, and gains a settlement by forty days' residence upon it; and the pauper is not within either of them. The first, introduced by the statute 13 & 14 Car. 2, c. IS, of persons coming to settle upon tenements under the yearly value of 10/., has been held to apply only to persons taking tene- ments by contract of renting ; 'SUx v. Bowness (A), Hex v. St, JohiCsj Glastonbury {c); and not to persons taking tenements by any other title, as executors. Rex v. Stone (d); or by marriage, Hex v. Yvyacynhaiarn (e) ; or by purchase, 9 Geo. 1, c. 7, s.o. Rex v. Hartley (/)• The pauper here did not come in by contract of renting. The second excep* tion, introduced by the statute 9 Geo. 1^ c. 7» of persons purchasing estates for a less sum than 30/,, has been held not to apply to gifts of estates from natural love and affec- tion ; Rex V. Marwood (g). Rex v. Ingleton (A), Rex v. Vpton{i). Here, the estate was given from that considera* tion. The gift by parol, therefore, passed an estate which, though reduced by the statute of frauds to an estate at will, is, nevertheless, sufficient to confer a settlement ; Cranky v. St. Mary, Guildford {k).
{a) Burr. S. C. 631; 2 Bott, (g) Burr. S. C. 386; 2 Bott,
624. 615.
(6) 4 M. & S. 210. (A) Burr. S. C. 560; S Bott,
(c) 1 Bam. & Aid. 481. 621.
(d) 6 T. R. 295. (•) 3 T. R. 251.
(0 1 M. & R. 16; 7 B. & C. (k) 1 Str. 502. And see Rex
233. V. Duns Tew, Burr. S. C. 398;
(/) 5 East, 40. Rex v. Fillongly, 1 T. R. 458;
638 CABES IK THE KING's BBH CH,
1880. Lord TenteedbMi C. J.— As to the first pobt»— there
jT^^ w n<> giound for contending that Carpenier*s possession is V. to be considered a continuance of the pauper's, becaase
CwewMaov (^^*T^^^^ purchased^ not of the pauper, but of the pauperis uncle. That being the case, the utmost period of posses- sion has been fifteen years. In the cases cited, the advene possession contbued for a period of more than twenty yean. As to the second point, — there is no authority to shew that a residence upon an estate at will, of a less value than 10/. a year, can confer a settlement.
Bat LEY, J. — Undisturbed possession for twenty yean is held to confer an estate, because it is evidence from which a court or jury may presume a grant. Here, there was only possession for fifteen years. It is said that Car- perUer^s possession was the possession of Naith ; but that is not so, because Carpenter came into possession, iM>t under NuiiA, but under his uncle, Bath.
LiTTLEDALE, J.-^NassA was no more than tenant at will to his uncle; and there is no authority to shew that a mere tenant at will can gain a settlement by residing upon an estate of a less value than 10/. a year.
Order of Sessions confinned.
Rex V. Lakenheath, 2 D. fr R. 81 6, those were all cases of oocupedoii
1 B.&C. 51; Resv.Chedision,^ o£ k teaemtal ^ the MmuJ vahe
D. & R. S69, 4 B. & C. S84. It of 10/. ; and therefore do not seem
IS, however, to be observed, that applicable to the priodpal case.
EASTER TERM, XI GEO. IV. 639
1830.
The King v. The Inhabitants of St. Andrew the Less, Cambbidge.
Two justices, by their order, removed Henry Unwin, his A person rent- wife, and three children, firom the parish of St. Andrew the ^^^^ re^sidin^i; Less. Cambridge, to the parish of Fen Ditton, both in the j" ^^^ ^^^j^- county of Cambridge; and the sessions, on appeal, quashed vigation, is that order, subject to the opinion of this Court upon the foU ^^^l^^^lnP*^®' lowbg case : — 54 G. s, c.
The conservators of the River Cam, acting under the au- ^^ot thereby tbonty of an act of parliament passed in the first year of the gain a settle- reign of Queen Anne, intituled, '' An Act for making the thoagh he
River Cam, alias Grant, in the County of Cambridge, more "»®« the house
. , . as a pubhc-
navigable from Clay Hithe Ferry to the Queen's Mill, in the house, and it
University and Town of Cambridge," and of another act of j^o^'r^'Jall'iot the fifty-third of George the Third, intituled, " An Act for a year to be amending and extending an Act of Queen Anne, for making panx[se. the River Cam more navigable from Clay Hithe Ferry, to the Queen's' Mill, in the County of Cambridge,** are em- powered, by the latter of the said acts, to let to farm the tolls, duties, and rates by the said act made payable, or any part or parts thereof, and also the messuages, buildings, yards, gardens and premises belonging, or which shall belong to the said conservators. In pursuance of this power die said conservators, on the 14th of July 1825, duly de- mised and by lease to farm let unto one Thomm Nutter, common brewer, for the term of three years, all those the tolls, duties, and rates which, by virtue of the said acts, or one of them, and the orders of the conservators of the said river, were then payable at Baitsbite Sluice on the same river, and which tolls, duties, and rates were specified in the schedule first thereunder written, and all and singular the powers and authorities by the said acts, and each of them, created and given for collecting and recovering the same ; and also the messuage, sluice-house or tenement, out- buildings, yards and gardens belonging to the said sluice-
640 CASES IN THE KlNo's BENCH,
1850. house, together with the use of the several filatures and
^HT^'C^^^ effects then remaining and being in, upon, or about ihe
V, said messuage, sluice-house or tenement, out-buildings,
Inhabiuiiits of y^^ds and gardens^ and which were specified in the schedule
oTa Andrew THE Less, secondly thereunder written, at the annual rent of 56/. Us.
Cambuidoe. ^^j j, Nutter did thereby covenant, at his own cost, to pay and bear all taxes, rates, assessments, charges, and im- positions whatsoever that should or might be charged upon the said thereby demised premises, or on the occupier or occupiers, owner or owners thereof, in respect of the same, by authority of parliament, or otherwise howsoever, for or by reason or in consequence of the said sluice-house being used or kept open as a public-house. And the conservators did covenant, at their own cost, to pay and bear all taxes, rates, assessments, and impositions whatsoever upon the thereby demised premises, by authority of parliament, or otherwise howsoever, save and except those taxes, rates, as iessments, charges, and impositions which should or might be charged on the thereby demised premises, or on the oc- cupier or occupiers, owner or owners of the same, in respect thereof, by reason or in consequence of the said sluice- house being used or kept open as a public-house. Nutter afterwards entered into a written agreement with Vntrin, dated the 6th of February 1826, whereby it was agreed between them as follows : — *' T. Nutter having hired Baits- bite Sluice, and the tolls thereof, of the conservators of the River Cam for three years from Midsummer last, hereby agrees to let the same to H. Uuwin ; and //. Unwin hereby agrees to hire the same of 71 Nutter from this day for and during the remainder of the three years, at the annual rent of 42/., payable half-yearly (but the said /f. Unwin to be allowed to receive from the conservators the annual salary of 10/. for looking after the sluice and water), the rates and taxes to be paid by H. Unwin.** The agreement also sti- pulated that Unwin should purchase all the beer and liquors which he might use or sell at the said sluice-house of "Nutterj under a penalty. Baitsbite Sluice is part of the
EASTER TERM, XT GEO. IV. 641
lioe of navigation under the control of the aforesaid conser- 1830.
vatorsy and is situate between Clay Hithe Ferry and the ^^^^^^
Queen's Mill. Unrein, under this agreement, entered upon y,
all the premises so demised by the said conservators to Inlja^»tant» of , .St. Andrew
Nutter. He occupied them upwards of a year, and paid a the Less,
year's rent for them. It was proved that the messuage and Caiibridoi:. premises had always been used as a public-house, as well 88 for the collection of the tolls belonging to the conserva- tors, and that they consisted of a dwelling-house, garden, paddock, and stable, and were worth 251, a year if let as a public-house^ without the tolls, but only 4/. a year if not let as a public-bouse. It was also proved that Vnwin was rated to the parish of Fen Ditton for the same as for a public- house and garden, at a rental of 4/. 105. a year, and no more, but was not rated for the tolls; but that it was usual in Fen Ditton to rate property much below the rack . rent It was also proved that the house in question had no name except the Baitsbite Sluice House, and had no sign ; that there was no high road connecting it with the village of Fen Ditton ; and that the towing path was the only road passing by it.
Gunning, in support of the order of sessions. The Court of Quarter Sessions have come to the right conclu- sion, for the pauper acquired no settlement by this occupation in the parish of Fen Ditton. The statute 54 G. 3, c. 179, 8. 5, enacts, "That no gate-keeper, or toll-keeper, of any turnpike-road or navigation, or person renting the tolls and residing in any toll-house of any turnpike-road or navigation, shall thereby gain any settlement in any district, parish, township, or hamlet." There was a similar provision in the statute 13 G. 3, c. 84, s. 56, which was considered in the case of Rex v. Denbigh {a). The pauper in that case resided in the toll-house, but acquired a settlement by rent- ing a tenement distinct from the toll-house ; it was argued
(ii) 5 East, 333. VOL. V. T T
Cambridge.
642 CASES IN THE KIN6*S BEKCH,
1830. upon the statute, that the word thereby bcluded the rtd-
J^XT^ dence in the tollhouse, and that such residence shoaM not
The KiKG , . . , , . n» « I
V, be contributable to the seulement : but Lord EUtHwmmgk
^si'^A^D^w^ said, the oieaDing of the statute was, that a setdement ^TUB Lbss, should not be gained by keeping the gate, or renivig the tolls, and residing in the toll-house, but not that a settle- ment should not be gained aliunde in the same parish where the toll-house is situate. In Hex v. Ngrth Dyffield(a), tbe principal question in discussion was, whether the tolls bad passed, there being no deed ; and there is a dictum of Lord Ellenborough that " the residence in the toll-houae, if it had been of sufficient value, might have answered the purpose of a settlement :" but the statute of 13 G. 3, was not there adverted to. Here the words and the object of the statute are clear, to prevent any person from throwing a burthen upon the parish, by renting the tolls and residing in the toll- bouse. Here the pauper did rent the tolls, and did reside in the toll-house, of a navigation. He is, therefore, within the very words as well as within the object of the act of parliament. \Bayley, J. Independently of the question upon the 54 G. 3, 1 doubt whether this occupation wouM confer a settlement under 6 G, 4, c. 57. Here the subject of the renting is the house, the land, and the tolls; and for these one entire rent is to be paid.] Probably that objection might be raised successfully, but the objection upon the statute being deemed conclusive, is now alone relied on.
Alderson, contrd. The tolls were not the subject of de- mise from Nutter to the pauper, though they were from the conservators to Nutter: they should not, therefore, be in- cluded in the consideration of this case. The true meaning of the fifth section of the 54 G. 3, is to be found in tbe word thereby. By the construction contended for on the other side, that word must be rejected. The case finds that the messuage and premises had always been used as a
(fl) 3 M. & S. 247.
The King
EASTER TERM, XI GEO. IV. 643
public-house^ and that they were worth 251. a year if let as 1630. a public-house^ but only 4/. a year if not so let. The pau- per may be considered as having taken the house as a ' \. pablic-bouse, and he would gain a settlement by renting it Inhabitants of when applied to that purpose, whether it was used as a the Less, toll-house or not. The observation of Lord Ellenhorough C^*'*^'^°^- in the case of Rex v. North Di{ffield{a), which has been alluded to, seems favourable to this view of the present case.
Lord Tenterden, C. J. — I am of opinion that the pauper acquired no settlement in the parish of Fen Ditton. He seems to me to be a person coming strictly within both patts of the description in the prohibitory clause of the statate, for he rented the tolls, and resided in the toll-bouse of a navigation. I think we ought not to inquire into the value of the toll-house to be let as a public-house, that being, in my judgment, immaterial, considering the express words of the statute. We should defeat the object of the legislature, if we were to decide that the pauper gained a settlement by residing in the toll-house. By deciding other- wise, we abide by the words of an act of parliament, taken 10 their ordinary and popular sense, which is a safe rule of construction.
Tile other judges concurred.
Order of Sessions confirmed.
(a) 3 M. & S. 247.
TT 2
644 CASES IN THE KING's BENCH,
1830.
The King v. Ivie M'Knight.
Where a per- -^ KNIG HT was convicted by two justices of the petce
da" w"en" the *^' *^* county of Worcester, under the Hawkers and Ped-
roandofa lars act, 50 Geo. 3, c. 41, of hawking without a licence,
horn] solicit- ^° appeal, the sessions quashed the conviction, subject to
inp and ob- the opinion of this Court upon the following case:— for tea, but '^^ appellant was a servant of Ifilliam Gray^ a licensed
having no tea tea-dealer, residing at Dudley, about four miles distant
with him; and -^ „ T • .
on a sabse- from Cradley, both m the coimty of Worcester, and was
quent day ^^^^ ^y j^j^ m^gter from time to time (once a for^iffhl) went the tame •' ^ "^^ '
round, deli- round the neighbourhood to ask for orders for tea, and be
cels'ofteapre^ was subsequently sent by his master to deliver tea in pur*
viouily or^ suance of the orders which he received when he so went dered: — Held, • , • , • , ,. i
that he was round; but it was not his practice to deliver any tea at the
not a person time he 80 received the orders for it. On the 8th of April,
■* carrj^mg to
tell," or *< ex- 1829, he was sent round by his master with forty-four small
Mle "^tM parcels of tea, containing each a quarter of a pound, for within the which he had previously received orders in one of his oTdO^G. 3 former rounds. He was sent to deliver them to the persons c. 41, so as to who had given those orders, and when taken into custody penalty for ^^ Cradley, at three o'clock in the afternoon of that day, he trading as a iiad only seventeen of the parcels in his possession. Kei- out a licence, ther he nor his master had any hawker's licence at any of the times of his so going round, either for orders or to deliver tea. The question for the opinion of the Court is, whether, upon these facts, the appellant was properly con- victed of having, as a hawker and trading person goin; from town to town, and to other men*s houses, carried to sell and exposed to sale packages of tea on the said Sth of April, 1829, and of being found trading as aforesaid, with- out a licence, within the meaning of the statute 50 Geo, ^f c. 41, he not having otherwise carried to sell, or exposed to sale, than as aforesaid.
Godson, in support of the order of sessions. Tlie con-
EASTER TERM, XI GEO. IV. 646
viction was clearly wrong, and the sessions were right in 1830. ordering it to be quashed. The charge against the appel- lant is, that he carried out tea to sell; and exposed it to sale. Upon the evidence, as stated in the case, it is clear that he did neither the one nor the other. [Bayleify 3. At any rate he did not carry out to sell — ^he carried the tea out to deliver — it had been sold before.] Exactly so : and for the same reason, namely, that the tea had been sold before, be did not expose it to sale. All he did was to carry out packages of tea, which he delivered in pursuance of orders previously received. He carried, therefore, to deliver, not to sell, much less to expose to sale. In Rex v. APGill{a)f the case stated that the defendant, on a certain day, '* car- ried to sell several packages of tea ; and then, at the house of one H. G., sold one of the said packages;*' so that there the ofFence was complete; for the defendant carried out the tea to sell, and actually sold and delivered it, all at the same time. (He was here stopped by the Court, who called upon)
Shuti and M'Mahon contrfl. The course pursued by the appellant is an ingenious attempt to evade thie provi* sions of an act of parliament, which he has, nevertheless, violated, both in the letter and in the spirit of it. First, he is within the letter of the act, for when he carries the article in pursuance of the previous order, he literally " carries to sell,*' and '* exposes to sale." The mere soli- citing and receiving an order for goods, does not constitute a sale of the goods, for *' sale is a transmutation of pro- perty from one man to another, in consideration of some price or recompence in value." (6) A sale passes the pro- perty; but here no property passed, and consequently no sale took place, until the tea was actually delivered ; all that occurred before was an offer to sell, on the one hand, and a promise to buy, on the other ; and they were both condi-
(u) 3 D. & R; 877; 2 B. & C. 142. (6) 3 Bl. Com. 4i6i
M^Kkight.
646 CASES IN TH£ KING's BENCH,
18S0. tional — the one on the price beiDg (Mid — the other or the The Ki ^^i<^lc being brought and approved of« [JSoy&ry, J. Whca 9. that promise was once given could it be revoked? Can a
man who has given an order for goods refuse to take them when they are brought?] He may refuse to take, aa ^ other may omit to bring, without subjectiug himself to la action. All that passes in the first instance is mere nattef of treaty; wben, in pursuance of that treaty, the article ii brought and delivered, then, and not till then, is the sale complete; and then the bringing is a *' carrying to sell," and the delivery is an '* exposing to sale," within the very words of the act [Baylt^, J. If going round the country to collect orders is a case within the act, eveiy traveller for a London house must have a hawkers' sad pedlars' licence.] Secondly, this case is within the spirit and mischief of the statute, which, like all statutes of a similar nature, must be so construed as to advance tbe remedy and prevent the mischief, Heydon*s case (a). The mischief was, that hawkers and pedlars were enabled to carry on profitable trades in the country, without cootri- buting to any of its burthens, and to the great prejudice of the resident trader, upon whom these burthens attached (6> The act of carrying to sell after orders receivedj difievs from that of carrying to sell without orders received ooly in this; that in the one case the hawker has rather a more certain expectation of selling than in the other. But the mischief is precisely the same in both cases, for he carries on a pro- fitable trade in the towns through which he passes, without contributing to tbe burthens of those towns, and to tbe great prejudice of the resident trader.
Lord Tentebden, C. J. — The sale and the deliveiy of goods are two distinct acts. The charge agaiBSt this defendant was, that he carried to sell, and exposed to sale,
(a) 3 Co. Rep. 7 b. Tongue^ 12 Price, 60; sod of Bsy-
(6) See tbe observations of Gra- ley^ J. in Ker v. M^GiU^ 3 D. & A> htmy B. in Attom^General v. 381; 2B.&C. U7.
The Kino
V.
£AST£R TERM, XI GEO. IV. 647
certain packages of tea. Tbe proof was, that on one occa- 1830. sioo iie received orders from several customers^ and on a stthseqnent occasion carried the packages for tbe purpose of delivering them to tbe customers who had given those mTuiioht. orders. I am of opinion that was not either a carrying to mU, or an exposing to sale^ within either the words or the spirit of this act of parliament.
Bayley, J. — I am of the same opinion. The case is clearly not within the words of the act of parliament, and I can only collect the spirit from the words. The legislature nuiy have intended to make a distinction between a person canying goods with him for the purpose of selling them# and one who delivers goods in pursuance of a previous order. If the defendant had taken the tea with him in the first instance, so as to enable his customers, by an inspection of it, to judge whether they would buy or not, that would have been both a carrying to sell and an exposing to sale; hoi going a round to apply for orders, without having the goods with him, he is in a very different situation. There is a difference between a bargain for and a delivery of goods. A man who carries goods for the purpose of deli- vering them in pursuance of an order previously given, has a vigbl to have the price paid if the goods correspond with the order^ and may enforce that right in an action for goods bargained and sold. Here, the defendant did not carry to sdl, but to deliver goods previously bargained for.
LiTTLED ALB, J. — The charge against the defendant is, that he carried to sell, and exposed to sale, certain parcels of lea. There is no pretence for saying that there was any exposing to sale, nor do I think that there was any carrying to sell^ Those words import a future contract, but here the bargain to sell had been made before the goods were cafriedk The defendant had contracted to sell and deliver the goods, and he was carrying them to the persons who had contracted to buy and pay for them. The question is^
648
CAS£S IN THE KINGS BENCH,
1830. not whether the property had passed, but whether the
The Kijso ^®''^°^***^ <^>" be said to have carried to sell withb the
V. meaning of this act of parliament, and I am of opinioo that
M*«icBT. te cannot.
Order of Sessions, quashing the convictioni conBrmedi
The King v. The Inhabitants of Edingale.
A master By an order of two justices, Henru Brown, his wife aud having said to , . , ., , , ^ , • . i. t» i-
a pauper, he ^heir children, were removed from the township of £>diii-
thought he gaje to t|,g township of Clifton and Haunton, both in the
would suit ® .
hiiDy the pau- county of Stafford ; and the sessions, on appeal, quashed
Mother would *** order, subject to the opinion of this Court upon the
like to make following case : —
prentice, x'he ^^^ pauper, Henry Brown^ before the death of his
master said, father, which took place about thirty years ago, when the
he would not ' ^ - / s »
take him ap- pauper was ten or eleven years of age, had used to work
SITuw'if'h'e' Witt his father at his trade of a tailor. After the deadi of
did he should his father, he was put by his mother from time to time to
farniers;\e ^^^^ ^^^^ ^^^^^ tailors, who paid him for the work he did.
would take At the age of fourteen he went to live with John Tridde-
him 00 an . , ., • ,. . , . • ^ -^..^ j
agreement for oank, a tailor residing in the township of Clifton and
w "V^ft" ^ Haunton, under an agreement, the circumstances of which wards it was were as follow : — ^The pauper first saw Trickkbank when
twcen the pau- ^^ ^^"^ ^^^^ ^^ '^^ ®'^^P ®" *"* errand for a suit of black, per's feiher- Trickkbank said the pauper was just such a one as he roaster, that wanted ; he thought he would suit him. The pauper said
the pauper his mother would like to make him an apprentice. IWdWe*
should serve . , . , . .
him four years, bank said he would not take him apprentice, because, if be
Irade,To have ^*^' ^^ ""^^"'^ ^"^^"^ ^^^ farmers; he would take him od meat, drink,
washing and lodging the whole time, and 2«. arf. a week for the last two yean:— Held, that the pnucipal object of the parties being that the pauper should learn the trade of the master, this was a defective contract of apprenticeship, and not a contnct of hiring and service.
£AST£R TEEM, XI GEO. IV. 649
agreement for four yeiirs. A week after this, ThorntOM, the 1830. pauper*8 father-in-law, and the pauper^ went over again to Tricklebaiik, and Thornton agreed with him that the pauper should serve him four years. He was to go to him to ^"2"^^^"^^°^ learo his trade ; to have meat, drink, washing and lodging, ihe whole time; to receive no money for the first two years, but Qs. 6d. a week for the last two years. It was said, at the time when the agreement was made, that the pauper was to go to hini to learn his trade. When the pauper had lived with Tricklebank under this agreement about a year and eight weeks, his father-in-law having neglected to supply him with clothes, Tricklebank agreed with the pauper to give him Is. 6d. a week from that time for the remainder of the term, instead of £s. 6d. a week for the last two years. In the third year the pauper, having quarrelled with his master, ran away, and went to his mo- ther at Tamworth ; upon which he was taken by Trickle* bank before a magistrate, who made him return to his master, with whom he continued to live until the expiration of the four years, and remained four days over to make up the lost time. During the whole time that he thus lived with Tricklebank he worked at his trade of a tailor, and did nothing else. He slept in the township of Clifton and Haunton all the time.
Whateley, in support of the order of sessions. The Court of Quarter Sessions were of opinion that the facts appearing upon the face of the agreement in this case, con- stituted an imperfect contract of apprenticeship, and not a contract of hiring and service : and they were right. The reported cases upon this subject are very numerous, and it is perhaps impossible to reconcile them all (a); but the
(tf) See jRdr v. Tipton^ 9 B. & per, an adolt, contracted to serve *
C. 888, 4 M. & R. 703, where a plumber as an articled servant
^5^» J«, said, '< We despair of for four years, to learn his trade,
reconciling all the cases upon this at weekly wages; to bd considered
inbjecL*' In that case the pau- as an out-door apprentice ; to do
6fi0 CASES IH THE KIKO^ft BENCH,
^J^^ rule recently laid down in Rex v. Si. Mitrgartfi, Km^9 The King I^f'^i^)* ^^^ subacquently acted upon in Rear v. Comic (i),
^ , , .V* ^ must now be taken at tbe sovernine rule upon all qucatioas Inhabitants of . , . , . , , . . . . ^ . » •
Edinqale. of tbifl kind, and i6 dectflive o( tbe present case, it »
this :— '' Where it appears, from all tbe circumalaneei, that
tbe parties, at tbe time of making tbe contract^ intendtd to
create the relation of master and apprentice^ the contract
must be construed as one of apprenticeabip; and thea, if it
is a defective apprenticeship, no settlement can be gained
by service under it. Where, on the other band» it appears
that tbe parties intended to create tbe relation of mister
and servant, tbe contract must be coAstmed as one of hiriag
and service, and a settlement will be gained by service
under it"(c). Here, the object of the parties was, that the
pauper should learn tbe business of a tailor; therefore their
intention was to create the relation of master and apprca-
tice; and the contract must be construed as an imperfect
contract of apprenticeship.
gardening or any other work bis master set him about ; and, when iU, not to receive wages; the mas- ter agreeing to teach bim his trade: and that was held to be not a contract of hiring and ser- vice, but an imperfect contract of apprenticeship.
(a) 9D.&R. 160; 6 B. & C. 97. There a shoemaker proposed to the mother of a boy to take bim to learn his basiaess. The bo> was to serve four yeais, was to board and lodge witli bis mas- ter, and was to have half of what he earned. The mother conseated, and the boy served fonr years upon those terms. No indentures were executed, on accoaot of the poverty of the mother; and no premium was paid.. It was held, that thi9 was not a contract of
hiring and service, but a defective contract of apprentioesfaip.
(») S M. & R. aO; 8 & ft C. 88. There tha paaper was biied by his uncle, a carpenter, to leva his trade, and was to do aojr other work as well as that of a carpea* ter. His uncle was to Bnd him part of his food and ckthtag, hot he was to lodge with his father. The pauper served his ancle oo these teiflM five yaaas. Atlbaead of two years it was piopoied is draw up indentoree, to exempt the pauper from tbe militia; bat i ever were drawa ap. It wi that this was not a caalwrt ef hiring and service, bat an impei^ feet CQDtract of appreatice9hip»
(c) Per Ba^eji^J.! 9 D.kB.
EASTER TERM^ TiJ GEO. IV. 651
CampbeUt Shutt and M'M^hon, cootri. It is cletr from t83o. the facts stated in the case« that the intention of both par- ^"^v^^ tiea to this contract was« that it should be one of hiring and ,;.
semce, and not one of apprenticeship. The pauper* in- Injj*h»«»nto of deed, proposed in the first instance to serve as an appreiH tice, but the master refused to take him as an apprentice, aatigning a reason for his refusal ; the pauper acquiesced, sad no more was said upon the subject. That sufficiently distinguishes this case from those of Rex ?• Sl Margaret't, King*$ Ljfnn (a)» and Hex v. Combe (6) ; and then Rex v. Burbach{c) is an authority for holding that the contract here was one of hiring and service. There the father of the pauper contracted with J. S. that bis son should bo with him, and should work with him for two years, and have what he got, and should allow 2s« a week out of his gains to J. &'., viz. Is. for teaching him the business of a frame-knitter, £kl. for the rent of a frame, and 3d*, for the standing: and it was held that this was a contract of hiring and service, and not of apprenticeship.
Lord Tenterden, C. J. — The question is, whether the contract between the master and the pauper is to be conBidered a contract of apprenticeship or of hiring and service. If that was a question of fact, as it may be, the sessions have decided it; and we cannot disturb their deci- sion. If it is a question of law for our decision, I am ol opinion that the contract was one of apprenticeship, and not of hiring and service. We must form our judgment of the nature of the contract from the substance of the bargain between the parties. It appears that when the pauper first saw the master, the latter said he would not take him as an apprentice, because if he did he should offend the fanners ; but at the time when the agreement was finally made between the master and the pauper's father-in-law, it
(a)9D. &R.160; 6 B. & C. (6)2M.&R.30; 8B.&C.8S. 97. (c) 1 M. & S. 370.
652 CASES IN THfe KING*S BEKCH,
1830. was stated that the pauper was to go to him to learn his Jl^" trade. That being the object of the parties, expressed it
V. the time of making the agreement, I cannot distinguish this
^ EMiforw.*'^ from the case of Rex v. Combe (a), which followed shortly after that of Rex v. St. Margaret's, Kwg*s Lynn{b), in which the master offered to take the pauper to leani his business; and that being the object for which he was to be taken, the Court thought that there was not sufficient to warrant the sessions in finding that the relation of master and servant subsisted between those parties. In Rex v. Burbach (r) there was no express contract that the master should teach the pauper his trade, and besides, that case was decided, as was observed by my brother Bayley in JRex V. St. MargaretX King's Lynn{d), upon the ground that there was nothing to shew that the parties had intended to create the relation of master and apprentice. I am, therefore, of opinion that the order of sessions in this case ought to be confirmed.
The other judges concurred.
Order of Sessions confirmed.
(a) 9 M. & R. 30; 8 B. & C. 88. (c) 1 M. & S. 370.
(b) 9 D. & R. 160; 6 B. & C. (d) 9 D. 5e R. 164. 97.
EASTER TERlffi XI GEO. IV. 653
1880.
HoBSFALL and another v. Fauntleroy and another.
Assumpsit for goods sold and delivered, with the Plaintiffs,
_, , , . , merctiRnts at
money counts, flea: non assumpsit^ and issue thereon. Liverpool, cir-
Ai the trial before Parke, J., at the last assizes for the f"^*^^*^^ J^ta-
' ^ ^ logue8 of
county of Lancaster, the case was this: — The plaintiffs goods to be
were importers of ivory at Liverpool; the defendants were ^j^^^ contain-
dealers in ivory at London. The action was brought to »ng ^his condi- , . tioii:— " Pay-
recover the value of eight lots of ivory, alleged to have meat on deli-
been purchased of the plaintiffs by Messrs. Lloyd and ""^^^^b*"* ''^
WilHams, who were brokers at Liverpool, for and on good bills on
account of the defendants, under the following circuni* ti,e°sat?sfac-
stances: — The plaintiffs had circulated catalogues an* tjonofthe
nouncing that a quantity of ivory would be sold by auction ceeding three
by Shandmd Horsf all on the 9th of May, 1829, subject, ^^^^^^^^'
among others, to the following condition of sale:—-'' Pay- equal to cash
ments to be made on delivery of bills of parcels by good ^^* '^H^ „
bills on London to tbe satisfaction of the sellers, not ^x- X. & PT.,
ceeding three months date, to be made equal to cash in j^erpod, sent
four months from this date.'* Lloyd and Williams, who a catalogue to
bad been frequently employed by the defendants to pur- merchants m
chase ivory for them, sent one of these catalogues, with l^ndon, who t ... , I . i. 1 r . directed L. &
the conditions annexed, to the defendants, and m return w. to buy
received from them directions to buy certain lots, which ^^hiclTthey* they did accordingly, to the amount of 1081/. 25, 2d. bought ac« Before the sale began, the auctioneer, in reading the con- Befbre^t^esale ditions of sale, made the following verbal alteration as to b^gan the auc- the mode of payment: — *' Payment, by known buyers, the that "pay- usual credit of two and two months. By strangers, on f^^i'^by
, ' o ' known buyers
delivery of the bill of parcels, by good bills on London to was to be
" the usual credit of two and two months.'* X. & W.^ being known buyers, obtained the goods without giving bills, and forwarded them to defendants in London, with an invoice, suting that *' payment" was to be '' equal four months cash," and drew on defendants for tbe amount by a bill at four montlis from the day of the sale, which defendants accepted and paid when due. Within two months after the sale L. & W. failed, never having given plaintiffs bills for the price of the goods, whereupon plaintiffs sued defend- ants for the price; — Held, that plaintiffs could not recover, as tney had by their own catalogue led defendants to believe that L. & W, had given them bills for the goods, and had thereby induced defendants to accept and pay the bill drawn on them by L.& If'.
654 CA6E8 IK THE KINDTS BEITOH,
1830. the satisfaction of the sellers, not exceeding three months
^^1^^"^^^ date, to be made equal to cash in four months from this
and another date/' After the sale, Lloyd and Williams delivered to
p ^' the auctioneer the following bought note :
aod another.
** Messrs. Shand and HorsfalL " Sirs, — We have this day bought from you the follow- ing lots of ivory; viz. (the lots were then described) with customary allowances. Payment two and two mouths. (Signed) L/qydaud WiUiamr
Shand and Horsfall afterwards sent an invoice in thr same form to Lloyd and Williams, to whom the ivory was delivered^ and they forwarded it to the defendants, with an invoice as follows: —
'' A. Fauntleroy and Son, per Lloyd and William.
** Bought of Horsfall and Tobin, per Shand and Hon^ fall,
'* Eight lots Elephant teeth. Payment equal four months cash.*'
They then set out the particulars, charging the amount, including brokerage and commission 12/. 7s, 4d», at 1093'* 9s. 6d.$ for which amount they, a few days afterwardi, drew upon the defendants by a bill at four months, dated the 19th of May, the day of the sale^ which bill the defend- ants accepted and paid. Long before that bill fell due Lloyd and Williams stopped payment, upon which the plaintiflfs, stating that they had then for the first time learned that the defendants were the real buyers, upon which fact there was conflicting evidence, demanded pay- ment of them. The defendants declined making this pt;- menty stating as their reason, that they had already ac- cepted a bill in favour of Lloyd and Williams for the amount, which would be paid when due. The plaintiffs waited till that bill had become due, and had been paid» being more than four months after the sale, and then com-
EASTER TERM, XI GEO. IV. 655
menced the present action. It wrs contended for the 18S0. plaintiffB, that as they were ignorant at the time of the ^^^^"^^^ sale that Lloyd and William$ purchased as agents and not and another as principals, they had a right to resort to the principals as ^ ^* soon as they ascertained who they were. But it was sug- and another. gested by the learned judge, and contended by the counsel for the defendants, that they had not authorized Lloyd and Wiltiams to contract for them upon any other terms than those contained in the catalogue and conditions of sale transmitted to them ; that the only contract so authorized by them was for payment on delivery of bill of parcels; that the contract made by Lloyd and Ifilliams was for pay- ment at two and two months ; that the two contracts were essentially different; and that, under these circumstances, the defendants were not bound by the latter, which was the contract relied on for the plaintiffs. The learned judge, being of opinion that this objection was fatal to the plain- tiffs' right to recover, directed a nonsuit. On a former day in this term,
F. Pollock moved for a rule nisi for setting aside the nonsuit, and for a new trial. The plaintiffs were not con*- eluded by their dealing with persons who were really on^y agents, though they held themselves out as principals, but had a right to resort to the real principals, so soon as it wu ateertained who they were. The action, therefore, is maintainable. Payment to an agent does not exonerate a principal, unless it is an authorized payment. Here the payment to the broker was an unauthorized payment, and the principals should have looked to the application of the bill which they accepted. The invoice sent by the auc- tioneers to Lloyd and Williams mentioned the terms upon which payment was to be made; and as the defendants afterwards received and kept the ivory, they must be pre- sumed to have received it upon the terms contained in that invoice. [Parke, J. I cannot think so. It did not appear that that invoice ever reached the hands of the defendants,
656 CAe£8 IN THE king's bench,
18dO» or that they ever had any knowledge of iU conteoU, anj
HoasFALi. *' contained a deviation from the only contract ibey bad
and another ever authorized their agents to make. Can they be bouud
Fauntleroy ^y ^ contract which they did not authorize their agents to
and another, make, and which they did not ratify after it was made:]
The deviation from the original mode of payment was oqI)-
as to time, and the time at which the payment was to be
made is not material; for in every case of goods bought, to
be paid for by a bill at a particular date, the vendor may
sue generally for goods sold and delivered, as soon as the
time arrives when the bill agreed to be given would
become due.
Cur» adv. valL
The judgment of the Court was now delivered, as follows, by
Lord Tenterden, C. J.-— It appeared at the trial of this cause, that before the ivory in question was sold, cata* logues had been circulated by the plaintiffs containing cer- tain conditions of sale. One of those catalogues was transmitted to the defendants, who thereupon sent orders to their agents to make certain purchases on their account The agents made the purchases accordingly, and sent the ivory to the defendants in London, with an invoice stating the mode of payment in the same terms as those coo* tained in the conditions of sale. It further appeared, that before the sale began the auctioneer stated, that known buyers would be allowed to pay, at the end of two months^ by bills payable at two months from that time; and Lloi/d and Williams, the agents for the defendants, being known buyers, were allowed to have the ivory without giving bills at the time; and they immediately drew on the defendants, who accepted their draft for the amount. My brother Parke at the trial was of opinion that no other contract could be substituted for that which the defendants in the first instance authorized their agents to make, and on that ground directed a nonsuit. That is a very important
EASTER TERM, XI GEO. IV.
question^ and, as it is not essential to the decision of this case, we avoid giving any opinion upon it (a). But, inas-
657
(a) The nature of the difficulty which pressed upon his lordship's mind, with respect to the point upon which the nonsuit proceeded is not stated. It was probably this. The defendant empowered Uoyd and WUUam$ to purchase ivoiy, to be paid for by good bills on delivery. Uoyd and Williams bought upon credit, viz. at two months. This contract Lloyd and Williams had no authority to make, and the defendants might have repudiated it. Bot they ac- cepted the goods. That accept- ance cannot be considered as an acceptance upon the contract to pay by good bills on delivery, because the plaintiffs had never sold on those terms. If, as be- tween the plaintiffii and defend- onts, the defendants were bound to know what their agents JUojfd and Williams had done, then the acceptance of the goods would be a ratification of the actual con- tract at two and two mouths. See lib. Ass. Anno 97, fo. 133, pi. 5; Jtaiiger v. Fogassa, Plowd. 11 b. If the defendants were not bound to know what their agents had done, then either the acceptance of tlie goods without a previous valid contract of sale, would amoent to an implied sale upon a qoantain valebant, or the pro- perty would still remain in the plaintifi, and the interfereuce of the defendants with those goods would have been a tortious con- veraion, a»d the question then would be, whether the plaiotifis might not waive the tort, and declare for goods sold and deli*
VOL. V.
vered. Vide Lightly y.Cloustim^ 1 Taunt. 112; Hill v. PerroU, 3 Taunt. 274; Foster v. Stewart, 3 Made & Selw. 191 ; Abbott r. Barry, 5 B. Moore, 98; Edmeads V. Newman, 8 Dowl. & Ryl. 568; 1 Barn. & Cressw. 418; 1 Chitt. Plead. 5th ed. 119; Ibid. 388. The case in 27 Assise was this: ** A poor man sued a bill of trespass in the Court of King's Bench, then (in M. T. 1352) held at Kingston, in Surrey, against W. de W. Serjeant-at-Arms, of a horse and an ux, wrongfully driven away,^who pleaded not guilty. And it was found that the bailiff of W. had sold the horse to the plaintiff for certain money, and that W, when he came into the country retook the horse. . And it was asked of the jurors whether the bailiff was known as his bailiff, who (upon which the jurors) said. Yes, and that he had sold* other beasts at the market; and it was asked if he had a special wan-ant to sell the horse, wlio (upon which the jurors) said, No.f With respect to the ox, (in droit del boef,) it was found that the bailiff had pledged the ox to the plaintiff for 12 bushels of wheat, of the price of 12 J., so that if he did not pay &c. the plaintiff should have the ox. And it was found that the wheat came to the profit of the
* For which Lord Brooke, ia abridging this case {tit. Trespass, pi. 245,) puts ** had used to sell."
fSee distinction between a gene- ral and a special agent, White- head V. Tuckett, 15 East, 400, 408. u u
1830.
HoasFALC. and another
e.. Faumtlerot and another.
658
1830.
HORSFALL
and another
V.
Fauntleroy and another.
CASES IN THE KING S BENCl^,
much as the plaintiffs, by circulatinga catalogue with certain conditions of sale, a copy of which was transmitted to the
master, and without payment made.* And as well for the one as the other, the plaintiff recovered his damages." S. C. ahridged Fitz. Abr. /{'/.Trespass, ^30; Bro. Abr. tit. Contract, pi. 21; Ibid. tU. Pledges, pi. 16; Ibid. tit. Trespass, pi. 945.
Some confusion has arisen with respect to the time at which upon the sale of goods the property in the speciBc articles sold is trans- ferred from the seller to the buyer. According to the Civil Law, and the present, or at least the old French Law, and all other sys- tems of jurisprudence founded upon the Civil Law, the property remained in the seller until a de- livery either actual or construc- tive. But the right to the benefit of accretions to the property, and of any other improvements there- in, on the one hand, and the lia- bility to the risk of destruction or injury to the property, (pericu- lum rei venditas,) on the other, were transferred to the buyer by the very contract of sale, if the subject of a sale were a specific individual chattel (certum corpus), or in the case of a bargain fur quantity only, then iipun the sub- sequent designation of a particular article, by selection, by measure- ment, or otherwise.
