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Full text of "Harrison's Analytical digest of all the reported cases determined in the House of lords, the several courts of common law, in banc and nisi prius, and the Court of bankruptcy: from Michaelmas term, 1856, to Easter term 1843; including also the crown cases reserved, and a full selection of equity decisions: with the manuscript cases cited in the best modern treaties not elsewhere reported: to which is added a Supplement continuing work to the year 1846"

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ADDENDA 

TO TBS 

ANALYTICAL DIGEST 

OF 

ALL. THE REPORTED CASES 

DETERMINXD IN 

THE SEVERAL COURTS OF COMMON LAW, 

IN BANC AND AT NISI PRIUS ; 

AND 
AND ALSO 

THE CROWN CASES RESERVED, 

FROM 

MICH. TERM, 1834, TO EASTER TERM, 1836. 

TOOZTHXR WITH 

A FULL SELECTION OF EQUITY CASES, 

AND 

THE MANUSCRIPT CASES FROM THE BEST MODERN TREATISES NOT 

ELSEWHERE REPORTED. 

By S. B. HARRISON, Esq. 

OF THX XIDDLS TXMPLX, BARRISTXR AT LAW. 

First Americaa Edition. 

TO WHICH IS ABBEI) 

THE ANALYTICAL DIGEST OF ALL THE REPORTS OF CASES DECIDED IN THE 
COURTS OF COMMON LAW AND EQUITY, OF APPEAL AND NISI PRIUS, . 
AND IN THE ECCLESIASTICAL COURT FOR THE YEARS 

1837, 1838, AND 1839. 



By henry JEREMY, Esii. 

BARRISTXR AT LAW. 

CAREFULLY ARRANGED BY 
A MEMBER OF THE PHILADELPHIA BAR. 



PHILADELPHIA : 

T. & J. W. JOHNSON, LAW BOOKSELLERS, 

SUCCESSORS TO NICKLIN ^ JOHNSON, 

NO. 5, MINOR STREET. 

1842. 



LIBRARY OF THE 
LELAND STANFORD JR. UNIVERSIVt, 



Wood dt Rvpp, Printxrs, Springpikld, Mam. 



ADDENDA. 



The figures at Ute extremity of Ute line, refer to Uie page of Uie body of the Work where the Case* 

wovld have been placed. 



ACCIDENT. 

To trespass for unmooringr plaintiff's bar^, 
the defendant, haTing pleaded merely the general 
issae, cannot ^iye in evidence that he removed 
it from a situation of danger by the plaintiff's jiu- 
thoritj ; or that, beiner frozen to the barge'of a third 
person, which the defendant was authorized to 
remove, the one was inevitably linmoored -with 
the other, and that they w^re 'b1r6u^ht'to£rether 
to a place of safety. Millman r. Dolwell, 2 Cajn 
378 — Ellenborough. y^ 

In trespass for ranninff with a cart against 
plaintiff's chaise, the defendant cannot give in 
evidence, under not guilty, that the cart and the 
chaise were travelling on thfe high road in op- 
posite directions, and that the collision between 
them happened from the negligence of the plain- 
tiff, or from inevitable accident Knapp v. Sals- 
baiy, 2X:amp. 500— Ellenborough. 1 

If an injury be occasioned partly by the neg- 
ligence of the plaintiff, and partly by that of the 
defendant, the plaintiff cannot maintain any ac- 
tion. Williams V. HoUand, 6 C. & P. 23; 3 M. 
db. Scott, 540 ; 10 Bing. 1 12. 1 



ACCORD AND SATISFACTION. 

A declaration by an executrix stated, that, after 
the death of the testator, to wit, on the 1st of 
October, 1832, the defendant was indebted to the 
plaintiff, as executrix, in 11/., for goods sold and 
delivered by the testator in his life time to the de- 
fendant, and in consideration thereof, and that 
plaintiff, as executrix, had agreed with the de- 
fendant to accept a suit of clothes, to be made by 
him for J. R , the plaintiffs servant, in part dis- 
charge of the debt, (the plaintiff being mdebted 
to J. R. in a greater amount for wages, and J. ll. 
having agreed and being willing to receive the 
clothes in part payment), and had also agreed to 
ferbear and give the defendant a reasonable time 
for the payment of the remainder of the debt, 
the defendant undertook and promised the plain- 
tiff^ as executrix, to make and provide the said 
rait of clothes for J. R. within a reasonable time. 

Vol. IV. 1 




and to pay her the remainder of the debt after a 
reasonable time for such forbearance. The de- 
claration then averred, that, though a reasonable 
time had elapsed, &c., the defendant had not 
made or provided the clothes, or paid the residue 
of ib^ debt. ^lea, that the debt m consideration 
of wHich the said promise was made, did not, nor 
did any part thereof, agcrue to the testator within 
six year's next^ befose the conmencenent o£ the 
suit, and Uiat such promise was by words only. 
Ot . sDecial demurrer : — Held, that the agreement 
in Ine'declaration was only an agreement 
for an accord, and did not extinguish the original 
debt, which, therefore, was barred by tlie statute 
of limitations. Reeves t\ Ueame, 1 Mees. &> 
Wels. 323. 1 

The lapse of twenty years from the time of 
making a contract to be performed in future, is 
not of itself evidence of a new contract averred 
to have been performed, and pleaded as an accord 
and satisfaction of the original contract Sibooi 
V. Kirkman, 1 Mees. & Wels. 418. 1 

In an action of assumpsit, where the defendant 
pleaded accord and satisfaction, and the plaintiff 
replied, that the defendant did not pay the sum in 
satisfaction, nor did the plaintiff receive the said 
sum in satisfaction : — Held, upon demurrer, that 
the replication was not bad for multifariousness. 
Webb V. Weatherby, 1 Hodges, 39; 1 Scott, 
477. 3 

Where, in an action of debt, an agreement to 
acce]>t 5/. in full discharge of the debt was given 
in evidence upon the plea of never indebted, the 
plaintiff being allowed to take a verdict for nomi- 
nal damaiies, a new trial was refused. Wright v. 
Skinner, 4 Dowl. P. C. 741. 2 

A plea to an action on a bill of exchange for 
431. by an indorsee against the acceptor, that, 
afler the bill became due, the drawer gtve the 
plaintiff his promissory note for 442. in rail satis- 
faction, and that the plaintiff accepted it in satis- 
faction, is a good answer to the action ; and a re- 
plication that the note was not paid when due, is 
bad on demurrer. Sard v. Rhoaes, 4 Dowl. P. C 
743 3 1 Mees. & Wels. 153. 2 



3276 



[ACTION] 



ACTION. 

By and against wham.] — A foreign aovereign 
prinoe may sue in the court of Chancery here m 
nis political capacity; Spain (King) v. HuUett, 

1 CUrk & Fin. 333 ; 1 Dow & Clark, 169. 4 

But where he if defendant^ he ttands on the 
iame footing with ordinary suitors as to the ruleft 
and practice of the court ; and is bound, like 
them, to answer personally and upon oath. Id. 

He has no privilege of putting in an answer 
by his a^rent, or personally without oath or sig- 
nature. Id. 

Even to a cross bill, filed apiinst him by the 
defendant to his original bill. Id. 

Notwithstanding the provisions of the foreign 
enlistment act, 59 Geo. 3, c. 69, a British sub- ( 
ject, who, in the service of a foreign state ot 
peace with Great Britain, captures a i^ritish ves- 
sel which is lawfully condemned as prize for 
breaking blockade, is not liable to an action at 
the suit of the owner of the vessel. Dobree v. 
Napier, 2 Bing. N. B. 781. 4 

On Judgments.'] — A certificate for exe<;Ution 
during vacation, under 1 Will. 4, c. 7, s. 2, need 
not TO noticed in a declaration on a judgment 
signed in vacation. £ngleheart v. Eyre, 2 Nev. & 
Af. 849 ; 5 B. & Adol.%; 2 Oowl. P. C. 193. 6 

In a declaration npoli such a judgment, the 
judgment should be staled to be of the day on 
which it was actually obtained, and not alleged 
to be of the preceding term. Id. 

Where a judgment is obtained in vacation, the 
distringas being of the first day of the following 
term, ue recora should be so framed as to show 
that the verdict preceded the judgment. Id. 

But where on nul tiel record pleaded to debt 
on lecognizance of bail, the poetea shown to the 
court proved to be erroneous in this respect, leave 
was given to amend it, the defendants also having 
leave to plead de novo. Id. 

Semble, that the court would have allowed the 
error in the declaration to be amended without 
permitting the defendants to plead again. Id. 

It is no answer to an action of debt on a judg- 
ment, that the defendant had been taken under a 
writ of ca. sa. issued on the judgement, and de- 
tained in custody twenty days, if it appears that 
the defendant wss by a judge's order let out of 
custody on certain terms. BirComish or M'Cor- 
mick V. Melton, 3 Dowl. P. C. 215 ; 1 C. M. & 
R. 525 ; 5 Tyr. 147. 6 

IVhat dsstroys a Right of ./fctum.]— Whatever 
constitutes an answer to the demand for which 
an action is brought, as against the plaintiff on 
the record, is a bar to the action, although 
brought for the benefit of others who have no 
mode of enforcing their claim except by suing 
in the name of the plaintiff. Gibson v. Winter, 

2 Nev. & M. 737. 7 

Where a plaintiff has been nonpro^d in re- 
plevin, and ne afterwards brings trespass for the 
same cause, the court will set aside the proceed- 



ings in the second action on motion. Liversidge 
v. Goode, 2 Dowl. P. C. 141. 7 

A written agreement to secure the amount of 
a simple contract debt, by a mortgage on certain 
lands, which was to be paid with interest by cer- 
tain instalments, is no extinguishment or sus- 
pension of the right of action on the simple con- 
tract. Allies 9. Probyn, 2 C. M. &'K. 408; 4 
Dowl. P. C. 153; 1 Gale, 255. 7 

Assumpsit for goods sold, &c. — ^Plea, as to 
92. lbs. 9^., that, after the making of Uie pro- 
mise, and before the commencement of the suit, 
the defendant, at the plaintiff's request, drew, upon 
a piece of paper having a bill stamp upon it of 
Is. 6d.<, an instrument, purporting to be a bill of 
exchange, without a drawer's name thereto, 
whereby the defendant was required to pay to 
such peiton, or his order, who should place his 
name thereto as drawer, 30^, two months after 
date, as for value received ; which instrument the 
plaintiff requested the defendant, to accept towards 
payment and satisfafition of the said sum of 
91. 159. 9|<{., and for the plaintiff's accommoda- 
tion as to the rest ; and which the defendant ac- 
cepted accordingly, and delivered to the plaintiff, 
9jx6 thereby became liable to the plaintiff, or to 
such person who should place his name thereto 
as drawer, or his order, the sum of 292., viz. 
towards payment of Ihe sum of 92. 15s. 9id.y 
and for the plaintiS^s accommodation as to the 
rest ; and that the plaintiff accepted and received 
tUe bill in satisfaction of the sum of 9^. 15s. 9\d.f 
and which bill was not due at the commencement 
of the suit. Non assumpsit to the residue. — Re- 
plication, that the bill remained nnnegotiated in 
the hands of the plaintiff, without any drawer's 
name to it, and unpaid : — Held, on demurrer, 
that under the circumstances alleged in the plea, 
the plaintiff's right to sue for the original debt 
was suspended until the expiration of the two 
months, and of the period of the instrument's 
becoming due and bemg dishonored. Simon v. 
Lloyd, Stf C. M. & R. 187. 7 

Former Recovery. ]-^The rule of Hil. T. 4 Will. 
4, which requires the party who pleads a plea of 
judgment recovered, to set out its date, Ac. in 
the margin of the plea, does not apply to a plea 
of X judgment recovered against an executor. 
Power V. Izod, 1 Bing. N. R. 304 ; 1 Scott, 119. 9 

Another Suit dnending.] — If a defendant non- 
prosses a plaintiff in a particular action, he can- 
not afterwards pleaded its pendency in answer to 
an action for the same cause in another court. 
Pepper r. Whalley, 3 Dowl. P. C. 579. 10 

Abtiee of Action.] — A magistrate is not enti- 
tled to notice of action under 24 Geo. 2, c. 44, 
s. 1, for a trespas committed by him, where, 
from the circumstances* the yay think he was 
nol acting bona fide under an impression that 
what he aid was within the scope of his duty as 
a magistrate. James v, Saunders, 4 M. <& «$ott, 
316; 10 Bing. 429. 10 

A disturbance look place in C. upon the libe- 
ration of a prisoner. Defendant, a magistrate, 



[ACTION] 



2277 



seized pUintiff because he was going towards the 
prison. Plaintiff w<is not concerned in the dis- 
turbanoe, which was goin^ on out of sight of 
the place where he was seized b^ defendant :— 
Held, that defendudt was not entitled to notice 
of an action of tiespass brought against him by 
plaintiff f<nr the assault. Id. 

N<ytiee of action to oflSeer of Southwark Court 
of Requests. Cook v. Clark, 3 M. dt Scott, 371 ; 
10 Bing. 19 ; 2 Dowl. P. C. T3U, 12 



act. Notice is not neeessaiy in an action for work 
and labor. The direction only applies to actions 
of tort Fletcher v. Greenwood, 4 Dowl. P. C. 
166; 1 Gale, 34. 12 

If a person who has ill-treated a horse be ap- 
prehended by one who is neither the owner of 
the horse nor a peace officer, the person so appre- 
hending is not entitled to notice of action under 
the 19th sect, of the stat. 5 & 6 Will. 4, c. 59. 
Hopkins v. Cruwe, 7 C. &. P. 373 — Denman. 12 



I In a notice of action against a magistrate, an 
indorsement bv an attorney of the place of bis 
a tmnniTiiMr um town ot i... eeriAin commia. Office 10 an mdonwment of his " place of abode** 

within the meaning of the stat. Sti Geo. 2, c. 44. 



and improTing the town of L., certain commis 
aionen were appointed, and, by s. 11, were au- 
thorized to appomt, by writing, a treasurer and 
clerk, and also all such surveyors, scavengers, 
imken, &c. ftc, beadles, constables, watchmen, 
and other officers, deputies, or assistants, for the 
execution of the purposes of the act, as they 
should from time to time think proper. By s. 
77, the commissioners were also empowerea to 
appoint such a number of able-bodied men as 
they should think proper, to be employed as 
watchmen during the ni^ht time ; and it waa en- 
acted, that it should be lawful for such watch- 
men, and the^ were thereby required in their re- 
spective stations, to apprehend aod secure all 
malefactors, ike. &c., and all suspected persons 
who should be found wandering or misbehaving 
themselves during the hours of keeping watch. 
Bj s. 78, the watchmen were to be sworn in as 
ccmstables, and were to be invested with the like 
powers and authorities, dec. dec, as any constft* 
Ues were invested with or enjoyed by law. By 
9 163, it was enacted, that no action, suit, or in- 
ibrmaUon should be commenced against any per- 
son or persons for any thing done or to be done 
under or by virtue of that act, until one calendar 
month's notice thereof should have been first 
given in writing to the clerk of the commissioners 
of the cause of action, nor at any time whatsoever 
ailer sufficient satisfaction or tender of amends 
should have been made to the party aggrieved. 
The act contained the usual power of pleading 
the general issue, and giving the special matter 
in evidence, and the act was to be deemed a 
public act : — Held, first, that the section requir- 
ing notice to be given was not confined to acts 
d<me, or directed to be done, by the commis- , 
sioners, but applied to acts done by constables 
and watchmen ; secondly, that evidence of the 
defendants acting as constables and watchmen 
under the commissioners in the town, was prima 
&cie sufficient to entitle them to the protection 
of the above section, without proof of^ their ap- 
pointment ', and, thirdly, that where the watcn- 
men had reasonable ground of suspicion, that 
felony had been committed by the plaintiff, and 
wrat to the plaintiff's house to apprehend him 
lor tiich felony, but beat him, and used much 
BMte violence than was necessary for effiscting 
his apprehension, they were protected by the 
section requiring notice. Butler v. Ford, 1 C. & 
11.662; 3 Tyr. 677. 12 

A local act directed that the guardians, &c. of 
a parish should be sued in the name of their 
VMtry clerk, and recjuired notice to be given of 
any action for any thing done in pursuance of the 



Roberts V. Williams, 4 Dowl. P. C.483; 5Tyr. 
583; 1 Gale, 315. 

Semble, also, that the place of actual residence 
would be sufficient. Id. 13 



Parties.'] — ^Where it appears upon an instru- 
ment that a promise by two contractors is in- 
tended to be joint, it may be treated as such al- 
though the promise be in terms several only. 
Lee V. Nixon, 3 Nev. Ol M. 441 ; 1 Adol. ^k Ellis, 
201. 13 

Where A., as farmer and renter of certain 
tolls, and B. as his surety, severally promise, un- 
dertake and agree to and with the lessors, that 
A., his executors, d^., shall pay a certain yearly 
rent ; A. and B. cannot be sued jointly upon de- 
fault by A. to pay the rent Id. 

In an action for work and labor brought against 
A., B.J and C. jointly, A. suffered judgment to go 
by default, and B. and C. pleaded non assumpse- 
runt : — Held, that on this plea it was competent 
to B. and C. to avail themselves of the defence 
that too many defendants had been joined in the 
action and that if they succeeded on that plea 
the plaintiff must fail as to all the defendants, 
notwithstanding that A. had admitted the joint 
contract on the record. Eliot v. Morgan, 7 C. dt 
P.334~Coleridge. 14 

Form of JlcUon.'] — Assumpsit fi>r money lent. 
Pleas,non assumpsit and a bottomry feond accepted 
in satisfaction or the debt. Both issues having 
been found for the plaintiff, the court refused a 
new trial which was asked for, on the ground that 
a bond having been given, the implied promise to 
pay did not arise. Weston v. Foster, 2 Bing. N. 
R. 693. ,11 

Election of trespass or case for an injurv occa- 
sioned by carelessness. Williams v. Holland, 3 
M. & Scott, 540; 6 C. A; P. 23; 10 Bing. 112. 

17 

Election of case or trespass for ezoeseive dis- 
tress. Holland v. Bird, 3 M. At Soott, 363 ; 10 
Bing. 15. 18 

An action for unreasonable and excessive dis- 
tress for poor-rates, alleged and pretended to be 
due, is properly laid in case. Sturch v. Clarke, 
1 Nev. ik. M. 671. 18 

In such an action malice need not be proved. 
Id. 



2278 



[ACTION] 



Case will lid against a landlord who, baring 
distrained goods sufficient to pay his rent, aban- 
dons the distress, and afterwards makes a second 
distress for the same rent. Smith v. Goodwin, 
2 Nev. dt M. 114 ; 4 B. i& Adol.413. 18 

Semble, that trespass would also lie. Id. 

A declaration (in a plea of trespass on the 
case) stated, that the ciefendant, intending to 
injure the plaintifi in his good name, and to 
cause his dwelling-house to be searched for stolen 
goods, and to procure hhn to be imprisoned, 
went before a magistrate, and falsely, malici- 
ously, and without probable cause, charged that 
certain specified gooas of the defendant had been 
feloniously stolen, and that he suspected that 
the said goods were concealed in the plaintiff's 
dwelling-house ; and upon such charge, the de- 
fendant procured the magistrate to grant a war- 
rant auUiorizing a constable, with necessary as- 
sistance, to enter the plaintiff's house to search 
for the said goods ; and the defendant, with other 
persons, caused and procured the dwelling-house 
of the plaintiff to be searched and rumsffed for 
the said goods by such persons, and tlic door of 
such house and a pantiy there to be broken to 
pieces, and the plaintiff and his family to be dis- 
turbed in the possession, and his goods to be 
carried away. The general conclusion was, that, 
by means of the premises, the plaintiff was in- 
jured in bis good name and trade, put to expense, 
and hinderea in his business. A count in trover 
was added:— Held, on general demurrer, by 
Taunton and Patteson, Sj^ ^Littledale, J., dis- 
■entiente), that the acts m yiolence alleged to 
have been committed in the house appeared 
sufficiently by the declaration to have been acts 
done in pursuance of the warrant, and in con- 
sequence of the charge made by the defendant, 
and that they were stated as mere matter of ag- 
gravation; and, consequently, that the whole 
count containing this statement was in case. 
Hensworth v. Fowkes, 4 B. &. Adol. 449. 18 

Defendant having charged the plaintiff with 
felony, the plaintifTwas taken up for it under a 
justice's warrant. At the hearing before the 
justice, the plaintiff was discharged on his pro- 
mise to appear again in a week, upon which the 
defendant said he had another charge of forgery 
against him. The plaintiff was stopped b^ an 
officer, and again put to the bar, but dismissed 
on a similar promise : — Meld, that the plaintiff's 
remedy against the defendant was in case, and 
not in trespass. Barber v, Rollinson, 1 C. & M. 
330; 3Tyr.267. 18 

If A., having no right to apprehend B., direct 
a police officer to take B., and lie do so, B. may 
maintain an action for false imprisonment against 
A. ; but if A. merely make a statement to the 
officer, leaving it to him to act or not as he thinks 
proper, and the officer then take A., B.'s remedy 
against A. is (if any) by action on tlie case. 
Hopkins v, Crowe, 7 C. & P. 373— Denman. 18 

A., being in Uie custody of the marshal of the 
King's Bench prison, was brought up to that 
court upon an order of court, and charged with an 
attachment for contempt ; upon wlicih attachment 
be was afterwards ({etained in custody : — Held, 



that trespass was maintainable against the party 
who caused the order to be served on the marshal ; 
diss. Lord Abinger, C. B. Bryant &. Glutton, 1 
Mees. & Welshes. * 18 

If the light of the plaintiff's windows is ob- 
structed by the defendant building on a puty 
wall, half of which belongs to the plaintin and 
half to the defendant, the plaintiff may maintain 
either trespass or case. Wells v. Ody, 7 C. &> P. 
410— Parke. 19 

A., before he entered the police force, sent 
a certificate of his good character, signed by the 
colonel of the 8tii Hussars, to the commissioners 
of police. On his dismissal from that force, the 
certificate was returned to the plaintiff, inclosed 
in a letter signed by the defendant, the certificate 
being staibped with the words ^< dismissed the 
police service :" — Held, that for stamping these 
words trespass was not the proper form of action ; 
and also that this was not evidence to go to the 
jury that it was done by the defendant or by his 
order. Taylor r. Rowan, 7 C. & P. 70 — Abmger 

19 

Abatement by Death.] — At the Nisi Frius sit^ 
tings in the term, the practice is to make up tlie 
postea as of the day on which the cause is tried. 
The deatJi of Uie defendant after the first Nisi 
Prius day in the term, but before the day as of 
which the postea appears upon the record to be 
made up, abates the suit. Hallidav v. Saunder- 
son, 1 Alcock & Napier, 147, (Irish). 19 

Quaere whether in such a case, where the 
plaintiff had been in all respects ready for trial 
on the first Nisi Prius day, and a postponement 
is occasioned by the direction of tne court, the 
postea might not be made up as of that first day ? 

Where a consent is entered into and made a 
rule of court for a postponement of a trial upon 
payment of costs, tlie subsequent death of the 
party to whom the costs are payable does not 
abate the proceedings, so as to deprive his per- 
sonal representative of the usual remedies by ac- 
tion or attachment for enforcing tlie payment of 
tiie costs. Brownrigg v. Hamilton, 1 Alcock & 
Napier, 170, (Irish.) 19 

There must^first be an order for the payment 
of the costs, and a regular demand made on be- 
half of the pesonal representative, before an at- 
tachment can bo issued. Id. 

Where a defendant died in the course of the 
sittings in term, the court refused to allow the 
cause to be tried on the last day of term to which 
the sittings hnd been adjourned ; nor would they 
interfere, by appointing for the trial another 
day out of term, and entering the verdict as of 
the sittings in the term. Johnson v. Budge, 1 C. 
M. i&R. 647; 5 Tyr. 197; 3 Dowl. P. C. 207. 

19 

The court will not stay the postea in the hands 
of the associate, afler verdict for the plaintiff, on 
showing a strong probability that the plaintiff 
was dead before the trial ; such fiicts must be 
shown 05 would be evidence of the death before 



[ACTION— AFFIDAVIT] 



2279 



a jnry. Johnson v. Hamiltoo, 1 Mees. & Wels. 
149; 4 Dowl. P. C. 7()2; 1 Tyr. & G. 45. 19 

Where it waa to be inferred from circumstances 
that a ship in which tne plaintiiT had embarked 
was lost at aea before the assizes at which a ver- 
dict was recovered in his name, though it did not 
appear positively that tlie plaintiff had perished : 
the court granted a rule for continuing the postea 
in the hands of the associate, with stay of execu- 
tion. Id. 

Abatement by Marriage.'] — If the plaintiff in 
replevin takes husband afler nlaint, and before 
the removal of it by re. fa. lo., tne defendant may 
plead the fact in abatement, ttiough he himself 
sued out the re. fa. lo. tiollis v. Freer, 2 Bing. 
N. R. 719. 



AFFIDAVIT. 

C«wr«ffy.]— By the 5 & 6 Will. 4, c. 62, s. 13, 
justices ana other persons are prohibited from re- 
ceiving any affidavit touching any matter or thing 
whereof such justice orother person has not juris- 
diction or cognizance by some statute : provided 
that it is not to extend to affidavits whicn may be 
required by the laws of any foreign country to give 
validity to instruments in writing designed to be 
used in such foreign countries. 

Appearing to oppose a rule does not waive an 
objection to the form of an affidavit upon which 
the rule was obtained, such as the omission of 
the Christian name of one of the parties in the 
title of the canse. Clothier v. Ess, 4 M. &. Scott, 
216 ; 2 Dowl. P. C 731 : S. P. Barham «. Lee, 2 
Dowl. P. C. 779 ; 4 M. & Scott, 327. 2 

flov imiituM.'l — In intituling an affidavit, the 
parties should be described as ** plaintiff" and 
"defendant." Harris v. Griffiths, 4 Dowl. P. C. 
289; IHar. & WoI1.5I5. 22 

The Christian names of the parties in a cause 
most be written at length. Masters v. Carter, 4 
Dowl. P. C. 577. 22 

In intituling an affidavit of service of a rule 
to compute, tl^ Christian name of the plaintiff as 
Well as of the defendant must be introduced. 
Anderson e. Baker, 3 Dowl. P. C. 107. 22 

Affidavits most be intituled *'A. v B ," and 
not •< B. at suit of A." Richards v. Isaac, 2 Dowl. 
P.C.710; 1 C.M.4&R.136; 4 Tyr. ti63. 22 

An affidavit intituled '' G. S. v. W. C. the el- 
der," sued as «« W. C," the cause being " G. S. 
V. W. C," was rejected, as being badly mtituled. 
Shrimpton v. Carter, 3 Dowl. P. C. 648. 22 

**" Phillips, a«ignee, &c.," is an irregrular mode 
of describing a plaintiff. Phillips v. Hutchinson, 
3 Dowl. P. C. 20 ; S. P. Casley v. Smith, 4 Dowl. 
P. C. 477. 22 

The court declined to act upon an affidavit 
which was intitaled '* A. v. B., executor, &c., 
without specifying the party to whom the defen- 
dant was executor. Clarke v. Martin, 3 Dowl. 
P. C. 222. 22 



The addition of " widow" to the name of a 
party in the title of a cause is not necessary. 
Miller, dem., r. Miller, ten., Scott, 117. 22 

The court cannot entertain an objection patent 
on a proceeding attached to the affidavit bringing 
that objection before the court, if from wrong^ 
intituling the affidavit cannot be read. Harris v. 
Mathews, 4 Dowl P. C. 608. 25? 

Where a rule is obtained in two causes, the 
affidavits must be intituled in both of tliem, 
though the plaintiff and defendant be the same in 
botli. Corry r. Wharton, 2 Scott, 436. 22 

Where a defendant, being in custody under 
civil process out of an inferior court, is brought 
up by habeas corpus, and committed to the cub- 
tody of the marshal, affidavits filed in the Court 
of king's Bench to ground an application to be 
discharged out of custody, may be intituled in the 
cause. Ferrin ». West, 5 Nev. &, M. 2dl ; 1 Har. 
<& WoU. 401 ; 3 Adol. Ck, Ellis, 405. 22 

If thrrc is a defect in intituling affidavits pro- 
duced on showing cause against a rule, the court 
will allow the rule to be enlarged, in order that 
the title may be amended. Anderson v, £11, 3 
Dowl. P. C 73. 2sJ 

If upon an objection bein v taken to an affida- 
vit, that it is not intituled m any cause, and the 
party does intitule it, that is not such an altera- 
tion as would make a new stamp necessary. 
Prince v. Nicholson, 1 Marsh. 70; 5 Taunt. 333. 



Certainty!] — An affidavit with the word " said" 
instead of ** saith" is insufficient. Howorth v* 
Hubbersty, 3 Dowl. P. C. 455 ; 5 Tyr. 301 ; S. P. 
Harwood v. , 1 Gale, 47. 23- 

An affidavit in which the word ^'oath" waa 
omitted was held insufficient Oliver v. Price, 3 
Dowl. P. C. 2dl. 23 

An affidavit of service must swear to the ser- 
vice of the •* rule annexed," and not merely of 
the " rule in this cause." Fidlett v. Bolton, 4 
Dowl. P. C. 2cJ2. 23 



DeponenCs Kame and Addkum.'] — An affidavit 
made by a defendant in a cause cannot be read» 
unless his addition is inserted. LAWson v. Case, 
2 Dowl. P. C. 40 : 3 Tyr. 480 ; 1 C. & M. 481 . 

23 

Afterwards held, that where a defendant makes 
an affidavit in a cause, his addition need not be 
given. Jackson v. Chard, 2 Dowl. P. C. 469. 23 

A deponent complies sufficiently with Reg. 
Gen. H. T. 2 Will. 4, s. 5, by describing himself 
as ** late clerk to," i&c. Simpson v, Drommond, 
2 Dowl. P. C. 4r3. 8a 

The residence of an attorney's clerk need not 
be given in an affidavit made by him jointly with 
his master, in which the residence of the latter ia 
stated. Bottomlcy v. Bellchambcr, 4 Dowl. P. C. 
26 ; 1 Har. & WoU. 362. 23 

«' Of Kennington, in the county of Surrey," ia 



2280 



[AFFIDAVIT] 



not an insufficient description. Wilton v. Cham- 
bers, 1 Har. & Woll. 116. 23 

In an affidavit used in showing cause Against 
a rule, the deponent was describe as of ^^ Law- 
rence Poutney, in the city of London," without 
stating whetlier of parish, place, or lane : — Held 
sufficient. Miller, dem., v. Miller, ten., 2 Scott, 
li7. 23 




Dowl. P. 0.324; 2 Scott, 407; 2 Bing. N. R. 
246; 1 Hodges, 298. 23 

it is a sufficient compliance with the rule to 
describe himself as having been arrested, and to 
be a prisoner in the sheriff's custody. Jervis v. 
Jones, 4 Dowl. P. C. 610. 23 

The description of a person in an affidavit as 
an " assessor, is insufficient. Nathan v. Cohen, 
3 Dowl. P, C. 370 ; 1 Har. & Woll. 107. 23 

If an affidavit be joint, an objection to the des- 
cription of one of the deponents does not render 
the statements of the others inadmissible. Id. 23 

Where, in an affidavit to found a motion, the 
addition of a deponent is omitted, the court will 
not inquire whether the facts sworn to by a co- 
deponent are sufficient to support the application. 
Bex V. Carnarvon (Justices), 5 Nev. &, M% 364. 

23 

Affidavit of Merits.] — An affidavit of merits, 
that the defendant has a good and sufficient de- 
fence on the merits, without words applying it to 
the particular action, is insufficient. Tate v. Bod- 
fiel<^ 3 Dowl. P. C. 218. 23 

An affidavit, in support of a rule for setting 
aside a judcrment signed by tlie plaintiff for want 
of a plea, afieged that the defendants had merits, 
and a good cause of defiance to the action : — Held 
insufficient. Lane v, Isaacs, 3 Dowl. P. C. 63i2. 

23 

The affidavit must express that the defendant 
hatha good defence to the action on the merits 
thereoiT id. 

An affidavit of merits is not sufficient, which 
states that both the defendant and his attorney 
^'are advised and believe'* that there is a good 

defence on the merits. Worthington v. , 2 

C. M. &, R. 315. 23 

Semble, that an affidavit of merits made by the 
defendant's attorney as to his belief from instruc- 
tions received, is insufficient when the defendant 
himself might make the affidavit. Brown v. 
Austin, 4 Dowl. P. C. 161. 23 

An affidavit to set aside a regular judgment, 
made by the London agent to the country attor- 
ney, and stating that the deponent believed, firom 
the instructions received from the country attor- 
ney, that the defendant had a good defence to the 
action on the merits : — Held sufficient. Schofield 
V. Huggins, 3 Dowl. P. C. 427. 23 

Where a motion is made by a defendant to set 
aside prtir^edingv on an a^dav«t of merits, and 



payment of costs, the plaintiff is not entitled to 

§o into a long statement in his affidavit to show 
lat the defendant has no merits, and, if he does, 
the court will order the master not to allow costs. 
Heane v. Battersby, 3 Dowl. P. C. 213. 23 

Where a defendant moves to set aside pro- 
ceedings on tlie ground onrregularity, — as for not* 
giving notice of the execution of a writ of in- 
quiry, — it is not necessary to swear to merits. 
Williamd v. WiUiams, 2 C. A^ M. 473. 23 

Libdlous iWirffsr.]— Where libellous and im- 
pertinent matter was introduced into an affidavit 
in support of a rule, the court deprived the party 
of the costs of the rule, to which otherwise he 
would have been entitled. Thompson v, Dicas, 
2 Dowl. P. C. 93. -24 

Before whom and where Sworn."] — The chief 
justice's clerk's list of commissioners is conclu- 
sive evidence as to whether a narticular person 
is a commissioner of the English Court of Com- 
mon Pleas, pursuant to the 3 A 4 Will. 4, c. 42, 
s. 42, for taking affidavits. Sharp r. Johnson, 2 
Bing. N. R. 246 ; 2 Scott, 407 ; 4 Dowl. P. C. 
324 ; 1 Hodges, 2dB. 24 

If an affidavit in a cause in an English court 
be sworn in Ireland before one who is not a com- 
missioner of the English courts, the signature of 
such person njust be verified. Id. 

Qumre, whether, since ZA4 Will. 4, c 42, s. 
42, affidavits made in Ireland are not required to 
be sworn before a commissioner who is appointed 
by the English judges under that statute ? Id. 

Affidavits on showing cause are in time if 
sworn at any time before cause is shown. Braine 
V. Hunt, 2 Dowl. P. C. 391. 24 

Affidavits mav be used in showing cause, 
though sworn after the time named for showing 
cause in the rule. Hicks v, Marreco, 3 Tyr. 216. 

24 

it is no objection to an affidavit, that it is 
sworn before the attorney in the cause, unless it 
expressly appears that he was the attorney at the 
time the affadavit was sworn. Beaumont v. Dean, 
4 Dowl. P. C. 354. 24 

Upon a reference to an arbitrator, '* the costs 
were to abide the event, and he was to say by 
whom and when to be naid :" he awarded a sum 
to the plaintiff, and diviaed the costs between him 
and the defendant. The plaintiff,, treating tlie 
award as void, threatening to issue execution for 
the debt and costs, upon wnich the defendant pre- 
pared affidavits of the facts, (before judgment was 
signed), and afler it was signed, another affidavit 
of that fact, and moved upon all the affidavits to 
set aside the judgment: — Held, that the first 
affidavits were good, though sworn before judg- 
ment was signed. Read v. Massie, 4 Dowl. r. C. 
681. 24 

Jurat.} — ^Where the names of the deponents 
are omitted in the jurat through the inadvertence 
of the judge's clerx, it will he amended by the 
direction of the judge. Ex parte Smith, 2 i)owl. 
P. C. 607. 25 



[AFFIDAVIT— AGENT AND PRINCIPAL] 



22SI 



If the words " before me," in the jurat of an 
affidavit, arc struck out, and the words '* by the 
court" introduced, it is not an objection. Austin 
V, Grange, 4 Dowl. P. C. 576. 25 

The court set aside a judjcre's order for better 
particulars of set off, on the ground that the 
plaintiff *s attorney's clerk had, without authority, 
altered the date of the jurat of the affidavit on 
which the ordor had been obtained. Finnorty v. 
Smith, 1 Bing. N. R 649; 1 Scott, 743 ; 1 Hod- 
ges, 158. 25 

The alteration of a figure in the Hate in the 
jurat of an affidavit, by writing one figure over 
anotlter, dees not constitute an erasure or inter- 
lineation within the meaning of the rule. Jacob 
». Hunyate, 3 Dowl. P. C. 4.>6. 25 

A line drawn through two lines in the jurat of 
an affidavit, leaving them, however, perfectly 
lej^ible, is an erasure within the rule of court, 
Mich, term, 37 Geo. 3, and vitiates the affidavit, 
thoufrh the omission or retention of the words 
would not vary the sense. Williams v. Clouffh, 
1 Adol. & Ellis, 376. 25 

An affidavit signed by the deponent in some 
foreign character, which was illegihle, may be 
read in court. Nathan r. Cohen, 3 Dowl. P. C. 
378; 1 Har. & WoU. J 07. 25 

If an illiterate person is sworn in court, or be- 
fore a commissioner, the fact of the affidavit be- 
ing read over to him, and his anderstanding it, 
must be stited in the jurat. Hayncs v. Powell, 3 
Dowl. P. C. 599. :i5 

An affidavit of a marksman, which expresses in 
the jurat that A. B. had bten first sworn to the 
lact that lie had read over and explained the affi- 
davit to the marksman, and that he understood it, 
isinsafficicnt ; the officer himself ought to explain 
it Rex V Anthoay, 4 Dowl. P. C. 765. 25 



HowJUetL'] — All affidavits usrd in court must 
be filed. Ex parte Elderton, 2 Dowl. P. C. 560. 

25 

Affidavits used to ground a molion ought al- 
ww to be filed, whether the motion is grant'-d or 
refused. Kx parte Dicas, 2 Dowl. P. C. 92. it5 

Affidavits to show cause against an enlarged 
rule must be filed a week before the term to 
which it is enlarged. GiImou r. Carr, 4 Dowl. P. 
C. 618. 25 

Where a rule was enlarged to a subsequent 
term, on the usual terms of filing the affidavits a 
week before the term, the court refused to hear 
affidavits filed aflerwards. Turner v, Unwin, ] 
Har. & VVoIl. 186. 25 

Affidavits will not be taken off the file. Plant 
r. Batterworth, 5 Tyr. 183. 25 

Haw nscd.'] — Affidavits sworn in opposition to 
one rule, on which the allegations in them may 
be imniatertal, cannot be used without re-swear- 
ing, in opposition to another rule, on which they 
may become material, although the same ques- 
tion might be intended to be rai/ied on the first 
role, which was a«;tually raised on the second. 



Quelly r. Boucher, 3 Dowl. P. C. 107; 1 Scott, 
283. 26 

An affidavit is not considered stale till it is a 
year old. Ramsden v. Maugham, 4 Dowl. P. C. 
403; 2C. M. & R. 634; 1 Tyr. & G. 40. 26 

Where a rule has been obtained on an affidavit 
which is defective, in not having a proper jurat, 
tho party moving cannot, when cause is shown, 
and the objection taken^ remove the effect of 
•t, by producinfT a fresh affidavit similar to the 
first, with a proper jurat ; the proper way is to 
reswear the original affidavit, and the court will 
enlarge the rule for that purpose, or allow the 
new affidavit to be filed. Goodricke v. Turlcy, 
4 Dowl. P. C. 302; 2 C. M. & R. 636; 1 Tvr.& 
G. 146. • 26 



AGENT AND PRINCIPAL. 

A stock broker is a broker within 6 Anne, c. 16, 
and must be admitted by the lord mayor and al- 
dermen. Clark r. Powell, 1 Nev. & M. 4;2: 4 

B. i& Adol 846. 27 

The plaintiff, tlie elder brother and creditor of 
an intestate, being in possession of the goods of 
the intestate under a bill of sale, said that he 
should not insist on his bill of sale, but that he 
should divide the goods with the other creditors, 
and he employed the defendant as auctioneer to 
sell the goods. Af\er the sale by the defendant, 
the widow of the deceased gave the defendant 
notice, through her attorney, not to pay the 
plaintiff, but to retain the money until all the 
creditors came in, that it might be divided rate- 
ably amongst them. No letters of administra- 
tion were taken out : — Held, that the defendant 
was prima facie bound to account to the plaintiff 
from whom ne had received the goods ; and even 
if he would have been at liberty to set up the 
jus tertii, and show as a defence against the 
plaintiff that he was bound to account to a third 
person, still that he was liable, no title being 
shown by him in any third person. Crosskev v. 
Mills, 1 C. M. & R. 298. "^28 

The defendant, an auctioneer, was employed 
by the plaintiff to sell some furniture, and was 
desired to sell it for readv money only. The 
defendant, however, sold the furniture to one M. 
on his giving a bill of exchange for the amount, 
drawn by himself, upon, and accepted by one D. 
The plaintiff aflerwards applied for payment of 
the amount of the sale, and the bill, though at 
first refused to be taken by the plaintiff, was ul- 
timately taken by an agent of the plaintiff, in 
order to get it discounted. The bill never was 
presented, nor was any notice of dishonor given 
either to M. or the defendant, until ten days 
afler the bill had become due. In an action 
brought against the defendant for neglioence, in 
selling the furniture otherwise than for ready 
money, the jury having found that the plaintiff 
had not accepted the bill in satisfaction for the 
furniture :— Held, that the negligence of the 
plaiutiff in not presenting the oill, and not 
giving notice of dishonor, by which M. was dis- 
charged from any liability on the bill, was no an- 
swer to the action. Ferrars (Earl) r. Robiiii, 2 

C. M & R. 152 ; I Gale, 70. 28 



2282 



[AGENT AND PRINCIPAL] 



Semble, that if, b^ the negli^ncc of the plain- 
tiff, any of the parties to tlie bill were discharged, 
the defendant might maintain a cross action 
against the plaintiff to recover such damaores as 
he could prove he had sustained thereby. Id. 

A land agent or steward is not incapacitated to 

Eurchase from his employer ; and the sale, though 
sneficial to the purchaser, will not be set aside 
in equity, if there was no imposition on the part 
of the agent, and no concealment of information 
as to the value. Andrews v. Mowbray, 1 Wils. 
Exch. 71. 29 

The right of a factor, under 6 Geo. 4, c. 94, 
8. 5, to pledge the goods of his principal, depends 
upon the question whether, upon the face of the 
whole account between them, the principal is in- 
•debted to the factor. Robertson v. Kensington, 5 
M. & R. 381. 30 

I A factor, by desire of his principal, kept sepa- 
rate accounts of sales, in some of which the prin- 
-cipal was solely, and in others l)ut partly inter- 
ested ; but he regularly posted all the items of 
both those accounts into one general account. 
The factor pledged goods consigned to him on 
the joint account, for the purpose of meeting a 
draft drawn on him by his principal to meet that 
nccount. At the time of the pledge, the factor, 
upon the general account, was indebted to his 
principal in a larger sum than tlie 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 indebt- 
<ed to the factor : — Held, that the factor had no 
right to pledge, and that the pledgee could not 
retain the go^s against tlie prmcij^l. Id. 

Where, in such a case, the principal for some 
time after 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 show that the effect of such forbearance had 
been to alter the situation of the pledgee for the 
Tvorse, or that of the principal for the hetter, the 
right of the principal against the pledgee remained 
entire. Id. 

Quiere, whether a factor who sells goods on 
•credit without disclosing his principal, has au- 
thority to receive payment from the vendee be- 
fore the period or credit has e]api*ed, so as to 
make such a payment without tlie knowledge of 
the principal binding on him. Hcisch v. Carring- 
ton, 1 Har. <& WoU. 306. 

Semble, that there is a custom to that effect in 
the London com market. Id. 32 

A bill broker, who receives a bill from a cus- 
tomer merely for the purpose of procuring it to 
be discounted, has no right to mix it with bills of 
t>ther customers, and to pledge the whole mass 
tw a security for an advance of monies to himself; 
still loss has he a right to deposite bills which are 
received merely for the purpose of discount as a 
security or part security for money previously 
■due from him. Hayncs v. Foster, 2 C. & M. 237 ; 
4 Tyr. 65. 34 

If the pledgee of bills under such circum- 
stances receive them from the bill broker, with 



knowledge or reasonable ground of suspicion, he 
cannot hold tlicm as against the customer. Id. 

W. and P , brokers in London, had in their 
possession bills of different customers to the 
amount of nearl)r 3000/., which had been left 
with them to raise money upon them. They 
mixed these bills with others of their own to 
about the same amount, and deposited the wholo 
with F., who was a merchant and capitalist, for 
an advance of 3000/., tlien made, and for a pre- 
ceding advance made a few days before on a 
promise to bring bills. Evidence was given that 
it was usual and customary for bill orokers in 
London to raise money by a deposit of Uieir cus- 
tomer's bills in a mass, and that the bill broker 
alone was looked to b^' the customer who gave 
the bill broker dominion over his bill. In an 
action brought by F. on one of the bills against 
one of the customers who was a party to the bill, 
the judge left it to the jury to say whether F., 
the plaintiff, took the bills from W. and P., the 
bill brokers witli due care and caution, and in 
the ordinary course of business ; and the jury 
being of opinion that he had so taken the bills, 
found a verdict for the plaintiff: — Held, that tlic 
defendant, the customer, could not complain of 
such summing up, and that the court would not 
disturb the verdict. Foster v. Pearson, 1 C. M. 
&R, 849; 5 Tyr. 255. 34 

In another action arising out of the same 
transaction, and which was an action of trover 
brougiit by one of the customers (who was him- 
self also a bill broker) against F. to recover the 
value of some of tlie bills, tlie judge directed the 
jury that the principle laid down in Haynes 
V. Foster, (supra), that a bill broker who re- 
ceives a bill from a customer to procure it to 
be discounted, had no right to mix it with bills 
of other customers, and to pledge the whole mass 
as a security for an advance of money to himself, 
and that still less had he a right to deposit such 
bills as a security or part security for money 
previously due from him, was to be taken by 
them as the general law ; but that notwithstandf- 
ing such general rule of law, the parties might 
contract as they thought proper ; and he Icfl it to 
the jury to say whether the usage set up by the 
defendant as to the , course of dealing in such 
cases, was established to their satisfaction, and tf 
so, whether they thought that the plaintiff, who 
was a bill broker himself, had contracted with 
reference to that usage ; and the jury having 
found for the d<^fendant, the court refused to 
disturb their verdict. Id. 

A bill broker is not a person known to the 
law with certain duties, but his employment ia 
one which depends entirely upon ttie course of 
dealing ; his duties may vary in different parts of 
the country, and their extent is a question of 
fact to be determined by the usage and course of 
dealing in the particular place. Id. 

A person having a bill to take up, applied to 
a friend for assistance, who, not having cash, 
drew and indorsed a bill, and gave it him to 
get discounted, tliat he might be able to lend 
him the money. The person so intrusted also 
indorsed tlie bill, and left it with a bill broker 



[AGENT AND PRINCIPAL— AMENDMENT] 



2SBa 



for diflcoant. The bill broker, being indebted to 
a widow who carried on businesB as coal mer- 
ch^t, took the bill to her counting house, and 
indorsed it, and there gave it to her son, who 
managed the business for her, and who entered 
it in the cash book !ui so much received on ac- 
count. There w^as contradictory evidence as to 
the son's knowledge, at the time he received the 
bill, of the circumstances under which it had 
been obtained ; but he, on being informed of 
them afterwards, refused to give the bill to the 
drawer, who brought an action of trover against 
him for jL The jury found that the bill was not 
taken bona fide and without notice of the cir- 
cumstances ; and it was held, that the action was 
maintainable asrainst tlie son, and need not be 
brought against the mother. Cranch v. White, 
6 C. & P. 767—Tindal. 34 

A power of attorney is revocable, and, in or- 
dinary cases, would not found the jurisdiction for 
delivering up instruments ; but, when executed 
for valuable consideration, the court would not 
permit it to be revoked. Bromley v. Holland, 7 
Ves. Jan. 28. 35 

A power of attorney to a creditor to receive a 
debt, not accompany mg any assignment of it, 
nor making part of any security given, but with 
declarations that it was to enable the creditor to 
apply the money to his debt, is not an appropri- 
ation, and therefore fails by the death of the 
debtor. Lepard v. Vernon, 2 Ves. <SiL B. 51. 35 

Victualling bills are not assignable; but, by 
usage, a power of attorney given to the attorney, 
his substitutes and assigns, to receive the money, 
authorizes the attorney to assign. Such a power 
is called a general power, in contradistinction to 
a special power, which authorizes the attorney 
only to receive. Tomk'm v. Fuller, 3 Dougl. 300. 

35 

Semble, that a power of attorney to transact 
any business in the c«>urtB of law, authorizes the 
attorney to apply for a supersedeas. £z parte 
Crowther, 4 Deac. & Chit 31. 35 

A power of attorney giving the a^nt full 
powers as to the management of certam speci- 
fied real property, with general words extending 
those powers to all the property of the principal 
of everr description, and, in conclusion, autW 
rising the agent to do all lawful acts concerning 
all the principars business and afiiairs of what 
nature or kind soever, d#es not authorize the 
a^ent to indorse bills of exchange in the name 
or his principal. Esdaile v. La Nauze, 1 Y. &. 
Col. 394. 35 

A., B., and others, were owners of a ship in 
the service of the £a8t India Company. B. was 
managing owner, and employed 0. as his agent 
lor general purposes, and, amongst others, to re- 
ceive and pay monies on account of the ship ; 
and C. kept a separate account in his books with 
B,, as such managing owner. To obtain pay- 
ment of a Aum of money due Ifrom tlie East In- 
dia Company on account uf the sJiip, it was ne- 
cessary that a receipt should be signed by one 
or more of tlie owners, besides the managing 
owner; and upon a receipt signed by B. and one 

Vol. IV. 2 



I of the other owners, C. received on account of 
the ship 2000Z. from the East India Company, 
and placed it to B.'s credit in his books, as ma- 
naging owner. The part-owners having brought 
an action for money had and received, to recover 
the balance of that account : — Held, that C. had 
received the money as the agent of B., and was 
accountable to him for it; that there was no pri« 
vity between tlie other part-owners and C, and 
consequently that the action was not maintain- 
able. Sims V. Brittain. 2 Nev. & Man. 594 ; 4 
B. & Adol. 375. 44 



ALE. 

The statute 11 Geo. 4 & 1 Will. 4, c. 64, for 
permitting the general sale of beer by retail in 
England, does not supersede the custom of a 
borough, that no person shall carry on the trade 
of an alehouse-keeper therein who is not a bur- 

fess. Leicester (Mayor) v. Burgess, 2 Nev. &> 
fan. 131 ; 5 B. <& Adof. 246. 45 

The carrying on by A. of the business of re- 
tailing beer in a public-house in the name and 
by the agency of B., tlie person licensed by the 
magistrates, is not a fraud on the licensing sys- 
tem. Brooker v. Wood, 3 Nov. & M. 96; 5 B. 
«&Adol. 1052. 45 

A sale to A., therefore, for the purposes of such 
trade, is valid. Id. 



AMENDMENT. 

Writs and Returns.^ — Amendment of copy of 
writ. By field v. Street, 3 M. & Scott, 407; 10 
Bing. 227. 47 

The court will not amend a defective writ of 
capias. Hodgkinson v. Uodgkinson, 3 Nev. Sl M . 
564. 47 

A writ and other proceedings against the inha- 
bitants of the " hundred o^S. were amended by 
inserting *^ borough'* instead, where the time 
for commencing a fresh action against them for 
felonious injury to property by rioters under 7 & 
8 €reo. 4, c. 3, nad expired. Horton v. Stamford, 
2 Dowl. P. C. 96 ; 3 Ty r. 869. 47 

In future, no amendment of a writ of sum- 
mons will be allowed except to avoid the opera- 
tion of the statute of limitations. Lakin v. 
Watson or Massic, 2 Dowl. P. C. 633 ; 2 C. &. 
M. 685 ; 4 Tyr. b39. 47 

In an action of debt on bond and for money 
paid, tlic court refused to amend the writ of sum- 
mons, which had been sued out on promises 
instead of in debt, in order to save the statute of 
limitations ; inasmuch as the remedy on the 
bond would remain, notwithstanding the expirar 
tion of tlie six years. Partridge v. Wallbank, 1 
Mecs. Sl Wcls. 316. 47 

The court will not amend a writ of capias in 
the direction. Culblon r. Borons, 3 Dowl. P. C. 
2o3. 47 

Nor by the substitution of one form of action 
for another. Mills r. Gos:ctt, I Scolt, 313. 47 



3»64 



[AMENDMENT] 



A phuntiff cannot alter his writ after senrice ; ( 
and a notice not to appear to the copy of the writ 
first served will not care the defect. Glenns v. 
WiUu, 4 Dowl. P. C. 322. 47 

Where the snm mentioned in a ca. sa. varies 
from that in the judgment, but the party has 
sustained no damage from the error, the court 
will anipod the writ. M*Cormack v. Melton, 6 
Nev. ^b M. 881 ; 1 Adol. & Ellis, 331 : S. P. 
Amell v. Weatherby, 3 Dowl. P. C. 464 ; 1 C. M. 
A R. 831. 48 

The court tefused to allow an amendment of a 
writ of ca. sa. to the prejudice of the bail ; but 
granted it on payment of all costs, and giving 
the bail time to render the defendant. Bradley 
V. BaiUie, I Scott, 78. 48 

The plaintiff's attorneys having ceased to act 
lor him, and become attorneys for the defendant, 
fraudulently procured the sheriff to return on a 
fi. fa. a sum larger than that actually levied and 
accounted for to the plaintiff. The court (at the 
expense of the attorneys) ordered the return to 
be amended according to the fact. Green r. 
Glassbroke, 2 Scott, &1 ; 2 Bing. N. R. 143; 1 
Hodges, 193. 48 

A writ of sci. ik. may be amended in points of 
form, assigned as special causes of cfemurrer 
thereto, where the application to amend is made 
before ar^ment of the demurrer ; but the amend- 
ment wiU only be granted on the terms of pay- 
ment of costs of the demurrer and the motion to 
amend. Mackey v. Given, I Alcock & Napier, 
31C, {Iritk). 49 



Dedaratiant and PUadings ] — After a lapse of 
seven terms, the court refused to permit an 
aroemlment by altering a count in trover for title 
deeds into a count in detinue, adding a count in 
debt. Green v. Mitton, 1 Nev. &, M. 673 ; 4 B. 
A; Adol. 369. 50 

Where plaintiff had been misled by defendant 
as to the nature of a charter-party, the court per- 
mitted plaintiff to amend by striking oat a count 
in covenant on the chartep>party, and declaring 
for freight, not upon the charter-party ; and this 
afier many years had elapsed since the com- 
mencement of the action, the defendant having 
been the cause of the delay. Aylwin v. Todd, 1 
Bing. N. R. 170. 50 

In an action against the sheriff for taking in- 
sufficient pledges in a replevin bond, the court al- 
lowed the declaration, which was in the common 
form, to be amended, (upon payment of costs), by 
alleging, instead of a recovery in tlie original 
action, a reference by the consent of the sureties 
and tlie defendant, and tlie result of Uiat refer- 
ence ; and also by adding a new count. Dale v. 
Gordon, 3 M & Scott, 539. . 51 



Where a plaintiff amends his declaration, with 
liberty to the defendant to plead do novo ; if 
the defendant do not plead de novo, tlic former 
plea will stand, if it be applicabl«' to the amended 
declaration. Faw r. Borslev, 1 (', «fc M. 770 ; i* 
Dowl PC 107 ; 3 Ty r. 9(»5: 50 1 6 C. & P 60«- Parke 



The court refused to allow the Christain name 
of a plaintiff to be amended after issue joined. 
Moody V. Aslatt, 3 Dowl P. C. 486. 50 

In debt on a recognizance of bail, the declara- 
tion stated the recognizance to have been entered 
into an action of debt against J. 8. On the pro- 
duction of the record, {on a plea of nul tie! re- 
cord), it appeared that tne original action was on 
promises. The court allowed the declaration to 
be amended on payment of costs, but required a 
special application for that purpose, and would 
not permit it to be made to prevent the defen- 
dant from obtaining judgment. Munkenbeck r. 
Bushnell, 4 Dowl. P. C. 139. 50 

Quere, whether an inferior court of record 
can, after verdict, amend tlie pleadings. Salter 
V. Slade, 3 Nev. & M. 717. 51 

Whether any court can do so^ qnane ? Id. 

The court will not allow a plaintiff in a penal 
action to amend his declaration after demurrer, 
where the amendment would not tend to the 
furtherance of justice. Matthews v. Smith, I 
Hodges, 175. 5i 

A defendant against whom judgment on de- 
murrer was given, having obtain^ further evi- 
dence, obtained leave from a judge at chambers 
to make a material amendment in one of the 
pleas : — Held, tliat the proceeding was irregular, 
but under the circumstances the coart refused to 
set aside the order. Atkinson v. Baynton, 1 Scott, 
424 ; 1 Bing. N R. 740 ; 1 Hodges, 144. 51 

Under particular circumstances, the court will, 
even after argument on a rule for entering a 
nonsuit, and afler judgment pronounced, grant 
leave to amend the declaration on payment of 
costs. Lay thorp r. Bryant, 1 Scott, 338. 51 

A plaintiff cannot object to an amendment of 
the aeiendant*s pleas, on the ground of a wit^ 
ness, who has gone abroad, having been exa- 
mined with respect to the issue then joined, if 
the plaintiff has had notice of the proposed 
amendment before the examination took place. 
Hollingsworth r. Briggs, 4 Dowl. P. C. 643. 51 



At J^fisi Prius.'] — In general, the iudge at Nisi 
Prius will amend any variance which does not go 
at all to affect tlie matter really in dispute be- 
tween the parties, and which was not likely to 
mislead the opposite party. Therefore, where & 
general warranty of the soundness of a horse was 
declared on, and a warranty *■*• except in one foot*' 
was proved, the judge allowed the declaration to 
be amended, the reiu dispute between the parties 
being whether the horse was a roarer. Hemming 
V. Parry, 6 C. & P. 580— Alderson. & 

If a corporation aggregate sue for use and 
occupation of ^* standings, market-places, and 
sheds,*' and it appear that tliey allowed the de- 
fendant to take tolls from others who occupied 
sheds and 'standings, the jud^ at tlie trial will 
allow the word " tolls" to be mserted in the de- 



claration, tlic defendant paying the costs of the 
amendment. Carmartlicn (Mayor, &c.) c. Lewis, 

53 



[AMENDMENT] 



2285 



In trespass, fctr hreaking the plalntifT's close, | 
called Clover Hill, the defendants pleaded not 
Eoilty, and that the close was not the plaintiff's. 
The real name of the close appeared to be Clover 
Moor. The judge ordered the record to be 
amended by inserting the word Moor instead of 
HilL Howell V. Thomas, 7 C. & F. 342— Cole- 
ridge. 53 

In trespass, for taking *' mirrors and hand- 
kerchiefs,'' tlie defendant justified the taking of 
the mirrors ; but, by mistake, omitted to justify 
the taking of the handkerchiefs : — Held, tliat this 
omtssioB could not be amended on tlie trial. 
John V. Currie, b C. «& P. 618— Parke. 53 

Where no matter in print or writing is pro- 
duced in evidence, a judge at Nisi Prius has no 
power under 9 €reo. 4,c. 15, (see now 3 & 4 Will. 
4, c. 422, B. 23), to amend the record from the 
oral testimony of witnesses called to speak to the 
contents of a written document which had been 
destroyed, and which contents appeared to be 
materially difierrnt from the statement of the 
document on the record. Brooks v. Rlanshu'd, 
1 C.&M. 779; 3Tyr. 844. 53 

Quaere if a copy had been produced- in such 
case, as second^iir evidence, whether the judge 
could have amended from such copy .'Id. 

If, on the trial of an ejectment, it appear that 
the parish is mis-stated m the declaration, the 
jnd^ will allow it to be amended, under the stat. 

3 A 4 Will. 4, c. 42, although the ejectment be 
for a forfeiture. Doe d. Marriott v. Edwards, 
6 C. d& P.20ti; 1 M. & Rob. 319— J. Parke. 53 

Amendments, under the stat 3^4 Will. 4, 
c. 42, s. 23, will not be refused on the ground of 
the harshness of the action. Id. 

Where, in debt on bond, there was a variance 
between the penalty of the bond produced in evi- 
dence, and the penalty in the bond stated in the 
dedaration, the latter being 260/., and the former 
bein^ 20(U. :— Held, that it was witliin the 3 «& 

4 WiU. 4, c. 42, s. 23, and might be amended. 
HUl V. Salt, 2 C. & M. 420 ; 4 Tyr. 271. 53 

SemUe, that the 3 &. 4 WiU. 4, c. 42, s. 23, 
applies to cases tried before the sheriff. Id. 



Amendment of allegation of bill. Parkes r. 
£dge, 1 G. dk M. 429; 3 Tyr. 364. 53 

Amendment of allegation of contract. Lamey v. 
Biabop, 4B.A, Adol. 479 ; 1 Nev. & M. 332. 53 

Where a contract, by which A. guaranteed to 
B. the amount of a debt, to be contracted with 
B. by C, was described in pleading as a promise 
to pay the debt to be so contracted, the court 
sanctioned an amendment ordered at Nisi Pnus, 
by substituting ** guarantie" for ** pay."' Hanbury 
V. EOa, 3 Nev. & M. 438 ; 1 Adol. & Ellis, 60. ^ 

Where the declaration in ejectment was in a 
supposed joint demise by A. and B., and it ap- 
peared in evidence that A. and B. had not such 
an interest that they could join in a demise to 
tbe nominal plaintiff: — Taunton, J., at Nisi Prius, 
refused to amend the declaration under the 3 & 
4 WilL 4, c. 42, s. 25, by severing the demises. 
Doe d. Poole v. Errington, 3 Nev. f& M. G4G ; 1 
Adol. dk Ellis, 750 ; l M. dSt Rob. 343. 53 



The court in banc cannot control the discre- 
tion of a judge at Nisi Prius as to directing 
amendments of the record. Id. 

In an action on the case, against the defen- 
dants as carriers, for negligence, it appeared from 
the evidence that the Jelendants, if liable at all, 
were liable as wharfingers, on a contract to for- 
ward. Just before the plaintiff's counsel com- 
menced his reply, he applied to the judge to 
amend tlie declaration, which, however, tne foam- 
ed judge refused to do, but lefl it to the jury to 
say, whether there was a contract to forward, or 
a contract to carir, and thev found that there 
was a contract to forward. He then directed the 
verdict to be entered for the defendant, but the 
special finding to be indorsed on the posiea, that 
tne court might proceed thereon according to 
the 3 & 4 Will. 4. c. 42, s. 24. The court slew- 
ed the amendment on payment of costs, and 
granted a new trial, on payment of costs, observ- 
mg that the learned judge might have allowed 
the amendment, and postponed th^ trial to a 
future day, pursuant to s. 23 of that stat. Panr 
f. Fairhurst, 2 C. M. dk R. 190. 53 

VerdieU and Judgments.] — Where a verdict has 
been obtained in ejectment against A. and B., 
who defended for dif^rent parts of the premises 
in the declaration, the court, after setting aside 
the verdict as to A., refused to amend the postea, 
by confirming the verdict as against B. to those 
premises for which B. specificalhr defended. Roe 
d. Blair v. Street, 1 Nev. dk M. 42; 2 Adol. dk 
Ellis, 329. 64 

Where there has been a mistake of the clerk 
in entering up the judgment on sci. fa. to obtain 
execution on a judgment in debt, by entering it 
in the form in assumpsit -. Quaere, whether the 
court can amend it in a subsequent term. Kloss 
V. Dodd, 1 Hot. 4c Woll. 342. 55 

The court will allow the amendment of clerical 
mistakes in a judgment, on payment of costs, al- 
though one term nas elapsed since the Judgment 
was entered up, and although a writ of error has 
been sued out, and error assigned, amongst other 
causes, on those clerical mistakes. Paddon v. 
Bartlett, 5 Nev. dk M. 384 ; 1-Har. & Woll. 286. 

55 

In an action commenced by writ since the Uni- 
formity of Process Act, against two defendants, a 
verdict was found for the defendants. Judgment 
was entered up for the defendant in the sinjnilar 
number, and tliat the plaintiff should take noQiing 
by his bill, and the word " counts" was used in- 
stead of ^* issues." The court allowed an amend- 
ment of these mistakes. Id. 

Othtr Things.'] — Where the christian and sur- 
name are transposed by mistake in an order of 
reference, the court will allow that mistake to be 
amended. Price v. James, 2 Dowl. P. C. 435. 56 

A judge, sitting at Nisi Prius, has no power to 
order an amendment of the award of the venire 
facias on the Nisi Prius record. Adams v. Power, 
7 C. & P. 76— Bolland. 56 



2386 



^AMENDMENT— ANNUITY] 



If, in an action on a bill of exchange, where 
there IB a plea that there waa no consideration, it 
appear at the trial that the plaintiff has not put 
any replication on the record, the judge will not 
allow a replication to be added at the aasizes 
without the consent of the defendant, but will 
order the case to be struck out of the list Row- 
linson «. Roantree, 6 C. & P. 551— Aldcrson. 56 

The return day of the summons in a writ of 
riffht, may be amended before it is executed. 
MiUer, dera.,t?. Miller, ten., 4 Dowl. I*. C 144. 

• 58 

The court refused to auiend a fine in a case of 
misdescription, cured by 3 & 4 Will. 4, c. 74, s. 
7. Lockington, dem; Shipley, conusor ; 1 Bing. 
N.R. 355; 1 Scott, 263. 60 

The court allowed a recovery to be amended 
by inserting '* Holy Trinity" before Kingston- 
upon-HuU, on an affidavit that the property in- 
tended to pass was situate in the parish of the 
Holy Trinity, at Kingston-upon-HulI. Dansey, 
dem.; Lee, ten.; Crowther, vouchee; 3 M. & 
Scott, 371. 62 



Tinu and Mods of ^pplicaUon.]—'The decision 
of a judge at chambers as to amendments of 
pleadings, within tiie limits of his discretionary 
power over such amendments, will not be inter- 
fered with by the court, semble. Rex v. York 
fArchbi8hop),3Nev. &M. 453; 1 Adol. &. Ellis, 

In quare impedit by the crown, upon an al- 
leged forfeiture by simony between the patron in 
fee, the grantee of the turn, and the incumbent, 
a judge at chambers has authority to allow an 
amendment, by adding counts varying the terms 
and the parties to the simoniacal cofl tract. Id. 

And it is in the descretion of such judge to al- 
low the amendment without making the prose- 
cutor pay the costs previously incurred, id. 

An order to amend, although general in its 
terms, will onlv authorize the amendment with 
reference to which it is obtained. £ngleheart v. 
Eyre, 2 Dowl. P. C. 193; 2 Nev. AM. 849; 5 
B. & Adol. 68. 69 

The plaintiff, after obtaining an order to amend 
his declaration, with leave to defendant to plead 
de novo, may abandon that order and proceed to 
trial without procuring it to be rescinded. Black 
V. Sangster, 1 C. M. & R. 521 ; 3 Dowl. P. C. 
206; 5Tyr. m. 69 

A plaintiff a few days previously to the assizes 
obtained a judge's order, giving him liberty to 
amend, and the defendant was to have two days' 
time to plead anew. The plaintiff afterwards de- 
livered Uie issue and took no farther notice of 
the order, either by amending or rescinding it; 
and though the defendant returned the issue as 
irregular, the plaintiff proceeded to trial, and got 
a verdict. The court refused to set aside the ver- 
xlict as irregular. Id. 



ANIMALS. 

By 5 4& 6 Will. 4, c. 59, the laiog relating to 
the crud and improper treatment of animals, and 



the mischief arising from the driving of caitU, are 
consolidated and amended, • 

Qusre, under 5 & 6 Will. 4, c. 59, s. 9, whether 
a peace officer required by another person to 
take a third person into custody, should either 
inquire into all the particulars, or should see the 
anmial so as to form a judgment as to what has 
occurred ? Hopkins v. Crowe, 7 C & P. 373 — 
Den man. 



ANNUITY. 

A grant of an annuity for life, charpred upon 
land, m which the grantor has only a chattel in- 
terest, will enure as a grant during the term, if 
tiie cestui que vie shall so long live. Saffery v. 
Elgood, 3 Nev. & M. 346; 1 Adol, & Ellis, 191. 

The defendant and an infant ci»venanted that 
they, or one of tliem, would pay a certain an- 
nuity : — Held, that although Uie Annuity Act 
avoided the contract made by the infant, the 
covenant might be enforced against the defen- 
dant. Gillow t/. LiUie, 1 Scott, 597 ; 1 Bing. N. 
R. 695 ; 1 Hodges, 160. 70 



In an action of debt, on an annuity deed, it 
appeared that the covenant was with the plaintiff 
and another, to pay to them one annuity of 
30Z, in moieties; by another deed it appear- 
ed, that the annuity was to be secured by a 
joint judgment, &c. The plaintiff having ob- 
tained a verdict for arrears of Uie annuity due to 
himself, the court arrested the judgment, on the 
ground that the other covenantee ought to have 
joined in the action. Lane v. Drinkwatcr, 3 Dowl. 
P. C. 223. 71 

QuflBre how far in a case of fraud the provisions 
of the annuity Act may be dispensed with, not 
as against the grantor, but against his creditors ? 
Ex parte Wright, 1 Rose, 308. 72 

The condition of a bond (after reciting that 
M. M., the obligee, had contracted with S. B., 
the obligor, for the sale to him, S, B., of a mes- 
suage, £c., in consideration, amongst other things, 
of an annuity of 15W., to be paid to her, M. M., 
during her bfe, by S. B. by four quarterly pay- 
mcntij in the year ; and further reciting that, on 
the contract of the purchase of the messuage, it 
was agreed, that, for better securing the payment 
of the said annuity, the said S. B. should execute 
that bond) was, for the payment of the said an- 
nuity at the times, &c. This bond was stamped 
with a U. KiS. deed stamp :— Held, that the bond 
was properly stamped, and that it did not require 
any mrolhnent under the Annuity Act ; and if 
such inroUment had been necessary, the want of 
it could not have be<»n taken advantage ol^under 
the plea of non est factum. Mestayer v. Biggs, 
1 C. M. & R. 110; 4 Dowl. P. C. 695; 4 Tyr. 
466. 72 

In ejectment, an annuity deed was relied on ; 
it was not inrolled, but it contained a declaration 
or covenant by the grantor, that premises on 
which the annuity was secured, were of more 
than sufficient annual value to answer and 
pay the annuity over and above all charges :— 



[ANNUITY— APPRENTICE] 



2287 



Held, lliat it waa open to the grantor, notwith- 
standing, to give evidence that Uie premises were 
not of sufficient value to answer and pay the an- 
nuity, in order to avoid the deed. Doe d. Chand- 
ler V. Ford, 5 Nev. & M. 209; 1 Harr. & Woll. 
378. 72 

Semble, that it is incumbent upon the nantee, 
who relies upon an annuit]^ deed, which lias not 
been inroUed, to show that it is within the exemp- 
tion of the statute. Id. 

An annuity was granted by deed for the lives 
of the several persons named in the deed, and the 
lives of the survivors and snrvivor of th^m ; one 
of the persons on whose life the annuity was 
granted was named W. F. W. ; but, in the annu- 
ity deed, and in the memorial of tlie annuity, hf 
was named W. W. only: — Held, that he was 
sufficiently named withm the meaning of the 
Annuity Act, 53 Gieo. 3, c. 141 ; and that the 
memorial was sufficient. Hulton v. Sandys, 1 
Younge, 602. 76 

An annuity deed, the memorial of which does 
not set forth with precision, the form in which the 
consideration was paid, is void. Lewis v. Hooper, 
4 Nev. & M. 318 ; S. C. nom. Ex parte Lewis, 2 
Adol. &, Ellis, 135. 76 

The inaccuracy of a statement of the memorial 
may be brought before tlie court by affidavit, as 
a ground for setting aside the securities. Id. 

The inrollment of an annuity deed omitted the 
word *• life" in the heading of one of the columns 
given by the form of the statute : — Held, tJiat this 
omission did not invalidate the deed. Flight v. 
Lake (Lord), 2 Scott, 126; 2 Btngh. N. R. 72; J 
Hodges, 190. 76 

An annuity cannot be set aside upon mere in- 
adequacy of price, which can be applied only as 
evidence of uraud. Law v. fiarchard, 8 Yes. jun. 
133. 82 

The statute of limitations is no bar to an action 
brought to recover back the consideration paid for 
an annuity, notwithstanding more than six years 
have elapsed since the date of the grant, where 
the grantor (having for some years paid the annu- 
ity without objection) has, within six years from 
the commencement of the action, elected to avoid 
the annuity by reason of a defective memorial. 
Cowpcr V. Godmond, 3 M. & Scott, 219 ; 9 Bing. 
748. 85 

Money had and received is the proper form of 
action in such a case. Id. 

Payments made by the grantor on account of 
the annnity mav be set off against the considcra- 
ti<Ni money paid on the purchase, upon a record 
prc^perly framed. Id. 

Qusre whether the grantee is entitled to inter- 
est upon the consideration money ? Semble not. 

Lands were, devised in fee, charged with an an- 
nuity ; and power was given to tne annuitant to 
distrain, if tne annuity were in arrear for twenty 
days after the day of payment, being lawfully de- 
manded ; power was also given, if it should be in 
arrear for forty days, to enter and enjoy the lands, 
and to take tlie profits, until the annuitant should 



be thereby paid and satisfied all the arrears, with 
all costs, or until the person entitled to imme- 
diate* possession should pay all the arrears and 
costs : — Held, that upon the annuity being forty 
days in arrear, the annuitant might bring eject- 
moot without making any demand. Doe 3. filasn 
V. Horsley, 1 Adol. <& Ellis, 766. 86 



APPRAISER. 

A valuation made for the information of parties,, 
and nt.t binding on them, is not made liable to an 
appraisement stamp by 5)5 Geo. T, c. 184, Sched. 
p. ], tit. ** Appraisement,*' though an agreement 
is afterwards founded on its data. Jackson v. 
Stopherd, 2 C. & M. 361 ; 4 Tyr. 330. 87 



APPRENTICE. 

Generally.'] — An indenture liaving been pre- 
pared for binding a boy apprentice, the appren- 
tice and his father, being unable to write, desired 
a third person to write tlieir names opposite two 
of the seals, and he did so. The indenture waa 
not read to them. The apprentice immediately 
afterwards took the indenture to the master and 
left it with him ; and allerwards stated that when 
he did s<j he considered himself bound ; and he 
went into the service under the indenture : — 
Held, that the indenture was sufficiently execut- 
ed and delivered, liex v. Longnor, 1 Nev. & 
Man. 576 ; 4 B. & Adol. 647. 87 

Where an apprentice is bound to two partners, 
on the death of one he becomes in law the ap- 
prentice of the survivor, ilex v. St. Martin's,. 
Exeter, 1 Harr. & Woll. 69. 87 



Consideration given.] — The trustees of a charity 
bound out an apprentice to R. : the consideration 
money expressed in the indenture was 10/., paid 
by the trustees. Previously to the execution of 
tiie indenture, the apprentice's grandfather, who 
was no party to tlje indenture, had agreed with 
the mistress that the premium should be 25Z. ; 
and subsequently to the execution the grand- 
father paid to the mistress 15/.: of the contract, 
or of the payment of any sum beyond the lOZ.,. 
the trustees were entirely ignorant : — Held, that 
the agreement hj tlie grandfather to pay the ad- 
ditional sum otl^l. was a binding agreement, 
and that therefore the indenture was void by 8> 
Anne, c. 9, s. 3^), for not stating the full consider- 
ation. Rex V. Amersham, 6 Nev. & M. 12. 87 



Slamp.] — An indenture of apprenticeship, with- 
out premium, was executed April 27th, 18^, 
but not stamped till July, 1832, when a 1/. stamp 
was put on it, and a 5/. penalty paid. Aflerwards 
a double duty (22.) was paid. The indenture 
was offered in evidence to prove the settlement 
of a pauper by service under it : — Held, thai as 
it was not within stat. 8 Anne, c. 9, which limits 
the time for stamping indentures, the court was 
not called u()on to notice the cireumstances un- 
der which stamps were affixed. Rex v. Preston, 
3 Nev. & M. 31 ; 5 B. & Adol. 1029. 88 



2288 



[APPRENTICE] 



The 55 Geo. 3, c. 1K4, doos not repeal the pro- 
vision of ^ Anne, c. !), aa to the time for stainpinjr 
indcntnrefl of apprenticeship ; and thereibre, an 
indenture of apprenticeship (a premium having 
been paid with the apprentice) must be stamped 
with tJie advalorem duty, witliln the time pre- 
scribed by the stat. 8 Anne, c. !), ss. 3H, 37, 38, 
and if not stamped, is wholly void. Ilex v. Church 
Hulme, 5 B. 4& Adol. 1(^21). 88 

The proviso in 37 Greo. 3, c. Ill, exempting 
from the stamp duties thereby imposed, every in- 
denture of apprenticeship ^^ where a sura or value 
not exceeding 10/. shall he given or contracted for, 
with, or in relation to the apprentice," does not 
extend to an indenture where no consideration 
passes Rex r. Mabe, 5 Nov. & M. 241 ; 1 Har. 
& WoU. 460. 88 

A boy was apprenticed by the trustees of a 
charitable fund, and a premium of l5Z. paid out 
of the fund; before the expiration of the term, 
the master, at the request of the apprentice, ver- 
bally, and without the knowledge of the trustees, 
consented to his serving the remainder of his 
term with another person ; and agreed to give 
that person '^ 61., as part of the 15/. paid as a pre- 
mium on the binding :" — Held, that tlje 61. was 
a valuable consideration paid to ihe second mas- 
ter, "other than what was given by any public 
charity," and, therefore, that the transfer was void 
for want of a stamped assignment. Rex v. 
Fakenham, 4 Nev. &.M. 553; 2 Adol. <& Ellis, 
528 ; 1 Harr. & Woll. 222. 88 

Where a boy was bound apprentice in 1827 by 
indenture, upon a premium of 30/., which was 
agreed to be paid, and for which a bill was given ; 
and the indenture had a 1/. stamp only impressed 
upon it; and the apprentice having served his 
master for five months, and a difference having 
arisen between the master and the father, and it 
having been discovered tliat the stamp was insuf- 
ficient, the apprentice loft his master's service : — 
Held, that the apprentice might have compelled 
him to continue tliat instruction and maintenance, 
by causing the indenture to be properly stamped, 
pursuant to the stat. 2f) Gk*o. 2, c. 45, s. 5. Mann 
3>, Lent, 10 B. & C. 877 ; M. &. M. 240. 89 



Length of Term.] — Where a statute, incorpo- 
rating firuardians of the poor of a certain district, 
enacted that it should be lawful for the corpora- 
tion to bind out apprentices for any number of 
years, "provided such child be not bound for 
a longer term than until ' he or she shall have at- 
tained the age of twenty-two, if a boy, and twenty, 
if a girl," it was held, that an indenture, by 
which a boy fifteen and a half was bound for seven 
years, was voidable only, and not void ; and, that 
therefore, a settlement might be gained under it. 
Rex TO. St. Gregory, Canterbury, 4 ^ev. & M. 
137; 2 Adol. & Ellis, i>9. 8i^ 



Rights of Pflrtte*.]— Defendant agreed with 
plaintiff's father to receive plaintiff (who was a 
minor) into his service on trial, and to take him 
an apprentice if he approved it. Plaintiff went 



end worked for defendant nearly two years. 
Several applications were inn Je during that time 
by the father, to take him on paying 10/. : this 
WAS agreed to ; but defendant shortly after quar- 
relled with plaintiff, and tuld him to go home 
about his business. Plaintiff went home, and on 
the father applying to the defendant for an ex- 
planation, the latter told him to go and do his 
worst The fiither then caused a letter to be 
written to defendant by his attorney, requiring 
him either to take plaintiff as his apprentice, or 
recompense him for his work, but no satisfactory 
answer was given, and plaintiff, by his next 
friend, brought an action to recover compensa- 
tion f(»r his service. The judge put it to the jury 
on these facts, whether or nut the defendants 
conduct was such as warranted the father in con- 
sidering the contract for an apprenticeship as re- 
scinded; and he further stated, tliat if they 
thought it was, they were to give plaintiff such 
compensation for his work as they thought pro- 
I)er. The jury found a verdict for the plaintiff, 
with damages, by way of compensation lor his 
services : — ^Held, that the direction was ricrht, and 
the verdict was not to be disturbed. Phillips v. 
Jones, 1 Adol. <& Ellis, 333. \)l 

Parish ^pyrentiecs.] — ^The premium for an ap- 
prenticeship was paid by the trustees of a charita- 
ble fund. On tlie dajr of tlie binding, the appren- 
tice was provided with a suit of clotlies by tlie 
parish officers in contemplation of the binding, 
but without any express stipulation to that effect ; 
— Held, that this was not an expense within 56 
Geo. 3, c. 139, s. 11, making requisite the assent 
of two justices to the indenture. Rex v. Quain- 
ton, 3 Nev. &; M. 289 ; 1 Adiii. & Ellis, 133. 

9& 

A special authority delegated by a local act to 
the directors and guardians of paupers of a dis- 
trict, incorporated for the government of the poor, 
to bind out apprentices, must be executed by an 
indenture, to which the seals of the apprenticing 
directors and guardians are atlixed. The corpo- 
rate seal is insufficient. Rex r. llaughley, 1 Nev. 
& M. 525 ; 4 B. & Adol. 651 . 95 

An indenture, by which a person of twenty-one 
years of age binds himself an apprentice, does 
not require the approval or allowance of justices, 
where the premium is paid out of the public 
parochial funds, under 56 Geo. 3, c. 1!)9, s. 11. 
Rex V. St. John, Berwardine, 2 Nev. & M. 86 ; 
5 B. & Adol. 169. 95 

A child of parents settled in and chargeable to 
a parish, might have been bound by tlie parish 
officers under 43 Eliz. c. 2, witli the assent of two 
justices, though the child was resident in anotlier 
parish at the time of the execution of the inden- 
ture. Rex V. St. George, Exeter, 5 Nev. & M. 61 ; 
3 Adol. & Ellis, 373 ; 1 Uarr. & WoU. 372. 95 

Under that statute a parish apprentice might 
be bound to a master who was not a parishioner. 
Id. 

The consent of the apprentice is not requisite 
in the case of a parish apprenticeship. Id. 



[APPRENTICE— ARBITRATION] 



2289 



No settlement is acquired by service under an 
indenture of apprenticeship ordered, made, and 
allowed under 56 Geo. 3, c. 139, unless the notice 
required by section 2 was duly given, and was 
proved to the justices before allowance. Rex v. 
WhisioD, 6 Nev. & M. 65. 95 

Bat where an indenture, whereby the overseer 
<^ A. bound a pauper apprentice to a master in 
B., under that statute, appears on the face of it 
to hare been allowed by them, it will be pre- 
sumed, until the contrary be ^own, that such 
notice had been duly given, and was proved to the 
magistrates before allowance. Id. 

Quffire whether a parish apprentice under age 
is capable of assenting to the cancellation of His 
indenture of apprenticeship ? Rex v. Gwinear, 3 
Nev. & M. 2^7 ; 1 Adol. & Ellis, 152. 96 



ARBITRATION. 

Sttbmission.] — Where it was one of the terms 
of an agreement to refer disputes to arbitration, 
that the submission might be made a rule of a 
court of law, on tlie application of either party, 
but thit had not been done : — Held, on demurrer, 
that the Court of Chancery had jurisdiction to 
relieve against the award. 5iichols v. Roe, 5 Sim. 
156. 08 

And that court, having once exercised its juris- 
diction of the award, will retain it, although, 
on the coming in of tlie nnswer, it appears that 
the submission hid then been made a rule ef a 
court of law by the defendant. Id. 

A judge's order for referring a cause may be 
made a rule of court, though the defendant gave 
no authority to his attorney to consont to its being 
made a rule of court. Panll v Paull, 2 Dowl. 
P. C. 340; 2 C. & M. 235; 4 Tyr. 72. 98 

Where, from some misconduct of the arbitra- 
tor, the original order of reference cannot be 
obtained, a duplicate may be made a rule of 
eoufL Thomas v. Philby, 2 Dowl. P. C. 145. 98 

A submission to arbitration referred the amount 
of lo^ by fire on " wool in the process of wool- 
ling, carding, scribbling, and spinning," but in 
otl^r parts of the submission "raw wool" was 
spoken of. The arbitrator, conceiving that he 
was not justified in taking into his consideration 
wool which had undergone a part of the process 
of manufacture, but was not, at the time of the 
fire, in any of the engines, refused to receive evi- 
dence applicable to that wool : — Held, tliat tlic 
arbitrator was justified in so doing ; and the court 
refused to disturb an award made on that prin- 
ciple. In re Hurst, 1 Har. & Woll. 275. 98 

th an action of trespass A. was plaintiff, and 
B., C.*8 land agent, was the nominal defendant, 
C. being the party really interested.. H., who 
acted as tlie defendant's attorney upon the em 
ployment of C, and who also acti'd as C.'s at- 
torney in certain actions and suits dependintr 
between C and A-, c<msentid to an order of Nisi 
Prios, on the terms that A . should give up to C. 
Uic |)082c:J8ion of the farm on which Ihc trepptuia 



had been committed, and that all proceedings 
should be stayed in tlie actions and suits between 
A. and B. and C, and that C. should pay the 
taxed costs in the present action, and the further 
sum of 10/. to A. On motion to set aside the 
order of Nisi Prius, and a rule of court made 
thereon, upon the ground that H. had no autho- 
rity to bind C. by any such arrangement, the 
court refused to mteriere in a summary way. 
Thomas v. Hewes, 2 C. & M. 519 ; 4 Tyr. 335. 98 

Where a cause was agreed to be referred, but 
the agreement was not made a rule of court, the 
court refused to compel the payment of a sum 
awarded against the party who proposed the re- 
ference. Clarke v. Baker, 1 H. & Woll. 215. 98 

Afler a submission bv deed, an arbitrator may, 
with the assent of both parties, be substituted m 
the place of one of the original arbitrators. In re 
Tunno, 2 Nev. & M. 328 ; 5 B. & Adol. 488. 99 

Semble, that such substitution would constit- 
tute a new submission by parol, and that an award 
under such new submission could not be enforced 
by attachment Id. 

By order of Nisi Prius, a cause was referred 
to arbitration, with liberty for the arbitrator to 
examine the parties, but the death of either was 
not to operate as a revocation of the reference. 
The plaintiff died before he was examined, and 
before thejarbitrator had made his award ; where- 
upon the defendant having revoked his submis- 
sion, on the ground, iis he alleged, of his havings 
lost the opportunity of examining the plaintiff, 
the court ordered him to pay the costs of a trial 
oocasioned by the termination of the reference. 
Smith V. Fielder, 10 Bing. 306; 3 M. & Scott, 
853 ; 2 Dowl. P. C. 764. 101 

Where there is a clause, that if either party by 
affected delay or otherwise shall prevent the arbi- 
trator from niakmg his award, he shall be liable 
to costs, a plaintitf will be liable to costs where 
the arbitrator is prevented from making his award 
in consequence of the plaintiff not being prepared 
with proper evidence, though he is ready to be 
examineJ in support of his own case. Morgan r. 
Williams, 2 Dowl. P. C. 123. 101 

The autiiority of an arbitrator cannot be re- 
voked afler he has made his award. Phipps r. 
Ingram, 3 Dowl. P. C. 669. 103 

A judge at chambers having, under 3 & 4 Will. 
4, c. 42, s 3H, revoked a submission to arbitra- 
tion on an ex parte statement, the court rescind- 
ed the order of revocation. Clark v. Stocken, 2 
Bing. N. R. 651. 103 

The 3 & 4 Will. 4, c 42, s. 30, does not apply 
to arbitrators appointed in pursuance of a clause 
in a deed, that all disputed shall be referred to 
(he arbitration of two persons, who are directed 
to choose an umpire before they proceed, but 
which umpire has not been appointed. Bright v. 
Durncll, 4 Dowl. P. C. 7u6. 103 



Jlrbitrator.] — If a cause is referred to a bar- 
risler, and lie improperly admits evidence, tlie 
court will not disturl) his award. Perryman v. 



Stegg;il, '2 Dowl P. C 



7'»6. 



105 



S290 



[ARBITRATION] 



An arbitrator's deciBion on the admissibilitj of 
evidence before him is final. Symes v, Goodfel- 
low, 4 Dowl. P. C. 642. 105 

If a submission to arbitration be ** so that the 
witnesses be examined on oath," affidavits cannot 
be read ; if they are, the award may be set aside. 
Banks v. Banks, I Gale, 46. 105 

Where a defendant submitted all matters in 
difference to arbitration, and the arbitrators re- 
quired him, in pursuance of a power ffiven them 
&r that purpose, to produce certain l>ooks and 
papers, and an attachment was moved for against 
him for not producing them : — Held, tliat he 
could not by affidavit bring before the court the 
question, whether those b<x>ks related to matters 
in difference between them, or not, though it was 
expressly sworn that the books merely related to 
ola accounts, which had been long since settled, 
and which it ban beei^ agreed between them 
should form no pa^t of the reference, because, by 
the general terms of the submission of all mat- 
ters in ditierence, it was led in the discretion of 
the arbitrator to say what were matters in differ- 
ence, and what were not. Arbuckle v. Price, 4 
Dowl. P. C. 174. 105 

The refusal of an arbitrator to examine wit- 
nesses is sufficient misconduct on his part to in- 
duce the court to set aside his award, though he 
may think that he has sufficient evidence without 
them. Phipps v. Ingram, 3 Dowl. P.C. 660. 105 

Where all matters in difference in the cause 
between the parties, in an action against two de- 
fendants, were referred to arbitration, and the 
arbitrator refused to hear evidence, or adjudicate 
upon the subject of four checks drawn by one of 
the defendants alone, on the ground that it was 
not a matter in difference between the parties to 
the reference: — Held, that the award was not 
final and conclusive, and that it must be set 
aside. Samuel v Cooper, 2 Adol. ^ Ellis, 752; 
I Har. & W'oU. 86 : S. C. nom. Samul v. LeYey, 
4 Nev. & M. 520. 105 

An award will not be set aside, although the 
affidavits in support of the application disclose 
strong imputations upon the testimony of a ma- 
terial witness who was examined i>efore the arbi- 
trator ; nor is the arbitrator bound to examine a 
party in the cause wh6 could have contradicted 
the witness. Scales v, Eaut London Water Works 
Company, 1 Hodges, 91. 105 

Statement in award. Crump v. Adney, 3 Tyr. 
270 ; 1 C. <& M. 355. 106 

On a cause beingr referred, tlie plaintiff at- 
tended before the arbitrator by counsel, witliout 
giving the defendant notice of his intention so to 
do. The defendant requested an adjournment, 
to give him time to instruct counsel ; but tlie 
plaintiff refused to consent, unless the defendant 
paid the cost of the day. The arbitrator pro- 
ceeded ex parte, and certified in favor of tlie 
plaintiff. I'he court, on motion, stayed the certi- 
ficate, and referred the cause bank to tlic arbitra- 
tor, and dissallowed the plainliffhis costs of the 
day. WhaUey v. Morland, 2 C. & M. 347 ; 2 
Dowl. P. C. 249 ; 4 Tyr. 255. 106 

A reference was made to two arbitrators, and 



an umpire to be chosen by them, who was to be 
present and decide each reference as it niiffht 
arise, and either might make an award. The 
umpire, in the presence of the arbitrators, disal- 
lowed the plaintiff part of his claim, which made 
the balance in favor of the defendant, and after- 
wards without notice to the arbitrator or de- 
fendant, made his award in favor of the plain- 
tiff. The court set aside the award. Potter v. 
Newman, 4 Dowl. P. C. 504 ; 2 C. M. &, R. 742 \ 
1 Tyr. i& G. 29. 106 

An arbitrator decided in favor of plaintiff, and 
tlien stated facts on his^ward, ordering that if 
the court should difierfrom him in opmion, on 
considering those facts, a nonsuit should be enter- 
ed. T!ie court refused to set aside the award, on 
the ground that he had come to a wrong conclu- 
sion on the evidence, for though they did not con- 
cur in it, it did not appear that there was no evi- 
dence in support of it. Barrett r. Wilson, 1 C. M. 
& R. 586 ; 3 Dowl. P. C. 220 ; 5 Tyr. 218. 106 

Order on arbitrator to proceed. Crawshay v. 
Collins, 1 Wils. C. C. 31 ; 1 Swans. 40. 108 

A cause (in which monev had been paid into 
court) was referred, with all matters in difference, 
the costs to abide the event The arbitrators 
found that the plaintiff had no cause of action, 
but that there was a sum of IQL due from the 
defendant for money lent to his wife, which was 

f»aid into the court : — Held that the plaintiff was 
iable to pay the costs. Dawson v. Garrett, 2 
Dowl. P. C. 624. 109 

If an arbitrator to whom a cause is referred by 
order of Nisi Prius, takes no notice in his award 
of a power given him by the order to give the 
defendant his posts, on the ground of an exces- 
sive arrest, but docs not dispose of the general 
costs of the cause, the court will not interfere to 
give the defendant his costs. Greenwood v. John- 
son, 3 Dowl. P. C. 606^ 109 

Where a cause is referred, (the costs of the 
suit, and of the reference and award, to abide the 
event,) the arbitrator need not notice the costs in 
his award. Jupp v. Grayson, I C. M. & K. 523 ; 
3 Dowl. P. C. 199 ; 5 Tyr. 150. 109 

Matters in difference were referred to two arbi- 
trators, one appointed by each party, and an um- 
pire chosen before proceeding with the reference. 
The award was to be made by the three, or any 
two of them. They disagreed, and one of the arbi- 
trators declined having anything more to do with 
the matter ; but the other two afterwards sent to 
him, for his opinion, a drafl of an award. He 
objected to this, and stated his objections to both 
the others : — Held, that an award made by the 
two, which diftercd from the one prepared, without 
considering the objections, and without consulta- 
tion or dittcussion with the arbitrator who had 
objected, was bad. In re Allen, 5 Nev. & M. 374 ; 
nom. In re Perrin? 6t Kcymcr, 3 Adol. & Ellis, 
245 : S. C. nom. Perring v. Kymer, 1 Har. &. 
Woli.2S5. 110 

Semble, that if the award had been made by 
the two iiiimediately upon the tliird declining to 
act, and before they had again consulted him, it 
might have been good. Id. 



[ARBITRATION] 



2291 



A oause beinff referred, the arbitrator in 1825 
received from £e plaintiff's attorney 671. for his 
fees and expenses. In 1827, the parties went 
before the prothonotary, when he allowed only 
35/. The defendant now, afler a lapse of eight 
years from the time the payment was made, (the 
attorney who paid the money having died in the 
interim), applied to the court to order the arbitra- 
trator to refund the difference : — Held, that the 
application was to late. Brazier v. Bryant, 3 
M. & Scott, 844 ; 2 Dowl. P. C. 757. 110 



Vmpire.l — An nmpire may be appointed by 
lot with the assent of the parties. In re Tuno, 
2 Nev. & M. 328 ; 5 B. & Adol. 488. 110 

Sach assent sufficiently appears by each party 
presenting three names, from which that of the 
umpire is to be drawn. Id. 

Or, bv the parties signing the memorandum 
by whicn the person whose name is drawn is ap- 
pointed umpire. Id. 

An umpire, being furnished by tlie arbitrators 
with the evidence taken before them, and having 
himself viewed the premises, the condition of 
which was in question, made his award without 
calling for further evidence, or giving any notice 
on thai subject to the parties : — Held, that the 
award could not be objected to on that ground by 
a party who knew that the case had gone before 
the umpire and made no application to him to 
hear farther evidence. Id. 

Rule nisi to set aside an award on the around 
of partialitv refused, though it appeared that the 
umpire made the award wiui the assistance chiefly 
of one of the arbitrators, who omitted to take 
down part of the evidence in favor of one party, 
the other arbitrator interfering very little. Wal- 
tonahaw v. MarshaU, 1 Har. & WoU. 219. 110 



JhcardJ] — All matters in difference in a cause 
were referred by a judge's order to an vbitrator, 
•o as he made his award on or before a particular 
day, or on or before such further or ulterior day 
■fl be should from time to time appoint by writ- 
ing under his hand, to be indorsed on the order, 
and as the court or a baron might order. The 
aibitrator made an enlargement of the time, but 
this was not confirmed by any order. Afler- 
wards two orders for enlarging the time were 
made by a baron, with the consent of the parties : 
— Held, that an award made before the time ap- 
pointed by the last-mentioned order was valid, 
and that the orders by consent amounted to a 
fresh agreement. Benwell v. Hinxman, 1 C. M. 
& R. 935; 5Tyr. 509 ; 3 Dowl. P. C. 500. 112 

The arbitrator found that a sum of money was 
due from the defendant to the plaintiff, which he 
directed to be paid on or before a particular day, 
and that upon payment of that sum all proceed- 
ings should cease : — Held, that the award was 
final and not conditional ; but that the arbitrator 
had exceeded his authority in giving a particular 
day of payment. Id. 

The power given to the court or a iud^ by 3 
& 4 Will. 4, e. 42, s. 39, to enlarge the time for 

Vol. IV. 3 



an arbitrator to make his award, is general, and 
is not confined to cases where there has been a 
revocation of the submission . Burley v. Stephens, 
1 Mees. & Wels. 156 ; 4 Dowl. P. CJ. 255, 770. 

112 

The time for making an award beinff limited 
to the 18th of April, with power to enlarge the 
time, but not stating how, the arbitrator, at a 
meeting on the 16th, in the presence, and with the 
consent of all parties, appointed the 29th of June 
for a further meeting : — Held to be a sufficient 
enlargement of the time. Id. 

Semble, that under the 3 & 4 Will. 4, c. 42. s. 
39, the court or a judge has the power to en- 
large the time for an arbitrator to make his award, 
although the order of reference does not contain 
any power to enlarge the time, and there has 
been no revocation of the arbitrator's authorit. 
Potter V. Newman, 2 C. M. & R. 742 ; 4 Dowl. 
P. C. 504 ; 1 Tyr. & G. 29- 112 

The court will not infer that the decision of an 
arbitrator has proceeded solely upon certain facts 
set out in the award, unless the award state 
that the decision is founded upon these facts. 
Lancaster v. Hemmington, 5 Nev. & M. 538. 

113 

(construction of award. Wood v. Griffiths, 1 
Wils. C. C. 34 ; 1 Swans. 52. 113 

A. and B. having a dispute as to the liability of 
B. to pay money to A., agreed to submit the case 
to a barrister, and to be Dound by his opinion. 
Semble, that in an action brought to enforce such 
payment, the opinion of a barrister upon a case 
so submitted is admissible in evidence without 
an award stamp. Boyd v. Emerson, 4 Nev. & 
M. 99 ; 2 Adol. A KUis, 184. 113 

Semble also, that supposing an award stamp to 
be necessary, a staQip proportioned to the num- 
ber of words on the opinion alone without the uue 
is sufficient, althougn the opinion be annexed to 
the case, and refer to the cause thus : — ** Upon 
the facts stated, I am of opinion,*' &.c. Id. 

An action for a nuisance (to which a plea of 
the general issue only was pleaded, before the 
new rules of pleading) was referred to an arbitra- 
tor, who found that Uie plaintiff had not proved 
that the defendant was not the cause of the mjury, 
and he ordered a nonsuit to be entered, but he 
also ordered that the defendant should remove 
the nuisance within a month : — Held, that this 
was a finding substantially in fiivor of the defen- 
dant, and that he was entitled to the expense of 
all witnesses who could be material under the 
general issue. Radcliffe v. Hall, 3 Dowl. F. C. 
802. 113 

An award, declared that a yard and pump were 
the sole and exclusive property of ^the plaintiff, 
except that the defendant had a right to take wa^ 
ter from the pump, and to have ingress and 
egress to and from the vard in which it stood for 
that purpose ; and further, that the pump should 
thereafter be considered as belonging jointly to 
the plaintiff and defendant, and oe repair- 
ed at their joint expense : — Held, that tnere 
was no objection to the award, on the ground that 
the direction as to the future enjoyment was in 



2292 



[ARBITRATION] 



eoiuistent with the former part of the award ; and 
that there was no excess of authority. Boodle v. 
Davia, 4 Nev. & M. 788; 3 Adol. A Ellis, 200 ; 

1 Har. & WoU 420. 113 

Where by an agreement of reference afteraction 
brought, but before declaration, ** all the costs are 
to abide the event of the award," the arbitrator has 
no power over the costs. Id. 

Upon a reference of partnership disputes, a 
direction in the award that some of the parties to 
the reference do pay a sum of money (which is 
one of the matters mcluded in the submission) to 
the arbitrator, and that he apply the same to the 
payment of certain specified demands, ^also part 
of the matters submitted), is bad, and vitiates the 
award, although the payments appear, by the 
tenor of the award, to be for the Mnefit of the 
parties submitting, and not of the arbitrator. In 
le Mackay, 2 Adol. & £llis, 356. 113 

If it clearly appear, from reading an award, 
that the arbitrator intended to leave a particular 
question of law open, the court will consider it, 
although in terms the arbitrator may in one part 
of his award have determined it. Sherry v. Oke, 
3 Dowl. P. C. 349 ; I Har. & Woll. 119. 113 

]^o precise form of words is necessary to 
constitute an award : it is sufTcient if the ar- 
bitrator express by it a decision upon the mat- 
ter submitted to him. But where an arbitrator 
to whom a dispute between an architect and his 
clerk, respecting a claim by the latter to wages 
was referred, stated in a letter that he had exa- 
mined drawings made by the clerk, with an ac- 
count of his time, which did not show experience 
or ability to the extent to justify a demand for 
remuneration under the circumstances : but in 
consideration of the clerk's services out of the 
office on some occasions, and to meet the case in 
a liberal manner, he proposed that the architect 
should pay the clerk 101. : — Held, that the latter 
part of the letter was a mere sogjyrestion of the 
arbitrator, and not a decided opinion that the 
cl«*rk was or was not entitled to recover 10£., and 
therefore not a good award. Lock v. Vulliamy, 

2 Nev. & M. 336 ; 5 B. & Adol. 600. 113 

A bond conditioned for the due discharge by 
A- M. of the duties of clerk, provided that such 
discharge should be ascertained by the inspec- 
tion of A. M.,'8 accounts by J. S. ; and that the 
amount so ascertained should be liquidated da- 
mages. A paper by which J S. has ascertained 
such amount requires to be duly stamped as an 
award. Jebb v. M'Kurnan, BiT & M. 340 — 
Farke. 113 

In an action between A., tenant of Whiteacre, 
and B. his landlord, all matters in dispute are re- 
ferred to C, who is to determine what shall be 
done with respect to the land. C. awards, with 
respect to the land, that from the date of his 
award the tenancy shall cease, and that A. shall, 
within a month, deliver up possession to B. 
Possession is token accordingly. D., a creditor of 
A., afterwards issues execution against A., and 
takes tiie crops growing on Whiteacre : — Held, 
that this awmrd did not determine the tenancy : — 



Held, also, that the award was admissible in evi- 
dence upon the trial of an issne between B. and 
D., upon the question, whether, at the time of the 
execution, the crops Were the property of A. or 
B. Thorp V. Eyre, 3 Nev. & M. 214. 113 

Where an action was brought by an attorney 
on a bill not taxable, and a verdict taken subject 
to a reference as to the amount of the charge, 
and the arbitrator awarded a certain sum :-^ 
Held, that it was competent for the court to 
examine whether the arbitrator had adopted a 
right rule. Broadhurst r. Darlington, 2 Dowl. 
P. C. 38. 114. 

By the terms of a submission, a Chancery suit 
and all matters in difference between the parties 
were referred, and it was made an express matter 
of reference, whether an agreement between the 
parties should be rescinded or not. The arbi- 
trator merely decided as to the Chancery suit^ 
that each party should pay his own costs ; ancl 
gave no directions upon the subject of rescindingr 
the agreement, but awarded specifically on every 
other subject matter of the agreement: — Held, 
that the award was not sufficient. Upperton v. 
Tribe, 1 Har. & Woll. 280 : 8. C. nom. In re 
Upperton an Tribe, 3 Adol. & Ellis, 296. 114 

Quiere, whether the award was not sufficiently 
final as regarded the adjudication upon the Chan- 
cery suit. Id. 



Orders of difierent judges to the number of 
eleven, enlarging the time for making an award, ' 
were made a rule of court by a single rule. Id. 



An action having been brought for the recovery 
of a sum of money, but which had only pro* 
ceeded as far as the writ and appearance, and the 
defendant claiming a larger sum to be due to 
him, it was agreed that the action, and the dis- 
putes arising out of the accounts and other mat* 
ters in difference should be referred, the costs of 
the action, of the reference, and of the award, to 
abide the event of the award. The arbitrators 
awarded that the action should cease, and be no 
further prosecuted, and that on the balance of all 
accounts, there was a sum of 661L due to the 
defendant from the plaintiff, which they ordered 
him to pay on a particular day : — Held, that the 
anrard was sufficiently final, and decided the 
event of the action, to prevent the plaintifi 
setting it aside, though perhaps the court would 
refuse an attachment. Eardley v. Steer, 4 Dowl. 
P. C. 42:) ; 1 C. M. & R. 327. 114 

An action for trespass for taking goods was 
preferred princioally with the view of determin- 
ing the right or property in the goods, the de- 
fendants contending that the plaintiff had no 
property in them, but that they belonged to a 
th\ra person ; another complaint in the declara- 
tion was, that the defendants had committed an 
assault upon the plaintiff 's wife per ^od con- 
sortium amisit, and all other matters in di&r- 
ence were also referred. No evidence was given 
before the arbitrator to prove the per quoo, but 
there was only one assault proved to luive been 
committed on the wife, and the plaintiff aban- 
doned his claim to part of the goods. The arbi- 



[ARBITRATION] 



2298 



tnlor made hia award, merely orderingr the ver- 
dict which had been entered for the plaintiff to 
•tand, and the damages to be reduced to 352., but 
made no award respecting the right of property 
in the goods : — Held, that the award was sum- 
ciently nnal. Bird v. Cooper, 4 Dowl. P. C. 148. 

114 

An arbitrator, who had authority to decide on 
what terms a partnership agreement should be 
cancelled, directed, among oUier things, that the 
agreement should be cancelled ; that one of the 
partners should have all the debts due to the 
firm, and should, if necessary, sue for them in 
the name of his late partner : — Held, that in 
authorizing one of the parties to sue in the name 
of the other, the arbitrator had not exceeded his 
aathority. Burton or Burt r. Wigley or Wig- 
more» 1 Scott, 610 ; 1 Bing. N. R. 6& ; 1 Hodges, 
81. 114 

An action of trespass to which the defendant 
had pleaded both a private and a public right of 
way, was referred at Nisi Prius to an arbitrator, 
together with all matters in difference in the 
caose between the parties. It was agreed, also, 
that the plea of a public right of way was to be 
withdravTn, but that the arbitrator was to decide 
as to the costs, as if it remained. Tiie arbitrator 
was also to award as to the future use of the 
road. The arbitrator found the private right of 
way for the defendant, and set out the way he 
should in future use, and he gave him the costs 
of the cause, including the costs on the issue of 
the public right of way : — Held, that the arbi- 
trator had not in fiict found a public and private 
right of way over the same spot. 2. That the 
award could not be set aside on the ground that 
there was evidence to support a public but not a 
private rif ht of way. lliat the arbitrator did 
not exceed his authority in giving the defendant 
the costs of the issue on the public ri^ht of way, 
having given him the verdict on the issue of the 

K'vate right of way. Allenby v. Proudlock, 4 
Fwl. P. C. 64 ; 1 Har. A Woll. 357. 114 

By ao order of reference, an action and all 
matters in diflference were referred to arbitration, 
the costs of the suit and of the reference to abide 
tfw event of the award. The arbitrator directed 
the defendant to deliver certain goods to the 
l^ntiff, and the plaintiff to pay a sum of money 
to the defendant; that all proceedings in the 
action should cease, and a seneral release be 
given : — Held, that the award was not uncertain 
■s to costs, as the e^ct of it was that each party 
should pay his own. Tates v. Knight, 2 Scott, 
470; 2 Bing. N. R. 277 ; 1 Hodges, 368. 114 

An award recited, that, W an agreement in 
writing between the plaintiff and deTendant, re- 
cifing that they had for some years carried on 
hosineai as builders and excavators in copart- 
nenhip, and that they had, in pursuance or the 
oopartnenhip, become possessed of certain* mes- 
suages, buildtngB, and premises, sum and sums 
ef money, and other chattels and effects, and that 
£ven disputes had arisen between them touch- 
ing their accounts, reckonings, and dealings, and 
as to a diyiaion of the said copartnership mes- 
saagea, Ac.* and other their estate and efiects, 



and that they had agreed to refer the matter to 
the decision, &c. of J. C. and W. B., and that 
the said arbitrators should have power to direct 
a division of messuages, buildings, and premises, 
and other the partnership effects between them, 
and that each party thereby agreed to execute to 
the other a conveyance of the messuages, &c. ac- 
cording to such division between them, as the 
arbitrators should award. The award further re- 
cited, that the partnership between the defendant 
and the plaintiff had been dissolved by mutual 
consent. The arbitrators then awarded that the 
defendant should pay to the plaintiff the sum of 
223/. 4*. 6d. in full of all demands, in respect of 
his one equal moiety, half part, or share of the 
said copartnership property, estate, and effects ; 
and that upon payment thereof, and upon having 
such conveyances as thereinafter mentioned ten- 
dered to him for execution, the plaintiff should, 
at the defendant's request, execute a proper con- 
veyance unto and to the use of the defendant, of, 
in, and to certain messuages, d^c. therein men- 
tioned, subject to certain mortgage debts charged 
thereon. They also awarded, that all the debts 
then due and owing to and from the copartner- 
ship concern, should be received and paid by the 
defendant and the plaintiff in equal proportions ; 
and that, if either party should advance or pay 
any sum or sums of money over and above his 
half share or proportion of the copartnership 
debts, then the amount so overpaid should, on 
demand, be made good, and repaid to the party 
paying the same by the party making default. 
To an action upon this award, to recover the 
sum of 2232. is. 6d. from the defendant, he 
pleaded, (after setting out the award as above^, 
that the several messuages, drc. in the said 
award mentioned, and directed to be conveyed to 
the defendant, were the whole of the said copart- 
nership messuages, &c., and that there was not 
in the said award any other provision than those 
thereinbefore specified concerning the said co- 
partnership property, estate, and effects, or the 
division thereof, or any part thereof: — Held, on 
demurrer to this plea, that the award was final : 
that it was sufficiently certain : and that it was 
not inconsistent. Wood v. Wilson, 2 C. M. & 
R. 241. 114 

Quere, whether, upon the supposition that 
there had been no arrangement between the 
partners, by which the premises were ultimately 
to become the property of one partner, subject 
to the mortgages, the arbitrators did not exceed 
their authority in awarding the messuages, &o. 
to one of the parties, and not dividing them 
between boUi. Id. 

Covenantor and covenantee submitted the 
amount of damages accruing from a breach of 
covenantor to an abitrator: — Held, that in an 
action on the covenant, the arbitrator's award was 
conclusive as to the amount of damages, unless 
the award itself could be impeached. White- 
head V. TattersaU, 1 Adol. & Ellis, 491. 114 

A cause and all matters in difference were re- 
ferred by a rule of court to an arbitrator, who 
awarded that a particular balance was due from the 
plaintiff to the defendant, but did not order the 



92M 



[ARBITRATION] 



money to be paid by the plaintiff. He also 
awarded that tne plaintiff should pay costs with- 
out directing to whom . — Held, tnat if an action 
would lie on this award, no attachment could be 
granted on it as for disobedience of the rule of 
court. Scott V. Williams, 3 Dowl. P. C. 508 ; 
6 Tyr. 506 : S. C. nom. Hopkins v. Davis, I C. 
M. &R. 846. . ]]4 

An action for certain commission on the pur- 
chase of land, and all matters in difference' be- 
tween the parties, were referred to arbitration ; 
the costs of the suit and of the reference and 
award, and all other costs, to abide the event ; 
final judgment to be entered up for tlie plaintiff 
or defendant, according to the award, for any 
damages or costs awarded to either of them, and 
execution to issue. The arbitrator awarded, that 
the plaintiff had no cause of action against the 
the defendant, and that the plaintiff should pay to 
the defendant the sum of dbl. I3s. 4d., which he 
found to be due and owing from the plaintiff to 
the defendant. The arbitrator then declared 
that his award was not intended to exclude the 
plaintiff from the receipt of his commission on 
certain land purchased, to which he would be 
entitled under a certain agreement : — Held, that 
the arbitrator had no power given him to order a 
verdict to be entered, but merely to decide whe- 
ther the plaintiff had any cause of action against 
the defendant ; and that tlie award was suffi- 
ciently final. Harding v. Forshaw, 1 Mees. &> 
Wels. 415 J 4 Dowl. p! C. 761. 114 

After declaration, and before plea, a cause and 
all matters in difference between the parties 
were, by a judge's order, made by consent, re- 
ferred to arbitration, the costs to abide the event 
of the suit. The arbitrator awarded that a ver- 
dict should be entered for the plaintiff, with 55Z. 
damages, and that in all the other matters in differ- 
ence between the parties, there was not any sum 
of money due to either of the parties : — Held, 
that this was not equivalent to an award that the 
plaintiff should pay the defendant 55/.; and the 
court therefore refused an attachment to enforce 
the payment, either of the 55!. or of the costs. 
Donlan v. Brett, 4 Nev. d[, M. 854 ; 2 Adol. & 
Ellis, 344. 114 

By an order of Nisi Prius, three actions, and 
all antecedent causes of action between the par- 
ties wpre refered to the decision of an arbitra- 
tor. The first was an action on the case brought 
by D. against A. for disturbance of common ; the 
second was an action of trespass quare clausum 
fregit by A. against D. and P. : and the third was 
another action of trespass by A. against P., D., 
and L., which had not proceeded further than the 
pleas. By the terms of the submission, any 
other persons claiming rights of common over 
the locus in quo, and particularly one H., under 
whom the defendants justified m some of the 
pleas in the actions of*^ trespass, were to be at 
liberty to become parties to the reference ; and 
the object of the reference was declared to be for 
the purpose of ascertaining, securing, and regu- 
lating the rights of the commoners, and the ex- 
tent of certain woods and coppices as far as 
concerned the parties to the eference. In the 



action on the case, not guilty was pleaded. In 
the first action of trespass, the defendants pleaded 
not guilty, and several special pleas, upon which 
issues we/e loined. In the other action of tres- 
pass, not guilty and pleas justifying the trespasses 
were pleaded, but upon which noissue had been 
joined at the time when the matter was referred. 
In the action on the case for disturbance of com- 
mon, the arbitrator awarded, that a verdict should 
be entered for the plaintiff on certain counts in 
the declaration. In the action of trespass which 
was at issue, he found that the defendants were 
not guilty of the trespasses ; and, in the other, 
that the plaintiff had no cause of action a^inst 
the defendants. The arbitrator took no notice of 
the other issues ; but, in pursuance of the terms 
of the submission, declared by his award what 
the rights of the parties were as to the enjoyment 
of the common, and the inclosing of the woods 
in future. He then awarded that A., who was 
the defendant in the first mentioned action, and 
the plaintiff in the other two, should pay all the 
costs of the reference and award : — Held, first, 
that the award was final, and that all the matters 
material to the determination of the causes were 
sufficiently disposed of; secondly, that the arbi- 
trator not having been requested to decide on the 
other issues witn reference to the costs, he was 
not bound to do so ; — Held, also, that as H. did 
not become a party to the reference the arbitrator 
was not bouna to find any thing as to the rights 
of H. Dibben v. Anglesea (Marquis), 2 C. ib, M. 
722; 4 Tyr. 926; S. C. 10 Bing. 568. 114 

A banker conveys his real estate to two trus- 
tees upon certain trusts for the payment of his 
debts, and subsequently enters into an agreement 
with them as to the sale of the property ; af^r 
which he takes forcible possession of part of it 
and the trustees bring an action of ejectment 
against him, which, with another action, is re- 
ferred to the decision of an arbitrator. The 
award finds, that the creditors were entitled to 
recover in the action of ejectment, and directs 
that a sum of money which was due to the trus- 
tees, for expenses incurred by them in the execu- 
tion of the trusts, shall be paid by installments, 
and in default of payment, that the property shall 
be sold, and the proceeds applied in discharge of 
the debt due to the trustees: — Held, that the 
award was no charge upon the land, but that it 
did not destroy the lien thereon, which the deed 
had expressly given to the trustees for the ex- 
penses incurred by them in the execution of the 
trusts. £x parte Coppard, 4 Deac. & Chit. 102. 

lid 

In a suit instituted to enforce a pecuniary de- 
mand against the real and personal estate of the 
testator, an order was made by consent, referring 
all matters in difference between the parties in 
the cause to arbitration, and the arbitrators made 
an award, ordering the executor to pay a certain 
sum to the complainants in full satisfaction of 
all tlieir demands on him and his testator, but 
directing that certain other defendants who, under 
the testator s will, took interests m his real estate, 
should be at liberty to proseccte their claims 
against the testator's estate, in like manner as if 



[ARBITRATION] 



2295 



no order of reference had been made : — ^the award 
was held not to be final, and waa theFefore set 
aside. Turner v. Turner, 3 Russ. 494. 115 

A replevin anit, and all matters in difference 
touching the distress, were referred to arbitration, 
the costs of the suit to abide the event. The 
arbitrator awarded that the rent was 14^, and 
that &. were due for rent at the time of the dis- 
tress, that the plaintiff in replevin should pay 
the defendant 6^., and that the action should be 
no further prosecuted . It did not appear for 
what rent the deiendant had avowed : — Held, that 
the award did not show who ought to pay the 
costs, which were to abide the event of the suit ; 
and, consequently, that it was not final, in re 
Leeming, 5 B. ds Adol. 403 ; S. C. nom. Leeming 
V. Feamley, U Nev. & M. 'Ziii. 115 

An arbitrator, to whom a cause in dispute as to 
the amount of rent due, and an action of replevin, 
the merits of which are involved in tbat dispute, 
are referred, has no authority to award a stet 
processus. Id. 

A cause, (the declaration in which contained 
eight counts), and all matters in difference be- 
tween the plaintiff and defendant, were referred ', 
the costs of the cause, and of the reference and 
award relatmg thereto, to abide the event The 
arbitrators found that the plaintiff had good cause 
of action in respect of the matters charged in five 
of the counts, and awarded 61. damages, and di- 
rected that no further proceedings should be had 
in the causey but made no specific award as to 
the three remaining counts : — Held, that the 
award was not final, there being no determina- 
tion as to the three last-mentioned counts, and 
consequently no legal event as to them to autho- 
rise tne taxation of costs thereon. Norris v. 
Daniel, 4 M. & Scott, 383; 10 Bing. 507; 2 
Dowl. P. C. 798. 115 

Where a cause is referred to an arbitrator, it is 
not necessary that he should find for the plaintiff 
or defendant in the very words of the issue. It 
is snfficient if he decide substantially the ques- 
tion in dispute. Wykes v. Shipton, 3 Nev. di M. 
240. 115 

An award made upon a reference of a cause, 
and all matters in diference between the parties, 
is bad if it omit to assess damages upon a judg- 
ment of nil dicit upon a new assignment of ez- 



Where all matters in difference are referred 
to an arbitrator, an award directing the execu- 
tion of general releases closes all accounts be- 
tween the parties up to the time of the sub- 
mission. Trimingham v. Trimingham, 4 Nev. ik, 
M.786. 115 

To a declaration on an award, the defendants 

pleaded that, by an agreement to which they, who 

were the chorcnwardins and overseers of a parish, 

were parties of one part, and the plaintiff and 

one £. T., femiers in the parish, of the other part, 

xcciting that, in a rate for the relief of the poor 

the phuntiff and £. T., conceiving themselves to 

ite over-rated for certain property in proportion to 



other parishioners, had given notice to the defen- 
dants of their intention to appeal; that the defen- 
dants intended to defend the same, but that, as 
both parties had agreed to refer all matters in 
difference, no appeal had been entered ; and 
that, to determine on the propriety of the rate, so 
far as regarded the plaintiff and £. T., they had 
agreed to refer 4he various matters in difference 
to three arbitrators : it was witnessed, that the 
defendants so far as they lawfully might or could, 
as churchwardens and overseers, and also the 
plaintiff and E. T. respectively, agreed to abide 
by the award of the arbitrators, who were to 
award upon those matters in difference, as to the 
expenses of that agreement, and also as to the 
costs of the award ; the plea then set out the 
award verbatim, which directed the defendants to 
pay to T. E. T., the attorney of the plaintiff and 
E. T., 16/. 125., his bill already delivered, and 
also his further costs of attending the arbitration, 
^c. ; that they should pay to Messrs. A. & L. 
20/. 4s. for their costs of attending the arbitration, 
&c. ; that they should pay to Slessrs. A. & L. 
.57/. VJs. for tlie expenses of the arbitrators ; and 
that the defendants should deduct from all future 
rates charged upon the plaintiff 10^., and return 
him 10s. for every rate he had paid while the 
scheme was in operation; and as to the quantity 
of a lake occupied by the plaintiff, which was in 
dispute between them, they ordered the rate to be 
altered by the parish according to the schedule an- 
nexed to the award ; and, as to £. T., they ordered 
the defendant to repay him for every past, and to 
deduct from every future rate 5*. ; and the plea 
concluded thus : — "and the defendants in fact 
say, that the award is void and bad in law, and 
this they are ready to verify," &c. On special 
demurrer to this plea, on the ground that the 
plea referred to the jury what ought to be decided 
by the court : — Held, by Lord Abinger, and Bol- 
land, B., that the plea was good in lorm, but bad 
in substance, because the submission and award 
was void, as the principal matter referred could 
not legally be referred by the defendants, as pa- 
rish onicers ; that the parish were not bound by 
the decision of the arbitrators, nor the defendants, 
as parish officers, nor any other of the parish- 
ioners ; that the award being void with respect 
to the principal matter referred, it was also void 
as to the costs ; and tbat the award lefl one of 
the principal matters in so much doubt that the 
parties could not have the benefit of it, Parke, 
B., held that the plea was good in form and 
substance, and that the award was divisable; 
that though the defendants could not be com- 
pelled to perform the first part of the award re- 
specting the rate, yet that the award was ffood, so 
far as it directed tne defendants to pay me costs 
occasioned by the appeal, &c. and of the award ; 
that the fact of the quantity of the lake occupied 
by the plaintiff not being settled by the arbitra- 
tors, but directed by them to be measured by the 
parish, was not material ; and the amount of the 
attorney's costs, which the plaintiff alone was lia- 
ble to pay, might be fixed by evidence. Thorp ». 
Cole, 4 Dowl. P. C. 457; 2 C. M, & R. 367. 115 

Setting aside.'] — It is no ground for impeach- 
ing an award tbat the arbitrator has been mis 



52296 



[ARBITRATION] 



taken in point of law, as to the admissibility of 
certain evidence. Armstrong v. Marshall, 4. Dowl. 
P. C. 593. 116 

There is no distinction with regard to legal 
and other arbitrators ; and the court will not ex- 
amine an award, because it has been made by 
one who is not in the profession of the law. 
Jupp V. Grayson, 1 C. M. ^ R. 5:i53 ; 3 Dowl. 
P. C. 199 J 5 Tyr. 150. 1 16 

The court will not inquire into the validity o^ 
the decision of an arbitrator in point of law, not 
even where the arbitrator had merely power to 
certify. Wilson v. King, 2 C. i& M. 689; 4 Tyr. 
997. ' 116 

Qoere, if an arbitrator, having only a limited 
power, may deliver in with his certificate a writ- 
ten paper stating facts proved before him, so as to 
raise a question of law for the opinion of the 
court. Id. 

Where a cause and all matters in dispute are 
referred, a recital in the award that the action 
was referred, without mentioning other matters 
in di£Eerence, does not constitute an objection to 
the award on the face of it. Paull v. PauU, 2 
Dowl. P. C. 340 ; 2C. & M. 235 ; 4 Tyr. 72. 116 

Such an objection should be made the ground 
of a separate application to set aside the award, 
supported by affidavits showing what were the 
other matters in difference. Id. 

Where matters in difference are referred to a 
legal arbitrator absolutely, the court will not en- 
tertain a motion for reviewing his decision either 
upon the law or the facts. Ashton v. Pointer, 2 
Dowl. P. C. 651 ; 3 D«>wl. P. C. 201. 116 

If the reference is to a non-legal arbitrator, the 
court will review his decision as to a point of law, 
but not upon the facts, unless his award appears 
BO glaringly wrong as to induce a suspicion of 
misconduct. Id. 

Where a cause was referred to an attorney and 
another peraon, the court granted a rule for set- 
ting asioe the award upon a point of law. Id. 

An award made by a barrister cannot be im- 
peached on the ground of his having decided con- 
trary to law. Wade v. Malpas, 2 Dowl. P. C. 638. 

116 

Arbitnton having power to appoint an um- 
pire, nominated one accordingly, who made his 
award, reciting his nomination by them, but 
misdeschbing Die christian name of one of them : 
—Held, that, as in an action on the award the 
recital of the appointment of the umpire would 
be unnecessary, the award remainea in force, 
and an attachment lay to enforce it. Trew v. 
Burtoo, 1 C. dt M. 533 ; 3 Tyr. 559. 116 

The affidavit of publication of an award should 
flhow in the body that the^day on which it was 
00 puolished was within the time limited for 
making the award, but it is sufficient if the jurat 
show that it was sworn before that time had run 
out. id. 

If a stran^jer alter an inmiaterial part of an 
award after it is published, by striking out a 
wrong and inserting a right name, the award 
is not vitiated, and stands as before the alteration 
was made. Id. 



The court will not set aside an award on the 
ground that the arbitrator has made a mistake, 
where all the facts were placed before him, and 
he was competent from his occupation to judge 
of them, unless the court see clearly it was a 
mistake. Hardy v. Ringrose, 1 Har. di WoU. 185. 

