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lOO
V
.\ \
I
t
REPORTS
OF
CASES
ARGUED AND DETERMINED
IN
Witt Court of Htng'fif 3itntft.
WITH TABLES OF THE NAMES OF THE CASES ARGUED
AND CITED, AND THE PRINCIPAL MATTERS.
BY
JOHN LEYCESTER ADOLPHUS, of the Inner Temple,
AND
THOMAS FLOWER ELLIS, of Lincoln's Inn,
ESQRS. BARRISTERS AT LAW.
VOL. I.
CONTAINING THE CASES OF EASTER AND TRINITY TERMS,
IN THE FOURTH TEAR OF WILLIAM IV. 1834.
LONDON:
PRINTED FOR SAUNDERS AND BENNING,
(SUCCESSORS TO J. BUTTERWORTH AND SON,)
43. FLEET-STREET.
18S5.
Prinlcil by A. SMnriivooDti
JUDGES
OF
THE COURT OF KING'S BENCH,
DURING THE PERIOD OF THESE REPORTS.
Lord Dekman, C J.
Sir Joseph Littledale, Knt.
Sir James Parke, Knt.
Sir William Elias Taunton, Knt
Sir John Patteson, Kiit.
Sir John Williams, Knt
attorneys-general.
Sir William Horne, Knt
Sir John Campbell, Knt
solicitors-general.
Sir John Campbell, Knt
Sir Charles Christopher Pepys, Knt.
A 2
TABLE
OF
THE NAMES OF CASES,
REPORTED IN THIS VOLUME.
Page
Anderson, Doyle v. 635
ArdiDgtoD, Inhabitants of,
Rex v» 260
B
Baker, Borer t;. 860
, Dickson v. 853
Banbury, Inhabitants of, Rex
V. 136
Barber f. Waite 514
Baxter v. Pritchard iiSS
Bayley v* Drever 449
Biers and Another, Rex o. 327
Birmingham and Stafford-
shire Gas Light Company,
Smith V. 526
Bishop V. Hatch . 171
Auckland, Inhabit-
ants of, Rex V, 744
Blanchard, Bridges v. 536
Bloxam, Rex v. 386
Borer v. Baker 860
Botcherby and Another,
signees, v. Lancaster
Brazier, Johnson v.
Brearey, Mansfield v.
Breckon v. Smith
Bridges V. Blanchard
Bristol Poor, Governors
Wait
Brownell, Rex v.
Buck V. Lee
Bum V. Carvalho
Burney v. Mawson
Byers, Wilkinson v.
By water v. Richardson
As-
of, w.
Page
77
624
347
488
536
264
598
804
883
348
106
508
Campbell v, Fleming 40
Capem, Gale v. 102
Carnegie, Collins v. 695
Carvalno, Burn v. 883
Chambers V. Sadler 717
Cheadle Savings Bank, Rex
V. 323
A 3 Cheek,
TABLE OF CASES REPORTED.
Page
Cheek, Sbortrede v. 57
Chester, Archdeacon of, Rex
V. 342
Chuter v. Hatch 171
Clough, Williams v. S76
Collins V. Carnegie 695
Cooke, Jenkins v. S72
Cumberland v. Planch^ 580
Curtis V. Oreated 167
Page
Elgood, Saffery v.
Ella, Hanbury v, «•
Elliott, Winter v. 24
Ellis, Jones v. 382
Errington, Doe d. Poole v. 750
Eyre, Thorpe tf- 926
Daviet V. Williams 588
Davis, Reeve v. S12
Day V. Robinsor. 554
Dean v. James 809
Derby, Earl of. Doe d.
Foster v. 783
Dewes, Wright v. 641
Dickson v. Baker 853
Dimes, Morris r. 654
Dodd V. Holme 49S
Doe d. Foster r. Derby,
Earl of
Biass V. Horsley 766
• ■ Fleming v. Ford 758
^— -^^ Hornby v. Glenn 49
■ ■ OliTer p. Powell and
Pyne 531
Poole V, Errington 750
Shaw r. Steward 300
■, Smith and Payne v.
Webber 119
Sweetland r. Webber 733
Tatham, Wright v. 3
Downes and Wife, Executrix
of Vaughan, Marston v. 31
Doyle V. Anderson 635
V. Stewart 635
Drerer, Bayl^ v. 449
Enden v. l^tchmarsb
Edmunds, Whitaker i^
Fazakerley v. Ford 897
Featherstonhaurii, Franklin
V. 475
Fenton v. Swallow 723
Ferguson v. Sprang 576
Fleming, Campbell v. 40
Ford, Doe d. Fleming v. 758
, Fazakerley v. 897
Fowler, Hex v. 836
France v. Parry 615
FrankiincFeatherstonhaugh 475
Fraser v. Swansea Canal
Company 354
Freeman ». Moyes 338
Gale V. Capem 102
Gibbs, Knight v. 43
Gibson, Perry v. 48
Gifford, Richardson and An-
other. Executors, v. 52
Glenn, Doe d. Hornby v. 49
Goodwin v. Lordon 378
Gosforth, Rex v. 226
Great Hambleton, Rex v. 145
Created, Curtis v. 167
Gwineor, Rex v. 152
Gymer, Hayslep v. 162
H
Hanbury v. Ella 61
Hatch, Bishop v. 171
, Chuter v. 171
Harvey, Shaw v. 920
Haycock,
TABLE OF CASES REPORTED.
vu
Page
Haycock, Rose v. 460
Hayslep v. Gymer 162
Hewett, Saltmarshe v. 812
■ y Skrine v. 812
Hey don xk Thompson 210
H(xlgkinson v. Hodgkinson 533
Holme, Dodd v. 493
Horsley, Doe d. Biass v. 766
Hungerford Market Com-
pany, Rex V. (Ex parte
Yeates) 668
Same, Rex t7. (Ex parte Eyre) 676
In re Elmy and Sawyer 843
King, Gent. One^ &c.,
and Tredwell 560
Wright and Pole 621
Iver, Rex v. 228
James, Dean v.