As after the transfer of the property, the risk (periculum rei venditx) attaches to the buyer, the converse seems to have been
* £t son payment fait, in both editions, but '* son" appears to be mtsprinted for " sauns."
assumed by English lawyers, who appear to have considered that liecause the rigk passes upon the completion of the contract, ac- companied or followed by the designation of a specific article as the subject-matter of the sale, therefore the property vested also. This appears to be now the settled law of England upon this subject; and it may be traced as far back as the reign of Edr ward 4; for in H. 18 Eiv, 4, fo. «J, pi. 1, Bryan^ C. J. of C.P. whose opinion upon this poioi •had been disputed in the preced- ing year {antCj vol. ii. 568 n.) by Liltkton, J. (the author of the Tenures) says obiter, <* If I sell my horse for 10/. it is lawful for me to retain the horse until I am paid; and yet I shall never have an action of debt on the cootract until the horse be delivered, end it is clear that by the bargain the property was in him who bought the horse. But if the buyer ten- der the money, and he (the seller) refuses, then he (the buyer) nay seize the horse, or have an action of detinue, or an action of trespass, at his pleasure.'* From this dic- tum it appears that the action for goods bargained and sold, hot not delivered, was then unknown; and yet if the property passed by the contract, there would be no reason why such an action of debt on the contract as debt for goods bar- gained and sold should not lie.
In the reign of Henry 2, the Inw of England in this respect is thus stated by Glanville,*'A pur- chase and sale are efTectually com-
£ASTER TERM, XI <3E0. IV.
defendants, naturally led tliein to suppose that Lloyd and Williams could not have obtained the ivory without giving
effect 80 important a change in the law of France, it might have been expected that the legislator! would have expressed themselves with at least as much distinctness us in No. 938, (infr^) when merely, adopting and re-enacting the estft- blished law.
The rule of the Civil Law and the old French Law upon this subject, and the departure from that rule in the English Courts, is stated in a note to Baikif ▼. Cul- venvell, ante^ vol. ii. 566 (</), and to Diion V. Yatei, 1 Nev.& Mann. 202(6); but it was not intended, by what is said in the former of those notes, to deny that the law of England had long been settled upon this point.
With respect to gifts of chattels inter vivos, the rule has been esta- blished that gifts by parol are re- vocable and incomplete, until ac- ceptance (i. e. acquiescence in the gift) by the donee, but that gifts by deed are perfect and complete, and vest the property in the donee until disclaimer. And that after acceptance in the former case and until disclaimer in the latter, the property vests in the donee with- out any delivery of the subject- matter of the gift. Perk, tit* Grant, £7; 3 Roll. Abr. tit. Grants (X.); Com. Dig. tit, Biens (D 2.) So in the Code Civil, No. 938, it is said, *' a donatio inter vivos duly accepted, shall be perfect by the sole consent of the parties; and the property in the articles so given shall be transferred to the donee, without the necessity of any other delivery."
D u 2
pleted when the contracting par- ties have agreed upon the price, frooided that a delivery of the thing bought and told has taken place, or that the price or part of it has been paid, or at least that earnest has been paid and accepted." He then goes on to state, that after delivery or pay- ment, both parties are bound by the contract, unless some power of determining the contract, as apon trial of the goods, kc, was reserved ; but that where there is only a payment of earnest the purchaser may forfeit the earnest and abandon the contract. Glanv.. lib. 10, cap. 14.
In constructing the Code Civil the French legislators would at first sight appear to have adopted the modern English principle, as in the case of Revendication, see 2 Nev. & Mann. 650 (c). See Code Civil, No. 1588, where it is said — ** the sale is perfect between the parties, and the property is acqoired.</e jure by the buyer as against the seller, as soon as they are agreed upon the thing, e,g. the specific article, and upon the price, although the thing has not been delivered, nor the price paid,** unless by the terms ** la pro- priety est acquise de droit k Ta- cheteur k regard du vendeur,'' we are to understand that (as in the Civil Law,) the buyer has acquired merely jus ad rem and not jus in re, and that the words ** acquise de droitH* are used in contradis- tinction to ** acquise de faitJ* Ipdeed if the intention of No. 1388, of the Code Civil, was to
659
1830.
HORSFALL
and anotlier
V.
Fauntlerot and another.
660 CASES IN THE KInVs BENCH,
1830. good biiig qh London, and that therefore they might safely
HoRSFALL accept the bill drawn by Lloyd and Williams for the
and auoLher amount ; if we held that the acceptance and payment of
Fauntleroy that bill did not exonerate the defendants from the present
and another demand, it Would be an exceedingly hard case; for they
have fallen into the difficulty, being misled by a document
put forth by the plaintiffs themselves. Upon thi^j^Wfad
we are of opinion that the plaintiffs are not entiu^to
recover, and, consequently, that the nonsuit ought not to
be disturbed.
Rule refused.
But upon a donatio mortis causft, tio mortis causft is not recognised
the property does not vest ui the in France, vtc/eCodeCml, No. 893. donee without delivery. SmUh v. In Irofu v. Smallpieu^ 9 Btro.
Smithy 2 Stra. 955; Bum v. Mark- & Aid. 551, these distinctions ap-
ham, 9 Marshall, 53^. The dona- pear to have been overlooked.
Mann x;. Lent.
A boy was ASSUMPSIT, by the plaintiff, as indorsee, against the
bonnd appren-
ticeini827by defendant, as acceptor of a bill of exchange drawn hj
indenture, j^^^, Pullman, for 88/., dated 22d October 1827, pay- upon a pre- ' .
miumofso/. able two months after date. Plea, non assumpsit, and
1^5*11^ tTbe "*"® thereon. At the trial before Lord Teaterden^CJ.,
paid, and for at the London adjourned sittings after Michaelmas term
was given. 1828, the plaintiff, by his lordship's direction, had a verdict.
The indenture subject to the opinion of the Court upou the foUowiag
Dore all.
stamp only. case : —
S^^thT'*^* The plaintiff, at the trial, having proved the buids- master five writing of Pullman as drawer and indorsee, and of pi de- months, when a difference
arising between the master and the father, and it being discovered that the stapip «» insufficient, the apprentice left the master. In an action by the indorsee against the acceptor of the bill :^Held, that as the apprentice had been maintained and instructed by the master for five months, and might nave enforced a continuance of that nuote- nance and instruction, by causing the indenture to be properly stamped, under 90 0. ?, c. 45, s. 5., there was not a total fiiilure of consideration for the bill, and the action upon it was maintainable.
V
V
£A$T£R TERM, XI GEO. IV.
fedUant as acceptor^^f the bill; the defendant first proved, bj way of answer, that on the 2d December, at half-past nine at night, a notice was served at the office of the plain- tiflf 's attorney, whereby he was required, on the trial of the cause, to prove the time when he received the bill, and the consideration paid or given by the plaintiff to Pullman for the '^'same. The plaintiff, however, did not adduce any evidence either as to the time when he obtained possession of the bill or of the consideration given by him for the same. The defendant then proved that his son had been bound apprentice to Pullman by an indenture dated the 19th of October, 1827 ; that a premium of SOL was agreed to be paid as an apprentice fee, of which 2/. was to be taken out in liquor; and that the bill in question was accepted by the defendant, and handed over to Pullman in payment of the residue. The indenture of apprenticeship was in the usual form, and was on a 1/. stamp, the premium expressed in it being 30/.; and the apprentice was to serve for seven years* The apprentice entered into his master's service, find served, in pursuance of the indenture of apprentice- ship, for the term of five months and a little mor^, when a difference arising between the master and the father, and it having been discovered that the stamp on the indenture, being but a twenty-shillings stamp, was insufficient, the boy left his master's service.
Upon this state of facts, the defendant, contended that the indenture, according to the stat 55 Geo, 3, c. 184, sched. 1, tit. '* Apprentice," ought to have borne a 2/. stamp; and that not being so stamped, the consideration for the bill failed.
lliat the statute 8 Anne, c. 9, s. 38, requires that inden- tures of apprenticeship executed within fifty miles of Lon- don shall be brought to be stamped at the head office within three months after the date thereof. That sect. 39 of the same statute directs, that unless the duties payable were paid within the time aforesaid, the indentures shall be void, and not available in any court or place, or to any purpose whatsoever. That the statute 5 Geo. 3, c. 46, s.
CASES IN THE KING 8 BENCH,
19, requires the duty to be paid in one month, or the inden- tures will be void ; and the master forfeits a penalty, and tbe apprentice can acquire no right under the same.
That the duty payable on the indenture in the present case was not paid within three months after the date thereof, and was not at the time of the trial impressed thereon. That the statute 42 Geo, 3, c. 23, s. 7, authorizing the stamping indentures of apprenticeship after the proper time, was a temporary act no longer in force.
That the statutes 9 Jnne, c. 2\, s. 66, and 18 Geo. 2, c. 22, ss. 23 and 24, make it tbe duty of the master, and not of the apprentice, to get the indentures stamped in due time.
The plaintiff, on the other hand, contended that the statutes 12 Anne, st. 2, c. 9, s. 23; 20 Geo. 2, c. 45, ss. 5 and 6; 37 Geo. 3, c. 136, s. 2; and 44 Geo. 3, c. 98, s. 24; modify the operation of the statutes relied on by the defendant, and that the bill was not to be considered, even «s between the drawer and the acceptor, as altogether without consideration; and even if it were so, the plaiDtiff contended that he was still entitled to recover, he not being shewn to be cognizant of the supposed want of consideration, or to have received the bill otherwise than in the ordinary course of business, and not being bound by law upon so in- sufficient a notice as he received to prove the consideration.
On a former day in this term the case was argued by Coltman, for the plaintiff. First, the stamp was suffi- cient. Where the premium does not exceed .SO/., the Stamp Act(a) imposes a duty of 1/. only: here the real pre- mium given was only 28/. for it does not appear that the 2/., said to be taken out in liquor, was for the use of the master. Secondly, there was a sufficient consideration. There may have been a partial failure of consideration; but it is a settled principle, that a partial failure of tbe con- sideration for which a bill or note is given, is no ground of defence to an action on the bill or note (6). The
{a) 55 G. 3, c. 184, schedule, (6) See Ohbard v. Betham,9nir,
part 1, « Apprenticeship. " p. 632, and the cases there died.
EASTER TERM, Xt GEO. IV. 663
case of Jackson v. Warwich{a) may perhaps be cited on the 18S0. other side as an authority to shew that in this case there is a total and not a partial failure only of consideration ; but admitting the propriety of that decision, which perhaps might be questioned, there is a material distinction be- tween that case and the present. There the premium was not mentioned in the indenture at alli which was an incur- able defect, that rendered the indenture absolutely and for ever void. Here, the premium is correctly set out in the body of the indenture, and the only defect, if any, is in the stamp, which may be cured, by virtue of the statute 20 Geo. 2, c. 45, s. 5, by adding the proper stamp, and the indenture be thereby rendered valid. It cannot therefore be successfully contended that the consideration in this case has failed in toto; more especially as the apprentice was actually maintained by the master for a period of five months and upwards, and then quitted the service of his own accord. Thirdly, even if the drawer in this case could not have recovered against the acceptor, still the plaintiff, being the indorser, may. Every indorsement primft facie imports a consideration. The acceptor can- not, by merely proving that the bill was without considera- tion as between himself and the drawer, impose upon the indorsee the duty of proving the consideration which he gave for it. The giving notice to the holder that he will be required to prove the consideration given by him for a bill, does not compel him to do so: the only effect of that is to enable the acceptor to impeach the consideration, which without giving such notice he is not allowed to do. Where, indeed, a bill has been obtained from the acceptor
(a) 7 T. R. 121. It was there executed was void by the statute,
held that " no action can be main- for want of the insertion of such
tained by the plaintiff on a note premium therein, and of a proper
given to him by the defendant, as stamp in respect of the same; al-
an apprentice fee with bis son, though the plaintiff did in fact
who was to be lx)und to the plain- maintain the apprentice for some
tiff, if it appear that the indenture time, and until be absconded.
664 CASES IN THE KING*S BENCH,
18S0. bj force or fraud, the duty of proving consideration b im-*
posed upon the holder; but the rule has never yet been
V. carried beyond that pointy and its extension would be a
^'^'' serious clog upon the circulation of bills and notes, and would materially diminish their utility for the purposes of commerce. ^
Gumeyy contri. The indorsee of a bill or note stands, for many purposes, in precisely the same situation as the drawer, and is equally compellable, upon notice, to prove that he or some preceding party took the bill or note bon& fide and for value; Duncan v. Scott (a), Rees v. Marqum of Headfort{b), Solomons v. The Bank of Ef^land{c\ In this case the apprentice served for five months under the indenture, and it being then discovered that the stamp was insuflicient, left his master's service. The indenture, being void, there was no consideration for the bill as be- tween the drawer and the acceptor, therefore it was in- cumbent on the plaintiff, as the indorsee, to prove, after notice, that he had given consideration for it. The means of proof in such a case are in the plaintiff, and the burden of proof ought, therefore, to be upon him; the defendant cannot be called upon to prove a negative. In ThomKU v. Netoton{d), which was an action by the indorsee against the acceptor of a bill, the defendant having shewn that there was originally no consideration for the bill. Lord
(a) 1 Campb. 100. It was if it appear that a prior part^ wu there held, that << in an action by defrauded out of it, tbe plaiotifT the indorsee against the drawer of a ii bound to prove what ooosidera- bill, if it appear that the defend- tion he gave for it." ant drew the bill without consi- (c) 13 East, 135, n. It was deration, and under duress, it is there held, that <' the holder of a incumbent on the plaintiff to prove bank note is primi facie entitled ihat he gave value for it, although to prompt payment of it, and cu- lt was indorsed to him before it not be affected by the previoas became due/' fraud of any former holder in ob-
(6) 2 Campb. 574. It was taining it, unless evidence be gii^o
there held that " in an action by to bring it home to bis prifitj * the indorsee of a bill of cxchanpc, (d) 2 Car. & P. 606.
BASTER TERM, XI GEO. IV. 665
Tenterden held that it lay upon the plaintiff to shew that he, 1830. or some prior indorsee, had given value for it; and in Dandridge v. Cordai{a), bis lordship again ruled the same point. Assuming that the indenture might at one time have been made valid by impressing a sufficient stamp upon it» that cannot now be done ; and the indenture being wholly void, there was no consideration for the acceptance, lo Jackson v. Warwick (b), it was held that no action could be maintained by the plaintiff upon a note given to him by the defendant as an apprentice fee, if the indenture exe- cuted was void; and Scoti v. Gillmore(c) shews that if a bill or note is founded partly on an illegal consideration, and partly on a good consideration, the illegality will taint the whole bill or note, and will bar the claim of the holder upon it in toto. As to the stamp, it was held in Rex v. Chipping Norton j{d) that an indenture of apprenticeship executed before the passing of the statute 44 Geo. 3, c. 98, must be stamped with the premium stamp within the time prescribed by the statute 8 Ann. c. 9 ; and that where such an indenture was stamped at the time of its being produced in evidence with the stamp required by the sta- tute 55 Geo. 3, c. 184, but not within the time prescribed by the statute 8 Ann. c. 9, the indenture was altogether void.
Cur. adv. vuli.
The judgment of the Court was now delivered by
Lord Tentekden, C. J., who after recapitulating the facts of the case, thus proceeded : — We are of opinion that there was not, in this case, a total failure of consideration for the bill. If the father had paid the premium in money, instead of giving the bill for it, he could not, under the cir-
(a) 3 Car. & P. 11. (d) 5 Barn. & Aid. 419. And
(b) TT.n.m. see Res v. Preston, 3 Nev. &
(c) 3 Tannt. 226. Man. 31; 5 Barn. & Adol. 1088.
666 CASES IN THE KING's BENCH^
1830. cumstances of this case, have recovered it back; for the son was not only maintained by the master for some time, but might have compelled the master to continue his maio- tenance and instruction, by causing the indenture to be duly stamped. There Jivas not, therefore, a total failure of consideration for the bill, and that being so, the circum- stances proved would not have constituted a defence even in an action brought by the drawer against the acceptor, and, consequently, they are no answer to an action brought by the indorsee against the acceptor. The plaintiff, therefore, is entitled to judgment.
Judgment for the plaintiff(a).
(a) Where, since the new rules Lam v. Burrowz^ 4 Nev. & Mann.
of pleading, (H. 4 IT. 4, 3 Nev. & 366; 9 Adol. & Ell. 483. And see
Man. 1,) want of consideration is GraAam v. Pi/maii, 5 Nev. ft Mann,
pleaded to an action against an 58; 3 Adol. & Eli. 691; Bramak
acceptor, and the plaintiff replies v. Roberis, 1 Bingh. N. C. 469;
that the defendant bad a considera- Trindtr v. Smediey, 3 Adol. & Eil.
tion, which is set out, and concludes 522 ; Richards v. ITiomaSf 1 Cromp.
to the country, and the defendant Mees. & Rose. 773; Percwal r.
joins issue upon the replication, Framptonj 2 C. M. &: R. 180;
the plaintiff is not bound to shew Simpson v. Clarke^ ibid. 342. consideration in the first instance.
Doe on the demise of John Grubb r. Edward Grubb.
lnl790,E.G.. Ejectment for an estate called Little Horsenden, in being seised »«,..•
fee of an «s- the parish of Horsenden, in the county of Buckingham, tate, died in- testate, leaving two sons, J. G. and E. G. W, C. was then tenant in possession, and so continued until the trial of this ejectment. In 1812 J. G. died intestate, leaving ao only son and heir, J. G., the lessor of the plaintiff. After the death of £« G. the pui^ chaser, W. C. paid his rent to £. G. the yciunger son, and to his two sons J. G. sod E. G. the defendant, in succession, up to the time of action broui^ht, with this exoep- tioQ, that in 1804 J. G., the eldest son of the purchaser, demanded and received fmoi W C. one half year's rent. In 1805 the same J. G. cnt down and disposed of, for bis own benefit, certain timber upon the estate. In June 1813, J. G., the lessor of the plain- tiff, demanded from W. C. the rent then in arrear, to which W» C, replied, that his cooncc- tion as a tenant with J. G. had ceased for several years. This ejectment was commenced in 1890, and the demise was laid on the 1st of May, 1813. Held, first, that there was no adverse possession to bar the right of the lessor of the plaintiff to recover in eject- ment; and secondly, that the reply of W, C. in June 1813 was sufficient evidence of ^ prior disclaimer tO support the demise in May, 1813, without proof of any notice to quit.
EASTER TERMj XI GEO. IV«
^t the trial before Garrow, B.» at the Buckinghamshire bpring assizes, 1828, a verdict was found for the plaintiff, with one shilling damages, subject to the opinion of this Court upon the following case : —
Edward Grubb the elder, now deceased, purchased the estate in question in the year 1788, and the same was duly conveyed to him and his heirs by indentures of lease and release, dated 30th and 3 1st January, 1788.
The said Edward Grubb the elder died seised of the estate in question, intestate, 30th October, 1790, leaving two sons, Johfif the father of the lessor of the plaintiff, and Edward^ the father of the defendant, him surviving. John Grubby the eldest son of the purchaser, died 1st Septem- ber, 1812, leaving the lessor of the plaintiff his only son and heir at law. Edward Grubby the second son of the purchaser, died in July, 1817, leaving two sons, John, and Edward the present defendant; and John^ the defendant's elder brother, died in July, 1825, having devised all his real estates to his brother Edward, the defendant. At the time of the purchase in 1788, one William Cowdery was tenant in possession of the estate, and so continued until the time of the trial of this ejectment. From the death of the first purchaser, with the exception hereinafter mentioned, the said William Cowdery paid his rent for the premises to Edward Grubby the father of the present defend- ant, until his death in July, 1817; from that time to John Grubb, the defendant's elder brother, until his death in July, 1825; and from that period, till the time of the trial, to the defendant. The acts upon which the lessor of the plaintiff relied as acts of ownership, in support of his claim, were exercised by John Grubb, the eldest son of the first pur- chaser, as follows; viz., by demanding and receiving by his agent from William Cowdery, the tenant, about the end of
1804, half a year's rent, from which the land-tax was de- ducted; and by cutting down timber, chiefly fire-wood, on the estate in question, mostly round the hedges, which timber Was marked at the end of 1804, and felled in the beginning of
1805. It appeared that at the same time the said John
667
1830.
668 GASES INT TH£ KING S BEIiTCU,
1830. Grubb wanted to raise « sum of money, for which purpose a general fall of timber was made upon his other estates, 89 well as upon the estate in question. He himself ac* companied the surveyors employed to mark the timber io- tended to be cut down, and the same, including that taken from the estate in question, was afterwards sold by aujptioo. About the same time, by order of the said John Grubb, a valuation was made of his propertyi in which the estate in question was included. After the death of the said John Grubb, the father of the lessor of the plaintiff, Mr* Tindal, as agent of the lessor of the plaintiff, addres- sed and sent a letter to William Cowdery, the tenant, of which the following is a copy:*-^
" Aylesbury> June 18, 18 IS. ** Sir, — As Captain Grubb has employed me to collect all moneys due to his late father, I have to request that you will call on me and pay the arrears of rent due to the late Mr. Grubb, and that you will at the same time bring with you the last receipt for rent.
(Signed) Thomas Tindal. (Addressed) " Mr» William Cotadery, Little Horsenden.**
In answer to which, Mr. Tindal received a letter, of which the following is a copy : —
'* Bledlow, June 26, 1813. '* Sir, — In consequence of having received a letter from you as yesterday respecting the rent of Little Horsenden estate, by the desire of my father I have to inform jou, that his connection as a tenant with the late John Grubb, Esq. has ceased for several years, and that he now pays his rent to his brother*
(Signed) William Cotodiery, junior. (Addressed) ** T. Tindal, Esq. Aylesbury, Bucks."
This letter was signed by the son of the said William Cowdery, the tenant, who wrote, signed, and sent it to Mr.
£AST£R TERM, XI GEO, IV. 669
Tindal, by the direction and tinder the authority of his i$3o« father. In 1814s the present lessor of the plaintiff com- menced an action of ejectment^ for the recovery of the pre- mises in question. The declaration in that action, with the usual notice to the tenant to appear and pleads was Grvbb. served upon William Cowdery, the tenant in possession^ who did not appear thereto; but Edward Grubb, the father of the present defendant, as landlord, entered into the common consent rule, and pleaded the general issue*
In this action, which was sent down for trii^I at the spring assizes, 1814, the re^cord was withdrawn.- In Janu- ary, 1820, the lessor of the plaintiff served a new declara* tion in ejectment upon the said William Cowdery, the tenant in possession, with the usual notice to appear and plead, the demise being laid on 1st May, 1813, in the name of the present lessor of the plaintiff. The notice at the foot of the declaration required the tenant in posses- sion to appear in the then next Hilary term. To this de- claration the tenant in possession did not appear, where- upon a rule for judgment against the casual ejector was obtained, but John Grubb, the elder brother of the present defendant, appeared as landlord, entered into the common consent rule, and pleaded the general issue. The pro- ceedings in this ejectment were delayed in consequence of a suit in equity, and in 1825, the then defendant John, the elder brother of Edward, the present defendant, died abrdad, on which, under a rule obtained in the last-men* tioned action, Edward, the devisee of his brother John, appeared as landlord, entered into the common consent rule, and pleaded the general issue, and was made defend*^ ant in the place of his brother, whereupon issue was joined ; and by an order of Holroyd, J., dated 28th February, 1828, it was ordered that the said issue should be entitled as of Hilary Term, 1820, and that an imparlance should be entered up to the time of the plea of the said now Edward Grubb; whereupon the said last-mentioned issue was amended accordingly, and carried down for trial.
670
1830.
CASES IN THE KINO S BENCH,
At the trial before Garrow, B.» evidence was given, on the part of the lessor of the pi a Ir tiff, of the above-men- tioned acts of ownership, and of the sending of the letter above set forth to William Cowdery^ and of the answer thereto. On the part of the defendant, it was objected, that by the demand and receipt of rent in 1804, John Grubb, the father of the lessor of the plaintiff, had ac- knowledged fVilliam Cowdery to be his tenant, and that such tenancy not having been determined by any notice tu quit, an ejectment could not be maintained on the demise Isiid in the declaration; and, further, that the lessor of the plaintiff was barred from bringing any ejectment in this case, for that his ancestor, the eldest son of the purchaser, had not made a sufficient entry within the time prescribed by the statute of limitations. The learned judge resened these questions, and left the case to the jufy upon the evidence on both sides. If the jury thought there was an adverse possession on the part of the defendant*^ ancestor which defeated the present lessor of the plaintiff of his title, then to find for the defendant; if not, for the plaintiff. The jury found a verdict for the plaintiff. The case was now argued by
Taunton, for the lessor of the plaintiff. First, there was a sufficient entry by John Grubb, \ht father of the lessor of the plaintiff, to take the case out of the statute of limi- tations, and to prevent the defendant from setting that up as a bar to the action. John Grubby the purchaser of the estate, and the grandfather of the lessor of the plaintiff, died in 1790; upon his death, the estate descended to John Grubb, the father of the lessor of the plaintiff; and it is to be contended on the other aide, that between 1790 and 1810 there was no sufficient entry by him. Now, in the first place, it appears upon the special case that die question of adverse possession was left to the jury; and it was properly so left, for it is a question of fact; Doe deffl>
EASTER TERM, XI GEO. IV. 671
Thompson v. Clark {a)\ therefore the Court will not dis- isso. turb their finding. But in the second place, admitting that this question is not concluded by the finding of the jury, but is now open to discussion, there still appears upon the special case enough to shew that John Grubby the father of the lessor of the plaintiff, died seised of the estate; for it is stated, that in 1804 he claimed and re- ceived a half-year's rent, which was an acknowledgment of his title by the tenant, and that in 1805 he cut down tim- ber, which was a clear and unequivocal act of ownership by himself. Secondly, no notice to quit was necessary. To this objection, as to the former, there are two answers. First, the defendant is not entitled to insist upon the necessity of a nutice to quit, because he defends as landlord, that is, as land- lord of the tenant in possession, and he cannot say that the lessor of the plaintiff was bound to give notice to quit to his, the defendant's tenant. Secondly, if Cowdery had de- fended as tenant, he could not have insisted upon the ne* cessity of a notice to quit, because he, in 1813, disclaimed holding under the lessor of the plaintiff, and the authorities are express to shew that when the tenant does any act M'hich amounts to a disavowal of the title of the lessor, no notice to quit is necessary; Doe dem. Calvert v. Frowd{b), It may, perhaps, be urged, that as the letter, from Cowdery, relied upon as a disclaimer, was dated in June, 1813, and the day of the demise in the declaration is laid earlier, namely, in May, 1813, the disclaimer is too late to support this action; but it will be observed, that the letter states that Cotcdery's connection as tenant with the lessor^s family had ceased for several years, thus carry*
(fl) 8 B. & C. 717. And see Gow's N. P. C. 195; Doe dera.
Doe dem. Jackson v. WUkifison, 5 Clun v. Clark, Peake's Add. Cas,
D. & R. 273; 3 B. & C. 413. S39. Sec also Rogers v. Pitcher,
(6) 4 Bingh. 557; 1 M. & P. 6 Taunt. SOS; 1 Marsh. 541; and
480. And see Doe dem. Williams Doe dem. Dillon v. Parker, Gow's
V. Pasquali, Peake's N. P. C. 196; N. P. C. 180. Doe dem. Jefferies v. WhiUick,
672
1830. ^^^/-^
Doe
rf.
Grubb
V.
GnuBA.
CASES IN THE KING S BENCH,
ing tbc disclaimer back to a period long antecedent to the day of the demise.
FoUetl, contri. The finding of the jury respecting an adverse possession cannot be regarded as conclusive upon the defendant, because it appears that the learned judge had reserved that point for the opinion of the Court, as matter of law, before he submitted that, or any other point in the case» to the consideration of the jury, as matter of fact. The question* therefore* whether the an- cestor of the lessor of the plaintiff ever made a sufficient entry to prevent the operation of the statute of limitations, still remains open; and it is submitted that he neier did. The case of jDoe dem. Thompson v. Clark (a) has no bearing upon the present, because the question there was, not whether a sufficient entry had been made, but whether the relation of landlord and tenant had always existed : here the question is, whether the father of the lessor of the plaintiff made a sufficient entry between the years 1790 and 1810. It i» said that the demand and re- ceipt of rent in 1804, and the cutting of timber in 1805, amounted to an entry. The first is clearly not suffident, because it does not appear in what character that rent was paid and received by the two parties. The second, even if it constituted an entry, is still not sufficient, because it was not followed up by any ulterior proceeding. Now bjr statute 21 Jac. l,c. 16, s. 1, no person shall make any entry into lands but within twenty years next after his right or title which shall first descend or accrue to the same; and by statute 4 & 5 Ann, c. l6, s. 16, no entry shall be suffi- cient within the former statute, unless upon such entry an action shall be commenced within one year next after the making such entry, and prosecuted with effect. [Bayley^J- The acts done in this case were not a mere entry, but taking part of the profits.] Still, as the party making the
(a) 8 B. & C. 717.
EASTER TERM, XI GEO. IV. 673
entry did not continue in possession, he ought to have fol- 1830.
lowed up his claim by an action. Secondly, supposing the possession not to have been adverse, and that a tenancy subsisted, there ought to have been a notice to determine that tenancy before ejectment was brought. It was part of the case made by the lessor of the plaintiff, that Cowdery was his tenant: without that he clearly could not have re- covered; and Cowdery^a tenancy never was determined. It may be admitted that the letter from Cowdert/ was a disclaimer, but that will not assist the plaintiff's case. The plaintiff is bound to make out a clear title subsisting on the day of the demise laid in his declaration. Now the day of the demise was in May, 1813, and the letter was written in the following June; therefore it operated as a disclaimer only from a time subsequent to the demise, for a disclaimer cannot operate by relation back to a time already gone by.
Taunton, in reply. Was there ever an adverse posses- sion for twenty years? That is the real question in this case. It is clear that there never was. When Edward Grubb, the purchaser of the estate, and to whom Cowdery was tenant, died, the reversion passed to John Grubb, the father of the lessor of the plaintiff, as heir at law. If the younger brother had then entered, which, however, he did not do, even that would not have been an adverse posses- sion; for '* where a person dies seised in fee, leaving two sons, if the younger brother enters he does not enter to get a possession distinct from that of the elder brother, but to preserve the possessions of the father in his family." (a) On the other hand, the acts done by John Grubb, the elder brother, in receiving rent and cutting timber, were suflScient to constitute a possessio fratris, or a seisin to support a fine. Then the possession of Cowdery was the possession of John Grubb and of the lessor of the plaintiff until the disclaimer; and though the letter declaring the dis-
{fi) Giib. Ten. 28. VOL. V. X X
674 CASES |N THE KINO's BENCH^
1830. claimer could not, strictly speaking, operate by relatioo back, still it was evidence of a prior disclaimer, aDd sup- ported the action.
FoUett, The entry by the younger brother, mentioned by Gilbert, C. B., is meant to refer to the case where there is a possession vacant on the death of the ancestor. In this case the possession never was vacant, for^ there being always a continuing tenancy, the elder brother became seised immediately on the death of the father. . But there was a subsequent attornment by the tenant to the younger brother, the effect of which was to disseise the elder bro- ther^ And to create a possession adverse to him. Co, UtU £42; LfVr. ss. 396, 397.
Lord Tbnterden, C. J.— I am of opinion that the lessor of the plaintiff is entitled to recover. The acts done by the different parties between the period of the ances- tor's decease and the year 1804, were all of an equivocal nature. The receipt of rent by the younger son, may have been on behalf of his elder brother, or may have been on his own behalf, claiming adversely. But in 1804, there were acts done of a decisive and unequivocal character, for in that year the elder brother demanded and received rent from the tenant, and not only made an entry upon the land, but was allowed to mark and cut down trees, which he afterwards sold for his own benefit. These were acts done by a person claiming to be landlord, and the submission to them by the tenant was an acknowledgment on his part of the title of the claimant. Then, if the elder brother was landlord in the year 1804, what has there occurred since to alter his character, or to devest his estate? The defence to the present action is made by a person claiming under the younger brother, and aa landlord. In that cha- racter it is clear that he has no title. Then he claims a right to defend under Cowdery, the tenant. In setting up that defence the defendant adopts the acts of Cowdery as his own, and whatever would be evidence against QnC"
EASTER TERM, XI GEO. IV.
dety, 18 evidence against the defendant. Against Cowdery there is bis own letter of June, IQ\3, in which he does not say that he never was connected with John Grubb as his tenant, but that the connection between them had ceased for several years. If so, it must have ceased before May, 1813, the date of the demise, and then that disclaimer is sufficient to entitle the lessor of the plaintiff to recover.
675
1830.
Bayley, J. — I entirely concur with my lord in the view that he has taken of this case. When Edward Grubb, the purchaser, died in 1790, Cowdery was in possession of the estate, which then descended to John Grubby the father of the lessor of the plaintiff. From that time John Grubb was entitled to the rents, but for many years he did not receive them; they were paid to Edward Grubb, his younger brother. In what character Edward received them — whether as agent, or for his own use, either ad- versely to or by permission of John — did not appear. In the absence of evidence upon the subjlect, are we bound in point of law to say that such receipt of rent was adverse? I think not. Was there any evidence to that effect? There was none. Then in 1804, John demanded and re- ceived half a year's rent from Cowdery the tenant, the legal effect of which would be to remit him to his original right, and to make Cowdery become his tenant again, if he had previously renounced him as landlord. No complaint was made by Edward of that payment of rent to John, and his acquiescence in such an act may fairly be regarded as evidence of an acknowledgment by him that his previous receipts of rent were by the permission or as agent of John. Then the cutting down and disposing of the timber by John in 1 805, was a clear act of ownership by him, which, coupled with the previous demand and receipt of rent, en- tirely removed the case out of the operation of the statute of Anne, which applies only where there is a naked entry or claim, without any receipt of the rents and profits. With respect to the other point, I think it clear that Cowdery^s
XX 2
CASES IN TH£ KING S BENCH,
letter of June, 1813, was not only a- disclaimer then, but evidence of a previous disclaimery as, in an action of trover, a present refusal to deliver is evidence of a previous con- version; Morris y. Pvgh(a),
Little DA LB, J., concurred.
Parke, J., having been of counsel in the cause^ gave no opinion.
Postea to the plaintiff.
(a) 3 Burr. 1«42.
The King v. The InhabiUnts of St. Nicholas, Hereford.
The office of T WO justices, by their order, removed Sophia Halh
man for a dty ^^^^^9 ^^^ her six children, from the parish of St. Peter to
18 a public the parish of St. Nicholas, both in the county of Here-
within the ^^^^ \ which order the sessions on appeal confirmed,
"to*°'°3 &^* subject to the opinion of this Court upon the following
W. 4- Jf. c. case : —
cuiionV*^ TAonkw Hall deceased, the husband of Sophia HaU,\hs
which for a pauper, gained a legal settlement in the parish of St. Nicbo-
forty days* re- ^^^f Hereford, by renting a tenement. He quitted that
sidence within house on the 23rd of November, 1827, and lived inlhc
confer a'settle- parish of All Saints, Hereford, till the 23rd of June, iSSBi
ment; and if ^ij^,, j,g removed to St. Peter, Hereford, and resided in
the aty con- , .
tains several that pansh till the time of his death, the 29th of Decemberi
pllrt?«e?ut- ^^^^' ^° Monday the 2nd of October, 1826, he was ap-
ine the office pointed by the corporation of Hereford to the annual
in that parish P^hlic office of town crier and bellman for the citj of
in ^hich he Hereford, and was also sworn in a constable of the cilj of
during the last Hereford. He was re-appouUed and re-sworn on the 1st
forty Says of ^f October, 1827, and the J 6th of October, 1828, and be his execuUon » ■ # j 7
of the office, execute^ the office of town crier and bellman in the city of Hereford, of which the pansh of St. Peter forms a part,
EASTER TERM^ XI GEO. IV. 677
from the time of his first appointment on the 2nd of Octo- 1830. ber, \S26f up to the time of his death, on the 29th of December, 1828. He was also liable and ready to exe- cute the office of constable, when called on, but never had Jn^»«|>»tant8 of
' ^ St. Nicholas,
acted as constable. There were other persons sworn in. Hereford.
as constables, who acted as such in the city. Thomas Hall resided forty days and upwards, namely, from the 2drd of June, 1828, to the 2gth of December, 1828, in the parish of St. Peter, Hereford. The question for the opinion of this Court was, whether the residence of Thomas Hall in St. Peter's parish, for forty days and upwards, while exe- cuting the annual public office of crier and bellman in all the parishes in the city of Hereford, namely, from the 23rd of June, 1828, to the 29th of December, 1828, was suffi- cient to gain a settlement. If it be, his widow, Sophia Hall, and family, have gained a settlement in St. Peter's parish; but if that residence be not sufficient, their settle- ment is in the parish of St. Nicholas.
Justice, in support of the order of sessions. No settle- ment was acquired in the parish of St. Peter, by executing the office, for two reasons ; first, because the party did not reside a whole year in that parish while executing the office; and, secondly, because his residence there com- menced after he had entered upon the office. Mr. Nolan, in his observations upon this head of settlement, states that it has never been decided whether a residence for forty days in a parish in which an office is executed is sufficient to confer a settlement, or whether the party must reside during the whole year; and he seems to doubt whether the appointment to the office should or should not be prior to. the party's coming to reside in the parish (a). It is sub- mitted that this species of settlement cannot be acquired Hnless the service of the office and the residence in the parish have been contemporaneous and co-extensive; that
(rt) 1 Nolan, 629.
678 CASES IN THE KING*S BENCH,
1830. the service and residence must begin and end together;
J^T^t^ ^^^^ both of them must be not only for one whole yeir, The Kino ^
V. but for one and the same whole year. The words of the
StI^nJcho^la^^ statute originating this kind of settlement (a), are, "If any HsREro&D. person wlio shall come to inhabit in any town or parish shalli for himself, and on his own account, execute any public annual office or charge in the said town or parish during one whole year, or shall be charged with and pay his share towards the public taxes or levies of the said tOM'n or parish, then he shall be adjudged and deemed to have a legal settlement in the same/' The plain import of those words is, that the person claiming the settlement roust come to inhabit in the parish before he enters upoa the office; that he must execute the office duriag one whole year; and that he must continue to inhabit in the same parish during the same one whole year. This ia the construction which has been given to that part of the statute which creates the settlement by payment of rates, with respect to which it was held, that a person residing in one parish of the city of Norwich, and being rated io an* other, did not acquire a settlement in either; Rex y. St. Michael at Thorn, Norwich {b). Why should a different construction be put upon the preceding branch of the same section? But, at all events, the residence in the parish must be co-extensive with the service of the office, if not concurrent with it. A year's service is expressly re- quired, and sOy impliedly, is a year's residence; for the words, '* during one whole year/' over-ride the whole sec- tion. Rex V. Liverpoolif) may perhaps be cited on the other side, where it was held, that if a church-yard lie in two parishes, the sexton may gain a settlement in the one in which he resides, although no part of the church lie within that parish. But that decision does not militate against the present argument, because there was in that
(«) 3 & 4 W,i^ M. c. IJ, 5. 6. (0 3 T. R. 118.
(6) 6 T. R. 5Se.
EASTER TEllM, XI GEO. IV. 679
case a year's residence in the parish. The requisites of the statute must be strictly complied with» Rex v. Holy CrosSf Westgate(d)p where it was held» that a pauper who had beeu irregularly dismissed from his office gained no St. Vxcholas, settlement. It may be matter of surprise that in the many Hbbefo&d. cases which have come before the Court respecting settle* ments by serving an office, this question has never yet been discussed and decided; but the circumstance may perhaps be accounted for upon the inference, to which certainly it strongly tends, that it has hitherto been uni- versally considered, that in order to constitute this species of settlement, the service and residence must be co«e3ttea< sive and concurrent.