116 

Where a submission to arbitration was made 
in a cause by agreement, and not by a judge's 
order, and af\er the award was published, the 
submission was made a rule of court ; the court 
considered itself bound by analogy to the stat. 8 
<& 9 Will. 3 ; and refused to set aside the award 
after the period of limitation had expired. Rush- 
worth V. Barrron, 3 Dowl. P. C. 317; 1 Har. & 
Woll. 122. 1 18 

A clause in a deed of submission to arbitar- 
tion, ^* that no action or suit at law or in equitj 
shall be commenced or prosecuted against the ar- 
bitrators concerning their award when made, nor 
to impeach the said award, unless some collusion 
or other fraud be discovered or appear therein,'* 
does not prevent a party to the deed from moving 
to set aside, (for illegality upon the face of it), 
though no fraud or collusion appear. In re 
Mackay, 2 Adol. & Ellis, 356. 11 8 

Applications to set aside awards made under a 
judge s order of reference are now put on the 
same footing as to time, as if the awards were 
made under the 8 & 9 Will. 3 ; but if the party 
affected has not notice of the award sufficientlv 
early to enable him to move within the time al- 
lowed by the act, he may move to set it aside in 
the term next aflerthe notice. Potter v. Newman, 
4 Dowl. P. C. 504; 2 C. M.& R. 742; 1 Tyr. A 
G. 29. 118 

A motion to set aside an award made in the 
Common Pleas at Lancaster under an order of 
Nisi Prius cannot be made in banco, under 4 & 5 
Will. 4, c. 62, s. 26, though a verdict was taken 
subject to the award, but must be made before a 
single judge. Byrne o. Fitzhugh, 5 Tyr. 221 . 

A rule nisi to set aside an award ought to 
state specifically the particular grounds of objec- 
tion. Boodle V. Davies, 4 Nev. £ M. 788; 1 Har. 
&, Woll. 420: 8. P. Whately v. Morland, 2 C ^ 
M. 347; 2 Dowl. P. C. 249; 4 Tyr. 255. 119 

It is not sufficient to state generally that the 
arbitrator has exceeded his authority, or — ^that 
the award is uncertain and not final. Id. 

Where the time for making an award is en- 
larffed by a^rreement, there being no authority for 
such an enlargement in the original submission, 
the new agreement must be made a rule of court 
before an attachment can issue for non-perform- 
ance of an award made during the enlarged 
period. M 'Arthur v. Campbell, 2 Nev. & M, 
444 ; 5 B. <& Adol. 518. 119 

An award is published when the arbitrator 
gives the parties notice that it may be had on pay- 
ment of his charges, whether they be reasoiudue 
or not. Id. 

The rule of £. T. 2 Geo. 4, requiring the 
grounds of objecting to nh award to be stated 
upon a rule nisi to set it aside, applies to the 
certificate of an arbitrator empowered to asoer- 



[ARBITRATION] 



3207 



tein the unoant doe from the defendant to the 
pUm^ and to certify the same to the associate, 
by whom a verdict is to be entered accordingly. 
Carmichael v. Houchen, 3 Nev. & M. 203. 119. 

A rule to set aside an award made after action 
commenced, on account of objections to the de- 
claration, need not refer to the declaration, as it 
is sufficiently before the court. Sherry v. Oke, 3 
Dowl. P. C. 349 ; 1 Uar. & WoU. 119. ] 19 

A rule for setting aside an award must appear 
on the lace of it to be drawn up on reading the 
award itself, or a copy of it ; and the court will 
not allow it to be amended. Id. 

An award made in pursuance of an order of 
Nisi Prins, referring a cause and other matters in 
di^ience, may be objected to at any time before 
the end of the term next after the publication 
Allenby v. Proudlock, 4 Dowl. P. C. 54 ; 1 Har. Hl 
Woll.357. 119 

In stating the grounds on which it is sought to 
Kt aside an award, it is not sufficient to state a 
general head of objection as ^* misapprehension 
of the terms of the reference.'* Id. 

A motion to set aside an award made under a 
judge's order must be made promptly af\er the 
party knows of the award being made. Worrall 
V. Deane, 2 Dowl P. C. 261. 119 

Where such a motion was made after two terms 
had elapsed, the court discharged it with costs, 
thouffh it was alleged by the party moving that 
be did not believe that the other party intended 
to proceed upon the award, as there Had been a 
previous revocation. Id. 

A motion to set aside an award made under 
an order of Nisi Prius, must be made within the 
first four days of the next term, though it is for 
objections apparent on the face of the award. 
Sell V. Carter, 2 Dowl. P. C. 245. 119 

A motion to set aside an award under a judge's 
order must be made within the term ensuing the 
making of the award, although the arbitrator de- 
mands an excessive fee, and a copy is not in con- 
sequenee obtained by either party until a few 
days before the time when the application is 
made. M* Arthur v. Campbell, 2 Nev. d> M. 444 
5 B. dk Adol. 518. ' 119 

Where, from the misconduct of one of the par- 
ties to an award, the submission cannot be made 
a rale of court, so as to enable the opposite party 
to make it a rule of court before the last day but 
one of the 6r8t term after the award, the time for 
. a motion to set it aside will be enlarged until the 
following term. In re Perring, 3 Dowl. P. C. 98. 

119 

A role nisi to set aside an award under an 
seder of Nisi Prius having been discharged on a 
mere technical objection: — Held, not too late to 
move for a second rule after the first four days of 
the term next after the award was made . Sherry 
«. Oke, 3 Dowl. P. C. 349; 1 Har. & Woll. 119. 

119 

The coort allowed a fresh affidavit to be filed 
in sopport of rule nisi to set aside an award the 
day aner the rule was made. Perrin v. Kymer, 
1 Har. dfc Woll. 20. 119 

Where there is a doubt about the validity of 



an award, the court will neither set it aside, nor 
grant an attachment, but leave the party to bring 
an action : secus when a verdict has been taken. 
Burley v. Stevens, 4 Dowl P. C. 770 ', 1 Mees. & 
Wels. 156. 119 

Enfordnff.'] — ^The defendant being taken under 
an attachment for non- performance of an awards 
went to prison, and, though he was able to pay, 
he refused so to do, perversely decla^'ing that he 
would rather go to jail than pay. The plaintifiT 
then commenced an action upon the award ; and 
on motion that the plaintiff might be compelled 
t*) discontinue, or the defendant might be dis- 
charged out of custody, the court ordered him to 
be discharged, on giving a bond to the plaintifiT, 
with sureties to ih.e master's satisfaction, con- 
ditioned to the same ePect as in the case of a re- 
cognizance of bail. Lonsdale (Earl) v. Whinnay ;, 
I C. M. & R.591; 3 Dowl. P. C. 263; 5Tyr. 
203. 120 

Where, in an action of trespass, the time for 
making an award, pursuant to an order of Nisi- 
Prius, expires before the award is made, and the 
arbitrator has not enlarged the time, as em- 
powered by the order, the court will, under cer- 
tain circumstances, direct judgment to be signed 
and execution issued, for the sum for which the 
jury find, subject to the reference, unlesr th<-. en- 
largement is consented to. Wilkson v. Time. 
4 Dowl. P. C. 37; 1 Har. & Woll. 351. 120 

A cause was refered at the assizes, and by 
consent a verdict was entered for the plaintiff, 
damages 50/., costs 40^., subject to the award of 
an arbitrator. The time for making the award 
expired without an award being ma& ; the time 
was further enlarged by consent, and the enlarg- 
ed time having also expired without an award 
being made, the plaintifiT gave notice of trial, and 
proceeded to the trial of the cause, and obtained 
a verdict. A judge's order having been previ- 
ously obtained for altering the record in the dis- 
tringas, the clerk of assize at the trial erased the 
indorsement of the previous verdict, and entered 
the new verdict in the usual way. The court set 
aside the latter verdict for irregularity. £vans v. 
Uavies, 3 Dowl. P. C. 786 ; 1 Gale, 15D. 120 

Where, by order ofNis^ Prius, a verdict was 
taken for the plaintiff, subject to an arbitration* 
which was not entered upon, through the default 
of a third party, the plaintiff may apply for leave 
to enter and try the cause de novo. Bacon v. 
Cresswell, 1 Hodges, 189. 120 

Where it was on the terms of an agreement to 
refer disputes to arbitration, that the sabmision 
might be made a rule of a court of law at the op- 
tion of either party, and a bill having been filed 
to set aside the award, it appeared by the answer 
of the defendant that the submission had been 
made a rule of the Court of Kind's Bench by the 
defendant, subsequently to the filing of the bilL 
the common injunction which had be^n obtained 
by the plaintiff was upon appeal dissolved, the 
Lord Chancellor holding that the Court of Chan- 
cery had no. jurisdiction to relieve against the 
award. Niclfols v. Roe, 3 Mylne St feen, 431. 

120 

Where a verdict hasbeen found subject to a 



2298 



[ARMY AND NAVY— ARREST] 



I 



reference, and the award has not been until some 
terms afterward, judgment cannot be entered up 
as of the term next ailer the verdict, without a 
special application to the court Brooke v. Fearns, 
2 Dowl. P. C. 144. 121 



ARMY AND NAVY. 

A writ of prohibition cannot issue to a court- 
martial afler sentence pronounced by the court 
and ratified by his Majestj, and execution by 
dismissal from the army, m pursuance of such 
aentence. In re Foe, 2 Nev. &. M. 636; 5 fi. <& 
Adol. 681. 124 

It is not necessary, in order to make a man in- 
rolled as a volunteer, an efiective member of his 
corps, that he should have taken the oath of al- 
lei^iance required by the volunteer act, 44 Greo. 3, 
c 54, s. 20. Rex v. Witnesham. 4 Nev. <^ M. 
447 ; 2 Adol. & Ellis, 648 ; I Har. Sl Woll. 43. 

124 



ARREST. 

For wkat cause of Action.'] — Arrears of annui- 
ty. Anerson v. Bell, 2 C. & J. 630 ; 2 Tyr. 732. 

127 

Where an action is pending at the suit of a 
bankrupt, and the assignees arrest the defandant 
for the same cause of action, it is not vexatious. 
Barnes v. Maton, 3 Dougl. 186; 1 Tidd's Prac. 
170; 15 East, 613, n. 127 

Second Arrest.'] — Where a defendant, being in 
custody on mesne process, was discharged on the 
tenns of his givin? bills, which he neglected to 
do, and the plaintiff arrested him again without a 
fresh affidavit or a judge's order, the second arrest 
was held to be regular. Cantellow v. Freeman or 
Trueman,2 Dowl. P.^C. 2; 1 C. &> M. 536; 3 
Tyr. 579. 128 

Where a defendant was arrested in Ireland for 
the amount of a bill of exchange, and gave bail 
there, which were discharged lor a defect in the 
affidavit to hold to bail ; and the plaintiff, having 
afterwards got jud^ent in Ireland, arrested the 
defendant a second time : in an action in this 
country on the judgment — Held, that the defen- 
dant was entittled to his discharge. Gunn v. 
M'Clintock, 2 Dowl. P. C. 660 ; 2 C. <& M 668 ; 
4 Tyr. 988. 128 

A party may arrest a defendant without dis- 
continuing a previous action commenced by ser- 
viceable process for the same cause, though 
within two days of the day for which the cause 
was set down for trial. Brickline v. Small wood, 
3 Dowl. P. C. 569 : S. 0. nom. Burdakin v. Small- 
wood, 1 Har & Woll. 187. 128 

If a first writ is discontinued, and the costs are 
taxed and paid, it is not necessary that the plain- 
tiff should give the sheriff notice of such discon- 
tinuance, or serve the rule on him before arrest- 
ing the defendant on a fresh writ ; and the court 
refused to discharge a defendant from such second 
arrest, on the ground that the discontinuance of 
Ihe firat action was incomplete on account of that 



omission. But they would have relieved against 
any actual damage sustained by the defendant 
Price ». Day, 3 Dowl. P. C. 463; 5 Tyr. 456. 

128 

A plaintiff may arrest a defendant afler suing 
out three serviceable writs, the action com- 
menced by which he has not discontinued. Chap- 
man tj.Vandevelde, 3 Dowl. P. C. 313. 128 

A defendant was arrested for the sum of 701.^ 
but it appearing that to part of that amount the 
defendant had a defence under the statute of 
limitations, it was agreed that he should be dis- 
charged out of custody on giving a bill of ex- 
change for 201. drawn by a third person, and 
accepted by himself The defendant having been 
again arrested on the bill : — Held, that the de- 
fendant was not entitled to be discharged out of 
custody, as having been a second time arrested 
for the same debt. Hamber v. Cooper, 2 C. JM.^ 
R. 148; 3 Dowl. P. C. 671; 1 Gale, 103. 128 

A plaintiff cannot lodge a detainer against a 
defendant, and then, having on the ground of 
a defect in the writ, treated it as a nullity, lodge a 
second detainer against him. Gadderer v. Shep- 
pard, 4 Dowl. P. C. 577. l& 

A bailable writ having been issued against a 
defendant upon an affidavit of debt lor the 
amount of several bills of exchange, the defen- 
dant's attorney gave an undertaking for the defen- 
dant, who was not arrested; an agreement was 
then made, by which the plaintiff forbade any one 
to proceeded m his name without his authority 
and he agreed to give three months' notice before 
he proceeded on the bill transactions between 
them, and that ag^reement was to set aside any 
writ or writs then issued against the defendant. 
The plaintiff's attorney afterwards gave three 
months, notice that he should proceed, and a 
new writ was sudsequentlv issued upon a fresh 
affidavit, upon which the defendant was arrested. 
Upon a motion to stay proceedings, and that the 
defendant might be discharged:— Held, that the 
second writ was regularly issued without discon- 
tinuing the first action, as nothing had been done 
upon the first writ, and sixteen months had 
elapsed since it was issued; but that the agree- 
ment meant that the defendant should have^iive 
months* notice from the plaintiff himself, and 
that a notice given by the attorney was insuf^ 
ficient ; and, on the latter ground, the defendant 
was discharged out of custody. Ryves v. Bunninff 
3 Dowl. P. C. 817. iS 



Affidavit of Debt.'] — A party may be arrested 
a second time on me same affidavit, where the 
first action has been discontinued, and the second 
proceeding is with the same filacer. Richards v. 
Stuart, 10 Bing. 323 ; 3 M.& Scott, 778; 2 Dowl. 
P. C. 754. 131 

A capias into Sussex was issued upon an afii- 
davit filed with the filacer for Sussex, and re- 
turned non est inventus: — Held, that an alias 
capias might be issued by continuance intd an- 
other county on the same affidavit. Coppin «. 
Potter, 10 Bmg. 441 ; 2 M. & Scott, 272 ; 2 Dowl. 
P. C. 785. 131 



[ARREST] 



22M 



In tn affidavit to hold to bail, the deponent 
waa deacribed aa ^ J. S., of Bath, in the county 
of Someraet, Eaq.:'* — Held sufficient. Id. 

Where concurrent writs of capias are issued, 
there should be an affidavit of debt filed with the 
filacer of each county. Dunne v. Harding, 4 M. 
&, Scott, 450. 131 

An affidarit of debt, sworn before the deputy 
signer of bills of Middlesex, before 2 Will. 4, 
c. 39, waa in force, was held sufficient to autho- 
riie the issuing of a writ of capias since that act 
came into operation Young v. Beck, I C M. 
AR.448;'i Dowl. P. C. ^ ; 5 Tyr. 24, over- 
ruling Beck V. Young, 2 Dowl. P. C. 462. 133 

An affidavit of debt, sworn before a commis- 
iioner, need not be entitled in any court Ur- 
qohart v. Dick, 2 Dowl. F. C. 17. 131 

An affidavit of debt was filed April 9, with the 
filacer for SurreVi and a capias issued into Surrey 
on the 7th* of May ; and in November, an alias 
capias thereon issued into Middlesex, no fresh 
affidavit being filed, the filacer for Surrey and 
Middlesex being the same person : — Held regu- 
lar Rantsden v. Maugham, 2 C. M. &- R. 634 ; 
4 Dowl. P. C. 403 ; 1 Tyr. 6l G. 40. 132 

A stale affidavit means one sworn above a year 
ago. Id. 

Where an affidavit of debt was sworn in Ire- 
land, before a commissioner of Common Pleas 
and Exchequer : — Held, that the title of the court 
need not be prefixed to the affidavit when sworn ; 
bat that the affidavit might be taken before such 
commissioner, to be afterwards intituled and used 
m either court Perse v. Browning, 1 Mees. A 
Wels. 362. 132 

Where a writ of capias was issued on a good 
affidavit of debt, and afterwards another into an- 
other county, upon a defective affidavit, on which 
the defendant was arrested: — Held, that th'' 
arrest was regular, as the first affidavit, being^ 
sworn before the same officer who issued both 
writs, would warrant the issuing of the second 
writ without a fresh affidavit. Rock v. Johnson, 
4 DowL P. O. 405. 1?2 

In an affidavit to hold to bail, made by a third 
person, it is not necessary to show any connexion 
Detween the deponent and the plaintiff. Short v. 
CunpbeU, 3 Dowl. P. C. 487 ; 1 Gale, 60. 132 

An affidavit made by a person, who described 
himself as agent and collector to the plaintiff, an 
hjlel-keeper : — Held sufficient. Id. 

An affidavit to hold to bail, for a debt stated 
therein to be due to A. and B., is good, though 
the plain tifiSi are partners, and are not stated 
to be BO in the affidavit. Bodfield v, Padmore, 5 
B. & Adol. 1096. 134 

An affidavit, made by the assignee of a bank- 
mpt, for a sum of money " for interest agreed to 
be paid by the defendant, as appears to this de- 
ponent bv the books of account of the bankrupt, 
and as this deponent verily believes to -be true," 
is sufficient, Harrison v. Turner, 4 Dowl. P. C. 
73; 1 Bar d^ WoU 346. 134 

Semble, that the allegation that the defendant 
indebted to plaintiff in a sum stated will not 

Vol. IV. 4 



aid an affidavit to hold to bail, wliich is otherwise 
insufficient. Brooke v. Coleman, 1 C & M. 621 ; 
8 Dowl. P. C. 7 ; 3 Tyr. 593. 134 

An affidavit to hold to bail for debts due on 
several accounts, on which the defendant is ar- 
rested for the aggregate of all the sums due, is 
bad in toto, if bad as in any of the debts stated, 
and the defendant will be (fischarged. Baker v* 
WiUs, 2 C. & M. 415 ; 3 Tyr. 182. 134 

Ad affidavit that the defendant is indebted 
upon and by virtue of a mortgage deed in the 
sum of 500/., by which the defendant covenanted 
to pay that sum at a certain day now past, is suffi- 
cient, without averring that Uie money was not 
paid at the appointed day. Masters v. Billing, ' 3 
Dowl. P. C. 751. 136 

An affidavit grounded on a covenant by deed 
to pay a certain sum at a day named, is good, if 
it state the defendant to be indebted to the plain- 
tiff, upon and by virtue of the indenture in the 
said sum of &c , *' at a day now passed," without 
alleging it to be due and unpaid. Lambert v. 
Wray, 1 C. M. & R. 576; 3 Dowl. P. C 169; 
5 Tyr. 195. 136 

An affidavit of debt for a sum due on a bill or 
note, must expressly state for what sum the bill 
or note was drawn. Raeket v. Gye or Guy, 3 
Dowl. P. C. 554; 1 Har. & WoU. 198: S. P. 
Brooke v. Coleman, 1 C. & M. 621 ; 2 Dowl. P. 
C. 7 ; 3 Tyr. 593 : Westmacott v. Cook, 2 Dowl. 
P. C. 519. 137 

If it does not state the amount, the bail bond 
will be set aside with costs. Molineux v. Dorman, 

3 Dowl. P. C. 662. 137 

A defendant, against whom a capias issued, 
and afterwards an exigi facias, rendered himself 
to the custody of the sheriff, who, for default of 
bail, put him in prison. The affidavit of debt 
was for 20/. and upwards, on a promissory note, 
but it did not state the amount for which the pro- 
missory note was drawn. The defendant brought 
trespass for false imprisonment against the plam- 
tiff m this action : — ^Held, that such action would 
not lie while the writ was in existence, though, if 
the defendant had applied to the court, he would 
have been discharged out of custody. Reddell v. 
Pakeman, 3 Dowl. P. C. 714. 137 

An affidavit, stating that a sum is due for prin- 
cipal and interest on a promissory note for a cer- 
tam amount, bearing ^interest, is sufficient, with- 
out distinguishing how much is due for principal, 
and how much for interest. Drake v. Haidrng, 

4 Dowl. P. C. 34 ; 1 Har. &. WoU. 364. 1^ 

But it must be made to appear tliat the amount 
due for principal is large enough to warrant an 
arrest. LatreiUe v. Hoepfner, 3 M. & Scott, 800 ; 
10 Bing. 334 ; 2 Dowl. P. C. 758. 137 

Semble, that an affidavit by the indorsee of a 
bill need not state by whom the bill was indorsed 
to the plaintiff. Mammatt v. Mathew, A M. A 
Scott, 356 ; 2 Dowl. P. C. 797. 137 

An affidavit on a note payable by instalments 
should show tiiem to be due, and it will not be 
sufficient to state that the said som has not been 
paid. Hart v. Myerris, 3 Tyr. 238. 137 



tsoo 



[ARREST] 



An affidavit to hold the drawer of a biU, or in- 
doTBer of a note, to bail, should state that the ac- 
ceptor or maker had not paid the amount. Smith 
V. Escudier, 3 Tyr. 219: S. P. Crosby v. Clarke, 
1 Mees Sl Weis. 2C6: S. P. contra Irving v. 
Heaton, 4 Dowl. F. C. 63d. 137 

An affidavit on a bill (by indorsee against ac- 
ceptor) need not aver a presentment for payment. 
Usbome r. Pennell, 4 M. & Scott, 431. 137 

In an affidavit of debt against the drawer .or 
indorsor of a bill of exchange, it is sufficient to 
allege a default by the acceptor, without averring 
a presentment or notice. Witham v. Gompertz, 
4 Dowl. P. C.382; 2 C. M. & R. 736; 1 Gale, 
301 ; 1 Tyr. & G. 6. 137 

The date of bills or notes need not be stated 
in an affidavit, if it appear in the affidavit that 
the day of payment of the bils is passed Shirley 
V Jacobs, 3 Dowl. P. C. 101 ; I Scott, 67 : S. P. 
Irving V. Heaton, 4 Dowl. P. C. 6:i8 ; Weedon r. 
Medley, 2 Dowl. P. C. 689. J 37 

[n an action by the indorsee against the drawer 
of a bill of exchange, the affidavit of debt alleged 
that the defendant was indebted to the plaintiff 
on the bill which was over due, and that the 
money was still due and owing, but it omitted to 
aver either presentment or notice : — Held bad. 
Simpson v. Dick, 3 Dowl. P. C. 731. 137 

An affidavit of debt on a bill, which states that 
the defendant is indebted on the bill, which was 
payable at a day past, is sufficient, without stat- 
ins that the bill was not paid when due, or that 
it IS still unpaid. Phillips r. Turner, 3 Dowl. 
P. C. 163 ; 1 C. M. A R. 597; 5 Tyr. 196. 137 

In an affidavit on two acceptances of the de- 
fendant, the consideration was stated to be for 
goods sold by the plaintiff: — Held, that the state- 
ment of the consideration was surplusage, and 
might be rejected, and did not entitle the defen- 
dant to be discharged out of cutsody on filing 
common bail. Ibbotson v. Andrew, 1 Alcock & 
Napier, 1»9, {Irish). 137 

An affidavit of debt, stating it to be for goods 
delivered by plaintiff and his late partner, is msuf- 
ficient. Edgar 9. Watt, 1 Har. «& Woll. 108. 139 

An affidavit of debt, for the price of goods gua- 
ranteed by the defendant, without showing on 
what terms, or that the time for payment had ex- 
pired : — Held bad. Angus r. RobQliard, 2 Dowl. 
P. C. 91. 139 

An affidavit of debt, for goods sold and de- 
livered to, and for money paid and laid out for 
S., the wife of the defendant, before his intermar- 
riage with her : — Held insufficient. Gray r. 
Shepherd, 3 Dowl. P. C 442. 139 

In an action by husband and wife against hus- 
band and wife, the affidavit to hold to bail stated 
the defendants to be indebted*** for goods deliver- 
ed and sold by the plaintiff's wife to the defen- 
dant's wife," not stating the transaction to have 
taken place before their respective marriages. 
The defendant bavin • failed in an attempt to 
justify bail, moved to set aside the bail-bond, on 
the ground of the above irregularity. The court 
dis(marged the rmla on tsms. Morgan v. Davies, 
1 Scott, Sn. 130 



In an action by hoaband and wife, administra- 
trix, on a bond given to the intestate, it is no ob- 
jection to the affidavit to hold to bail that the de- 
fendant is alleged to be indebted to the husband 
and wife, administratrix ; or that the affidavit 
omits to state that the deceased died intestnte, or 
to whom the sum mentioned in the condition is 
made payable ; the same degree of precision not 
being required in an affidavit as in a declaration. 
Coppin V. Potter, 4 M. & Scott, 272; 10 Bin^. 
441 ; 2 Dowl. F. C 785. J& 

An affidavit of debt for ^ money lent and ad- 
vanced and interest thereon," is bad. Callum r. 
Leeson, 2 C. db; M. 406 ; 2 Dowl. P. C. 381 ; 4 
Tyr. 266. 139 

An affidavit to hold to bail for money lent was 
held bad, for not stating by whom the money was 
lent. Smith r. Stevens, 3 Tyr. 219. 139 

A defendant may be held to bail for interest, if 
due by contrast, rickman v. CoUis or Collins, 3 
Dowl. P. C. 429 ; 1 Gale, 47. 139 

An affidavit of debt for 5002., for money lent, 
and interest thereon, and on an account stated^ 
without noticing a contract for interest : — Held 
sufficient. Id. 

An affidavit of debt, part of which was for in- 
terest, not stating expressly the contract on which 
the interest was payable . — ^Held good White v. 
Sowerby, 3 Dowl. P. C. 584 ; 1 Har. & Woll. 'il3. 

139 

Semble, that if, in an affidavit of debt for prin- 
cipal and interest, a sum and date are mentioned, 
from which interest can be computed, it is not 
essential that the ^imonnt of interest claimed 
should be specifically mentioned. Rogers v. God- 
bold, 3 Dowl. P. C. 106. 139 

An affidavit of debt for money paid, laid out, 
and expended, ** to and for the use and on account 
of the oefendant : " — Held sufficient. Harrison v. 
Turner, 4 Dowl. P. C. 72 ; 1 Har. & WoU. 346. 

139 

In an affidavit to hold to bail, it was stated 
that a sum was due for money lent and advanced, 
&c., and for money due and payable for interest 
upon, and for the forbearance of divers sums of 
money due and payable, and by plaintiff forborne 
at the request of the defendant ■ — Held that the 
special contract to pay interest was not suffi- 
ciently stated. Drake v, Harding, 4 Dowl. P. 
C. 34 ; 1 Har. &, WoU. 364. 139 

An affidavit to hold to bail, stated the defen- 
dant to be indebted to the plaintiff in SOOT, for 
money paid, Ac, to and for his use, and at his 
request, and for interest due and owing from and 
a^eed to be paid by the defendant to the plain- 
tiff for and in respect thereof: — Held sufficient. 
Hutchinson v, Hargrave, 1 Scott, 269; 1 fiing. 
N. R. 369. 1& 

Ai> affidavit of debt which is bad in part is bad 
altogether. Rackett r. Gye or Guy, 3^ Dowl. P. 
C. 5u4 ; 1 Har. & Woll. 198 : S. P. Drale v. Har- 
ding, 4 Dowl. C. 34 ; 1 Har. 6l Woll. 364. 

140 



[ARREST] 



2d01 



A defendant waives an objection to an affidavit 
of debt by inducing the plaintiff to accept of cer- 
tain penons as bail, by affecting to acquiesce in 
the decision of a singrle judge as to the suffi- 
ciency of the affidavit. Mam matt v. Mathew, 2 
Dowl. P. C. 797 ; 4 M. & Scott, 356; 10 Bin?. 
506. 140 

Where the arrest was on the 22nd of May : — 
Held, that it was too late, on June 4, to obtain 
the defendant's discharge on the ground of a de- 
feet in the affidavit, the sheriff having in the 
meantime been ruled to return the writ, and 
m^ide his return. Firiey v. Raliett, 2 Dowl. F. C. 
708. 140 

After a rule nisi had been obtained for cancel- 
ling a bail bond for a defect in the affidavit to 
hold to bail, the plaintiff offered to consent to a 
judge's order to the same effect, the coats to be 
costs in the cause, and no action to be brought : 
— Held, that noti^itlistanding this offer, the de- 
fendant was entitled to have his rule made abso- 
late, with costs. Clarke v. Crockford, 3 Dowl. 
P. C. 693. 140 

Semble, that where costs have been incurred 
by the delay of the defendant in objecting to a 
defect in the affidavit of debt, the court will not 
order the bail-bond to be delivered up to be can- 
celled, although the defect be in some degree one 
in substance and not in form. Morgan v. Bay- 
lis8,3Dowl. P. C. 117. 140 

Semble, where a summons is taken out at 
chambers, on the eighth day after the arrest, to 
discharge the defendant out of custody, on ac-^ 
count of a defect in the affidavit to hold to bail, 
iriiich summons is returnable the following day, 
the application is not too late, unless it appears 
on what part of the day the defendant was ar- 
rested. Johnson v. Kennedy, 4 Dowl. P. C. 345 ; 
2 Scott, 410. 140 

Where a defendant is held to bail, or detained 
by virtue of a judge's order, he is not bound to 
apply either to the same or to another judge at 
chambers to rescind the order, or to discharge 
him from custody, on the ground of defects m 
the affidavit of debt : the application is properly 
delayed till the court is sitting. Id. 

Two months* delay in taking the objection to 
the affidavit of debt, that it is not sworn before a 
proper commissioner, is not a waiver of it. Sharpe 
V. Johnson, 4 Dowl. P. C. 324 ; 2 Scott, 407 ; 1 
Hodges, 206 ; 2 Bing. N. R. 246. 140 

Pritiitrejrom Arrest.] — A king*s chaplain is 
privilegea from arrest ; and if he has been arrest- 
ed and has riven a bail bond, the court will, on 
motion, onfer the bail bond to be cancelled. 
Bym V. Dibdin, 1 C. M. A R. 821 ; 3 Dowl. P. 
d. 448; 1 Gale, 58 ; 5 Tyr. 357. 141 

A lord of the bedchamber is privileged from 
anest Aldridge v Barry, 3 Dowl. P. C. 450, n. 

141 

The coort refosed to interfere, on motion, for 
the purpose of relieving a defendant who had 
been held to bail, on me ^rround of his being 
the Somerset herald, and liable to be called on 
ts attend the king, whenever and wherever he 



chose, it not appearing clearly by the affidavits 
what were the duties of his omce, and no in- 
stance shown of the claim being allowed. Leslie 
V. Disney, 3 Dowl. P. C. 437; I C. M. & R. 578 ; 
5Tyr. ItJl. 141 

Where there is any doubt, the rule is to leave 
such persons to their writ of protection. Id. 

The privilege of freedom from arrest of an 
ambassador's servant, is the privilege of the 
ambassador, and not of the servant. Fisher v. 
Begrez, 2 C. tfe M. 240; 3 Tyr. 184 ; 2 Dowl. P. 
C.279; 4 Tyr. 35. 142 

Where a person alleged to be a domestic ser- 
vant of an ambassador is arrested, and neither 
the ambassador nor any one on his behalf inter- 
feres, the court will not discharge the defendant 
out of custody, unless he shows a clear case of 
bona fide service as a domestic servant to the 
ambassador. Id. 

Quoere what goods of a person actually privi- 
leged would be protected from execution ? Id. 

A party taken under an irregular writ is priyi- 
le^red from arrest in returning from the chambers 
otthe judj^ who has discharged him. Rex v. 
Blake, 2 Nev. ^k M. 312; 4 B. <Sk Adol. 355. 143 

So, although his attendance before the judge 
be voluntary : as where he is brought up under a 
habeas corpus obtained by himself. Id. 

A party who has been detained upon a criminal 
charge, and tried, acquitted, and discharged, is 
not privileged from arrest during his return 
home from the jail in which he has been con- 
fined. Goodwyn v. Lordon, 3 Nev. & M. 879; 
3 Dowl. P. C. 504 ; 1 Adol. & Ellis, 378. 143 

A slight deviation will not deprive a party re- 
turning from attendance in a court of justice of 
his privilege from arrest. Pitt v. Coombs, 3 Nev. 
A M. 212 ; 5 B. & Adol. 1078. 143 

A person who is subpoenaed in a criminal pro- 
secution tried in the K. B. sittings, but who is 
committed for a contempt of that court, in strik- 
ing the defendant, has the same privilege from 
arresi in returning home from the prison after 
his imprisonment has expired, that he would have 
had in returning home from the court if he had 
not been committed. Rex v. Wigley, 7 C. & P. 
4~Coleridge. 143 

A defendant who has been wrongfullv arrest- 
ed upon a Sunday, upon a charge of*^ forgery, 
without any warrant, may be lawfully arrestea 
upon civil process as he is leaving the police- 
office afler he has been ordered by the magistrate 
to be discharged. Jacobs v Jacobs, 3 Dowl. P. C. 
675. 143 

A witness attending, at the request of a party, 
sn arbitrator under a submission to be made a 
rule of court, is privileged from arrest. Rishton 
V. Nisbett, 1 M. & Rob. 347— Alderson. 143 

The defendant, an attorney, was arrested at the 
Auction Mart Coffee-house, between two and 
three o*clock p. m. The statement in his affidavit, 
in support of a motion for his discharge, on the 
ground that he was privileged eundo, was, that 
having professional business in several cases to 
transact in the £xch., he was prospeding through 



2302 



[ARREST— ASSUMPSIT] 



the city of Londoo, <m hit waj to Westmhurter 
Hall for that poxpoie, and oo arriTiiiff at the 
Bank of England leeollected that he bad bnai- 
neea with a client, whom it was probable he 
shoold find at the Auction Mart ; that he there- 
fore called there in bis wa^ to Westminster Hall, 
and saw his client, and just as he was aboat to 
leave him for the purpose of proceeding to West- 
minster, he was arrested in this cause : — Held, 
that on this statement he was not entitled to the 
priyilege. Strong v. Dickenson, 1' Mees. A Wels. 
488. 143 

A. having been arrested whilst he was privi- 
leged, as attending on a summons at a judge's 
chamber, the judge made an order for his dis- 
charge out of ciutodj, on condition that if B.^ 
the officer who made tbe arrest, paid A. his costs, 
to be taxed by the master, A. should not brine anjr 
action for the arrest. The costs were taxed, and 
the amount was accordtnglj paid. A , however, 
subieqnentljr obtained an order for the master to 
review his taxation, which tlie master according- 
ly did, and allowed A. a further sum for costs. 
This B. refused to pay, upon which A. brought 
an action of assumpsit acainst B., as upon an 
agreement by him to pay the costs, in considera- 
tion «that A. would relinquish all right of action 
against B. on occasion of the arrest : — Held, that 
under these circumstances the action was not 
maintainable. King v. Taylor, 2 G. M. & R. 
235. 143 

A., being indebted to B., B. sued out bailable 
process, which he delivered to the sheriff to exe- 
cute, and the sheriff arrested A. whilst he was 
attending a trial as a witness, under a subpoena : 
—Held, that an action on the case was not main- 
tainable by A. a^inst B. for procuring A. to be 
illegally arrested, it not being shown that B. had 
any knowledge that A. was attending as a wit- 
ness when he delivered the writ to the sheriff to 
be executed. Stokes v. White, 1 C. M. & R. 223 ; 
4 Tyr. 786. 144 

Where a party arrested whilst privile^^d from 
anest pays money into court, by permission of a 
judge, in order to obtain his discnarge, he is en- 
titled, upon application to the court, to have the 
money restored to him. Pitt v. Coombs, 4 Nev. 
6l M. 5:35; 2 Adol. &. £Uis,459; 1 Har. <& WoU. 
13. 144 

But such application must be made within a 
reasonable time ailer the arrest, or the delay 
most be satisfactorily accounted for. Id. 

The pendenc]r of a motion to set aside the 
proeeedmgs for irregularity, was held to be a sa- 
tiffiictory reason for having deferred the applica^ 
lion for several terms. Id. 

Where a party to a cause is arrested upon pro- 
cess oat of another court, while attending at Nisi 
Prius in expectation of its coming on, he must 
apply for relief to the judge at Nisi Prius, or to 
toe court out of which the process issues, and not 
to the court in which the cause is. Pitt v. £vans, 
3 Dowl. ?. C. 223. 145 

Where a party in custody under a criminal 
charge is about to be discharged, but is then de- 
tained in custody under civil process, the proper 
course in order to obtain his aischarge from the 



latter is by applicatioo to the eooit out of which 
the civil process has been issued. Rex «. M*- 
Loughlin, 1 Aloock d& Napier, 130, (IrtM). 145 

Where a party attended under a recognizance 
to answer a criminal charge, and was acquitted 
and discharged, he is privileged from arrest 
while going to and letuming from the court where 
he was so bound to attend ; and if arrested he will 
be discharged out of costody by the court from 
which the process issues, under which he is so 
arrested. CaUans v. Sherry, 1 Alcock db Napier, 
125, {Iri^). 145 

DischtiTgtfrum.'] — No debt due. Burton v. Ha- 
worth, 4 B. dk Adol. 462 \ 1 Nev. dk M. 318. 146 

Where the affidavit to hold to bail discloses 
that the debt is prima facie barred by the 
statute of limitations, and where other pecu- 
liar facts are stated on affidavit, to show that 
the plaintiff has no cause of action, the court 
will grant a rule nisi calling upon the plain- 
tiff to show cause why the defendant should not 
be discharged out of custody on entering a com- 
mon appearance. Tucker v. Tucker, 1 Scott, 463 ; 
1 Hodges, 15. 146 

The court will not discharee a defendant out of 
custody because it appears by the particalars of 
demand that the debt is barred by the statute of 
limitations. Pettier r. Macdonell, 1 Har. 6l Woll. 
189. 146 

The court refused to interfere sunmiarily to 
discharge a defendant out of custody, on the 
ground that the arrest was against good fiuth, in 
being made for the whole deot, after an engage- 
ment to recieve the amount by instalments. 
UdaU 9. Nelson, 4 Nev. & M. 637 ; 2 Adol. dk 
EUis, 215 ; 1 Har. &, WoU. 177. 146 

If the debt and costs in an action are paid to 
the plaintiff, no matter by whom, tbe delendant 
is entitled to be discharged out of custody. Rim- 
mer v. Turner, 3 Dowl. P. C. 601 . 146 

Semble, that the sheriff has no right to detain 
a defendant in custody, although he has been 
compelled to pay the debt and costs under an at- 
tachment. Id. 

The court refused to discharge a defendant oot 
of custody on the ground of trifling defects in 
the process on which he had been arrested. Fo- 
cock V. Mason, 1 Scott, 51. 146 

Bvidence that a bailiff *8 assistant apprehended 
a party on a false pretence, and that the bailiff 
being at hand took advantage of the apprehen- 
sion to arrest him on a writ of ca. sa. : — Held 
sufficient to establish an issue that the bailiff 
illegally seized snd imprisoned the party. Hum- 
phrey V. Mitchell, 2 Bing. N. R. 619. 146 



ASSUMPSIT. 

When moifUainaUe.] — A declaration stated, 
that W. P. owed the phuntiff 13^., and that in 
consideration thereof, and that W. P., at the 
plaintiff's request, had promised to work for him 
at certain wages, and also, into consideration of W . 
P. leaving the amount which might be earned by 
him in the defendant's hands, he, the defendaat« 



[ASSUMPSIT] 



fr^r^ - "•»? 



2303 



mdntook aad promised to pay the pliiintiff the 
aid sum of 131. Ayerment, that W. P. had per- 
ibnned his part of the agreement. Judgment 
arrested, because the plaintiff was a stranger to 
the consideration. Price i;. Easton, 4 fi. &. Adol. 
433 j 1 Ney. & M 803. 150 

A. being arrested at the suit of B.^ upon a writ 
indotaed ** oath for 76/.," C. writes that, in con- 
sideration of fi/s instantly drschar^ing A., he will 
give his promissory note to B. lor 10« in the 
pound upon the debt on the arrival of the dis- 
charge. This engagement mav be declared upon 
as a promise to pay 10«. in the pound upon the 
debt for which he was arrested. Brown r. Dean, 
8 Nev. & M. 317 ; 5 B. d& Adol. 848. 151 

Although a request to deliver the note be al- 
leged, no request need be proved. Id. 

A^ during his minority, accepts a bill of ex- 
change ; ana when of a^, A. directs B. to pay 
the amount out of funds m B. 's hands. This con- 
tract need not be declared on specially. Hunt v. 
MasBe7,3Nev. & M. 109; 5 B. <& Adol. 9()t>. 

149 

A sum of money was delivered by the plaintiff 
to the defendant to carry to a particular place, 
and there to pay to a certain person for the plain- 
tiff. The defendant took the money, but in an- 
swer to the inquiries of .the plaintiff on the sub- 
ject, said that he had lost it : — Held, that assomp- 
sit for money had and received was maintainable 
oB proof of these facts merely; though it was ob- 
jected that the proper form of action was a special 
setMA for the negligence. Barry v. Roberts, 5 
Nev. «& M. 669; 3 Adol. & Ellis, 1 18 : I Har. & 
WoU. 343. 148 

Consideration.'] — The following agreement was 
held to show sufficient consideration moving from 
the plaintiff by way of detriment to him, m giv- 
ing up the security of the debtor, C, for 150/., at 
the defendant's request : — ^^ 1 undertake on 'be- 
half of Mr. P., (the plaintiff), in consideration of 
Mr. D. (the defendant) having this day gipren 
me an undertaking' to procure Mr. W.'s check or 
note in favor of Mr. P. for 150^. on account of a 



debt due from Mr. C. to Mr. P., that Mr. C. shall 
haTB credit for that sum in his accounts with Mr. 
P., sad that Mr. W. shall stand in the place of 
Mr. P. to that amount ; and 1 further undertake 
that Mr. P. shall not personally dispute Mr. W.'s 
right to deduct that sum from the accounts owing 
by the colliers of the B. C. colliery to Mr. C. 
rienttv. Dicken, 1 C. M. & R. 422; 3 Dowl. P. 
C. 171 ; 6 Tyr- 116. 150 

The declaration alleged the promise of D. (the 
deieodant) to be in consideration of that of P. 

She plaintiff) by way of mutual promise : — 
eld good, and tnat it was sufficient to aver that 
plaiotiB was ready and willing to perform his 
part Id. 

in eases where an express promise will be sup- 
pOTled, an inopliable promise arising out of the 
cnvaoMtances of the case, will also be available. 
Betts If. Gibbios, 4 Ney. & M. 64; 2 Adol. & 
Btis, 57. 150 

When a declaration in assumpsit states sev- 
ctal matten as a condition for the defendant's 



promise, though all be not good, yet, if a suffi- 
cient consideration remains, it is enough to sup- 
port the promise laid in the declaration. King v. 
Sears, 2 C. M. & R. 48; 5 Tyr. 587; 1 Gale,241. 

150 

It is only necessary in cases of executed con- 
siderations, to state that the consideration for the 
defendant's promise moved at the defendant's 
special instance and request. Id. 

A., by agreement, not under seal, in considera- 
tion of B.'s consenting to a supersedeas of a com- 
mission against him, undertook, in the event of 
his recovering a certain estate, to liquidate B.'» 
claim on him, which he was not bound legally to 
do: — Held, that this raised an implied promise^ 
on the part of A . to take some steps for recovery" 
of the estate. Edmunds v. Wilkinson, 7 C. &- r . 
387— Denman. 150 

In assumpsit on an agreement, want of consid- 
eration for the promise must be specially pleaded. 
Passenger v. Brooks, 7 C. & P.tllO— Tindal. 

■ 150 

Money Pai /.] — ^The rule that a tort-feasor can- 
not recover upon a promise to indemnify, made- 
by the person at whose request the tortious act 
is committed, is confined to cases in which the 
act is of an obviously illegal character. Betts v, 
Gibbins, 4 Nev. <& M. 64 ; 2 Adol. & EUis, 57. 

152 

It does not extend to a case in which there is 
any bona fide doubt whatever, whether in point 
of law the act was authorized. Id. 

The rule as to contribution between joint-tort- 
feasors must be similarly confined. Id. 

Contribution is indemnity, and the same con- 
sideration that will support a promise to indem- 
nify, will also support a promise to contribute, et 
a converse. Id. 

If A. has accepted three bills for theacconuno> 
dation of B., and is obliged to pay them, and also 
to pay the costs of two actions brought upon two 
of them : — Held, that A. cannot, in an action 
against B., recover the amount of the costs of the 
two actions, if his declaration contain only the 
common money counts : but that to recover these 
costs, he should have declared specially. Seaver 
V. Seaver, 6 C. &> P.6T3— Denman. 152 

The plaintiff demised a house to the defendant, 
who, by the agreement of tenancy, agreed to pay 
a yearly rent clear of all deductions tor taxes and 
parochial rates ; afler occupying the premises tor 
some time, the defendant quitted them, leaving 
claims, for poo/s' rate and laiid tax unpaid, which 
the plaintiff as landlord was obliged to pay :— 
Held, that he could not recover thefamount from 
the defendant in an action for money paid,becauBe, 
as there was no originaf liability on me defendant 
to pay, it could not be said to be money paid to 
his use. Spencer v. Parry, 4 Nev. dk M. 771 ; 3 
Adol. & Ellis, 331 ; 1 Har. & Well. 174. 153 

Money had and received.] — Where an overseer 
had stopt part of a pauper s parochial weekly al- 
lowance, and engaged to pay it over to the land- 
lord of the pauper, in pursuance of an understand'^ 
ing between the three :~Held, that the landlord 



2334 



[ASSUMPSIT] 



could not support assumpsit for money had and 
received against the overseer. Blackledge v. 
Harman, 1 M. & Rob. 344— Alderson. 156 

Where a party sued for money had and receiv- 
ed, rested his defence on his having obtained the 
money bona fide, in satisfaction of an equitable 
claim, and the plaintiff, at tho trial, merely en- 
deavored to impeach the fairness of the receipt, 
and the claim generally, and the jnry found for 
the defendant ; the court refused to entertain a 
motion for a new trial, made on the ground that, 
admitting the fairness of ihe transaction, the de- 
fendant appeared, upon the plaintiff's case at the 
trial, to be not entitled to retain more than a 
part. Moore v. Eddowes, 2 Adol. & Ellis, 133. 

Where the plaintiff and defendant, both claim- 
ing to act as clerks to the justices of a division, 
agreed to leave the dispute to the determination 
of third parties, who directed that the defendant 
should act in the office, and divide his fees with 
the plaintiff:— Held, that an action for money 
had and received might be maintained to recover 
the moiety of the fees received, and that the de- 
fendant could not allege that he was legally en- 
titled to all the fees. KoTand or Rowland v. Hall, 1 
Scott, 539 ; 1 Hodges, ill. 156 

Assumpsit for money had and received lies to 
recover money paid by the plaintiff under a for- 
getfulness of facts which were within his know- 
ledge. Lucas r. Worswick, 1 M. & Rob. 2i)3— 
Denman and Bolland, 158 

Defendant was office-keeper of an Exeter and 
London coach, and servant to C, a proprietor at 
Exeter, where the office kept by defendant was. 
Defendant from time to time made up a4:count8 
of the shares of profits due to the several propri- 
etors, and sent them to those parties, taking the 
money from a balance of C.'s which he had in 
hand. On one occjision, defendant sent to plain- 
tiff, a proprietor, a packet purporting to contain 
5ai., which was due to him, but in reality con- 
taining 201. only. Plaintiff sued defendant for 
21. had and received to his use :— Held, that 
defendant was not liable, there being no privity 
of contract between him and tlie plaintiff; and 
that he was not precluded from this defence by 
having told the plaintiff (after action brought), 
that he, defendant, had had the 23i. of C, and 
•ent it to the plaintiff, and debited C. with it. 
Howell V. Batt, 2 Nev. A. M. 381 ; 5 B. A. Adol. 
604. 160 

To an action by an indorsee for value of a bill 
which had been lost, it is no defence that the bill 
was taken under circumstances which ought to 
have excited the suspicion of a prudent and cau- 
tious man. Crook v. Jadis, 3 Nev. & M. 257 ; 5 
B. & Adol. 909. 161 

Nothing short of gross negligence will be an 
answer, id. 

Unless the circumstances be such that mala 
fides can be inferred. Backhouse v. Harrison, 3 
Nev. & M. 188; 5 B. & Adol. 1098. 161 

Negligence on the part of the loser of a bill of 
txchange, in not publishing his loss, will not 
euie any defect in the title of a tabsequent hold- 



er, in respect of the mode in which the bill cam* 
into the possession of the Is^ter. Id. 

In 1830 the plaintiff had his pocket picked of a 
200Z. bank-note at a public meeting. The note 
was paid to the defendant, as he said, upon a bet 
on the Derby in 1832, but he could not say by 
whom : Held, that the plaintiff was entitled to 
recover. Easeley r. Crockford, 3 M. A Scott, 
700; lOBing. 24'3. 161 

Where A. has accepted a bill for a debt due to 
B., and bef )re the bill becomes due, and without 
the privity of B , lends 100/. to C, (which, at the 
time of the loan, A. was proceeding to deposit 
with his bankers, upon account of the bill), upon 
the a8:«urance that C. would lodge the amount 
for tliat purpose, before the bill became due, at 
the bank ; B. cannot, upon failure of C.'s promise, 
maintain an action against C. for money had and 
received. M'Carthy v. Smith, 1 Alcock & Na^ 
pier, 69, (Irish). 162 

Upon the reading of the will of A. in the pre- 
sence of her family, B., who had resided with her, 
produced a parcel containing bank notes, and 
stated that A . had given it to her about a fort- 
night before her death ; upon which C, the brother 
of B., took up the notes, and said that he would 
keep them until B. required them, or, as stated 
by other witnesses, until the claims of the ex- 
ecutors were disposed of: — Held, that in an ac- 
tion by B. against C. for money had and received, 
evidence of what had been stated by B. was ad- 
missible to show her title to the notes ;--Held, 
also, that such statement, coupled with evidence 
of possession, of B.'s conduct at the time of the 
reading of the will, of her having told her sister 
some days before the death of A. of the gift hav- 
ing been made to her, and of the circumstance of 
other money of A.'s being untouched, although 
B. had had opportunities of possessing herself 
dishonestly of tne notes, was sufficient evidence 
to go to the jury, upon a question raised whether 
B. was justly entitled to the notes. Hay slip v. 
Gyifier, 3 Nev. & M. 479; 1 Adol. & EUis, 162. 

162 

There being mutual accounts between A. and 
B. the latter met C, A.'s brother, to settle them. 
Two accounts were brought by C. The first con- 
tained various items of money received by B. for 
A. B. settled and signed this account. C. then 
produced another account between the parties 
respecting other items, which B. disputed, and 
refused to settle. No evidence was given of mo- 
ney had and received .but the above : — Held, that 
A. was entitled to recover upon ihe count for 
money had and received. Lorymer v. Stephens, 
1 C. M. & R. 62; 4 Tyr. 869. 163 

Account stated."] — An offer of a cognovit after 
action brought, will not support a count upon an 
account stated. Spencer v. Parry, 4 Nev. & M. 
770; 3 Adol. & Ellis, 331 ; 1 Har. Sl WoU. 179. 

163 

Plaintiff declared for ^oods sold, and on an ac- 
count stated. The particular delivered with the 
declaration was, ** to a beast sold and delivered, 13/, 
10<." The only evidence was, that the plaintiff 



[ASSUMPSIT] 



2305 



tdmitted in conireTsation with a third person, not 
ihown to be an agent of the plaintiff, that he 
oifed the latter iS. IO5. -.—Held, that this was 
no evidence of an account stated, and that it was 
not evidence on the count for goods sold, as it 
was not shown to be applicable to the particular. 
Leave was given to the plaintiff to amend his 
particular, and go to a new trial on payment of 
coBtA. Breckon v. Smith, 1 Adol. & Ellis, 468 

163 

Plaintiffs sued upon an account rendered by 
the defendants — Held, that the plaintiffs might 
impeach an item in the account by which the 
det^ndants sought to retain money under an ille- 
gal contract, notwithstanding that account was 
the only evidence in the action. Rose r. Savory, 
5 Bing. N. R. 145 ; 1 Hodges, 269. 163 

A landlord being in possession of the premises 
lately held by his insolvent tenant, in which were 
fixtures belonging to the latter, agreed to give 
up possession on his assignees paying 11. for the 
rent due. They entered and sold the fixtures, 
but no occupation by them was proved. — Held, 
that the 7Z. could not be recoverd on the count 
on an account stated, the defendant's agreement 
to pay that sum not being bottomed on any pre- 
vious transaction between the parties. Clark r. 
Webb, I C. M. «fc R. 29 ; 2 Dowl. P. C. 671 j 4 
Tyr. 673. 163 

An acknowledgment by a defendant, afler ac- 
tion brought, of money being due to the plaintiff, 
when there is no debtor account between them 
proved to have existed before action brought, is 
not evidence in an account stated. Allen v. Cook, 
2 Dowl. P. C. 546. 163 

In an action on an account stated, the defen- 
dant cannot now, under the plea of non assump- 
sit, give in evidence a subsequent account al- 
leged to be in his favor. Fidgett r. Penny, 2 
Dowl. P. C. 714 ; 1 C. M. & R. 10b ; 4 Tyr. 
©0. 163 

A banker*s pass-book deliveied to his customer, 
in which there are entries on one side onl^, is 
not evidence of a settled account between the par- 
ties, although the customer keeps the book witli- 
out making any objection to the entries contain- 
ed in iL £z parte Randleson, 2 Deac. 6l Chit. 
634. 163 

Jf an error in a settled account is discovered 
and corrected before suit, and a bill be subse- 
quently filed to surcharge and falsify, the cor- 
rected error is not a ground for a decree to sur- 
charge and falsify. Davis v. Spurling, 1 Russ. 6l 
Mylne, 64. 163 

A second count alleged that the defendant, on 
a particular day, was indebted to the plaintiff in 
30Uf. ^ lor money found to be due on an account 
stated between them :" — Held bad on special de- 
murrer for not stating when the account was 
•UU'd. Spver ». Thelwell, 4 Dowl. P. C. 5()9 ; 
2 CM. & k. 692: S. P.Ferguson r. Mitchell, 2 
C. M. & R. 687. 163 

PUadinss.] — A declaration stated a promise to 
tbeplaint7ffand A. B., now deceased, in his life- 
time, and in a second count, stated that the de- 
fendant was indebted to the plaintiff and the said 



A. B. in his lifetime, but did not aver that he 
was deceased. The defendant having demurred to 
the second count . — Held, that the demurrer was 
frivolous within the 2nd rule Hil. T. 4 Will. 4. 
Undershell v. Fuller, 1 C. M. & A. 900. 164 

Where the first count of a declaration waa 
against the defendant as acceptor of a bill of ex- 
change, stating a promise to pay the bill without 
any breach, and was followed by a count for 
money lent, money paid, ^c, with a promise to 
pay limited to the latter sums, the breach is 

food if it goes on to state that he has disregarded 
is promises, and hath not paid the said monies 
to the said plaintiffs. Turner v. Denman, 4 Tyr. 
313. ' 164 

Where a declaration alleged the defendant to 
be indebted to the plaintiff in a certain sum for 



work and labor, without laying any promise to 

"' hereas also," pi 
ceeds to state him to be indebted to plaintiff in 



pay it, and tl:en under a '* Whereas also," prq- 



several other sums for goods sold and delivered, 
&c., concluding that the defendant had promised 
to pay the said last mentioned several monies re- 
spectively to the plaintiff on request : — Held bad 
on demurrer for want of a promise in the first 
count, which was not referred to by the words 
" last mentioned," in the second count. Harding 
V. Hibel, 4 Tyr. 314. 164 

Where a promise is laid to pay on request 
the licet siepius requisitus need not be laid or 
proved. Ring v. Koxbrough, 2 C. & J. 418 ; 2 
Tyr. 468. 164 

Where several distinct causes of action » one of 
which is not sustainable, are stated in one count 
in assumpsit, general damages may be given. Id. 

In assumpsit under a plea of non-assumpsit, 
the consideration for the- promise is not traversed. 
Passenger v. Brookes, 1 Scott, 560 ; 1 Bing. N. 
R. 587 ; 1 Hodges, 123. 164 

Want of cosideration or any matter other 
than a direct denial of the contract, cannot be 
given in evidence under non-assumpsit. Id. 

Where it is doubtful whether a statutable ob- 
jection to the contract can be rendered available 
under the plea of non-assumpsit, the court will 
allow it to be specially pleaded. Smith v. Dixon^ 
4 Dowl. P. C. 571. 164 

Indebitatus assumpsit on promises to pay on 
request. Plea, as to part, that defendant has paid 
the same, and in the same plea non-assumpsit 
to the residue, the whole concluding to the coun- 
try : — Held, on special demurrer, that the plea 
was bad for not concluding with a verification. 
Seinble, the plea was double, and that its subject- 
matters should have been divided into two pleas, 
the first concluding with a verification, the last 
to the country. Ansell v. Smith, 1 CM. & R. 
522; 5 Tyr. 141. 164 

Assumpsit for money paid. Plea, that the 
money was paid by the plaintiff to the use of the 
defendant, m manner therein afler mentioned, 
and in no other manner, viz. as one-sixteenth part, 
for the damages and costs recovered against the 
plaintiff as owner of a vessel of which the defen- 
dant was a part owner to the extent of one-six- 
teenth share, for the loss of certain goods shipped 
I on board the vessel, and which Iom was alleged 



2806 



[ASSUMPSIT— ATTACHMENT] 



in Uw actHm to have happened through the nejr. 
ligenoe, Ac. of ihe plaintiff, by his mariners and 
fleirants, whereas tne loss complained of was not 
only caased by the negligence, &c. of the plain- 
tiff, by his mariners and servants, but that the 
plaintiff, by his own personal and wilful mis- 
conduct, &c. contributed to the loss. The de- 
fendant pleaded further, that, altliough he was 
the legal owner of one-si j^teenth part of the 
said vessel, yet he, the defendant, did not con- 
cur with the plaintiff and the other part-owners 
in the employment of the vessel in tnat voyage, 
but that the said voyage was undertaken and 
carried on for the profit and advantage of the 
plaintiff and certain other persons, separate and 
distinct from the defendant, and without his be- 
ing concerned or in any way participating in the 
adventnre. On special demurrer : — Held, that 
both pleas were bad, as amounting to the general 
issue. Gregory v. Hartnoll, 1 Mees. dL Wels. 
183 ; 4 Dowl P. C. 695. 164 

Where, in assumpsit, the plea admits the 
breach, and only alleges a number of facts, as 
matter of excuse, the replication of de injuria is 

S roper. Isaac v. Farrer, 4 Oowl. P. C. 750; 1 
lees, dk Wels. 65 : S. P. Griffin v Yates, 2 Bing. 
N. R. 579; 4 Dowl. P. C.647; Crisp v. Grif- 
fiths, 2 C.id. & R. 159; 3 Oowl. P. C. 752 ; 1 
Gale, 106. 164 

To a declaration on a promissory note, by an 
indorsee against the maker, the defendant plead- 
ed, that an advertisement appesured in a news- 
paper, ofierinff loans of money at low interest, 
and that the oefendant, being in want of a loan, 
was induced, by the false representations of the 
individuals to whom he applied, to draw that and 
other promissory notes for which he never had 
any consideration ; and that all the parties to the 
bill were acquainted with these circumstances : — 
Held, upon special demurrer, that de injuria was 
JL proper replication to this plea. Id. 

The replication de injuria is not applicable in 
assumpsit, when the plea does not admit the pro- 
mise stated in the declaration : as where the ac- 
tion was for a breach of contract in not paying 
for goods by bills with security, and the plea set 
out a custom of trade, that such necurity was 
only given when it was demanded before the goods 
were delivered. Whittaker v. Mason or Marson, 
*2 Scott, 567 ; 2 Bing. N. R 359 ; 1 Hodges, 319. 

164 

Semble, that to a plea, showing a prima facie 
case of a promise, but avoiding it by showing 
some invalidiw in the inception of a contract, ex. 

Sr. a want ot consideration, — a replication that 
le defendant broke his promise without the 
cause alleged, is good on general demurrer. Noel 
9. Rich, 4 Dowl. P. C. 228 ; 2 C. M. & R. 360 ; 1 
Gale, 225. 164 

Assumpsit for 5000Z. had and receiver. Plea, 
that the said money '* being the money in the 
said declaration mentioned'* was the proceeds of 
divers goods pledged, with a power of sale to the 
defendant, by persons whom the plaintiff allowed 
to hold the ^oods as their own, and which were 
in fact the joint property of those persons and the 
plaintiff, and that the defendant was willing to set 
off against the proceeds ef the goods the advance 



made on them. Replication, that the defendasty 
of his own wrong, and without the cause alleged, 
broke his said promise; and further, that the 
action was brou^t. not only for the proceeds of 
the goods mentioned in the plea, but also fisr the 
proceeds of other goods : — Held, on special de- 
murrer, that the replication was bad, becatue 
it alleged that the defendant broke his pio> 
mise, when the plea in efiect was, that he never 
made one, and not an excuse for a breach. Se- 
condly, because the plea claimed for the defen- 
dant an interest in the goods, and also asserted 
an authority from the plaintiff. Solly v. Neish^ 
2 C. M. & B. 355 ; 4 Dowl. P. C. 248; 1 Gale, 
227. 164 

Diet, the plea would be bad on special demar- 
rer, as amounting to the general issue. Id. 

Semble — Admitting that the de injuria, &e. 
put tile whole plea in issue, nevertheless the n'ew 
assignment did not make the replication double, 
id. 



ATTACHMENT. 

Contempt'] — Mere violent snatching an original 
writ of summons from the person serving a copy 
of it, is not a contempt of the process of the court. 
Weekes v. Whitely , 3 Dowl. P. C. 536 ; 1 Har. A 
Woll. 218. 166 

An attachment for misconduct cannot be mor- 
ed for by a complainant in person, but the motion 
must be made by a gentleman at the bar. £x 
parte Fenn, 2 Dowl. P. C. 527. 166 

Contempt of court for nonpayment'of costs, 
cannot be waived by the parties. Gompertz v. 
Best, IT.dt Col. 619. 166 

An attachment will not be granted for not 
obeying a judge's order which hiui not been made 
a rule of court Hinchli^ v. Jones, 4 Dowl. 
P. C. 86 ; 1 Har. & Woll. 337. 166 

Nonpayment of money.'] — A conditional order 
for payment qf costs cannot be enforced by at- 
tachment, although the step to be allowed on pay- 
ment of costs has been taken without such pay- 



'£ 



ment. Rese v. Fenn, 2 Dowl. P. C. 541. 167 

An attachment cannot be obtained for nonpay- 
ment of costs, pursuant to the master's allocatur, 
if there was no undertaking, in the judge's order 
for taxation, to pay what should tie found due. 
Harrison r. Ward 3 Dowl. P. C. 54J . 167 

Where a party is allowed to amend, on condi- 
tton of paying costs, but he amends and pro- 
ceeds without such payment, he is still not liable 
to an attachment. Turner v. Gill, 3 Dowl. P. C. 
30. 167 

In order to obtain an attachment for nonpay- 
ment of costs, pursuant to the master's allocatur, 
it must appear by the affidavit, that the persons 
denying the payment are those mentionea in the 
allocatur. France v. Wright, 3 Dowl. P. C. 325. 

167 

The plaintiff, an attorney, brought an action 
for his bill of costs. The defendant obtained an 
order to tax the bill, which order did not contain 
a submission or undertaking to pay the amount 



[ATTACHMENT] 



2907 



taied. The usual tubminion was, however, en- 
tersd in the judge's book. The master proceed- 
ed in the taxation, and made his allocatur for 6d. 
in Ikyorof the defendant The plaintiff applied 
on affidaTita, and obtained another baron's order 
for the master to review his taxation. On the 
review, the master made his allocatur for 18/. in 
the plaintiff's favor. The plaintiff made the 
■econd order a rule of court, made a demand, Ac. 
thereon, and moved for an attachment. Neither 
the first order nor the submission in the judge's 
book was made a rule of court. The court held, 
that the attachment was irregular, and set it 
■side. Ryalis v. Emerson, 2 C. ^ M. 464 ; 4 Tvr. 
364 ; 2 Dowl. P. C. 357. 167 

The plaintiff afterwards made the first order 
and the submission in the judge's book, a rule 
of court, served the two rules, uie allocatur, &c., 
and made a fresh demand, and then obtained an 
attachment: — Held, that the second attachment 
was regular. Id. 

DemandJ] — In order to bring a party into con- 
tempt by not paying money accordmg to an order, 
a demand of the money must be made after the 
order has been nuule a rule of court. Chilton v. 
Enis, 2 Dowl. P.C. 338; 3 C. &; M. 459; 4 Tjt. 
369. 167 

A personal demand is absolutely necessary be- 
fim matEDg for an attaohment for non-payment 
•f COTti. etunnell r. Tower, I C. M. & R. 88 ; 2 
DowL P. C. 673; 4 Tyr. 862. 167 

Where a judge's order directed that certain 
deeds should be given up on a tender of, &c., to 
the plaintifis or ueir agent : — Held, that, before 
an attachment for a refusal of the tender to 
him, the pfauntiffs must have notice of that ten- 
te, and be personally required to give up the 
deeds. Evans v. Millard, 3 Dowl. P. C. 661 ; 1 
Gale, 138. 167 

An award directed that a bond should be ds- 
liveied up to the plaintifis upon demand ; — Held, 
that a demand made by one plaintiff without a 
power of attorney from the others, was an insuffi- 
eient demand to obtain an attachment Sykes v. 
Hagoe or Haigh, 2 Scott, 193 ; 4 Dowl. P. C. 114 ; 
1 Hodges, 197. 167 

In order to bring a party into contempt for 
non-delivery of a bond pursuant to a rule of 
court, the oemand of it must be made by one of 
the JMUties mentioned in the rule as entitled to 
receive it. Ex parte Fortescue, 2 Dowl. P. C. 
44a 167 

When a demand is made under a power of at- 
torney a copy must be left. Rex v. Pack wood, 2 
Dowl. P. C. 570. 167 

And the ori^nal jHroduoed. Rex o. Martin, 1 
Akoek A Napier, 45, (Irish). 16^ 

If money is ordered to be paid to a certain 
peison, (not an attorney), or nis a^nt, the de- 
mand must either be made by hmiself, or by 
some one authorized by power ofattorney . Brown 
V. Jenks, 4 Dowl. P. C. 581. 167 

In order to obtain an attachment for non-pay- 
ne^t of oosts, pursuant to the master's allocatur, 
a demand is not necessary, if the party sought to 

Vol. IV. 5 



be served, by his violence prevents the demand 
from being made. Wenham v. Downes, 3 Dowl. 
P. C. 573 ; 1 Har. & WoU. 216. 167 

Where in a country cause costs are by a rule of 
court ordered to be paid ** to the party or his at- 
torney,*' a demand by the attorney in the country 
is sufficient to founa a motion for an attachment 
for non-payment, although the agent in London 
is strictly the attorney on the record. Dennett 
V. Pass, 1 Scott, 586; 1 Ring. N. R. 638; 3 
Dowl. P. C. 632 ; 1 Hodges, 157. 167 

An attorney's bill having been ordered te be 
taxed after the, client had^iven a bill of exchange 
for the amount, it was round that he had been 
overpaid, and the attorney was ordered to refund 
the over-payment to the client ; and also, by a 
Bubaequent order, to pay the costs of taxation, 
more than a sixth having been taken off. Upon 
the application of the attorney to be allowed to 
pay these sums to the holder of the bill of ex- 
change, (which had been dishonored), instead of 
his client, he was ordered to do so within a week, 
or, in deiault, that an attachment should issue :— 
Held, that no demand of theae two sums was 
necessary to ground an attachment, but that it 
was his duty to seek the holder of the bill, and 
pay the money to him. WooUison v. Hodgson, 3 
Dowl. P. C. 178. 167 

J^on-pafomuince of Awards.] — On a rule nisi 
for an attachment on an award, no objection can 
be taken to it that does not appear on the face of 
it. Paull V. Paull, 2 C. «& M. 235 ; 2 Dowl. P. C. 
340 ; 4 T^r. 72. 167 

An attachment will not be granted if an aetion 
has been commenced, except upon the terms of 
disoontinuing the action, and paymg the costs. Id. 

Where, in articles of agreement for the sale of 
land by A- to R., it is stipulated that the price 
shall he fixed by an arbitrator, and the agree* 
ment be made a rule of court, the award being pub- 
lished, and the agreement made a rule of court, 
A. cannot have an attachment against R. for non- 
payment of the price awarded. A.'s only remedy 
IS by action on the articles. In re Lee, 3 Nev. 
& M. 860. 167 

Matter of objection, not apparent upon the fiuse 
of an award, — as an omission to adjudicate upon a 
matter or dispute brought before toe arbitrator,— 
cannot be shown for cause against a rule nisi for 
an attachment for non-performance of the award. 
M'Arthur v. Campbell, 4 Nev. & M. 208 ; 2 Adol. 
A Ellis, 52. 167 

Praetice.'] — A rule for an attachment, ibr any 
other cause than the non-payment of money pur- 
suant to the master's allocatur, is only nipi m the 
first instance. Richmond v, Bowdidge, 4 Dowl. 
P. C. 749 ; 1 Mees. A Wels. 40. 160 

Upon motion for an attachment for non-pay- 
ment of costs, punnant to the master's allocatur, 
to whom accounts had been referred upon the 
undertaking of the party, the courts will not grant 
a rule absolute in the first instance. Rex v, 
Spraggs, 2 Nev. A M. 678. 169 

When for non-payment of costs, as between at- 



[ATTACHMENT] 



it ■ ft mle Dili. P ^ MWff r r. • 
Mcll0r,2I>oiH.P.C.d33; 8. P. Spragr r. WU- 
hB,9D9wL P.C. 531 ; Grceii v. Liffat, 3DowL P. 
C. 578; Rjnn r. Fmicb, 4 Dowl. P. C. 563. 1G0 

A party tfOkDot have a rule absolote, in the 
inatanee, Ibr an attachment ior not paTing 
I, ponDant to a mJe of court, where tnose 
_ tarn part of a rule, for diaobedienoe to 
which a role niai oolr for an attachment can be 
fiaated. Ex mite Townlej, 3 Dowl. P. C. 39. 

1G3 

In the C. P. two motkmaaie neceaaarr to make 
a jndge'a order a mle of court, and lor an attach- ' 
ment Ibr dianbedience thereto. Pilcher r. Woods, 
4 DowL P. C. 329. IGD 

In K. B., an application to make a judge's or- 
der a mle of court, and for an attachment for 
diaobejin^ it, may be made on the same motion. ' 
Hincmifle v. Jonea, 4 Dowl. P. C. ^; 1 Har. dt 
WoU. 337 ; 8. P. Forater v. Kirkwall, 4 Dowl. 
P. C. 370. 169 1 

In order to obtain an attachment, it is not i 
anfficient that all the necessary ateps are taken, ' 
partly at one time and partly at another, fiogers 
V. Twiadel, 3 Dowl. P. C. 572. 169 

In order to obtain an attachment for non-pay- 
ment of costs, the rule (or the payment of them, 
aa well as the rule niai for an attachment for non- 

Eiymcnt must be personally aerved. Birket r. ' 
olme, 4 Dowl. P. C. 556. 170 

In order to ground an attachment for non-pay- 1 
ment of coats, pursuant to a rule of court, or the 
prothonotary's allocatur, there must in all cases 
De a personal aerFice, unless it appeara that the 
rule or allocatur has been seen in the actual pos- 
session of the party. Dicaa v. Wame, 1 Scott, 
537 ; I Hodges, 91. 171 

The court of K. B. will not grant an attach- 
ment without personal aenrice, in any case where 
the party tpplying baa another remedy. In re 
Lowe, 4 B. & Adol. 412. But see Allier v. New- 
ton, 2 Dowl. P. C. 582. 171 

It IB not sufficient to show the party the origi- 
nal, rule, without personal serrice of a copy. 
Parker v. Burgess, 3 Nev. A M. 3G. 171 

It is not necessary to place the original in the 
defendant's hands ; if it be shown to him, so ihat 
he can read the contents, it is sufficient. Calvert 
V. Redfearn, 2 Dowl. P. C. 505. 171 

In order to obtain an attachment for non-pay- 
ment of costs, pursuant to the master's allocatur, 
it is not indispensably necessary that a copy of 
the rule and allocatur should be leil on the per- 
son of the defendant. Rex v. Koops, 3 Dowl P. 
C 566: S. C. nom. Rose v. Koops, 1 Har. & 
WoU. 213. 171 

Personal service of the rule for payment of 
'coats is necessary in order to obtain an attach- 
ment, although the defendant is an attorney. Al- 
bin V. Toomet',3 Dowl. P. C. 563; 1 Har. & W. 
215. 171 

Where it is clear that the copy of the rule and 
allocatur have come to the hands of the defen- 
dant, an attorney, the court will ^rant a rule nisi 
for an attachment, although stnct personal ser- 



Tioe has not been efiected. PhiBipa r. Hatehin- 
•OB, 3 Dowl. P.C. 5d3: 8. P. Bex «. Dignam, 4 
DowL P. C. S9. 171 

Where there had not been personal service of 
the rule of court and master's allocatur, but copies 
had be^n lefl, and notice had been given of a call 
that would be made, the court macfe a rule for an 
attachment against an attorney absolute, where, 
on showmg cause against the rule nisi, he did 
not deny having received the papers and notice. 
Bottomley r. &lchamber, 4 DowL P. C. 26; 1 
Har. Sl WoU. 362. IH 

Where a rule ncn issues to show cause why an 
attachment should not issue for not obeying a 
judge's order, which has been made a rule of 
covt, and the rule niai is not personally served, 
but the party appears upon it and objects to the 
want of personal service, such appearance waives 
the necessity of persona] service. Levi e. Dun> 
combe, 1 C M. ^L R. rJ7; 3 DowL P. C. 447 ; 5 
Tyr.490; lGale,60. 171 

If a party is in contempt, it is not necessary 
that a rule calling upon him to answer it should 
be personaUy served. Id. 

A personal service of the rule of court mutt be 
made to ground an attachment for non-payment 
of money, pursuant to a judge's order, which is 
afterwards made % rule of court ; and aervice of 
the order and allocatur are not sufficient, nor is 
service of the rule on the London agents of the 
attorney sufficient ; and for this defect an attach- 
ment, issued at the end of January, and executed 
on the 12th of February, was set aside in Trinitv 
term following. Woollison r. Hodgson, 3 Dowl. 
P. C. 178. 171 

Personal service must be e&cted before an at- 
tachment can be obtained for non-performance at 
an award on which an action will lie. Rich- 
mond V. Parkinson, 3 DowL P. C. 703. 171 

Affidavits, in answer to an application for an 
attachment in a criminal case, should not be 
intituled in that case unless the record is in the 
K. B., but should be intituled in the court only. 
Rex V. Stretch, 4 DowL P. C. 30. 170 

Where a wife sued as administratrix, together 
with her husband, and the title of an order to tax 
the attorney's bill took no notice of the husband, 
a rule nisi for an attachment for non-payment oF 
a sum found due by the master's aUocatur, was 
granted on an affidavit intituled as in the action, 
and not like the order. Schooling r. Crouchman, 
1 Har. & WoU. 369. 170 

Where, in the copy of a rule for an attach- 
ment for non-payment of costs pursuant to the 
master's allocatur, the defendant's name was 
spelt Calver instead of Calvert, and the master's 
name Day instead of Dax, the court set aside 
the attachment and discharged the defendant out 
of custody, although in ue original rule the 
names were spelt correctly. Rex v. Calvert, S 
C. <& M. 189; 4 Tyr. 77; S. C. nom. Smith v. 
Calvert, 2 Dowl. P. C. 276. 169 

Upon a motion for an attachment for non- 
payment of money, the court refused to allow 
cause to be shown at chambera, though it was at 



[ATTACHMENT— ATTORNEY AND SOLICITOR] 



8309 



the end of the term. Fall v. Fall, 2 Dowl. F. C. 
83. 170 

Where a reasonable time had not been given 
between the day of serving a rule for an at- 
tachment, and the day of showing cause, the 
court, on making the rule absolute, directed the 
attachment to lie in the office a few days, until 
notice of that step being takf*n should be given 
to the defendant. Rex v. Giles, 4 Dowl. r. C. 
569. 170 

The proper mode of charging a defendant, 
who is a prisoner in custody of the marshal, 
with an attachment, is by lodging the attach- 
ment with the sheriff, who will take the defen- 
dant upon the attachment as soon as he is out of 
the custody of the marshal. Boucher v. Simms, 
4 Dowl. P. C. 173 3 2 C. M. & R. 392. 172 

Where a party is arrested under an attach- 
ment for contempt of court in not paying money, 
he is not entitled to be discharged upon tender- 
inf the amount to the officer. Fitt v. Coombs, 
3Nev. & M. 212; 5 B. <& Adol. ]07d. 172 

ATTAINDER. 

Ejectment may be maintained for freehold 
lands, on the demise of a person attainted of 
felony, when there has been no office found on 
behalf of the king. Doe d. Griffith v. Fritchard, 
BB. & Adol. 76o: S. C nom. Doe d. Evans v. 
l*htchaid» 2 Nev. &. M . 489. 173 

A lease for three lives contained a provision, 
that if the lessee, his heirs, ^c, should, during 
the continuance of the term, happen to become 
msolyent, and unable in circumstances to go on 
with the management of the farm, the demise 
riiOQld from thenceforth cease and be absolutely 
Totd. Tenant (being the second cestui que vie) 
imder sach lease was attainted of felony, and 
tzansported. His mother and sister occupied the 
fitfm from that time till the expiration of the 
ibixd life named in the lease, and during that 

r'od the reserved rent was regularly paid to 
W. P., to whom the reversion had come by 
devise, and who knew all the facts. The time of 
hia becoming entitled did not appear. The re- 
TeraioDer, on the expiration of the third life, sup- 
posing that the term was at an end in point of 
law, let the land to a new tenant, whom he 
lAerwards ejected, the attainted party being still 
■live. Quiere, whether the attamder of the te- 
nant was a forfeiture of the lease ? but, held, 
that if it was a breach of the condition, it was 
not a continuing breach, but was contempora- 
with the convicUon. Id. 



QiMBfe also, if a forfeiture was committed, 
whether it was one of which an assignee of the 
reversion might take advantage by stat 32 
Hen. 8, c. 34. Id. 

Heldf that if such a forfeiture was committed, 
the reversioner had waived it by, accepting the 
reserved rent nnder the lease from the parties 
occupyi n g the premises. Id. 

SemhJe, that if the forfeiture had not been 
waived, a sufficient entry had been made to avoid 
tkt lease, id. 



A., in January, 1815,twas convicted of bigamy. 
In April, 1^1 5, he conveyed away, by lease and 
release, certain lands in which he had an estate 
for life : — Held, that such convevance was not 
void as against the crown, there having been no 
attainder. Rex v. Bridger, ] Mees. «& Wels. 
145. 173 

In an action on the case for slander, the plaintiff 
had a verdict. Before judgment signed, the 
plaintiff was attainted of felony. Quere, whe- 
ther, before office found, the damages vested in 
the king, and whether this would be sufficient 
matter suggested by the defendant, the crown 
refusing to mterfere on a writ of audita querela, 
to prevent judgment and execution following the 
verdict ? Symonds v. Blake, 2 C. M. & R. 416 ; 
4 Dowl. P. C. 263 J 1 Gale, 182. 173 

On the trial of the felonv, the defendant was 
examined as a witness; though diet, the re- 
cord would ne^rtheless be undoubtedly admis- 
sible in evidence on a writ of audita querela, the 
court refused, in the exercise of its discretion, to 
stay proceedings on a motion suggesting this con- 
viction. Id. 



ATTORNEY AND SOLICITOR. 

1. Articled Clxrxs. 

If the original indenture of clerkship is lost, a 
copy may be inroUed. Ex parte Chapman, 3 
Dowl. P. C. 562. 174 

Draft of the articles of clerkship to an attor- 
ney allowed to be inrolled, where the original was 
lost through the misconduct of the person who 
had them delivered to him to be inrolled. Ex 
parte Beckenden, 1 Har. &. WoU. 193. 174 

If an attorney's clerk has been absent part of 
the five years with his master's consent, but has 
served on at the end of the five yeara under the 
same articles an equivalent additional time, he is 
entitled to be admitted. Ex parte Frost, 3 Dowl. 
P. C. 322 ; 1 Har. & Woll. 111. 174 

Where a clerk has been articled to a second 
master, pursuant to the 22 Greo. 2, c. 46, s. 9, 
and the affidavit of such articles has not beep. 
filed within three months after their execution, 
in accordance with section 3 of that statute, he 
cannot be admitted, nor can such affidavit be 
filed nunc pro tunc. Ex parte Joy, 3 Dowl. P. C. 
343. 174 



11. Admission. 

jBuZe.] — Whereas, by the statute 4 Hen. 4, 
c. 18, it was enacted, ** that all the attorneys 
shall be examined by the justices, and by their 
discretions their names put on the roll ; and they 
that be good and virtuous and of good fame 
shall be received, and sworn well and truly to 
serve in their offices:" and whereas, by the sta- 
tute 3 Jac. 1, e. 7, s. 2, it was enacted, ** that 
none shall from henceforth be admitted attorneys 
in any of the kind's courts of record but such 
as have been, brought up in the same courts, or 



r ' 



ssto 



[ATTORNEY AND SOUCITOR] 



otherwiM well praetued in soliciting of cantM, 
ftnd haTO been found by their dealings to be skil- 
fol and of honest dispositioni and that none be 
•oflfefed to solicit any cause or causes in any 
of the courts aforesaid, but only such as are 
known to be men of sufficient and honest dispo- 
ntion :" and whereas, by a rule made in Michael- 
mas term, 1654, in the courts of K. B. and C. P. 
it was ordered, that the courtB '* should once in 
eyery year, in Michaelmas term, nominate twelre 
or more able and credible practisers, to continue 
for the ensuing year to examine such persons as 
should desire to be admitted attomcjs, and ap- 
point convenient times and places K)r the exa- 
mination ; and the persons desiring to be admitted 
were first to attend with their proofs of service, 
then to repair to the persons appointed to exa- 
mine, and oeing approved, to be presented to the 
court, and sworn : and whereas, by the statute 
2 Geo. 2, c. 23, s. 2, it was enacted, that the 
judges, or any jcme or more of them, should, and 
they were therebjr autliorized and required, before 
they should admit such person to take the oath 
to exiamine and inquire by such if^ays and means 
as they should thina proper, touching his fitness 
and capacity to act as an attorney ; and if such 
judj^ or judges respectivelv should be thereby sa- 
tisrod that such person is duly qualified to be ad- 
mitted to act as an attorney, then, and not other- 
wise, the said judge or judges of the said courts 
respectively should, and they were thereby au- 
thorized to administer to such person the oath 
thereinafter directed to be taken by attorneys; 
and after such oath taken, to cause him to be ad- 
mitted an attorney of such court respectively :" 
and whereas, in order to carry the last men- 
tioned statute more fully into efieet, it is expe- 
dient annually to appoint examiners, subject to 
the control or the judges, in manner heremafter 
mentioned. 

It is ordered, that the several masters and pro- 
thonotaries for the time being of the courts of 
K. B., C. P., or Exchequer respectively, toge- 
ther with twelve attorneys or solicitors, be ap- 
pointed by a role of court in Easter term in 
every year, to be examiners for one year ; and 
five of whom (one whereof to be one of the said 
masters or nrothonotaries) shall be competent 
to conduct tne examination : and that from and 
af^r the last day of next Easter term, subject to 
■och appeal as hereinafter mentioned, no per- 
son shall be admitted to be sworn an attorney of 
any of the courts, except on production of a cer- 
tificate, signed by the major part of such exa- 
miners actually present at and conducting his 
examination, testifying his fitness and capacity 
to act as an attomev, such certificate to be in 
force only to the end of the term next following 
the date thereof, unless such time shall, be spe- 
cially extended by the order of a judge. 

It is further ordered, that the examiners so to 
be appointed, shall conduct the examinations 
under regulations to be first submitted to and 
approved by the judges. 

And it is further ordered, that in case any 
person shall be dissatisfied with the refusal of 
the examiners to grant such certificate, he shall 
be at liberty to apply for admission by petition 



in writing to the judges, to be delivered to tite 
clerk of the lord chief Justice of the court of 
K. B., upon which no fee or gratuity shall be 
received, which application shall be heard in 
Serjeant's inn Hall| by not less than three of 
the judges. 

And whereas the hall or building of the Incor- 
porated Law Society of the UnitecT Kingdom, in 
Chancery Lane, will be a fit and convenient 
place for holding the said examination, and the 
said society have consented to allow the same to 
be used for that purpose ; it is further ordered 
that until further orders, such examinations be 
there held on such days, being within the last 
ten days of every term, as the said examiners or 
any five of them shall appoint ; and that any 
person not previously admitted an attorney of 
any of the three courts, and desirous of being 
admitted, shall, in addition to the notices already 
required, give a term's notice to the said exa- 
miners, of^his intention to apply for examina- 
tion, by leaving the same with the secretary of 
the said society at their said hall, which notice 
shall also state his place or places of residence or 
service for the last preceding twelve months } and 
in case of application to be admitted on a refusal 
of tlie certificate, shall give ten days' notice, to be 
served in the like manner of the day appointed for 
hearing the same. 

And it is further ordered, that three days at 
the least before the commencement of the term 
next preceding that in which any person not be- 
fore admitted, shall propose to be admitted an 
attorney of either of the courts, he shall cause 
to be delivered at the master's or prothonotarj's 
office, as the case may be, instead of affixing the 
same on the walls of the courts as now required, 
the usual written notices, which shall state, in 
addition to the particulars now required, his 
place or places of abode or service for the last 
preceding twelve months; and the master or 
prothonotary, as the case may be, shall reduce 
all such notices as in this rule first mentioned, 
into an alphabetical table or tables, under conve- 
nient heads, and affix the same on the first day 
of term in some conspicuous place within or 
near to, and on the outside of each court 

And whereas it is expedient that upon the re- 
admission of attomies, the judges should have 
further means of inquiring as to the circum- 
stances under which persons applying to be re- 
admitted discontinued to practise, and as to their 
conduct and employment during the time of such 
discontinuance ; it is further ordered, that, at the 
time of giving the usual notice of the intention 
to apply for such readmission, the party shall 
cause to be filed the affidavit on which lie seeks 
to be readmitted, with the master or prothono- 
tary, as the case may be, which affidavit shall 
contain, in addition to the particulars now re- 
quired, a statement of his place or places of 
abode during Uie last preceding year : and such 
person shall also at the same time, cause to be 
left a copy of such affidavit with the clerk of the 
lord chief justice of the court of K. B.; and the 
rule for the admission of such person shall be 
drawn up on reading such affiaavit, and also 
an affidavit of such copy having been left in 



[ATTORNEY AND SOLICITOR] 



2311 



ooinplmnce with this role. Reg. Gen. K. B., 
C. P. ftnd Exch. H. T. 6 Will. 4? 

Generally. ] — Where an attorney had been ad- 
mitted, and had practiced in the court of Great 
Seanona in Wales before the 11 Geo. 4, & 1 
Will. 4, c. 70, but had ceased to practice, and 
was not ** practicing" at the passing of that act : 
— Held, that he was not entitled to have his 
name inrolled in the superior courts under the 
■ot Ex parte Garratt, 2 C. & M. 410; 2 Dowl. 
F. C. 071 ; 4 Tyr. 2ffii. ]75 

On an application against an attorney for an 
attachment for his contempt of a judge s order, 
made a rule of court; tlie court will take judi- 
cial notice of his being on the rolf. Ex parte 

^ cm; 1 Hap. &Woll.2H. 

175 



Hoffe,3Dowl. P. 



So in an application to tax an attorney's bill, 
the court will take judicial notice of his being 
on the roll. Ex parte King, 3 Dowl. P. C. 41. 

175 

On a summary application against an attorney 
it must appear upon the affidavit that he is an 
attorney of the court. In re Beck, 1 Har. ^k 
Won. 417. 175 

The court will not entertain a motion touching 
the conduct of an attorney, unless it appears 
Qpcm affidavit that he is an attorney of the court, 
cc thmt the tnuisaction arises in part at least out 
of a eftm before the court : nor will the court 
exeicise its Bummair jurisdiction over an officer, 
nnleas in a cause of palpable fraud. In re Lord, 
S Soott, 131 ; 1 Hodges, 105. 175 

An attorney who has been admitted, or read- 
mitted in another court, has a right to be ad- 
mitted or readmitted in the court of Exchequer 
as of course, without g[iving any notice or un- 
dergoing any examination. Ex parte Parrv, 1 
Mees. A Wels. 295. -^175 

The court of review will, under special cir- 
cnmstaDoes, admit an attorney nunc pro tunc. 
Ex parte Tanner, 3 Deac. &, dhit 10 : S. P. Ex 
pwte A , 3 Oeae. & Chit. 417. 175 

Every person admitted an attorney of C. 
P., not having already entered his admission, 
and also every attorney hereafter to be admitted, 
shall forthwith enter his admission, and shall 
caoae his annual certificate to be, on or before 
the first day of Easter term in every year, en- 
tered with the clerk of the warrants, which en- 
tries shall in all cases, where tlie annual certifi- 
cate has been already entered in one of the 
eoorts, be made without fee or reward, and shall 
•t the same time pay and discharge all his ar- 
rears of termage fees. Reg. Gen. C. P. M. T. 5 
WiU. 4. 175 

The inrolment of an attorney in the Common 
Pfeas is thus effected : — The party on receiving 
his admission from the secondary, takes it to the 
clerk of the warrants, who thereupon enters his 
name and address in a book kept for that pur- 
pose in alphabetical order. Unless inrolled, it 
Moot competent to an attorney to sue for any 
fees or disonrsements ; therefore, where the de- 



fendant's attorney (in every other respect duly 
qualified to act as an attorney) had omitted to 
cause his name to be inrolled as above, the de- 
fendant having made no advances on account of 
the expenses of the suit, the court permitted the 
plamtiff to discontinue without paying costs. 
Humphrysr. Harvey, 4 M. & Scott, 500; 1 Bine. 
N. R. 62; 2 Dowl. P. C. 827. 17^ 

An attorney having, through inadvertence 
omitted to inscribe his name on the roll of attor- 
nies, although he had observed every other for- 
mality necessary for his admittance, the court 
refused to enter it nunc pro tunc to defeat an 
action for penalties incurred by the omission. 

I JfvP'^^i'^'^' * ^»"S N. R. 734 ; 1 Scott, 706; 
3 Dowl. P. C. 636 ; 1 Hodges, 175. 175 

But in such action they also refused to allow 
plamtiff to amend after special demurrer. Id. 

Where an attorney, through the negligence of 
his clerk, has omitted to make the entry pursu- 
ant to the 37 Geo. 3, c. 90, s. 27, in due time, 
the court will allow that entry to be made nunc 
pro tunc, if he has taken out his certificate regu- 
larly and paid the duty for tiiat year. Ex parte 
Fry, 3 Dowl. P. C. 338: ^ ^ y^ 

JTotice Of J9pplieatum.]— The right names of 
all the persons with whom a clerk has served 
during the five years, must be introduced into 
the notices of his mtention to apply for admission 
Ex parte Dobson, 2 Dowl. P. C. S39. 17^ 

Where a second christian name of both mas- 
ter and clerk was omitted in the articles of clerk- 
ship, and the notice of intention to apply for ad- 
mission, described the parties by such second 
christian name, the court allowed the admission 
on having an affidavit of the identity of the par- 
ties, m addition to the usual affidavits. Ex narte 
Croft, 5 Nev. & M. 58; 1 Har. & Woll.^7^ 

176 

Where the notice of admission as an attorney 
was given wiUi a view to admission in Easter 
Tenn, but by mistake the name of the person 
with whom he resided was inserted instead of the 
name of the party to whom he was articled, the 
court, on an affidavit of the mistake, and denyinir 
any intention to evade inquiry, allowed him S 
be admitted on the same notice on the last day 
of Trmity term. Anon. 1 Har. & WoU. 141 - 

a'^ i' ^Tn.^°^^® ^^"^^^^ ^ Ne^- & M. 709; 3 
Adol. & Ellis, 72. |7g 

Where an attorney applies for admission, it 
must be positively shown that his notice has been 
regularly put up m the King's Bench office. Ex 
parte Morgan, 4 Dowl. P. C. 2U6. 176 

The notice for the admission of an attorney 
haviM being omitted to be given in the King's 
Bench office through inadvertence, the court al- 
lowed fresh notice to be given for admission on the 
hist day of the followiii^ term. Ex parte Stone- 
huret, 1 Har. & Woll. 517. 17^ 

The court will not admit an attorney on th« 

last day of the term, upon a notice of application 

posted on the third day of that term. In re Par- 

sons, 3 Nev. & M. 241 ; 3 Adol. & Ellis, 74 ; 1 

' Har. & Woll. 349. {7$ 



8812 



[ATTORNEY AND SOLICITOR] 



So, although sufficient notice had been posted 
during the vmole of a preceding term. Id. 

Where a person wanted to go abroad to a co- 
lony to practice as an attorney, he was admitted 
without giving a full term's notice. Ex parte 
Hulme, 4 Dowl. P. C. 88 ; 1 Har. A WoU. 366. 

176 

Severe illness, under certain circumstances, 
will be considered as an excuse for not comply- 
ing with the rule of court, in putting up notices 
in tbe King's Bench office, and outside the court 
of K. B., a term before applying for admission as 
an attorney. Ex parte Herbert, 2 Dowl. P. C. 172. 

176 

Where an attorney seeks to be admitted, he 
does not sufficiently comply with the rule of T. 
T. 33 Geo. 3. by sticking up the notice of his 
intention to apply in the King's Bench office, 
and outside the court, before the sitting of the 
court, on the first day of the term in which he 
seeks to be admitted. Ex parte Gordon, 2 Dowl. 
P. C. 470. 176 

An attorney who was off the rolls, from his 
agent having neglected to take out his certificate, 

SLve notice to the stamp office before Easter term 
at he should move for re-admission in Trinity 
term, Trinity being mentioned in the notice by 
mistake for feaster. On affidavit of the fact, and 
by consent of the stamp office, the court allowed 
the re-admission in Easter term. Ex parte Ntst- 
taU, 3 Adol. &. EUis, 118. 176 

The notice for the admission of the attorney was, 
by the inadvertence of an agent's clerk, j^iven 
in the books of the Chief Justice, but not in the 
books of the other judges of the court : imme- 
diately on its being discovered, the notices were 
given : — Held, that the party might be admitted 
on the last day of the term. Ex parte Woolright, 
4 Dowl. P. C. 274 ; 1 Har. & WoU. 517. 176 

Amendment allowed in notice for admission of 
an attorney by inserting his place of residence. 
Ex parte Jones, 3 Adol. &. Ellis, 74. 176 

Pracdu toiihout ^dmisgian.'] — An attorney 
who, though not admitted in the Exchequer, 
conducts an action there in his own name, not- 
withstanding 2 Geo. 2, c. 23, ss. 1, 5, & 10, can- 
not recover liis fees or costs out of pocket from 
his client, and has therefore no lien for them 
upon a judgment recovered. Thus the costs of 
one action may be set off against those of an- 
other, without allowing him such fees. Hyde v. 
Latham, 3 Tyr. 143. 176 

After the plaintiff's costs had been taxed and 
paid, it was discovered that their a^ent in the 
cause had never been admitted a solicitor ; and 
an order was thereupon made, that the master 
should review his taxation, and disallow all such 
items as did not consist of fees paid to the clerk 
in court, with a view to having them refunded. 
Coates V. Hawkyard, 1 Russ. & Mvlne, 746 : S. P. 
Prebble v. Bo^hurst, 1 Russ. & Mylne, 744 ; and 
Bummer v. Ridgway, 1 Russ. & Mylne, 748. 176 

It is no ground for disallowing to the plain- 
tiff's attorney his costs of conducting the ac- 
tion, that he was not on the roll of attorneys of 



tbe court, if it appears that he conducted the 
proceedings in the name of a London attorney, 
wbo was an attorney of the court. Goodner v. 
Cover, 3 Dowl. P. C. 424 : S. C. nom. Gardner 
V. Cover, 1 Gale, 45. 176 

Where a declaration was delivered in the name 
of a person as the attorney, but who in fact was 
not so : it was held, tliat the defendant could not 
treat the declaration as a nullity, and sign judg- 
ment. Bayley v. Thompson, 2 Dowl. P. C. 656 ; 
2 C. & M. 673. 176 

A cause had been tried and a verdict found for 
the plaintiff, which was afterwards set aside by 
the court, on the ground that tbe contract upon 
which the plaintiff sued was illegal and void. 
After the rule for a new trial was made absolute, 
it appearing that the defence had been conducted 
by an attorney of the court of King's Bench, 
acting in the name of one who had for some 
years ceased to be an attorney of the court of C. 
r . — The court permitted the plaintiff to discon- 
tinue without payment of costs, except as to so 
much money as might be found to have been 
paid by the defendant to his attorney on account 
of the suit Paterson v. Powell, 3 M. & Scott, 
105. 176 

Practising at quarter sessions without admis- 
sion. Slack q. t. v. Wilkins, 3 Tyr. 158; 1 C & 
M. 23. 177 

It is no objection to a habeas corpus that the 
attorney suing it out was not on the roll, by rea- 
son of having omitted to take out a oertiticate. 
Glynn v. Hutchinson, 3 Dowl. P. C. 528 ; 2 Adol. 
& EUis, 660. 176 

A solicitor may practise in the name of an at- 
torney as his agent in tlie courts of law, but an 
attorney at law cannot practise in the name of a 
solicitor, as his agent in the courts of equity. 
Hockley v. Bautock, 2 Mylne & K. 437. 177 

Certificate,] — ^An attorney who has taken out 
his certificate within a year from the expiration 
of a former certificate, out has transacted busi- 
ness between the expiration of the first certificate, 
and the taking out of the second, may recover for 
such business done, unless it appear that he de- 
layed renewing the certificate with intent to 
evade the higher duties imposed by stat. 55 Geo. 
3, c. 184, sched. Part 1, tit. "certificate," in 
which case he is disabled from renewing, by that 
act and by stat. 37 Geo. 3, c. 90, s. 36. Bowler 
V. Brown, 3 Dowl. P. C.80; 2 Adol. & Ellis, 
116; 4Nev. &M.17. 177 

Defendant, on being sued, paid the debt, but 
refused to pay the costs; plaintiff's attorney pro- 
ceeded to trial and issued execution for them ; bat 
being uncertificated, and the plaintiff havingr 
made him no advances, the court stayed the pro- 
ceedings. Meekin v. Whalley, 1 Bing. N. R. 59 ; 
2 Dowl. P. C. 823; 4 M.,& Scott, 494. 177 



IV. Readmissioii. 

Where an attorney has been admitted, but has 
never taken out his certificate, he is entitled to 
take it out without readmission. Ex parte Jones, 
2 Dowl. P.O. 451. 178 



[ATTORNEY AND SOLICITOR] 



2313 



Semble, that if an attomej has been admitted, 
and doea not take out his certificate for a jear, 
be need not be readmitted previous to taking it 
oat ; but whether he need or not, if he has taken 
out his certificate under such circumstances, the 
client's interest will not be affected. Hilary v. 
Hangate, 3 Dowl. P. C. 49. 178 

if an attorney practises aAer the expiration of 
his certificate, even though with the hope of tak- 
ing oat one, he cannot be readmitted without 
payment of the arrears of duty for the years 
daring which he has practised, and something 
more than a nominal nne. £x parte Fhilppt, 3 
Dowl. P. C. 339. 178 

An attorney will be readmitted, although upon 
two occasions he has acted as an attorney whilst 
nnoertificated. £x parte Lowerton, 1 Hodges, 
77. 178 

If an attorney omits to take out his certifi- 
cate, bat discontinues to practise, he may be re- 
admitted without payment of fine or arrears of 
dnty. £x parte Thompson, 2 Dowl. P. C. 160. 

178 

If an attorney has practised abroad during a 
period for which he has not taken out his certi- 
ficate, he may be readmitted without payment 
of arrears of duty or fine. Ex parte Philcpx, 2 
Dowl. P. C. 450. 178 

Where an attorney has by accident omitted to 
pay the proper amount of certificate duty for 
some years, aa also to take out his certificate 
daring another period, and has practised during 
that time, the court will readmit him on pay- 
ment of the arrears of duty and a nominal fine. 
£x parte Jones, 2 Dowl. P. C. 199. 178 

The court will, upon payment of a moderate 
fine, readmit an attorney who has inadvertently 
practised without his certificate, through the 
omiasion of a clerk usually employed to take it 
oot. Ex parte Rigby, 1 Ney. ^ M. 593. 178 

Rule granted to readmit an attorney without 

a term** notice, when the omiraion to take out 

the certificate for the current year was the act of 

tlse aeent Ex parte Ford, 1 Har. & Woll. 192. 

^ 178 

If the agent of an attorney neglect to take out 
his certificate, and the latter continues to prac- 
tise, in ignorance of the neglect, he may be re- 
admitted on payment of a nominal fine and the 
artears of duty. Ex parte Thorpe, 3 Dowl. P. C. 
592. 178 

An attorney who through inadvertence has 
practised without his certificate, cannot be re- 
admitted without an affidavit showing that a no- 
tice baa been given to tlie stamp office of his 
intention to apply for readmisaion. £x parte 
Franks, 3 Dowl. P. C. 319; S. P. £x parte 
Bridgman, 3 Dowl, P. C. 371. 178 

if an attorney has practised after he has ceased 
to fake out his certificate, but has had tlie penal- 
fief remitted by the commissioners of stamps, 
he may be readmitted on taking out his certifi- 
cate fot the current year. Ex parte Tuikin, 1 
Etr. & WoU. 516. 178 



On applying to readmit an attorney, it is suf- 
ficient if the affidavit clearly shows by its state- 
ments that he must have been admitted, without 
positively stating the facts. Ex parte Wentworth, 
2 Dowl. P. C. m. 178 

An attorney seeking to be readmitted, suf- 
ficiently complies with the rule as to the term's 
notice previous to his application, by sticking it 
up in the King's Bench office on the morning of 
the first day of the term in which he applies, at 
the opening of the office. Ex parte Pilkins, 2 
Dowl. P. C. 203. 178 

A notice by an attorney to tlie last day of one 
term to apply for readmission in the next, is 
not sufficient, although the notice remain up 
throughout the vacation. Ex parte Cross, 4 
Dowl. P. C. 18. 178 

Where by some inadvertence the necessary 
affidavits could not be procured for the seadmis- 
sion of an attorney on the last day of the term, 
for which he had given notice, the court on ap- 

f plication the first clay of the following term, re- 
iised to [readmit him, but allowed the notices 
then to be given for the last day of the same term. 
Ex parte Mosley, 4 Dowl. P. C. 69 j 1 Harr. &, 
WoU. 331. 178 

Where on application for the readmission of 
an attorney, it was stated that he had not prac- 
tised since he last took out his certificate, the 
court compelled him on his readmission to pay a 
fine of 5^, besides the arrears of duty. Ex parte 
Stonccroft, 1 Har. & Woll. 368. 178 



V. Privileges. 

Since the Uniformity of Process Act, an attor- 
ney sued with an unprivileged person does not 
lose his own privilege, and cannot be arrested. 
Reep V. Biggs, 2 Dowl. P. C. 278. 179 

An attorney sued jointly with an unprivileged 
person, does not lose his privilege of freeoom 
from arrest, as he may now be served with a copy 
of the capias under which the other person is ar- 
rested, pursuant to the provision of the 4th sec- 
tion of the 2 Will. 4, c. 39. Pitt v. Pocock, 2 
C. & M. 146 ; 4 Tyr. 85. 180 

By the act of 11 Geo. 4 & 1 Will. 4, c. 70, 
s. 10, which opened the court of Exchequer to 
all attorneys, and gave them leave to practise 
there without employing clerks in court, the pri- 
vileges of the sworn and side clerks are not abo- 
lished ; and therefore they may still arrest other 
attorneys who become indebted to them, in the 
same way as they did before. Stokes v. White, 2 
Dowl. P. C. 703 J 1 C. M. & R. 223; 4 Tyr. 786. 

180 

The office of sworn clerk of the court of Ex- 
chequer is not abolished by any of the several 
statutes of 11 Geo. 4 & 1 Will. 4, c.58; 11 Geo. 
4 & 1 Will. 4, c. 70 ; and 2 & 3 Will. 4, c. 110. 
The object of the first-mentioned statute is to 
provide means of paying the officers of the vari- 
ous courts of justice by salaries instead of fees ; 
that of the second, to abolish the monopoly of atr 



mu 



[ATTORNEY AND SOUCTTOR] 



on the |4em side of 
the eonil of Ezcheqiier ; and that of the third, to 
diatrilmle the duties of the offioen of that ooint, 
and to me to them appropriate names. Ckike 

r. Richards, 1 Y. A; CoL ^1. 180 

• 

Where the plainti^ under an apprehension of 
the defendant going abroad, arrested the defen- 
dant, who was admitted to be an attorney of the 
coort of Ezcheqaer, then entitled to pririlege, 
and the defendant lodged In court the deposit re- 
quired by sect. 2 of 10 Geo. 4, c. %, the court, 
on application, allowed the defenflant to draw out 
the money so lodged. Curtis v. Brennan, 1 Al- 
cock dL Napier, 122, {Iruh), 181 

A party cannot be deprived of his privilege, 
unless upon a strong and clear case of facts, 
which will satisfy the court of the necessity of 
the arrest for the purposes of justice ; and where 
the plaintiff in any way admits the pririlege, the 
court will not put the defendant to the trouble 
and delay of pleading his privilege. Id. 

Qoere, whether an attorney of the Kind's 
Bench, sued by a writ of summons in C. P., 
can plead his privilege in abatement. Davidson 
«. Chihnan, 1 Bcott, 117 ; 1 Bing. N. R. 297. 181 

At all events such plea must be verified by 
affidavit, or the plaintiff may .treat it as a nullity, 
«nd sign judgment. Id. 

Trespass is not maintainable for bnMing an 
attorney to bail, notwithstanding his privuege. 
Hoelv. lsaac,lG. M.AR.753; 5Tyr.376. 181 

An attorney plaintiff, though he does not de- 
scribe himself as attorney on the record, does 
not, since the Uniformity of Process Act, lose 
his privilege of suing in the superior courts. 
Wright V. Skinner, 4 Bowl. P. C. 745 ; 1 Mees. 
A Wels. 144. 181 

An attorney is not within the Court of Re- 
quests Act, so as to deprive him of his privilege 
of suing in the superior courts at Westminster, 
unless it is so enacted in them, notwithstanding 
the Uniformity of Process Act Dyer v. Levy, 4 
Dowl. P. C. 630. 181 

An attorney, by employing another to bring 
an action for him, waives nis privilege, and there- 
fore cannot as a matter of course try his cause in 
the county of Middlesex. Harrington v. Page, 2 
Oowl. P. C. 164. 181 

If the plaintiff, being an attorney, does not 
sue as such, but appears by an attorney, the de- 
fendant may change the venue as a matter of 
course, on the usual affidavit. Lowless v. 'Hmms, 
5 Dowl. P. C. 707. 181 

Privilege of visiting prisons. Ex parte Ma- 
laule, AB.Sl Adol. 9&: S. C. nom. In re Jones, 
1 Nev. A M. 128. 182 



VI. DUTIXS. 

JZctatner.]— By 2 Will. 4, c. 30, s. 17, every at- 
iamey vAoae name ehaU be indorsed an any writ 
iisned by authority of thai act^shall^ on demand in 
writing made by or on the behalf of any defendant^ 



dedare Jmdtwitk whether sitdk writ has been issued 
by Aon, or with kis maOhority or privity; and if he 
shaU answoer m the s^bsMttoe, then he shall also^ 
in ease the comrt or any jwdge of the same or any 
other eomrt shall so order and dtreet, declare in 
writings within a tiwu to be dUowed by smeh court 
orjmdgejthefrofession^occapation^ormiality^and 
place ef obode of thejdamtif, onpain <^ being guilttf 
of a conteaspt rf the court from whuh such wnt 
shall amearto have beenissued; and \f suchattor" 
ney shall declare thmt the writ was not issued by 
Aim, or with his authority or privity^ the said court^ 
or any judge of either oj the said courU^ shall and 
may, if it shall appear reasonable so to do, make 
an order/or the immediale discharge of any defen- 
dant or defendanU uAo may have been arrested on 
any such writj on enterimg a eomman. appearance./ 



The statute applies to both serviceable and 
bailable process. Gilson v. Carr, 4 Dowl. P. C. 

618. ie2 

Where bail made a motion in the name of an 
attorney, who denied bavins given any authority 
to allow his name to be uaeo, the court discharged 
the rule, but refused to make an order for costs 
against the person making the affidavit, on the 
ground that be was not be£re the court. Norton 
V. Curtis, 3 DowL P. C. 245. 182 

To obtain such costs a special application most 
be made against him. Id. 

Where an action is brought by an attorney 
without the plaintiff's consent, and the defendant 
at the trial agrees to withdraw a juror, the court 
will not order the attorney acting for the plaintiff 
to pay the costs of the defendant. Hammond v. 
ThOTpe, IC.M. A;R.64; 4Tyr.838; 2 Dowl. 
P. C. 721. 183 

Where a plaintiff's attorney receives a sum of 
money from the defendant, it is incumbent ob 
the plaintiff to show that the receipt was without 
his authority, otherwise it is money paid to his 
use. Vorley V. Garrard, 2 Dowl. P. C. 490. I8d 

Where an attorney has been employed in a 
cause, and is afterwards discharged by his client, 
not on the ground of misconduct, the court will 
not restrain him from acting for the opposite 
party, unless it clearly and distinctly anpears 
that he has obtained information in his fomier 
character which it would be prejudicial to the 
cause of his former client to communicate. And, 
therefore, where an attorney was employed by 
the assignees of a bankrupt to commence an ao> 
tion, and he accordingly did so, and went on to 
issue, and in the course of his employment laid 
a case before counsel, containing all the facts of 
the case, the court refused to restrain him from 
acting for the defendant after his dismissal by the 
plaintiffii, there being no affidavit by the parties 
or their solicitor, showing that the attorney ob- 
tained a knowledge of fiu^ta which would be pre- 
judicial to their cause to communicate, nor any 
affidavit stating that the case which had been laid 
before counsel disclosed facts which it was neces- 
sary to conceal, and which would be injurious to 
the plaintifis if they were communicated. John- 
son ». Marriott, 2 C A. M. 183 ; 2 DowL P. C. 
343i4Tyr.78. 183 



n 



[ATTORNEY AND SOLICITOR] 



2315 



A solicitor ooffht to have a special authority 
from his client for instituting a suit, bat such 
aathority need not be in writing. Lord v. Kellett, 
2 Mjlne & K. 1. Ib3 

If A^ haying employed an attorney to defend 
an action, assign his property to trustees for the 
benefit of his creditors, and the trustees direct 
the attorney to go on with the defence, they are 
liable to pay the attorney for what he does after 
they directed him to go on, but are not liable for 
the bygone business, unless there be an agree- 
ment m writing to make them so. Becke v 
Penn, 7 C. & P. 397— Tindal. 183 

An attorney, who is retained as the agent of a 
cardidate to represent a place in parliament, is 
not entitled to recover any thing for a retaining 
fee, anlesB there has been an express agreement 
that soch fee should be paid to him. Parker v. 
Robinson, 7 C. <Sl P. 241— Williams. 184 

The court will stay proceeding's in an action, 
if it appear to be doubtful whether the action is 
brongnt with the knowledge and consent of the 
plaintiff. Doe d. Baker v. Roe, 3 Dowl. P. C. 496. 

184 

When an attorney, who has not been admitted 
into the Exchequer, practises in the name of one 
who has, the proceedings must appear to be taken 
by the Exchequer attorney. That does not ap- 
pear in a notice, *' A. by B." B. being the attor- 
ney of that court. Chadwick v. Hough, 2 C. M. 
& R. 2D, 164 ; 1 Gale, 143. 164 

Where bail was put in in this form : — *'EIy by 
Cole," the former not being an attorney of the 
CoQit of Exchequer, thougn the latter was, the 
proceedings were held to oe informal, but time 
was given to amend. Marden's Bail, 4 Dowl. P. 
C. 6£l. 184 



Conduct of Business.] — An attorney, who has 
commenced an action for his client, has a right 
to refuse to go on without an advance of money 
oo account, provided he gives his client sufficient 
notice of hie intention, to enable him to make the 
rfqoired provision. Lawrence v. Potts, 6 C. & 
P. 428— Tindal. 185 

If an attorney has reasonable and probable 
novnds ibr commencing an action, and desists 
Doffl proeecQting it because he aHerwards disco- 
vefB that the cause cannot be successfully pro- 
eeeded with, he is entitled to recover his costs 
fion his client. Id. 

An attorney who has undertaken a cause is 
not bound to proceed, without adequate advances 
from time to time by his client, for expenses out 
of pocket ; and, therefore, the court will not com- 
pel an attorney, even after notice of trial, to carry 
the cause into court, unless the client supply 
him with sofficient funds to pay the expenses out 
of pocket thereby incurred. Wadsworth v. Mar- 
ihall, 2 C. & J. 665. 185 

The contract of an attorney or solicitor re- 
tained to conduct or defend a suit is entire and 
eootinoing, viz. to carry it on till its termina- 
tion, and can only be determined by the attorney 

Vol. IV. 6 



upon reasonable notice. Harris v. Osboum, 4 
Tyi. 445 ; 2 C. & M. 629. 185 

If the attorney of a party authorise A. to pay 
money for his client, and A. pay it, and the at- 
torney mention the matter to his client, who does 
not disclaim the transaction till several months 
afler, this is evidence to go tp the jury that the 
authority to pay was authorized by the client. 
Parker v. Dubois, 7 C. <& P. 406— Abinger. 185 



Dealing with Client.'} — Where an attorney who 
draws the will of the testator takes a benefit un- 
der it, the case is to be considered with peculiar 
jealousy, and the jury who try the validity of the 
will must be satisfied that the testator knew its 
contents; but their consideration need not be con- 
fined to direct evidence ; and they may find for 
the will upon circumstantial evidence only. Ra- 
worth V. Mariott, 1 Mylne & K. 643. 185 



VII. Liability. 

On Undertakings.] — The undertaking of an 
attorney cannot be summarily enforced, unless he 
is acting as attorney in the cause. In re Bateman, 
2 Dowl. P. C. 161. 187 

The plaintiff's attomies gave the defendant's 
attornies an undertaking to pay the costs in the 
event of the defendant obtaining a verdict: the 
defendant obtained a verdict and died, and judg- 
ment was entered up within two terms : — Held, 
that the plaintiff's attornies were liable to pay 
the costs, although no sci. fa. had been sued out 
by the personal representatives* Chauvel v. Chi- 
melli, 1 Nev. <& M. 731 ; 4 B. dt Adol. 590. 187 

The solicitor of the London creditors of a 
bankrupt in the country wrote to B., the solicitor 
of the country creditors of the same bankrupt, 
the following letter : — '' I am willing, on behalf 
of the London creditors, to bear two-Uiirds of the 
expense of Messrs. B. &> B., or such barrister as 
you may think fit, for resisting Mr. K.'s proof 
under the commission, and of investigating the 
accounts of assignees at the meeting on the 
18th instant. 1 hereby undertake to bear and 
pay on behalf of these creditors, two-thirds of 
the expenses incident thereto accordingly." And 
the meeting being aflewards adjourned, A. wrote 
to B. another letter, in which he said — ^*' 1 shall 
have no objection to bear as before the proportion 
of expense of the barrister attending the meeting 
stated in your letter :'* — Held, that A. was person- 
ally liable for the proportion of the expenses. 
Hall V. Ashurst, 1 C. &. M. 714 ; 3 Tyr. 420. 187 

The solicitor for the petitioning creditor, on 
the commission being superseded, writes to the 
bankrupt, '* I am ready, and hereby ofier to allow 
and pay the costs incurred by the bankrupt in 
petitioning for the supersedeas :" — Held that the 
solicitor was personally liable on this undertak- 
ing, and that the bankrupt might petition for an 
order on the solicitor to pay these costs, notwith- 
standing a subsequent commission had issued 
against him, under which he had not obtained hie 



2310 



[ATTORNEY AND SOUCITOR] 



certificate, his anigneei difclaiming til interest 
in the matter. £x parte Bentley, 2 Deac. Sl 
Chit. 578. 187 

The prudent coarse ibr attomies, when they 
enter into any arrangement with an opposite 
party, is to draw up a memorandum of the terms 
agreed upon, and read it over to the pul^, and 
let him sign it. Greenwood v. Eldridge, 6 C. & 
P. 128— Gumey. 187 



To Attachment.] — If a rule of court requires a 
client to pay a certam sum of money, an attach- 
ment cannot be obtained against his attorney for 
its non-payment. Poole v. Watkins, 4 Dowl P. 
C. 11. 187 

Where an attorney is in contempt by disobey- 
ing a rule of court, the proper course of proceed- 
ing against him is by moving for an attachment, 
and not by applying to strike him oS the roll. 
Ex parte Townley, 3 Dowl. P. C. 39. 187 

Where an attorney disobevs a rule of court, 
requiring him to do a particular act, an applica- 
tion cannot in the first mstance be made to strike 
him off the roll ; but a rule nisi for an attach- 
ment may be obtained. £z parte Gran, 3 Dowl. 
P. C. 320. 187 

If, by the same rule, he is required to pay cer- 
tain costs, and a clause is also introduced into it, 
authorizing the issue of an attachment in case of 
non-payment, that' may at once issue, although a 
rule nisi only will be granted for disobedience to 
the other piut of the rule. Id. 



To tttmmarv Jurisdietian.] — Where an attor- 
ney has not tullAled his enm^ment with re- 
spect to a loan of money, moependent of his 
character of attorney, the court will not sum- 
marily compel him to fulfil it. In re Chitty, 2 
Dowl. P. C. 421. 188 

If the agent of an attorney does wrong, the 
client cannot make a summary application against 
the agent. £x parte Jones, 2 Dowl. F. C 
161. 188 

The court of bankraptcy will only exercise a 
summary jurisdiction over an attorney, when he 
is acting m the character of an officer of the 
court, and not in an ordinary case between at- 
torney and client. £x parte Bull, 3 Deac. & 
Chit. 116. 188 

The court will not interfere summarily to try 
the question of negli^nce on the part of an at- 
torney towards his client's interests. Brazier v 
Bryant, 2 Dowl. P. C. 600. 188 

Where an attorney has been appointed to re- 
ceive certain monies in furtherance of a trust, 
punuant to the provisions of the Lords' Act, the 
court will not deprive him of that trust, unless 
some ground is shown fi)r considering him unfit 
to fulfil it. Davis v. Lane, 4 Dowl. P. C. 419. 

188 

Directing an attorney to employ a proctor to 
obtain probate of a will is not such employment 
of him m the character of an attorney, as will give 
the court summary jurisdiction over him, as to 



money received by him to pay the proctor. Ex 
parte Cowie or Cohen, 3 Dowl. P. C.600; 1 Har. 
& Wol. 211. 188 

An attorney cannot be ordered to pav the costs 
of an unsuccessful application to whicti be is not 
a party, ezcept upon special motion. Chealyn v. 
iPearce, 4 Dowl. P. C. 603. 188 

Striking of Roll.] — Semble, that the court 
will not strike an attorney off the roll, unless for 
some misconduct in his business of attorney, or 
where criminal proceedings have been taken 

against him. Ex parte ^ 2 Dowl P. C. 110. 

188 

A verdict having been obtained against an at- 
torney, in an action for publishing a libel of a 
very aggravated nature, but in which the jury 
only gave one shilling damages, the court refused 
to strike him off the roll, on the mere ground of 
the publication of that libel. Ex parte ' , 2 
Dowl. P. Clio. 188 

It is no cause for striking an attorney off the 
roll, that he has commenced several qui tarn 
actions for the purpose of revenge. Ex parte 
Warren, 1 Har. & Woll. 113. 188 

Where an attorney brings several qui lam ae- 
tions, and afler their commencement makes an 
ofier to the defendant to coinpromise them, it ia 
no ground for striking him off the roU. Smith «. 
Gillett, 3 Dowl. P. Cf. 364. 188 

The court of King's Bench will not grant a 
rule, calling on an attorney to show cause why be 
should not be struck off the roll, if the affidavit* 
in support of the rule state an offence for which 
he would be liable to indictment. In re -^^, 5 
B. <& Adol. 1088. 188 

The court will not receive an application to 
strike an attorney off the roll, except on the ap- 
plication of a barrister. In re ^ Gent., 3 Nev. 

& M. 566. 188 

Where it was sworn that an attorney had no 
place of residence in this country, an order nisi 
for his being struck off the roll in the court of 
bankruptcy, was permitted to be served at his 
last place of residence. In re Mark, 4 Deac. 
<& Chit. 28. 188 

Where a rule for striking an attorney off the 
roll for misconduct is referred to the prothon- 
otary, he is not to be confined to the affidavits al- 
ready before the court, but may receive any evi- 
dence tending to the elucidation of the matter. 
Dicasv. Wame, 4 M. & Scott, 420; 2 Dowl. 
P. C. 812. 188 

On a reference to the prothonotary of a rule for 
striking an attorney off the roll, on a charge of 
having hired sham bail in error, the officer 
reported that the attorney did not actually hire 
the bail, but was aware they were hired : — ^The 
court discharged the rule on the terms of the at- 
torney paying all the costs of and occasioned by 
the proceedings. Id. 

Though the rule of another court for striking 
an attorney off the roll be produced, semble, an 
order nisi only can be obtained in the court of 
bankruptcy in the first instance. In re Mark, 4 
Deac. & Chit. 482. 188 



[ATTORNEY AND SOLICITOR] 



2317 



j9# t9 Clarks.'\ — Where an attorney receives a 
{Hrom'iasory note from the father of a clerk ar- 
ticled to him, as his fee for taking him, on an 
imdertakinff that the note should not be negoti- 
ated until the expiration of a certain period, and 
be did negotiate it contrary to his undertaking, 
the conrt compelled him to take it up. £x parte 
Gardner, 2 Dow 1. P. C. 520. 189 

AUowmg others to use thdr .Barnes.] — A supe- 
rior court is hound, upon summary application, 
nnder *J2 Geo. 2, c.46, s. 11, to order an attorney, 
who is shown to have allowed an unqualified 
person to practice in his name in such court, to 
he struck off the roll. In re Palmer, 4 Nev. & M. 
&39 ; 2 Adol. & £Uis, 666 ; 1 Har. & WoU. 55. 

189 

But that court only from which the abused 
process issues, can, upon summary application 
under this enactment, order the attorney to be 
struck off the roll. Id. 

Where, upon such an application under this 
statute, the court referred it to the master to say 
whether, in any instance, the unqualified person 
Ittd with the permission of the attorney, prac- 
tioed in that court, the rule can be made absolute 
only upon its appearing by the master's report, 
tfa^ the case is within the statute, not upon the 
ground of a general jurisdiction of the court over 
vts oflicers. Id. 

An attorney who resided at A., occasionally 
occupied part of a bouse in B., where his 
articled clerk lived, the names of both being 
en the door. The clerk was in the habit of at- 
twmiing a conrt of requests and before magis- 
trates, as such clerk, but deriving a profit to 
UBseelf therefrom ; be also conducted an appeal 
m the name of his master, who allowed part of 
tlie bill to he paid by a suit of clothes made for 
the clerk. It also appeared, that several writs, 
issued out of K. B., had been placed in the 
hands of an officer to be executed, having the 
master's name upon them, for part of which he 
pud, hut referred the officer to the clerk for the 
remainder, saying it was the clerk's business 
and not his ; and that in an a'^tion carried on in 
K. B-j in the name of the master, with his know- 
ledge and concurrence, the clerk appeared and 
•eted as the attorney, and after verdict obtained, 
chimed to have the costs paid to himself, and 
objected to have them paid to the master : — Held, 
tfast this was a case within 22 Geo. 2, c. 46, s. 11; 
ind the court ordered the attorney to be struck 
off the roOs. Id. 

A persos who has been regularly admitted as 
IB attorney, but who is off t& roll, by reason of 
Us kavinf^ neglected to take out his certificate for 
sae whole jemr^ is not an ^ unqualified [person" 
vitkin the meaning of sect. 11 of 22 Geo. 2, c. 46. 
fa fs Rom, 4 Ner. A M. 763 : 8. C nom. In re 
Hodgson, 1 Har. Sl WoU. 265 ; 3 Adol. 6l £llis, 
«7 189 

But he may be proceeded against by virtue of 
the general jurisdiction of the court over its offi- 
ceiB, if he takes upon himself to act as an attor- 
■ey. Semble. la. 



Qufere, whether a person, who had been struck 
off the roll for misconduct, would be an *' unqua- 
lified person" within 22 (}eo. 2, c. 46, s. 11 ? Id. 

An application to commit a person to prison, 
under ii Geo. 2, c. 46, s. 11, for having acted as 
an attorney, not being qualified, must also be to 
strike tlie agent, through whom the business was 
transacted, off the roll. In re Hodgson, 3 Dowl. 
P. C. 330; 1 Har. & WoU. 110. 189 

In affidavits filed to support an application to 
strke an attorney off the roll for suffering an 
unprofessional person to carry on business for 
him as his clerk, contrary to I& Geo 2, c. 46, s. 
11, it is not sufficient to state facts from which 
the eourt may infer that the parties shared the 
profits; the prosecutors must state their belief 
that such was the case, unless the facts are such 
as cannot lead to any other conclusion. In re 
King, 1 Adol. & EUis, 560 ; 3 Nev. & M. 716. 

189 

The mere fiict, that an attorney has employ- 
ed an unprofessional person to carry on husi- 
ness for him as his clerk, at a place nmety miles 
distant from the attorney's own residence, is not 
sufficient ground for such an application. Id. 

Delivery up of Doeuments.'] — Where a client 
obtained an order that his attornies should de- 
liver him an account of all monies received on his 
behalf, and they accordingly delivered an account, 
the court refused to grant an attachment against 
them upon affidavits impeaching the correctness 
of the account. £x parte Lawrence, 2 Oowl. P. 
C. 230. 190 

The court can only interfere to compel an at- 
torney to deliver up deeds in his possession, at 
the instance of the party who deposited them 
with him. In re Thornton, 2 Dowl. P. C 156. 190 

An attorney, with whom a will has been de- 
posited by the testator, will not be compelled to 
deliver it up to the sole legatee under it. £x 
parte Crisp, 2 Dowl. P. C. 455. 190 

An attorney, with whom deeds are dej^ifeed 
in order to enable him to obtain money tor the 
party depositing, is bound, upon inquiry by his 
client, to inform him where such deeds are. 
Wilmott V. EUcington, 1 Nov. 6l M. 749. 190 

An attorney, with whom deeds are deposited, 
places them, without his client^s knowledge, in 
the hands of a party from whom ]ie has borrowed 
money for his client The attorney afterwards 
is unable to inform his client where the deeds 
ue : — he is chargeable with having mislaid such 
deeds. Id. 