809
Jenkins v. Cooke
372
Johnson 0. Brazier
624
Jones V. Ellis
382
9 Phillips V.
333
V. Reynolds
384
V. Tyler
522
K
Knight V. Gibbs
43
Lainson v. Treraere 792
Lambert, Lord Middleton v. 401
Lancaster, Botcherby and
Another, Assignees, v, 77
Lee, Buck o. 804
V. Nixon 20 1
Liverpool Exchange Pro-
prietors, Rex V. 465
Lordon, Goodwin v. 378
M
Page
Mansfield v. Brearey 347
Marshal of K. B. 377
Marston ^.Downes and Wlfe^
Executrix of Vaughan 3 1
Matlock, Rex v. 124
Mawson, Burney v. 348
M'Cormack v. Melton 331
Melton, M^Cormack v. 331
Memoranda 1
Middleton (Lord) v. Lambert 401
Mills V. Revett 856
Moore v. Taylor 25
Morris v. Dimes 654
Moseley, Summers v. 48
Moyes, Freeman v. 338
N
Newtown, Rex v. 238
Nixon, Lee v. 20 1
Nockolds, Rex v. 245
Noy V* Reynolds 159
Nurse, Wills, Gent, One^
&c. V.
65
O
Oundle, Lord of Manor of^
Rex V. 283
Palfrey man, Sadler o. 717
Parry, France w. 615
Passman, Rex v* 60S
Perry v. Gibson 48
Pedly, Rex v. 822
Pettet, Rew, and Another, Ex-
ecutors, V. 196
Phillips V. Jones SSS
Planch^, Cumberland v. 580
Porter, Wylde v. 742
A 4 Powell
VIU
TABLE OF CASES REPORTED.
Page
Powell and Pyne, Doe d.
Oliver u. 531
Promotions, &c. 1
Pritchard, Baxter v. ^56
Pyne, Gent, One, &c., Tur-
ner V. 34
Q
Quainton, Rex v. 133
R
Raikes, Thompson v. 863
Reeve v. Davis 312
Revett, Mills v. 856
Rew and Another, Executors,
V. Pettet 196
Rex r. Ardington, Inhabit-
ants of 260
V. Banbury, Inhabitants
of 136
w. Biers and Another 327
V. Bishop Aukland, In-
habitants of 744
V. Bloxam 386
— — r. Brownell 598
o. Cheadle Savings Bank 323
v.Chester,ArchdeaconorS42
V. Fowler 836
V. Gosforth 226
— V. Great Hambleton, J 45
— — V, Gwinear 152
V. Hungerford Market
Company, (Ex parte Eyre) 676
V. Hungerford Market
Company,( Ex parte Yeates) 668
V, Iver 228
V. Kingston upon Hull,
Justices ol^ 880
V. Liverpool Exchange,
Proprietors of 465
V. Matlock 1 24
— - V. Newtown 238
■ V. Nockolds 245
— — V. Oundle^ Lord of
Manor of 283
Rex V. Passman
V. Pedley
V. Quainton
— V. St. James's, Clerkeu-
well, Churchwardens of
V. St. Mary, Lambeth,
Churchwardens of
V. St. Pancras, Church-
wardens of
V. St. Saviour's, South-
Page
603
822
133
317
346
80
wark. Churchwardens of '380
— 1\ Seward 706
— r. Thruscross 126
— V. Walsh 481
— V. Wilson 627
— v. Witham Savings Bank 321
— V. Woolton 232
— w. Wright 434
— V. York, Archbishop of 394
— V. York City, Justices of 828
V. Yorkshire, West Rid-
ing, Justices of (Aire and
Calder Navigation v. Lake
Lock Railway Company)
V. Same (Warms worth
V. Doncaster)
Reynolds, Noy v.
, Jones V.
Ricliardson, By water v.
Richardson and Another,
Executors, v. Gifibrd
Richardson, Wardroper v.
Robins, Utterton v.
Robinson, Day v.
Rogers v. Smith
Rose V. Haycock
Rowe, Wool way f.
S
Sadler, Chambers v.
' V, Palfreyman
Saffery v. Elgood
Saint James's, Clerkenwell,
Churchwardens of, Rex 7^. 317
Saint
563
606
159
384
508
52
75
423
554
772
460
114
717
717
191
TABLE OF CASES REPORTED.
Page
SaiDt Mary, L&mbeth, Church-
wardens of^ Rex V, 34'6
Saint Fancras, Churchwar-
dens o^ Rex V. 80
Saint Saviour's, Soutbwark,
Churchwardens of, Rex B. 380
Salter v. Slade 608
Saltmarshe v. Hewett 812
Saunders, Thomas v. 552
Seward, Rex v. 706
Shaw V. Harvey 920
Shortrede u. Cheek 57
Serine D. Hewett 8] 2
Stade, Salter v. 606
Smith t>. Birmingham and
Staffordshire Gas Light
Company 526
Stoiih, Breckon V. 488
Smith, Rogers v. 772
Spranj(, Ferguson v. 576
Steward, Doe d. Shaw v. 300
Stewart, Doyle v. 6S5
Summers, Moseley v, 48
Swallow, Hayley and Kiloer
FentOQ V. 723
Swansea Canal Company,
Fraser v. 351
TaUersall, Whitehead v. 491
Taylor, Moore v. 25
Thomas v. Saunders 552
Thomas v. Williams 685
Thompson, Heydon v. 210
V. Raikes 863
Thorpe 77. Eyre 926
ThruscrosB, Rex v. 126
Titchmarsh, Kaden v. 691
Tremere, Lainson v. 792
Tummon, Wardw. 619
Turner ifcPyoe,Gent.One,&c. S4
Tyler, Jones v. 522
Page
Utterton v. Robins 42S
W
Wait, Governors oF Bristol
Poor V. 264
Waite, Barber v. 514
Walsh, Rex c. 481
Ward 11. Tummon 619
Wardroper v. Richardson 75
Warrants read in Court 122,377
Webber, Doe d. Smith and
Payne v. 119
, Doe d. Sweetland v. 733
Whitaker v. Edmunds 638
Whitehead v. Tattersall 491
Wilkinson v. Byers 106
Williams v. Clough 376
, Dsvies V. 588
Thomas v
Wills,Gent.One,&c.RNBrse 65
Wilson, Rex v. 627
Winter V. Elliott 24
WichamSavings Bank, Rex V. 321
Woolway V. Rowe 114
Wootton, Rex v. 232
Wright i>. Dewes 641
Wright V. Doe d. Tatham 3
Wright and Pole, In the
letter of 621
Wright, Rex v. 434
Wylde V. Porter 742
York, Archbbhop of, Rex v. 39*
York City, Justices of, Rex v. 828
Yorkshire, WestRidinjj, Jus-
tices of, Rex I!. (Aire and
Calder Navigation v. Lake
Lock Railway Company) 563
Same, Rex v. (Warmsworth
p. Doncaster) 606
TABLE OF CASES CITED.