Campbell and McLean, contrj^. The pauper acquired a settlement in St Peter's, for he did all that the law required of him for that purpose. He was duly appointed in Octo- ber, 1827, to an office, the duties of which were to be dis* charged in a district including the parish of St. Peter's; he executed that office for one whole year, and he resided in that parish forty days, part of that year; and the law re<* quires no more. A very brief review of the statutes bearing upon the subject will make this clear beyond all doubt. By the IS & 14 Car. 2, c. 12, any person coming to settle in a parish, and being likely to be chargeable thereto^ might be removed within forty days* But such person re- siding there forty days without being removed, thereby gained a settlement. Then the 1 Jac. 2, c. 17» s. 3, enacts, ** that the forty days' continuance of such' person in a parish, intended by the said act(&) to make a settlement, shall be accounted from the time of his or her delivery of notice in writing (which they are hereby required to do) of the house of his or her abode, and the number of his or her family, if be or she have any, to one of the churchwardens or over- seers of the poor of the said parish, to which they shall so
(a) 4 Bara. & Aid. 618. (6) 13 & U Car. 2, c. 1%.
CASES IN THE KING S BENCH,
Then the 3 W. fy M. c, 11, after eDactiog, by '£^^^^^Q 8« 3, that such forty days' continuance shall be accounted V. from the publication in the church of the notice, intro-
St. Nicholas ^"^^8, by s. 6, an exception to the operation of the pre- Hereford. ceding statutes; for by that section it enacts, "that if any person who shall come to inhabit in any town or parish^ shall, for himself, and on his own account, execute any public annual office or charge in the said town or parish, during one whole year, or shall be charged with and pay his share towards the public taxes or levies of the said town or parish, then he shall be adjudged and deemed to have a legal settlement in the same, though no such notice in writing be delivered and published, as is hereby before re- quired." By that enactment the legislature substituted the execution during a year of an office for the notice which was previously required to confer a settlement upon a per- son coming to settle in a parish. Now, in such a case, it is clear that a person coming to settle upon a tenement of the requisite value, would have gained a settlement by residing forty days after publication of the notice. Then s. 7 enacts, ** that if any unmarried person, not having child or children, shall be lawfully hired into any parish or town for one year, such service shall be adjudged and deemed a good settlement therein; though no such notice in writing be delivered and published as is hereinbefore required." By that enactment the legislature substituted the hiring and service for the notice in writing, and a party gained a settlement in a parish by residing forty days, pro- vided there was a hiring for a year; Brightwell v. WeUhaU ley {a). It is true that the 8 8c 9 W. 3, c. SO, s. 4, reciting that doubts have arisen touching the settlement of unmar- ried persons not having child or children, lawfully hired into any parish or town for one year, enacts, " that no such person, so hired as aforesaid, shall be adjudged or deemed to have a good settlement in any such parish or
(a) 2 Bott, 25 J.
. £A8T£R TERM, XI GEO. IV. 681
town, unless such person shall continue and abide in the laso.
same service during the space of one whole year; but ^. „
. . / . L , 1^ The Kino
even since the passing of that statute, where there has 9.
been a hiring for a year, and service for a year in several gU n*^*"ola different parishes, the party has always been held to be Hereford. settled in that parish where he resided the last forty days. Upon the same principle the pauper in this case having exe- cuted a public annual office for a year in several different parishes* must be held to be settled in that parish where he resided the last forty days of that year, namely, in the parish of St. Peter's. It is not necessary in this case that the appointment to the office should be subsequent to the coining to inhabit in the parish ; as it is not necessary, in the case of a hiring and service, that the hiring should be subsequent to the coming to inhabit in the parish: the same principle applies equally to both cases.
The case was argued on a former day in this term, when the Court took time for consideration. Judgment was now delivered by
Lord Tenterden, C. J., who, after recapitulating the facts of the case, thus proceeded : — Upon these facts the sessions were of opinion that the pauper's husband did not acquire a settlement in the parish of St. Peter's, Hereford ; we are of a different opinion — we think he did. The question turns upon the statute 3 8c 4 TF. 4r Af. c. 1 1, s. 6, which enacts, ** that if any person, who shall come to in- habit in any town or parish, shall, for himself and on bis own account, execute any public annual office or charge in the said town or parish, during one whole year, then he shall be adjudged and deemed to have a legal settlement in the same, though no such notice in Writing be delivered and published, as is hereby before required." Now the office of crier is undoubtedly a public annual office, within the meaning of the statute; it is not necessary that it should be confined to one particular parish : an office in a city con-
CASES IN TH£ KINGS BENCH,
taining several parishes will clearly confer a settlement j^^^Q By ^he statute IS & 14 Car. 2, c. 12, a party coming to settle V. in a parish gained a settlement by forty days' residence.
St. Nicholas ^^ ^^^ statute 1 Jac. 2, c. 1 7, s. 3, the forty days* continuance Hereford, in the parish intended by the former statute to makes settlement, was to be accounted from the delivery of a notice in writing of the house of abode, &c., to the churchwarden or overseer of the poor. The effect of that statute, therefore, was, to prevent a party from gaining a settlement until he had resided forty days after the deli- very to the parish officers of the notice thereby required. Then the statute 3 & 4 W. 3^ M. c. 11^ after enacting, by 8. 3, that the forty days* continuance in the parish should be accounted from the publication in the church of the notice in writing required to be delivered to the parish officers, substituted, by s. 6, the executing of a public annual office for the notice required in the case of coming to settle upon a tenement; and as in that case a party would be settled in a parish by residing there forty days after the publication of the notice, so, by analogy, he will gain a settlement by the execution for a year of a public annual office in any parish where he has resided for forty days. Here the pauper's husband did execute a public annual office in the parish during one whole year. He comes, therefore, within the very words of the statute, and it is a safe rule of construction to adhere to the words of a statute. But the seventh section of the same statute throws some further light upon this subject. It enacts, that if any unmarried person, not having child or children, shall be lawfully hired into any parish or town, for one year, such service shall be deemed a good settlement therein, though no notice in writing be delivered or pub- lished. Now, although the subsequent statute, 8 8c 9 ^« 3, c. 30, s. 4, requires that there shall be a service for a year as well as a hiring for a year, still it is clear that a party will gain a settlement by a year's service under a yearly hiring in that parish in which he has resided for the
£ ASTER TERM, XI GEO. IV. 683
last forty days; and it is immaterial in that case whether isso.
the pirty be hired before or after he comes into the parish, ^-^v-**^/
Again, therefore, by analogy, in this instance to the case of ^^
hiring and service, as in the former to the case of coming Inhabitants of ® , , , f St. Nicholas,
to settle upon a tenement, U seems to us that the pauper a Hereford.
husband having been appointed to his office before he came to reside in the parish of St. Peter's ; having exe- cuted that office for one whole year for that as well as the other parishes in the city of Hereford; and having resided in that parish for the last forty days of his execution of the oiBce, gained a settlement in that parish, namely, the pa« rishofSt. Peter's, Hereford. That being our opinion, it follows that the order of sessions must be quashed.
Order of Sessions quashed.
The King v. The Inhabitants of South Killingholme.
Upon appeal against an order of twojustices, for remov- a pauper
ing Richard Robinson and his wife and family from the pa- ^^^^ ^^^H
rish of South Killingholme to the parish of Elsham, both in 51. wages,
the parts of Lindsey and county of Lincoln, the sessions ^his'tmnt^'
quashed the order, subject to the opinion of this Court on who occupied , - ,, . six acres of
the followmg case :— land, and kept
The respondents proved a primi facie case of settle- ^^° ^^^!^ * , ■^ "^ , "^ when his aunt
ment in the appellant parish of Elsham. The appellants had no work
then proved that the pauper, in 1823, being unmarried, [o'^j^il^kforr^
and without child, hired himself for a year, at 5L wages, bpdjr else for
and 5s. earnest, to his aunt, who resided in a third parish, ^^ . ^]^\^ \^ qqs
North Killingholme, and occupied six acres of land and a hiring for a
, yoar, but an
kept two cows there : when his aunt had no work for eiceptive
him, be was to work for any body else for his own benefit, ^-^undef i^*^
The pauper entered the service, resided, and worked with confers no
his aunt during the whole year, except that in harvest time ^^^ ^™^"
he worked for a fortnight with another person at 2s. a day,
which he received for his own benefit, sleeping every night
684 CASES IN THE KINg's BENCH^
1830. at his aunt\ and doing all the work she had for him to do
.^^^^^""^ every morning before he went to work, and generally in the The Kino \ ^ ®^ ^ , . i tt
^. evening when he returned, unless it was too late* tie re-
Inhabitants of ceived his wages at the expiration of the year- The next LiNOHOLME. year he was hired to another master at 9/. wages.
- N. iJ. Clarke and Whitehurst, in support of the order of sessions. In Rex v. Chertsey (a), the pauper went to li?e with her father to do the offices of a servant for a year, for which she was to have her board and lodging, and such profit as she could make by. keeping fowls, and what she could earn by her own labour ; and if that did not produce as much as she got in her former place, her father was to make up the difference ; and that was held to be a good hiring for a year, service under which conferred a settle- ment. That case is expressly in point with the present; and it has never been overruled. Indeed the facts of this case are stronger in favour of the settlement than were those of the case referred to. The parties there clearly contem- plated from the first that there would be intervals m the course of the year during which the father would not re- quire the services of the daughter, for be expressly limited the wages he was to give her to such an amount as, in ad- dition to her own earnings, would be equivalent to her wages in her former place. Here the wages agreed for were fixed and certain, and the aunt might have insisted upon the pau- per's serving her during the whole of every day in the year, for it was only when his aunt had no work for him that he was to work for any body else for his own benefit. If, while he was so working for somebody else, any. thing had occurred upon his aunt's fisirm which required his attendance, he could not have withheld it. The aiint*s title to his ser- vice was paramount to that of every other person ; and the case finds that in fact he did serve her during the whole yiear, which must mean every day in the year, except one fortnight when he harvested for aiuother person, and that
(«) 2 T. R. 37.
EASTER TERBI, XI GEO, IV. 686
during that fortnight he did all the work which his aunt had i830. for him to do, either in the morning before he went out, or JiT'^^^ in the evening after he returned home. The cases that p.
will probably be cited on the other side are all materially Inhabitants of distinguishable from the present. In Rex v. Edgmond {a), linoholme. which was relied on at the sessions, the hiring was at weekly wages, and " the agreement/' as jibbott, C. J. observed, "contained in substance an engagement to work only during certain hoiirs of the day." That case, therefore, can have no bearing upon the present. In Rex v. Po/esworth (6), the agreement was to serve for three years, at one shilling per day when the master had work to do, and when he had no work the servant not to be paid. There the wages were daily, and were to be paid only when the servant worked. Here the wages were yearly, and were to be paid whether the servant worked or not. There the master told the ser- vant expressly, at the time of the hiring, that he should not have work for him all the year round, particularly in the winter, and that when he had not work for him, he might get work from other people. Here the aunt merely con- sented, as matter of indulgence, that if it should happen that she had no work for the pauper, he might work for other persons. There the ground of the decision was, as stated by Abboli, C. J., that the master had the control over the servant only so long as there was work for him ; as soon as there was no work, the servant ceased to be under the control of the master, and was at liberty to get work elsewhere. Here the control of the aunt over the pauper never ceased ; she retained it during the whole year, and throughout every day in the year, though she might, if she chose, occasionally dispense with his services. In Rex v. Lydd (c), the pauper was hired for three years at 20/. a year, in the capacity of a looker, his master expressly telling him, at the time the contract was entered into, that he did
(a) 3 Barn. & Aid. 107. (c) 4 D. & R. 295; 2 B. & C.
(6) 4 D. & R. 358; 2 B. & C. 754; 2 D. & R. Mag. Ca. 205. 715; 2 D. & R. Mag. Ca. 202.
CASES IN THE KING S BENCH,
not think he should have full emplojoient for him; he
rpT^C^ served three years^ during which time he did other work for
V. his master, who paid him for it extra by the job, and he
South Kil- ^''^ worked for another master as looker when his leisure
LiNGROLME. suited. It wds held that the pauper did not acquire a setde-
ment, and upon the same principle already adverted to, for
Abbott, C. J. said, '^ It is quite evident from the facts of the
case, that Mr. Fisher (the original master) never stipulated
for^and in point of fact never had the control over the pauper,
or the right to his entire service, for one whole year." Upon
the whole, therefore, it seems clear that the sessions were
correct in thinking that the pauper in this case had acquired
a settlement by hiring and service in the parish of North
Killingholme.
Clinton and Hildyard, contrd. No settlement can be acquired in any case by a hiring and service, uuless the con- tract between the parties is such as to give the master the absolute control over the servant during the entire period of service. This is a well-established rule of settlement law, the application of which to the present case at once shews that no settlement could be acquired by service under the hiring in question. The language of Abbott, C. J. in Rex V. Lydd (a), just referred to, is expressly suited to the present case, for the mistress here never stipulated for, and in point of fact never had, and, it may be added, by the very terms of the contract never could have, the control over the pauper, or the right to his entire service^ for one whole year; the pauper was bound to serve her so long only as she had work for him. That case and Rex v. J&%- mond (fi), and Rex v. Polesworth (c), are all expressly in point As to Rex v. Chertsey (d), the only case cited on the other side, it is to be observed that the prmcipai ques- tion there discussed was, whether a child could acquire a
(a)4 D. & R.«95; 2 B. & C. (c) 4D.&.R.998; 9 B.&C.
754; « D. & R. Mag. Ca. S05. 715 ; 9 D. & R Mag. Ca. 203.
(b) 3 Bam. & Aid. 107. (<0 2 T. R. S7.
EASTER TERM, XI GEO. IV.
settlement by hiring and service with its parent. The deci- sion in that case upon that point has been supported hy .^ j. subsequent cases, and so far it may be considered as law ; 9.
but if upon other points that case militates against the more gJ^TR Ki\- modem authorities, and especially those now relied on, linoholmb. it cannot be deemed, when opposed to them, of any weight. There is another view of the present case in which the set- tlement cannot possibly be supported ; for according to the distinction drawn and the rule laid down in Rex v. Byher (a), which was very fully considered, the hiring here must clearly be regarded as an exceptive hiring.
Lord Tentekden, C. J. — There are decisions for and against settlements of this particular kind, which it is cer« tainly not easy to distinguish from each other ; but it appears to me upon the whole, that the present case comes nearer in its facts to Rex v. Edgmond (6), Rex v. Polesworth (c), and Rex v. Lydd {d), than to the earlier cases upon the same subject. Looking at all the terms of this contract, I cannot help thinking that the parties must have contem- plated some portions of the year when the aunt would not have employment for the pauper. If that were so, the cou- tract did not extend over the whole year, but over such parts of it only as she might have employment for the pauper, which was not a hiring for a year.
Bay LEY, J. — ^It seems to me that the fair meaning and effect of the contract in this case was, to limit the service of the party hired, to that portion of the year during which the party hiring might have occasion for it; and in that view of it, it is impossible to say that it amounted to a hiring for a year.
(a) 3 D. & R. 330; 8 B. & C. 715 ; 3 D. & R. Mag. Ca. 902.
114 ; 3 I>. & R. Mag. Ca. 15. {d) 4 D. & R. 995; 3 B. & C.
(5) 3 Barn. & Aid. 107. 754; 2 D. & R. Mng. Ca. 205. (c) 4 I>. & R. 258; 2 B. & C.
The KiMO
V.
CASES IN TH£ KINGS BENCH, LlTTLEDALE^ J. CODCUrred.
Parke, J. — If the meaning of the words used by these Inhabitants of parties, when contracting, be taken to be, that the aunt, during LivoHOLMB. any portion of the year when she did not need, or did not chuse to employ the pauper, might decline doing so, the contract of hiring was not for a year. Construing those words according to their natural import, I think that was their fair meaning, and that this was an exceptive hiring. Rex V. Cherisey {a), was decided upon a different ground. The pauper there was hired for a year, and was to *' have her board and lodging, and such profits as she could make by keeping fowls, and what she could earn by her own la- bour;" and the latter words were considered by AshursifJ* and Grose, J. to give her liberty to do such work on her own account as she could do consistently with the service which she was in the first instance bound to render to her master. I see nothing in that decision inconsistent with the present.
Order of Sessions quashed.
(fl) 2 T. R. 37.
The King V. The Inhabitants of Upton Gbay.
A parish certi- i^Y an order of two justices, 7". Woodman, his wife and duc^^ fn^an children, were removed from the parish of Upton Gray to appeal, bore
dace in April, 1748, and purported to be signed by two churchwardens and two OTer> seers. It appeared by the parish books, that in May, 1747, five overseers hadl>eeD ap- pointed, two of whom had signed the certificate. By an indenture of parish apprentice- ship, dated in October, 1747, it appeared that the same five persons were at that time overseers, and that four persons were at the same time churchwardens, two of whom bad signed the certificate ; and by the parish books, in July, 1748, that five overseers were again appoioted,and that four churchwardens had been regularly chosen from 1683 to 1829. By the visitation books for 1746, it appeared that four churchwardens were then sworn in; thosefor 1747 were lost; but by those for 1748 it appeared that in September in that year four churchwardens were agam sworn in, hut that in about a dozea instances between 1683 and 1829, less than four churchwardens had been sworn in. Held, that tlie sessions were not bound to presume, even for the purpose of giving effect to so ancient a docu- ment, either that there had been a new and valid appointment of overseers between October, 1747, and April, 1748, the date of the certificate; or tliHtat that date less than four churchwardens were sworn in : and that they were, therefore, right in rejecting the certificate as invalid.
EASTER TERM, XI GEO. IV. 689
the parish of Bishop's Waltham, both in the county of i8do.
Southampton. On appeal, the sessions quashed the order, S^^^"^^ . . . ' . ^ * , r ,. . The KiMo
subject to the opinion of this Court upon the following 9.
Q^^Q I Inhabitants of
Upton Gray. A certi6cate was produced bj the respondents, from the
parish chest of their parish, signed by tvio churchwardens and two overseers of the parish of Bishop's Waltham, dated the l6lh April, 1748, by which it was acknowledged to the former parish, that Peter Woodman, the great grand- father of the pauper, was legally settled in the latter parish. The certificate had never been discharged, so far as it re- gards the pauper. On the part of the appellants it was proved, from the parish books of Bishop's Waltham, that on the 17th of May, 1747, five overseers were appointed by and for the said parish ; their names were Harris, Edtoy, Vernon, Stares, and Cowdery, of whom Harris and Cowdery signed the above certificate, dated the l6th of April, 1748. In an indenture of parish apprenticeship, dated the 24th of October, 1787, it was recited, that at that time the said five persons, namely, Harris, Edxvy, . Vernon, Stares, and Cowdery, were overseers, and that at the same time four persons, named Homer, Barefoot, Hellyer, and Wateridge, of whom Homer and Wateridge signed the above certificate, were churchwardens of the parish of Bishop's Waltham. It was also proved on the part of the appellants, from the parish books, that a church rate for the said parish, for the year 1 747, was signed on the 8th of May, 1748, by four churchwardens, whose names were there stated to have been Homer, Barefoot, Hellyer,VLnd Wateridge. It was also proved on the same part, from the same books, that on the 8th of July, 1748, five overseers were again appointed for the same parish, whose names were there stated to have been Lacy, Parker, Troid, Edwy, and Suett. It appeared also from the same parish books, that from the year 1633 to the year 1829> four churchwar- dens had been regularly chosen every year for the said
VOL. V. Y Y
690 CASES IN THE KING's BENCH,
1830. parish. By the proper visitation books for I746jtwa8 r^\^ proved that four churchwardens were sworn in for the V. parish of Bishop's Waltham, for the year ensuing the date
Upton^Gr* ^^ ^^ ^^^^ swearing in. The visitation books for the year 1747 were lost. By the visitation books for 1748, it was proved, that on the 19th of September, 1748, four church- wardens were sworn in for the said parish, for the year en- suing that date. By the same books it appeared, that in twelve or thirteen different years, between the years l63S and 1829} four churchwardens had not been sworn in for the said parish ; but that in those instances less than four had been sworn in. It was contended on the part of the appellant parish, that, under the circumstances above stated, the certificate granted by the appellant pariah was void, it having been signed by two out of five overseers, whose appointment as overseers was void as to all, inasmuch as by the statute 43 Eliz. c. 2, s. 1, not more than four over- seers can be appointed, and on the ground that the majo- rity of the parish officers had not signed it. On the part of the respondent parish it was contended, that after so long a period, being more than eighty years, any possible case by which the certificate might be supported ought to be presumed. Hence, as it might be presumed, either that a new and valid appointment of Cowdery and Harm as overseers had been made for the appellant parish in the interval between the 24th of October, 1747, when it is recited, as above, that there were five overseers, and the 19th of April, 1748, the date of the certificate; or that at that date there were not four churchwardens sworn in; in either of which cases the certificate would be signed by a majority of the parish officers : such presumption should now be made.
Sclwyn and Ponlter, in support of the order of sessions, were stopped by the Court, who desired to hear
Dumpier and Sir George Grey, contri. Every possible, or
The KiMO
V.
EASTKR TERM, XI GEO. IV. 691
at laast every reasonable intendment ought to be made in isso. favour of a document so ancient as the certificate in this case. Now it is possible^ and does not seem unreasonable after a lapse of more than eighty years, to presume that inhabitants of there was a re-appointment of four overseers between the 24th of October, 1747, and the 19th of April, 1748, or that at the latter period two churchwardens only had been sworn in. Rex v. Catesby (a), and Hex v. Whitchurch {b), stem abundant authorities for making such a presumption under such circumstances. It is true, the presumption which is asked to be made in this case is one of fact and not of law ; nevertheless it may be made, and therefore in such a case ought to have been made, even though the pro- babilities may be against the existence of the fact necessary to render the certificate valid. In Hillary v. Waller (c)j where the question was whether a conveyance of a legal estate ought to be presumed, Sir W. Grant, M. R. saidj that the ground upon which such presumption proceeded was, that what ought to have been done must be presumed to have been done; and that the presumption does not always proceed upon the belief that the fact presumed has acCually occurred ; for that grants are frequently presumed| as Lord Manffield said in Eldridge v. Knott {d), merely for the purpose and upon the principle of quieting possession.
Bayley, J.(e) — ^This case appears to me too plain for argument. It is an attempt to carry the cases of Hex v. Caiesby (f) and Rex v. Whitchurch (g) to an extent at once cforeasonable and absurd. In the latter of those cases the certificate described four persons as churchwardens and
(a) 4 I>. & R. 434; 2 B. & C. (0 Lord Tenlerden, C. J., was 614 ; 2 I>. & R. Mag. Ca. 278. sitting at nisi prius at Guildhall.
(b) 1 M. & R. 473; 7 B. & C. (/) 4 D. & R. 434; 3 B. & C 57S; 1 M. & R. Mag. Ca. 167. 814; 2 D. & R. Mag. Ca. 278.
(c) 12 Vcsey, juo. 862. (g) 1 M. & R. 478; 7 B. & C.
(d) Cowper, 215. 673 ; 1 M. & R. Mug* Ca. 167.
Y Y 2
692 CASES IN THE KING's BENCH,
1830. overseers of the parish, but was signed by only three of ^'^"^'^"^ them ; by one Piper, as churchwarden, and by two others ^ as overseers. It was proved by the visitation books, that
Inhabitants of in the year 17^8 the two churchwardens were swora in ' after the date of the certificate, and it was therefore con- tended that Piper, the party who had signed the certificate as churchwarden, was not at the time churchwarden de jure, and therefore that the certificate was not binding upon the parish. It was further proved, that from 1751 to 1758 no churchwardens were sworn in ; but the parish who had granted the certificate had, from the year 1758, to the time when the order of removal was made, treated it as valid, for they had relieved the pauper while residing in another parish* The sessions having found in favour of the certi- ficate, this Court held, that it might reasonably be pre* sumed that Piper, after his nomination in 1758, and before he did any act as churchwarden, had gone to the commis- sary, and had been sworn into office before him ; and, under the circumstances of that case, such a presumption was not unreasonable, for it was not inconsistent with any other fact. In Rex v. Catesby {a), the certificate, which by law should have been signed by a majority of the parish oflScers, purported to be signed by only one churchwarden and one overseer; therefore, if there were two churchwardens and two overseers in the parish, that certificate was bad. The sessions having presumed in favour of the certificate, it was referred to this Court to say whether there could be any state of facts that would make it a valid certificate, and they decided that it might be valid on two grounds. By custom there might have been only one churchwarden in the parish, and the sessions might have presumed that only one was appointed : or, they might have presumed, that two overseers were originally appointed, and that one of them had died before the certificate was granted. Either
(a) 4 D. & R. 434; 2 B. & C. 814 ; 2 D. & R. Mag. Ca. 278.
EASTER TERM, XI GEO. IV. 693
of these would have been a reasonable presumption under isso.
the circumstances of that case ; but what is the state of ^"^^"C^ - , . . , , , , . The Kino
facts here i Are they such that we must say the sessions 9.
were wrong in refusing to make the presumption which Inhabiiimts of they were desired to make ? I think clearly not. It is admitted that the presumption is one, not of law, but of fact, which in an ordinary case it would foe for a jury to decide; but it is contended that a jury ought to make such a presumption, whether they believe the fact really to have existed or not : and a dictum of Sir William Grants in Hillary v. Waller (a), to that effect has been cited. From that doctrine I, for one, ever did and ever shall dissent : I would never sanction either a court or a jury in presuming that which they really believe to be contrary to the fact. Here the fact which we are called upon to presume is not only* highly improbable in itself, but is totally inconsistent with other facts which are proved to have existed about the same time. On the one ground, we are asked to presume, first, that the four churchwardens were not sworn in, which would be presuming that they acted in violationof their duty, when we ought rather to presume that they performed their duty; or, secondly, that one of them died, — a pre- sumption which, if to be made at all, ought to have been made by the sessions, and not by us. But the other ground is still more unreasonable. It is said, that there was a bad appointment of overseers, and that, therefore, we ought to presume a new and valid appointment of overseers before * the certificate was granted. Now it appears that in the very next year, a like bad appointment, namely, of five overseers, was again made; so that if we presume any thing, we must presume this — that the error in the number of overseers was discovered and corrected between October, 1747, and April, 1748, and yet that the old erroneous practice was again resorted to in October, 1748. I can
(«) 2 Ves.juii. 252.
694 CASES IS TH£ king's bench^
1830. see nothing in this case which warrants the presumption of
J^iT^^^ •ny fact necessary to give validity to this certificate, and I
y. cannot say that the sessions ought to have drawn from the
Inhabitants of fo^ts stated any of the conclusions^ which it has been insisted Upton Gkay. '^
they ought to have drawn. I am, therefore, of opraioa
that the order of sessions ought to be confirmed.
L1TTLBDALE9 J. concurred.
Parke, J. — I am of the same opinion. The doctrine attributed to the Master of the Rolls in the case oiHiUary v. Waller (fl) may be correct as applied to the particular subject-matter which had there been discussed before bim; but may be utterly inapplicable to the present and many other cases. A jury, probably, would be directed to pre- sume, after a long lapse of years, the reconveyance by trus- tees of a legal estate, without any specific evidence of the execution of a deed of conveyance — provided there was no fact in the case tending to rebut such a presumption : but that would be a very different case from the present, and here there are facts which rebut the presumptions which we are asked to make.
Order of Sessions confirmed,
(a) «Ves.jun. 852.
EASTER TERM, XI GEO. IV. 695
1830.
The King v. The Inhabitants of Blackawton.
On appeal by the churchwardens and overseers of the A notice of
poor of the parish of Whitstone, in the county of Devon, a^u/jt^^^^^^
against such parts of the county rate as affected that parish under 55 Geo.
and the parish of Blackawton, the sessions ordered the rate ^yji- either '
to be amended, in the manner hereafter mentioned, subject state in ex-
i_ •• i^ \ • r^ irii- P""®** terms
to the opmion of this Court upon the foltowmg case : — that the ap-
More than fourteen days before the entry of this appeal pe.ll*'"^*^ »g- ■' ^ •' '^^ gneved by the
at the Epiphany sessions, a notice, of which the following rate, or state
is an extract, was served by the appellant parish upon the ^hUih^rfoI-
churchwardens and overseers of the poor of the respondent lowsofoeces-
parish, upon the clerk of the peace for the county, and g^;
upon the hundred constables : — Therefore,
• I 1 • I 1 I 1 s"^h a notice
'' lake notice that vi^e the undersigned, the church- of appeal, stat-
wardens and overseers of the poor of the parish of Whit- '"S' *! ^^®
'^ / ground of ap-
stone, within the hundred of Wanford, in the county of peal, << that Devon, do intend to enter an appeal at the next general rate^s^un- quarter sessions of the peace to be holden at the castle of equal and de- Exeter, in and for the said county of Devon, against the ^uch as the
rate for the said county ; and that our objections to the said appellant pa-
. *' rish IS charged
rate, and our reasons for appealing therefrom, are, that the and assessed
said county rate is unequal and defective, inasmuch as our *"lj t ^^^^ ^\
said parish of Whitstone is charged and assessed in the said portion of the
rate at a higher proportion of the pound sterling, according according\o^'
to the fair annual value of the ratable property therein, than ^^^ fair annual
value of the ratable pn)pert^ therein, than the respondent parish is charged and assessed in the rate, in pruportion to the fair annual value of the ratable property therein," is defective and bad, for not going on to state in the words of the statute, <' than has been fixed and declared by the justices of the countv, in sessions assemliled, as the basis of the rate;*' for both parishes might have been valued too low, nnd yet the appellant parish might have no reason to complain with reference to the basis on which the whole rate was made.
And where, upon such defective notice, the sessions received evidence of the annual value of the ratable property in both parishes, and amended the rate by altering the assessment upon the two parishes according to the annual value so proved, but left the statement of the annual value of both to remain as before : — Held, that they had acted without authority, and that their order must be quashed.
Semble, that the sessions might have corrected an inequality in the valuation of the ratable property in the two parishes, if the notice of op{)eal had been so framed as to authorize them to receive evidence upon that subject.
696 CASES IN THE KING's BENCH,
3830. the said parish of Blackawton is charged and assessed in Th K ^"^^ ^^^^ ^" proportion to the fair annual value of the
V. ratable property in such parish."
BlackXtuv! **^'*® *^" fourteen days before the Easter sessions, a second notice, signed by the churchwardens and overseers of the poor of the appellant parish, was served upon the churchwardens and overseers of the poor of the parish of Blackawton, the clerk of the peace for the county, and the hundred constables. This notice recited the delivery of the former, and the entry of the appeal at the Epiphany ses- sions; it then recited, that at the said Epiphany sessions an application had been made to the Court to appoint certain persons to enter upon, go over, and survey the whole of the said parishes of Whitstone and Blackawton, for the purpose of ascertaining the fair annual value of the said parishes re- spectively, and of giving evidence thereof to the Court on the hearing of the said appeal, and that the Court refused to make such order, being of opinion that they had no au- thority so to do. The notice then proceeded as follows : — " Now we the undersigned, the churchwardens and over- seers of the poor of the parish of Whitstone aforesaid, do hereby give you this further notice, that we intend, at the next general quarter sessions of the peace, to be holden at the castle of Exeter, in and for the said county of Devon, to prosecute and try the said appeal against the said rate for the said county of Devon, upon the grounds and for the reasons set forth or mentioned in the hereinbefore re- cited or mentioned notice."
This notice then stated that the parish officers of Whit- stone had appointed two surveyors (who were named) to survey the property in their parish, as well as in that of Blackawton, chargeable to the county rate, in order to prove, at the trial of the appeal, the fair annual value at which the parishes ought to be respectively charged id the said rate ; and it required the parish officers and others of the latter parish to permit the said surveyors to survey their
EASTER TERM, XI GEO. IV. 697
premises for that purpose, aud called upon them also to i830. appoint surveyors on their part.
When these notices had been read, an objection was taken on the part of the respondent parish, that it did not appear gLrcKATTOM^ upon the face of the notices that the appellant parish was aggrieved by the rate; but the Court over-ruled that objec- tion, and directed the appellants to proceed. They pro- ceeded accordingly, and tendered the rate in evidence, for the purpose of shewing the sums at which the contending parishes were respectively assessed. The title of the rate was as follows : —
*^ Devon new county rate of 943/. I4s, S^d., being one farthing in the pound on the annual value of the county, amounting to 905,984/. \2s. 4\d., as returned by the several parishes in the county, pursuant to the 55 Geo. S, c. 5\f settled and approved of at Epiphany sessions, 1827, and then ordered to be printed."
The assessment in respect of the said parish of Whitstone was 3/. 35. 10^., on an annual value of 3064/. ; and in re- spect of that of Blackawton was 2/. Il5. 5r/., on an annual value of 2468/. The appellants then called as witnesses the two surveyors named in the second notice. They had accurately surveyed the appellant parish. The one valued the estates and ratable property within that parish at 3766/., the other valued them at 3680/. per annum. With regard to the value of the estates in the respondent parish, one of these witnesses, in the years 1824 and 1825, had been em- ployed to survey the greater part of that parish by two or three private individuals, with a view to the sale of some property therein ; and he valued the whole parish at 6315/. per annum. The other witness had surveyed the parish as well as he could, by riding through the roads and lanes which intersected it, and he valued it at 6952/. per annum.
No evidence being offered on the part of the respondentS| the Court took middle sums between those fixed by the two surveyors as the annual value of the respective parishes, and amended the rate by equalizing the assessments according to
698 CAS£S IN THE KlNO's BENCH,
18S0. the proportions of the sums so taken (but leaving the an«
-7^" nual value on the rate to stand as before), by reducing the
V. sum assessed on Whitstone to 2/. 1 Is, 4fd.f on an annual
Bi^r^o^^^ value of 3064/,, and by raising the sum assessed on Black-
awton to 3/. 1 5s. 1 \d,, on an annual value of 2468/.
The questions for the opinion of the Court were. First, whether the notice of appeal was sufficient? Secondlji whether the Court of Quarter Sessions had any power to make the amendment above-mentioned in the rate, and whether they should not have required the fair annual value of the respective parishes to be returned to them in the mode prescribed by the statute 55 Geo. d, c. 5 1 ?
Croivder and Escott in support of the order of sessions. The 6rst objection raised in this case is, that the notice of appeal is insufficient for not alleging in express terms that the appellant parish is aggrieved by the rate. There is in reality no ground for this objection, though it will be en- deavoured to be supported by two cases. Rex v. Justices of Essex (a) and Rex v. Justices of West Riding of Yorkr shire (h), which, however, have no application to the pre- sent, for they were cases of appeals against orders for di- verting and stopping up of roads, in which the statutes giving the right of appeal expressly required the appellant to state in his notice that he was aggrieved by the order appealed against (c). The clauses in the statutes giving the
(a) 7 D. & R. 658 ; 5 B. & C. either case exprtttly required ihe
431 ; S D. & R. Mag. Ca. 483. appellant to state io his notice
(6) 1 M. ft R. 547 ; 7 B. & C. that he was a party injured and
678; 1 M. & R. Mag. Ca. 215. aggrieved ; it confined the right of
(c) Which were, in the first case, appeal to persons injured and ag-
the former public Highway Act, grie?ed, and required them to give
55 Geo, Sy c. 8, s. 63 ; and in the notice in writing, without speci>
second a local and personal act, fying the contents of such notice:
6 Geo. 4, c. 3, to which the pro- and the Court held that, under
visions of the late public Highway those circumstances, it was neces-
Acts, S Geo. 4, c. 126, 4 Geo, 4, sary for the appellant to describe
c. 95, and 5 Geo, 4, c. 69, were himself in bis notice as a party
extended. It cannot exactly be injured and aggrieved, said that the appeal clause in
EASTER TERM, XI GEO. IV. 699
right of appeal in those cases differ from that which gives 1830. the right of appeal in this case in another respect also, for j^T^"^^ they do not require the appellant to set out in his notice the v.
grounds and causes of his appeal, nor do they specify any qj^^ck^Iwt^^ particular grounds of appeal. But the appeal clause in the statute bearing upon the present case (a) does specify se- veral grounds of appeal, and if the appellants have stated in their notice one of those, from which it must necessarily follow that they are parties aggrieved, though they have not in express terms alleged themselves to be so, it would seem, both upon principle and upon the authority of Rex v. Jus^ tices of Somersetshire {b), that they have done sufficient to satisfy the statute.
The second objection is, that the sessions had no power to make the amendment in the rate which they have made, altering the assessment, but leaving the statement of the annual value of the two parishes unaltered. The answer to this objection is, that all the clauses of the statute in which any reference is made to the annual value of the ratable property in the different parishes, relate to the power of the justices to make a new rate for the whole county, and not to the mode of their determining a question between two particular parishes in an appeal against particular portions of a rate. In a case of appeal, the office of the justices is really no more than this, — to ascertain the just amount of assessment upon the contending parishes, in pro- portion to the annual value of the property within the pa«
(a) 55 Geo, 3, c. 51, s. 14. cient, although it was not stated (h) 7 B. &C. 681, n. In that that the party intending to appeal case " a notice of appeal against was a rated inhabitant of the pa- fmerseen* accouniSy merely stating rish or a party aggrieved." It is that the party intending to try his to be observed, that the case pro- appeal against the accounts, on the ceeded upon the stat. 17 Geo. 2, grounds and for the reasons there- c. 38, s. 4, which, in the case of inafcer set forth, and then speci- ooerseeri accounts, gftve the right fying the items against which he of appeal to any person having ant^ intended to appeal, and the ob- material objection to the said ac- jectioo which he intended to make counts, upon giving reasonable no- to each item^ was held to be suffi- tice.
700 CASES IN THE KING's B£NCH>
18S0. rishes, and to make the rate conformable thereto, — ^^rhich
^]^ " precisely what has been done in this case. It will be
V. said on the other side, that where the question is, whether
Inhabitants of j|,g assessments have been made upon a just estimate of Blackawton. .
the value of the two parishes, or not, the justices ought to
require the churchwardens and overseers to furnish returns of the true value of their respective parishes, in the manner pointed out by the second section of the statute. It is difficult to imagine how such a proceeding could be productive of any beneficial result ; for if an appeal were brought upon the express ground that the value originally returned by the churchwardens and overseers was an incorrect one, the calling for a new return would be referring back the same question to the same parties against whose determination upon it the appeal was brought* It would be useless, there- fore, for the justices to call upon the respondents to make a new return of the value of the ratable property in their parish, and the appellants have no power to do so ; there- fore it would be impossible for them, and useless, as has already been shewn, if possible, to complain of the esti- mate of that value. It is tlie assessment on their parish by which the appellants are aggrieved, and their appeal, therefore, is properly made against that assessment
Praed and Kekewich, contrtL. No answer has been given to either of the objections arising in this case. First, the notice of appeal is clearly bad for not stating that the ap- pellants are aggrieved. They may be able to point out some inequality in the rate, or some objection to it founded upon one of the grounds of appeal enumerated in the fourteenth section of the statute ; but it does not therefore necessarily follow that they are aggrieved by that inequality, or by the existence of that ground of appeal. But the statute con- fines the right of appeal to such persons as have reason to think that they are, in other words such persons as are» aggrieved; therefore, upon the principle of the first two cases cited on the other side, it is incumbent upon the party
■ EASTER TERM, XI GEO. IV. 701
appealing, first, to state that he is, or has reason to think isso.
himself, aggrieved; and secondly, to shew the nature of ^^^'-'^
that grievance. Now here, the appellants do not state that ^,
they are aggrieved, and the facts of the case shew that they Inhabitants of ~ , . , , .. , , / Blackawton.
are not. it appears that the annual value of the ratable
property in the appellant parish is, according to the lowest estimate furnished by their own witnesses, 3680/. per annum. The assessment upon them assumes the annual value to.be only 3064/., and they are rated upon that value. Whatever, therefore, may be the assessments upon other parishes, they are not aggrieved, for they are under-rated ; the assess- ment on them ought, in any view of the case, to be higher than it is.