If a party sucoessfuUy resists an action by an 
attornev plaintiff for costs, on the ground of his 
never having been emploved, he cannot after- 
wards summarUy compel tKe attorney to give up 
documents which have come to his possession in 
the course of the business, for doing which the 
action was brought £z parte Maxwell, 4 Dowl. 
P. C. 87. 190 

Where an attorney, having the custody of 
I certain papers, has been ordered by the court of 
\ Chancery, in which he has been made a party to 



3318 



[ATTORNEY AND SOLICITOR] 



a suit, to delirer them into the custodj of the 
(yffieer of that court, the eonit of K. B. will not 
direct him to deliTer them up, though on apf^ ! 
cation of a par^ interested in them ; hecao^r it ' 
would fender the attorney liable to an attach- | 
ment for non-com|^iance with the order of the , 
cooft of Chanoerj. In re Walmaler, 4 Nev. & i 
M. 543; 2 Adol. 6l EUia, 576; 1 Har. & WoU. 
8B. 190: 

Where an attorney had obtained from an aged ' 
lady, in the absence of her attorney, her signar 
tme to a paper, whereby she agreed to abandon a ' 
judgment in e^ctment, obtained by ber by de&nlt 
of the tenant m poss e ssion, and to allow the ques- . 
tion of title to be fairly tried as between her and the ! 
attorney's client, landlord of the tenant in posses- j 
sion, the court compelled him to give up the in- 
strument to be cancelled. In re Oliver, 4 Nev. & 
M. 471 ; 2 Adol. & Ellis, 620; 1 Har. & Woll. 
79. 190 

If A has employed B as his attorney, and has 
paid his bill, A. has a right to have his papers 
delivered up to him ; and it is no defence to an 
action of detinue brought by A. against B., for 
B. to shew that his London agent detains the 

Spers, he having a lien on them as against B., 
r a balance of account for business done. 
Anderson v. Passman, 7 C. A P. 193— Coleridge. 

190 

The court refused to order an attorney to de- 
liver up a deed which had been given to him by 
one of the parties to it to get executed by his 
client, who was another party. Ex parte Smart, 
1 Har. db Woll. 526. 190 

Where a client has deposited a deed in the 
hands of bis attomev, and the latter aflerwards 
becomes bankrupt, toe court will not summarily 
interfere to compel the assignees to deliver up 
those deeds which have come to their hands from 
the bankrupt Ex parte Roy, 4 Dowl. P. C. 573. 

190 

An attorney having brought an action for his 
hill of costs, which was derended by tbe client, 
on the ground of negligence, was ordered to give 
to the defendant a copy of a case, with the 
opinion of counsel thereon, (which had been pro> 
cured for the defendant by the plaintiff as his 
attorney), at tbe defendant's expense, or to deliver 
up the case itself on being paid the costs which 
the plaintiff claimed in respect of such case and 
opinion. Evans «. Delegal, 4 Dowl. P. C. 374. 

190 

By a deed of settlement, estates were conveyed 
to trustees for the use of A. for his life, remain- 
der to such uses as he should direct by his will, 
the deed giving the usual powers fer appointing 
new trustees in case of death, Ac. A. devised 
all the real estates of which he had power to dis- 
pose, and all his personalty to trustees, (whom he 
also made his executors), to sell and invest the 
produce, and pay the interest to his widow during 
ner life, and aflerwards to stand possessed of the 
funds, in trust for B. and C, share and share 
alike. A. died leaving his widow surviving. Two 
of tbe executors proved the will. The last sur- 
▼iving trustee unaer the settlement died, leaving 



a son, to whom, as his heir at law, the legal estate 
in the settled piop e itj descended, but who never 
was appointed a trustee. Before and afler the 
testator's death, an aUomey was employed in busi- 
ness relating to the settled and dievised estates, 
for which a sum of money was due to him. and 

I he held the title deeds. After the tesUtor's death, 
the son of the trustee under the settlement, and 

! one of the executors, joined in an application to 

' the court, that the attorney might account for ail 
sums received by him in respect of the estates, 

. and deliver up the deeds to tne trustees for the 
said estates, on payment to him of any thing that 
might appear to be due from them. The other 
executor, and all the parties beneficially in- 
terested, objected to the application. The court 
refused to interposr, the rights of tbe parties not 
being clear, and one executor not concurring in 
the motion. In re Bunting, 2 Adol. A. Ellis, 497. 

190 



Pafmad of Jfeney.] — Liability for payment of 
money, in re Bonner, 4 B. & Adol. bll ; 1 Nev. 
& M. 555. 191 

The court will not interfere to compel an at- 
torney to pay over money, the right to which is 
dependent on the existence of a special agree- 
ment between the client and tbe attorney, which 
tbe latter disputes. Hodson v. Terrall, 2 Dowl. 
P. C. 2b4. 191 

The court will not interfere summarily to com- 
pel an attorney to pay over or account for money 
received by him during his clerkship. Ex parte 
Deane, 2 IXowl. P. C. m 191 

A summary application being made against 
three attomies jointly, to pay over to t& as- 
signees a sum of money which they had received 
as the bankrupt's solicitors, under an order of 
the court of Chancery :--Held, not sustainable, 
as they were not all collectively attomies of the 
court of Review. Ex parte Hicks, 2 Deac. db 
Chit 573. 191 

Quere whether such an order would have been 
made if they had been all attomies of that 
court t Id. 

A bankrupt's certificate does not remove an 
attorney's liability to an atachment for not duly 
investing his client's money. ^ Ex parte Grant, o 
Dowl. P. C. 320. 191 

Where a rale is made absolute by consent, order- 
ing that A., an attorney, who has fraudulently re- 
tamed in his hands the money of bis client, shall 
pay the amount bv a particular day, that he shall 
pay the costs of the application, and that other- 
wise, an attachment shall issue. — ^it is no answer 
to a motion for such attachment, that, on the 
day afler that appointed for the investment, a fiat 
in bankruptcy issued against A., under which he 
has obtained his certificate, and that no service 
of the rule and allocatur took place before the 
bankruptcy. In re Newberry, 5 Nev. dt M. 419; 
1 Har. & WoU. 375. 191 

Whether the supervention of the fiat and 
certificate would have excused the non-obedience 
to the rale by A., so as to have exempted him 



[ATTORNEY AND SOLICITOR] 



2319 



from an attachment, if no fraud had been shown, 
qaere? Id. 

Whete an attorney received money to pay over 
to a proctor for probate of a will, the court re- 
fused to interfere summarily to make him account 
for it. Ex parte Cohen or Cowie, 3 Dowl. P. C. 
600 ; 1 Har. & WoU. 211. 191 

The court will not order an attorney to pay 
orer a sum of money received by him in his 
character of attorney, except upon the applica- 
tion of the client to whom the money is due. In 
n Fenton, 5 Nev. ^Et M. 239; 3 Adol. &, Ellis, 
404 ; 1 Har. & WoU. 310. 191 

No rule will be granted at the instance of a 
third party. Id. 

The court refused a rule made on the behalf 
of the crown, calling on an attorney to pay over 
to the receiver of stamp duties a sum of money 
which the attorney had received from his client, 
an executor, for the purpose of paying legacy 
duty, but which he had not in fact paid. Id. 

The court will not call upon an attorney to re- 
pay money, or to account before the master, on 
the grounds merely that the attorney obtained 
such money from his client as if for the purposes 
of a suit, but that his bill is said not to account 
satisfactorily for the obtaining and application of 
such money; that the amount obtained seems 
immoderate, and that the client states a ease of 
£rand. In re Marris, 2 Adol. &, Ellis, 582. 191 

A judge at chambers has power to make an 
order on an attorney in a cause to pay money, and 
snch order will be made a rule of court, as of 
eonrae, without a rule to show cause. Wilson v. 
Northop, 2 C. M. dt R. 326; 4 Dowl. P. C. 441. 

191 

Where it is clearly shown that an attorney keeps 
out of the way to avoid being served with rules 
for the payment of money, Uie court will allow 
service upon his clerk to be good service. The 
affidavit, however, must specify the endeavors to 
e&ct a service, and the reasons for believing that 
he is in town, and avoiding service. Hinton v. 
Deane, 4 Dowl. P. G. 352. 191 



_ matters of .^fidamt."] — An applica- 
tion for a rule requiring an attorney to answer 
the matters of an affidavit, must be made by a 

ritleman at the bar. Ex parte Pitt, 2 Dowl. 
C. 439; 5 B. d& Adol. 1077. 192 

It is too late to move for a rule, calling on an 
attorney to answer the matters of an affidavit, 
within the four last days of term ; neither can 
cause be shown against such rule on the last day 
of term. Ex parte , 2 Dowl. P. C. 227. 192 

It was held no ground for making an applica- 
tion against an attorney, that he ha3 advised his 
client to hand him over money which the Insol- 
vent Debtors' Court, on the client's application 
there for his discharge, considered a misappropria- 
tioD, and for which he was remanded by that 
eoort. Smith v. Tower, 2 Dowl. P. C. 673. 192 

A rale nisi affainst an attorney to answer mat- 
Urs in an affidavit, cannot be moved for on the 



last day of term. In re Turner, 3 Dowl. P. C 
557; I Har. & WoU. 217. 192 

Jire^ligeHce.]-At is not every mistake or mis- 
apprehension of an attorney that will make him 
liable to an action for negligence. The question 
in such an action is, whether the attorney has 
used reasonable skill and reasonable care. In an 
action against an attorney for npffligence, the de- 
claration stated that the plaintiff was a prisoner 
in execution for a debt not exceeding 20Z., and 
had been so for twelve calendar months, and waa 
desirous of obtaining his discharge, of all which 
the defendant had notice; and fiat he, the de- 
fendant, in consideration that the plaintiff would 
employ him to obtain his discharge, undertook to 
use due diligence, yet the defendant, not regard- 
ing, &c., did not take proper meaaures to obuin 
the plaintiff's discharge. To this declaration 
the defendant pleaded, first, non-assumpsit, and 
secondly, that he did take proper measures, and 
did use due diligence .—Held, that on the second 
issue it lay on the plaintiff to prove negligence in 
the defendant ; and held, also, that by these plead- 
ings the prefatory allegations of the declaration 
were admitted by the defendant. Shilcock v. 
Passman, 7 C. & P. 289— Alderson. 192 

Where there appears to be negligence or igno- 
rance of the law on the part of^the attorney, 
which creates unnecessary costs, the court will 
order the costs to be disallowed on taxation^ ^ 
without prejudicing his right to bring an action 
for them. Cliffe v. Prosser, 2 Dowl. P. C. 21. 

195 

If attomies, employed by a vendor to settle on 
his part the assignment of a term, allow him to 
execute an unusual covenant, without explainintr 
the liability thereby incurred, they are responsi*^ 
ble to him for consequent loss, notwithstanding 
he is himself, at the time of the assignment, 
aware of tlie fact in respect of which he after- 
wards incurs liability on his covenant. Stannard 
V. UUithome, 10 Bing. 491 ; 4 M. & Scott, 359. 

194 

A., a complainant in Chancery, employed B. 
as his solicitor, during whose employment an 
irregular order to dismiss the bill on a certain 
day, unless publication passed, was obtained; 
before that day arrived, C. was appointed the so- 
licitor of A. ; and the bill having been dismissed 
because no step was taken by Cf., an action was 
commenced against him for negligence, which 
was held to be maintainable, because he should 
have conformed with the order, or should within 
the time have moved to vacate it. Frankland v. 
Cole, 2 C. & J. 590. 194 

The court of Chancery has no jurisdiction to 
make a solicitor responsible for negligence in 
the conduct of a suit. Frankltod v, Lucas, 4 
Sim. 587. 295 

An action having been brought against an at^ 
tomey for negligence, in which action the jury 
gave a verdict for the plaintiff finding also that 
the attomev had been ffuilty ot gross negligence, 
and then the attorney brought an action for his 
bill of costs, the court refused to stoy proceedings 



2320 



[ATTORNEY AND SOUCITOR] 



in tke latter action. Smith v, Rolt, 2 Dowl. P. C. 
m. 19S 

Where an attorney was charged with oppres- 
sion towards his client, but the application was 
not made till afler three terms had nearly elapsed, 
and no attempt was made to explain the delay, it 
was held that the motion was too late. Garry v 
Wilks, 2 Dowl. P. C. 649. 195 

An agreement was entered into between A. 
and B. B. died, and administration to his e&cts 
was granted to C.,' his daughter. D., who was a 
fiiend of C, employed the same attorney who 
had prepared the original amement to prepare 
another between him and C, by which he was 
aothorixed to bring an action against A., on the 
original agreement, in C.'s name, and also in- 
structed the attorney to bring such action. The 
action was brought, and, af&r argument on de- 
murrer, the original agreement was declansd 
▼Old, on the ground of champerty. But it ap- 
peared that the attorney, in preparing such ori- 
ginal agreement, had consulted a oonyeyancer, 
who gave it as his opinion that the agreement 
was valid : — Held, at Nisi Prius, that Uie attor- 
ney was entitled, under the circumstances, to re- 
cover from D., his employer, the costs of pre- 
paring the second agreement, and also those of 
bringmg the action upon the first Potts v. Spar- 
row, 6 C. & P. 749— Tindal. 194 

The court will not compel an attorney to re- 
fund to his client costs unnecessarily incurred, 
unless he has been guilty of gross negligence. 
Meggs o. Binns, 2 Bing. K. R. &5. 195 

The attorney for a defendant who was in cus- 
tody on final process, obtained the consent of the 
plamtifi''s attorney not to charge him in execu- 
tion in the term in which that step ought to have 
been taken, on the false representation that he 
had the defendant's authority and consent to 
take no advantage of his not being charged in 
«xecntton till the next term. The defendant's 
attorney signed an undertaking to that efiect, 
which, however, did not state Uiat the proceed- 
ings were stayed at the defendant's request, pur- 
suant to Reg. Gen. of the Exch., Hil. 26 «& 27 
Geo. 2. The defendant was not charged in exe- 
cution till the next term, and was afterwards dis- 
charged on the ground of the above omission in 
the undertaking. An action having been brought 
by the plaintin against the defendant's attorney, 
for damages accruing from the defendant's dis- 
charge by the felse representation, it was held 
that it could not be maintained, for the damage 
laid arose from the informality of the under- 
taking. Hewitt 9. Melton, 4 Tyr. 1003 ; 1 C. M. 
A R. 232. 193 



IX. Bill or Costs. 

Dditery of Bta.]^Business done in Middle- 
_jx countv court Becke v. Wells, 3 Tyr. 193: 
IC. &M.75. 197 

Business done in county court Wardle v. Ni- 
cholson, 4 B. & Adol. 469 ; 1 Nev. & M. 355. 197 

(..Semble, tliat the drawing and ingrossing a 
warrant M attorney is a taxi3»le item. James v. 
Child, 2 C. & J. 678; 2 Tyr. 732. 197 



Charges for searching the Warrant of Attorney 
office, and for a fee paid there, do not make an 
attorney's bill taxable under stat. 2 Geo. 2, c. 23. 
£x parte Bowles, 1 Scott, 563; 1 Bing. N. R. 
632 ; 1 Hodges, 143. 1U7 

Procuring an appearance to be entered by a 
proctor in ue Consistorv Court, is not a taxable 
item in an attorney's bill. In re Marris, 2 Adol. 
& £llis, 582. VJ7 

An attorney emploved to transfer stock, found 
that a distringas tiaa been entered at the Bank 
to prevent the transfer. He thereupon made 
several inquiries respecting the transactions on 
behalf of his client, and prepared a notice to the 
solicitor of the Bank to file a bill in conseouence 
of the writ being entered : — Held, that his charges 
were not taxable items hetween him and tua 
client, it not appearing that the distringas ori- 
OTuated in any suit, or that the business had re« 
fere nee to any proceeding in a court — Per Patte- 
son, J. — If the distringas had been in a suit, the 
steps taken by the plaintiff did form taxable 
items. Nicholas v. Hayter, 2 Adol. & Ellis, 348. 

197 

Charges for inquiries made, and attendances 
in the course of such inquiries, relating to a suit 
of which another attorney had the management, 
and in which, afler such inquiries, the attorney 
making them did not further interfere, are not 
taxable items. Id. 

Quiere, whether a country fiat be a proceeding 
at law or in equity ? Ex parte Jones, 2 Mont & 
Ayr. 207. 197 

If an attorney, who is not admitted in the 
court of Bankruptcy, employ an agent who is 
admitted to strike a docket, and afler payment of 
the agent by the official assignee, the attorney, 
who IS the principal^ deliver a bill with charges 
for striking the docket, it is taxable. Ex parte 
Cass, 2 Mont & Ayr. 170. 197 

Items of the costs taxed in two actions, and 
paid by the attorney, and for which he had re- 
ceived no specific payment from his client, are 
properly inserted in the bill of costs, and need 
not be in the cash account. Harrison v. Ward, 
4 Dowl. P. C. 39; 1 Har. & WoU. 353. 197 

If an attorney deliver a bill to his client duly 
signed, for busmess in court, and another sepa- 
rate bill for conveyancing, not signed^ in an ac- 
tion for the amount of the conveyancing bill, its 
not being signed is no objection at the trial ; but 
a judge would, on application, order both bills to 
be Uxed. Beck v, Penn, 7 C. & P. 397— Tindal. 

197 

If various matters form but one transaction, 
some being at law, and others for conveyancing, 
one bill only ought to be made out Doe 3. 
Palmer v. Roe, 4 l^wl. P.C. 95; I Har. A WoU. 
339. 197 

An attorney is not bound to insert in his bill 
of costs the amount paid to a proctor employed 
by him for his client Franklin v. Feathenton- 
haugh, 3 Nev. db M. 779; 1 Adol. A. Ellis, 475. 

197 

In an action on an attorney's bill, the defendant 
cannot, afier being let in to plead to the merits, 



[ATTORNEY AND SOLICITOR] 



2321 



plnd that no signed bill was delivered. Beck v. 
Mordaant,4 Dowl. P. C. U2; 2 Scott, 178; 1 
Hodges, 196 ; 2 fiing. N. R. 140 : S. P. Holmes 
V. Grant, 1 Gale, 59. 197 

Qosre, whether such a defence can be giren 
in evidence under the general issue ? Id. 

In an action on an attorney's bill, the defendant 
suffered judgment to go by ciefault, which was set 
aside on an affidavit of merits and payment of 
costs, and the defendant was let in to plead. She 
pleaded that no signed bill bad been delivered, 
and afterwards added two pleas of non-assumpsit, 
and thai the plaintiff" had not taken out his cer- 
tificate. The plaintiff', on application to a judge 
at chambers, obtained an order confining the de- 
iendsat to the plea of the general issue. The 
court held that tnis order was proper, it appear- 
ing that the defendant bad had the bill taxed. 
Biggs 9. Maxwell, 3 Dowl. P. C. 497. 197 

To an action on an attorney's bill, defendant 
pleaded that the bill was for work at law and in 
equity, and was not delivered to her a month be- 
fi»re action. Replication, that the bill was not 
for work at law and in equity : — Held, ill. Moore 
V. Boulcott, 1 fiing. N. R. 323 ; 1 Scott, 122. 197 

In an action by an attorney for business done, 
for which no signed bills had been delivered, in 
pursuance of the statute, an admission by the 
defendant, in an examination before the commis- 
sioners under a commission of bankruptcy since 
superseded, that the sum claimed was aue, is not 
sufficient evidence to support a count upon an 
account slated. Eicke v. Nokes, 4 M. & Scott, 
; 1 M. &. Rob. 350. 197 



After the lapse of nine years, the court will not 
compel an attorney to re-deliver bills for busi- 
ness done by him, without some suggestion of 
fiiaud, mistake, or overcharge. Manning v. Brown, 
3Dowl. P. C. ri. 197 

Whether a bill delivered by an attorney, with- 
out mentioning tlie court in which the business 
is done, is a suracient compliance with the 2 Geo. 
2, quere ? Semble, that it is. lister v. Lazarus, 
4 Dowl. P. C. 397 ; 1 Gale, 317; 2 C. M. dt R. 
€65; 1 Tyr. & G. 123. • 197 

An assignee of an insolvent attorney is entitled 
lo recover the bills of costs due to the estate with- 
out delivering signed bills, according to the direc- 
tions of the 2 Geo. 2, c. 23. Id. 

It is the duty of the attorney to cause his 
nasne to be inrolled ; and if he omits to do so, he 
is incompetent to obtain costs, though otherwise 
duly qualified as an attorney. Humphreys r. 
Harvey, 1 Ring. N. R. 62 ; 4 M. <& Scott, 500 ; 
2 Dowl. P. C. «2. 198 

Ikzaium of BiU.]— 'Agreements not to tax at- 
torney's bills are discountenanced. Woosnam v. 
Piyce,3 Tyr. 375 ; I C. & M 352. 199 

Use court has no direct power to refer an attor- 
ney's bill for taxation, except under the authority 
oTS Geo. 2, ciSi, s. 23. Ex parte Bowles, 1 fiing. 
N. R. 632; 1 Scott, 583; 1 Hodges, 143: S. P. 
Dted. Palmer r. Roe, 4 Dowl. P. C. 95; 1 Har 
A WoU 3SI. 11>1 



An attorney does not waive his right to object 
to the jurisdiction of the court directly to rcfisr 
his bill for taxation by attending its taxation be- 
fore the master, on which, according to the star 
tute, he would be liable to pay the costs of taxa* 
tion, the client not having given the undertaking 
required by the statute to pay what should be 
found due. He will, however, be liable to refund 
what should be overpaid on such taxation. 
Howard v. G^oom, 4 Dowl. P. C. 21 ; 1 Har, A. 
Woll. 355. 19^ 

The court cannot direct a bill to be taxed at 
the instance of any person but the original 
client Doe d. Palmer v. Roe, 4 Dowl. P. if. 95 ;. 
1 Har. & Woll. 339. 199 

A person, who is the real plaintiff' in a cause,, 
but who is obliged to sue in the name of another, 
may apply to the court to have his attorney's bill 
in the cause taxed. In re Masters, 4 Dbwl. P. C. 
18 ; 1 Har. A Woll. 348. 199- 

It is no answer to an application to tax an attor* 
ney's bill, that an agreement has been made that 
the attorney shall receive one-half the proceeds- 
of a suit carried on at the instance of the client. 
Id. 

A client is entitled to have his attorney's bill 
taxed, although he may have expressed his Mtis- 
faction at the bills, paid a sum on account, and 
allowed four years to elapse from the delivery oF 
the bills before he applies fi>r an order to tax. 
Woolaston v. Weston, 4 Dowl. P. C. 3 ; 1 Har. A 
Woll. dm. 199' 

In an application to tax an attorney's bill, it 
must be sworn that there are taxable items in 
the bill, although the bill itself is exhibited. £x 
parte King, 3 Dowl. P. C. 41. 19^ 

An order was made for the taxation of four 
several bills of a solicitor for various business^ 
done for the same assignee, under which more 
than one-sixth was taken off* the gross amount- 
of every one of the bills : — Held, that as the- 
bills were incurred by the same person, in the 
same ri^ht, there was no need for a separate order 
of taxation for each bill ; and that, as'more tlian- 
a sixth was taken off from the whole amount, the^ 
solicitor must pay the costs of the tajsation. Ex 
parte Barrett, 3 Deac. <SEe. Chit Tdl. 199 

Where an attorney's bills are referred for tax- 
ation to the prothonctary of the Common Pleas^ 
he may refer items for business done in the King's 
Bench to be taxed by the master of the latter 
court ; and the King's Bench has no jurisdiction 
to interfere with that taxation of the master, nor 
is the prothonotary bound by it. In re Jones, 1 
Dowl. P. C. 424. 200 

The court will not mnt a rule for the taxa- 
tion of an attorney's bill of costs at the instance 
of a third party, who makes the application sim- 
plv for the collateral purpose or reducing the 
,bill so low as to make him a bad petitioning cre- 
ditor. Clutterbuck v. Coombs, 2 Ne v. & M . 209 > 
5 B. & Adol. 400. 199 

A party agreeing to pay the costs of the at- 
torney of another, as between attorney and client, 
is entitled to have the attorney's bill taxed. Sad- 



[ATTORNEY AND SOUCITOR] 



ler V. FMtejnmn^ 3 Ner. A M. 599; 1 AdoL A 
Ellis, 717. 199 

A eonil has no power to order the bill of an 
•ttomer to be taxed, onlesB it appear tbat aome 
part of the busineai waa done in the court to 
which application for the order is made. Ex 
parte King, 3 Sev. A M. 437. 200 

Although the master, on taxation, has not ju- 
risdiction to determine whether acts done by the 
attorney were useful, be may determine what 
were neceasaiy. Heald v. Hall, 2 Dowl. P. C. 
163. 200 

Sererd perMus having agreed to share with a 
plaintiff the expenses of an action, and he, having 
paid the attorney's bill, brought an action for 
contribution against one of Siose persons ; the 
court, on his application, ordered the attorney's 
bill to be taxed, though it had been paid, and 
the defendant in the action had paid his full 
share of the money into court. Grover v. Heath, 
2 Dowl. P. C. 2&S. 200 

The master, to whom a bill of costs is referred 
for taxation, has no power to inquire into the fiict 
whether the business charged for was agreed to 
be done for costs out of pocket Evans v. Tay- 
lor, 2 l>owl. P. C. 349. 200 

A fiat was sued out on the 7th of June by an 
attorney against hm debtor for the amount of a 
bill of costs, and the bankrupt was shortly after- 
wards discharged under the Insolvent Act, hav- 
ing inserted the amount of the attorney's bill in 
hii schedule. The bankrupt passed his last ex- 
amination, and on the 4th December petitioned 
for an order to tax the attorney's bill, with a view 
of suspending the fiat, on the ground of the in- 
sufficiency or the petitioning creditor's debt : — 
Held, that the bankrupt could not, after lying 
so long, and after his previous admission of the 
debt, apply for such an order — Diss. Cross, J. 
Ex parte Gingell, 2 Deac. & Chit. 546. 200 

An agreement to pay costs is an agreement to 
pay taxed costs ; and a third party paying a so- 
licitor's bill of costs, in order to compromise a suit, 
stands in the same situation with respect to the 
right of claiming taxation as the solicitor's client. 
Vincent v, Venner, 1 Mylne A, K. 212. 200 

An application to tax an attorney's bill ought 
to be made at chambers. Bassett v. Giblett, 2 
Dowl. P. C. 650 201 

Where an action was brought to recover an 
attorney's bill of costs for several distinct busi- 
nesses, as to some part of which the client dis- 
puted his liability on account of the negligence 
of the attorney, but the other part was not dis- 
puted ; the court refused to order the master to 
tax the disputed part of the bill separately from 
the rest, a judge's order to tax having been be- 
fore obtained on the usual tetms. Jones v. Ro- 
berts, 2 Dowl. P. C. 656; 4 Tyr. 310. 201 

Where an action of ejectment was brought on 
the forfeiture of a lease by the breach of Uie co- 
venants, and a compromise was come to, by which 
the old lease was to be surrendered and a new 
one granted, and the costs of the lessors of the 
plaintiflT were to be paid, which was done, the 
court refused afterwards to refer the bill of costs 



of the attomey to the lesson of the plaintiff for 
taxation. Doe d. Palmer v. Boe, 4 Dowl. P. C. 
95; 1 Har. db WoU. 339. 201 

In taxing an attorney's bill, the master b not 
bound to enquire into the reasonableness of a bill 
paid to a proctor. Franklin v Featherstonhaogh, 
3 Nev. & M. 779; 1 Adc^ Sl EUis, 475. §01 

Aceordinjr to the practice of the Ecclesiastical 
Court, a bill of costs cannot be taxed as between 
proctor and clienL Id. 



CottM ejf Tttzation.] — In taxing an attorney's 
bill, if a mil sixth is taken oS, the attomey is al- 
ways liable to pay the costs of taxation ; if less 
than a sixth is taken off, it is in the discretion of 
the court to make him pay the costs or not ; and 
therefore, where a larse sum u taken off, being 
within a trifle of a sixths — ^Held, that the master 
was justified in charring the attomey with the 
costs of taxation. Buer v. Mills, (or Wills), 2 
Dowl. P. C. 382; 2 C. AM. 415; 4 Tyr. 279. 

201 

An attomey having taken a bill of exchange 
from his client in payment of a bill of costs, but 
the bill of exchange not being paid, the attomey 
sued upon it ; the court allowed him to pay thie 
costs or taxing h'ls bill (more than a sixth having 
been taken off) to the holder of the bill in part 
payment. Woollison v. Hodgson, 2 Dowl. P. C. 
351. 201 

An attomey employed to defend an action, and 
receiving from his client the debt anjl costs, for 
the purpose of being paid over to the {daintiff^ is 
not entitled to make tnat sum an item in his bill, 
so as to increase the amount of it. Woollison v. 
Hodgson, 2 Dowl. P. C. 360. 201 

A defendant's attomey having delivered to his 
client his bill of costs, from which more than one 
sixth is taxed ofi^ cannot afterwards alter that pro- 
portion by adding on both sides of the account a 
sum received by bim from his client and paid into 
court Hays v. Trotter, 3 Nev. A M. 176 ; 5 B. 
A Adol. 1106. 201 

Where an attomey brings an action to recover 
the amount of his bill, and after action brought 
his bill is taxed, he is not bound to pay the costs 
of taxation, unless it appears that the action was 
brought to avoid those costs. Toomer v. Fuller, 
2 Dowl. P. C. 195. 201 

An action between A. and B. is compromised, 
B. undertaking, to pay A.'s costs as between at- 
tomey and client. The bill of costs of A.'s at- 
torney being taxed, more than a sixth is taken off. 
The attorney is liable to pay the costs of the tax- 
ation to B. Saddler v. Palireyman, 3 Nev. A M. 
599 ; 1 Adol. A Ellis, 717. 201 

An attomey delivered his account in three 
bills; a class of items in one bill was disallowed, 
and the whole amount of the three bills reduced 
one-sixth : — Held, that the attorney was liable to 
the whole costs of taxation . Morris v. Parkinson, 
2C. M. ^;&R. 178; 3 Dowl. P. C. 744 ; 1 Gale, 
160. 201 

The court refused to require an attomey to pay 
the costs of taxation, where the deduction be- 
yond one-sixth was occasioned by the master's 



[ATTORNEY AND SOLICITOR] 



2323 



^Hallowing one of the bills delivered, on the 
groand of non-liability. Mills v. Reyett, 3 Nev. 
% M. 767 ; I Adol. & Ellis, 856. 201 

Where leu than oue-fixth is, upon taxation, 
atmck off* an attorney's bill, the court will, as a 
matter of course, order the client to pay the costs 
of taxation. Id. 

In considering whether more than one-sixth 
of an attorney's bill has been taxed off, the entire 
amount of the bill must be taken, inclusive of a 
proctor's bill. Franklin v. Featherstonhaugh, 3 
Nev. & M. 779 ; 1 Adol. & £l]is, 475. 201 

On the taxation of an attorney 's bill, very nearly 
one-aixth was taxed off, and afterwards a rule 
to refer back the bill for taxation was discharged 
on the merits ; no objection was, however, made 
to items being inserted in the bill of costs instead 
of the caah account, where, if they had been in- 
serted, more than one-sixth would have been de- 
ducted : — The court afterwards refused, on a fresh 
rule, to listen to that objection. Harrison v. 
Ward, 4 DowL P. C. 39 ; 1 Uar. &, WoU. 353. 

201 

It is too late to rescind a judge's order allow- 
ing to the plaintiff's attorney the costs of taxing 
the coats on the back of a writ, from which more 
than a sixth was taken off, after the order has 
been made a rule of court, and an attachment 
obtained upon iL Thomson v. Carter, 3 Dowl. P. 
C. 657. 201 

Taxation of bankrupt attorney's bill. Fea- 
tbprsUmehaugh v. Reece, 2 Dowl. P. G. 30; 1 C. 
A M. 496 : S. C. nom. Featherstonehaugh v. Keen, 
3 Tyr. 540. 201 

The assignees or executors of a bankrupt are 
Dot under uie statute liable to pay the costs of 
taxation if more than one-sixth of the bill of costs 
of the solicitor is deducted on taxation. Willasey 
V. Maahiter, 3 Mylne & Keen, 990C 201 

The costs of taxing the bill of costs of a soli- 
citor who has become bankrupt, do not h\\ upon 
his assignees on the ground that more than a 
sixth part is deducted on taxation, although the 
assignees may have attended the taxation by their 
solicitor. Allsop v. Oxford (Lord), 1 Mylne Sl 
Craig, 26. 201 

The plaintiff had obtained an order for taxa- 
tion of his solicitor's bill, amounting to 399/. 
The solicitor, with the Master's permission, 
strock out certain items as having been inserted 
by mistake. The bills were then taxed, and less 
tosn a sixth was taken off, but if the items 
strock out were included, more than a sixth 
woold have been taken off: — Held, that as less 
than a sixth had been taxed off, the plaintiff must 
pa^ the costs of taxation. Marshall v. Oxford, 5 
Sim. 456. 201 

Upon an i4>plication that the solicitor may be 
directed to pay the costs of taxation, more than 
a sixth part having been taken off his bill, the 
court will not enter into the particulars of the 
items of the bill. Ex parte Millington, 1 Deac. 
114. 201 



hems of Charge.'} — In an action on an attor- 

' Vol. IV. 7 



ney's bill, an order for better particulars was ob- 
tained on payment of costs : — Held, that a charge 
for drawing the bill, as part of the costs, was 
properly disallowed by the Master. Junes v. Ro- 
berts, 2 Dowl. P. C. 374 ; 4 Tyr. 310. 202 

Where a London agent has been employed to 
attend the trial of a cause, it is a matter within 
the discretion of the Master, whether the costs of 
a joumev to London by the countrv attorney, to 
attend the trial of the cause, shall be allowed. 
Parsloetj. Foy,2Dowl. P. C. 181. 202 

The Master's decision on qqestions of taxation 
is final as to matters of fact and amount of 
charges, and is only reviewed by the court when 
the Master acts upon a mistaken principle ; and 
if the solicitor negligently or ignorantly takes 
some unnecessary proceeuing, it is the duty of 
the Master to disallow the charge made in respect 
of such proceeding. Alsop v. Oxford (Lord), 1 
Mylne <& K. 564. 202 

Where it is the usage of the profession that 
certain business should be intrusted to an agent 
in London, a country solicitor will not be allowed 
to charge for his attendance in London to per- 
form that business, although his client has re- 
2 nested his attendance, unless the solicitor has 
rat explained to his client that, by the usage of 
the profession, such attendance is considered to 
be unnecessary. Id. 

The comparison of an abstract of title with 
thelitle deeds is business witliin this rule, and a 
country solicitor will not be allowed to charge for 
his personal attendance in London in respect of 
such business. Id. 

The proper charges in respect of an abstract of 
title are 65. 8d. per sheet for drawing, and 3«. 4d. 
for copying, firoadhurst o. Darlington, 2 Dowl. 
P.C.38. 202 

An attorney who is a party to a suit is not en- 
titled to charge a |[uinea for attending the trial, 
though he acta as his own attorney, unless it ap- 
pears that it was necessary he should attend m 
person. Leaver v. Whalley, 2 Dowl. P. C. 80. 202 

Where a vendor's attorney disclosed outstand- 
iuff terms upon an abstract, although a market^ 
able title might have been shown by taking it up 
at a subsequent date : — Held, that upon taxation 
of the attorney's costs, he was entitled to be paid 
his charges incurred in getting in the outstanding 
terms. £x parte Quicke, 2 Scott, 184 ; 1 Hodges, 
202. 209 

But the attorney will not be allowed his charges 
for attested copies of a will, which, by the con- 
ditions of sale, were to be given at the vendor's 
expense, such a condition not being unusual. Id. 

Where a country attorney, a defendant in a 
cause, not being an attorney of the court, defend- 
ed in the name of a London agent, who was an 
attorney of the court, and the defendant attended 
the assizes in person, and the plaintiff was non- 
suited : — Held, that the defendant was entitled to 
his fees for attending the trial, drawing brieft, 
&.C., as all the business must be' considered to 
have been done in the name of the London agent. 
Jervis v. Dewes, 4 Dowl. P. C. 764. 208 



3324 



[ATTORNEY AND SOLICITOR] 



llie expense of an accountant, employed with 
reference to and pending the suit, does not come 
under the general denomination of costs, and will 
not be allowed on taxation. Small v. Attwood, 
1 Y. dt Col. ». 202 

Recovery of Bill.'] — Where a party has employ- 
ed two attomies, partners, to manage a cause lor 
him in the Palace Court, an action in the com- 
mon form lies against him at the suit of both, for 
the bill of costs, though one only was an attorney 
of the court, and actually did the business there. 
Arden v. Tucker, 1 Nev. ^S& M. 759 ; 4 B. d& Ad. 
815 ; 5 C. & P. 248 ; 1 M. dlt, Rob. 191. 202 

Although the client gave a written retainer to 
the latter attorney only, and he only was mention- 
ed in the rule for taxing costs, these facts were 
held not conclusive, there being evidence, aliunde, 
of a contract with both. Id. 

if a party taxes the bill of an attorney for costs 
due from a third person, and pays that bill, he 
cannot aflerwards recover the amount without 
showing the paj^ment to have been made through 
ignorance or misrepresentation, and if an action 
oe brought, the court will stay proceedings. Ken- 
dall v. Allen or Aiken, 4 M. &. Scott, 319; 4 
Bing. 438 ; 2 Dowl. P. C. 783. 202 

The plaintiff obtained a judge's order, with the 
usual undertaking for the taxation of the bill of 
coats due from her son to the defendant : — Held, 
that it was not competent to her aflerwards to 
bring an action against the defendant to recover 
back the money paid by her in pursuance of that 
order, in the absence of proof of^ fraud or misrep- 
resentation by the defendant. The court there- 
Ibra stayed the proceedings. Id. 

Where an order was made for the taxation of a 
solicitor's bill, and for staying all proceedings at 
law till after the Master's report, and the solici- 
tor died pending the taxation and before any re- 
port, and no revived order for taxation being 
made, the solicitor's personal representative pro- 
ceeded at law against the client: — Held, that 
this was not a contempt. Houlditch v. Houl- 



ditch, 1 Wils. C. C. 17. 



202 



Where an action was brought by an attorney 
for his bill of costs, and the defendant obtained 
an order to tax the bill, but which order did not 
contain any direction to the defendant to pay 
what was due, though he signed the usual con- 
sent in the judge's Iwok, and another order was 
aflerwards made for reviewing the taxation, 
which also contained no direction to the defen- 
dant to pay what was due, and the Master found 
a sam of money to be due to the plaintiff, who 
made the latter order only a rule of court: — 
Held, that an attachment obtained thereon was 
irregular, as it did not contain any order on the 
defendant to pay. Ryalls v. Emerson, 2 Dowl. P. 
C. 357; 2 C. & M. 464 ; 4 Tyr. 364. 203 

Where in an order to refer an attorney's bill 
for 'axation, the usual undcrtikin^ to pay the 
amount taxed is omitted, the court will not grant 
an attachment for non-payment in pursuance of 
the Master's allocatur, fix parte Ward, 1 Har. 
A. WoU. 212. 203 



Whilst proceedings are pending on an order to 
tax an attorney s bill, he cannot oring an action 
for the amount. Sheriff v. Gresley (Lady), 6 
Nev. <& M. 491 ; 1 Har. & Woll. 588. 203 

A delay of two days in following up an order 
for the taxation of a bill of costs, is not a waiver 
of such order. Id. 

If, afler such a delay, a client is arrested for the 
amount of the bill, the court will stay the pro- 
ceedings in the action, and discharge tne defend- 
ant. Id. 

A summons to refer an attorney's bill for taxa- 
tion, and a judge's order thereupon, do not oper- 
ate as a stay of proceedings, so as to prevent the 
attorney from suing upon the bill. Williams v. 
RoberU, 1 C. M. & R. 676 ; 5 Tyr. 421 ; 3 DowL 
P. C. 512 ; 1 Gale, 56. 203 

It is no ground of demurrer to a declaration 
in an action by an attorney, tliat he seeks to reco- 
ver for " materials" supphed by him to his client. 
Fisher v. Snow, 3 Dowl. P. C. 27. 203 

A solicitor cannot receive a deposit of title 
deeds as security for future bills* Ex parte JLiaing, 
2 Mont &. Ayr. 381. 204 

Upon a sumojons to refer an attorney's bill for 
taxation, if he intends to insist upon interest un- 
der 3 & 4 Will. 4, c 42, 8. 28, he ought jto have 
it made part of the order that the Master shall 
allow interest Berrington v. Phillips, 4 Dowl. 
P. C. 758. 204 

Where an attorney, defendant in assumpsit, 
sets off the amount of his bill, the plaintiff can- 
not deduct from that set-off costs or taxation al- 
lowed against tiie attorney, pursuant to 2 Geo. 
4, c. 23, s. 23. Field v. Becant, 2 Nev. & M. 
207 ; 5 B. & Adol. 357. 204 

Payment of bill. James v. Child, 2 <C. <k J. 
678 ; 2 Tyr. 732. 204 



X. liiXH FOB Costs. 

Lien of mortgagee's attorney. Ogle r. Story, 
I Nev. & M. 474; 4 B.& Adol. 735. 1^ 

A., the attorney of B., an intended mortgages, 
has no lien as against C, the intended mortgagor, 
fyr the costs of preparing the mortgage upon 
deeds delivered by C. to B., and by the latter 
handed over to A for the purpose of investigating 
C.'s UUe. Pratt v. Vizard, 2 Nev. AM.&S.l 

B. & Adol. 808. 204 

An attorney has no right as against his client 
to retain money in his nands which he has re- 
ceived as attorney for his client, even though it 
should be the proceeds of an execution against 
the goods of a defendant who objects to the 
amount levied, and who has a rule then pending 
before the Master, calling on the plaintiff or his 
attorney to refund part of the money. Sibley 9. 
Leicester, 2 Dowl. P. C. 234. 204 

Where a defendant is entitled against the 
plaintiff to be released from a verdict obtained 
against him, the court will not abstain from in- 
terfering, on the ground of the lien of the plain- 
tiff's attorney upon the verdict for his costs. 
Symons v. Blake, 2C. M. & R.416 ; 4 Dowl. P. 

C. 263 ; 1 Gale, 182. 204 



[ATTORNEY AND SOLICITOR—BAIL] 



2325 



TIm lien of an attorney is only eo-extenaive 
with the rights of his client, ana therefore, as 
between the plaintiff and defendant, the lien of 
the pliintiff's attorney cannot affect the right of 
the defendant. Id. 

Ad attorney is not justified in proceeding with 
to setion afler it has been settled between the 
Mrties themselres, thongh-it is known that costs 
MTe been incarred, and that the plaintiff himself 
is not in a condition to pay them ; it must be 
■howo affirmatively, that the settlement was 
come to for the purpose of cheating the attorney. 
Jordan v. Hvint, 3 Dowl. P. C. 666; 1 Gale, 159. 

204 

The lies of an attorney cannot be affected by 
t reference of the cause and all matters in dispute 
between the parties. Cowell v. Betteley, 4 M. di; 
Scott, 2GS ; 10 Bing. 432 ; 2 Dowl. P. C. 780. 

205 

Where an attorney has a lien for his costs upon 
t sum recnyered, and gives notice to the attorney 
for the opposite party to have his lien made avail- 
able before a fin^ settlement between the parties ; 
if ifierwards a final settlement be made, without 
having the lien made available, the attorney hav- 
ing the lien may proceed with the cause for the 
exciosiye parpose of securing his costs. Fleury 
«. Heath (Earl), 1 Aloock ^ Napier, 88, {Irish,) 

206 

« 

Semble, that it is a better course to apply to 
the court on motion, id. 

Where iha plaintiff and defendant compromise 
Reaction without consulting the plaintiff's at- 
torney, the interference of the court upon mo- 
tion 18 an equitable jurisdiction, and tne court 
vUl not assist the attorney unless he come in 
with clean hands. Sheppard «. Sherrock, 1 Al- 
€oek & Napier, 93^ (Msh). 206 

The attorney's right to lien, under Reg. H. T. 2 
Win. 4, No. 93, extends to costs taxed as between 
ittoney and client. Waston v. Masckall, 1 
8wtt,158; 1 Bing. N. R. 366j 3 Dowl. P. C. 
638; 1 Hodges, 73. 206 

Where one judgment is set off against another 
the lien of an attorney does not extend beyond his 
Cttti in the particular cause. Id. 

Where, in an action of trespass, a verdict is 
firand against one defendant, but in favor of 
another, the costs may be set off, notwithstand- 
ing the efiect of it would be to deprive the attor- 
ns of his lien. Reg. H. T. 2 Will. 4, does not 
*pply to such a case. George v, Elston, 1 Scott, 
W8; 3 Dowl. P. C. 419; 1 Bing. N. R. 513; 1 
Hodges, 63. - 206 

4»tf in Uncn."] — If a London agent receives 
"oney improperly, the remedy of the client is 
iKt against him, but against his attorney. Gray 
•• Ki%, 2 Dowl. P. C. 601. 262 

Where an aCBdavit is reported to be scandal- 
^ the agent in London, who files the affidavit, 
■ reapoiMile for the costs as between attorney 
*nd Client, notwithstanding the country attorney 
>ny have himself drawn the affidavit. £x parte 
^«lke,3 Deao.dk Chit 246. 207 



Xn. Chakoe of AtT0RNJ£8. 

In all cases, the order for changing an attor- 
ney must be served on the opposite party. Rex v. 
Middlesex (SheHff), 2 Dowl P. C 147. 208 

Where a defendant pleaded by an attorney who 
was in partnership, and the partnership was after- 
wards disaolved ; and the other partner took a step 
in the cause, which the plaintiff's attorney re- 
cognized ; the court refused to set aside the pro- 
ceedings for want of an order to change the attor- 
ney. Farley v. Hebbs, 3 Dowl. P. C. 538; 1 Har. 
A. WoU. 203. 208 

If the attorney on the record is changed, with- 
out an order for that purpose, but the opposite 
party treats the new attorney as the attorney in 
the cause, he cannot afterwards object that no 
order was obtained. Id. 



AUDITA QUERELA. 

The court will relieve on motion, instead of 
putting a party to his audita querela, where the 
case is clear, but not otherwise ; and, therefore, 
where a plaintiff, afler he recovered damages in 
an action of slander, for words imputing telony, 
was convicted and attainted for felony, and the 
defendant in the action was a witness against him, 
the court refused to interfere, by staymg all fur- 
ther proceedings in the action, though the crown 
declined to interfere. Symons v. Blake, 4 Dowl. 
P. C. 263 ; 2 C. M. ife R. 416 ; 1 Gale, 182. 209 



BAIL. 

Form of Bail-Bond.] — A bail-bond conditioned 
to appear in eight days afler the date (the arrest 
having been on the same day) : — Held sufficient. 
Evans q. t. v. Moseley, 2 Dowl. P. C. 364 ; S. C. 
nom. Evans v. Shropshire (Sheriff), 4 Tyr. 169. 

211 

An attorney ought not to prepare a bail-bond 
for a larger sum than is requisite according to the 
practice of the court Wingrave v. Grodmond, 
6 C. & P. 66— Tindal. 211 

Where the sheriff has taken only one surety to 
the bail-bond, the court will set aside an attach- 
ment against him for not bringing in the body on 
payment of costs, at the instance of the bail, though 
it would not do so on his own application. Rex v. 
Middlesex (Sheriff), 2 Dowl. P. C. 140. 211 

The sheriff took a bail-bond with one surety 
only ; he afterwards 'made a day's defiiult in re- 
turning the writ. The court set aside an tittach- 
ment obtained against him on payment of costs. 
Rex V. Surrey (Sheriff), 2 C. M. & R. 696; 1 
Tyr. A G. 32. 211 

A bail-bond is a nullity, if executed without 
filling in blank spaces left for the name of the 
party to whom the copy of the writ has been de- 
livered, and for the name of the party upon whose 
putting in special bail the bond is to be void. 
Holding V. Raphael, 5 Ney. & M. 655 ; 1 Har. dt 
WoU.OT. 211 

In an action against the sheriff for an escape, 
the production of a bond so executed will not, 



[BAIL] 



tfacrefoiv, lopport a plea mstifym^ by reason of 
iHTiiif taken a bail-bond with a condition, aob- 
•eribed according to the atatnie. Id. 

Disekarfe of BoiZ-BoiiJ.]— Althongh a bail- 
bond ia £iTen, a render maj be accepted at any 
time within eight days from the time of the arrest. 
Ttuner v. Brown, 2 I>owl. P. C. 547. 212 

The Uniformity of Proces* Act, 2 WiU. 4, c. 39, 
ached. No. 4, repeab lect. 24 of the first geueral 
rale of Hilary term, 2 Will. 4 ; and, therefore, if 
* P^y ^'« to ^1 o^ a capias do not pat in 

r;iaJ bail within eight days afler ezecation of 
process upon him, inclading the day of such 
ezecntion, the plaintiff, immediately on the expi- 
ration of that time, may put the bail-bond in suit. 
HillaiT V. Rowles, 5 B. & Adol. 460; 2 Dowl. P. 
C.aoL 213 

When to proceed. Alston v. Underbill, 2 Dowl. 
P. C. 26; 1 CAM. 492; 3 Tyr.427. 213 

Time given to principal. Woosman v. Pryce, 
1 C. & M. 352 ; 3 Tyr. 375. 213 

The assignment of a bail-bond without more is 
not a step m a cause. Id. 

^ A defendant who has been arrested on a capias 
since the Uniformity of Process Act, and given a 
bail-bond, cannot discharge the bail-bond by a 
surrender into actual custody within eight days 
after the arrest. Hodson v. Mee, 5 Nev. & M. 
a02 ; 1 Har A Woll. 398. 213 

And if the plaintiff omit to declare de bene 
esse, when he is at liberty to do so, be is not en- 
titled to have the bail-bond stand as a aecurity. 
Id. 

if one of the bail below consents to time being 
given to the defendant to perfect bail above, this 
act is binding on both. Howard v. Bradberry, 3 
Dowl. P. C. 92. 1213 

Notice of render having been given to plaintiff's 
attorney, be, notwithstanding, took an assignment 
of the bail-bond, and commenced proceedmgs, as 
no notice of bail had been given, and no entry of 
the render could be found on searching the 
books : — Held, that the proceedings were irregu- 
lar. Short V. Doyle, 4 Dowl. P. C. 202. 213 

JtsMignmeni of Bail^ Bond.]— The assignment 
of a bail-bond must be executed in the presence 
af two witnesses, but it is not necessary that they 
should both subscribe their names in the presence 
of the officer assigning. Phillips v. Barlow, or 
Barber, 1 Scott, 322 ; 1 Bing. N. A. 433; 3 Dowl. 
P. C.d81;6C. d:P. 781. 214 

An assignment of a bail-bond is invalid, if 
executed m the presence of and atteated by the 
plaintiff ia the action and another person ; the 
Stat 4 Anne, c. 16, s. 20, requiring the assign- 
ment to be made to the plaintiff in the presence 
of two "credible** witnesses, which means disin- 
terested persons. White v. Barrack, 1 Mee"^. & 
WeU. 42S. 214 

A bail-bond, taken under an attachment for not 
putting in an answer, cannot be assigned. Mel- 
Ut V. Palfiayman, 1 Nev. At M. 696. 215 



The creditor'a remedy iaby action in the name 
oftheaheriff. Id. 

An action by the aasignee of a bail-bond must 
be brought in the court out ni which the bailable 
process issued. Id. 

A bail-bond was given to the sheriff on the 
24th of November, and it recited, that the de- 
fendant had been arrested on the 17th : bail above 
not having been put in within due time afler the 
17th, the plaintiff took an assignment of the bond. 
Upon a motion to aet aside the assignment as 
having been made too early, upon an affidavit 
that the recital ia the bond was ftlse — that, in 
fact, no arrest was made, but only a letter sent, 
and that therefore the writ could not be .said to 
be executed till the 24th, when the bond was 
given, the court reftned to interfere. Call v, 
Thelwall, 3 Dowl. P. C. 443 ; I C. M. & R. 780 ; 

5 T>r. 231 ; I Gale, 16. 215 

Action on BaiUBond.'] — It is no plea to debt 
on bail-bond, that there was no affidavit of debt 
filed in the action against the principal. Knowlea 
V. Stevens, 1 C. M. & R. 26; 4 Tyr. 1016: S.C. 
nom. Snow v. Stevens, 2 Dowl. P. C. 664. 216 

In an application by bul to stay proceedings 
on a bail-bond, collusion with the defendant miut 
be denied by both the bail. Dowson v. Cull, 2 C. 

6 J. 671. 217 

The court of Exchequer will stay proceedings 
on the bail-bond, (when bail above is put in and 
perfected), on payment of costs, if it i^ppear that 
a trial has not been lost, without an affidavit of 
merits, and without complying with the rule of 
Michaelmas, 59 Geo. 3, *K.. B., which is not 
adopted in the Exchequer. Bourke o. Bourne, 2 
Dowl. P. C. 250; S. C. nom. Bourne o. Walker, 
2 C. & M. 338; nom. Walker v. Bourne, 4 Tyr. 
121. 217 

It is irregular to sue out process on a bail-bond 
after the rule for the allowance of bail has been 
served, although the bail-bond has been forfeited, 
and an assignment has been written for before the 
justification of the bail. Ellis v. Bates, 2 C. db 
M. 143 ; 4 Tyr. 54. 217 

In making the rule to set aside such proceed- 
ings absolute, the court directed the costs of tak- 
ing an assignment of the bail-bond, which had 
been occasioned by the defendant's de&ult, to be 
allowed to the plaintiff, and to be deducted from 
the costs of , the rule. Id. 

Though a plaintiff is not bound to declare de 
bene esse ; yet, if he do not, he cannot say that 
he has lost a trial, so as to have the bail-bond stand 
as a security on setting aside proceedings upon 
the bail-bond. Balmont «. Morris, 1 C. dt M. 
661 ; 3 Tyr. 821. 218 

Where two of three parties to a bail-bond were 
sued jointly : — Held to be no irregularity . Knowlea 
V. Johnson, 2 Dowl. P. C. 653. 219 

Where several actions are brought on the same 
bail-bond, it is too late, after verdict, to move to 
stay proceedings on payment of the costs of one 
action only. Johnson v. Macdonald, 2 Dowl. P. 
C.45. 219 



[BAIL] 



2327 



The Blaintiff declared in the commencement 
of his declaration, as assignee of the sheriff, and 
then set forth a bond to himself : — Held, no ground 
of demurrer. Reynolds v. Walsh, 1 C. M. ^ R 
580 ; 5 Tyr. 202 ; 3 Dowl. P. C. 441. 215 

Where there has been delay in applying to 
the court to haye a bail-bond set aside, which has 
arisen from compliance with the request of the 
plaintiff: — Held, that it could not be objected 
that the application was not made in a reasonable 
time. Gould v. Williams, 1 Har. & WoU. 344. 

2J7 

Where prooedings were taken on a bail-bond 
before defiiult in the original action, the mode of 
taking the objection is. by movinor to set aside 
the writ itself, and not the service ox it. Edwards 
«. Danks, 4 l>owl. P. C. 357. 217 

Proceedings against bail to the sheriff, are not 
waived by the plaintiff declaring de bene esse in 
the original action, afler the bailhave been served 
with process. Vernon v. Turley, 4 Dowl. P. C. 
660 ; 2 Mees. & Wels. 316. 215 

Though the defendant is sued jointly with the 
bail, proceedings in the action may be stayed on 
the application of the latter only. Stride v. Hill, 
4 Dowl. P. C. 709 ; 1 Mees. & Wels. 37. 217 

To have the bail* bond stand as a security, it 
must appear that a trial was lost at the time of 
moring for the rule. Id. 

In an action against the defendant and bail, on 
a bail-bond, the affidavits in support of a rule for 
setting aside proceedings, mav be intituled eitlier 
in the original action, or in that against the bail 

I!^ in consequence of bail not being put in and 
perfected, the plaintiff obtains an attachment 
against the sheriff, without having declared de 
bene ease, the latter may Wt aside the attachment 
upon the defendant being rendered, without the 
attachment or b^l-bond standing as a security. 
Rez V. Harrington, 2 Dowl. P. C. 648. 218 

The plaintiff is not entitled to insist upon the 
bail-bond standing as a security, where, the de- 
fendant not being in custody, the plaintiff has not 
declared de bene esse. Call v. Thelwall, 1 CM. 
& R. 280; 5 Tyr. 231 ; 3 Dowl. P. C. 443; 1 
Gale, 16. 218 

On an application by the bail to stay proceed- 

Xon the bail-bond on payment of costs, the 
avit stated that the application was made by 
them at their own expense, and for their own in- 
demnity : — Held, that the affidavit was irregu- 
lar for not complying with the rule 59 Geo. 3 
Id. 

The plaintiff cannot have the bail-bond to stand 
as a security where he has not declared de bene 
esse, although he was prevented from declaring 
by the vacation. Stanies v. Stoneham, 2 C M . &. 
1L658; 4 Dowl. P. C. 678. 218 



Diponi of money.] — Where money is paid into 
cmnt mider the 7 d& 8 Greo. 4, c. 71, in lieu of 
kuif and issue is joinf d, an application to take it 
out most be made before issue joined. Han well 
a. Mure, 2 Dowl. P. C. 155. 220 



Where a motion is to be, made to take out 
money paid into court by a defendant in lieu of 
bail, notice of the motion should be given to the 
solicitor of the treasury. Haines v. Nairn, 2 
Dowl. P. C. 43. 220 

Semble, that poundage cannot be claimed on 
money so paid in, where it is not sufficient to 
satisfy the amount of the plaintiff's verdict. Id. 

Where money has been paid into court in lieu 
of bail, the plaintiff, on moving to have it paid 
out to him, is entitled to the costs of the applica- 
tion. Freeman v. Paganini, 4 M. & Scott, 165 ; 
2 Dowl. P. C. 776. 221 

The court cannot allow part of a sum paid into 
court in lieu of special bail, to be appropriated to 
the purposes of a plea of tender — the 3rd section 
of the 7 & 8 Geo. 4, c. 71, expressly pointing out 
the only mode in which money so deposited can, 
during the progress of the cause, be released, viz. 
by putting m and perfecting special bail. Stultz 
V. Heneage, 4 M. «& Scott, 472 ; 2 Dowl. P. C. 
806. 221 

Where a defendant has paid the debt, and 
lOZ. for costs, to the sheriff in lieu of bail, under 
the 43 Geo. 3, c. 46 : — Held, that he has, under 
7 (& 8 Geo 4, c. 71, till the day for perfecting 
special bail, to pay in the additional 10^. for costs. 
Strafford v. Love, 3 Dowl. P. C. 593 : S. C. nom. 
Stafford v. Love, 1 Har. & WoU. 195. 220 

And where, previous to that day, a bona fide 
correspondence to settle the action commenced, 
which did not terminate until afler that day, and 
on the termination the defendant paid in the KU. 
additional : — Held, that the plaintiff was not en- 
titled to have the debt and costs paid out of court 
to him. Id. 

If a defendant has deposited money in lien of 
bail, which the sheriff pays into court, he is enti- 
tled to take it out on justifying bail in due time. 
Young v. Maltby, 3 L»owl. P. C. 604 ; 1 Har. & 
WoU. 214. 220 

An affidavit by the defendant, on taking money 
out of court which had been deposited in lieu of 
bail, stating tliat bail had been put in, but not 
stating " in due time :" — Held sufficient. Id. 

If a defendant deposits money in the hands of 
the sheriff, pursuant to the 43 Geo. 3, c. 46, s. 2, 
which is paid into court, the defendant will not be 
allowed to take it out, unless he has put in bail 
according to the exigency of the capias, although 
such a deposit is not mentioned in the warning 
attached to that writ. Geach v. Coppin, 3 Dowl. 
P. C. 74. 220 

If, however, bail has been perfected, but not in 
due time, before the plaintiff takes the money 
out, he must make his election as to which secu- 
rity he will take. Id. 

Money paid into court in lieu of bail, cannot 
be transierred to the account of a payment into 
court. Ball v, Stafford, 2 Scott, 421; 4 Dowl. 
P. C. 327 ; 1 Hodges, 316. 290 

Before bail are perfected, or until the time for 
excepting to them has jsassed, the defendant is 
entitied as a matter of right to pi^ in the debt, 
with a sum for costs, under the 7 & o Geo. 4, c. 71 , 



2328 



[BAIL] 



f . 3 ; and, therefovp, t&ou^b he does not pay in 
the money until after he liaa pat in, thongh not 
joftified bail above, and the plaintiff has been put 
to expenw by searching for them, and makioff in- 
qairies, the defendant is not liable to pay uose 
expenses, but they are properly costs in the cause. 
Stanforth or Stanford r. M'Uann, 4 Dowl. P. C. 
367; 2C. pi.&R. 631. 230 

Where money is paid into court under the stat 
7 & 8 Geo. 4, c. 71, s. 2, in lieu of special bail, it 
can only be taken out on putting in and perfect- 
ing bail, notwitlistandlnff it has been paid in with- 
out prejudice to an application to the court for 
defects in the affidavit of debt. Green v. Glas- 
brooke.l Scott, 4C2; 1 Bing. N. R 516; 1 Hodges, 
27. 220 

A defendant who deposits money with the she- 
riff in lieu of bail, is not in court, so as to demand 
a declaration, until the money is actually paid 
into court, though the sheriff has returned that 
he has paid in the money, and the plaintiff has 
consented to the defendant entering a common 
appearance, and paying into court ue additional 
1(M., under the 7 A;8 Geo. 4, c. 71, s. 1. Hall v. 
Champneys, 4 Dowl. P. C. 713. 221 

Money deposited by a third person, in lieu of 
special bail, cannot be got back bv application to 
thie court, on the defendants rendering ; it must 
lemain in court to abide the event Bull v. Tur- 
ner, 4 Dowl. P. C. 734 ; 1 Mees. & Wels. 47. 220 

Where money is paid int^ court in lieu of bail, 
not by the defendant himself, but by one of the 
bail, and the plaintiff obtains judgment, he is en- 
titled to have -the money paid out to him in dis* 
charge of the debt and costs. Id. 

A plaintiff is not entitled to receive out of 
enurt, money paid in b^ a defendant in lieu of 
bail, under the 7 & 8 deo. 4, c. 72, s. 2, unless 
jodgaient has been obtained, or the suit otlier- 
wise legally determined. Johnson v. Wall, 4 
Dowl. P. C. 315. 220 

Where the friend of a party arrested makes a 
deposit of his own money on the defendant's be- 
half, in lien of bail, and the sum is ailerwards 
paid into court to abide the event of the suit, and 
the defendant then renders, the owner of the 
money may have it restored to him on motion, 
under stat. 7^8 Geo. 4, c. 71, s. 5, if the defen- 
dant appears in court and assents. For this pur- 
pose the render is equivalent to putting in and 
r^rfecting special bail. Douglass i7. Stanbrongh, 
Adol. & Ellis, 316. 2^ 

A sheriff, against whom an action for falsely 
returning that money deposited with him by a 
del^dant, in lieu ot bail, had been paid into 
court, had been brought, was allowed to pay into 
court in the original action the money so deposit- 
ed, though the plaintiff had been delayed two 
months by the sheriff's neglect. Hall v, Jones, 
4 Dowl. P. C. 712. 221 

Where the action has been commenced in an 
inferior court, without process, against the per- 
■on, and afterwards removed, semble, that the 
defendant cannot pay mooev into court in lieu of 
tpeeial ImH. Morgan «. redlar, 4 Dowl. P. C. 

25tt 



The rnle for taking money, deposited ii^ lieu 
of bail, out of court, in consequence of the plain- 
tiff becoming nonsuit, is nisi in the first instance. 
Grant v. Willis, 4 Dowl. P. C. 581. 221 



Q^aaiifiaUion of Bail.'] — ^In justifying for bail, 
where the qualifying property consisted of money 
deposited in the hands of bail to indemnify him, 
the qualification was held insufficient. NichoUs' 
bail, Hodges, 77. 223 

Keeping a brothel is not of itself a ground for 
rejecting bail. Gouge's bail, 3 Dowl. P. C. 320. 

223 

Although bail are unopposed, the court will 
not allow them to justify, if it has been satisfied 
in a previous case that they are unfit Laporte's 
bail, 3 Dowl. P. C. 110. 223 

PutUng in. Bad.]— Tha 2 Will. 4, c. 39, ex- 
cepting the period between the 10th of August 
and 24th of October, is applicable only to de- 
clarations and pleadings after declaration ; and & 
defendant arrested within that interval must put 
in and justify bail before a judge at chambers, in 
the same way as in any other part of the vaca- 
tion. Rex V. Middlesex (Sheriff), 2 C. dt. M. 333 ; 

2 Dowl. P. C. 286 ; 4 Tyr. 60. 224 

Where a defendant is arrested upon an alias 
or pluries capias, issued into another county, the 
derendant must put in bail in the county where 
he was arrested. Reg. Gen. M. T. 4 Will. 4, K. 
B., C. P., and Exch. : S. P. Rex v. Essex (Sheriff), 

3 M. d^ Scott, 870. 224^ 

The 14th rule of H. T. 2 Will. 4, is virtuaUr 
rescinded by the statute 2 Will. 4, c. 39, sched. 
No. 4. Tfaierefore a defendant arrested on a 
writ of capias has only eight days to put in spe- 
cial bail, whether in a town or a country oanse. 
Grant v, Gibbs, 1 Scott, 390; 3 Dowl. P. C. 
409 ; 1 Hodges, 56. 224 

And such bail is not deemed to be put in until 
notice thereof served on the plaintiff *s attorney 
or agent. Id. 

Where bail are put in to render, no notice of 
their having been put in is necessary. Wilson «. 
Griffin, 3 C. <& J. 683. 226 

A notice of bail describing him as a house- 
keeper is insufficient, if he is only a lodger, 
although on examination it appears that he is 
a freeholder. Wilson's bail, 2 Dowl. P. C. 431. 

226 

The objection to a notice of bail, that the num- 
ber of the street is not stated, must be taken in 
the first instance ; and it is waived by obtaining 
time to inquire, unless it is sworn that the bail's 
residence cannot be found.\ Foster's bail, 2 Dowl. 
P. C. 586. 227 

If a bail has two places of residence, it is only 
necessary to state one of them in the notice. 
Fortescue's bail, 2 Dowl. P. C. 541. 227 

A notice of bail did not state the nnmbers of 
the houses where the bail resided, upon which 
ground, the bail having been foimd and being 



(BAIL] 



3339 



634. 



the plaintiff had the coits of his ap- 
to <^poae. innifl 9. Smith, \2 C. & J. 

227 

It 18 sufficient if the notice of bail by a pri- 
soner be signed by him as being " in custody," 
tfaoQgh it does not state in the usual way that 
he is a priaoner. Frith's bail, 2 Dowl. P. C. 
a». 226 

Informality in the notice of bail. Rex v. 
Middlemex (Sheriff), 1 C. & M. 482: 3 Tyr 
440. & 

Notice of bail. Ward's bail, 3 Tyr. 208 ; 1 C. 
& M. 28; 1 Dowl. P. C. 536. 228 

Where the notice of bail omitted to state the 
residences of the bail for six months, and whether 
they were housekeepers or freeholders .—Held, 
Ihit this was not such a defect as entitled the 
plaintiff to treat it as a nullity, and an attach- 
ment against the sheriff was set aside. Rex v. 
Middlesex (Sheriff), 2 Dowl. P. C. 5; 1 C. & M. 
482. 228 

A plaintiff cannot take proceedings on the 
baiVbond on the ground of an informality in the 
notice ofbail. Wigley r. Edwards, 2 C. & M. 320 ; 
20OW1. P. C. aaf; 4 Tyr. 235. 22Q 

In future, it is not to be considered necessary 
to state in a notice of bail that the baiUpiece 
hss been filed " with the filacer at the proper 
oflice." id. 

A notice of bail' describing them as of a parish 
Bjerely is sufficient. Treasurer's bail, 2 Dowl. 
P. C. 670. 228 



An affidavit of justification giving the depo- 
nent's residence without hia addition is bad. Id. 

A noliee of bail emitting to state the residence 
of the bail ** fiw the last six months," is an irre- 
gnlanty of which the court will take notice, though 
the bail be unopposed. Sy wood v, Dogherty, 1 
Scott, 79. ^ ^^28 

If the defendant be a prisoner, the notice of 
bail must sUte that fact. Fuller's bail, 5 Tyr. 
491. 1^ 

fofep£Mm.]— The want of entry in the book 
of the notice of exception is waived by giving 
notice of justification. Hanwell's bail, 3 DowL 
r. C. 425. 228 

After bail had Justified, the plaintiff not haying 
excepted to them, in consequence of each of 
IJem positively swearing to the requisite amount, 
tbe plamtiff discovered that they were both in- 
wlvent:— The court refused to compel the de- 
fendant to put in other bail. Lazarus v. Levaux, 
4 Dowl. P. C. 353, 228 

1 5^/-^ Justijicatian.]--^ Reg. Gen. T. T. 
1 Will. 4, as to givmg four days* notice of jus- 
ijcation, only applies where the bail justify at 
IJe ume of putting io. Jones's bail, 2 Dowl. P. 
^- 1«3- 229 

. If notice of country bail is given, who are to 
justify pursuant to the old pracUce, the four 



days' notice reautred by 1 Reg. Gen. T. T. 
1 Will. 4, need not be given. Hardbottle v. 
Ckrk, 4 Dowl. P. C. 12. 289 

The days between Thursday next before, and 
Wednesday next after Easter-day, are not to be 
reckoned in notices of justification of bail. Cnm- 
ming r. PuUen, 1 Scott, 638. 2829 

A notice of justification of bail omitted to 
state where the bail resided for the last six months, 
and also whether they were householders or firee- 
holders : — Held, not to be cured by the affidavit 
of justification according to the old rules, 
though it contained those requisites; and time 
to sinend was refused, the bail having been put 
in too late ; snd also the costs of opposition. 
Real's hail, 3 Dowl. P. C. 708. 229 

A notice to justify at eleven, all parties ap- 
pearing at ten :— Held sufficient. Id. 

A notice of justification of bail at charaben, 
not specifying the hour, is a nullity ; and though 
a notice of waiver of the first notice, and a fresh 
notice of justification specifying the time, were 
served two hours afterwards, yet, being too late : 
—Held, that the plaintiff was justified in not 
attending to oppose the bail .—Held, also, that 
the plaintiff was entitled to move to set aside 
the allowance of bail, though a judge at cham- 
bers had decided that the proceedings were rego- 
lar. Staines v. Stoneham, 4 Dowl.T. C. 678 ; 2 
C. M. & K. 658. ^ 

A notice of justification, which stated that the 
bail had resided for the last six months at the 
parish of W., without stating the street, &c., 
held bad. Hanwell's bail, 3 Bowl. P. C. 425. 

A two days* notice of justification by t pri- 
soner, accompanied by an affidavit accordiair to 
the rule of T. T. 1 Will. 4, is bad, unless it ex- 
presses that he ts a prisoner. Bullen's bail 3 
Dowl. P. C. 422. i» 



T '^fCi/Mf^.i """^^Siving Time.]^The rule of 
1 . 1 . 1 WiU. 4, as to changing bail, does not ap- 
^^J^ ^o *^**^ ^^* priioner. Bird's bail, 2 DowL 

231. 



P. C. 683. 



The fifth rule of Hilary Term, 1 Will. 4, which 
prohibits the changing of bail without leave of 
court or a judge, applies to the case of baU put 
in by the sheriff for the purpose of rendering the 

Where one of the bail put in for a prisoner 
justifies, time must be granted for juetilVinff 
another ; if neither justified, it would not ha4 
been necessary. Foy's bail, 2 Dowl. P. C. 442. 

232 

Tlie 4th rule of T. T. 1 WUl. 4, which directs, 
that, if a plamtiff does not give one day's notice 
of exception, where the bail justify under the 
new rules, the recognizance may be taken out of 
court, does not apply where the bail are put in 
in ttiat niode after the regular time for putting 
in bail has expired, for then the bail must ac- 



3S90 



[BAIL] 



tnallj justify •• fiormerlj, befine a motkni can 
be nMde to wt aside p r oc e edings npon the nootod 
that bail ha?e been pat in and justified. Rex v. 
Wilson, 3 OowL P. C. 255. 231 

A defendant had leaye to add another bail on 
condition of making an affidavit of merits, which 
he did, but pleaded a plea hy which the merits 
•onld not come in qaestion. This was held not 
to be a yirtnal breach of the condition. ' Riz v. 
Kingston, 3 Dowl P. C. 158. 231 

Where time is ifiTen to add new bail, the 
rule is imperative in all cases, that the notice of 
justification of new bail must be senred before 
three o'clock of the day on which the order for 
new bail was granted, riewton's bail, 4 Dowl. P. 
C. 270; S. C. nom. Sievers v. Newton, 1 Gale, 
171. 231 

Time to justify bail on account of the illness 
of the bail, refused, because it did not appear on 
the affidavit that he was really ill. Gablentz's 
baU,lHar.&.WoU. 111. 233 

JusUficatioji.] — Affidavit of justification. Ro- 

fers V. Jones, I C. &. M. 323; 1 Dowl. P. C 
04;3Tyr.256. 236 

The affidavit of justification must agree with 
the form : it is not sufficient that it is equii^ent. 
OkiU's bail, 2 Dowl. P. C. 19. 236 

The affidavit of sufficiency made by bail pur- 
suant to the rules of T. T., must state the bail to 
be ^ worth," and not '^ possessed of," the required 
sum. Harrison's bail, 2 Dowl. P. C. 198. 236 

If bail justify by affidavit, which states that 
they are *^ possessed," instead of " worth," Slc, 
the plaintin is not liable to pay the costs of an 
unsuccessful opposition. Thompson's bail, 2 
Dowl. P. C. 50. 236 

Affidavits of justification, which merely state 
that the bail is " possessed," instead of ** worth," 
will not in future be allowed to be amended. 
Worlisen's bail, 2 Dowl. P. C. 53: S. P. Naylor's 
baU, 3 Dowl. P. C. 452. 236 

An affidavit of iustification stated the depo- 
nent to be possessed of a certain sum " over and 
above all bis just debts :"— Held sufficient 
Housley v. Boyd, 1 Scott, 698: S. C. nom. 
Boyd's bail, 1 Hodges, 93. 236 

An affidavit statins that the deponent's property 
consists of " a freehold house situate witnout, 
dkc." without stating its value, is sufficient. Id. 

An affidavit of justification of bail, describing 
bne as of a parish which contained 7000 inha- 
bitants, " Ely, in the county of Cambridge," but 
not saying of any street, is sufficient Hunt's 
bail, 4 Dowl. P. C. 272; 1 Har. & WoU. 520. 

236 

Stating that the bail was worth property to the 
requisite amount " over and above his just debts," 
but omitting ^^ what will pay," is also sufficient. 
Id. 

Stating that he was not bail in any other action 
for any defendant is also sufficient. Id. 



An affidavit of sufficiency mmt give the addi- 
tion of the bail. Morgan v. Stone, 1 Gale, 15. 

836 

An affidavit in justification of bail, omitting 
to disclose their residence, is insufficient, not- 
withstanding the plaintiff does not appear to 
oppose. Welsh v. Lywood, 1 Bing. N. K. 258. 

236 

Country bail stating himself to be a house- 
keeper at a place named, but not that he was 
resident there, allowed without costs. Heald's 
bail, 3 Dowl. P. C. 423: S. C. nom. Batley v. 
Heald, 5 Tyr. 231; 236 

*'*■ €ventleman" is a good description of a clerk 
in the postroffice. Wood v. Ray, 4 Dowl. P. C 
698. 



The place where the affidavit of justification 
was sworn need not be mentioned. Id. 

Where it was sworn that bail justi^ng by 
affidavit was an infant, time was given tne other 
party to answer, without payment of costs. Hig- 
gin's bail, 1 Hodges, 94. ^ 

If a defendant, in justifying his bail, >dopta 
the new practice under Reg. Gen. T. T. 1 WiU. 
4, he must conform to it strictly ; and therefore 
an affidavit of sufficiency, though good by the 
old practice, but deficient by the new, is insuffi- 
cient. Penson's bail, 4 Dowl. P. C. 627. 236 

*^He's" is sufficient in an affidavit of justifi- 
cation, instead of ^ he is." Lanyon's bail, 3 
Dowl. P. C. 85. 836 

The name of a township, without the name of 
a street, stated to be in a certain parish named in 
the notice of bail, is sufficient Id. 

It is sufficient for a bail to swear to property 
over and above " what will pay his debts." Id. 

" Debts," without describing them as " book 
debts" is sufficient Id. 

^'Teoman" is a good description of a bail. 
Id. 



Costs of Justification.] — In order to obtain the 
costs of justifying bail, an application should bo 
made at the time of justification. Fream o. Best» 
2 Dowl. P. C. 590. 237 

In the Exchequer, if bail have been once re- 
jected, a deposit must be made for coats before the 
second set of bail iustify, in the case of countar 
as well as town bail. Goodricke v. Turley, 2 C. 
M. & R 636 ; S. C. nom. Turley 's bail, 4 Dowl. 
P. C. 498. 237 

It is no objection that bail has been already re- 
jected, unless it appear that he was rejected on 
the merits. Id. 

Bail coming up a second time to justify, must 
pay or deposit the costs of a former unsuccess- 
ful attempt; and where costs are payable, the 
defendant being in prison will not excuse him 
from payment. Pasmore's bail, 3 Dowl. P. C 
214. 837 

The affidavit filed of country bail at a judge's 



[BAIL] 



2331 



chamben wbb ineorrect, but that upon which the 
iDOtion was made to jostify them was right ; — 
Held, that they were entitled to justify without 
the defendant either receiying or paying costs. 
Saunders r. Popjoy, 5 Tyr. 196 : S. C. uom. Fop- 
joy's bail, 1 C. M. & R. 594 ; 3 Dowl. P. C. 170. 

237 

Coet3 of opposition on technical grounds are 
not aUowed. Uanweirs bail, 3 Dowl. P. C. 425. 

237 

It is too late afler bail are sworn, to object 
that the costs of a former opposition haye not 
been deposited with the officer of the court. 
Knight's bail, 4 Dowl. P. C. 328; 1 Hodges 



370. 



237 



Upon the justification of bail in a country 
cause, one of the bail was allowed time to ex- 
plain respecting some property which it was 
alleged was mortgaged: this being afterwards 
done: — Heldf that Uie defendant was entitled to 
the costs of justification. Grant's bail, 3 Dowl. 
P. C. 1^; 1 C. M. & R. 598; 5 Tyr. 227. 237 

Where an affidayit of sufficiency omits to state 
the place where the property of the bail is situate, 
and only ascribes the yalne to aeyeral kinds of 
property coUectiyely, it is a departure from the 
form giyen by the rule 3 T. T. 1 Will. 4 ; and 
the bail haying justified, the defendant is not 
entitled to the costs of justification. Hodgson v 
Cooper, 2 C. M. d: R. 43 : S. C. nom. Cooper's 
bail, 3 Dowl. P. C 692. 237 

On bail justifying, the plaintiff was allowed 
the costs of a former successful opposition, 
tboagh he did not ask for them until after the 
bail nad passed. Lewis v. Glossop, 2 C. M. 6l 
K655. 237 

Attmaaus of BailJ] — ^The court refused, on 
behalf of bail to the action, to set aside a regular 
attachment aeainst the sheriff, upon an affidayit 
of merits, and on payment of costs, where the 
mle for the allowance of bail had not been seryed 
on the plaintiffs attorney. Rex v. Middlesex 
(SherifT), 2 Dow). P. C. 116. 239 

Where a bail has misdescribed his place of 
rettdeoce on justification, but has been allowed 
to pass, the court will not set aside the rule for 
the allowance of the bail, but he may be indicted 
far peijnry. Eaglefield v. Stephens, 2 Dowl. P. 

LuiUI&yfff Bail:.]— Under mle 21 of H. T. 2 
Wdl. 4, toe liability of bail upon their recogni- 
xanee b limited to tne sum sworn to by the affi- 
davit of debt and the costs of suit, not exceeding 
in the whole the single amount of one recogni- 
zance. Vansandan v. Nash, 3 M. d& Scott, &4 ; 
10 Ring. 329 ; 2 Dowl. P. C. 767. 240 

la a case arising before the rules of Hilary 
Term, 2 Will. 4, the court of K. B. sUyed pro- 
ceedings in an action on a recognizance of bail, 
(where the action against (he original defendant 
was by bill,) on payment of double the sum 
•vors to^ and costs of the action against the bail. 
Bbner r. Holt, 5 0. A^ Adol. 241 ; 3 Ney. St M. 
S29, »*0 

Vol. IV. 8 



The liability of bail upon a recognizance giyen 
in an action commenced by ori^pnal writ, is nei- 
ther destroyed nor extended by mserting in the 
declaration under an order to amend, new causes 
of action not included in the writ, and increasing 
the general claim of damages, and also increas- 
ing uie aiuount claimed in the aeyeral causes of 
action stated in the writ. Taylor v. Wilkinson, 
5 Ney. & M. 189 ; 1 Har. & VVoU. 451. 240 



Discharge of BaU."] — Where a cause in the 
Palace Court was remoyed by habeas corpus into 
the court of the King's Bench, but was remanded 
back by procedendo, and afterwards interlocutory 
judgment was signed in the court below, and a 
writ of inquiry executed : — Held, that the bail of 
the same defendant in another action brought in 
the Exch., had no ri^ht to remoye the cause to 
the Palace Court again by habeas corpus, in order 
that the defendant might be rendered in dis- 
charge of his bail in the action in the Exch. 
Lawes v. Hutchinson, 1 C. M. & R. 766; 5 Tyr. 
236; 3 Dowl. P. C. 506. 241 

But the court gaye the bail time to render, 
until fourteen days after the ^xpiration of the 
custody in the ralaoe Court, no cause being 
shown against so much of the rule for such 
time. Id. 

^mble, that Doyer Castle is the county jail 
(upon an arrest in the Cinque Ports) to which to 
render a defendant, within the 11 Geo. 4 Stl 
Will. 4, c. 70, s. 21, and Reg. Gen. Exch. M. 
T. 1 Will. 4, Reg, 12. Stride v. Hill, 4 Dowl. 
P. C. 709 ; 1 Mees &, Wels. 37. 242 

Defendant in criminal custody. Campbel 9. 
Acland, 1 C. & M. 73; 1 Dowl. P. C. 635^ 3 
Tyr. 230. 244 

Where a sheriff has put in bail aboye ia ordar 
to render, and has obtained a judge's order for 
rendering at the instance of himself and his bail 
(see 11 Geo. 4&] WUl. 4, c. 70, s. 1), that 
order will not be rescinded, though it might be 
amended by striking out all which showed it to 
be granted at the sheriffs instance. Green v. 
Jacobs, 3 Tyr. 231. 245 

Semble, the notice of render should not be 
stated to be signed by any persoa as attorney to 
the sheriff. Id. 

Where the principal and bail both became 
bankrupts, the court ordered them to be relieyed 
on motion, without pleading, though the batK 
bond had been ordered to stand as a securihr. 
Streeter or Slater r. Scott, 2 Dowl. P. C. 9(»; 
2 G. M. & R. 475 : S. C. nom. Slatler «. Stacey, 
4 Tyr. 372. 247 

In such a case the bail must sw«ar that they 
obtained their certificates. Id. 

In the case of a London as well as a country 
commission, the court, on behalf of bail, will> 
to preyent inconyenience, allow the time for the 
render to be eidarged. Ruston v. Green, 2 Dowl. 
P. C. 617. *^ 

In the case of a London commission, the court 
of C. P. refused to enlarge the time for the ren- 
der of the principal until after his final examinar 



23S2 



[BAIL] 



tion before tbe commiMionen. Coombe v. Dod, 

3 M. & Scott, 617 ; 2 DowL P. C. 766. SM6 

If a defendant against whom judgment hai 
been recovered, afler wards become bankrupt and 
obtain his certificate within fourteen days of 
service of process upon his bail, the bail are en- 
titled, under the general rule of 17th June, 1833, 
to have proceedings stayed, though no notice be 
given to the plainuff, or application made to stay 
such proceedmgs, till afler the expiration of the 
fourteen days. Jones r. Ellis, 1 Ad«l. Sl 1*111 is, 
382. 246 

The defendant having been committed to the 
King's Bench prison by a court of bankruptcy, 
the court of Common Pleas gave the bail time 
to render, notwithstanding the committal was 
under a London commission of bankruptcy, and 
the bail had justified afler the bankruptcy, after 
judgment and at tbe request of the defendant's 
attorney. Waugh v. Ashford, 1 Scott, 167; 1 
Bing. N. R. ad4 ; 3 Dowl. P. C. 1^. 246 

Although not ** till he has passed his last exa- 
mination. Id. 

Defendant, with consent of bail, gave a cogno- 
vit with stay of execution. He omitted to ^y 
when the time had elapsed. Plaintiff not havmg 
given the bail notice of this: — Held, that he 
could not proceed against them half a year after- 
wards, upon defendant's death. Surman v. Bruce, 

4 M. dfc Scott, lb4 ; 2 Dowl. P. C. 777 ; 10 Bing. 
434. Srf8 

Bail are dischsrged by time being oiven to 
their principal without their consent, uthough 
they may not have been damnified. Hannington 
V. Beare, 4 Dowl. P. C. 256. 248 

Bail knowing of an a^rreement to give time, 
must apply for relief immediately on being 
served with process. Vernon v. Turley, 4 Dowl. 
P. C. 660 ; 1 Mees. A Wels. 316. 248 

The plaintiff signed an afireement with an 
a«ent of the defendant on the%)th of September, 
that on the defendant's entering into an agree- 
ment to pay the debt, part in iron within a month, 
and the remainder by bill at two months, the 
action should be discontinued; and tlie defen- 
dant was to call on the plaintiff on the following 
day, to enter into the agreement. He never did 
so call. On the 8th of October, the plaintiff gave 
notice to the defendant that he hela himself dis- 
engaged from the agreement, and should pro- 
ceed with tbe action forthwith. On the 20th of 
October, the defendant delivered to the plaintiff, 
and tbe latter received, two b'lUs of exchange for 
the greater portion of the debt He did not de- 
liver any iron, and became bankrupt on the 6th 
of November: — Held, that there was not a giving 
of time to the defendant, so as to discharge the 
bail. Id. 

If plaintiff, at defendant's request, accepts 
without opposition bail named by the defendant, 
defendant cannot afterwards move to discharge 
the bail on the ground of a defect in the affidavit 
of debt. Mammatt v. Mathew, A M. &, Scott, 
356 ; 2 Dowl. P. C. 797 ; 10 Bing. 506. 249 

The eourt will not exonerate bail for a vari- 
ance heUreen the declaration and affidavit of 



debt, where they have oonsented Urtk at^ of ex- 
ecution, and apply htte for relief. Coppm v. 
Potter, I Bing. N. R. 443 : S. C. nom. Coppin v. 
Mkcqneen, 1 Scott, 372. 960 

Irregularities in the conduct of the ca. sa. 
against the principal, may be objected to on mo* 
tion, in proceedings under the sci. fa. against the 
bail as well as by plea. Goldney v. Laporte,S 
Bing. N. R. 456; 4 Dowl. P. C. 699. S50 

Where bail would be fixed by an indulgence 
granted by the court, such terms will be imposed 
upon the plaintiff as will give the bail an oppor- 
tunity of treeing himself from his liability. Brad- 
ley r. BaUey, 3 Dowl. P. C. 111. 250 

Proceedings against Bail by Actum ] — In debt 
on a recognixance of bail, the declaration stated 
the recognizance to have been entered into in an 
action of debt against J. S. On the production of 
the record (on a plea of nul tiel record), it ap- 
peared that the original action was on promiaea. 
llie court allowed the declaration to be amended 
on payment of costs, but required a special ap- 
plication for that purpose. Munkenbeek v, Buaii- 
nell, 1 Scott, 569. 251 

It is not a ground of general demurrer, that 
the plaintiff in an action against bail, is stated to 
have brought a bill into court, if upon the whole 
record it appears to be a proceeding by scire 
facias. Darling v. Gumey, 2 Dowl. P. C. 101, 
235; 2C.&M.I^; 4Tyr.2. 253 

To debt on a recognizance of bail, the defen- 
dant having pleaded that no ca. .sa. issued, to 
which tbe plaintiff replied that a ca. sa. did issue 
directed to the sherins of London, and the de- 
fendant rejoined that the original action was 
brought in Middlesex and not in London, which 
the plaintiff denied in his surrejoinder, aad con- 
cluded with a verification by the record : — Held, 
on special demurrer, that the conelaaioB was 
proper. Id. 

A plaintiff having recovered a verdict at the 
summer assizes, the judge who tried the caaae, 
under tlie power given dv 1 Will. 4, c. 7, made 
an order that execution should issue forthwith, 
and a ca. sa. was thereupon issued returnable 
^^immediately afler execution thereof," pursaant 
to 3 4& 4 Will. 4, c. 67, s. 2. This writ having 
remained in the sheriff's office a considerable 
time without having been executed, an order waa 
made by a judge on the 12th of September, for 
the sheriff to return the writ in six days, which 
order was served upon him on the 14tJi, and be 
on the same day returned non est inventaa, 
whereupon the plaintiff commenced an actioii 
against Uie defendant's bail : — ^Held, that under 
these circumstances the bail were not fixed, and 
that the action was prematurely coamienoed. 
Kemp V. Hyslop, 1 Mees. (k» Wels. 58; 4 Dowl. 
P. C. 687i 1 Tyr. & G. 77. 251 

The bail ought either to have notice given 
them of the order, or else the order witn the 
writ should be entered in the public book, four 
clear days at least before the writ is made return- 
able by the order ; and for want of this, proceed- 
ings alter^ards taken against the bail were set 
aside as irregular. Id. 



[BAIL— BAILMENT] 



8333 



I 

/ 



it is Teeonmended bj the eourt, that when a 
ca. ML ia iaaued with tlie intention of fiiisff the 
bail, il ihovid be in the old fonn, returnable in 
lenn ; and it seems doubfful whether a ca. sa. 
retBrnable immediately is sufficient for the pur- 
pose of fixing bail. Id. 

The mk of M., 59 Geo. 3, K. B., is now 
adopted into the practice of the court of Exche- 
qoer ; and, therefore, bail or sheriiiii, applying for 
relief^ must comply with the terms or that rule. 
An affidarit by bail, applying to stay proceedinors 
so payment of costs, which stated that the appli- 
cation was made for their own indemnity, instead 
of only indemnity, was held insufficient Call v. 
ThelweU, 3 Dowl. P. C. 444 ; 1 C. M. &. R. 780 ; 
5Tyr.231; 1 Gale, 16. 254 



Proc it dJ Mg s awainut Bail by sci, fa.] — ^Proceed- 
ings against bail are ine^lar, if the plaintiff has 
pncoied the ca. sa. against the defendant to be 
leComed non est inventus, knowing that the de- 
fendant is in custody of the sheriff, althoa?h by 
a difierent name. Briggs o. Richardson, 2 Dowl. 
P. C. 158. 250 

Hie sei. fa. against bail need not be tested on 
fhe return day of the ca. sa. Sandland v. Cla- 
ridge,2 Dowl. P.O. 115; 1 C. &M.673; 3 Tyr. 
604. &2 

It may be tested afterwards. Id. 

The fimr days during whieh a sci. fa. against 
il niist lie m the sheriff's office need not be 
m term. Id. 

A sci. la. served upon bail on the evening be- 
foe the retnm day — Held, regular. Lewis v. 
9ine or Pyne, *2 Dowl. P. C. m ; 3 Tyr. 867 ; 1 
C.dkM.77l. 252 

Jndgnaent eannot be signed on a sci. fa. against 
bail sendent out of the county of Middlesex, un- 
less they have leceired notice of the proceedings, 
or attempts hare been made to give such a no- 
tice. Wimall V. Cook, 2 Dowl. P. C. 173. 252 

Hie court will not give leave to sign judgment 
OB a sci. fiL against nail, on a summons of one 
in Middlesex, unless the other, resident out of 
Middlesex, is warned of the proceeding. Newton 
«. Maxwell, 2 .C. &. J. 635. 252 

lo aei. fiu against bail and return of sci. feci, 
Ike bail most have been summoned before the 
rinigor thecoort Stevenson v. Molony, 1 Al- 
l Napier, 225, (/rtfft). 252 

When a writ of sci. ft. has not lain in the 
the proper number of days, the motion 
flhoold be to set aside the proceedings thereon, 
ud not die writ itself. Williams v. £own, 3 M. 
4k8eoCt,8ia 252 

It is Inegular in a sei. &. to state the bail to 
bare been pat in on a day previous to the issu- 
■V of the writ. Peaisock v. Day, 3 Dowl. P. C. 
91. 252 

it is an immaterial objection to a sci. fa. that 
k m tested on the 3rd of November, and return- 
able on the 15th of November, '* next coming." 
Jd. 

f ^Pf,^ the VwnSonoky of Process Act, it is 
inwolar fitf * aci. fiu to lacits the action as com* 



1 menced " by bill, without 6va writ," if it has 
been commenced by summons. Id. 

In sci. ia. upon a recognizance of bail taken 
before a commissioner in the country, it is ne- 
cessary to aver that the recognizance was trans- 
mitted to, and inrolled in, the court above, as a 
sci. fa. can only, issue on a matter of record, and 
inrolment is essential to constitute a record. 
Laverty d. Duffin, 1 Alcock Sl Napier, 296, 



{JrUh). 



253 



Where the writ of sci. fa. does not aver any 
record upon which it is founded, the proper 
course is to demur ; a plea of nul tiel record 
would be improper. Id. 

The absence of such an averment will render 
the writ defective on special demurrer, id. 

Bail in Error,] — If a defendant brings a writ 
of error and puts in sham bail, the plaintiff may 
treat them as a nullity, and issue execution. 
Sutcliffe V. £ldred, 2 Dowl. P. C. 184. 257 

In order to obtain time to justify bail in error, 
on account of the bail suddenly leaving town, it 
must be sworn that the fact of such departure 
was a surprise on the defendant. R(^r s bail, 
2 Dowl. P. C. 197. 258 



BAILMENT. 

Upon a bailment without reward, in order that 
an act may be done by the bailee for the sole be- 
nefit of the bailor, such bailee (or mandatory) is 
liable only for gross negligence. Doorman v. 
Jenkins, 4 Nev.^M. 170; 2 Adol. & Ellis, 256. 

259 

WhM shall amount to gross negligence is a 
question for the jury. Id. 

In assumpsit against a bailee it was proved 
that the detendant, a coffee-house keeper, hav- 
ing custody of money withoub reward, lost it and 
made tlie following statement: — ^That he had 
unfortunately put it with a larger sum of money 
of his own, mto his cash box, which was kept in 
his tap room ; that the tap room had a bar m it, 
and was open on a Sunday, but the rest of his house 
which was inhabited was not open on Sunday, and 
that the cash box, with his own and the plain- 
tiff 's money, had been stolen on that day. The 
judge leil it to the jury whether the defendant 
was guilhr of gross negligence ; and he told them 
that the loss of the defendant's own money did 
not necessarily prove reasonable care. _The jury 
found for the plaintiff: — Held, first, that the 
Question of grois negligence was properly left to 
taem; secondly, that there was evidence upon 
which they might find for the plaintiff. Id. 

In the case of the simple bailment of a chattel, 
without reward, it may be recovered in trover 
either bv the bailor or bailee, if tidcen wrongfhllv 
oui of the bailee's possession. Nithols v. Bastard, 
3C.M.&.R.659; lTyr.&G.156; lGale,296i 

25if 

Trover for horses, oows, furniture, Slc. Ac. — 
Plea, that J. H. was possessed of the cattle, 
^oods, and chattels, in the declaration men- 
tioned, and fraudulently sold them to the plain- 



ftSM 



[BAILMENT— BANKER]. 



tiff to aToid an ezecation against the goods of J. 
H., and that tha defendant (the sheriff) seized 
them under such ezecation Replication, that 
J. H. did not fraodalently sell the cattle, goods, 
and chattels, in the declaration mentioned, to the 
plaintiff, and issne thereon ; the particular of de- 
mand was merely ** one cow." It appeared that 
the plaintiff had lent a cow to J. U.; that the 
goods of J. H. were fraudulently sold to SFoid 
an execution, and the greater part of them 
bought by the plaintiff; that the plaintiff's cow 
was not sold, nor was any cow sold at such sale : 
— Held, that the plaintiff was entitled to a Terdict 
on the above issue, id. 

A person has no right to keep the property of 
another, and char^ ror the standing of it^ unless 
there was a preyious bargain between him and 
the owner of the property, or between him and 
some agent authorized by the owner. Buxton v. 
Baughan, 6 C. & P. 674— Alderaon. 259 



BANKER. 

Money deposited with bankers is, in law, a 
loan by the customer to the bankers. Suns v. 
Bond, 2 Ney. d^ M. 608. 262 

Where A., haying certain funds standing to 
his credit at his bankers, by letter directed them 
to carry some parts of such funds to the account 
of certaip persons as trustees for his wife, and 
after her decease for his son, and other parts 
thereof to the account of certain persons as trus- 
tees for his son ; and such sums were accordingly 
carried oyer by the bankers to the account of 
such persons in their books, and the dividends 
were from time to time carried to the same ac- 
counts, but the testator never communicated the 
facts to the trustees, and there was some evidence 
that the testator had directed the transfers under 
an impression that he should be able by that 
means to evade the legacy duty, and that ne had 
shown an intention to exercise some acts of own- 
ership over the funds ; the court held, that the 
appropriations were void, and that the testator 
might have revoked them. Gaakell v. Gaskell, 
2 f. & J. 502. 262 

On the 23rd November country bank-notes 
were paid by A., a purchaser of goods, to B. the 
vendor. On the 2Bth, B. requested the pur- 
chaser's shopman as a favor to exchange the 
notes for money, and received the amount ac- 
cordingly. The bank, which was situated at a 
considerable distance from the place where the 
shopman gave the money, had stopped payment 
two hours before. A., the purchaser heard of it 
on the 29th, and on the 30th wrote to B. to in- 
form him of the event, and that he, B., was to be 
liable for the notes, but did not tender them to 
him then or for some days after, nor were they 
eieer presented at the bank : — Held, that A. should 
have returned them to B. without delay, or pre- 
sented them at the bank as holder; and that 
having done neither, he could not recover the 
amount from B. Rogers v Langford, 1 C. Sl 
M 6:J7; 3Tyr.664. 262 

Where a customer of the Bank of England 
was in the habit of making his acceptances pay- 



able at the bank, and one of sQch acoepfanoe* 
being presented for payment at eleven o'clock in 
the morning was dishonored for want of assets, 
and was presented again by a notary at six in 
the evening when the same answer was given br 
a person stationed for that purpose, it was hela, 
that the bank, although they had before six 
o'clock received assets, were not bound to pay 
the bill, it being after the usual hours of business. 
Whitaker v. England (Bank), 1 C. M. & R. 744 ; 
5Tyr.26b; 6C.dLP.700; lGale,54. 260 

Semble, that it was the duty of the bank to 
have informed the notary that they had received 
assets, and that the bill would be paid the follow- 
ing day. Id. 

The production of a bank promissoxj noto« 
though it be payable to A. B. or bearer, is prima 
facie evidence in an action against the banlier, of 
money had and received by him for the use of 
the plaintiff. Kerr v.. James, 1 Gale, 21. 260 

When a customer pays to his bankers a cb^sk 
drawn upon them by another customer, he must, 
in order to make them liable at all events, demand 
payment, or reauest that the amount may be 
placed to his credit Boydr. Emmer8on,4 Nev. A 
M. 99 ; 2 Adol. <& Ellis, 184. 260 

An assent, on the part of the banker, to such a 
demand or request, would raise an implied pro- 
mise to pay or give credit for the amount. Id. 

When a customer pays into his bankers, in the 
ordinary way, a check drawn upon them by an- 
other of th«%ir customers, the bankers are entitled 
to the same time fur ascertaining whether the 
check will be paid and giving notice of dishonor 
(in case it be resolved by them not to pay the 
check) as in t£e case where a check is drawn 
upon other bankers. Id. 

^ Therefore, in such a case, no promise to pay 
the check on the part of the bankers will be im- 
plied from the absence of earlier notice. Id. 

A. and B. are respectively customers of C.^ 
a banker. A. eoes to C.'s bank at a quarter be- 
fore one on Monday, and gives C.'s managing 
clerk directions as to the payment of a bill, and, 
whilst the clerk is making a memorandum of 
those directions, lays on the counter a check drawn 
by B. on C, and says ** place this to my account*' 
or *^ credit." No intimation as to whether the 
check would or would not be paid was given to 
the clerk. The clerk did not debit B. with the 
amount, or place it to A.'s credit, or cancel the 
check. B. having overdrawn his account, in- 
quiries were made on Tuesday, the result of which 
was, that C. resolved not to pay the check. The 
check, with notice of dishonor, was sent to A. at 
his residence, by seven o'clock, p. m. on Tuesday : 
— Held, sufficient notice of dishonor, id. 

Semble, that as the post did not leave the town 
in which the bank was situate until seven o'clock 
p. m.,A notice of dishonor received by A. at his 
residence, at a few miles distance, at 7 o'clock, 
was earlier than necessary. Id. 

A bill for an account will li^ against a banker 
by his customer. Bowles r. Orr, 1 T. db Col. 
464. . 262 



[BANKRUPT] 



2335 



BANKRUPT. 



11. JURIIPICTION IN BaNKRUPTCT. 

T^ Lord Chaocellor sitting in bankruptcy 
eommttted the 9olicitor to the commission for 
not obeyine an order: — Held, that the Lord 
Chancellor nad jurisdiction so to do ; and that ho 
action lay a^inst him for so doing : — Held, also, 
that the Lord Chancellor, in an action broiiffht 
against him for so doing, need not plead specially. 
Dicas V, Brougham, (Lord), 6 C. & P.i^9 ; 1 M. 
A, Rob. 30(J— Lyndhurst. 267 

Tiie Lord Chancellor's jurisdiction to annul a 
fiat stHI exists. In re Chambers, 4 Deac. ^ Chit. 
57d : S. P. Ex parte Keys, 3 Deac. &, Chit. 263 ; 

1 Mont, ik Ayr. 226. 267 

A petition presented to the Lord Chancellor 
before 1 & 2 Will. 4, c. 56, must be transferred 
by the Lord Chancellor, to the court of Review, 
before that court can hear it. In re Stokes, 4 
Deac & Chit. 578. 267 

Although upon a fiat being superseded the 
Lord Chancellor has issued nis confirmatory 
order, the court of Review, upon a proper case 
on rehearing, can in efiect order a procedendo, 
by means of its intimation to the Lord Chan- 
cellor. £x parte Lavender, 4 Deac. & Chit. 496 ; 

2 Mont A& Ayr. 103. 267 

Quaere, as to the power oi the court of Review 
to issoe a writ of habeas corpus ? £x parte Jones, 
2 Mont. & Ayr. 41 ; 4 De^c. <& Chit. 536. 267 

In general an uncertificated bankrupt cannot 
file a bill against his assignees for an account of 
their dealings under the bankruptcy ; nor can the 
bankrupt obtain this relief indirectly, by charg- 
ing iraud and collusion between the assignc^es and 
atiiird party, where the bill states no specific acts 
of fraud on the part of tlie assignees, and prays 
no relief against them on the ground of uuud. 
Tarleton «. Hornby, 1 T. & Col. 172. 267 

A general order acts as if a particular order in 
each ease. Ex parte Sidebotham, 2 Mont. & Ayr. 
151. 2iS7 



Hi. Who mat be fi/ hkrupts. 

A fiat was superseded with costs, to be paid by 
the petitioning creditor, on the ground of the 
bankrupt's minority; but the court of Review 
made no order for assigning the bond. Ex parte 
Hehir, 3 Deac. &, Chit. 107. 269 

A person who keeps livery stables and buys 
large quantities of hay and straw and oats, which 
be supplies to the horses standing in the stables, 
and sells to any person generally, is a trader, 
sabject to the bankrupt law. Cannan v. Denew, 
3 M. & Scott, 761 ; 10 Bing. 2U2. 272 

Cow-keepers. (,^arter v. Dean, 1 Wils. C. C. 
8b ', 1 Swans. 64. 271 

A country attorney hired a room in Bell- 
conn, Brook's Market, London, which he kept 
ibor weeks, and in which he put eighty-two 
old Toiomea of books, sticking up a pa,'9<'r in tU« 



window, in which his name was written, with the 
addition of " bookseller ;" a fiat having been is- 
sued against him by this description, was an- 
nulled on tlie ground of fraud. £x parte Dart, 2 
Deac. <& Chit. 543. 270 

By 2 Will. 4, c. 39, s. 9, in aU personal actions^ 
wherein it shall be intended to proceed against a 
member of Parliament^ according to the provisions 
of the statiUe 6 Geo. 4, c. 16, s. 10, the process 
shall be according to the form contained in the sche- 
dule annexed to the 2 fVUl. 4, c. 39, marked JVb. 6, 
and which process and a copy thereof stkoU he in 
lieu qf the summons, or original bill and summons 
and copy thereof mentioned in the said statute. 273 

Semble, a coach proprietor is not a trader. In 
re Walker, 2 Mont. & Ayr. 267. 273 

A builder is a person who builds either on his 
own or another's land for a profit. Ex parte 
Neirincks, 2 Mont. & Ayr. 384 ; 1 Deac. 78. 271 

A party who bought six carcases of houses for 
the purpose of finishing them, and selling them 
a^in when he had made them habitable, and 
who ordered materials for this purpose, repre- 
senting himself to be a builder, may be made a 
bankrupt as a builder, within the 6 Geo. 4, c. 16, 
.8.2. Id. 

A single act of buying and selKog by a fanner, 
with evidence of intent to continue, is a sufiicient 
act of trading. E)x parte Lavender, 4 Deac. & 
Chit. 487 ; 2 Mont. <5l Ayr. 11. .269 

Although there be not evidence of the trading 
on tlie proceedings, the fiat will not be super- 
seded, if the bankrupt admitted to the petitioning 
creditor that he was a trader. Ex parte Bailey, 
2 Mont. & Ayr. 86. 2& 

Afler the issuing of the fiat, the petitioning 
creditor heard and believed that the party against 
whom it was issued was a married woman. The 
court would not for this cause, on the petition of 
the petitioning creditor, order the fiat to be an- 
nulled, but merely suspended the prosecution of 
it. Ex. parte Harland, 1 Deacon, 75. 269 

The non-possession of property by the bank- 
rupt ^is not a sufficient reason for not declaring 
him a bankrupt Ex parte Johnson, 2 Mont. <Sl 
Ayr. 390. 273 



IV. Act of Bankruptcy. 

Act of bankruptcy afler ceasing to trade. 
Bailley v. Grant, 1 Clark & Fin. 238 ; 2 M. & 
Scott, 193 ; 9 Bing. 121. 275 

Breaking an appointment to delay creditors it 
an act of bankruptcy. Robinson v, Carriogton 
(Lord), 1 Mont. & Ayr. 13. 278 

The bare neglect to keep an appointment to 
meet a creditor does not amount to an act cf 
bankruptcy. Ex parte Lavender, 4 Deac. & Chit. 
484 ; 2 Mont. d& Ayr. 11. 277 

A bankrupt, pending a negotiation for the loan 
of mone^, is arrested in the country, and discharg- 
ed on bail. He at the time promises to meet the 
creditor a|td his solicitor on the following day, 
and g*Te s«'*arity. On the following day, how- 



t2336 



[BANKRUPT] 



eyer, he goes to London, in order to procure part 
of the loan, and therewith to pay the creditor the 
debt instead of ^iyin^ aecuritj. He writes to 
the solicitor, statiiiff the fact and its oSject, and 
promises to return in a daj or two and pay the 
debt. He is, howeyer, detained longer in London, 
bona fide, upon the same negotiation: — Held, 
that eyidence of the intent to delay his creditor 
was rebutted. Id. 

A trader does not commit an act of bankruptcy 
within 6 Geo. 4, c. 16, s. 3. by absenting himself 
from some place at which he would in the ordi- 
nary course of his life and business, be expected 
to be found, or at which he has appointed to meet 
particular creditors. Bernaaconi v Farebrother, 5 
M. & R. 964. 277 

A trader, being in debt to seyeral persons, 
leayes this country in June, 1831, for America, 
with some intention of returning, but does not 
actually return, nor does he make proyision for 
the payment of all his debts. In September, 
1833, one of th^ creditors whose debt was left 
unproyided for, issues a fiat against hira, which 
the bankrupt, by his agent in uiis country, after 
the 42nd day, petitions to supersede. — Held, 
(diss. Sir J. Cross), that the fiat could not be 
superseded without the preyious surrender of the 
bankrupt : — Held, also, per tot. cur., that the con- 
tinned absence of the bankrupt, under these cir- 
cumstances, amounted to an act of bankruptcy. 
£z parte Kirkman, 3 Deac. &, Chit 451. 277 

Where a trader, whose goods are under seizure 
quits his home, it is for the jury to say whether 
he departs with the bona fide intention to en- 
deayor to procure the means of remoying the 
execution, or, whether, haying gone tor that pur- 
pose, he stays away for the purpose of ayoiding 
nis creditors, fiatohelor v. Vyse, 4 M. & Scott, 
553; IM. &Rob.331. 277 

A trader in embarrassed circumstances, ab- 
sented himself from his house from the I6th of 
February till the 9th of March. Upon an issue, 
whether he had commitfbd an act of bankruptey 
on or before the 5th of March, two letters, written 
by him on the 16th of January preceding, asking 
rar time on two bills of exchange, payal^e by 
him in February, were received in eyidence to 
show the motiye of his absence. Smith v. Cramer, 
1 Scott, 541 ; 1 Sing. N. R. 1 ; 1 Hodges, 124 

277 

Upon an issue directed to try whether one P. 
had committed an act of bankruptey on a giyen 
day, it appeared that on the preceding day he 
sent a letter from his dwelling-house at Green- 
wich to his place of business, addressed to his 
son, stating that, he was unable to meet his en- 
gagements, and desiriujg that he might be denied 
to any creditor who might call, and immediately 
after dispatohing his letter he left home, and re- 
mained absent during the whole of that and the 
following day. A witnesi proyed that P. called 
on the day in question at her brother's house in 
liondon ; that he expressed to her an apprehen- 
sion of being sent to the Fleet, and stated that 
he was m no hurry to set home, and would not 
go yery early, as he had creditors who Would lay 
Sold oT him, and that he did not leaye till after 



dark. The jury were told, that if they belieyed 
the statements made by the witness, P. on that 
occasion committed an act of bankruptey ; they 
said they did belieye the witness, but tney did 
not think P. spoke with bona fides : — Held, that 
P. had committed an act of bankruptey ; and 
that eyidence of his conduct and conversations, 
on the day subsequent to the date mentioned in 
the issue, was not admissible to explain his con- 
duct on that day. Johnston v, Woolf, 2 Scott, 
373. 277 

A trader conveying away property to such an 
extent as will prevent him from continuing his 
business, and render him insolvent, thereby com- 
mits an act of bankruptey. Wedge v. Newlyn, 
4B. &Adol.83l. 26^ 

But those who rely upon such act of bankrupt- 
cy on a trial must show that it was calculated to 
have the alleged effect, by eyidence of the general 
state of the party's aiSairs at the time of such 
conveyance. Id. 

It is not sufficient to prove that the trader, un- 
der pecuniary pressure, disposed of some article 
essential to the carrying on of his business ; as 
that a miller, by bill of nle, transferred his wag- 

fon and horses to a creditor who had arrested 
im. Id. 

A fair and bona fide sale of the whole of a tra- 
der's property is not, of itself, an act of bank- 
ruptey. Rose V. Haycock, 3 Nev. & M. 645 ; 1 
Adol. & Ellis, 460. 282 

The party who impeaches the sale of the whole 
of a bankrupt's property must show some facta 
from which fraud may he inferred. Ijd. 

A sale of the whole of a trader's stock in trade, 
with an intention to abscond with the money and 
cheat his creditors, to a bona fide purchaser, who 
is ignorant of the trader's design, is not an act 
of Dankruptey* Baxter v. Pritohard, 3 JNev. &. 
M. 638 ; 1 Adol. & EUis, 456. 282 

An assignment by a trader of all his estate and 
efiecto, for the benefit of all his creditors, execut- 
ed by the trader, but not executed by the trustee 
or by any <;reditor, or further acted on, is an act 
of biankruptey. fioteherley v. Lancaster, 3 Nev. 
^k M. 3^; 1 Adol. & EUis, 77. 282 

Qusre, whether the court can, upon showing 
cause against a rule for a new trial, entertain a 
question as to whether a deed amounted to an act 
of bankruptey, where the rule nisi was obtained 
upon the ground of the improper reception of 
eyidence to show insolvency preparatory to proof 
of another act of bankruptey, in which the par- 
ties &iled at the trial ? Id. 

A conveyance of part of a bankrupt's property 
in trust to sell and dispose of the proceeds as 
he shall direct, is not an act of bankruptcy. 
Robinson v. Carrington (Lord), 1 Mont. &, Ayr. 1 . 

263 

A trader entitled to large freehold and lease- 
hold estates, but ^atly embarrassed, and haying 
committed acts ot bankruptey, conveyed his free- 
hold and leasehold estates to trustees, upon trust 
to sell or mortgage, and to apply the product as 
he should direct ; it appeared that the trust*deed 



[BANKRUPT] 



3337 



WM executed under advice, for the purpose of 
efiecting a eonversion of the trader*8 property, 
with a Tiew to an arrangement with his creditors, 
to which be was himseff considered incompetent 
fion the state of his health :~Helcl, that the 
tmst deed was not an act of bankruptcy. Green- 
wood V. ChurchiU, 1 Mybie & K. 546. 2d2 

Two creditors persuaded a bankrupt to execute 
an assignment of his effects to them for the be- 
nefit of his creditors, and issued a fiat against 
him, setting up this assignment as the act of 
bankruptcy : they then seized his furniture and 
stock, witnout taking any proceedings under the 
fiat: on the application of a bona fide creditor, 
this fiat was ordered to be annulled, and a new 
one issued. Ex parte Mucklow, 3 Deac. <& 
Chit 25. 285 

Where a trader assigned by deed all his pro- 
perty in trust for the wnefit of his creditors : — 
Held, that it was an act of bankruptcy under 6 
Geo. 4, c. 16, 8. 3, although, in so doing, he did 
not intend to defeat or delay his creditors, as that 
being the necessary consequence of the assign- 
ment, he must, in law, be taken to have intended 
it. Stewart v. Moody, 1 C. M. ^b R. 777 ; 5 Tyr. 

493. 'iesi 

A deed by F., one of two traders in partner- 
ship, conveyed his separate estate to trustees f )r 
the joint creditors of both : the joint creditors 
agreeing that the traders should continue in pos- 
session of theip stock, and carry on business with 
a view to retrieve themselves : and that upon their 
paying 4s. 6d. in the pound by certain install- 
ments, they should receive a general release : — 
Held, not an act of bankruptcy : — Held, also, that 
it was properly lei\ to the jury to say, whether 
the deed was executed bona nde to enable the 
traders to retrieve themselves, or was executed 
by y. with intent to defraud bis separate credi- 
tors. Abbott V. Borbage, 2 Bing. N. R. 444. 282 

A fraudulent delivery of goods by a trader, will 
be of itself an act of bankruptcy. A delivery of 
goods to one to whom no debt was due, would be 
such a fraudulent delivery ; and the delivery 
would likewise be fraudulent, though a debt was 
doe, if the transfer of the soods was made volun- 
tarily, and in contemplation of bankruptcy. 
ScoU 0. Thomas, 6 C. ^ P. 611— Parke. 283 

Qoere, whether the payment of a country 
bank 'note to a creditor, with the intention of 

E'ving him a fraudulent preference, is an act of 
mkruptcy within the 6 Geo. 4, c. 16, s. 3 ? Carr 
V. Bnrdiss, 1 C. M. <fc R. 782> 5 Tyr. 309. 283 

A., a soap and alkali manufacturer, being in- 
debted to a banking company, assigned to them, 
to secure past and Tuture advances, his leasehold 
property, with all the stock in trade, utensils, and 
effects thereon, and also a policy of insurance, as 
a security for monies advanced or to be advanced. 
The deed contained a power of sale, and a pro- 
viso, that the trader should remain in possession 
ontil de&nlt. The assignment did not include 
another part of A/s property, equal in amount to 
the debt covered by the security. In an action 
by A.*s assignees to recover part of the property 
gned, the jury found that the deed was not 



executed in contemplation of bankruptcy : — Held,, 
that it was a valid deed, and did not amount to 
an act of bankruptcy. Carr v. Bnrdiss, 1 C. M. 
& R. 443 ; 5 Tyr. 136. 283 

The court h&> no jurisdiction to control the 
discretion of a commissioner as to what docu- 
mentary evidence be shall require to be produced 
to prove an act of bankruptcy. But the court in- 
timated its opinion, that a fetter written by the 
bankrupt's wife to a third party, in whose pos- 
session it remained, though it could not in any 
way afiTord direct evidence of the act of bank- 
ruptcy (unless it was also proved that she was 
authorized by her husband to write it as his 
agent), she not being examinable as a witness 
upon that point, yet might be ordered to be pro- 
duced, to be used only as a cine to the procure- 
ment of other evidence as to the act of bank- 
ruptcy. £x parte Groom, 4 Deac Sl Chit 640. 

287 

Concerted act of bankniptcy . Marshall «. Bark- 
worth, 1 Nev. A M. 279; 4 B. <% Add. 506. 285 



V. Petitiokino Creditor. 

The assignees of a bankrupt gave B., their 
licitor, a check for the amount of the bUl of cost» 
of A., the petitioning creditor (who was his own 
solicitor); B. oflR?red to pay A. the fuU amount 
of those costs, provided that he would engage in 
the receipts that the costs should be afterwards- 
liable to taxation ; A. refused to give such en- 
gagement, and requested B. , to pay out of the 
same some commissioners' fees included in the 
bill : — Held, that no promise arose upon the offer^ 
the terms of which were not acceded to; and 
without the promise there was no privity of con- 
tract to support aii action for money had and re- 
ceived. Barron v. Husband, 1 Nev. & M. 728 ^ 
4 B. ds Adol. 611. 290 

The petitioning creditor's bill was ordered ta 
be taxed by an ofiicer of the court of Review,, 
where objectionable charges had been allowed by 
the commissioners. £x parte Hattendey, 2 Deac. 
& Chit. 373. 290 

Attendance of petitioning creditor dispensed 
with, under the circumstances, at the opening of 
the fiat. In re Polton, 3 Deac. & Chit. 6B8. 289 

A petitioning creditor is entitled to be repaid 
out of^ the estate a sum paid to the creditor to ren- 
der him a competent witness to support the fiat. 
Ex parte Forth, 2 Mont, dc Ayr. 381. 289^ 

Although the money first received under a fiat 
is by the statute required to be appropriated in 
discharge of the expenses incurred by the peti- 
tioning creditor, yet, where he assents to a differ- 
ent appropriation, he is estopped from afterwards 
contending that the directions of the act have 
not been complied with. Homidge v. Eyland, 2 
Scott, 357. 889 

Reference to the commissionen to allow, on 
the taxation of the petitioning creditor's bill of 
costs, certain expenses incurred before adjudica- 
tion, by parties appointed by the creditors to act 
for the benefit of the estate. Ex parte Evans, 4 
Deac. «c Chit. 31)2. 28» 



I 



2838 



[BANKRUPT] 



Altboajphtfae petitioning creditor is not entitled 
to an order on the usigneei to pay the amoant 
of his costs before they Sayb received money un- 
der the fiat, he is, nevertheless, entitled to an in- 
quiry whether any assets have been received by 
the assismes. £x parte Abnun, 4 Deac. & Chit. 
401. ^ 289 

VI. PsTITIOlflRG CrZDITOR's DeBT. 

Validity.] — A docket was struck on a note on 
which the bankrupt and one W. were jointly lia- 
ble ; afterwards a tender was made on behalf of 
W. : a petition to supersede for want of a petition- 
ing creditor's debt, dismissed — payment, after 
docket struck, would have been mvalid. Kx 
parte Jones, 1 Mont, dt Ayr. 442^ 3 Deac. & 
Chit. 697. 203 

Semble, that pending a replevin on a distress 
for rent, the landlord cannot sue out a commis- 
sion of bankruptcy against the tenant, founded on 
his demand for rent. Emery v. Mucklow, 4 M. 
Sl Scott, 263. 294 

If money be advanced to a trader, to enable 
him to commence a trade, of which the lender is 
to share the profits, it is a good petitioning cre- 
ditor's debt. £z parte Notley, 1 Mont. & Ayr- 
46. 294 

Sooh debt may be proved. Id. 

Qua»re, whether a mortgagee in trust can alone 
issue a fiat against the mortgagor on the mort- 
gage deed ? He can, if the legal validity of his 
debt has been previously established by an action 
at law. £z parte Gray, 2 Mont. & Ayr. 283. 293 

Per C. J. — If a partner files a bill, and treats 
a debt as mixed with the partnership, a fiat can- 
not afterwards be issued on that debt. Id. 

Qniere, whether a joint commission against 
two, joint traders with a third, not included in 
the commission, on a debt due from the two, is 
valid > Ex parte Chambers, 2 Mont. & Ayr. 440. 

293 

Where a bankrupt, on a petition to annul a fiat, 
pressed for further inouiry as to the validity of 
the petitioning creditor s debt against the opinion 
of the court, and the matter was accordingly re- 
ferred to the deputy registrar, who reported that 
the debt was a good one ; the court ordered the 
bankrupt to pay the costs of the inquiry, there 
being no estate in the hands of the assignee. £z 
parte Ne'urincks, 1 Deacon, 78 ; 2 Mont. A Ayr. 
§84. .29S 

The bankrupt, who was in partnership with W. 
P., borrowed money of him by way of personal 
loan, and upon the dissolution of the partnership, 
purchased the stock in trade for a stipulated sum. 
W. P. made out an accoui^t, entitled ^'Mr. H. P. 
(the bankrupt) in account with H. & W. P. :'* — 
Held, that W, P. had a good pelitioning credi- 
tor's debt, notwithstanding this mode of intituling 
the account. Ex parte Aichardson, 3 Deac. ^ 
Chit 244. 293 

If a trader take the benefit of the Insolvent 
Debtors* Act, a creditor, whose debt is inserted 
in the schedule, may afterwards issue a fiat on 
that debt against the trader. Ex parte Barring- 
ton, 8 Mont. A Ayr. 255 ; I Deacon, 3. 293 



Substitution.'] — Where a new petitioning credi- 
tor's debt has been substituted under the stat 6 
Geo. 4, c. 16, s Id, it is sufficient to prove the 
petition to the chancellor for the substitution of 
the new debt, the chancellor's order referring the 
sufficiency of the debt, dtc. to the commissioner, 
and the finding of the commissioner thereon. It 
is not necessary to produce the chancellor's order 
confirming such finding. Batchelor v. Vyse, 1 
M. &, Rob. 331— Tindaf: S. C. not S. P. 4 M. & 
Scott, 552. 296 

If, on an application to substitute a petitioning 
creditor's debt, by any other creditor, it appean 
that the original debt was proved under a mistake 
in law, and was reduced on legal grounds, and 
without firaud on the part of the original petition- 
ing creditor, though he comes to substitute under 
such circumstances in autre droit. Ex parte 
Rogers, 4 Deac. &. Chit 637 ; S^Mont. & Ayr. 153. 

296 

An order by the Lord Chancellor, under 6 Geo. 
4, c. 16, s. 18, substituting a new petitioning cre- 
ditor's debt for one alleged to be insufficient to 
support a commission, is invalid, if it direct the 
commissionen to inquire only as to the suffi- 
ciency of the new debt, and is silent as to the in- 
sufficiency of the old. Muskett v. Drummond, 
5M. &.R.210. 296 

Whether a valid order under that section made 
pendente lite, would be evidence against a party 
who had no notice of such order, quere .' Id. 

On a petition for a substitution of a debt, in lieu 
of the petitioning creditor's debt, under the 6 Geo. 
4, o. lb, s. 18, uie costs of the proceeding must 
be paid by the petitioning creditor, and not out 
of the bankrupt's estate. Ex parte Hayne, 4 
Deac. &, Chit 403. 896 

The petitioning creditor issued the fiat on a 
debt of 700Z., but the greater paK being contract- 
ed during the bankrupt's minority, and not for 
necessaries, the debt was reduced below 1001., 
and was therefore insufficient to support the fiat. 
But the petitioning creditor had also accepted 
bills for the accommodation of the bankrupt, 
which having been indorsed by the bankrupt to 
A., A. proved them under the nut The petition- 
ing creditor subseouently paid these bills :-— Held, 
that, on indemnitying A., and on presenting a 
petition in the name of A. for that purpose, the 
petitioning creditor was entitled, under 6 Geo. 4, 
c. 18, ss. 18, 52, as a surety paying the debt, to 
substitute the debt so proved on the bills*by A.» 
for the original petitioning creditor's debt, so aa 
to support the fiat, notwithstanding the words 
<' any other creditor'! in the 18th sect Ex parte 
Rogers, 4 Deac. & Chit 623; 2 Mont ik, Ayr. 
153- 296 

Costs of the application to substitute another 
debt for the debt of the petitioning creditor or- 
dered to be paid by the petitioning creditor. Ez 
parte Lloyd, 2 Deac. & Chit 506. ' 296 

Where the commissioners find the petitioning 
creditor's debt insufficient to support the fiat, they 
should also expressly find, that the debt proposed 
to be substituted was incurred not anterior to the 

KUtioning creditor's debt. Ex parte Hunter, 2 
»ac. A Chit. 507. 296 



[BANKRUPT] 



2339 



Vll; DocxxT. 