"'}
2lnsL^2U
- 3 £uUt S20.
AnoT of St Edwards v. The Bailifii
SouthuDptOD
Aberdeen v. Newland
Ackeridge v, CoDbam
Aldenncn«idB»«e«e.ofBu.y..Ev««{»J^^*|'i.«^|; ,S.7S7t
Aldridge v, Metnard
Amner v. LodingtoD
Andrews o. Smmot
Angel o. Draper
AnoBymons (Arrest)
(Avowiy)
Page
- 418
- 816
- 774
455
6 Vet.jun. 418. - - 518
SRep,96b.2LeoH.92.5Leon.S9, 302
- (Baron and Feme)
- (Certiorari)
-(Entry. Demand)
- (Fi. Fa. Teste)
- (Grant^
fJeofidu)
Plea. Bond)
Arbuckle v. Cowtan
Arlincton, Lord» o. Merricke
Amcu f».Bean
Ashbrittle v. Wyley
Ashby V, Asbby
Aslin o. Parinn
Atkin V. Acton
Attorney Gfeneral o. Downing
■ V, Henderson
" o. Parsons
Ayre v. Craven
Baglebole v. Walters
Baflot, Lordy o. Williams
Bimey o. Culverwell
Baker v. MiUs
Barker «• Bishop of London
■■■ft Richardson
B
' V, Weedon
Barnes v, Crowe
Barney v. Tubb
Barough v. White
2BrownCk.C.297. - -596
1 Vem. 399. ... 954
Dowl. P. C. 157. • - 580
Godb. 110. p/. 189. - - 271
\ORep, S\a, - - 503
5.0.<f C. SU^noten. - -838
3l>y<T, 348 a. - - - 771
Cro.EUz. 174. - - - 936
JDyer, 30 b. pi. 809. - - 661
Godb.l94. - - - - 777
1 Skierfin^ 50. />/. 13. - - 796
3^. 4* P. 381. - - - 178
2 Wm. Sound. 409. - - 796
8 Bing. 87. ... 935
1 Sir, 608. - - - 130
3 M.4r P' 186. - - 489
8 Burr. 665. - - - 9
4 C. 4- P. 808. - - - 687
Amb. 573. - - - 433
3 i4fii/r. 714. ... 395
8 Cr. 4* J. 879. - - - 664
Mich. Term, 1834. 8 i4. 4* ^. - 697
3 Camp. 154. - - - 511
3-B. 4- C.255. - - - 217
6 B.^ C. 448. - - - 887
8 CVo. 4'ikf. 415. - - -860
Bamet, 147. - - - 860
4B.^Md.579. - - 541
4 Tyr. 860. 1 Cro. M. 4* H* 396. 533
1 Vet.jun. 486. - - - 433
8 /T. ir/. 353. ... 352
4 J9. 4* C.385. - - 116, 738
TABI£ OP CASBS CITED.
B*tCi».Dnul7
Bub, Earl of, v. Bashatm
fia^nham e. Manhewi
B«d c. Shepherd
BaDcbamp o. Tonifciiii
Beckman «. Rve . . .
Bell V ^Jinon
BcDiiet D. Apperley ....
Bett V. Arglm - . -
BeTHB.Uadidl - . .
ftJfood B. Woy and Wife
Btachasper's Case ...
Blakemore r. Glamorgan Canal Navigation
Blaad r. Uotdef ...
BlodweU 0. Edward*
Boddington v. Aberneth;
Boltoo V. L'annoij . -
Boucne a. Taylor
Bovrkton V. Hardy • . .
Bonman c. Tavlor - - -
Bnc« 0. Ductieu of Marlborough
Brard r. Ackerman -
firathford V. Buckingham
Bmit B. Haddon ■ . •
Briggt V. WUkinioD
Britten c. Wait - • -
Jrooke's Abridgment - -
Cro.Jae. 199.
3 TamU. 141 .
Cra.Elkt.m
».£>«. SW.
« «. $ C. 65a
Broderick v. Broderick
Brome's (Sir J.) Case -
Brooke e. Clarke
Brook'* Cmc
Brown d. Diinnery
e. Heathcote
p. Wi ndsor
fiO'Bn p. Whistler
Br^t V. Witfaen
Bocklo. Scarth
Buckler o. Millerd
BuUer'iCMe
Bidwer o. Bulwer
tturgE«s V. Clement*
Burleigh d. Stoic
Burnett v. Lynch
Buitr.Hoihwell
Butcher «. Eaito
Butler and Baker** Cxe
Butlin c. Barry
Butt'* Ca*e
^field «. Stroet
SCV.j-Sf. 401. . .81
i Stra. IIA9. - . . t
iW.Miass. - • I
Ifov 13. - - . . 7.
I Jiiylne 4 JTem, 169. - .51
9 Btp. 98 «. . - s
Cro. ESz. 609. ... 7'