Secondly, regard being had to the ground of appeal stated in the notice, the justices clearly had no power to make the alteration, improperly called amendment, in the rate which they did. The ground of appeal relied on is, that the ap- pellant parish is rated at a higher proportion of the pound sterling, according to the annual value of their ratable pro- perty, than the respondent parish. Now the basis of the rate was one farthing in the pound upon the annual value of the several parishes in the county, and upou that scale these two parishes were assessed in regard of their annual value respectively, as returned upon oath to the sessions. There is therefore no inequality in the proportion of the pound sterling at which these parishes were assessed, and the appellants have failed in making out the ground of ap- peal stated in their notice : their ground of appeal should have been, that the value of the ratable property in the re- spondent parish was improperly estimated in the return, and was in fact higher than that upon which they were as- sessed : and. then, if that ground of appeal had been made out, the justices should first have ascertained the real value by ordering a new return, as they are empowered to do by the second section of the statute, and then altered the assess- ment in conformity with the real value so ascertained. That and the other sections of the act which relate to the calling
702 CASES IN THE K[KO*S BENCH,
1830. for and making of returns of the annual value, are not con- fined to the making of an entirely new rate, for they em- power the justices to call for such returns from time to Inhabitants of time, as often as they shall deem it expedient, and from such and so maHj^ p^riibes as they shall deem expedient; whereas, for the purpose of making an entirely new rate, they must have returns from every parish in the county : the object clearly was to give them the power to call for the returns for both purposes, — for the correcting inequalities in an assessment previously made, as well as for the making a new assessment for the whole county.
Bayley, J. (a). — I am of opinion that both the objec- tions raised in this case are valid, and that the order of ses- sions, therefore, must be quashed. Upon the first point I think that the notice of appeal ought either to state in ex- press terms that the party appealing is aggrieved, or ought to state that from which it follows of necessity that he b so. In this case the appellants, by their notice, have not brought themselves within any of the matters which are specified in the appeal clause of the statute 55 Geo. 3, c. 51, s. 14, as grounds of appeal. By that clause parties may appeal against the rate, first, upon the ground that the proportion assessed upon the respective parishes is unequal, that is, not unequal as between any two particular parishes by means of the ratable property being valued too high or too loWy but on the ground of general inequality, or of no fixed rule having been adopted in assessing the sums to be paid by the several parishes in the county. It is not pre- tended that this was the real ground of appeal in the pre- sent case. The second ground of appeal is, that some one parish has been altogether and without any just cause omitted from the rate. That was not the ground of appeal ^ here. Then follows the ground of appeal upon which the notice in this case seems partly, but not entirely or correctly, to have been foundedj namely, on account of the appellant (a) Lord Tenterdtn, C. J. was absent.
PQ
EASTER TERM, XI GEO. IV. 703
being rated at a higher proportion of the pound 1880. sterling, according to the fair annual value of the ratable property therein, — or on account of some other parish being rated at a lower proportion of the pound sterling, Inhabitants of according to the fair annual value of the ratable property (herein, — than had been fixed and declared by the justices of the peace of the said county in sessions assembled, as the basis of the rate for the said county. This probably was the ground of appeal intended to have been stated in the notice, and to have been relied on at the trial ; but un- fortunately the notice has not set out the whole, but a part only, of this ground of appeal, as it is described in the statute. It does not state that either the appellant or re- spondent parish is rated at a higher or lower proportion of the pound sterling, according to the fair annual value of the ratable property therein, than has been fixed by the justices in sessions as the basis of the rate, but merely that the appellant parish is rated at a higher proportion of the pound sterling, according to the annual value of the ratable property therein, than the respondent parish. Now it may be that both parishes are rated lower than they ought to be, aud yet that the proportion of the pound sterling assessed upon them is not unequal, with reference to the suras as- sessed upon all the other parishes in the county; but that, if it be so, forms no ground of appeal, because the object of the statute is, that the assessment upon each individual parish should be in an equal proportion of the pound sterling with reference to the value of the ratable property of all the parishes in the county. That object would be defeated if the sessions, upon appeal, could alter the assess- ment upon one parish, merely because the valuation of the ratable property in that parish was higher than that of the ratable property in another parish. To lower the assess- ment on the appealing parish under such circumstances, would be to do injustice to the other parishes in the county. One parish is not necessarily aggrieved by being assessed 3t a higher valuation of the ratable property than another ;
704 CASES IN THE KING S BENCH^
18S0. for it may happen, and did in this case, according to the
^ ^ evidence^ that both parishes are rated at a lower sum than
y. they ought to be. The effect of what the justices have
Blackawton. *^^°® ^" ***** ^^^ "» *® make the assessment upon the ap- pellant parish lower than it ought to be, and so to give a ground of appeal to every other parish in the county. 1 think that no parish has a right to make a partial complaint of this nature, and, looking at the facts of this particular case, I cannot see that the appellant parish has any cause of complaint at all.
LiTTLEDALB, J. — I am of the same opinion. Whit« stone would undoubtedly have been aggrieved if it had been assessed in a higher proportion of the pound sterling than other parishes ; but that is not the fact : all the parishes in the county are assessed in one and the same proportion, namely, one farthing of the pound sterling. With respect to the notice of appeal, as the fourteenth section of the statute allows of only certain grounds of appeal therein specified, the question is, whether there existed in fact any such ground of appeal as that stated in the notice. The ground stated in the notice falls within the third, if any, of those specified in the appeal clause, namely, the parish being rated at a higher proportion of the pound sterling, according to the annual value of the ratable property, than that fixed by the justices as the basis of the rate. Then what was the rate here, and did there really exist any ground for such an appeal ? In the rate, Whitstone was assessed at 3/. 3s. ICk/., and Blackawton at 9,1. I \s. 5d. That was in an equal propor- tion, one farthing, of the pound sterling, according to the annual value of the ratable property in each, returned to the justices. There was, therefore, no pretence for the ap- peal upon the ground stated in the notice. The ground relied on at the sessions was, that the valuation of the ratable property in the appellant parish was too high, and that in the respondent parish too low ; but that was not the ground stated in the notice of appeal : therefore the jus-
EASTER TERM, XI GEO. IV. 705
tices were not authorized to enter into the inquiry they did. ibso. If the notice of appeal had been so framed as to entitle ^-^^/^^^ the appellants to try that question, I think the justices ^.
would have had authority to amend the rate by altering the Inl^abitants of annual value according to the fact.
Parke, J. — I agree that the order of sessions in this case must be quashed. I think it is not necessary that the notice of appeal should allege in express terms that the party intending to appeal is aggrieved by the rate, but that it is su£5cient, if it can be collected from the whole of the notice, that he is in fact so aggrieved. But I am of opinion that the notice in this case was not so framed as to entitle the appellants at the sessions to go into the matters which were relied on as the grounds of their appeal. Assuming that one parish may appeal because it is rated upon a higher valuation of its ratable property than it ought to be, it ap- pears to me that that objection is not properly stated in this notice of appeal. The appellants object that they are as- sessed in an improper proportion of the pound sterling, ac- cording to the annual value of their ratable property. Now that is not true ; for assuming the valuation of the ratable property returned to the sessions to be correct, which this objection does not deny, both these parishes are assessed in the same proportion of the pound sterling. I think the ses- sions might, under the fourteenth section of the statute, have corrected an inequality in the valuation of the ratable pro- perty, if that question had been properly raised before them ; and, therefore, if this notice of appeal had been correctly framed, I should have thought that the sessions had done right. Here, however, instead of altering the basis of the assessment, they have altered the assessment itself, and have thereby done that which, under the circumstances of this case at least, they had clearly no authority to do.
Order of Sessions quashed.
VOL, V. z z
CASES IK THE KIK0 8 BENCH,
Doe, on the several demises of William Jackson aod others, v. Roger Hilet.
The statute 59 CjECTMENT, to recover certain premises situate in the s. 17' vesu in parish of St. Michael on the Mount, in the city of Lincoln. wid^"^Md ^*^* • "^^ 8"*'^- ^^ ^^^ ^^» before Holroyd, J-, at the oyeraeeraofa Leicestershire Spring assizes, 1827, a verdict was found ^**bd!>M^ for the plaintiff, subject to the opinion of this Court upon ipe tosuchpa- the following case : — applicable to ^^^ declaration contained several demises : one by
the relief of William J acksofi, on the 2d November, 1826; a second the poor only, , . . , r , »^ n % ■
ar to the pai^ demise, on the same day, by oeth Bramham, churchwa^
Sr^hu'rdi'''*' den of the parish of St Mark, in the said city,. Job Cart-
rate is made Udgt, churchwarden of the same parish, and Samuel Con
wiie^er^oriei- ^^^ Jonathan Damson, overseers of the said parish of St*
Daily vested in Mark ; a third demise, on the same day, by the said parish
benefit of the officers, Seth Brandham, Samuel Carr and Jonathan Da-
parish or not. |,i^„^ omitting Job Cartledge ; a fourth demise, on the
same day, by the aforesaid churchwardens, omitting the
overseers ; and a fifth demise, on the same day, by SelA
Brandham, churchwarden aforesaid.
The following facts were proved on the part of the les* sors of the plaintiff: —
By indenture of lease, bearing date the 2d of Januaiy, 1786, Richard Gibson the elder, Xti^ Ifti^cAtfuoii, Charles Matthews, John Jackson, Thomas Stones, John WUkisison, Joseph Lund, Ralph Bowring, and Jonathan Glenn, de- scribed in the said lease to be inhabitants, pariabioners, and feoffees of the parish lands and church lands of and belonging to the parish of St. Mark, in the city of LiDColo, and Joseph Smith, churchwarden of the said parish, do* mised, granted, and leased to Robert Holmes, at well in consideration of the surrender of the former lease, as for divers other good causes and considerations therein de- scribed, as surviving executor and trustee named in the last will and testament of John Lamb, late of the city of
EASTER TERM, XI GEO. IV.
JLiiDcoln, gentleman, deceased, two messuages or tenements, and ground thereto adjoining, situate in the said parish of St. Michael on the Mount, to hold the same to the said Robert Holmes^ and his assigns, from the 26th day of De- cember then last past, for and during the term of forty years then next ensuing, upon such trusts, nevertheless, as were mentioned and expressed of and concerning the said pre- miaes, in and by the last will and testament of the said John Xomfry deceased, paying yearly, during the said term, the rent of SOs, and two fat crammed capons, reserved by the said lease to the said Joseph Smith and his successors, church- wardens of the said parish of St. Mark for the time being. Part of the said tenements so demised to Robert Holmes were in the occupation of the defendant, and were sought to be recovered in the said action. He came into possession of the premises in 1815, and paid rent for them to Christmas 1825, when the said term expired. The said Seth Brandham and Jo6 Cartkdge were sworn in as churchwardens for the parish of St. Mark, on the 5th of April, 1826, and Samuel Carr and Jonathan Davison were overseers of the said parish for the year commencing at Easter, 1826. Thomas Sweeting was tenant of the said demised premises under the lessee. Holmes, and always paid the reserved rent for the said pre- mises to the churchwardens of St. Mark for the time being; and the defendant, Roger Hiley, in the year 1825, paid his proportion of the said rent for that part of the said pre- mises in his occupation which was sought to be recovered ID this action, to William Atkinson, churchwarden of the •aid parish of St. Mark, at the same time inquiring of the aaid William AtUnson, whether he was churchwarden of the parish. There was a churchwarden's book and an over- seer*! book. The rents were always received by the churchwardens for the time being, and credit given for them in the churchwarden's book. Upon the production of this book, the disbursements stated in it were payments usually made by the churchwardens ; and the receipts stated were various reserved out-rents received by the churchwardens,
z z 2
707
1830.
Dos
Jackson and others
V. HlLBT.
708 CASES IN THE KIN6*S BENCH,
1830. a sum of oL I7s. 3d*, collected as a church-rate, and a sum
N^^r%^ ^f Qi^ received from the overseers of the poor. .
(/. Ill the latter part of April, 18£6| possession of the pre-
Jackson mises in the occupation of the defendant was demanded in and others ^
V. the name and on behalf of the. said churchwardens and
UiLET. overseers of the parish of St Mark, when the defendant
refused to deliver up possession, denying that he held any
property belonging to the said parish. All the lessors
mentioned in the said lease died before the. year .1826.
John Jackson survived the rest, and died on the. £7tfa of
March, 1825. John Jackson, by his will, dated the 14th
of February, 1825, previous to the death of one of the said
lessors, devised all his lands, tenements, hereditaments,
and premises to his brother, ffilliam Jackson, who is not
his heir at law, being of the half-blood, who is one of tbe
lessors of the plaintiff, his heirs, executors, administrators
and assigns, subject to the payment of his just debts.
The question for the opinion of the Court was, whether the plaintiff was entitled to recover ; if so, the. verdict was to stand ; if not, a nonsuit was to be entered.
The case was argued on a former day in this term, by
Amos, for the plaintiff. First, the second demise, by tbe churchwardens and overseers of the parish for the time being, is supported by the facts stated in the case; and upon that demise, even abandoning all the others, the plain- tiff is entitled to retain the verdict. By the statute 59 G. 5, c. 12, s. 17, it is enacted, '^ that all buildings, lands, and hereditaments, which shall be purchased, hired, or taken on by lease, of the churchwardens and overseers of the poor of any parish, by the authority and for any of the pur- poses of this act, shall be conveyed, demised, and.asaared to tbe churchwardens and overseers of the poor of every such parish respectively, and their successors, in trust for such parish ; and such churchwardens and overseers of the poor and their successors shall and may, and they are hereby empowered to accept, take and hold, in tbe nature
. EASTER TERM, XI GEO. IV.
of a body corporate, for and on behalf of the parish, all such buildings, lands and hereditaments, and also all otl$erh\xM' ings, lands and hereditaments, belonging to such parish." .That section, therefore, vests all parish lands in the church- wardens and overseers. It will be contended on the other side, that the statute has reference only to lands held for the benefit of the poor, and does not extend to lands ap- plied in aid of a church-rate, nor, consequently, to the lands in question. But the enacting words of the seventeenth section are of the most general and comprehensive kind, and cannot be controlled by narrower and more limited expressions in the preamble and earlier sections of the act, unless the mischief to be remedied were different in the case of these two different species of parish property. Now the mischief was precisely the same in both cases, and the argument alluded to must fail. Besides, the lan- guage used in the seventeenth section of the present sta- tute, contrasted with that adopted in the twenty-first section of the prior statute, '22 Geo. 3, c. 83, explains the force of the general expressions now relied upon, and shews the in- teation of the legislature in the adoption of them. In Phil- lips v. Pearce{a), where it was decided that churchwardens ahne, without tKe co-operation of the overseers, could not grant a lease of parish lands under 59 Geo. 3, c. 12,s. 17, the lands in question were church lands, the rents of which had always been applied in aid of the church-rate ; but that objection was not raised either at the bar or by the bench, and Abbott, C. J., in his judgment, described the section as applying to all lands belonging to the parish. It may be. said that the lands now in question are trust property, and that the statute ought not to be so construed as to in«- terfere with property of that nature. But the facts stated in the case do not go the length of proving that the donor of these lands ever appointed trustees, for the parties to the lease of 1786 are described as feoffees of all the parish lands. Besides, even if these lands were originally vested
709
1830.
(a) 8D.&R.43; 5 B. & C. 433.
710
1830.
CASES IN THE KING S BENCH,
in trustees, it may be gathered from the statement of tlie case, that all the trustees were dead, which would be a very sufficient reason for giving as wide a coiistructioB to the act as the obvious meaning of the words will justify ; for the difficulty of finding the heir of the surviving tmsfeee of parish property was a very just ground for the inter- fereuce of the legislature ; and it appears from the year- books, 12 H. 7, £9 b,, and 13 H. 7, 10, that traatees for similar purposes had frequently been created in that reign^ the heirs of whom it would be extremely difficult to traos at the present time.
But, secondly, the first demise may be suj^MMrted. The case of Swifi d. Neale v. Roberts{a), which has generally been considered as determining that the will of a joint tenant is not good, though the joint tenancy be severed be- fore the testator's death, and, that a joint tenancy b not devisable, was decided upon several grounds perfecdy ap- plicable to the circumstances of that case, but equal^ in- applicable to those of the present. A joint tenant has a valuable, though a contingent interest, and under the first statute of wills, 32, H. 8, c. 1, his power of devising that interest would appear indisputable. Then the second statute of wills, 34 & 35 jFf. 8, c. 5, was merely explana- tory of the first, and ought to be construed liberally, and with reference to those existing customs upon whi^ at models, the statutes of wills were framed. The custom in this particular is recorded by Perkms(b), who gives it as his opinion, that if a joint tenant makes his will, and after* wards survives his companions, then, by custom, such de- vise is good; and, in Bacon'* Jbridgemeni{c)y it is ex- pressly laid down, that a joint tenant may devise die inSerest which is contingent on his survivorship. With respect to this devise being subject to the payment of the testator's debts, from which it may be argued that trost property will not pass under such a devise, the answer to such an argn*
(a) 3 Burr. 1488; Ambler, 617; 1 W. Bl. 476.
(b) 96 b. title, DevisCf s. 500.
(c) Tii3iQfJdiit'tenani.
EASTER TERM^ XI GEO. IV. 711
fluent 18, that it was for tbe defendant to shew that the tea- 1830. tator had other lands^ besides trust lands, upon which the detite would operate, before he could bring the case within the operation of the authorities bearing upon this particu* lar point.
N« M. Clarke, contrd, was desired b; the Court to con- fine hii argument to the question upon the second demise. -*The second demise cannot be supported. It appears dearly, from the facts stated in the case, that the lands in question, though parish property, were trust lands, vested in specific feoffees or trustees ; and, that the proceeds of those lands were not applicable to the maintenance of the poor, or to tbe general purposes of the parish, but solely to those purposes for which church rates are levied ; in either of which cases the statute 59 O. 3, c. H, s. 17« under which it is contended that this demise may be supported, will not apply.
Rrst, the statute does not apply to parish property which is vested in specific feoffees or trustees. A statute having such an application would necessarily involve an interference with the will and intention of the donor, who has selected tbe persons whom he chose to be the trustees of his bounty; there is nothing in this statute to shew that the legislature contemplated such an interference, and it cannot be pre- sumed that they did so. The object of this statute was, lo remedy Uie inconvenience which had been often expe- rteaced where persons were in possession of parish houses and lands, to which no one could make a legal title, and who conM not therefore be dispossessed. But in this case tbere could no such inconvenience arise, for there could be no difficult here in finding the heir at law of the surviving feolKee or trustee, and bringing an ejectment in his name.
Secondly, the statute relates to such property only as is applicable to the maintenance of the poor and the gene- ral purposes of the parish. It is entitled ** An Act to amend die lawa for the reUef of the poor" The preamble recites
712
1830.
CAJSES IN THE KINGS BENCU^
that It is *^ for the better and more effectual execution of the laws for the relief of the poor.^ The eighth section enables the parish officers to alter or enlarge any messuage or tenement *^ belonging^^ to the parish, for the purpose of making it a workhouse. The ninth section enables them to sell and dispose of any houses or tenements, with the site thereof, '* belonging*' to the parish, and to apply the proceeds in procuring a new workhouse. The twelfth sec- tion enables them to take into their hands any land or ground which shall '* belong" to the parbh, or to the churchwar- dens and overseers thereof, or to the poor of the parish, and to employ the poor in cultivating it on account of the parish. And the thirteenth section enables them to let any portion of '* such parish land as aforesaid" to any poor inhabitant Looking at these provisions, and the peculiar language of them, can it be said that the legislature intended to autho- rize the diverting from the use for which it was given to the parish, property in which the parishioners have an interest, but which was not intended by the donor to be applied, and was never, in fact, applied to the use of the poor i Many parishes have large funds which have been bequeathed to them for the purpose of effecting specific public objects, such as repairing churches, erecting and repairing bridges, supporting schools, 8cc. Can it be contended that the legislature intended to authorize the seizing those funds, and applying them in ease of the poor-rate? If not; if those questions must be answered in the negative, as they must be, then the words '' belonging to the parish," must mean belonging to it for the use of the poor: and the se- yenteenth section, which is relied on for the plaintiff, only vests in the parish officers property '' belonging to the parish," which therefore means property belonging to the parish for the use of the poor. Some reliance has been placed upon the wording of the seventeenth section, which vests in the parish officers, first, '* all such buildings, lands," See., and afterwards, ** all othet* buildings, lands,'* See. ^' be- longing to the parish.*' But a reference to the early part
.EASTER TERM, XI GEO. IV.
of that section will clearly shew that *' all such buildings/' &c.y means all buildings, &c., " which shall be purchased, hired, or taken on lease" by the parish officers ; and con- sequently, that *' all other buildings/' &c., must mean all buildings, Sec., belonging to the parish, but neither ptir^ chased, hired, or taken on lease by the parish officers ; leav- ing wholly untouched the question, whether the words " belonging to the parish** do, or do not, relate exclusively and solely to such property as belongs to the parish/or the use of the poor.
Cur. adv. vult.
713
1830.
Lord Tenterden, C. J., now delivered the judgment of the Court in the following terms : — We have considered this case, and are of opinion that the lessors of the plaintiff are entitled to recover upon that count of the declaration in which the demise is laid to have been by the churchwardens and overseers of the parish of St. Mark, in the city of Lin- coln. The premises in dispute were, undoubtedly, held by that parish for parish purposes. It was contended, on the part of the lessors of the plaintiff, that the premises were vested in the parish officers of that parish by the statute 59 G. 3, c. 12, s. 17. On the other hand, it was insisted, on the part of the defendant, that that statute did not apply to this case, for two reasons ; first, because the persons in whom the legal estate was vested were trustees only ; and, secondly, because the rents and profits of the premises sought to be recovered, were applicable, not to the relief of the poor, but solely to those purposes for which the church rates were levied. Upon the first of these objections we are of opinion, that there is nothing in the act of parliament to prevent property held by trustees for the benefit of a parish from vesting in the officers of that parish, and that it would be very inconvenient that it should be so. It is often difficult for persons claiming under an ancient trust, where the trustees are numerous, to ascertain who was the last survivor of those trustees;
714
1830.
CASES IN THE KIKO's BENCHj
and eteD if they succeed in aBcertainiDg that fact, it is ofteo no less diflSicuIt for them to shew who is the heir at law of that survivor. Property vested in trustees for the benefit of the parish seems to us to be equally within the mischief con- templated by the legislature as property not so vested.
Upon the second question — whether the statute 5^ G. 3, c. 12, 8. 17> extends to property, the profits of which are applicable to the purposes for which a church rate is made, or is confined to those which are applicable solely to the relief of the poor — it is undoubtedly true, that the primary object of the statute, as appears from the title, the preamble, and most of the early clauses, was the amend- ment and better and more effectual execution of the laws for the relief of the poor. But the seventeenth clause goes much further. It enacts, that all buildings, lands and here- ditaments which shall be purchased, hired, or taken on lease by die churchwardens and overseers of the poor of any parish, by the authority, and for any of the purposes of that act, shall be conveyed, demised, and assured to the churchwardens and overseers of the poor of every such parish respectively, and their successors, in trust for the parish ; and such churchwardens and overseers of the poor, and their successors, shall and may, and they are thereby empowered to accept, take and hold, in the nature of a body corporate, for and on behalf of the parish, all such buildings, lands and hereditaments, and also all other buildings, lands and hereditaments belonging to such parish. The latter words are most general, and comprehend all buildings, lands and hereditaments belonging to the parish ; and although the relief of the poor may be the primary object of the statute, we think the safest course for us to adopt, in constming this particular portion of it is, to give full effect to that ge- nerality of expression ; there being nothing to shew that lands or buildings applied in aid of the churcb-rtte, do not require the aid of this provision, as well as those which are applied to the relief of the poor. In both cases there is die same difficulty in discovering in whom the hgA
EASTER TERM, XI GEO. IV.
estate in the premises belonging to the parish is vested, and that was the mischief which, by the seventeenth section, the legblature intended to remedy ; and we see no groand for doubting that the operation of that section was intended to be co-extensive with the mischief. This being our opi- nion, the postea mnst be delivered to the plaintiff.
Postea to the plaintiff.
The Kino v. The Inhabitants of South Newton.
Two justices, by their order, removed Thomas Brown, his A pauper was
wife, and their three children, from the parish of Woodford ^^ for eleven
to the parish of South Newton, both in the county of months. At
Wilts; and the sessions, on appeal, confirmed that order, time he was
subject to the opinion of this Court upon the following biredforone
case : — the course of
The pauper, in 18«3, while single, was hired as shepherd ^^'^r^**)* ^
by the tenantry farmers of the manor of Lower Woodford, go on again
Sot eleven months, at 145. per week, and was to have a terms." He
piece of land called the *' Shepherd's Croft," which was to continued in
the service make up money as good as l6s. per week, to keep cer- two years un-
tain sheep belonging to them, called the tenantry flock, J^^^i**?^'
Payment of his money wages was made quarterly by the the last was a
general hiring, under which the pauper juainod a settlement. A paaper was hired as shepherd by the tenantry farmers of a manor, to keep the temmtry flock, at 14t. a week, and was to bare a piece of land, called the ** Shepherd's Croft,'' which was to make up money as igood as ICU. a week ; and be served a year under that hiring. Tlie tenantry farmers were leaseholders and copyholders of the BMnor. By acreemeDt of 1799, between the lord of the manor, bis lessee of the manor, and the leaseholders and copyholders of the manor, arbitrators were appointed for dividing and allotting the open fields and downs within the manor, among the lessee and the leaMholders and copyholders of the manor, in lieu of the lands they had in the manor. Tlie arbitrators allotted to the lessee of the manor, in trust for the shepherd of the tenantry flock, in lieu of lands in the manor held by custom by the shepherd, the piece of laod called the '< Shepherd's Croft," which the pauper had when he was hired as shepherd, and he occupied part, and let off part to a tenant, during ail the time he served as shepherd : — Held, that the pauper took die land in his character of servant, in Ilea of wages, and therefore that he gained no settlemflot by estate.
716 CAS£S IN THE KING's BENCH,
1830. teDaDtry fanners. The pauper, after serving eleven mouths,
Ji^*X^ was hired aeain for one month. Before the end of that The King , , ^ , . ,
V. month, the pauper was hired ''to go on again upon the
^°^ &!^H^ ^^ '*™® terms." He served a year under this last hiring, and NEWToy. slept the last forty nights at South Newton, the appellant parish, having married in the course of that year. The tenantry farmers above mentioned are leaseholders and copyholders of the manor of Lower Woodford. By agree- ment under seal, of i2th June, 1799» the parties to which were the Bishop of Salisbury, lord of the manor of Lower Woodford, the leaseholders and copyholders of that manor, and William Beckford, of Fonthill Gifford, Esq., who then held the manor under the Bishop for three lives, reciting (among other things) that the leaseholders and copyholders were entitled to divers lands within the manor, by virtue of the several leases and copies to them thereof granted, arbi- trators were duly appointed for dividing and allotting the open and common fields and common downs within the manor. The powers of these arbitrators were, to set out, ascertain and allot the said opdn and common fields and common downs, so intended to be divided and allotted as aforesaid, unto and among the said William JBeckford, in respect of such lands as he had in hand or at rack-rent, and the several leaseholders and copyholders entitled to or interested in the same, in proportion to their several and respective shares, interests and properties in and over the said open and common fields or downs. They were also empowered to set out ways, and in some respects to direct the course of husbandry. And it was agreed that the per- sons to whom allotments should be made, should be pos- . sessed of them for the same estates, terms and interests, and subject to the same rents and services, as the several lands in lieu whereof such allotments should be made, were subject to. Neither the shepherd of the tenantry farmers at that time, nor the pauper, Thomas Brown, was a party to the agreement. The arbitrators appointed by the agreement made an
EASTER TERM, XI GEO. IV. > 717
award, dated 10th October, 1808, Mphich has been acted on 1830. ever since. 'tIT^^'^
By the award, among other allotments, they allotted to «.
WiOiam Beckford, Esq., lord or farmer of the manor, of ^"*'*^J,"^'|J*^^ Lower Woodford, in trust for the shepherd or keeper of Newton. the common sheep flock of Lower Woodford, for the time being, in lieu of lands in the common fields, held by cus- tom by the said shepherd, *^ two allotments of land, that is to any, one piece of inclosed pasture, marked V, containing thirty perches, and one piece of inclosed arable land, marked V, containing three roods and twenty-five perches; the shepherd for the time being keeping the fences of the same in repair."
This was the land which the pauper took when he was hired as shepherd as above, and which had been possessed by former shepherds . since the time of the award. The pauper let part of the land to a tenant from year to year, for about 5/., and received the rent: a part he always occu- pied himself, but .never paid rates. He is still shepherd, and at the time of his removal was resident in Woodford, and had been so more than forty days. Becoming charge- able, he was removed, by order of two justices, to South Newton, without any objection on the part of his masters, or any interruption to his service, or to his possession of the said Shepherd's Croft, both of which he still retains.
Bingham and Awdry, in support of the order of sessions. The sessions came to a right conclusion in this case. First, there . was a settlement acquired .by hiring and service in South Newton, where the pauper slept the last forty nights of his second year's service ; for the hiring after the eleven months' service and during the one month's service, was a general hiring; Rex v. Macclesfield {a); the only distinction between the two cases being, that there the fairing was '' to stay on an end in the place,", and here it was/^ to go on again upon the. same terms," which, as re-
(fl) 3 T. R.:76.
718 GASES IK THE KINO's BENCB,
1830. gards the acquisition of a settlement, was no distbction
n^rr^ at all. The Kixo
V. Secondly, no settlement was acquired by estate in Wood-
^"'^^uTO* ^^^* '^^^ pauper occupied the land either as servant or Nbwtqv. as tenant, and in neither character was his occupation such as to confer a settlement. The policy of the law woold dictate the considering his occupation as referable lo his character of servant; Rex v. Kektem (a). There the pau- per, a married man, agreed to serve $» for a year as labourer, and was to have SO/, a year» a house and garden, a piece of land for potatoes, the milk of a cow and feeding of a pig, which were to run on a neighbouring field : he had the exclusive occupation of the house ; the house was about 100 yards from the house of &*•: the house was necessary for the performance of the service, and if the pauper had not had it, he would have had more wages. It was held that this was not a coming to settle on a tene- ment to confer a settlement. Independently of the deci- sion, the observations of Lord Tenterdm, C.J* (then Abboii, J.), in that case, are very strong to shew what is the policy of the law of settlement on this subject He said, *' I think it is clear that the panper did not come to settle upon a tenement of lOL a year : and I am glad that the Court is not compelled to decide that he did, because such a decision would tend much to deprive a very merito* rious class of persons, namely, servants in husbandry, of many comforts which accrue to them from this species of agreement. A cottage may, of itself, be not worth lOL a year ; but if it is to be combined with other privileges, such as are given to the pauper by this contract, in order to bring the value to that amount, and thereby oonfer a settlement, I am afraid that farmers will henceforth be un- willing to grant those additional advantages to servants m husbandry, lest they should bring so many additional bur- thens upon the parish. I am very glad, therefore, to find that the Court is not under the necessity of holding this to
(a)5lLApS«13a.
£A8T£R TERM, XI G£0« IV.
be a setflementi for no probable addition of wages would afford an adequate compensation in point of comfort for the loss of those advantages." With respect to the mode v^
of testing whether the occupation be in the character of ^^j^ servant or not, Bay ley, J., in the same case, said, *' I take Nbwton. the distinction to be this; if the occupation be unconnected with the service, it will confer a settlement; but if it be necessarily connected with the service, as if it be necessary for the due performance of the service, it shall not confer a setdement**' The test of occupation in the character of servant therefore is, that the occupation shall be necessarily connected with the service ; but its conducing to the per- formance of the service, though a general, is not the only criterion of such necessary connection. In this case the occupation was necessarily connected with the service, be* cause but for the service the pauper would not have ob* tained possession of the land; if he had not served as shep- herd, he would never have occupied the land. But if the pauper did not occupy as servant, he must have occupied as tenant, — as tenant to those by whom he was hired as shepherd, and to whom he paid rent in service of the value of 2s. a week, a value insufficient to confer a settlement. It cannot be said that be took any legal interest in the land under the award ; for be was no party to it, and the award itself was void for many reasons. His payment of rent in the shape of service, which was equivalent to a payment in money, shews that the land was not his own, and that some other person had a beneficial interest in it. Whether that other person were the lord of the manor, or the copy- holders, is perfectly immaterial ; the pauper had still but the same interest, namely, that of tenant from year to year. The reversioner, whoever be might be, may be considered as having offered to let the land, and the pauper as having agreed to take it, at a rent of 2s. per week, payable in shepherd's service. In that view of the case, the pauper came to settle upon a tenement within the meaning of the statute 13 8c 14 Car. 2 ; but the value of the tenement
720 CASES IN THE KING*S BENCH,
1830; being iosofficient, bis occupation of it bas conferred no set-
^^^s^^^ dement upon bim. •
The KtNo
V,
Inhabitants of Merewether, Serjt, and Everett, contrd. With respect to Newton. ^^^ settlement by biring and service, there is one circum- stance which distinguishes this case from that of Rex v. Macclesfield {a), namely, that there the party was hired '' to stay on an end in his place/' and here " to go on again upon the same terms.'* Now, if all the terms of the first agree- ment. were • incorporated in the last, the biring in this case would not be for a year, but for eleven months only. [Lord Tenterden, C. J. I think the period for which the pauper was first hired cannot be considered as one of the terms intended by the parties ; and then the last agreement was a hiring for a year.] Then, as to the settlement by estate, the^ real question is, not whether the pauper occu- pied the land as servant or as tenant, but whether he had not such an interest in it as made him irremovable. If, under the agreement or the award, he had an interest in the land in his own right, that made him irremovable; and it is submitted that he had. The occupation of the land in this case was not necessarily connected with the service; at least, it was not necessary for the due performance of the service ; and that is the distinction pointed out in Rex v. Minster (6), and the case already cited of Rex v. Kel- stem (c). Could not the pauper have maintained an action of trespass in respect of his occupation ? It is submitted that be might, and that is one criterion of his having an interest in the land in his own right. The interest which he took was under the award, not under the agreement for hiring, for the award, and the interest which passed to him under it, existed long before he came to. settle upon the land: he took an estate under the award, defeasible upon bis ceasing to act as shepherd under the hiring. The pau- per here had at least an equitable estate in the land, and
(a) 3 T. R. 76. (c) 5 M. & S. 136.
(6) 8 M. & S. S76.
The Kma
EASTEK TERM, XI GEO. IV. 721
being resident upon it at the time of Lis removal, he was 1880. irremovable: Rex y. Owenby le Moor (a). Again, — the pauper here underlet part of the land, a circumstance, ac- v,
cording to the opinions of Abhoti, C. J., and Holroyd, J., ^^"^^I^^^^^* ""^ as expressed in Rex v. Laketiheath (6), strongly indicative Newton. of his right to enjoy the property as his own. Still morey the pauper here was bound to keep the fences in repair^ an obligation which would not attach upon any person occupyiog merely in the character of a servant. At all events, the pauper was tenant from year to year, and occu- pied a year as such ; and that it would seem, upon the principles laid down by Bayley, J., in Rex v. Herstmon^ ceux (c), would give him a settlement.
Lord Tentbrden, C.J. — I am of opinion that the ses- sions have come to the right conclusion in this case. I think it quite clear that the pauper took no interest by vir- tue of the award or allotment in the land which he occu- pied. The award itself was void for many reasons, so that the pauper could not possibly have derived any legal interest from it, even if he had been a party to it, which he was not. The only interest which he had, he obtained in bis character of servant from year to year. If he was tenant at all, he was tenant only to those with whom he made the bargain for his service as shepherd, and his enjoy- ment of the land was in the lieu of wages, which he would otherwise have received as the remuneration for that service.
Bayley, J. — I am of the same opinion. The pauper was clearly settled in South Newton by hiring and service, and must be maintained by that parish, unless he acquired a subsequent settlement by estate in the parish of Wood- ford, which I think he, as clearly, did not. As to the first
(a) 15 East, 356. (c) 7 B. & C. 551; 1 M. & R,
{b) 2 D. & H. 816; 1 B. & C. 496 ; 1 M. & R. Mag. Ca. 140. 5S1; 1 D. & R. Mag. Ca. 433.
VOL. V. 3 A
722 CASES IN THE KINg's BENCH,
1830. settlement this appears; — the pauper was first hired for eleven months, then for one month, and finally, during that V, month, to go on again upon the same terms. That last
So^"!!* ^^* ^" indefinite hiring, and, consequently, a hiring for a Newton, year; and as the pauper resided in South Newton the last forty days, he was settled in that parish. As to the sup- posed settlement in Woodford, there is the agreement of June, 1799; — but what does it amount to? In the first place, it was binding upon those only who were parties to it ; and the pauper was not a party to it. Then the effect of it, where binding, was only this, — that whenever a shep- herd should be appointed, he should have an allotment of land for his own use, so long as he continued shepherd : it did not operate as a conveyance, but merely as an agreement between the parties who signed it. When a shepherd was appointed, he took the land, not by virtue of the agreement, but by virtue of his appointment as shepherd. Such was the pauper's case. He was hired as shepherd upon certain terms and conditions, which were pointed out to him. One of these was, that he was to have Shepherd's Croft, which, with the money wages of 1 45. a week, was to make it as good to him as 165. a week. The persons who hired hiro, therefore, conferred upon him the right to occupy the land; he did not take it under the agreement, and he had it only for so long a period as he should faithfully perform the office of shepherd. His right to hold the land was founded entirely upon his contract of hiring and service; therefore he had no estate or interest in the land to entitle him to a settlement. His settlement, therefore, remains in South Newton.
LiTTLEDALE, J., Concurred.
Parke, J. — I entirely concur in the opinion that the sessions were right in the conclusion at which they arrived in this case. I think it quite clear that the pauper did ac- quire a settlement by hiring and service in the parish of
EASTER TERM, XI GEO. IV.
123
South Newton, and that he did not acquire a subsequent 1830. settlement by estate in the parish of Woodford. It has been argued, in support of the settlement in Woodford, v,
that the pauper took either a legal or equitable estate in ° South* the land which he occupied by virtue of the award. I am Newton. decidedly of opinion that he took neither the one nor the other. The parties to the submission were the Bishop of Salisbury, Mr. Beckford the lord of the manor, and the lessees of the manor, the leaseholders and copyholders. But the shepherd was not a leaseholder or copyholder of the manor, nor a lessee of the manor. The arbitrators, therefore, had no power whatever to make any altstment to him, and pro tanto, at least, the award is void. There was no occupation by the pauper in his own right. He had a right, under the contract of hiring, to occupy the land while he continued shepherd ; but that was not a set- tlement by estate, but a coming to settle upon a tenement of less than 10/. a year, by which no settlement could be gained.
Order of Sessions confirmed.
The King v. The Inhabitants of Wooburn.
SY an order of two justices, Hannah Beal, widow, and a pauper aet- her four children, were removed from the parish of Woo- a ; "ioJt!??
* A.|in loOO in*
bum to the parish of Chipping Wycombe, both in the closed a piece county of Bucks; and the sessions, on appeal, quashed from a com- mon io parish B., and held and cultivated it till 1827, when he sold and conveyed it to a purchaser. From 1800 to 1895 he resided out of parish B., but in 1895 he removed into that parish, and in 1896 built a hut on the land, in which he lived a year and a half. In 1806, 1811, and 1817, the parishioners of B. perambulated that parish, for the purpose of marking their boundaries, &c., on which occasions they pulled up a portion of the fence of the land so inclosed by Uie pauper, dug up part of the bank, and rode through the inclosure. In 1890 or 1892, a similar perambulation was made, and similar acts done, by direction of ihe lord of the manor. No acknowledgment was ever paid to the lord of the manor for the land. Held, that there was an adverse possession for twenty years, and that the pauper gained a settlement by estate in parish B.