A. tendeTed docket p^pen, of which the affida- 
Til of debt w«e sworn before the solicitor to the 
petitUming creditor ; at the same time B. tender- 
ed paoers not so sworn ; they drew lots, and the 
lot Kll to A., whose JMLpers were entered : the 
coort vefnsed to interKre, to give the fiat to B. 
Ex parte Darkins, 1 Mont. &, Ayr. 417. 298 

A country fiat will be preferred to a London 
one, where the m^or part of the creditors, the 
witnesses to prove the requisites of the bank- 
Tvptcy, as well as <»ie of the bankmpts, reside in 
the ooontryy and all the eftcts of toe bankmpts 
are also there. £x parte Bolan, 2 Deac. A. Chit. 
331. 299 

The same creditor cannot strike another docket 
befiue the time for opening has expired. In re 
Gerrish, S Mont. & Ayr. 491 . 299 

VIII. Fiat or Comiissiox. 

iMtmrng ami Form,'] — ^If the fiat be lost, a new 
one must be issued. In re Levet, 1 Mont 6l 
Ayr. 306 ; 3 Oeae. & Chit. 567. 299 

Where a bankrupt, who had been for some time 
residing in Brompton Square, was described in 
the fiat " of Arundel Street, in the county of 
Middlesex," where he had taken temporary lodg- 
ings only four days before the issuing of the fiat ; 
the fiat was superseded, on thejrround of misde- 
sexiptkm. £x parte Tanner, 2 Deac. 6l Chit 563. 

301 

The instances in which commissions and fiats 
have been superseded on the ground of misde- 
scription are either where the error was so gross 
as to mislead the creditors, or where, though not 
so gross, yet the petitioner undertook to issue a 
new fiat, or where two commissions existed, aod 
the eoart supported that which contained the 
most accorate description. £x parte Mills, 1 
Mont dt Ayr. 310 ; 3 Deac. & Chit. 606. 301 

A coBimission of bankrupt, describing the 
parties as '^bankers, being traders according to 
the provision of thestat 6 Geo. 4, intituled, £c." 
is good, though they had ceased to be bankers 
be&e that stat. passed ; for the word " bankers" 
is descriptive of thepersons only, and the word 
** traders" is a sufficient allegation that they 
were, as such, liable to the bankrupt laws. Ber- 
V. Farebrother, 5 M. dt R. 364. 301 



Such a commission may be supported bv evi- 
dence of any species of trading carried on oy the 
bankrupts after the psssing of the statute. Id. 



J.] — Unopened fiat not amended. Ex 
parte Hawes, 1 Mont. & Ayr. 708. 3G2 

Unopened fiat amended, by inserting the pro- 
per parish. Ex parte Elliott, 1 Mont. & Ayr. 
664: S C. nom. In re Humphrey, 4 Deac. &, 
Chit 484. 302 

Docket papers and the fiat cannot be amended 
by inserting the bankrupt's place of business. 
Ex parte Graves, 1 Mont St. kjx. 315. 302 

(^nsBie, if the docket be correct, and the fiat 
Bconect, through the error of the ofiice.^ Id. 

A fiat win not be amended by altering the 
4ate to let in a later act of bankruptcy, unless 

Vol. IV. 



under special circumstances. Ex parte Jacobs, 
2 Mont ds Ayr. 102 \ 4 Deac. & Chit 277 : 8. 
P. in re Roberts, 3 Deac. ds Chit 315. 302 

Semble, that the name of one of the commis- 
sioners who has not acted under the fiat, being 
misspelt, is not such an error as to require 
amendment. In re Bell, 3 Deac. & Chit 326. 

308 

Quaere, whether the court of Review can direct 
an amendment of a fiat, without the approbation 
of the Lord Chancellor ; and whether this can 
be done now, after adjudication. Id. 

An unopened fiat was amended, by altering 
the description of one of the petitioning creditors, 
so as to make it agree with that in the docket 
papers. Ex parte Jervis or Jarvis, 4 Deac. Sl 
Chit. 27 ; 1 Mont. ^ Ayr. 619. 302 

VaUdUy generally.'] — A commission issued by 
one partner against another, not for the purpose 
of distributing the bankrupt's efl^cts among his 
creditors, but for the sole purpose of dissolving 
the partnership, is supersedeable. Ex parte 
Christie, 2 Deac. & Chit 465. Confirmed on ap- 

ral to the Lord Chancellor. Ex parte Christie, 
Deac. & Chit 488. 303 

A commission held, under the circumstances, 
not supersedeable, though there were not the re- 
quisites to support it Ex parte Munk, 1 Mont. 
dL Ayr. 612. 303 

Although a fiai is concerted, for the purpose of 
defeating an action brought by a creditor against 
the bankrupt for the recovery of his debt, yet, 
where the creditor proves his debt under the fiat, 
and lies by for ten months before he presente a 
petition to annul the fiat, the court will dismiss 
the petition. Ex parte Mills, 3 Deac. & Chit 
606 ; 1 Mont A Ayr. 311. 303 

Second CommusUm.'] — Operation of second 
commission. Carew r. Edwards, 1 Nev. & M. 
632 ; 4 fi. ^k Adol. 351 ; 2 Dowl. P. C. 613. 304 

The person of a defendant is discharged by 
certificate, after prior insolvency, although 15s. 
in the pound were not paid. Id. 

In such case the certificate being proved, but 
the verdict entered generally, the court will make 
use of affidavite to ascertein the fiust df such 
proof. Id. 

After such general finding, the defendant be- 
ing taken in execution, he may at once apply to 
be discharged, without moving to restrict the 
judgment. Id. 

The 6 Geo. 4, c. 16, s. 127, is retrospective, 
and applies to discharges by bankruptoy or in- 
solvency before the passing of the act, as well as 
to discharges obtained subsequent to the passing of 
the act. Elston v. Braddick, 2 C. db M. 435 ; 4 
Tyr. 122: 8. P. Ex parte Hawley, 2 Mont A, 
Ayr. 436. 303 

But not where the second commission was be- 
fore the 6 Geo. 4, c. 16. Ex parte Hawley, 2 
Mont. & Ayr. 426. 909 

A., in the year 1816, was discharffsd under an 
insolvent act, and in 1830 obteined Eis certificate 



£840 



[BANKRUPT] 



middr a eMUAiitiott of bAAknifttey iMoed in 
lt29f Wi4f!r which eommisBioa mB estate pr<^ 
dttoed less than iufficient to psj hn ereditora 15*. 
in the pound. A-, in the yeu 1832^ opened an 
account with the Bank of England, and a sum of 
^1941. 1^9. was deposited by him in the Bank : — 
Held, that an action for monev had and received, 
brought by the assignees under the commission 
against the Bank of England, to recoTer the 
aoionnt so deposited, was maintainable. Elston 
». Braddiek, 2 C. dfc M. 435 ; 4 Tyt. 122. 

It is not of coune to supersede a second com* 
mission against an uncertificated bankrupt, on 
the ap^ieation of the assignees, d&c. under the 
tint Et parte Detas, 1 ifont. Sc Ayr. 420 ; 4 
Dese. A Chit. 366. 303 

Where a trader, after having obtained his certi- 
ficate under three commissions of bankruptcy, 
under none of which any dividend bad oeen 
paid, was arrested for a debt Contracted between 
the second certificate and the third bankruptcv, 
th6 court refiised to discbarse him out of custodv 
on finding wm i nou bail. F«wler t. Coster, 5 M. 
AR.3o2. 306 

And such third commission was said to be a 
nullity. Id. 

If there have been two commissions, and no 
dividend, it is in the discretion of the court to 
allow or refuse the certificate. Ex parte Green, 
2 Mont. & Ayr. 31. 303 

A commission issued against the bankrupt in 
1823, under which a creditor omitted to prove 
his debt, being informed there was no assets. A 
subsequent nat was issued against the bankrupt 
in 1834, who had not then obtained his tertiftcate 
under the former commission, when the tonrt 
ordered the commission to be impounded. A 
petition by the creditor, praying that the com- 
mission might be delivered out of the ofiice, to 
enable him to ffo in under it, and prove his debt, 
was dismissea with costa. Ex parte Martin, 1 
Deacon, 44. 303 

Ifnptachment of VaUdUy.] — Where a bankrupt 
petitions to supersede, and brings an action at 
the same time to disjpute the bankruptey, the 
court of Review declined compelling him to elect 
which proceeding he would contmue, but or- 
dered that the petition should stand over until 
the result of the action was known. Ex parte 
Chambers, 3 Deac. A Chit. 378. 306 

Thi court of Review have jurisdiction to re- 
stiain the bankrupt from bringing actions to up- 
set his commission. Ex parte Davy, 1 Mont. & 
Ayr. 283 ; 4 Deac. & Chit. 322. 306 

The court of Review can stay any action 
brought by the bankrupt in any court, semble. Id. 

After twenty-two years and acquiescence, the 
court of Review will restrain the bankrupt from 
bringing actions against purchasers und^r the 
commission. Id. 

Long aequieseence is enough to refase to su^ 
persede on the application or the bmkrupt, but 
not alone enough to enable the court of Review 
t$ fMtMin him mm bringing actions. £t parte 
tttty, 1 ikiit. A Ayr. ftff. 306 



Petitioning to enltrge tte time for aarrsader 
is a slight mA of aeqaiesomtia. ld< 

Lying in prison under a commitment by com- 
missioners, is a strong act of acquiescence. Id. 

The court of Review would not restnun an ac- 
tion in which the bankrupt intended Ihhrly to ttf 
the validity of the commianon. Id. 

If a bankrupt, having actions Oendlng, peti- 
tion to supersede, he must elect. Id. 

Where the bankropt petttkHia to aoperwdbf 
having commenced actions, lie mvst ttndertaktf 
to stay them, and not bring ethtrs without toaw 
of the court of Review. £x parte Pownall, 1 
Mont« & Ayr. 314 ; 3 Deac. &, Chit. 733, 7!i!6. 

The bankrupt may petition to cuptfraede with- 
out undertaking not to bring actions. Ex parte 
Daly, 1 Mont. & Ayr. 343 ; 3 Deac. & Chit 728. 

306 

The certificate obtained ixnder a ftatidulent 
eommissioil is no protection against a petition Uf 
supersede. Exparte Wyatt,! Mont. & Ayr. 407; 
3 Deac. A Chit. 665. 306 

Where the bankrunt petitions to alintd the fiat, 
on the ground that ne has not committed an act 
of bankruptoy, the court of Review will ord^r 
him to be furnished with copies of the deboeitiona 
relating to the act of bankruntey. Ex parte 
Smith, 3 Deac. & Chit. 101. 306 

It requires a very lArong case to restraiA a 
bankrupt from disputing his commission. Ex 
parte Chambers, 2 Mont. ^ Ayr. 476w 306 

A party is not bound by aequieseettce whetir 
ignorant of his rights. Id. 

If either Surrendering, interfering in the choice 
of assignees, interposing as to the disposition of 
the estete, passing the last examination, nor en- 
deavoring to obtain the certificate, are acte of 
acquiescence. Ex parte Chamben, 2 Mont. Sl 
Ayr. 440. 90S 

A cdmmtssion of bankrupt having issued s^ainst 
plaintiff, which was invalid for want of a sumcient 
petitioning creditor's debt, plaintiff applied to » 
commissioner to appoint an official assignee to 
investigate the sumciencv of the debt, and take 
care or the property : defendant having been ap- 
pointed accordingly, without notice that the com- 
mission was disputed : — Held, that the applica^ 
tion made bv the plaintiff did not prpclade hint 
firom suing the defendant for monev received un- 
der the conunisaion. Munk v. C5lark, 2 Scott, 
476; 2 Bing. N. R. 299; 1 Hodges, 310. 306 

Perpetual injunction issued to restrain the 
bankrupt proceeding at law, to invafidate a com- 
mission issued ten years back, after actions and 
unsuceessfhl petitions, and acte of acquiescenee. 
Ex parte White, 2 Mont & Ayr. 104 ; 4 Deac. 
A Chit 279. )06 

Where the bankrupt knows he hat commtttedl 
an act of bankruptey, his petition to supemede 
will be dismissed with cotti. El parte Thomp- 
son, BMeiit4t Ayr. 41; 4 Deae.dfc Chit 634. 30(1 

kmaeed and AuxUiary FmU.]— >A w oewtd fiat 



[BANKRUPT] 



8341 



mmt be tnkitm ooi bf or io the ownt of a cndi* 
tor for 1<KU. Ex parte Maade, 1 Mont. ^ i^yr. 
46; 3 Deac. Sl cAiit. 365. 310 

Ao anxiliarj fiat was |rranted bj the court of 
ReTiew to examine witneMcs in London, the ori- 
ginal fiat being worked at Portimouth. Ex parte 
Cwter, 3 Deac. & Chit. J06. .310 

Unlrap tb«Be ana ■pecitl cireomstaneed, the 
oobK win oeTer allow the petitioning creditor to 
take oat a new fiat before (he time for opening 
ham dawad. 6z parte Jacefca, 2 Mont. 4& Ayr. 
IDS; 4 £>ea. Sl Chit. 377. 310 

A new fiat issued on the petition of the 9ame 
petitioning creditor before the time for opeiling 
had expired, he hAv'tng been unable to prove an 
act of bankruptcy before, but one having been 
aince committed. £z parte Llewellyn, 2 Alont. dr 
Ayr. 296: S. P. In re Crawley, 3 Deac. & Chit. 
i^J. 310 

A patitianing creditor haying become bankrupt 
haiore tha 14 days for opening the fiat had 
elapsed ; kt was ordered that another cfeditor 
BiAitaka new docket papers into the office, 
and if the first fiat araa not prosecuted, that he 
SBichft then issue a fresh fiat £z parte Smith, 3 
Oeae. dk Chit. 309. 310 

Upon the loss by the petitioning creditor of his 
evidence to support the nat, the court of Review 
will not, on a petition by another person for 
aaeChar fiat, order him to be exempt finrnm paying 
the 102. uuier section 45, and the UOl. under sec* 
tioa 47. QfUBtm whether the court of Review 
liave ianadictioB .' Ex parte Osborne, 2 Mont. Hi 
Ajr. 140 ; 4 Deac. A Chit. 396. 310 

A Sat omitted to be opened within the time 
limited by the general order, is not, for that cause, 
abaolutaly superseded, but only supersedeable. 
Ex parte Smith, 3 De«c. &. Chit. 761. 310 

What ia nequixed to be stated in an affidayit on 
aa application to enlarge the time tor opening 
a fiat. See id. 

The petitioning creditor, after issuing a fiat, 
foand he could not support it, on account of his 
iaahSitjr to prove the trading. The court refused 
to permit another petitioning creditor to issue a 
second fiat, before the time Tor proceeding in the 
Ibst waa expired. £x parte Howes, 3 Deac. & 
Chit. 493. 310 

Wfaaie the time fi>r opening a fiat expins, and 
aaeeond is then issued oy another party, it is no 
Roond for superseding the second, that it did not 
Hsoa QBtil after the first was actually opened, 
nnlMS the p«^ issuing the second knew that 
fret, or was guiUy of some fraud. £x parte West- 
stt, 4 Deae. A Chit. 360. 310 

AHhongh the petitioning creditor goes abroad, 
after iseninff a fiat, the court will not permit 
ansther ereditor to issue a second fiat, until the 
tisM fiir proaeeding in the first has expired. Ex 
psrte Hedlej, 3 Deac. dk Chit 503; 1 Mont. A 
Ayr, 79. 310 

Wlwie a time for opening the town fiat is nearly 
ma fwft, the court will not, at the instance of the 
ptitioDiiig creditor, supersede it and issue a 



country fiat lor an aUegad convenieaee of credi- 
tors. Ex parte fiell, 4 Deac. dit Chit. 481. 310 

When a country fiat is superseded because the 
commissioners decline to act, and a new one 
issues to a London commissioner, this is not a 
" renewed" fiat under 1 dc 2 Will. 4, c. 56, s. 4?^ 
and full fees must be paid. Jn re WeUman, 2 
Mont, dp Ayr. 2J)3. 310 

Joint or saturate Fiai.]-Af the exiatenee of 
two commissions creates inconvenience, one of 
them, probably the first, will be supersetfed. Ex 
parte Devas, 1 Mont. A Ayr. 436. 311 

A joint fiat issued against two partners : then 
commissioners were appointed in pursuance of 
1 d: 2 Will. 4, o. 56) s. 14 ; a separate fiat against 
the third partner cannot be directed to the old 
commissioners. Ex parte Beague. 1 Mont. 4k 
Ayr. 445 ; 3 Deac. A Chit 747. 311 

An application to consolidate the ioint and se- 
parate estates will not be granted, if one creditor 
dissents. Ex parte Sheppard, 3 Deac. 4k Chit. 
190. 3U 

If the commissioners certify that a ooiMolida- 
tion will be beneficial, the assignees need not be 
served. Ez parte Smith, 2 Mont. 4k Ayr. 60. 311 

A eeparate fiat having issued against one of 
three partners, it was ordered that another sepa- 
rate fiat which was about to be issued against pne 
of the other partners, should be directed to the 
same commissioners as those named in the first 
fiat. Ex party filake, 1 Deacon, 191 ; 2 Mont. 
4k Ayr. 481. 311 

The court will not annul a separate fiat, to 
give effect to a subsequent joint one, on tha 

Sound that the only witness who could prove 
e act of bankruptcy, is kept out of the way ; 
nor will they for such cause, make an order mr 
the inspection of the proceedings under the septr 
rate fiat, but will merely enlarge the time for 
opening the joint fiat. Ex parte fiurdekin, 1 
Deacon, 57. 311 

IX. Declamno Party a Baitkrcpt. 

Where a trader, against whom a fiat issues, 
swears that he owes no petitioning creditor's 
debt, and has committed no act of bankruptcy, 
the court of Review will stay the advertisement 
in the Gazette : a fortiori, if there does not appear 
to be a clear debt and act of bankruptcy on tha 
proceedings. In re Fletcher, 2 Deac. 4k Chit. 327. 

812 

On such an application, it is not neooiSBrv 
that the court should inspect the proceedings. Id. 

The application to stay the advertisement in 
the Gazette will not be heard unless the pro- 
ceedings be in court, or, as it seems, unless there 
be a very strong affidavit of solvency. Ex parte 
Pownall, 1 Mont, dk Ayr. 116; 3 Deac. 4k Chit. 
723. 312 

Where there are not the requisites to support 
a fiat, the Chancellor will recommend to the com- 
missioner to hear counsel against the adjudioa- 
tion ; and, if the bankruptey be fomid, will stay 



[BANKRUPT] 



tke 

md ID 
461. 



of the Mdwetiuemeni m the Gtzette, 
£z parte Nokes, 1 Mont. Sl Ayr. 

312 



Wheie the baakropt, after the clioice of as- 
•ignees, petitiona to reverBc the adradication an- 
der the 17th aectionof the 1 & 2 WUl. 4, c. 5(>, 
the aangnees are not prevented from addocinj^ 
Ibrther eridenoe to eatabliah the act of bank- 
roptcj, npon which the adjudication of the coin- 
mianoner proeecded. Ex parte Jackaon, 2 Deac. 
A CtuL 601. 312 

On the hearing of anch a petition, the bank- 
mpt ia entitled to have copiea of the depoaitiona, 
to enable him furlj to dispute the bankruptcy. 
Id* 

On an application for enlarging the time for 
opening a nat, an affidavit muat be made that the 
party bona fide intenda to prosecute the fiat, that 
there ia no compoaition deed pending or intended, 
and no conniTanoe with the bankrupt. £z parte 
Smith, 1 Mont A Ayr. 473. 312 

The court of Reriew will stay the insertion of 
the advertiaement in the Gazette. Ex parte La- 
vender, 1 Mont A Ayr. 699. 312 

On a petition to revene the adjudication, copies 
of the depositions will not be granted till the 
hearing. £z parte Smith, 2 Mont. & Ayr. 75. 

312 

It is not of eoorse on a petition to reverse the 
adjudication, to grant copies of the depositions be- 
fore the hearing. Ex parte Matthew, 2 Mont Sl 
Ayr. 74. 312 

Without an affidavit that there is no collusion, 
copies will not be granted betbre the hearing. 
Id. 

Where the commissioners were absent from the 
first meeting, the court will appoint another. £z 
parte HaU, 2 Mont A Ayr. 294. 312 

The court cannot compel a commissioner to 
adjudieate a man a bankrupt ; it can only order 
him to proceed. Ez parte Johnson, 2 Alont dt 
Ayr. 300. 312 



X. Proof or Debts. 



Jttoikmaag and Orderwfor Patfmmt of Money. ] 
—A person having been ordered to pay a sum 
into Chancery, became bankrupt without having 
done so; a supplement bill was filed against 
his assignees, but no order was made thereunder. 
Ordered, that a claim should be entered for that 
•am. Ez parte Farden, 1 Mont. &, Ayr. 219 ; 3 
Deac. 4k Chit 477. 317 

So, where the asaignees did not appear. Ez 
parte Haneock, 1 Mont A Ayr. 990: 3 Deac. A 
Chit 693. 317 

Interlocutory costs payable under an order of 
nisi Pnus, by a defendant previous to his bank- 
ruptcy, are proveable under the fiat, and therefore 
the certificate is a discharge from them, although 
in attachment has been obtained before the c^- 



tificafte is allowed. Jacobs v. PhilTips, 2 Dowl. 
P.C.716; lC.M.4kR. 196; 4Tyr.65a. 317 

AmuddesJ] — ^An annuity was given by a frtber 
on his daughter's marriage, by a letter to the in- 
tended husband in these words, via. : ** I promise 
vou until it is Gonvenient to me to do soqjiething 
better for you, to allow my daa^ter llXM. a year^ 
which you can have as you may require :" — Held, 
to be an annuity daring the joint lives of the 
&ther and daughter; and though incapable of 
valuation, and tnere was no evidenee of the gen- 
uineness of the latter, held to be provable--Sir 
J. Cross, dissent^ upon the ground that the &ets 
required further investigation. Ez parte /Lnnan- 
dale, 4 Deac. A Chit 511 ; 2 Mont& Ayr. 19. 

315 



BiUs and JVoCes.] — ^A. discounts for K. k, Co., 
who afterwards become bankrupt, three bills 
drawn by them on D. & 8. ; one of the bilb b^ 
conies due before the bankruptcy, and the two 
othen afterwards : none of them are paid br the 
acceptors, and A. rives no notiee to K. & Co. of 
their dishonor : — Held, that A. could not prove 
the first bill, but might prove the two othen. Ez 
parte Sohurte, 2 Deac. A Chit 251 ; 1 Mont & 
Ayr. 270. 312 

K. 4k Co. also sent to A. five other bills dravna 
by tbem on D. & S., and received .from him in 
return his acceptances for the precise amount, 
which they discounted with their own bankers ; 
but none of which being paid by A., (who became 
bankrupt before they became due), they were 
proved by the holders under K. & Co.*s commis- 
sion. A. having negotiated the five bills sent him 
by K. & Co. : — Held, that A. having become 
bankrupt, his assignee could not prove them un- 
der K. Sl Co.*s commission. Id. 

A. 4k B. ezchange their acceptances of va- 
rious bills drawn npon them respectively b^ C. 
and all three become bankrupt befi>re any of the 
bills iall due. The acceptances of A. are nego- 
tiated by the drawer, C, and are proved hj Sie 
holden under each commission, who receive di- 
vidends on their respective proofr : — Held, that 
A.'s assignees might prove the amount of B.'s 
acceptances, under B. s commission, subject to a 
retention of the dividends, until it was ascer- 
tained what each estate would pay on the whole 
of their liabilities. Ez parte Solarte, 3 Deac. 4k 
Chit 419. 317 

If a parbr take bills for the price of goods, and 
it be ajpreed that the bills are to be paid out of 
the proceeds, and the acceptors become bank- 
rupt, the indorsen of the bills, without notice of 
the agreement, are entitled to the benefit of it 
Ez parte Presoott, 1 Mont 4k Ayr. 316. 317 

One of two partners accepts bills for a pre- 
vious partnenhip liability, after his copartner 
has committed an act of bankruptcy: — Held, 
that these bills were, in the hands of a bona fide 
holder, proveable against the joint estate under 
a subsequent commission issued against both 
partnen. Ez parte Robinson, 3 Deac. 4k Chit. 
376. 317 



[BANKRUPT] 



2343 



6. A Co^ to aecnre a permanent loan from 
their bankers, V. Sl Co., to the amoant of 
90,0001., agree to deposit with them their joint 
note for that amount, and as collateral security, 
10,000L in bills not to be moved, and 10,000^ 
in bills to be with G. db Co. during the day, and 
also to leave a standing balance on the account 
every night of 4000f. In pursuance of this 
agreement, G. & Co. every evening delivered to 
V . A, Co. bills of varioos amounts, but not less 
than 10,0001. on any occasion, unless their cash 
balance exceeded 4000^, and every morning 
thej received these bills back again from V. £ 
Co., which were either returned, or others of 
cqoal amount substituted, every evening. On 
the last dav of dealing between the parties, G. 
A Co. inarmed V. & Co. that as they had 
drawn out the cash balance, which they ought to 
have left in their hands, they had given addi- 
tional security to V. (k. Co. by legging bills 
with them to a greater amount. The amount of 
the sum so overdrawn was, in fact 3000^., and 
the amoant of the bills then deposited was 
92fiB6i , including a note of hand of B. A Co. 
fi>r 10,0001., for which B. & Co. had only re- 
ceived a partial consideration from G. &, Co., 
bot y. A Co. had no notice of such want of 
eonstderatioa attaching to this note. At the 
elosing^ of the account between G. & Co. and 
v. & Co., a balance was due to V. & Co. of 
3S,3862., for which they held the deposit of the 
biUs and note to the amount of 22,666/., besides 
the note of G. A Co. for 20,000/. G. & Co. aOer- 
wards stopt payment, when V. <& Co. gave them 
a letter of licence, which was, however, subse- 
quently recalled. B. &> Co. became bankrupt: 
— Held, that V. & Co. were entitled to prove the 
ftdl amoant of the note for 10,000/. against B. 
A. Co.'s estate, but as the specified purpose of 
Ibe depomte of the bills by G. & Co. with V. A 
Co. was not to secure any general balance, but 
merely the two loans of 20,000/. and 3000/., 
the buls deposited were to be considered only as 
a ooUaleral secority for those two sums, and not 
far the amoant of the whole debt due to V. ^ 
Co ; that the proceeds of the other bills, and of 
O. dk Co.'s joint note, most therefore be de- 
dooted from the 23,000/., and that V. A Co. 
were entitled to receive dividends on their proof 
against B. A Co.'s estate, until they should 
have received fall payment of the unsatisfied ba- 
lance of this latter sum. Ex parte Vere, 4 Deac. 
A Chit. 295; S Mont A Ayr. 123. 317 



BorndgJ] — Bond of indemnity to sheriff. Ex 
pvte HmhaU, 3 Deac. A Chit. 120 ; 2 Deac. A 
Chit 589; 1 Mont A Ayr. 118, 145 ; 1 Mont A 
B%h, 913. 319 

A bond is proveable, given by the bankrupt in 
eonnderation of his wife's fortune, that he, his 
beiTs, Ac, would, within three months from the 
marnagei on receiving notice from the trustees, 
pay them lOOOf., to be held on the trusts of the 
marriage settlement, though no notice was given 
before the bankraptcy. £x parte Hooper, 1 Mont, 
ft AjT, 395. 319 



Debts compounded for,'] — By a deed of compo- 
sition entered into by the bankrupt with his cre- 
ditors, dated September 5, 1831, he agreed to 
pay them IO5. in the pound, by two instalments 
of 55. each ; in consideration or which the credi- 
tors covenanted to release him from his debts, as 
soon as both the instalments were paid. This 
deed was executed by the mo^or part of the 
creditors. After the payment of the first instal- 
ment, on the 31st of October, 1831, a commis- 
sion issued on an act of bankruptcy committed 
in June, 1831 : — Held, that the creditors who 
had received the first instalments were entitled to 
prove for the residue of their debts, without re- 
funding the amount of the instalment. £z parte 
^ood, 2 Deac. A Chit 508. 321 

A composition creditor, who receives an a»> 
stgnment of a debt as security for the compo- 
sition, is not, when the old debt revives, entitled 
to retain the debt on a question of proof— Cross, 
J., diss. Ex parte Ellis, 2 Mont A Ayr. 370. 

321 

An insolvent compounds with her creditors for 
13«. 6<i. in the pound, but promises to pay one 
of her creditors the whole of his debt, in order to 
induce him to sign the composition deed. After 
paying him in full, she contracts a firesh debt with 
him, and then becomes bankrupt : — Held, that 
the payments made to the creditor above the com- 
position of 13«. Qd. in the pound, were fraudulent 
and void, and that the creditor could not prove 
for the amount of his fresh debt contracted with 
the bankrupt, without first deducting these pay- 
ments. Ex parte Minton, 3 Deac. A Chit. 688. 

321 

A creditor having agreed to accept a composi- 
tion for his debt, takes bills for the amount of the 
composition, and also has a bond assigned to 
him as part security for the composition. The 
composition deed contained a clause, that in de- 
fault in payment of the instalments, the composi- 
tion should fall to the ground. Default is made, 
and subsequently a fiat issues : — Held, that the 
creditor might prove the balance of the original 
debt, and also retain the bond. Ex parte Reay, 4 
Deac. A Chit. 525 ; 2 Mont. A Ayr. 33. 321 

Marriage Contracts.'] — Proof of marriage con- 
tracts, bx parte Shute, 3 Deac. A Chit. 1 : 1 
Mont A Bligh, 385. 322 

The two trustees under the marriage settle- 
ment of H., a bankrupt, advanced him, on the se- 
curity of his bond, the amount of the trust fund, 
(which was his wife's fortune), for the purpose 
of being employed in his business ; and one of the 
trustees afterwards entered into a parol agree- 
ment with H. and his partner that the loan 
should be considered a debt due from the part- 
nership : — Held, that this subsequent agreement 
was in the nature of a collateral security, and 
that the trustees could prove both against the 
joint estate and the separate estate of H., making 
their election afterwards from which estate they 
would receive dividends. Ex parte Kedie, 2 
Deac. & Chit 321. 323 



2344 



[BANKRUPT] 



What is rafficent evidence of a marritjre con- 
tract to entiUe the party to prove. See £zpa rie 
Annaadale, 2 Mont &. Ayr. 19 ; 4 Deac. & Chit. 
5U. 322 

The bankrupt having received 5502. with his 
wife on his marriage, gave a bond to tnistees 
conditioned for the payment of 1100^, **on re- 
ceiving notice from the trustees :*' — Held, that 
although no notice was firiven to the bankrupt 
before his bankruptcy, tnis was nevertheless a 
contingent debt provable within the provisions of 
the 56m section of 6 Geo. 4, c. 16. Ex parte 
Hooper, 3 Deac. & Chit. 655. 322 

By the terms of the bankrupts marriage settle- 
ment, the wife's property was settled upon her, 
in case of the bankrupt's death, or the parties 
being divorced, but the bankrupt was entitled 
to the interest for his life ; and in case he sur- 
vived his wife, he was to have a certain share of 
this property : — Held, that the wife might, in the 
name of her trustees, make such proof as the 
commissioners might Uiink she was entitled to. 
£z parte Saunders, 3 Deac. & Chit. 568. 322 

By will, the lather-in-law of the bankrupt gave 
40001. in trust for has daughter for life, to her 
separate use, then to the bankrupt for life, and 
then to the issue of the marriage. The will re- 
citing that the bankrupt was indebted to the 
testator 600(M. on bond, declared that so much of 
the debt on the bond as remained unpaid in the 
testator's lifetime, should go in redemption and 
satisfaction of the above bequest of 40002. Prior 
to the bankruptcy, and subsequently, by means 
of dividends from his estate, 1069/., part of the 
60002. bond, was paid off and invested in the 
funds. On petition of the assignees, claiming to 
be entitled to the interest of the 10692. (the 
wife being dead), (Sir J. Cross, diss.) : — Held, that 
until the 40002. should be made up, the 10692. 
should accumulate, after which the assignees were 
declared entitled to the interest for the bankrupt's 
life. £z parte Young, 4 Deac. & Chit. 645 ; 2 
Mont. A Ayr. 228. 322 

One of several patners, previous to his mar- 
riage, agreed with his intended wife's trustees, 
that he would assign to them a portion of his ca- 
pital in the business, to secure to them certain 
periodical payments of 5002., on the trusts of his 
marriaffe settlement. In pursuance of this agree- 
ment, toe partnership opened an account in* their 
books with the trustees, in which they placed to 
the credit of the trustees the sum of 30002 , and 
debited their partner with the same sum, giving 
the trustees notice that they had transferred this 
sum from their partner's private account. De- 
lantt having been made in uie payments of 5002., 
and the firm havin&r become bajikrupt: — Held, 
tliat this was an acknowledgment or a present 
debt from the firm to the trustees, the considera- 
tion for which was the intended marriage. Ex 
parte Hill, 1 Deacon, 123. 322 

The bankrupt previous to his marriage, en- 
tered into a l)ond that incase his wife should 
survive him, and should within two months after 
his desAh, release her dower, his heirs or 
ezeeators should within three months afler his 
death, pay to her 20002. The wife survived the 



bankrupt, but did not within two months after 
his decease release the dower, although she was 
always ready and willing to do so: — Held, that 
this bond was not provaUe, either under the firat 
or the last part of the 56th section of the Bank- 
rupt Act, inasmuch as the contingency had not 
happened, and no value could bS set upon it 
£x parte Davies, 1 Deac. 115. SBg 

Proof of sureties 1 — A., surety with B. for C, 
is compellable to pay the debt afler tlie bank- 
ruptcy of B. The certificate of B. is no answer 
to the action of A. for contribution. Clements 
V. Langley, 2 Nev. & M . 269 ; 5 B. & Adol. 372. 

327 

The instalments of an annuity, for the payment 
of which a bankrupt is surety only, and which he 
covenants to pay in case of the default of the 
grantor, are not,*where thev become due after his 
bankruptcy, provable unoier a fiat against the 
surety. 'Thompson r. Thompson, 2 Bmg. N. R. 
168 ; 2 Scott, 266 ; 1 Hodges, 225. 327 

If A. and B. give a joint and several promissory 
note for the debt of C, and B. becomes bankrupt, 
and A. pays the amount, he cannot prove against 
B. as a surety, under section 52. Ex parte rorter, 
2 Mont. dL Ayr. 281. 327 

L. & Co. were the agents of H. S. A party 
accepted bills under the following document, 
ffiven by H. S. : — ^*^ In consequence of your al- 
lowing Messrs. L, to draw on you to the amount 
of 12,0002., I hereby guarantee to you that 
amount, it being understood that payment 
of these drafts is to be provided for bv myself or 
Messrs. L., in direct discountable bifls, 14 days 
at least before they fall due, dec." Messrs. L. ac- 
cordingly accepted bills ; H. S. became bankrupt 
before some of the bills became due : — Held, that 
there was a debt provable, the document being, 
not a guarantie, but an original undertaking. Ex 
parte Simpson, I Mont. & Ayr. 541 : 3 Deac. ik 
Chit. 792. 327 

Semble, it would have been provable if a mors 
guarantie. Id. 

fVagesJ]^A clerk, though enffaced at a weekly 
salary, is within the meanmg of tne 48th sectioD 
of the Bankrupt Act. £z narte Humphrey, 3 
Deac. Sl Chit. 114 ; 1 Mont. & Bligh,413. 328 

A clerk, who had served more than six months, 
is entitled to the allowance, although the bank- 
rupt was not, in fact, a trader foe more than two 
months out of the six. £x parte Gough, 3 Deac. 
<& Chit. 189. 328 

Tlie contracts of a trader with his clerks and 
servants are not dissolved by the issuing of a com- 
mission of bankruptcy against him : therefore, 
the clerk of a trader, against whom a commission 
issues, may, after the bankrupt has obtained his 
certificate, recover his salary for the whole year. 
Thomas v. Williams, 3 Nev. dit M. 545; 1 Adol. 
& Ellis, 685. 328 

The ^ard of a stage coach, hired at weekly 
wages, IS not a servant, within the meaning of the 
6 ^o. 4, c. 16, 8. 48. Ex parte Skinner, 3 Deac. 
A, Chit. 332. 328 



[BANKRUPT] 



td45 



Undef the 6 Geo. 4^ e. 16, i« 48, it is ndt re- 
ppumXe to prove a hiring for a year certain, but it 
matfi be something more than a mere hiring by 
the «reek. £z parte Collier, 4 Deac. & Chit. 
NO ', 2 Mont. A Ayr. d9. Ez parte Skinner, 1 
Moot Sb Bligh, 417i oertMted* 328 

Mortgage DtHsJ] — After an order for sale ob- 
tained by an equitable oiortgaffee, if the assignees 
delay the sale, semblei that Oie course is not to 
present a fresh petition for a sale, bat to prosecute 
the fonner order. £i parte Robinson, 3 Deac. & 
ChH.103. 32) 

The eeort refused to postpone the sale on ap- 
plication by the 8ssi|aiees, where the mortgagee 
objects. £z parte Selcher, 2 Deac. & Chit. 
S^. 329 

Wher* an equitable mortgagee is also an as- 
■ipiee, u solicitor will be appointed to take the 
account, and conduct the sale. Ez parte Lees, 
2 Deac. & Chit 364. 330 

Both freehold and leasehold may be included 
m an order of sale. Ez parte Leathes, 3 Deac. 
4b Chit 112. 330 

A legal mortgage of an equitable estate, is 
within Xiord Lougnborougb's order. Ez parte 
Attwood. 2 Mont ^ Ayr. 24 : 8. P. £z parte 
Aple, 1 Mont. A Ayr. 621. 329 

The court will only interfere to order the sale 
of equitable mortgages in cases where there is no 
4ispate. Id. 

A bankrupt mortgagee of a term gave an equi- 
table mortgage, and subsequently purchased the 
equity of redemption :— Held, that the equitable 
mortgagee was entitled to a sale of the equity of 
ndemption, if it be rejected by the assignees. 
Ez parte Tufihell, 1 Mont &, Ayr. &0; 4 
Dene. 4k Chit 29. 329 

A eeal mine was worked by seTeral persons 
uider a lease, the articles of partnership gtring 
each a power of preemption, m case any partner 
wished to dispose of his share ; a partner de- 
posited on attested copy of the lease, in order to 
give an equitable mortgage on his share to a 
stranger :-^Held, that the court of Review could 
not make the usual order for sale, &c., as the pu't- 
nerahip iceounte must first be taken, which that 
eonrt nas no jurisdiction to do, and the case was 
not fi«e ham doubt — Cross, J., diss. Ex parte 
Broidhent, 1 Mont. A Ayr. 635 ; 4 Deac. & 
Chit. 3. 329 

The court will not interfere in making an 
ofder for the sale of mortgaged property, where 
the circumstances are suspicious, as to tiie niort- 
|age being a fraudulent preference. Ez parte 
Dewdney, 4 Deae. A. Chit. 181 ; 2 Mont. & 
Ayr. 72. 329 

The court will not interfere between two ad*^ 
Ycrse claimants — one claiming as equitable mort 
sagee, and the ether under a prior lease made by the 
■sakmpt of the same property, — when the estate 
of the oankrupt has no interest in the question. 
fii parte Boyds, 3 Deao. &Chit 292. 329 

A memorandun in writing drawn up entirely 
by the clerk of an equitable mortgagee, and 



which was not signed by the bankrupt, is not 
sufficient to ezempt the mortgagee fVom paying 
the costs of the petition for the sale. Ex parte 
Emnierton, 3 Deac. Sl Chit 654. 2S» 

Letters sent subsequent to the deposit are 
sufficient memoranda to entitle to costs on a 
petition for sale of an equitable mortgage. £z 
parte Reynolds, 2 Mont. &, Ayr. 104 ; 4 Deao. dk 
Chit 278. 329 

Slaves in Antigua could not be equitably 
mortgaged by a deposit of a registered title deed 
containing a schedule of slaves, if the memo- 
randum accompanying the deposit, which is re- 
gistered, do not contain a list of the slaves. Ex 
parte Borrowdaile, 2 Mont Sl ^jt. 396, re- 
versing Ez parte Rucker, 3 Deae. A Chit 704 ;• 
1 Mont & Ayr. 398 : S. P. contra. 329 

The bankrupts deposited only one of their title 
deeds, which however was the principal convey- 
ance of the property, with the petitioners as a 
security for a debt, leaving the otner deeds in the 
hands of their own solicitors :*^Held, that thie 
was a good equitable mortgage. Ez parte Chip- 
pendale, 1 Deac. 67. Ss9 

In e<|uitable mortgages by deposit of title 
deeds without a memorandum, the mortgagee ie 
not entitled to past advances, in opposition to 
the bankrupt's affidavit. Ez parte Martin, 2 
Mont &, Ayr. 243; 4 Deac. dk Chit 457. 329 

The bankrupt being indebted to the petitioner* 
as the acceptor of two bills of ezchange, entered 
into an agreement with them and W. L., that the 
bills should be paid out of the proceeds of certain 
property, the deeds of which were then in the 
hands of W. L. for sale: Held, that the pe- 
titioners might claim as equitable mortgagees^ 
but subject to any prior lien of W. L. Ez parte 
Greenhill, 3 Deac. A Chit. 334. 329 

If a legal mortgage is ordered to be sold by 
the commissioners, &e assignees are entitled to 
the rents to the thne of sole, unless the mott- 

Sigee makes an actual entry, or gives notice to 
e tenants to pay the rents to him. £z parte 
Living, 2 Mont & Ayr. 223 ; 1 Deao. 1 . 230 

An equitable mortgagee of leasehold proper ty 
must satisfy a distress for rent out of the pro- 
ceeds of the sale, and can only prove for the de- 
ficiency. Ez parte Cocks, 3 Deac. & Chit. 8. 330 

Where there has been an order for the sale of 
mortgaged property, and the sale is aflerwarde 
deferred, the mortgagee is entitled to apply the 
rents and profits in reduction of the interest ac- 
cruing sulnequent to the order of sale, and up to 
the time of taking the account. Ez parte Rams- 
buttom, 4 Deac. A Chit 198 ; 2 Mont dk Ayr. 79. 

330 

In general, an equitable mortgagee is not en- 
titled to his rents, dkc. prior to the date of the 
order for sale. But where, prior to the bank«- 
rpptcy, the mortgagor absconds, and the equitable 
mortgagee of part of the property takes possession 
of that part from the agent, and a fiat issues against 
the mortgagor, and then the iiolicitor to the com- 
mission, on oe half of the creditors and ihe equi- 
table mortgagee jointlj, appoint the ssme agent 
to manage the whole property, which agent is 



[BANKRUPT] 



itly idopled bj the assiffiieet : — Held, 
i, thoQgrh he was also petitioning 
'entitked to the rents, &«. from the 
of his first takinf poaseasion. Ex parte 
BigMld«4 Deac. & Chit. 359; 2 Mont. A Ayr. 
16: 8. C. SDeac. A Chit 396; 2 Mont A Ayr. 
214. S30 

Hie oout will not rescind a bona fide pnrchase 
hj the mortgagee, becanae he had bid without 
leave. £z pane Ashley, I Mont A, Ayr. 82 ; 3 
Oeac. & Chit. 510. 330 

They will make an order nunc pro tunc. Ex 
parte redder, 1 Mont & Ayr. 327 ; 3 Deac. & 
Chit 622. 330 

A mortgagee who bids must pay a deposit Ex 
parte Tatham,! Mont <k Ayr. 335 ; 4 Deac. & 
Chit 360. 230 

A mortgagee, with a power of sale himself, put 
np the premises for sale, and then applied for 
leaye to bid : — Held, that he could not be permit* 
ted, unless he waived the power, and had tne pro- 
perty sold under the order of the commissioners. 
£z parte Daris, 1 Mont A Ayr. 89 ; 3 Deac. &, 
Chit 504. 330 

A reserved bidding allowed to assignees, on 
the sale of an estate, which had been mortgaged 

. & Chit 



by the bankrupt Ex parte Ellis, 3 Deac 
897. 



330 



Under what circumstances a reserved bidding 
will be refused to assignees on the property under 
an equitable mortgage. See Ex parte &imard, 
t. S5l. 



3 Deac. A Chit. 



330 



On the usual petition of an eouitable mort- 
gagee for a sale, and leave to bid, the costs come 
out of the estate, though the assignees do not con- 
sent. Secus on an independent petition, to bid 
alone. Ex parte Berkeley, 2 Mont A Ayr. 54. 

330 

An equitable mortgagee is not entitled to the 
costs of defending an extent in aid, or to be ex- 
cused from paying a depoait Ex parte Stephens, 
2 Mont & AyrTIi. 3^ 

The court of Review has jurisdiction to decree 
specific performance of an agreement to purchase 
mortgaged premises, sold wfore the commis- 
sioners under Lord Loughborough's general 
order. Ex parte fiarrington, 2 Mont £ Ayr. 
245; 4 Deac. A Chit 461, confirming Ex parte 
Sidebotham, 3 Deac. A Chit 818 ; 2 Mont A 
Ayr. 146, 655. 330 

Froperhf pledged,] — On the sale of property 
pledged, the assignees cannot have a reserved 
bidding. In re Skinner, 1 Mont A Ayr. 81. 331 

H., a money broker, was in the habit of de- 
positing bills of exchange with B. d& Co., as a se- 
curity for advances, but he did not indorse the 
bills, nor were they negotiated by B. A Co., or 
ever presented for payment. A monirst other bills 
so deposited was one for lOttV. accepted by C, 
who became bankrupt on the 5th of March, 1824, 
which was some time aflerthe bill became due. 
He also became bankrupt on the 12th Decem- 
ber, 1825, when B« & Co. proved the amount of 
the balance he owed them, excepting this bill as 



a secnrity ; but made no attempt to prove the bill 
under C.'s commission, until January,. 1826, 
when the commissioners rejected the proof: — 
Held, that the delivery of the bill by H. to B. dk 
Co., must be taken to have been by way of 
pledge only, to secure the amountof the advances 
then due from H. to B. & Co.; and that the 
amount of those advances having been since paid, 
B. A Co. could not prove the bill under C.'s com- 
mission. Ex parte Britten, 3 Deac. A Chit 36. 331 

A claim or proof cannot be resisted because 
the creditor has property belonging to the estate 
in his possession ; — that is only a ground to m- 
strain payment of the dividends. Ex parte Dob> 
son, IMont dk Ayr. 666; 4Dea. dbQi.e9. 331 

The mere circumstance of a creditor coming 
in under the eommission to prove, or claim a debt 
only gives the court jurisdiction as to the proof 
or claim, and not over any property in his pos- 
session, of which he claims the legal owneranip. 
Id. 

The petitioners, who were the ftctors of the 
bankrupt, held a larffe quantity of sugar in their 
hands at the time of the bankruptcy, on which 
they had a lien for 41,5912. 15*. 4a., and inte- 
rest in respect of previous advances. They had 
deferred the sale of the sugar at the request of 
the bankrupt before the bankruptcjTi and of the 
assignees afterwards, in the expectation of a rising 
market ; and the sugar was eventually sola 
to great advantage: — Held, that the petition- 
ers were entitled to apply the proceeds of the 
sugar in payment of the interest of the debt 
accruing afler the bankruptcj^, and to prove for 
the balance of the principal, vrithont any deduc- 
tion being made in respect of the interest so re- 
ceived. £x parte Kensington, 1 Deac. 58; 8 
Mont A Ayr. 300. 331 

Where goods, in which the bankrupts were 
jointly interested with A. B., were pledged with 
a creditor to secure the payment of an acceptance 
of the bankrupts, and part of the proceeds were 
received by the creditor before he applied to 
prove : — ^Held, that he must deduct the amount 
so received befine he could prove on the aocept- 
anoe. Aliter if the goods hiui belonged to A. B. 
alone. Ex parte Prescott, 4 Dea. A Ch. 23. 331 

Where property pledged by the bankrupt with 
a creditor is claimed by a third person, the credi- 
tor may enter a claim on the proceedings fiir the 
whole of his debt, till the'legal right to the pro- 
perty is determined. Ex parte WiUiams, 4 DSmc. 
A Chit. 180. 331 

Bjf vkom and hate.} — ^Where a creditor, after 
the issuing of the fiat, assigns his debt, this does 
not give the assignee a right to prove it, but 
merrily a right to call on the assignor to prove 
the debt, as a trustee for the assignee. Ex parte 
Dickenson, 2 Deac. A Chit 520. > 332 

Proof by Bank of England. Ex parte Eng- 
land (Bank), 1 WUs. C. C. 295 ; 1 Swans. 10 ; 1 
Rose, 142. 



Under a fiat against a banker, one person 
allowed to prove on behalf of a large number of 
hddera of II. notes ; not interfering as to the aa- 



1 



[BANKRUPT] 



S347 



■ifneea or tbe oertjfioate. £z parte Gordon, 1 
Mont. & Ayr. 2^. 333 

Where a oeditor leat op the proper documents 
to prove hie debt at a dividend meeting, and his 
aoLcitor forgot the daj ; another meeting waa ap- 
pointed, at his ezpeiise, to enable him to prove 
Ilia debt, the payment of the dividend beinjr or- 
dered to be stayed in the meantime, and to be 
calculated afresh, in case he substantiated his 
pcoof. In re Graham, 2 Deac. & Chit. 554. 333 

Whcra a creditor delajred proving^ her debt 
mtH after a diridend had been declared, having 
relied on the promise oi tbe assignee to inform 
lier of the progress of the commission, which he 
ftiled to do, the court of Review made an order 
that the creditor might prove her debt within a 
month, and that the payment of the dividend 
sboaM be in the mean time suspended. £x parte 
Colton, 3 Deac. & Chit 194. 333 

A party is not estopped from amending his 
ilepQntion of proof, by making a second deposi- 
tioo ooatradictory to the first : the only question 
is, which is the most worthy of belief. Ex parte 
Britten, 3 Deac. &, Chit 35. 334 

Hie court of Review ordered a bankrupt execu- 
tor to prove against his own estate, and the as- 
signees to pay the dividends into the hands of 
the aeeoontant-general, to the credit of a cause 
pending lor the administration of assets. Ex 
parte CoUnan, 2 Deac. A Chit 564. 334 

Where tbe commissioners have exercised their 
iodgment with respect to the proof of a debt, and 
have refused to admit it, the successful petitioner 
against their decision is not entitled to costs ; it 
being a general rule that costs cannot be given 
when commissioners exercise their jurisdiction. 
Ex parte Millington, 1 Mont db Ayr. 114. 334 

The eosts of a petition to prove must be paid 
by the creditor, if^ he adduces new evidence. £x 
parte Price, 1 Mont d& Ayr. 51. 334 

if he fluceeed on evidence which was tendered 
before the commissioner and rejected, it seems 
he might be entitled to eosts. Id. 

A creditor tendered a proof for 35002., which the 
commissioners rejected m toto ; and after present- 
iBf a petitioB against their decision, an order was 
BiMie, by consent, that he should prove for 500/. 
Hie court of Review would not grant him costs 
oBt of tbe estate ; but ordered each party to pav 
his own costs. Ex parte Waterhouse, 3 Deac. i. 
Chit 106. 334 

Where an actuary embezxled various sums, 
rendering forty indictments necessary, and be- 
came bankrupt, and five indictments were pre- 
ferred, which failed firom technical reasons which 
would apply to any other indictment, the proof 
was allowed for the whole sum embezzled. Ex 
parte Jones, 2 Mont. & Ayr. 193 3 3 Deac. db 
Chit 585. 334 

^ A poof, resting on a felony, cannot be made 
till aner a prosecution, except where conviction 
is hopeless. Id. 

Where one of two executors becomes bank- 
rapt, the solvent executor may prove against the 
buiknipt*s estate without an order. £x* parte 

Vol. IV. 10 



Courtnay, 3 Mont &, Ayr. 227; 4 Deao. & Chit. 
456. 



A stranger to th^ commission obtained an 
signment of the creditor's proofs, and therewith 
bought part of the bankrupt's estate from the 
assignees : — Held, that the court had no jurisdic- 
tion to set aside the purchnse — Cross, J., diss. 
Ex parte Holder, 1 Mont & Ayr. 518. 332 

If a defective affidavit be produced, the com- 
missioner should not reject, but adjourn the 
proof. £x parte Maberly, 2 Mont A. Ayr. 83. 333 

An affidavit in support of a deposition of proof 
on a bill must state the consideration. Id. 

On a petition for leave to prove, and stay the 
bankrupt's certificate, the court will, where tho 
circumstances are suspicious, direct a meeting to 
enable the creditor to prove, and will order the 
commissioners to review the certificate. Ex parte 
Bray, 3 Deac. Sc Chit 495. 333 

F., a partner in a banking house, transferred 
bank stock belonging to a customer, by a forged 
power of attorney ; the proceeds were paid to the 
account of the partnership, and aflerwards appro- 
priated by F., who was subsec|uently executed 
for other forgeries, and a commission issued against 
the other partners, who were ignorant of the trans- 
action, but with common diligence would have 
known it. Quiere, whether the customer can 
prove for the value of the stock under the com- 
mission ? Ex parte Bolland, 1 Mont, db Ayr. 570. 

333 

The Lord Chancellor ordered an action to try 
whether the partners were indebted to the cus- 
tomer. Id. 

The customer could maintain an action acainst 
tbepartners for money had and received. Slanh 
V. Keating, 1 Mont & Ayr. 582 ; confirmed on 
appeal, 1 Mont A Ayr. 5d3. 333 

The commissioners having improperly rejeoted 
a proof because tbe claim was merged in a felony, 
the petitioner was allowed costs out of the estate. 
Ex parte Birks, 2 Mont d& Ayr. 208, n. 333 

Redmetum and expunging.} — Upon an applica- 
tion by assignees to expunge a proof upon a bill 
of exchange by the holder against the acceptor, 
because the bill had since been paid by a thira 
party, the drawer must be served, notwithstand- 
mg the assignees have the bill in their possession. 
Ex parte Greenwood, 3 Deac. db Chit 396; 1 



Mont A Ayr. 65. 



33B 



The bankrupt, who was a tavern-keeper, had 
bought of petitioners large quantitiei of wine* 
lying in the docks, which were sold to him by 
sample, for stipulated prices, and at long credit, 
and for which the petitioners deliveie<r to him 
the usual transfisr wsrrants. The assifoees sold 
the wines by auction at a considerable loss, in 
consequence of which, the commissioner made a 
reduction in the petitioners' proof, on the ground 
that the prices charged for the wines were too 
high : — Held, that he was not justified in making 
the reduction. Ex parte Reay, 3 Deac. & Chit. 
175. f /» 33Q 

The costs of the petitioners, under these eir- 



2348 



[BANKRUPT] 



cnmstances, were ordered to be paid out of the 
estate. Id. 

A., B., C. & D. contract a debt with W. for 
ffoods supplied to them on their joint account. 
A.\ B. &, C. become bankrupts, and W. proves 
the amount of his debt under tiieir commission, 
stating in his deposition that A., B. & C. onlj 
(without noticing D.) were jointly indebted to 
him, but he afterwards sues and recovers the 
amount of' his debt against D., the solvent part- 
ner: — Held, that in consequence of the infor- 
mality of his proof, W. must pay the costs of 
the application of the assignees to expunge it. 
Ex parte Adams, 3 Deac. &, Chit. 623. 338 

A person, before ex parte Moult was decided, 
made a double proof, to which, according to that 
case, he was not entitled. Afler seven .years, the 
court would not order the dividends to be refunded 
but made a prospective order. Ex parte Soper, 2 
Mont & Ayr. 55 ; 4 Deac. & Chit. 569. 338 

A mere claim cannot be ezpuncred. Ex parte 
Dobson, 1 Mont. A Ayr. 670; 4 Deac. &> Chit. 
69. 337 

On an application by two creditors to the com- 
missioners to expunge a proof, under the 6 Geo. 
4, c 16, 8. 60, the commissioners have a discre- 
tionary power to adjudge to the creditor whose 
proof 18 sought to be expunged, such costs as he 
may think reasonable, including the costs of the 
meetings, as well as those of a creditor. And 
though the commissioners may have allowed ra- 
ther too much to the creditor, this will not make 
the order bad for the whole allowance, but the 
party objecting may have the costs taxed. Ex 
parte Kirkaldy, 4 Deac. & Chit. 52 ; 1 Mont. A, 
Ayr. 642. 338 

'fhe court can reverse the decision of a sub- 
division court on a matter of fact as to expunging 
a proof: that not being within s. 30 of 1 & 2 
Will. 4, c. 56. Ex parte Baldwin, 1 Mont. & Ajrr. 
615. 338 

Where, afler the rejection of a proof by the 
commissioners, the creditor on petition succeeds 
in establishing a debt by the affiaavit of witnesses, 
who were not tendered to the commissioners 
for examination, he pays his own costs. Ex parte 
Price, 3 Deac. A Chit. 489. 338 



Proof ai^nst Joint or Separate Estate.]-^A 
testator indebted on bond devised his real estate 
to the bankrupt and two other trustees, for pay- 
ment of his debts. The bond creditor, afler the 
testator's death, brought an action against the 
iMukrftpt and the other devisees, and recovered a 
jttint judgment against them : — Held, that he 
could not prove under the separate commission 
against the bankrupt, even for the purpose of 
voting in the choice of assignees. Ex parte 
Pearse, 2 Deac. A Chit. 451. 338 

Proof cannot be made by the joint estate 
against the separate estate, except in the case of 
a fraudulent abstraction from the joint funds by 
one of the partners ; and not then, if there has been 
any waiver of the tortious act by the othftr part- 



ner, BO as to reduce it to a matter of contract. 
Ez parte Turner, 4 Deac. A Chit. 169. 338 

A., B. A C. agreed to dissolve partnership, and 
that A. should receive 550^ in discharge of his 
share in the concern; of which 502. was a g r ee d 
to be paid at the date of the agreement, and the 
remaining 500^ bv five bills payable at futore 
dates, ^parate nats were subsequentlv issued 
against A., B. A C, and the stock and effects, 
wnich originally belonged to the firm of the 
three, were taken in possession of and sold by the 
assignee under the separate fiat against B.: — Held, 
that the agreement or dissolution of the partner- 
ship was executed, and not ezecutorv ; and that 
the joint creditors of A., B. A C. nad no lien 
on such stock and effects for the payment of the 
debts owing to them at the time of A.'s retiring 
from the partnership. Ex parte Clarkson, 4 
Deac. A Chit. 56. 338 

A partnership of A., B. A C. was dissolved, A. 
A B. agreeing to pay all the partnership debte. 
D., a creditor of the whole firm, Ignorant of the 
terms of dissolution, applied for payment, and 
A. A B. by letter begged time, and ultimately D. 
drew a bill on A., B. A C. which A. A B. accepted 
in the name of A., B. & C, but without C.'s au- 
thority. A. A B. also by letter signed by them 
alone promised payment of the bill. A. A B. be- 
came bankrupts; C. also became bankrupt : — 
Held, under the circumstances, that D. might 
prove the amount of the bill against A. A B.*s 
estate. Ex parte Liddiard, 4 Deac. A Chit 603. 338 

A testator, who was possessed of a large capi- 
tal in a house of trade, in which he was a part- 
ner, bequeathed the residue of his estate to 
trustees, of whom A. B. was one, upon trust to 
permit A. B. to receive the annual produce for 
his life, and after his death to transfer the prin- 
cipal to his children ; directing that if A. B. 
became a partner in the house of trade, the tes- 
tator's whole capital should continue therein, 
A. B. and the other partners giving to his execu- 
tors a joint bond for the amount ; A B. became & 
partner, the bond was given, and the firm became 
bankrupt, and the trustees proved the amount 
due against the joint estate: — Held, that the 
dividends on the proof should be invested in 
stock ; and that the interest should accumulate un- 
til the loss occasioned by the bankruptcy was made 
good, and the whole of the principal sum then 
due was realised. Ex parte King, ] Deac. 143. 

338 



Proof on several Estaies."] — If two proofs be 
made on a joint and several bond, afainst two 
separate estates, a subsequent consoFidation of 
the estates does not affect the double proof. 
Costs given out of the estate, because the com- 
missioners held the case dvubtful. Ez parte Ful- 
ler, 1 Mont. A Ayr. 222; 3 Deac. A Chit 520. 

342 

B. & G. carried on business at M., under the 
firm of T. B. A Ce. ; 6. also carried on a separate 
business at N., under the firm of G. A Co., and 
was likewise a partner with J. in another business 
at L.,, under the firm ofT., J. A Co., and in an 
other business at N., under the firm of 8. R. 



[BANKRUPT] 



3349 



TVe finm of T. B. & Co. and G. & Co. became 
banknipt: — Held, that the holders of a bill drawn 
by T. B. 6l Co., on T. J. &> Co., and indorsed 
by G. & Co. and S. R., were not entitled to prove 
it against the joint estate of B. & G., and also 
afraioBt the separate estate of G., bat must elect ; 
Bothwithstanding they were i^orant that G. was 
a partner in the firn of T. B. & Co. £x parte 
Monlt, 2 Deac. & Chit. 419. 342 

F. dE. Co. sold cochineal to John W., for which 
a small part of the price was paid in cash, and 
the remainder by two bills at four months, but 
the cochineal was to remain in the hands of F. &, 
Co. as a secnrity for the payment of the bills. 
The bills not being paid when due, John W. sent 
F. &, Co. two other bills drawn by himself on 
Joahna W., for which no considertion was given 
to Joshua W., the acceptor. Before these bills fell 
doe, both John W. and Joshua W. became bank- 
mpts, and the price of cochineal had fallen so 
macb in the market that F. A, Co. afterwards 
sold it for not a third of the price at which John 
"W. bought it, and they .then proved for the de- 
ficiency under John W.'s commission : — Held, 
that they had also a ri^ht to prove the amount of 
the two bills under Joshua W.'s commission, 
without deducting the proceeds arising from the 
sale of the cochineal. £jt parte Fairlie, 3 Deac. 
& Chit. 285. 341 

B. A. Co., being largely indebted to R. & Co., 
hidoTsed to them various bills, which had been 
drawn or indorsed by C. & Co. for the accom- 
modation of B. & Co. B. &. Co. and C. & Co. 
vespectiTely became bankrupt, .and R. & Co. 
proTed the bills under each commission : — Held, 
that the estate of C. dc Co. was a security to make 

rd the amount of principal and interest due to 
dt Co. from B. & Co. ; and thatR. & Co. were 
esCitifid to receive dividends on their proof under 
C. db Co.*8 commission, until not only the ba- 
famee of the principal sum due from B. & Co., 
but alflo all interest thereon, was fully satisfied. 
£x parte Read, 3 Deac. & Chit 481. 341 



Proof by partners.} — A firm composed of A. 
& B. may prove imnai a firm composed of 
B. & C. Ex parte rfiiompson, 1 Mont & Ayr. 
3M i 3 Deac. & Chit 612. 314 

A firm abroad drew bills on one of its own 
partners, trading on his own account in England, 
payable to an agent of the foreign government. 
Toe bills were not paid. Process of insolvency 
iasned against the foreign firm, and a commis- 
non against the English partner : — Held, that 
the aeent might prove under the commission, but 
would be restrained from receiving dividends un- 
less he elected not to prove against the insolvency 
abroad. Ez parte Chevalier, Mont dt Ayr. 34o. 

344 

A., B. A C. dissolved their partnership, by B. 

lefirinj^ fioia the concern, and assigning all his 

share m the partnership stock, debts, and effects 

to A. A C, bat no notice of such assignment 

WIS giyen, IndiTtdaally, to the debtors of the 

psrtoership. A. & C. continued to carry on the 

business till the death of A. A fiat was then 

JMied against B. Sl. C. as surviving partners of 



A. when some of the debts due to the firm of the 
three still remained uncollected : — Held, that the 
joint creditors of the firm of the thr^^e could not 
prove against the separate estates of B. <& C, 
as the outstanding debts due to the three consti- 
tuted joint property of that firm, existing at the 
time of the bankruptcy. £x parte Leaf, 1 Deac. 
176. 344 

XI. Assionheht. 

Freehold Property.'] — If the bankrupt refuses 
to join in the conveyance of any part of his es- 
tate, the court of review will make an order for 
him to do so, under the 6 Geo. 4, c. 16, s. 78. Ex 
parte Jackson, 2 Dea. & Chit. 458. 346 

Qusre, whether the commissioners can convey 
an estate tail afler the death of the bankrupt ? Ex 
parte Somerville, 1 Mont. & Ayr. 408 ; 3 Deac. 
<& Chit. 668. 346 

The commissioners would not do wrong in ex- 
ecuting a conveyance to enable the question to 
be tried. Id. 



A common bargain and sale to assignees 
passes an estate tail of which the bankrupt was 
possessed. Id. 

Two estates were devised charged with lega- 
cies ; the devisee mortgaged both, became bank- 
rupt, and both were sold : the proceeds of one 
were sufficient to pay legacies and mortga^ 
money ; secus the other : — ^Held, that the legacies 
should be paid out of the former alone. Ex parte 
HarUey, 2 Mont & Ayr. 497. o46 

Leasehold Property.'] — ^An agreement for a 
lease is not annulled^ by the b^krupU^ of the 
intended lessee. Morgan v. Rhodes, 1 Mont. & 
Ayr. 214. 346 

Nor is it annulled by his insolvency. Crosby 
«• Tooke, } Mont & Ayr. 215, n. 346 

A., before his bankruptcy, agrees to take a 
lease of a cotton mill, and enters into possession. 
Afler his bankruptcy, one of his assignees takes 
possession, and agrees to accept the lease, a draft 
of which was sent to the assignee, containing 
covenants personally binding on them during the 
whole of tne term, and one, in particular, to pre- 
vent them from assigning without the licence of 
the lessor : — Held, that Sie assignees were not 
bound to accept of such a lease ; and even if they 
were, that the court of Review had no jurisdiction 
to compel specific performance of the agreement. 
Ex parte Lucas, 3 Deac. & Chit 144; 1 Mont. Sc 
Ayr. 93. 346 

In answer to an action by a landlord against 
the assignees of a bankrupt for rent, thO&tter 
mav plead that the term did not vest in them ; 
and to avoid the effect of 1 &. 2 Will. 4, c. 56, s. 
25, also, that it did vedt,'but that they abandoned 
it, and were not therefore liable. Thompson v. 
Bradbury, 3 Dowl. F. C. 147; 1 Scott,5279; 1 
Bing. N. R. 327. 346 

In an action for rent, for two years' use and 
occupation, judgment was signed for want of s 
plea, but was set aside on an afiidavit of meritSi 



[BANKRUPT] 



a»d pleidiiij; iMUabljr, Jko. The defim^ant plead- | 
ed that the two yean' rent became due under a 
kaae, and afl»r a fiat had iMved against him, and 
he had been declared a bankrupt ; and that after 
the rent became due, he applied to the aasi^neee to 
accept or decline the leaae,and that the ani^ees 
declined the leaae, and thereapon the defendant 
tendered the lease and possession to the landlord, 
who accepted the same. This plea was pleaded 
at the end of Trinitj term, too late to be argued 
in that term. The court discharced the rule for 
isiting aside the judgment, as Uiey considered 
the plea as friyolous. Worthington e. Prince, 4 
PowK P. C. 343. 346 

The bankrupt agreed in writinff to take a lease 
of a manufactory for a term of years, and the 
landlord a^eed to erect at his own expense cer- 
tain buildings upon the bankrupt paying, as an 
additional rent,7i. lOs. percent, upon the amount 
so expended. The buildings, however, were sub- 
sequently erected by the bankrupt, on the verbal 
assuranee of the landlord, that the bankrupt 
might deduct the amount expended fVom the 
rent The assifipiees elected not to adopt the 
•gNement for ue lease, but refused to deliver 
up po sios s i on to the landlord unless he allowed 
them the sum which the bankrupt had expended 
on the buildings : — Held, that as both the written 
tad verbal agreement between the landlord and 
the bankrupt contemplated a continuance of the 
tenancy, which the assignees had themselves re- 
pudiated, they had no Tien on the premises for 
tlie money expended by the bankrupt Ex parte 
Ladd, 3 Deac. & Chit. 647. 346 

The petitioner covenanted with the bankrupt 
that he would procure a lease to be granted to him 
of certain premises by a third person : — Held, 
that this was aa agreement for a lease, within the 
76th section of the Bankrupt Act ; and that the 
petitioner was entitled to call on the assignees to 
elect whether they would accept or decline such 
agreement £x parte Benecke, 1 Deac. 186. 346 



CAeM» m AetumJ] — An equitable mortgagee of 
two policies of assurance, which the bankrupt 
bad effected on his own life, writes to the insur- 
ance ofl>ce. Baying, " 1 am holder of the under- 
mentioned policies,'* slating particulars of the 
policies in question, and inquiring what sum the 
office would flive if they were dehvered up to be 
cancelled : — Held, that this was a sufficient notice 
of a change of ownership. Ex parte Strigfat, 2 
Deac. Sl Chit. 314. 365 

A. made advances to B., a trader, and after- 
wards took from him as a security, an assignment 
of an equitable life interest in stock and other 
property, standing in the name of and vest^ 
ed in three trustees under a marriage settle- 
ment There being rumors about the solvency 
of B.. A., in the course of conversation, subse- 
quently to the assignment, and not with a view 
of givmg validity to his security, mentioned to 
one of t£e trustees, who was not the acting trus- 
tee, that he was secured by the assignment : — 
Held, that this communication was a sufficient 
notice to prevent the interest of B. passing to his 
assignees on his bankxupicyt aa property ia hia 



order and disposition. Smith v. Smith, 2 C. A M. 
231 ; 4 Tyr. 52. 366 

Reputed Ownerghip.] — A., tenant in fee of a 
cotton mill, in whicn there was a steam-engine, 
boilers, Ac, mortga^pd the mill, en|rine, boueis, 
d^c. to B. but remained in possession until hia 
bankruptcy. The entablature plate of the en- 
gine, which, however, formed no part of the 
working apparatus, was fixed to the freehold of 
the milT ; every other part of the engine was se> 
cured by bolts and screws, and might oe removed 
without iniury to the buildings : — Held, that the 
steam-engine was not in the order and disposi- 
tion of A. at his bankruptcy. Hubbard «. Bag- 
shaw, 4 Sim. 326. 357 

Upon the assignment of a aimple contract 
debt, the assignor must be considered as having 
the order and disposition of the debt with the con- 
sent of the true owner, until the debtor has notice 
of the assignment Such debt will therefore pass 
to the assignees under a bankruptcy, by virtue ef 
6 Geo. 4, c. 16, s. 72, and to the assignees under 
the Insolvent Debtors' Act, 7 Geo. 4, c. &7, a. 31. 
Buck V. Lee, 3 I>iev. &. M. 580. 357 

Where A. took the lease of a bouse wad pre- 
•mises for a term of years, and took the tenant's 
fixtures in the house at a valuation from the 
landlord, andx afterwards assigned the term to B. 
by way of mortgage, express^ including the fix- 
tures, and subeequently became bankrupt: — 
Held, that the fixtures were not goods and chat- 
tels within the order and disposition of the bank- 
rupt, and did not pass to hia assignees. Bojdell 
V, M'Michael, 1 C. M. & R. 177 ; 3 Tyr. 974. 358 

The assiffiiees who removed and eonveited 
them were liable -in trover by the mortgagee to 
pay the value of the fixtures while fixed on tlie 
demised premises. Id. 

A coal merchant, at the time of his bankruptcy^ 
had in his possession barges which bore his own 
name and number, and were registered in hia 
name under the Waterman's Act. l^ese barges 
he had hired of defendant, it being the custom 
fi)r coal merehants to hire barges, and to paint oik 
them the name of the hirer. Upon a qnestioa 
whether the barges passed to the coal merchant's 
assignees under his bankruptcy : — Held, that it 
was properly left to the jury to find whether tiio 
custom was generally notorious in the coal trade ^ 
and that it was not necessary to direct them to 
inquire whether the custom was notorious to the 
world at large. Watson v. Peach, 1 Soott, ]49f 
1 Bing. N. R. 327. 3Sd 

€rood8 were sold under an invoice which ex- 
pressed that they remained at rent. The vendee 
subsequently accepted a bill drawn by the vendor 
for the price, which was negotiated by the vendor. 
Whilst the bill was running, the vendee sold a 
part, which, by his direction, was delivered by 
the vendor to the sub-vendee, whom the veador 
charged with warehouse rent for the part> whieb 
be paid. Subse«^uently the vendee became b«ak- 
rupt, and the bill was dishonored : — Held, that 
the assignee of the bankrupt vendee could not 
without paying the price maintain trover agssast 
the vendor for the xeaidue of t\m goods vhieb 



[BANKRUPT] 



3351 



had Tcnained in hw hukdB. Miks v. GortoD, 2 
C. &. M. 504 ; 4 Tjr. 295. 358 

By the custom of trade in Liverpool, the Irani- 
ftr of a deliyerjr order from the vendor to the 
Tendee of goods, enables the latter to go into 
the market and dispose of such goods. In a case 
where the vendee had thus disposed of part which 
had been delivered according to his order, and 
then became bankrupt, the rest of th^ goods 
renaatning in the warehouse of the vendor : — 
Held, that the latter was entitled to retain them ; 
the giving of the delivery order not operating as 
between tne original vendor and vendee as a com- 
plete transfer of the goods. Townley v. Crump, 
5 Nev. & M. 606; 1 Bar. A Woll. 564. 35ti 

Goods, under such circumstances, are not in 
the order and disposition of the bankrupt vendee, 
at the time of his bankruptcy, within the opera- 
tion of 6 Geo. 4, c. 16, s. 72. Id. 

In trover by assignees for timber, an arbitra- 
tor, to whom the cause was referred, found that 
the bankrupt, before his bankruptcy, had oh be- 
half of an unnamed principal (the defendant) 
taken in ezchauffe a quantity of timber, to be 
deliveied free on board ; and that he had at the 
same time booght other timber of the same party 
on his own account ; that the timber was delivered 
t9 the bankrupt, and laj, till after the bank- 
ruptcy, on a common, mixed with other timber 
of tlie bankrupt, and in his actual possession ; 
that the defendant, after the bankruptcy, but 
BMire than two months before the commission 
iasoed, wrote to the vendor, stating himself to be 
the principal, adopting the contract as to the 
goods taken in ezcnange, (but no othera), and di- 
leeting that the bankrupt should not be suffered 
la take them ; and that the vemlor accepted him 
as purchaser accordingly. The arbitrator also 
fbond, that before the commencement of the two 
months, the defendant had required the bankrupt 
to deliver the timber belonging to him, (Vhe de- 
ftndant), and that the bankrupt had proposed to 
make np a deficiency in the quantity by deliver- 
ing some of his own timber ; that no contract of 
sale was made as to the latter, nor did anj^thing 
farther pass respecting the timber till within two 
months before the commission, when the bank- 
rapt made a formal deliverv to the defendant of 
•act of the sold and part of the exchanged tim- 
ber, Iving on the common as above mentioned ; 
and that the whole of the timber belonging to the 
defendant was in the order, possession, and dis- 
position of the bankrupt, with the consent of the 
true owner, till after the bankruptcy : — Held, 
faaraming the court could review the arbitrator's 
anding as to the above fects), 1. That he was 
nwranled in finding a deliveiy of the timber to 
the banknipt, ihooffi it was not shipped. 2. That 
the timber remained in the bankrupt's apparent 
poaRssion, with the owner's consent, up to the 
time of the above delivery 3. That the oelivery 
to the defendant of the timber belonging to the 
banknipt was not referrable to any contract pto- 
toeted bv sect. 81 of the Bankrupt Act. Shaw 
r Brrwej, 1 Adol. A Ellis, 920. 356 

A., in Fnmtey employed B., in England, to seD 
wiaes on comminBion, as well as to purchase other 



wines on A.'s account, in London, for which ha 
furnished him with letiera of credit. The wines 
were generally bought and sold by B. in his own 
name. Part of the wines consigned by Ak. were 
in the dock warehouses, standing in B.'s name, 
and part formed one indiscriminate stock in B.'a 
ceUar. A. closed connection with B., and re- 
quired him to deliver up all the wines ; but B. 
neglected to comply with this requisition, and 
shortly afterwards became bankrupt: — Held, 
first, that the court had jurisdiction to order the 
assignees of B. to deliver up these wines to A. ; 
secondly, that it was not a case of reputed owner- 
ship ; thirdly, that A. might sue the purchasers 
of the wines, in the name of B., or his assignees 
But fourthly, that no order could be made for 
the payment to A. of any monies, the produce of 
the wines, if mixed with the other monies of B. 
at the time of his bankruptcy. Ex parte Moldant, 
3 Deac. ^ Chit. 351. 358 

A. was in the habit of sending skins to B.'s tan- 
yard to be dressed, with an account, as of a sale, 
of each parcel of skins to B. ; and B. rendered an 
account of the dressed leather, as being sold by 
him to A. This mode of dealing was only prac- 
tised by B. with A., nor was S. in the habit of 
dressing skins for anv other persons : — Held, that 
a quantity of these skins, which were mixed with 
B.'s general stock at the time of his bankruptcy, 
passed to his assignee, on the principles of re- 
puted ownerehip. £x parte Batten, 3 Deac. A 
Chit. 328. 358 

Slaves, being real property in the island of 
Antigua, could not be considered as within the 
order and disposition of a bankrupt at the time 
of his bankruptcy. Ex parte Rucker, 3 Deac. A 
Chit 704 ; 1 Mont. A Ayr. 398. 358 

If A., the true owner of goods in the order and 
disposition of B., demand them from B. before 
an act of bankruptcy, they will not pass to B.'a 
assignees under 6 Geo. 4, c. 16, s. 72. Smith v. 
Topping, ^2 Nev. & M. 421 ; 5 B ik. AdoL 674. 

To entitle the assignees of a bankrupt, under 
the 72nd section, it is not sufficient to show that 
the goods were in the order and disposition of the 
bankrupt, with the consent of a party who wan 
permitted by the true owner to deal with them aa 
his own, but that the consent must move directly 
from the true owner to the bankrupt. Frazer v. 
Swansea Canal Comp. 3 Nev. &. M. 391 ; 1 Adol. 
dL Ellis, 354. 359 

Where goods are delivered id a bankrupt ta 
sell in the name of another, his selling them in 
his own name does not place tliem in his reputed 
ownenhip. Ex parte Carlow or Carlon, 2 Mont« 
& Ayr. 39 ; 4 Deac. &. Chit. 120. 359 

Furniture, the separate property of one part- 
ner, used by the firm, is not in the reputed own- 
erehip of the firm, ut semble. Ex parte Hare, 2 
Mont. A Ayr. 478 ; 1 Deac. 16. 359 

M. 6l a., partnera, were consignees of a 
West India estate, and in that character became 
crediton to the estate. By deed, long prior to 
the bankruptcy, the estate was conveyed to trus- 
tees, M. bemg one of them} on trust to apply the 



S3S3 



[BANKRUPT] 



proceeds to certain purposes, one of which was to 
pay off the debt doe to M. d: A. M. A A. 
assigned their debto to S. & Co. M. dt A. be- 
came bankrupt ; but, prior thereto, they received 
ten hogsheads of sugar, which remained in the 
docks, each marked in their name, at the time of 
the bankruptcy. ^Shortly after the bankruptcy, 
74 hogsheads arrived, consigned by the bill of 
lading to the bankrupts, which were received by 
the assignees, who also took out the other ten 
hogsheads: — Held, that the sugar came to the 
hands of M. db A., clothed with a trust to pay the 
proceeds to M., as trustee, and was not in the re- 
puted ownership of M. & A., but must be ap- 
plied to pav on the debt assigned to S. & Co., 
and in discharge of the other trusts of the deed, 
M., as trustee, being affected with notice to M. 
& A. of the assignment of their debt. £z parte 
Smith, 4 Deac. & Chit. 579. 359 

Held, also, a case within the principle of Ex 
parte Waring, 14 Vesey. Id. 

The furniture of a coal mine is property of 
which the party who works the mine is the re- 
puted owner, and which upon his bankruptcy, 
will vest in his assignees under 6 Geo. 4, c. 16, 
s. 72. Coombs v. Beaumont, 2 Nev. & M. 235 ; 
5 B. db Adol. 72. 362 

A steam-engine erected for the purpose of 
working a coUieijr, to be used by the lessee of 
such colliery during his term, bat to be held as 
the property of the landlord, subject to such use, 
will not pass to the assignees of the tenant on his 
bankruptcy, for it does not come within the de- 
scri]>tion of *^ goods and chattels" in 6 Geo. 4, 
e. 16, s. 72, nor had the bankrupt the actual or 
apparent ownership. Id. 

A bankrupt becoming the owner, as well as 
occupier, of a freehold cotton-mill, gave the peti> 
tioners an equitable mortgage on it, *' together 
with the steam-engines, and ^so all and singular 
other the moveable and fiz*?d machinery, and 
steam-pipes then in, upon, about, and belonging 
to the said steam-mill and premises, or occupied 
or used therewith ;" and the bankrupt continued 
in possession of the mill and fixtures up to the 
period of his bankruptcy : — Held, that all parts 
of the machinery and fixtures, which were so at- 
tached to the premises as to be legally affixed to 
the freehold, were not to be considered as goods 
and chattels within the 72nd section of the Bank- 
rupt Act, and that the assignees had no right to 
them, as against the equitable mortgagee. £x 
parte Wilson, 4 Deac. & Chit. 143 ; 2 Mont. & 
Ayr. 61. 352 

By the rules of a joiat-stock company, only 
principals could become subscribers. The peti- 
tioner purchased forty shares in the name of the 
bankrupt, who verbally declared that he held 
them as a trustee for the petitioner, and the certi- 
ficates of the shares were kept in the possession 
of the petitioner, but no notice was given to the 
company of the trust, nor did the bankrupt sign 
a written declaration of trust until seven days be- 
fore the fiat was issued .-—Held, that the shares 
were in the order and disposition of the bankrupt 
as reputed owner, and passed to the assignees. 
£x parte Orde, 1 Deacon, 166. ' 362 



A., in consideration of money advancsed and 
to be advanced by B. A Co., assigned all the 
freight to arise from the ship N., under any ex- 
isting or future charter-party or other contract, 
"for or in respect of her intended voyage to India 
and back to England.** After the freight had 
been earned and ascertained, A . became bankrupt : 
— Held, that such assignment was good, and that 
the assignees of the bankrupt were not entitled to 
sue for the freight Leslie v. Guthrie, 1 Scott, 
683; 1 Bing. N. R. 697; 1 Hodges, 83. 362 

Notice of the assignment to the defendant being 
averred : — Held, that the freight did not remain 
in the reputed ownership of Uie bankrupt within 
the cases decided on 21 Jac. 1, c. 19, ss. 10 & 11. 
Id. 

A mortgage was made of premises and ma- 
chinery, which included a steam-engine, dtc. 
erected for trade purposes, and fixed to the free- 
hold ; the mortgagor continued in possession : — 
Held, first, the steam-engine might be removed ; 
second, it was well mortgaged, and not in the re- 
puted ownership. Ex parte Lloyd, 1 Mont. &. 
Ayr. 494 ; 3 Deac. & Chit. 765. 362 

The owner of the freehold gave a mortgage for 
a term of years, but remained in possession ; 
while in possession he added fixtures : — Held, the 
fixtures were not in his reputed ovmership. Ex 
parte Belcher, 2 Mont. &. Ayr. 160. 362 

If the mortgagee be himself a trustee, to whom 
notice must be given ; the transaction itself is 
notice enough to prevent reputed ownership. Ex 
parte Smar^ 2 Mont. & Ayr. 60. 362 

Where shares' of a company stand in the name 
of the bankrupt, who is on all occasions the only 
apparent owner, and has possession of the certi- 
ficates of the shares, but the shares belong to an- 
other person, in whose favor there exists a secret 
declaration of trust, the shares are not in the re* 
puted ownership of the bankrupt. Ex parte 
Watkins, 2 Mont, and Ayr. 349 ; 4 Deac. A Chit. 
87. 362 

That one of the directors and an actuary knew 
the shares not to be the bankrupt's, is not suffi- 
cient to prevent reputed ownership. Id. 

Ex parte Watkins, 1 Mont. & Ayr. 685; re- 
versed. Id. 

Where shares of an insurance company are 
held in the name of the bankrupt as trustee, they 
are not in his reputed ownership. Ex parte Wat- 
kins, 1 Mont. & Ayr. 689. 362 

What is notice to the office. Id. 

If the owner of shares in an insurance com- 
pany assign them by way of mortgage, and give 
notice to the company, out owing to an informa- 
lity in the assignment the company do not recog- 
nize the mortgajgee's tiUe, and the shares still 
stand in the bankrupt's name, the shares are not 
in his reputed ownership. Ex parte Masterman^ 
2 Mont. & Ayr. 209. 362 

In deposits of shares of insurance companies, 
where the parties are partners thereof, the trans- 
action itself is sufficient notice to present reputed 
ownership. Ex parte Waithman, 2 Mont. & Ayr. 
364 ; 4 Deac. & Chit. 412. J62 



[BANKRUPT] 



2353 



A bankinpt deposits with the petitioner, by W8 j 
of eijattqble mortgage, an assignment which had 
\teen made to the liankrupt, of a reversionary in- 
terest under a will ; no notice of the assignment 
having been ^ven to the executors, either by the 
bankrupt or Dy the petitioner : — Held, that the 
property was not within the order and disposition 
of the bankrupt, as reputed owner. £x parte New- 
ton, 4 Deac. &. Chit. 138; 2 Mont. & Ayr. 52. 362 

On a deposit of a policy of assurance, by way 
of equitable mortgage, the onus does not lie on 
the mortgagee, to show that notice of the deposit 
was given to the office before the act of bank- 
ruptcy, but witli the assignees, to show that it was 
not. Ex parte Stevens, 4 Deac. dt Chit. 117. 362 

A puty, to whom the bankrupt had assigned a 
policv of assurance, sends an agent to the office 
ibr the purpose of paying the annual premium, 
who, in the course of conversation with one of the 
clerks in the office, tells him of the policy having 
been so assigned : — Held, that this was not suffi- 
cient notice to the insurance office. £x parte 
.Carbis, 4 Deac. <& Chit. 354. 362 

By the rules of an insurance company, no per- 
son, except a director, was permitted to hold more 
than two shares in his own name ; but no rule 
prevented a person from being beneficially enti- 
tled to more than two shares by holding them in 
the name of another party. A proprietor, who 
was already a holder of two shares, naving pur- 
chased two others, caused them to be entered in 
the name of tho bankrupt, in the company's 
books, with the knowledge of one of the directors 
and the actuary. The Irankrupt signed a decla- 
ration of trust, that he held the shares as trustee 
for the proprietor ; but no notice of the trust was 
taken in this books of the company, and the bank- 
rupt held the certificates of tne shares, and con- 
tintied to receive the dividends thereon, account- 
ing for them from time to time to the proprietor 
up to the period of his bankruptcy, when the 
sfaaies were still standing in his name, during all 
which time he was treated as owner by the com- 
pany, had notice of meetings served upon him, 
attended the meetings of the shareholders, and 
voted as a shareholder : — Held, on appeal, that 
this was such a secret trust as was not within the 
79th section of the Bankrupt Act, and that the 
shares were in the order and disposition of the 
bankrupt as reputed owner. £x parte Burbridge, 
1 Deac. 131 . 362 

A debenture for a tontine annuity was depo- 
sited by an intestate with his bankers, one of 
whom received the dividends, and placed them to 
the credit of the intestate's account. The intes- 
tate died in 1801, and a commission issued 
against the bankers in 1810; notwithstanding 
which the same partner continued to receive the 
^vidends, and pay tliero to the intestate's widow 
up to the period of his own death, which hap- 
pened in 16^ ; some time afler which the assig- 
nees of the bankers claimed a lien on the deben- 
ture, for ' a debt due from the intestate to the 
bankimr-hoiise : — Held, that afler so long an 
abandonment of any claim of lien, the assignees 
could not now support such claim ; and the de- 
bentme, also, could not be considered as having 



been left in the order and disposition of the 
bankers, having been deposited in the nature of 
a trust. Ex parte Douglas, 3 Deac. ib. Chit. 310. 

362 

A., on behalf of the owner of a ship, entered 
into a charter-party with B.^ by which B. agreed 
to pay to A., on l>ehalf of the owner, a certain 
sum for the freight of the ship, by two instal- 
ments, one to be paid on the sailing of the ship, 
and the other on the completion of the voyage. 
The owner being indebted to C, ordered, in 
writing A. to pay to C. all monies he might re- 
ceive under the charter-party, and accordingly A. 
paid over the first instalment to C. The owner 
then asssigned by deed, the remainder of the 
freight to C., who gave fiotice of the assignment 
to A. but not to B. The vessel completed her 
voyage, and aflerwards the owner became bank- 
rupt : — Held, that the remainder of the freight 
was not in his order and disposition at his bank- 
ruptcy. Gardner v. Lachlan, 6 Sim. 417. 96S} 

By a clause in the deed of settlement of a bank- 
ing company, it was stipulated that the company 
should have a lien on the shares of such pro- 
prietors as were customers, and indebted to Uie 
bank, and that no share should be transferred 
without the consent of the directors ; and an ab- 
stract of these provisions was indorsed on the 
certificate of the share held by each proprietor. 
The bankrupt at the time of his bankruptcy, was 
the owner of thirty of these shares, and had in his 
possession the certificates of ownership thus in- 
dorsed, being then largely indebted to the bank 
for advances : — Held, ui&i these shares did not 
pass to his assignees under the clause of re- 
puted ownership in the Bankrupt Act, so as to 
defeat the lien of the bank, which had been 
provided for in the deed. £x parte Plant, 4 Deac. 
<St Chit. 160. 363 

Goods sold but not delivered. Carvalho v. 
Bum, 1 Nev. <& M. 700 ; 4 B. &^ Adol. 382. 363 

The assignees of a bankrupt do not take under 
the assignment, property, tne equitable title to 
which has been transferred before the bankruptcy. 
Burn V. Carvalho, (in error), 4 Nev. & M. ^9; 
1 Adol. & Ellis, 883. 363 

But such equitable transfer must have been 
complete before the bankruptcy; it must have 
been a transfer of the whole, or an ascertained 
part of specific property, and absolute, not con- 
tingent. Id. 

A., at L., having consigned goods to B., at 
K., for sale on his (A.'s) account, draws bills on 

B. to be paid out of the produce of the consign- 
ment. A. negotiates the bills with C. in M. 
UpqA B.'s refusing to pay the first of the bills^ 

C. writes to A. as follows : — " I request you to 
write to B., by the first vessel, with orders that, 
in case he does not pay your drafts, he shall im- 
mediately hand over such property as he may 
have of yours of an equivalent value to the bills 
not paid by him, to D., my agent at K." A. 
answered : — " Agreeably to your instructions, 1 
will write to B., by brig W., directing him to 
hand over to D. property of mine in his hands to 
cover the amount of^ the bills that may eventuallv 
not be paid." A. accordingly wrote to B. thiB 



3354 



[BANKRUPT] 



letter^ which wis not commonieated to C. : — ^ I 
bare ensved to C. that yoo shall pam into the 
iiands of D., his agent, all the property which 
may exiat in your hands for my account ; you 
will arranee with D. the mode," &c. Before this 
letter reacned K., A. became bankrupt; D. afler- 
wards receiving {roods from B. to an amount 
aomewhat less uan the bills unpaid, sold them, 
and remitted the produce to C : — Held, that C. 
had not, at the time of the bankruptcy, such an 
equitable interest in the goods as would prevent 
A.'a assignees from recovering in trover. Id. 

Dubitatur, whether the last of the above letters 
was admissible in evidence ; but held that, whe- 
ther admitted or not, the aiisignees might recover. 
Id. 

A landlord distrained for rent arrere before 
the bankruptcy of his tenant, and when the goods 
were appraised, lefl them on the premises for 
the use of the bankrupt's wife, the bankrupt him- 
self being in prison. Ailer the bankruptcy the 
landlord distramed again for the very same ar- 
rears of rent : — Held, that the second distress 
was void, and that the goods passed to the as- 
signees as being in the order and disposition of 
the bankrupt at the time of his bankruptcy. Ex 
parte Shuttleworth, 1 Deac. & Chit. 223. 365 

W., a horse contractor, lets outs a cart horse on 
hire to N. dt Co., who have it in their possession 
more than twelve months, and then become bank- 
rupt : — Held, that it does not pass to their assi^- 
«es, as being in their reputed ownership. £x 
parte Wiggins, 2 Deac. & Chit. ^^69. 36ft 

On a petition b^ the owner for redelivery of the 
liorse, and a viva voce examination of witnesses, 
the bankrupt is an incompetent witness. Id. 

The court of Review will not interfere, by or- 
•dering the messenger to withdraw from the pos- 
session of goods which he has seized under the 
imnkruptcy, in any case of reputed ownership. 
£x parte Harling, 2 Deac. db Chit. 389. 365 

F. accepted bills to enable C. to make ship- 
snents to S^ on an agreement (known at S.) to ap- 
ply the return proceeds in payment of the bills. 
On the last shipment, C. sent notice to S. to 
mend the proceeds direct to F., and gave the 
same notice to a partner of the S. house, who 
happened to be in London. Before the notice 
arrived at S. the return proceeds were sent off to 
C, who became bankrupt, and his assignees re- 
ceived them : — Held, not in his reputea owner- 
ship, and F. entitled thereto. Sx parte Flower, 
it Mont. & Ayr. 224 ; 4 Deac. & Chit. 449. 365 

Furniture, settled to the separate use of a wife, 
the possession being consistent with the settle- 
ment, is not in the reputed ownership of the hus- 
tiand. Ex parte Massey, 2 Mont. & Ayr. 173; 4 
Deac. dk Chit. 405; S. P. Ex parte Elliston, 2 
Mont db Ayr. 365. 365 

Benkrupt a Tnufae.]— Where a testator be- 
cnieaths the whole of bis property to trustees for 
tne payment of an annuity and other purposes, 
and the trustees become bankrupt, the trust fund 
must be set apart for the payment of the whole 



annuity, without regard to the intoresis of the 
persons entitled to the reaidiie. Ex parte Roth- 
well, 2 Deac. A Chit. 542. 



The court of Review will order a bankrupt trus- 
tee to be removed, and to convey the trust pro- 
perty to a new trustee, under the 79th section of 
the Bankrupt Act ; but there is no necessity for 
the assitrnees to join in the conveyance, as the 
trust estate does not pass to the assignees. £x 
parte Painter, 2 Deac dt Chit. 584. 



Where a trustee becomes bankrupt, a new one 
may be appointed, on petition, without any refer- 
ence to the master ; although the bankrupt had 
no portion of the trust property in his hands, ^x 
parte Buffery, 2 Deac. & Chit 576. 




Where a conveyance by way of mortgage is 
made to a trustee for the mortgagee, in trust to 
sell, and the trustee becomes bankrupt, the mort- 
gagee should join in the application for the 
pointment of another trustee. Ex parte Ori 
2 Deac. A Chit. 413. 

The surviving trustee under a marriage settle- 
ment becomes bankrupt, and is outlawed. On 
the application of the cestui que trusts, the eomrt 
of Review ordered the assignees to transfer the 
trust stock to new trustees. £x parte ^— , 3 
Deac. A Chit 24. 



If a trustee becomes bankrupt the court will 
appoint a new trustee, without a reference, if 
there be an affidavit of solvency, fitness, dkc. Ex 
parte Walton, 2 Mont. A Ayr. 242 : 8. P. Ex 
parte Beveridge, 4 Deac. & Cfhit 455. " 365 

Where a trustee becomes bankrupt, the general 
rule is, that the court will not appoint a new 
trustee, under 6 Geo. 4, c. 16, s. 79, without a re- 
ference, unless all partiea are before the conrt 
The smallness of the estate may furnish an ex- 
ception. Ex parte Whish, 2 Mont A Ayr. 214. 

965 

By the terms of a devise, (he interest of a sum 
was payable to a bankrupt for life, remainder te 
his cnildren ; the trustees (of which the bankrupt 
was one) were authorized to lend the principal to 
the banKrupt firm, which they did. On bank- 
ruptcy, and proof against the firm :---Held, the 
dividend on the proof should be invested in 
stock, the interest of which was to accumulate, 
in the first instance, till the principal sum was 
made good again. Ex parte King, 2 Mont. A 
Ayr.4la ^ "^ * 366 

Other Casef.}~Where a testator directs his 
trade to be carried on afler his death, that part of 
his property only will be liable, in ease of^ bank- 
ruptcy, which he has directed to be embarked in 
the trade. Thompson «. Andrews, 1 Mylne dk 
K. 116. 367 

A. bequeathed a house to B. for the residne of 
a term of yean, if B. should so long live, and 
continue to inhabit therein ; and after B.'s de- 
cease, or giving up the possession, A. beqneathed 
the house to C, the wife of B., for the remainder 
of the term, in case she should so long live 
therein and remain the widow of B., with further 
limitations to the issue of B. B. entered, with 
the assent of the executors of A. B., being in 



[BANKRUPT] 



2355 



•BtolTent eiicmiMUiieasi went to sea for six 
months ; C. continued to occupy the house and 
to carry on B.*s trade therein. During the ab- 
sence <M fi»,a commission of bankruptcy issued 
against him. After his return, B. continued the 
occupation and the business until the house was 
sold by his assignees, when B. & C. were turned 
out oT possession by the Tendee. B. died. C, 
remainm^awidow, demanded possession : — Held, 
that the bequest to C. did not, in equity, enure 
as a limitation to her separate benefit, and that 
her executory estate passed to the assignees of 
B^ as being such an interest as B. could '* law- 
ially depai^ithal." Doe d. Shaw v. Steward, 3 
NeT.&M.372; 1 AdoL ^t fillis, 300. 368 

B.*s going to sea on account of insolvency was 
not a ceasing to inhabit or a giving up of posses- 
sion so as to defeat his life estate. Id. 

Nor his being turned out of possession, semble. 
Id* 

A. procnres floods, which he agrees with B. 
Sl Q. shall be shipped on the joint adventure of 
ihe three, and then draws bills on B. & C for 
the amoont of the eoste of the floods, which they 
accept, A engaging to renew we bills until the 
return of the proce^ for the goods are received. 
B. & C. manage the shipment, and direct the 
consignee to forward the account of the return 
sale to themselves. A. then applies to D. to 
discount two of these bills ; and to induce him to 
ik so, undertakes that the proceeds of the goods 
shall be applied in liquidation of the bills, which 
undertaking, D., afler discounting the bills, com- 
mmwratffs to B. & C. All the parties become 
boBkmpi; and part of the return proceeds come 
ts tise hands of the assignees of fi. A. O. :-* 
field, that the proceeds were clothed with a trust 
fiv the payment of the bills, and that the ossig- 
nees of B. & C. were bound to pay over sudi 
pneoeds to the assignees of D. Ex parte Ck>pe- 
load, 3 Dene. A Chit. 199; 2 Mont & Ayr. 177. 

363 

A. supplies goods to B. & C. at his own eoste, 
which it is agreed shall be shipped on the joint 
account of the three ; and that A. shall draw bills 
on B. & C.^ on account of the return proceeds, 
he undertaking to renew the bilk until funds come 
roond, so as to keep B. d^ C. out of cash ad- 
vances. B. & C. accept the bills, and consign 
their jgoods to their correspondent abroad, with 
directions to transmit the account of sales and 
the proceeds to themselves. A. discounte the 
bilk with parties who have no knowledge of the 
bilk being drawn on account of the joint ship- 
ment, and are not made acquainted with that cir- 
cumstanee until after the respective bankrupt* 
des of A. and of B. A C. :— Held, that the biU 
holdefB have, nevertheless, a lien on the return 
of the p roceeds of the shipment, which came to 
the huukof the assignees of B. &> C. subse- 
quently to their bankruptey— Sir J. Cross du- 
hitanle. Ex parte Presoott, 3 Deac. & Chit. 218. 

363 

A London banker, having a branch bank at 
Edinburgh, stoiis payment on the 2nd of January, 
and writes to his sgent at Edinburgh, apprising 
bim of the fact, and directing the business of the 

Vol. IV. 11 



branch bank to be discontinued. On the 4th of 
January, before this notice reaches the agent, 
the petitioner pays into the Edinburgh bank 
3062. 15s. in notes and cash, to be remitted to 
the house in London ; but ailer the news reaches 
Edinburgh, and whilst the notes were still in the 
a^rent's possession, gives him notice not to part 
with them ; and they remained in his hands on 
the 26th of January, when a fiat issued against 
the banker in London. The agent at Edinburgh 
having a lien on the funds in his hands, the as- 
signees permitted him to retein the 305{. l(>s. in 
part satisfaction of his lien : — Held, that the as-> 
signees were bound to refund this sum to the pe- 
tetioner. Ex parte Cunningham,^ 3 Deoc. & Chit. 
56. Confirmed on appeal to the Lord Chanc^- 
lor. Ez parte Belcher, 3 Deac. A Chit. 87. 365 

So held, also, where the notes delivered to the 
agent were not identified. Ez parte Solomans, 3 
Deac. A Chit 77. 365 

So, also, where the notes were paid in by the 
customer on the 3rd January, to a sub-agent of 
the banker at Glasgow, who remitted them on 
the 4th to the banker's managing agent at Edin- 
burgh. Ez parte Wylie, 8 Deac. Chit. 83. 365 

The bankrupt was insolvent in 1818, and a 
commission issued in 1832, under which he ob- 
tained his certificate, previous to 6 Geo. 4, o. 16 : 
— Held, that the interest in an agreement en- 
tered into by the bankrupt subsequently to the 
certificate did not pass to the assignees under the 
commission. Ez parte Hawley, S Mont dk Ayr. 



A bankrupt sequestrator .will be restrained 
from receiving any proceeds adversely to the as- 
signee. Ez pute Hall, 2 Mont dk Ayr. 393. 365 



XII. ASSIOREXS. 

Official Jtsstgnees.] — Although the court of Re- 
view has a controlling power m the appointment 
of an official assignee by the commissioner, ^ret 
the court will not interfere, unless the commis- 
sioner has exercised an unsound discretion in the 
appointment Ez parte Bremston, 2 Deac.dk Chit 

Action against official assignee. Munkv. darke, 
3 M. d^ Scott, 463 ; 10 Bing. 102. 369 

If an official assignee be included in an order 
for payment of eoste, the order may be enforced 
agamst him alone. Ez parte Murray, 1 Mont db 
Ayr. 475. 369 

The court of Review has jurisdiction to revise 
the allowance made by a commissioner to an offi- 
cial assignee ; but, it seems, that that court will 
only ezercise it in extreme cases. Ez parte Tv> 
lady, 1 Mont & Ayr. 162; 3 Deac. dk Chit 57b. 

371 

Where an official assignee made default in 
not accounting for monies received, the court 
permitted the creditor's assignee to use the name 
of the chief registrar in suing the sureties upon 
the bond. Ez parte Topham, 1 Deac. 192; 2 
Mnt dk Ayr. 483. 369 



S356 



[BANKRUPT] 



An official amignee ought not, except under 
very peculiar circumstances, to present a petition 
to the court in his own name. Anon. 1 Deac. 
106. 369 

Choice of Aasigrues.'} — A person authorized by 
a special power of attorney may vote for the Bank 
of England in the choice of assignees. £x parte 
England (Bank), 1 Wils. C. C. 1^ ; 1 Swans. 10 ; 
1 Rose, 142. 372 

Where the interest of the joint creditors ap- 
pears, prima lacie, adverse to the separate cre- 
ditors, the court will, on the application of the 
latter, appoint an inspector to take care of their 
interests. Ex parte Dawson, 3 Deac. & Chit. 12. 

373 

Where two assignees were elected, one of whom 
was chosen without his own consent, and refused 
to serve, the court directed a new choice alto- 
gether. Ex parte Cattaral, 1 Deacon, 193. 373 

Rejnoval of Aiisignees.] — Mere poverty is not 
ground for removing an assignee. Ex parte Cope- 
land, 1 Mont. & Ayr. 306; 5 Deac. «fc Chit. 561. 

373 

If the creditors who elect an assignee be rela- 
tions;, and their debts prima facia of a doubtful 
nature, the assignee may be removed without 
serving the creditors. Id. 

Assignees are not removable merely because 
the commissioners improperly reject the proofs 
of creditors, who would have been entitled to vote 
in the choice of assignees, if they had been per- 
mitted to prove their debts, unless, indeed, their 
proofs are fraudulently procured to be rejected. 
Ex parte Milner, 3 Deac. & Chit. 235. 373 

On a petition by an assignee for his removal, 
admitting misconduct, he cannot be ordered to 
pay costs incurred by such misconduct without a 
cross petition. Ex parte Angle, 2 Mont. & Ayr. 
28 ; 4 Deac. & Chit. 118. 373 

Where an assignee purchases part of the estate 
without leave, the general rule is to remove him. 
Ex parte Alexander, 2 Mont. & Ayr. 492. 373 

If an assignee purchase part of the bankrupt's 
estate, and improve, the estate must be resold, 
and put up at the price griven by the assignee, 
adding the sum laid out in improvements. Ex 
parte liewit, 2 Mont. & Ayr. 477. See Ex parte 
Bennett, 10 Yes. 400. 373 

An assignee, who was also a mortgagee of the 
bankrupts freehold property, having purchased 
it for himself when it was put up nir sale, the 
estate was ordered to be resold, subject to any 
Claims of the assignee by virtue of his mortgage. 
Ex parte TurviU, 3 Deac. & Chit. 346 ; 1 Mont. 
& Ayr. 686. 373 

The examination of the assignee before the 
commissioner, as to the sale of the property, was 
permitted to be read, as evidence of the assignee*'s 
misconduct — ^the petition praying to discharge 
him for misconduct — although it did not pray a 
resale. Id. 



Appointment of new Assignees.] — Where the 
assignees refuse to bring an action for the reco- ( 



very of property, which a creditor alleges to have 
belonged to the bankrupt, the court will not order 
a new election of assignees, but will permit the 
creditor to bring the action in the name of the 
assignees, upon entering into a proper indemnity. 
Ex parte Ryland, 2 Deac. & Chit. 392. 374 

If a sole assignee be very poor, and is alleired 
to be in insolvent circumstances, and elected by 
suspicious votes, a co-assignee may be appointed. 
Ex parte Copeland, 1 Mont. A Ayr. 305 ; 3 Deac. 
& Chit. 561. 374 

Upon a new choice of assignees, there is no 
necessity to vacate the assignment under a com- 
mission issued prior to 1 &. 2 Geo. 4, c. 56. Smith 
V. De Tastet, 1 Mont & Ayr. 370 ; 4 Deac. & 
Chit. 360. 374 



RigJU JhUhoriiy and Dviy."] — ^Assi^nees are 
entitled to travelling expenses, bona fi.& incurred 
for the benefit of the estate. Ex parte Lovegrove, 
2 Mont. 6l Ayr. 4 ; 3 Deac. & Chit. 763. 375 

Assignees are entitled to the expenses of jour* 
neys solely and properly undertaken for the Dene- 
fit of the estate. Ex parte Joyner, 2 Mont, dk 
Ayr. 1 ; over-ruling Ex parte Elsee. 375 

The assignees can never ground a title on the 
fraud of the bankrupt. Ex parte Carlow or Carlon, 
2 Mont, (k, Ayr. 40 ; 4 Deac. & Chit. 120. 37S 

The court of Review will not interfere to di- 
rect assignees how to sell the estate. Ex parte 
Belcher, 1 Mont. &, Ayr. 478; 4 Deac. db Chit. 
1. 376 

On tlie application of a tenant of the assignees^ 
a reference was made to the commissioner, who 
reported that the rent should be reduced ; which 
was done. On the application of some creditors, 
one of whom offered higher rent, the court re- 
fused to interfere. Ex parte De Begnis, 1 Mont. 
^ Ayr. 277 ; 4 Deac. 6l Chit. 225. 376 

The court of Review will not order a sale by 
private contract, the commissioners having power 
so to do. Ex parte Ladbroke, 1 Mont ol Ayr. 
384. ^6 

The court will make no order on a petition by 
assignees to s6ll any portion of the oankrupt's 
property by private contract, it being a matter on 
which they must use their own discretion. Ex 
parte Huriy, 2 Deac. dk Chit 631. 376 

The court of Review will not confirm a pur- 
chase of part of the bankrupt's estate made by 
an assignee without leave, because a meeting of 
creditors has consented. Ex parte Thwaites, 1 
Mont <& Ayr. 323. 376 

A., an assignee, purchases, as trustee for B., 
some shares which the bankrupt had in certain 
mines, and, after retaining them in that character 
a twelvemonth, re-purchases them from B. for his 
own use : — Held tnat tlie transaction was void, 
on tlie general principle that an assignee cannot 
purchase anj part of the bankrupt s property, 
either for himself or for another ; ana that A. 
must be considered a trustee of the shares for the 
benefit of the general creditors. Ex parte Grylls, 
2 Deac. 6l Chit. 290. 376 

One S. was indebted to the defendant, an at- 



[BANKRUPT] 



S3S7 



\ 



loniey, who had a lien on an indenture of lease 1 
relating to premiaes belonging to S., aa a security 
for hia debt. A comminion <? bankruptcy issued 
against S., and an assignee being appointed, the 
defendant acted as solicitor to the commission : 
a netition was presented to supersede the com- 
mnaion, on the ground that there was no valid 
petitioning creditor's debt, and the defendant, 
with notice of that fact, joined the assignee in 
an asaignoient of the said lease to a purchaser ; 
out of the purchase money the assignee paid the 
defendant tne debt due from the bankrupt, and 
also a part of the amount of his bill as solicitor 
to the commission ; the defendant also received, 
by the authority of the assignee, certain sums of 
money accruing from the rents of the premises, 
in part liquidation of the debts due to him ; afler 
these £ict8 occurred, the commission was super- 
seded, and the plaintiffs were appointed assignees 
under a new fiat which was issued : — Held, that 
the plaintiffs could recover the sums received by 
the defendant in an action for money had and re- 
ceived ; for by parting with the lease tlie defen- 
dant was guilty of a conversion, and the plaintiffs 
were therefore entitled to waive the tort and sue 
in assumpsit ; and that as to the rents received by 
the defendant, it was money received to the use 
cMfthe plaintiffs afler notice of an act of bank- 
mptcy ; and as the ftrst assignee was not assignee 
de jure, his assent to the payments made no dif- 
ference. Clark V, Gilbert, 2 Scott, 520; 2 
Bing. ri. R. 343 ; 1 Hodges, 347. 376 

The assignees having made an arrangement 
Goooeming the payment of the creditors, a re- 
ference wasordered to the commissioners whether 
it were beneficial. In re Hyslop, 2 Mont. & Ayr. 
289. 377 

T)ue sanction of the court was given to a pecu- 
niary arrangement by the assignees affecting the 
estaSe. £z parte Prater, 2 Mont. & Ayr. 364 ; 4 
Orac. Sl Chit. 214. 377 

A reference was ordered to the commissioner, 
to inquire whether an arrangement, in regard to a 
portion of the bankrupt's property, which was ap- 

rvedoffat a meetmg of the creditors, would 
beneficial to the estate. Ez parte Kirby, 6 
Deac. A Chit. 400 ; 2 Mont. & Ayr. 142. 377 

A reference was made to the commissioner, to 
report whether a pecuniar^r arrangement by the 
assignees would be beneficial to ibe estate. Ez 
parte Bndstock, 2 Mont A, Ayr. 490. 377 

The eoort will not interfere, on the application 
of the asngnees to sanction an arrangement 
made by them for the satisfaction of a claim of 
the bankmnt's wife. The assignees must use 
their own aiscretion. Ez parte James, 3 Deac. 
4k Chit. 290. 377 

A bankmpt did not disclose a life-interest 
which he pospessed in certain property, when he 
paared his last ezamination ; and ailer the lapse 
of more than twenty years, when four of the 
eommissiooers were dead, he petitioned for a 
fiat to be iflsoed to fresh commissionen, and that 
the assignee might be ordered to account. The 
court, onder these cirenmstances, allowed the 
kanknipt to i«Hie a new fiat in the name of a cre- 



ditor, but thought that, afler this eoneealment, 
he was not entitled to an inquiry against his as- 
signee. Ex parte Holder, 3 Deae. 6l Chit. 276. 

377 

The court of Review will not take a trust deed 
out of the posses-'T of the bankrupt*s assignees, 
id. 

Order refused for an assignee to bid for the 
bankrupt's properly, although the assignee ob- 
tained the consent of a meeting of the creditors, 
such meeting having been only attended by half 
in value of the creditors. Ez parte Beaumont, 
3 Deac. ^ Chit. 549. 377 

Where a sole assignee wishes to bid, for the 
benefit of the estate, he must be removed, or a 
quasi co-assignee appointed to protect the estate. 
Ez parte Molineuz, 2 Mont, di Ayr. 245 ; 4 Deac. 
6l Chit. 460. 376 

Before an assignee applies for leave to bid at 
the sale of the bankrupt's property, he must call 
a meeting of the creditors for the purpose of as- 
senting to or dissenting from such proposed bid- 
ding. Id. 

Udfnlity of Assignees."] — One of the assignees, 
having the sole cham of paying the dividends, 
pays me dividend oi a creditor to a person who 
IS not duly authorised to receive it. The two 
other assignees are equally responsible to the 
creditor for the amount of the dividend. Ez parte 
Winnall, 3 Deac. &. Chit. 22. 376 

Although a commissioner has no power, under 
the 106th sect, of the 6 Greo. 4, c. 16, to charge 
the assignees with monies, which, but for their 
wilful uefoult, they might have received, yet, 
where he charged them with certain sums as re- 
ceived " by themselves or their solicitors," the 
court of Review referred it back to him to ascer- 
tain the amount which the assignees, or any per- 
son for them, had received, or which, but for tneir 
default, might have been received. Ez parte 
Keys, 2 Deac. & Chit. 633. 378 

After there has been a change of assignees, 
and a long period of time has elapsed, the court 
will not refer the accounts of the assignees for 
ezamination, for the purpose of charging the new 
assignees with the default of the former assignees. 
Ez parte Richards, 4 Deac. & Chit. 183 ; 2 Mont. 
&, Ayr. 75. 378 

An uncertificated bankrupt cannot petition 
that his assignees may be ordered to account, 
without alleging thatnis estate will produce a 
surplus afler paying 2Qs. in the pound. Ez 
parte Ryley, 4 Deao. & Chit 50. 378 

An order of dividend, stating tnat a certain 
balance was in the hands of one of the assignees, 
was made to divide the same among the credi- 
tors: — Held, that the other assijpiee, having 
never interfered with the trust fund, was not 
liable to the crediton for the payment of the 
dividend. Ez parte Dawson, 4 Deac. Sl Chit. 
130. 376 

Quere whether the 76th section of 6 €reo. 4. 
c. 16, apphes to a contract relating to land and 



33S6 



[BANKRUPT] 



petsooalty ? £x pvte Ifawley, 3 Moat & Ayr. | 

Commianonen cannot open tbe andited ac- 
coanta of aaaignees, without jpreTioDs pennission 
Irom the coort of Review. £x parte Benham, 2 
Mont & Ayr. 272; 1 Deacon, 26. 378 

Tbe commiflBioner cannot charge both a«g- 
oeea with 20 per cent where only one bad the 
money, vnlesa he finda that the other ^ knowingly 
peimittfld" it Id. 

Actions by and agahut JUngnees.'l — ^Partiea in 
actiona by aaaigneea. Baker v. Neave, 1 C. d& 
M. 112; I DowL P. C. 616 ; 3 Tyr. 233. 381 

The aaajgneea of a bankrupt partner and a 
floWent parSier opened an account at their bank- 
era, and paid in 90(M. to discharge a debt on an 
old account, which carried interest The solyent 
partner then became bankrupt : — Held, that the 
aaaigneea of the two could not recover this sum. 
Woodbridge r. Swann, 4 B. 6l Adol. 633 ; 1 Ney . 
& M. 725. 381 

Where one member of a partnership becomes 
bankrupt, the solvent partner may use the names 
of the anignees of the bankmpt in bringing ac- 
tioiia against the debtors of the firm. Whitieoead 
V. Hu^ea, 2 C. & M. 318; 4 Tyr. 92. 381 

The aaaignees are entitled to an inden\nity 
against the coats, when they apply for it Id. 



^ 5S under a joint commission against A. 
amd B. may, as such, maintain an action for the 
nae and occupation of premiaes which belonged 
to A>, without describing themselves aa the as- 
signees of the separate estate of A., where the 
rent becomes doe for occupation subsequent to 
the bankruptcy, the assignment paasmg the rever- 
sion to the assignees by virtue of the joint com- 
mission. Pepper v. Molony, 1 Alcock & Napier, 
63. (WdL) 381 

In an action by the assignees of a bankrui>t, 
the court will allow the bankruptcy to be put in 
issue if the fact be doubtful, along with a plea of 
mutual credit and payment into court Atkin- 
son V. Duckham, 4 Dowl. P. C. 327. 381 

The rule is absolute in the first instance. Id. 

Tbe sheriff seized goods belonging to a bank- 
rupt, and, afler keepmg them for a considerable 
period, and after an action of trover in the usual 
ibrm had been brought against him by the as- 
signees, he delivered up the goods to them : — 
Held, that the assignees were not entitled to pro- 
ceed in an action, and to recover as damages a 
duarter's rent which had been paid for the house 
where the goods were kept whilst in the posses- 
sion of the sherilT, or the costs of keeping their 
messenger on the premises during the same 
period. Moon v. Raphael, 2 Scott, &9 ; 2 Bing. 
N. R. 310; 7 C. &. P. 115 ; 1 Hodges, 289. 381 

In debt bv assignees of an insolvent or bank- 
rupt, it need not oe stated that the plaintiffs sue 
*'as assignees;" it is enough if it sufficiently 
appears uiat they are assignees. Ferguson v. 
MitcbeU, 2 C. M. & R. 687; 4 Dowl. P. C. 513. 

381 



Assignees may dedtiit in the debet and dsti- 
net, and tbe omission of the queritur is immate- 
rial. Id. 



To a declaratioa in trover by the assignees of a 
bankrupt, to recover damages for goods, chattels, 
and fixtures alleced to be in the possession of 
the bankrupt at the time of his bankruptcy, and 
to have been since converted by the defendants, 
they pleaded, that before the bankruptcy the bank- 
mpt assigned the goods to them by deed, and that 
before aSe bankruptcy, they took possession of 
them, and kept ana retained such possession af- 
terwards ; the plaintifi replied that the defend- 
ants did not take possession ^ the goods befiire 
the bankruptcy : issos was joined thereon, and a 
verdict found for the plaintiffii upon it : — ^Held, 
that the issue was immaterial, because the assign- 
ment by deed conveyed the property in goods 
to the uefendants, and the continued possession 
of the assignor only amounted to evidence of 
fraud. Carr o. Burdiss, 1 C. M. & R. 782 ; 5 
Tyr. 309. 381 

Bemble, that the ** p o s s e s si on" of the assignees 
was not sufficiently averred to be an exclusive 
Id. 



An injunction will be granted to restrain 
aignees from proceeding in an action, where they 
have not an c^fuitable as well as a legal rig^ht. 
Ex parte Booth, 4 Deac. dk Chit 211; 2 Mont. 
& Ayr. 93. 318 

Suits by Assignees^] — ^An assignee can h&ve 
leave to file a bill under very special cireum- 
stances only. £x parte Beaumont, 1 Mont dk. 
Ayr. 304. 383 

The consent of a meeting of some of the cie- 
ditors is not sufficient IdT 

The court of Review will not compel the official 
assignee to join the other assignees in a suit £x 
parte £vans, 1 Mont & Ayr. 335 ; 3 Deac. & 
Chit 470. 383 

If he improperly refuse to join, and is made 
defendant, he may have tp pay his own costs. Id. 

If the assignees continue to defend a suit in- 
stituted against the bankrupt, which is decided 
in &vor of the plaintiff with costs, and they 
have no assets, they are not personally liable, 
unless they vexationsly continued the defence. 
In re Kindersley Castle, 1 Mont db Ayr. ^T^vB- 

If a bill in equity by assignees be dismissed 
with costs, they must i^ply to the comnussioner 
in the first instance to aUow them out of the 
estate. £x parte Gibson, 1 Mont &, Ayr. 479. 

383 

If a bill filed by assignees be dismissed with 
costs, the Lord Chancellor has no jurisdiction to 
order costs to be retained by the assignees out of 
the bankrupt's estate. Turner v. Hib&rt, 1 Mont 
&, Ayr. 243. Bat see Ex parte Keys, 1 Mont Sc 
Ayr. 236. 383 

The court of Review will not lend its sanctioii 
to a compromise of a suit by the assigneea, 
though the master reporto it wooltd be for the be- 



[BANKRUPT] 



34fi» 



iiefit of all partieB. Ex parte WiUiams, 1 Mont. 
A Ayr. 689. 338 

The consent of the creditors of a bankrupt to 
the inetitntion of a suit by his assigneees, thoogh 
filed amongst the proceedings in the bankruptcy, 
most be proved. Smith v. Biggs, 5 Sim. 391. 

XIII. Protected Transactions. 

Prtferenecl — ^A preference by an insolvent 
trader to a particular creditor is not fraudulent, if 
originating bona fide in the urgency of the cre- 
ditor ; as it is necessary, in order to avoid it, to 
show a contemplation clt bankruptcy as well as 
insolveiicy. Morgan «. firundrett, 2 f^ev. & M. 
dB0;5B. &Ador 289. 385 

Personal property may be transferred for a 
•afflcient consideration without writing, if the 
poaeasion be also transferred -, and a debtor may 
ptefer one creditor to another, if the debtor be not 
a trader ; but if he be a trader, he cannot prefer 
one creditor to another, unless he be pressed. 
8eott 9. Thomas, 6 C. A P. 611— Parke. 385 

Wheie a bankrupt, in contemplation of bank- 
nmtcy, pays money to A., his banker, to redeem 
biUa of exchange in his hands, for the payment of 
which B. is ultimately responsible, with a vie^ 
to make a fraudulent preference of B., the as- 
sigaeea cannot recover back the ainount from A. 
Abbott o. Pomiret, 1 Scott, 470 ; 1 Bing. N. R. 
462; 1 Hodges, 24. 385 

The defendants, bankers, discouiited for B., a 
eoatomer, two bills, one of which was accepted by 
lb lor B.*B accommodation, and the payment of 
the other guaranteed by L., due respectively the 
8th and lOth of January. On the 3rd of Janu- 
aiy, B., who was in a state of insolvency, went to 
the defendant's banking-house, accompanied by 
I*., and paid in to his account with them a sum 
sufficient to cover the two bills, and iLen drew 
and gave to L. two cheques for tne amount of the 
bilb, which cheques L. handed over to the de- 
fendants in satisfaction of the bilb. B. commit- 
ted an act of bankruptcy on the 9th of January : — 
field, that this was not a fraudulent preference 
of the defendants, so as to entitle the assignees 
of B. to maintain an action against them for mo- 
ney had and received ; the preference, if any, 
being given to L. Id. 

In order to constitute a firaudulent preference, 
aa as to avoid a payment made by a trader, it 
must be a voluntary preference, and made in 
actoal contemplation of bankruptcy ; it is not 
enough to show that the party was in such a state 
of insolvency and embarrassment as to render 
bankruptcy a probable event. Atkinson v. Brin- 
daD, 2 Scott, 3^ ; 2 Bing. N. R. 225 ; 1 Hodges, 



The court of Review has not jurisdiction to 
order property alleged to have been given as a 
haadoJent preference to be delivered up, because 
the party haa claimed. £z parte Dobeon, 1 Mont 
dtAyr.eeS. 385 

Mifrtgages.'] — ^M.,a trader engaged in ezten- 
■Te concema, was in perilous circumstances, and 



likely to beeotne bankrupt, althoogh not muh 
peeted, from January, 1831, to January, 1832, 
when he actually k>ecaine bankrupt. Among 
others, he owed his son 12,000Z., which debt, 
upon his son's marriage, was settled on the son's 
wife. In May, 1831 , some of M.'a property in 
Middlesex was released from mortgage, and M., 
at the request of his son, on the 1st of July, 1831, 
conveyed it to the trustees under his son's mar- 
riage settlement, as a security for or in discharge 
of the debt due from him to his son. The trans* 
fer was not registered or otherwise made public 
till after M.'s iMinkruptcy. A jury having found 
that it was not made voluntarily by way of fraud- 
ulent preference, or in contemplation of bank- 
ruptcy, the court refused to grant a new trial. 
Belcher V. Prittie, 4 M. &. Scott, 295; 10 Bing. 
408. 2St 



Tranrfer of Goods.] — R., having committed a 
secret act of^ bankruptcy, assigned chattels to the 
defendant, as a security for money lent him by 
the defendant, in trust to permit K. to use them 
till March, 1833, and then to sell them in dis- 
charge of the debt, if unpaid. In October, 1832, 
withm two months of this assignment, a commis- 
sion of bankruptcy was issued against R. : — Held, 
that the Assignment was not protected by the 
82nd sect, of 6 Geo. 4, c. 16. Cannan v. Denew, 
3 M. & Scott, 761 ; 10 Bing. 292. 389 

A case that is within the 71st sect of 6 Geo. 4, 
c. 16, is excluded from the operation of the ^nd 
— Per Alderson. Id. 