S B.^C. 776. - - 91
I Vent. 879. - - 9
1 Ld.Ra!fm.136. • . . T.
iO Eatt, 189. - - - S
Crv.Elix.6*1 - • .61
Mkk. Term. 1 B34. SA.^E. 'Si
9 P. W. 491. - - . 9J
a Etp. If. P. C. 190. - - ;
Cro. Jan. 905. . . - I
Oro. Jac. S6S. - - . a
7 J.^CSO. - - - S
a B.^ Ad. 915. - 186, eae, s
Atmeient Dentemu, pt.at. .4
Charge, pi. 39. - - I:
CoFporationt, pi. SO. . . s
Biitreu, pi. es. ■ - - 1;
Qiiare Inpcdil, pi. S9. - Si
Rclomc de Briefe,fi. 86. - 7'
ToU,pl. I. . '4
Warren, pi. 7. - - . 6i
1 P. Wmt. iSB. - - - 4i
4 i>c>n, 96. ... 71
I B.^ Aid. 396. - - S\
Foph. 125. • - - 8:
Hob. 908. (ed. 1784). . . 7<
1 ^fjt. 160. - - - 8:
JKWf, AT. i". 524. . .7
1 CW. 4 J. 2a - . - 4
8J?.f C.S93. . • 6
5 M.^ S. 193. . . . S
1 Jto&'f Ap. 995. - - - 7
SFetUr. 107. - - - 7
19 Tin. Abr., Beplmn,E.a.pi.7. 2
9 J?. 4- ^H. 470. - - 9
*M.^S. 306. - - - 5
aB.4^C.S6. - - - - 2'
SB.^C.SB9. -
1 Lufic. 140. 1 Z^. Baym. 343. 3
I Doi^. 296. - - - 4
3 Sep. 96. a. • - - 2
xu
TABLE OF CASES CITED,
Call v. Dunning
Calvert v. Gordon
Calye's Case
Canham v. Fiak
Carey o. Matthews
Carleton r. Griffin
Carpenters' (Six) Case
Carpenter v, Mamell
Caryalho v. Bum
Cazenoye o. Vaughan -
Chanter v, Glubb
Chatfield o. Ruston
Cheetham v. Hampson
Christie o. Lewb
Churcher v. Wri^t
Claises V. Sherwin
Clan o. Blackstock
In re
Clarke v. Clarke
Cockbum v, Harvey
Colebrooke v. La^ton
College of Physicians v. Levett
— ^^^^^— — ^ V. West
Collins V. Pkx>8ser
Colman v. Wathen
Compton V. Bedford
Cone V. Bowles
Cook V. Caldecott
V, Munstone
V, Remington
Cooper V. Araos
Corbet v. Hill
Corbould o. Broadhurst
Cotterel v, Hooke
Cotterell v, Apsey
Cox V. Thomason
Crisp V. Bunbury
Crompton's Case
Orook V. MTavish
Crosbie o. M^Doual
Crowley o. Cohen
Crowder v. Rooke
Crowther v, Ramsbottom
Culley V. Spearman
Curtis V. Bourn
V. Vernon
Cutter V, Powell
C
- 4 Eiui, 53.
- 7 B.^ a 809. -
- 8 Bep. 32. a,
- 2 Cro, ^ J. 128. -
- 1 SM. 191.
- 1 Burr. 549.
- sBep,l46.b. -
- 3 B.f P. 40.
- 4 B,Sf Ad.3^2. -
- \ M.^ S,6,
- 9 J?. 4- C. 479. -
3 B/^C, 863.
- 4T.B. 320.
- 2 i9. 4- J9.410.
- Cro, Jac. 443.
- \2 Mod. 343,
- HoU'tN,P.C.A14.
- 3D.^R.262.
- 6 Etp. 61.
- 2 B.^ Ad, 800
- 4B,iAd. 578.
- 1 Ld, Baym. 472.
- 10 Mod. 553,
- I B,^ C, 682.
- 5T,B, 245.
' liV, BL 362. -
- 1 SaUk, 205.
- M.^ M, 522. -
- 1 New Rep. 351,
- 6 3foJ. 237. 2 iSW,
- 2 Ciir. 4- P. 267.
- Cro. EUz, 609.
- 1 itf. 4- 22o6. 189.
- Doug, 97.
- 6 Taiin/. 322. -
- 2 T^ru;. 411. 2 CVo.
- 8 B'mg, 594.
- 3 Dyer^ 254 a.
- 1 Bing. 167.
- 4 Vet.jun, 616. -
- 3 J9.4'i4(/. 478.
- 2 JFOr. 144.
- 7 T. 2?. 654.
' 2 H. BL 386.
- 2 Mod. 61,
- 3 71 J?. 587.
- 6 T.R, 320.
Page
- 14
- 216
- 523
- 541
- 529
- 428
- 277
- 807, 892
- 884
- 789
- 150
- 151
- 824
- 315
777
- 788
- 204
- 561
- 367
- 934
626, 815
701
- 701
- 205
- 584
- 458
- 832
- 459
336
498. - 796
- 490
558
935
- 797
- 520
^J.498. " 341
- 324
- 762
- 363
- 428
- 625
- 774
- 271
- 752
- 755
- 51
- 687
Dalbiac v. Dallnac
Darwin v, Upton
Davis V, Dale
— V, Eyton
D
16 Vet.jun. 122. - - 307
2 IVnu. Saund. 175 a. iioto(2). - 541
1 ilf. 4'Jlf.514. - .49
7 Bing, 154. - - - 937
TABLE OF CASES CITED.
Xlll
Oeering v. The Earl of Winchelsea
Denn dem. Surges v. Piirvis
dem. Nowell v. Roake
DeroD V, Watte
Dixon o. Adams
Doe dem. Shepherd o. Allen
Woodcock r. Barthrop
I^pge V. Bell
— ^— Mitchinson 0. Carter
Harding V. Cooke
Lawrie v. Dyball
Poole V. Errington
Lulham r. Fenn
Smith V. Gfalloway
Grimes v. Grooch
— — — ^ Bennington o. Hall
Jones V. Harrison
— ^— Wigan V. Jones
Long »• Laming
Harris v. Masters
Gill V. Pearson
Dean and Chapter of Rochester
V. Pierce
Shore v. Porter
Winckley v. Pye
Reade v, Reade
Marsack v. Read
Nowell V. Roake
Morris V, Rosser
Foley V. Wilson
Dormer's Case
Dorrington v, Sliper
Doyle o. Dallas
r. Douglas
Drayton v. Dale
Driver dem. Frank v. Frank
Duncan v. The Proprietors of the
Surrey Canal
Dummer v. Pitcher
Dunstan and Wife v, Burwell and others
Dunston r. The Imperial Gas Light Com<
pany ...
Duppa V, Mayo
Dutton «. Morrison -
2 B,^P. 270. -
1 Burr, 326.
5 B.4rC. 720. -
1 Doug, 92.
Cro. Eliz, 538. -
3 TaunL 78.
5 Taunt, 382.
5 r. J?. 471.
8 T. R. 57. 300.
7^tfig.346.
1 Afo.j-P. 330. -
1 Mo, ^ Rob. 343.
5 Campbell, 19a -
5 B,^ Ad, 43.
3 B.^ Aid. 666,
16 East, 208.
3B.^ Aid. 764.
10 J9. 4- C, 459.
2 J9tirr. 1100.
2B,4rC, 490.
- 6 Eatty 173.
\ 2 Campbell, 96,
' iT.R. 13.
. 1 Esp, 366.
. \ T,R, 118.
• 12 East, 57.
• 2 Bmg. 497. 6 J9m^. 475
. 3 East, II.