3 A 2
724 CASES IN THE KINO 8 BENCH,
1830. the order, subject to the opinion of this Court upon the
V. In the spring of 1800, Darnel Btalj the husband of
^"wwl^uiw**^ ^^^ V^^^^^Hannah Beal, and the father of the other paupers, being settled in the parish of Woobum, inclosed a small piece of waste land from a common in the adjoinmg parish of Chipping Wycombe, and surrounded it by abank, on which he planted a quick fence. He held and culti- vated this land) subject to such interruptions as after-men- tioned, until Christmas, 1827, when he sold it for 10/. and conveyed it by deed to the purchaser. From the year 1800 to the year 1825, Daniel Beal resided out of the parish of Chipping Wycombe. In the year 1825 here- moved to a cottage in that parish, but not on the land in question. In the year 1826, he built a hut on the land in question, and was provided with straw to thatch it by one of the overseers of the parish of Woobum ; and up to the time of his building the hut he continued to receive relief from the parish officers of Wooburn. He lived in the hut a year and a half. In the years 1806, 1811, and 1817, the parish officers and freeholders of Chipping Wycombe per- ambulated the parish for the purpose of marking the boundaries, and asserting their rights of common, by throw- ing open encroachments on the waste. In the first year they pulled up a large portion of the fence to the said land inclosed by Beal, dug up part of the bank, and rode through the inclosure. In the two subsequent years they made a large gap in the fence, and again rode through the inclosure with the same object. In the year 1820 or 1822, but to which of those years in particular the witness could not speak positively, a similar perambulation was made bv direction of the lord of the manor, when similar acts were done for the like purposes. It did not appear that Dam(* Beal was present on either of these occasions, nor did i: appear that any acknowledgment was paid by him to the lord of the manor, or any other person, during his occupa* tion of this inclosure, nor that either the commoners or the
£A$T£U T£RM, XI GEO. IV. 725
lord of the manor cooiinenced any action, or did any other isso. act to assert their rights, except as before mentioned. The question for the opinion of this Court was, whether, not- withstanding the interruptions before stated, Daniel BeaL Inhabitants of t>y his occupation and residence upon the land in question, gained a settlement in Chipping Wycombe.
X). Pollock and S, Monro, in support of the order of sessions. Beal did not acquire any settlement by estate in the parish of Chipping Wycombe, by virtue of his occu- pation of the land in question, because that occupation was not uninterrupted, and he never had an adverse possession for twenty years. The original taking of the land from the waste was a wrongful act. Beal was interrupted in his possession four several times; in 1806, 181 1, and 1817, by persons making perambulations on the part of the parish, and in 1820 or 1822 by persons making a perambulation by direction of the lord of the manor. On each of those occasions the inclosure was in part destroyed, and Beal was in effect disseised of the land, (if the term disseisin can be applied to a rightful ouster,) and each subsequent occupation by him was a new taking, and equally wrong- ful with the original taking. [Bayley, J. There is no proof that the profits of the land were taken by the persons who made any of the perambulations. The acts done by them amounted to a mere entry, and that, even if made within twenty years, by the statute 4 8c 5 Ann. c. 16, 8. \6, not being followed up by an action brought within a year, is no bar to the statute of limitations. Lord Tenter- den, C. J. If the lord of the manor had brought ejectment, these acts of interruption would clearly not have been suf- ficient to entitle him to recover. Parke, J. I doubt very much whether the lord of the manor could take advantage of the entries made by the parishioners in 1806, 1811, and 1817; for they were not made for his benefit, but for that of the parish (a).]
(«) Vide Co. Litt. 245 a, ^8«; 3 Tho. Co. Litt. 18, 57, 72.
WOOBURM.
CASES IN THE KINGS BENCH, Brodrick and Peake, contri, were stopped by the Court, TheKiKo ^"^
V.
lohabitants of Per Curiam. — ^The case is too plain for argument There
has been a clear adverse possession for twenty years, and
Beal gained a settlement by estate in the parish of ChippiDg
Wycombe.
Order of Sessions quashed.
Tlie King v. The Inhabitants of Langriville.
A paaper was BY an order of two justices, Edward Ewer by and his as labourer, at ^^^^ yitte removed from the parish of Langriville to the
thirty guineas parish of Stickney, both in the parts of Lindsey, in the a year, to have "^ ^x- , . , • . . j
a house, two county of Lmcoln ; and the sessions, on appeal, quasbea
Trol^Id o * M- *® order, subject to the opinion of this Court upon the
utoes. After following case : —
was made" his '" ^^® ^^^^ 1800, the pauper became a confined labourer
master said he to a Mr. Dickenson^ in the parish of Langriville ; he was to might have the ... . , . , .
milk of a cow, have thirty guineas a year, a house, two gardens, and a rood
and shortly Qf potatoes. After the bareain was made, his master said
after going "^ . . **
into the ser- he might have the milk of a cow ; and shortly after going
the^miTk of a ^°^^ ^^® service he had a cow, which was fed upon a close cow, which of his master's during that season of the year when cattle master's close ^^^ pasture fed. The value of the house, gardens, and the during that tooA of potatoes was under 10/. a-year, but with the ad- year when dition of the keep of the cow upon the land, amounted to
cattle are pas- more than that sum. The Court of Quarter Sessions were
turefed. Ihe .
value of the of opinion that the pauper gained a settlement in Langri-
a d*roud of"*' ^^^^* ^^ residing there more than forty days, and occupying
potatoes, was as above stated.
under \0L a
year, but with
the keep of the jv. R. Clarke and Hilduard, in support of the order of
cow upon the . . -^ • , - , , ,. . .
land was above sessions. Ihe sessions were right in holding that the
that sum :
Held, that the pauper did not acquire a settlement by the occupation of a tenement nf
the yearly value of 10/.; for it was no part of the contract that he should bsFC tlie
milk of a cow, and even if it had been, it was no part of the contract that the cow
should be pasture fed.
EASTER TERM, XI GEO. IV. 727
pauper acquired a settlement in Langriville. Rex v. Ben" 1830.
neworth(a) is a direct authority in favour of their decision. Ji^„ fr» . 1 ±ae Kino
There the pauper was hired for a year, and had by agree- v.
ment a house and garden, a rood of potatoe land, and the J^jJ^^j^^^ keep of a cow on his master's land. After the pauper had served two years, his cow failing in milk, he had, in lieu of the cow, two heifers kept for him, through the kindness of his master, and not in consequence of any bargain. The potatoe land and the two heifers were of the annual value of 10/. ; but the potatoe land and the keep of the one cow were of less annual value than 10/. It was held that the keep of the two heifers was a tenement. It was no part of the contract in that case that the heifers should be pas- ture fed ; and it will be contended, on the authority of the subsequent case of Rex v. Thornham (6), that the contract in this case should have contained a stipulation for the milk of the cow, and that the cow should be pasture fed. It must be admitted that the decision in Rex v. Thornham does go that length, and that if that case is to be considered as over-ruling Rex v. Benneworth, it must be part of the contract that .the cow shall be pasture fed. But Rex v. Benneworth was decided after full argument and consider- ation, and cannot be considered as over-ruled by Rex v. Thornham^ for it is not mentioned in it. But admitting that, for the purpose of a settlement in this case, it must have been part of the contract that the cow should be pasture fed, still it is not necessary that that should be expressed in the contract. The contract must be presumed to have been made in conformity with the usage of the country ; and where that usage appears, must be so con- strued. Now it is the usage in that part of the country where this contract was made, that during a certain portion of the year cattle shall be pasture fed, as appears by the words in the case, " during that season of the year when cattle are pasture fed." In hiring a servant, it need not be
(a) 4 D. & R. 355; 2 B. & C. (6) 9 D. & R. 752; 6 B. & C.
775 ; 2 D. & R. Mag. Ca. 319. 733; 4 D. ^ R. Mag. Ca. 494.
CASES IN THE KINGS B£NCH» expressed that he is to be fed io bis master's house, for that is taken to be understood, because it is customary. 9. For the same reason it is unnecessary to stipulate that the
L^woimtiR *^^^ ^^^^^ ^^ ^^^ ^° *® master's land, that being customary also.
Fynes Clinton and Waddington^ contr^. In order to tc* quire a settlement of this nature, the pauper most be of right, that is, by the terms of bis contract^ in the enjoyment of some interest arising out of land of the annual value of 10/. Here the pauper had, by his contract, an interest in his master's land, but not of the requisite value, for the permission to have the milk of a cow was a mere act of favour on the part of his master, which was granted after the contract was complete, and which might have been withdrawn at any moment Rex v. Benueworth is perfectly distinguishable from the present case, for there the two heifers were merely substituted for the cow, which the pauper was by his contract erititled to keep on his master's land. Besides, there is nothing here to shew that the cow was to be fed on growing produce ; whereas Rex v. SMon St. Edmund's (a), Bex v. BardweH{b\ and Rex v. Thorn- ham^ are direct authorities to shew that there must be an agreement, or at least an undertaking, to that effect: and this defect is not supplied by the fact found, that the cow was actually so fed.
The case was argued on a former day in this term, when the Court took time for consideration ; judgment was now delivered by
Lord Tbnterden, C.J. — The question in this case was, whether a settlement was acquired by the occupation of a tenement of the yearly value of 10/. in the parish of Langriville. In order to constitute this species of settle-
(a) 2 D. & R. 800; 1 B. & C. {h) 3 D. & R. 369; a B. & C. 656 ; 1 D. & R. Mag. Ca. 434. 161 ; 2 D. & R. Mag. Ca. 53.
£AST£a TEUM, XI GEO. IV. 729
pent under ihe statute 13 & I A Car. 2^ c. 1^ it is neces- 18S0. sarj that the pauper should have an interest in the subject of the occupation (such subject being of the requisite yearly v.
value), IIS tenant or occupier^ though it is not necessary that La^omvillb. he should be under an obligation to pay rent, or that he should have more than an estate at will ; Rex v. Fit* longlejfia). It has also been established, by a series of cases which were considered and confirmed in that of Rex V. Benneworth (6), that it was a sufficient occupation of a tenement if the pauper had an interest in a part of the profits of the land, by perception, by the mouths of his cattle. But it is essential, whether the subject of occupa- tion be the land itself, or a part of its profits, that the pauper should have an interest as tenant or occupier; a possession by mere licence, without that interest, is not enough. If a person were permitted by the owner of a pasture to feed his cow or sheep upon it, for a time, with- out any valuable consideration, and without reference to any contract between them, but by a mere act of charity or favour, no settlement would be gained by such a per* missive enjoyment of the produce of the land.
But, if there had been a contract with the owner for a sufficient consideration, by which the pauper had a right to part of the profits of the soil, to be taken by his cattle, he would have an interest ; and his occupation with that in- terest (if those profits were of the requisite annual value), would confer a settlement after a residence of forty days.
In the case of Rex v. Benneworth^ which was so much relied on in the argument of this case by the counsel for the appellants, as an authority to shew that a gratuitous occupation was sufficient, it appeared that two heifers were substituted by the consent of the master for the cow which the pauper had a right, by his contract, to feed on bis master's land. The pauper in that case, therefore, may be considered as having had, by the act of the owner of the
(a) 1 T. E. 458.
(6) 4 D. & R. 355; 2 B. & C. 775; 2 D. & R. Mag. Ca.S19.
730 CAS£S IN THE KINg's BENCH,
1830. soil, as much interest in the land by the feeding of the
^^■^^'^'^^ heifers, as he had before by the feeding of the cow. The The KiKO . ^,. . ^,^.^,r
ff, perception of the larger portion of the profits by the former
Inhabitants of ^^g equally referable to an interest in the land, as that of Lamgriville. ^ •'
the smaller portion by the latter.
In the present case, however, the sessions have found
that the master gave permission to the pauper to have the
milk of a cow, after the bargain between them had been
completed ; and though it be taken that the cow was to be
fed on the land, and that the master meant at the time that
the cow should be fed on the laud (which, however, does
not distinctly appear, nor is there any thing to shew that be
would not have kept his promise, and even performed his
contract, by allowing the milk of a cow fed otherwise than
on the land), we think this must be considered as having
been done in consequence of a mere act of kindness or
favour on the part of the master, not referable to any con-
tract, and that no interest was thereby acquired by the
pauper in the profits of the land. It follows from this
that no settlement was gained by the pauper in Langriville.
Order of Sessions quashed (a).
(a) A8 to the right of a dairy- c. 45,) sea John Brenfs case,
man to vote as a 50/. occupier Manning's Notes of Revision, 183,
under the 20ih section of the Par- edition of 1836. liamentary Reform Act, (2 W. 4,
Fisher r. Clement.
Whether CaSE for a libel. The declaration stated the following
OT*printrd"lJy^" matters of inducement, as applicable to all the counts :— X, concenimg fhat the plaintiflF was a married man, having a wife and depends not ' eight children: that one John Joseph Stockdate had printed upon il'® >^ and published of and concerning plaintiff a certain false, to injure B., &c. libel, containing, amongst other things, the false, &c. tendency of^ matter following, of and concerning the said plaintiff, setting the publica- out a libel upon the plaintiff, purporting to be written by duce the injurious effect.
EASTER TERM, XI GEO. IV. 731
one Harriette Wilson, in which the plaintiff is charged isso. with immoral and profligate conduct, and is called '' a dirty nearly six foot Devonshire Lawyer and a wretch.'* That «.
Fisher impleaded Stockdale for the printing and publishing Element. of such libel. That Stockdale pleaded not guilty. That a verdict was found for the plaintiff, Fisher, damages, 700/. That the now defendant Clement, contriving to injure 8cc. Fisher, and to cause it to be believed that he had been guilty of the misconduct thereby imputed to him, and that he being such husband and father, was an abandoned and profligate man, and had been and was fre- quently engaged in intrigues and immoral connections with females, did print and publish, and caused to be printed of and concerning the plaintiff, a certain false, &c. libel, containing &c., the false, malicious &c. matter following of and concerning the plaintiff, that is to say — (Here were set out some doggrel lines, containing a supposed dialogue between Harriette Wilson and Stockdale, entitled " St-ck- d-le and Har-riette W-ls-n, a London Eclogue.") The parts supposed to relate to the plaintiff were these : " With recent verdicts out of tune — To Fisher** (thereby meaning the plaintiff) '* Blore, large sums were given,-^To one 300/., t'other seven. — Much St-ckd-le feared lest such a sample — Make others follow the example. Stockdale — 'T would be too hard to pay for truth. Harriette — But truth has a far keener tooth — Than falsehood, for we may despise — What we all know a pack-of-lies. — 1 wrote what was not only new, — But also in its substance. ..." (There- by meaning in its substance true.) The declaration also con- tained two other counts.
The defendant pleaded not guilty, and upon the trial of the issue before Sest, C.J. at the London sittings after Michaelmas term, 1826, a general verdict was found for the plaintiff, with entire damages, upon which judgment was entered up in Common Pleas. A writ of error being brought in the King's Bench, this Court reversed the judgment upon the insufficiency of the second count, and a venire de novo being awarded, the cause was tried at
732 CASES IN THE KING*S BENCH,
1830. the London sittings after Trinity term» 18£8. It was coor tended on the part of the defendant, that the tendency of the publication was to attack Harriette Wilson and Siockdale, and not to injure the plaintiff. For the plaintiff it was contended, that whatever might be the intention of the defendant with respect to Harriette Wilson and StockdaU, the statement represented in the libel to have been made by the former — that she could answer Fisher*9 case, and thereby destroy his defence to the defamatory charge made against him — tended to injure the character of the plaintiff. In summing up the case Lord Tenterden, C. J. said, that the question for the jury was, the intention of the publication ; whether it was intended to aver the truth of Stockdale*8 libel, and thereby to injure the plaintiff, or whether the object of the publication was to reflect on H. Wilson and Stockdale, and whether any person reading the eclogue would receive an unfavourable impression of the plaintiff. The jury found a verdict for the defendant. In Hilary term, 1829» Campbell obtained a rule nisi for a new trial, on the ground that the intention ought not to have been left to the jury ; and that they should have been directed to find for the plaintiff, if they thought that the tendency of the publication was to injure him.
Scarlett, A. G. and Phtt, (with whom were Dtnman and Brougham^ now shewed cause. The jury were told by the learned judge, that if by the publication it was in- tended to cast a reflection upon the plaintiff, they ought to find a verdict for the plaintiff, but that if the intentioa was merely to cast a reflection upon /f. Wilson and Slockr dale, they ought to find for the defendant. It is true that the intention of the publisher of a libel is in general an inference of law, resulting from the nature of the publica- tion itself. Here the tendency and the intention must be the same, for the learned judge went on to say, if you think that any person could receive an unfavourable im- pression of the plaintiff from reading this libel, you are io find the verdict for the plaintiff.
EASTER TEKMs XI GEO. IV.
This is no libel. AH that the plaintiff complains of is, that the persons introduced are made to speak in character, and be might as well have indicted the printers of the Bible for saying '' The Fool has said in his heart there is no God;*' or the publishers of Miltoris Paradise Lost, for the blasphemous words which the poet has put into the mouths of his devils. The whole case was before the jury, and they found that the publication was not libellous.
733
1830.
Campbell and Manning contri. The primary object of the libel was obviously to attack H. Wilson and Stock- dale, and from the manner in which the case was left to the jury by thelearned judge, they would naturally consider that they were to find their verdict for the defendant^ because, notwithstanding the necessary tendency of the libel to injure the plaintiff, they may have thought that such consequence was entirely overlooked by the defend- anty whilst pursuing his main object of attacking H, Wilson and Stockdale. With respect to the observation, that the jury found that the publication was not libellous, the answer is, that in civil actions the question of libel or DO libel, is matter of law to be decided by the judge, and not matter of fact to be ascertained by the jury, (a)
The malicious intention is also matter of law, resulting from the decision of the question, whether libel or no libel. Thus, in Bromage v.ProsseriJb), which was an action of slander for words of insolvency, the jury \i*ere told, that if they thought the words were not spoken maliciouslyi though they might unfortunately have produced injury to the plaintiffs, the defendant ought to have their verdict. But this -Court granted a new trial, on the ground that a
((/) By S2 Geo. 3, c. 60, (Mr. ment or information. As before
Fox's Act,) it is declared and enact- ed, that on the trial of an indktment or information the jury may give a general verdict of guilty or not guilty, and shall doc be required to firid the defendant guilty mere- ly on proofof publication, and of the sense ascribed in the indict-
the passing of the act the law was the same in civil and in criminal proceedings, guare, whether the circumstance of its being a dccla- raiory act makes its provisions in> any degree applicable to rtW cases. (6) 6 D.&R. S96; 4 B.&C. 847.
CASES IN THE KING S BENCH,
question of malice ought not to be left to the jury io cases of slander or libel, except where the publication bears the character of a privileged communication, which by de- stroying the implication of malice, renders express malice necessary to support the action, the existence of which is a proper matter to be left to the consideration of the jury.
Lord Tenterden, C.J. — The direction to the jury was substantially correct; and though not expressed with strict accuracy, would be understood by the jury, who were not accustomed to technical distinctions, as importing that they were to find their verdict for the plaintiff if they were of opinion that the tendency of the publication was to injure his character. I did not leave the intention of the publisher, as a distinct question and independent of the tendency of the publication. I have always thought, and have frequently expressed my opinion, that a person who publishes that which is injurious to the character of ano- ther, must in point of law be considered as intending to produce the consequences which ordinarily result from such a publication.
Bayley, J. — The jury were told to consider whether it was the intention of the publication to injure the plain- tiff, by representing that the prior libel was true. They were afterwards directed to find a verdict for the plaintiff, if they thought that any person reading the publication would receive an unfavourable impression of the plaintiff. The jury must therefore have understood that the inten- tion was to have been collected from the publication itself, and that was clearly a question for them (a).
LiTTLEDALE, J. coucurrcd.
Parke, J — The direction of the learned judge, though not critically accurate, was substantially correct. It was (a) But see Haire v. Wikoriy ante, vol. iv, 605; 9 B. & C. 643.
EASTER TERM, XI GEO. IV. 735
impossible for men of common sense, taking the whole 18S0. of the direction together, not to understand that the matter for their consideration was, whether the tendency of the publication was to injure the plaintiff.
Rule di;scharged.
Mercer v, Oliver Saxby Davis.
Trespass against the high constable of the town and Where (before parish of Maidstone, for distraining the goods of the ^^^ Municipal plaintiff, one of the overseers of that parish, for 157/. I65. Id., Corporation the amount of a rate of 1 Id, in the pound, made on all the 5^5 W.4 ratable property within the town and parish, as a town c. 76,) the stock or rate in the nature of a county rate. Plea: not borough con- guilty. At the Kent spring assizes, 1828, a verdict for J^Jroraitun"" nominal damages was taken, subject to the following case: clause, ex- Maidstone is a corporate town, and was first incor- county magis-
porated by charter, 3 Edw. 6 (1549), and has been so trace, a rate in , , • . ^ 1 1 - the nature of
contmued to the present time, by nve other charters; viz. a county rate
2 Eliz. (1559), 2 James I (1604), 17 James 1 (1620), "jf|j^jj,fo^^d
(a) Bat now, by 5 & 6 PT. 4, c. 76, s. Ill, ihc jusUces assigned lo keep the ^^ the borough
. magistrates
peace in and for the county in wliich any borough is situated, to which his y^j^r 55 G.
majestjr shall not have granted that a separate Court of Quarter Sessions of the 3 c. 51. (a) Peace shall be bolden in and for the same, shall exercise the jurisdiction of justices of the peace in and for such borough, as fully as bj law thej and each of them can or ought to do in and for the said county; and no part of any borough in and for which a separate Court of Quarter Sessions of the Peace shall be holden, shall be within the jurisdiction of the justices of any county from which such borough, before the passing of the act, was exempt, any law, tUitute, letters-patent, charter, grant, or custom, to the contrary notwithstand- ing." And by s. 112 it is enacted, " that within ten days after the grant of a separate Court of Quarter Sessions of the Peace to any borough, the council of such borough shall send a copy of such grant, sealed with the seal of the borough, to the clerk of the peace of the county in which such borough or any port thereof is situated ; and after the grant of such Court to any borough it shall not be lawful for the justices of the peace of any county wherein such borough or part of such borough is situate, to assess any messuages, lauds, tenements, or hereditaments, within such borough, to any county-rate there- after to be mode, but every part of every such borough shall thenceforward be wholly free and discharged from contributing, otherwise than is beremafter provided, to any rate or assessment of any kind, of and for the cottnt3' in which *nj part of such borough is situated.*'
736
1880.
CASES IN THE KINGS BENCH,
34 Charles 2 (1682), and 21 Geo. 2 (1747), which hst- meotioned charter was duly accepted by the inhabitaots of the town and parish, and after therein reciting that the town and parish was an ancient and populous town, aod had enjoyed divers liberties 8cc. by virtue of certain charters of former kings or queens of England, by the name of the mayor, jurats and commonalty of the town and parish .of Maidstone in tiie county of Kent, it was granted and ordained that the said town and parish should for ever thereafter be and remain a free town and parish of itself, and that the inhabitants thereof should be a body corporate in deed and name, by the name of *' The Mayor, Jurats, and Commonalty of the King's Town and Parish of Maidstone, in the County of Kent;" and for the better preserving and keeping of the town and parish in peace and good government, it was ordained that the mayor and recorder of the town and three senior jurats should be justices to preserve the peace within the town and parish, and to do and execute all and singular matters and things which belong to the office of a justice of the peace, in as ample manner as other justices of the peace for the county of Kent had been accustomed to do and execute, — that no justice of the peace of the county of Kent should in anywise intermeddle within the said town and parish to do any thing which there belougeth or appertaineth to the office of a justice of the peace, — that the major, recorder, and justices of the town and parish, or any three of them (of whom the mayor and recorder should be two) should from thenceforth for ever have full power and authority to inquire of, hear, and determine all trespasses and misdemeanors whatsoever, arising within the town and parish, as justices of the peace of the county, or any two or more of them, might or could do or perform, as well in as out of their sessions, by virtue of the commission to them made for that purpose, — so as that they nevertheless did in nowise proceed to the determining of any treason or felony, or any other offetice touching the loss of life or
EASTER TERM, XI GEO. IV. 737
niember, without the special mandate of his majesty in that isso. behalf: And that the said mayor, jurats and commonalty ^^^^^ might take and receive to their own use, all fines, forfci- t>.
tures and issues of jurors for their non-appearance, and Davis. also fines and forfeitures for trespasses and other mis- demeanorsi and contempts before the mayor, recorder and three jurats, justices, from time to time happening, grow- ing, or arising within the town and parish ; that the mayor for the time being should be the coroner for the town and parish; that the mayor, jurats and commonalty should take and enjoy to their own use, wharfage and anchorage of all ships and other vessels coming to the town and parish; that the mayor, jurats and commonalty, or the major part of them, for the better support of the charges of the town and parish, or for other reasonable causes or respects, or for the public good and benefit of the town and parish, and of the inhabitants thereof, should and might lawfully from time to time make, impose, and assess reasonable taxes and assessments upon themselves, and every inhabit- ant there, and might take and levy the same by distress, or in any other legal manner as they had theretofore been used and accustomed; and that the mayor, jurats and commonalty should and might have, hold, and enjoy from thenceforth for ever, all such lands, tenements, heredita- ments, goods and chattels, liberties, powers, authorities, franchises, immunities, indemnities and free customs, as the said town and parish, or the then late mayor, jurats and commonalty before the then late dissolution of the said corporation or their predecessors, had lawfully had or enjoyed by virtue of any charters or letters-patent of his said majesty, or any of his progenitors, theretofore kings or queens of England, or otherwise, by any lawful means, right or title whatsoever, although the said franchises, liberties, immunities, and free customs had not been there- tofore used, or, it might be, had been abused by them or their predecessors, and although some of them were, and others were not, particularly enumerated therein. VOL. V. 3 b
738
1830.
CASES IN THE KINO 8 BENCH,
The management of the poor of the parish of Maidstone is by an act of parliament, 20 Geo. 3, vested in certain trustees, of whom the major and the three senior jurats (not being justices of the peace for the town), and the churchwardens and overseers of the poor for the time being, are part, by whom the rates for the relief of the poor, and for any other purposes to which they are by law applicable, are made, and the disbursements super- intended.
The paving, watching, and lighting the town and parish, and maintenance of the highways, are conducted by com- missioners, and paid for by rates appointed and made under other acts of parliament of 31 Sc 59 Geo. 3, and those commissioners have erected a watch-house io the town.
There is a certain bridge in the said town and parish over the river Medway, the piers, arches, and side walls of which have been hitherto supported out of the poor- rates, but the foot and carriage pavements over the same bridge, ever since the passing the first above-mentioned Pavement Act, 31 Geo. 3, 179 If have been repaired by the commissioners under that act, and before then were repaired by the surveyors of the highways out of the high- way rates.
Up to 1804 the town gaol consisted of two rooms at the top of the town-hall, and, with the town-hall, was maintained by the mayor, jurats, and commonalty, out of the corporation funds, but in that year the trustees of the poor erected (the expense of which erection was defrayed from the poor-rates) a certain building within the walls of the workhouse premises, and appropriated the upper part of it to the purposes of a town gaol, and the lower part to the use of the poor, and from that time the gaol at tbo top of the town-hall was disused.
In 1824, this last-erected prison being found to be insufficient for the purposes of the town as well as inse- cure, the mayor and justices, under the powers aud autho- rity of 5 Geo. 4, c. 85, entered into a contract with the
EASTER TERM, XI GEO. IV. justices of Kent for the maintenance of the town prisoners in the county gaol and house of correction, from the time of commitment till the time of trial and conviction, or the discharge of .the prisoners; and the sums payable under such contract have been paid by the trustees out of the poor-rates, and such maintenance, on an average of the last three years, has amounted to the sum of 170/. a year. And upon this contract being entered into, the above- mentioned building was disused as a prison, and the whole of it appropriated to the use of the poor, and no other prison is now made use of than the above-mentioned watch-house.
The expenses of prosecutions of prisoners, and of the witnesses in cases of felony at the assizes, and at the Kent quarter sessions for offences committed within the juris- diction of the mayor and justices of the town (which is co- extensive with the parish) were formerly and till the year 1820 always paid by the treasurer of the county of Kent, out of the county rate; but about that period the justices of the county, alleging that the county was not liable to those expenses, and that they had been paying them in error, refused to defray them any longer, and from that time those expenses have been and still continue to be paid by the trustees of the poor from the poor-rates, upon the orders of the judges of assize and justices of the county quarter sessions.
At a general quarter sessions of the peace duly holden in and for the town and parish of Maidstone on the 26th October, 1825, before the mayor, recorder, and three justices of the town and parish, the said mayor, recorder, and three justices, did order a rate and assessment to be made upon all the ratable property within the town and parish, as a town stock or rate, in the nature of a county rate, to be applied and disposed of in such a manner and for such purposes as such rate was then or might thereafter be made applicable to by law, at the rate of three-halfpence in the pound, upon the sum of 25,249/* 5$., the then
3 b2
739
1830.
740
1830.
CASES IN THE KINGS BENCH,
annual value of ihe said ratable property, amounting to the sum of 157/. I65. Id.^ and that the constable of the town and parish, which the defendant then was, should collect and receive from the churchwardens jind overseers of the poor of the said parish of Maidstone, the said rate of 157/. 165. \d., and pay the same into the hands of the treasurer appointed to receive the same, at or before the * then next general quarter sessions of the peace to be holden for the town and parish.
The defendant accordingly, and in pursuance of the said order, and in the mode prescribed by the act of 55 Geo. 3, c. 51 (a), s. 12, served a notice in writing upon the plaintiff (who was then one of the churchwardens of the parish of Maidstone), requiring the plaintiff, within 30 days of the receipt of the said notice, to pay out of the money collected by him for the relief of the poor of the parish of Maid- stone, the sum of 157 1. iQs. Id. so rated and assessed upon the parish of Maidstone as aforesaid.
The said sum of 157/. I65. Id. was not paid by the plaintiff or the other churchwarden, or by the overseers of the poor of the said parish, within SO days after the receipt of the said notice.
A summons under the hand and seal of one of the jus* tices for the town and parish was issued, by which the plaintiff and the other churchwarden, and the overseers of the poor of the parish of Maidstone, were summoned to shew cause why they had neglected and refused to pay the said rate or assessment, which summons was served upon the plaintiff.
The plaintiff did not, nor did the other churchwarden or the overseers of the poor of the parish, attend such summons, or shew any good cause why they had neglected and refused to pay the said rate or assessment ; and that the said justice issued a certain warrant under his hand and seal, commanding the defendant to levy on the goods and chattels of the plaintiff, as such churchwarden, the said
(a) The County-Rate Amendment Act.
EASTER TERM, XI GEO. IV.
sum of 157/* 165. Id; so rated and assessed upon the parish.
The defendant as such constable accordingly executed the warrant, by seizing and taking the goods. For such act of levying this action is brought.
Every thing done and executed by the justices and the defendant, touching the said rate or assessment and levy, was done and performed properly and legally, provided the justices had power to make the rate.
Before this action was commenced, a demand in writing of a perusal and copy of the warrant under which the defendant acted, signed by thp plaintiff, was made on the defendant (a); and the same was refused and neglected to be given by the defendant for the space of six days, nor was it given at any time before this action was commenced.
This action was commenced within three months from the time of the making of such distress and levy.
The inhabitants of the town and parish of Maidstone never contributed to the rates of the county of Kent, and until the rate in question was made in 1825 upon the parish of Maidstone, in the nature of a county rate, no such rate was ever made within the town and parish.
The mayor, jurats, and commonalty have never taken wharfage or anchorage for ships or other vessels coming to the town, nor has the clause in their charter for making rates and assessments upon the mayor, jurats, and com- monalty, and other inhabitants, been ever acted upon.
741
18S0.
Mercer
V.
Davis.
Manning (with whom was Piatt) for the plaintiff. The 55 Geo, 3, c. 51, s. 24, under the supposed authority of which this rate was imposed, applies only to particular districts not being within the jurisdiction of the justices of the peace appointed for the county at large. In Rex v. W, Clark (b)
{») Under 24 Geo. ?, c. 44>wV/c 67 1 ; 4 B. & Adol. 1 13; Barrons
Price V. Jiie$stvger, 2 Bos. &PuIl. v. Luscombe, 5 N. & M. 330. 158; 3 Esp. N. P. C. 96, 101; (b) 1 Dowl.&R)l.316; SBarii.
Slurch V. Clarke, 1 Nev. & Man. 8c Alders. 665,
742 CASES IN THE KINO's BENCH^
1830. it was held, that die inhabitants of the city of Bath were liable to be assessed to the Somerset county rate, although they had magistrates of their own, because those magis- trates had no jurisdiction in cases of felony ; it was therefore considered that the jurisdiction of the county magistrates was not taken away by the charter. Here, the borough magistrates have no jurisdiction in cases of felony; such cases^ therefore, may be tried at the quarter sessions of the county of Kent. Before the case of Rex v. W. Clark, the Court put a similar construction on 13 Geo. 2, c. 18, s. 7, in Bates v. Winttanley {a). [Bayley, J. In Rex V. W. Clark the Court only decided that a place within the county having a separate commission of the peace^ was not wholly exempt from contribution to the county rate, except where the separate jurisdiction extended to all matters to which a county rate is applicable* In JRer V. Myers (b), which.w&s an indictment against the Secretary of the division of Kesteven, in the county of Lincoln, for disobedience of an order made upon the defendant by Mr. Baron Hoiham, for the payment and expenses of a prosecu- tion for an offence committed in the town of Stamford,—- the justices of which had an exclusivejurisdiction, — the Court held, that the indictment could not be supported, because the order ought to have been made upon the treasurer of the town of Stamford, So here, the expenses of prosecu* tions at the assizes for felonies committed in Maidstone, may be ordered to be paid out of the town rate* Parke, J. The charter containing an absolute and unqualified non intromittant clausci the justices of the county of Kent can make no rate which shall include Maidstone ; this case is therefore very different from the Bath case.] The Bath case was decided on the ground that the city magistrates had no jurisdiction to try felonies. A similar omission occurs in the Maidstone charter. The chartered district
(ct) 4 Maule 8c Selw. 429. Rtx v. Treanurer ofBurreg, 1 Qiit.
(6) 6 T. R. S37; and see Rex Rep. 650. V. Johmonf 4 Maule & Selw. 515;
£ASTER TERM, XI GEO. IV. 743
cannot be exempt from part of the county rale ; it must be teso. exempt altogether, or liable to the whole, and if so liable, it cannot be also liable to a rate within the chartered dis- trict, in nature of a county rate.
Campbell contri was stopped by the Court. He after- wards referred to Talbot v. Hubble (a).
Bay LEY J. — Weatherhead y» Dretpry (b) establishes, that where a town corporate has an exclusive commission of the peace, although it be not a county of itself, the local magistrate may levy a rate in the nature of a county rate. There are many purposes to which a county rate is appli- cable. They are collected in Burn's Justice. Here you have a charter containing a non intromittant clause. There is no single act in the character of justices which the county magistrates can do. If the case of Mex v. fV. Clark (c) were applicable, we should be driven to consider whether a rate, in nature of a county rate, could be raised for one purpose only. But it seems to me that that case may be distinguished from the present. The magistrates of Bath had not a general jurisdiction. Here the justices of the borough, not being county magistrates, were only entitled to commit to the gaol of the borough. It is said, on the part of the plaintiff, that the person so committed must remain in prison for an indefinite time. But the borough magistrates would have authority to remove such prisoners to the assizes for trial, and they would be naturally anxious to remove them ; the argument, therefore, from Rex v. fT. Clark does not apply. If the town of Maidstone had a treasurer and rates, — as it ought to have, — then, according
(a) 2 Stra. 1154, where it was 456. As ^o local jurisdiction in
Iield, that county magistrates can- matters of excise, see Xt7c, ex parte,
notactunder 12 Car. 2,0. 83, s. 31, 2 D. &R. 212; Kite and Lane's
and 15 Car.2, c.l 1, s.22, in matters case, 1 B. & C. 103. ofezcise,within a district having an (6) 11 East, 168.
eicIusiFe commission of the peace. (c) 1 Dowl. & Il^l. 316; 5
And see Rex v. Sainsbury, 4 T.R. Barn. & Alders. 665.
744
1830.
CASES IN THE RINGS BENCH,
to Rex V. JHfi/ers, where expenses were incurred in the pro- secution of felons, an order would be made upon suck trea- surer for such payment. In that case, the town of Stam- ford had exclusive jurisdiction, and it was held, that tbe order for the payment ought to be made upon Stamford. So here the order ought to be on the treasurer of Maidstone, there being a non intromittant clause, and consequently no power to issue a warrant to levy county rates.
LiTTLEDALE, J. — I am of the same opinion. James v. Green {a) is an authority to shew that a rate, in nature of a county rate, may be levied for a town incorporated within the time of legal memory. That was the case of the town of Nottingham, which is a county of itself ; but Weather* heady, Drewry extends the rule to a town-corporate which is not a county of itself. By the non intromittant clau.se in this charter the county magistrates have no right to come into Maidstone for auj/ purpose. All felonies committed there must be tried at the assizes, unless a special commis- sion be issued. It seems to me, that if the borough magis- trates cannot make a rate no one can.
Parke, J. — Here, by charter, there is a commission of the peace within the borough, and it is clear that the bo- rough is not subject to the county commission for any purpose. The words of the charter are very large. Rex v. W, Clark certainly contains expressions which favour Mr. Mantnug's view; but the case itself is distinguishable; tbe Bath justices had no exclusive jurisdiction (6).
(a) 6 T. R. 228. •
{b) And see Hex v. George Shep- hard(\\\gU constnbleofthe borough of Marlborough), 4 Ne%'. & Mnnn. 185, 2 Adol. & Ellis, 298; Rex v.
Poslea to the defendant (c).
Theophilus Jeyes, 5 Ner. & Mana. 101, 3 Adol. & Ellis, 415.
(c) Tliis, and the last preceding case, were decided in Hilary tenn.
EASTER TERM^ XI GEO. IV. 745
1830.
WiNGFiELD and Others v. Tharp.
IHE following case was sent by Sir L, Shadwell, V. C, By an inclo-
for the opinion of this Court :— sure act, com-
•^ ... inissioncrs are
Samuel Hunt was, at the respective times of making the authorized to
surrender and will, and until his death, seised to him and ^|,^ inciJ,Ted° his heirs, according to the custom of the manor of Ken- l*"<^s »" com- nett-within-Kentford, in the county of Cambridge, of a mes- rights of com- suage or farm, house and homestall, and pasture land, con- "*°"' •'^"^ ^**° taining 1a. 2r. 20p., and of certain open field lands, rights &c. in ex- of sheepwalk, rights of common, and an old inclosure, otheHands respectively parcel of and within (a) the said manor, and &c., provided situate in the parish of Kennett, in the said county. Hunt i^ specified^fn surrendered his copyholds to the use of his will. thejr award,
T» -11 • • , I « 111 and be made
1813. By will, beanng date 24th August, and duly ex- with the con-
ecuted and attested, Hunt devised unto the plaintiffs all his sent of the
' .... owners. The
copyhold estates; habendum to the plaintiffs and their heirs, commissioners
in trust to sell, with the usual powers for that purpose. uln'^allot-*'^
1813. By "An act for inclosing lands in the parish of »nent to ^. as
Kennett, in the county of Cambridge," — after reciting that in tjyn for his "
the parish there were certain old inclosures, open and com- "S*^^* of com-
% t . . . 1 1 V , '"0">and an
uion fields, common meadows, heaths, and other open and old inclosure
commonable lands and waste grounds, and further reciting %^^lhtf^
that the lands in the said open and common fields lay b^ the commit-
intermixed and dispersed in small parcels, and that the said chanJe!^Th\s
common meadows^ heaths, and other open and commonable award is bad,
lands and waste grounds, in their then state yielded but quires no title
little profit, and were incapable of any considerable im- ^" *^® **^^^"
provement, and that it would be very advantageous if the
same were divided and allotted amongst the several owners
thereof and persons interested therein, in proportion and
according to their respective estates, rights and interests in
the same, and if such allotments were inclosed so far as
was expedient, — Charles Wedge and Edward Gibbons were
thereby appointed commissioners for carrying the purposes
(a) Vide ante, 140 {a), i4^{b).
746
1830.