Payments by Bankrupts,'] — A., after a secret 
act of bankruptcy, boys goods of B., to be paid 
for at a future day. On that day A. delivera to 
C. undue bills for the amount, requestinff C to 
pay B. C. discounts the bills, and pays B* by a 
check on bis bankers. This payment is pro- 
tected by 6 Geo. 4, c. 16, s. 32, against the as- 
signees under a commission issued subsequently 
to such payment, on the antecedent act or buik- 
ruptcy. Shaw «. Batley, 1 Mev. & M. 751 } 4 
B. A Adol. 801. 392^ 

A., after the bankruptcy of his partner B., be-t 
lieving the firm to be solvent, pays in partner^ 
ship money to C, their banker, to meet current 
engagements, and the money is so applied. A< 
afterwards becomes bankrupt also. This pay^ 
ment is valid, and C. is not liable for the amount 
to the assignees of B. and of A. Woodbridge v. 
Swan, 1 Nev. &. M. 725 ; 4 B. <& Adol. 633. 394 

One of two partners, after committing an act 
of bankruptcy, handed over a bank post oill and 
some silver to the agent of the drawer of a bill of 
exchange, accepted by the partners, and which 
was just about to become due, for the purpose of 
protecting such bill. Such handing over was 
found a fraudulent preference, and to have been 
in contemplation of bankruptcy. On the same 
day, but a few houra later than the time of hand- 
ing over the note and the money, the other part- 
ner committed an act of bankruptcy : — Held, that 
the act of the partner who had committed the act 
of bankruptcy befere he handed over the property 



9300 



[BANKRUPT] 



was not binding, aad that the amigneea of the two 
partners mieht recoTer the valoe of the property. 
Bart V. Moult, 1 C. & M. 525; 3 Tyr. 564. 394 

One of two partners, on the 4th of Januair, 
committed a secret act of bankruptcy. On the 
5th of January, the other partner accepted bills 
in the name of the partnership firm, in fiiYour of 
one of the creditors of the partnership, all of 
which bills were ante-dated before the 4th of Ja- 
nuary. These bills were afterwards indorsed for 
a Tamable consideration to R., who had no notice 
of the bankruptcy. On the 10th of January a 
joint commission issued against both partners : — 
Held, that the holder of the bills could not prove 
them a^inst the joint estate, as the solvent 
partner could not bind the joint property by ac- 
cepting bills after the act of bankruptcy of his 
co-partner. £z parte Wynn Ellis, 2 iJeac. Sc 
Chit 555. 394 

A. on beinff arrested gave a bail-bond to the 
sheriff, but did not perfect bail, by which the 
sheriff became fixed. Proceedings naving been 
taken on the bail bond, a judge at chambers 
made an order, on an application by the bail, 
that proceedings should be stayed on payment of 
debt and costs, which were accordingly paid by 
A.*s attornies on the 27th of October. A. had 
supplied his attornies with a sum of money to- 
wards the payment of the debt and costs on the 
10th of Oclaber, and on the 14th he became 
bankrupt : — Held, that this was a payment under 
process of law, and that the assignees of A. had 
no right to recover the money back from the 
party to whom it was paid. Belcher v. Mills, 2 
C. M. & R. 150; 1 Gale, 142. 394 

A. and B., creditors of a trader, who had com- 
mitted a secret act of bankruptcy, pressed him 
for payment, when he offisred goods, if a cus- 
tomer could be found. The creditors procured 
the defendant to whom they were indebted, to 
purchase the goods, who with the assent of the 
trader, credited A. and B. in account. In as- 
sumpsit by the assignees of the trader for the 
price of these goods, it was held, that if the ap- 
propriation of money to A. and B. was merely m 
consequence of the direction, it was revocable, 
and the plaintiffs might recover ; but if it was 
part of the contract that the payment should not 
be revocable, it was then a question whether 
this was a pajrment within the 6 Geo. 4, o. 16, 
fl. 82, which, semble, it was not. Bradbury v. 
Anderton, 1 C M. dt R. 486 ; 5 Tyr. 152. 394 

In trover by the assignees of S. against the 
London Dock Company, to recover certain en- 

S'nes, machinery, implements, and materials, 
e cause having been referred by order of I^isi 
Prius, the arbitrator found that a contract had 
been entered into between S. the bankrupt, and 
the London Dock Company, to execute certain 
works required for the formation of an entrance 
to the docks, and to provide the materials for that 
purpose, in consideration of 52,000^., and of beinjg 
allowed to appropriate certain materials to his 
own use. The engineer of the company was to 
be the sole judge of the works, and to have the 



power of rejecting any materials or work not in 
nis opinion confbrmabfe to the plans and specifi- 
cations, and to provide other materials in lieu of 
those rejected, and to employ competent persons 
to perform the work, if S. failed to do so ; in 
which case the costi or amount thereof was to be 
deducted from the sum to become due to him 
under that contract. The directors were to be 
at liberty to alter the plans, and thereby add to 
or diminish any part of the works, in which case 
a proportionate addition or deduction was to be 
made to or from the sum ti> be paid to S., ac- 
cording to the schedule of prices contained in the 
specification. S. commenced the works, and 
placed on the premises steam-engines, railroads, 
materials, and implements, necessary for carry- 
ing on the works. The company's engineer su- 
perintended the works, and examined the mate- 
rials brought upon the premises by S., and 
rejected such as he thought were not proper for 
the purpose. The whole of the premises where 
the works were carried on, and upon which the 
machinery and materials were placed, belonged 
to the company. During the progress of the 
works, advances were made by tne company to 
S., on application, beyond the sums he was enti- 
tled to receive : he referring them by letter to 
the engines, rail roads, implements and materials 
lying on the premises, and stating the particulars 
of which they consisted, as their security for 
those advances, and agreeing that all the engines, 
implements, and materials upon the preuAses 
should be as security for such advances. S. be- 
came bankrupt before the works were completed, 
upon which toe dock company erased S.'s name 
from the implements, &c,, ana took possession of 
the engines, materials, implements, Ac. then on 
their premises. The company were always in 
advance to S. to an amount exceeding the value 
of the property on the premises : — Held, first, 
the arbitrator having awarded that the dock com- 
pany were entitleu to prove against the estate of 
S. for the sum advanced to him beyond what he 
was entitled to for the work done, and materials 
furnished by him, and the value of the engines, 
&c., that the arbitrator had no authority to 
award on that matter, and that the award as to 
that ought to be set aside : — Held, secondly, that 
the plaintifis were not entitled to recover for 
the extra work done by the bankrupt, that being 
still work done under tne contract, and the work 
done under the contract having been overpaid : — 
Held, thirdly, that the defencbnts were entitled 
to insist on the lien given to them on the en- 
gines, materials, &c. as a security for their ad- 
vances, and that there was a sufficient po sses 
sion by the defendants to support the lien ; and 
that the plaintiffs were not entitled to recover 
such engines, materials, dx., but that they were 
entitled to recover for such of the materials as 
were brought upon the defendant's premises 
after the bankruptcy : — Held, fourthly, that pay- 
ments made to the bankrupt by the defendants, 
subsequent to the time when the latter materials 
were brought on the premises, could not be con- 
sidered as payments for those particular goods in 
the course of business, but merely as general 
advances only, and that the defendants were not 
entitled to the protection of the 6 Geo. 4, c. 16, 



[BANKRUPT] 



2361 



•. 88. Crowfoot 9. London Dock Componv. 2 C 
&M.637;4Tjr. 967. ^ 

A euslom of exchanging acceptances existed 
between the bankrupt and other houses, through 
the agency of B. ; notes were sent by the peti- 
tiooer to B., but never exchanged, as bank- 
ruptcy intervened, and they were stolen from B. 
and never formed any item in any settlement of 

the accounts between B. and the assignees: 

Held, the petitioner could not recover the 
value of the notes from the assignees. £x parte 
WatsoD, 1 Mont. & Ayr. 685 ; 4 Deac. & Chit. 
^^ . 396 

M. and the Scotch bank mutually exchanged 
their notes at stated times. M. became bankrupt, 
hia agent B. having notes of the Scotch bank in 
hia hands. The assignees subsequently allowed 
B. to retain these notes in his account with them, 
he having claims against M. : — Held, that the 
Scotch bank could recover these notes against the 
aangnees. In re Scotland (Bank), 1 Mont. <fc 
Ayr. 644 ; 4 Deac. & Chit. 32. 395 

On the 3rd of January, the petitioner paid a 
sum of money to the bankrupt's agent at Edin- 
burgh, for the purpose of bcmg remitted to Lon- 
don to retire a bill ; on the 4th of January, the 
agent received notice that his principal had 
stopped payment on the 2d of January : and he 
did not therefore remit the money to London. 
On the 6th of January the petitioner required 
the agent to return the money, which he de- 
clined. On the Sd6th of January a fiat was issued 
against the principal, and the assignees in stating 
an account with the agent, allowed 2000^ to re- 
main in his hands on account of a counter 
claim he had against the bankrupt, and received 
a balance from the agent :— Held, (Erskine, C. J. 
diasent), that under these circumstances, the pre- 
sumption was, that the assignees had received 
the money so paid to the bankrupt's agent, 
which having been paid on a trust, and tor' a 
particular purpose, which had failed, the assign- 
ees were bound to restore to the petitioner, 
unlen they could prove that the money never 
actually came to their hands. Ex parte Simpson, 
1 Deac. 47 ; 2 Mont. & Ayr. 295. 395 



^f "^ A,*^® vendee. Johnson v. HamiU, 1 
Alcock & Napier, «6. (Irish). 398 

A sheriff 'who seizes and sells the goods of a 
bankrupt under a fi. fa. before commission, but 
after an act of bankruptcy, without notice of the 
act of bankruptcy, is liable in trover— Dissen- 
tientibus, Denraan, C. J., Bayley, B., Vaughan, 
B., and Bolland, B. Garland v. Carlisle rin 
^^oO. 2 C. & M. 31 ; 4 M. & Scott, 24; 3 Tyr. 

A bankrupt is discharged by his certificate from 
raterlocutory costs, ordered by the court at Nisi 
rnus to be paid by him, on a trial in a cause in 
which he was defendant, being postponed at his 
instance on account of the absence of a material 
witness, if such costs have been taxed before the 
bMkruptey. Jacobs v. Phillips, 1 C. M. & R. 
196 ; 2 Dowl. P. C. 716 ; 4 fyi. 652. 40a 

An execution haviuj^ issued against a tra- 
S^' goods were seized and sold under it, 
after he had committed an act of bankruptcy. 
The assignees brought trover :— Held, that the 
jury m assessing tbe damages might deduct the 
expenses of the sale from the proceeds of the 
fr^' f^"^ ^' ^*°^^^°'*' ^ ^- M. & R. 724 ; 

An order was made to prevent the bankrupt from 
ayailmg himself of a sequestration obtained by 
him before his bankruptcy of the rents and pro- 
fits of a rectory. Ex parte Hull, 1 Deacon, 87. 

400 



XV. SsT-ovF AND Mutual Debts. 

Where tliere are cross acceptances, and the 
right of set off clear, the court will restrain the 
assignees from bringing an action. Ex parte 
Clegg, 1 Mont. & Ayr. 91 ; 3 Deac. & Chit. 



XIV. Ofxratiok of Executions. 

Judgment on warrant of attorney, Crossfield 
V. Stanley, 1 Nev. & M. 668 ; 4 B. & Adol. 87. 

396 

Where a defendant gives a cognovit for debt 
and costs, as between attorney and client, and 
before judgment signed he becomes bankrupt, 
his eerU'ficate is a bar to tiie plaintiffs claim 
Metcalf V. Watling, 2 Dowl. P. C. 552. 398 

A. A B., being partners in trade, fraudu- 
tentjy concurred in the issuing of an execution 
■gainst A., under which the goods of both were 
»Id by the aherifi; to C. ; B. subsequently to the 
Mle committed an act of bankruptcy. In an 
action by the assi^ees of A. & B., under a 
joint oonunittuoD :— ^Held, that nothing passed by 



505. 



402. 



Plaintiff, being liable to defendant for the costs, 
of a nonsuit, issued a fiat of bankruptcy against 
the defendant : the court refused to stay defen- 
dant's proceedings in the action. Eicke v. Nokes. 

i ^^"^ ^- ^' ^J 4 M. & Scott, 586; 1 Bing! 
W. R. 69. 4^ 

The defendants were the holders of a bill of 
exchange, accepted by one M., for 760/., which 
was indorsed to them by the commercial bank of 
bcotland, and they were also the acceptors of a 
bill drawn by the commercial bank in favor of 
M. The former bill became due on the 6th of 
January, and was dishonored, M. having stop- 
ped payment. On the 7th the defendants debited 
the commercial bank in their account with the 
760/., and wrote a receipt on the back of the bilL 
and returned it protested to the commercial bank. 
The latter, hearing of the failure of M., on the 
6th wrote to the defendants, requesting them to 
keep the 760/ bill, and set off the amount against 
Uie 1000/., their acceptance, which would become 
due on the 12th. In an action by the assignees 
of M. (who afterwards became bankrupt) against 
the defendants, as acceptors of the 1000/. bill r 
—Held, that they were not entitled to set off 



2362 



[BANKRUPT] 



the 76W. Belcher v, Lloyd, 3 M. & Scott, 828. 

Payments improperly made, as the conaidera- 
tton for signinff a composition deed, may be de- 
dacted or set on from a proof made under a sub- 
sequent fiat for a subsequent debt Ex. parte 
Minton, 1 Mont. & Ayr. 440. 407 

In an action by assignees of a bankrupt, the 
defendant is entitled under 6 Geo. 4, c. 16, 8.60, 
to set off a debt due to him from the bankrupt, 
if when he gave credit to the bankrupt, he bad 
no notice of a prior act of bankruptcy, though 
he had notice that the bankrupt had stopped 
payment. Hawkins v. Whitten, 5 M. <fc R. 219. 

406 

Held that a defendant might set of a debt 
due to him from a bankrupt for money lent, &c. 
against a claim by the bankrupt's assignees on 
hun for not accepting, pursuant to agreement, 
a bill of cxchan^ by way of part payment for 

goods sold and delivered by the bankrupt to 
imself Gibson v. Bell, 1 Scott, 712; 1 Bing. 
N, R. 743 ; 1 Hodges, 136. 406 

A plea of set-off to an action ta^ the aasi^ees 
of a bankrupt, must show that it is pleaded to a 
debt to which it is strictly applicable. Ghroom v. 
Mealey, 2 Scott, 171; 2 Bing. N. R. 138; 1 
Hodges. 212. 406 

To a count in debt by the assignees of a 
•bankrupt for money had and received by the 
.defendant to the use of the plaintiffs as assig- 
nees, (not stating whether received before or 
since the bankruptcy;, the defendant pleaded a 
^set-off for money due to him on an account stated 
with the bankrupt before the bankruptcy: — 
Held, that the plea was bad, for that it did not 
«how that the debts were mutual. Id. 

!f. apprenticed his son to the bankrupt two 
jears before the bankruptcy, and agreed to pay a 
premium of 200Z. J. was in partnership with 
T., and the bankrupt owed them a joint cfebt ex- 
ceeding the amount of the apprentice fee due 
from J. to the bankrupt : — Held, that J. could not 
set off the apprentice fee against the joint debt 
4lue from the bankrupt to J. & T.— The court, 
ftinder these circumstances, ordered 100^ to be 
paid by J. to the assij^nees, together with the 
costs of the petition. £x parte Soames, 3 Deac. 
Jk Chit. 320. 407 



XVli. DiVIOBMD. 

Quere whether, on distributing unclaimed di- 
Tidends, any further assets should at the same 
time be set apart on account of the same proof? 
Ex parte Mowbray, I Mont. & Ayr. 300 ; 3 Deac. 
A Chit. 552. 410 

After an order was made for the distribution 
ofunclaimed dividends, fresh assets came to the 
hands of the assignees, which enabled them to 
make a further dividend :^Held, that the fur- 
ther dividend ought to be declared on the debts 
of all the creditors, including those who had not 
claimed the former divide&dS] unless in the tn- 



terun any of the mon-claimants had renewed 
their proofs, in which case they must be placed 
pari passu with the other creditors. But the comr 
missioners ought not, out of the further assets, 
to lay aside a sum equivalent to the dividends 
already unclaimed, as a fund in reserve to meet 
any future renewal of the proofii. Id. 

If the solicitor to the fiat have dividends in 
his hands received from the assignees under a 
pretended authority from the creditor, the oomt 
has jurisdiction to order him to pay them over 
to the creditor. £z parte Story, 2 Mont, db Ayr. 
54 ; 4 Deac. & Chit. 504. 410 

On a dividend being withheld,the assignees were 
ordered to pay it, with 5 per cent, interest from 
the time of application to them for payment Id. 

A dividend having been declared twenty-ei^ht 
years ago, and the amount invested, the creditor 
was now held entitled to the interest which had 
accumulated. £x parte Halford, 2 Mont. A Ayr. 
269. 410 

Unclaimed dividends can only be ordered to 
be divided among all the other creditors gene- 
rally, and not among a particular class of credi- 
tors. £x parte LAckington, 3 Deac. d^ Chit 331. 

410 

When the omission to prove a debt proceeds; 
from a creditor's own laches, the eourt will not 
order a dividend to be stayed, nntil his netition 
to prove can be heard. £x parte Biees, 3 Deac. 
& Chit. 283. 410 

Where the order of dividend states that a par- 
ticular assignee is not liable, he will not be in- 
cluded in an order to pay the dividend. £x parte 
Dawson, 2 Mont & Ayr. 94. 410 

Semble, that the unclaimed dividends of joint 
creditors can only go to the joint creditors, and 
those of separate creditors to the separate cred- 
itors. £x parte Fedden, 2 Deae. & Chit 379. 

410^ 

The court will not order unclaimed dividends 
to be distributed among the creditors, unless the 
creditors, on whose debts thev are payable, have 
ample notice that they have been oeclared ; and 
more especially when a long period has elapsed 
before any dividend has been made. Id. 

Where bills of exchange proved under a fiat 
have been lost by the creditor, and he therefore 
cannot produce them for the purpose of receiv- 
ing his dividends, and an application to this eoort 
becomes necessary to receive them, the creditor 
must pay the costs of the application. £x parte 
Trust, 3 Deac. & Chit. 750. 410 

Where a p&r^ purchases of a creditor all hie 
right to the dividends and interests, on his proof; 
semble, that such party cannot proceed againet 
the assignees by petition for an order to pay to 
him the dividends on the proof, but most be left 
to the ordinary means of enforcing the contract 
by action at law, or suit in equity. £z parte 
Richards, 4 Deac. & Chit 190. 410 

The 132nd section of the 6 Geo. 4, e. 16, which 
directs the payment of interest to credlton m 



[BANKRUPT] 



2363 



of a sorpliis, hss not a retrospective opera- 

tioQ. £xpviePhiUipe,4Deao.&Chit.81. 410 

* 

Where the holder of billi which were deposited 
with him by the bankrupts as a collateral security 
for a debt, prored the amount of the balance due, 
ezeepttng tne bills as a security, and some of the 
bills were afterwards paid in full :— Held, that the 
amount of the bills so paid must be deducted from 
the proof, and the dividends calculated only ud- 
OB tiie residue of the debt. Ex parte firunskill, 
4 Dea. &; Ch. 442 ; 2 Mont A Ayr. 220. 410 

The interest made by the investment of un- 
claimed dividends, does not belong to the gene- 
ral estate, but is divisible among the creditors 
claiming the hitherto unclaimed dividends. Ex 
parte Rensbaw, 4 Deac. & Chit 483. 410 

H. and P. drawers of a bill on and accepted by 
P. and Co. for 20001. indorsed it to A. for his ac- 
coBunodation. W. and Co. discounted it for A., 
together with another bill drawn by A. for 2000^. 
upon and accepted by 8. and Co. A., and H. & 
P. and S.dtCo. severally became bankrupts, W. 
and Co. received dividends from S. and Co.'s ac- 
eeptance ; also 7502. from H. and P.*s estate on the 
bill drawn by them. They also proved against 
A/s esUte for 33332. 6s. Qd. as the amount of H. 
and P.'s bill, and balance of A.*s bill on S. and 
Co., after deducting the QSSl. 13$. 4d. received 
firam 8. and Co., and received 277/. ISs. 6id. divi- 
dend Ihereon, 1662. 13s. 4d. beine in respect of the 
proportioBof proof onH.and P.^bill. P. and Co. 
siofiped payment, and under a composition deed 
W. and Co. received 10002. in respect of H. and P.*s 
bill. Total in respect of H. and P.'s bill, 19162. 
13s. 4(2., leaving a balance of 832. 6s. 8d. Serable, 
(W. and Co. claiming to have a right to retain H. 
and P.'s bill, in order to work out remedies against 
A. in respect of A.'s bill), that the assignees of H. 
and P., ahhoagh they tendered the balance 832. 
€s. Sd^ coold not compel W. and Co. to deliver up 
H. and P.*8 bill. £z parte Dickson^ 4 Deac. A 
Ckct 614 ; 2 Mont Sl Ayr. 90. 410 

Qoare whether the court has jurisdiction on 
ambfect of litigated title such as this.' Id. 

As W. and Co. were not bound to receive the 
831. 6s. Sd^ the petition was premature at all 
events till the bill was fully paid oiT. Id. 



XIX. Bahskoft. 

Smremder amd CammUnuntJ] — ^^ surrender at 
a prior meeting is sufficient, where the bankrupt 
b e oom ea unable, by illness, to surrender at the 
last meeting. Ez parte Thomas, 3 Deac. & Chit 
234. 412 

If a bankrapt be examined before one commis- 
r, and committed to the custody of the mes- 
r, and after a short time brought before two 
' ' (, who ask him a few i|ae8tions and 
commit him, the committal is bad. Ex 
paite Lanpon, 1 Mont A Ayr. 245; 3 Deac &> 
Clnt 751. 413 

The snbdivision court cannot commit on an 
adj ou r ne d exaouiiation, after merely asking, "^ do 
yoo abide t^ your fonner answers ;" the party 

Vol. IV. 12 



must be re-examined. Ex parte BardweU, 1 
Mont. & Ayr. 193. 413 

The application to commit must be made on 
the same day the certificate is made. Ex parte 
Myers, 2 Mont db Ayr. 87. 413 

Every step towards commitment must be men- 
tioned to the court Id. 

The order of committal, after the fourth day 
order, must boon petition. Id. 

To justify a committal of a bankrupt for not 
answering eatisfactorily, the commissioners 
should point out the unsatisfactory answers, and 
piess those points. Ex parte Lee, 2 Mont Sl 
Ayr. 15. 413 

If commissioners of bankrupt issue a warrant 
to apprehend a bankrupt, and direct the warrant 
^*To J. A. and W. S., our messengers and their 
assistants," &c. ; this warrant does not justify the 
apprehension of the bankrupt by any one wno is 
not in the presence, actual or constructive, of J. 
A. or W. 8., and therefore B., who was the assis- 
tant of W. S. in his business of a sheriff's officer, 
is not justified in apprehending the bankrupt, in 
the absience of W. S. and J. A., although B. nas 
the warrant in his possession. Rex «. lYhalley, 
7 C. & P. 245-~WiUiams. 413 



Privilege from ,^rreat.l — Examination adjourn- 
ed. Ex parte Simpson, 2 Wils. C. C. 127; Buck, 
424. 417 

Where, fh>m unavoidable accident, the com^ 
missioners are prevented from meeting to take 
the bankrupt's last examination, the court of Re- 
view will appoint another day for that purpose. 
Ex parte Wilson, 2 Deac. & Chit 388. 417 

A bankrupt is protected from arrest on an at- 
tachment for contempt for non-payment of mo- 
ney^ on his return home fh>m passing his last 

examination. Ex parte Jeyes, 3 Deac. & Chit. 
764. t~. / ^^^ 

• 

Allowance.] — After the choice of assignees^ 
the court of Review will not make an order as 
to the bankrupt's allowance for maintenance. Ex 
parte Hall, I Mont A Ayr. 450. 419 

If the assignees distribute a sum without an 
order of dividend, and the bankrupt subsequentiy 
obtain his certificate, he is entitled to his allow- 
ance, as if they still had that sum in their hands. 
Ex parte Lomas, 1 Mont & Ayr. 437; 3 Deao. 
Hl Chit 681. 419 

One of two assignees admits in the audit 
paper, previous to a dividend, that a certain sum 
was reserved by the assignees, applicable to 
future claims. The bankrupt, on a petition for 
his allowance, after the death of this assignee, is 
entitled to an inquiry whether any part of that 
sum ever came into the hands of the surviving 
assignee. Ex parte Coombes, 2 Deao. A Chit. 
319? 419 

Under a joint and separate fiat, the banlmxpt's 
allowance is to be calculated on the amount of 
his separate estate, together with his share of the 



2364 



[BANKRUPT] 



joint estate, not on the gross amoont of the joint 
estate. Ez parte Lomas, 1 Mont A Ayr. 625 ; 
4 Deac. A Chit. 240. 419 

Though the assiffnees with the concurrence of 
the commissioners liave ordered an allowance for 
maintenance (under 6 Greo. 4, c. 16, s. 114), till 
the bankrupt has passed his last e.Tamination, 
which order remains on the proceedinj^ jet if 
the assignees afterwards withhold the mamtenance 
on the ground of the final examination being ad- 
journea sine die, the court has no power to inter- 
fere, either as to the maintenance or the passing 
of the examination. £x parte Thomas Hall, 4 
Deac. 6l Chit. 590. 410 

The wife a bankrupt has a right to a rea- 
sonable provision out of the property which she 
brought her husband on her marriage ; and the 
court of Review has jurisdiction, on petition in 
bankruptcy, to order the assignees to make such 
provision for her, whether the propertv consists 
of real or personal estate. Ez parte lliompson, 
] Deac. 90. 419 

An allowance of 2002. out of a net income of 
2252. was deemed excessive, and reduced to 1752. 
per annum. Id. 

Future Property.'] — The price of goods sold by 
an uncertificated bankrupt may be recovered by 
him against the vendee, bis assignees not inter- 
fering. Hayllar v. Sherwood, 2 Nev. St M. 401. 

After the bankruptcy of A., and before his cer- 
tificate, B., one of his creditors, purchased goods 
from him. In an action brouffht by A., af&r he 
.had obtained his certificate, for the price of the 
goods, the old debt cannot be set off, being barred 
by the certificate. Id. 



XX. CzaTiricATK. , 

A joint certificate is, upon the death of one of 
the oankropts, a separate certificate. Ex parte 
Carter, 1 Mont. & Ayr. 115 ; 3 Deac. Jk Chit. 549. 

423 

It seems that a sole executor who becomes 
bankrupt may sign his own certificate. In re 
Lawrence, 1 Mont. A Ayr. 453. 423 

A power of attorney from a creditor residing 
abroad to sign the bsnkrupt's certificate, is suj- 
ficiently auwenticated by the attestation of a 
notary public, without any affidavit to verify the 
signature. Ex parte Myers, 2 Dea. A Chit. 406. 

424 

So, if attested by the British consul. Ex parte 
WUliamson, 2 Deac. fii Chit. 585. 424 

A petition to stay the certificate, charging that 
the bankrupt admitted that he had lost 2dI. in 
one sitting, is demurrable ; it ought positively to 
allege the fact, and that the money was lost in 
one day. Ex parte Crouch, 2 Deac. A Chit. 17. 

427 

Fraud in obtaining a certificate. Horn «. Ion, 
1 Nev. & M. 627 ; 4 B. & Adol. 78. 427 

A certificated bankrupt cannot be discharged 



from arrest for a debt covered by his certificate 
till it has been inrolled pursuant to 6 Geo. 4, c. 
16, s. 96. Jacobs v. Phillips, 1 C. M. ft R. 195 ; 
2 Dowl. P. C. 716 J 4 Tyr. 652. 428 

Semble, that a creditor who has signed the 
certificate by attornev, cannot stop the certificate 
by subsequently witnholding an affidavit verify- 
ing his signature to the power. Ex parte Dun- 
stan, 1 Mont. A Ayr. 6X9; 4 Deac. A Chit 30. 

423 

On a petition to stay the certificate, by a eredi* 
tor at whose suit the bankrupt is in custody, the 
bankrupt must be diacharged before the petition 
can be heard. Ex pti^ Green, 4 Deac. at Chit. 
112; 2Mont. & Ayr.31. 425 

The rule on such petitions is, that the partj 
objecting to the certificate must himself make 
out a case to stay it ; the bankrupt is not bound 
to answer mere allegations founded on inibrmft- 
tion and belief. Id. 

The non-payment of any dividend is not of 
itself a sufficient reason to stay the certificate. 
Id. ^ 

Tlie certificate cannot be stayed for miscon- 
duct before the fiat issued. Ez parte Gordon, S 
Mont. A Ayr. 30. 425 

The certificate will be stayed to enable a cre- 
ditor to prove, when the reasons for his not prov- 
ing was a belief that no dividend would be paid. 
Ex parte Perring, 2 Mont. A Ayr. 486. 425 

The certificate will not be stayed on a petition 
alleging information and belief, though supported 
by an affidavit swearing to thje fact positively— 
oiT J. Cross, diss. Id. 

If a fiat be worked before one commissioner, 
and in his absence from London in vacation, the 
certificate be signed by another commissioner 
who acts for the absent commissioner, the court 
will refer the certificate back to be signed by the 
commissioner who had been absent Ez parte 
Bum, 2 Mont. A Ayr. 483 ; 1 Deac. 194. 434 

That the bankrupt has not {^ven up some of 
his property is no ground to stay the certificate. 
Id. 

An allegation that the bankrupt has not fully 
disclosed his estate is not sufficient, in ordinary 
cases, to stay the certificate. In eztreme eases 
the court would order first an issue. Id. 

The omission of a year in the date to a stgnatme 
of certificate by a creditor, where the date was 
properly attached to the praoeding siffnatiue, was 
rectified. In re Buckley, 4 Dea. A Ch. 504. 423 

The officer was ordered to pass such certifi c a tes 
in future without putting parties to the ezpenss 
of a petition. Id. 

On petition to stay a certificate, it must appear 
from the petition itself that the party applying is 
a creditor ; but if it appear merely mferentially, 
that is sufficient. Ez parte Robinson, 4 Deae. tt 
Chit. 499 ; 1 Mont A Ayr. 705. 425 

If it merely so appear from the affidavits in 
support, that is insufficient Id. 

No amendment of a petition to stay is allowed. 
Id. 



[BANKRUPT] 



2365 



A fonneT partner, there being partnenhip 
flebts onpeid, cannot petition to pro?e the balance 
ofacooanti : a fortiori not to stay the certificate. 
id. 

Under the Bankruptcy Court Act, the baok- 
rapt is not bound to pay the fee for the aignature 
of the commiflsioner to his certificate, but the 
aaaigneea, comme semble, are now liable for the 
payment of it. In re Dawson, 3 Deac. & Chit. 
317. 424 

XXI. SCPKRSEDKAS AND ANNtiLLIVS. 

lo cases of sapersedeas the great seal has a 
sabetantiTe power, independent of that on appeal. 
£z parte Keys, 1 Mont. (k. AyT.fiSi6i 3 Deac. <& 
Chit. 263. But see Ex parte Harwood, 3 Deac. 
A Chit. 259. 430 

If, on a petition to supersede, the Lord Chan- 
cellor order a trial, which is in iavor of the 
oommission, the court of Reyiew cannot super- 
sede, on a petition for costs, and a cross petition 
ibr anew trial brought on by way of further direc- 
tions. Id. 

Where a petitioning creditor becomes bank- 
rapt befi>re the fourteen days for openinsr the fiat 
have elapsed, the court will not supersede on the 
petition of another creditor who is prepared to 
issue a new fiat. Ex parte Smith, 1 Mont. A 
Ayr. 7«. > 431 

After a fiat had issued, the bankrupt makes 
certain proposals to his creditors to prevent the 
proaeention of it, to which proposals the solicitor 
ibr one of the creditors promises to give an an- 
swer at a certain time on the following day (the 
sixteenth afWr the date of the fiat) $ but before 
that day arrives, he strikes a second docket, for 
noo-prosecation of the first, under the jreneral 
onler : — ^Held, that this was a breach of faith, juid 
a petition to annul the first fiat was dismissed 
with coats. £x parte Baker, 2 Deac. & Chit 
— 431 



. After a lapse of twenty years, and the deaths 
cf the petitioning creditor and the bankrupt, the 
eoort of Review will not entertain a petition for 
a supersedeas, on the_ground of fraud. Ex parte 
Granger, 2 Deac. ^t Chit. 459. 432 

Where the banlurupt is ready to pay all his 
creditors in fuU, and the only creditor whose con- 
Knt is wanting to the supersedeas is abroad, the 
bsakrapt may apply to pay the amount of the 
cn^tors debt into eoort, in order to prevent any 
delay in obtaining the supersedeaa. £z parte 
fianilfeon, 2 Deac. A, Chit 519. 432 

All the creditors assented to a supersedeas 
bat one. for 9f. 14«. 2ri., who was abroad. The 
of Review granted the supersedeas on that 
and a snflicient sum to meet the expense of 



tyung it out of court being deposited with the 
aagistrur. In n Breoknell,! Mont Sl Ayr. 80. 

432 

A petitioD to inpersede with consent of credi- 
tors cannot he entertained without the usual cer- 
tificate of the eonunissioners, nor unless it is set 
down in the paper for hearing. Ex parte Croker, 
3 Deae. A CbiU 9. 432 

Asupciaadf by consent must have the eon- 



sent of all the assignees of a bankrupt creditor. 
In re Leader, 1 Mont. A Ayr. 244. 432 

On a petition to supersede, bv consent of cre- 
ditors, the official assignee need not sign the pe- 
tition. £x parte Parker, 3 I>eac. & Chit. 112. 433 

^. petition to supersede a joint commission, on 
consent of creditors, cannot be entertained as to 
any one of the bankrupts who has not surren- 
dered. Ex parte Knowles, 3 Deac. &Chit 191. 

433 

The court will supersede where all the credi- 
tors consent, and the bankrupt has paid 20«. in 
the pound, though his examination has been ad- 
journed sine die. Ex parte Gudge, 1 Mont. & 
Ayr. 341 ; 4 Deac. A Chit 358. 433 

A supersedeas was applied for, upon consent 
of all the creditors but one, who died insolvent, 
and no administration taken out, but his son 
signed tlie consent : — Held, that the supersedeas 
could not issue without a limited administration 
for this purpose. Ex parte Hall, 1 Mont. &, Ayr. 
54; 3 Deac. & Chit. 44. 432 

Any party who can show that he sustains a 
grievance from a fiat, may petition to supersede 
it, notwithstanding he claime adversely to it. 
A trustee, therefore, under a trust deed, which 
the fiat would overreach, may petition for thirpur- 
pose. Ex parte Jones, 3 Deac. & Chit. 697. 433 

A person whose debt is alleged to be usurious, 
cannot petition to annul the fiat for fraud, or to, 
stay the certificate. Ex parte Jarman, 2 Mont' 
f& Ayr. 119 ; 4 Deac. & Chit. 393. 433 

The court will not annul a fiat on the bank- 
rapt's ])etition, though consented to by the peti 
tioning creditor, on the ground that the bankrapt 
had made an arrangement for payment of the 
petitioning creditor's debt without being satisfied 
that there were no other creditors of the bank- 
rupts, or that if there were any such, they con- 
sented to the application. Ex parte Parf, 1 Deac. 
77. 433 

A petitioner to annul a fiat, will not be allowed 
copiesof the depositions, before there is an office 
oopy of the affidavit in support of the petition. 
Ex parte Matthew, 2 Mont & Ayr. 73. 433 

Where a fiat has not been filed, the court, on 
an application of another creditor, will not order 
it to be annulled, but merely that the creditor 
may issue a new fiat. Ex parte Gerothwohl, 2 
Deac. & Chit. 48. 433 

Wheie a creditor gave a power oi attorney in 
general terms, but without power to consent to a 
supersedeas, and the signature of the creditor 
himself to such consent was easily attainable : — 
Held, that his own signature ought to be pro- 
cured. In re Sampson, 3 Deac. &> Chit. 196. 432 

A petition to supersede by a creditor, pre- 
sentea a year after the bankrupt has received his 
certificate, cannot be heard, unless the delay be 
accounted for. Ex parte Wyatt, 1 Mont & Ayr. 
400 ; 3 Deac. & Chit. G65. 431 

Where an action has been fairly trt^d. and the 
verdict is against the commission, and the bank- 
rapt is abroad, the fiat may be superseded on Uie 



2366 



[BANKRUPT] 



petition of the petitioning eraditor, though the 
bankrupt has not Borrendered. Ex parte I^olger, 
1 MonL & Ayr. 457. 433 

If an order, npon a petition b^ aaiignees to 
•uperaede an invalid commission, does not, 
through mistake, include the assignees* expenses 
of prosecuting the commission, tte error cannot 
be rectified by a petition of rehearing. £x parte 
Bnrnell, 1 Mont A Ayr. 38. 433 

Qusre, whether the petitioning creditor is 
liable? Id. 

Where a fiat is annulled alter adjudication, for 
an insufficient act of bankruptcy, it is always at 
the costs of the petitioning creditor. £x parte 
Fletcher, 2 Deac. &. Chit 374. 433 

Queie, whether simple contract creditors be 
barred by the statute of limitations after a su- 
persedeas ? £x parte Davy, i Mont.'& Ayr. 3U0. 

434 

On a petition for a supersedeas with consent of 
creditors, where one of the creditors could not be 
found, an order was made for the supersedeas, 
the petitioner undertaking to pay into court the 
amount of the debt of the outstanding creditor. 
£z parte Crowther, 4 Deac. dt Chit. 31. 432 

Semhle, this court has no jurisdiction to order 
the commissioner to oertifjr the consent of ciedi- 
tors to a supersedeas, especially when he objects, 
because fe^ payable under 1 &• 2 Will. 4, c. 56, 
ss. 45, 46, are not paid. In xe Hawker, 4 Deac. 
6l Chit. 569. 432 

On a petition to annul a fiat, on consent, un- 
der 6 Geo. 4, c. 16, ss. 133, 134, the assignees 
must be served. £x parte Race, 2 Mont &, Ayr. 
242. 432 

When the commissioner appoints two moet^ 
ings under 1&2 Will. 4, c. 56, s. 20, the fiat 
cannot be annulled with consent of the creditors 
under 6 Geo. 4, c. 16, ss. 113, 134. till after the 
second meeting. £x parte Boaroman, S Mont 
A Ayr. 2tK). 432 

Supersedeas with consent of nine-tenths allow- 
ed, thoogh the commissioner's certificate did not 
state wnat proportion the creditors assenting 
bore to those who proved. £x parte Hinton, 2 
Mont & Ayr. 361 ; 4 Deac. A Chit 351. 432 

FetfUon for supersedeas with consent of credi- 
tofs ; one dies insolvent after proof, and his exe* 
eutor does not prove his will r — Held, that his 
brother-in-law might sign the consent £x parte 
Leader, 3 Deac. A Chit. 468. 432 

Another creditor becomes bankrupt, and one 
of his assignees is abroad : — Held, that the sig- 
nature of the other assignee was sufficient, with 
an affidavit of the consent of the absent assignee. 
Id. 

Another creditor, who had proved a debt as the 
continuing partner of a firm that dissolved their 
partnerslup, died before his retiring partner : — 
Held, that his executrix might sign the consent 
id. 



XXllL COMMISIIOVK&S. 

TIm eoQrt of Review will in all 



nphold 



the general order of Lord Looghbofoiiffh, whieh 
directs that in country commissions there must 
be inserted the names of two barristers. £x parte 
Kilsby, 2 Deac. ^l Chit 19. 435 

Where a bankrupt has sold goods to a party 
for a price considerably lower than what he gaTe 
for them, the purchaser, when summoned before 
the commissioner for examination, is bound to 
answer the question, "' to whom did you sbbee- 
quently sell these goods ;" for it materially con- 
cerns the estate of the bankrupt to ascertain 
whether the sale by him were bona fide, in re 
Falk, 2 Deac. dt Chit 415. - 437 

A barrister cannot petition to have his nanae 
inserted in a commission. £x parte Ward, 8 
Mont and Ayr. 219, n. 435 

The quorum commissioners named in a fiat, 
are entitled to be summoned. If not summoned, 
the court of Review will interfere. £x parte 
Dongkus 2 Mont and Ayr. 218. 435 

Where the last examination of the bankrupt 
has been adjourned sine die, the court will not 
order the commissioners to appoint a time, unless 
misconduct be charged against them, or the bank- 
rupt can show that serious iniury will accrue. £x 
parte Perkins, 1 Mont and Ayr. 624. 43i 

When there is no charge against commission- 
ers, they need not appear. Id 

If more than the statutable fees are taken by 
the commissioners, they are perpetually disquali- 
fied from acting under any future fiat £x parte 
Carter, 3 Deac. St Chit (>78. 435 

Two travelling foes, for attending two meeting* 
on the same day, under the same iMnkruptcy, are 
beyond the foes allowed by the ttatnte. Id. 

Where both the quorum commissioners are 
unable to attend to open a fiat, the court cannot 
make an order that tjie other three commission- 
ers may open it ; but the proper course is to an- 
nul the fiat, and take out a new one. In re Sut- 
ton, 1 Deac. 43. 435 

Where unfounded charges of corraptioii were 
brought against commissioners by a petitioDer^ 
who appeared to be the to<^ of other parties, the 
court ordered the commissioners their ^'eoets, 
charges, aud expenses," and suspended the order 
untilthe attorney for the petitioner should show 
cause why he should not personally pay the costs. 
£x parte Williams, 3 Deac. dlt Chit 103. 435 

Commissioners of bankrupt have no autho- 
rity to commit an examinant for refusing, upon 
request, to read an entry in a book, laaae v. 
Impey,5M &R. 377. 438 

An examinant being reques t ed by the dOmmie* 
sinners to read an entrjr in a leger, and refosiBg 
to do so, was by them committed, ^ for refiunng 
to answer a quest i on :" — ^Held, that the request to 
read was neither in form nor substance a ques- 
tion ; that the commitment was illegal ; and thai 
an action of trespass against the commissionen 
fiv the imprisonment was maintainable, id. 

A commissioner of bankruptcy sitting alone, 
under 1 & 2 Will. 4, c 56, s. 7, has nopewer to 
fine or imprieoiifor a eo nH uy t . Rex «. Iwkaerf 



[BANKRUPT] 



S967 



1 Ottl0,SlO;l C. Bf. AR.625;3Moiit&Ayr. 
311. See 6 & 6 Will. 4, c. 2», ■. 25. 436 

Semble, that he is not liable to an action for 
any thing done by him as commissioner. Id. 

The court has a general jurisdiction to enters 
tain questions on thelegaiit^f of a comroitroent by 
oommissioneis npon petition without habeas 
eorpns, and witnont the warrant of commit- 
ment 6einK before it : especially where the objec- 
tions to the committal would not appear on tlie 
ftoeof the warrant — Dubit. Sir J. Cross as to the 
prodnction of the warrant. £x parte Jones, 4 
Deae. A Chit. 536 ; 2 Mont. A Ayr. 41. 428 

Qo»re. whether the court has any iurisdiction 
to issue the writ of habeas corpus ? Id. 

An application to be discharged from custody, 
on the ground of the insufficiency of the commis- 
sioner s warrant, must be by petition. Ex parte 
Jones, 1 Moat. &. Ayr. 704. 438 

A recital on a warrant that the party was ^* sus- 
pected to have obtained part of the bankrupt's 
goods by means of fictitious aales, " is not ob- 
jectionable. £x parte Bardwell, 1 Mont & Ayr. 
200. 439 

The warrant need not set out the precise an- 
swers with which the commissioners were dis- 
satisfied, id 

On habeas corpus, the party may object that a 
qnestton was illegal, though he did not object 
when before the commissioner. Id. 

A party regularly committed by a commis- 
sioner to the messenger, and subsequently irre- 
golarly committed by the nubdivision court, is 
not, on a discharge under habeas corpus, re- 
onnded to the custody of the messenger. i!lz parte 
BardweB, 1 Mont & Ayr. 214. 439 



XXIV. Solicitor. 

The court of Review will not depart from the 
general mle, that the solicitor to the commission 
shall not be allowed to purchase any part of the 
faMikmpt's property. £x parte Farley, 3 Deac. 
& Chit. 110. 440 

The solicitor to the 6at cannot have leave to 
bid at a sale of the bankrupt's property unless 
under Tevy peculiar eircumstanoes. Ex parte 
Brown, 3 Mont & Ayr. 29 ; S. C. nom. £z 
parte Towne, 4 Deac. A Chit 519. 440 

There is jurisdiction in the court of Review to 
laach an/ part of the estate in the hands of the 
Botteitor to the fiat. Ex|iarte Benham, 2 Mont. & 
Ayr.SdO; 3 Deao 96. 440 

On an agieement for dissolution of partner- 
ship between two solicitors, the remaining part- 
ner sgieed to pay the partnership debti. The 
aaagnees, knowing this agreement, continued to 
employ the lemainmg partner : — Held, the court 
would not, on the application of the assignees, 
interfeie to charge the outgoing partner. A pe- 
tition for this purpose must be served on the 
eoDtinning partner. £x partp Gould, 2 Mont. 
k Ayr. 4?; 4 Deac. A Chit. 547. 440 

The s»lieit0r to the fiat mnst bear any expense 
vttch iuM neglect would cause the estate. Ex 



parte Bennett, 2 Mont. A Ayr. 306; 1 Deaeon, 
70, 440 

In 1825, an assignment from the provisional 
assignee to the asiiignees was prepared, but, 
through neglect of the solicitor, never execu- 
ted. The provisional assignment was ordered 
to be vacated, and a new assignment executed by 
the commissioners. It seems, the 25th section 
of 1 & 2 Will. 4, c. 56, does not apply to such a 
case. Id. 

The solicitor having been paid for the assign- 
ment must refund. Id. 

Independently of the provisions in the acts of 
parliament, the court of Review has a general 
jurisdiction to refer the bill of any solicitor of 
that court for taxation. Ex parte Copeland, 
A Deac. A Chit 86. 440 

Where the petitioning 'creditor's bill, after 
being taxed by commissioners, had been paid, 
and the assignee's accounts had been audited for 
the space of six years, the court refused to order 
a re-taxation of it by the registrar. Ex parte 
Cristy, 4 Deac. A Chit 414. 440 

It is a matter of course for any creditor who 
has proved to the amount of 20L, to iy>ply with- 
in a reasonable time, under the 14th section of 
6 Geo. 4, e. 16. for a re-taxation of any bill of 
the solicitor to tne commission, but not where a 
period of three years has been suffered to el^MO 
after payment of such bill. Id. 

But where the creditor applies to the general 
jurisdiction of the court, and points out objec- 
tionable items, the court will then refer the bill 
to its proper officer to review the former taxation. 
Id. 

Where, however, a bill baa been already taxed 
by the proper officer of the court in which the 
business has been done, the court of Review will 
not in such case, disturb the taxation. Id. 

What are objectionable items in the solicitor's 
bill for business connected with the meetings of 
the commissioners. See Id. 

Where an assignee applies to have a soficitor'a 
bill taxed, for business done before the choice of 
assignees, which is not included in the bill taxed 
by the commissioners, the petition should state 
the nature of the business, and when it was done» 
and the proceeding should also be in court Ex 
parte Cass, 4 Deac. A Chit. 273. 440 

The costs of proceedings in the court of Re- 
view, under a London fiat, are to be deputed to 
the deputy registrar for taxation ; the duty of the 
commissioner being merely to tax the petitioning 
creditor's costs and the costs of the assignees. 
Ex parte Reay, 2 Deac. A Chit. 586. 440 

Where an order has been made for the taxation 
of the solicitor's bill of costs, semble, that a sub^ 
sequent petition for the costs of the taxation can- 
not be heard until the master has made his certifi- 
cate, nor unless the original petition is also set 
down in the paper. Ex parte Elsee, 2 Deac. A 
Chit. 332. 440 

An assignee was removed and ordered to ac- 
count; pending that order, the new assignees 
petitioned fbr the tazatkm of the bill of the loU- 



S368 



[BANKRUPT] 



oiton employed by the diaehftrged tMipiee, and 
that they mifrht be ordered to accoant ror money 
charged to have been improperly received by 
them with the privity of the former assignee : — 
Held, that the pietition was premature, during the 
pendency of the former order ; but the court of 
Aeview retained it, under the circumstances, 
until the result of the pending account was 
known. £x parte Carter, 2 Dene. &Chit.626. 440 

Although the solicitor's bill has been paid, yet 
it will be ordered to be taxed on application of 
the assiflrnees, without any special reason being 
assigned for the taxation. £x parte Pickering, 
2 Deac. & Chit 387. 440 

On a petition by creditors, to tax the bills of 
several solicitors who had been successively em- 
ployed by the assignees, the court made the 
order as prayed, notwithstanding the bills had 
been previously taxed by the commissioners, and 
paid by the assignees. \£x parte Brown, 3 Deac. 
4k Chit. 496. 440 

Solicitor's bills, though allowed by the com 
missioners and paid by the assignees, were or> 
dered to be taxed, where objectionable items were 
pointed oat. £x parte Jooraain, 3 Deac. &. Chit. 
637. 440 

Afler a solicitor's bill has been long paid, it 
cannot be taxed without special reasons. Ex 
parte Hutchinson, S Mont. & Ayr. 35 ; 3 Deac. 
A Chit. 829 ; 4 Deae. dk Chit. 530. 440 

A. A B. sued out a commission as solicitors to 
the petitioning creditors, and the assignees after- 
wards appointed C. to act as solicitor ; but it was 
agreed between him and A. A B., with the pri- 
vity 4^ the assignees, that all three should jointly 
act as solicitors and share the profits, and the 
assignees afterwards recognised the acting of A. 
db JS. as such joint solicitors : — Held, Ist, tnat this 
amounted to a retainer by the assignees, of A. &^ 
B. as joint solicitors with C; 2ndly, that the 
court o! review had jurisdiction, on the petition 
of A. & B. (C. having been served with it,) to 
enforce the pavment, by the assignees, of the 
•olicitor's bill of costs. £x parte C^tes, 3 Deac. 
db Chit GSSS ; 1 Mont. St Ayr. 398. 440 

Where the solicitors to the commission re- 
oeived the amount of their bill of costs, which 
had been bona fide incurred for defending a 
suit in Chancery brought against the assiffnees ; 
and the m^or part of the creditors, and the offi- 
cial assignees applied for an order on the soli- 
citors to refund tne amount, on the ground that 
the commissioner had certified that the suit was 
improvidenUy defended, and that he had dis- 
allowed the amount of the costs in the assignee's 
accounts ; the petition was dismissed with costs, 
except as against the official assignee. £x parte 
Benham, 1 Deac. 26; 2 Mont A Ayr. 280. 

440 

Where the amount of a bill appears on the 
ftee of it to be exceasive, objectionable items need 
not be pointed out, on the api^ieation by a credi- 
tor to have it taxed. £x pute Copeland, 4 Deao. 
db Chit 86. 440 

A motion may be made that the registrar may 
review his certificate of taxation of oosts. Ex 
parte Richardson, 1 Mont db Ayr. 377. 440 



A petition may be necessary to oppoee or 
amend it Id. 

Non payment df the taxed costs into court is 
not a preliminary objection to the motion. Id. 

It is not necessary to obtain leave to except to 
the registrar's certificate of taxation. Ex parte 
Crockwell, 1 Mont A Ayr. 379, n. 440 

Where several bills are taxed, the one-sixth is 
calculated on the aggregate amount. Ex parte 
Barrett, 1 Mont & Ayr. 447. 440 

The court of Review can order the bill of oosts 
subsequent to the choice of assignees to be paid, 
though the assignees have no assets in their 
hands. £x parte Coates, 1 Mont, db Ayr. 328 ; 3 
Deac. & Chit 626. 442 

Anon. Buck, 475 ; overruled, semble. Id. 

Creditors ma^r petition to tax the solicitor s 
bill, though paid, the assignees having been 
guilty of dereliction of duty in not filing the billa 
with the proceedings. Ex parte CasUe, 1 Mont. 
& Ayr. 665. 440 



XXV. Mesbxvger. 

In an action brought by a messenger against a 
sole assignee of a commission of iwnkruptcy, 
under 6 Ueo. 4, c. 16, for the costi of advertisinur 
a meeting of the Creditors, and for the hire of 
the room in which the meeting^ was held : — Held 
that it was not necessary for him to prove an em- 
ployment by the assignee, nor any express re- 
cognition of'^him as messenger, as the fact of his 
having acted as a messenger and of the expensea 
incurred must have been known to the assignee. 
Hamber «. Purser, 2 C. d^ M. 209 ; 4 Tyr. 41. 443 

After the lapse of Ave years a nieasenger's bill 
cannot be taxed without a charge of fraud lately 
discovered. Ex parte Willment, 1 Mont, and 
Ayr. 45 ; 3 Deac. db Chit 364. 443 



XXVI. Evidence ih BAirKRDPrcr. 

D^tUions.] — In a case within the 92nd sec- 
tion of the Bankrupt Act, (6 Greo. 4, c. 16), where 
the assignees went into evidence of the trading 
in consequence of a notice to dispute, without 
adverting to the section or relying upon the de- 
positions, and, having failed to establirii the 
trading, were nonsuited: the court refused to set 
the nonsuit aside. Johnson v. Piper, 8 Nev. and 
M.672. 446 

Depositions taken before commissioners of 
bankruptcy, and inrolled by the assignees accord- 
ing to 6 dto. 4, c. 16, s. 96, are not evidence 
against them in an action brou^t to dispute the 
commission, by disproving the act of bankruptcjr 
on which it is founded. Chambers v. Bernasconi 
(in error), 1 C. M. and R. 347; 4 Tyr. 531. 446 

In all actions by assignees of a bankrupt, which 
the bankrupt himself might have maintained, if 
no bankruptcy had occurred, the depooitkma 
taken before the commissioners are conclusive 
evidence of the trading, &c., although at the time 
of bankruptcy the cause of action may not have 
been complete. Kitchener v. Power, 4 Nev. A M. 
710 ; 3 Adol. A Ellis, 232; 1 Har. db WoU. 174. 

446 



[BANKRUPT] 



2869 



And the question, whether the action » of such 
a nature, mnst he decided hj a reference to the 
ftets of the case, (which the judse may collect 
from the opening of the plaintiff^ counsel), and 
not from a strict reference to the cause of action 
appearing on the-record. Id. 

A bankrupt sold goods before his bankruptcj 
to the defendant for cash, but after the j were de- 
livered, the defendant refused to pay for them, 
and claimed to set off against the value the 
amount of some remaining acceptances of the 
bankrupt in his hands. The assignees . treating 
the purchase as a fraud, sued the defendant in 
trover, alleging the conversion to be after the 
bankruptcy. Notice to dispute the act of bank- 
ruptcy, and petitioning creditor's debt having 
been given: — Held, that the depositions were 
ooaclnsive evidence of these fiusts. Id. 

In an action by the assignees of A., where the 
petitioning creditors are the assignees of B., the 
proceedings under B.'s commission are not 
evidence, under 6 €reo. 4, c. 16, s. 92, of the bank- 
raptcy of B. Muskett e. Drummond, 5 M. & R. 
210. 446 

Upon a bankrupt's petition to supersede, the 
of the trading and act of bankruptcy 



moat be read in court so as to give him an op- 
poirtonity of answering them. £z parte Laven- 



fkr, 4 Deac. & Chit m. 



446 



In trespass, the defendant, after alleging that 
M. had been declared a bankrupt, and that they 
had been appointed his assignees, justified taking 
goods as belonging to them in their capacity of 
aangiiees ; the plamtiff replied that the goods be- 
looppd to him and not to defendants; — Held, 
that npon this issue it was not incumbent on the 
Meadants to me formal proof of M.'s bank- 
rttptry, and their appointment as assignees. 
Jones V. Bowman, 1 Scoit, 453 : 1 Binir. N. R. 
484 ; 1 Hodges, 33. 446 

^ Semble, that an objection taken by the plain- 
tiff^ aAer the judge has summed up, as to the 
want of evidence of the title of the assignees, 
came loo late. Id. 



Other t&uigs.] — If in trover by the assignee of 
a bankrnpt, the plaintiff's title as assignee be 
pat in iasue; the fiat of bankruptcy mrolled, 
the oertifi<»te of the appointment of the plain- 
tiff as assignee inrolled, and the appointment 
itself (also inrolled) are sufficient proof that the 

flaintiff is assignee. Scott v. Thomas, 6 C. d^^ 
^ 611— Parke. 445 

A written statement, made by a bankrupt be- 
fan hie bankruptcy, of his debts and <;redits, is 
evidence as showing that he knew of his own 
insolvency. Id. 

In trover, brought b^ a bankrupt against his 
sainiees, to try the validity of the commission : 
— ^ffeld, that secondary evidence of the assign- 
■ent might be given, after proving that it was 
lost befbie it was entered of record, as directed 
fayfi Geo.4,c. 16, s.d6, and 2 <&3 WiU.4, c. 114, 
a7. Gilesv. Smith, IC. M. «[.R. 462: 5Tyr. 
15. • 445 

Semble, proof of the plaintiff's acquiescence 



in the defendant's acts as aasigAee, and dealing 
with him in that character would render proofed 
the assignment unnecessary. Id. 

On a petition by^assignees disputing the right 
of a creditor to a lien on certain property of the 
bankrupt, the examination of ttie bankrupt's 
clerk, taken by the commissioners behind the 
creditor's back, is not receivable in evidence. Ex 
parte Dobson, 4 Deac. &. Chit. 69. 444 

On petition by assignees, to expunge a proof, 
the' examination of the bankrupt ^fore the com- 
missioner, taken at the time the proof was ad- 
mitted, is receivable in evidence. Ex parte Free- 
man, 4 Deac. Sl Chit. 404. 444 

In a.suit, by the assignees of an uncertificated 
bankrupt, for the recovery of property fraudu- 
lently delivered by him to the defendants, the 
plaintifis read the examination of one of the de- 
fendants taken before the commissioners on the 
first day, but declined to read the examination 
taken on the second day :~Ruled, that the whole 
must be read. Smith v. Biggs, 5 Sim. 391. 444 

If, on a viva voce examination, witnesses aro 
ordered out of court, the petitioner, being a wit- 
ness, has a right to remain in court. & parte 
Dugard, 2 Mont. & Ayr. 84. 444 

The examinations of the bankrupt and other 
persons before the commisstonen may be read 
m evidence, after notice has been given to the 
other side of the intention to read Uiem, and may 
then in all respects be treated as affidavits. Ex 
parte Crosley, 1 Deacon, 107 ; S. C. nom. Ex 
parte Crosbie, 2 Mont. &, Ayr. 397. 444 

Jfotice to dispute J—The notice of disputing 
the petitioning creditor's debt, the trading, or 
the act of bankruptcy, as required in certain 
cases by sec. 90 of the Bankrupt Act, 6 Geo. 4, 
c. 16, must be given, although under the new 
rules of pleading the denial of the bankruptcy 
may appear upon the record. Moon v. Raphael. 
2 Scott, 489 ; 2 Bing. N. R. 310; 7 C. & P:il5; 
1 Hodges, 289. 447 

In an action bv assignees of a bankrupt* 
for goods sold and delivered by the bankrupt 
before his bankruptcy, the plea denied their title 
as assignees, and a notice to dispute the trading, 
&c. was given, pursuant to 6 Geo. 4, c. 16,8. 
90. Letters from the defendant to one of the 
assignees, and to the solicitor to the commission, 
deprecating proceedings against him, are prima 
facie evidence of the admission of the plain- 
tiff's title to sue as assignees, without tegular 
proof of the bankruptcy. Inglis e. Spence, 1 
C. M. & R. 432 J 5 Tyrf 8. * 447 

fFitnesses.^-^lf a creditor of a bankrupt agree 
to release the estate on an undertaking by one of 
the assignees to pay him what should appear to 
be justhr due, he is a competent witness on the 
part of the assignees. Sinclair v. Stevenson, I 
C. & P. 582 ; 10 Mooie, 46 ; 2 Bing. 514. 449 

In an action by the assignees of a bankrupt, in 
which the bankruptcv is in dispute, a son of the 
bankrupt who was held out as a partner with him, 
but who was in fiict not so, is not a eottpetoni 



!2370 



[BANKRUPT] 



witneM lor the 9migaee§. Holland v. Rc^^es, 7 
C. Sl p. 96— Aldenon. 449 

A. wai examined before commiflaionen of 
bankrupt, and on his re-ezamination he prodoced 
a machine copy of a letter he had sent to R. 
While A. waa before the commiBsionera, Mr. E., 
the solicitor to the aasiffnees, made a copy of the 
machine copy of the fetter produced by A. : — 
Held, that in an action by the aasignees of the 
bankrupt against A., the copy of the letter made 
by Mr. E. was not admissible in evidence against 
A., without reading his examination, although 
notice had been given to A. to produce the ma- 
chine copy. id. 

A party made a composition with his principal 
erediton, paying the smalfer ones in full. He 
afterwards became bankrupt, and did not pay lbs. 
in the pound : — Held, that (having obtained his 
certificate, and released bis surplus) he was a 
competent witness to support an action by hia 
aasignees. RoberU v. Harria, 2 C. M. & R. 2SI2 ; 
i Gale, 231. 449 

On a viva voce examination on a petition to 
anperaede. a creditor ia not a competent witness. 
Ex parte Lavender, 1 Mont. A Ayr. 70S ; 4 Deac. 
db Chit 487. 449 

The drawer of a bill accepted by the bankrupt, 
l>ttt which had been indorsee! over, and which was 
not yet proved against the estate, swore to a de- 
position in aunport of the fiat, stating himself 
therein not to oe a creditor .- — Held, in the ftce of 
that statement, that hia deposition could not be 
lejected on the ground ofhia being a creditor. 
But being subsequently examined viva voce, and 
admitting the facts —Held, that aa he might be 
called on to pay the bill, and vrould have the 
option to prove aeainst the eatate, h% was an in- 
terested party, and therefore not examinable. Id. 

Where a petitioner filed no affidavita in sup- 
port, but two days before the hearing served no- 
tice to examine witneases on the respondent 
twenty miles from London, the court retuaed an 
npplioation of the respondent to postpone the 
hearing till aiVe'r the petitioner's witnesses were 
examined, ao aa to procure witnesses in anawer. 
id. 

XXVHI. Pbactick in Baitkrijptct. 

PrmeUee m Ctmrt of Aeeiew.]— The eonrt of 
Review are reloctant to grant an issue on the 
application of the assignee. Ex parte Patrick, 1 
Mont. & Ayr. a91. 453 

Alter an order to pay within a specified time, 
the next order is to pa^ within lour days or staAd 
committed: this is of course at the office, but 
if cireumstancea render an application to the 
court necessary, notice must be given to the other 
aide. Ex parte Solomons, 1 Mont and Ay. 269, n. 
And aee Ex parte Malachy, 1 Mont and Ayr. 
257. 453 

If an order of committal be aaked, the affida- 
vit must state that the money is still due and 
ewing, and that the party has not paid, nor any 
peraon on hia behalf; but the same strictness is 
not required on any intermediate order. Ex parte 
Mamj» 1 Mont and Ayr. 478. 453 



A previous order of the Vioe-Chanoellor, which 
had been omitted to be drawn up, ordered to be 
entered up nunc pro tunc, if the vice-Chanoellor 
ahould think fit Ex parte Lewia, 3 Deac. 4k 
Chit 198. 453 

A special case sent from a commissioner must 
be brought on upon petition. Ex parte Johnston, 
1 Mont. & Ayr. G22. 453 

A formal objection to a motion is waived by 
the party appearing, and requesting further time 
to oppose. Ex paiie Morland, 3 Ueac. & Chit 
248. 453 

In bankruptcy, the objection of multifiu-ioua- 
neaa ia not conaidered aa concluaive. Ex parte 
Brown, 3 Deac. d& Chit 496 : S. P. Ex parte De- 
vaa, 4 Deac. & Chit 366. 453 

No application can be made in the matter of a 
petition, before an office copy ia taken to the 'affi- 
davit filed in support of it Anon. 4 Deac. &. 
Chit 141. 453 

On an abandoned notice of motion, the ap- 
plication for coats and affidavit of service may 
be on a future day. Ex parte Stone, 2 Mont A 
Ayr. 503. 453 

fiefore a motinn ia made that the peUtioo of 
the bankrupt ibr a auperaedeaa shall be diamian- 
ed, on the ground of hia being out of the juris- 
diction of the court, the reapondent ahould aerve 
the bankrupt's agent with notice of the motion, 
having previously obtained an order that aervioe 
on the agent aliall be good aervioe. Ex parte 
Drake, 3 Deac. dt Chit 284. 453 

A party objecting to the maater'a report ahould 
either present a petition to except to it, or |^e 
notice to the other aide of the nature of the obiec- 
tion. Ex parte MiUard, 3 Deac. A Chit 213. 

453 

Where a warrant is issued againat a bankrupt 
for non compliance with an oraer of the court, 
and the warrant is lost, the court will renew the 
warrant or grant a copy of it, aa a matter of 
course. Ex jHurte Giles, 3 Deac. & Chit 620. 453 

An order of the Lord Chancellor, made in a 
suit brought by the asaigneea, waa, on their ap- 
plication, ordered to be registered in the court of 
Bankruptcy. Ex parte WiUiama, 4 Deac. A Chit 
110. 453 

When all is regular, the four day order to pay. 
Sic. or stand committed, is bf courae at the omoe. 
Ex parte Smith, 2 Mont &. Ayr. 213. 453 

Order for four daya' order, towards commit- 
ment, must be prayed by petition, not motion ; 
and certificate of registrar of the nonconformity 
should be dated the very day of the application 
for the abort order. Ex parte Myers, 4 Deac & 
Chit. 579. 453 

Order for committal for diaobedience to order 
to pay into court will not be stayed under any 
circumstances, unless party haa paid the ra<»iey 
in, or is ready to do so. Ex parte Birkett, 4 
Deac. A Chit. 503. 453 

Application for warrant of commitment for 
diaobedience of a four-day order is ex parte, and 
quite of course. Ex parte Hunt 4 Deac. A Chit. 
500. 453 



[BANKRUPT] 



2371 



The court will not irnie an attachment in the 
long Tacation. unleaa there is fear of the partj 
abaconding. Jd. 

Where an application is made to reecind an 
order, on the ground of irreffularitj, the party 
ought to state in his notice of motion what the 
irregularity is. In re Walker, 1 Deac. 88; 2 
Mont. & Ajr. 267. 453 

Qn»re, whether such an application should 
not be made by petition ? Id. 

Signahare and JHtesUUion of Petition.] — An ob- 
jection to the attestation of a petition is not 
raatainable after an order has been already 
made upon it. £z parte Tanner, 2 Deac. & 
Chit. 563. 454 

Where such an objection is taken to the attest- 
ation of a petition for a supersedeas, it mar be 
amended instanter ; but not if the petition is to 
stay a certificate. Id. 

Wlieie an attestation was in the following 
form, »* Signed by the petitioners, A. B.and C. 
D., in the presence of T. S., actloj^ as solicitor 
for A. T., solicitor for the petitioners in this 
matter,'* and it appeared that A. T. was not a 
a<dicitor of the court : semble, nevertheless, that 
the attestation was good, the petitioners haying 
appeared by counsel. Id. 

It is no objection to a petition, that the official 
Bssiraee has signed it, his signature being merely 
sur^usage. £x parte Belcher, 2 Deac. dtChit. 
507. 454 

A special order had been obtained for an agent 
of the petitioner, who was abroad, to sign the pe- 
tition on her behalf :— Held, that this might be 
done under the general order of the 12th August, 
1809; and the special order was therefore dis- 
charged with coats. Ex parte Moore, 2 Deac. <& 
Chit. 369. 454 

A petition of assignees is informal, if signed 
by only one. Ex parte White, 3 Deac. & Chit. 
366. 454 

Semble, that such strictness is not now re- 
quired as formerly, with respect to the attestation 
of a petition by toe solicitor. Id. 

A li bellous handbill, published by the bank- 
rupt, against the assignees and the solicitor to 
the conimission, is not a sufficient ground for 
discharging an order which allowed the bankrupt 
to netition m forma pauperis. £z barte Morland, 
3 Deac. & Chit. 248. 454 

If there be four assignees, and a petition to 
stay the certificate be presented by three, stating 
themselyes to be '* three of the assignees," but 
the attestation is bad as to two, the petition may 
be heard as the petition of the one. £z parte 
Bum, 2MQnt & Ayr. 483 ; 3 Deac. 194. 454 

The signature of one of three assignees to a 
petition was attested by the solicitor, who pre- 
sented the petition under the word *' witness," 
without stating him to be solicitor in the matter of 
the petition : — Held a sufficient attestation. Id. 

AguUml,1 — ^Tbe office of affidavits is to explain 
allegations of the petition, and cannot supply the 

Vol. 'IV. 13 



want thereof. Ex parte Wyatt, 1 Mont db Ayr. 
408. 456 

Where affidavits in support of a petition aita 
yery yoluminous, the court of Review will give 
the respondent time to answer them, upon pay- 
ment of costs, although the petition is in the 
paper for hearing, and twelve days have elapsed 
since the affidavits were filed. £z parte Wil- 
liamson, 2 Deac. & Chit. 317. 455 

On a petition by creditors to supersede, on the 
ground of firaudment collusion between the pe- 
titioning creditor and the bankrupt, the bank- 
rupt's affidavit detailing the particulars, of fraud 
is admissible in evidence. £z parte Amsby, 3 
Deac. (t Chit 10. 456 

Where affidavits are referred to the registrar 
for scandal, and one of the parties means to ex- 
cept to' his report, the exceptions must be taken 
immediately the registrar certifies. £x parte 
Williams, 2 Deac & Chit. 382. 455 

An affidavit, though not filed, may be read, 
upon an undertaking to file it Ex parte Bakerj 
2 Deac. Sl Chit 36U 455 

All affidavits filed are considered as read, on 
the question of costs. Ex parte tiucas, 1 Mont. 
d& Ayr. 405. 455 

An affidavit, after being filed, cannot be with- 
drawn so as to prevent the other side from mak* 
ing use of it, on the hearing of the petition. Ex 
pute t|abrey, 3 Deac. Sl Chit 232. 455 

On the hearing of exceptions to the Master's 
report, those affidavits only in support of or 
against the original petition can be read which 
were used in evidence before the Master. Ex 
parte Orylls, 2 Deac. A Chit. 290. 456 

An affidavit sworn before the petition is filed 
cannot be read, but the petition will stand over 
to have it resworn. Ex parte Taylor, 2 Mont & 
Ayr. 36. « 455 

It is an objection to the hearing of a petition, 
that the affidavits in support of it were sworn 
before the petition was presented ) but the court 
will sometimes discountenance such an objection 
by allowing the petitioner to reswear his affidavits, 
and ordering the petition to stand over for that 

Surpose, and also by refusing the costs of the 
ay to the respondent £x parte Brown, 3 Deac. 
6l Chit 496. 455 

The motion to confirm a report as to scandal in 
affidavits, is a motion of course. Ex parte Hethe- 
rington, 4 Deac. &, Chit. 223. 455 

It is no dejection that an affidavit is sworn 
before a Master in Chancery. Id. 

Contrary to Ex parte Pelham, (Mont. 211), 
held, that any party may apply to refer affidavits 
for scandal, and that the application need not be 
by the party scandalized, id. 

Affidavits are referred for scandal on a motion 
of course. Id.* 

Fonn.l — A petition to stay the certificate, and 
to prove, was presented : — Held, 1st, that it need 
not state that the petitioner is a creditor ; 2ndy 
that it need not state when the debt was reacted ; 
3rd, that it need not state what debt was rejected. 



2372 



[BANKRUPT] 



Ez jMTte Rabinion, 1 Mont Sl Ayr. 705 ; 4 0eac. 
A Chit. 499. 454 

In order to fix the executor of the petitioning 
creditor with covts, the petitioner must pray costs 
against him in his character of executor. Ex 
parte Harwood, 3 Deac. and Chit. 261. 454 

Multifariousness is not a sufficient cause for the 
absolute dismissal of a petition : aliter where the 
defect is want of proper parties. Ex parte Devas, 
4 Deac. and Chit. 366 : ^. F. Ex parte Brown, 3 
Deac. and Chit. 496. 454 

It is no objection to a petition to tax a solici- 
tor's bill, that it contains allegations reflecting 
on the conduct of the solicitor : for if such alle- 
gations are improper, they may be referred for 
scandal. Ex parte Wells, 1 Deac. 69. 454 

Who may Petition.'] — Assignees did not prove 
a debt, owing to their becoming bankrupt, under 
another commission. The bankrupt is a creditor, 
who may petition to supersede the other commis- 
sion if his assignees do not interfere. Ex parte 
Taylor, 2 Mont. & Ayr. 36. 454 

In cases of fraudulent fiats the court will not 
dismiss a petition to supersede, on a preliminary 
objection that the petitioner is not a creditor. 
Ex parte Taylor, 2 Mont, and Ayr. 37. But see 
Ex parte Jarman, 2 Mont, and Ayr. 119 ; 4 Deac. 
and Chit. 393. 454 

Service of Petition.} — The court of Review re- 
fused to make an order, that service of a petition 
against an attorney, for an order to pay certain 
costs for which he had been declared liable, by 
leaving a copy at his chambers, should be deem- 
ed iFOod service. In re Sandys, 3 Deao. and Ch. 
34. 456 

The petition of an equitable mortgagee must 
be served upon the assignees ; service on the so- 
licitor is irregular. Ex parte Cooks, 3 Deac. and 
Chit. 24. 456 

The court of Review directed special service of 
a petition to annul a fiat, where the petitioning 
creditor was not to be met with. Ex parte Pep- 
pin, 2 Deac. and Chit 361 : S. P. In re Sell, 
2 Deac. and Chit. 333. 456 

Where a petition is permitted to stand over to 
enable the petitioner to be prepared with an affi- 
davit of service, the respondent must have notice 
of the day when the petition is to be brought on. 
Ex parte Mucklow, 3 Deao. and Chit 25. 456 

A petition to be heard on a particular day 
should be placed at the head of the paper of that 
day. Id. 

It seems that a party may depose viva voce to 
having been served. Ex parte TuU, 1 Mont, and 
Ayr. 225. 4b6 

The court of Review will not advance a neti- 
tion not yet served. Ex parte Harding, 1 Mont 
and Ayr. 115. 456 

If the sole assignee be a creditor, and sign the 
consent to a supersedeas, he need not be served 
with the petition. Ez parte Ramsay, 1 Mont, 
and Ayr. 708. 456 

Semble, that the rule, that a bankrupt cannot 
waive the necessity of personal service of a peti- 



tion to stay his oertificale, does not apply when 
a professional person is interposed. Ex parte 
Hetherington, 1 Mont 6l Ayr. 607; 4 Deac. A 
Chit2l£ 456 

Where, on a petition to stay the certificate, the 
bankrupt's solicitor requests delay, and under- 
takes to serve the petition on the bankrupt, the 
latter cannot afterwards have the petition called 
on, out of turn, to be dismissed for want of per- 
sonal service, according to Ex parte Moore, 1 61. 
A J. 253; and Ex parte Brenchly, 1 Mont A 
Gregg. 161. Id. 

A petition cannot be advanced before it is 
served. Ex parte Matthew, 2 Mont Sc Ayr. 74. 

456 



The affidavit, on a motion for substituted 
vice, must state that the party wilfully keeps out 
of the way to avoid service, and is not to be fi>npd. 
Ex parte Biandy, 2 Mont A Ayr. 24 ; 4 Deac. A 
Chit 518. 456 

Semble, that service, substituted by order, is 
tantamount to personal service eo nomme. Id. 

If a fiat is impounded on the application of A., 
a petition for its delivery out, presented by B^ 
must be served on A. Ex parte Martin, 2 Mont. 
& Ayr. 293. 456 

The service of a petition to dismiss a petitiom 
for taxation of costs, need not be personal ; seem 
the order for payment of the costs. Ex parte 
Stephens, 2 Mont A Ayr. 482. 456 

When a petition stands over by arrangement, 
an affidavit of service is not necessary. Ex parte 
Ward, 2 Mont dt Ayr. 391 ; 1 Deac. 86. 456 

A petition to supersede need not be perwnally 
served on assignees. Ex parte Hanks, 2 Mont. 
& Ayr. 383. 456 

When a petition is not served within the pro- 
per time, it must be reanswered. Id. 

If the time has not elapsed, it may be enlarged. 
Id. 

When a petition has been half heard, it cannot 
be amended, on payment merely of the commoa 
costs of the day. £x parte Tunrile, 3 Deae. ik 
Chit 346. 466 

The respondent not appearing when a petition 
was called on for hearing, the petitioner took such 
order as he could abide by. The cburt refused 
the application of the respondent, on a subse* 
quent day, to restore the petition to the paper, 
where the only cause assigned for the respon- 
dent's non-appearance was, that his agent had 
overlooked the entry of the petition on the fi>rmer 
occasion. InreWilks, 3Deac.&ChK.338. 456 

Thfe court will not reanswer a petition for a 
more distant day, because the respondent has not 
been served four days before his attendance on it 
is required. Ex parte Bicknell, 3 Deac. and Ch. 
551. 456 

A party is not entitled to an order on his peti- 
tion, on the default of the respondent's appear- 
ance, if he is not prepa^ed with an affidavit of 
the service of the petition, notwithstanding the 
respondent has given an undertaking to appear. 
Ex parte Kirkaldy, 4 Deac. A Chit 52. 456 



[BANKRUPT] 



2373 



A petitioiier, claiming a portion of the bank- 
rapt's property, has no right to call for the pro- 
dnetton of a caae atated by the assignees for 
coonaera opinion, for the purpose of showing that 
the bankrupt has prevaricated in his statements. 
Ex parte CoUier, 4 Deac A Chit. 364. 456 



Hmmg of Peeitum.]— The objection that the 
petitioner is not a creditor is not strictly prelimi- 
nary. Ex parte Wyatt, 1 Mont. & Ayr. 406 ; 3 
Deae. A Chit. 665. 456 

A petition to except a report is heard beibre 
a petition to confirm it, notwithstanding the lat- 
ter petition stands first in the paper. £x parte 
Cox, 3 I>eac. & Chit. 1 1. 457 

The petition must specify the exceptions. Id. 

The master should not draw conclusions of law, 
but leave the legal result to the court of Review. 
Id. 

Qusare whether the court of Review has power 
tD hear a case in private, if they think a public 
hearing will be detrimental to the interests of jus- 
tioe .>ln re Chamben, 2 Deac. & Chit 395. 457 

Where a petition stands over to have a viva 
voce examination, that side begins with whom 
the affirmative hes. Ex parte Daly, 1 Mont. ^ 
Ayr. 304. 457 

A petition will not be answered nunc pro tunc 
where affidavits have been sworn. £x parte Feake, 
1 MonL db Ayr. 309. 457 

The court of Review will allow a petition to be 
restored to the paper, when it appears that throuffh 
mistake, &c. the parties were ignorant that the 
petition was coming on. Ex parte Thompson, 
1 Mont & Ayr. 326. 457 

Where a petition is in the paper for hearing on 
Moaday, and the respondent only files his amda- 
tiIb on the previous Saturday, the petitioner is 
entitled to an order for time to answer them. Ex 
pvte Gkkddiah, 2 Deac. & Chit 331. 457 

Nctioe must be given of a motion for time to 
anawer an affidavit unless the motion is made 
vfaes the petition is called on. Ex parte Binns, 
3 Deae. db Chit. 189 : S. P. Ex parte Grazebrook, 
3 Deac. dk Chit 199. 457 

On an application to adjourn the hearing of a 
petition, lor the purpose of answering affioavits 
bed in opposition, tne court will first hear the 
petition and affidavits read. Ex parte Crouch, 3 
beac. dk Chit 17. 457 

The eonrt of Review will not order a petition 
to aland over, to enable a respondent to file affida- 
Tita in rejoinder, without first hearing the affida- 
Tits in reply read, to see whether they require an 
r. Ex parte Todd, 3 Deac. db Chit 57. 457 



Wheie a pvty on the hearing of a petition, 
ikfi use or an affidavit to prove his case, the 
eoort of Review will not, because the affidavit does 
not go tur enough for his purpose, adjourn the 
hearing oi the petition to a future day, to enable 
him to exaokine the deponent viva voce, unless 
the other pnrtj consents to such adjournment; 
ftr the deponent ought to have been in attend- 
ance if it w** likely that his personal examina- 



tion would be necessary. Ex parte Dickenson, 2 
Deac. & Chit. 520. 457 

Semble, that when a petitioner obtains a con- 
ditional order of the court of Review, he is bound 
to prosecute such order, under peril of paying 
costs to the other party. Ex parte Austin, 2 Deac. 
& Chit. 384. 457 

Where a petitioner, the respondent not appear- 
ing, takes such order as he can abide by, the other 
side may open the order at any time within six 
months. Ex parte Thompson, 1 Mont. & Ayr. 325. 

457 

An official assignee not served appeared: — 
Held, if the commissioner actually directed him 
to appear, he might take his costs out of the es- 
tate ; secus, if only leave were given. Ex parte 
Patrick, 1 Mont. &. Ayr. 393. 457 

Where a petition stands over to serve a neces- 
sary party, costs of the day are not of course. Ex 
parte Thompson, 1 Mont &> Ayr. 312. 457 

If a petition, to confirm a report, stands in the 
paper before a petition excepting to it, the coun- 
sel for the first petition has a right to begin by 
stating the facts of his petition, before the coun- 
sel for the second petition proceeds to state and 
argue the exceptions. Ex parte Morley, 2 Deac. 
& Chit 506. 457 

To support an objection to the hearing of a pe- 
I tition, on the ground of the costs not having been 
paid by the petitioner, as directed by a former 
order, there must have been a personal demand 
of the costs. Ex parte Wyatt, 3 Deac. & Chit 
665. 457 

The bankrupt's petition to supersede, for want 
of the requisites, cannot be heard till he has sur- 
rendered, though he be living in America. Ex 
parte Kirknian, 1 Mont 6l Ayr. 709. • 457 

If affidavits have been filed on both sides, the 
court will read them in the first instance. Ex 
parte Dugard, 2 Mont. Sl Ayr. 26 ; 4 Deac. Hi Chit. 
524. 457 

A petition is not to stand over to answer affida- 
vits when there is laches. Ex parte Sidebottom, 
2 Mont. & Ayr. 79. 457. 

An application for a petition to stand over 
should be made the day before the petition ap- 
pears in the paper. Ex parte Telfourd, 2 Mont, 
and Ayr. 389. 457 

Where no sufficient advantage will be gained 
by a viva voce examination, the court wiu not, 
alter a petition has been opened, and the peti- 
tioner has filed affidavits in reply, order the peti- 
tion to stand over, on his application for that pur- 
pose. Ex parte Jarman, 4 i)eac. 6i Chit. 393; 2 
Mont &, Aji, 119. 457 

Viva voce ExamauOifm^'^Axi application to 
examine viva voce, should be made before the 
petition is heard on affidavit. Ex parte Baldwin, 
1 Mont, db Ayr. 617« Ex parte Armsby, 2 Deac. 
d^ Chit 120 y and Anon. 2 Deac. & Chit. 140, cor- 
rected. 457 

Upon a prima facie case, a viva voce examina- 
tion was ordered, and the advertisement of adju- 
dication postponed. Ez parte Lavender, 4 Deac. 
&, Chit 486. 457 



2374 



[BANKRUPT] 



In ipraera], the court will not ^nt a TivaVoce 
eximination after heariii|r a petition on affidaTits ; 
bat this rale is not inflexible. The partj is not 
estopped bj not applying before the hearing. Ex 
parte Thompson, U Mont. & Ayr. 40 ; 4 Deac. 4b. 
Chit. 534 ; Ex parte Baldwin, corrected. 475 

If both parties aeree, a yiya voce examina- 
tion is of coarse ; if Uiey do not, the pytv asking 
must show cause. £z parte Dugard, f Mont &. 
Ayr. 27 ; 4 Deac. &. Chit. 524. 457 

If a vivia voce examination be desired by the 
petitioner, he should state facts on his petition to 
show the necessity, and make a preliminary ap- 
plication. Id. 



Appeal and Rehearing.'] — The court of Review 
has no jurisdiction to dispense with the signature 
of the petitioner to a petition of appeal under the 
1 & 2 Will. 4, c. 56, s. 32, the Lord Chancellor 
being the proper authority to apply to for that 
parpose. £x parte Robinson, 2 Deiao. & Chit. 583. 

458 

Semble, that the period of a month, limited by 
the statute for presenting the petition of appeal, 
cannot be extended. Id. 

The court vill i^ot vary the minutes of an or- 
der, on the application of persons not parties to or 
bound by it. Ex parte De Begnis, 1 Mont A Ayr. 
879. 468 

An appeal to the Lord Chancellor from the 
court of Keyiew does not lie where the point de- 
termined is a mere matter of fact ; but only where 
it involves a matter of law or equity, or is con- 
nected with the refusal or admission of eyidence. 
Ez parte Hinton, 2 Deac. db Chit 407. 458 

Therefore, where the question is merely whe- 
ther a party is or is not a trader, this is not the 
■abject of an appeal. Id. 

It is not discretionary in the court of Review 
to gnmt a special case, where a party is entitled 
to an appeal ; but he has a right to it if his facts 
are properly stated. Id. 

An appeal pending is not a sufficient ground 
for staying ''proceeding, more especialy when it 
18 plain that the appeal is brought for the purpose 
of delay. Id. 

• The Lord Chancellor has still a substantiye 
control in cases of supersedeas, or annulling a 
fiat, although the question may not come before 
him by way of appeal. £x parte Keys, 3 Deac. 
A Cfalt 2ra ; 1 Mont. & Ayr. 226. 458 

Whether the matter appealed against be one of 
law or foct, the Lord I'hanceUor will not deter- 
mine before he hears the petition through. Id. 

The order to hear an appeal on petition is ex 
parte. Id. 

Quere, if the court of Review can entertain a 
pe^itioB o£ appeal from the rejection by the com- 
missioner of a proof of debt db a question offset ? 
£z parte Turner, 1 Mont. A Ayr. 357, confirming 
£x parte Turner, 1 Mont. &, Ayr. 54. 45S 

An objection that the court of Reyiew had no 
jurisdiction cannet be taken on apptil, if not 
taken below. Id. I 



An application for a rehearing most be by pe- 
tition, and not by motion. Ez parts Canninff- 
ham, 3 Deac. & Chit 70. 4& 

Where a petition for rehearing states new facts, 
it should be in the nature of a supplemental peti- 
tion ; and the original petition should be set down 
for hearing at the same time. Id. 

On a petition for a rehearing, the party who 
presents such petition opens the case. Id. 

On an appeal in bankruptcy, the appellant's 
counsel are entitled to open tlie case. Ex parte 
Belcher, 3 Deac. & Chit 87. 458 

A petition cannot be heard to varf a former 
order merely as to costs ; more especially when 
that order was made a twelvemonth ago, and was 
drawn up by the very parties who apply to vary 
it. Ez parte Burnell, 2 Deac. & Chit. 640. 458 

Although six months is the time limited by the 
court of Review for presenting a petition for re- 
bearing, semble, that under special circumstan- 
ces, it may be dispensed with, Ez parte White, 
2 Deac. A Chit 334. 458 

The rule that no petition for rehearing is al- 
lowed for costs only, does not apply (come sem- 
ble) to a petition for a rehearing on the ground of 
an erroneous decision on the merits, although the 
material defect of such decision may be to render 
the party liable for costs. Id. 

Where an order made in bankruptcy reserves 
further directions and costs, a subsequent appli- 
cation to the court of Review as to the costa 
merely may be entertained by motion ', but if it 
is by way of further direction, it must be by peti- 
tion. Ez parte Bhadbolt, 2 Deac. & Chit 2B6, 

458 

The solicitor for the respondents ought to haye 
notice »f such an application, as weU as the re- 
spondents themselves. Id. 

It is th^ practice in bankruptcy for the petition 
for a rehearing and the petition itself to eome en 
at the same time. Ez parte Thompson, 1 Mont 
A Ayr. 326. 458 

A petition of rehearing in bankruptcy is not 
limited to siz months. Ez parte Greenwood, 1 
Mont. & Ayr. 65 ; 3 Deac. A Chit. 398. 458 

A petition for rehearing need not state the 
ground upon which the rehearing is sought Id. 

The court will not order a petitioner residing 
out of its jurisdiction to give security for, or pay 
into court, a sum of money which ne had been 
declared enti^d to by a previous order, merely 
because the respondent intends to appeal against 
the order, if there is no probability or a di&rent 
decision on the appeal. Ez parte Davidson, 3 
Deac. & Chit 447. 458 

The rehearing of a former petition may be 
broc^t on, on a petition for rehearing it, with- 
out m>taining a preyious order for the rebeariiur 
Ex parte Thompson, 3 Deac. & Chit 612. 458 

The court will not vary the minutes of a former 
order, which has been pronounced maie than 
three months, ezcept on a petition fiw lehearii^. 
Ez parte Wilson, 4 Deac. dt Chit 157. , 458 



[BANKRUPT] 



S87fi 



Wbsre ft party wmbes an eaieiitial alteration 
to be made in the jadgmentof the court, as pro- 
nounced on a former hearing,.he must not apply 
to amend the minutes of the order, but must pe- 
tition for a rehearing. £x parte Soper, 3 Deac. 
& Chit. 275, 569 ; 2 Mont. & Ayr. 58. 458 

The general rule is, that a petition may be 
reheard on newly discovered facts. £z parte 
Lavender, 2 Mont. & Ayr. 117 ; 4 Deac. & Chit. 
497. 358 

But a petition for a supersedeas, or to stay the 
certificate, cannot be reheard on new evidence. 
Id. 



Snedal Cage.] — It is imperative on the judges 
nit tne conrt of Keview to sign a special case. Ex 
parte Turner, 1 Mont, ik, Ayr. 368. And see Ex 
parte Hawley, 3 Deac. & Chit. 234. 458 

Every special case of appeal from the court uf 
Review, tendered for the approval of the judges, 
rittll be left for that purpose at the office of the 
registFar, signed by counsel for the respective 
parties, or accompanied with a certificate from 
the oonnoel for the appellant, that there is, in 
their Jodgment, good cause for such appeal, and 
an affidavit that a copy of such case has been de- 
livered to the solicitor for the otiier party eight 
dajs prior to such tender thereof General Oroer, 
Court of Review, May 22, 1833, 2 Deac. & Chit. 
€32 ; 1 Mont &, Ayr. 749. 458 

On an appeal from the court of Review, on a 
special case, the Chancellor will not at the hear- 
ing permit the appellant to present a petition for 
Ul^rty to proceed ** otherwise," for the purpose 
of rectifying an error in the settlement of the 
special case. Ex parte Low, 1 Mont. &. Ayr. 

i». ik 

The determination of the judge is final as to 
the settlement of it. Id. 

The Great Seal will not make an order, that an 
appeal from the court of Review shall be brought 
OB by petition, instead of a special case, merely on 
the ground that the matters of law and fiict are 
of a complicated nature, or that the affidavits 

are Tolaminous. £x parte , 1 Deac. 75. 

458 

Where a party obtains an order of the Lord 
ClnxioeJlor to haur an appeal on petition, instead 
ef en a special case, and the order is improperly 
-"-^--ed, the respondent must move to set it 
and not wait to make his objection to the 
of the proceeding until the petition is called 
on for hearing. £x parte Keys, 3 Deac. &, Chit. 
963 ; 1 Mont. &. Ajt. 22& 458 

After a special case has once been certified by 
the chief judge, the court has no jurisdiction to 
ffiaallev it Ex parte Hawley, 3 Deac. & Chit. 

458 



Gorff .7*-Cb8t8 of preparing a special case form 

Crt of the costs of appeal to the Lord Chancel- 
, and should be taxed by the officer in Chan- 
tery. The eovrt intimated its opinion to that 
dmtt aeeoffdingir to rach officer. £z parte Haw- 
ley, 4 0Me. db Ckit 57SJ ; S. P. Ez parte Rich- 
iidi, 2 Mont. 4t Ayr. 59. 456 



Costs ordered against bankrupt may be set 
off against those ordered in his favor. Id. 

Where the commisioners expunged a proof, 
on the application of the assignees, and the cre- 
ditor aflerwards succeeded on a petition to have 
it restored, the court save him the costs of the 
petition, as well as of me proceedings before the 
commissioners; making it an exception to the 
general rule, that costs are not given against the 
decision of the commissioners. £z parte Brooks, 
4 Deac. &. Chit 209 ; 2 Mont i& Ayr. 78. 45d 

On a petition to surrender, where there is no 
wilful default, costs come out of the estate. £z 
paite Smith, 2 Mont. &. Ayr. 302. 458 

Where a party petitions against the decision 
of the commissioners, and an action is directed to 
be brought, the result of which is in his favor, 
he is not entitled to the costs of the petition, but 
only to the costs of the action. £x parte Mil- 
lington, 3 Deac. & Chit 307. 458 

An attachment for nonpayment of costs is of 
course, after disregard of ie four-day order, but, 
unless ex necessitate, will not be issued in vaca- 
tion. Ex parte Hunt, 2 Mont & Ayr. 18. 458 

An order of committal lor non-payment of 
costs, under which the party is committed, will 
not be suspended on the ^ound of an appeal, 
unless the costs are paid into court. £x parte 
Fox, 2 Mont <& Ayr. 18. 453 

In oases of scandal, the costs are as between 
solicitor and client. £x parte Porter, 2 Mont 
& Ayr. 220. 453 

The rule, of not allowing costs to a party ap- 
pealing against the judgment of the commis- 
sioners, will be relaxed in fiivor of a petitioner, 
establishing a clear and indisputable right of 
proof which the commissioners have i^ected. 
£x parte Hooper, 3 Deac. & Chit b55. 458 

Though an affidavit, alleged to be impertinent,, 
is not read, it will be included in the order for 
costs by the registrar, unless ordered to be ex- 
cluded at the hearing. £x parte Barrinirton 2 
Mont & Ayr. 72. ^ *^ 4^ 

All affidavits are considered as read on the 
subject of costs. Id. 

In cases of frand, ooets may be rranted, though 
not preyed. £z parte Taylor, 8 Mont. A Ayr. 
^' 4Q8i 

When a petition is dismissed with costs, the 
court will not limit the payment of the costs 
merely as to the affidavits that were read on the 
hearing of the petition ; for, in general, all affi- 
davits filed are entered as read. £x parte Lucas 
3 Deac. <fe Chit. 664. 45^ 

Where the respondent takes a formal objection 
to a petition, for want of parties, and the petition 
is for this cause ordered to stand over ; the costs 
of the day are in the discretion of the court. Ex 
parte Thompson, 3 Deao. A Chit 612. 458 

When an order is made on the hearing of a 
petition that the party shall pay the costs, this in- 
cludes the costs of an affidavit filed by the other 
party, although it was not read on the hearing of 
the petition. Ez parte Sidebotham, 4 Deac. A 
iChitl4L 453 



2376 



[BANKRUPT— BASTARD] 



Where petitionen come Tohmtaiilj before the 
court, to enforce an illegal order nuule by a com* 
miasioner, they will not be protected by auch 
order from having their petition diamiaaed with 
coata. Ez parte benham, 1 Deac. 96 ; 2 Mont. 
& Ayr. 272. 458 



XXIX. Progkedihgs. 

The aolicitor ia bound to deliver up the pro- 
eeedinga to a fireah aolicitor appointed by the aur- 
yiving aaaignee, without waiting until a fresh 
aaaignee is chosen in the room of the one who is 
dead. Ex parte Ackroyd, 3 Deac. dit Chit. 21 . 460 

The court of ReFiew made an order on the 
aolicitor to the commisaion to deliver up the pro- 
ceedinga, and pay over the monies to the aaaignees. 
Ez parte Hudson, 2 Deac. Hl Chit. 507. 460 

The aolicitor was allowed to take affidavits off 
the file to attend the trial of an action therewith, 
undertaking to return them in the aame atate. 
£z parte Whalley, 1 Mont. 6c Ayr. 634. 460 

If the two aaaignees sign a joint order on the 
solicitor to deliver up the proceedinga, the court 
will enforce it, though one aubseqnently virtually 
countermand the order.' Ez parte Grazebrook, 2 
Mont. &, Ayr. 53, n. 459 

Where the majority of the aaignees wiah the 
proceedinga to be in the hands of a particular 
aolicitor, me order ia of courae for their delivery 
accordingly, unless groaa misconduct be charged, 
and a cross petition for removal, or an injunction. 
Ex parte Halford, 2 Mont. ^ Ayr. 52; 4 Deac. 
4& Chit 271. 459 

Under the 6 Geo. 4, c. 16, s. 96, the court have 
a general povrer upon petition, to direct the pro- 
ceedinga to be entered of record. Ex parte Thomas, 
3 Deac. 6l Chit. 292. 458 

A notice to produce the procedinga must be 
served on the asaigneea, not on the bankrupt. 
Ex parte Daly, 4 Deac. & Chit. 364. 459 



BARRISTER. 

The right of practising, pleading, and audience, 
in the court of Common Pleaa, during term time, 
upon and ftomthe first day of Trinity term, 1834, 
ceased to be exerciaed excluaively by the Ser- 
jeants at law, and from that day Kmg'a counsel 
and all other barriaters at law, according to 
their respective ranka and seniority, have and 
exeroisea equal right and privilege of practis- 
ing, pleading, and audience, in 8ie saia court 
of Common Pleaa at Weatminster, with the ser- 
jeanta at htw. King's warrant, 25th April, 1634. 

460 

A mandamus doea not lie to compel a party 
who has been elected principal of an inn of 
Chancery to attend before the benchera of the 
inn of court to which such inn of Chancery is 
attached, for the purpose of enabling such bench- 
ers to decide upon the validity or his election, 
unless it be shown that the benchers of such inn 
of court have on some former occasion exercised 
such jurisdiction in invitum. Rex v. AUen. 3 
Nev. A M. 184 ; 4 B. &; Adol. 964. m 



It was agreed that the trial of an indietment 
at the sessions should be postponed, the defen- 
dant agreeing to pay the coeta of the day. The 
costs were taxed ; and at the subsequent sessions, 
the counsel for the prosecution asked if there 
was any objection to the amount The defen- 
dants counsel said there was not, except as to 
\l. 95. The attorney for the prosecution said be 
would give up that sum, and the defendant's atr 
torney said he would five a check for the reaidoe. 
Afler this, the defendant was applied to for pay- 
ment, and he said his attorney, who reoeivea his 
rents, would arrange it : — Held, that the indone- 
ment on the brief was an agreement, and, also, 
that on this evidence the pUintiff could recover 
the amount of the taxed costs, minus \l. 9s. on 
the count upon the account stated. Porter v. 
Cooper, IC. M. ^ R.387; 6 C. &.?. 354; 4 
Tyr. 456. 461 

Barristers, under the degree of the coif, are, as 
well as Serjeants, competent to sign pleas in the 
court of C. P. Powers. Ixod, 1 Ring. N. R. 304. 

461 

Whether, in a civil case, if a party conduct his 
own cause and examine the witneases, he can be 
allowed to have assistance of counsel to argoe 
points of law : — Quaare, but semble that he can- 
not Moscati V. Lawson, 7 C. & P. 32— Alder- 
son. 461 

The court will not interfere in questions arising 
upon the practice of retainer, fiaylis v. Grout, 3 
Myhie & K. 316. 461 

A motion for an injunction to restrain a parti- 
cular counsel, who had acted for the defendants, 
from acting, at a subsequent atajra of the pro- 
ceedinjgs, on behalf of the plaintiffs, from whom 
he haa received a retainer, was refused. Id. 

Semble, no affidavit is necessary to substantiate 
between counsel what terms were offered or ac- 
cepted by them on the hearing of a cause. Ig- 
gulden v. Terson, 2 Dowl. P. C. 277 ; 4 Tyr. 309. 

461 



BASTARD. 

Access is such access as affords an opportunity 
of sexual intercourse ; and where there is evidenoe 
of sjich acceas between a husband and wife within 
a period capable of raising the legal presumption 
aa to the legitimacy of an afVer bom child, the 
court will not direct an issue upon evidenoe 
showinjg[ the continued adulterous intercourse of 
the wife with another man, and the improbability 
of the husband being the father, but will declare 
the legitimacy of the child. Bury v, PhiUpot, 2 
Mylne & K*. 349. 461 

At the trial of an issue on a queation of legiti- 
macy, a witness was called to prove a fact, show* 
ing that there might have been access between a 
husband and wife at a particular place and time. 
This witness had not been examined in a suit in 
the Ecclesiastical Court, to which the mother of 
the child whose legitimacy was disputed wma 
a party, and in which his evidence would have 
been material to her ; nor was any attempt made 
by her in that suit to establish the case or access, 
which his testimony went to make out The 



[BASTARD— BILLS AND NOTES] 



3377 



Intiinony of this witness was a surprise upon the 
party against whom it was produced, and its ac- 
curacy being impeached by affidaviUi, the court 
directed a new trial of the issue. Gibbs v. Hooper, 
2Myliie&.K.353. 461 

To giye jurisdiction to magistrates to make an 
ofder of affiliation, under 18 Kliz. c. 3, s. 2, it is 
necessary that it should be for the relief of a 
pariah in which the illegitimate child was born, 
mmd to which it is chargeable. Rex v. Wilson, 4 
Ney. & M. 343 ; 2 Adol. & £Ilis, 230. 462 

Where an order of affiliation, in which the 
birth of an illegitimate child is alleged to have 
taken place in A., is confirmed by an order of 
sessions, subject to a case in which the birth is 
stated to have occurred in B., to which the puta- 
trre ftiher had firaudulentlv removed the mother, 
who was settled in A.: — Held that Uie order is 
bad on the ffround (inter alia) that it contains a 
recital of a raise fact Id. 

By the 4 & 5 Will. 4, c. 76, s. 57, the putative 
frtberof a bastard child born before the passing of 
the act, whose mother is married to another person, 
is no longer liable to an order of justices for the 
mainlenanee of such child, at least while the 
hmkand is of ability to nuuntain it. Lang v. 
Sftoetj 1 Mees. 4k Wels. 129. 462 

Semble, that the 4 & 5 Will. 4, c. 76, s. 57, 

r crated as a repeal of the 18 Eliz. c. 3, s. 2, 
49 Geo. 3» c. 68. Id. 

At the time of making an order of bastardy, 
the msffistratps' clerk delivered an order in a 
ect form to 



the parish officers, but delivered 
to the reputed father an order in which the mo- 
ther was ordered to pay l^. 6d. weekly, instead 
of the father; but, at the same time, the magis- 
trate told the reputed father that he must pay Is. 
6d. per week, and the parish officers afterwards 
served him with a copy of the order in their 
po ssessi on; — Held, that as the parish officers 
were the proper [Mirties to have the custody of 
the tirder of bastardy, the one delivered to them 
amst be deemed the original, and the defective 
order to the fkther onlv a ** notice thereof," under 
18 Eliz. c. 3, s. 12, the defect in which might 
be cored by the statement of the magistrate at 
the tiaoe of making the order, or by a subsequent 
S S I w ic e of a correct copy of the valid order ; and 
that tbe father was not justified in refusing to 
pay the arrears of the mamtenance. Wilkins v. 
Wright, 3 C. & M. 191 ; 3 Tjt. 824. 463 

A warrant of commitment for neglecting and 
refusing to pay a sum awarded by an order of 
maintenance, under 43 Geo. 3, c. 68, s. 3, must 
show clearly all that is required by the statute to 
give the magistrate authority to commit; and 
therelbre such commitment is bad where it omits 
to stale that there was a complaint on oath by 
one of the overseers of the parish liable to main- 
tain the ehild^ an adjudication by tbe magistrate, 
that al the time of the commitment a sum was 
due and unpaid, that the party charged was 
called upon ror his defence, and that he did not 
show any reasonable or sufficient cause for not 
jnying. Id. 



filiation was unappealed against, or that it was 
appealed against and confirmed. Id. 

A notice of an intended application to the ses- 
sions, under 4 & 5 Will. 4, c. 76, s. 73, for an 
order on the putative father of a bastard child, 
must be given under the hands of the overseers 
or guardians ; it lies upon them to show that pro- 
per notice was given, and the objection is not 
waived, though the father appears at the sessions, 
and takes an objection to its being the next ses- 
sions, and does not produce the original notice 
served upon him. Rex v. Carnarvonshire (Jus- 
tices), 5 Nev. & M. 361 ; 1 Har. & Wol. 324. 

464 

When a bastard child becomes chargeable a 
month before the Epiphany sessions, an applica- 
tion for an order to charge the putative father is 
not too late at the Easter sessions, semble. Id. 

A bastardy bond conditioned for the payment of 
the charges incurred "by reason of the birth, edu- 
cation, and maintenance of a bastard child," 
cannot be enforced after the bastard has attained 
21 and ceased to be chargeable, though he may 
afterwards become chargeable again. Wandley 
0. Smith, 2 C. M. &. R. 716. 4^ 



BILLS OF EXCHANGE AND PROMIS- 
SORY NOTES. 

Parties. ]r— A, and B. sign a formal promissory 
note, by which they promise, " as churchwardens 
and overseers," to pay to C. or order a sum of 
money, with interest ; which sum was in fact the 
amount of a loan made by C. for the use of the 
parish. A. and B. are personally liable upon 
such note. Crew v. Petit, 3 Nev. &. M. 456 ; 
S. C. nom. Rew v. Pettet, 1 Adol. & Ellis, 196. 

469 

The cases enumerated by 3 & 4 Anne, c. 9, s. 
1 , in which promissory notes signed by an agent 
cannot be assigned, are instauoes only . Dicken- 
son V. Teague, 4 Tyr. 450. 469 

A bill was drawn on the consignees of a cargo 
of cools shipped to R. by a broker at N., who 
had effected the purchase there. That bill was 
returned to the payee, the coal-owner, unac- 
cepted, on acciiunt of the date being too short. 
The broker having directed the payees to piepaie 
another bill at a longer date, they did so, and 
sent it to his counting-house in N. for his signap* 
ture. The broker had, in the mean time, len N. 
in pecuniarv embarrassment ; and his brother, the 
defendant, had come to the counting-house to in- 
vestigate bis affairs. The defendant, in the ab- 
sence of his brother, and at the request and for 
the convenience of the plaintiffs, signed the bill 
they had prepared, without qualification of his , 
liability :~-Hetd, that he was personally liable. 
Sowerby v. Butcher, 2 C. ds M. 368 ; 4 Tyr. 320. 

469 

Where, in an action on a bill of exchange by 
an indorsee, it is pleaded by the acceptor that tfaie 
drawer is a married woman, the plaintiflT may 
show in his replication that she drew and indorsed 



the bill with the authority of her husband, with- 
Semble, it shonld abo show that the order of ^ out its being deemed a departure. Prinos v. 



9am 



[BILLS OF EXCHANGE] 



Brvnatte, 3Dowl. P. C.38S; 1 Scott, 342; 1 
fiing. N. R. 465. 470 

A promiuorj note^ made payable to a woman 

who is married at the time of the making, 

paaaea by the indorsement of the husband alone 

Jmxmg the coverture. Mason v, Morgan, 2 Adol. 

4k £Uis, 30 ; 4 Nev. & M. 46. 470 



Form and Operatwn.] — A note whereby a party 
promises *' to pay or cause to be paid 13(tf.' is a 
promiesory note, and may be declared on as such, 
•ad does not require an agreement stamp. Lovell 
V. HUl, 6 C. & P. 238— Gumey. 471 

**I promise to pay to M. A. D. or bearer, on 
demand, 162. at sight, by giving up clothes and 
papers, Ac •,'* was sued on as a promissory note : 
— Held, that if the jury thought that the clothes 
Ac, had been previously given up by the payee 
to the maker, it was a good promissory note, as 
the words in that case would only import the 
▼alue received. Dixon v, Nuttall, I C M. k R. 
307 ; 6 C. & P. 320 ; 4 Tyr. 1013. . 471 

Held, also, that no action was maintainable 
without a presentment at sight Id. 

When a note is payable fourteen days afler 
•date, and is not deposited as a collateral security, 
nor is the consideration disputed, no parol testi- 
mony is admissible to prove any agreement that 
it was not to be paid if a verdict was obtained in 
an action thetk pending between other parties ; for 
that would be to contradict a written contract by 
parol evidence. Foster v. Jolly, 1 C. M. & R. 
703 'y 5 Tyr. 239 : S. C. nom. Foster v. Sibley, 1 
Oale, 10. 471 

An instrument was made, wherebjr the de- 
fendants promised to pay to the plaintiffs, or 
order, a sum certain by instalments ; but it was 
thereby declared, ** that it was thereby considered 
and fully intended by the receiver, as well as the 
giver of that note of'^hand, that all installed pay- 
ments thereupon whatsoever, from and tmme- 
<]iately after tne decease of the plaintiff, should 
ceasd and become null and void to all intents and 
purposes, against the executors, &c." A declara- 
tion described the instrument as an agreement 
or instrument in writing: — Held, that a plea that 
the defendants did not make the said supposed pro- 
missory note in the declaration mentioned, was 
bad on special demurrer. Worley v. Harrison, 5 
Ncv. & M. 173; 1 Har. & Wol. 426. 472 

Such an instrument is not a promissory note, 
being payable only on a contingency. Id. 

Form of Bote. Bolton v. Dogdale, 4 B. & Adol. 
619; 1 Nev. ek M. 412. 473 

The court refused to set aside a demurrer un- 
der the late rule, as being frivolous, the cause of 
demurrer being, that, in debt on a promissory 
note, it did not appear that the words ** value 
teoeived*' were in the note. Creswell e. Crisp, 2 
0owl. P.C.635; 2C.M.&R.634; 4Tyr.991. 

474 



him into the handa of B., his sc^citor, who hid 
it put on mortgage, and the deeds were deposited 
with A, Interest being in arrear, and A. pressing 
for payment, B. gave a promissory note, payable 
three months afler date, to A. for the amount of 
principal and interest ; and it was agreed, at the 
time of giving the note, that A. should deliver up 
the dee(U to B., and should hold the note till tlie 
sale of the mortgaged premises should be com- 
pleted. When the note became due, A. sued B. 
upon it, though the deeds had not been delivered 
up, or the sale of the mort^ged premises been 
completed. The judge left it to the jury to aay 
whether the note was given on a condition prece- 
dent, that the deeds imould be delivered up: — 
Held, that it ought to have been left to them to 
sav what the consideration of the note waa, and 
wnether it had wholly failed or not Richanla «. 
Thomas, 1 C. M. & R. 772. 473 



A Sam of 4002. belonging to A. waa put by 



On an action coming on to be tried at the 
sizes, an agreement in writing was entered into, 
that the trial should be postponed to the next 
assizes, on the defendant in that action, and the 
now defendant, undertaking to give the plaintiff 
a promissory note payable on demand, by way of 
security, in case the plaintiff should recover a 
verdict against the then defendant, to be given 
up if the plaintiff, the payee, should fail in that 
action. Tlie note was accordingly given, but, 
afler it was signed, a memorandum was indorsed 
upon it, stating that the note was given upon the 
condition mentioned in the agreement: — Held, 
thitt this indorsement was to be considered as 
merely a marking of the note for the purpose of 
identification, and not as an incorporating of the 
agreement, so as to render the note an agreement 
or a conditional promise. Brill v. Cock, 1 Mees. 
<& Wels. 232. 473 

Declaration on a bill of exchange, drawn by 
N. on the defendant, requiring the defendant to 
pay *^ to his order" the sum tnerein mentioned, 
accepted by the defendant, and indorsed by N. to 
the plaintiff: — Held, that the court conld see 
that the word ** his" referred to the drawer ; and 
therefore there was no fatal ambiguity. Spyer v. 
ThelweU, 2 C. M. & R. 692; 4 Dowl. P. C. 509. 

474 

Held, no objection to the validity of a bill of 
exchange, that the acceptance and indorsement 
were written before the bill was drawn, notwith- 
standing the indorsement was made by a stranger 
to the acceptor : — Held also, that the drawer 
having subscribed himself as Tho. Wilson, when 
his name was Thos. Wilson Richardson, was not 
to be esteemed to have' committed a forgery, 
unless it were proved that the omission of his 
surname was for purposes of fraud. Schults v. 
AsUey, 2 Ring. N. R. 544 ; 7 C. & P. 99. 474 

StampJ] — A. joint and several promissory note 
waa made b^r several parties concerned in a joint 
undertaking,' for the purpose of securing the re- 
payment of a loan of money ; and one of the 
parties signed it some days afler the party who 
borrowed the monej : — Held, that the note did 
not require an additional stamp, if the last aig- 
natuie waa put before the money waa advanoea. 



[AND PROMISSORY NOTES] 



2379 



or if the party lut sirning had promiBed to tlign 
the note before the aavancement of the money, 
notwithstanding it might not have been signed 
till afterwards. £z parte White, 2 Deac. <& Chit. 
834, 475 

A promissory note payable to A. B. generally, 
is not one payable to Dearer on demand, and re- 
issaable, within the first class of notes described 
in 55 Geo. 3, c 184, ached, part 1, but a note pay- 
able otherwise than to bearer on demand, (not 
reissuable) within class 2, and therefore such a 
note for 1001. requires a stamp of 3s. 6d. only. 
Clicetam v. Butler, 5 B. & Adol. 837; 2 Ney. &. 
M. 453. 475 

A note for 2002. with a lawful interest reserved 
from a day prior to the date, requires a stamp ap- 
plicable to a note for 2001. only. Wills v. Noott, 
4 Tyr. 726. 475 

In an action on a bill of ezchanffe, a plea that 
the consideration was cash paid by the plaintiffs 
as bankers on drafts made more than 15 miles 
from their place of business, &c. was held bad 
after pleading over, it f containing no allegation 
that the drafSs were payable on demand, or that 
the amoont of any of them was 40s. Greene v. 
Ailday, 1 Gdle, 218. 475 

A promissory note was made for payment of 
SOf. to B. on demand, with lawful mterest till 
payment, for value received: — Held, that this 
was a note of the second class mentioned in 55 
Geo. 3, c. 184, viz. payable otherwise than to 
bearer within two montns afler date, and there- 
fiyre rvqoired only a Is. 6d. stamp. Dixon v. 
Chambers, 1 C. M. &. R. 845; 5 Tyr. 502; 1 
Gale, 14. 475 

Stanop on bills post dated. Williams r. Jar- 
lett, 5 B. & Adol. 32 : S. C. nom. Williamson v. 
GanvU, 2 Nev. &, M. 49. 475 

Made abroad.l — A bill of exchange drawn in 
England upon a person abroad, but accepted 
by liim, payable in England, is an inland bill, 
and requires a stamp as such. Ammer v. Clark, 
2 C. M. & R. 468; 1 Gale, 191. 477 

A set of foreign bills, drawn abroad, was sent 
to the drawee, (who was also the payee), the de- 
fendant, who accepted two parts, and indorsed 
eae to the plaintiff for value, prior to which the 
other had been indorsed by the defendant to his 
father conditionally, but who had never insisted 
oi payment, but gave it up on the substitution 
of other securities : — Held, that the plaintiff was 
entitled to recover, and that the bill did not re- 
qniie a stamp ; held, also, by Lord Tenterden, 
C. i., and Parke, J., (dubitante Littledale, J.), 
that it would have been the same if the first part 
had been indorsed and delivered unconditionally. 
Holdsworth «. Hunter, 5 M. & R. 393. 477 

Mteraium.1 — In an action by the pa^ee against 
the acceptor of a bill of exchange, it appeared 
that the bill had originally been accepted by the 
defendant, payable at his own house in King's 
Rosd, Chelsea; but six weeks after the delivery 
of the bill to the plaintiff, the defendant, at the 
leooett of the plaintiff, altered the description, 

Vol. IV. 14 



by makng it payable " at Bland's, Great Surrey 
Street, Blackfnars :" — Held, that this alteration 
was immaterial. Walter v. Cubley, 2 C. & M. 
151 ; 4 Tyr. 87. 479 

In an action by the indorsee against the ac- 
ceptor of a bill of exchange, the bill appeared, on 
inspection, to have been altered in amount, and 
after the acceptance were the words '' at Cock- 
burn's," which were not in the defendant's hand- 
writing. Neither the plaintiff nor defendant 
gave evidence as to when or by whom the alter- 
ations were made: — Held, that it was for the 
jury to say, under the circumstances, whether 
the bill had been altered after acceptance, and 
that, if they thought it had, the plaintiff could not 
recover. Taylor v. Mosely, 6 C. ^ P. 273 — 
Lyndhurst. 479 

Where the plaintiff declares on an altered bill 
of exchange, the defendant, on a plea denying 
the acceptance, may show a material alteration 
since he accepted it. Cock v. Coxwell, 2 C. M. & 
R. 291 ; 4 Dowl. P. C. 187 ; 1 Gale, 177. 479 

Where the buyer of floods paid for them by 
his own acceptance, ana after the bill had been 
sccepted, the seller altered the date of it, and 
thereby vitiated it : — Held, that by so doing ha 
did not preclude himself from suing for the ori- 
ginal debt ; and consequently that ke might re- 
cover for the goods sold. Atkinson v. Hawdon, 
4 JVev. 4& M. 409 ; 2 Adol. & Ellis, 626 ; 1 Har. 
A. Wol. 77. 479 

The holder of a bill for 182., which had been 
dishonored, agreed to take 8^ in cash and an- 
other bill for 10/. from the drawer. The drawer 
accordingly drew ^nother bill upon the same 
acceptor for that ainount ; while in the hand of 
the drawer, the acceptor, without the knowledge 
of the drawer, altered the date and vitiated the 
bill :— Held, that the latter bill being a nullity, 
the first was not discharoed, and that the drawer 
was liable upon it. Sloman v. Cox, 1 G. M. & R. 
471 ; 5 Tyr. 174. 479 

Transfer. 1 — A., the drawer of a bill, gaye it to 
B., unindorsed, to present it for payment. B. 
did so, and got it noted. Afterwards A. indorsed 
the bill, and gave it to B. to obtain payment : — 
Held, thatv wis indorsement was sumcient to 
enable B. to recover in an action against the ac- 
ceptor, notwithstanding A. said, upon the trial, 
that B. was indebted to him, and that he did not 
give him any authority to bring the action. 
Adams v. Oakes, 6 C. £i P. 70— Gumey. 480 

The right of action upon a bill of exchange, 
accepted for value, may be transferred by m- 
dorsement without value, as by way of gift. Hey- 
don V. Thompson, 3 Nev. &, M. 319; 1 Adol. &, 
£lli8, 210. 480 

In an action by B., indorsee, against C, ac- 
ceptor, C. pleads that the acceptance was obtain- 
ed firom him without consideration by the fraud of 
A., the drawer, and the bill was indorsed to B. 
without consideration and with notice of the fraud, 
and of the want of consideration, as between A. 
and C. Semble, that B. may reply, merely tra- 
versing the firaud. Id. 



[BILLS OF EXCHANGE] 



I^ however, B. Mwly uri^g a difl^rtnt bill, 
leoepted generally, and tlie defendant pleads as 
befoie, omitting the statement of the original 
want of consideration, a replication to such plea, 
merely traversing the fraud, is sufficient. Id. 

The defendant, the indorsee of a promissory 
note, which was not negotiable by reason of its not 
being payable to order, indorsed it to the plaintiff 
in payment for goods ; the plaintiff neglected to 
present the note when it became due, and it re- 
mained unpaid:— Held,that the plaintiff could,not- 
withstanding, recover the price of the goods sold 
from the derendant, as the note not being origin- 
ally negotiable, the plaintiff had not been gmlty 
of laches in not pre8entin|[ it, and the transfer did 
not amount to a new makmg, for want of a stamp. 
Plimley v. Westlcy, 2 Bing. N. R. 249; 2 Scott, 
433; 1 Hodges.^. ^ 480 

The payee of a bill of exchange indorsed it 
specially to the plaintiffs, and immediately afVer 
the special indorsement the defendant indorsed 
the bill, and then the plaintiffs indorsed it :— Held, 
that the defendant's mdorsement was an equiva- 
lent to a new drawing by the defendant, and that 
be was liable to be sued upon the bill by the 
plamtiffs :— Held, also, that a fresh stamp was not 
necessary. Penny t>. Innes, 1 C. M. & R. 439 ; 
6Tyr. 107. 460 

As by the law of France an indofMment in 
blank does not transfer any property in a bill, 
the holder of a bill drawn in that country, and 
indorsed there in blank, cannot lecover against 
the acceptor in the courts of this counttr. Trim- 
bey V. Vighier, 1 Bing. N. R. 151 ; 4 M. & Scott, 
695;6C.AP.25. 481 

The indorsee of an over-due bill or note, is 
aiRcted by all equities attaching to the bill or 
note ; but not by a set-ofi; which would have been 
available against the indorsor. Borough v. Moss, 
5M.&R.296. . 481 

To assumpsit on a bill of exchange by indorsee 
against drawers, it was pleaded that the bill was 
drawn by a partner, but not for partnership pur- 
poses, and was indorsed to the plaintiff afler it 
became due. The replication was, that it was 
not indorsed afler it became due, but was indorsed 
to and taken and received by the plaintiff before 
it became due .—Held, that it was sufficient for 
the plaintiff to put in the bill, and not necessary 
that he should give any evidence to show that the 
bill was indorsed to him before it became due. 
Parkin v. Moon, 7 C & P. 408— Aldereon. 481 

Semble, that the old estalished rule of law, 
*^ that the holder of bills of exohan^ indorsed 
in blank, or other negc^able securities transfer- 
rable by delivery, can give a title which he does 
not himself possess to a person taking them bona 
fide for value,'* is not to be qualified by treating 
it as essential that the person should take «ihem 
with due care and caution, but that the person 
taking them bona fide for value, has a good title, 
though he take theoi without care or caution, ex- 
cept so far as the want of such care and caution 
may affect the bona fides and honesty of the 
transaction. Foster v, Pearson, 1 C. M. & R. 
849; 6Tyr.255. 481 



The pkiBtiff being drawer and pty«e of a M 
of exchange, handed it to H. to get it disooiinied. 
H. offered it ton that purpose to the defenduit, 
stating that it was not his, but plaintifT's bUl. 
Defendant refused to discount it unless indorsed 
by H. H. said that he had no interest in it, but 
to facilitate its being cashed he would indorse it. 
He did indorse it, upon which defendant took the 
bill, paid H. only & P^rt of its amount, and got it 
discounted by one G. The plaintiff was obliged 
to take it up at its maturity, and sued the deftn- 
dant on it for the balance unpaid to H. A ver- 
dict for defendant was set aside as against the 
evidence, and a new trial was awarded to try the 
question^ whether the plaintiff was the real owner 
of the bill at the time it was indorsed, and not 
whether or not he had at that time been repre- 
sented to be so by H. fiastable 9. Pools, 1 C. 
M. & R. 411 ; 5 Tyr. 111. 483 

A bill of exchange was indorsed by the ptyeo 
to the Manchester and Liverpool District Bank* 
ing Company, who indorsed it, and added to their 
indorsement the following memorandum, — ** In 
need, S. P. & Co." After several other indorse- 
ments, the bill was indorsed in blank to the bank 
of Liverpool, who indorsed it in blank to the 
plaintiff, who indorsed it specially—^ Pay Mesna. 
Temey & Farley or order," who indoned it in 
blank by writing thereon-*^ Thomas Temey db 
Faielly." Afber passing throogb several other 
hands; the bill when due was <raiy presented al 
S. A. dk Co., London, bankers, woers it waa 
made payable by the acceptance, and was die* 
honored, the answer being '^ no advioe." Oa 
the same day it was presented at 8. P. A Go.'a| 
London, bankers, where it Was by the said mem* 
orandum to be paid in case of need. S. P. A Co. 
refused to pay it solely on the ground of the 
irregularity of Terney Ik. Parley's indorsement 
The custom of London bankers was admitted to 
be to refuse all bills, even their own acoeptanoes, 
where there is a letter wrong in any indorsement. 
The bill was returned wiu due notice to the 
plaintiff, who gave due notice of dishonor to 
the Liverpool bank. At the Liverpool bank the 
irregularity was pointed out to the plainti^ who^ 
by ueir recommendation sent the bill to Temey 
& Farley, who lived in Ireland, to reetifV tlie 
mistake, and the bill, with the proper inootse- 
ment on it, was then sent up to London, and 
again presented at 8. P. & Od.'s, who then re- 
fused to pay it as being out of time : — Held, that 
the bank of Liverpool were liable to the plain* 
tiff on the bill. Leonard e. Wilson, 3 C. dk M. 
589; 41^.415. 488 

Where a bill of exchange has been negotiated 
by means of a forgery of the name of m poyco 
as indorsor, a court of equity will restrain eveo 
a bona fide holder of the bill from suing the ai>> 
ceptor, and will direct the forged instrument to 
be delivered up to be cancelled. Esdailev; La 
Nauze, 1 T. & Col. 394. 483 

Where the original indorsement of the payee'* 
name on a bill of exchange is a fbrvery, a real 
indorsement by the payee afler the bill has ar- 
rived at maturity, will not give the holder ai^ 
tiUe. Id. 



[AND PROMISSORY NOTES] 



3881 



I.]— It m tbe legolar uid usiial ooarte 
of botuBCM in eonuneroial tnuisactiooB to deliver 
o«i a bill of emhan^, kft for acoepUnce to any 
pcfMia who mentions Uie amount, and deicnbes 
lay private mark npon it ; and if tlw clerk of the 
party leaving it, bv hia conduct enables a stran- 
ger to discover the mark or number, in oonae- 
QQence of which the bill is delivered out to him, 
the party leaving it cannot maintain trover for 
the biU against the part^ who so delivered it out. 
Bloffriaon «. Buchanan, b C. & P. 18 — Littl. 466 

The eirenmstanees of fraud stated in the plea 
being, that the defendant wrote his name and a 
qoaliSed acceptance on a blank piece of stamped 
paper, and delivered it to the drawer for the pur- 
pose of his drawing thereon a bill payable at 
nine months; but that the drawer mrew upon 
SDch paper a bill payable at six months: the 
court held, that' a replication, merely denying 
that the defendant wrote his name or a qualified 
aeeeptaaoe on a blank piece of stamped paper, in 
manner and form, &c., sufficiently put in issue 
the whole fraud. Ueydon v. Thompson, 3 Nev. 
& M. 319. 487 

In aseampait bv the indorsee against the 
aoeepCor of a bill of exchange, if it appear, 
thsfeaie words not in the acceptor's handwrit^ 
ing, makiBig the bill payable at a particular place, 
it m incomoent on the plaintiff to show that the 
written by the acceptor's authority ; 
it seams that the addition of such words is 
srial alteration of a bill since, and notwith- 
slaadiBg the passing of the stot 1 &3 Geo. 4, 
e. 7& l>esbraw v. Weatherley, 6 C. & P. 75&— 
TndaL 489 

In an action by the inddrsee against the ac- 
ceptor of a bill of exchange, it is competent to 
the aeceptor to show that the acceptance was for 
the accommodation of the plaintiff, and that he 
has feeeivcd no consideration from tbe drawer, 
aad tlMLt It was agreed that the bill, when due, 
sheold be taken up by the plaintiff. Thompson 
9. CWbky, 1 Mees. A Wels. 818. 489 

On the presentment for acceptance of certain 
biHa of exchange, the drawee said that he would 
have accepted them if he had funds, (meaning 
the fnad on account of which the bills were 
drawn); that he had not been able to obtain 
tiiose nuids from France ; but that when he did 
sbtaia them he would pajr the bills : — ^Held, that 
this aaKMmted to a conditional acceptance of the 
biOs; and that the defrndant, having snbse- 
^penlly become possessed of the fhnd in ques- 
bsa, was bonnd to pay the bills. Mendixabal v. 
Maehadcs ZU,& Scott, 841; 6 C. & P. 818. 490 

Bj accepting a bill payable to the drawer's or- 
der, drawn and indorsed in a fictitious name, the 
diawee nndertakes to pay to the signature of the 
same person as indorser, who signed as drawer. 
The indorsee of such a bill suing the acceptor, 
may by ctmiparison of the signatures show that 
the drawing and the indorsement are in the same 
hudwriting. Ceoper v. Meyer, 5 M. and R. 387. 

490 

A'as0nfaMn£.1— Presentment of checks. Bod- 
dbston e. Schkncker, 4 B. A Adol. 758 ; 1 Nev. 
luEl.641. 493 



A hanker is not bonnd to pay after bankin|^ 
hours a bill which is accepted payable at his 
house. The ptreaentment in the evening by the 
notary 's clerk is not a presentment for payment. 
Whitaker e. £ngUnd (Bank), 6 C. & P. 700 ; 1 
C. M. 4& R. 744 i 5 Tyr. 268 ; 1 Gale, 54. 493 

Allegation of presentment. Parkes e. Edge, 
1 C. & M. 429; 1 Dowl. P. C. 643; 3 Tyr. 364. 