• 1 1 East, 56.
5 Rep, 40 b,
' 1 iTff^. 499.
. 1 M. 4- J?o6. 48.
. 4B.^Ad,54i, -
2 ^. 4- C. 293.
Page
- 205
- 754
- 594
- 458
- Ill
- 548
- 291
- 54
- 821
- 121
- 611
- 750
- 754
- 665
- 576
- 290
- 764
- 293, 954
- 916
- - 771
- 754
- 531
- 754
- 548
- 594
- 752
- 594
- 180. 931
- - 548
- 771
- 610
- 665
- 635
- 368
{
}
3M. ^ S, 25. S, C. m error,
6 Price, 4\,2 B, Moore, 519. 908
- 528
- 385
- 73
- 528
- 428
- 458
3 Stark. N, P, C. 50.
3 -». 4- Ad. 347.
1 Wils. 224.
' XsB,^ Ad. 125.
. 1 Wms, Saund. 277. c.
17 Ves, 198, 199.
E
Earratt v, Burehart - - - 3 C. 4> P. 381. -
East London Water Works Company »• 1 4 n^ 283.
- WiOes, 131.
- 5 Rep. 14. a.
- bT.R. 140.
- 8 J9. 4- C. 700. -
. 8 Bmg. 83.
- 2J?iirr. 1190
Bailey
Eaton V. Southby
Ecclesiasdcal Persons' Case
Eckhardt v. Wilson
Edge r. Ptoker
Elwood V. Pearce
Enys V. Donnithome
Evans's Case
- 537
- 528
- 647
- 439
- 807
- 373
. 860
- 206
- Lord Hal^s note on Co. Litt. 45 b. 502
TABLE OF CASES CITED.
Furdaiiii dem. Fowler r. Shuadtle
Mrdotli D. Ouniejr -
Falkener v. Chc
Fuuhaw V. More
Farnworth ir. Packwood
Farrant v, Thompwn
Fawcett e. Fowlu -
FkMkerlej «. Ford -
Fereday b. Wightwick
l^U Herbert' 5 Abridgmeni
FlarCy u. Odium
Fleetwood*!, Sir Genrd, Cue,
Fletdier e. Farrer
». Wilkin*
Flight V. Salter
FUDt V. Fleoijug
Flook p. Jonei
Forty V, Imber
Fowke* e. CbUde
FoxbII r. Banks
Fraier e. Manh
Freciton s. Crouch
~ o. Stanrord
French B. Wiltshire
Gwe D. Acton
Gah*ay, Lord, d. Matthew
Oibbom c. Hoqicr , •
Goddard's Case
Godin B. Ferrii
Gordon 1>> Enit India CompuDy
Don t>. Lord Nugmt
Or«y t>. Shilling
Cami. S77.
- SOS
16 Fei. I4B.
- 458
1 GL i Jam. 907. .
■ 808,811
1 AH. 184.
■ aM
8D.*J?.U5. -
- 48S
aS./^AiLB*l.
■ 681
9 £>v- 74'
- 569
9 AoM, Ci.J;a>i.S5S.
Bmi^tCm. Bank. 139.
- 477
Bwifi Ofc Jllnrf. 30a -
808,811
/■eoi, 169. -
- 384
SA.^.C. 951.
I Alk. 103.
- 64B
3 a * '^rf. 592.
- 681
lG/.*J<m.»i8.
- 808
3 JiUT. 1996.
- 757
9Ji«g.6«S.
696, 8 1«
l.flnHM, a. Ot. 195. 9r.J7.491. 8B9
SSns. ij- r. 99. 9ew.781.
- 454
1 Stont. J»r. P. C. 949. -
. 694
5 B. ^ .Uf. 896.
- 374
7S.*C.394.
■ • 484
4Simem,i\9. -
- 905
4£iu(.107.
- 540
1 Aiui. ^ ^. 50.
- 577
Avi>wri/,j>l.SSi.
- 371
Eieetumtjtrma. 9.
3 T.il. 681.
- 756
- 757
- 178
[8 Att. 171 a. £•«<<: r««i ^ Ar.
199.
. 934
1 «<*. Ab. 875.
- 803
6 j;«rt, 985. 988.
- 981
I B.^ Ad. 673. • 186
.696.815
iB.J^Ad.'tS. -
- 693
13 B. Moon, us.
- 935
6 Eatt, 434.
- 968
3BMltt.i60. Cn>.Jat.S9e
- 777
SB.^AId. 536.
- 75
ISi'oji, 258. -
- 314
Cn,. EUx. 499.
- 915
&O.SU!. 355.
- 915
^iwir. 67,99.
- 778
1 SM. 39T.
- 303
1 Cam). 403.
9B.4Ad.7Si.
- 104
696, 815
aStp.4b.
- 798
SH.BI. 11.
• 363
7T.A99B. - - .
808,8)1
7T.«.9.
- 367
sB.^.Ad.sa. .
. 169
2Jr.4J.sa
- 727
TABLE OP CASES CITED
XV
Greco V, fie&rne
— r. Miller
Grimman v. Legge
GroeoTelt v. Burwell
GroTet V. Cowham
Guest o. Willasey
Giiier'tCase
Gvillkm V. Barker
- 3T.R.S0\,
- sB.4rC.524.
- 1 Ijd.Raym. 454.
- 10 Bing. 8. - -
- i Bing, 429. 3 Bing. « 1 4.
- \Dyer^46b.
- 1 Price^ 277.
Page
- 59
- 61S
- 687
- 271
- 187
- 427
- 445
- 646
H
Hall r. Smith . . .
Hambleton v. Veere ...
Hancock v. Wehh and another
Hands r. James - -
Hanslip •. Coater . . -
Hannan a. Andenon . . -
— V. Fisher . . -
Harper 9. Carr . . .
Harris a. Watson • . -
Harrison r. Bamby ...
r.Wood
Haasdls a. Simpson • « -
Hareipll v. Hare - -
Hsiys a. Trotter - • -
Heath r. Sansom ...
Heatherle7,dhn.Worthington a. Weston -
Hedges a. Sandon • • .