WiNGFIELD
and others
V. TUARP.
CASES IN THE KING S BENCH,
of the General IncIo3ure Act and the said act into execu- tion, subject to the regulations of the General Inclosure Act (a) in all cases, except where the same were by the said act varied and altered ; and after giving various directions to the said commissioners relating to the execution of their duties under the said act> it was enacted, that the said com- missioners should then set out, allot and award unto the several proprietors and owners thereof, and persons 'having a right of common or other interest therein^ all the then residue and remainder of the lands and grounds thereby directed to be divided^ and allotted, in such quantities, shares and proportions as the said commissioners should adjudge and deem to be a just compensation and satisfac- tion for, and to be equal to^ their several and respective lands, grounds^ rights of common, rights of sheepwalk, and other rights and interests therein. And it was thereby fur- ther enacted, that it should be lawful for the said commis- sioners to set out, allot and award any lands, tenements and hereditaments, within the said parish of Kennett, in lieu of or in exchange for any other lands, tenements or hereditaments within the said parish, or within any adjoin- ing hamlet, parish or place; provided that all such ex- changes should be ascertained, specified and declared in and by the award of the said commissioners, and should be made with the consent of the owner or owners, proprietor or proprietors, of the lands, tenements or hereditaments, which should be so exchanged, whether such owner or owners, proprietor or proprietors, should be a body or bo- dies politic, or corporate or collegiate, or a tenant or tenants in fee simple, in fee tail, or for life, or by the cour- tesy of England, or for years determinable on a life or lives, or having a beneficial lease for years, or with the consent of the guardians, trustees, feoffees for charitable or other uses, husbands, committees, or attorneys, of or acting for any such owners or proprietors as aforesaid, who at the
(a) 41 Geo. 3, c. 109. And see the subsequent act of 1 & 2 Geo. 4, C.23.
EASTER TERM, XI GEO. IV.
time of making such exchange or exchanges should be respectively infants, femes covert, lunatics, or under other legal disability, or who should be beyond the seas, or other- wise disabled to act for themselves, such consent to be tes- tified in writing under the common seal of every such body politic, corporate or collegiate, and under the hands of the other consenting parties respectively; and that all and every such exchange and exchanges so to be made should be good, valid and effectual in the law to all intents and purposes whatsoever: Provided, nevertheless, that no ex- change should be made of any lands, tenements or heredita- ments, held in right of any church or chapel, or other eccle- siastical benefice, without the consent, testified as aforesaid, of the patron thereof, and of the lord bishop of the diocese in which such lands, tenements or hereditaments, so to be exchanged, should be situated. And it was further enacted, that nothing therein contained should extend to revoke, make void, alter or annul any will or settlement ; but that the person or persons to whom any lands, grounds, or here- ditaments should be allotted or given in exchange by virtue of that act, should be seised thereof to such and the same uses, and for such and the same estates, and subject to such and the same wills, jointures, rents, charges, and in- cumbrances, and no other, as the messuages, cottages, lands, grounds, and hereditaments, whereof such person or persons was seised or possessed at or immediately before the execution of the award of the said commissioners, or for which or in respect whereof such allotments or ex- changes should be made, would have been subject to, charged with, or affected by, iu case the said act had not passed.
1814. Samuel Hunt iiied.
1820. The commissioners, pursuant to the directions of the General Inclosure Act (a), executed their award in writing under their hands and seals, dated the said 14th day of July, 18^0; and they thereby awarded and allotted
(a) 41 Geo. d, c. 109, ss. 35, 37.
747
1630.
WiNCFIELD
and others
V.
Thabp.
748
1830.
WiNGFIELD
and others
V,
Thabp.
CASES IN THE KING S BENCH,
amongst other things, unto and for the plaintiffs in the said award, described as devisees of the said Samuel Hunij deceased, in lieu of and as compensation for their copy- hold, open field lands, rights of sheepwalk, rights of com- mon, and an old inclosure given up by them the said plain- tiffs, to be allotted by the said commissioners in exchange, (all of which were copyhold of the mdnor of Kennett-within- Kentford,) two several allotments of land, therein particu- larly described, containing respectively 21a. Sr. 37p* and
goA. ]R. iop.
The plaintiffs agreed to sell the two allotments made to them to the defendant.
The question for the opinion of the Court is, whether the plaintiffs can make a good title to these allotments.
Preiton, for the plaintiffs. The objection raised against the title is, that the award of the commissioners is bad. [Bay ley f J. Suppose this is an old inclosure, the commis- sioners had no power to award it in exchange.] It is another question whether the award is void in toto. The objection amounts to this, that the commissioners had not power to make an allotment to the plaintiffs in lieu of old inclosures. But the plaintiffs ought not to be in a worse condition than if an allotment had been made to them in respect of their common rights, without reference to old inclosures ; and supposing the allotment to have been too large if the old inclosure is excluded, the parties injured by such excess should have appealed, on the ground that the allotment was larger than the plaintiffs were entitled to in respect of their common rights. The award is final against those who, having the power of appealing, neglect to take that course. It would be contrary to all justice to contend, that if one part was not duly allotted, and other parts were well allotted, the whole should fall to the ground. It is true that in Cooper v. Thorpe (a). Sir Thos. Plumer, M. R., was of opinion that an award under an inclosure act, if bad
(d) 1 Swanst. 105.
, EASTER TERM, XI GEO. IV, 749
in part, was bad altogether ; but in Rex v. Washbrooke (a) igso.
it was considered by Bay ley, i,, and not denied by the rest ^^^^/^^
of the Court, that the award of comuiissioners appointed to ^^^ others
fix and ascertain the boundaries of a parish, as well as to _ v-
. Tharp.
allot common fields, might be bad as to their ascertainment
of the boundaries, without affecting that part of the award which related to the allotment. This award is not to be construed strictly. In Rich v. Clarkson {b) it was held, that no technical form is necessary in awards under inclo- sure acts, but that it is sufficient if the commissioners sub- stantially pursue Ihe power with which they are entrusted. If this was a mistake of the commissioners, and no such exchange could be legally made by them, that part of the award may be rejected as surplusage. The Court will not, upon this trifling error, overset an award upon which the rights of 500 persons depend. If any person's rights are improperly dealt with by this award, he has his remedy by injunction (c). That would be the proper mode of disposing of the question consistently with the justice of the case. By setting aside this award, the titles in all districts where inclosures have taken place would be unsettled.
Rolfe, contr;^. The defendant having contracted to purchase from the plaintiffs an estate, constituting one entire property, are advised to take the objection that the award is not authorized by the act. It is plain, upon the facts stated, that no title can be made to these allotments. The plaintiffs have no title, unless the statute, and the avi'ard purporting to be made in pursuance of the statute, confer that title. Though this award is made by commis- sioners having somewhat of a public character, it can be regarded no otherwise than as the award of private indivi- duals. So long as the commissioners obey the directions of the act, their award is final ; but here they have made an allotment which the act did not authorize them to make.
(a) 7 Dowi. & Ryl. 22 1 ; 4 Barn. (c) It seems difficult to consider
Sc Cressw. 732. that as n good title which requires
(fr) 2 W. Bla. 318. an injunction to support it.
760
1830.
WlNGFIELB
and others
9,
Tharp.
CASES IN THE KING S BENCH,
The act gave them no power to adjudicate upon the rights of the proprietors ; and if Hunt had brought an ejectment for the land taken away from him by the awards the action could not have been defended. If the parties in possession of the old inclosure were to allege that the commissioners had awarded the land to the defendant, the answer on the part of Hunt would have been, that the commissioners had no authority to make such allotment. If Hunt or his devisees could maintain ejectment for the old inclosure, it is clear that the plaintiffs can have no title to the allotment in lieu of such old inclosure. If the benefit intended to be given to one party is void, the equivalent must be also void. In Pope v. Brett (a), where the award was that Pope should be paid and satisfied by Brett the money due and payable to Pope as well for task work as for day work, and that Pope should pay to Brett 251. in full satisfaction of all demands, and that mutual releases should be executed, the award was held to be void in toto, for not expressing how much was to be paid for the task work.
There is no authority given by the act to allot old inclo- sures, except under the exchange clause. But this allot- ment to the devisees of Hunt is not really an exchange, — which is where each of two parties gives his own, and receives something from the other, — but it is an allotment for and in consideration of something brought into the mass.
Then the exchange clause directs that all such exchanges shall be ascertained, specified and declared in and by the award, and requires the consent of the owners. Here the award does not shew how much the devisees take by way of exchange, and how much as an allotment in respect of
(a) 3 Snund. 29S. And see Ith gram v. Rauche, H. 18 £.4, fo. 22, pi. 3, and M. 19 £. 4, fo. 1, pi. 1 ; Wilmer f. Oldjkld, 1 Leon. 304; Oldfield V. Wilmore, Owen, 153 ; Samon v. Pitt, 1 Roll. Abr. 85, (translated 3 Via. Abr. 85 ;) Bar*
fiey v. FairchiH ibid.; Muncky ?. Smith, ibid.; Birkt v. Trippeltj 1 Saund. 32 ; Veak v. Warner, ibid. 394(2); Hod$den v. Harridge, 9 Saund. 64; Cqppin v. Humard, ibid. 127; Cooke v. Whorwood, ibid. 337.
V.
Tharp.
EASTER TERM, XI GEO. IV, 751
Hunfa rights of common. Then the consent of the re- isso. spective owners does not appear on the face of the award. ^^^/-^^ This omission is fatal, because the parties may be persons ^^d others under disability^ who, if the consent required by the statute has been given, may have their remedy against parties from whom such consent may have been improperly obtained, and who, on the other hand, may, if such consent has not been given, step in at a future period, and assert their rights against the allottees and those claiming through them. The Court will not presume consent in support of the imperfect exercise of a limited authority. The diffi- culty which presses upon the plaintiffs has long been felt; and in several acts for inclosing lands in the neighbouring county of Suffolk (a), clauses have been introduced for the purpose of obviating the difficulty. The present is an attempt to avoid the necessity of introducing such clauses.
Prestorif in reply. The plaintiffs do not rely on the
exchange clause. This is different from the case of an
award made between two parties. Who is to impeach the
plaintiffs' title ? If the Court can see enough upon the
face of the award to support it, they will do so. Here the
commissioners say that they make the allotment in respect
of two things ; in respeol of one of which the allotment
might be lawfully made : the Court will therefore presume
that the allotment was so made. [Parke, J. It is much
the same thing as if it was given for land, and a hundred
pounds paid down. It does not appear that there was a
power of appeal.] A power of appeal is given by this act,
though not stated in the special case. If this objection
prevails, the award must be void in toto. [Parke, J. Why
may not the exchange have been made, though not duly
stated on the face of the award ? Lord Tenierdeii, C. J.
The commissioners say there has been an exchange, — why
should we say there has not?]
Cur. adv. vult.
(a) Bartou Mills, Farnham, Freckingham, Higham,Icklington, Risby, Warliogton.
762
1830.
WiNGFIf-LD
and niliurs Til A III*.
CASES IN THE KING S BENCH,
The following certificate was afterwards sent : — " This case has been argued before us by counsel. We have considered it, and are of opinion that the plaintiffs cannot make a good title to the allotments therein men* tioned. Tenteuden.
J. Bayley. J. Littledale. I5lh May, 1830. . J. Parke."
Ahhouuh a prencher at nn endowed mcetiii»-liousc have such nn interest in the office and its emoluments as will entitle him to a man- damus if dis- turbed in the use of the pulpit, he has not such a legal interest in the endow- ment as will entitle him to retain posses- sion against the trustees of such en- dowment.
Doe deni. Evans and others v. Jones and others.
ELlECTMENT for a chapel, dwelling-house, and stable, in the parish of Llanwchllyn, ii| the county of Merioneth.
At the tiial at the Great Session for Merioneth, held at Bala, before Mr. Justice Raine, on the 14th of April, 1830(a), the following facts appeared. By lease and re- lease of the 4th and 5th August 1783, the release bemg between John Kenrick and Lewis Rees, clerk, of the one part, and Benjamin Jones and nine other persons, being ministers of ten dissenting congregations, of the other part; Kenrick and Rees, who were therein described as surviving trustees, granted, bargained, sold and released, unto the said Benjamin Jones and the nine other ministers, and their heirs, all that piece or parcel of ground, with the building thereon erected, 8cc. ; habendum unto the said Benjamin Jones and the nine others, and their successors, ministers of the said respective meeting-houses aforesaid for the time being, in conjunction with the said Kenrick and Rees, during their lives, and the life of the survivor of them for ever : in trust and to the intent and purpose that the said structure or building should be used as a meeting-house, place or house for the public and religious worship and service of God, by the society or congregation of Protestant dissenters,
(a) Counsel for the plainliflP, defendant, Whyatt, Aiiorney-Ce- Cockerell and ; for die neralf and WiUiams.
EASTBR TERM, XI GEO. IV. 753
commonly called Prertiyterians, and that tbej should per- i8do. mit and suffer the same from time to time (so long as the ^'^^'^^^^ laws of the land would admit) to be so used, occupied and ^^
engaged by such society or congregation as aforesaid, and £vans for no other use, intent, or purpose whatsoever. The first Jones. lessor of the plaintiff was the heir at law of the survivor of the ten trustees, to whom the property in question was con- veyed by the deeds of the 4th and 5th August, 1783. The defendant Michael Jones had been for some years, and still was, the minister of the chapel. Possession had been de- manded on behalf of the lessors of the plaintiff, before the day of the demise laid in the declaration. On the part of the defendants it was urged, that the habendum to the ten relessees and their successors^ only passed a life estate, and that consequently nothing descended to the lessor of the plaintiff, as heir of the surviving relessee ; and, secondly, that the defendant, Michael Jones, as minister of the chapel in possession, had a legal title to retain that possession whilst he continued minister. The learned judge overruled both these objections, but gave the defendant leave to move to enter a nonsuit.
Campbell now moved according to the liberty reserved. The first question is, whether the ten trustees took an estate in fee under the conveyance of 1783. There is a discre- pancy between the premises and the habendum. The premises are to the relessees and their heirs, whilst the ha- bendum is to them or their successors. As these persons could not take by succession, the habendum gave only a life estate. In Baldwin*s case (a), where the premises were " to the said Ann, and Anthony Baldwin her son, and the heirs of the said Anthony, habendum to them from the date of the said indenture until the end of 99 years, and so from 99 years to 99 years, until 300 years be expired,'* the ha- bendum was held to be repugnant and void. In the Earl of JRutland^s case it is said (6), that it was resolved in
(fl) S Coke's Rep. 23 b. (6) 8 Co. Rep. 56 b.
VOL. v. 3 c
CASES IN TH£ KING 9 B£NCH,
auditor Ki^^'s case^ that where Queen Eliiabeth granted a manor to jB. and his heirs, (in the premises of the letters- patent,) to have and to hold the said manor to B. and his assigns, leaving out heirs in the habendum, — the fee of the manor passed by the premises, and the habendum was void. But in AlthanCs case (a) it is said, that if a man gives land to one and his heirs, habendum to him and the heirs of his body, he shall have but an estate tail. Com, Dig-* Fait (E. 9} 10;) this looks the other way. [Bayleyi. Where the premises limit an estate which the law will allow« and the habendum limits an estate which is not allowed by law, the habendum is void ; the habendum will not control the pre- mises where it is repugnant and cannot take effect.] The weight of authority is certainly against this objection, and therefore I will give the Court no further^trouble upon it.
The second objection involves a point of great import- ance; namely, whether the right of possession is in the minister or in the trustees. The objection to the defend- ant, Michael Jones, was, that bis doctrine was not ortho- dox, but no proceeding had been taken to oust him from his office, and the question therefore is, whether a trustee can maintain ejectment against a person who is in pos- session of the office, and is entitled to the office. [ Baykif J. You call it an office ?] It is an office coupled with an interest. It is so described iniZfxv. Barker (b\ in which case a mandamus issued to restore a dissenting minister who had been removed. That case shews, that whilst he holds the office he has [the possessory title. Where a master allows a servant to inhabit a house as part of his wages, he cannot bring an ejectment to turn him out of possession whilst he continues in the service. The mandamus in Rex v. Barker, (of which the defendant has obtained a copy from the Crown Office,) commands the parties to whom it is addressed, to admit the minister to the use of the pulpit, with ail the liberties, privileges, pro-
(fl) 8 Co. lUp. 154 li. (6) 3 Burr. 1265.
EASTER TEKM, XI GEO. IV.
755
fits and advantages belonging to the same (a). In that 1830.
(a) The writ was in the follow- ing form : '^ Of Easter term, in the third year
of King George the Third. ** Plymouth. George the Third, by the grace of God, of Great Bri- tain, France and Ireland, king, defender of the faith, &c. «* To Pentecoit Barker, Richard Dunning, Philip Cockey, and Eliat Lang, and to every of them, greeting. Whereas Chrittopher Mends was duly nominated, elected and chosen into the place and office of a pastor, minister, or preacher in a certain meet- ing-house appointed for the reli- gious worship of Protestant dis- senters, commonly called Presby- terians, in Plymouth, in Ourcounty of Devon: And whereas he, the said Chrittopher Mendt, by virtue of such nommation, election and choice, ought by you to be ad- mitted to the use of the pulpit in die said meeting-house, for the due performance of his function, well and faithfully to execute the said place and office, and to have, use, and enjoy all privileges, profits and advantages of and belonging to the said place and office : And whereas he, the said Christopher Mends, after such his nomination, election and choice, did, in due manner, desire and request to be admitted to the use of the pulpit in the said meeting-house: Yet you, well knowing the premises, but not regarding your duty in this behalf, have absolutely neglected and refused, and still do absolutely neglect and refuse, without any reasonable cause whatsoever, to admit the said Christopher Mends into the said place and office, and
3
to the use of the pulpit in the said meeting-house, and have unjustly obstructed him, the said Christo* pher Mends, in the due perform- ^OHia, ance of the duties of the said pastorship, and have unjustly pre- vented him from enjoying the use of the said pulpit, and from pei^ forming the duties of the said pas- torship,— in contempt of Us, and to the great damage and grievance of him the said Christopher Mends, and also of divers others of Our liege subjects, being dissenters, commonly called Presbyterians, dwelling and residing in and near Plymouth aforesaid,— as We have been informed from their com- plaint made to Us in that behalf. We, therefore, being willing that due and speedy justice should be done in this behalf, (as it is reason* able,) do command you, firmly en- joining you, that immediately after the receipt of this Our writ, you do, without delay, peremptorily ad- mit, or cause to be admitted, him, the said Christopher Mendt, to the use of the pulpit in the said meet- ing-house, as pastor, minister, or preacher there, together with all the liberties, privileges, profits and advantages belonging to the same. And in what manner you shall have executed this Our writ, make appear unto Us at Westminster, on Monday next after the Morrow of the Ascension of our Lord, then re- turning to Us this Our writ. And this you are not to omit on peril that may fall thereon. Witness, WUUam Lord Mansfield, at West- minster, the 38th day of April, in the Sd year of Our reign. " By the Court,
*• Burroa)" C2
766
1836.
CASES IN THE KINg's BENCH,
case Lord Mansfield says {a), that since the Act of To- leration, the writ of mandamus ought to be extended to protect an endowed pastor of Protestant dissenters from analogy^ and the reason of the thing. The deed is the foundation or endowment of the pastorship ; the form of the instrument is necessarily by way of trust* for the meet- ing-house, and the laud upon which it stands, could not be limited to the minister and his successors. Many lecture- shipsy and other offices, are endowed by trust-deeds. The right to the function is the substance, and draws after it every thing else as appurtenant thereto. The powers of the trustees is merely in the nature of an authority to admit. The use of the meeting-house and pulpit in this case fol- lows, by necessary consequence, the right to the function of minister, preacher, or pastor, as much as the insignia do the 6ffice of a mayor, or the custody of the books, that of a town clerk. This shews, that if the minister is duly ap- pointed, and is not admitted, the Court will grant a man- damus to admit; it fortiori, they will grant a mandamus to restore. IParkeJ. The mandamus to admit to the use of the pulpit is perfectly consistent with this, that the land and chapel should be in the possession of the trustees. Bayley J. If the argument could be supported, the minis- ter would have a right to dispose of the whole of the pews at his pleasure. Lord Tenterden, C. J. In the case of an endowed lectureship, though there is a right to the pulpit, there is no right to the possession of the church.]
Baylby J. — We are not called upon to decide whether defendant is entitled to the pulpit or not
Parke J. — The defendant is only tenant at will; his re- medy may be in equity.
Rule refused.
(a) 3 Burr. 1368.
EASTER TERM, XI GEO. IV. 767
1830.
Williams and Wife r. Goodtitle, Lessee of David, in Error.
CRROR upon a judgment in the Court of Great Session, a. devised a
in the county of Glamorgan, upon a special verdict in eject- 5*J*"^ ^l^^
ment, in an action of ejectment on the demise of John after other de-
David against Rees Williams and Elizabeth his wife, for J^n ^^^ residue
the recovery of five messuages, five dwelling-houses, &c., of his real
situate and being within the franchise of the town of bwan- and his heirs.
sea, in the county of Glamorgan. The verdict stated that Afterwards A^
' ^ o ^ having pur-
before the making of the demise, and before the committing chased other
of the trespass and ejectment mentioned in the declaration, [h^g^coSJcil^
to wit, 24th April, 1795, David Thomas made his last will "Whereas I
and testament in writing, duly executed and attested to pass j^st wili and
real estates according &c., in the words following: that is to test«™nt,
say, — •' In the name of God — Amen. I, David Thomas, of &c., devise all
&c. do make, publish and declare this my last will and tes- j^^f;^^"^*^
tament in manner following: that is to say, I do give and poueitedqf'm
devise unto my friends and acquaintance John Hubbakuk, ^^ mentioned
of &c., and Thomas Jones, of &c., their heirs and assigns, &nd which «. « «_ . » 1 1 1 « *''JI* I ratify
all that messuage oCc, situate &c., to hold the same unto and con6mi:'*
said Hubbakuk and Jones and their heirs, to the use of t'^^J*^» ^^^^
the after-pur-
Hubbakuk and Jones, during the life of my wife Elizabeth chased lands Thomas: yet, nevertheless, to permit and sufier my said STdi^fi^N wife and her assigns to receive and take the rents, issues
(a) Quod mirum videtar. By 1 Viet, cap. S6, i. S, it it enacted, *'Tbat it shall be lawful for evcrj person to devise, bequeath or dispose of, by his will, ezecoted in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in eqoiiy, at the time of his death, and which, if not so devised, bequeatlied or disposed of, would devolve upon the heir at law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator, and that the power hereby given shall extend to such of tlie same estates, interests and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will/* And by s. t4 it is enacted, " that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unUn a amtrary intention ihall appear by the vnlt" Notwithstanding the decision in the principal case, it would rather appear that even this enactment would not have given the effect to the codicil contended for on the behalf of the lessor of the plaintiff, inasmuch as a eontrary imteiUion might, it is conceived, be said to appear from the recital in the codicil, that recital expressly referring to the real and personal estate of which the testator was pos!iessed it the lime of the making of the original will.
768
1830.
Williams
V. GoODTfTLB.
CASES IN THE KING S BENCH,
and profits thereof, to her and their own proper use and benefit, and after her decease to the use of the said Hubba- kuk and Jones and their heirs, and the survivor of them, upon trust to lay out and expend a moiety or one half part of the rents and profits of my said hereditaments and pre- mises towards the support, maintenance, education, and ad- vancement in life of my nephew, John Evatis^ until he shall arrive at the age of twenty-one years ; and the other moiety thereof towards the support, maintenance, education, and advancement in life of my nephew. Job Phillip, until be arrives at the age of twenty-one years ; and in case either of my said nephews shall happen to die before he arrives at the age of twenty-one years, without leaving any lawful issue of his body, then in trust to lay out the moiety of him so dying at interest, to accumulate for the benefit of the sur- vivor of them, or to lay out the same towards his mainte- nance and education, at the discretion of my said trustees and their heirs, and the survivor of them, until the survivor of them my said nephews shall have attained the age of twenty-one years ; and if it shall happen that either of my said nephews shall die before his arrival at the age of twenty-one years, leaving lawful issue of his body, then and in such case the moiety of the rents aud profits of him so dying to be applied towards the support, maintenance and education of the heirs of his body, in like manner as is here- inbefore directed respecting my said two nephews, uotil their arrival at the age of twenty-one years, and from and after the arrival of the survivor of them my said nephews at that age, then to the use and behoof of such survivor, bis heirs and assigns ; and in case both of my said nephews shall attain to their respective ages of twenty-one years, then to the use and behoof of the said John Evans and Job Phillip, as tenants in common and not as joint tenants, for and during their respective natural lives ; and from and after their respective deceases, to the use of the respective heirs of their bodies lawfully issuing, as tenants in common and not as joint tenants ; but if the said John Evafis sball
EASTER TERM, XI GEO. IV. 759
die without leaving any lawful issue, then I give and devise ^^SO. all and singular the said hereditaments to the said Job yfu^i^fM^^ Phillip and his heirs ; and if the said Job Phillip shall die v.
without leaving any issue, then I give and devise the said hereditaments unto the said John Evans and his heirs. And I do hereby give and devise all that messuage situate in High Street, &c., and also a house adjoining, fronting the Back Lane, with the appurtenances, in as large and ample a manner as I purchased the same of the said C. R. Jones and others, together with all erections and buildings there- on built, or hereafter to be built, unto my said dear wife Elizabeth, for and during her natural life ; and after her de- cease I give and devise the same to John Adams, the nephew of my said wife^ and the heirs of his body lawfully issuing ; and for want of such issue I give and devise the same to such and so many of the sisters of him, the said John Adamsy as shall survive him, as tenants in common and not as joint tenants, and to their respective heirs. And I do hereby give and devise all the rest of my real estate, whatsoever and wheresoever situate (not hereinbefore parti- cularly deviled J unto my said dear wife, Elizabeth Thomas, and her heirs. And I do hereby give and bequeath all and singular my personal estate, whatsoever and wheresoever, and of what nature or kind soever the same may be, unto my dear wife, Elizabeth Thomas, her executors, administra- tors and assigns, absolutely for ever, subject nevertheless to the payment of two pounds and ten shillings yearly, to- wards the support, maintenance and education of Elizabeth Thomas, the daughter of my brother Thomas Thomas, until she shall arrive at the age of 6fteen years, and no longer. And I do hereby nominate, constitute and appoint my said dear wife, Elizabeth Thomas, sole executrix of this my last will and testament. In witness," &c.
The special verdict further stated, that afterwards, and before the said several times in the said declaration respec- tively mentioned, and also before and at the times of the making of the indentures of lease and release hereinafter
760 CASES IN THE KINo's BENCH,
1830. mentioDed, C. R. Jones, Esq., was seised id bis demesne as
WiLtxAMi ^^ ^^^ ^^ ihiee messuages, situate and being in Greenhilli
V. within the franchise of the said town of Swansea, in the
countj of Glamorgan, and also of a certain close, situate
and being within the said franchise : one of which suages is one of the dwelling-houses in the said declaration mentioned, and is described in the codicil hereinafter men- tinned as an old thatched house or cottage ; and that the said C. R. Jones, being so seised, did, by indentures of lease and release, bearing date respectively 15th and l6th March, 1799» and made between the said C. jR« /ones and others, of the one part, and the said David Thomas of the other part, for the consideration in the said indentures re« spectively mentioned, grant, release and convey to the said David Thomas and his heirs the said three messuages and the said close, by virtue of which indentures, and by force of the statute made, &c., the said David Thomas became and was seised as of fee of the said three messuages and the said close, and being so seised, did afterwards, and before the date of the indenture of lease hereinafter next mentioned, erect and build on the «aid close a certain mes- suage, meeting-house or chapel, called, &c., being one of the said messuages in the said declaration mentioned, and did also erect, build and make thereon all the residue of the dwelling-houses 8cc, in the said declaration further men- tioned, and also several other messuages and dwelling- houses, making altogether the %um of the bouses so erected and built by the said David Thomas, together with the said three messuages thereinbefore first mentioned, greater in number than the sum of the houses in the said declaration mentioned, together with the six houses by the codicil here- inafter mentioned specifically devised to Jane PhOlip, Elizabeth Thomas and Elizabeth Llo^d.
The special verdict further stated, that afterwards, and before the several times in the said declaration mentioned* to wit. on the 21st day of December, 1802, the said David Thomas, being so seised of the said close and of all the
EASTER T3E:RM, XI GEO. IV. 761
said several dwelling^housesi messuages^ &c. with the ap- laso. puitenaQces^ whereof all the said several tenements^with the appurteoaoces in the said declaration meDtiooed, are parcel, did, by indenture of lease bearing date the day last afore- said, demise and grant unto Ebenezer Morris and four others the said messuage, meeting-house or chapel, called, &c., to hold to them for the term and upon the trusts recited of and concerning the same in the said codicil here- inafter mentioned ; and that the said last-mentioned lease was not made or inrolled according to the provisions of the statute passed in the 9th year of the reign of King George 2, intituled '* An act to Restrain the disposition of lands, whereby the same become unalienable."
The special verdict further stated, that afterwards, and before the times mentioned in the declaration, to wit, 4lh June, 18039 the said David Thomas, being so seised as aforesaid, made a certahi codicil to his said last will and testament, the said codicil being duly executed and atteated to pass real estates, according to the form. Sec, in the words following: that is to say, ** I, David TAomas, of $cc., do make and publish this present codicil, which I heffeby declare to be, and order and direct to be, taken as and for part of my last will and testament, as follows :— - Whereas I did, by my last will and testament in writing, duly execuled and attested, bearing date the £4th day of April, 1795, give, devise and bequeath all the real and per- sonal estate I was then possessed of, in the manner therein nwHtiauedf and which will I do hereby ratify and confirm. And whereas, since the date and execution of the said will, I purchased of C. JZ. Jones^ Esq., and others, three mes* auagos, situate in Greeahill, within the franchise of the town of Swansea, together with the close adjoining to the back part of the said houses, and which were conveyed to me by indentures of lease and release of 15th and iGth March, 1799; and whereas, since the dale of the said indentures of kase and rdease, a certain meeting-house or chapel, known by the name, Sec., and several dweUiog-liouses or cottages,
762
1830.
Williams
V, GOODTITLE.
CASES IK THE KING S BENCH,
have been erected and built on the said hereditaments and premises ; and whereas, by indenture of lease bearing date the dOth day of December last, I demised and granted the said meeting-house or chapel unto JEbenezer Morris, of &c., minister of the Gospel, D. jR. of Sic., H. B. of &c., X). F. of &c., and J. S. of &c. ; to hold unto them and the survi- vor and survivors of them, and to the person or persons who should from time to time be nominated and appointed, as is therein set forth, trustee or trustees in the room or stead of any or either of them, from the 25th day of December theo next, for the terra of 999 years, upon the trust and con6- dence ; and the said lessees, and the survivor or survivors of them, and the several and respective person or persons who should from time to time be nominated and appointed, as is thereinafter mentioned, trustee or trustees in the room or stead of any or either of them, from time to time and at all times during the said term, if the law and statutes of this realm would admit, should and would permit and suffer the said meeting-house to be used, occupied and enjoyed as and for a place or house for the worship of God by the church society or congregation of Protestant dissenters, called or known by the name of Methodists, and by such others as should thereafter attend the worship of God in that place, at the rent of one penny, subject to the several clauses, provisoes and agreements therein contained : — Now I do hereby give and devise all and singular the heredita- ments and premises, so purchased by me of C\ IL Jona and others as aforesaid, and all erections and buildings thereon erected and built, and all the rents, issues, and pro- fits thereof, unto my dear wife Elizabeth Thomasy for aad during the term of her natural life, subject nevertheless to the said last-mentioned indenture of lease ; and from and immediately after the decease of my said dear wife, I give and bequeath the two new-built dwelling-houses or cot- tages, and one old thatched house or cottage (adjoining the said meeting-house or chapel), now in the several tenures or occupations of &c., together with such gardens as shall
EASTER TERM, XI GEO. IV. 763
belong thereto respectively at the time of my said \vife*s 18S0.
decease, unto my friends and brethren in the Lord, the said ^-^^v-"^
Williams Ebenezer MurriSf D. R., H. B., D. F., and J. S. ; to hold ^.
the said three dwelling-houses or cottages and gardens, Goodtitle. from the decease of my said wife, unto them and the sur- vivors or survivor of them, and unto the several and respec- tive persons or person who shall from time to time be nominated and appointed trustees for the said chapel or meeting-house, for and during and unto the full end and term of 999 years ; in trust, nevertheless, that my said trustees, and the survivors and survivor of them, and their successors as aforesaid for the time being, shall and do, from time to time, lay out the net rents, issues and profits of the said three dwelling-houses or cottages and gardens towards the support of the said chapel or meeting-house, for and during the residue and remainder of the term thereof granted, or other sooner determination of the said lease, by forfeiture or otherwise. And I do hereby give and devise unto Jane Phillip all those two dwelling-houses or cottages (other part of the premises so purchased by me as afore- said), adjoining &c., at Greenhill aforesaid, together with such gardens as shall belong to the same at the time of my said wife's decease, and which cottages are now in the several tenancies or occupations of &c. ; to hold the said two last-mentioned cottages and gardens, from the time of the decease of my said wife, unto her the said Jane Phillip and her heirs. And I do hereby give unto my niece, Eliza- beth Thomas, the daughter of my brother Thomas Thomas^ all those two other dwelling-houses or cottages, other part of the said premises, adjoining, &c., together with such gar- dens as shall belong to the same at the time of my said wife's decease, and which two last-mentioned cottages are now in the several tenures or occupations of 8cc. ; to hold the said two last-mentioned cottages and gardens, from the time of the decease of my said wife, unto the said Elizabeth Thomas and her heirs. And I do hereby give and devise unto ray said wife's niece, Elizabeth Lloyd, all those two
764
18S0. Williams
V. GOODTITLE.
CASES IN THE KING S BENCH,
Other dwelling-houses or cottages (other part of the said premises), adjoining the said cottages devised to my said niece Elizabeth Thomas^ together with such gardens as shall belong to the same at the time of my said wife's decease, and which two last-mentioned cottages are now in the several tenures or occupations of, &c.; to hold the said two last-mentioned cottages and gardens, from the decease of my said wife, unto the said Elizabeth Lloyd and her heirs. In witness, &c/'
The special verdict then stated the death of David Thomas on I9th July, 1814, leaving his niece (the defend- ant) Elizabeth Williams^ then Elizabeth Thomas, bis heir at law, — her marriage with Rees Williams, — that Elizabeth Thomas, the widow, entered, and died seised, leaving the lessee of the plaintiiF her heir; and that afterwards, and before the demise in the declaration, the defendants entered and were possessed. The verdict then finds the demise, entry and ouster in the declaration. The record then states the judgment pronounced by Clarke, C J., and Casberd,J^ in favour of the plaintiff below (a).
Upon this judgment the common errors were assigned (A).
Taunton, for the plaintiffs in error. The only question is, whether, by the codicil, the will was re-published as to
(a) The ai^ument below (before Nolan and Catherd, Js., at Cardiff, nSept. 1827, and 14 April, 1828,) was on a special case reserved at the trial, with liberty to turn it into a special verdict. Judgment being pronounced in favour of the plaintiff below (by Clarke, C. J., Presteign, 13 August, 1828), time was given to the defendants to consider whether they would avail themselves of the liberty given to turn the special case into a special vei'dict. The opinions of Tindal, S.G., Hart, Bell, and Spence, were taken, and as they all concurred
in thinking that the lands in ques- tion did not pass to the widow, a special verdict was prepannl, od which, without further aigument below, judgment was entered for the plaintiff.
(6) In the margin of the error books it was stated that the ques- tion intended to be raised was, whether the codicil was such a re- publication of the will as to ex- tend the operation of the residuary devise to the after- purchased estates, so as to pass the chapel and the three messuages.
Williams
V,
EASTER TERM, XI GEO. IV. 765
the after-acquired lands, not disposed of by the codicil. i83o. The interest not disposed of by the codicil consisted of a reversion after a term of 999 years, and of some other pro- perty devised to the wife for life. The lease for 999 years Goodtitle. was not duly inrolied according to the statute. Conse- quently, the term thereby created was null and void. The lease therefore fastened itself on the undisposed reversion. On the part of the plaintiffs in error it is submitted that this property did not pass, upon two grounds. First, the tes- tator, by the codicil, specifically ratifies the residuary clause in the will as to the estate of which he was possessed at the time he made the will. This amounts to an exclusion of property acquired since. Secondly, the devise of a particu- lar estate to the wife confirms that construction as to the first part. It may be admitted that where a testator gives a limited interest, and makes the same devisee devisee of the whole, he is not shut out from the benefit of the residuary clause by reason of the devise of the life estate ; RidotU v. Pain (a) ; but this being a mere question of intention, the devise to the wife shews that that was all the interest that she was to take. With respect to the question of re-pub- lication, the history of the law seems to be this. Before the Statute of Frauds, there might be a re-publication by parol. In the earlier cases after the statute, it was held that there could be no implied re-publication; Lytton v. Viscountess Falkland (b), Penphrase v. Lord Lansdowne (c). In Acherly v. Vernon (d) a new* rule was adopted for the first time, which has been the leading and governing rule ever since, subject to some qualifications. It is curious to trace the alteration of the law. The general rule now is, that the codicil brings down the will to its own date; Good" title V. Meredith {e), Acherly v. Vernon has certainly been
(a) 3 Atk. 486. (d) 9 Mod. 78; 1 Corny ns's
lb) 1 Comjrns's Rep. 383; 8 Rep. 381.
Vin. Abr. 165. (e) 2 Maule & Seiw. 5. (f) Ibid. 384; 8 Vin. Abr. 164.
Williams
V.
766 CASES IN THE KlNC/s BENCH,
1830. considered as establishing the rule laid down by Lord Ellen" borough in Goodtitle v. Meredith, But the language of the codicil in Acherly v. Vernon is prospective, and the terms Goodtitle. ujgj g^e very peculiar. The case, however, has since been accepted, not as turning on any particular circumstances, but upon the general grounds laid down by Lord Ellenbo- rongh. In Barnes v. Crowe (a). Lord Commissioner JEyre remarks on the effect of prospective words, intended to operate wholly upon after-acquired lands. It is now too late to contend against the general rule which, in Pigot v. Walter {b). Sir Wm. Grant, M. R., admits and regrets. But the plaintiffs in error rely upon the authorities which engraft a material exception upon the rule now received; Htylyn v. Heylyn{s:^\ namely, that where the intent of the testator in the codicil clearly is to pass only such property as was disposed of by the will, the after-acquired property is virtually excluded. [Bayley,J. And the will must have words sufficiently ample to pass the after-acquired lands.] Here the codicil is tied up by the particular words used. It contains an express declaration that the intention of the testator was to ratify the will in respect of the lands which he possessed at the time at which that will was made. If the codicil had ended with the first clause, the evidence of intention would have been sufficiently strong ; but here the testator goes on to recite the purchase of the very property A'om Jones, and to make a particular disposition of it. The plaintiffs in error rely principally upon the case of The Comt- tessofStrathmore v. Bowes (d). There Lord Kenyon stopped the counsel (e) who was to have argued against the opera- tion of the codicil upon the newly purchased lands; and the opinion of this Court was afterwards confirmed in the House of Lords (/), though Lord Thurlow certainly dis-
(a) 1 Ves. jun. 486. (rf) 7 T. R. 482.
(6) 7 Ve». 98. {e) Erthne.
(f) Co«irp. 130. ( f) Bowes v. Bowes, 2 B. & P.
500.
EASTER TERM, XI GEO. IV.
sented, reading the codicil as if the word '^ all " had been there. [Lord Ttnterden^ C.J. Lord Thurlow imports the word " all ;" it is not in 7 T. R.]
Reynolds^ for the defendant in error. Where a codicil is such a re-publication as to make the will speak from the date of the codicil, the question is, not whether the testator meant to re-publish, but whether he has expressed an in- tention which would be defeated by such a construction of the act of re-publication.
Here he was stopped by the Court.
Lord Tenterden, C.J. — I can find no intention to ex- clude the after-purchased lands. Both these instruments are to be read as of the date of the codicil.
It is admitted that if all this had stood in one will, the lands would have passed. The words — ^' I did give all the real and personal estate I was then possessed of* — rather seem to indicate an intention that the lands should pass.
Bayley, J., and Littledale, J., concurred.