495 

In an action by an indorsee against the drawer 
of a bill accepted by T. ^ G. at a London bank- 
er's, the declaration did not state the acceptance 
at all, but sUted that it was presented to T. d& 
G. (the drawees) for pavment, and that they re- 
fused to pay. The proof was, presentment of the 
bill at maturity at the clearing house to the 
clerk of the London bankers named in the ac- ^ 
ceptance: — Held, that as the declaration did* 
not sUte the acceptance, the place fixed by the 
acceptors was sufficiently proved, and that the 
London bankers were agente for that purpose to 
the acceptors. Harris v. Packer, 3 Tyr. 370, n. 

495 

In assumpsit on a bill of exchange, drawn 
upon ** P. P., No. 6, Budge Row," and accepted 
by him, an averment that the bill, when due, 
was presented and shown to P. P. for payment, is 
supported by proof that the holder went to 6, 
Budge Row, to present it, but found the house 
shut up, and no one there. Hine v» AllelV, 4 B. 
&. Adol. 624. 495 

A. draws a bill on B. in the country, making 
it payable at the house of C. in London, with- 
out authority from C, and B. acoepte the bill in 
this form, without giving notice to C, or provid- 
ing for the payment of the bill at C.'s house. A. 
negotiates the bill, which, upon becoming due, 
is presented b^ the holder to C, who paid it un- 
der a supposition that the bill so presented was 
another Dill of a different amount and date, 
drawn by B. on and accepted by himself, and 
did not discover his mistake until a fortnight 
afterwards, when the other bill was presented. 
B. becomes bankrupt : — Held, that C. could not 
reoowr against A. in an action for money had 
and received. Davies v. Watson, 2 Nev. Sc M. 
709. 496 

But semble, that if A. himself had received 
payment as holder of the bill, for his misconduct 
m making the bill payable at C.'s house, he 
would have been liable. Id. 

Jfodu qf JHghonor.'] — ^Notice of dishonor by 
letter. Solarte v. Palmer, 1 Bing. N. R. 194 ; 1 
Scott, 1. 499 

The holder of a bill of exchange, falling due, 
and being dishonored after the oankruptoy of 
the drawer, is bound to use due diligence in giv- 
ing notice to the bankrupt or his assignees of 
the dishonor of the bill. Therefore, where the 
banksupt's house continued open in his absence 
after his bankruptey, the messenger being in 
possession during part of the time, and the 
iMmkrupt's wife, or clerk, during the other pe- 
riod of nis absence : — Held, that tbe holder was 
at least bonnd to leave notice at the bankrupt's 
house. £x parte Johnson,^ Deae. A Chit 433; 
1 Mont eb Ayr. 628. 486 



2383 



[BILLS OF EXCHANGE] 



Quere whether he was bound also to seek out 
the bankrupt's assigneea, for the purpoee of giv- 
ing them notice ? Id. 

No such notice, however, is necessary, where 
there are no effects of the drawer in the hands of 
the acceptor, during the currency of the bill. Id. 

The holder of a bill is entitled to avail himself 
of notice of dishonor given bj anj party to the 
bill. Therefore, an indorsee who has indorsed 
over, and is not the holder at the time of the 
maturity and dishonor, may give notice at such 
time to an earlier party, and upon afterwards 
taking up the bill and suing, such party may 
avail himself of such notice. Uhapman v. keane, 
3 Adol. 4& Ellis, 193 ; 4 Nev. dc M. ti07 ; 1 Har. 
A Woll. 165. 498 

• If a notice of dishonor is sent by post on the 
day on which the party is to receive it, the onus 
is on the vendor to prove affirmatively that the 
letter was put in in time to reach the party that 
day accordmgto the course of the post. ix)wler 
V. liendon, 4 Tyr. 1002. 500 

Semble, that the delivery of a letter to the 
bellman is a delivery to the post-office. Pack v. 
Alexander, ^M.^SL Scott, 789. hOO 

Where the house was shut up, notice of dis- 
honor may be given to the drawers on the day 
of such dishonor, as in the case of an actual 
refusal to pay. Hine v. AUely, 4 B. & Adol. 624. 

501 

The holder of a bill received due notice of dis- 
honor, and wrote a letter the same day to the 
indorser, stating the fact, but the letter was not 
received, till the following day : — Held, a suffi- 
cient notice to the indorser. Poole v. Dicas, 1 
Scott, 600 ; 1 Hodges, 162. 501 

It is no defence to an action against an in- 
dorser, that it was commenced before a reason- 
able time had elapsed afler notice of the dishon- 
or; the only remedy the defendant has is to 
apply to the court to stay proceedings on pay- 
ment of costs. Siggers v. L«wis, 2 JJowl. P. C. 
681; 1 C. M. & R. 370; 4 Tyr. 847. 501 

In an action on a bill of exchange by indorsee 
igainat drawer, the only evidence or notice of 
dishonor was a statement made by the defen- 
lant in conversation with a witness, in which he 
laid — ** 1 have several good defences to the action ; 
01 the first place, the letter (containing notice of 
lishonor) was not sent to me in time." This 
statement was lefl tQ the jury as evidence of due 
QOtiee of dishonor: — Held, by Littledale, J., 
Patteson, J., and Coleridge, J., (Lord Denman, 
C. J., diss.), that the jury were not warranted in 
presuming that due notice had been given. 
Braithwaite v. Coleman, 4 Nev. & M.654 ; 1 Har. 
A Woll. 229. 502 

The day after a bill of exchange had been dis- 
honored at L., and before the fact of the dis- 
honor could be known at T., the drawer's "clerk 
called at Y. upon the indorser prior to the holder. 
A conversation took place as to the bill being 
likely to come back, and the clerk said, ** I sup- 
pose there will be no alternative but my taking 
up the bill, and if you will bring it to S. on Tues- 
day, I will pay the money." The indorser did 



not receive either the bill or notice untif soiiie 
days afler the Tuesday, and notice of dishonor 
was not given to the drawer in due time : — Held, 
that the promise did not dispense with giving doe 
notice of the dishonor to the drawer. Pickin r. 
Graham, 1 C. d& M. 725 ; 3 Tyr. 923. 503 

A letter written by the drawer to the holder of 
a bill, six days afler the day on which the drawer 
should have received notice of dishonor, and 
containing ambiguous expressions respecting the 
nonpayment of the bill, was held to be properly 
left to the jury as evidence from which they might 
or might not infer that notice had been given on 
the proper day. Booth v. Jacobs, 3 Nev. dc M. 
351. • 503 



Actums on Bills and J^otes.] — It is no ground 
for discharging a defendant out of custody, that 
the plaintiff was not at the time of the arrest in 
possession of the bill of exchange on which the 
defendant was arrested, and that it was in the 
possession of persons to whom the plaintiff" was 
indebted, and to whom he had indorsed it over, 
if it appears that those persons only^hold the bill 
as trustees for the plaintiff, and are willing to 

give up the bill for the purposes of the suit, 
tone V. Butt,2 Dowl. P. C. 335 ; 2 C. & M. 416. 

513 

In an action on a bill of exchange (by drawer 
s^inst acceptor), in order to rebut the presump- 
tion arising from the plaintiff's possession of the 
bill, that he was tlie holder, the defendant offered 
in evidence a drafl of a declaration delivered in 
the year 1820, in an action on a bill of exchange 
of the same date and amount, and drawn and ac- 
cepted by the same parties, in which action the 
plaintiff and another sued as assignees of a bank- 
rupt : — Held, insufficient to call upon the plain- 
tiff to show bow he became possessed of the biU 
in his individual character. Dabbs v. Humphrey, 
4 M. <& Scott, 285 ; 10 Bing. 446. 513 

To a declaration on certain bills of exchange by 
the indorsees against the acceptors, the &fen- 
danlB, pleaded, first, that the bills were accepted 
for the accommodation of the indorsor, and with- 
out any consideration for the acceptance ; and 
that they were indorsed to the plaintiffs afler 
they became doe : secondly, that the bills were 
indorse afler they became due ; and, that before 
the indorsement, the indorsor was indebted to the 
defendants in a sum of money exceeding the 
amount of the bills : — Held, that the pleas were 
ill, but the court gave the defendants leave to 
amend. Stein e. Yglesias, 1 C. M. Jk. R. 565 ; 3 
Dowl. P. C. 252 ; 5 Tyr. 173 ; 1 Gale, 98. 513 

In an action by an indorsee of a bill or note, 
if the declaration states the indorsement to have 
been made by the first indorser directly to the 

Elaintiff, semble, that the plaintiff cannot avail 
imself of the title of any immediate indorsee : 
— Held, issue being joined on the fact that the 
bill was indorsed after it was due, that this f«ct 
was proved by the showing that the plaintiff did 
not become indorsee until afler the bill was due, 
though the first indorsement was before that pe- 
riod. Id. 

A court of equity will decree the payment of a 



[AND PROMISSORY NOTES] 



2383 



lost bin of exchange on a sufficient indemnity be- 
ing giyen, though there may be a remedy at law 
by action on the bill. DaYiea v. Dodd, 1 Wils. 
Rzcb. 110. 513 

To a suit by the indorsee against the acceptor 
of a lost bill of exchange, accepted for the ac- 
commodation of the drawer, and without conside- 
xmtion, the drawer need not be a party. Id. 

In an action on a promissory note payable on 
demand, the jury cannot give interest, except 
from the time a demand of payment is made. 
The iasoing of a writ of summons is a sufficient 
demand. Pierce v. Fothergill, 2 Bing. N. R. 167 ; 
S Soott, 394 ; 1 Hodges, 251. 513 

In assumpsit against the acceptor of a bill 
of exchange, part payment may be given in evi- 
dence, nnder a plea denying the acceptance, in 
reduction of the damages. Shirley v. Jacobs, 4 
Dowl. P. C. 136; 2 Scott, 157; 1 Hodges, 214. 

513 

Proceedings were commenced on a bill of ex- 
change against the drawer, and also against the 
defendant, as accepter ; the former paid the bill 
and costs, and it was delivered up to him, and no- 
tice was given to the defendant that proceedings 
against him were abandoned. His costs, how- 
ever* were not paid, and as he disputed his 
liability as acceptor, he ruled the plaintiff to de- 
clare, who then applied to a judge to stay pro- 
ceedings, and obtained an order for that purpose : 
the court set the order aside. Lewis v. Dairy m- 
ple, 3 Dowl. P. C. 433. 515 



Dedarationa on BUls and J^otes.] — In an action 
by the indorsee against the acceptor of a bill of 
exchangtQ, the declaration alleged that one P. N 
diew the bill, and required the defendant to pay 
to his order, &c., and that the defendant accepted 
the bill, and P. N. indorsed it to the plaintiff. 
On special demurrer, alleging that ^^his" was 
ambiguous, Ac.: — Held, that "his" could not 
oeoessarily be referred to the last antecedent, and 
that it sufficiently appeared that it had reference 
to the drawer, and the count was therefore suffi- 
cient. Spyer v. Thelwell, 4 Dowl. P. C. 509 ; 2 
C. M. d^ R. 692. 517 

A demurrer to a count on a bill of exchange 
(which was in the exact from given by the rules 
of T. T. 1 Will. 4), that the words " now elapsed" 
did not show that Uie bill was due before the ac- 
tion was commenced : — Held, not to be *^ frivol- 
ous." Abbott V. Arlett or Aslett, 4 Dowl. P. C. 
759; 1 Mees. &. Wels. 209. 517 

Semble, that it is necessary to show on the 
iaoe of the count that the bill became due before 
the action was commenced. Id. 



FUoB OT Jtetums.} — In an action by an indorsee 
against the acceptor of a bill of exchange, the 
court refused to allow a plea denying the draw- 
ing as well as a plea denying the acceptance. 
GUmoie «. Hague, 4 Dowl. P. C. 303 ; 1 Har. 6l 
Woll. S23. 517 

Indorsee against drawer of a bill of exchan^^. 
p]ea^.th8t tSe defendant's indorsement was m 
blank; that the defendant delivered the bill to 
A« (not a party ^ ^® biU)i ^^^Y ^ 8^^ ^^ ^^ 



I counted for him ; that A. fraudulently, and in 
violation of that special purpose, delivered it to 
B. ; of all which Uie plaintiff had notice : — Held, 
on general demurrer, that the plea was bad, for 
not showing distinctly that the defendant never 
had value for the bill. Noel v. Rich, 2 C. M. ^k 
R. 360 ; 4 Dowl. P. C. 228 ; 1 Gale, 225. And 
see Noel v. Boyd, 4 Dowl. P. C. 415. 517 

To an action against the defendant as drawer 
and indorser of two bills of exchange, the de- 
fendant pleaded that the plaintiff wa^ applied to 
for a loan of money to T. P. B., but agreed to 
give two-thirds of the amount in money and 
one-third in wine, upon having the two bills given 
to him as a security for the wme ; tlie plea then 
averred, that the contract for the sale and deli- 
vering of the wine was a gross fraud, and that 
the defendant had not had any value, & c. The 
plaintiff replied, that there was a good considerai- 
tion for the drawing, and concluded to the coun- 
try : — Held, that the plea was bad, as being only 
an answer to a part, and that the allegation of 
fraud was too general. Connop v. Holmes, 4 
Dowl. P. U. 451 ; 2 C. M. & R. 719 ; X Tyr. & G. 
85. 517 

A defence that A. paid part of the bill sued 
on, and B. the residue, is the subject of separate 
pleas. Easton r. Pratchett, 1 C. M. & R. 798 ; 3 
Dowl. P. C. 549; 4 Tyr. 472; IGale, 30. 517 

Declaration in debt on a promissory note. 
Plea — that, afler the making of the note and ac- 
cruing of the debt in respect thereof, the plaintiff 
drew a bill of exchange upon the derendant, 
which he accepted and delivered to the plaintiff 
who took it for and on account of the note, ana 
afterwards endorsed it to a person not known to 
the defendant, and who, at the time of the com- 
mencement of the suit, was the holder thereof, 
and entitled to sue the defendant thereon. Re- 
plication, de injuria : — Held, on demurrer to the 
replication, that the plea was bad, insomuch as 
it did not aver that the bill was given as well 
as taken in satisfaction of the note. Crisp v. 
Griffiths, 2 C. M. & R. 159; 3 Dowl. P. C, 752 ; 
1 Gale, 60. 517 

The Reer. Gen. Hilary Term, 4 Will. 4, do not 
enable a defendant in an action on a bill of ex- 
change at the suit of an indorsee, to plead that 
he received no consideration from the drawer, 
without showing circumstances of fraud and 
knowledge of them on the part of the plaintiff. 
French v. Archer, 3 Dowl. P. C. 130. 517 

Where an acceptor to an action on a bill of 
exchange by an indorsee, pleads want of consid- 
eration, it IS sufficient for the plaintiff, in his re- 
plication, simply to aver that there was consid- 
eration. Prescott 17. Levi, 3 Dowl. P. C. 403 ; 1 
Scott, 726. 517 

To a declaration on a bill of exchange, (by in- 
dorsee against acceptor), the defendant pleaded 
that no value or consideration had been given for 
the successive indorsements; the plaintiffii re- 
plied, that their immediate indorsor did not in- 
dorse the bill without value or consideration for 
so doing, but that they took it for a ffood and 
valuable consideration, concluding to Uie coun- 
try : — Held good on special demurrer. Id. 



[BILLS OF EXCHANGE] 



To ft dMiaratioii on a promiMOry note afaizut the 
maker, he pleaded no consideration ; the plaintiff 
leplied that the note was indorsed to her in part 
pajrment of a debt, and that she had no notice 
of the premises in the plea. The defendant re* 
joined, that she had notice. On demnrrer, held, 
that tlie plaintiff was entitled to judgment. 
Pearce «. Champneye, 3 Dowl. P. C. 276. 517 

To a declaration by indorse^ against acceptor, 
defendant pleaded that the bill Was accepted 
without consideration firom the drawer: — Held 
ill, and that under the rule of H. T. 4 Will. 4, 
plaintiff might demur. Low v* Chifney, 1 Bing. 
K.R.967;l8coU,96. 517 

In an action by the second indorsee against 
the payee and indorsor of a note, a plea, that 
the defendant never had any consideration for 
indorsing the note, and that the first indorser in- 
dorsed it to the plaintiff without any considera- 
tion, and that the plaintiff always held it without 
any consideration, is bad on demurrer. Trinder 
«. Smedley, 5 Nev. & M, 138; 1 Har. & WoU 
309. 517 

4a ftn action by the payee against the maker 
of a promissory note, a plea tnat it was made 
** without any value or consideration for so doing, 
or for naying the amount thereof," is bad on 
special oemurrer. Stoughton v. Kilmorey (Earl), 
2C. M. dk R. 01; 3Dowl. P.C. 705; 5 Tyr.568; 
1 Gftk, 91. 517 

In an action on a bill of exchange, by an in- 
dorsee against his immediate indorsor, a plea, 
that fiir the indorsement the defendant neither 
had nor received any value or consideration, is 
good after verdict, but it would be bad on special 
demuRer. Easton v. Pratehett, 1 C. M. & R. 796 ; 

3 Dowl. P.C. 549; 6C. (kP.736; 4Tyr.47a; 
1 Gafe, 30 : 8. P. (in error), 3 C. M. & R. 543; 

4 Dowl. P. C. 473 ; 1 Gale, 350. 517 

In an action by the drawer and payee of a bill 
of exchange agamst the acceptor, a plea, that the 
^fendant received no consideration from the 
plaintiff for accepting the bill, is insufficient. 
Graham o. Pitman, 1 Har. & Well. 133 ; 5 Nev. 



dk M. 37. 



517 



la an aetioB by an indorsee against the ae- 
aeptor of a bill of exchange, a plea, that there 
was not at any time any consideration for his 
(■aid defendant's) aoceptanee or paying the said 
pill of exchange, was held bad on special de- 
mnner. Reynolds e. Ivemey, 3 Dowl. P. C. 453. 

517 

In an action against the acceptor of a bill of 
exchange, a plea is repugnant which shows a 
consideration for the acceptance of the bill by 
the defendant, and concludes " that he has not re- 
ceived any value or consideration for the payment 
thereof." Byass v. Wylie or White, 1 C. M. & 
R. 686; 3 Dowl. P. C. 524 ; 5 Tyr. 377; 1 Gale, 
50. 517 

After a bad plea of '* no consideration" to a 
declaration on a bill of exchange, by which the 
fdaintiff has been delayed during the long vaca- 
tioiiy tha oonrt will| under epeciai circumfltancea, 



I allow the defendant to withdimw his plea and plead 
de novo, and have an inspection of^the bill with* 
out an affidavit of merits. Paplief a. Codring- 
too, 4 Dowl. P. C. 497. 517 

To a plea by the acceptor of a bill of exchange, 
that it was, to the knowledge of the holder, nego- 
tiated by fraud, and that no considerati<m was 
given for the indorsement to the holder, it ia 
sufficient tor the holder to reply generally, that 
he had no notice of the fraud, and that the bill 
was indorsed to him far a good consideration. 
Bramah v Roberts or Baker, 1 Bing. N. R. 469 ; 
1 Scott, 350; 3 Dowl P. C. 393; 1 Hodges, 66. 

517 

And where npon demurrer judgment was 
given fbr plaintiff on such a replicatioa, the 
court refused to allow defendant to withdraw 
the demurrer on payment of costs. Id. 

In an action on a bill of exchange by indorsee 
against acceptor, a plea alleging only that the 
acceptance was obtained by fraud, is bad. Id, 

In trover fbr a bill of exchange, defendaol 
pleaded, that befbre the conversion A. was law- 
fully possessed of the bill, and that he indorsed 
it to B.f and that B., for a valuable considera- 
tion, indorsed it to the defendant. The replica- 
tion took issue upon the averment of considera- 
tion, which was found for the plaintiff :— Held, 
that by this plea the title of the plaintiff was ad- 
mitted, and that the def<>ndant was not entitled 
to arrest the iudgment upon the mund that the 
title appeared to be in A. : held, also, that the 
defendant was not entitled to a repleader. Ftn- 
court V, BuU, 1 Ring. N. R. 581 ; 1 Scott, 645; 
1 Hodges, 98. 517 

In an action on a bill of exchange, the defen- 
dant pleaded a plea of want ofoonsideraiion, cod- 
eluding with a verification : the olaihtif^ instead 
of replying by taking issue ontneplea, merely 
added a similiter. After verdict for the pUintiir, 
the oonrt held, that the record was impernet, and 
that there must be a re|rfeader ; but to save ejr- 
pense, the plaintiff was allowed to amend on 
payment of costs. Wordsworth v. Brown, 3 Dowl. 
P. C. 698. 517 

Where to a plea of no consideration, in an ac- 
tion on a bill of exchan^pe, there is a replication 
that consideration was given, setting it out under 
a scilicit, and concluding to the countxy, no new 
mattter is alleged, so as to make it necMsaiy fbr 
the plaintiff to prove the particular consideration 
set out. Low V. Burrows, 4 Nev. A M. 366 ; 9 
Adol. dk Ellis, 483; 1 Har. A, WoU. 13. 517 

But if the replication had concluded with a 
verification, the consideration alleged would 
have been part of the issue, and toe plaintiff* 
must have proved it Id. 

A defendant, who was under terms to plead 
issuably in an action against him as acceptor of 
a bill of exchange by an indorsee, pleaded that 
he had received no consideration from the plain* 
tiff, and the plea was delivered so late in IViniiy 
term that there was not sufficient time to get tlip 
demurrer argued that term. The court ordered 
the plea to be set aside, and that the olaintiff 
should be at liberty to sign judgmenty naieai tiM 



[AND PROMISSORY NOTES] 



288S 



defendant ooMmted to anend, upon payment of 
all ooaU, and goinr to trial at the next uttings. 
BrowB •. AuaUn, 4 Dowl. P. C. 161. 517 

Eadaus.'l-'AJ pon a plea of no consideration to 
an action on a promiasory note, to which the plain* 
tiff leplied that there waa a consideration, the 
oniM of provinff that there was no consideration 
lies npon the defendant. Lacey v. Forrester, 3 
Bowl. P. C. 668 J 2 C. M. & R. 59; 5 Tyr. 567; 
1 Qafe, ld9. X 580 

Proof of consideration. Bassett v. Dodgin, 3 
M. A Scott. 417; 10 fiing. 40. 521 

A promnsory note in the common form, but 
ezprMsed to be pajfable on demand, was given to 
the traatee of a building club, in order to secure 
the payment, by the maker or his sureties, of cer- 
tain quarterly contributions, payments of interest 
OB money lent, and fines dormg a certain period. 
Anoars haying become dae, an action was brought 
on the note, and a cognovit was given for the 
amount then due and coats, being together less in 
amount than the sum mentioned m the note. 
That amount was paid with costs, and a receipt 
given eJcpreased as being ** in discharge of the debt 
andooeta in that action. Another action having 
been brought on the same note for similar arrears 
Bubflequently becoming due : — Held, that it could 
not be maintained, siddall v. Rawcliflfe, 3 Tyr. 
441. 521 

Semble, whete a note b regularly indorsed with 
acknowledgments of receipt of interest up to a 
giyea time, it is prima facie evidence of interest 
being due nom that time. Braley v, Greenslade, 
1 Price's P. C. 144. 521 

Aeaanpait by an indorsee against the acceptor 
of a bill of ezchanse. Ptea^— that the defendant 
■eeepCed the bill for the accommodation of the 
drawer, and that the drawer did not give« nor did 
the defendant receive, any consideration, for his 
accepting <a f^j'^^i ^ l^ill f ^^ ^ drawer in- 
doieed toe bill to tne plaintiff without any con- 
sideratioo ; and that the plaintiff held the bill 
without consideration. Replication — that the 
drawer indorsed the bill to the plaintiff for a 
good and valuable consideration : — Held, that 
it was not incumbent on the pl^ntiff to begin, 
and proye, in the first instance, that he gave value 
lor the bill ; but that the rule is otherwise, where 
the title of the holder is impeached on the ground 
of finuad, daresB, or that the bill has been lost or 
■iDleB. MUk a. Barber, 1 Mees. A Wels. 425. 

521 

Where the acceptor of a bill of exchange 
pleads that it was accepted without any consider. 
ation, and the plaintiff replies that it was accept- 
ed for a good consideration, the onus of proof lies 
on the defendant to show the want of considera- 
tion. Secoa, where the plaintiff in the replica- 
tion specifies the particular sort of consideration 
for whidk be alleys the bill was accepted, fiat- 
ley V. Catterall, 1 M. & Rob. 379— Alderson. 521 

On an issue, whether consideration was given 
W the plaintiff for a note, the letters of the plain- 
tdE, shewing thai he was pressed for monev, are 
eridsnce & the defendant. Homan r. Taomp- 
m. 6 C dk P. 717— Pafkt. 521 



In an action by an indorsee against the aeeept* 
or of a bill of exchange, the mere absence of con- 
sideration for the acceptance and prior indorse- 
ments, does not throw the onus on the plaintiff 
of proving the consideration for the indorsement 
to htm, where no circamstances of fraud or ille* 
gality appear. Whittaker v. Edmunds^ 1 M. A 
Rob. 36&-Patteson: 1 Adol. ^k, Ellis, 638. 

Witnesses.y-yVhtre the drawer of an aecom* 
modation bill misapplied the bill, and the accept* 
or brought trover to recover it from a third party, 
to whom the drawer had improperly paid it away : 
— Held, that the drawer was a competent witness 
to support the plaintiff's case. Fancourt v. Bull, 
1 Bing. N. R 6U1 ; 1 Scott, 646 ; 1 Hodges, 98. 

5S1 

Defence to Actum.\-~Defetce fbr want of con- 
sideration. Reid V, Fumival, 1 C. & M. 538 ; 5 
C. A P. 499. 524 

A., having appointed B. his executor, gave him 
a promissory note, payable on demand, Tor 1002., 
in consideration of the trouble he would have in 
the office of executor afier his death. B. died in 
A.'s lifetime, not having put the note in suit:— • 
Held, in an action upon it by fi.'s executors, that 
the consideration had totally failed, and the action, 
therefore, was not maintainable. Solly e. Bird* 
6 C. & P. 316— Bolland : 8. C. nom. Solly v. 
Hinde, 2 C. ^k M. 516 ; 4 Tyr. 305. SM 

Where a person takes an indorsement of a pro-> 
mtssory note from the payee, with notice that the 
payee was indebted to the maker in a greater 
amount than in the note, on separate transactions : 
<^Held, that the indorsee could not recover on 
the note, except to the amount of some advaneee 
he had made on the security of the note before he 
had the notice. Ooodall v. Ray, 4 Dowl. P. C. 
76; 1 Har. A WoU. 333. 52$ 

Indorsee against acceptor of a bill of exchange. 
Plea — that the drawer indorsed it to C, in whose 
hands it remained when due ; that C. being un- 
able to obtain payment of it, returned it to B.y 
who continued the holder of it until the defen- 
dant, before the indorsement to the plaintifi, de- 
livered to B. another bill drawn by the same 
party, and accepted by the defendant for a greater 
amount, which B. accepted in full discharge and 
satisfaction of the forme^ bill : — Held, on &mur- 
rer, that this was a sufficient answer to the action, 
although it did not appear that the second bill 
was payable to order. Le wis v. Lyster, 2 C. M. 
& R. 704 ; 4 Dowl. P. C.377; 1 Gale, 320. 52a 

The plea went on to aver, that the latter bill 
was indorsed by B. to A., and that after it be- 
came due, the defendant paid the amount of it to 
A., in satisfaction and discharge of that bill, and 
of all damages sustained by the plaintiff by leason 
of non-payment thereof when due : — Held, that 
all this might be rejected as surplussage, and did 
not vitiate the plea. Id. 

Declaration on a bill of exchange, indorsed bj 
J. S. to the defendant, and by the defendant to 
the said J. S., and by tjhe said J. S. to the plain- 
tiff. Plea, — that after the dishonor of the bill, 
the plaintiff took a cognovit &om the said J. S.» 



2886 



[BILLS OF EXCHANGE— BOND] 



in an action on the bill, by which lonsrer time was 
^ven than would have l>een required for obtain- 
ing judgment in that action. Upon general de- 
murrer to the plea, it was held, that it sufficiently 
appeared that J. S., who indorsed to the plaintin, 
was identical with the 5. S. who was the first in- 
dorser, and that the plaintiff was cognizant of that 
fiict at the time of taking the cognovit, and that 
therefore the plea bet up a good defence, by 
showing that the plaintiff haa ffiv.en time to a 
party prior to the defendant. HaJl v. Cole, 6 
Nev. i M. 124. 522 

Semble, that if the plaintiff had not known that 
J. S. was also first indorsee, the giving time to 
him would not have affected his right of action 
against the defendant, id. 

Held, also, that an objection to the plea for 
bein^ pleaded in bar of the action generally, and 
not in bar of its further maintenance, it not being 
stated that the cognovit was given before action 
brought, could only be taken advantage of by 
special demurrer, id.^ 

Action by the indorsees against the indorser of 
a promissory note for 5002. Plea, except as to 
the sum of 200^, that the note was made and de- 
livered to the defendant in order that he might 
indorse it for the accommodation of the maker, 
to enable him to obtain advances of money there- 
on ; that the plaintiffii had only advanced to the 
amount of 200^, and that there was no consider- 
ation for the residue. Replication, that the plain- 
tifis were the holders of the note for good and 
valuable consideration, given to the maker in 
respect of their being the holders of the note to 
the full amount thereof: — Held, first, on this 
issue, that it was not incumbent upon the plain- 
tifis, in the first instance, to prove the considera- 
tion given for the note ; but that it was necessa- 
ry for the defendant to begin, and impeach the 
plaintiff's title : — Held, secondly, it having been 
proved that more than 5002. being due from the 
maker to the plaintiffs at the time the note was 

Said in to them, they entered the note as a bill 
iscounted to his credit, but that 1982. only were 
paid to him, that that was equivalent to their hav- 
mg advanced the amount mentioned in the note, 
and was a giving of a valuable consideration 
within the meaning of the issue : — Held, thirdly, 
that if the note were given to them as a security 
for a previous debt, Uie plaintifis miffht be pro- 
perly stated to be the holders for a vuuable con- 
aideration. Percival v. Frampton, 2 C M. &. 
R. 180 ; 3 Dowl. P. C. 748; 5 T^r. 579. 523 

In assumpsit, on a bill of exchange by a second 
indorsee, to a plea that it was accepted for the 
accommodation of the drawer, and indorsed by 
him without consideration to the second indorser, 
who indorsed to the plaintiff: the plaintiff replied, 
that his immediate indorser had a good consider- 
ation for indorsing, and that he (the plaintiff) 
was not at any time a holder without value : — 
Held, that the replication admitted the accept* 
ance and first indorsement to be as stated in the 
plea, and that the plaintiff was entitled to recover 
only to the extent of the value that passed be- 
tween himself and his indorser. Simpson v. 
Clark, 2 C. M. & R. 342 ; 1 Gale, 237. 523 



Diet, per Lord Abinger, C. B.^ and Holland, B., 
that proof that a bill was in its inception without 
consideration, raises a presumption that a subse- 
quent indorsee did not give value for it, which he 
must rebut by proving his title ; but if so, semble, 
that proof that it was accepted for the accomo- 
dation of a party, that he should raise money 
upon it, is evidence to go to the jury that that 
purpose was carried into efiect, and that therefore 
the plaintiff was a holder for value. Id. 

In an action on a banker's check, if issue is 
joined on a plea of no consideration for drawing 
the check, it is an admissible and valid defence 
that the contract, in consideration of which the 
check was given, has been rescinded. Mills v. 
Oddy, 1 Oak, 92. 583 

Credit given to the holder of a bill, by the 
party ultimately liable, is tantamount to payment. 
Atkins V. Owen, 4 Nev. &M. 123. 623 

Secus, as to credit given by a party not ulti- 
mately liable, as where th^ credit was given bj 
the banker of the holder, such banker not being 
the party to the bill. — Per Patteson, J. Id. 

In an action on a bill by a third indorsee 
against the acceptor, the defendant cannot put 
the plaintiff to prove consideration, by giving 
prima facie evidence to show the want of it, 
merely as between the drawer and his indorsee, 
and each subsequent indorser and indorsee ; but 
he must also show the want of consideration aa 
between himself and the drawer. And for this 
purpose, it is not enough to prove that the drawer 
on the day before the maturity of the bill, pro- 
cured all the indorsements to be made without 
consideration, in order that the action might be 
brought by an indorsee, on the understanding 
that the money, when recovered, should be di- 
vided between one of the indorsees and the 
drawer. Whittaker v. Edmunds, 1 Adol. & Ellis. 
638; IM. <&Rob.366. 523 

Afler giving a cognovit, it is too late to object, 
that, at the time of Oie arrest, part of the note had 
been paid, and that the note was given for an ille- 
gal consideration, filigh v. Brewer, 3 DowL P. 
C. 266; 1 U. M. & R. 651; 5 Tyr. 222. &26 



BOND. 

Construction and Operation.'] — ^The condition 
of a bond, executed oy the principal and two 
sureties in the penal sum of 10002., contained a 
recital that the obligor had taken a farm of the 
plaintiff (the obligee), subject to the payment of 
rent reserved in a fease of even date with the bond, 
and that it also had been agreed by the obligor 
and the plaintiff, that the obligor should enter 
into a bond with two sureties in the penalty of 
5002. for the due payment of tiie rent. Rent 
having been found by a jury to be due to the 
plaintiff to the amount of 7402., the court refused 
to reduce tiie verdict to 5002., to which only it 
was contended the sureties could be liable by 
virtue of the recital in the condition. Ingleby 
17. Mousley, 3 M. & Scott, 488. 527 

The obligor of a bond conditioned for the pay- 
ment of rent, at the rate of 1702. a year, ^ acoerd- 
ing to an indenture of leaie,*' is estopped, in an 



[BOND] 



3387 



«ctx>B on the bond, from wyiug that the rent re- 
aerred by the iDdenture was 14^2. a year. Lain- 
•on V. Tremere, 3 Ney. & M. 603 ; 1 Adol. & £U. 
792. 527 

A person conveyed estates to trustees upon 
trost to sell and apply the produce of the sale in 
discharging all his bond debts, together with the 
interest then due and to grow doe for the same 
to the day of paynjent. A bond creditor claim- 
ing under this deed, is not entitled to principal 
and interest beyond the amount of the penalty of 
the bond. Hughes r. Wynne, 1 Mylne & K. 20. 

529 

A bond, conditioned for the payment of a cer- 
tain sum with interest, may be put in suit with- 
out a previous demand of payment. Gibbs v. 
Sontham, 3 Nev. & M. 155 ; 5 fi. <fc Adol. 911. 

530 

Stamp on bonds. • Lloyd v. Heathcote, 3 Tyr. 
309; 6C.&M.336. 532 

A bond, conditioned for payment of a sum of 
money to the obli^ree on a day named, according 
to a proviso contained in a conditional surrender 
of even date, whereby A. (not the obligor in the 
bond), surrendered to the obligee certain copy- 
hold lands for securing payment of the same sum 
— was held to require a II. stamp, although it 
bore no stamp denoting the payment of the ad- 
valoiem dnty on the surrender, and the latter was 
not produced. Qnin r. King, 1 Mees. &, Wels. 42 ; 
4 Dowl. P. C. T36. 532 

On non est factum pleaded to such a bond, 
where breaches are assigned in the declaration, the 
jury may assess the damages without a special 
award of a venire for that purpose. Id. 

Where the condition of a bond is orieriDally 
impossible, the bond is absolute. Where the con- 
dition is originally illegal, the bond is void. Where 
the condition subsequently becomes impossible by 
the act of the obligor, or of a stranger, the bond 
is forfeited. Where it becomes impossible by the 
actjif the obligee, the bond is saved. Anon, (cited 
V. Swindells, in error), 5 Nev. & M. 

530 



ui 



378. 



UMNtu of OUigor.'] — Collector's bonds. 
WUks V. Ueefy, 1 C. A M. 249 ; 3 T^r. 91. 533 

The subordinate officers appointed under the 
St Pancru Vestry Act, 59 Geo. 3, c. 39, s. 19, 
by the seclect vestry, are not annual officers, but 
bold their offices during the pleasure of the ves- 
try. Therefore, the bonds given by them to the 
directors of the poor, (who are annual officers), 
under s. 57, continue in force after the directors, 
to whom thiey were given, have gone out of office. 
H'Gahey v. Abton, 1 Mees. & Wels. 386. 532 

A bond given to secure the faithful perform- 
aaoe of the office of a collector of parochial rates, 
(who was by act of Parliament to be appointed 
by trustees for a year, and then to be capable of 
re-election), was conditioned, tliat, " from time to 
time, and at all times thereafler, during such time 
as he should continue in his said office, whether 
by virtue of his said appointment, or of any re- 
appointment thereto, or of any such retainer or 
eiiq>loynient by or under the authority of the said 
trustees, or their socoessors, lo be eleeted in the 

Vol. IV. 15 



manner directed by the said act, he should use 
his best endeavors to collect the monies received 
by means of the rates, in the then, or in any sub- 
sequent year," &.c. ^c : — Held that the obliga- 
tion of the bond was not confined to the year for 
which he was originally appointed, but extended 
also to all subsequent years in which he was con- 
tinuously reappointed. Augero v. Keen, 1 Mees. 
<& Wels. 390. 532 

A chief constable appointed for one of the di- 
visions of a riding, gave a bond to the clerk of 
ihe peace, with condition, that he should well 
and faithfully execute his office, should pay, ap- 
ply, and account for all sums of money coming 
to his hands as chief constable of his division, 
and should in all other respects perform and ob- 
serve all such orders and directions as should be 
made or ^iven to him in respect of his said office. 
The justices of the riding having ordered a rate 
to be levied on the inhabitants according to a 
certain valuation, the constable collected from his 
division, and paid over to the treasurer, an undue 
proportion of rate. The justices in sessions re- 
solved that the bond was forfeited, but that no 
proceedings should be taken upon it. Applica- 
tion being made to the court of K. B. on benalf of 
some of the parties aggrieved, for a mandamus to 
the justices or clerk of^e peace to put the bond in 
suit, the court refused a rule to show cause. Sem- 
ble, that the taking of a bond with the above con- 
dition, is not warranted by stat. 55 Geo. 3, c. 51, 
s. J 9. In re Lodge, 2 Adol. & Ellis, 123. 532 

Upon the marriage of A. with B.^ the widow 
and successor of C, a trader. A., in consideration 
of the stock in trade, which he receives with B., 
gives a bond to D., conditioned to pay to the 
children of B. by C., within twelve months after 
her death, 3001., if, upon an account taken, the 
stock in trade and effects of the business, if then 
carried on by A., shall amount to 4002. ; but, in 
case upon such account the stock in trade shall 
amount to lesH than 400^, then A. shall pay to 
such children 120Z. A., during the lifetime of B., 
discontinues the trade, and ceases to have any 
stook : — Held, that this obligation was then dis- 
charged. Beswick v. Swindells, 3 Nev. & M. 159 ; 
5 B. 2b Adol. 914 : S. C. (affirmed in error), 5 Nev. 
6l M. 378. 534 

A. was a clerk to B. from the year 1829. In 
1832, C. gave a bond for the fiiithful conduct of 
A. as such clerk. Afler that, B. dismissed A., 
and, afler his dismissal, A. made an admission of 
various sums that he had not accounted for : — 
Held, that, in an action on the bond, this admis- 
sion was not evidence aj^ainst C, as A. was living 
at the time of the trial, and might have been 
called as a witness : — Held also, that, it appear- 
ing that one item in the admission was of a sum 
received by A. before the date of the bond, C. 
would not be liable to the amount of the admis* 
sion, although it had been shown to him, and he 
had said that B. must get what he oould of A.< 
and he, G., would pay 3ie rest. Smith v. Whit- 
tingham, 6 C & P. 78— Gumey. 535 

Presumption of paympnt. Gleadow v. Atkin, 
1 C. & M. 410 ; 3 Tyr. 289. 528 



[BOND— BUILDING ACT] 



j«.]— A bond conditioned for thepAj- 
ment ef a soni of money at the end of five yean, 
with half-yearly intereet in the meantime, with a 
proviio that, npon default in payment of inter- 
est, the principal shall be payable, was held not 
to be within 8 & 9 Will. 3, c. 11. s. 8, as to as- 
sessment of damages. James v. Thomas, 2 Nev. 
AM, 663 ; 5 B. & Adol. 40. 538 

Held, that breaches need not be assigned in an 
action brought after March I7tb, 1829, on a bond 
executed in 1827, and conditioned for payment of 
600(M. on the 17th of March, 1829, with interest 
in the meantime, pursuant to the stipulations of 
an indenture bearing even date with the bond. 
Smith V. Bond, 3 M. & Scott, 528 ; 10 Bing. 125. 

538 

Where, in a debt on bond, a plaintiff has sug- 
gested breaches on the roll, pursuant to 8 & 9 
Will. 3, c. 11, S.8, the court, after plea of non est 
factum pleaded, refused a rule to show cause why 
some or them should not be stniclc out, or judi;- 
ment by default suffered on them, with entry of 
nominal damages ; for, by that statute, the plain- 
tiff may suggest breaches on every part of the 
condition, and tb^ iury are to inquire of the truth 
of them; and the defendant had another course, 
viz. by pleading performance of the condition, 
and suffering judgment by default on the replica- 
tion. Canterbury (Archbishop) v, Robertson, 3 
Tyr. 419; 1 C. and M. 181. 643 

Where a bond creditor, by agreement with a 
debtor, takes nterest on his debt by antitipation, 
a court of equity will restrain an action on the 
bond, whether brought against the principal or 
ike V. White, 1 Y. & Col. 420. 

544 



his surety. Blake 



In debt on bond, (with non est facum inter- 
alia pleaded), to secure the payment by instal- 
ments of the consideration for the purchase of a 
business, the plaintiff ought to ruggest breaches, 
and if he has not done so, and a verdict be found 
for him on the plea of non est factum, he is not 
entitled to a certificate for speedy execution under 
the statute. D'Aranda v. Houstoun, 6 C. & P 
511— Alderson. 538 

Also, in such a case, to support a plea that the 
bond was obtaSbed by fraud, covin, and misrepre- 
sentation, it is not enough to show that the busi- 
ness did not produce to the purchaser the sum 
represented by the seller ; but if it be shown that 
it did not produce the sum to the seller himself, 
it will be enough, as in such case it may be as- 
sumed Uiat the representation was untrue to the 
knowledge ot* the party making it. Id. 

Debt on bond for the penal sum of 12,0002. 
The declaration set forth the condition which was 
for the payment of 6000^., with interest, and as- 
signed as a breach the non-payment of the €00M. 
(omitting interest). Plea, tnat the defendant 
paid the 60002. with interest, according to the 
form and effect of the condition : — Held ill on 
special demurrer. Bishton r. £vans, 2 C. M. ^ 
R. 12 ; 3 Dowl. P. C. 735 ; 1 Gale, 76. 539 

A bond was condition to pay 1652. by cer- 
tain instalments, until the whole should be paid. 
But if default was made in paying any one, the 



obligation was to remain in fbree. An aetioa 
having been brought upon the bond, in conse- 
quence of a de&uft in payment «»f the second in* 
stalment, a judge ordered that, on payment of tfa* 
152. and costs, proceedings should be stayed : — 
Held, that the judse had no power to make soob 
order. Naylor v. Mopsey, 4 Dowl. P. C. 669. 544 

The sale of a tax-collettor's lands and goods 
is not a condition precedent to putting in suit a 
bond given by a surety under 43 Geo. 3, c. 99, 
for the due perfomance of the collector's duties. 
At all events, not unless the obligee have notice 
where to find the collector's property. Gwynne 
V. Bomell, 2 Scott, 16 ; 2 Bing. N. K. 7. 633 

Payment to the accountant of a |^iven year, of 
sums collected for a different year, is no discharge 
of the demand against the collector in respect of 
those sums. Id. 

It is no objection that the sureties' bond is eon 
ditioned for payment by the collector to the re- 
ceiver-general, and to the commissioners, or that 
it is eonditioned for payment at the times by the 
act appointed. Id. 



BOUNDARIES. 

Upon a question of boundary, ancient ordeni 
of sessions containing statements respecting the 
extent of a district within the jurisdiction of the 
court of quarter sessions, made when no dispute 
as to boundary appears to have existed, are ad- 
missible in evidence. Newcastle (Duke) v. Brox- 
towe, 1 Nev. & M. 598 ; 4 B. d& Adol. 273. 544 

In trespass brought by the lord of a manor for 
the carrying away dollars claimed by him as 
wreck, two instruments dated in 1639 and 1657, 
and purporting to be presentments or answers of 
a jury, partly consisting of the tenants of the 
manor, to questions by commissioners of survej 
appointed by the then lord, were put in to prove 
the boundaries of the manor, and also the lord's 
title to wreck, which was affirmed in particular 
passages : — Held, that they were only evidence of 
the boundaries, and could not be admitted as de- 
clarations by the tenants of the manor, of the 
title of the lord to wreck, that being a matter of 
private right derived from the crown, respecting 
which they could not be taken to have any pecu- 
liar knowledge, as they had no concern with it. 
Talbot V. Lewis, 5 Tyr. 1 . 544 

/ Where two parishes are separated by a river^ 
the medium filum is the presumptive lxmnd|Li7 
between them. Rex v. Landulph, 1 M. dt Rob. 3^ 
^Patteson. 544 

The 5 Geo. 4, c. 79, (the Clifton Watching and 
Lighting Act), does not extend to those parts of 
the parish of Clifton which, by the 16 Geo. 3, c. 33, 
and 43 Geo. 3, c. 140, were made part of the city 
of Bath. Bartlett v. Watkins, 1 Mees. & Web. 
223. 544 



BUILDING ACT. 

Where a statute authorizes a company to re- 
move and erect buildings, and provides a specific 
remedy ibr parties injured by such removal and 
erection, the occupier of a house adjoining ooa 



[BUILDING ACT— CASE] 



9S89 



which bttt be^ii polled down and rebuilt by the 
eookpuij is not entitled to such remedy in re- 
spect of an injury sustained by reason of the re- 
moral of a party- wall between the two houses, 
after a notice griyen under the Building Act, al- 
thouffh the conipanj may not have strictly com- 
plied with the requisitions of the Building Act in 
respect of such party- wall. Rex p. Hungerford 
Market Company, 2 Nev. A M. 340. 545 

An ezecntor or administrator may be liable as 
the owner of the improved rent, for the expenses 
of pulling down and rebuilding a party-wall un- 
der the authority of the Building Act, (14 Geo. 3, 
c. 7dy s. 41), even through he has no other assets 
than the improved rent. Thackar v. Wilson, 4 
Nev. & M. (w9 ; 3 Adol. & £Uis, 142; 1 Har. & 
Woll. 131. 545 

The expenses of polling down and rebuilding 
a party-wall are a charge upon the land in the 
inmds of the owner of the improved rent. Id. 

Where an administrator was sued upon the 
statnle, and pleaded that he was only the owner 
in his character of administrator in right of his in- 
testate, and after setting out an unsatisfied judg- 
ment amnst himself also as administator, i3- 
leged that he had fully administered all the estate 
but a sum which was not sufficient to satis^ the 
Judgment: — Held, on demurrer, that the plea 
no answer to the action. Id. 



If an act of trespass complained of was done 
with a bona fide intention to pursue the direc- 
tions of the Building Act, though it be not justi- 
fied by it. the defendant is entitled to notice of 
action. Wells v. Ody, 2 C. M. & K. 1^23, 184 ; 
7 C. dt r. 22^ 1 Gale, 137. 545 

On a plea of not guilty, he may object to the 
abaenoe of such a notice. Id. 

In an action of trespass, for laying bricks on 
the plaintiff's wall, the defendant, under the plea 
of not guilty, mav show that the wall was a party 
£race wall, and that he was acting under the pro- 
vinooa of the Building Act. Semble, that to en- 
title a party to raise such a wall, it is necessary 
that be should give notice to the district survevor, 
and that such notice applies only to cases wneie 
a party intends to take down any buildin^r ; but 
even if such a notice be required, the district sur- 
veyor may waive it. If a defendant intended to 
proceed under the Building Act, he would be en- 
titled to notice of action, %c., although he may 
not have acted exactly according to its provisions. 
Id. 

Th0 Bnilding Act, 14 Geo. 3, c. 78, s. 43, 
which authoriies the building or raising of a partv- 
waQ, does not protect a puty from liability lor 
any eoUateral damage resulting from the building 
00 eiceted ; and an ac^n on the case is maintain- 
able by the occnpier of an adjoining house, for 
heightening and building on a party fence wall, 
wheiehy lua windows were darkened. Wells v. 
Ody, llleef. dlt Wels. 452; 7 C. & P. 410. 545 

By the Bnildiiur Act, 14 Geo. 3, c.78, s. 100, it 
is enacted, thai ir the plaintiff be nonsuited, the 
dsfrndant shall have judgment to recover treble 
Semble, that in rach a case it ia not ne- 



cesvarv for the defendant to enters suggestion on 
the roll to entitle himself to treble costs. Wells 
i;. Ody, 2 C. M. & R. 1^4. 545 



CARRIER. 

The act 11 Geo. 4 & 1 Will. 4, c. 68, extends 
to all the articles enumerated in the 1st section, 
although not within the words of the preamble, 
*' an article of great value in small compass." 
Owen V. Burnett, 2 C. ^ M. 353 ; 4 Tyr. 133. 551 

To entitle a party to recover for loss or injury 
to any article of such description, he must five 
express notice to the carrier of the value ancTna- 
ture of the article. Id. 

A looking-glass exceeding the value of 102., 
was packed up in a case, and sent to the carrier s 
office, to be conveyed from A. to the house of S., 
near L. A notice was fixed up in the office, 
pursuant to the 2nd section of the recent statute. 
The words, " plate glass," ** looking-glass,*' 
" keep this edge upwards," were written on the 
case, but no declaration was made of the nature 
and value of the article, and no increased rate of 
carriage paid. The parcel was conveyed from L. 
to the place of its ultimate destination on a brew- 
er's truck, that beingr the usual mode in which 
parcels were conveyed in that part of the country. 
When the glass was unpacked it was found to be 
broken : — field, that the carrier was not liable 
for the damage occasioned by the breaking of the 
glass. Id. 

Semble, that the carrier would have been liable 
if he had been guilty of gross negligence. Id. 

Bodies, which are made partly of the soft sub- 
stance which is taken from the skins of rabbits, 
and partly fix>m the wool of sheep, do not come 
under the description of furs in the Carriers' Act, 
11 Geo. 4 & 1 Will. 4, c. 68. Mayhew v. Nelson, 
6 C. & F. 58— Tindal. 551 

By 11 Geo. 4 & 1 Will. 4, c. 68, s. 8, carriers 
are responsible for losses arising from the felo- 
nious acts of their servants. Tne defendant, a 
carrier, was sued to recover the value of a parcel 
lost, and slight evidence was given to raise a sus- 
picion that his servant, who was still in his em- 
ploy, had stolen the parcel : on a verdict found 
for the plaintiff, a new trial was refused, on the 
ground that the defendant ought to have called 
Die servant as a witness. Boyce v. Chapman, 2 
Bing. N. a. 222; 2 Scott, 3^; 1 Hodges, 338. 

549 



CASE. 

Malieunts Jhrest.] — ^In an action for a malicious 
arrest, the jury may imply malice from the ab- 
sence of reasonable or probable cause. But this 
is an inference not of law but of Act, which the 
jury are not bound to draw. Mitchell v. Jenkins, 
2 Nev. & M. 301 ; 5 B. & Adol. 588. 660 

Presenting to the jury the absence of such 
cause as conclusive evidence of legal malice is a 
misdirection. Id. 

Quere, whether an action for a malicious anesl 
will.Ue when the anest is for M» due on a pro- 



3890 



[CASE] 



miatorjr note, and that prominoiy note has heen 
paid, out more than SCU. is due upon a general 
account between the parties ? Norrish v. Rich- 
ards, SNey. & M, 'Mi y 1 Har. & WoU. 437. 
And see Beare v. Finkus, 4 Nev. Sl M. 846, and 
Nicholas v. Hayter, 4 NeT. dt M. 8d2. 560 

Qnierp, whether in an action for a malicious 
arrest, the mode in which the original action is 
determined must be such as in itself shows a want 
of reasonable cause ? Id. 

Proof that a plaintiff had not declared in an ac- 
tion removed by habeas corpus within two terms, is 
not sufficient evidence of a determination of the 
suit to support an action for malicious arrest. Id 

QusBre, whether an action for a malicious arrest 
can be maintained, when the cause is removed 
from an inferior court by habeas corpus ? Id. 

Where in case for a malicious arrest, the de- 
claration alleges certain facts " whereupon and 
^hereby the suit was ended and determined," the 
plaintiff cannot show any other determination of 
the suit than the mode stated. The acceptance 
of the debt and costs in satisfaction of the action 
under a judge's order or a rule of reference is a 
sufficient determination of the suit Combe v. 
Capron, 1 M. & Rob. 39&— Patteson. 560 

In an action on the case against a party for 
causing the arrest of a person privileged from 
arrest, (e. g. a witness attending on his subpoena, 
or a practising attorney), thereby putting him to 
the expense of finding bail and procuring his 
discharge by order of a judge, the plaintiff must 
show that his imprisonment at the particular 
time in question took place by some act of the 
defendant, and that he knew or recognized the 
circumstances accompanying it, and also knew 
that the party arrested was privileged at that 
time. Stokes v. White, 4 Tyr. 786 ; 1 C. M. & 
R.223. 560 

Quasre, whether such an action is maintaina- 
ble.' Id. 

Negligence in navigating ships. Vennall v. 
Garner, 1 C. & M. 21 ; 3 l^r. 85. 568 



MnUdous Criminal Proceedings.'] — In an action 
for a malicious arrest on a charge of felony, it is 
not necessary for the plaintiff to give in evidence 
the whoAe of the proceedings |before the magis- 
trates. Biggs V. Clay, 3 Nev, & M. 464. 5^ 

A person convicted of a trespass under the 
Game Act, 1 & 2 Will. 4, c. 32, underwent the 
sentence of imprisonment under tbat conviction, 
and did not appeal against it : — Held, that that 
conviction was an answer to an action against the 
informer for a malicious nrosecution. Mellor v. 
Baddeley,- 2 C. & M. 675; 4 Tyr. 962; 6 C. & 
P. 374. 563 

To maintain an action against a person for 
having made a false charge of felony before a 
magistrate, it is not necessary to show that the 
charge was taken down in writing and acted upon 
by tlvs magistrate ; but it is necessary that the 
jory should be satisfied that it was made to the 
migistrate with a view to induce him to entertain 



it as a charge of felony. Clarke v. Postao, 6 C. 
6l p. 423— Bosanqnet. 563 

In on action against defendant 'for taking 
plaintiff to a police office, and causing him to be 
imprisoned .without reasonable or probable cause, 
on a charge that he uttered menaces against the 
defendant s life ; it was held, that it was not for 
the judge alone to determine whether the me- 
naces justified the charge, but that it should have 
been left to the iury to determine whether the 
defendant believed the menaces, before the judge 
decided whether or not there was reasonable and 
probable cause for the charge. Venafra v. John- 
son, 3 M. d& Scott, 847 ; 10 Bing. 301 ; 6 C. & P. 
50. 563 

In an action on the case for laying a com- 
plaint before the magistrate of threatening lan- 
guage, in consequence of which the plaintiff was 
taken into custody and imprisoned till he found 
bail ; if it appear tliat the threat was used in con- 
sequence of a private dispute, and was not ut- 
tered to the defendant, but related to him by a 
servant, who gave evidence of it before a magis- 
trate, the question for the jury will be, whether 
the defendant acted bona fide upon the threat 
mentioned to him, or merely used it as a pretext 
for accomplishing his own private purposes. Id. 

In an action for charging plaintiff with a felony 
maliciously, and without reasonable or probable 
cause : — lield, that the judge was warranted in 
leaving to the jury, instead of deciding himself, 
the existence of probable cause, upon me follow- 
ing state of facts : — Plaintiff, a servant, being dis- 
charged from service on a Friday, took away with 
her from her master's house, a trunk and bag thia 
property of her master. The master wrote to her 
the next day, demanding his property, and threat- 
ening to proceed criminally on the Monday fol- 
lowing, if it were not restored : the plaintiff beine^ 
absent from home when the letter was delivered, 
no answer was returned ; whereupon the master, 
the same day, Saturday, had her taken into cus- 
tody, but when she was brought before the magis- 
trates on Monday, declined to make any charge. 
M' Donald or M Donnell v. Rooke or Brooke, 2 



Bing. N. R. 217 



2 Scott, 359; Hodges, 314. 

563 



Other mdUdous Procedure.] — In an action on 
the case for maliciously, and without reasonable 
or probable cause, procuring the plaintiff to be 
outhiwed, the declaration stated that the plaintiff 
was not in any wise subject or liable to be out^ 
lawed at the suit of the defendant ; that the de- 
fendant made an affidavit of debt, whereby he de- 
posed that the plaintiff was indebted to him ia 
35502., and tbat the plaintiff, upon the proaeco- 
tion of the defendant, under color and pretence 
of owing the said sam of 35502., was declared an 
outlaw ; assigning for special damage, that the 
plaintiff was put to costs in aVd about revers- 
ing the outlawry. The existence of the alleged 
debt (the non-existence of which was the only 
gravamen charged in the declaration) being aff- 
mitted : — Held, that there was reasonable and 
probable cause for proceeding to outlawry, not- 
withstanding the defisndant was aware at the 
time of issuing the exigent that the plaintiff was 



[CASE] 



2001 



The declaration stated that the defendant had 
been employed by the plaintiff to edite the Court 
Jonmal for rewu^, and that he did not perform 
the duties of editing the same in a proper man- 
ner ; but, without the knowledge, leave, autho- 
rity, or consent of the plaintiff, '* falsely, malic- 
iously and negligently mserted and published in 
the same a false and malicious libel, HIlc. ; that 
sAerwards, an information was exhibited against 
the plaintiff '^for the fiUsely and maliciously 
printing and publishing of the said libel, and 
soch proceedings were thereupon had that the 
plaintiff was convicted of that o^nce and fined 
JOOI. Afler verdict for the plaintiff, the judg- 
ment was arrested, on the ground that the injury 
sustained was not connected with the breach of 
do^ averted, it not appearing that the printing 
and publishing of which the plaintiff was con- 
victed was the same act as that with which the 
defendant was charged, viz. the inserting and 
pobl^hing. Colburn v. Fatmore, 1 C. M. & R. 
72;4Tyr.677. 666 

Semble, the proprietor of a newspaper, in 
which, without his Knowledge or consent, a libel 
is inserted by his editor, cannot recover against 
him the damages sustained by his own convic- 
tion as proprietor. Id. 



XtoMmceJ] — ^A person who lets premises with 



abroad, and had an agent in London: — ^Held, { 
also, that under not guilty, the reversal of the 
outlawry was not put in issue ; and semble, that if 
it had been, the rule of court, and entry thereof in 
the officer's book, was not evidence of that fact. 
Drummond v. Pigou, 7 C. & P. 228; 2 Bing. N. 
R. 114 ; 1 Hodges, 190. 5G6 

A declara^on stated, that the plaintiff had 
boDgfat of C. & Son certain gooos for a sum 
mentioned, which the defendant had lent the 
plaintiff on his personal credit, without agree- 
nw*nt for any lien on them in respect thereof, 
which sum the plaintiff paid to C ^ Son, who 
accepted it in payment for the foods; yet that 
defendant falselv and wrongfully pretending 
that he was entitled to such lien, and had a right 
of preventing their delivery to the plaintiff till 
the said loan should be repaid, wrongfully and 
nmliciouslv, and without reasonable or probable 
cause in that behalf, but under the color of the 
said pretended lien, ordered C. & Son, not to de- 
liver the said goods to the plaintiff,, but to 
keep them till they received further orders ; in 
consequence whereof C. & Son refused to deliver 
them to him. Plea, that plaintiff never paid C. 
& Son : — Held, on demurrer, that the action was 
maintainable ; for afler putting the averment 
of payment which bad been traversed out of 
consideration, it appeared sufficiently that the de- 
fieodant knew that there was no agreement for a 
lien on the goods, and that there was no obligation 
on C. &> Son to deliver the goods to the plaintiff 
without payment, and that their refusal so to 
deliver up the goods to the plaintiff arose from 
the defendant's statement, and the damage di- 
rectly resulted from that ac^ of his. Green v. 
Button, 2 C. M. & R. 707 ; 1 Tyr. & G. 118. 

566 



a nuisance upon them, and subsequently receives 
rent, is liable for the continuance of the nuisance. 
Rex V. Peadley, 3 Nev. <& M. 627 ; 1 Adol. <fc 
Ellis, 822. 576 

But a landlord is not liable in respect of a new 
nuisance created by his tenant during the term. 
Id. 

Where a landlord lets premises, the natural 
consequence of the regular use of which is, that 
they will become a nuisance unless properly ai^ 
tended to, he is liable if they aflerwards become 
a nuisance by such regular use. Id. 

The landlord ought, in ^ such case, either to 
stipulate with his tenants that they will do that 
which is necessary to prevent the premises from 
becoming a nuisance, or to reserve to himself the 
power of entering for the purpose. Id. 

An action lies against a party, who by careless- 
ness or negligence in excavating his own ground, 
either causes or accelerates the fall of an adjoin- 
ing house. Dodd v. Holn^e, 3 Nev. <l^ M. 7^; 
I Adol. & Ellis, 493. 576 

Two persons having adjacent lands, the one 
built a house at the extremity of his land, the 
other afterwards excavated his own soil near to, 
but without touching the ground so built upon : — 
Quiere, whether the party making such excava- 
tion is bound to see that his neighbor's founda- 
tions be not thereby weakened, and whether, if 
they be so, he is guilty of an actionable negli- 
gence in having so used his own soil without pro- 
tecting-that of his neighbor, although no negli- 
gence be shown in the mode of carrying on the 
work? Id. 



Supposing him not liable in the case of a new- 
ly built house : — Qusere, whether he would be so 
if the house had stood so twenty years before the 
excavation was made ? Id. < 

But where it is alleged and proved, that the 
defendant so negligenuy, unskilfully, and im- 

Kroperly duff his own soil, that the plaintiff's 
ouse was thereby injured, an action lies : and,, 
although it be shown that the house was infirm, 
and could at aU events have stood only a few 
months, still the plaintiff may recover, in propor- 
tion to the loss actually suffered, if the jury find 
that the injury to the house was the consequence 
of the defendant's negligence ; and in determin- 
ing the question of negligence, the jury ought to 
consider the state of the plaintiff's house. Id. 

Where a public company has the right bv law 
of taking up the pavement of the street, for the 
purpose of laying down pipes, the workmen they 
employ are bound to use such care and caution 
in doing the work as will protect the king's sub- 
jects, memselves using reasonable care, from 
injury ; and if they so lay the stones as to give 
such an appearance of security as would induce a 
careful person, using reasonable caution, to tread 
upon them as safe, when, in fact, they are not so^ 
the company will be answerable in damages for 
any injury such person may sustain in conse- 
quence^ Drew v. New River Comp. 6 C. & P. 
754__Tindal. 



Pleadings.'] — ^In case for injuries done by 
dogs accustomed to bite, dec. ; the plea of not 



3903 



[CASE-CERTIORARI] 



KiiltT puts the scienter in ittue. Thomas «. 
organ, 2 C. M. & R. 496; 4 Dowl. P. C. 22) ; 
1 Gale, 172. 576 

Proof that the dogs are of a fiirious disposi- 
tion, and have bitten cattle, is no evidence of the 
defendant's scienter ; but a promise by the owner 
of the dogs, on beinff informed of the injury they 
have done, to miULe compensation, is some 
evidence of it, to go to the jury, but of the 
slightest degree. Id. 

In an action on the case, the defendant cannot 
now, under the plea of ** not guilty," raise any 
<»bjection as to defective proof of the inducement 
in the declaration. Dukes v. Gostling, 3 Dowl. 
P.C.6i9. ' 576 

In an action for a malicious prosecution, the 
court will not permit the defendant to plead 
that he had probable cause to indict together 
with a plea of not guilty. Cotton v. Brown, 4 
Xfev. A M. 831 ; 3 Adol. A. Ellis, 312. 576 

The plea of not guilty to an action for a 
malicious prosecution, pute in issue (under the 
new rules of H. T. 1834) the fact of prosecution, 
and the want of probable cause. Id. 

In an action for a nuisance, where the defen- 
dant pleads not guilty, the plaintiff must not 
only prove the existence of the nuisance, but that 
the defendant was the person who caused it. 
Dawson v. Moor, 7 C. dt r. 25— Abinger. 576 

In case for a nuisance, the declaration stated 
that the plaintiff was possessed of a term of years 
in a messuage, and that he was disturbed in ite 
enjoyment by the alleged nuisance. The defen- 
dante pleaded that the^ were possessed of tlieir 
worksnops and manufactory (the nuisance com- 
plained of) for ten years before the plaintiff 
oeeame possessed of his term. The plaintiff re- 
plied that the term he held the residue of, was 
created four years before the defendants were pos- 
sessed of their said workshops and manufiu:tory : — 
Held, on demurrer, that the plea was bad,* the 
defendant should have alleged an user for twenty 
▼ears. Elliotson v. Feetham, 2 Scott 174; 2 
B'mg. N. R. 134 ; 1 Hodges, 259. 576 



CERTIOEIARI. 

CiffU Coref. ] — ^A judgment in an action of 
ejectment, • in an inrerior jurisdiction, is not 
within the meaning of the 19 Geo. 3, c. 70, s. 11 ; 
and, therefore, if the defendant leaves the juris- 
diction, the judgment cannot be removed into a 
•uperior court Doe d. Stansfield v. Shipley, 2 
Dowl. P. C. 406. 577 

A plaint being levied in an inferior court, not of 
neord (the Hull court of Requeste) having cogni- 
•anoe of debte not exceeding 52., the defendant 
flosd out a writ, in the form of a certiorari, com- 
manding C. H. F. to return into the court of K. 
B. the plaint, and all things concerning the 
same. C, H. F. was not a commissioner, but only 
clerk of the court of Requeste. No affidavit was 
ffled, or order of K. B. or of a judge obtained 
for iMiiittg the writ The court on motion set ' 



it aside. £x parte Phillips, 3 Adol. A EUis, 586. 

577 

Per LttUedale, J., a certiorari does not go, as 
of coarse, to a court not of record. Id. 

If a plaintiff, without improper motives, has 
removed a judgment into a superior court by an 
irregular writ of certiorari, issued without leave 
of Uie court, such amendmente will be allowed, 
and terms imposed, as will enable him to avail 
himself of the judgment, without prejudice to* 
the defendant Rowell v. Breedon, 3 Dowl. P. 
C. 324. 577 

A return to a writ of certiorari to remove a 
cause, directed to the judge of an inferior court, 
certifying the cause and claiming conusance by 
charter, is sufficient if good upon the face of it 
Perrin v. West 5 Nev. & M. 298; 3 Adol. db 
Ellis, 405 ; 1 Har. <& Woll. 401. 577 

Having no day in court, he cannot be required 
to produce the charter. Id. 

Nor can any traverse be token upon the return. 
Id. 

A partv coming to a court, in a civil suit, is not 
protected from arrest at the king's suit. Id. 

Criminal Ounr.]— By 5 & 6 Will. 4,c. ^, s. 1, 
no certiorari is to issue to rentove any indietmaU 
or presentment from any court of session^ assize, 
oyer and terminer, or gaol ddivery, or any ether 
court to the court of 1^. B. at the instance of the 
prosecutor or any other person (except the attOT" 
ney general) undunU fnotion first made in K, B. 
or before some judge of that court and leave oih- 
tained. 

By s. 2, defendants are to enter into reeogi^ 
zanees before obtaining a certiorari. 578 

The prosecutor has a right to remove his in- 
dictment at any time before trial, and the court 
has no jurisdiction over the cosU consequent on 
exercising that righCT Rex o. Pasman, 2 Dowl. 
P. C. 629. 578 

The court will remove an indictment by certi- 
orari, at the instance of the defendant, from the 
Central Criminal Court, on the suggestion that 
it involves pointe of law arising out of proceed- 
ings in Chancery, relating to matters of account 
Rex V. Wartnaby, 2 Adol. & EUis, 435. 578 

The mere fact of a defendant on an indictment 
for an assault being a member of the bench of 
magistrates who are to try it, is not a sufficient 
ground within the 5 & 6 Will. 4, c. 33, s. 1, for 
removing the indictment by certiorari. Rex«. 
Fellowes, 4 Dowl. P. C. 607C 578 

Convictions.] — ^A conviction under the I & 2 
Will. 4, c. 32, s. 30, is still irremovable under 
a. 45, notwithstending the 5 & 6 Will. 4, c 20« 
s. 21. Rex V. Hester, 4 Dowl. P. C. 589. 579 

iWhere it is enacted, generally, that no sum- 
mary conviction in pursuance of an act shall be 
removed by certiorari into a superior court,^ a 
certiorari may, nevertheless, be issued at the in- 
stence of a private prosecutor, although the ap- 
plication be not made by the attomev-general, 
and the crown is not directly interested. Rex v, 
Bonltbee, 6 Nev. d& M. 26. 579 



[CERTIORARI— CHARITY] 



3393 



OrdtTM •f Seni&ms,"] — ^Wheie an appeal aeainst 
an order of remoyal has been tried with the ac- 
<(iueaoence of the appellanti and the respondents, 
and the order qiiasoed, a certiorari to remove the 
prooeediDga for the purpose of quashing the 
order of sessions will not be granted, although 
the respondents receiyed no notice of trial, as re- 
quired by a rule of court of the sessions, and 
were consequently wholly unprepared for the 
trial. Rex v. Yorkshire, £. R. (Justices), 3 Ney. 
A M. 93. 580 

A certiorari remoying an order of sessions, 
which order, upon being sent back to the ses- 
Bons for restatement, is reversed by them, does 
not operate to remove the new order of sessions. 
Rex V. Bloxam, 3 Nev. & M. 385: 1 Adol. A 
Ellis, 386. 680 

The party complaining of the second order i^ 
the party who must remove it. id. 

A certiorari does not lie to remove an order of 
sessions made more than six months previously, 
althoii£b the delay was occasioned by causes 
over which the prosecaior had no control, id. 

Notice to a magistrate (under 1 3 Geo. 2, c. 18, 
s. 5,) of intention to move for a certiorari ** on 
the 6rst day of next term, or so soon afler as 1 
can be heard :" — Held irregular, if served on the 
first day of that term, though the party does not, 
IB fact, move till after the expiration of six days 
— Oenman, C. J., dubitante. In re Flounders, 4 
B. A Adol. 865 ; 1 Nev. & M. 5U2: 58^ 

t 
The notice required by 13 Geo. 2, c. 18, s. 5, 
of intention to move for a certiorari to remove an 
order of justices, must be made six days, com- 
puted one day exclusive and one day inclusive, 
oefore the rule nisi is applied for: therefore, 
where notice was given on tne 20th for a motion 
on the 25th, and the motion was made on that 
day, it was. held insufficient, and the rule was 
discharged, but without costs. Rex v. Cumber- 
land (Justices), 4 Nev. A^ M. 378 ; 1 Har. A Woll. 
16: 8. P. Rex V. Goodenough,2 Adol. & Ellis, 
463. 560' 

Where an act of parliament, enabling a com- 
paay to make certain canals, Ac.^ directs that ques- 
tions of compensation, &c. shall be tried by a 
jory, before the justices at quarter sessions, and 
expressly takes away the certiorari, and a sub- 
sequent act, enabling the company to make cer- 
tain other canals, directs that the former act, 
and all powers, provisions, exceptions, rules, 
remediei^ regulations, penalties, forfeitures, 
articles, matters, and thin^ therein contained, 
shaD be in full force, and snail extend to and be 
naed, executed, applied, enforced and put in ex- 
ecution, to aU intents and purposes, as to that 
act and the several matters ana things therein 
contained, (or making and maintaming the 
canals, dEcc. to be made by virtue of that act, and 
for carrying the several purposes of that act into 
execution in as ample and beneficial a manner, 
to all intents and purposes, as if the same had 
been respectively re-enacted in the body to that 
act: — Held, that the clause taking away the 
eertiorxii must be considered as embodied m the 



latter act. Rex v. Yorkshire, W. R. (Justices), 
3 Nev. &M. 802. 580' 

And in such case the court will not grant » 
mandamus to the justices or clerk of the peace 
to enter up judcnnent upon the verdict of a 
jury, otherwise tnan in tne terms in which it 
is given by the jury, even though it appear by 
affidavit, that in considering the amount of 
damages to be assessed by them, they took into 
consiaeration matters not properly within their 
jurisdiction. Id. 

So, though it should appear upon the ftce of 
the proceedings that the junr have assessed 
separate damages, in respect of matters foreign 
to their jurisdiction. Id. 

But such a finding would be a nullity, and 
could not be enforced. Id. 

Proceedings. ] — A rule for a certiorari to remove- 
a record from an inferior jurisdiction is absolnte- 
in the first instance. Pawsey v. Gooday, 3 Dowl. 
P.C.605. 582 

A judge's order or fiat for a certiorari to issue- 
in vacation can only be granted nisi. Rex v. 
Chipping Sodbury, 3 Nev. A M. 104. 583 

The rule for a certiorari, under' the 19 Geo. 3, 
c. 70, s. 4, is absolute in the first instance, and 
applies to all cases where the defendant remove* 
himself and his effects out of the inferior juris- 
diction. Knowles v. Lynch, 2 Dowl. P. C. 623. 

58a 

When a certiorari was directed to the justicee- 
of the peace, and also to the clerk of the peace^ 
and the return was signed by the clerk of the 
peace, but was not sealed, the court sent back 
the return to be amended. Rex v. Macnamara^ 
1 Alcock & Napier, 61. (Irish.) 68a 

An indictment for a nuisance in keeping & 
common gaming house was preferred by a pri- 
vate prosecutor, who, after removing it by cer- 
tioran, proceeded no further. Another party thei> 
caused a venire to be issued, and other steps- 
taken for bringing the case to trial, though de<^ 
sired by the original prosecutor to forbear. On 
motion by the Tatter for a stay of proceedings,, 
(he alleging that the ofience had been discon- 
tinued,) the court refused to interfere, the pro* 
secution being for a public nuisance. Rex v. 
Wood, 3 B. dt Adol. 657. 583 

The court will not ^uash a writ of certiorari^ 
unless thereis an admission, or something tanta- 
mount to it, by the party suihg it out, that he 
has done it for tho purpose of delay. Landen* 
V. Sheil, 3 Dowl. P. C. 90. 582 



CHARITY. 

In the administration of charity property^ 

given, not for purposee of individual benefit, 
ut for performance of duties, if the revenues in- 
crease so as to exceed a reasonable compensation 
for the duties, the surplus must be applied to 
other charitable purposes. Att. Gren. v. Bient^ 
wood Schoolmaster, 1 Mylne A K. 376. 584 



3394 



[CHOSE IN ACTION— COMMON] 



CHOSE IN ACTION. 

A chose in action, not coupled with any partial 
interest in poBsession, and which cannot be re- 
duced into possession without a suit, is not as- 
signable in equity. Prosaer v. £dmonds, 1 Y. & 
Col. 481. 586 

An assignment of a bare right to file a bill in 
«quity for a firaud committed on the assignor, is 
contrary to sound policy, and void; therefore, 
where A., who was entitled to certain property 
under his father's will, for a valuable considera- 
tion, assigned the whole of that property ^zcept 
a reversionary interest in the runds) toB., his 
fiitber's executor, and ailerwards assigned the 
whole of his interest under his father's will (in- 
cluding, therefore, the reversionary interest) to 
C : — Held, that C. could not maintain a bill to 
set aside the first assignment, on the ground of 
fraud committed by B. agrainst A., the latter re-/ 
fusing to join as plaintiff m the suit. Id. 

If a cestui que trust assign his interest, and 
the assignee do not give notice to the trustee, but 
assign over, the new assignee need not five no- 
tice. £z parte Newton, 2 Mont. <& Ayr. Bl . 586 

The court will not grant a special injunction 
against the assignees of a bond, to restrain an 
action brought by them in the name of Uie as- 
signor. Portarlington (Lord) r. Graham, 5 Si- 
mon, 417. 586 



COMMON. 

Declaration for trespasses in W. : plea, that 
W. is part of a waste called D., over which the 
defendant had common appurtenant by prescrip- 
tion: replication, that W. had been inclosed and 
severed from the waste, and held adversely to 
the commoners for twenty years. This replica- 
tion is maintained by evi(ience that part of W. 
had been inclosed twenty years, and part not; 
and that the alleged trespasses were committed 
in both parts. Tapley v. lYainwright, 2 Nev. & 
M. 697 ; 5 B. & Adol. 395. 592 

If a tenant makes an encroachment adjoining 
to the farm he rents, this encroachment will be 
for the benefit of his landlord, unless it appear 
clearly from some act done at the time, that the 
tenant intended to make the encroachment for 
his own benefit, and not to hold it as he held the 
farm. Doe d. Lewis v. Rees, 6 C. & P. 610— 
Parke. 591 

An inclosuse of waste lands had been made on 
a manor belonging to the crown, which was held 
for 23 years without payment of rent, or other 
acknowledgment. The manor was sold in fee by 
certain commissioners, by virtue of 57 Geo. 3, c. 
97, to the lessor of the plaintiff, who brought an 
ejectment to recover the inclosure .- — Held, that 
although the crown might have ousted the party 
in possession of the inclosure, the lessor of the 
plamtiff was not entitled to bring an ejectment. 
Doe d. Wall or Watt v. Morris, 2 Scott, 277 ; 1 

591 



Hodges, 215. 

The commissioners have no power under 57 
Geo. 3, c. 97, to sell to a subject the right to re- 



cover property to which the crown bad only a 
right of possession. Id. 

Prima facie, the lord of the manor is entitled 
to all waste lands withm the manor ; and it is not 
essential that the lord should show acts of owner- 
ship of such lands ; and evidence that the public 
have been used to throw rubbish on waste land is 
rather evidence that it belongs to the lord than 
to any private individual. If a person, w^ilhin 
twenty ^ears, inclose a portion of the lord's waste 
by the licence of the lord, such person cannot be 
turned out of the possession of it by the lord 
without some act bemg done, from which a legal 
revocation of the licence can be inferred. Prima 
facie, every inclosure made by a tenant adjoin- 
ing the demised premises is presumed to be made 
by him for the benefit of the landlord ; but this 

{>resumption may be rebutted by evidence. If a 
essee mclose land which is near the demised 
premises, as being part of the premises comprised 
m his lease, this is not an adverse possession 
a^nst his landlord ; and a twenty years' posses- 
sion by him will not enable him to retain posses- 
sion of the inclosed land against his landlord. 
Doe d. Dunraven v. Williams, 7 C. & P. ^si — 
Coleridge. 591 

The General Inclosure Act, so ^ as it enacts 
that the commissioners' oath, and the appoint- 
ment of any new commissioner, shall be annexed 
to and inrolled with the award, is merely diree- 
toiT* Cassamajor v. Strode, 5 Sim. 87 ; 2Mylne 
&, K. 706. 593 

An inclosure act directed allotments to be 
made to A., as a full compensation for his right 
to the soil of the waste as lord of the manor, 
for his right to the tithes as rector, and for his 
right of common. Part of the waste had been 
used by the lord as a rabbit-warren, but no 
mention of it as such was made in the inclosunQ 
act, nor did it appear that the lord had any right 
of warren in the waste. The commissioners 
made an allotment to A. as a full compensation 
for his right and interest in the warren, and also 
three other allotments as a full .compensation for 
his rights above-mentioned : — Held, that A.'s 
title to the allotment in respect to the warren 
could not be objected to, as that allotment was a 
portion of the lord's compensation for his right 
of soil. Id. 

Allotment for roads. Thaekrah v. Seymour, 
IC. &M. 18; 3Tyr. 97. 595 

A modus of 10s. a year was payable to an im- ' 
propriate rector, in lieu of all the tithes of a farm, 
to which farm were appurtenant rights of com- 
mon in two several townships, B. and C. Under 
an inclosure act, to which the impropriator was a 
party, the common lands in the township of B. 
were inclosed, and allotments made to the im- 
propriator in lieu of tithes, moduses, prescrip- 
tions, and customary payments. The act cu- 
rected, that, when tfaie allotment should be made 
to the impropriator, all tithes, moduses, pre- 
scriptions, and customary payments should cease, 
and be for ever extinguished, hy a contempo- 
raneous act, to which me impropriator was not a 
party, the common lands in the township of C. 
were also inclosed : — ^Held, that the impropriator 



[COMMON] 



2395 



bein^ onhr entitled to a modus in reflect of the 
&nna and commonB appurtenant, and the modus 
haTJng been extinguished under the provisions 
of the first-mentioned act, he was not entitled to 
tithes of the allotments made in respect of the 
Arm under the other act. Jackson 0. Douglas, 1 
Yoonge, 391. 598 

By an act for inclosing lands in a parish and 
extinguishing its tithes, the commissioner was 
directed to value the tithes, as being equal to a 
filed proportion of the net annual value of the 
lands, and then po find an equivalent corn-rent ; 
and bj his award, or some previous writing un- 
der his hand, to be annexeu thereto, to set forth 
the same, and to apportion the corn-rent upon 
the lands of the respective proprietors, and to fix 
when the first payment of the Qorn-rent should 
be made, and when the tithes should be extin- 
^ished ; and a right was given to any person ag- 
grived by any thing done in pursuance of that act, 
to appeal to any general or quarter sessions in the 
county, held within four months next ailer Uie 
cause of complaint should have arisen. The 
commissioners having determined the amount of 
the corn-rent, and fixed the day for the first 
qoarterly payment of it, and also the day from 
which the tithes should cease and be extinguiish- 
ed, by a previous writing, which aflerwards was 
annexed to the award : — Held, that an appeal by 
the rector on the ground of the corn-rent being 
inadequate, must be within four months of such 
prerious writing, and that an appeal within four 
months of the date of award was not in time. 
Rez r. Nockolds, 3 Nev. & M. 334 ; 1 Adol. 6l 
£nis, 345. 596 

Semble, that no notice of the corn-rents hav- 
ing been fixed, and the tithes extinguished by 
the previous writing, was requisite, though the 
act veqatied that all notices necessary to be given 
by the commiBsioners should be given in a par- 
ticiilar way, eight days before the period for doing 
the bosiness to which such notice should relate. 
R 

But held, that, supposing that the four months 
could not l>e allowed to run until the party in- 
tended had notice that his rights had been af- 
fected, notice given by the commissioner in the 
manner required by the act in other cases was suf- 
fioent, although the notice, which stated in ge- 
neral terms what had been done, referred for par- 
ticolara to a schedule deposited at a distant 
place; and held, also, that private notice was 
■officient. Id. 

# • 

la trespass for breaking and entering the cl(^ 
of the corporation of 6., the defrndant's pleas 
■etootsn act for inclosing common lands in B., 
which recited that the corporation as lords of 
tha manor, were owners of the soil, and other 
pnsons were proprietoa of lands over which 
rights, of common were exercised ; the commis- 
noners were directed to make certain allotihents 
to iocb lords and proprietors, and it was enacted 
that they should set out as a common pasture, 
out of certain commons in G., called the £., and 
W. commons, such plots of land as should be a 
fall compensation for the rights of common of 
all the owners and proprietors of commonable' 

Vol. IV. 16 



messuages for such messuages only ; and that 
such plots of land should be used, stocked, and 
enjoyed by such owners and proprietors, and 
their respective tenants and occupiers of the 
said messuages only, as a common pasture, in 
such manner as the commissioners should .direct. 
Parties dissatisfied to bring actions within three 
months against persons in whose favor award 
made, or appeal within six months to the sessions 
against the award ; but in default of such action 
or appeal the award to be final. The commis- 
sioners allotted a plot of ground in the W. com- 
mon, as common of pasture, to be used, stocked, 
and enjoyed by the owners and proprietors of 
commonable messuages, and their respective ten- 
ants and occupiers of th^said messuages only 
having right of common upon the said common 
of G., and they stinted the common as empow- 
ered bv tlie act. The commisioners also (mter 
alia) allotted lands to the corporation in respect 
of their interest as lords of the soil in G. The 
right of common had always been, up to the 
passing of the act, in the occupiers of common- 
able messuages, being freeman of G. After the 
act, a party, bein^ the proprietor and occupier of 
one of the commonable messuages, but not be- 
ing a freeman of the borough, put his beasts 
upon the common ; whereupon the corporation 
brought trespass against him more than six 
months aller the passing of the act. Upon de- 
murrer, ibQ court held that the act did not change 
the nature of the rights of common, by giving 
them to the owners of commonable messuages, 
who were not bursesses ; and that therefore the 
commissioners had no power to create such new 
rights. And they held that the language of the 
award had no other efiTect than to ascertain the 
spot on which the right was to be exercised, with- 
out altering the nature of the right; and that 
the action was therefore well brought, though 
more than six months had elapsed since the 
making of the award. Godmanchester (Bailiffs, 
<&c.) V. Phillips, 2 Nev. & M. 713; 5 B. & Adol. 
Idd. 599 

By a local act all rights of common whatever 
in B. were extinguished : the wastes were divided 3 
the owners of^ allotments were directed to in- 
close; and authorized to distrain the cattle of 
strangers trespassing. No fence having been 
made : — Held, that the owner of an allotment 
in B. could not distrain cattle which had strayed 
into his allotment from a common in W., in pur- 
suance of an alleged right of common pur cause 
de vicinage in the inhabitants of W. Wells v. 
Pearey, 1 Scott, 426 ; 1 Bing. N. R. 556. 599 

Semble, that the cattle would be liable to dis- 
tress, or the owner to an action of trespass, not- 
withstanding the want or defect offences, if the 
cattle were sufi^ered to remain in the locus in quo 
after notice to the owner that Uiey were trespass- 
ing there. Id. 

Quere, whether a notice in fact to the com- 
missioners of W., (without inclosure), that all the 
rights of common in B. were extinguished, would 
put an end to the legal excuse ofuespasses pur 
cause de vicinage ? Id. 



2906 



[CONTRACT] 



CONTRACT. 

Making.] — The fint count of a declaration in 
assumpsit stated, that the plaintiffs were possess- 
ed of lands for the remainder of three terms of 
years, which respectively commenced on the 15th 
of February, 17ti5 ; that they put them up to 
auction, subject to a condition that the purchaser 
should take the stock in trade thereon at a 
valuation to be made by two persons ; and that 
the amount of such stock was valued by them at 
b922. 6t. 4d.y and assijrned for breach non-pay- 
ment of the same. The second count was for lands 
bargained and sold for the remainder of the 
terms then unexpired, as well as for ffoods bar> 
gained and sold. On the production ofthe leases 
under which the plaintiffs derived title, they were 
dated on the 15th of February, habendum, from 
the day of that date ; and the valuation given in 
evidence, afler setting forth the prices of each 
article, contained a condition that certain pans 
then in use were valued as sound, but should any 
of them prove broken the first time of using, 
the valuers agreed to estimate an allowance to 
be made thereon : — Held, thatiit was immaterial 
to set out in the declaration the precise day on 
which the leases bore date, and, that the valua- 
tion might be considered ^s absolute, as it was 
not proved that any of the pans were broken at 
the time specified, and consequently that there 
was no varian ce. Welsh v. Fisher, 2 Moore, 378. 

604 

A. agreed to sell to B. his interest in a public- 
house, and his furniture, &c., at an appraisement, 
to be made by two appraisers, the same to be 
paid for on B. s taking possession, which was to 
be on or before the 25th March then next ; and 
302. was paid bv B. as a deposit ; and he agreed 
that if he should not complete his part of the 
ijgreement the sum so paid should be forfrited. 
liie buyer and seller appointed appraisers re- 
spectively. On the 25th of March the two ap- 
praisers met, and the seller's appraiser was then 
informed that the appraiser of the buyer could 
not conveniently on that day complete the valu- 
ation, but would finish the business the next day ; 
no objection was made to the proposed delay. 
The appraiser of the buyer went to the seller's 
premises the following day to make the valuation, 
but the seller refused^ to allow him so to do, and 
said he would not complete the contract: — 
Held, that, under the circumstances, it was in- 
cumbent on the seller if he intended to insist 
that the contract should be compeleted on the 
day mentioned in the agreement, to have noti- 
fied such intention to the buyer, and not having 
so done, that the latter was entitled to recover 
back the deposit. Carpenter v. Blandford, 8 B. 
&C. 575; 3 M. &R. 93. 604 



Statutes of Frauds.]— A., on the 20th of July, 
made proposals in writing (unsigned) to B., to 
enter his service as bailiff for a year, B. took the 
proposals and went away, and entered into A.'s 
service on the 24th of July :— Held, that this 
was a contract on the 20th, not to be performed 
within the space of one year from the making, I 
and within th^ fourth section of the statute oft 



frauds. Spelling v. HantiHgfield (Lord), 1 C. M. 
&R.20; 4Tyr.606. 604 

A beneficed clergyman entered into an agree- 
ment to permit the profits of his living to be re- 
ceived by a third person, for the purpose of the 
surplus (after paymg a competent stipend to & 
curate to serve the church) being applied in 
liquidation of his debts: — Held, that such an 
agreement, signed by the creditors only, and not 
by the debtor, or by any person thereunto by him 
lawfully authorized, does not amount to such a 
substitution of a new agreement in the place of 
an old contract as to operate as a bar to an ac- 
tion at the suit of a creditor who has signed it ; 
it being a contract ^ for an interest in or con- 
cerning lands, tenements, or hereditaments," 
within the statute of frauds. Alchin v. Hopkins, 
4 M. & Scott. 615 ; 1 Bing. N. R. 99. 604 

Validity generally. ] — A party cannot enforce 
a contract where the consideration is illegal, 
either wholly or in part. Waite v. Jones, 1 Scott, 
730; 1 Bing. N. R. 656 ; I Hodges, 166. 605 

The declaration stated that the defendant sign- 
ed a memorandum in writing, whereby he agreed 
with the plaintiff (amongst other things) to pay 
him certain specified sums towards the liqui- 
dation of certain debts, in consideration of the 
plaintiff's executing a certain deed of separation, 
and agreeing to pay the said debts in full ; that 
the puiintiff, confiding in the defendant's agree- 
ment, executed the said deed of separation ; that 
is Uf say, a certain deed of separation between the 
plaintiff and his wife, and agreed to pay the debts 
m full, &c. The defendant pleaded, that, at the 
time of making the agreement, the plaintiff was 
solely liable to make the several payments, the 
supposed agreement by the plaintiff to psy which 
was by the memorandum stated to be Uie con- 
sideration for the defendant agreeing, as was al- 
leged to be in the said memorandum agreed by 
him : — Held, that the plea was no answer to the 
declaration, inasmuch as it disclosed no facts 
tending to show that any part of the considera- 
tion for the defendant's promise was illegal. Id. 

lllefirality of consideration roust be pleaded 
specially as a defence, not only where the ex- 
press contract on which a plaintiff sues is illegal, 
but also where illegal services having been per- 
formed, no contract to pay for them can be im- 
plied. Potts V, Sparrow, I Bing. N. R. 594 ; 1 
Scott, 578; 3 Dowl. P. C. 630; 1 Hodgs, 135. 

605 

In assumpsit by an attorney to recover his bill 
of costs for preparing a deed, and also costs of 
an action instituted in pursuance of that deed, in 
which action his client had failed in consequence 
of the deed having been held void on the ground 
of maintenance : — Held, that the defendant could 
not set up the illegality ofthe contract in answer 
to the action under a plea of non-assumpsit. Id. 

A contract made between two or more persons 
to enter into a partnership in contravention of 
the law is void, and confers no rights upon either 

garty. Armstrong v. Lewis (in error), 4 M. db 
cott, 1. 608 

Quiere, whether a legal partnership could exist 



[CONTRACT] 



2397 



in the profits of sworn clerk or side clerk of the 
court of £xcheqaer, as those offices were formerly 
eoDstitnted ? or, whether such a partnership can 
at present exist in the profits of the office of clerk 
of the rules of that court ? Clark v. Richards, 
1 Y. & Col. 351. 616 



Legol Proceedings.] — Where an action has 
heen commenced tor an unliquidated demand^ 
payment by the defendant of an agreed sum in 
discharge of such demand is a good considera- 
tion for a promise bj the plaintinT to stay pro- 
ceedings, and pay his own costs. And, per Lit- 
tledale, eyen in the case of a liquidated de- 
mand, the same promise made in consideration 
of the payment of such demand may be enforced 
in an action of assumpsit, where the agreement 
has been snch that the court would stay proceed- 
ings if the plaintiff attempted to go on. Wil- 
kiuBon V. Byers, 1 Add. & Ellis, 1U6 ; 3 Nev. A 
M.853. 606 

Money paid by A. to fi., in order to compro- 
mise a qui tam action of usury brought by B. 
against A., on the ground of an usurious trans- 
action between the latter and one £. may be re- 
covered back in an action by A. for money had 
and received ; for the prohibition and penalties 
of the Stat. 18 £liz. c. 5, attach only on the 
** informer or plaintiff, or other person suing out 
process in the penal action, making composi- 
tion," Ac, contrary to the statute ; and not upon 
the party paying the composition ; and therefore 
the latter does not stand, in this respect, in pari 
delicto, nor is he particeps criminis with such 
compounding informer or plaintiff. Williams v. 
Medley, 8 East, 378. 606 

And such recovery may be had although E.'s 
assignees had before recovered from B. Uie mo- 
ney so received |by him as money received to 
their use, (the money paid by way of composi- 
tion being at the time suted to be E.'s money :) 
there being no evidence at the trial of the cause 
to show mat A., the plaintiff, was privy to that 
suit. Id. 

In consideration that plaintiff had published 
A libel at defendant's request, and had at the 
like request consented to defend an action 
brought agunst plaintiff for such publication, 
defendant promised to indemhify plaintiff from 
the eosts of the action: — Held, that the pro- 
mise was void. Shaekell v, Roeier, 2 Bing. N. 
R.634. 606 

TVadmg.] — In construing a covenant not to 
carry on any offensive trade or business on pre- 
mises demised, much will depend on the situa- 
tion of the premises ; and in construing such a 
covenant, ft is particularly Worthy of considera- 
tion, whether such trade as that complained of 
was carried on there at the time of the demise ; 
and, semble, that a trade carried on there at the 
lime of the demise, would not be within the 
covenant. Gutteridge v. Munyard, 7 C. &• P. 
129; 1 M. & Rob. 33i— Tindal. 609 



for twentjr-one years to A. B., his 
exeenton, aidministnLtors, and assigrns. Proviso, 
thai if A. B., his ezecuiors, administrators, and 



assigns should become bankrupt or insolvent, or 
suffer any judgment to be entered against him, 
«&c. by confession or otherwise, or suner any ex- 
tent, process, or proceedings to be had or taken 
against him, whereby any reasonable probability 
might arise of tlie estate being extended, &c., the 
estate should determine, and the lessor have 
power to re-enler. A. B. died durtngr the term, 
and by his will devised the premises to his 
executors on certain trusts. The surviving ex- 
ecutor having become bankrupt : — Held, that the 
lessor's right of re-enlering thereupon accrued. 
Doe d. Bridgman v. David, 1 C. M. & R. 405 ; 5 
Tyr.125 : S. C. nom. Doe d. Williams v. Davis, 
6C.&P.614. 609 

The converting of a demised house into a lu- 
natic asylum, is not a breach of a covenant not 
to **U8e or exercise any trade or business of 
butcher, baker, slaughtermi^n, melter of tallow, 
tallow chandler, tobacco-pipe maker, soap boiler, 
or any other offensive trade." Doe d. Wetherell 
V. Bird, 4 Nev. dit M. 285} 2 Adol. A Ellis, 161. 

609 

In snch a covenant, the words ** trades" and 
*' business," must be taken to be used in differ- 
ent senses, and the former must be confined to 
businesses conducted by buying and selling. Id. 

The plaintiffii, lessees of premises under a de- 
mise, with a covenant not to suffer certain trades 
to be carried on therein, amongst others, those of 
a ^* common brewer" or *• retailer of beer," 
without the licence of the assignor, underleased 
to the defendant who covenanted in like manner 
not to carry on the trades prohibited without the 
licence of the plaintiffs. The defendant (under 
a licence from the plaintiffs) carried on the busi- 
ness of a ** retail brewer" on the demised pre- 
mises ; whereupon the superior landlord brought 
an ejectment lor the supposed forfeiture, which 
not being defended, he obtained possession ', — 
Semble, that this recovery in the ejectment by 
the superior landlord, was no answer on the part 
of the defendant to a demand for rent by his 
lessors, a ** retail brewer" not being within the 
proviso in the original lease. Simons v. Farren, 
4 M. & Scott, 672 ', I Bing. N. R. 126. 609 

In covenant for non-payment of rent reserved 
by a lease containing a clause prohibiting the 
carrying on of certain trades upon the demised 
premises without the licence of the lessor, the 
defendant pleaded that his immediate lessor, who 
held under one A. C, subject to a similar cove- 
nant, gave him a licence to carry on one of those 
trades, and that by reason, and on the ground 
that the defendant so carried on such trade, 
R. C ^* having good right and title to the demised 
premises as heir at law of A. C." evicted the de- 
fendant: — Held, that, the plea not negativing 
that the trade was carried on with the licence m 
the original lessor, did not disclose such right in 
R. C. to evict, as to afford an answer to the plain- 
tiff 's claim for rent Simons v. Battley, 1 Scott, 
105. 609 

The usual covenants between landlord and 
tenant will not extend to covenants in restraint 
of trade. And a stipulation that the nrerai- 
ges should not be converted into a school does 



2396 



[CONTRACT] 



not implj, and cannot be extended to, a restric- 
tion against the carrying on of other trades. Van 
9. Corpe, 3 Mylne & Keen, 269. 609 

Maintenarue.l — Agreement to lease the recto- 
rial tithes of a parish, including the tithes of 
ninety acres supposed to be wiUiin the parish, 
but which had not paid tithes to the lessor during 
his incumbency, with a stipulation that the in- 
tended lessee would, within a given time, take 
such legal proceedings for the recovery of the 
tithes of the ninety acres as his counsel should 
advise: — Held, not to be within the statute of 
maintenance. White r. Gardner, 1 Y. & Col. 
385. G13 

Courts 7>f equity will give no encouragement to 
contracts which savor of maintenance, or cham- 
perty, though such contracts may not be within 
the strict legal limits assigned to those offences. 
Prosser v. Edmonds, 1 Y. &. Col. 481. 613 

It is not maintenance to purchase an interest 
which is the subject of a suit ; but if the pur- 
chaser give an indemnity against all the costs that 
have b^n or may be incurred by the seller in the 
prosecution of the suit, the transaction amounts 
to maintenance. Harrington v. Long, 2 Mylne 
4d K. 590. 613 

Where, after a decree in a creditor's suit, the 
plaintiff sold a debt which he had proved in the 
cause, and took from the purchaser a deed of in- 
demnity against all expenses which he had in- 
curred and might incur in the suit, and his 
name continued to be used as plaintiff in the suit, 
together with that of the purchaser, it was held, 
that the transaction amounted to maintenance, 
and the bill was, upon that ground, dismissed. 
Id. 

The defendants stated, that in consideration 
that the plaintiff, at the request of the defendant, 
had given the defendant a certain letter, by 
means of which he was enabled to end disputes 
and differences which had arisen between himself 
and third parties, and to recover certain propertv, 
the defendant promised to give the plaintiff lOOOe.: 
— Held, that this declaration disclosed a suffi- 
cient eonsideration for the defendant's promise. 
Wilkinson v. Oliveria, 1 Scott, 461 ; 1 £ing. N. 
R. 490. 613 

T^e court will not order an attorney to repay a 
sum of money paid to him voluntarily, under an 
agreement to give him one-third of what was re- 
covered in an action, the application not having 
been made until thirteen years after the money 
was paid. Ex parte Yeatman, 4 Dowl. P. C. 304 ; 
1 Har. & WoU. 510. 613 

Where an attorney agreed to save a party 
harmless from all costs of some suits, on his being 
allowed to retain half of whatever sums were re- 
covered, the court nevertheless ordered him, on 
application of the partv with whom the agreement 
was made, to deliver his bill of costs for the pur- 
pose of having it taxed. In re Masters, 1 Har. A 
WoU. 348. 613 

Such an agreement amounts to maintenance, 
and is illegal. Id. 

Quere whether a conveyance by amignees of 



a bankrupt, where neither bankrupt nor aasignees 
have been in possession within a year, amounts 
to embracery P Doe d. Oliver v. Powell, 3 Nev. & 
M. 616. 613 



Bankrupts and Insolvents.'] — A fiat in bank> 
ruptcy issuedfagainst the defendant on the peti- 
tion of the plaintiff. After the fiat, and before the 
choice of assignees, the plaintiff obtained from the 
bankrupt his acceptance for part of his debt. 
The plaintiff was ailerwards chosen one of the 
assignees, and the defendant obtained his certi- 
ficate : — Held, that it was not competent to the 
plaintiff to sue upon the bill; the security beings 
void, both as being contrary(to the policy of the 
bankrupt law generally, and contrary to the spirit 
of the 8th sect, of the 6 Geo. 4, c. 16. Rose v. 
Main, 1 Scott, 127 ; 1 Ring. N. R. 357. 618 

An agreement between a petitioning creditor^ 
who has sued out a fiat in bankruptcy, and the 
bankrupt, that the former shall abandon the pro- 
secution of the fiat, and that the bankrupt shall 
accept a bill of exchange for a certain amount, is 
illegal, even as between the bankrupt and the 
petitioning creditor ; and the bill of exchange ac- 
cepted by the bankrupt, in pursuance of such an 
agreement, is void, and no action can be main- 
tained upon it. Davis v. Holding, 1 Mees. db 

Weis 159. em 

Where creditors call on a stranger to a bank- 
rupt's estate to be the assignee, and he, having 
declared he will not be liable to costs, assents to 
their appointment, an agreement by the peti- 
tioning creditor, who was also solicitor to the 
commission, to indemnify him a^inst costs, is 
not illegal. Gilmour v. King, 3 fVr. 581 : 1 C. 
& M. 612. 618 

Plaintiff, an attorney, condnoting a commission 
of bankruptc^r, having received a debt due to 
the bankrupt, in order to effect an arrangement 
for a supersedeas, undertook to pay the defendant, 
solicitor of the bankrupt, the surplus of the sum 
so received, should any remain, after defraying 
certain charges incurred bpr the plaintiff, if de- 
fendant would pay plaintiff his costs of conduct- 
ing the commission : — Held, not a sufficient con- 
sideration to support an action against Uie defend- 
ant on his promise to pay the plaintiff's costs, 
without an averment and proof that the commis- 
sion had been superseded, as the contract without 
a supersedeas was illegal. Haslam v. Sherwood, 
4 M. & Scott, 434 ; 10 Ring. 541. 618 

Ry 5 & 6 Will. 4, c. 41, w much of the 6 Geo. 
4, c. 16, as enacts that any note, bUl, or mortgage 
shaU be void by reason of being given on an agrees 
ment to sign a bankrupts certificaie is repealed^ 
and it is enacted instead, that suck securities skail 
be deemed and taken to hare been made, drawn^ 
accepted, given, or executed for an illegal conside- 
ration on^. 618 

An agreement was made to withdraw the op- 
position to a person's discharge under the Insol- 
vent Debtor's Act on consideration of his giving 
a bill for the debt, and his son guaranteeing the 
payment of it, and the opposition waa with- 



[CONTRACT] 



2399 



drawn, and ailer the discharge the bill was given : 
— Held, that such bill was contrary to the policy 
of the losoWent Debtors Act; and the party 
having been arrested on it, tlie bail-bond was 
ordered to be delivered up to be cancelled. 
Gould V. Williams, 4 Dowl. F. C. 91 ; 1 Har. & 
VVoU. 344. 618 

Other Matters.^ — A bond is good with a con- 
dition to be forfeited if defendant sheill hire one 
C, so as to give him a settlement in S., <&c. 
Whiting V. Funchard, 3 Wils. 50. 618 

Where a statute contains regulations for the 
protection of buyers against the iraud of sellers, 
a seller cannot recover for tlie price of goods sold 
in contravention of the regulations, although the 
statute does not in terms prohibit such a sale, 
bat imposes a penalty upon the seller. Where, 
therefore, butter was sold in firkins not branded 
according to the provision of acts (36 Geo. 3, c 
86, and 38 Geo. 3, c. 73) ** to prevent abuses 
and frauds in the packing, weight, and sale of 
butter,*' which require that makers of vessels for 
the packing of butter shall brand them with their 
names, under a pecuniary penalty, and that sel- 
lers of butter shall, under a further penalty, use 
vessels so branded, and brand their own names : 
— It was held, that an action for the price could 
not be maintained. Foster v* Taylor, 3 Nev. &. 
M. 244 ; 5 B. & Adol. 887. 619 

Secus, in the case of a breach of mere revenue 
regulation, which is enforced by a penalty. Id. 

A &ctor selling a parcel of prize manufactured 
tobacco, consigned to him from his correspon- 
dent at Guernsey, of which a regular entry was 
made on importation, but without having entered 
himself with the excise officer as a dealer in to- 
bacco, nor having any licence as such, may yet 
maintain an action afirainst the vendee for the 
value of the goods sold and delivered : and this, 
though the totucco were sent to the defendant 
without a permit, at his desire : there being no 
fraud upon the revenue, but at most a breach of 
revenue regulations protected by penalties ; even 
if auch factor could, upon this single and ac- 
cidental instance, be considered as a dealer in 
tobacco within the meaning of the stat. 29 Geo. 
3, c. 68, 8. 70, which requires every person who 
^all deal in tobacco first to take out a license, 
nnder a penalty. Johnson v. Hudson, 3 1 East, 
160. 619 

The court of Chancerv refused to carry into 
effect a deed between relations, dividing the pro- 
perty of a testator, under whose will they took 
interests, (one of the parties being also heir-at- 
law, and entitled to after-purchased lands), con- 
siderable benefits being given up by the heir 
without consideration ', it appearing on the deed 
that the parties did not understand the extent of 
their rights; and there being evidence of the 
mental imbecility, habitual intoxication, and ex- 
treme ignorance of the heir-at-law ; of his not 
understanding the nature of legal instruments, 
and of his having no professional adviser at the 
time be executed the deed ; although no direct 
fiaad or undue influence was proved, and the 
partjr acqnieaoed for five yean. Dannafe v. 
White, 1 WU». C. C. 67, ^ 614 



Relief against a disposition of property by the 
intended wife, pending a treaty of marriage, can 
only be given where the husband has been kept 
in ignorance of the transaction ; and semble, that, 
in applying the principle upon which convey- 
ances made by the intended wife, pending a 
treatyof marriage, are avoided, on the ground of 
fraud upon the marital right, the court' will take 
into consideration the meritorious object of such 
conveyances, and the situation of the intended 
husband in point of pecuniary means. George 
V. Wake, 1 Mylne & K. 610. 611 



Construction.'^ — If an agreement is in the al- 
ternative, and one branch of the alternative can- 
not by law be performed, the party is bound by 
law to perform the other. Stevens v. Webb, 7 C. 



& P. 60— Parke. 



621 



A. was in custody on a ca. sa., and, in consi- 
deration of the plaintifiT consenting to his dis- 
charge, B. agreed to pay 36^ or to surrender A. 
to the sheriff; A. on a subsequent day ofiTered to 
surrender himself to the sheriff, who would not 
retake him, as the plaintiff had consented to his 
discharge : — Held, that the agreement was abso- 
lute for the payment of the 35/., and that the 
other alternative was not satisfied by the offer of 
the surrender. Id. 

A previous agreement will be determined by a 
later one, which is necessarily inconsistent with 
it in effect, though not containing any ex- 
press stipulation in terms for so superseding it. 
On the 28th of May, 1831, plaintiff" agreed with 
the defendant for twelve months for the perform- 
ance of various literary works to be hereailer in- 
dicted by the defendant, the plaintiff to receive 
from the defendant for the same six guineas a 
week, and not to be at liberty during Uie above 
twelve months to engage in any publication si- 
milar to *' The Court Journal" mentioned in the 
agreement. By agreement between the same 
parties, dated 14th of October, 1831, the plain- 
tiff agreed to take on himself the various duties 
of editing the publication called '* The Court 
Journal,' recited to be then the entire property 
of the defendant, and to devote all his time and 
attention to the same, except the hours he had 
already engaged on Saturdays and Mondays, to 
superintend a paper named. The defendant f^as 
to pay the plaintiff 10/. a week : — ^Held, that the 
first agreement was superseded by the second, so 
that the plaintiff could not recover on the firat 
after the second came into operation. Patmoie 
V. Colburn, 4 Tyr. 840. 621 



An agreement on dissolution of partnership, 
to assign the partnership property in considera- 
tion of 50/. paid, and five bills for 100/. each de- 
livered, is not executory, but executed. Ex parte 
Gibson, 2 Mont. &, Ayr. 4. 621 

A contract to sell mess pork of Scott & Co., 
held to mean mess pork manufactured by Scott 
d^ Co.; also, that evidence was admissible to show 
the meaning that language bore in the market. 
Powell V. Horton, 2 Bmg. N. R. 668. G21 

I Where A., for a valuable consideration, con- 
tracted to sell and plant 70,000 trees, on certain 



24001 



[CONTRACT— COPYHOLD] 



lands of the defendant, and also well and suffi- 
ciently to keep in order the trees aforesaid, for 
two years next after the plantings thereof, and 
that such of them as should die during such 
period, except from injury by sheep, game, or 
cattle, should be replanted in tne autumns of the 
two years by him : — Held, that evidence of non- 
performance by A. of any part of his contract, 
py which the trees had Become of less value to 
the defendant, was admissible to reduce the da- 
ooages in an action on the agreement for their 
price, and for planting them. Allen v. Cameron, 
3 Tyr. 907. 621 

Semble, that this agreement meant to keep in 
order, not by pruning only, but by weeding and 
clearing the ground i£out the trees. Id. 

Semble, that if the terms of an agreement are 
equivocal, and do not distinctly explain what is 
to be done by either party, the price may be 
taken into considerarion in ascertaining the right 
construction, id. 

A stipulation that judgment shall not be en- 
tered up on a warrant of attorney, unless the 
conusor or insolvent, does not oust the co- 
nusee from the right to enter up judgment be- 
fore the day specified, if the conusor be in in- 
solvent circumstances, although he may not have 
become bankrupt or taken the benefit of an in- 
solvent debtors act. Biddlecomb v. Bond, 5 
Nev. &M.621. 621 

In a contract for the supply of goods, ^ there 
was a condition that in the event of the bank-' 
Tuptcy or insolvency of the vendor, the contract 
should be terminated, or if he should be afHicted 
in mind or body so as to be unable to carry on 
his trade : — Held, that there was nothing in the 
contract to show that the word ^^ insolvency" was 
used in a technical sense, and therefore it must 
be understood in its ordinary import of being 
unable to pay his just debts. Parker v. Gossage, 
2 C. M. & R. 617; 1 Tyr. & G. 105; 1 Gale, 
288. 621 

Indebitatus assumpsit for goods sold and de- 
livered ; it is no plea that the sale and delivery 
were in pursuance of a contract, which it was 
adteed should be wholly rescinded. Edwards v. 
Chapman, 4 Dowl. P. C. 7o2 ; 1 Mees. <fc Wels. 



Chapman, 
S31. 



621 



Proceedings in Equity,'] — A portv who, under a 
misapprehension of his legal rights, parts with 
his property for a bona fide and valuable, but not 
an adequate consideration, cannot have the trans- 
action set aside on the mere ground of mistake. 
MatshaU v. CoUett, 1 T. & Col. 232. 623 



COPYHOLD. 

The heir may, without admittance, devise co- 
pyhold estates decended upon him. King v. 
Turner, 1 Mylne & K. 456. GSS 

Where lands are held by copy of court roll, 
according to the custom of the manor, they are 
copyhold within the 55 Geo. 3, c. 192, although 
they are not held at the will of the lord. Doe d 



Edmunds v. Llewellyn, 2 C. M. di R. 503 ; 1 
Gale, 193. 624 

By a special verdict it was found, that pre- 
vious to the passing of the 55 Geo. 3, c. 192, 
there did not appear upon the court rolls of the 
manor, any entry of a surrender of lands parcel 
of the manor, and held by copy of court roll 
thereof, to such uses as should be declared by 
the last will of the person mdiing such surren- 
der, had ever been made : — Held, notwithstand- 
ing, that they were within the above statute. Id. 

Quaere, whether a negative custom that copy- 
hold lands surrendered to the use of a will, 
should not pass thereby, is good ^ Id. 

A . surrenders a copyhold to such uses as B. 
shall appoint, and in default of and until ap- 
pointment, to B. in fee ; B. appoints to C The 
lord is bound to admit C. witnout reouiring the 
previous admission of B. Rex v. Ounole (lord of 
manor), 3 Nev. «& M. 484 ; 1 Nev. & M.586; 1 
Adol. & Ellis, 285. 628 

In order to constitute the grantee of a copy- 
hold a perfect customary tenant, where the grant 
is made out of court, such grant must be notified 
at the next customary court, or at such other 
subsequent court as the custom points ojit, and 
must be entered on the rolls of the court Doe o. 
Whitaker, 3 Nev. dt M. 225. 628 

But it is sufficient if, having been entered on 
the court rolls at a void court as at a good court 
it appears on the court rolls at a subsequent 
good court, and be not then objected to by the 
tenants. Id. 

It is no objection to a copyhold grant that it 
is made upon the surrender of a former grantee 
in remainder, whose admittance had upon such 
former grant been expressly respitea, and of 
whose admittance at any subsequent time there 
was no entry in the court rolls. Id. 

Nor is it an objection to the grsnt of several 
customary tenements by one copy of court roll, 
that several rents are reserved, without specify- 
ing which is reserved out of each tenement, it 
appearing that former entire grants of the same 
several tenements have contamed similar entire 
reservations. Id. 

Nor is it an objection that two heriots are ex- 
pressed to be reserved, where in former grants 
only one heriot has been reserved. Id. 

A customary court cannot be held out of the 
manor, unless there be a custom to warrant it ; 
and if a court be so held, all that is done at it ia 
void. Id. 

But the nullity of such court only afilecte such 
things as are required to be done at a court. Id. 

A lord may grant to and admit a copyhold 
tenant, not only out of court but also out of the 
manor. Id . 

A grant by the lord in person is good, although 
it purport to be made at a court within the manor, 
which in fact was held out of the manor. Id. 

The steward of a manor may take a surrendtt 
out of court. Id. 

But a steward cannot admit out of court Id. 



[COPYHOLD— COPYRIGHT] 



2401 



Bot a rolantaxy grant of a copyhold, made hy 
the steward at a court held off the manor, is 
sufficient where such steward is also clothed with 
a power of attorney, which expressly authorizes 
him to make voluntary grants. Id. 

So, although the grant purport to be made by 
sach steward, as steward, and witliout any re> 
finenoe being made in the grant the special 
aothority. Id. 

A copy of court roll admitting a surrenderee, 
in trust ior the grantee of an annuity, there stated 
to be secured by the bond of the purchaser, and, 
subject thereto, to the use of the purchaser,- his 
executors, administiators, and assigns, requires 
in id valorem stamp in respect of Uie purchase 
mouey expressed to be so paid by the purchaser 
to the surrenderor, but witnout reference to the 
annuity — whether the statement is taken to refer 
to an annuity already granted, or to an annuity 
to be created in future. Doe d. Chapeau v. Rey- 
nolds, 2 Nev. & M. 383. 628 

A custom in a manor required that the con- 
sent of the husband to a surrender by his wife 
ahonld be expressed in the surrender and admis- 
Mon ; a surrrender was made by the wife at a ge- 
nenl court, and the husband was present at tnat 
court, but in the surrender the consent was not 
expressaed : — Held, that the surrender was inope- 
ntire. Doe d. Shelton v. Shelton, 4 Nev. ^ M. 
857; 3 Adol. & Ellis, 265 ; 1 Har. & WoU. 287. 

Held, also, that the court could not infer from 
circumstances that the husband's consent had 
been given. Id. 

Semble, that such a surrender would not be 
good, even if the husband were divested of all 
property at tlie time. Id. 628 

A copyhold was surrrendered to the use of A. for 
life; remainder to such person or persons, and for 
BQch estate or eatates, as A . should appoint by will, 
executed in the presence of and attested by three 
witnesses ; remainder, in default of such appoint- 
ment, to thft use of A. in fee : afler &5 Geo. 3, c. 
192, A. devised to B. by a will executed in the 
piesence of* two witnesses only : — Held, a good 
devise of the remainder in fee, and tliat the want 
of a surrender to the use of this will was aided 
bv the statute. Doe d. Hickman v. Hickman, 1 
Nev. &M. 780. 630 

A., being the owner of a copyhold, made a 
etmditional surrender of it, in the year 1826, to 
W., to secure money lent. In 1832, A. sold the 
copyhold to G., and made a surrender of it to 
bim absolutely. In 1833, G. was admitted te- 
aant ; and, in J 834, W. was also admitted tenant : 
^Held, that, on ejectment brought by W., he 
was entitled to recover. Doe d. Wheeler v. Gib- 
bons, 7 C. & P. 161— Park. 630 

A. dk B., joint tenants of a copyhold, make 
partition by parol without the assent of the lord, 
and after wards occupy in severalty. A. surren- 
ders to C. by general words. — C. is not entitled 
to be admitted to the parcels occupied by A. in 
ieveralty. Rex v. Southwood, 5 Al. & R. 414 

630 



Copyholds which have been surrendered to the 
use of the will, do not pass by a general devise of 
the real estate, where the will was made before 
the 55 Geo. 3, c. 192. Doe d. Smith v. Bird, 5 
B. & Adol. 695 ; 2 Nev. & M. 679. 630 

If in ejectment by the lord a^inst a copyholder, 
for a forfeiture by waste, the jury find there has 
been no damage, there is no wf^te and no for- 
ieiture. Doe d. Grubb v. Borlington (£arl), 9 
Nev. dk. M. 534 ; 5 B. dk Adol. 507. 633 

If a copyholder pull down a barn without any 
intention of rebuilding, the lord cannot recover 
the place from him on the ground of a forfeiture, 
if the jury find that the premises are not damaged. 

• A copyholder in fee surrendered to the use of 
another person, and afterwards, and before the ad- 
mittance of the Bucrenderee, committted and was 
convicted of simple felony : there being a custom 
in the manor that any tenant of customary tene- 
ments, who should commit and be convicted of 
felony, should forfeit his said tenements te the 
lord: — Held,4hat the surrenderor, before admits 
tance, was still tenant for the purpose of forfeit- 
ure, and that his estate was forfeited to the 
lord, and that the surrenderee not entitled to be ad- 
mitted Rex V. Mildmay, 5 B. &. Adol. 254. 

633 

Where a copyhold was surrendered to a mort- 
gagee and his administrators, and no condition 
was expressed in the surrender, and the mort- 
gagee died intestate and without an heir, it was 
neld that the lord of the manor was entitled to 
enter upon the copyhold as an escheat. Att.- 
Gen. V. Leeds (Duke), 2 Mylne dk K. 343. 

63a 



COPYRIGHT. 

The court of Chancery cannot specifically per> 
form an agreement, whereby A. agrees to com- 
pose and write reports of cases determined in i^ 
court of justice, to be printed and published by 
a particular individual, for a stipulated remune« 
ration, nor interfere by injunction to restrain the 
party from permitting the reports written by hxm 
to be published by another person ; the remedy^ 
if any, is at law. Clarke v. Price. 2 Wils. C. 6. 
167. 637 

Assumpsit for the copyright of a play. Plea, 
non assumpsit : — Held, that it could not be ob- 
jected that the assignment was not in writing, but 
that it ought to have been specially pleaded. 
Barnett v. Glossop, 1 Scott, 621 ; 1 Bing. N. R. 
633; 1 Hodges, 94. 638 

The assignee of the copyright of a dramatic 
work, printed and published within ten years of 
the passing of 3 dk 4 Will. 4, c. 15, and not the 
author, who has assigned such copyright, is en- 
titled to the sole right of representmg the piece 
or causing it to be represented. Cumberland v. 
Planche, 3 Nev. dk M. 537 : 1 Adol. 6i Ellis, 580. 

638 

So, where the work is printed and published 
subsequently to the act, and no reservation of the 



M03 



[COPYRIGHT— CORPORATION] 



ri^t to the ezeloaire vepRaentatkn m ezprevl j 
nnde bj the anthor. id. 

No action can be maintained far pirating a 
print, where the date of the first pablicationhas 
not been enmred on the plate, according to the 
proriaiona or 6 Geo. 2 c. 13, a. 1 ; the perform- 
anoe of the directions of the statute in that re- 
spect being a condition precedent to the right of 
propeitjr vesting in the proprietor. Brookes v. 
Coek,4 Ne¥. £. M. 652; 3 AdoL A Ellis, 138; 
1 Har. Jb WoH. 129. 639 

A. made a copj of a print invented by B. in 
colors and of larve demensions, and exhibited it 
as a diorama, llie coort refased to restrain the 
exhibition ontil the right had been established by 
hiw. Martin v. Wright, 6 Sim 297. 639 

Prints engraved and struck off abroad, bat 

foblished here, are not protected fh>m piracy, 
age V. Townsend, 5 Sim. 305. 639 

To pablish in the form of qoadrilles and 
waltzes, the airs of an opera of which there ex- 
ists an exclosive copyright, is an act of piracy. 
D'Ahnaine v. Boosej, 1 f. & Col. 289. cfe 

The English aasignee of the copyright of a fo- 
reign mosical composer is within the protection 
43€ the statntes relating to copyright Id. 

Semble, that a foreigner, who resides and pub- 
lishes in England, is within the like protection. 
Id. 

By the 5 ^b 6 Will. 4, c. 65, the author of any 
Ueture, or person to whom he hath sold or othenoise 
convent the eony thereof^ in order to dditer the 
same in any school^ seminary, institution^ or other 
fifux, or for any other purpose, is to have the sole 
right and liberty of prvnting and punishing such 
Uetvre ; and if any person shall, by taking doton the 
same in short-hand, or otherwise in vrriting, or in 
any other way, chtain or make a copy cf such lec- 
ture, and shaU print, lithograph, or otherwise copy 
and publish the same, without leave of the author 
or other person, ^., and etery person who, knotdng 
the same to have been printed or copied and puS- 
lished without such consent, shall sell, publish, or 
exffose to sale any such lecture, shall forfeit such 
printed or otherwise copied lecture or parts there- 
of, together with one penny per sheet, to be reco- 
vered by action of debt. 

By H. 2, the penalty is imposed for publication 
in newspapers. 

Bj s. 3, persons having leave to attend lec- 
tures are not to be deemed to have leave to publish 
them. 

By s. 4, nothing is to prevent persons from 
printing and publishing lectures which have been 
prinledand published with leave of the authors or 
their assigns, and of which the period of copyright 
has expired. 

By s. b, the act is not to extend to lectures de- 
livered in unlicensed places, universities, or public 
schools or colleges, or on anv public foundation, or by 
any individual in virtue of or accordingto anygifi, 
endowment, or foundation. 



CORPORATIOII. 

Atts of CorportOiom,'] — A member of an in- 
corporate company, entering into a contract with 
the company, most be deemed, in respect of that 
contract, a stranger. Hill v. Waterworks Co. 
(Manchaster), 2 Key. & M. 583; o B. & Adol. 
866. 642 

In debt on bond against a coporaie company, 
where it is shown that the bond has been sealed 
with the seal of the company by the proper of- 
ficer, it is competent to the defendants, under the 
plea of non est factum, to prove that several of 
the requisitions of the act necesnry to the vali- 
dity of the execution have not been complied 
with. Id. 

Quere whether a corporation can borrow mo- 
ney, except under seal.' Wilmot v. Coventry 
(CJorp.), 1 Y. & Col. 516. 642 

By 5 Will. 4, c. 39, a. 13, every writ of «Km- 
moiw issued against a corporation aggregate may be 
served on the mayor or other head i^cer, or on the 
town derk, derk, treasurer ^ or secretary of such 
corporation. 

Seethe^^e WiU. 4, c. 76, the Municipal Cor- 
poration Reform Act. 

A custom in the city of London, that a freeman 
of the city shall not set on work, in the manual 
occupation of a butcher, one who is a foreigner 
to the liberties of the city, is good. Shaw v. 
Poynter, 4 Nev. <& M. 290 ; 2 Adol. A EUia, 31?. 

658 

When, in a bye-law of a corporation, making 
certain regulations, for breach of which parties 
are to be liable to be sued for a penalty, tnere is 
a separate proviso, making certain exceptions, 
a part^ suing for breach of the bye-law need not 
aver m the declaration, that the case was not 
within the exception in the proviso; but such 
fact, if it exist, must be shown by the defendant 
by way of excuse. Id. 



A corporation aggregate may maintain _ 
Bumpsit for the use and occupation of toUa, al- 
though they did not grant the tolls to the occupier 
by any instrument under their common seal. 
Carmarthen (Mayor, &c.)r. Lewis, 6 C. i& P.608 
—Parke. 642 

A corporation is liable in tort for the tortious 
act of its agent, though not appointed by seal, 
if such act be an ordinary service, such as a dis- 
tress, professedly made under a stetute, for a 
debt due to the corporation ; and a jury may in- 
fer the agency from an adoption of the act by the 
corporation, as from their liaving received the 
proceeds of the seizure. Smith v. Birmingham 
Gas Comp., 1 Adol. & Ellis, 526; 3 Nev. & M. 
771. 643 

By charter Edw. 1, granted to the burgesses of 
C., that the constable of his castle of C. for the 
time being should be mayor of that borough, 
" sworn as well to the king as to the burgesses* 
who, on oath for preserving the king's right 
being first taken, should swear to the burgesses, 
that ne would preserve the liberties of the bur- 



[CORPORATION] 



2403 



maes, l^tmnted by the said king, and faithfully 
3o those things which to the office of mayoralty 
belong, in the said borough." By letters patent, 
his present Majesty granted the office of the 
castle of C. : — Hela, tiiat, until oath taken, ac- 
cording to the charter, the title of the grantee is 
incomplete. Rex v, Roberts, 5 Nev. ^ M. 130 ; 
1 Har. & WolL 444. 655 

The grantee of an office, for which an oath is 
a necessary qualification, but which may be exe- 
cuted by deputy, cannot appoint a deputy until 
be has been sworn. Id. 

A party is appointed during pleasure, by Ict- 
feia patent of Kin^ Geo. 3, to an office which 
cannot be executed until oath taken. He takes 
the oath, and, by operation of 57 Geo. 3, c. 45, 
and 6 Anne, c. 7, s. 8, is continued in office 
until six months afler the death of Geo. 4, and, 
by the operation of 1 Will. 4, c. 6, until six 
months after the passing of that act. Before the 
expiration of the last-mentioned period, he is by 
letters patent again appointed to the office : — 
He cannot, afler this second appointment, exe- 
cute the office until the oath be again taken. Id. 