Her&rt a. Wilcox - . -
Heudebourck v. Lengton
Hewlins a. Shippam
Higden a« Wilfiaroaon
Hinias a. Woolcott
Hignmore v. Primrose
HiUv.Famell
r. The Manchester Water Works
Company
Hindle r. Shackleton
Hitchin a. Campbell
Holbird a. Anderson
Holder dtm* Sulyard r. Preston
Holdesworth a. f^roctor
Holdfast dtm. Woollams ▼. Cbpham
a.Pardoe
Holland a. Hopkins
— ^— a. Pdham
Hollowmy*s Case
Honner a. Morton
Hooper a. Till
Horn V. Ivy
Hosier a. Siearle
Hoskins a. Knight
Hoogham a. Sandys
Howell a. Maine
Huggins a. Durham and Wife
Hall Dock Company a. La Marche
Hulle a. Heightman
;}
1^.4-C.407. - - - 104
2 Wmi. Saund. 171c. - - 559
1 Stark. N. P. C. 347. - - 10
SCamym^tRep.SSl. - ^12
2 2>a. 87. - - - 610
2 Camp. 245. - - 925
1 Cowp. 125. ... 458
7r.jS.274. - - - - 281
Peak0*t H. P. C. 72. - - 109
5 7.jR.246. - - - 752
8J9tfig.671. ... 490
1 D<mg» 89, note. - • 46)1
CVo.«7ac. 510. ... - 769
5i9. 4*^1^1107. - -478
2 B.^ Ad. 291. . * . 640
2 Wilt. 252. . - - 752
5 T. R. 439. - - - 216
6 Bmg. 205. - - 950
IM.^M. 402. - - 746
5 J9. 4* 6^221. - - - 540
5 P. Wms. 159. ... 306
5J9. 4-C.760. - - - 859
5M.4rS.65. ... 489
2J9.4-C.45. - . . 469
2B./tAd.5i4. - - 798
1 Taunt. 556. - - - 478
2 W. Bl. 779. 827. - - 9
5 T. R. 235. - - - 955
2 Wilt. 400. ... 290
Cro. Jac. 188. ... 774
1 T. R. 600. - - - 290
2 W. BL 975. ... 429
2 ^.4 P. 243. ... 490
iCr.^J. 580. - - 577
1 Mod.15. - - - 799
5 Rutt. 72. ... 307
2>oag. 199. «ofc(l). - -479
1 Fent. 47. 2Keb. 567. 1 Mod. 18. 528
2JJ.4-P.299. - - - 798
lM.4rS.24S. - -649
2 5tm. 95. 149. - - 596
3 J[^. 403. Seltv. N. P. 288. - 69
2 5^r. 726. - - - 75
8J?.4-C.52. - - -361
2JS:a*/, 145. - - - 687
X^l
TABLE OF CASES CITED.
Hunt V. Mortimer
Hunter v. Rice
Hurrell v. Wink
Inglis V. Vaux
In re Clark
Rix
Ship Warre
I
10 B. 4- C. 44. -
1 5 East, 100.
8 7Vliifi<.369. 2 B.M. 417,
Page
- 935
- 951
- 268
3 Camp, 437.
3D.^E.262. -
4D,^R.552.
8 Price, 269. note.
- 27
- 561
653
- 889
James 0. Green
Jaques v, Cesar
V. Nixon
Jemmot v. Cooly
Jeokini
^— — V, Rejmolds
Jermin v, Randall
Jewell's Case
Jonas V. Greening
Jones V, Bird
V. Curry
o. Davies
V, Smart
Kensington, Lord, o. Mansell
Keener. Parsons
Kerro.Willan
Kettle V, Hammond
Keyes «. Bredon
Kimp 9. Cniwes
Kinnersley o. Orpe
Kind «. Ammeiy
Elm; o. Skeffington
Kirkw V. Butts
Kitchen v. Bartsch
■ o. Campbell
Knowles o. Mlcnel
K
6 7*. i?. 228. - - - 882
2 Wms.Saund. 101. - - 611
1 T.i?.280. - - - 613
1 Lev, 170. 1 Sound. 112 b.
Sid. 223. 334. iSir T. i^aym.
135, 158. 1 Keb. 784, 915.
2 jr«6. 20,184,270,295. -
Cent. 2f Co. 26, p. 67.
3 ^r. ^ J9. 14. 6 J9. 3f. 86.
Latch. 125. - - -
1 R0U.R.4OB.
5 T. R. 529.
5B.^Ald.S57
1 SuHtnst. 66.
1^.4-C.143.
1 r. J2. 48.
769
- 757
- 59
- 798
- 802
- 351
- 497
- 594
- 604
- 702
13 Vet.jun. 240. -
2 Stark. N. P. a 506.
6M.4rS.l50.
Co. Bank. Law. 89.
IJM.705.
2 2:rtt/t0. 1575.
Doug. 511.
Uutt. 23. -
1 Cro. 4r M. 365. 3 Tyr. 318
2B.^ Ad. 736. note h. -
7 East, 55. - - -
3 Wilt. 304. ...
15£a«<, 249. . - -
- 289
- 336
- 511
- 458
- 757
- 193
9,787
- 768
- 620
- 626
- 568
- 217
- 489
Lakin and others. Executors, v. Massie
Lamb v. Bunce - - -
Lamey v. Bishop . . .
Lampet's Case (Case there cited, 1 7 Eliz.) -
Lampon v. Corke . . .
Langford v. Nott
Langley v. Haynes
Laroche v, Wasbrough
Law V. Skinner
Lee V, Munn
4 7>r. 859.
4M.^S. 275.
4B.^Ad.479.
10 Rep. 51 a.
SB. 4 Aid. 606.
iJac.^W. 291.
" 555
- 693
- 65
- 303
- 798
- 719
{Afoore, 502. Hawk. P. C. b. 2.
C. 25. S. 104. ... 329
- 2T.R. 737. - - - - 532
- 2W.BL 996. - ... 462
- 8 Tavmt. 54. - - - 168
TABLE OF CASES CITED.
xyu
Lempriere v. Paaley
Lewes o. Ball
Lewis V. Armstrong
' ^— ©. Clarges
• V, Lewellyn
-^ • V, Price
Uj^Ds r. Inge
LiUey v, Heches
Loaring v. Stone
Lock 9. Norborne
Longe V. Atkins • • •
Lowndes v. Home and othera
Lucas V, Dorrien
— V. Nockells (Ezch. Chamber)
». Same (H. of Lords)
LysoQs V. Barrow
Page
2T.JB.485. - - -
- 885
I Sid, 97. - . -
796, 80S
- .
- 7
13 Mod. 345.
- 791
I Tum.^ Run. 104.