Parke, J. — It is clearly to be taken as one instrument.
767
1830.
WiLUAlfg
17. GOODTITLE.
Judgment affirmed {a).
(a) But in Monypenny v. Bris- tow, 2 RusAell and M^lne, 117, it appears to have been held, that where a codicil in its dispositive part, is applicable solely and ex- pressly to the property previously devised by the will, such codicil has not the eB'ect of re-publishing the will, so as to carry after-pur- chased property, notwithstanding a more general intent indicated in a recital contained in such codicil.
And see Hidme v. HeygaU, 2 Me* rivale, 138; Guests. WiUoMey, 9 hm^\\. 429; 10 B. Moore, 228; 3 Bingh. C14; 12 B. Moore, 2; Gibson V. Rogertf Ambler, 93; Juchon V. Hurlock, ibid. 487 ; At- torney General V. Downing, ibid. 571; Doe d. Pate v. Davy, Cowp, 158; Potter v. Potter, 1 Ves. sen. 437 ; Brown v. Higgs, 4 Ves. jnn. 709 ; Parker v. Biscoe, 8 Taunt. 699; 3 B. Moore, 24.
INDEX
TO THB
PRINCIPAL MATTERS.
ABATEMENT OF SUIT.
1. A suit abates by the death of either party between a nonsuit and judgment, notwithstanding 17 Car, 2, c. 8. Harrison v. Donhiggin,
431
2. So, if the death occur between verdict and judgment, unless judg- ment be actually signed within two terms after verdict. Id, ibid,
ACT OF BANKRUPTCY.
1. A trader does not commit an act of bankruptcy, wuhin ^Geo, 4, c. 16, s. 3, by absenting himself, unless he absent himself from some place at which he would, in the ordinary course of his life and business, be expected to be found, or at which he has appointed to meet particular creditors. Bemas- coni V. Farebrother, 364
2. A mere order to deny a trader to a creditor, where no actual denial takes place, and no act of conceal- ment is done, does not constitute an act of bankruptcy, by beginning to keep house with intent to delay creditors. Fisher v, Boucher. 589
. 3. A departing by a trader from his dwelling-house with the intention not to return if a given event oc- curs, which does not occur, where-
VOL. v.
upon the trader returns in the ordinary course, does not consti- tute an act of bankruptcy, by de- parting from the dwelling-house with intent to delay creditors. Fish- er V. Boucher, 589
ADMISSION. See Promissory Note, 3.
ADVERSE POSSESSION.
See Ejectment — Settlement by Estate, 6.
AGENT.
1 . An agent to receive rents has no implied authority to give notice to quit. Doe d, Mann "v, Walters, 357
2. Where notice to quit is given by an agent, the authority of such agent must be complete a half-year before the expiration of the notice, or, at least, before the day of the demise laid in a declaration in ejectment, brought in respect of such notice. Id, ibid,
AGREEMENT.
Whether, under 5 Geo. 4, c. 74, s. 15, an agreement to sell goods by the Winchester bushel, without ex- pressing the ratio or proportion
3d
770
ASSIGNMENT.
AWARD.
which such Winchester bushel bears to the standard measure, is void, quctre. Watts v. Friend. 439
AMENDMENT.
See Practicb, S, 4.
Where the plaintiff, in a qui tam ac- tion for usury, sued out his writ in September, 1828, delivered his declaration in Trinity term, 1829, took the record down for trial at the summer assizes, 1829, and then withdrew the record, the Court refused to allow him to amend his declaration. Wood v. Grimwood,
584
ANNUITY. See Lbasb, 1.
APPEAL, NOTICE OF. See CooNTT Rate.
APPRENTICE. See Bill of Exchange, 5 — Notary Public — Settlement by Appren* TicESHip — Settlement by Hirino AND Service.
ARBITRATION. See Award.
ARBITRATOR.
See Award, 1, 3 — Settlement by Estate^ 5.
ASSAULT.
Under particular dircumstances, one man may be justified in laying hands upon another, for the pur- pose of serving him with process. Harmon v. Hodgson. 892
ASSIGNMENT. See Insocvbnt, 4^*Lea8B, 2.
ASSUMPSIT.
See Monby had and eecbivbd — Pleading, 6.
** I believe the mare to be sound, but I . will not warrant her." The vendee may declare in assumpsit, as upon a warranty that the mare is sound to the best of the vendor's knowledge. Wood^i.SmUk. 124
ATTORNEY.
See Costs, 4, 8 ^Joinder of Par- ties, 1.
AWARD. See Sbttlbment by Estate, 5.
1. An awlird made by a barrister cannot be ^fuestioned on the ground of any atatemeat not appnmg on the face of the awaad, or annexed to it. Williams v. Jones, S
18. Motion to set aside an award un- der a reference at nisi prios, al- lowed to be made after the first four days of term, where the award was published too late in the vac^ition to take the necessazy proceedings before. Bennett ?. Skardon. ^ 10
3. Wh#re a cause is referred by a judge*s order, empowering the ar- bitrator to enlarge the time as be shall appoint md a nidge shall order^ an enlargement by uie arbi- trator alone is irr^uhir, and an award made after such enlarge- ment is void. Mason v. WaOis, 85
4. By an inclosnre act, commissioners are authorised to allot shares of the inclosed lands in compensation for riffhts of common, and also to allot lands, &c. in exchange for other lands, &c., provided such exchanges be specified in the award, and be made with th^ con- sent of the owners. The commis- sioners award a certain allotment to i#. as a compensation for his rights of common, and an old tnch-
BANKRUPT.
BANKRUPT.
771
sure gioen ftp by A. to he allotted hu the conunissionere tn exchange. This award is bad, and A. acquires no title to the allotment. Wingfield V. Tharp. 745
BANKRUPT.
iSee Commitment, 2, S — Evidence, 10, 11 — Practice, 1 — Repealed Statute — Warrant of Atxor-
NET-
1. An order by the Lord Chancellor, under 6 Geo. 4, c.l6, s. 18, substi- tuting a new petitioning creditor's debt for one alleged in the petition to be insu£5cient to support a com- mission, is invalid if it direct the commissioners to inquire only as to the sufficiency of the new debt, and is silent as to the insufficiency of the old. Muskett v. Drummond,
210
2. In an action by assignees of a bankrupt, the defendant is entitled, under 6 Geo, 4, c. 1 6, s. 50, to set off a debt due to him from the bankrupt, if, when he gave credit to the bankrupt, he had no notice of a prior act of bankruptcy, though be had notice that the bankrupt had stopped payment. Hawkins v. IVhUten. 219
8. Where a trader, after having ob- tained his certificate under three commissions of bankrupt, under none of which any dividend had been paid, was arrested for a debt contracted between the second cer- tificate and the third bankruptcy, the Court refused to discharge him out of custody on filing common bail; and such third commission was said to be a nullity. Fowler ▼. Coster. S52
4. A trader does not commit an act of bankruptcy within 6 Geo. 4, c. 16, s. S, by absenting himself, unless he absent himself from some place at which he would, in the ordinary course of his life and
business, be expected to be found, or at which he has appointed to meet particular creditors. Ber- nasconi v. Farebrother. 364
5. A commission of bankrupt, de- scribing the parties as ^* bankers, being traders according to the pro- vision of the statute 6 Geo. 4, mti- tuled, &c." is good, though they had ceased to be bankers before that statute passed, for the word " bankers*' is descriptive of their persons only, and the word *' tra- ders*' is a sufficient allegation that they were, as such, liable to the bankrupt laws. Id. ilnd.
6. Such a commission may be sup- ported by evidence of any species of trading carried on by the bank- rupts after the passing of the sta- tute. Id. ibid.
7. A,, having agreed to purchase an estate of B., and havine received the title-deeds, borrowea money of C, and deposited the title-deeds with him as a security, agreeing to mortgage the estate to him when- ever he should receive the deed of conveyance. A. afterwards receiv- ed from B. the deed of conveyance of the estate, which he then deli- vered to C. as a further security. In the interval C. refused to com- plete the mortgage unless A. would pay usurious interest on the money lent, to which A. agreed. A. after- wards became bankrupt, and his assignees brought trover against C. for the deed of conveyance :— Held, that the original poasetcion of the title-deeds being good, gave C. a right to the estate whenever it should be conveyed to A.^ and therefore that C. was entitled to retain the deed of conveyance of the estate against the assignees of A. fVood y. Grimwood. 551
8. A mere order to deny a trader to a creditor, where no actual denial takes place, and no act of conceal- ment IS done, does not constitute an act of bankruptcy by beginning
3d2
772 BILL OF EXCHANGE.
BROKER.
to keep house with intent to delay creditors. Fisher v. Boucher. 589 9. A departing by a trader from his dwelling-house with the intention not to return if a given event oc- curs, which does not occur, where- upon the trader returns in the or- dinary course, does not constitute an act of bankruptcy, by departing from the dwelling-house with in- tent to delay creditors. Id, ibid.
BARON AND FEME.
See Husband and Wife — Set- off, 1, 2.
BARRISTER.
See Award, 1.
BASTARD. See Settlement by Birth.
BILL OF EXCEPTIONS. See Practice, 4.
BILL OF EXCHANGE.
See Partners, 3 — Promissory Note — Set-off.
1. By accepting a bill payable to the drawer's order, drawn and indorsed in a fictitious name, the drawee undertakes to pay to the signature of the same person as indorser, who signed as drawer. Cooper v. ^Meyer. 387
2. The indorsee of such a bill, suing the acceptor, may, by comparison of the signatures, shew that the drawing and the indorsement are in the same handwriting. Id. ilnd.
3. A set of foreign bills, drawn abroad, was sent to the drawer, (who was also the payee,) the de- fendant, who accepted two parts, and indorsed one to the plaintiff for value, prior to which the other had been indorsed by the defend-
ant to his father cotuUtionallff but who had never insisted on payment, but gave it up on the substitution of other securities: — Held, that the plaintiff was entitled to reco- ver, and that the bill did not re- quire a stamp : Held also, by Lord Tenterden, C. J., and Parke, J.— dubitante Litlledale^ J. — that it would have been the same if the first part had been indorsed and delivered unconditionally. Holds- worth V. Hunter. 893
4. A partial failure of consideration cannot be given in evidence in an- swer to an action by the drawer, or his legal representative, against the acceptor of a bill of exchange. Obbard v. Betham. eSZ
5. A boy was bound apprentice in 1827, by indenture, upon a pre- mium of 30/., which was agreed to be paid, and for which a bill was given. The indenture bore a 1/. stamp only. The apprentice served tlie master five months, when a difference arising between the master and the father, and it being discovered that the stamp was insufficient, the apprentice left the master. In an action by the indorsee against the acceptor of the bill, — Held, that as the ap- prentice had been maintained and instructed by the master for hfe months, and might have enforced a continuance or that maintenance and instruction by causing the in- denture to he properly stamped, under 20 Geo. 2, c. 45, s. 5, there was not a total failure of conside- ration for the bill, and the acdou upon it was maintainable. Mann V. Lent. 660
BOUNDARY.
See Evidence, 1, 3.
BROKER.
See Vendor and Vekdes, 2 — Witness.
CHURCH RATE.
CONVICTION.
773
CANAL.
See Poor Ratb.
CERTIORARI. See Costs, 3.
Where an action of trover, in which the damages are laid under 20/., is removed by certiorari, by the de- fendant from an inferior mto a su- perior court, without entering into a recopiizance to pay the debt and costs pursuant to 7 & 8 Geo, 4, c. 71, s. 6, the plaintifT is entitled to a procedendo; and that, though the return to the certiorari has been filed. Fwmish v. Swann, 4f52
CHAPEL.
See Mandamus — Notice to Quit, 3, 4— Tenant at Will.
CHURCHWARDENS.
See Church Rate, 2— Parish Lands.
CHURCH RATE.
1. Old assessments to church rate are evidence upon a question of boundary, though the parish of- ficers do not charge themselves with the receipt of the rate, other- wise than by crosses set against the names of the parties rated. Plaxton V. Dure. 1
2. The sutuie 59 Geo. 3, c. 12, s.l7, vests in the churchwardens and overseers of a parish all property belonging to such parish, whether applicable to the relief of the poor only, or to the purposes for which the church rate is made only ; and whether originally vested in trus- tees for the benefit of the parish or not. Doe d. Jackson v. Hileif.
706
CLERGY.
See Dilapidations — Lease, 1 — QuARE Impedit.
CODICIL. See Demise, 4.
COMMERCIAL DOCKS.
See Limitation of Action, 1.
COMMISSIONERS OF BANKRUPT.
See Commitment, 2, 3.
COMMITMENT. See Justices, 1.
. A warrant of commitment for re- examination for an unreasonable time, as for fourteen days, is wholly void. Davis v. Capper. 53
. Commissioners of bankrupt have no authority to commit an examin- ant for refusing, upon request, to read an entry in a book. Isaac v. Impey. 377
. An examinant being requested by the commissioners to read an entry in a ledger, and refusing to do so, was by them committed ** for re- fusing to answer a question:*' — Held, that the request to read was neither in form nor substance a question; that the commitment was illegal ; and that an action of tres- pass against the commissioners for the imprisonment was maintaina- ble. Id. ibid.
CONSIDERATION.
See Bill of Exchange, 4 — Evi- dence, 20.
CONVICTION.
See Justices, 2,
774
COSTS.
COSTS.
COPARCENERS. See QuARE Impsoit.
COPYHOLD.
See Settlement by Estate, 5.
1. The lord of a manor is bound to admit the customary heir of a co- pyholder in fee, although there be a surrender to the use of a will, and a devise by* the surrenderor, there being no claim of admittance on the pan of the devisee. Bex v. Wilson. 140
2. So, although it appear, upon the return to a mandamus, that the non-claim of admittance, on the part of the devisee, is the result of a contrivance between him and the customary heir to deprive the lord of the fine which would be payable on the admittance of the devisee. Id. ibid.
3. In the case of a devise of copy- hold surrendered to the use of the will, the estate descends upon the heir, subject to the contingency of being divested by the admittance of the devisee. Id. ibid.
4. Therefore, no disclaimer by the devisee is necessary to vest the estate in the heir. Id. ibid.
5. A copyhold may be disclaimed by parol, or by other matter in pais. Id. ibid.
6. J, and fi., joint tenants of a co- pyhold, make partition by parol without the consent of the lord, and afterwards occupy in severalty. A. surrenders to C. by general words. C. is not entitled to be admitted to the parcels occupied by A, in severalty. Rex v. South- wood. 414
COSTS.
See Evidence, 18 — Insolvent, 1, 2 — Pleading, 6 — Practice, 2.
1. A plaintiff arresting for a larger sum than is lesally due, though without malice, is liable to pay the
defendant's costs under 43 Geo. 3, c. 46, s. S. Doulan v. Brett. 29
2. Where a defendant is arrested without reasonable or probable cause, and the plaintiff recovers less than the sum sworn to, he is liable to costs, under 43 Geo. 3, c. 46, though no malice be she wo. Day V. PicUm. 31
3. Where an indictment for felony is removed by certiorari, and tried at nisi prius, neither the judge at nisi prius nor this Court has authority to award costs to the pfl^ecutor under 7 Geo. 4, c. 64, s. 122, whe- ther the indictment be removed by the prosecutor or by the pri- soner. Rex V. Treasurer of City q/" Exeter. 167
4. In trespass for turning plaintiff out of a room, per quod he was prevented from exercising his business of an attorney therein, if the plaintiff obtain a verdict for less than forty shillings, he is not entitled to full costs without a judge's certificate, under 22 & 23 Car. 2, c. 9, s. 136. Daubney v. Cooper. 325
5. Where B. commits a trespass on the land of A. by the direction and for the benefit of C, and A. sues
B. alone, the Court will not order
C. to pay A.'b costs. Berkeley r. Demery. 442
6. Separate ejectments being brotight by A. against B. and C, tenants in possession respectively of parts, and D., tenant in possession of the remainder of the premises sought to be recovered ; and D., dliining to be landlord of B. and C., obtains a rule to consolidate the causes, the ejectments against B. and Z>. abiding the eretit of the trial of the action against C: a verdict being found for A. against C, the Court ordered D. to pay to A. his costs of the action tried, but refused to order him to pay the costs of the appiicatiOn to the Coorc. Thrustout d. Jones v. SheiUon. 443
COSTS.
COUNTY RATE. 775
7. SenAkf that A*b proper course would have been to oriog only one ejectment agaioat the three, — or to move to set aside the appear- ance and pleas, unless X). would defend as landlord, — or to obtain a consolidation rule in which D, should have been directed to pay the costs in all the actions, in case a verdict should be found for the plaintiff. Thrvstout d. Jones v. SkentOH. 443
8. Under 43 Eliz.t c. 6, a judge may certify to deprive of his costs a plaintiff who recovers less than fortv shillings, even where the de- fendant is privileged to be sued in the superior courts only; and, f«m- bUf where the defendant is not an- swerable to an inferior court, by reason of his not residing within the jurisdiction within which the cause of action arose. Wright v. Nuttall. 454
9. Where, in formedon, the demand- ant succeeded upon a demurrer to the replication, and obtained a verdict upon the trial of an issue in fact, and judgment was given thereon that he snould recover his seisin against the tenant, and upon writ of error brought, the common errors were assigned, and judgment was affirmed : — Held, that the de- mandant was entitled to double costs under 13 Car. 2, c. 2, s. 10. CocktreU v. Cholmeley. 509
10. The 6 6rfo.4, c.50, s.30, applies only to cases where a verdict is actually found : therefore a defend- ant, who has moved for and ob- tained a special jury, is not enti- tled, under that section, to the costs of such jury, where the plain- tiff either withdraws the record or is nonsuited ; although the judge has certified that the cause was proper to be tried by a special jury. IVood v. Grimwood. 622
(But see 2 & 3 IVill. 4, c. 42, s. 35.)
COUNTERMAND OF PAYMENT.
Where A. agrees to take certain goods of B, at a price, partly to be set against a debt due from jB. to ^., and the residue to be deposited with C. for the purpose or being paid over to D., when it should be as<4rtained in what sum B, is in- debted to D., it is not competent for
B, to countermand the payment to D. ; and until the account is taken,
C. may hold the whole of such re- sidue against JB. Bignell v. Ellis.
165
COUNTY RATE.
1 . A notice of appeal against a county rate, under 55 Geo. 3, c.51, s. 14, must either state in express terms that the appellant is aggrieved by the rate, or state that from which it follows of necessity that he is so.
Therefore, such a notice of ap- peal, stating, as the ground of appeal, " that the county rate is unequal and defective, inasmuch as the appellant parish is charged and assessed in the rate at a higner proportion of the pound sterfing, according to the fair annual value of the ratable property therein, than the respondent parish is charged and assessed in the rate, in proportion to the fair annual value of the ratable property therein," is defective and bad, for not going on to state in the words of the statute, " than has been fixed and declared by the justices of the county, in sessions assembled, as the basis of the rate;" for both parishes may have been valued too low, and yet the appellant parish may have no reason to complain with reference to the basis on which the whole rate was made.
And where, upon such defective notice, the sessions received evi-
776
DEVIATION.
DEVISE.
dence of the annual value of the ratable property in both parishes, and amended the rate by altering the assessment upon the two pa- rishes according to the annual va- lue so proved, but lefV the state- ment of the annual value of both to remain as before : — Held, that they had acted without authyity, and that their order must be quashed.
Setnble, that the sessions might have corrected an inequality in the valuation of the ratable property in the two parishes, if the notice of appeal had been so framed as to authorize them to receive evi- dence upon that subject. Rex v. Blackawton, 695
i. Where (before the passing of the Municipal Corporation Reform Act, 5 & 6 mil. 4, c. 76,) the charter of a borough contained a non-introraittant clause, excluding the county magistrates, a rate in the nature of a county rate might have been enforced by the borough magistrates, under 55 Geo, 3, c. 5 1 . Mercer v. Davis, 785
COURT OF CHANCERY.
See Bankrupt, 1 — Practice, 4,
COURT OF ERROR. See Costs, 9 — Practice, 3, 4.
COVENANT.
See Joinder of Parties, 2 — Land- lord AND Tenant, 2.
DEPOSIT.
See Bankrupt, 7 — Insolvent, 4— Ship's Registry, 2 — Trover.
DEVIATION. See Policy of Insurance, 6.
DEVISE.
See Copyhold, 1, 2, S, 4— Execu- tion OF Power, 1.
1. A, devises to jB. for life, remainder to C. in fee, with power to B., in case C. should die before B., and B, should have no other child livinff at her death, to devise as she should think proper. C. sur- vived A,, and died in the lifetime of jB. The power of devising given to B, is a limitation in fee to her by way of executory devise during the life of C, and upon the death of C. it becomes a vested remainder capable of being de- stroyed by fine. Doe d. Harris v. HoweU. 24
2, Devise of lands to A. for life, re- mainder to the children of ^. living at the time of ^.'s death. B. left one daughter, who, with her hus- band, in the lifetime of ^., levied a fine to the use of C, The fine operates by estoppel only during the life of ^., but after ^.'s death it operates upon the estate^ vesting the right of possession in C. Doe d. Christmas v. Oliver. 202
S, A, devises land to B. and his heirs, but in case B. dies without heirs, then to C. and his heirs, or in case B. offers to mortgage or levy a fine, or suffer a recovery, upon the whole or any part there- of, then to go to C. and his heirs — B. and C. are strangers in blood. The fee vests in J?., and the exe- cutory devise to C, is void. Ware V. Cann. 341
4. A. devised a messuage to B. for life, and, after other devises, de- vised all the residue of his real estate to B, and his heirs. After- wards A,f having purchased other lands, made this codicil : — "Where- as I did, by my last will and tes- tament, bearing date &c, devise all the real estate / was then pos- sessed of in manner therein men- tioned, and which will I ratify and
EJECTMENT.
EVIDENCE.
777
tonfirm:" — Held, that the after- purchased lands passed by the codicil. fVilUams v. Goodtitle,
757
DILAPIDATIONS.
The incumbent of a living is bound to keep the parsonage-house, build- ings and chancel, in good and sub- stantia! repair, restoring and re- building, when necessary, accord- ing to the original form, without addition or modem improvement ; but he is not bound to supply or maintain any thing in the nature of ornament, as painting, (unless necessary to preserve exposed timbers from decay,) and white- washing, and papering: and in an action for dilapidations, by the successor against the representa- tive of a deceased rector, the da- mages are to be calculated upon this principle. fVise v. Metcalfe.
235
DISCLAIMER.
See Copyhold — Ejectment.
A copyhold may be disclaimed by parol, pr by other matter in pais. Rex V. mison. 140
DISPENSATION.
See Settlement by Hiring and Service, S.
DISSENTING MINISTER.
Sdls Mandamus — Notice to quit, 3, 4 — Tenant at Will.
DISSOLUTION.
See Settlement by Hiring and Service, 2.
EJECTMENT.
See Costs, 6, 7 — Mandamus — No- tice TO QUIT — Tenant at Will.
In 1790, E, G.J being seised in fee
of an estate, died intestate, leaving two sons, J, G. and E, G. W. C. was then tenant in possession, and so continued until the trial of this ejectment. In 1812, /. G. died intestate, leaving an only son and heir, J, G., the lessor of the plain- tiff. After the death of E. G., the purchaser, W, C, paid his rent to E. G., the younger son, and to his two sons J, G. and E, G., the defendant, in succession, up to the time of action brought, with this exception, that in 1804, /. G., the eldest son of the purchaser, de- manded and received from W» C. one half-year's rent. In i 805, the same «/. G. cut down and disposed of, for his own benefit, certain timber upon the estate. In June, 1813,/. G., the lessor of the plain- tiff, demanded from W, C. the rent then in arrear, to which fV, C. replied, that his connection as a tenant with J. G. had ceased for several years. The ejectment was commenced in 1820, and the de- mise was laid on the 1st of May, 1813: — Held, first, that there was no adverse possession to bar the right of the lessor of the plaintiff to recover in ejectment ; and, secondly, that the reply of fV. C, in June, 1813, was sufficient evi- dence of a prior disclaimer to sup- port the demise in May, 1813, without proof of any notice to quit. Doe d. Grubb v. Grubb. 666
EVIDENCE.
See Bankrupt, 6 — Ejectment — Pledge by Factor, 3 — Witness.
1. Expired leases, and counterparts of expired leases, though cancelled, are admissible in evidence upon a question of boundary. Plaxlon v. Dare. 1
2. Old assessments to church rates are evidence upon a question of boundary, though the parish offi- cers do not charge themselves with
778
EVIDENCE.
EVIDENCE.
the receipt of the rate, otherwise than by crosses set against the names of the parties rated. Piax- ton V. Dare, 1
3. A iDemoranduTn at the foot of a promissory note, indicating a par- ticular place of payment, forms no part of the contract, though shown to be contemporaneous with the notice itself. IVilliams ▼. Wa- Ttng* 9
4. Where, in an action by the rever- dbner against the tenant of a house tbt opening a door in a wall, with- out the consent of the plaintiflT, and thereby damaging the house and prejudicing the plain tifTs re- versionary interest, tne opening of the door is proved and all actual damage to the house is disproved, the jury should be directed to in- quire whether the reversionary interest of the plaintiff has or has not been injured. Young v. Spen- cer. 47
5. A patent for a machine, invented and first brought into use by the patentee, is not avoided by evi- dence of a similar machine having been previously invented by an- other, by whom it was never brought into use in this country. Lewis v. Marling, 66^ ^
(T. Where a party suing for a mali- cious prosecution, had obtained a copy of the indictment, by virtue of the attorney-generars fiat, granted under a mis-statement as to the view entertained by the judge, before whom the indictment was tried, the Court refused to stay the proceedings, or to prevent the plaintiff from giving in evi- dence, on the trial, the copy so obtained. Bronm v. Cumming,
118
7. Where in trespass, the defendant justifies under mesne process, and the plaintiffreplies a detention afler a bail-bond given, an actual arrest must be proved ; proof of the ex- ecution of the bail-bond, coupled
with the admission of the trespass in the special plea, is not sufficient Reece v. Griffiths. 120
8. In an action on a promissory note, a declaration made by the plaintiff before he became the holder, is evidence to invalidate the note. WilUams V. . 121
9. The appropriation of shares in a mining company to a party at his request — the payment of an instal- ment on those shares — attendance at the counting-house of the asso- ciation, and there signing some deed, not produced at the trial — and subsequent attendance at a general meeting of the share-hold- ers, his conduct at which be is not allowed to shew — do not prove a party to be a partner. Dickenson V. Valpy. 126
10. In an action by the assignees of A., where the petitioning creditors are the assignees of B.^ the pro- ceedings wider B.'s commission are not evidence, under 6 Geo. 4, c. 16, s. 92, of the bankruptcy of jB. Muskett V. DrumnunuL 210
11. Whether an order by the Lord Chancellor, under 6 Geo. 4, c. 16, 8. 18, made pendente lite, would be evidence against a party who had no notice of it, qtuere. Id.
Und.
12. A defendant cannot justify the repetition of slanderous words, by merely proving that at the time when he repeated them, he stated that he had heard them from an- other, whom he named ; he must also prove that he repeated them upon a justifiable occasion, and that he believed them to be true. Macpherson v. Daniels. 251
13. A private book kept by a de- ceased collector of taxes, not as a matter of duty, but for his own convenience, containing entries by him acknowledging the receipt of sums of money in his character of collector, is admissible evidence in an action against his surety, al-
EVlDENCaE.
EXECUTION OF POWER. 779
though the parties who had made the jNiyinetlta were alivei and might have been called as witnesses. Afiddietan v. Melion. 264
14. A local paving act authorizes commissioners, at a meeting to be called for thai purpose, to order foot-paths to be rained, &c.t and direcu that the entries in the com- missioners' books may be read in evidence. An entry in the books stating, that such an order was made at a meeting held by public fioticef does not prove that the meeting was duly holden, so as to legalize the order. It should ap- pear by the entry, or be proved aUtrnde, that notice was given of ike purpose for which the meeting was called. Hey sham v. Forster,
277
15. Slanderous words, charged as addressed to the plaintiff in the second person, are not supported by evidence of words spoken of him in the third person, though so spoken in his presence. Starmard V. Harper. 295
16. The master of a vessel does not incur the penalties imposed by 6 Geo. 4, c. 125, s. 58, for refusing to take a pilot on board, unless it distinctly appears in evidence that the pilot at the time of offering his services produced his licence. Hammond v. Blake. 361
1 7. The indorsee suing the acceptor of a bill payable to the drawer's order, drawn and indorsed in a fictitious name, may, by compari- son of the signatures, shew that the drawing and indorsing are in the same handwriting. Cooper v. Meyer, 387
18. In an action on a policy of in- surance, where the defence is that there has been a material conceal- ment, the opinion of underwriters as to the materiality of the matters concealed, may, under certain cir- curasunces, be admissible evi- dence. Richards \, Murdoch, 418
19. In an action of trover in the King's Bench by bill, payment to the plaintiff*, aner the writ and before the declaration, of a sum in satisfaction of the damages and costs, may be given in evidence under the general issue, and will be an answer to the action. Wors- wick V. Beswick. 586
20. In an action on a promissory note, made payable on demand, parol evidence of an agreenient entered into when it was n>ade, that it shall not be put in suit until a given event happened, is not admissible. Moselty v. Hanford,
607
21. A partial failure of considera- tion cannot be given in evidence in answer to an action by the drawer, or his legal representative, against the acceptor of a bill of exchange. Obbard v. Betham,
632
EXCISE DUTIES.
The breach of mere revenue regula- tions, which tend to insure the due payment of duties imposed upon the manufacture of an exciseabte article, does not render the trade itself illegal, so as to incapaci|pe the manufacturer from recovering the price of such article, or from suing upon a guarantee given for the due payment thereof. Brown y. Duncan. 114
EXECUTION OF POWER.
1 . Land with the appurtenances was devised to ^, and his heirs for the use of B. for life, without impeach- ment of waste, with remainders over, with power to A., at the re- quest of the successive cetteux que use, to sell the estate; and to that end <^. was empowered by deed to revoke the uses in the will, and by the same or any other deed to convey the estate to the purchaser. A. sold the estate, ex-
780 FRAUDS, STATUTE OF.
GUARANTEE.
elusive of the timber upon it, and by deed revoked the uses in the will, and conveyed the estate to the purchaser; and by the same deed B, sold and conveyed the timber to the purchaser: — Held, that the power was not well exe- cuted, and that the revocation was void. Cockerell v. Cholmeley. 509 2. Conveyance to such uses as A. shall appoint; in default, to^. for life, remainder to a dower trustee for A.'n life, remainder to A. in fee. B. recovers judgment against A.f who afterwards appoints the immediate fee to C. Tnis appoint- ment overreaches the judgment, aud entitles C. to enter upon B.*8 possession, obtained under an ele- git, issued subsequently to the appointment. Doe d. fVigan v. Jones. 563
EXECUTORY DEVISE. See Devise, 1 , 3.
FINE AND RECOVER^,
See Copyhold, Z — Devise, I, 2, 3.
FOREIGN BILLS.
See Bill of Exchange, 3.
FORMEDON.
See Costs, 9.
FRAUDS, STATUTE OF.
1 . An agreement, by which A. was to furnish B, with turnip-seed to sow his land, and B. was to sell to A. all the turnip-seed produced from the land at 1/. Is. per bushel, was held to require a note in writing, under the 17 th section of the Sta- tute of Frauds, the value having in fact exceeded 10/. IVatis v. Friend. 439
2. PlaintifTs tenant being in arrear for half a year's rent, due at Lady-
day, defendant, an auctioneer, was in August about to sell the effects on the premises, when plaintiff attended and threatened to distrain. Defendant, in consideration that plaintiff would not distrain, ver- bally promised to pay him the rent then due, and the rent which would become due at Michaelmas. In an action to recover both amounts of rent : — Held, that plaintiff could recover neither; for that the pro- mise to pay the accruing rent was founded on a new consideration, distinct from the demand which plaintiff had on his tenant, and was therefore void under the fourth section of the Statute of Frauds ; and that such promise being en- tire, and void in part, was void altogether. Thcmas v. Williams.
625
FRAUDULENT PREFERENCE.
l£A. advance money to B., an insol- vent trader, (or the purpose of enabling B. to execute an order for goods, upon the terms of being repaid out of the price of the goods, a payment made by B. to A. out of the price when received, is not a fraudulent preference. Hunt V. Mortimer. 12
FRIENDLY SOCIETIES.
The proceedings upon the complaint of a member of a friendly society, under 49 G. 3, c. 125, must be aU before two justices resident in the county in which the society is held. Sharp V. Aspinall. 71
GAME LAWS.
See Justices, 2. — Pleading, 1 .
GUARANTEE.
See Excise Duties — Illegal Trade.
HAWKERS AND PEDLARS.
INSOLVENT.
781
HUSBAND AND WIFE.
!• A debt due from wife dum sola cannot be set off against a note given to the wife after marriage, if the husband elect to treat the note as his several property, as where he sues upon it in bis own name, or indorses it over to a third per- son ; and it is immaterial that the wife joins in the indorsement. Borough V. Moss. 296
2. Whether the debt could have been set off in an action brought on the note by the husband and wife, qu<ere. Id, ibid.
HAWKERS AND PEDLARS.
1. The exemption in 50 G. 3. c. 41, 8. 28, The Hawkers' and Pedlars* Act, in favour of the real worker or maker of goods, &c., or his children, apprentices, and known agents or servants usually residing with him, does not extend to an agent or servant residing in a sepa- rate dwelling-house, though wholly employed by such worker or maker. Bex v. Mainwaring. 36
2. Yeast is a victual within the ex- ception in 50 G. 8, c. 41, s. 23, the Hawkers* and Pedlars* Act. Bex v. Hodgkinson. 162
3. A timber-merchant, residing in the town oiA,^ and sending timber from the town of B. to the town of C. where it is sold by auction, is a hawker requiring a licence under 50 G, 3, c. 41, s. 7, although the place of sale were a village. Rex V. Pease. 507
4. Where a person on one day went the round of a neighbourhood, so- liciting and obtaining orders for tea, but having no tea with him, and on a subseauent day went the same round, delivering the parcels of tea previously ordered : — Held, that he was not a person " carrying to sell,** or " exposing to sale*' tea, within the meaning of 50 G. 3, c. 41, so as to be liable to a pe-
nalty for trading as a hawker with- out a licence. Rex v. M'KnighU
644
ILLEGAL TRADE.
See Hawkers and Pedlars.
The breach of mere revenue regu- lations, which tend to insure the due payment of duties imposed upon the manufacture of an excise- able article, does not render the trade itself illegal, so as to incapa- citate the manufacturer from re- covering the price of such article, or from suins upon a guarantee given for the due payment thereof. Brown v. Duncan^ 114
INCLOSURE,
Set Award, 4. — Settlement by Estate, 6.
INDICTMENT.
See Costs, 3. — Evidence, 6 — Pleading, I.
INFERIOR COURT.
See Costs, 8. — Certiorari.
INFORMATION. See Justices, 2.
INSOLVENT.
See Fraudulent Preference. — Warrant of Attorney.
1 . A plaintiff in execution for costs exceeding 20/., is not entitled to his discharge under 48 0.9^ c. 123, after naving lain in prison twelve months. TinmoiUh v. Tay- lor. 44
2. SemhUt that the statute does not apply to plaintiffs in any case. Id.
ibid.
3. The undertaking of the execution creditor to pay 3s. Cd. a week to the debtor under the Lords' Act, is satisfied by payment to the turnkey. Gainsford v. Marshall.
485
782 JUDGE'S CERTIFICATE. LANDLORD AND TENANT.
4. The aasignees of an insolvent cannot recover from a penon with whom the insolvent has de- posited the title deeds of an estate, as a security for a debt, the rents of the estate received by such per- son subsequently to the assign- ment. Garry v. SharraU. 609
INSURANCE. See PoucY of Insurance.
JOINDER OF PARTIES.
See Costs, 6, 7. — Husband and
Wife.— Sjst-Ofp, 1, 2.
1. An attorney carrying on business under the firm of '* K. and Son," his son not being in fact his part- rier, may sue alone for the amount of his bill for professional business done. Kell v. Namhy, 7Q
2. A covenant with the part-owners o^ a ship, and their several and re- spective executors, &c., to pay money, to accrue for the hire of the ship, for freight of goods, and for compensation for the use of the ship's tackle, &c., to the cove- nantees, their and every of their several and respective executors, &c., at a certam banking-house, in such parts and proportions as were set against their several and respective names, is a severid co- venant, and cannot be sued upon by the covenantees jointly. Ser- vanie v. James. 299
S. Where B. commits. a trespass on the land of A,, by the direction and for the benefit ofC, and y^. sues B. alone, the Court will not order C. to pay A.*a costs. Berke^ ley V. Demery. 442
JOINT TENANTS. See Copyhold, 6.
JUDGE'S CERTIFICATE. See Co^Ts, 10.
JUSTICES.
See Commitment.— CouNiT Rate,
2. — Friendly Societies. — Ses- sions.— Settlement.
1. A warrant of commitment for re- examination for an unreasonable time, as for fourteen days, is wholly void ; and trespass lies asainst the committing magistrate, though he acted without any indirect or im- proper motive. Davis Y. Capper, 53
2, A conviction before magistrates, upon an information under the game laws, is a iudicial proceeding, at which all the king\ subjects for^ whom there is room, and a^inst whom there rests no spe- cial ground for exclusion, have a right to be present. Dauhney v. Cooper, 314
8. Qtkpre— What shall be a wilfiil detainer of the certificate of regis- try of a ship, authorizing the inter- ference of a magistrate under 6 G. 4, c. 41, s. 25. Bowen v. Fox. 4
LANDLORD AND TENANT.
See Ejectment.— Lease. — Settle- ment BY Estate, 5.
1. Where in an action by reversioner against the tenant of a house, for opening a door in a wall, witliout the consent of the plaintiff, and thereby damaging the house, and prejudicing the plaintiff's rever- sionary interest, the opening of the door is proved, and all actual damage to the house is disproved, the jury should be, directed to in- quire, whether the reversionary interest of the plaintiff has, or has not been injured. A nominal ver- dict for the plaintiff, without such direction or inquiry, on the ground that the defendant had no right to make the alteration, was set aside. Young V. Spencer. 47
2, A., the owner of a house which, in consideration of a premium paid
LIBEL.
LIMITATION OF ACTION. 783
to the lessor, and a covenant to repair and finish, had heen de- mised to jB. at a rent amounting to less than the annual value, re- deems the land tax thereon under 38 Cr. 3, c. 5, A, is entitled to an annual payment from fi. in re- spect of the difference between the rent and the annual value, viz. an annual payment bearing the same proportion to the whole land tax redeemed, which the diflference between the rent and the annual value bears to the ^pnual value. Wtofd V. Coiuf. 402
LAND-TAX, 5ee Landlord and Tenant, 2.
LEASE.
Stt Evidence, 1. — Landlord and Tenant, 2. — Muniment Chest.
1. A demise of the glebe by the in- cumbent of a benefice with cure of souls, to secure an annuity, is void by 57 G. 3, c. 99, reviving 13 Ehz. c. SO. Shan v. Pritchard.
180
S. A. agrees to execute to B, an ef- fectual assignment of the two leases of a house and shop for ;£4250, '* as he holds the same for a term of 28 years," and B. agrees to accept "a proper assignment of the leases as above described, without requiring the lessor's title:*' Held, that B. was bound to take an assignment of the two consecu- tive leases, though the second was void, being executed under a power which had not been pursued. Spraitw.Jeffery. 188
LIBEL.
"Whether matter written or printed by A, concerning B, is libellous, de- pends not upon the intention of ^. to injure B., but upon the tendency
of the publication to produce the injurious effect. FUh^ v. Clement.
730
LIEN.
See Bankrupt, 7. — ^Insolvent, 4. — Pledge bt Factor. — Ship's Re- gistry, 2.-— Trover. — Witness.
LIMITATION OF ACTION.