Qusre, whether an officer in the situation of 
the constable of the castle of Carnarvon can ap- 
point a deputy to be mayor of the borough, and, 
if so, whether the appointment must be by deed ? 
Id. 

QjnalifiaUion and ElectUm of MenUfers.'] — Ac- 
ceptance of incompatible office. Rex s. Patteson, 
1 Nev. Sl M. 612 ; 4 B. & Adol.U 649 

Where a statute directs an election by poll, 
semble, that the poll may be taken from the 
faofding up of electors' bands ; but if the tellers 
appointed to take the number diffi?r, and a poll is 
demanded and refused, the court will grant a 
mandamus to enter an adjournment of the election 
meeting, and to proceed to complete the election. 
Bex v/BL Lukc^, 2 Nev. &, M. 464. 115 

To impeach the election of a party returned 
as elected, it is not sufficient to allege that many 
▼Dies were bad and fictitious, without showing 
that some other candidate had a majority of 
legal Yotes. Rex v, Jefferson, 2 Nev. & M. 487. 

651 

On a motion for a quo warranto information, 
aa affidavit statinj^ the relator's information and 
belief that the officer was elected at a court held 
on a certain day, and there was not at the court 
where he was elected as aforesaid a proper num- 
ber of electors present, is answered if it be sworn 
that there was a proper number of electors at the 
eoort held <ni the specified day, and that the of- 
ficer was not elected at that court. Rex v. Rolfe, 
4 B. & Adol. 840; 1 Nev. & M. 773. 651 

The officer is not bound to answer for the pro- 
eeedings of an y other day than that specified by 
the relator. Ici. 

Where it is granted by charter that a corpora- 
tion shall have so many aldermen and so many 
capital burgesses, and that when one of the latter 
shall die, depart, or be removed, another shall be 
elected in his place by '* the mayor and aldermen 

Vol. IV. 17 



and other capital burgesses then surviving or 
remaining, or the greater part of them ;^' the 
election must be made by a majority of the full 
members, of aldermen and of capital burgesses; a 
mere majority of the members of both bodies who 
happen to survive is not sufficient. Rex v. May, 
4 B. ^&. Adol. 843. 651 

By charter of Car. 2, there were to be in the 
borough of S. a mayor, aldermen, and twenty-four 
capital burgesses ; on the death or removal of an 
alaerman, uie mayor and aldermen, or the greater 
part of them, were to elect a capital burgess to 
supply his place ; when a capital burgess died, 
<&c., the mayor, aldermen and capital burgesses, 
or the greater part of them, were to elect a suc- 
cessor from among the inhabitants and burgesses ; 
and the mayor was to be annually elected on a 
certain day, " by the burgesses of the said borough, 
or the greater number of them," with the con- 
sent of twenty -four freeholders and inhabitants, to 
\xi chosen as directed by the charter : in practice, 
the mayor had always been elected by tbe capital 
burgesses only. At the election of mayor on the 
charter- day in 1832, there was not a majority of 
the number of twenty-four capital burgesses pre- 
sent, and no other burgesses attended : — Held, 
that this did not avoid the election, for that the 
word " burgesses" in the charter (where it treat- 
ed of the election of mayor) could not be con- 
strued to mean only capital burgesses ; that the 
right of election did not devolve upon the body 
of capital burgesses by the mere forbearance of 
the other burgesses to mterfere ; and that the ca- 
pital burgesses, inflecting the mayor, acted in the 
capacity of burgesses merely. Rex v. Goldsmith, 
4 B. & Adol. b35. 651 

A declaration for a penalty under the 5 & 6 
Will. 4, c. 76, s. 54, forbrioing a voter in the 
election of councillors, " by corruptly promising 
to give him employment m hauling stones at 
certain hire, as and for a reward to give his vote 
for" particular candidates, was held good on de- 
murrer ; for an employment is a reward within the 
latter as well as the former branch of that section ; 
and whether the employment in the particular 
case was given by way of corrupt bargain, was 
a question for the jury ; but the court must assume 
that such was the case, a corrupt agreement 
being sufficiently alleged in the ueclaration :^— 
Held also, that an allegation that an election of 
councillors took place under the act, and that the 
defendant, not rej^arding the statute, corrupted 
the party to vote m such election, was a suffi- 
cient statement that the offence was committed 
after the passing of the act. Harding 17. Stokes, 
1 Mces. ^ Wek. 354. 655 

On motion for a mandamus to the master and 
wardens of an incorporated mercantile company 
of the city of London, to call a meeting of the 
company at the next annual day of election, for 
the purpose of electing a master and warden 
according to the charters, it being suggested as 
the ground of motion, that the said omcers were 
at present improperly elected by a part only of 
the company, instead of the whole body — the 
court refused the writ. Rex r. Attwood, i B. ik 
I Adol. 481 ; 1 Nev. & M. 286. 651 



2404 



[CORPORATION— COSTS] 



On motion for a quo warranto affainst the mas- 
ter ^elected in the manner complamed of, it ap- 
peared that tlie practice, as far as it coald be 
traced, from the year 1488, had been for the 
master, wardens, and a body called the court 
of assistants (which had varied in number from 
twenty -four to forty), to elect the master, and 
tliat he had usually bein elected out of the court 
of assistants, and not out of the general body ; 
the assistants, besides belonging to the court, had 
the same qualifications for being elected as the 
other members of the company. In some in- 
stances, but it was not stated how many or when, 
persons had been elected who were not of the 
court. The company had existed from time im- 
memorial. By a charter of Ric. 2, they were 
empowered to elect a master de seipsis when and 
as they should please ; and by a charter of 18 
Hen. 7 (1502) all their liberties, franchises, and 
customs were confirmed : — Held, that if one en- 
tire by-law were to be presumed, for the master, 
wardens, &c. to elect, and to elect out of a restrict- 
ed body, the latter part of such by-law would be 
bad and vitiate the whole, but that no ground was 
laid for presuming such by-law, inasmuch as the 
election from the particular body might have been 
in every instance by choice, and not under any 
particular rule : and further, it appeared that 
there were exceptions, although tliese were not 
specifically stated ; and that even the practice of 
electing by a limited body was not necessarily to 
be presumed part of a by-law, as it might have 
been a custom incorporated by reference in the 
charter of Hen. 7. Id. 

A custom in a borough for the leet jury of the 
borough, beinff also the leet jury of a manor, to 
elect the members of the corporation in whom 
the government of the borough is vested, is a 
reasonable and legal custom, although the manor 
and borough are not shown to be co-extensive. 
Rex V. Beaufort (Duke), 2 Nev. & M. 815 ; 5 B. 
& Adol. 442. 655 

An afiidavit, stating that the court of may or and 
aldermen had again determined that A. B. was 
not a fit and proper person to be admitted, is no 
ground for refusing a mandamus, because the 
prosecutor has a right to have the facts stated in 
the return, in order that he may have an oppor- 
tunity of controverting the trutii of them; at all 
events, the affidavits in answer to the rule ought 
to show that the court of mayor and aldermen 
had, on the second occasion, come to the conclu- 
sion tliat A. B. was not a fit and proper person to 
be admitted to the office, on a fresh investigation. 
A mandamus having issued, the return stated 
that A. B. was elected by a majority of votes, 
and returned as so elected to the court of mayor 
and aldermen ; that a petition was presented to 
that court against his admission to the office, 
whereupon they examined the merits of the peti- 
tion according to custom, and determined that he 
was not a fit and proper person to be admitted to 
the oflico, nor duly elected ; and further, that he 
was not in fact duly elected : — Held, that this 
return was not inconsistent. Rex r. London 
(Mayor), 5 B. ^t Adol. 233. 656 

Semble, that a town clerk is not bound to allow 
inspection of the voting papers delivered at the 



election of councillors, under 5 & 6 Will. 4, c. 76» 
to more than one burgess at a time. Rex v. 
Arnold, 6 Nev. & M. 152. 655 

Nor to allow any burgess to have more than 
one of such voting papers in his hand at the same 
time. Id. 

But that he is bound to allow any burgess, who 
brings with him a list of the bureesses, to make 
marks upon such lists, denoting how each voter 
appears by the voting paper to have given his 
vote. Id. 



COSTS. 

Generally.] — It is not competent to an attorney 
who has not been inrolled to sue for any fees or 
disbursements ; where, therefore, the defendant's 
attorney (duly qualified in other respects to act 
as an attorney) had omitted to cause himself to 
be inrolled, and the defendant had made no ad- 
vance on account of the suit — the court allowed 
the plaintiff to discontinue without costs. Hum- 
phreys V. Harvey, 2 Dowl. P. C 827 ; 4 M. A 
Scott, 500 ; 1 Bing. N. R. 62. 661 

A pauper plaintiff in an action of trespass, 
who gets only a farthing damages, is entitled to 
full costs, and not merely to costs out of pocket. 
Gougenheim v. Lane, 4 Dowl. P. C. 482 ; 1 Mees. 
& Wels. 136. 661 

Qusre, whether the officers are entitled to any 
fee against a pauper ? Id. 

The costs of a motion by a female defendant to 
be discharged out of custody on the ground of 
coverture, or that she has been arrested by a 
wronff name, are not costs in the cause, and 
therefore not taxable on a discontinuance of the 
action. Mummery v. Campbell, 4 M. & Scott, 379 ; 
2 Dowl. P. C. 798 ; 10 Bmg. 511. 663 

By the 10 Geo. 4, c. 44, s. 41, where an action 
is brought against any member of the metropo- 
litan police, for any thing done in pursuance of 
that act, and the defendant recovers a verdict, or 
the plaintiff is nonsuited or discontinues, the 
defendant is entitled to costs as between attorney 
and client: — Held, that this provision is not 
affected by the 3 A 4 Will. 4, c. 42, s. 32} and 
therefore, that, where such persons are made 
defendants with others, the judge has no power 
to certify that there was reasonable cause for 
making them defendants, in order to deprive 
them of costs. Humphrey v. Woodhouse, 1 Scott, 
395; 1 Bing. N. R. 506; 3 Dowl. P. C. 416; 
1 Hodges, 64. 663 

The form provided by Reff. Gen. 1 W. 4, and 
entitled " Common Counts, constitutes separate 
counts as well for the purposes of pleading as of 
taxation of costs. (See Reg. Gen of Pleading, 
Hil. 4 W. 4, No. 5). Jourdan v. Johnson, 5 Tyr. 
524 ; 4 Dowl. P. C. 534 ; 1 Gale, 312. ()63 



Motions and Rul^s.l — Where a motion was 
made to compel a defendant to produce an instru- 
ment to have it stamped, the court, on making 
the rule absolute, refused to allow more costs 
than the plaintiff would have been entitled to if 
the application had been made to a judge aft 



[COSTS] 



2405 



thambeiB. Vaoffhan v. Trewent, 2 Dowl. P. C. 
299. 662 

Where a party ahows cause succesafullj in the 
first instance, he is not entitled to costs. Fitch 
15. Green, 2 Dowl. P. C. 439. 162 

The Court of Exchequer discharged a rule 
which had been obtained without costs, althou^ 
moved with costs. Bleasdale v. Darby, 9 Price, 
606. im 

If a cause standing in the paper is postponed 
on payment of costs, the defendant is not entitled 
to more costs than he would have been if the 
record had been withdrawn. Walker v. Lane, 
3 Dowl. P. C. 504 ; 1 Gale, 52. 662 

If a rule is drawn up in the alternative, the 
party who fails on the substantial question is not 
entitled to the costs of the rule, although he 
sooceeds upon the alternative. M 'Andrew v. 
Adam, 1 Scott, 99 ', 1 Bing. N. R. 270 ; 3 Dowl. 
F. C. 120. 662 

If the plaintiff recover a verdict in an action 
OB the case, and endeavor, on a rule nisi being 
obtained ibr a nonsuit or to reduce the damages, 
to support his verdict to the extent, although he 
be held entitled to nominal damaees, he is not 
entitled to the costs of the rule, he having in 
substance failed in his opposition to it. Id. 

Unless he gives notice to the opposite party of 
his intention to abandon the other. Id. 

Where a rule is discharged on a preliminary 
abjection to the title of the affidavit, supporting 
the rale obtained for setting aside proceedings on 
the groand of irregolaiity, the court has discre- 
tioo as to the costs of the application. Harris v. 
Mathews, 4 Dowl. P. C. 606. 662 

Where a rule is dischar^d on a technical ob- 
jection taken to an affidavit, without going into 
the merits, no costs are allowed, rreedy v. 
iiovell, 4 Dowl. P. C. 671. 662 

The role of 1796 concerning costs on rules 
discharged without any restriction as to costs, is 
strictly confined to applications on the ground of 
ineguiarity, either mentioned in the rule or in 
the affidavits. In all other cases where rules are 
moved, with costs, and charged generally without 
saying any thinf about costs, the successful party 
wiU not be entiued to them. A special direction 
mast be given by the court to enable him to ob- 
tein them. Drinker v. Pascoe, 4 Dowl. P. C. 

662 



The costs of enlai^ng a peremptory under- 
taking on account or the absence of a material 
witness, must be paid by the defendant, and are 
not coats in the cause, rercival v. Bird, 4 Dowl. 
P. €.748. 662 

Stanumses and Orders,'] — A judge at chambers 
1ms power to give costs upon a summons ; but 
this power will only be in extreme cases. Bridge 
T. Wright, 4 Nev. & M. 5 : S. C. nom. In re Bridge, 
SAdoLdt Ellis, 48. 632 

The court will not, unless a strong case be 
mde oat, review the decision of a judge at 
ehambers, as to costs. Sheriff v» Gresley, 5 rtev. 
& M. 491 ; 1 Har.dk Wol. 588. 662 

Where a judge at chambers declines to give 



costs on a summons, the court will not ailern^ards 
entertain an application on the subject of such 
costs. Davy v. Brown, 1 Scott, 384 ; 1 Bing. N. 
R 460; 1 Hodges, 22. 662 

Qusre, whether a judge at chambers has 
power, during term, to order the attorney to pay 
the costs of irregular proceedings ? Wilson v. Nor- 
thorp, 4 Dowl. P. C. 441. 662 

An order of a ludge at chambers was obtained 
in term, for settmg aside an irregular judgment, 
with costs ; the costs were taxed upon the order, 
which was then made a rule of court, and then a 
personal application was made of tiie amount: — 
Held, that this was the regular mode of proceed- 
ing. Id. 

Costs of the Day.] — A proposal to reier, made 
after the commission day, held not to warrant 
the plaintiff in not proceeding to trial, and that 
he was liable to pay the costs of the day. Eaton 
e. Shuckburgh, 2 Dowl P. C. 624. 667 

If a pauper withdraws his record because he is 
not prepared with a certain necessary document 
at the assizes, the court will compel nim to pay 
the costs of the day. Doe d. Lindsey v. Edwards, 
2Dowl. P. C. 471. 667 

A rule requiring a pauper to 'pajr the costs of 
the day, for not proceeding to trial, is nisi in the 
first instance. Id. 

Costs of the day for not proceedingr to trial 
may be moved for, though the plaintiff has sub- 
sequently tried his cause, ffot a verdict, signed 
final judgment, and taxed his costs. Reditp. 
Lucock, 2 C. dt M. 337 ; 4 Tyr. 281. 667 

The motion for costs for not proceeding to 
trial is for a rule to be absolute in four days, un- 
less cause is shown in the mean time. Robinson 
V. Robinson, 3 Dowl. P. C. 177. 667 

In order to ground an application for costs of 
the day, upon a rule for judgment as in case of a 
nonsuit being discharged on a peremptory under- 
taking, it is necessary that it should appear by 
affidavit that costs have been incurred. Ray v. 
Sharp, 4 Dowl. P. C. 354. 667 

In discharging a rule for judgment as in case 
of a nonsuit on a peremptory undertaking the 
court will order payment or costs of the day, 
'Mfany," although the defendant's affidavit do 
not show that any costs have been incurred. Doe 
d. Humphreys v. Owen, 1 Mees. Jk, Wels. 321. 

667 

But not where his affidavit shows that none 
could have been incurred ; as where it states that 
notice of trial was duly countermanded. Id. 

CouHs of Requests ^cts.] — Under the London 
Court of Requests Act, it is no objection to the 
defendant's claim for costs, that the plaintiff was 
unaware that the defendant resided within the 
jurisdiction. Crowder v. Bell, 2 Dowl. P. C. 508. 

667 

Where a verdict was given for 22. 8s. 6d. for 
goods sold, afler deducting 41. 19s. 6d. for tuition 
and money payments : — Held, that the claim was 
a balance of an account on demand originally 
exceeding 52. within 47 Geo. 3, sess. 1, c. 4, 



S406 



[COSTS] 



(Blnckheath Act) ; and therefore that noauggev- 
tion to deprive the plaintiff of costs could Iw en- 
tertained. Moreau r. Hicks, 2 Adol. & £lli(i,782; 
4 Nev. ^(c M. 563 ; 1 Har. & WoU. 87. 667 

Where a Court of Requests Act applies to 
defendants residing yithin the jurisdiction, the 
affidavit of a defendant applyinfir to enter a sug- 
gestion to deprive the plaintin of costs, ought to 
show that the defendant was residing there at the 
time of action brought, as well as merely de- 
scribing him as resident there at the time of affi- 
davit sworn. Id. 

If a defendant, liable to be sued in the West- 
minster court of Requests, omits to plead the 
statute (21) Geo. 2, c. U7) in bar of a suit in a su- 
perior court, or to apply for a nonsuit at the trial, 
on the ground that the claim is less than 40^-, the 
court will not afler verdict enter a suggestion to 
deprive the plaintiff of his costs. Clarke. Ham- 
let,! Har. & WoU. 177. 667 

The 4 Geo. 3, c. 123, repeals the previous 
Southwark Court of Requests Acts, as to de- 
priving a plaintiff of costs where he recovers lem 
than AOs. Claridge v. Smith, 4 Dowl. P. C. 
583. 667 

Where it appears upon the record that the debt 
sought to be recovered is under 40s., and that the 
defendant resides within the operation of a Court 
of Requests Act, which gives costs to a defen- 
dant if the plaintiff proceeds in a superior court 
and recovers less than 40^., a suggestion is un- 
necessary. Deiries v, Snell, 4 Dowl. P. C. 680. 

667 

The defendant pleaded payment of II. I8s. into 
court in satisfaction of tne cause of action, and 
the plaintiff took the money out of court: — Held, 
that the defendant was not entitled to enter a sug- 
gestion on the roll to deprive the plaintiff of costs 
on the ground that the action was brought to re- 
cover a less sum than 40*., and therefore recover- 
able in the county court. Tarrant v. Morgan, 
2 C. M. & R. 253 : S. C. nom. Ferrantv. Morgan, 
1 Gale, 156. 666 

A jdefendaiH is not entitled to enter a sugges- 
tion for double costs under the Middlesex Countj 
court Act, 23 Geo. 2, c. 33, where the debt is 
reduced below the sum of 40*. by a set off. 
Jenkinson v. Morton, 1 Mees. & Wels. 300. 668 

Previous to making an application with respect 
to costs under the Xiondon Court of Requests 
Act, it is not necessary to have the record in 
court Kidd v. Mason, 3 Dowl. P. C. 85. 669 

Since the Uniformity of Process Act, 2 Will. 4, 
c. 39, an attorney can no longer sue by attach- 
ment of privilege ; and therefore, though he sues 
in his own court as a common person, the court 
will not enter a suggestion on the roll to deprive 
him of costs for not suing in the Middlesex 
court of Requests. Wright v. Skinner, 1 Mees. 
A Wels. 144 ; 4 Dowl. P. C. 745. 669 

The defendant is now at liberty to move to 
have a suggestion entered under the Court of 
Requests Act, to deprive the plaintiff pf costs, 
notwitlistanding final judgment may have been 
signed, if the motion is made as early as can be, 
and particularly if it appears that the costs have 



not been taxed. Godson v. Lloyd, 4 Dowl. P. C 
157. 669 

A defendant, by consenting to a cause being 
tried before the undcr*sherin, under the Writ of 
Trial Act, knowing at the time that he was 
liable to be sued in a local court only, does 
not thereby waive his right to claim costs from 
the plaintiff upon his recovering less than bl, 
Shaw V. Gates, 4 Dowl. P. C. 720. €69 

A local act gives treble costs to a defendant 
who is sued for less than 52. in any other than 
the local court, so as it shall appear to the judge 
or judges of the court where the action is tried 
that the debt is under bl., and the defendant 
shall give evidence, to be allowed of by the judge 
of the court where such action is brought, that 
the defendant is resident within the local juris- 
diction. The cause is tried by the under-sheriff, 
under the Writ of Trial Act, and the defendant 

fives evidence of his residing in tlie local juris- 
iction, and the plaintiff recovers less than bl. 
Quojrc, whether tne court above can give costs 
to tlic defendant under the act .' Id. 

On tlie trial of an action upon a special con- 
tract with the money counts, evidence is given of 
a special contract, but the jury find a general 
verdict for 31*., being the precise amount which 
the plaintiff would have been entitled to recover 
under the count for money had and received ; the 
defendant is not entitled to the entry of the sug. 
gestion on the roll, tliat the action was brought 
for a debt not amounting to 40*., in order to de- 
prive the plaintiff of costs under the provisions of 
a Court of Requests AcL The court are bound 
by the record as returned by the under-sheriff. 
Mansfield v. Brearey, 3 Nev. & M. 471 ; 1 Adol. 
& Ellis, 347. 669 

In an affidavit supporting an application for 
double costs under the 23 Geo. 2, c. 33, s. 19, 
(the Middlesex County Court Act^, it must be 
stated that the defendant is liable to be summoned 
to the county court. Foster v. Godfrey, 2 Dowl. 
P. C. 587 : S. P. Unwin v. King, 2 Dowl. P. C. 
492. 669 

In order to deprive a plaintiff of his costs, un- 
der the Middlesex County Court Act, the appli- 
cation must be made before final judgment 
Unwin r. King, 2 Dowl. P. C. 593. 670 

On an application to enter a suggestion under 
the London Court of Requests Act, it was sworn 
that the defendant had a house and warehouse in 
the city, in which his partner and servants re- 
sided, and that he carried on business on his own 
account, in partnership with his brother as a silk 
broker, and sought his livehhood : — Held, that 
that was a sufficient seeking a livelihood within 
the statute. Bond v. Bailey, 2 C. M. & R. 246; 
3 Dowl. P. C. 808 ; 1 Gale, 162. 670 

It is not necessary to state when the action 
was commenced, if it appears that the defendant 
was then within the jurisdiction. Id. 

It makes no difference that the cause was tried 
before the sheriff. Id. 

Where the verdict was obtained in vacation, 
application may be made to enter a suggestion 



[COSTS] 



2407 



tfier final jadgment si^ed and execution issued. 



43 Eliz. c. 6.] — In ui action of trespass against 
several defendants, two suffered judgment by de- 
&ult; and the jury who tried the cause assessed 
the images ajgrainst them at a farthing : — Held, 
that the judge might certify to deprive tlie plain- 
tiff of costs, as against these parties, under 43 
Elix. c. 6, B. 2. Harris v. Duncan, 2 Adol. & 
ElliB, 158 ; 4 Nev. & M. 63. 670 

* A abertfi'or judge of an inferior court, to whom 
a cauae is sent by writ of trial, under 3 & 4 Will. 
4, c. 42, s. 17, has no power of certifying to 
deprive of costs pursuant to 43 Eliz. c. 6, s. 2. 
Wardroper v. Richardson, 1 Adol. & Ellis, 75 ; 
3 Ney. & M. 839. 670 

Where a jud^e certified at the trial of an action 
of trespass to deprive the plaintiff of costs, the 
court held the judge*s opinion final. Twigg v. 
Potts, 4 Dowl. P. C. 266. 670 

The court will not interfere where the jud^e 
has granted a certificate under the stat. 43 Eliz. 
c. 6, to deprive the plaintiff of costs, except upon 
tiie question, whether he had power to grant the 
certificate ? Cann v. Facey, 5 Nev. & M. 405 ; 
1 Har. & WoU. 482. 670 

If the judge give his reasons for granting the 
certificate, and those reasons are erroneous, it is 
no ground of interference. In an action qu. cl. 
&., the plaintiff obtaining less than 40^. damages, 
the plea of not guilty, since the new rules of 
pleadings, being a special plea, takes the case out 
of the 22 & & Car. 2, c. 93, s. 136; but the 
judge may, notwithstanding, grant his certificate 
under the 43 Eliz. c. 6, s. 2, to deprive the plain- 
tiff of costs, the whole record and evidence at 
the trial being properly taken into consideration- 
Smith T. Edwards, 4 Dowl. P. C.&H; 1 Har. <& 
WoU. 497. 670 

The 43 Eliz. c. 6, s. 2, only empowers the 
jud^ who tries the cause to give the certificate 
under that act to deprive the plaintiff of costs ; 
and in case of executing a writ of inquiry, 
whether before a judge or a sheriff, the certifi- 
cate cannot be granted. Claridge v. Smith, 4 
Dowl. P. C. 583. 670 

In trespass for assault, and false imprisonment, 
and tearing the plaintiff's clothes, there was issue 
upon a new assiffument to a plea of son assault 
demesne. ' The jury found a verdict for the plain- 
tiff, with one shilling damages : — Held, that the 
jud^ had no power to certify under the 43 Eliz. 
c. 6, to deprive plaintiff of costs. Bone v. Dawe, 
5 Nev. & M. 230 ; 1 Har. & WoU. 311. 670 

Where, in such a case, the judge had certified, 
the court jpanted a rule on the masters to tax 
the plaintiff his costs, notwithstanding the certi- 

* " Id. 



21 Jae. 1, c. 16.] — Where, in an action for 
slander, spoken of a person in the way of his 
trade, the plaintiff recovered less than 40s. dama- 
ges : — ^Held, that the plaintiff was entitled to no 
more costs than damages, and that the judge had 
no power to certify to enable the plaintiff to fldl 



costs. Goodall v, EnseU, 2 C. M. & R. 249 ; 3 
Dowl. P. C. 743 J 1 Gale, 147. 671 



22 ^ 23 Car. 2.] — In trespass for turning the 
plaintiff out of a room per quod he was prevent- 
ed from exercising his business as an attorney 
therein, if the plamtiff obtain a verdict for less 
than 40s. he is not entitled to full costs without 
a judge's certificate, under 22 ^ 23 Car. 2, c. 9, 
S.136. Daubneyr. Cooper, 5 M.&R. 325. 672 

Where a plaintiff recovered 13^. damages in an 
action of trespass qu. cl. fr., to which only the 
general issue was pleaded, it was held that he 
was entitled to his full costs as under that plea, 
as restricted by the ru^es of pleading of H. T., 4 
Will. 4, and freehold could not come in auestion> 
so that the judge mi^ht certify under tne 22 if& 
23 Car. 2, c. 9, s. 136, m order to ensure the plain- 
tiff his costs. Hughes v. Hughes, 4 Dowl. P. C. 
532; 2 C. M. & BL. 663 ; 1 Tyr. <& G. 4 ; I Gale, 
302. 672 

Where there are pleas in trespass quare clau- 
sum frcgit of not guilty, and that the close is not 
the plaintiff's, and the jury find a verdict for plain- 
tiff with nominal damages, the plaintiff will be 
entitled to no more oosts than damages. Howell 
V. Thomas, 7 C. & P. 342— Coleridge. 672 

Operation of 43 Geo. 3, c. 46.] — Goods were sent 
by the plaintiff to the defendants, on sale or re- 
turn. The defendants returned part to the plain- 
tiff's shopman. The plaintiff demanded payment 
for the whole, and was not informed by the de- 
fendants that part had been returned. He afler- 
wards arrested them for the higher sum, but 
failed to recover the item charged for the article 
returned : — Held, that there was reasonable and 
probable cause for the arrest ; and the court re- 
fused to grant the defendant bis costs. Roper v. 
Sheasby, 3 Tyr. 486. 674 

A defendant, who is arrested for a larger sum 
than is recovered against him, is entitled to costs 
if there be no reasonable or probable cause for 
the arrest, though the arrest is not shown to have 
been malicious. Erie v. Wynne, 1 C. & M. 532; 
3 Tyr. 586. 675 

The statute does not apply to cases where the 
defendant pays money into court, and the plain- 
tiff takes it out, although it be a much smaller 
sum than that for whicli the defendant was ar- 
rested. Rowe V. Rhodes, 2 C. & M. 379; 2 
Dowl. P. C. 384 ; 4 Tyr. 216. 675 

Plaintiff having arrested the defendant for 271.^ 
and his demand having been reduced to 102. by a 
claim on the part of^the defendant, the court 
allowed the defendant his costs, although the de- 
fendant's claim was not altogether undisputed. 
Sims r. Jaquest, 4 M. & Scott, 380; 2 Dowl. P. 
C.800; 10 Ring. 510. 675 

R., a builder, is employed by A. in altering 
A.'s house. During the progress of the work A. 
countermands the employment, whereupon R* 
requests A. to appoint a valuer, and upon re- 
ceiving no answer to his application, R. continues 
the work, completes it, and arrests A. for the 
whole amount, but recovers only for the work 
done previously to the countermand. The de- 



?408 



[COSTS] 



fendant is entitled to costs. Rassell v. Atkinson, 
2 Nev <& M. 667. 675 

To entitle a defendant to coats, it is essential 
that there should be an arrest as well as a hold- 
ing to bail, fiates v. Pilling, 2 C. & M. 374 ; 2 
Dowl. P. C. 367 ; 4 Tyr. 231. 675 

Where a defendant was held to bail in a much 
larger sum than the plaintiff recovered ; — Quaere, 
whether, if it had been a case witliin the act 43 
Geo. 3, c. 46, bj reason of the absence of a rea- 
sonable or probable cause for holding to bail to 
sach an amount, the mere fact of the defendant's 
not having been actually arrested would have 
been sufficient to deprive him of the benefit of 
that act? Wilson V. Broughton, 2 Dowl. P. C. 
631. 675 

A party is not warranted in arresting another 
for a debt of which he has not, at the time of 
making the arrest, some evidence besides his own 
personal knowledge of its existence ; and there- 
fore a plaintiff arresting a defendant for a large 
sum or money, and having at the time of the ar- 
rest evidence only as to a small portion of the 
amount, was held to be liable to costs, although, 
at the time of the trial, some evidence of a subse- 
quent acknowledgment by the defendant was 
given. Griffiths v. Pointon, 2 Nev. & M. 675 : 
§. P. Nicholaa v. Hayter, 4 Nev. & M. 882 ; 2 
Adol. Sl Ellis, 348. 675 

The plaintiff arrested the defendant for 40(U., 
having previously obtained acceptances for 320Z. 
for part of the debt from the defendant's agents, 
to meet which remittances were made to the lat- 
ter by the defendant : — Held, that the arrest for 
4001. was made without reasonable or probable 
cause, and therefore that the defendant was enti- 
tled to costs. Reynolds v. Flowe^, 3 M. & Scott, 
801. 676 

Where the defendant was arrested for 332. 8s. 
9<f., and, on the cause being referred, the arbitra- 
tor directed a verdict to be entered for the plain- 
tiff for the sum of 3Z. Os. only : — Held, that it 
was sufficient prima facie evidence that the ar- 
rest was without reasonable or probable cause, 
and that it threw the onus upon the plaintiff to 
satisfy the court that he had reasonable and pro- 
bable cause ; and the plaintiff havmg failed to do 
00, that the defendant was entitled to costs under 
the 43 Geo. 3. Summers o. Grosvenor, S C. & 
M. 341 ; 2 Dowl. P. C. 224 ; 4 Tyr. 228. 676 

To entitle the defendant to costs under 43 Geo. 
3, c. 46, s. 3 ; where the difference between the 
snm for which he was arrested and that recovered 
is small, the defendant must show clearly to the 
court that the arrest was without reasonable or 
probable cause. Paley «. Barker, I Har. A W. 
206. 674 

The statute 43 Geo. 3, c. 46, s. 3, does not 
apply to the case where a defendant, having been 
arrested for debt, pays into court less than the 
amount sworn to, and the plaintiff accepts it. 
Brooks V, Rigby, 2 Adol. & £UJs, 21 ; 4 Nev. <& 
M. 3. 675 

Where a defendant was arrested for UOl. and 
upwards, and the jury gave onl^ 17(. \9s.: — 
Held, that the defendant was entitled to costs 
under the 43 Geo. 3, o. 46, s. 3; it appearing 



that the plaintiff bad first tent in a bill for the 
above sum, and had afterwards added 21. 2s. for 
goods supplied, which had been returned as un- 
suitable, there being reason to believe that the 
plaintiff had added that sum to make op an arrest- 
able amount. Sutton v. Burgess, 4 Dowl. P. C. 
376. 676 

The power of the court, under the 43 Greo. 
3, c. 46, s. 3, to allow the defendant his costs 
where he had been arrested without reasonable 
or probable cause, was given to an arbitrator, on 
a cause bein? referred, but the arbitrator made 
no order on the subject : — Held, that the court 
could not afterwards make the order. Green- 
wood V. Johnson, 1 Har. &, WoU. 184. 675 

The court has no power under 43 Geo. 3, c. 46, 
s. 3, to award costs to the defendant, except in 
cases where the plaintiff has recovered, by judg- 
ment only, a less amount than the sum for whicli 
he had arrested the defendant. Holder v. Raith, 
4 Nev. & M. 466 ; 2 Adol. & Ellis, 445 ; 1 Har. 
& WoU. 8. 675 

Therefore they have no jurisdiction under this 
statute in cases in which the recovery has been 
by an award upon a reference before issue joined. 
Id. 

So, although in the order of reference it is ex- 
pressly agreed that the costs of the action, of the 
reference, and of the award, shall abide the event 
of the suit in like manner as upon a verdict. Id. 

Dubitatur, whether, if in such a case the parties 
consented that judgment should be entered up for 
the sum awarded, with a view to reserve the juris- 
diction of the court under the statute, the court 
would accept the power } Id. 

The plaintiff arrested the defendant for 427. 5^. 
money lent, and proved on the trial admissions of 
the loan of 182., for which she had a verdict. 
On a motion to allow the defendant his costs, 
under the stat. 43 €reo. 3, c. 46, s, 3, it appeared 
from the plaintiff's affidavit, that she had lent the 
defendant sums of money at different times, 
amounting to the sum for which he was arrested ; 
but it did not appear that she had any witness to, 
or evidence of such loans, beyond the defendant's 
admissions, as proved on the trial. The defen- 
dant swore that she had lent him only \L The 
court, although believing from the affidavits that 
the whole sum was due, and that the defendant's 
affidavit was false, held, that as the plaintiff could 
have had no reasonable ground to expect that she 
could recover the whole debt for which she made 
the arrest, the defendant was entitled to his costs 
under the statute. Lewis v. Ashton, 1 Mees. d^ 
Wels. 493. 674 

Where, owing to the omission of a count in 
the declaration, applicable to part of the plaintiff's 
demand, the plaintiff was prevented from reco- 
vering an amount equal to the sum for which the 
defendant was arrested, and which the jury found 
to be due ; but on the omission in the declaration 
being discovered, the verdict was ultimately 
given for a less sum : — Held, that the defendant 
was not entitled to costs under 43 Geo. 3, c. 46, 
s. 3. Preedy ». MTarlane, 1 C. M. & R. 819; 
3 Dowl. P. C. 458; 5 Tyr. 355; 1 Gale, 20. 674 

Held, also, that he was not so entitled, although 



[COSTS] 



2409 



the mdoTBement for bail on the capias by mistake 
stated a larger sum than that stated in the affida- 
vit of debt, the defendant not having been arrest- 
ed for the amoant so indorsed, but for the amount 
really due. Id. 

Where a defendant is arrested and goes to 
prison, it is ^^an arrest and holding to bail" 
within the meaning of the statute. Id. 

Where the defendant was arrested for 201. 2s., 
and the plaintiff faded to establish at the trial a 
reasonable ground for proceeding for more than 
101. 17^., the court refused to tax the defendant 
his costs under 43 Geo. 3, c. 46, the plaintiff 
bein^ taken by surprise on the objection to the 
5s. deducted from his claim. Mantel v. Southall, 
2 Scott, 132 ; 2 Bing. N. R. 74. 675 

The verdict of the jury is not conclusive as to 
the amount for which the plaintiff had reasonable 
cause (within the meaning of the 43 Greo. 3, c. 46, 
8. 3) for holding the defendant to bail, qusere ? Id. 

De&ndant having been arrested for 652., when 
there was not prolmble cause for arresting him 
for more than 44^, the court allowed him his 
costs under 43 Greo. 3, c. 46. Bradley v. Milnes, 
1 Scott, 697; 1 Bing. N. R. 738 ; 1 Hodges, 118. 

675 

Where a defendant obtains costs under the 43 
Geo. 3, c. 46, s. 3, on the ground that the arrest 
was without reasonable or probable cause, neither 
party is entitled to the costs of a prior unsuccess- 
nil motion to enter a nonsuit. Id. 

An application for costs, under 43 Geo. 3, c. 
46, on the ground that the plaintiff arrested ■ for 
351 , and recovered only 192. 19^., is not answered 
by affidavits stating that the plaintifTs demand 
was reduced at the trial by the false evidence of 
a witness, who was, in fact, a partner of the de- 
fendant, but stated herself to be his servant only. 
Tipton V. Gardiner, 5 Nev. & M. 424. 675 

Where a plaintiff recovers a sum less than the 
amoant for which he arrested, and held the de- 
fendant to bail, and it appears that his only 
probable cause of action was not bailable, (being 
for unliquidated damages), the defendant is en- 
titled to costs under 43 Geo 3, c. 46, s. 3. Beare 
«. Pinkus, 4 Nev. & M. 846. 675 

The court refused to allow the defendant his 
costs under the 43 Greo. 3, where, upon conflict- 
ing testimony as to the value of the goods sup- 
plied, the jury gave a verdict for St., the arrrest 
saving been for 20/. : 8/. was the mean of the 
estimates by the witneases of the two parties. 
Shotwell V. Barlow, 3 Dowl. P. C. 709; 1 Gale, 
107. 675 

Defendants having been arrested for a sum of 
45^., the plaintiff at the trial recovered only 21/. 
Part of the demand was for a sum of 19/. 10^., 
which it was stated by a witness he had seen paid 
on a particular day ; and a receipt was put in, 
from which it appeared that the mcmey was paid 
on a former day. The jury under the circum- 
stances disallowed that part of the plaintiff's 
demand, and also' made a small deduction from 
the other part. It was not denied, however, hy 
the defendants, that the money was due, and it 
was positively sworn by the plaintiff that it was 
due ttom the defendants : — Held, that tlie defen- 



dant was not entitled to his costs under the 43 
Geo. 3, c. 46. Smith v. Smith, 3 Dowl. P. C. 733. 

675 

If the plaintiff arrests a defendant for one side 
of a mutual account, without ffiving credit for 
what he knows to be due from himscR*; although 
the defendant has refused to deliver his account, 
the latter is entitled to his costs under the 43 
Geo. 3, c. 46, s. 3. Ashton v. Naull, 2 Dowl. P. 
C. 727. 675 

Where the reduction of the plaintiff's clain> 
was occasioned by a dispute as to the right of the 
defendant to claim a setoff : — Held, that though 
the arbitrator awarded in favor of the defendant 
in respect of the set-off, and therebv reduced the 
plaintiff's claim a third, that the defendant was- 
not entitled to his costs under the 43 Greo. 3, c. 
46, s. 3. Cawthorne v. Cawthome, 4 Dowl. P. C. 
182. 675 

Upon a moUon to allow the defendant his costs 
under the 43 Geo. 3, c. 46, the court will refer to 
the judge's notes taiken at the trial, in order to 
supply uie omission in the defendant's 'affidavit 
of the amount recovered by the verdict Van 
Neuvel v. Hunter, 5 Nev. & M. 376; 3 Adol. db 
Ellis, 243 ; 1 Har. <& Woll. 273. 677 

The verdict of the jury, in a question of a dis- 
puted account, must be taken to be almost con- 
clusive. Id. 

The rule for allowing the defendant his costs 
need not drawn up on reading the record or 
nisi. Id. 

On an application for defendant's costs under 
the 43 Greo. 3, c. 46, s. 3, the onus of proving- 
that the arrest was without reasonable or pro- 
bable cause lies on the defendant, and the court, 
will not inquire whether the finding of the jury 
was correct. Twisst?. Osborne, 4 Dowl. P.C 107 }. 
1 Har. & Woll. 274. 677 

In order to obtain costs under the 43 Greo. 3^ 
c. 46, s. 3, it is not necessary to show that the 
arrest was malicious. Id. 

A defendant applying for costs under 43 Geo. 
3, c. 46, must show a prima facie case of absence 
of reasonable or probable cause for arresting for 
the amount sworn to. Nicholas v. Hayter,4 Nev. 
& M. 882 J 2 Adol. & Ellis, 348. 677 

A great disproportion between the sum re> 
covered and the amount sworn to is a sufficient- 
prima facie case. Id. 

And it is no answer for the plaintiff to allege, 
that but for the death of one material witness,, 
and the absence abroad of another, he could 
have proved a debt to the full amount. Id. 

Several' Issues] — Under Reg. CJen. H. T. 2 
Will. 4, the defendant is entitled to the costs or 
all issues found for« him, although they exceed 
the costs of those found for the plaintiff. Milner 
V. Graliam, 2 Dowl. P. C. 422. 678 

If a defendant pleads the general issue and 
.several special pleas, and the jury find for him 
on the general issue, and for the plaintiff on the 
special pleas, the latter is entitled to the costs 
of the pleadings and witnesses on those pleas. 
Hart V. Cutbush, 2 Dowl, P. C. 456. 67S 



3410 



[COSTS] 



In replevin, the defendant pleaded that Uie 
goods belonged to himself and others, as assig- 
nees under a commission of bankruptcy : he also 
avowed taking the goods as a distress for rent- 
arrear. Verdict for the plaintiff on the issue 
joined in the plea; for the defendant on the 
avowrj. The court refused to allow defendant 
costs on the issue found for the plaintiff. Mid- 
dleton V, Mucklow, 10 B'mg. 401. 678 

Before the issue was made up, the cause was 
referred, the costs of the cause were to abide the 
event of the award. The arbitrator found that 
the plaintiff had sustained damage to a certain 
amount upon one of the breaches of covenant 
specified in his particular; and as to the rest, 
that he had no cause of action against the defen- 
dant : — Held, that the defendant was entitled 
under rule 74 H. T. 2 Will. 4, to the costs of 
those issues that were found for him, notwith- 
standing the cause was not in strictness at issue. 
Daubuz V. Rickman, 1 Scott, 564 ; 4 Dowl. P. C. 
129; I Hodges, 75. 678 

Where, in an action on the case, a defendant 
succeeds on one of several issues, which goes to 
the foundation of the plaintiff's cause of action, 
he will be entitled to the general costs of the 
cause, altliough there is a verdict for the plaintiff 
upon the plea of ^* not guilty," without damages. 
Frankum v. Falmouth (Lord), 4 Dowl. P. C. 65 ; 
1 Har. & WoU. 337. 678 

The rule of H. T. 2 Will. 4, s. 74, does not 
apply to paupers ; and the costs of such of the 
opposite parties, who have got verdicts, cannot 
be deducted from the plaintiff's costs of the 
cause. Gougenhcim v. Lane, 4 Dowl. P. C. 482 ; 
I Mees. & Wels. 136. 678 

Where, in case for libel, on the general issue, 
tlie jury found for the plaintiff, and also found as 
a fact, that a great part of the declaration did not 
apply specifically to the plaintiff, though there 
were innuendoes, by which it was endeavored to 
connect him with tlie matter complained of: — 
Held, that tlie defendant was entitled to the costs 
of that part. Prudhomnic r. Fraser, 4 Nev. & M. 
512; 2 Adol. <& £Ui8,645; 1 Har. <& Woll. 5. 

678 

The 74th rule, H. T. 2 Will. 4, extends to give 
the defendant the costs of an issue found for 
bim on a demise in ejectment, which the lessor 
of the plaintiff abandoned at the trial, though the 
evidence was equally applicable to the demise, 
upon which he succeeded. It is not necessary, 
under the terms of the rule, that the costs should 
be confined exclusively to the issue found for the 
defendant : but the question of amount is entirely 
a question for the Master, with which the court 
will not interfere. Doe d. Smith v. Payne or 
Webber, 4 Nev. & M. 38] ; 2 Adol. & Ellis, 448 ; 
1 Har. <& Woll. 10. 678 



In ejectment, where there was but one count, 
and the lessor of tlic plaintiff recovered judg- 
ment for part only of the lands claimed, the de- 
fendant succeeding as to the chief question in dis- 
Eute : — Held, that the defendant was entitled to 
ave his costs, as to the part found for him, set 
off against the costs of the lessor of the plaintiff, 
under the rule H. T. 2 Will. 4, c. 1, s. 74. Doe 



d. Errington v. Errington, 4 Dowl. P. C. 602; 1 
Har. 4& Woll. 502. 678 

Where there are several issues, some of which 
are abandoned at the trial, the plaintiff is entitled 
only to the costs of those parts of such briefs and 
sucli of tlie witnesses as were necessary for the 
issues on which he succeeded. Grougenheim v. 
Lane, 4 Dowl. P. €.482; 1 Mees. & Wels. 136. 

678 

Where a plea of not guilty to the whole action 
is found for the defendant, and a plea of justifica- 
tion is found for the plaintiff, the defendant is en- 
titled, under 4 Ann, c. 16, ss 4 & 5, to the gene- 
ral costs of the cause, and the plaintiff is entitled 
to the costs on the special plea, including not onl^ 
the costs of the pleadings but also or the evi- 
dence, in disproof of the justification. Spencer 
r. Hamerton, 6 Nev. &> M. 22. 678 

Scmble, that Reg. 7 H. T. 4 Will. 4, giving 
the costs of particular issues to the successfiil 
party, does not apply to demurrers. Farley v. Bri- 
ant, 5 Nev. & M. 58. 678 

Pan found only. Vallance v. Evans, 1 C. &. 
M. 856; 3 Tyr. 865: S. C nom. Valance v. 
Adams, 2 Dowl. P. C. 118. 679 

Where some issues are found for the plaintiff 
and some for the defendant, the latter is entitled 
to the costs of the issues found for him, but not 
to the general costs of the cause, or to the expen- 
ses of nis own witnesses, unless their evidence 
related exclusively to the issues found for him. 
Larnder v. Dick, 2 Dowl. P. C. 332: S. C nom. 
Lardner v. Dick, 2 C. & M. 389 ; 4 Tyr. 239. 679 

Where several defendants defend separately, 
and apparently by different attornies, but all the 
business is virtually done by one, they are not 
entitled to char^ by separate bills of^^costs, but 
must make a jomt charge. Nanny v, Kenrick, 2 
Dowl. P. C. 334. 679 

In an action on the case against many defend- 
ants, where one suffers judgment by demult, and 
a verdict is entered for tlie others, those for whom 
the verdict is entered are entitled to their costs. 
Price V. Harris, 2 Dowl. P. C. 804 ; 10 Bing. 557 ; 
4 M. & Scott, 474. 679 

A declaration in slander contained ten counts ; 
the jury found for the plaintiff, with 50/. dama- 
ges on the seventh count, and 100/. on the other 
nine counts. On error brought, the court held 
tliat the sixth count was bad, and, consequently, 
that a venire de novo must be awarded ; but, on 
the plaintiff consenting to remit the 100/. dama- 
ges, directed that the verdict should be retained 
on the seventh count : — Held, that the plaintiff 
waa not entitled to the costs of the other nine 
counts. Dadd v. Crease (in error), 2 C. & M. 
223 ; 4 Tyr. 74 : S. C. nom. Dann v. Crease, 2 
Dowl. P. C. 269. 681 



Where there were issues of fact, and also is- 
sues of law on demurrer, but the pleadings de- 
murrer to were aflerwards amended by leave, upon 
payment of costs, and all tlie issues made issues 
of fact : — Held, that the Master was right in not 
allowing so much of the briefs and paper books 
for argumg the demurrer as related to tne issues 
of fact. Jones, v. Roberts, 2 Dowl. P. C. 374. 682 



[COSTS] 



2411 



Wbeie there are several defendants, and a ver- 
dict passes against some and for others, the latter 
are entitled to their aliquot proportion of the 
whole costs incnrred, and not merely to 409. each. 
Griffiths V. Jones, 4 Dowl. P. C. 159; 2 C. M. <& 
R.333; 1 Gale, 254. 67» 

Where several defendants are sued in trespass, 
and a verdict is found for the plaintiff on some 
of the issues against some of the defendants, and 
against him on all the other issues, the plaintiff 
is entitled to the balance only of the costs, ailer 
deduction of all the costs of all the defendants. 
Starliiig ocStarving v. Cozens or Cousins, 3 Dowl. 
P. C. 788 ; 2 C. M:& R.445; 1 Gale, 159. 679 

Where there are several defendants, and one 
akme employs an attorney for all, the others are 
not entitled to claim any costs. Id. 

In an action on the case containing several 
counts in th^ declaration, some issues were found 
lor the plaintiff and some for the defendant : — 
Held, that the Master, in taxing the costs, was cor- 
rect in deductingthe costs of tl^ defendant's issues 
from the plaintiff 's costs, and that the lien of the 
plaintifrs attorney was only upon the balance 
coming to the plaintiff. Eades v. Everatt, 3 Dowl. 
P. C. 687. 679 

Held, also, that the expense of a witness called 
by the defendant, whose evidence was substan- 
tially directed towards the issues found for the 



obtains judgment as in case of a nohftuit, the 
executor is not liable to the cost of the cause, 
but only to such costs as have been occasioned by 
his own wilful negligence in not proceeding to 
trial. Pickup v. Wharton, 2 C. d^M. 401; 2 
Dowl. P. C. 368 ; 4 Tyr. 224. 683 

An order to exempt an executor plaintiff from 
costs afler a verdict for the defendant, is a matter 
within the discretion either of a single judge or 
of the whole court; and if a single judge has 
made an order, such order cannot be reviewed^ 
— ^tfae decision, either of the whole court or of a 
single judge, being final. Maddocks v. Phillips, 
5 Nev. A M. 370; 1 Har. & Wol. 251. ©S 

An executor plaintiff who loses his cause is 
not, under the 3 & 4 Will. 4, c. 42, s. 31, ex- 
empted from the payment of costs, unless mala 

fides appears on the part of the defendant 

Yaughan, J., dissentiente. Brown ». Crolev, 3 
Dowl. P. C. 386. "^683 

Upon a declaration containing an account stated 
with the plaintiffs as executors, though it also 
contains counts on promises to the testator, the 
defendant is, in case of a nonsait, entitled to costs 
as of course. Spence v. Albert, 4 Nev. & M. 
2 Adol. & EUis, 785 ; 1 Har. & Woll. 7. 

The discretion as to costs in actions by execu- 
tors, given to the court or a judge of any of the 
' • - ' ■ y^iU. 4, C.42, s 




superior courts, by 3 & 4 



31, 



defi^ndant, was properly allowed to the defendant, «"p"j>»^ couris, 

tltboogh he gave some evidence upon the other "tends only to cases m which executors were 
- - ' before that enactment exempted from the pay- 

ment of costs. Id. 



Id. 

In trespass, four defendants pleaded separate 
pkau by the same attorney; one the ^neral 
nsoe and a justification, upon both of which he 
was found guilty ; another, similar pleas, but was 
only found guilty on the general issue ; and the two 
others, the general issue only, upon which they 
were acquitted : — Held, that the costs payable to 
the three last might be set off against the costs 
which the plaintiff was entitled to recover from 
the first Lees v. Kendall, 5 Nev. & M. 340 ; 1 
Bar. & WoU. 316. 679 

Ex^tmters and Administralors.'] — ^The 31st spc- 
tien of the 3 db 4 Will. 4, c. 42, renders executors 
or administrators suing in right of the testator 
or intestate liable to ccMits, where they are non- 
ssifed or the defendants obtain verdicts, unless 
the court or a judge shall otlierwise order : — 



The 32nd section of 3 & 4 Will. 4, c. 42, as to 
pajrment of costs by executors and administrators, 
in actions brought by them, was held, (Littledale, 
J., dissentiente), to apply to actions tried after the 
passing of the act, whether commenced before 
or not ; although the cause had been made a re- 
manet before the passing of the act Freeman 9. 
Moyes, 3 Nev. dt M. 883 ; 1 Adol. A Ellis, 338. 

683 

The court has no jurisdiction under the 3 ft. 4 
Will. 4, c. 42, s. 31, to relieve an executor plain- 
tiff from costs to which he was liable before the 
act. Ashton v. Poynter, 5 Tyr. 322 ; 1 C. M. & R. 
738 ; 3 Dowl. P. C. 465; 1 Gak, 57. 683 

Where an executor plaintiff seeks to be relieved 
from costs under the discretionary power of the 
. „ - court, the application should be made before tax- 

Semble, that the court will otherwise order where ation, otherwise, if it be granted, it will be on pay- 
there appears to be reasonable or probable cause | ment of the coste of the application. Id. 
for suing in the representetive character. Lysona 



V. Banow, 4 M. & Scott, 463; 10 Bing. .563 ; 2 
Dowl. P. C. 807. 683 

Tike defendant effected a policy of insurance 
en the life and for the benefit of one G., and, on 
his death, received the sum insured. The plain- 
tiffii, as executors of G., sought to recover this 
•mn in an action for money had and received by 
the defendant to their use as executors, and were 
BOQsuited on a ground collateral to the merits of 
the cause : — The court ordered the judgment of 
Boosoit to be entered up with costs, under the sta- 
tote. Lysons v. Barrow, 4 M. & Scott, 463. 683 

Where an execotor or administrator sues in 
lus representative character, and the defendant 

Vol. IV. 18 



Executors declared in one count on a contract 
by the defendant wjth their testator, and in an- 
other on a contract by the defendant with them to 
pay money due to the plaintiflb as executors on 
an account stated between them, with a piomise 
to pay them as executors, and a verdict was found 
for the defendant : — Held, that he was entitled to 
his costs of the last count under SS H. 8, c. 15, 
and that the court has no power to interfere under 
3 (& 4 Will. 4, c. 42, s. 31, in favor of the plain- 
tifffl as executors. Id. 

The court will not relieve an executor or ad- 
ministrator plaintiff from costs, unless there has 
been some misconduct on the part of the defen- 
dant, which led the phuntiff to proceed with tho 



9413 



[COSTS] 



actiod, or unlew lome other rer^ peculiar ground 
is laid for the interference of the coort. It is 
not enough that the action was brought bona 
fide ; that the plaintiff had apparent reasonable 
grounds for suing, and that he was taken by sur- 
prise by the defence. Godson v. Freeman, 2 C. M. 
Jk R. 585; 1 Tyr. ^k G. 35; 4 Dowl. P. C. 543. 

683 

The discretion as to costs in actions by execu- 
tors, given by the court or a judge, by the 3 dc 4 
Will. 4, c. 42, s. 31, is not to be goyemed by the 
fact of the action haying been projierly brought, 
but it must be shown tiiat the plaintiff was in- 
duced to bring it by something like fraud or 
misrepresentation on the part of the defendant. 
(Per Curiam — Mr. Justice Vaughan dissentins.) 
The mere fact that the defendant when applied 
to refuses to state the ground of his resistance of 
the claim, will not suffice. Southgate v. Crowley, 
1 Scott, 374 ; 1 Bing. N. R. 519 ; 1 Hodges, 1. 

683 

Where an executor has commenced an action, 
without using due diligence to ascertain that he 
can proceed with a reasonable prospect of success, 
or is guilty of any laches, so as to cause nnne- 
cessaiy expense or yexation to the defendant, the 
court will not interpose to excuse him from costs, 
in exercidb of the discretion giyen to them by the 
31st sect, of the 3 dk 4 Will. 4, c. 42. Wilkinson 
V. Edwards, 1 Scott, 173; 1 Bing. N. R, 301 ; 3 
Dowl. P. C. 137. 683 

An administrator arrested the defendant on a 
bond given to the intestate more than 20 years 
before his death, and no interest had been paid 
upon it. The defendant pleaded his discbarge 
under the Insolvent Act, and the verdict was 
found in his fiivor. It appeared that the plain- 
tiff had knowledge that the defendant had applied 
for his discharge before the action was brought : 
— Held, that uie adminsitrator was not entitled 
to be relieved from the payment of costs to the 
defendant under 3 ds 4 Will. 4, c. 42, s. 31. En- 
gler 17. Twysden, 2 Bing. N. R. 263 ; 2 Scott, 
427 ; 4 Dowl. P. C. 330 ; 1 Hodges, 303. 683 

When an action was commenced by an execu- 
trix before, though not tried till af\er the passing 
of the 3 & 4 Will. 4, c. 32 :— Held, that a suc- 
cessful defendant was entitled to costs. Grant v. 
Kemp, 2 C. & M. 636. 683 

An executor had commenced an action before 
the Stat. 3 & 4 Will. 4, c. 42, and the court aUow- 
ed him to discontinue on payment of all costs 
incurred since the passing of that act. Lakin v. 
Massie, 4 Dowl. P. C. 259; 1 Gale, 270. 684 

Quiere, whether the powerof a judge to relieve 
an executor from costs is final or subject to re- 
view by the court .^ Id. 

An administrator who pleads the general issue 
and plene admin istravit, and succeeds on the 
latter plea, is entitled to the jreneral costs of the 
cause. Iggulden v. Terson, 2 Dowl. P. C. 277 : 
4 Tyr. 309. 684 

Arlntration.]— "Where by an order of reference 
the costs of the causes re^rred were to abide the 
event of them, and in one, which was not at issue. 



the arbitrator foond that the plaintiff hsd no 
cause of action against the defendants : — ^Held, 
that the costs of the pleadings followed the event 
of the cause, as in case of a nonsuit. Dibben v. 
Anglesea (Marquis), 2 C. & M. 722; 4 Tyr. 927: 
S. C. 10 Bmg. 568. 685 

Where a plaintiff, who did not give distinct 
notice of attending an arbitrator by counsel, at- 
tended by counsel, and refused to consent to an 
adjournment, except on the defendant's paying the 
costs of the meeting: the court held the plaintiff 
not entitled to such costs, stayed the certificate 
made by the arbitrator in his favor, and referred 
the case back to the arbitrator. Whatley v. Mor- 
land, 2 C. & M. 347; 4 Tyr. 255; 2 Dowl. P. C. 
249. 685 

Trespass, qu. cl. fir. Plea — ^first, general issue ; 
secondly, lib. ten. ; thirdly, a private way ; fourth- 
ly, a highway. The cause was referred, and it 
was agreed that the fourth plea should be with- 
drawn, and that the arbitrator should have power 
to direct what should be done by either party, 
and what road the defendants should have ; that 
he should decide on the costs of the cause as if 
the fourth plea remained, and that the costs of 
the cause, and of the reference, to be taxed by the 
proper officer, should be in his discretion. The 
arbitrator found for the plaintiff on the first and 
second issues, and for the defendant on the third, 
and directed that the plaintiff should pay the de- 
fendants the costs of the cause, of the reference, 
and of the award, to be taxed, &c., and set out a 
road to be used by the defendants. The plaintiff is 
entitled to costs on the first and second issues, and 
tlie defendants to the costs of the cause upoo the 
third issue. Neither party is entitled to costs 
on the fdurth issue. AUenby «. Proudlock, 5 Nev. 
& M. 636. — 



In Ejectment.^ — An attachment will be issued 
for not paying costs in ejectment on the Master's 
allocatur after judgment as is case of nonsuit, 
thouffh no subpoena solvas has issued against the 
nominal plaintiff. Doe d. Floyd r. Ro®* 4 Tyr. 

85 : S. C. nom. Doe d. v. Baker, 2 Dowl. P. 

C.217: S.P.Doed.Fryi>.Fry,2C.&M.234; 
2 Dowl. P. C. 265. 686 

A rule for an attachment for nonperformance 
of the terms of the consent rule, is properly in- 
tituled as in an action against the casual ejector, 
although obtained upon affidavits intituled as in 
an action against the tenant Rex o. Bryant, 8 
Nev. &. M. 667. ^ 686 

In ejectment, twelve defendants entered into 
a joint consent rule shortly before the trial ; by 
a judge's order two were permitted to withdraw 
their plea, and suffer judgment by default. At 
the trial the two did not appear when called on : 
— Held, that the plaintiff was entitled to a gene- 
ral judgment against ^1 the defendants, they re- 
ceiving the costs of that defence which, as to a 
part ofthe premises, was successful Doe d. Bish- 
ton V. Hughes, 1 Gale, 263. 966 



Other Proceedings.}— The 1 Will. 4, c.2l, does 
not enable the court, where a party has declared 
in prohibition and succeeded, to grant him his 



[COSTS] 



3413 



OQCti iQciirfed in the ecclesiutieal court. Tessi- 
nond V. Yardley, 5 B. d^ Adol. 458. 689 

No costs allowed for appearing to support a 
demurrer which has been entered in the paper 
before yoinder, and without delivering the demur- 
rer books to the judges. Howarth v. Hubbersty, 
5TVr. 391. 686 

IsBoes were joined in fact and in law, and no- 
tice ol trial of the former ffiven, but the plaintiff 
hsTing ^ne to trial, paid toe costs of the day on 
motion in the subsequent term. In that terra 
the demurrer was argued, and the defendant had 
leaTe to amend on payment of costs. The Mas- 
ter disallowed all the plaintiff's costs of the paper 
boc^a and benefit which related to the issues in 
Cict, and was held right. Jones v. Roberts, 4 Tyr. 
310; 2 DowL P. C. 374. 6&d 

Under staL 1 Will. 4, c. 21, s. 6, the costs of a 
mandsmns, and of applying for it, may be obtain- 
ed of the court by a distinct motion afler the is- 
saiitg of the writ. And upon such motion for 
costs, the csouit will refer for its guidance to the 
affidavits filed in support of the application for a 
muidamus, if it be clear that both applications 
are made by the same parties. Rex v. Kirke, 5 
a. and Adol 1089. 688 

The tenant in a writ of intrusion is not enti- 
tled to costs upon a nolle prosequi. The statute 
8 Elix. c. 2, is confined to personal actions. Wil- 
bams, dem. Harris, ten., 4 M. & Scott, 491 ; 2 
Dewl. P. C. 819. 690 

Where a ferdict is found for the plaintiff on 
same counts and for the defendant on other 
eoonts, and the Questions raised on the counts 
firand for the defendant are submitted for the 
spinion of the court, in the form of a special case, 
9m which the defendant obtains iudgment, the 
Master, in taxing costs, should allow tbe costs 
•f the special case to the defendant. Gosbell v. 
Aidier,5NeY db M. 523 ; 2 Adol. dt Ellis, 500 ; 
1 Bar. A WoU. 569. 691 

Where a special case, on which judgment had 
been given for the plaintiff in this court, was at 
tbe mmtMnei^ of the defendant turned into a spe- 
cial Terdict, that he might have an opportunity 
•f obtaining the judgment of a court of error 
tfaeaeoo, this court, alter the lapse of two years, 
aad after the costs of the trial and special case 
bad been taxed and paid, refused to allow the 
plantiff the costs thereby occasioned. Collins v. 
Gwyime, 2 Scott, 332 ; 4 Dowl. P. C. 122. 691 

Jfntf THal.l — Where a new trial is granted 
upon payment of costs, re mane t fees, althoagh 
incurred before the unsatisfactory trial, are to oe 
paid by the party impagning the verdict Robin- 
son V. Day, 2 Nev. ^Et M. 670 ; 5 fi. & Adol. 814. 

691 

Where a new trial is granted, and nothing said 
in tbe role as to the costs of the former one, and 
after varions subsequent proceedings one party 
socceeds, he is not entitled to the costs of the first 
taxaL Newbury r. Colvin, 2 Dowl. P. C. 415. 

692 

If an attorney ahowi cause on his own behalf, 



a^inst a rule for a new trial, or a stet processus, 
his client not appearing, the costs of the attorney 
ate not costs in the cause, but must be made the 
flobiect of a special application to the court ; and 
if that application is not made when the rule is 
disposed of, the court will not afterwards amend 
the rule as to them. Southee v. Tbiry, 2 DowJ. 
P. C. 522. 603 

The rule as to the payment of costs on a mo 
tion for a new trial, is the same in principle in 
criminal and civil cases. Rex v. Aldridge, 1 Nev. 
A M. 776. 693 

The 64th rule H. T. 2 Will. 4, applies only to 
cases where a new trial is granted upon the wnole 
record. Bower v. Hill, 2 Scott, 540 ; 1 Hodges, 
334. 691 

On the trial of a right of way, in one count 
claimed as a public, and in another as a private 
way, a general verdict was found for the defend- 
ants. The court afterwards directed a new trial, 
expressly by the rule, confining it to the right 
claimed in the second count. In the rule no 
mention was made of costs, nor any reservation 
of the defendant's verdict on the first count : — 
Held, that the defendants were, nevertheless, en- 
titled to the costs of the issues found for them on 
the first trial, and not in contest on the second, 
they having succeeded on such second trial. Id. 

Where a jury, not being able to agree upon a 
verdict, were dismissed by the judge, out without 
the consent of the parties, the court refused to 
grant the plaintiff, who obtained the verdict at a 
second trial, the costs of the first attempt at trial. 
Seally v, Powis or Powers, 3 Dowl. P. C. 372; 1 
Har. & WoU. 118. 691 

Where a jury is discharged by the judge, of his 
own authority, from finding a verdict, they being 
unable to agree, the ultimately successful party 
is not entitled to the costs of me first attempt at 
trial. Waite v) Spurgin, 4 Dowl. P. C. 575. 691 

Where a plaintiff is prepared to try at one sit- 
tings, but, rrom the press of business, the cause 
does not come on, and those sittings last till the 
second sittings commence, but the plaintiff is 
obliged to withdraw his record on account of its 
not having been resealed, he is still not liable to 
the costs oT the first sittings. Waters v. Weath- 
erby, 3 Dowl. P. C. 328. 691 

Where a cause was referred at nisi prius to an 
arbitrator to reduce the damans, or enter a ver 
diet for the defendant, on which the court gave 
judgment that the verdict ought to be reduced : 
— Held, that the costs of this rule were properly 
taxed as costs in the cause. Goodalfv. B^y, A 
Dowl. P. C. 76 ; 1 Har. 6l Well. 333. 691 

The party who succeeds at a second trial, will 
not be allowed in taxation the costs he has incur- 
red for copies of a shortrhand writer's notes of 
the evidence given at the former trial. Grease 
V. Barrett, 2 C. M. & R. 738 ; 1 Tyr. & G. 112. 

693 

The execution of a writ of inquiry was set aside 
for misdirection \ the defendant paid the amount 
of the verdict without proceeding to a second in- 
quiry : — Held, that he was not liable to the costs 



3414 



j:costsj 



of the fint inqoinr. Porter v. Cooper, 1 Oa]e, 
149. 693 



Double and treble Coj^.]— The doubld costs 

S'tch to magristiates by 21 Jac. 1, c. 12, s. 5, are 
ose GOBts only which are recoverable in the or- 
dinary course of law doubled. Thomas v. Saun- 
ders, 3 Nev. & M. 572; 1 Adol. and Ellis, 552. 

694 

Therefore, where the plaintiff in an action for 
false imprisonment against magistrates, within 
21 Jac. 1, obtained an order for clianging the ye- 
nue for the purpose of securing an impartial trial, 
in which order he undertook to pay to the defen- 
dants odl the extra costs necessarily occasioned 
by such cause being tried in the county where 
the trial was ordered to be had, the defendants 
were not entitled to have such extra costs doubled. 
Id. 



A justice of the peace is not entitled to have a 
suggestion entered on the roll, that the action 
was brought against him for an act done bv him 
as a justice of the peace, in order to obtain double 
costs. Fosbroke «. Hall, 1 Mees. &> Wels. 205 ; 
4 Dowl. P. C. 701. 694 

Semble, that a justice of the peace is entitled to 
double costs on discontinuance before trial, under 
the 7 Jac. 1 c. 5. Id. 

The defendant will not be allowed to enter a 
fuggestion on reoord to entitle him to double 
costs, if the plaintiff is willing to give him double 
costs without. Id. 

fiy 5 & 6 Will. 4, c. 83, 8. 3, treUe easts are 
given to patentees in whose favor a verdict or de- 
crupasseSf or a certificate of the judges that the va- 
lidity of the patent came in piestion. 694 

Semble, that in order to entitle a party to tre- 
ble coats under the lOOth section of tne Building 
Act, no suggestion on the record is necessary. 
Wells V. Ody, 3 Dowl. P. C. 799 ; 1 Gale, 161. 

694 

In an action for penalties given by a statute 
against a puty acting, though disqualified, the 
defendant is not entitfed on a nonsuit to treble 
costs under a clause of the act, giving them in 
any action '' for any act or thinjg; done m execu- 
tion of, or under the authority of the act." 
Charlesworth v. Rudgard, 3 Dowl. P. C. 517 ; 1 
CM. A R. 896} 5Tyr.476; 1 Gale, 42. ~ 694 

By a river* navigation act commissioners are 
, authorised to appomt a clerk, and to allow and 
appo'uxt to him a reasonable sum for his attend- 
ance, d^c ) and it is enacted that such sum shaU 
be paid by the proprietors of the tolls of the navi- 
gation. By a distant section, if such proprietors 
shall neglect or refuse to pay such sum of money, 
&o. which shall be so allowed and become due or 
payable to the clerk, upon demand thereof made^ 
of the proprietors or the collector, such sum may 
be recovered by action of debt, drc. with double 
costs of suit, such action to be brought in the 
name of the clerk. No action can te brought 
upon the prior enactment alone ; and an action 
on the statute must be taken to be founded on 
the two sections conjointly, although the decla^ 



ration omit to state an actoal demand. Wheicv 
therefore, in debt upon the statute, the plaintiff 
obtains a verdict upon nil debit pleaded, he is 
entitled to double costs notwithstanding such 
omission. Tibbets v. Torke, 5 Nev. &. M. 609. 

694 

Qusre, whether the omission would have been 
good of special demurrer.' Id. 

Security for Costs^—K plaintiff cannot be re- 

Suired to give security for costs, unless it appears 
iiat he is gone abroad for more than a tempo- 
rarv residence. Taylor v. Fraser, 2 Dowl. P. C. 

Security for costs cannot be required from a 
peer, though residing abroad. Ferrars (ISarl) «. 
Robins, 2 Dowl. P. C. 636. 696 

A plaintiff who is a peer, and out of the juris- 
diction, mast give the usual security for costs in 
equity. Aldborough (Lord) v. Burton, 2 Mylne 
& K. 401. 696 

A commissioner of the Ionian Islands filling 
lus office out of this country cannot be compelled 
to find security for costs, when plaintiff. Nugent 
(Lord) r. Harcourt, 2 Dowl. P. C. 578. 696 

Where a plaintiff, suing in forma pauperis, will 
be absent from England eighteen months, the 
court will compel him to give security for costs, 
or stay his proceedings until his return. Foss v. 
Wagner, 2 Dowl. P. G. 499. 696 

Where the pluntiff resides abroad, the court, 
bj the 98th rule of H. T. 2 Will. 4, has a discie- 
tionary power to require security for costs, not* 
wiUistanding that the defendant has proceeded x 
in the cause after he knew that the plaintiff re- 
sided abroad. Fletcher v. Lew, 5 Nev. &M. 351 ; 
1 Uar. & WoU. 430. 696 



So, it may be required after issue joined, 
ble. Id. 

If a plaintiff be permanently resident abroad, 
and is only occasionally in this country, he will 
be liable to give security for costs. Ui:|mey v. 
Key, 3 Dowl. P. C. 559 ; I Har. ^ WoU. 203. 

696 

The court will not compel a plaintiff to give 
security for costs because he had gone to serve 
in a foreign army in a civil war. Frodsham v. 
Myers, 4 Dowl. P. 0. 280; I Har. & WoU. 526. 

696 

Where a cause was tried, and the jury not 
being able to agree in their verdict, were dis- 
charged by consent of both parties, and the 
plaintiff gave a new notice of trial: — Held, that 
an application for security for costs, on the 
grouna that the plaintiff had gone to reside 
abroad, was too late, it appearing that the de- 
fendants had been fully aware of Uiat fact before 
the first trial. Wainwright v. Bland, 2 C. M. d& 
R. 740; 4 Dowl. P. 0. 547; 1 Tyr, & G. 137. 

696 

In an action brought upon a bond, in the 
name of an obligee resident abroad, for the bene- 
fit of an assignee in this country, the defendant 
ma^ claim security for costs from the nominal 
plaaatiff: the assignee's written uadeitaking is 



[COSTS] 



2415 



not loiEeieiit. Tonde v. Yoade, 3 Adol. & Ellis, 
ail. 696 

Where IB an. action bj a foreigner, security 
has been given for costs, in an amount aderwards 
nnieh exceeded by the defendant's costs actually 
iocurred on the trial, it is too late for him to 
more lor further security for costs after a nonsuit 
and pending a rule for a new trial. Alivon v. 
Fomival, 2 C. & M. 555 ; 4 Tyr. 370. 696 

Where one of two lessors of the plaintiff is 
ibioad, the defendant is not entitled to security 
for his costs. Doe d. Bawden v. Roe, 1 Hodges, 
315. 696 

If one of three plaintiffs is resident in this 
eonntry, and the other two are residing abroad, 
the defendant is not entitled to security for his 
costs. Orr v. Bowles, Hodges, 23. 696 

Where a plaintiff is a mariner, and is abroad 
on a Toyage, his ftmily being left in this coun- 
tiy in Iod|pngs : — Held, that he will not be re- 
qnired to give securiW for costs. Ford v. Boucher, 
1 Hodges, 58. 696 

Assignees of bankrupts. Mason v. Polhill, 1 
C.&.M.G20; 3Tyr.595; 2Dowl.P.C.6l. 698 

The court uriU not compel a plaintiff in a qui 
tarn action to give security for costs, though it 
is sworn that he is a pauper, and has a yery great 
Aomber of actions by the same attorney. Gregory 
q. t y. £lyid£e, 2 Dowl. P. C. 259 ; 2 C. <& M. 
336; 4Tyr. 235. 698 

If an insolvent debtor proceeds with an action 
lAer executing his assignment, although no as- 
signees are appointed, the court will compel htm 
to find security for costs. Doyle v. Anderson, 2 
Dowl. P.C. 596. 698 

Where a plaintiff becemes bankrupt before the 
trial of a cause,, the defendant cannot apply for 
security for costs till he has ascertained that the 
assignees haye resolved to proceed with the ac- 
tion. Wilkinshaw V. Marshall, 4 Tyr. 993. 698 

A plaintiff declared in time to go to trial at the 
sittings in Mich. T., had not two orders for time 
to plrad been obtained. As the *« usual terras" 
were imposed, yis., inter alia the accepting short 
notice or trial, the plaintiff might still haye gone 
to trial a.t the sittings after Siat term, but did 
not On the 10th of January he appeared in the 
Gaielte as a bankrupt, and on the 29\h. the issue 
was deliyered : — Held, that an application for se- 
cnrity for costs from the assignees made on tiie 
31at January was in time. Id. 

Plaintiff, who, under circumstances, had been 
ordered to giye security for costs by reason of his 
iasolyency, but who had not complied with the 
order was ordered to giye that security within 
ten days or his bill to be dismissed. Tredwell v. 
Byrch, 1 Y. & Col. 480. 698 

The court refused to grant a rule, calling upon 
the defendant in repleyin to find security for 
costs, although it was sworn that neither the de- 
fendant nor ue broker were able to pay them, and 
the defendant had taken the benefit of the In- 
Boiyent Act. Hiskett v, Biddle, 3 Dowl. P. C. 
634; 1 Hodges, 119. 696 

After an anest of a defendant, the plaintiff re- 



moyed his furniture, and absconded, to ayoid a 
charge of bigamy: — Held, that the defendant 
was entitled to security for costs. Rogen v* 
Banger, 4 Dowl. P. C. 411. 698 

Security for costs may be applied for at any 
time before plea pleaded : even afWr the defend- 
ant has had an order for time to plead. Gurney 
r. Key, 3 Dowl. P. C. 559; 1 Har. & WoU. 203. 

699 

So at any time afler plea pleaded. Fletcher 
V. Lew, 5 Ney. &^ M. 351 ; 1 Har. &, Woll. 43a 

699 

Where security for costs has been giyen, the 
defendant will not be entiUed to fresh security if 
the sureties become insolyent. Jones v. Jacobs, 
2 Dowl. P. C. 442. 699 

It is too late to apply for security for costs af- 
ter judgment signed, fiorhs v. Sessions, 2 Dowl. 
P. C. 710. 699 

Unless a preyious application is made, the 
costs of the rule will not be allowed. Id. 

Where a party is seryed with a notice not to 
proceed without ^iying security for costs, and 
giyes an undertakmg to that effect, tiie notice 
and undertaking are waiyed by the opposite party 
taking a step in the cause. Pulford v. Smithwick, 
1 Alcock &, Napier, 55. (/risA). 699 

The application for security for costs is stric* 
tissimi juris. £x parte Tull, 1 Mont. A Ayr. 80. 

699 

Examining a witness before the commission- 
er, as to the matter of the petition, and an applica- 
tion to the court of Reyiew that the registrar 
may attend at the hearing with such examina- 
tion, is a waiver, of the ri^t Id. 

Where a plaintiff is ^ilty of laches in de- 
claring, the defendant is not depriyed of his 
claim to security for costs by obtaining time to 
plead. Fry V. Wills, 3 Dowl. P. C. 6. 69» 

The court will not compel a plaintiff to giye se- 
curity for costs already incurred. Oxenden v» 
Cropper, 4 Dowl. P. C. 574. 699 

During the pendancy of a rule for a new trial 
obtained by the plaintiff*, the court will not com« 
pel him to giye security for the future costs in 
the cause. Id. 

The court will not appoint any fixed .time be- 
fore which a plaintiff is to giye security for costs. 
Broughton v. Jeremy, 1 Har. & Woll. 525. 699 

A rule nisi for security for costs, with a stay 
of proceedings, will not be allowed on the last day 
of term. Gronow v. Pointer, 3 Dowl. P. C. 57K 

699 

An application for security for costs in bank- 
ruptcy must be made before any step is taken by 
the party applying. £x parte Tull, 3 Deac. & 
Chit. 503. 699 



Taxation of Costs.') — An allocatur is ths pro- 
perty of the person m whose fayor it is made. 
Doe d. King v. Robinson, 2 Dowl P. C 503. 700 

Notice of taxing costs is not necessary in any 
case where Uie cfefendant has not appeared^ in 
person, or by his attorney or guardian, notwith- 



1 



2416 



[COSTS] 



Btandinir the general rule T. T. ] Will. 4. Reg. 
Gen. K. B., C. P., and Exch., H. T. 4 Will. 4. 

700 

No notice to tax is necessary when a defendant 
appears in person and gives a cognovit which is 

food, though there is no declaration. Clarke v. 
ones, 3 Dowl. P. C 277. 700 

Costs of increase form no integral part of the 
suit, as they are awarded by the court in conse- 
quence of the damages recovered by the plaintiff, 
and form the subject of a distinct and separate 
adjudication. Taylor v. Wilkinson, 5 Nev. ^ M. 
189 ; 1 Har. & WoU. 451. 700 

The rule for taxing to the defendant the costs 
of the two issues found for him was drawn up 
with this additional clause, ** and that the costs, 
when so taxed, be paid by the safd plaintiff to 
the said defendant.- — Held, that the court had 
no power to nuike such an order. The court 
directed the record to be amended by an entry 
of a judgpnent for the costs of those two issues, 
upon which the defendant might proceed to ob- 
tain his costs if he thought proper. Twigg v. 
Potts, 4 Dowl. P. C. 266. 700 

Where a cause is ready for trial, and poiSt- 
poned at the instance of either party, on the 
terms of paying the costs of the postponement, 
refreshing llees to the counsel of the opposite 

Karty form a portion of those costs. Bourne v. 
linchin, 1 Alcock 6l Napier, 144. {Irish), 701 

Where attested copies of equity pleadings 
are rendered necessary as evidence, the compen- 
sation to the attorney, who attendis to compare 
them for loss of time, is costs in the cause. Id. 

CosU of pleadings. Ward v. Bell, 1 C. &. M. 
848 J 3 Tyi . 904 ; )l Dowl. P. C. 76. 702 

If, by an alteration in the state of the plead- 
ings, aher notice of trial, certain witnesses are 
unnecessary, the part7 who Bubp<Bnaed them 
must make reasonable efforts to prevent their atr 
tendance, or their expenses will not be allowed on 
taxation. Allport v. Baldwin, 2 Dowl. P. C. 5d9. 

703 

It is a question for the discretion of the Mas- 
ter, in each particular case, whether the expenses 
c^ witnesses brought from abroad should be al- 
lowed on taxation : the act 1 Will. 4, c. 22, for 
the examination of witnesses on interrogatories 
has made no alteration in this respect. Air Alpine 
V. Poles, Powles, or Coles, C. & M. 795 ; 3 Tyr. 
871 ; 2 Dowl. P. C. 299. 703 

It is a question for the discretion of the Mas- 
ter, whether a witness ought to be allowed for the 
whole time of his attendance at the assizes, or 
only a portion of it ; but, where the Master has 
decided upon it, the court will not review his de- 
cision. Piatt V. Greene,2 Dowl. P. C. 216. 703 

A plaintiff is bound to have his witnesses in at- 
tendance from the commencement of the assizes, 
and may therefore have the costs of their attend- 
ance previous to the trial. Cosgreve v. Evans, 
2 Dowl. P. C. 443. 704 

Where the master has, in .his discretion, al- 
lowed, upon taxation, the expenses of the wit- 
nesses of the successful party at the assize town 
for several days, daring which their attendance 



was not in &ct necessary, the court will not in- 
terfere with the Mastei^s decision, unless mala 
fides be shown in such successful party^ as an 
intention unnecessarily to increase the costs. 
Thomas v. Saunders, 3 Nev. <5l. M. 572. 704 

Previously to the assizes, the plaintiff serves 
on the defendant a notice, importing that the 
cause will not be called on until the fourth day 
after the commission day, and that he shall ob- 
ject, upon the taxation of*^ costs, to any allowance 
for the time and expenses of the defendant's 
attorney and witnesses, beyond what would be 
necessary if the trial should be had before that 
day ; and that he undertakes to withdraw the re- 
cord if the cause should be called on before. The 
defendant is not bound to pay any regard to such 
notice. Id. 

Semble, such notice, served on the day before 
the commission day, afler all the necessary ar- 
rangements had been made for conveying the 
witnesses to a distant assize town on ihe follow- 
ing day, would be too late, supposing it to be 
otherwise good. Id. 

A party succeeding on an issue is entitled to 
the costs of an V witnesses called to give evidence 
on a fact involved in that issue, though the iury 
or an arbitrator may find that fact against him. 
Radcliffe v. Hall, 2 C. M. & R. 258 ; 1 Gale» 140. 

703 

The Master ought not to allow costs exceeding 
the sum actually paid. Id. 

The costs of executing a commission in a for- 
eign country, under 1 Wul. 4, c. 22, s. 4, are costs 
in the cause, unless some special ground is laid 
for ordering otherwise. Prince v. Samo, 4 Dowl. 
P. C. 5. 702 

If the officer of the courty in taxing a bill of 
costs, disallows charges which are usually allow- 
ed, the court of Bankruptcy will order a re-taxa- 
tion. Aliter, where the charges are not usually 
allowed, unless a special appfication is made to 
the court, stating the reasons for enforcing such 
allowance. In re Gray, 1 Deac. 105. 705 

A motion to review the Master's taxation mnat 
be supported by an affidavit that the Master has 
made his allocatur. Cleaver v. Hargrave, 2 
Dowl. P. C. 689. 705 

An application in bankruptcy, that the ofiioer 
may be directed to review his certificate as to the 
taxation of costs, may be made by motion. Ex 
parte Richardson, 3 Deac. & Chit 735. 705 

It is not an objection to such application, that 
the amount of the taxed costs has not been paid 
into court, though it may be proper to make such 
payments one en the terms of tne order for re- 
taxation. Id. 

An application for a review of the Master's 
certificate of taxation, on the ground that certain 
items had been improperly allowed, is not regalar« 
by way of motion. Att Gen. v. Brown, 1 Mylne 
& K. 567. 705 

Under the directions to taxing ofiicera promnl- 

S.ted in H. T. 4 Will. 4, it is not necessary for 
e judge who certifies jto enable a plaintiff to ob- 
tain full costs, to hear the cause throughout. 
Nokes 17. Frazer, 3 Dowl P. C. 339. 705 



[COSTS— COVENANT] 



2417 



Rttawry of Costs.'] — ^Where the plaintiff has 
been nonprossed in the Exchequer, and after- 
wards brings an action in K. B., that court will 
sta^ the proceeding till the costs of the former 
action are paid. Nevitt v. Lade, 3 Dowl. 396. 

706 

Where the plaintiffs recovered Is, damages, al- 
though the surname of one of them was omitted 
in the Nisi Prius record, on which ground the 
court refused to increase the damages to the sum 
the plaintifi sought to recover, and they sued 
oat execution for the costs on the verdict for Is., 
and brought another action for the sum they ori- 
rinally sought to recover, although they had re- 
msed to amend the record on payment of costs : 
the ooort stayed the proceedings in the second 
action, the defendant not having pleaded. Long- 
ridge V. Brewer, 7 Moore, 522 ; 1 Bing. 307. 70i6 

Where a second action was brought for the 
same cause of action for which a former one was 
pending, the court discharged a rule for staying 
the proceedings in the second action, upon the 
affidavit of the plaintiff disclaiming the act of his 
attorney in brining the first action. Souter v. 
Watts, 2 Dowl. P. C. 263. 706 

Proceedings stayed in a second ejectment on 
the several demises of A., an insolvent debtor, 
and of B., his assignee, until payment of the costs 
of a former ejectment broturht by A. Doe d. 
Standiah v. Roe, 2 Nev. dt AL 468; 5 B. A Adol. 
W8. 707 

A second ejectment will be stayed until the 
payment of the costs of a former ejectment on 
the same title, where in the first ejectment the 
pka has been filed, and the drafl consent rule 
drawn up but not entered into. Doe d. Langdon 
«. Langdon,2 Nev. & M. 848 ; 5 B. & Adol. 864. 

707 

Where, in a country cause, a declaration in 
ejectment ¥ms delivered on the 30th of Septem- 
ber, an4, on the fifth dav of the ensuing Hilary 
terra, a motion was made to stay proceedings in 
thai ejectment until the costs of a former eject- 
nent were paid : — Held, that the motion was not 
too late, although a term had elapsed since the 
coaunencenieiit of the action, and notice of trial 
had been given. Doe d. Martin v. Packer, 2 C. & 
M. 457 : S. C. nom. Doe d. Maslin v. Packer, 4 
Tyr. 144 ; nom. Doe d. Green v. Packer, 2 Dowl. 
P. C. 373. 707 

A tenant who has been served with a declara- 
tion in ejectment, cannot move to stay proceed- 
ings nntil the costs of a former ejectment, m every 
way similar, are paid, before he has entered into 
the consent rule. Doe d. Crockett v. Roe, 1 Har. 
&, WoU. 35L 707 

The court refused to discharge an order of a 
judge, by which time was ^iven to the defendant 
to rejoin, until ailer the plaintiff had purged him- 
self of a contempt in the nonpayment of inter- 
locutory costs in the cause, although an attach- 
ment bad been issued for the same contempt, but 
it had not been executed. Wenham v. Downes, 5 
Nev. & M. 244 ; 1 Har. <& WoU. 324. 706 



COVENANT. 

Construction of covenent to indemni^. Carr v* 
Roberts, 5 B. & Adol. 78; 2 Nev. & M. 42. 709 

Executors, though not named, may sue upon 
a covenant made with their testaitor in reference 
to a chattel. Doe d. Rogers v. Rogers, 2 Nev. d^ 
M. 550. 718 

In consideration of the sum of 300Z., T. D. A 
R. D. by deed, severally and respectively, and 
for their several and respective heirs, executors, 
and administrators, granted, covenanted and 
agreed, to and with L. &, B., their heirs, execu- 
tors, administrators, and assigns, to pay to L. dt 
B., their executors, &c., one annuity or clear ' 
yearly sum of 30Z. in the shares and proportions 
following, viz. the sum of 152., being one moiety 
of the annuity, unto L., his executors, &c., and 
the sum of lA , the remaining moiety, unto B., 
his executors, &c., to be respectively paid quar- 
terly. The powers for better secunn^ the pay- 
ment of the annuity contained in the deed were 
all given to L. & B. jointly, and the deed also 
contained a joint power of attorney to them to 
enter up joint iudgment; and a joint power 
was mnted to them to dispose of the reversion 
of a close of land, with a joint power of attorney 
to sell certain stock ; and the annuity was re* 
deemable, on seven days' notice in writing being 
^iven, by the payment to L. & B. of the sum of 
3072. iOs. and all arrears of the annuity. In an 
action brought by L. against T. D. to recover 
arrears of the annuity : — Held, that the covenant 
was a joint covenant, and that the interest in the 
annuity was joint, and that L. could not sue 
alone. Lane v. Drinkwater, 1 C. M. & R. 599 ; 
5 Tyr. 40. 717 

A covenant with the part-owners of a ship, and 
their several and respective executors, &c. to pay 
money, to accrue lor the hire of the ship, for 
freight of goods, and for compensation for the use 
of the ship's tackle, Ac. to the covenantees, their 
and every of their several and respective execu- 
tors, &c., at a certain banking-house, in such 
parts and proportions as were set against their 
several and respective names, is a several cove- 
nant and cannot be sued upon by the cove- 
nantees jointly. Servante v. James, 5 M. dc^ R. 
299. 717 

The lessees of a theatre, by de^d under seal, 
agreed to pay certain money lent to them by the 
plaintiff, on a certain day, and that untilpay men t 
the plaintiff, and such persons as he mignt ap- 
point, should have the free use of two Iwxes in 
the theatre, one in the dress circle, and one in the 
circle above, no specific boxes bein^^ mentioned. 
The lessees afterwards assigned their interest in 
the theatre to the defendant: — Held, that this 
was a mere personal contract, and that no action 
could be maintained against the assignee for re- 
fusing to permit the plaintiff to use the boxes in 
the Uieatre. Flight v. GIossop, 2 Scott, 220 ; 3 
Bing. N. R. 125 ; 1 Hodges, 263. 719 

" A. by indenture, executed by himself and B., 
assigned to B. certain premises, subject to the 
payment of the rent, and to the performance of 
the covenants and agreements reserved and con- 



3418 



[COVENANT-^CRIMINAL LAW] 



tained in the origina] leue.*' B. entered under 
this aBsignment, and afterwards assigned over to 
a third person : — Held, that B. was not liable in 
covenant to A., for rent which the latter had been 
called upon to pay, in consequence of the default 
of B.'s assignee : the words '* subject to the pay- 
ment of the rent, Slc." being words of qualifica- 
tion and not of contract Wolyeridge v. Steward, 
3M.& Scott, 561. 720 

The 11 Anne, (Irish), c. 2,s. 6, renders the 
notion of covenant against the assignee of the 
lessee transitory. Giogan v. Magan,! Alcock & 
Napier, 3G6. (Irish). 790 

In declaring in covenant it is only ^ necessary 
to set forth so much of the indenture as is requi- 
site to support the action. Id. 

Where an indenture of lease contained a pro- 
viso, that if a certain event should happen after 
the execution of the lease, the rent reserved 
should be reduced : — Held, that, in an action of 
covenant for nonpayment of rent, the covenant 
might be declared upon as an absolute covenant 
Id. 



fendant covenanted to pay a certain sum of money 
at a certain time. Upon oyer, the covenant ap- 
peared to be to pay the money at that time, and 
also at a particular place. The defendant de- 
murred, and assigned the variance as a cause 
of demurrer : — Held, that there was no material 
variance. Paine v. Emery, 4 Dowl. P. C. 191 ; 
lGale,2G6. 790 

In covenant to allow a business to be carried 
on in a certain shop, a breach that defendant im* 
properly ^ut up the shop is sufficient, without 
alleging that the shop was shut up at unreasooa* 
ble or improper times. Hodges v. Gray, 4 Dowl. 
P. C. 733. TW 



CRIMINAL LAW. 



I. Persovs capable op'coMnrrrnio Cbiheb. 



A. & B. are lessees of a coal mine, A. beinff also 
lessee in trust for himself and B. of land adjoin- 
ing, necessary for the working of the mine, cove- 
nant with C that he will do nothing whereby an 
annuity, charged (with power of entry upon the 
mine, Ac. and sale, in case the annuity should be 
in arrear), upon the profits which, after payment 
of the rent, taxes, &c. then charged thereon, 
might be made under the leases of ihe mine and 
land, bv the sale of the coal or otherwise, mav be 
iropeacbed. In an action on the covenant, C. as- 
«igns as breaches — ^first, that A. surrendered the 
land, and took a new lease to himself and B. joint- 
ly, in trust for other persons, whereby the annuity 
Xiecame and was impeached, and the plaintiff lost 
his remedies to enforce it ; 2ndly, that A. &• B. ac- 
cepted a new lease of the land, at an increased 
rent, and, in other respects, upon less advanta^ 
4>ns terms, for the fraudulent purpose of obtainmg 
from the lessor a demise of mines under the land 
upon terms advantageous to A. & B., whereby 
the annuity became and was impeached ; 3rdly, 
that A. &, B. assigned (amongst other things) 
«uch neighboring mine and the land to D., 
thereby tne annuity became and was impeached : 
—Held, that the declaration was insufficient, for 
tiot showing in what manner the acts complained 
of operated to impeach the annnuity. ritt v. 
WiUiams, 4 Ncv. & M. 412 ; 2 Adol. A Ellis, 419. 

720 

In an action on a covenant, to do no act where- 
hj an annuity charged upon the profits of a coal 
mine shall be impeached, it is no ground' of de- 
murrer that the declaration does not allege that 
any profits have been made. Id. 

Quere, whether such omission would disen- 
title the plaintiff to recover more than nominal 
damages? Id. 

In an action to recover arrears of annuity, such 
allegation in the declaration would be required. 
Id. 

In covenant the declaration stated that the de- 



If larceny be committed jointly by husband 
and wife, the latter is entitled to be acquitted, an 
she must be presumed to be under his eoereion 
and control ; and where she was indicted. as ^* the 
wife of A. B. :**— Held, to be sufficient proof that 
she was so, without adducing further evidence to 

?rove that fact Rex v. Knight, 1 C. & P. 116 — 
ark. 727 

A person, deaf and dumb, was to be tried for m 
capital felony : the judge ordered a jurv to be im- 
panneled, to try whether he wna mute by the visi- 
tation of God ; the jury found that he was so. 
The jury were then sworn to try whether he was 
able to plead, which they found m the affirmative ; 
and the prisoner, by a sign, pleaded not guilty. 
The judge then ordered the jury to be sworn to 
try whetner the prisoner was now sane or not ; 
and on the question, his lordship directed the 
jury to consider whether the prisoner had sufli 
cient intellect to comprehend the course of the 
proceedings, so as to make a proper defence, to 
challenge any juror he might wish to object to, 
and to comprehend the details of the evidenee : 
and that if thev thought he had not, tliev should 
find him not of sane mind. The jury did so. and 
the judge ordered the prisoner to be detained un* 
der the stat. 39 & 40 Geo. 3, c. 94, s. 2. Rex v. 
Pritchard, 7 C. & P. 303— Alderwm. 727 

It is no defence on behalf of a foreigner charged 
in England, with a crime committed there, that he 
did not know he was doing wrong, the act not be- 
ing an ofl[ence in his own country. But thonek 
itis not a defence in law, vet it is a matter to be 
considered in mitigation ot punishment Rex v. 
Esop, 7 C. & P. 456— Bosanquet &> Vaughan. 

727 

The case of Rex v, Grindley, in which it was 
said that the intoxication of a person charged with 
murder was a proper circumstance to be tucen in- 
to consideration in order to show whether the act 
was premeditated, or done only with sudden heat 
and impulse, is not law. Rex v. Carroll, 7 C. & 
P. 145— Parke. 728 

In a case of stabbing, where the prisoner has 
used a deadly weapon, Uie fact that the prisoner 
was drunk, does not at all alter the nature of the 
case ', but if the prisoner had intemperately used 



[CRIMINAL LAW] 



^19 



VI instmiDent, not in its nature a deadly weapon, 
at a time when he was drunk, the fact of his be- 
ui|r drank might induce the jury to less strongly 
inier a malicious intent in him at the time. Rex 
r. Meakin, 7 C. & P. S^^Alderaon. 728 

II. PlUlfClPAL AND ACCESSORT. 

A., a lad who was a clerk in a banking house, 
robbed his employers ; afler doing so, he went to 
tlw lodgings of tf., who was much older than him- 
self, and who had relations in America. A. 
stayed twenty minutes at B/s lodgings ; and after 
thai, on the same night, A. and B. started toge- 
ther by the coach, and went from Reading to Li- 
verpool, intending to embark for America: — 
Held, that, on this evidence, B, might be convict- 
ed as an accessory afler the fact, in *^ harboring, 
reoeiying, and maintaining" A. the principal felon. 
Rejc V. £ee, 6 C. & P. 5§6— Williams. 728 

A. was indicted for larceny as a principal, B. 
being chared in the same indictment with 
having received the stolen property from A. B. 
was tried at the Clerkenwell sessions for the re- 
ceiving, and was convicted, and sentenced to be 
transported. A. was afterwards tried at the Old 
Bailey as the principal, and acquitted : — Held, 
that, although B. was imprisoned in Newgate, in 
Musnanoe ofhis sentence, the judges at the Old 
bailey had no jurisdiction to order his discharge. 
Ex paite Palmer, 6 C. dt P. 122-LitUedale. 728 



VII. Offikces relating to Stamps. 

A person may be found guilty under the stats. 
13 Geo. 3, c. 52, s. 14, and 38 Geo. 3, c. 60, s. 7, 
if he be proved to have transposed the mark of the 
Goldsmiths* Company from one gold ring to 
another, although both rings be genuine, and 
although the jury may be of^opinibn that he did 
sowithont any fraudulent intention. Rez v. Og- 
den, 6 C. dk P. 631— Grim. Court. iSi 



VUL OrrEVCBs relatiho to the Post-of- 
fice. 

At the trial of a person on the stat. 52 Greo. 3, 
c. 143, s. 2, for embezzling a letter containing a 
hill (rf exchange, he being at the time employed 
under the Post-office, it is sufficient to prove that 
such person acted in the service of the Post-office, 
and it is not necessary to go into proof of his ap- 
pointment. Rez V. Kees, 6 C. & P. 606 — Parke. 

735 

On an indictment for embezzlement against a 
letter carrier charged under 2 Will. 4, c. 4, as a 
person employed m the public service of his Ma- 
jesty, it is not necessary to prove his appointment 
as a letter carrier, but evidence of his having 
acted as such is sufficient. Rez v. Borrett, 6 C. 
A P. 124— LitUedale. 735 

If the wife of a party to whom a letter is di- 
rected pays the postage of the letter, she is enti- 
tled to demand an overcharge made for it ; and a 
refusal on the part of the letter carrier to account 
for it to her is evidence of an embezzlement by 
hiflL Id. 



Vol. IV. 



19 



XIV. Homicide. 

Murder. 1 — A child must be actually wholly in 
the world in a Irving state to be the subject of a 
charge of murder ; but, if it is wholly bom and 
is alive, it is not essential that it should have 
breathed, but the jury must be satisfied that the 
child was wholly born into the world at the time 
it was killed, or they ought not to convict the 
prisoner of murder. Rez v. Brain, 6 C. & P. 349 
—Park. 737 

If two persons fight, and one overpower the 
other, and knock him down, and put a rope 
round his neck and strangle him, Uiis will be 
murder. Rez v. Shaw, 6 C. & P. 372 — Patteson. 

738 

A servant of Mr. C. attempted to apprehend A., 
who was out night-poaching in a wood, and the 
servant was killed by A. Mr. C. was neither the 
owner nor the occupier of the wood, nor the lord 
of the manor, Mr. C. having only the permission 
of the owner of the wood to preserve game there : 
— Held, that this was manslaughter only in A. 
Rez V. Addis, 6 C. & P. 388— Patteson. 738 

In criminal cases, the definition of a wound is, 
an injury to the person, by which the skin is 
broken. Moriarty v. Brooks, 6 C. <& P. 864 — 
Lyndhurat. 738 

Mandaughter,'\ — A. being on board a ship, and 
B. in a boat alongside, they had a dispute about 
the payment for some goods, both bemg intozi- 
cated. A., to get rid of B., pushed away the 
boat with his foot. B. reaching out, to lay hold 
of a barge, to prevent his boat from drifting away, 
overbalanced nimself, and fell into the water and 
was drowned. A. was charged with manslaugh- 
ter: — Held, that these facts did not constitute 
that offisnce. Rez v. Waters, 6 C. <& P. 32&— 
Park and Patteson. 739 

If A. and B. be riding fast along a highway, 
as if racing, and A. ride by without doing any 
mischief, but B. rides against the horse of C, 
whereby C. is thrown and killed; this is not 
manslaughter in A. Rez o. Mastin, 6 C. & P. 
346— Patteson. 740 

A foot passenger walking at lamplight in the 
carriage road along a public highway, when the 
owner of a cart, who was proved to be near-sighted, 
drove along at the rate of eight or nine miles an 
hour, sitting at the time on a few sacks laid on 
the bottom of the cart, and ran over the foot pas- 
senger and killed him : — Held, that he was guilty 
of such carelessness as amounted to the crime of 
manslaughter. Rez v. Grout, 6 C. dt P. 629 — 
Crim. Court. 740 

Where a mother, being angry with one of her 
children, took up a small piece of iron used as a 
poker, and on his running to the door of the room, 
which was open, threw it afler him, and hit an* 
other child who happened to be entering the room 
at the moment, in consequence of which he died : 
— It was held to be manslaughter, although it 
appeared the mother had no intention of hitting 
the child with whom she was angry, and only in- 
tended to frighten him. Rez v, Conner, 7 C. db 
P. 438— Parke and Gaselee. 740 



34S0 



[CRIMINAL LAW] 



Where a person in loco parentifl inflicts cor- 
poral pnnishnient on a child, and compels it to 
work tor an unreasonable number of hours, and 
beyond its strength, and the child dies, the death 
being of consumption, but hastened by the ill 
treatment, it will not be murder, but' only man- 
slaughter in the person inflicting the punishment, 
although it was cruel and excessiv;e, and accom- 
panied by violent and threatening language, if 
such person believed that the child was shamming 
illness, and was really able to do the quantity of 
work required. Rex v. CheeseQian, 7 C. « P. 
454— Vaughan. 740 

Where a person grossly ignorant of medicine, 
administers a dangerous remedy to one laboring 
under a disease, proper medical assistance being 
at the time procurable, and that dangerous reme- 
dy causes death, the person so administering it is 
guilty of manslaughter. Rex v, Webb, 1 M. & 
Rob. 405— Lyndhurst 740 

To make the captain of a steam vessel guilty of 
manslaughter, in causing a person to be drown- 
ed by running down a boat, the prosecutor must 
show some act done by the captain ; and a mere 
omission on his part, in not doing the whole of 
his duty is insufiicient. But if there be snflicient 
light, and the captain of a steamer is either at the 
helm or in a situation to be pving the command, 
and does that which causes me injury, he is guil- 
ty of manslaughter. Rex v. Green, 7 C. w P. 
156— Park and Alderson. 740 

The captain and pilot of a steam boat were 
both indicted for the manslaughter of a person 
who was on board of a smack, by running the 
smack down. The running down was attributed 
on the part of the prosecution, to improper steer- 
age of tne steamboat, arising from there not be- 
ing a man at the bow to keep a look-out at the 
time of the accident. It was proved that there 
was a man on the look-out when the vessel start- 
ed, about an hour previous. According to one 
witness, the captain and pilot were both on the 
bridge between the paddle-boxes ; according to 
another, the pilot was alone on the paodle- 
box : — Held, tliat under these circumstances 
there was not such personal misconduct on the 
part of either as to make them guily of felony. 
Rex V. Allen, 7 C. &> P. 153— Pari and Alderson. 

740 

If a police constable^ on being sent for at a late 
hour of the night to dear a heer-house, do so, 
and one of the persons on leaving the house, 
and being told to go away, refuse to do so, and 
use threatening language, the police constable is 
justified in laying hands on him to remove him ; 
and if he cut the police constable with a knife, 
with intent to do grievous bodily harm, this is a 
capital oflTence, and the fact of the police con- 
stable having laid hands on the party, would not 
have reduced the crime to manslaughter, if death 
had ensued. Rex «. Hems, 7 C. & P. 313— Wil- 
liams. 740 



Indictment.] — In an indictment for murder, 
where the death is alleged to have been caused 
by a wound, it is not necessary to describe either 
the length, breadth, or depth of the wound. Rex 



V. Tomlinson,6C. 4t P. 370~Park and Patt0iOD. 

741 



If in a case of murder the death of a deceased 
is charged to be by suffocation, by placing the 
hand on the mouth of the deceased : — Held, that 
this allegation is made out if the jury are satis- 
fied that any voilent means were used to stop the 
respiration of the deceased. Rex v. Waters, 7 C. 
A P. 250— Denman. 741 

In an indictment for manslaughter, it is not 
necessary to allege the causes merely natural 
which conducted to the death of the party ; it is 
snflicient to allege truly the acts with which the 
prisoner is charged, if that act accelerated the 
death. Rex v. Webb, 1 M. dt Rob. 405— Lynd- 
hnrst. 741 



Evidenes.'] — ^A. was charged with manslani^h- 
ter, in killing B., by driving a cabriolet over hnn. 
C. saw the cabriolet drive by, but did not see the 
accident, and immediately afterwards, on hearing 
B. groan, C. went up to him, when B. made a 
statement as to how the accident had happened : 
— Held, that this statement, being made at the 
moment of the accident occurring, was receiTahle 
in evidence on the trial of A. for the mandangh- 
ter of B. Rex v. Foster, 6 C. & P. 325— Park, 
Patteson, and Gnmey. 742 

An indictment charged a murder to have been 
committed by cutting the throat of the deceased : 
— Held, that the ** uiroat*" means what is com- 
monly so called; and that this allegation was 
proved by showing that the jugular vein was di- 
vided, although the carotid artery was not cnt, 
and although the surgeon stated that what he 
should call the throat was not cnt. Rex v. Ed- 
wards, 6 C. 4k P. 401— Patteson. 743 

DedaraUmt in Artkuio Mortis. ] — In order to 
render a declaration in aiticulo mortis admiasible 
in a case of manslaughter, it is not necessary to 
prove expressions of the deceased, that he was 
in apprehension of almost immediate death; bat 
the judge will consider, from all the circum- 
stances, whether the deceased had or had not 
any hope of recovery.* Rex v. Bonner, 6 C. dt P. 
386— Patteson. 743 

On the question whether a declaration of a 
deceased person be admissible as a declaration 
in articulo mortis, the judge will consider whe- 
ther the conduct of the deceased Was that of a 
dying person, such as whether he gave directions 
respecting his funeral, his will, &c., and not 
merely the expressions he used, as to whether 
he thought he should, or should not recover. 
Rex V. Spilsbury, 7 C. & P. 187— Coleridge. 743 

If a declaration in articulo mortis be taken 
down in writing, and signed b^ the party making 
it, the judge wul neither receive a copy of the 
paper in evidence, nor will he receive parol evi- 
dence of the declaration. Rex v. Cray, 7 C. & 
P. 230— Coleridge. 743 

It is no objection against a declaration in ar- 
ticulo mortis, that it was made in answer to ques- 
tions put to the deceased by the surgeon, and 
' not a continuous statement made by the de- 



[CRIMINAL LAW] 



3431 



I 

\ 



Bex V. iWeoL 7 C. & P. S38— Gaselee. 
^^ 743 

If E penon whoM death in the subject of a 
chaii^ of manslaughier express an opinion that 
she shall not recoyer, and make a declaration, 
and at a subsequent part of the same day ask a 
person ^diether he thmks she will ** rise again :" 
— Held, that this showed such a hope of recovery 
ss rendered the preyious declaration inadmissible. 
Id. 



XV. SnooTiva, Stabbiho, Ac, 

A. had the barrels of a double-barrelled per- 
cussion gun detached from the stock and lock, 
and by striking the percussion cap which was on 
the nipple of one of the barrels, he fired it and 
shot B. :~Held, to be within the stat. 9 Geo. 4, 
c. 31, «. 11, 12. Rex V. Coates, 6 C. ^ P. 3d4 

745 



I- 



A. aentatin box to B., containing three pounds 
of gunpowder, and two detonators, which were 
iatended to ignite the gunpowder when any per- 
■en opened the box, and so destroy the person 
wko opened it :— Held, that this was not an at- 
tempt to discharge loaded arms^at B. within the 
slaL 9 Geo. 4, c. 31, ss. 11, 12. Rex v. Mount- 
fed, 7 C. A F. 242— Williams. 746 

Gamekeepers being in a preserye between 
twelve and one at night, heard the firing of two 
guns, and proceeding in the direction of the 
asond, met with two persons who neither had 
guBs nor game upon them, nor were either found 
near them . Hie gamekeepers immediately seized 
them without calling on tnem to surrender, or in 
any way notifying to them who they were. The 
keepers were wounded, one of them seriously : 
— ^HeM, that the prisoner who wounded them 
nigfaft, under the circumstances, and taking into 
Moderation the situation and the time oif the 
mghi, &e., be properly conyieted under the stat. 
9Geo. 4, c. 31, ss. 11, 12. Rex v. Taylor, 7 C. 
& P. 2G&— Vaughan. 745 

On an indictment for wounding, the jury, 

rs the question whether, if death had ensued, 
offence would have been murder, should con- 
sider whether the instrument employed was, in 
its or^nary use, likely to cause death ; or, if it 
be an instrument not likely, under ordinary cir- 
cumstances, to cause death, whether it was used 
in such an extraordinary manner as to make it 
likely to cause death, either by continual blows 
or o&erwise. Rex v. Hewlett, 7 C. &. F. 274— 
AMerson. 745 

Biting off the end of a person's nose, is not a 
wounding within the meaning of the stat. 9 Geo. 
4f c 31, e. IS, nor is biting off a joint from a 
penon's finger, as the statute is intended only to 
apply to woanding produced by some instrument, 
and not by the hands or teeth, &c. Rex v. Har- 
lis, 7 C. & P. 446— Patteson. 745 

In an indictment under Lord Lansdowne's 
Act (9 Geo. 4, c. 31, ss. 11, 12>, the question 
whether in caee death had ensued it would haye 
amounted to murder, is a question of law to be 
decided by the jndge, and is not for the jury 
te pKooooiiGe their opinion upon, uded by tfaie 



judge's obseryations. Rex v. Beeson, 7 C. & P. 
142— Parke and Littledale. 745 



XVI. Administkrino to pxocure Abortioh. 

Semble, that so far as the nature of the thing 
administered is concerned, the question on an 
indictment on the stat. 9 Geo 4, c. 31, s. 13, for 
administering to procure abortion, is a question 
as to the intention of the party administering it, 
and not of the noxious or innoxious character of 
the article itself. Rex v. Coe, 6 C. & P. 403— 
Vaughan. 747 

Xir. Rape. 

In cases of rape, 4^., the capital oiSenoe is 
completed if there be penetration, although there 
has been no emission, and the prisoner has been 
interrupted in the conmiission of the offence. 
Rex V. Cozins, 6 C & P. 351— Park. 748 

On the trial of an indictment for a rape, the 
prosecutrix ma^r be asked whether, preyiously 
to the commission of the alleged offence, tlie 
prisoner has not had intercourse with her by her 
own consent Rex v, Martin, 6 C. & P. 562 — 
Williams. 748 

A count, charging A. with a rape as a princi- 
pal in the first degree, and B. as principal in the 
second dome, may be joined with another count, 
charging B. as principal in the fint degree, and 
A. as principal in the second degree. Rex v. 
Gray, 7 C. & P. 164— Coleridge. 748 



XXIV. Assault and Indecxxt Exposcrx. 

A count in an indictment charged, that a de- 
fendant ^^did attempt to sssault'' a girl ** by so- 
liciUng and inducing her" to place herself m an 
indecent attitude, he doing the like : — Held, that 
such a count is bad. Rex c. Butler, 6 C. & P. 
368— Patteson. 754 

If a party be charged before two magistrates 
with an assault, and mey dismiss the complaint, 
giying him a certificate under the stat. 9 Geo. 4, 
c. 31, s. 27, he cannot ayail himself of this certi- 
ficate as a defence to an action for the same as- 
sault, unless it be specially pleaded. Harding v. 
King, 6 C. & P. 427— Gumey. 754 

On an indictment for an assault with an intent 
to commit a rape, eyidence that the prisoner on 
a prior occasion had taken liberties with the pro- 
secutrix, is not receiyable to show the prisoner's 
intent. In order to conyict on a charge of assault 
with intent to commit a rape, the jury must be 
satisfied, not only that the prisoner intended to 
gratify his passions on the person of the prosecu- 
trix, out that he intended to do so at all eyents, 
and notwithstanding any resistance on her part. 
Rex V. Lloyd, 7 C. A. P. 318— Patteson. 753 



XXVII. Omittiho to oiye sufficient Fooo to, 
AND Ill-treatment of SxRyANTS, Paupers, 

AND HELPLESS PERSONS. 

A married woman cannot be conyieted of the 
murder of her illegitimate child three years old. 



34f2 



[CRIMINAL LAW] 



by omiftiiig to tunpiy it with proper food, unlesB 
it is shown that ner husband supplied her with 
food to give to the child, and that she wilfully 
neglected to give it. A count charged a married 
woman with the murder of her illegitimate child 
of three years old, by omitting to supply it with 
sufficient food, and also by beating : it was not 
shown that her husband nad supplied her with 
food to give to the child : — Held, that this count 
could not be supported. Rex v. Saunders, 7 C. 
& P. 277— Alderson. 754 



XXX. Forcible Entry. 

A conviction for a forcible detainer under 8 
Hen. 6, c. 9, must show an unlawful entry as 
well as a forcible detainer. Rex v. Oakley, I 
Nev. & M. 68; 4 B. & Adol. 307. 755 

Whether the holding over by a termor afler 
the expiration of his term, is constructively an 
unlawful entry, qusere ? Id. 

An indictment for forcible entry charged that 
defendants into one messuage, &c., then and 
there being in the possession of W. P., he the 
said W. P. then and there being also seised 
thereof, with force of arms, &c., did enter, and 
the said W. P., from the peaceable possession, 
with force and arms, 6lc.^ did put out. After 
conviction of defendants : — Held, that this was a 
sufficient averment of the present seisin of W. 
P. to warrant the court in awarding a writ of res- 
titution. Rex V, Hoare, 6 M. &. S. 266. 755 

In a conviction under 8 Hen. 6, c. 9, for a for- 
cible detaiher, it must appear on the face of the 
conviction that there' was an unlawful entry. 
Rex V, Wilson, 5 Nev. & M. 164 ; I Har. & Woll. 
387. 755 

A conviction under a forcible detainer, on the 
view merely of the justices, without any evidence 
of an unlawful entry, is bad, even though infor- 
mation and complaint of an unlawful expulsion 
be stated. Id. 

In a conviction for a forcible detainer, under 8 
Hen. 6, c. 9, where the magistrates proceed upon 
view, it is not necessary to set out Uie particular 
fecte presented to their view. Rex v. Wilson, 3 
Nev. & M. 753; 1 Adol. & Ellis, 627. 755 

A conviction, under stat. 8 Hen. 6, c. 9, set 
forth a complaint made to two justices, of an en- 
try into premises of the complainant, an unlawful 
S'ectment, and a forcible deteiner by the defen- 
mt; that the justices, on personal view, found* 
the defendant forcibly detaining, according to the 
complaint, and that he was therefore convicted 
bjr them, a forcible detainer, by their own view. 
The defendant gave written notices to the jus- 
tices afler the conviction, denying the force, and 
complainant's possession. On an inquisition after- 
wards had, the jury found a seisin in fee by the 
complainant, and an unlawful entry, ejection, and 
forcible detainer. The justices indorsed upon 
the inquisition a memorandum of having received 
the premises, and put the complainant into posses- 
sion. The conviction, inquisition, and memo- 
randum having been returned by the justices to a 
certiorari, requiring a return of the conviction 
and inquisition, and all things touching the same^ 



this court refused to grant a mandamus to omeml 
the return by reti;irmng the information, and by 
returning on the face of the conviction the evi* 
dence given touching the entiT, and the facts 
touching the conduct of the cieiendant on the 
view, it not being suggested in affidavit, that any 
evidence was received by the magistrates on the 
view. The court gave no opinion as to the va^- 
lidity of the conviction. Id. 



XXXI. SiMPLK Larcsnt. 

The Taking.^ — If a person picks up a thinn^ 
when he knows that he can immediately find the 
owner, and instead of retuminj|r it to the owner, 
converte it to his own use, this is a larceny. Rex 
V. Pope, 6 C. & P. 346— Park. 756 

A. went to a shop, and asked a boy there to 
give him change for a half-crown ; the boy gave 
him two shillings and sixpenny worth of copper. 
The prisoner held out a half crown, which the 
boy touched, but never got hold of, and the pri- 
soner ran away with the two shillings and the 
copper : — Held, a larcenv of the two shillings and 
the copper. Rex v. WilUams, 6 C. & P. 390 — 
Park. 756 

A., the owner of a boat, was employed by B., 
the captain of a ship, to carry a number of 
wooden staves ashore in his boat; B.'s men were 
put into the boat, but were under the control of 
A., who did' not deliver all the staves, but took 
one of them away to the house of his mother : — 
Held, that this was a bailment of the staves to 
A., and not a charge only ; and that a mere non- 
delivery of the staves would not have been a lar- 
ceny in A.; but that if A. separated one of the 
staves from the rest, and carried it to a ]>lace dif- 
ferent from that of its destination, with intent to 
appropriate it to his own use, that was equivalent 
to a breaking of bulk, and therefore would be suf- 
ficient to constitute a larceny. Rex v. Howell, 
7 C. & P. 335— Patteson. 756 

If A. asks B., who is not a servant, to put a let- 
ter in the post, telling him it contains monev,and 
B. breaks the seal and abstracts the money before 
he put the letter in the post, he is guilty of larce- 
ny. Rex V. Jones, 7 C. & P. 151 — Crun. Court 

756 

Indictment.'] — In an indictment for stealing 
property which had belonged to a deceased per- 
son, who appointed executors, who would not 
prove the will, it was held that the property must 
be laid in the ordinary, and not in a person who, 
afler the commfssion of the offence, but before 
the indictment, had taken out letters of adminis- 
tration with the will annexed ; because the rights 
of an administrator only commence from the date 
of the letters as distinguished from the letters of 
an executor, which commence, tiot from the 
granting of the probate, but from the death of the 
testator. Rex v. Smith, 7 C.& P. 147— Bolland 
and Coleridge. 761 

Evidence.'] — Stolen property being found con- 
cealed in an old engine-house, and it being 
watohed, the prisoners were seen Uking it away : 



[CRIMINAL LAW] 



8428 



—Held, that, to wttmnt the conyietion of the 
prisoners on an indictment chargingr them as re- 
ceiven, the jury mnst he satisfied that the pro- 
perty had heen stolen by some other person to 
the Knowledge of the prisoners, and that there 
should be some evidence to show that such was 
the case : — Held, also, that the evidence given in 
this case would have warranted a conviction for 



the stealing. Rex v. Densley, 6 C. A F. 39d— 
Patleson. 762 



XXXIV. Assault with intent to rob. 

A. was decoyed into a house and chained down 
to a seat, and compelled to write an order for the 
payment of money and an order for the delivery 
of deeds. The paper on which he wrote remain- 
ed in his hand half an hour, but he was chained 
all the time : — Held, that this was not an assault 
with intent to rob within the statute 7 6l 8 Geo. 
4, c. 29, s. 6. Bex v. Edwards, 6 C. & P. 521 — 
Patteson. 765 

If a person with menaces demand a sum of 
money of another, and that other does not ^ve 
it to him because he has it not with him, this is 
a felony within the statute 7 d^ 8 Geo. 4, c. 29, 
i. 6 ; but if the person demanding the money 
knows that the money is not then m the posses- 
skm of the party, and only intends to obtain an 
order for the payment of it, it is otherwise. Rex 
9. Edwards, 6 C. <& P. 51S— Patteson. 765 



XXXVi. Sacrilsgb. 

A dissenting meeting-house is not within the 
Stat 7 & 8 Geo. 4, c. &, s. 10, which makes it a 
capital o£fence to '* break and enter any church 
or chapel, and steal therein," &c. Rex v, Richard- 
son, 6 C. & P. 335^Gaselee, Vaughan, and 
Taunton: S P. Rex v. Warren, Id. n. — Gase- 
ke and Vaughan. 767 

A prisoner was indicted under the 7 A^ 8 Geo. 
4, e. 29, s 10, for breaking and entering a chapel, 
and stealing several fixtures, and a bell not fixed. 
It appearecT the chapel was a Wesleyan chapel, 
and not a chapel of the church of England : — 
Held, that the case must be confined to the act 
of simple larceny for stealing the bell. Rex v. 
Nixon, 7C. & P. 442^— Patteson and Gumey. 767 



XXXVII. BURGLARV. 

A shutter-box partly projected from a house, 
and adjoined the side of the shop window, which 
WIS projected by wooden panelling, lined with 
iron : — Held, that the breaking and entering the 
shotler-boz did not constitute t>urglary. Rex v. 
Paine, 7 C. & P. 135— Crim. Court. 767 

A room door was latched, and one person 
lifted the latch and entered the room and con- 
cealed himself, for the purpose of committing a 
robbcary there, which he afterwards accomplish- 
ed. Two other persons were present with him 
at the time he lifted the latch, for the purpose of 
assisting him to enter, and screened him from 
obserration by opening an umbrella: — It was 
held, that the two were in law parties to the 



breaking and entering, and were answerable for 
the robbery which took place aflerwards, though 
they were not near the spot at the time when it 
was perpetrated. Rex v. Jordan, 7 C. & P. 432 
— Crim. Court. 767 

In burglary, where the breaking is one night 
after, a person present at the breaking, though 
not present at the entering, is in law guuty of ue 
whole ofience. Id. 

A prisoner was indicted for burglary in the 
dwellmg-house of J. fi. J. B. worked for one 
W., who did carpenter's work for i^ public com^ 
pany and put J. B. into the house in question, 
which belonged to the company, to take care of 
it, and some mills adjoining. J. B. received no 
more wages after than before he went to live in 
the house : — Held, not rightly laid. Rex v. Raw- 
lings, 7 C. & P. 150— Gaselee. 771 

An indictment for burglary stated in one count 
that the prisoner *•*• did break to get out," and in 
another that he did break and get out : — Held, 
sufficient, since the statute 7 db 8 Geo. 4, c. 29, 
s. 11, which uses the words ''break out." Bex 
V. Compton, 7 C. A^ P. 139 — Vaughan and Patte- 
son. 771 



XXXVIIl. HOUSXBBEAXINO. 

A. broke into a house and took two half so- 
vereigns from a bureau, which he, being dis- 
turbed, threw under the grate in the same room : 
— Held, that this was sufficient to constitute the 
felony of breaking into a house and stealing 
therein within the stat. 7 & 8 Geo. 4, c. 29, s. 12. 
Rex r. Amier, 6 C. dt P. 344— Park. 772 

Raising a window which is shut down close, 
but not fastened, though it has a hasp which 
might have been fastened, is a breaking of the 
dwelling-house. Rex v. Hyams, 7 C. db> P. 441 
— Parke and Coleridge. 772 

An entry to a house through a hole in the roof, 
left for the purpose of ligh^ is not a sufficient 
proof to constitute house-breaking. Rex v. 
Spriggs, 1 M. & Rob. 357— Bosanquet. 772 

XXXl^. LaRCEIIT in ▲ DWXLLINO-HOUSE. 

Stealing in a bed-room over a stable in a yard, 
not under the same roof, nor having any direct 
communication with the house in which tne pro- 
secutor resides, cannot be properly charged as a 
stealing in his dwelling-house. Rex v. Turner, 
6 C. <fc P. 407— Vaughan. 772 

XLI. Larceny on Rivers. 

The luggage of a passenger going by a steam- 
boat, is wifliin the words " goods or merchandize" 
in the 17th section of the stat. 7 & 8 Geo. 4, c. 
29, which relates to property stolen from any 
vessel in any navigable river. Rex v. Wright, 7 
C. & P. 159^Park and Alderson. 773 



XLII. Stealing or destrotino Records,^ 
Wills, or Writings of Real Estates. 

On an indictment on the stat 7 & Q Geo. 4, 



S4S4 



[CRIMINAL LAW] 



e. S9, ■. 23, toir itediiiff writiagB reUting to real 
estate, the jury moat be aatiaiiea that tns defen- 
dant took them under such circumstances as 
would have amounted to larceny, if the writings 
in question had been the subject of larceny. 
Bez V. John, 7 C. •& P. 324— Palteaon. 773 



XLIII. Cattle Stkaliks. 

On an indictment for sheep-stealing, a riff 
sheep is properly described as ^*one sheep. 
Rex V. Stroud, 6 C. «& F. 535— Alderson. 774 

An indictment charged in the first count, that 
A. and B. killed a sheep, with intent to steal one 
of its hind legs ; and, m the second count, that 
C. received nine pounds weight of mutton so 
stolen as aforesaid ; and in the third count, that 
G. received the mutton ** of a certain evil disposed 
person," scienter, dtc. ; — Held, that on this form 
of indictment, all the three prisoners might be 
properly convicted. Rex v, Wheeler, 7 C. & P. 
170— Coleridge. 774 

The phrase ^* bullock-stealing," in the stat. "^ 
Geo. 4, c. 64, s. 28, relating to the allowance of 
rewards in certain cases for the discovery of 
offenders, includes all cases of cattle-stealing of 
that particular description, e. g. ox, cow, heifer, 
Ac. Rex p, GiUbrass, 7 C. & P. 445— Grim. 
Court 774 



XLVI. Nl«HT POACHIHO AVD OfFXHCXS RE- 

LATino TO Gams and Rabbits. 