- 595
2 WvM.Saund. 175. note (2>
- 541
7-fftng.682. . - -
- 540
1 Sir. 553. 8 Mod. 166.
- 206
2B.^C.5l5. - - -
- 728
3 Mod. \4l. - . -
- 790
2 RoU.Ab.ParoU,(E)p. 259. /.
19. 444
2 W. Bl. 1252. .
- 150
7 Taunt. 278.
- 925
4 jB^. 729.
- 269
10 Bing. 157.
15,869
losing. 565. -
- 340
M
Magdalen College Case
Malkin v. Vlckerstatf
Manby v. Lone
Mancester v. Daper
Mannin v. Partridge
Manning's Case
Mantle p. WoUington
March p. Ward
Manden r. Stansfield
Marsh v. Fawcett
V. Martindale
Marshall v. Barkworth
r. Pitman
Mason r. Hill
Mathewson's Case
Manndrell v. Maundrell -
Mayor of Doncaster v. Day
Mease r. Mease
Medley r. Talmy
Meekins r. Smith
Mellish r. Motteux
' V. Richardson
Mesnard v. Aldridge
Middleton r. Hughes
Miller «. Green
Milliner v. Robinson
Milton V. Pearsev
Mitchell V. Fordham
Mitford r. Mitford
Milwani v. Caffin
Moises 9. Thornton
Monkhoose v. Hay
Montgomerie v. Clarke
Moore v. Fursden
V. Ramsden
■ V. Rawson
Morris p. Barry -
▼OL. I.
(In error)
■{
1 1 Rep. 66 b. ' - - 437
3B.iAld.S9. - - 693
5 Lev. 107. - - - 530
2 Roll. Ahr.y TaroUy (^) jo. 252. - 445
14£m/,599. - - - 585
8 Rep, 95 a. » - - 302
Cro,Jflc. 166. - - 752
PeaheU N. P. C. 130. - - 204
7-B.4-C.815. - -746
2H.B.5B2. - - 183
3-B.<j'P.154. - - - 578
4B.4rAd.508. - - - 78
9 Bing.595. .... 269
5 J9. 4- Ad. 304. 5B.4rAd.l. - 497
5 Rep. 22 b, - - 205
7 Vet.jun. 567. 10 Vet.jvn,246. 291
3 Taunt. 262. - - 11
1 Coioper, 47. - - 800
1 Eag. 4- Y. 620. 2 GwUl. 559. - 454
1 H, Bl. 656, - - - 379
iPeake'sN.P.C.llS. - -511
7 -». ij-C. 819. - - - 610
9 Bing. 125. 6 Bligh. 70. S.C. - 609
3Esp,N.P,C. 27 1. - -511
2 BurrCt Justice^ Game, p, 504.
23d ed. - - 700
8-Bi«g. 92. 2 Cro.^ J. 142. S,C. 272
Moore, 682. pi. 939. - - 754
1 Brownl. ^ Goldet. 78. - - 777
6 B.S^C, 274. - - - 151
9 Vet.jun. 98. - - 307
2W.Bl.\3oO, - - - 268
8 T. R. 303. - - - 699
8 Price, 269. - - - 889
Bui. N. P. 234. - - - 10
1 Show. 342. - - - 752
3J?.<j'.i<d.917.note(d). - - 815
3 J9. 4* C. 554. - - . 543
1 WUs. 1. - - • • 758
a
XVIU
TABLE OF CASES CITED.
Morse v. James
Mountfordo. Morton
Mouys r. Leake
Murray v. Elliston
' V, Harding
WUles,l25.
2 N. R, 62.
ST.J?. 416, note(a).
5 J9. 4- Aid. 657.
2 fV. 2^.862.
Page
- 618
- 70
- 332
- 584
- 377
N
Nagle V. Edwards
Napier v. Napier
Neale dem, Leroux v. Parkin
Newhuid v, Watkin
Niblett V. Pottow
Nicol 17. Boyn
Norbury v. Meade
Norris v. Le Neve
V. Poate
Nurse and Wife v. VTilIs -
Nutt o. Stedman
-{
'5Anstr.l05. 2 Bag.
4- r. 428.
4 Gw. 1444.
- 454
1 Sim. 28.
- 594
1 Esp. 230.
- 548
9Bing.ll3.
- 626,816
1 Bing, N. C. 81.
- 727
lO^ifi^. 339.
- 533
3^/^^,211.
- 455
3 il^ibfu, 82.
- 663,816
3^tii^.41. -
- 728
4 ^. <j- ilrf. 739.
- 65
Forietc. Rep, 372.
- 329
Oakley (Lord) v, Kensington Canal Com-I ^ n ^ Ad iss '
pany - - - - -J*^'*'
Odiham v. Smith .... Cro. Eiiz. 589. Goldsb. 191.
Ogle's Case - - - - 2 HaL P. C. 180.
Outram r. Morewood - - - 3 £<»/, 346.
- 373
- 215
- 444
9
Pblmer o. Ekins -
V Fleshees -
V. Taylor
Parker v. Elding -
Pftrslow V, Cripps
Partridge v. Strange
Patchett 9. Bancroft
Payne v. Drew
Peacock v. Bell -
■ V, Burrel
V, Purvis
Peirson v. Sorrel -
Pelham v. Pickersgill
Perot V, Hayward
Peyton o. The Mayor of London
Philips V. Philips
Phillips V. Hopwood
PhiUiskirk and Wife v. Phickwell
Physicians (College oO v. Lcvett
V. We&t
Pickford v, Gutch
Pickup ff. Wharton
2 Ld. Raymond^ 1 550.
I ^, 167.
3 Keb, 468.
1 EattfSSS.
1 Cotnynt** Rep. 204.
Piowd. 77. Dt^er, 74 b. (19.)
7 TL J?. 367.
4 £af/, 523.
1 JVnu. Saund. 74 a. no/tf (1)
1 Keb. 467, 500.
- 799
- 499
- 331
- 350
- 648
- 329
- 268
- 936
- 612
- 610
5 2 Brod.^ Bing.562. SB.Moore,
"i 79. - - - - 642
- 2 Show. 185. - - - 769
- \ T.R. 660. - - - 402
{Year Book 11 H.6. 23 a. Bro.