1. A dock act authorised a company to make and maintain docks, and to appoint a dock-master, who should have power to direct the mooring, unmooring, moving and removing of all \essels into or in the docks, and should have con- trol over the space of 100 yards from the entrance into the docks, so far as related to the transport- ing of vessels in and out ; the company to be sued in the name of their treasurer ; and every ac- tion brought against any person for any thing done in pursuance of the actf to be commenced within six calendar months afler the fact committed. In an action brought against the treasurer for damage done to a vessel by means of im- proper directions given by the dock-master in transporting her into the docks : — Hela, that giving such directions was a thing done in pursuance of the act, and that the action should have been com- menced within six calendar months afler those directions were given. Smith V. Shaw. 225
2. A. having lent JB. a sum of money, agreed to continue the loan for one year, from September, 1826, to September, 1 827, on condition that B. would pay a bonus in the first instance, and legid interest upon the sum lent half-yearly. B. paid the bonus in January, 1827, and legal interest upon the money lent h5f-yearly, in April and Oc- tober, 1827. In June, 1828, an action was commenced against A.
784
MANOR.
NOTARY PUBLIC.
for usury : — Held, that the action was not commenced within one year after any offence committed, for that the only offence committed was complete in April, 1827, when the first payment of interest was made, and that the bonus could not be apportioned to the second payment of interest, so as to ren- der that usurious. fVood v. (74m- wood, 698
LIMITATIONS, STATUTE OF.
See Promissory Note, 2.
LORUS' ACT.
The undertaking of the execution creditor to pay 3s. 6rf. a week to the debtor, under the Lords' Act, is satisfied by payment to the turnkey. Gainsford v. Marshall,
45
MALICE. See Costs, 1, 2,
MALICIOUS ARREST. See Costs, 1 , 2.
MANDAMUS.
See Copyholds, 1, 2, 6. — ^Notary Public, 2,
Where a preacher at an endowed meeting-house has such an interest in his office and its emoluments as will entitle him to a mandamus if disturbed in the use of the pulpit, he has not such a legal interest in the endowment, as will entitle him to retain possession against the trustees of such endowment. Doe d. Evans v. Jones, 752
MANOR.
See Copyhold. — Settlement by Estate, 5.
MASTER AND SERVANT.
See Settlement by Estate, 5.— Settlement by Hiring and Ser- vice.
MONEY HAD AND RECEIVED.
See Sheriff.
Rent paid by A, to £., claiming as devisee, the amount of which A, is afterwards compelled to pay to the heir, may be recovered back by A, as money had and received to his use, B, setting up no title to the lands when the action is brought, or at the trial. Newsome V. Graham, 64
MUNIMENT CHEST.
The muniment chest of the lessor and his assigns, is the proper cus- tody for an expired lease. Plax- ton V. Dare, 1
MUTUAL CREDITS. See Bankrupt, 2. — Srt-off.
NEW TRIAL.
A plaintiff nonsuited for want of formal proof, will not be allowed a new trial upon payment of costs. Swayne v. Ingilby, 125
NON-JOINDER. See Joinder of Parties.
NONSUIT.
See Abatement of Suit. — New Trial. — Practice, 2, 3, 4.
NOTARY PUBLIC.
1. A person who was bound appren- tice to a notary for seven years, and during the whole of that time acted as banker's clerk till five
NOTICE TO QUIT.
PARTNERS.
785
o'clock in the afternoon daily, and then went to the notary's office and employed the evening in presenting bills of exchange and preparing protests, is not a person who was actually employed by the notary during the whole term, in the proper business of a notary, within the meaning of 43 Geo, 3, c. 79, s. 7, and is not entitled to act as a notary. Rex v. Scriveners* Com^ pany» 548
2. Nor is such a person entitled to be admitted to the freedom of the Scriveners' Company, for the pur- pose of being enabled to apply for a faculty to practise as a notary, within s. 17 of the same statute. Id,
ibid.
NOTICE OF APPEAL. See County Rate, 1.
NOTICE TO QUIT.
See Ejectmbmt.
1. An agent to receive rents has no implied authority to give notice to quit. Doe d.MannY. Walters, 357
2, Where notice to quit is given by an agent, the authority of such agent roust be complete a half- year before the expiration of the notice, or, at least, before the day of the demise laid in a declara- tion in ejectment brought in re- spect of such notice. Id. ibid,
S, The duly elected minister of a dissenting congregation, who is put in possession of a chapel and dwelling-house by trustees, in whom they are legally vested, in trust to permit the chapel to be used for the purpose of religious worship, is a mere tenant at will to such trustees, and his tenancy is determined by a demand of pos- session, without any previous no- tice to quit. Doe d. Jones v. Janes.
616
4. The minister of a dissenting con- gregation, who is put in possession
VOL. V.
of a chapel and dweUing-house by trustees, in whom they are legally vested, in trust to permit the chapel to be used for the purpose of religious worship, is a mere tenant at will to such trustees, and his tenancy is determined tn-* sianter by a demand of possession, without any previous notice to quit. Doe d. Nicholl v. M*Kaeg.
620
OVERSEERS.
See Church-Ratx, 2. — Parish Lands.
PARCENERS. See QuARB Impedit.
PARISH CERTIFICATE.
See Settlement by Acknowledg- ment.
PARISH LANDS.
The statute 59 Geo. d, c. 12, s. 17, vests in the churchwardens and overseers of a parish, all property belonging to such parish, whether applicable to the relief of the poor only, or to the purposes for wnich the church-rate is made only ; and whether originally vested in trus- tees for the benefit of the parish, or not. Doe d. Jackson v. niUff,
706
PARTITION.
See Copyhold, 6. — Quarb Im- pedit.
PARTNERS.
See Evidence, 9. — Joinder of Parties, 1, 2.
1 . To make a party liable to a third person as a partner, he must either be in fact a partner, or must have held himself out to third persons
Se
786
PAYMENT.
PLEADINGS.
as a partner. Dickenson v. Valpy.
126 2» Whether A.^ who has been in- duced by fraud to enter into a partnership, can set up that fraud against his liability to a party who became a cr^ditor« without know- ing i^. as a party, ^o^rr^. Id, ibid.
3. The directors of a mining asso- ciation cannot bind the members by accepting a bill of exchange, unless they are authorized so to do by the deed or instrument of copartnership, — by the necessity of such a power to the carrying on of the business, — by the usage of similar establishments, — or by the express assent of the party sought to be charged. Id. ibid.
4. Still less can the directors bind the members by a bill drawn upon the directors by their own ser- vant, such a bin being in eff^t a promissory note. Id. ibid,
PART-OWNER.
Quaere^ as to the power of one part- owner of a ship to appoint a master, and to displace a master appointed by another part-owner. Borven v. Fox. 4
PATENTS.
1. A patent is not avoided by the specification claiming as part, but not as a necessary part of the in- vention, something which proves to be useless. Lewis v. Marling.
66
2. A patent for a machine invented, and first brought into use by the patentee, is not avoided by evi- dence of a similar machine having previously been invented by ano- ther, by Whom it was never brought into use in this country. Id. ibid.
t>AYMENT.
See Evidence, 18. — Insolvent, 3. — Lords' Act.
PILOT.
The mkster of a vessel does not in- cur the penahies imposed by 6 Geo. 4, c. 125, s. 58, for refusing to take a pilot on board, unless it distinctly appear that the pilot, at the time of ofi^ng his services, produced his licence. Hammond v. Blake. 861
PLEADING.
See Amendment. — Assault. — As- sumpsit. — Costs, 9. — Practice, S. — Quare Impedit, 2.
1. An indictment charging that A. and others, on &c., at &c., to the number of three together, did by night unlawfully enter divers closes, and were then and tkere^ in the said closes, armed with guns, for the purpose of destroying game, does not sufficiently allege that the defendants were, fry mghi in the closes, armed, for the par- pose of destroying game. 2>arief V. The King, in error. 78
2. " I believe the mare to be sound, but I will not warrant her." The vendee may declare in assumpsit, as upon a warranty that the mare is sound to the best of the vendor's knowledge. Wood v. Sndth. 124
3. In declarnig against the sheriff for an escape upon mesne process, it is sufficient to allege that the writ was duly indorsed for bail, without adding " by virtue of an affidavit made and filed of record.*' Nightingale v. Wilcockson. 169
4. A defendant cannot justifV the repetition of slanderous words, by merely pleading that at the time when he repeated thdm, he stated that he had heard them from ano- ther, whom he named; he most also plead that he repeated them upon a justifiable occasion, and that he believed them to be thie. Macpherson v. Daniels. 251
5. Slanderous words, charged as ad- dressed to the plaintiff in the se-
PLEDGE BY FACTOR.
POLICY OF INSURANCE. 787
cond person, are not supported by evidence of words spoken ^ him in the third person, though so spoken in his presence. Slamnard Y.Harper. 295
6. In assumpsit, the defendant pays money into Court, and the plain- tiff agrees to take that money and his costs. The costs are taxed, and paid by the defendant and received by the plaintiff. The plaintiff, altering his mind, does not take the money out of Court, and offers to return the costs, which the defendant refuses to take. The plaintiff discontinues the action, and the costs of the dis- continuance are taxed and paid to the defendant. These facts will not support a plea in another action for the same demand, alleging that the plaintiff received the money paid into Court, and the costs^ m full discharge of the cause of action. Power v. Butcher. 327
7. A plea that A.^ being seised of Whiteacre and Blackacre, always used a way over Whiteacre to Blackacre^and afterwards conveyed BlackacrCj "together with all ways and appurtenances whatsoever," to B.f is not a sufficient justification of an entry into Whiteacre by B.
8. If, at the time of the conveyance, J. had no access to Blackacre by a way appurtenant in alieno solOf that circumstance should have been alleged.
9. Or i^ should have been pleaded as a grant of the way. fVilson v. Bogthaw. 448
PLEDGE BY FACTOR.
The right of a &ctor, under 6 Geo. 4, c. 94, 8. 5, to pledge the goods of his principal, depends upon the
auestion whether, upon the face of lie whole account between them, the principal is indebted to the factor. Robertson v. Kensington.
381 5S. A factor, by desire of his jprinci-
pal, kept separate accounts of sales, in some of which the prin- cipal was solely, and in others but partly interested ; but he regularly posted all the items of both those accounts into one general account. The factor pledged goods con- signed to him on tiie joint account, for the purpose of meeting a draft drawn on him by his principal against that account. At the time of the pledge, the factor, upon the general account, was indebted to his principal in a larger sum than the amount of the driA ; but upon the separate account, against which the drafl was drawn, and to which the goods pledged belonged, the principal was indebted to his fac- tor :~Held, that the factor had no right to pledge, and that the pledgee could not retain the goods against the principal. Robaiion v. Ken- tingion. 381
3. Where, in such a case, the prin- cipal for some, time afler notice of the pledge, forbore to make any demand upon the pledgee : — Held, that such forbearance was not an acquiescence in the pledge, — and that in the absence of any evidence to shew that the effect of such forbearance had been to alter the situation of the pledgee for the worse, or that of the principal for the better, the riffht of the prin- cipal against the pledgee remained entire. Id. ibid.
POACHING.
See Pleading, 1.
POLICY OF INSURANCE. See Witness.
1. Afier stoppage in transitu, the vendee ceases to have an insurable interest. Clay v. Harrison. 1 7
2. A policy of insurance, effected before stoppage in transitu, be- comes void by stoppage in transitu. Id. ibid.
3e2
788 POLICY OF INSURANCE.
POOR RATE.
3. By the custom of UoydTs, pre- miums of insurance are matters of account between the underwriter and the broker, and between the broker and the assured, without any privity between the assured and the underwriter. The broker has therefore a claim upon the assured for the amount of the pre- mium as soon as the policy is effected, whether he has paid the underwriter or not, — and whether < the underwriter has, by the policy, confirmed the premium to be paid ; or has taken the covenant of the broker to pay it. Power v. BtU» cher. 827
4. ^., at Sydney, ships goods to B., at London, by the ship C, and by the next ship writes to him, direct- ing him, if the letter arrives before the C, to wait thirty days, in or- der to give every chance for her arrival, and then to insure the goods. B, receives the letter, and after waiting thirty-six days, in- sures the goods, telling the under- writer when the C. sailed and where the letter was written, but not tell- ing him when he received the let- ter. The C. never arrives. This is a material concealment, and avoids the policy. Rickardi v. Murdoch. 418
5. In an action on the policy, under such circumstances, the opinion of underwriters, as to the materiality of the matter concealed, was held to be admissible evidence. Id.
ibid.
6. Policy of insurance on goods by ship ** at and from Singapore, Pe- nang, Malacca, and Batavia, all or any, to the ship's port of discharge in Europe, with leave to touch, stay, ana trade at all or any ports and places whatsoever and where- soever in the East Indies, Persia, or elsewhere, &c., beginning the adventure upon the go<3s from the loading thereof on board the ship as above." The ship took in some
goods at Batavia, then went to Sourabaya, a port in the East In- dies, but not in the direct course from Batavia to Europe, and took in other goods, then returned to Batavia, and afterwards sailed from thence for Europe, and was lost by the perils of the sea: — Held, that the going to Sourabaya was no deviation, and that the goods taken in there were pro- tected by the policy. Hunter yf. Leaihley. 522
7. Policy of insurance on a ship for a year, with a stipulation for a proportionate return of premium, '* for every uncommenced month, if the ship should be sold or laid up." The ship was laid up for several months during the year, but was afterwards employed with- in the year: — Held, that the words " laid up" meant a permanent lay- ing up, such as would put a final end to the policy, and therefore that the assured was not within the stipulation, nor entitled to any returns of premium. Hunter v. Wright. 611
POOR.
See Church Rate, 2 — Parish Lands — Settlement.
POOR RATE.
See County Rate.
By the Oxford Canal Act, the pro- prietors were authorized to take a mileage tonnage for coals and other goods, excepting coals for two miles, in respect of which the proprietors of the Coventry Canal were authorized to take all dues payable under that act, for all coab carried from the Oxford Canal within those two miles. By the same act, the proprietors of the Oxford Canal were authorised to take all dues payable under the Coventry Canal Act, for all goods, except coals, carried upon tl^ Ox-
POWER OF ATTORNEY.
PRACTICE.
789
ford Canal, and afterwards upon the Coventry Canal, within three miles and a half of the point of junction of the two canals. That point of junction was in parish P., which contained one mile nine hun- dred and sixty-three yards of the Oxford Canal, part of the two miles before mentioned, and two miles and a quarter of the Coventry Ca- nal, part of the three miles and a half before mentioned.
By the Grand Junction Canal Act, reciting that that canal might be injurious to the proprietors of the Oxford Canal, and that com- pensation should be made to them for such injury, they were autho- rised to take ts. 9d, per ton for all coals passing from the Oxford Canal into the Grand Junction Ca- nal, without regard to the distance they might pass on the Oxford Canal ; and 4s, 4d, per ton for all other goods passing from any canal into the Oxford Canal, and from thence into the Grand Junction Canal, or vice versd, without re- gard to the distance they might pass on the Oxford Canal.
Held, that the proprietors of the Oxford Canal were ratable in parish P. for all the dues received by them, in the proportion in which they were severally earned in that parish, but that, in fixing the rate, all the expenses incurred in main- taining the part of the canal situate in that parish must be first de- ducted from the total amount of dues received. Bex v. Oxford Canal Company, 100
POWER. See Execution of Power, 1.
POWER OP ATTORNEY. A power of attorney given by a
debtor to a creditor, authorizing him to sell an estate, and to a the proceeds in liquidation ol
debt, is an authority coupled with an interest, and cannot be revoked. Gatusen v. Morton, G13
PRACTICE.
See Abatement of Suit — Amend- ment—Award—Costs, 7 — Evi- dence, 18 — Pleading, S.
I. Where the sheriff neglects his duty, the Court would not (even before the Interpleader Act) en- large the time lor returning the writ, although the judgment credi- tor and the assignees of the defend- ant refuse to indemnify. Colly v. Hardy. 123
3. A plaintiff* nonsuited for want of formal proof, will not be relieved upon payment of costs. Swayne V. Ingxlhy, 125
3. A court of error will not inquire into the propriety of a rule made by one of the superior courts, for amending the declaration ; or of a rule for setting aside a rule to plead several matters, and for striking out pleas filed in accord- ance with such rule ; or of a rule for setting aside a nonsuit, although the nonsuit has been obtained in a form of action (quare impedit) in which a nonsuit is made peremp- tory by statute. Bishop of Exeter V. Gully % in error. 457
4. The Court of Chancery will not award a writ of diminution, re- quiring one of the superior courts — which has given a judgment upon which error is brought — to certify the residue of the record and pro- cess, upon a suggestion, supported by affidavit, that such Court has not returned an original record existing in the cause, for which the record returned has been substi- tuted in such Court bv amend- ments ordered to be made by rule of such Court. The proper mode of objecting to such amendments is by tendering a bill of excep- tions. Id, 499
790
PROCESS.
5. Where the plaintiflT, in a am tarn action for usury, sued out his writ in September, 1828, delivered his declaration in Trinity term, 1829, took the record down for trial at the summer assizes, 1829, and then withdrew the record; the Court refused to allow him to amend his declaration. Wood v. Grimwood.
584
PRINCIPAL AND AGENT.
See AoENT — Notice to quit, 1, 2 — Plei>oe by Factor — Revocable Authority.
PRINCIPAL AND SURETY. See Evidence, 15.
1. A., principal, and B., surety, gave their promissory note to C.. C. sues J„ and takes a cognovit pay- able by instalments, the first in- stalment to be paid on the day before that on which C. might have signed final judgment in the action, if no cognovit had been given, with power to issue execu- tion for the whole debt in case of default. A, makes default at the day:— Held, that B. is not dis- charged. Price V. Edmunds. ZS7
2. Whether B. would have been dis- charged if the first instalment had been duly paid, and the further instalments had thereby stood de- ferred to a day subsequent to that on which final Judgment could have been signed, if no cognovit had been given, qtuere. Id. ibid,
PROCEDENDO.
See Certiorari.
PROCESS.
Under particular circumstances, one man may be justified in laying hands upon another, for the pur- pose of serving him with process. Harrison v. Hodgson, 392'
PROMISSORY NOTE.
PROMISSORY NOTE.
See Husband and Wife — ^Partners, 3 — Principal and Surety — Set- off.
1. A memorandum at the foot of a promissory note, indicatiog a par- ticular place of payment, forms no part of the contract, though shewn to be contemporaneoos with the note itself. Williams y. fFaring. 9
2. A. gave his bankers, as a security for advances, a note by which he and B. jointly and severally pro- mised to pay on demand, to the bankers or order, 300/., with inter- est. The bankers credited A. with the amount of the note, and debited him yearly with interest Upon a change in the firm of the bankers, the note, unindorsed, was, with A.*s account, transferred to the new firm. At one time A. had a balance in the bankers' hands ex- ceedinff the amount of the note. A. paid interest on the note yearly to the new as well as the old firm.
Held, first, that the note, being a continuing security, might be en- forced> notwithstanding the change in the banking firm.
Secondly, that the note, not hav- ing been indorsed, the original payees, or the survivors of them, were the proper persons to sue upon it.
Thirdly, that the note was not discharged by A/s having at one time in the bankers* hands a ba- lance exceeding its amount.
Fourthly, that payment, within six years, of interest on the note by A,t took the case out of the Statute of Limitations as to B, Pease v. HirsL 88
3. In an action on a promissory note, a declaration made by the plaintiff before he became the holder, is evidence to invalidate the note. WilUams v. . 121
4. In an action on a promissory note made payable on demand, parol
RATE.
SESSIONS.
791
evidence of an agreement entered into when it was made, that it should not be put in suit until a given event happened, is not ad- missible* Moseteu v. Hanford.
607
QUARE IMPEDIT.
See Practice, S, 4.
1. A presentation by A, is a suffi- cient possession to support a quare impedit by B„ a party claiming under the youngest daughter and co-heir of A,^ after severance amongst the coparceners, by rea- son of their disagreeing in presen- tation. Bishop of Exeter v. Gully,
457
2. In quare impedit by B., a party claiminff under the fourth daughter and co-heir of yf., the declaration alleges, that after severance by disagreement, the eldest daughter presented in the first turn, and that unknown persons successively presented as in the turns of the second and third coparceners: — Held, that these presentations must be taken to have been by rights and not by usurpation ; but that if made by usurpation, they would not destroy the effect of the pre- sentation by the common ancestor, as sufficient to support the posses- sory right of all the coparceners. Id. ibid.
3. A conveyance of the property of the youngest of four coparceners, when the church is full upon the presentation of the eldest, express- ed to be made " in consideration of 20«. and of faithful service done to the grantor, as also for divers good and valuable causes and con- siderations him thereunto moving," is not necessarily fraudulent as against a subsequent purchaser for value. Id, ibid,
RATE.
See CHuacB Rate— County Rate — Poor Rate.
RECOGNIZANCE.
See Certiorari — Sessions— Sheriff.
RECORD OF ACQUITTAL.
See Evidence, 6.
Semble, that a party indicted and ac- quitted, is entitled, as of right, to a copy of the record of acquittal. Browne V, Cumming. 118
REPEALED STATUTE.
Where a repealing statute is repealed, the first statute is, after the day on which the third statute takes effect, revived ab initio, and not merely as from that day. Phillips v. Hop- wood. 15
REVERSIONER. See Landlord and Tenant, 1.
REVOCABLE AUTHORITY.
A power of attorney given by a debtor to a creditor, authorizing him to sell an estate, and to apply the proceeds in liquidation of nis debt, is an authority coupled with an interest, and cannot be revoked. Gaussens. Morton, 613
RIGHT OF COMMON. See Award, 4.
SCRIVENERS' COMPANY.
See Notary Public
SESSIONS.
^'ee Church Rate — County Rate— Poor Rate — Settlement.
Where, upon a recognizance forfeited at quarter sessions, the sheriff has levied part of the penalty, and has tlie defendant in execution for the residue, the sessions have jurisdic-
792
SET-OFF.
SETTLEMENT.
tion o^er the whole recognizance. Harper v. Hayton. d05
SET-OFF. See Bankrupt, 2.
1 . A debt due from wife dum sola, cannot be set off against a note given to the wife after marriage, if the husband elect to treat the note as his several property ; as where he sues upon it in his own name, or indorses it over to a third per- son ; and it is immaterial that the wife joins in the indorsement. Borough V. Mots, 296
2. Whether the debt could have been set off in an action brought on the note by the husband and wife, ott^prf. Id. ibid.
S. The indorsee of an over-due bill or note, is affected by all equities attaching to the bill or note, but not by a set^off^ which would have been available against the indorser. Id. ibid.
SETTLEMENT.
By Acknowledgment.
1. A parish certificate, produced in an appeal, bore date in April, 1 748, and purported to be signed by two churchwardens and two overseers. It appeared by the parish books, that in May, 1747, nve overseers had been appointed, two of whom had signed the certificate. By an indenture of parish apprenticeship, dated in October, 1 747, it appeared that the same five persons were at that time overseers, and that four persons were at the same time churchwardens, two of whom had signed the certificate ; and, by the parish books, in July, 1748, that five overseers were again appoint- ed, and that four churchwardens had been regularly chosen from 1683 to 1829. By the visitation books for 1746, it appeared that four churchwardens were then
sworn in; those for 1747 were lost; but by those for 1748, it ap- peared that in September, in that year, four churcnwardens were again sworn in, but that in about a dozen instances between 1683 and 1829, less than four church- wardens had been sworn io:— Held, that the sessions were not boimd to presume, even for the purpose of giving effect to so an- cient a document, either that there had been a new and valid appoint- ment of overseers between Octo- ber, 1747, and April, 1748, the date of the certificate; or that at that date less than four church- wardens were sworn in : and that they were, therefore, right in re- jecting the certificate as invalid. Rex V. Upton Gray. 688
By Appreniiceslttp.
2. An indenture of apprenticeship, to which parish oflicers are parties, is valid it allowed by two justices, under their hands only, though ex- pense be incurred, (but not clan- destinely,) by the parish funds, under 56 Geo. 3, c. 139, ss. 1 to 10. Rex V. St. Paul, Exeter. 94
3. Sect. 1 1 of that act, which requires an allowance by two justices, un- der their hands and seals, applies only to cases where expense is in- curred by the parish funds, and the parish officers are not parties to the indenture. Jd. Und.
By Birth.
4. A single woman, settled in A., was removed from B. to C. The order of removal was quashed, on appeal, but she had been previously deli- vered of a bastard child in C.:— Held, that the child was not set- tled in A. Rexv.Martksham. 82
By Estate.
5. An estate in remainder, though vested, will not confer a settlement. ftex V. fVUloughhy'with-Sloothby.
S2
SETTLEMENT.
SETTLEMENT.
795
6. A burgess receiving, by the allot- ment of the burgesses, a portion of the rent of lands held by the borough, does not thereby gain a settlement by estate. Rex v. Bel- ford. 174
7. A gift of land by parol confers only an esute at will, and an un- disturbed possession for fifteen years confers no settlement. Rex V. Chew Magna. 635
8. Residence, by a tenant at will, upon an estate of less value than 10/. a year, confers no settlement. Id. ibid.
9. A pauper was hired as shepherd by the tenantry farmers of a ma- nor, to keep the tenantry flock, at 1 4«. a week, and was to have a piece of land, called the Shepherd's Croft, which was to make up mo- ney as good as 16^. a week ; and he served a year under that hiring. By agreement of 1799, between the lord of the manor, his lessee of the manor, and the leaseholders and copyholders of the manor, ar- bitrators were appointed for divid- ing and allotting the open fields and downs within the manor, among the lessee and the lease- holders and copyholders of the manor, in lieu of the lands they had in the manor. The arbitrators allotted to the lessee of the manor, in trust for the shepherd of the tenantry flock, in lieu of lands in the manor held by custom by the shepherd, the piece of land called the Shepherd's Croft, which the pauper had when he was hired as shepherd, and he occupied part, and let off part to a tenant, during all the time he served as shep- herd : — Held, that the pauper took the land in his character of ser- vant, in lieu of wases, and there- fore, that he gained no settlement by estate. Rex v. South Newton,
7X5
10. A pauper settled in parish A., in 1800 inclosed a piece of waste
land from a common in parish B., and held and cultivated it till 1 827, when he sold and conveyed it to a purchaser. From 1800 to 1825, he resided out of parish B., but in 1 825 he removed into that parish, and in 1 826 built a hut on the land, in which he lived a year and a half. In 1806, 1811, and 1817, the pa- rishioners of B. perambulated that parish, for the purpose of marking their boundaries, &c., on which occasions they pulled up a portion of the fence of the land so inclosed by the pauper, dug up part of the bank, and rode through the inclo- sure. In 1820 or 1822, a similar perambulation was made, and simi- tar acts done, by direction of the lord of the manor. No acknow- ledgment was ever paid to the lord of the manor for the land: — Held, that there was an adverse posses- sion for twenty years, and tnat the pauper gained a settlement by estate in parish B. Rex v. fVoo- hum. 723
By Hiring and Service.
1 1 . Where, upon a yearly hirinff from the 13th of May, the following 13th of May is excluded from the service by a dissolution of the contract, no settlement is gained, although, hy reason of its being leap-year, the service continue 365 days. Rex v. Roxley. 40
12. What shall be a dissolution of the cofhtract, and what merely a dis- pensation with the service, is a question of fact for the Court of Quarter Sessions. Id. ibid.
13. A master having said to a pauper, he thought he would suit him, the pauper said, his mother would like to make him an apprentice. The master said, he would not take him apprentice, because if he did he should offend the farmers ; he would take him on an agreement for four years. A week afterwards it was agreed between the pau-
794
SETTLEMENT.
SETTLEMENT.
per's father*iB-law and the master, that the pauper should serve him for four years, to learn his trade, to have meat, drink, washing and lodging, the whole time, and 2s. 6d, a week for the last two years :— Held, that the principal object of the parties being, that the pauper should learn the trade of the mas- ter, this was a defective contract of apprenticeship, and not a con- tract of hiring and service. Rex v. Edingale. 648
14. A pauper hired himself for a year, at 5L wages and 5t. earnest, to his aunt, who occupied six acres of land, and kept two cows; when his aunt had no work for him, he was to work for any body else for his own benefit. This is not a hiring for a year, but an exceptive hiring, and service under it confers no settlement. Rex v. South Kil- linffhohne, 683
15. A pauper was hired as shepherd for eleven months. At the end of that time he was hired for one month. In the course of that month he was hired *' to go on again upon the same terms." He continued in the service two years uninterruptedly : — Held, that the last was a general hiring, under which the pauper gained a settle- ment. Rex Y. South NewUm. 715
By Holding an Office,
16. The office of crier and bellman for a city is a public annual office within the meaning of the statute Sh^W.^M, c. 11, s. 6, exe- cution of which for a year, with forty days' residence within the city, will confer a settlement. Rex V. St. Nicholas, Hereford. 676
17. And if the city contains several parishes, the party executing the office will be settled in that parish in which he has resided during the last forty days of his execution of the office. Id. ibid.
By Pmtmiagtn
1 8. A single woman, settled in A., was removed from B . to C. The order of removal was quashed on appeal, but she had been previously deli- vered of a bastard child in C. — Held, that the child was not setded in A. Rex v. Martiesham. 8S
By Renting a Tenement,
19. Under 6 Geo. 4, c. 57, and before 1 W. 4, c. 18, a settlement was gained by renting a dwelling-house and land at a rent exceeding 10/., actually paid, provided the whole tenement were occupied under the renting, although the land were not occupied by the renter himself, but by a sub-lessee of the Isnd. Rex Y. Great Bentley. . 569
20. A person renting the tolls, and residing in the toll-house, of a na- vigation, is within the prohibition in 54 Geo. 3, c. 1 79, s. 5, and can- not thereby gain a settlement, al- though he uses the house as a public-house, and it is worth much more than lOl. a year, to be let for that purpose. Rex v. St. An- drew the Lessj Cambridge, 639
£1. A pauper was hired in 1800 as labourer, at thirty guineas a year, to have a house, two gardens, and a rood of pototoes. After the bargain was made, his master said he miffht have the milk of a cow, and shortly after going into the service he had the milk of a cow, which was fed on his master's close during that part of the year when cattle are pasture-fed. The value of the house, gardens, and rood of potatoes was under 10/. a year, but with the keep of the cow upon the land was above that sum : — Held, that the pauper did not ac- quire a settlement by the occupa- tion of a tenement of the yearly value of 10/., for it was no part of the contract that he should have the milk of a cow, and even if it had been, it was no part of the
SHIFS REGISTRY.
STATUTES.
795
contract that the cow should be pasture-fed. Rex v. Langriville,
726
SHERIFF.
See Pleadino, 3.— Practice, 1.
1. Where, upon a recognizance for- feited at quarter sessions, the she- riff has levied part of the penalty, and has the defendant in execution for the residue, the sessions have jurisdiction over the whole recog- nizance. Harper v. Hayton, S05
2, And if the sheriff* has notice that they have discharged the defend- ant wholly therefrom, before the money levied has been paid over to the treasury, an action for mo- ney had and received lies against the sheriff* for the amount. Id,
ibid,
SHIP.
See Trover.
The master of a vessel does not in- cur the penalties imposed by 6 Geo, 4, c. 125, s. 58, for refusin^^ to take a pilot on board, imless it distinctly appear that the pilot, at the time of offering his services, produced his licence. Hammond v. Blake. 361
SHIP-OVTNER.
See Joinder of Parties, 2. — Ship*s Registry, 1. — Trover.
Qtutre, as to the power of one part- owner of a ship to appoint a mas- ter, and to displace a master ap- S minted by another part-owner. owen V. Fox, 4
SHIP'S REGISTRY.
See Trover.
1 . Qtfffff , what shall be a wilful de- tention of the certificate of registry of a ship, authorizing the inter-
ference of a magistrate under 4 Geo, 4, c. 41,8. 25. Bowenv,Fox, 4 2. Trover will not lie against a party with whom the certificate of the registry of a ship is deposited as a security for advances, upon a re- fusal to deliver up such certificate without payment. Id, ibid,
SLANDER.
See Evidence, 12, 15. — Libel. — Pleadiko, 4, 5.
SPECIAL JURY.
See Costs, 10.
STAMPS.
See Bill of Exchange, 3, 5.
STATUTES CITED OR COM- MENTED UPON.
Philip and Mary,
1 & 2, c. 13, Examinations before
magistrates 57
2 & 3, c. 10, Examinations before
magistrates 57
Elizabeth.
13, c. 20, Clergy 180
43, c. 6, Costs 454
James I. 21, c. 3, s. 6, Patents 67
Charles II.
13, c. 2, s. 10, Double costs 509 13 & 14, c. 12, Settlement by rent- ing a tenement 729 17, c. 8, Abatement of suit 431 22 & 23, c. 9, 8. 136, CosU 325 29, c. 3, s. 4, Parol promises and agreements M5 — ^ — , — 17, Sales of goods by parol 439
f§^iiUam and Mary,
3 & 4, c. 11, s. 6, Settlement by
office 676
796
STATUTES.
TENANT AT WILL.
Anne, 12« 8t. 2, c. 16, s. 1, Usury 605
George I. 24, c. 2$, 8. 2, Leap year 43
George IL
20, c. 45, 8. 5, Indenture of appren- ticeship— stamp 660 24, c. 18, 8. 1, Costs of special jury
623 45
32, c. 26, Insolvent Debtors
George IIL
26, c. 44, Insolvent Debtors 45
32, c. 60, Libel 733
33, c. 5, Insolvent Debtors 45
38, c. 5, Land-tax redemption 402
39, c. 50, Insolvent Debtors 45 41, c. 79, 88. 7, 17, Notaries public
543 — , c. 109, General Inclosure 746 43, c. 46, 8. 3, Costs 29, 31
48, c. 123, Insolvent Debtors 44
49, c. 125, Friendly Societies 71
50, c. 41, Hawkers and pedlars, 36,
162,507,644 — , c. 207, Commercial Docks 226
51, c. 68, Commercial Docks 227
54, c. 179, 8. 5, Settlement by rent-
ing tolls 639
55, c. 51, 8. 14, County Rate — Ap-
peal 695, 7S5
56, c. 139, Parish apprentices 94
57, c. 99, Clergy 180 59, c. 12, 8. 17, Parish lands 706
George IV.
1 & 2, c. 23, General inclosure 746
3, c. 29, 8. 4, Warrant of attorney,
444 — , c 46, 8. 2, Forfeited recogni- zances 305
4, c. 41, 8. 25, Certificate of ship's
registry 5
—, c. 94, 88. 131, 132, Distillers'
licences 115
5, c. 74, 8. 15, Weights and measures
439
6, c. 16, 8. 3, Act of bankruptcy 364 — t — 9 8* 18, Petitioning creditor's
debt 210
6, c. 16, 8. 34, Commitment of bank-
rupt 380
— , — -, 8. 50, Bankrupt — Mutual
Credits— Set-off 219
— , — , 8. 92, Evidence in suits by
assignees of bankrupts 210
— , — , 8. 126, Bankrupt's discharge
from arrest 352
— , c. 50, 8. 30, Costs of special jury,
62S
— , c. 57, Settlement by renting a
tenement 559
— ^, c. 81, s. 7, Distillers' licences,
114 — , c. 94, 8. 5, Pledge by factors 381 — , c. 125, s. 58, Ships— Pilots 361
7, c. 64, Esnminations before magis-
trates 57
— , , 8. 22, Costs of prosecutions,
167 7 & 8t c. 71, 8. 6, Removal of causes
452 9, c. 69, 8. 9, Poaching 79
mUiam IV.
1, c. 18, Settlement by renting a te-
nement 559
2, c. 45, 8. 20, Parliamentary Reform
730
5 & 6, c. 76, 88. 11 1, 1 12, Municipal
Corporations 755
Fictoria. 1, c. 26, 88. 3, 24, Wills 757
STOPPAGE IN TRANSITU.
After stoppage in transitu the ven- dee ceases to have an insurable interest. Clay v. Harrison, 17
SUBPOENA DUCES TECUM.
See Witness, 1.
SURETY.
See Principal and Surety.
TENANT AT WILL.
See Notice to quit, 3, 4— Settle- ment BT Estate, 3, 4. Where a preacher at an endowed
TRUSTEES.
VENDOR AND VENDEE. 797
meeting-house has such an inter- est in his office and its emoluments as will entitle him to a mandamus, if disturbed in the use of the pul- pit, he has not such a legal interest in the endowment as will entitle him to retain possession against the trustees of such endowment. Doe d. Evam v. Jones. 752
TOLLS.
See TOLL-THOROUOH.
A person renting the tolls, and re- siding in the toll-house, of a navi- gation, is within the prohibition in 54 Geo, d, c. 179, s. 5, and cannot thereby gain n settlement. Rex v. St. Andrew the Less, Cambridge,
639
TOLL-THOROUGH.
Liability to repair part of the streets of a town, IS not a sufficient con- sideration for toll-thorough ex- tending over the whole town. Brett V. Beales. 433
TRADING.
See Bankrupt, 5, 6 — Hawkbrs and Pedlars — Illegal Trade.
TRESPASS.
See Evidence, 7— Justices, 3 — Ship's Registry — Trover.
TROVER.
See Bankrupt, 7 — Certiorari, 1 — Evidence, 18.
Trover will not lie against a party with whom the certificate of regis- try of a ship is deposited as a se- curity for advances, upon a refusal to deliver up such certificate with- out payment. Bowen v. Fox, 4
TRUSTEES.
See Mandamus — Notice to quit, 3, 4 — Tenant at Will.
USURY.
See Amendment — Bankrupt, 7 — Limitation of Action, 2.
VENDOR AND VENDEE.
See Assumpsit — Pleading, 2.
1. After stoppage in transitu, the vendee ceases to have an insurable interest. Clay v, Harrison, 17
2. Plaintiffs, merchants at Liverpool, circulated catalogues of goods to be sold by auction, containing this condition : — " Payment on delivery of bills of parcels, by good bills on London, to the satisfaction of the sellers, not exceeding three months' date, to be made equal to cash in four months." L. and W,, brokers at Liverpool, sent a cata- logue to defendants, merchants in London, who directed L, and W. to buy certain lots, which they bought accordingly. Before the sale began the auctioneer stated that " payment by known buyers" was to be ** the usual credit of two and two months." Z. . and ^. , being known buyers, obtained the goods without giving bills, and forwarded them to defendants in London, with an invoice, stating that *' pay- ment" was to be ** equal four months cash," and drew on de- fendants for the amount by a bill at four months from the day of the sale, which defendants accepted and paid when due. Within two months afler the sale L, and W. failed, never having given plaintiffs bills for the price of the goods, whereupon plaintiffs sued defend- ants for the price: — Held, that plaintiffs could not recover, as they had by their own catalogue led defendants to believe that L, and W, had given them bills for the goods, and had thereby induced defendants to accept and pay the bill drawn on them by L, and fT, Horsfall v. Fauntleroy, 653
798
WARRANTY.
WITNESS-
WARRANT OF ATTORNEY.
A warrant of attorney, subject to a defeasance, which is not written upon the same paper or parchment, is valid between the parties, though it would be void against the as- signees of a bankrupt or of an in- solvent. Bennett v. Darnel, 444
WARRANT OF COMMITMENT.
See Commitment.
A warrant of commitment for re- examination for an unreasonable time, as for fourteen days, is wholly void. DamM v. Capper. 5S
WARRANTY.
*' I believe the mare to be sound, but I will not warrant her." The ven- dee may declare in assumpsit, as upon a warranty, that the mare is sound to the best of the vendor's knowledge. Wood v. Smith. 124
WEIGHTS AND MEASURES.
Whether, under 5 Ga).4, c. 74, s. 15, an agreement to sell seeds by the Winchester bushel, without ex- pressing the ratio or proportion which such Winchester bushel bears to the standard measure, is yold^qiuere, Watte v. Friend. 4S9
WILL. See Devise.
WITNESS.
See Evidence.
1. A broker, who has. possession of a policy, effected by him, and on which he has a lien, is compel- lable to produce it under a sub- poena duces tecum, on the part of the assured, on the trial of an ac- tion against the underwriters. Hunter v. Leathley. 522
2. And he is a competent witness, notwithstanding his lien, to prove all matters connected with the po- licy. Id, ibid.
END OF VOL. V.
C. Rowortb and Sons, Prinlert. Bell Yard, Temple Bar.