Jfigkt Poadung.'l'-'To support an indictment 
fix nightppoaching by three or more being armed, 
^b«., it is not sufficient to prove that one of the 
prisonen was in the place laid in the indictment, 
and that the rest of the party were in another 
wood which was separated from the place men- 
tioned in the indictment by a turnpike road. 
Rex V. Dowsell, 6 C. & P. 398— Patteson. 775 

To sustain an indictment for night-poaching, 
armed, Ate., the parties must have been in tSe 
place charged in the indictment, with intent to 
destroy game, &c. there, and it is incumbent on 
the prosecutor to convince the jury that the de- 
ibniuntB had an intent to destroy game, &^. in 
the particular place mentioned in the indictment. 
Rex o. Gainer, 7 C. ^t P. 231— Coleridge. 775 

The 9th sect of the stat. 9 Geo. 4, c. 69, which 
relates to nij^ht-poaching, creates two distinct 
offences. Fmt, the entering in the night on 
land to the number of three, some one of them 
being armed ; and second, the being in the night 
op. land to the number of three, some one of them 
being armed. Rex «. Kendriek, 7 C. d^ P. 184— 
Coleridge. 775 

The form of indictment given in Jerv. Areh. is 
good. Id. 

On an indictment for nightppoaching by four, 
one being armed ; semble, that if two enter the 
land laid in the indictment, and the other two re- 
main outside the preserve, but are of the same 
partv, and are there for the same purpose, all 
ougnt to be found guilty. Rex v. M)dLett, 7 C. 
4tP. 90(^Aldenon. 775 



Senible, that in caw of nightrpoaehing, all 
who are at the place, each actu^ his part with a 
common intent, are equally guilty, although 
some only are bodily upon une land: — HeM, 
that those who are watciiing at the outside of 
a preserve, for the purpose of giving the alarm on 
the approach of tne gamekeeper to othen who 
are in the preserve, and who afterwards go into 
the preserve for that purpose, are equally guilty 
with those who enter the preserve at fint. Rex 
r. Passey, 7 C. & P. 282— Alderson. 775 

Whether the preferring of an indictment against 
a party for night-poaching, which is ignorea, is a 
commencement of the prosecution within sect. 4 
of the stat. 9 Geo. 4, c. 69, so as to warrant the 
conviction of the party on another indictment 
preferred four yean afler the offence, quere? 
Rex V, Killminster, 7 C. dt P. 228-^oleridge. 775 

The servant of the owner of a wood attempted 
to apprehend a poacher whom he found there at 
eight o'clock on the morning of the 17th Decem- 
ber, and the poacher shot at him : — Held, that 
this was not a capital oflence within the stat. 
9 Geo. 4, c. 31, ss. 11, 12, as there was no 
proof that the poacher was in pursuit of the game 
an hour before sunrise. Rex v. Tomlinson, 7 C. 
Si P. 183— Coleridge. 775 

A person who is employed by a lord of a manor 
as a watcher of his game preserves, is a person 
having authority to apprehend night-poachers, 
and he need not have any authonty from the 
lord of the manor. Rex v. Prize, 7 C. & P. 178 
—Park. 775 

Where a person is found night-poaching on 
the manor of A. by one of his watchen, and 
is pursued off the manor, and then on to it again, 
and there snaps his gun at the watcher, he is 
guilty of a capital offence under the stat. 9 Geo. 
4,c.3l,»*ll»13« Id. 



Ofenees rdating to Rahlnt9.'\ — Destroying rab- 
bits in the night time, in a rick yard id which 
they were kept, is not a misdemeanor under the 
sUt. 7 & 8 Geo. 4, o. 29, s. 30. Rex v. Ganratt, 
6 C. & P. 369— Patteson. 776 



L. Larcsnt bt servants. 

The driver of a glass-eoach hired for the dajr 
is not the servant of the party hiring it, so as to 
bring him within the statute rdating to larceny 
bv servants, 7 dk 8 Geo. 4, e. 29, s. ,46. Rex v. 
Haydon, 7 C & P. 445— Patteson and Gumey. 

777 



Li. Ehbxzzlement. 

A., a servant of B., was sent to receive rent 
due to B. ; A. received it, and immediately went 
off with it to Ireland : — ^Held, that A.'s thus leav- 
ing her place and going off to Ireland, was avi- 
dence from which the jury might in&r that A. 
intended to embezzle the money. Rex v. Wil- 
liams, 7 C. dt P. 33&— Coleridge. 777 

A. owed 5^. to B., and A. paid it to C, a ser- 
vant of B., who was not authorized by B. to re- 



[CRIMINAL LAW] 



2425 



eeiv« money for him, thooffh A. supposed that he 
WM 00. C. ne-ver aceountea to B. for the money : 
— Held, that this was neither embezzlement nor 
Urceny. Rex v, Hawtin, 7 C & P. 281— Alder- 

777 



If a servant be indicted under the stat. 7 & 8 
Geo . 4, c. 29, for embezzlement, and the indict- 
ment contain only one count, charging the re- 
ceipt of a gross sum on a particular day, if it 
torn out that the money was received in different 
sams, on different days, the prosecutor must 
make his election, and confine himself to one 
sum and one day ; and if the money was paid to 
the prisoner as the servant of the prosecutor, it 
will be sufficient, although the paymen| was 
made by one of a class of customers of whom 
the |»rosecutor did not authorize the prisoner to 
receive any. Rex r. Williams, 6 C. * P. e3&— 
Aiabin, Seijt 781 



LIII. Falsi Prstincbs. 
The prisoner was charged with obtaining a 
filly by the false pretence that he was a gentle - 
Bsan's servant, and had lived at Brecon, and had 
bought twenty horses in Brecon fair. It appear- 
ed that he bought the filly of the prosecutor for 
lU., making him this statement, which was falfe, 
and also telling him that he would come down to 
the Cross Keys and paj^ him. The prosecutor 
sUted that he parted with his filly because he 
expected the prisoner would come to the Cross 
Keys and pay him, and not because he believed 
that the prisoner was a gentleman's servant, &c. : 
—Held, that if the prosecutor did not part with 
his filly by reason of the false pretence charged. 
Of any part of it, the prisoner must be acquitted. 
Rexv.Dale, 7 C.& P. 352— Coleridge. 782 

If a party obtain money by a false pretence, 
knowing it to be false at the time, it is no answer 
to show that the party from whom he obtained 
the money laid a plan to entrap him into the 
csmmiasion of the ofibnce. Rex v. Ady, 7 C. & 
P. 140 — Vanghan and Patteson. 782 

Where a forged request for the delivery of 
gsods was addressed in her maiden name to a 
ftmaie, who, prior to the date of it had married ; 
it was held that the party nttering it might pro- 
perty be convicted, on an indictment charging 
the mtent to be to defraud the husband. Rex v. 
Carter, 7 C. & P. ]»4— Crim. Court. 782 

Ab attorney who had appeared for a person 
who was fined 22. on a summary conviction, call- 
ed on a person's wife and told her that he had 
been with another person, who was fined 21, for a 
like oti&noe, to Mr. B. and Mr. L., and that he 
had prevailed upon Mr. B. and Mr. L. to take XL 
lastead of 22., and that if she would give him U. 
he would go and do the same for her. She gave 
the attamej a sovereign, and afterwards paid him 
ftrhis trouble. It was proved that the attorney 
never u>plied to either Mr. B. or Mr. L. respect- 
ing either of the fines, and that botii were after- 
wards paid in full : — Held, that the attorney was 
fBiity of obtaining money by false pretences. 
Bex p. Afterley, 7 C. & P. 191— Park. 782 

A. owed B. a debt, of which B. could not get 



payment. C, a servant of B., went to A.'s wife 
and obtained two sacks of malt from her, saying* 
that B. had boueht them of A. C. knew this to 
be false, but took the malt to B., his master, to 
enable him to pay himself the debt:— Held, that 
if C. did not intend to defraud A., but merely 
to put it into his master's power to compel A. to 
pay him a just debt, C. ought not to be convict" 
ed of obtaining the malt by false pretences. Rex 
V, Williams, 7 C. & P. 354— Coleridge. 782 

An indictment on a charge of obtaining goods 
under false pretences, is bad, if it states that the 
prisoner " unlawfully, knowingly, and designed- 
ly, did feloniously pretend," Ac. Rex v. Walker, 
b C. & P. 657— Crmi. Court. 784 

LVI. Receivers. 
If a receiver of stolen goods receive them for 
the mere purpose of concealment, without de- 
riving any profit at all, he is just as much a n* 
ceiver, under the sUt. 7 & 8 Geo. 4, c. 29, as if 
he had purchased tliem. Rex v, Richardson, 6 C. 
ik P. 335— Gaselee, Vaughan, and Taunton. 785 

It makes no difference whether, a receiver re- 
ceives for the puipose of profit or advantage, or 
whether he does it to assist the thief. Rex v, 
Davis, 6 C. & P. 177— Gumey. 795 

In an indictment for receiving stolen goods, 
knowing them to have been stolen by a person 
named, the stealing by the person must be proved, 
or the receiver must be acquitted. Rex v. Wool- 
ford, 1 M. & Rob. 384— Patteson. 785 

LVII. OFFE5CE8 BY BANKRUPTS. 

, An indictment for a conspiracy to embezzle 
the goods of a bankrupt must state the tradings 
the petitioning creditor's debt, and the becoming- 
bankrupt ; and it is not sufficient to state that a. 
commission issued, under which the party was 
duly found and declared a bankrupt. Rex r. 
Jones, 1 Nev. & M. 78 ; 4 B. db Adol. 345. 786 

The balance sheet of a bankrupt given on oath 
under his commission is not admissible against 
him on a criminal charge. Rex v. Britton, 1 M, 
& Rob. 297— Patteson. 785 

LIX. Burking. 

Setting fire to a score of faggots which arepile<| 
one upon another in a lofl, which was made by 
means of a temporary floor put over an archway 
roofed in between two houses, and under whico 
carts could go, is not setting fire to a stack of 
wood within the stat. 7 & 8 Geo. 4, c. 30, s. 17. 
Rex V. Aris, 6 C. & P. 348— Park. 787 

A cart hovel, consisting of a stubble roof sup- 
ported b^ uprights, in a field at a distance from 
other buildm^, is not an out-house within the 
meaning of the stat. 7 & 8 Geo. 4, c. 30, s. 2. 
Rex u. Parrott, 6 C. & P. 402— Vaughan. 787 

A stack, of which the lower parts consists of 
cole-seed straw, and the upper part of wheat 
stubble, is not a stack of straw: and the setting 
it on fire is not therefore a capital' offence within 
the stat. 7 A 8 Geo. 4, c. 29, s. 17. Rex v, Tot- 
tenham, 7 C. dE. P. 237— I>enman and Gaselee. 787 



84S6 



[CRIMINAL LAW] 



LXII. Injvbies to Propsrtt bt Rioters. 

£very man has a right to work for the best 
price he can get, but if others choose to work for 
less than the usual prices, the law will not per- 
mit that violence should be committed towards 
them, or towards those by whom they are em- 
ployed, or those with whom they are connected. 
Where a party of coal-whippers, having a feeling 
of ill-will towards a coal-lumper, who paid less 
than the usual wages, created a mob, aiid riot- 
ously went to the house where he kept his pay- 
table, and cried oat that they would murder him, 
and .began to throw stones, brick-bats, &c., and 
broke windows, and partitions, and part of a wall, 
and continued after his eacB;pe throwing stones 
at the house, till they were compelled to desist by 
the threats of the police : — Held, that they might 
be convicted of beginning to demolish under the 
Btat. 7 &S Geo. 4, c. 30, s. 8, thoiigh their prin- 
cipal object was to injure the lumper ; provided it 
was also their object to demolish the house, either 
on account of its being used by him, or by his 
men, and though they had not any ill-will against 
the owner of the house personally. Rex v. Batt, 
6 C. & P. 329^6umey. 790 



LXVIl. Forgery. 

It is not any o&nce, under the stat. 1 Will. 4, 
c. 66, to forge an indorsement upon a warrant or 
order for the payment of money ; nor if a party 
write on the back of a bill of exchange payable 
to R. A., ^* Received for R. A.," and signs his 
own name to it, is he guilty of forging a receipt 
within the provisions of tnat statute. Rez v. 
Arscott, 6 C. & P. 408— Littledale, Vaughan, 
«nd Bolland. 794 

If a person presents a bill of exchange for pay- 
ment, with a forged indorsement upon it of a re- 
ceipt by the payee, and the clerk to whom he 
presents it objects to a variance between the spell- 
ing of the payee's name in the bill and the in- 
dorsement, upon which the person alters the in- 
dorsement into a receipt by himself for the 
payee : semble, that the act of presenting the bill 
to the clerk previous to his objection is sufficient 
to constitute the offence of uttering the forged 
indorsement, id. 

If A. put the name of B. on a bill of exchange 
BS acceptor, without B.'s authority, expecting to 
be able to meet it when due, or expecting that B. 
will overlook it; this is forgery. But if A. either 
had authority from B., or, tVom the course of their 
dealings, bona fide considered that he had such 
authority it is not forgery. Rex v. Forbes, 7 C. 
& P. 224— Coleridge. . 794 

In a case of forging and uttering a 'forged bill, 
a letter written by the prisoner to a third person, 
saying that such person's name is on another bill, 
and desiring him not to say that that bill is a 
forgery, is receivable in evidence to show ^ilty 
knowledge ; but the jury ought not to consider it 
as evidence that the other oill is forged, unless 
such bill is produced, and the forgery oT it proved 
in the usual way. Id. 

Held, that a leceipt, signed by the captain of 



a detachment, on the authority of which money 
is received from an army agent, on account of 
the monthly subsistence for such detachment, 
may be properly described as "a receipt for 
money," under the stat. 2 <& 3 Will. 4, c. 123, 
s. 10, relating to forgery, although it appeared 
that such instrumente were frequently cashed, 
upon indorsement, by tradesmen in the neigh- 
borhood of the place where the regiment was 
stationed, and the amount afterwards received by 
them of the army agent Rez v. Rice, 6 C. & r. 
634--Crim. Court. 794 

If an engraving of a forged note be given to a 
party as a pattern or specimen of skill, the party 
giving it not intending that the particular note 
should be put in circulation, it is not an utter- 
ing within the statute. Rex v. Harris, 7 C. & P. 
428— LitUedale. 797 

Where three persons were jointly indicted 
for feloniously using plates, containing im- 
pressions of forged notes ; it was held that the jury 
must select some one particular time after all 
three had become connected, and must be satis- 
fied, in order to convict them, that at such time 
tiiey were all either present together at one act 
of using, or assisted in such one act, as by two 
using, and one watehing at the door to prevent 
the others being disturbed, or the like ; and that 
it was not sufficient to show that the parties were 
general dealers in forged notes, and that at dif- 
ferent times they had singly used the plates, and 
were individually in possession of forged notes 
taken from them. Rex o.' Harris, 7 C. & P. 416 
— Crim. Court. 796 

In an indictment for forgery, a count which, 
since tlie stat. 1 WiU. 4, c. 66, charges, that the 
prisoner " did falsely make, forge, and counter- 
feit, and did cause and procure to be falsely 
made, forged, and countor&ited, and did willing- 
ly act and assist in the false making, forging, and 
counterfeiting** a bill of exchange, is good, as are 
counto charging that he *' did utter and publish 
as true," and did ^* after dispose of and put away" 
the biU. Rex r. Brewer, 6 C. <& P. 968— Park. 

799 

Sewing to the parchment on which the indict- 
ment is written impressions of forged notes taken 
from engraved plates, is not a legal mode of set- 
ting out the notes in the indictment. Foreign 
notes were set out in an indictment in the origi- 
nal language, but the translation omitted some 
words which were in a margin or border round 
the body of the note, and denoted the year in 
which the notes were issued, and it speared 
that without these words the notes would not be 
capable of being ciroulated in the country to 
which they belonged : — Held, that the transla- 
tion was imperfect, and the special counto setting 
out the notes consequently bad. Describing a 
foreign note wholly in the English language is 
not sufficient in an indictment for forgery, not- 
withstanding the stat. 2 <& 3 Will. 4, c. 123, s. 3 ; 
but this objection, provided the description is in 
the words of the statute creating the offence, can 
only be taken advantage of by demurrer, and is 
cured after verdict by the stat. 7 Geo. 4, c. 64, 
s. 21. On indictmente for uttering forged Polish 



[CRIMINAL LAW] 



2427 



notes, it was held that conversations with the 
prisoners respecting th* forgery and circulation 
of Ibrged Austrian notes were admissible in evi- 
dence to prove the scienter. Rex v. Harris, 7 C. 
& P. 42S*— Williams. 799 

On an indictment for uttering a forged check 
in the name of J. W., on Messrs. C. G. & Co., 
who were armv agents and bankers, it was proved 
by a clerk in the former department that ne did 
not know any customer named J. W., and that he 
had been told by the other clerks that there was 
not any such customer in the banking depart- 
ment: — Held, that this was sufficient proof on 
the part of the prosecution to call upon the pri- 
soner to show tnat there was in fact such a person 
as J. W. having an account with Messrs. C. G. 
A Co., and, in the absence of such proof, was 
sufficient by itself for the consideration of the 
jury. Rex v. firannan, 6 C. db P. 326 — Park, 
Patteson, and Gurney. 801 

The supposed indorsor of a forged bill is in- 
competent to prove the forgery of the indorse- 
ment, and when such bill is indorsed by the 
prisoner, and delivered by him to the prosecutor, 
no consideration having passed from the latter to 
the former, a release by the prosecutor is ineffec- 
tual to make such indorsor competent, for the 
property of the bill still remained in the prisoner. 
Rex 9. Young, Peake's Add. Cas. 228— Le Blanc. 
^ * 801 

A.vwas charged with a forgery, and B. was ex- 
amined on oath before the magistrate as a witness 
a^inst A.; after this B. was himself charged 
with a different forgery : — Held, that the deposi- 
tion of B. was evidence against him on his trial 
for the forgery, nothwithstanding that it was taken 
on oath. Rex v. Haworth, 4 C- & P. 254— 
Parke. 801 

If a forged deed be in the possession of a pri- 
soner, who is indicted for forging it, the prosecu- 
tor is not entitled to give secondary evidence of 
its contents, unless he nas, a reasonable time be- 
fore the commencement of the assizes, g^iven the 
prisoner notice to produce it ; and a notice given 
daring the assizes is too late ; but if the prisoner 
has said that he has destroyed the deed, no no- 
tice to produce it will be necessary. Id. 



LXVIIl. Perjury. 

To prove perjury, it is sufficient if the matter 
alleged to be faJsely sworn be disproved b^ one 
witness, if, in addition to the evidence of that 
witness, there be proof of an account, or a letter 
written by the defendant contraditting his state- 
ment on oath. Rex v. May hew, 6 C. oc P. 315— 
Denman. 808 

On an indictment for perjury committed on the 
hearing of a parish appeal at the quarter sessions, 
the production of the sessions book is not suffi- 
cient proof that the appeal came on to be heard, 
and a regular record ought to be made up on 
parchment, the same as on a return to a certio- 
rari, and &at record, or an examined copy, must 
be produced. Rex v. Ward, 6 C. <& P. 366— 
Park. See the case of Porter v. Cooper, post, 
p. 2333. 808 

YoL. IV. 20 



On the trial of an indictment for perjury, where 
the perjury was alleged to have been committed 
before a magistrate, the written deposition of the 
defendant tuien down by the magistrate, was put 
in to prove what he tfaien swore. Afler this it 
was proposed to call the attorney for the prosecu- 
tion to prove some other matters which the de- 
fendant then swore, which were not mentioned 
in the deposition : — Held, that this could not be 
done. Rex v. WyJde, 6 C. & P. 380— Park. 808 

Perjury cannot be assigned on an answer in 
Chancery, denying a promise absolutely void by 
the statute of frauds. Rex v, Benesech, Peaked 
Add. Cas. 93— Kenyon. . 808 

If in an indictment for perjury a^inst C. D. 
it is averred that a cause was dependmg between 
A. B. and C. D. a notice of setroff intituled in 
a cause ^. B. v. C. />., and signed by the attor- 
ney of C. O., is not sufficient evidence to support 
the allegation. Rex v. Stoveld, 6 C. & P. 489— 
Denman. 808 

On an indictment for perjury, committed by 

A. on the trial of an action against B. and others, 

B. is' not rendered incompetent as a witness for 
the prosecution merely on the ground that he 
has not paid the debt and costs, and has filed a 
bill in equity ; but it seems that if B. expects 
that A. will be a witness against him in a simi- 
lar action coming on for trial soon after the in- 
dictment, that is such an immediate interest in 
B. as will disqualify him from being a witness. 
Rex v. Hulme, 7 C. & P. 8— Denman. 808 

In an indictment for perjury, a suit in the Ec- 
clesiastical court was stated to have been depend- 
ing between W. P. and R. M. The proceedings 
of the suit, when produced, were between W. P. 
and R. M. the elder : — Held, no variance. Rex 
V. Bailey, 7 C. & P. 264— Williams. 805 



LXIX. COKSPIRACT. 

Indictment against B. and C. for conspiring to 
extort money from the prosecutor A., by means 
of a charge of forgery, in which indictment a let- 
ter written by B. in execution of the conspiracy, 
and charging A. with the forgery of a check on 
C.'s banker, is set out. The letter was given in 
evidence, as were also conversations referring to 
the check alleged to have been forged :— Held, 
that the prosecutor was not bound to produce the 
check, though it appeared that such check was 
actually in existence. Rex v. Aldridge, 1 Nev. 
& M. 776. WO 

A conspiracy to procure a marriage between 
poor persons or different parishes, for the purpose 
of exonerating the parish of the woman and 
charging the other parish, is not an indictable 
offence, unless the parties were unwilling to 
marry, or some forcible or fraudulent means of ' 
bringing about the marriage were resorted to. A 
conspiracy to exonerate from the prospective bur- 
then of maintaining a pauper, not at the time 
actually chargeable, and to throw the burthen 
upon another parish, by means not in themselves 
unlawful, is not indictable. In such an indict- 
ment, a statement that the woman was a poor 
unmarried woman with child, is not equivalent 



3428 



[CRIMINAL LAW] 



to a itateinent of actual ehargeabiUty. Rex «. 
Seward, 3 Nev. dt M. 557 ; I Adol. Sl Ellis, 706. 

610 

An indictment for a conspiracy to cheat and 
defraud a party of the fruits and advanta^ of a 
verdict obtained, is too general, and bad in point 
of law. Rex v. Richardson, 1 M. dt Rob. 40S^ 
Denman. 811 



LXX. LlIBKL. 

Leaye to file a criminal information for a libel 
should be applied for in a reasonable time, before 
the expiration of the second term after the publi- 
cation of it, if it come to the knowledge of the 
prosecutor early enough to enable him to moye 
within that period. Rex v. Jollie, 1 Nev. 6l M. 
483 ; 4 fi. & Adol. 8G7. 813 

The court of K. B. will discharge a rule for a 
criminal information for a libel against the pub- 
lisher of a newspaper, where in the affidavits 
Xn which the rule had been obtained, and the 
lavits sworn at the stamp-office, the defendant 
was described as of different places. Rex v. 
Francis, 4 Nev. & M. 251 ; 2 Adol. & Ellis, 49. 

813 

So, although the rule had been twice enlarg- 
ed, and tlie suitor apply to have the rule agam 
enlarged, that he may have an opportunity of 
amending his affidafvit. Id. 

Where a newspaper is filed, together with 
affidavits in support of a motion for a criminal 
information for a libel, the court will take notice 
of it, if it correspond in the necessary particulars 
with the stamp-office affidavit, though it be not 
annexed to and expressly identifiecT by any affi- 
davit. Id. 

Where an information for libel states that cer- 
tain transactions took place, and that the libel 
was published of and concerning them, and then 
sets out the libel as referring to them, and the 
prosecutor, at the trial, gives general proof of 
■ach transaotions, to support the introductory 
part of his pleading, the acfendant is not thereby 
authorised to give evidence of the particular his- 
tory of those transactions, so as to bring into is- 
sue the truth or fidsehood of the libel. Rex v. 
Grant, 3 Nev. & M. 106; 5 B. A. Adol. 1061. 

815 

But if such evidence be adduced bona fide, to 
show that the transactions referred to in the al- 
leged libel, are not the same with those which the 
information supposes it to have had in view, and 
the judge is informed that the evidence is ofiered 
for that purpose, it is admissible. Id. 

The rule established at Nisi Prius in prosecu- 
tions for libels in a newspaper, vis. that, nSiet pro- 
duction of the stamp-ofnce affidavit, a paper 
corresponding with it in title, printer's and pub- 
lisher's name, and place of publication, may be 
put in and read, as published by the parties 
therein named, without other proof on this point, 
applies equally on motions for criminal informa- 
tions. Rex V. Donnison, 4 B. & Adol. 698. 815 

A libel stated that there was a riot at C, and 
that a person fired a pistol at an asKmblage of 



persons, and upon this the libel impotBd neg leei 
of duty to the mag[i8tratet : — Held, that on the 
trial of a criminal information for this libel on 
the magistrates, the defendant's counsel, with a 
view ofshowing that the libel did not exceed the 
bounds of free discussion, could ^ not go into 
evidence to prove that there f^as in &ct a riot 
and that a pistol was fired at the people. Rex v. 
Brigstock, 6 C. and P. 184— Patteson. 815 

In an information for a libel the juir are t(» 
consider whether the defendant published it with 
a crimind intent or not Rex v. Reeves, Peake's 
Add. Cas. 83— Kenyon. 313 



LXXl. Uin.AwrvL Oaths. 

[37 Gm, 3, c. 123; 39 Geo. 3, e. 79; 52 Gm. 3, 

e, 104.] 

The provisions of the stat 37 Geo. 3, c. 123, 
which makes it a felony to administer an unlawfol 
oath, are not confined to oaths administered with 
either a mutinous or a seditious object. "Rex v. 
Brodribb, 6 C. dt P. 571—Holroyd. 317 

A party of sixteen persons were going out 
armed for the purpose of night-poaehmg. Be- 
fore they went out the prisoner swore them all 
to secrecy : — Held, a felony within that statute. 
Id. 

Where sixteen persons took the same unlaw- 
ful oaths, two or tiiree at a time, all being pre- 
sent : — Held, that the person who administered 
the oath might be convicted on an indictment for 
administering a certain oath to A., B., C, D. 
&c. (naming the whole sixteen persons). Id. 

If the indictment state the oaths to have been, 
not to inform or give evidence against any per- 
son belonging to a confederacy of persons asso* 
ciated together ^* to do a certain illegal act," this 
is sufficient, without stating what ue illegal act 
was. Id. 

If the oath administered was intended to 
make the parties to whom it was administered 
believe themselves under an engagement, it is 
equally within the statute whether the book on 
which they were sworn was a Testament or not. 
Id. ^ 

Where an oath was administered, that the 
party taking it should not make buttons under 
certain stated prices, and should keep all the se- 
crets of the lodge : — Held, to be an administer- 
ing of an unlawful oath within the statutes. Rex 
9. Ball, 6 C. df, P. 563— Williams. 817 

The administering an oath or any agreement 
to any person not to reveal the secrets <m any as- 
sociation, is an ofience within those statutes. Id. 

An association, the members of which are 
bound by oath not to disclose its secrets, is an 
unlawful combination and confederacy, (unless 
expressly declared by some act of Parliament to 
be legal), for whatever purpose or object it may 
be formed ; and the administering of an oath not 
to reveal anything done in such association is an 
oifence within 37 Geo. 3, o. UO, s. 1. Rex e. 
Lovelass, 1 M. dtRob.349; 6C. &> P.59&-Wil- 
liams. 817 



[CRIMINAL LAW] 



2439 



The enadinp ptrt of the 37 Geo. 3, is not re- 
■brained bj the preftmUe to oaths administered 
for jmrposesof sedition or mutinj. Id. 

The precise form in which the oath is admi- 
nistered is not material ; it is an oath within the 
meaning of the act, if it was understood by the 
party tendering, and the party taking it, as having 
the roree and obligation of an oath. Id. 

£Tery person who engages in an association, the 
members of which, in consequence of being so, 
take an oath not required by law, is guilty of an 
oflSsnce within the stat. 57 Geo. 3, c. 19, s. 25. 
Rex 9. Dixon, 6 C. &. P. 601— Bosanqoet. 817 

LXJXVIII. NuisAircx. 

Where a statute enacts, that the erection of a 
building within certain limits shall be deemed 
** a common nuisance," and also gives a sum- 
mary remedy by proceedings before magistrates, 
the (^fender may be indicted for the nuisance. 
Bex V. Gregory, 2 Nev. & M. 478. 822 

In an indictment against a gas company for a 
naisanoe in conveying the refuse of gas into a 
gieal public river, whereby the fish are destroyed 
and the water is rendered unfit for drinking, &c., 
the question for the jury is, whether the acts done 
by the particular company complained of amount 
to a nuisance. Rex v. Medley, 6 C. & F. 292— 
Denman. 822 

The circomstanoe, that, by the diminution of 
fish, a eontideiaUe number of fishermen are 
thrown oat of employ, is not of itself sufficient 
ground to sustain an mdictment Id. 

The directon of a gas company are answerable 
on an indictment for a nuisance for an act done 
bj their superintendent and engineer, under a 
general authority to manage the works, though 
tbey ate personally ignorant of the particuhtf 
plan adopted, and though such plan be a depar- 
ture firom the original and understood method 
which the directors had no reason to suppose dis- 
eontinued. Id. 

If m party, having a house in a street, exhibit 
effigies at his windows, and thereby attract a 
erowd to look at them, which causes the footway 
to be obstructed, so that the public cannot 
pass as they ought to do ; this is an indictable 
nuisance, and it is not at all essential that the 
effigies should be libeUous ; and, semble, that it is 
not necessary to show that the crowd consisted 
of idle, disorderly, and dissolute persons. Rex 
V. Carifle^ 6 C. & P. 637— Crim. Cfourt. 822 



IjXXXIX. HienwAYS ahd fiRinosi. 

Where a statute prolubits the erection of build- 
inge within ten feet of a certain road, and directs 
that the footpaths shall be deemed part of the 
road, a building erected within ten feet of the 
ibotoath is within the prohibition. Rex v. Gre-* 
gofy,2Ney. d^M.478; 5B. ^kAdol.555. 824 

A road dedicated to and used by the public be- 
eomes a highway which the perish must repair, 
aJthoogh wither rach dedication nor such user 



have been adopted or acquiesced in by the parish. 
Rex V. Leake, 2 Nev. & M. 583. 824 

Where drainage commissioners are directed by 
act of Parliament to purchase lands, cut drains, 
and cleanse them when cut, by placing the mud 
upon the banks, it is competent to such commis- 
sioners to dedicate such banks to the public as a 
highway — Per Denman, C. J., and Parke, J. ; 
diss. Littledale, J. Id. 

Whether one act of repairing on the part of the 
parish can be construed as an adoption of a high- 
way, quesre ? Id. 

After a verdict for the defendant upon an in- 
dictment for the non- repair of a highway, the 
court refused an application for a new trial, on 
the ground of the improper rejection of evidence, 
but suspended the judgment in order that another 
indictment might be preferred. Rex v. Sutton, 2 
Nev. & M. 57 ; 5 fi. &. Adol. 52. 824 

A parish may be indicted for non-repair of a 
bridge, without stating any other ground of lia- 
bility than immemorial usage. Rex v. Hendon , 3 
B. & Adol. 628. 8^ 

A country bridge haying been washed away, 
was, after the passing of the 43 Geo. 3, c. 59, 
built wider than before, and without notice to the 
county surveyor, by the parish, partly with the 
old materials and in the same line of passage over 
the river : — Held, that the county was liable to 
repair, and that this was not a new bridge within 
the meaning of the act Rex v. Devonshire, 2 
Nev. & M. 212. 824 

A public footway, leading from A. to the gate 
of a church-yard, and communicating through 
that gate by a public path, through me church- 
yard with the church, may be described in an in- 
dictment as a footway leading from A. towards 
and unto the church. Rex v. Downshire (Mar- 
chioness), 5 Nev. & M. 662. 824 

So, although part of the path across the church- 
yard is ancient, and part has been recently de- 
dioated to the public. Id. 

So, although the path, instead of leading di- 
rectly from Uie gate to the church, forms an 
acute angle in one part of it. Id. 

If a parish be indicted for the non-repair of a 
pack and prime way, and it be proved that^the 
way is a carriage way, this is a misdescription of 
the way, and the defendante are entitled to be 
acquitted. Rex v. St. Weonards,6 C. &. P. 582 — 
Alderson. 824 

In an indictment for non-repair of a highway, 
it is not necessary to state the termini ; but if they 
are stated, they must be proved. Id. 

On an indictment against a |>ari8h for non- 
repair of a highway, a plea of guilty to a former 
indictment against the same parish for non-repair 
of the same highway is conclusive evidence that 
it is a public way. Rex v. Whitney, 7 C. & P. 
208— Park. 824 

Evidence that a narish did not put guard fences 
at the side of a road, is not receivable on an indict- 
ment, which charges that the king's subjecte could 
not pass aa '*thev were wont to do" if no such 
fences existed betore. Id. 



2430 



[CRIMINAL iJiW] 



An indictmeiit charged that the inhabitants of 
the township of Bondgate in Auckland, Newgate 
in Auckland, and the borough of Auckland, in 
the parish of St. Andrew Auckland, were imme- 
morially liable to repair a highway in the town 
of Bishop Auckland, in the parish of St. Andrew 
Auckland, and no consideration was laid : — Held 
bad, in arrest of judgment, as not showing that 
the highway was in the defendant's district . — 
Held, to be no objection that the inhabitants of 
the three townships were charged conjointly. Rex 
V. Bishop Auckland, 1 Adol. &, Ellis, 744 : 1 M. 
A Rob. 286. 824 



XCII. Attempt to commit Misdemvahor. 

An attempt to commit a misdemeanor cxeated 
by statute is itself a misdemeanor. Rez v. But- 
ler, 6 C. dt P. 368— Patteson. 829 



XCin. Offekces at Sea. 

A Spaniard, being in Enj|rland, signed articles 
to serve in a ship '•^ bound on a voyage to the 
Indian seas and elsewhere, on a seeking and 
trading voyage (not ezceedinf three years' dura- 
tion), and back to the united kingdom." On the 
ship's arrival at Zanzibar, an island in the Indian 
seas, which was under the dominion of an Arab 
king, the captain left the vessel (in pursuance 
of an understanding in England), ana set up in 
trade, and, without the consent of the rest of 
the crew, engaged the' Spaniard as an interpreter, 
the new captain of the ship not requiring nim to 
serve on board. The ship went two or three short 
voysxres without him, and returned to anchor a 
few hundred yards from the shore, in a roadstead 
of seven fathoms water, between Zanzibar and 
several other islands. The crew being on 
shore, a quarrel arose between the Spaniard 
and one of them, whi^h led to blows by the 
Spaniard, which killed the other. The death 
took place on board of ship. The Spaniard was 
brouffht to England, and indicted and tried in 
London under a special commission issued in 
pursuance of the 9 Geo. 4, c. 31, s. 7 : — Held, 
that, under the circumstances, he could not be 
convicted — first as he was not a ** subject of his 
Majesty" within the meaning of that section ; and 
secondly, that as the death was on shipboard, 
thouffh the blows were given on shore, the offence 
could not be said to have been committed accord- 
ing to the words of the statute, " on land out of 
the united kingdom." Whether, if the Spaniard 
had continued on board the ship, and had been at 
the time serving under the articles, he could have 
been tried as a British subject, qusre ? semble, 
that he could not. Rez v. Mattos, 7 C. & P. 458 
— Vaughan and Bosanquet. 829 



XCV. Examikatioh. 

The binding over to prosecute, which is neces- 
sary to give the grand jury of the Central Crimi- 
nal Court jurisdiction in certain cases of rots- 
demeanor, under the 13th sect, of the act 4 & 5 
Will. 4, c. 36, must take place before a magistrate, 
&c., previous to the sessions of that court, and 



cannnot be done by the court itself. Rez v. Carl- 
ton, 6 C. dD P. 651— Crim. Court. 831 



XCVIIl. Bail. 

In order to entitle a defendant on a charge of 
felony to be bailed before a magistrate in the 
country, it is not necessary to produce an affi- 
davit of poverty, if it appears from the other af- 
fidavits in the case that ne is in an humble situ- 
ation of life. Rez v. Brooker, 2 Dowl. P.C. 446. 

832 

Where bills for misdemeanors are found un- 
der tlie commission of oyer and terminer at the 
Central Criminal Court, the defendant must giv« 
48 hours' notice of bail, unless the application 
for process is made on a Friday, in any case in 
which there is reason to think that there is a de- 
sire to keep the party in custody over Sunday. 
Rex V, Carlile, 6 C. & P. 628— Criminal Court. 

832 

The judg^es at the Central Court, afler post- 
ponement till the next session, on motion for the 
prosecution, of the presentation of a bill for a 
capital offence, refused, on motion for the prison- 
er, to read over very long depositions, to enable 
them to decide whether Uiey would admit him to 
bail ; although the application was made on the 
ground that there was not sufficient time to pre- 
pare the proper affidavits before the breaking up 
of the court. Rez v. Palmer, 6 C. db P. 654 — 
Criminal Court. 832 

By 5 Sl6 Will. 4, c. 33, s. 3, the provisions of 
7 Geo. 4, c. 64, as to taking bail in easts of fdony^ 
are extended ; and any two justices^ of tokom one or 
other shall hope signed the loarrant m commitment^ 
may admit to bail any person ekargedwitkfelonu, in 
such sum, and toith sueh sureties, as they shall uink 
Jit, nowithstanding such person shall have eonfessedy 
or such justices shall not think the charge ground- 
less, or shall think that the circumstances are such 
as to raise a presumption of guilt, 832 



CI. Coroner's Inquests. 

lSeeanU,p.e33.] 

The court will ex officio quash a coroner's in- 
quisition in which the facts of the case are stated, 
and the verdict found is not warranted by such 
facU. In re Cully, 2 Ne v. A. M. 61 ; 5 B. dk Adol. 
230. 833 

If a coroner's inquisition states it to have been 
taken on the affirmation of a man, it should state 
that man to be eitlier a Quaker or a Moravian. 
Rez V, Polfield, 2 Dowl. P. C. 469. 833 

The court will not grant a rule nisi to remove 
the depositions taken before a coroner, and to 
bail a partv charged upon the coroner's inqaest 
with manslRUffhter, without an affidavit of what^ 
took place before the coroner. Rez v. Mills, 4 
Nev. ^M.e. 833 



CIV. Indictment. 

Change of Fatus.l — ^Jn felony, the court refused 
to allow the defendant to enter a suggestion for 



[CRIMINAL LAW] 



2431 



cfaftnging the venae, on the ground of prejudice 
penrMling the county. Rex v, Penpraze, 1 Nev. 
dt M. 312 \ AB,&. Adol. 573. 835 

The court of K. B. has a discretionary power 
of ordering a suggestion to be entered on the re- 
cord of an indictment for felony, removed thither 
by certiorari, for the purpose of awarding the 
jury process into a foreign county ; but this 
power will not be exercised unless it be absolutely 
m^cessary for the purpose of securing an impar- 
tial trial Rex v. Holden, 2 Nev. <& M. 167 ; 5 
B. & Adol. 347. 835 

Where a defendant is in custody in the county 
of A., upon an attachment issumg out of the 
court of Exchequer, he may be removed to the 
county of B., to take his trial upon an indictment 
found in the latter county. Re Wetton, 1 C. ^ 
J. 459. 835 

Qusre, whether an application to change the 
venue in an indictment for libel can be entertain- 
ed afler a special jury are struck ? Rex v. Tar- 
peley, 1 Har. & Wolf. 58. 835 



Aohm of the Party injured.] — A. was indicted 
for stealing the property of Richard P. It ap- 
peared that the prosecutor's n&me was Richard 
Jeremiah P., but that he was generally known 
bv the name of Richard P. : — Held sufficient. 

Rex V. J 6 C. dt P. 408 — Denman and Vaug- 

han. ^ 838 

In an indictment, the prosecutor (a boy) was 
described as " Edward Dobson." He ffave his 
name to the constable as ** Peach," and nis mas- 
ter and moet other persons so called him, and he 
was generally known by the name of ** Peach." 
He stated that his right name was Dobson, and 
that his mother, who nad married two husbands. 
Peach and Dobson, had always told him that he 
was the son of the latter, ana had always called 
him Edward Dobson : — Held, that he was rightly 
deKribed. Rex v. WiUiams, 7 C. & P. £)8— 
WUiiams. 838 

An indictment charged the murder of *< Eliza 
Waters." It appeared that the deceased was the 
illegitimate child of the prisoner, whose name 
was Ellen Waters; and a witness said on the 
trial— *< The child was called Eliza : i took it to 
be baptized, and said it was Eleanor Waters' 
child:" — Semble, that it was not sufficient proof 
that the surname of the deceased was Waters. 
Rex 17. Waters, 7 C. & P. 250— Denman. 838 



Contra formam Staiuti^ — A counj. which charges 
B. with shooting at A., with intent to murder 
him, and then charges C. and D. with aiding and 
abetting B., and at the end of the count con- 
cludes with a contra formam statuti, is good ; and 
it need not state that B. shot A. with intent, &c., 
contra formam statuti, and that C. and D. aided 
him, also contra formam statuti. Rex v, Nelmes, 
6 C. & P. 347— Park. 838 

Other TTungs.l — A person who has pleaded to 
an indictment which was invalid, on account of 
iti having been found upon the testimony of 



witnesses not duly sworn to give evidence, nuiy 
be required to plead to another indictment for 
the same offence, without the first indictment 
being quashed by the court. Rex v. Chamber- 
lain, 6 C. & P. 97— LitUedale. 834 

An indictment for manslaughter charged, that 
A. gave to deceased divers mortal blows at P., 
in the county of M., and that the deceased lan- 
guished and died at D., in the county of K.; 
and that the prisoner was then and there aiding 
in the commission of the felony : — Held, that the 
indictment was good, and that the word ^* there" 
referred to P., in the county of M. Rex p. Har- 
grave, 5 C. A P. 170— Patteson. 836 

When there are counts in an indictment for 
forging a bill, acceptance, and indorsement, the 
prosecutor is not driven to elect on which he will 
proceed. Rex v. Young, Peake's Add. Cas. 228 
— Le Blanc. 839 

A prosecutor cannot maintain two indictments 
for misdemeanor for the same transaction ; he 
must elect to proceed with one and abandon the 
other. Rex v. Britton, 1 M. & R. 297— Patte- 
son. 839 

The word ** guilder" is sufficiently an English 
word to justify its use in an indictment as a 
translation of the Polish word **zlotych," which 
is also called a guilder and a florin. Rex v. Har- 
ris, 7 C. & P. 416— Criminal Court. 837 

Words of reference, as " there" and " said," in 
an indictment, will not be referred to the last 
antecedent, where the sense requires that they 
should be referred to sutiie prior antecedent. 
Wright «. Rex (in error), 3 Nev. <& M. 892. 

837 

Thus, where, in an indictment for a nuisance, 
it was alleged that the defendant, at the township 
of W., encroached upon a highway there (i. e. at 
the township of W.)* leading from a highwav in 
the said township, leading from the villa[^ of W. 
towards O. to another highway in the said town- 
ship, from the village of W. to the township of 
X., by a certain wall there extending to the said 
highway, and erected by the defendant ; it was 
held, that the words " there" and *^ said" must be 
taken as referring to the township of W. and the 
highway there, and not to the township of X., or 
to the highway leading from the village of W. 
to the township of X. Id. 

Where a count in an indictment stated that the 
defendant made an assault upon a person who 
was in lawful possession of goods, under a levy 
for a specified sum of money, for arrears of as- 
sessed taxes, with intent unlawfully to force him 
out of possession : — Lord Denman, C. J., held, 
that it was necessary to prove that the specific 
sum was due, although he thought that no sum 
need have been stated. Rex t?. Ford, 4 Nev. 6l 
M. 451. 837 

If an indictment have an interlineation, and 
have a caret at the proper place, where the inter- 
lined words are to come m, the court will take 
notice of the caret, and read the indictment cor- 
recUy. Rex t>. Davis, 7 C. & P. 319— Patteson. 

837 



3432 



[CRIMINAL LAW] 



CV. Arraigitmbiit awd Plka. 

A party cannot be legally convicted upon an 
indictment found by tne fiprand jury upon the 
testimony of witnesses, who were sworn by an 
officer of the court after the session had lapsed, 
in consequence of its haying, on two successive 
days, been opened and adjourned without the 
presence of any judge. Middlesex Special Com- 
mission, 6 C. ^Sl F. §0— J. Parke. 840 

The statute 7 & 8 Geo. 4, c. 28, s. 2, authoriz- 
ing the court to direct a plea of not guilty to be 
entered for a party who stands mute of malice, 
or will not answer directly to an indictment, ap- 
plies to the case of a party who refuses to plead, 
on the ground that he haa previously pleaded to 
another indictment for the same offence, but 
which indictment was not valid in consequence 
of its having been found upon the testimony of 
witnesses not duly sworn to give evidence before 
the grand jury. Rex v. fiitton, 6 C. & P. 92 — 
Litltedale. 840 

To an indictment in the King's Bench, a de- 
fendant will be allowed to plead in forma paupe- 
ris, on making an affidavit that he is not worth 
52., &o. Rex v. Pa^, 1 Dowl. P. C. 507. 840 



CVIII. Plea op Autrk Fois Convict. 

A plea of autre fbis convict stated that the 
prisoner was indicted, convicted, and sentenced, 
at a session of the peace ^ duly holden by ad- 
journment on the 5tJi of July : replication, nul 
tJel record. The record, produced m support of 
the plea, stated that the indictment was found at 
a session commenced and holden on Monday the 
1st of July, and that the court was adjourned till 
Tuesday the 2nd ; that the court, having re-as- 
•embled on Thursday the 4th, was adjourned to 
Friday the 5th, when the prisoner was tried and 
convicted. It was held, that the plea oT autre fois 
convict was not proved by the record, inasmuch 
as for want of an adjournment from the Tuesday 
to the Thursday, the proceedings on the Friday 
were coram non judioe, and a nullity. Rex v. 
liowman, 6 C. dk P. 337 — Oaaelee, Vaughan, and 
Tkonton. 840 

The court will not reject a plea of autre fois 
convict on account of the informal manner in 
which it is handed in b^ the prisoner, but will 
assign counsel to put it mto a formal shape, and 
postpone the trial, to give time for its preparation. 
Rex V. Chamberlain, 6 C. & P. 93— Littledale. 

840 

A plea of autre fois convict can only be proved 
by tne record, and the indictment, with the find- 
ing of the jory* dke., indorsed by the proper offi- 
cer, is not sufficient, although it appear that no 
record has been made up. But the court, before 
whom the prisoner is brought to be tried the se- 
cond time, will postpone &e trial at the request 
of the prisoner, on affidavit of the ftct, to give 
time for an application for a mandamus to com- 
pel the making up of the record. Aex v. Bow- 
man, 6 C. & P. 101. 840 

CXI. EviDXircB. 
CM|/«Mi0ii.]— If a prisoner be told ** Yon had 



better split, and not rafier for all of thenn ;" this 
is such an inducement to confess as will exclude 
what the prisoner said in consequence of it Rex 
V. Thomas, 6 C. & P. 353— Patteson. 843 

So, where the witness said to the prisoner, ** It 
would have been better if you had told at first.*' 
Rex V. Walkley, 6 C. & P. 175— Gumey. 843 , 

A prisoner was in custody on a charge of for- 

gery, and was not allowed even to see his wife ; 
e wrote to a friend ** to ask Mr. G., or some 
other solicitor, whether the punishment was the 
same whether the names forced were those of 
real or fictitious persons.** Bir. G. was not the 
prisoner's attorney, though he was an attorney : 
— Held, that this was not a privileged communi- 
cation. Rex V. Brewer, 6 C. & r. 363— Park. 

843 

A. was in custody on a char^ of murder. B., 
a fellow prisoner, said to him — ^^'I wish yon 
would tell me how you murdered the boy — pray 
split" A. replied — ^**Will you be upon your 
oath not to mention what I tell you." B. went 
upon his oath that he would not tell. A. then 
made a statement : — Held, that this was not such 
an inducement to confess as would render the 
statement inadmissible. Rex v. Shaw, 6 C. A P. 
372— Patteson. 843 

Where A. and B. were charged with the joint 
commission of a felony, and A., on his exami- 
nation before a magistrate, stated, in the hemr- 
ing of B., that he and B. jointly committed each 
felonyi which B. did not deny : — Held, that these 
circumstances were not admissible as evidence 
against B. Rex v. Appleby, 3 Stark. 33— Hol- 
royd. 843 

A. and his wife were separately in custody on 
a charge of receiving stolen property. A person 
who was in the room with A . said — ** I hope yon 
will tell, because Mrs. G. (the prosecutrix) can 
ill afford to lose the money ;" and the constable 
then said — ^^ If you will tell where the property 
is, yon shall see your wife :" — Held, that a state- 
ment made by A. afterwards was admissible in 
evidence. Rex «. Uoyd, 6 C. 4t P. 393— Patte- 
son. 843 

Where a person, who made a confession to a 
constable in consequence of a promise held out, 
was taken before a magistrate, who, knowing what 
had taken place, captioned the prisoner against 
making any confession before him ; but the pris- 
oner, notwithstanding, did make a confession to 
the magistrate : — Held, that this second confes- 
sion was receivable in evidence on the trial of the 
prisoner, though it did not appjear that the ma- 
gistrate told the prisoner that his first confession 
would have no efiect, and he therefore mi^ht 
have acted under an impression that, having once 
acknowledged his guilt, it was too late to re- 
tract Rex V. Howes, 6 C. & P. 404 — Denman. 

843 

What a prisoner is overheard to say to his 
wife, or even what he is overheard to say to him- 
self, is receivable in evidence against nim on n 
charge of felony: it is, howeyer, a species of 
evidence to be acted on with caution, as it is yeiy 



[CRIMINAL LAW] 



2439 



liable to be onintentionallj miflrepresented bj the 
vitnewee. Rex v. Simonf, 6 C. & P. 540— Al- 
deieoo. 843 

A statemeDt, made bj e prieoner when he is 
dmnk, is leeeiTable in evidence; and semble, 
that, if a constable ^ve him liquor to make him 
BO, in the hope of his saying something, that will 
not render his statement inadmissible, but it will 
be matter of obserration for the judge in his 
aomming up. Rex v. Spilabury, 7 C. dt P. 187 

843 

If a prisoner, during the examination of wit- 
n easca a against him l^fore the magistrate, make 
an observation, parol evidence may be ^iven of 
■neb observation, if the magistrate s clerk prove 
that he only took down the evidence of the wit- 
B ca s ea , and the statement of the prisoner, afler 
tbe evidence against him was concluded. Id. 

A priaoner charged with felony, being in cus- 
tody Jiaadcufied, in the house of the prosecutor, 
aiHer a conversation with the prosecutor and an- 
otber person, in which he was told that they 
would do all they could for him, said — ^^ If the 
faandcuffii are taken off, 1 will tell you where 1 
pot the property :" — ^mble, that this statement 
waa receivable m evidence, and could not be ob- 
jected to, either as a confession made under a 
pnxniae, or a statement obtained by duress. Rex 
V. Green, 6 C. & P. 666 — Bosanquet and Taunt- 

843 



A witness stated, that a prisoner charged with 
felony asked him if he had better confess ; and 
the wit&ess replied, that he had better not con- 
fess, but that the prisoner might say what he 
had to say to him, for it should go no further. 
Tlie prisoner made a statement: — Held, that 
it waa receivable in evidence on the trial. Rex 
9. Thomaa, 7 C. d^ P. 345— Coleridge. 843 

A. being in the custody of a constable, on a 
charge of felony, was taken by the constable to 
an innkeeper, wno, in the hearing of the constable, 
held out an inducement to A. to confess ; and A. 
in the hearing of the constable, made a confea- 
sion to the innkeeper, which, at the trial, the 
eonetablo was called to prove : — Semble, that this 
confessio n was not leoeivable in evidence. Rex 
V. Foontney, 7 C. & P. 302— Alderson. 843 

A prisoner was indicted for sending a threat- 
ening letter. The only evidence against him was 
his own statement, tnat he should never have 
written it, but for W. G. : — Held not sufficient. 
Rex 9. Howe, 7 C. & P. 268— Abinger. 843 

A magistrate returned with the depositions 
taken before him, that the prisoner said — " I de- 
dine to say any thin^ :** — Held, that under those 
circumstances, a witness for the prosecution 
ooold not be allowed to give evidence of the 
terms of a confession, which he stated the pri- 
soner made in the presence of tbe magistrate, 
and while under examination. Rex r. Walter, 
7 C. & P. 267— Abinger. 843 

If a prisoner, when examined before a magis- 
trate, say that the deposition of F. T. is true, the 
deposition of F. T. may be read at the trial as a 
Mrt of the prisoner's statement, although F. T. 
nas been examined at the trial as a witness for 



the prosecution. Rex «. Joluii 7 C. dt P. 324 — 
Patteson. 843 

Where a magistrate has signed the examina- 
tion of a prisoner under 7 Geo. 4, c. 64, in order 
to allow it to be read on the trial, it is sufficient 
to prove the handwriting of the magistrate, and 
to show that the examination is that of the par- 
ticular prisoner. Rex v. Foster, 7 0. & P. 14{^ 
— Alderson. 843 

An examination of a prisoner taken before a 
magistrate, signed with the prisoner's name, may 
be given in evidence on the prisoner's handwri- 
ing being proved by any one present at the time 
oisuch examination. Rex v. Chappel, 1 M. d& 
Rob. 3i^5— Denman. 843 

When the prisoner has merely put his mark^ 
it must be proved that the examination was eor- 
rectly read over to him. Id. 

It is not necessary to call either the magis- 
trate or his clerk to prove the due taking in 
writing of a prisoner's confession. Hex p. Hopes^ 
7 C. ^b P. 136— Crim. Court. 843 

If a prisoner's examination before a magistrate 
conclude, ** taken and sworn before me," and 
under that is the magistrate's signature, it is not 
receivable in evidence; and the judge will nei* 
ther allow the magistrate's clerk to prove that^ 
in fact, it was not sworn, nor will he receive paro( 
evidence of what the prisoner said. Rex v. Ri- 
vers, 7 C. & P. 177— Park. 84$ 



AccomjiUees.l — If an accomplice's evidence be 
confirmed only as to collateral facts, which do not 
either connect the accused with the offence, or 
connect the accused and the accomplice toffetber^ 
it is not sufficient Rex v. Addis, 6 C. & r. 388 
—Patteson. 847 

Proving by other witnesses that a robbery waa 
in fact committed in the mode in which an ac- 
complice states it to have been committed is not 
such confirmation of him as is required to war- 
rant a conviction on his evidence. Rex v, Webb^ 
6 C. A. P. 595— WiUiams. 847 

There is a great difference between confirma- 
tions of an accomplice as to the circumstancea 
of the felony, and those which apply to the indi- 
vidual charged. The former only show that the 
accomplice was present at the commission of the 
offence, but the others show that the prisoner 
was connected with it. Confirmation of an ac- 
complice as to the commission of the felony, is 
really no confirmation at all, and though a jury 
may legally convict on the evidence of an accom- 
plice only, the iudges advise them not to act on 
the evidence or an accomplice, unless he is con- 
firmed as to the particular person who is chamd 
with the ofllence. Rex. v. WUkes, 7 C. & P. 272 
—Alderson. 847 

In a case of felony the testimony of the wife 
of an accomplice, is not such evidence as a jury 
ought to rely upon as confirmation of the state- 
ment of the accomplice. Rex v. Neal, 7 C. & F. 
16&-Park. 847 

If A. is charged as a principal, and B. as a 
receiver, and A. plead guilty, — an accomplice 



I 



2434 



[CRIMINAL LAW] 



when called to give evidence against B., should 
be confirmed aa to some matter affecting B., and 
a confirmation as to the guilt of A. does not ad- 
vance the case against B. Rez v. Moores, 7 C. & 
P. 270— Alderson. 847 

A jurv may, if they please, act upon the evi- 
dence 01 an accomplice without any confirmation 
of his statement. Rex v. Hastings, 7 C. & P. 152 
— Denman, Park, and Alderson. 847 



Depositions. ] — A., who was a witness for the 
prosecution against B., on a charge of arson, had 
first been examined by the magistrate before any 
specific charge was made against any person, and 
his deposition taken in writing. A. was next 
accused of the offence, and his statement as a 
prisoner was also taken down by the magistrate. 
Afler this, B. was charged with the offence, and 

A. examined as a witness, when A.'s statement 
made at that time was taken down, B. being 
then committed for trial : — Held, that all these 
statements of A. ought to be returned to the 
judge, and not merely the statement made when 

B. was committed. Rex v. Simonds, 6 C.&. P. 
540— Alderson. 848 

It is the duty of a magistrate to return all the 
depositions taken against a prisoner, and not 
merely the depositions of those whom he thinks 
proper to bind over as witnesses. Rex v. Fuller, 
7 C. & P. 269— Vaughan. 848 



Swearing and examining Witnessts.'] — Where 
a witness for the prosecution at the Old Bailey, 
on being asked to repeat an answer which she 
had previously given before the whole of it had 
been taken down, omitted what the prisoner's 
counsel thought an important part of it, and de- 
nied that she had ever uttered such part; the 
judges allowed the short-hand writer of the court, 
who had taken down the answer, to be examined 
as a witness to show whether the words had been 
used or not. Rex. v. Slater, 6 C. <& P. 334— 
Oaselee and Vaughan. 850 

A witness was asked by the prisoner's counsel 
on cross-examination whether be had not become 
bail for a witness previously examined. He re- 
plied, yes ; and that he believed it was on a charge 
of keeping a gaming-house. In order to prevent 
any impression agamst the character of the party 
so accused, the court, on the suggestion of the 
counsel for the prosecution, allowed such party 
to be called up again, and asked whether the 
charge was in fact true or fiilse. Rex v. Noel, 6 
C. &. P. 336— Gaaelee and Taunton. 850 

If a party robbed go within a few hours ailer 
the robbery to a constable, and mention the name 
of the person who robbed him, the party robbed 
may be asked at the trial whether he named any 
person to the constable, but ought not to he 
asked what name he mentioned ; and the consta- 
ble may be asked whether, in consequence of 
the party mentioning a name to him, he went in 
search of any person ; and if so, who that person 
was. Rex v. Wink, 6 C. & P. 397— Patteson. 

850 

The counsel for the prosecution in a case of 



felony opened that he should call A. and B. as 
witnesses, the former being a king's evidence, 
Both before and afler those persons were called, 
the prisoner's counsel were allowed to ask the 
other witnesses whether A. and B. were not per- 
sons of very bad character. Rex v. Nichols, 5 C. 
& P. 600— Parke. 350 

In a case of burning, it had been opened by 
the counsel for the prosecution, that evidence 
would be given of expression of ill-will, used by 
the prisoner towards the prosecutor: — Held, 
that the prisoner's counsel might cross-examine 
the prosecutor, to show that other persons be- 
sides the prisoner had used expressions of ill-will 
towards him. Rex v. Stallard, 7 C. and P. 263— 
Williams. 850 

Whether, afler the examination of witnesses to 
fact on behalf of a prisoner, the judge (there beinff 
no counsel for the prosecution), calls back and 
examines a witness zor the prosecution, the pri- 
soner's counsel has a right to cross-examine-again 
if he thinks it material. Rex o. Watson, 6 C. d& 
P. 653— Crim. Court. ' 850 

It is not usual to cross-examine witnesses to 
character, except the counsel cross-examining 
have some distinct charge to which to cross-ex- 
amine them. Rex v. Hodgkiss, 7 C. & P. 298 — 
Alderson. 850 



IVihusses ordered out of Court] — ^The witnesses 
had been ordered out of court, but the attorney 
remained in court : — Held, that afler thi« order 
he could not be examined as a witness. Rex v. 
Webb, 3 Stark. L. of £v. 17^3— Best. 856 

In a case of burglary, a witness for the defence 
remained in court afler an order for the witnesses 
to leave the court : — Held, that it depended on 
the circumstances of the case, whether the judge 
would allow the witness to be examined. Rex 
V. Colley, M. <& M. 329— LitUedale and Gaselee. 

856 

On a trial for arson, witness for the prisoner 
had lefl the court, on an order being gfiven for 
the witnesses to go out of court j but he had 
afterwards come into court again, and heard a 
part of the evidence : he was allowed to be ex* 
arained. Rex v. Brown, 4 C. & P. 588, n^ — Pat- 
teson. 856 

On the trial of an indictment for perjury, all 
the witnesses were ordered out of court Afler 
this order, a witness for the prosecution remained 
in court : the judge would not allow him to be 
examined. Rex v. Wylde, 6 C. & P. 380— Park. 

866 

As to witnesses being examined in civil cases, 
afler being ordered to leave the court, see the 
cases of Att. Gen. v. Bulpit,9 Price, 4; Pomeroy 
V. Baddeley, R. & M. 430 ; Beamon v. Ellice, 4 
C. & P. 565 ; and Everett v, Lowdham, 5 C. & 
P. 91. 



Proof of previous Contiction.'] — ^The judges 
have determmed that if a prisoner is indicted 
for a felony afler a previous conviction, the proof 
of the previous conviction is to be given before 
the prisoner is called on for his defence. Rex v. 



[CRIMINAL LAW] 



2435 



Jooet, 6 C. & F. 391— Park. [See 7 & 8 Geo. 
4, c. 28, 0. 11.] 855 

Evidence of the Finding of an Indictment.^ — 
An allegation, that '* on, <Sli:,c., at, &c., a certain 
indictment was preferred at the quarter sessions 
of the peace then and there bolden in and for the 
said coontjof W., a^inst the defendant and one 
T. E., which said indictment was then and there 
fbund a true bill," is not supported by the pro- 
duction of the original indictment with the words 
**true bill" indorsed on it, it being necessary 
(hat a regular record should be drawn up and 
prored, either by its production, or by an ex- 
amined copy of it Porter v. Cooper, 6 C. & P. 
'£4— Patteson. 855 



CXll. Pbacticb. 

The coort refused to discharge, without pre- 
ferring a bill of indictment, the reco^izances of 
prosecutors, being members of a society for pro- 
moting religious knowledge amon^ the poor, who 
had caused a servant to be committed for embez- 
tlraient, the application being made not on the 
ground of any defect in the evidence, but on the 
ground that the prosecutors thought that the re- 
formation of the oflfender would be best promoted 
by such a course. Rex v, Paul, 6 C. & P. 323 — 
Park, Patteaon, and Gumey. 855 

But where, at the assizes, parish officers were 
mider recognizances to prosecute a pauper for 
obtaining money bv fiilse pretences, the jud^ 
on motion permitted the recognizances to be dis- 
charged, the party having been in prison several 
weeu, and the parish being unwilling to indict. 
Rex V. Adams, 6 C. &^ P. ?Si, n.— Vaughan. 855 

On an indictment on the prosecution of a pri- 
vate individual for keeping a common gaming- 
hooee, the solicitor of the treasury was allowed 
to have a new record of Nisi Pnus engrossed, 
and the pcMtea and verdict indorsed from the 
judge's notes, on an affidavit that the poetea 
coah not be found, and that the solicitor of the 
treasury was instructed by the secretary of state 
to call for the judgment of the court. Rex v. 
Oldfield, 3 B. d& A&l. 659, n. 855 

Where a party has been tried at a court of 
<Ioarier sessions, which has previously lapsed for 
want of due adjournment, he has a right to have 
s record of the proceedings made up by the clerk 
cf the peace, although t£e object of the applica- 
tion is to enable him to support a plea of autre 
fois convict. Rex v. Middlesex (Justices), 3 Nev. 
AM. no. 855 

The prosecutor of an indictment for misde- 
meanor may obtain the usual crown office certi- 
ficate of his bill having been found, for the pur- 
pose of taking out a judge's warrant against the 
defendant, without obtaining an office copy of the 
indictment. Rex v. Redfem, 2 Adol. & Ellis, 
337 ; 4 Nev. & M. 198. 855 

Where a document is in the custody of an of- 
ficer of a court of equity, the court will, on 
^unds of public policy, order the production of 
uiat document at the trial of an indictment 
against any individual, whether he be a party to 

Vol. IV. 21 



the suit in which the document is in evidence or 
not Taylor v. Sheppard, 1 Y. & Col. 280. 855 

The court of King's Bench will, under special 
circumstances, remove an indictment for a mis- 
demeanor, from the Central Criminal Court. Rex 
V, Caldecott, 3 Dowl. P. C. 315. 855 

A prosecutor in an indictment for a nuisance 
may be compelled to give a particular of the acts 
of nuisance intended to be relied on. Rex v, 
Curwood, 5 Nev. &, M. 369 ; 1 Har. & WoU. 310. 

856 

A rule for this purpose may be granted without 
affidavit, upon reading the indictment only. Id. 

If the counts of an indictment for a conspiracy 
be framed in a general form, the judge will order 
that the prosecutor shall furnish the defendants 
with a particular of the charges ; and that parti- 
cular should give the same information to the 
defendants thai would be given by a special count. 
But the judge will not compel the prosecutor to 
state in his particular the specific acts with which 
the defendants are charged, and the times and 
places at which those acts are alleged to have 
occurred. Rex v. Hamilton, 7 C. d& P. 448— - 
LitUedale. 855 

The presentment of a bill for a capital o^noe 
may be postponed on affidavit of the attorney for 
the prosecution, stating the illness of a material 
and nece&sary witness, although such witness 
have been examined before a magistrate, and his 
deposition do not disclose matter of sufficient 
importance to show that his evidence was neces- 
sary, as the important facts may have been dis- 
covered since. Rex v. Palmer, 6 C. & P. 652— 
Criminal Court 855 

The court cannot, under the stat. 7 & 8 Geo. 
4, c. 29, s. 57, relating to the restitution of stolen 
property, order a Bank of England note which 
nas been paid and cancelled, to be delivered up 
to the prosecutor of an indictment against the 
party who stole it Rex v. Stanton, 7 C. &. P. 
431— Criminal Court. 855 

A constable who apprehends a prisoner hafl 
no right to take away from him any money 
which he has about him, unless it is in some way 
connected with the offence with which he is 
charged, as he thereby deprives him of the 
means of making his defence. Rex v. O'Don- 
nell, 7 C. & P. 1&— Patteson. 855 

A police officer who apprehended a person on 
a charge of rape, took from him a watch and 
other articles. The judges of the court at which 
he was indicted, on motion supported by affidavit, 
directed the property to be given up to the pri- 
soner, saying that ought not to have been taken 
from him. Rex v. William Kinsey, 7 C. A> P. 
447 — Patteson and Gumey. 865 

If a person taken on a charge of stealing a 
horse, nave the horse in his possession when he 
is apprehended, any money found upon him ought 
not to be taken away from him. Rex v. Jones, 6 
C. & P. 343— Patteson. 855 

Where, in case of murder, whiclr had occu- 
pied the whole of the day, the judge, after he 
nad commenced his summing up, a^ourned the 
court, in consequence of the noise made by the 



2436 



- [CRIMINAL LAW] 



crowd in the hall, his lordship ordered that two 
iNiili& should be sworn to keep the jury together 
till the next day, and that the jury should be 
supplied with suitable refreshments and sccom- 
mooation by the high sheriif, and next day his 
lordship recommenced his summing up the evi- 
dence. Rex 17. Clay, 7 C. & P. 2f&— Alderson. 

^ 855 

Where a defendant indicted for a nuisance, 
conducted his own case, the judge, at the conclu- 
sion of the case on the. part of the prosecution, 
warned him, that, if he called a witness or read 
any letter or paper in evidence, or opened new 
facts, the counsel for the prosecution would have 
a riffht to rep\y. Rex v. Carlile, 6 C A& F. 637 

— ^(>im. Court. 855 

• 

At sessions the jury gave a special yerdict of 
not guilty, and it was entered in the book of the 
clerk of tJi^ peace. Afterwards, the chairman 
told the jury they must reconsider their verdict ; 
and they gave a verdict of guilty generaUy, but 
recommended the defendant to mercy on account 
of his not doing the act with a: malicious intent; 
and the verdict was then altered in the book of 
the clerk of the peace. The court refused to 
interfere by mandamus to cancel the alterations. 
Rex V. Suffolk Justices, 5 Nev. & M. 139 : S. C. 
nom. Rex v. Hughes, 1 Har. & WoU. 313. 855 

In addressing the court in aggravation of pun- 
ishment, upon a conviction for a nuisance, it is 
competent to the prosecutor to advert to provis- 
ions contained in an act relating to a private com> 
pany, if such act contain a clause declaring it to 
be a public statute, though it be not referrea to in 
any of the prosecutor's affidavits. Rex v. The 
Equitable Gas Comp., 3 Nev. (k M. 759. 855 

The charters of the city of Liondon vest in that 
body, fines for misdemeanors committed within 
the city, though imposed or adjudged by the 
court of King's Bench, sitting in banc at West- 
minster, afler a trial at the sittings at. Gaildhall. 
Rex p. Mayor and Inhabitants ofuie city of Lon- 
don» 1 C. M. & R. 1 ; 4 Tyr. 709. 855 



CXIV. New Trial. 

The rule as to payment of costs on a motion 
for a new .trial is the same in principle in civil 
and criminal cases. Rex v. Ford, 1 Nev. &> M. 
776. 858 

Quiere whetlier a new trial is grantable after 
acquittal in any criminal case, except a penal 
action ? Rex v. Sutton, 5 B. & Adol. 52 ; 2 Nev. 
dE& M. 57. 856 

After a verdict for the defendant upon an in- 
dictment for the non-repair of a hignway,^the 
court refused an application for a new trial, on 
the ground^f the improper rejection of evidence ; 
but suspended the judgment in order that an- 
other indictment might be preferred. Id. 

All the defendants convicted upon a criminal 
information n^ust be in'court upon a motion on 
their behalf for a new trial. Kex v. Scully, 1 
Alcock & Napier, 262. {Irish.) 858 



CXV. JOOGMBITT Airp ExtCVTIOH. 

In a case of conviction for murder, in which 
the prisoners were brought up by habeas corpus, 
and the record by certiorari, the court gave the 
prisoners three days* time to examine the record 
and instruct counsel to show c^use why execution 
should not be awarded against them. Rex v. 
Garside, 4 Nev. dk M. 33 ; 2 Adol. dt Ellis, 266. 

860 

Semble, that a pardon afler judgment may be 
pleaded ore tenus, and in bar of execution ; and 
there may be a demurrer to such a plea ore tenus. 
Id. 

The court of King's Bench has authority to 
order the sheriff of any county, or the marshal of 
the court, to carry into execution the sentence of 
death, pronounced by a judge under a commis- 
sion of oyer and terminer and general gaol deli- 
very, la. , 

A proclamation promising a pardon cannot be 
pleaded as a pardon. Id. 

But where such proclamation had been oaade, 
the court, in their discretion, deferred the award- 
ing of execution upon the sentence, until the 
prisoner should have had time to apply to the 
secretaxT of state for a pardon, according to the 
terms ox the proclamation. Id. 

The attorney-general, upon motion, is entitled, 
as of course, to a habeas corpus and certiocari, 
to oring up a prisoner and the record of his con- 
viction in case of felony. Id. 

The court refused to hear an application from 
a sheriff, into whose custody the prisoners bad 
been removed, praying that the order to do exe- 
cution might not be made upon him. Id. 

A sheriff is not bound, upon service of a copy 
of the calendar of prisoners signed by a justioe 
of gaol delivery at the assizes, to execute pri- 
soners against whom sentence of death has bees 
passed, unless such prisoners are in his le^ 
custody. Rex v. Antrobus, 4 Nev. d(c M. 665 ; 
2 AdoL & Ellis, 798; 6 C. db F. 784; 1 Har. & 
Wolh 96. 860 

Therefore, where a county gaol and the cus- 
tody of the prisoners in such gaol belonged to a 
patent officer, ind^iendent of the sheriff it was 
held that the sheriff was not legally bound, upon 
receiving the calendar, to demand to have the 
prisoner delivered to him by such patent officer 
for the purpose of executing him. id. 

In such case, in order to make the liability of 
the sheriff complete, the court in which the pri- 
soner is condemned, should, hy a writ of habeas 
corpus or other mandate, reauire the patent offi- 
cer to deliver the prisoner to tne sheriff, and should 
by anoUier writ or mahdate require the sheriff to 
receive and execute him. Id. 

Quaere whether a special order of the court, to 
the patent officer and the sheriff, (they being 
both bound to be present in court), would be 
sufficient ? Id. , 

Mere notice of the sentence, and of the lia- 
bility of the sheriff to execute, is not sufficient 



[CRIMINAL LAW] 



2437 



to warTMit the patent oiBcpr to deliver the pri- 
soner to the sheriff lor execution. Id. 

Where the sherifE has the castody of the pri- 
■sner, the judgment of the court passing sen- 
teiie» of death upon him, is, without any war- 
rant or copy of the calendar, sufficient to auUio- 
rixeand require the sheriff to do execution; the 
copy of the calendar signed by the judge is a 
mere memorial. Id. 

CXVI. Error. 

Where error is brought on a conviction of 
felony, and after a four-day rule has been ob- 
tained and served on the attorney-general and 
prosecutor, and there is no joinder in error, the 
party convicted is entitled to be discharged out 
of castody. So in error upon a conviction for a 
misdemeanor. Rex v. Howse, 3 Nev. A M. 
— 862 



CXVIIl. Costs. 

A public body at its own expense preferred an 
isdictment for a libel upon A., one of its officers, 
in the name of A., as prosecutor. The defeifdant 
removed the indictment by certiorari, and was 
eooricted : — Held, that no costs could be awarded 
under the stat. 4 & 5 Will. & Majy,c. 11, s. 3. 
Rex V. J>ewfauiBt, 2 Nev. <fe M. 253 ; 5 B. A Adol. 
405. 865 

Wheie an indictment on the 7 & 8 Geo. 4, 
c 90i, s. 16, is remored by certiorari into the 
King's Bench, and is tried on a record issuing out 
of that court, the expenses of prosecution cannot 
be allowed under the 7 GTeo. 4, c. 64, s. 22. Hex 
V. Kelsey, 1 Dowl. P. C.'481. 865 

If a proeecutor, having removed an indictment 
by certiorari, give notice of trial for the assizes, 
and bring down the record, and withdraw it after 
it has been entered for trial," the judge at the as- 
Msn cannot order the prosecutor to pay the de- 
JeDdant the costs of the da^ ; but a motion must 
ke made in the court of King's Bench. Rex v. 
W«ttoB, 4 C. & P. 229— BqUand. 865 

By the general Highway Act, 13 Geo. 3, c. 78, 
a. 64, the court, before which any indictment for 
mm-iepair of a road is tried, may award costs to 
the proaecutor, if any defence appear to liave 
been fnTolous, or to the defendant, if it appear 
that the proaeeution was vexatious. This section 
api^ies only to cases tried in the ordinary course ; 
and where on an indictment removed by the de- 
fendant by certiorari, the court above had ordered 
a new tnal, and the prosecutor's costs of both 
triala to abide the erent: it was held that this 
rule look away the authority of the judge to cer- 
tify in h,Tor of the defendant Rex v. Salwick, 
2 B. & AdoK 136. 865 

A party who is bound over to prosecute at a 
aaperior court by a court of quarter session, is 
entitled to his expenses under the statute. Rex 
9. Paine, 7 C. & V. 135— Grim. Court 864 

Qucre, whether under 7 Geo. 4, c. 64, a prose- 
cutor under recognizances to prosecute at the ses- 
sions, who proaecnted at the assizes, is entitled to 
eoalB at all? Rex a. Jeves, 5 Nev. &, M. 101 ; 3 
AM.A£Uia,416: 1 tiar. db WoU. 325. 864 



I Semble, that the statute meant to give 
costs to those parties only who have previously 
gone before a magistrate. It docs not apply to 
cases where an indictment is preferred after a 
magistrate has dismissed the complaint — Per 
LitUedale. Id. 

The prosecutor in a case of perjury, who has 
included his name in a subpoena, is entitled to 
his costs as prosecutor, though he is not hound 
over to prosecute by a magistrate, and he is not 
limited to his expenses incurred as a witness 
only. Rex v. Sheering, 7 C. d^ P. 440— Parke 
and Coleridge. 864 

In the case of an indictment removed into 
K. B. by certiorari, the court has no power to 
order the payment of costs incurred before the 
removal. Rex v. Pasman, 3 JNev. d^ M. 730 ; 1 
Adol. &, Ellis, 603. 865 



CXIX. Information. 

A magistrate is entitled t6 notice before an ap- 
plication is made for a criminal information, 
where he is charged with misconduct in his ma- 
gisterial capacity, although other misfTonduct be 
also charged. Rex v. Heming, 2 Nev. & M. 477 ; 
5B.dk Adol. 666. 867 

The court will not ^ant a rule nisi for a cri- 
minal information agamst magistrates, unless it 
appears they have acted from an oppressive, 
dishonest, or corrupt motive, under whicn fear or 
favor are included. In re Fentiman, 4 Nev. db 
M. 128 ; 1 Adol. &. Ellis, 127. 867 

A magistrate is entitled in all cases to six days* 
notice, (3* an intention to apply for a rule nisi for 
a criminal information ; .and it is not sufficient 
that in point of fact, six days have expired be- 
tween the notice and the motion, if tne notice 
contemplates an earlier applicatidn. Id. 

Upon a motion for a criminal information 
against A. for challenging B., an affidavit, 
stating tliat in a correspondence between them, 
A. hM intimated an intention, after the settle- 
ment of accounts between himself and B., to 
require an apology for offensive expressions con- 
tained in a letter received by him from B., or 
" such satisfaction as is usual on such occasions 
between gentlemen /' and that afterwards, C, a 
relation of A., came with a letter of B. in his 
hand, — settled the account by paving a balance 
due from A. to B., and, after saying that he had 
come in conseonence of the letter in his hand, 
delivered a hostile message as from A. ; — was held 
insufficient to connect A. with the challenge ; 
and therefore the court refused the rule. Rex «. 
Tounghuflband, 4 Nev. & M. 850. 869 

But the court afterwards granted a rule nisi 
against C. Id. 

A rule nist for a criminal information will not 
be granted where a former rule for the same mat- 
ter against the same defendant has been dis- 
charged, although the second motion is made 
upon additional affidavits. Rex v. Smithson, 1 
Nev. & M. 775 ; 4 B. & Adol. 861. 870 

The court will not enlarge anile for a crimi- 
nal information, in order that the affidavit on 



1 



2438 



[CRIMINAL LAW— DAMAGES} 



which the rale wu obtained may be resworn. 
Rex V. Cockshaw, 2 Nev. &. M. 378. 870 

The county in which a deponent is sworn to 
an affidavit to sproand a rule tor a criminal infor> 
mation, made oefore a commissioner, must ap- 
pear in the jurat Id. 871 

Leaye to file a criminal information for a libel 
should be applied for in a reasonable time before 
the expiration of the second term afler the pub- 
lication, if it come to the knowledge of the pro- 
secutor early enough to enable him to move 
within that period. Rex v. Jollie, 1 Nev. 6l M. 
483; 4B. &Adol.8b7. 870 

Semble, that an affidavit to found a criminal 
information for a libel published in England, in 
parts beyond seas, may be sworn abroad. Rex 
9. Satirist (Editor), 3 Nev. & M. 532. 871 



CXX. Prison. 

A. was to be tried for felony at the assizes for 
the county of W., and B., a material witness for 
A., was committed to the W. city prison for fur- 
ther examination on a charge ot felony : — Held, 
that before the trial of A. the governor of the W. 
city prison ought to allow A.'s attorney to see B. 
in his presence. Rex v. Simmonds, 7 C. dt P. 
176— Park. 872 



CXXII. Articlks of thk Peace. 

The court of King*s Bench cannot interfere to 
reduce the amount of security which the magis- 
trates require a defendant to give for the preser- 
vation of the peace. Rex v. Holloway, 2 Dowl. 
P. C. 525. 873 

A party rave information on oath before a 
magistrate, Uiat from certain language used to- 
wards him, he was in bodily fear from another, 
and the magistrate upon hearing the complaint, 
required the latter to enter into recognizances to 
keep the peace. On motion to discharse the re- 
cognizances, on the ground that the language 
was used in a metaphorical sense only, the court 
refused to interfere, because it was for the ma- 
gistrates to judfie in what sense the language was 
used. Rex v. Tregarthen, 5 B. & Adol. 678 ; 2 



Nev. & M. 379. 



873 



CUSTOM AND PRESCRIPTION. 

A usage of trade must be proved by instances, 
and cannot be supported by evidence of opinion 
merely. Cunningham v. Fonblanque, 6 C. & P. 
44— Park. 876 

The general law as to a custom is, that if its 
existence at a distant time be shown, and there is 
no evidence that at any certain time it did not 
exist, a jury may infer that it went back as far as 
the reign of Richard the First, which is the time 
of legiU memory. Leuckhart v. Cooper, 7 C & 
P. 119— Tindal. 873 

Quaere, whether the same person can have a 
right by custom, and a prescriptive right to do 



the same thing? Blewitt v. Tregonning, 5 Nev. 
& M. 308 ; 1 Har. 6i, Woll. 432. 874 

A jury cannot, from the same evidence, find a 
customary right in all the inhabitant occupiers of 
land within a district, and a prescriptive right to 
the same subject matter, in respect of a particular 
estate within the district. Id. 

Whether, in point of law, a prescriptive and a 
customary right to the same subject matter, may 
exist in respect of the same land, if each bie 
proved by proper evidence applicable to each, 
quere? Id. 

Enjoyment of a profit-a-prendre by the owners 
and occupien of a particular estate, during living 
memory, without any evidence of user or non- 
user at any antecedent period, is evidence of a 
prescriptive right, but will not support a plea of 
a lost grant. Id. 

in order to support such plea of a lost grant, 
some evidence tending to point the user, as re- 
gards its commencement, to the period of the 
supposed grant, must be given. Id. 

Where rights are claimed by prescription, the 
jury ought to be directed, that from modem usage 
they are warranted in presuming that the right 
claimed is immemorial, unless they are satisfied 
of the contrary by other evidence. Jenkins v. 
Harvey, 1 C. M. «. R. 877 ; 1 Gale, 23. And 
see S. C. 2 C. M. &, R. 393. 874 

A custom that the town crier of a corpoiate 
town shall have the exclusive privilege of pro- 
claiming, by the sound of the bell, the sale ot all 
goods brought into the borough to be sold by 
auction is a good custom. Jones r. Waten, 1 C. 
M. 4fe R. 713; 5 Tyr. 361 ; 1 Gale,5. 876 



DAMAGES. 

A., having been illegally arrested on mesne 
process, applied to the court to be discharged ; 
the rule was referred to a judge at chambers, 
who ordered him to be discharged, and would 
have given him the costs of the rule if he would 
have undertaken to bring no action ; but, as he 
refused to give such undertaking, nothing was 
ordered as to the costs. In an action for trespass 
and false imprisonment brought by A. for the ar- 
rest ; it was neld, fint, that he was entitled to re- 
cover those costs as special damage if properly 
laid in his declaration : and secondly, that, as the 
declaration only alleged that he had been forced 
and obliged to pay and had paid C, he could not 
recover the whole of the bill of costs of his attor- 
ney which he had not paid,^hough he was liable 
to pay them ; but that ne might recover so much 
of the bill of costs as consisted of money actually 
paid by the attorney, as that might be considerea 
as money paid through his agent. Pritchet v. 
Boevey, 1 C. & M. 775. 878 

Semble, that under an averment that he had 
been forced and obliged to and had become liable, 
&c , he might have recovered damages for such 
liability. Id. 

In assumpsit for a breach of contract, in not 
delivering a quantity of linseed pursuant to a 
contract of sale, it appeared in evidence, that the 
plaintiffii, pursuant to contract, had paid part of 



[DAMAGES— DEBTOR AND CREDITOR] 



2439 



the pnrchase-mone J to the vendor in advance ; 
that the defendant, at the time when the linseed 
ouffht to have been delivered, had notice of his 
inability to perform the contract, but the money 
was not returned until after the action was com- 
menced, when the amount was paid into court, 
with interest up to the time it was so paid in, as 
a consideration for a commission to examine wit- 
neaaes abroad, and was only obtained out of court 
by the plainliifs a short time before the trial : — 
Held, that, in estimating the damages, the plain- 
tifi were not entitled to take the price of linseed 
at the time of the trial as a criterion ; and the 
pjaintjffii not having proved that they had sus- 
tained any special damages from the non«delivery 
of the seed, and the non- return of the money, 
thai the repayment of the money advanced, with 
simple inteiest opon it, and payment of the dif- 
ference between the contract price and the price 
of the linseed at the time when it ought to have 
been delivered, was that to which the plaintiffs 
were entitled ; and the jury having found accord- 
ing! j, that the verdict was right. Startup v. 
Cortazzi, 2 C. ^. & R. 165. 878 



DEATH. 

Pieaamption of death firom absence. Doe d. 
Knight V. Nepean, b B. & Adol. 86 : S. C. nom. 
Doe d. Slade v. Nepean, 2 Nev. & J/l. 219. 880 



DEBT. 

In an action of debt it is immaterial that the 
aggregate of the sums claimed in several counts 
ezeeeds the amount claimed in the queritur. 
Gardmer v. Bowman, 4 Tyr. 412. 880 

The words *' undertook and agreed to p&v*" in 
a qoantum meruit count, do not necessarily im- 
port the form of action to be assumpsit, but are 
good in debt. id. 

A. eoTeoanted to pay B. 270Z. on the 15th of 
December, with interest np to that time. He 
did not do so, and B. brought an action of debt, 
laying hie waages at 10^. : — Held, that B. could 
not recover more than the principal, the interest 
up to the 15th of December, and lOl, more, 
attbough the interest up to the time of the action 
amounted to a larger sum ; and the judge at the 
trial would not order the declaration to be 
amended by inserting a larger sum than 10^. as 
tlie damages. Watkms v, Morgan, 6 C. & P. 661 
— UtUedale. 880 

In an action of debt, for goods sold and deli- 
vered, the defendant pleaded nunquam indebita- 
tus : — Held, that he could not give in evidence, 
under this plea, that the goods were sold on credit 
which had not expired. Edmunds v. Harris, 4 
Ner. dt M. 182. 880 

A plea of the ^neral issue in debt on simple 
contract, roust be in the form given by rule 3, tit. 
«« covenant and debt," of the rules of Hil. T. 4 
WilL 4 ; and therefore a plea that the defendant 
^ never did owe," waeheld bad on special de- 
mnner, the former being ^ never was indebted." 
Smedley v. Joyce, 4 Dowl. P. C. 421 ; 2 C. M. & 
R. 721 > 1 Tyr. 84. 880 



If one sue several defendants in debt, and the 
evidence do not fix all the defendants, the plain- 
tiff must be nonsuited ; and the judse win not 
allow the declaration to be amended bv striking 
out the names of those defendants who are not 
affected by the evidence. Cooper v. Whitehouse, 
6 C. «& P. 545— Alderson. 880 

To debt for 20 years' rent, at 80Z. a-year, 
upon a lease, the defendant pleaded the statute of 
limitations; and further as to 1420/. part of the 
demand, that 17J years ago, the plaintiff by deed 
assigned his reversion, and that no part of the 
1420^. had accrued before the assignment : ver- 
dict for the plaintiff upon the first issue, and for 
the defendant upon the second : — Held, that the 
defendant was entitled to the postea. Paddon v. 
Bartlett, 4 Nev. <& M. 321. 880 

To debt for 1600Z. for 20 years' rent, at 80L a- 
year, defendant pleaded to the whole action actio 
non accrevit infra sex annos ; and also as to 1420^, 
parcel, &c., that 17) years before plaintiff assigned 
over his reversion^ and that no part of the 14202. 
accrued before the assignment Verdict for the 
plaintiff on the first issue, and for the defendant 
on the second. Semble, that the plaintiff was 
entitled to judgment for 180/. Paddon v. Bartlett, 
5 Nev. & M. &3. 880 



DEBTOR AND CREDITOR. 

Change of Joint into Separate Debts."] — A. & 

B. being partners, A. retires and B. continues the 
business, having the partnership effects: C, a 
creditor, bein^ told by B. that he must look for 
payment to him alone, draws a bill of exchange 
en B. for his debt; the bill is dishonored, and 

C. gives B. time to pay : these facts raise a ques- 
tion for the jury, whether it was not an agreement 
between B. &. C, that C. should accept B. as 
his sole debtor, and should take the bill of ex- 
change from him alone by way of satisfaction for 
the debt due from both. Thompson v. Percival, 

3 Nev. <& M. 167 ; 5 B. & Adol. 925. 881 

Such an agreement followed bv the receipt of 
the bill from B. would be a good defence by way 
of accord and q^tisfaction, in an action hy U. 
against A. A. B jointly. Id. 

The bankrupt kept an account open with A., 

B. & C, as bankers, who afterwards took into 
partnership D., the son of C. ; after which the 
bankrupt executed a legal mortgage to A., B. db 

C, for securing the repayment of the loan of 
60002. Subsequently to this, the bankrupt ad- 
dressed a letter to Messrs. A., B. &. (j. au- 
thorizing them to consider all the securities they 
then held as responsible for any advances made, 
or to be made by them to the bankrupt : — Held, 
that this letter must be taken to have been ad- 
dressed by the bankrupt t$ the four partners, and 
amounted to an equitable mortgage to the four of 
the previous legal^ mortgage to the three, operat- 
ing as a security for all the advances made either 
by the three or the four partners. Ex parte Parr, 

4 Deac. 6l Chit. 426. 681 

m 

Mere knowledge by a creditor of the dissolu- 
tion of partnership will not release the old part- 
ners from their liability to him, though he conti« 



9440 



[DEBTOR AND CREDITOR] 



nae bw accoant with the new firm^ nnlen he ap- 
pears expressly or by some act to have accepted 
the substitoted credit of the new partnership in* 
atead of the retiring partners. 0., M. & M. 
trading under the name of J. K. ik Sons, were 
indebted to A. ; C. retired from the partnership, 
and M. & N. undertook to liquidate the con- 
cerns; afterwards N. went out of the business, 
jufid on his retirement a new partner was taken 
in : at that time a notice of the previous dissolu- 
tion of partnership was advertised in the Gazette, 
but therf was no proof that the plaintiff ever saw 
that advertisement : no notice was given of the 
introduction of the new partner ; the business was 
carried on in the old style of J. K. &. Sons, 
and the plaintiff continued his account with them 
under that name About eleven months after the 
•dissolution, in a letter to one of the partners who 
had retired, plaintiff said he was aware that af\er 
the dissolution he had no claim afirainst him, 
'* but there was nothing to show that ne accepted 
the substituted credit of the new partner in his 
stead :" — Held, that the three original partners 
to whom the loan was made were not released 
from their liability. Kirwan v, Kirwan, 4 Tyr. 
491. 881 

The creditors of A. having issued a fiat in 
liankruptcy against him, and luving at the close 
of the proceedings under the fiat received notice, 
by means of the examination of the bankrupt and 
others, that A.* was only the agent of fi. d^ Co., 
proceeded nevertheless to sign A.'s certificate : — 
Held, that this was not an election by the credi- 
tors to treat A. as their sole debtor. Taylor v, 
Sheppard, 1 T. dt Col. 371. 881 



Jiggigfiment of Debts. ] — A. having contracted 
to pay to B. 2X101. by instalments, S. signed and 
gave to C, for value, a paper authorizing A. to 

Ey parts of each instalment to C, and 400/. to 
reserved in A.'s hands out of the balance of 
the contract, and C.'s receipt was to be a dis- 
charge to X. ; A. was served with a notice of the 
order on the day on which it was signed : — Held, 
that the writing was an equitable assignment of 
the sums mentioned in it to C. Lett v. Morris, 
4 Sim. 607. 882 

An assignee of a debt has a right to use the 
isignor's name in suing for it, and it is a suffi- 
cient authority for the attorney, if he is instructed 
by the former to commence proceedings. Pick- 
ford V. £wington, 4 DowL P. C. 453. 882 

The plaintiffs in London, and the defendant at 
H.f were correspondents of J. ib Co. of R. J. 
J. A Co. informed the plaintiffs, that they had 
requested the defendant to pay the proceeds of 
certain coffee to them after a sale had been 
realized. The plaintiffs thereupon wrote to the 
defendant, and requested to know the particulars 
of the remittances from J. & Co., to which the de- 
fendant returned the following reply : — ^ We are 
directed by J. Sl Co. to remit to you the proceeds 
of 110 bags real ordinary coffee, which tney con- 
signed to us, but which are not yet disposed of:" 
--%eld, that this amounted to an undertaking on 
the part of the defendant, to hold the proceeds 
of the coffise for the use of the pUintifii, and that 



the defendant could not afterwaitis claim to set 
off the amount of the sale of the coffee against a 
balance due to himself irom J. dL Co. : — Held, 
secondly, that assumpsit for money had and re- 
ceive^l was the proper form of action ; 3rdly, 
that the correspondence relating to a mer- 
cantile transaction, the effect of it was properly 
left to the jury ; 4thlv, that, notwithstanding Uie 
money might have been payable to J. ^ Co. 
with interest, that the interest could not be re- 
covered by the plaintii& from the defendant 
Fruhling v. SchroCder, 2 Scott, 135 ; 7 C. & P. 
103 ; 1 Hodges, 105. 882 

In assumpsit for money had and received, an 
admission in writing was in evidence by the 
defendant, — ^ I undertake to pay yon 5(M., which 
1 hold of C, and have bv him been autboriaed 
to pay you." The defenoant called C. as a wit- 
ness, who proved that the defendant had been in- 
debted to him, and he had been indebted to the 
plaintiff, but that he had never authorized the de- 
fendant to pay the plaintiff: — Held, that this was 
an answer to the plaintiff*s case, and that the de- 
fendant was nut estopped by the admission. 
Pearce v.Evans, 2 C. M.d& R.204; 1 Gale, 265. 

882 

Serable, also, that if the defendant had been 
authorized to pay the 502. by C, the plaintiff 
would not have been entitled to recover after the 
payment of the debt by C. Id. 



Deeds of Composition.] — If partners by deed 
assign all their partnership effects, dE^c. to trus- 
tees for the benefit of their creditors, and some 
of the se]>arate creditors of one partner do not 
assent to it, the assignment is fraudulent and 
void. Eckhardt V. Wilson, 8 T. R. 140. 884 

A., a creditor of a firm, held securities irom 
one of its members for n^oney advanced by him 
at different times to the firm, but claimed a ba- 
lance beyond what those securities would cover ; 
all the creditors of the firm agreed to accept a 
composition '' of 7s. for every 20^. due to the 
said creditors respectively." A. was the first to 
sign this deed, but added to his signature the 
words, ** without prejudice to any securities what- 
ever that 1 hold;" the other creditors signed in their 
respective order under A.'s signature : — Held, that 
sucm a composition, thus accepted, did not affect 
the rights of A. upon his previous securities, but 
only related to the balance beyond the sum they 
would cover, and that he mi|[ht afterwards en- 
force those securities in equity. Duffy v. Orr, 

1 Clark & Fin. 253 ; 5 Bligh, N. S. 620. 884 

An agreement of composition entered into by 
one creditor, in contemplation and in considera- 
tion of a general composition being entered into 
by all the creditors, is not binding on him if the 
others refuse to come in. Reay v. Richardson, 

2 C. M. <& R. 422; 1 Gale, 219. 884 

In an action on a bill of exchange, a plea of 
composition alleged that the defenoant was in- 
debted to A. B. and to divers other persons, and 
was in insolvent circumstances ; and therefore, on 
&c., and btofore^e said bill became due, with a 
view to induce and enable the defendant to induce 



[DEBTOR AND CREDITOR] 



2441 



other persons, being creditors, to accepts compo- 
lition of 10». in the pound, the plaintiir agreed 
to icccpt it, and that this was afterwards made 
known to A. B., and that he, in consklenition of 
the premises, and upon the faith thereof, 
wu lured and indnced to agree to accept 109. 
in the Boond, and that he had not ever since 
received or sought to receive more than 10s. 
in the pound : — Held, that the agreement stated 
onut be understood to have been made in con- 
templation of a general composition, to which 
one creditor only had come in ; that, conse- 
qoeatlj, the consideration of the agreement had 
not been received, and therefore notwithstanding 
t verdict for the defendant on the plea, that the 
plaintiff was entitled to judgment. Id. 

In order to prove the agreement stated in the 
1^ the defendant put in a letter from one of 
the pkintiib, containing the terms of the agree- 
Bent for the composition : — Held, that evidence 
of I previous conversation, when the plaintiff 
lade inquiries as to what the other creditors 
were likelv to do, was admissible to show the 
motive which induced Mim to write the letter, 
and the intention with which the agreement was 
entered into. Id. 

To a declaration in assumpsit, the defendant 
pbttled as to all except 201. 9s. non assumpsit ; 
and as to this sum, that the defendant being in 
enbanasaed circumstances, the plaintiff and other 
cfeditors agreed to take ois. in the pound, and 
thtt the defendant was ready and willing to pay 
the amount of the composition, but the plaintiff 
refined to receive it, and discharged the defen- 
dant fmm payment of it : — Held, that the plea 
was no answer to the sum agreed to be taken 
for composition, because no consideration was 
stated for the plaintiffs discharging the defendant 
from paying it, and that therefore the agreement 
as to that was void. The plea was allowed to be 
amended by paying that sum into court. Cooper 
V. Phillipps, 3 Dowl. P. C. 196 ; 1 C. M. & R. 
619; 5 Tyr. 166. 885 

The bankrupt entered into a deed of compo- 
sition with his creditors, by which they released 
him from his debts: — Held, that a promissory 
note subsequently given to a creditor for the re- 
Bainder of the debt, was a nudum pactum, and 
ooBsequently a bad petitioning creditor's debt. 
Ex parte Ball, 1 Deacon, 171 . 885 

Where a creditor compounds with his debtor 
under a false imprcs8ion,in which the debtor know- 
ingiy leaves him, as to the extent of the debtor's 
estate, the creditor is not estopped from suing for 
the balance of his debt. Vine v. Mitchell, 1 M. 
& Rob. 337— Tindal. 8d7 

By an agreement entered into between the 
plaintiib, together with other creditors, and the 
defendant, the defendant agreed to pay a compo- 
sition <»f fifteen shillings in the pound by two in- 
atalments ; and a surety, in consideration of the 
creditors agreeing to discharge the defendant 
from all debts and demands on receiving such 
eomposition of fifleen shilling in the pound 
acieed to pay a sum of money in part payment, 
af the aeeondf tiae creditors agreeing ^^ to exone- 



rate and discharge the defendant on payment of 
the said fifleen shillings in the pound ;" it was 
also agreed that several bills of exchange, the 
amount of which was equal to the residue of the 
sum payable on the composition, which had been 
before indorsed by the defendant and handed over 
to the plaintiffs, ** should be considered as part 
payment of the said fifleen shillings in the 
pound:" — Held, that the bills lefl in the hands 
of the plaintiff were not, under this agreement, 
to be considered as an absolute payment, unless 
they were paid when at maturity, and one of 
them havinjg been dishonored, thayt the defen- 
dant remained liable upon his indorsement. 
Constable v. Andrew, 2 C. & M. 298 ; 4 Tyr. 206. 

889 

Action a^inst the defendants as acceptors of a 
bill of exchange for 1039f. ; it appeared that the 
defendants owed the plaintiffs a balance of 32U., 
that the defendants failed, and their creditors, 
amongst whom were the plaintifib, a»eed to take 
a composition of five shillings in the pound on 
their debts, by notes at four and eight months ; 
there was a dispute as to the balance due to the 
plaintiffs, and they promised to adjust their ac' 
count with one of the defendants, and said they 
would do as the other creditors did ; the defen- 
dants insisted for some time that 25(M. 9s. 7d. was 
the balance due, but the defendants* attorney 
aflerwards called on the plaintiffs' attorney, and 
told him that the defendants were ready to pay 
the composition on 321 i., the sum reaJly due, 
but the plaintifiii' attorney refused, and said they 
must have the whole ; no actual tender was made 
of the notes or of cash for the amount of the 
composition : — Held, that a tender was not ne» 
cessary under the circumstances, and that the 
plaintiffs could only recover the amount of the 
composition on the balance. Reay v. White, 1 C. 
& M. 748 : S. C. nom. Reay v. Whyth, 3 Tyr. 
597. ^ 8d9 

An assi^ment for benefit of creditors, by a 
trader and farmer, of all her ** effects, stocky 
books, and book debts," conveys the cattle on the 
farm. Lewis v. Rogers, 1 C5. M. & R. 48 ; 4 
Tyr. 872. S8» 

A trader, being in embarrassed circumstances^ 
executed an assignment of all her ** effects, stock, 
books, and book debts," for the benefit of he^ 
creditors ; in an action afler her death against the 
assignee, treating him as her execntor de son 
tort, it was held tnat a list of creditors, made ont 
about the time of the execution of the assignment, 
by the direction of the assignor, was evicrence, as 
part of the transaction, for we purpose of disprov- 
ing fraud. Id. 

If property be conveyed by a debtor in trust for 
the benefit of creditors, who are neither parties 
nor privy to the deed, the ()eed merely operatee 
as a power to the trustees to apply the property 
in payment of debts : such power is revocable by 
the debtor. Acton v. Woodgate, 2 Mylne A K, 
492. 88» 

Qusre, whether a communication, by the 
trustees to the creditors, of the fact of such a 
trust, will not defeat the powei of revocation by 
the debtor? Id. 



2443 



[DEBTOR AND CREDITOR— DEED] 



Riffhto and liabilities of tnuWes. Emeiy v. 
MucElow, 2 Dowl. P.O. TSS. 889 

If a party obtaina the benefit of a troat deed 
executed bj his creditors, and in it is contained 
a conaideration, that he shall make a full dis- 
closure of his pi^opertj, but he conceals a portion 
of it, the creditors signing the deed may still 
proceed aninst him. Wenham v. Fowle, 3 Dowl. 



P. C. 43 



889 



Upon a composition, the original debt reviTes 
upon failure of the debtor in performing his 
undertaking. Ex parte C^rosbie, 2 Mont & kjr. 
393 : 8. C. nom. Ex parte Crosley, 1 Deac. 107. 

884 

Where a creditor enten into an agreement 
with his debtor to accept a composition of debt 
and to execute a release upon certain conditions, 
but the debt is never actually released, a sub- 
«e<|uent promise of the debtor, either expressed 
•or jmplied, will revive the debt. Id. 



Poynuml,'] — Semble, that a payment made to 
an apprentice in his master's oounling-hooae, not 
in the usual course of business, but on a collateral 
transaction, is not a g[ood payment tu the mas- 
ter : aa where a deposit is paid by a stake holder 
to the apprentice of the party who makes the de- 
posit, at his counting-house. Saunderson e. Bell, 
2 C. & M. 304; 4 Tyr. 224. 891 

The acceptance by a creditor of a check in 
his favor, drawn by his debtor, operates as pay- 
ment, unless dishonored. The mere fact of a 
person drawing such a check in favor of another 
18 not evidence of a debt. Pearce v. Davis, 1 M. 
Ol Rob. 365— Fatteson. 894 

Appropriation cf Paymenl.'\ — Though payment 
of money on account ^nerally, without a specific 
appropriation, would, in many cases, go to dis- 
cnarge the first part of an account, such payment 
is not conclusive ; it is evidence of an appropria- 
tion only ; and other evidence may be adduced 
to vary Uie application of the rule. Wilson v. 
Hirst, 1 Nev. A. M. 746. 893 

If a debtor pays money generally to his credi- 
tor without any direction as to its specific appro- 
priation, the creditor may apply it m liquidation 
cither of a judgment or simple contract debt. 
Chitty V, Naisb, 2 Dowl. P. C. 511 ; Brazier v, 
aryant, 2 Dowl. P. C. 477. 894 

If the creditor under such circumstances, 
make no specific application, the money shall be 
applied to one or other account, accordmg to the 
presumed intention of the parties, to be collected 
from all the facts. Id. 

Where there was a running cash and bill ac- 
count between the bankrupt and a banking com- 
pany, who were under considerable advances to 
him, but part of these advances arose out of ille- 
g^ transactions ; and the bankrupt from time to 
time deposited bills and made payments, without 
any specific appropriation, or any settled account 
between him and the bankers : — Held, that the 
payments mast be appropriated in reduction of 
the earlier items of the account, and of tlra legal 



and not the iUegal part of the demand. Ex parts 
RandleMm, 2 Deae. & Chit 634. 804 

The plaintifis (bankers) liad an account with 
D. & Co., and had advanced D. &, Co. large 
sums of money on credit, before the 11th of 
March, 1829; on the 11th of March, 1829, the 
defendant executed an indemnity bond to the 
plaintifis, which recited that the plaintiffs were 
then about to enter into and have large dealings 
and transactions with D. 6l Co., in the course of 
which D. dt Co. would require advances, dkc. : 
and that defendant had agreed to secure and 
indemnify the plaintiffs against the same ; and the 
condition of the bond was, that if the defendant 
should indemnify and save harmless the plaintiffs 
from and against all and all manner of engage- 
ments, debts, and lawful claims, not exoeedmg 
10,0002., which the said D. &i Co. might legally 
make, contract, or come under, to and with tfaie 
said plaintifib, in the course of the said dealinn 
and transactions, from the date of the bond tul 
the 11th of March, 1831 \ or, if at the close of 
such dealings and transactions, within the period 
aforesaid, there should tw a balance due to the 
said plaintifib firom D. A Co. not exceeding 
10,000e., and that the defendant should paj the 
said balance, then the obligation to be void :— 
Held, that, as between plaintifi and the defendant, 
the former had no rignt to appropriate to the old 
account of D. & Co. sums of money paid in ge- 
nerally by D. dk Co. subsequent to the 'date of 
the bond, but that these payments should go in 
liquidation of advances made afler that date. 
Sed quiere. Parr r. Howlin, 1 Alcock dt Napier, 
196. (/mA.). 8£6 

The appropriation of part payment of principal, 
or of payment of interest to a particular debt, may 
be shown by any medium of proof, and does not 
require an express declaration of the debtor at the 
time of the payment, to establish it; it may 
therefore be proved bv previous or subsequent 
declarations of the debtor, although the &ct of 
the payment must be proved by inaependent evi- 
dence. Waters v, Tompkins, 2 C. M. & R. 723 ; 
1 Tyr. & G. 137. 893 

Rutipts.'] — A receipt for rent, stipulating that 
acceptance of rent shall not operate as a waiver 
of a previous notice to quit, does not require an 
agreement stamp under 55 Geo. 3, c. 184. Doe 
d. Wheble «. Fuller, 1 Tyr. &, G. 17. 696 



DEED. 

Construction and Operation.] — Where a party to 
a conveyance is therein described as heir-at-law 
of J. P., a surviving devisee of the legal estate, 
such description is not evidence of the prior 
death of the co-devisees, or that such party ia 
heir of J. P., even against another party who ex- 
ecuted the conveyance. Doe d. Pntohard v. 
Dodd, 2 Nev. dt M. 838. 908 

As to premises. Doe d. Dearden v. Bladen, 4 
B. & Adol. 880 ; 1 Nev. &, M. 533. 903 

Under a lease ofall that part of the park called 
B. situate and being in toe county of O., and 



[DEED] 



2443 



BOW in the •ccupatioa of S., lying within certain 
specified ahntt&b, with aUhouaes, &c., belonging 
thereto, and which now are in the occupation of 
S., a house on a part which is within the abuttals, 
bat not in tlu^ occupation of S., will pass. Doe 
d. Smith V. Gallowaj, 5B.A Adol. 43. 902 

By the grant of a house all the fixtures pass ; 
fecos, where, by an enumeration of particular 
fixtures in tlie conveyance, an intention is shown 
to exclude other fixtures of greater value and 
importance. Hare v. Horton, 2 Nev. & M. 428 ; 
5 B. & Adol. 715. 90:) 

Under the word '' appurtenances," an easement, 
which has become extinct (as by unity of posses- 
sion), or which has no legal existence, though 
enjoyed de fiicto, does not pass. Plant v, James, 
8 NcT. & M 517 ; 5 B. & Adol. ^1. 903 

To revive an easement legally extinguished (as 
where there haji been ;unity of possession), but 
■nbsistingde facto, the grantor should use ex- 
press words of creation, or introduce the terms 
** therewith used and enjoyed." Id. 

The word "appurtenances" in a declaration 
of uses is not to be construed in its strict techni- 
cal sense, where, in creating the seisin to serve 
such jueAf the more general words, *^ ways used, 
wcapied, or enjoyed therewith," occur in the 
mm deed. Id. . 

In an action of covenant on an indenture of 
kase by tenants in common, where the moiety of 
sne of the plaintiflb is alleged in the declaration 
to have been conveyed to him by lease and re- 
Inae, but no profert is made of the deed of re- 



: — Held, on special demurrer, that the de- 
claration was on this ground defective ; the deeds 
of lease and release, although contained in the 
sime instrument, being separate and distinct 
deeds, and the latter deriving its entire efficacy 
from the common law. Pentland r. Healey, 1 
Aloock & Napier, 165. {(risk). 904 

G. having, in 1815, purchased the tithe of land 
of winch he was seised in fee, in 1816, by a set- 
tlement on tlie marriage of his son, conveyed the 
land to trustees for his son's wife, ** together with 
>11 profits, commodities, advantages, emoluments, 
bneditameDts, and appurtenances, to the pre- 
Bnses belon^ng or in anvwise appertaining, and 
the reversion, & c. ; and all the estate, right, title, 
interest, use, trust, possession, freehold, inheri- 
tance, reversion, possibility, property, challenge, 
dum, and demand whatsoever of him G. therein 
or thereto, or to any part or parcel thereof:" — 
Held, that the tithes did not pass by this convey- 
uce. Chapman v. Gatcombe, 2 Bmg. N. R.516. 

903 

Semble, that a limitation in a settlement to 
the executors and administrators of A., for their 
own use and benefit, unconnected with any other 
limitation showing more specificallv who are to 
take, is void for uncertainty. Marsnall r. Collett, 
1 T. & Col. 232. 903 

Semble, that words at the end of a deed, fol- 
lowing the **In cujns rei testimonium," Ac/foTm 
BO part of the deed. Pearse v. Morrice, 4 Nev. 
& M. 48 ; 2 Adol. dL Ellis, 84. 899 

Vol. IV. 22 



A lease for years of tin mines and toll tin, 
determinable on lives, was granted in 1797, and 
was surrendered in 1810. Another was then 
granted on paying a fine, part of which was paid 
for Uie surrender of the former lease. In 1796, 
the lessor executed a lease of the surface : — Held, 
that a recital in that lease was admissible in evi- 
dence against the lessee of the mines and toll in 
1810, for he cannot claim by any title prior to 
that date. Crease v. Barrett, 1 C. M. & R. 919; 

5 Tyr. 458. 902 

Where the truth appears by recitals in a deed, 
professing to convey a possibility, the partv con- 
veying is not barred by estoppel, although ne has 
received the purchase money. Doe d. Lumley v. 
Scarborough, 4 Nev. & M. 724 ; 3 Adol. A Ellis, 
2. 902' 

There may be an estoppel by matter of recital. 
Rowman v. Taylor, 2 Adol. A EUis, 278 ; 4 Nev. 

6 M. 264. 901 

Declaration stated the execution of a deed by 
plaintiff and defendant. The plea did not traverse 
the execution, but alleged new matter, upon 
which the replication took issue. The deed was 
put in at the trial, and its recital directly contrar 
dieted the new matter alleged in the plea: — 
Held, nevertheless, that the defendant was not 
precluded from submitting such matter of de- 
fence to the jury, inasmuch as the plaintiff had 
not pleaded the recital of the deed by wajr of 
estoppel. And the judge at nisi prius having 
treated such deed as conclusive, and directed a 
verdict for the plaintiff, the court granted a new 
trial without entering into the question whether 
the plea was or was not bad. Bowman v. Rostrow, 
4 Nev. & M. 552 ; 2 Adol. & Ellis, 295. 901 

A party to a deed of conveyance is not estopped 
by recitals contained in other deeds through 
which the title so conveyed is derived. Doe 
d. Shelton «. Shelton, 4 Nev. & M. 857 ^3 Adol. 
& Ellis, 265. 1 Har. & WoU. 287. 902 

If a man executes a deed, in which a former 
deed is recited, to which he is a party, but which 
he has not executed, he does not thereby bind 
himself by all the conditions of the former deed 
in the same manner as if that also had been ex- 
ecuted by him. Id. 

A deed of assignment of a mortgage by de- 
mise, to which the original mortgagor, who was 
tenant in fee, and the mortgagee, were parties, 
recited the mortgage deed : — Held, in ejectment 
by the executor of the assignee of the mortgage, 
that this recital afforded sufficient evidence of 
title without producing the mortgage deed. Doe 
d. Rogers v. Brook, 1 Har. <& Woll. 400. 903 



Confirmation and Alteration.] — The necessary 

Earties met to execute a marriage settlement, 
mmediatelv afler the conveying party had exe- 
cuted, and before the execution or assent by any 
other party, the father of the intended wife ob- 
jected to a clause ', the objection was acouiesced 
in, and the clause was struck out, and then the 
conveying party immediately re>executed, and the 



2444 

A0 M M M 



[DEED— DEFAMATION] 



other ptrtief eztcnted : — Held, thai the exeeiitioii 
of the deed was in fieri only when the alteration 
took place, and tfaat the alteration did not make a 
firesh atamp reoaisite. Jones 9. Jones, 1 C. dt M. 
721;3Tjr.8W. 906 

FrauduUfU or void.} — ^If A., betn^ in easiodj 
on a charge of felony, convey all his property in 
trust for his wife Gy life, and then m trust for 
his son, and on the next day A., be convicted of 
the felony, this conveyance will be void as 
against the crown. Morewood 0. Wilkes, 6 C A 
P. 144-~Tindal. 906 

Copyholds are within the stat. 27 Eliz. c. 4, 
which avoids all conveyances of any lands, tene- 
ments, or hereditaments, made for the intent 
and of purpose to defraud and deceive persons 
that shall afterwards jpnrchase the same. Doe d. 
Tunstai V. fiottriell, 5 B. ^ Adol. 131. 906 

Fraudulent conveyance of land. Butcher v. 
Harrison, 1 Nev. &,hi, 677 ; 4 B. & Adol. 129. 

907 

Qusre, whether a post-nuptial settlement made 
by a husband upon his wife at the instance of 
her friends, she having, at the time of her 
marriage, been entitled to legacies which were 
then in the hands of executors, and one of which 
continued to be so at the time of the setUement, 
is or is not a fraudulent conveyance within the 
Stat. 27 Eliz. c. 6, so as to be void as against 
creditors and subsequent purchasers for value? 
Doe d. Sweetland v. Webber, 3 liev. &. M. 586 ; 
1 Adol. A £Uis, 733. 907 

In an ejectment brought by a person claiming 
under a post-nuptial settlement against a subse- 
quent purchaser from the husband, declarations 
and admissions by the husband that he had re- 
«jeived valuable consideration from the purchaser 
are not admissible in evidence. Id. 

Other things,] — Where A. execntei a deed, 
and delivers it to B. as an escrow, to be delivered 
to C. on a certain event, possession of the deed 
by C. is prima facie evidence of the performance 
of the condition. Hare v, Horton, 2 Nev. A M. 
428 ; 5 B. & Adol. 715. 900 

A. having received monies from B., privately 
and without any communication with B., pre- 
pared and executed a mortgage to him for the 
amount A. retained the deed in his custody for 
12 years, and then died insolvent. After his 
death, the deed was discovered in a chest con- 
taining his title deeds :— -Held, that the deed was 
not an escrow, there being no evidence to show 
that it was executed conditionally, but that it 
took effect from its execution, and was good 
against A.'s creditors. Extern v. Scott, 6 Bim. 
31. 900 



Stanms.] — ^The counterpart of a lease for a 
term of years exceeding thirty-one years must, 
under 47 Geo. 2, e. 50, have a 2<. stamp on it to 



A leoffinent in co B s i d e t al ion ol natnal nfke* 
tion and alsoof 10s. does not, under 55 Geo. 3, 
e. 184, require two separate stamps of XL 15s. 
each. Dee d. Wheeler v. Wheeler, 4 Nev. A M. 
10 ', 2 Adol. A Ellis, 28. 910 

A., an architect employed to superintend the 
erection of certain buildings upon commission, 
bjr deed, aasii^ to D., a creditor, all the com- 
mission to which he then was or might tfaeiealter 
be entitled in respect of such superintendence, 
upon trust to pay C. a certain debt due from A., 
and to retain the residue towards satisfection 
of a certain debt due from A. to D., and in 
which deed are contained a power of attorney 
to receive the commission, and covenants that A. 
would pay the debt due to D., would not receive 
the commission, or revoke the power thereby 

Siven, or do any act by which D. might be hin- 
ered in leoeivmg payment ; that he had a right 
to assign, had not encumbered, and for further 
assurance : — Held, that this deed was not a m<Hir 
gage but an absolute conveyance of the com- 
mission money ; and that a conveyance stamp, 
calculated upon the amount of commission even- 
tually received, was sufficient Pooky v. Good- 
win, 5 Nev. & M. 466; 1 Har. A WoU. 567. 

910 

The transfer dntv on a mortgage is imposed 
only where no furtlier sum is advanced. Doe d. 
Bartley v. Gray, 4 Nev. A M. 719 ; 3 Adol. A 
Ellis, 89 ; 1 Har. A Well. 235. 910 

Where an additional sum is advanced, it is 
sufficient to pay the ad valorem duty on the sum 
advanced. lu. 

So, where the original mortgage is assigned to 
secure the mortgage money. Id. 

A mortgage for years was g^ven, before the 
passing of^he 3 Geo. 4,c. 117, to secure the pav- 
ment of 1502. Afler the passing of that act, the 
mortgagor and mortgagee joined in a conveyance 
in fee to a new mort^igee for 3502. The latter 
deed consisted of four skins, and had a IL 15s. 
stamp OD the first, with an ad valorem stamp of 22., 
and 11. on the second, third, and fourth ', — ^Held, 
that these stamps were sufficient. Id. 

Such a mortga^ is a transfer of the old mort- 
gage as to the original sum, and a new mortgage 
as to the further sum advanced, within the mean- 
ing of the 3 Geo. 4. Id. 

Quiere, whether a common deed stamp was 
necessary ? Id^ 

Semble, a mortgage to secure a principal sum, 
and also the costs of the trustees, and a reason- 
able sum by way of compensation to them for 
their trouble, requires onljr a stamp of such an 
amount as will cover the principal sum. Paddon 
V. Bartlett, 4 Nev. & M. 1 ; 2 Adol. A Ellis, 9. 

910 



DEFAMATION. 
Crenero^y.]— >The question in an action for 



render it available in evidence as an origind words, is not what the party using them eonsi- 
instrument of demise. Moore v. Macabe, 1 Alcock I dered their meaning, by any secret reservation 
A Napier, 47. (IrM), 910 in his own mind, but what he metnt to have «b« 



[DEFAMATION] 



2445 



dentaiod u their meaning by the putj to whom 
he Qllered them. Read e. Ambridge, 6 C. &■ P. 
308— Denman. 915 

Where a verdict hu been found with dama^ 
in an action of defamation for words imputing 
fekmj, the court will not stay the proceedings or 
grant a new trial, on the ground that since the 
trial the plaintiff has been convicted and attaint- 
ed of the same felony : a fortiori, where the de- 
fendant has been examined as a witness upon the 
trial of the indictment Syroms v. Blake, 2 C. 
M. & R. 416; 4 Dowl. P. C. 263; 1 Gale, 182. 

915 



PMicaHnm.'] — If the publication of a libel 
eonsists in merely selling a few copies of a pe- 
riodical^ in whicli, inter uia, it is contained, one 
question for the jury is, did the parties know 
what it was they were selling? Chubb v, Flanni- 
gan, 6 C. db P. 431— Park. 917 

On die trial of an action against the publisher 
of a monthly periodical for a libel contained in 
it, artidea published from month to month al- 
loding to the action, and attacking the plaintiff, 
aie lecehrable as evidence quo animo the libel 
was pnbliahed, and as showin^^ that the publisher 
eonsidered it as applying to the plaintiff. Chubb 
r. Westley, 6 C. A P. 436— Park. 917 

If the printer and the editor of a magazine be 
ioed for a libellous article contained in it, they 
an both liable for a libellous lithographic print 
which is contained in the work, though it was 
not printed by the printer, provided that the print 
is xefened to in the letter-press part of the 
libeUoos article. Watts v. Fraser, 7 C. d& P. 369 
— Denman. 916 

A defendant cannot justify a repetition of 
slanderous words, by merely showing that at the 
time when he repeated them, he stated that he 
had heard them from another, whom, he named ; 
he must also show that he repeated them upon a 
iQSti6ab]e occasion, and that he believed them to 
he tme. M'Pherson v. Daniels, 5 M. & A. 251. 

922 

If a defendant in -an action for verbal slander, 
al the time of speaking the slander, gave up the 
i>fmA of the person m>m whom he heard, this 
is no justification ; but if he did this, and at the 
trial prove thai he did in fact hear the sUnder 
fion that nerson, it will go in mitigation of 
dunacea. Bennett 9. Bennett, 6 C. Sl P. 5B6— 
AUenon. 9^ 

A letter, written by the defendant, and eon- 
tmniag a libel, was dated in Essex, and addressed 
to a person in Gkotland. It was proved to have 
keen in the Colchester post-office, and afler being 
marked there, to have been forwarded to London, 
QA iiB way to Scotland. It was nrodueed at the 
trial with proper post-marks, and with the seal 
broken, bat not by the party to whom it was ad- 
dressed : — ^Held, sufficient prima facie evidence 
of a publication in Essex, and that it had reached 
its address in Scotland. Warren v. Warren, 4 
Tyr. 850; ICfA.Sc R. 150. 616 

Cmi/idatUl Cranmiiiteatioiif.] — Confidential 



communications. Moore v. Terrell, 4 B. & Adol. 
871 ; 1 Nev. & M. 559. 918 

A defamatorv communication iVom A. to B. 
respecting the mmates of the house occupied by 
B. as his tenant, is privileged, when such com- 
munication is made bona fme in consequence of 
the relation of landlord and tenant, and without 
malice in fiict. Knight v. Gibbs, 3Nev. 6l M. 
467 ; 1 Adol. dk. Ellis, 43. 917 

A. was engaged to superintend the works of a 
railway company, and subsequently, at a general 
meeting of the proprietors, the engagement was 
not continued, but a former inspector was rein- 
stated. A vacancy subsequently occurred in the 
situation of engineer to the commissioners for 
the improvement of the river Wear, and A. be- 
came a candidate. B. worte to C, introducing 
D as a candidate, and C, having written to B., 
informing him that another person had suc- 
ceeded in obtaining the appointment, B. wrote 
an answer to C, reflecting on the conduct of A. 
whilst in the situation of engineer to the railway 
company. There was a subsequent election, at 
which A. was unsuccessful, in consequence of 
this letter having been shown. It appeared that 
B. and C. were both shareholders in the railway 
company, and that B. managed C.'s a&irs in 
the railway. B. had not been applied to for his 
opinion, and the letter containing the libel was 
writ)ten afler the termination of one'election,and 
before the other was in contemplation : — Held, 
in an action by A. against B. for the libel, that 
the letter was not a privileged communication. 
Brooks V. Blanshard, 1 C. & M. 779 ; 3 Tyr. 844. 

917. 

A., the tenant of a farm, required some repairs 
to be done to the fiurm-house, and B., the agent 
of the landlord, directed C. to do the work. C. 
did it, but in a negligent manner, and during 
the progress of it got drunk ; and some circum- 
stances occurred which induced A. to believe 
that C. had broken open his cellar door and ob- 
tained access to his cider. A., two davs after- 
wards, met C in the presence of D., and charged 
him with having broken open his cellar door, and 
with having got drunk and spoiled the work. A. 
afterwards told D., in the absence of C, that he 
was confident C. had broken open the door. On 
the same day A. complained to B. that C. had 
been negligent in his work, had got drunk, and he 
thought ne had broken open his cellar : — Held, 
that the complaint to B. was a privileoed com- 
munication, if made bona fide, and wiuout any 
malicious intention to injure C. : — Held, also, 
that the statement made to C, in the presence 
of D., was also privileged, if done honestlv and 
bona fide; andtutthe circumstance of its oeing 
made in the presence of a third person does not 
of itself make it unauthorized ; and that it was a 

auestion to be left to the Jury to determine from 
lie curcumstanoes, including the sWle and cha- 
racter of the langnace used, whether A. acted 
bona fide, or waa influenced by malicious mo- 
tives : — Held, also, that the statement to D., in 

Ithe ahsence of C., was nnauthorixed and offi- 
cious, and therefore not protected, although 
made in the belief of its tratli) if it were in pomt 



244G 



[DEFAMATION] 



of fact false. Toogood v. Spyring, 1 C. M. & R. 
181 ; 4 Tyr. 682. 917 

Defendant haviiijr some cause for suspicion, 
went to the plaintin 's relations, and charged him 
with thefl ; it appearing, however, that his object 
in making the communication was rather to com- 
promise Uie felony than to promote inquiry , or 
to enable the relations to redeem the plaintiff's 
character: — Held, that tliis was not a privileged 
communication, that malice must be implied, 
and that the existence of it was not a fact to be 
left for the consideration of a jury. Hooper v. 
Truscott, 2 Bing. N. R. 457. 917 

A letter to the manager of a property in Scot- 
land in which the plaintiff and defendant were 
jointly interested, related principally to the pro- 
perty and the plaintiff's conduct respecting it, 
out also contained a passage reflecting on his 
conduct to his mother and aunt : — Held, that the 
latter part could not be priyileged as a confi- 
dential communication. Warren v, Warren, 4 
Tyr. 850 ; 1 C. M. & R. 150. 917 

The meaning, in law, of a privileged commu- 
nication, is, a communication made on such an 
occasion as rebuts the prima facia inference of 
malice arising firom the publication of matter 
prejudicial to the character of the plaintiff, and 
throws upon him the onus of proving malice in 
fact, but not of proving it by extrinsive evidence 
only ; he has still a right to require that the 
alleged libel itself shall be submitted to the 
jury, that they may judge whether there is any 
evidence of malice on the face of it. Wright v. 
Woodgate, 2 C. M. As R. 573; 1 Tyr. & G. 12. 

917 

The defendant was a solicitor employed in an 
equity suit on behalf of the plaintiff, a minor. 
The plaintiff was desirous of changing his soli- 
citor, and informed tlie defendant of it. The 
defendant thereupon wrote a letter to the plain- 
tiff 's next frieno, (who was liable for the costs 
of the suit^, dissuading him from giving any 
directions m the matter, and alleging, among 
other observations on the plaintiff^s conduct, 
that a civil engineer, to whom the plaintiff had 
been apprenticed, had made him a present of 
his indentures, because he was worse than useless 
m his office : — Held, that this was a privileged 
communication. Id. 

The plaintiff, a dissenting minister, accompa- 
nied by a friend to the defendant, who, in an- 
swer to questions put by plaintiff and his friend, 
stated that his (the defendant's) wife had been 
cautioned against the plaintiff as a drunkard, 
&c. : — Held, that this was a privileged commu- 
nication, and that slanderous expressions used 
in it were not action