Ah. Charge, pi. 39. - - 195
- 9 B.^ C. 725. - - - 495
- Andrews's Rep. 248. - - 776
- 1 B.^ Ad. 619. - - - 368
- 2 JIf. <j- 1^.393. - - - 69
- 1 Ld. Rat/mond, 472. - - 701
- 10 Mod. 353. - - 'it.
2 Starkie on Slander^ 3, 2d ed. 8
"^ T.R.505. - - - 700
2 Cro. ^ M. 405. 4> Tynvh. 228.
- 341,896
TABLE OF CASES CITED.
XIX
- 1 Vem, 18.
Pitt*. Hunt
Plymouth (The Countew oO «. ThrogmorO ^ g^ ^^
tWU " m m m —I
Pocock r. Billings - - - - - - -
Polhill V. Walter -
Portland (Duke of) v. Bingham
Prat and Wife «. Taylor -
P^mtt V. Groome - . .
PktKtor r. Manwaring
Pulling V. Tucker • . -
Purdew v. Jackson
Pyke c. Crouch - - -
- JR. 4- Af. 127. S BiHg. 269.
- S B.4r Ad, 114,
- 1 Hagg. Consist, Rep, 164.
- Cro, Eliz, 61. -
- 15 East^ 235. -
- 3 B,^ A/d.l45. -
- 4 B,4r Aid, 382,
- 1 Russ, 53.
- 1 Ld, Raymond^ 730,
Page
- 507
- 688
- 708
- 512
- 403
- 72
- 215
- 516
- 78
- 307
- II
Queen (The) v. Summers
(Sc^ R^na.)
Q
{
1 Saik 55. 5 SaiJ^, 104. S, C.
(not S. P.) 2 Ld. Ray, 854. - 606
R
Rann v. Greeo
Ray *.Pung
Rf^nav. Beat
' V, Tuchin
V. Winter
Rgindoz v. Randolph
Rex V.Abbott . . .
•. Allen . - -
V. Alveley - - .
V. Austrey - - -
V, Apethorpe - - -
— V, Archbishop of Armagh
— V, Ashton Underbill
r. Banbury (Banbuiy ». Witney)
— V. Barleston - - -
17. Barnstable - - -
V.
V.
V,
V.
V,
V.
V,
9.
V.
r.
V.
9.
V.
V.
V.
».
V.
r.
■r.
- 2 Cowp. 474. -
- 5 B.^ Aid, 561, -
- 1 Salk. 174.
{2 Ld. Raytn. 1066.
6 Mod. 268.
. 2 Salk. 588.
- 2 Sir. 834.
- 2 Doug. 555, note.
- 1 5 Easty 353, -
• 3 East, 566.
- Burr. S. C. 441, No. 142.
- 2 J9. 4- C. 892.
- 331
- 291
- 713
1 Salk. 51.
- 459
. 544
- 613
- 571
- 848
- 712
- 154
- 262
Bartrum • . •
Benneworth
Bilboroush
Bilsdale Kirkbam
Bird
Birmingham Gas Light Company
Birmingham, Inhabitants of
Bishop Auckland -
Bishop of London
Bishop Wearmouth
Boldero - . .
Bradford ...
Burbach ...
Butterton ...
Carlile ...
Casson ...
Castleman - -
Cheadle
Chew Magna
■{
1 Sir. 516. 8 Mod. 6. - - 440
Cold. 418. 2 Nol. P. L. 585. - 390
5 B.4r Ad. 176. . - 155
5 B,^ Aid. 780. - - - 156
1 Barnard, K. B. 137. Foley,
p. 26,3d ed. - - - 571
8 East, 269.
604
2 B.^C. 775. -
- 236
I B.4r Ald.ll5. -
243, 536
Burr, S. C. 828.
- 389
2 B.^ Aid, 522.
- 840
\ B.SfC.5l\. '
- 472
S B.^C. 29. -
- 879
1 M. 4- Rob. 287, note (d.)
- 745
I D.^R. 486. -
- 183
5 B.^ Ad. 942. .
- 748
4B.4rC. 467. -
- 150
4 M.^ S. 317. -
- 471
I M.4r S. 370. -
- 24J
6 T. R. 554. -
- 130
2 B.^ Ad.97\.
- 611
sD.Jjr R' 56.
- 838
4 J?i«rr.2119. 2127.
- 853
5 B.^ Ad. 833
- 936
10 B. * C. 747. -
- 130
a 2
TABLE OF CASES CITED.
Rex •. Chipping Warden
- BT.R.loa. ■
- isa
e. Clement ....
■ 4B.^AU.9U. -
- 600
0. Combe ....
■ 8S.*C82. -
. 243
^.x.™i^..^ors.„„ro.PHh»|,,,,.„, .
- 498
P. Collon ...
- 3 Camp. «4. -
. 3 B.$ Ad. 4S7.
- 9S6
. 44S
ftCrediton -
- 3B.4Ad.49S.
. 34a 336.
■ 4B. *C. 670.
- 871
p-Ditcheat ...
- 9J. *C. 176. .
. 230
o.Kxon ....
- 3 Burr. 1687. -
- 600
cDursley ....
e.Eatl of Exeter -
- SB.4Ad.46S.
■ eT.B. 373.
e. Eccletfield ...
- \ B.^ Aid. 34B.
- 747
V. Eccletton
' 8 Easl, 398.
. 241
..EdinpJe ...
- 10 J!.* C. 759.
- 841
p-ElweU - . .
f2Ld.Ravm.i5l4. S
"I 360.
:Ld.Raym.
- 631
«.Fell ....
• \ B.i Ad. 9B0.
e. Fowler .....
- lBa4t'tF.C. ch.xi.t.
ll.p.461. 710
p.G«alin6.y -
. ST.R. SIS.
- 748
cGilkei ...
- % B.^C. 439.
. 324
e.GUl . ...
- iB.^ Aid. 204.
. 715
' Ca. temp. Hard. 357.
. 832
V. Harberton
- iT.R. 139. -
- 154
o. Hawkins ...
. FarUic. Rep. i7S.
- 848
F.Hajman
- 1 Jlf.*3f. 401.
. 746
-^ t.. Hendon, Lord of Manor of.
- 2T.S. 484.
- 289
e. H^ Eatt Waver Quaner
. 1 r.«.7»l. -
- 16£<ut, 197.
- 130
t<.SaiDe
- 11 Eo*/,ss;.
- 7l«
. 4 Jif. 4- S. S62.
- 545
e.Hon«. ....
. aCo«7).684.
- 558
r.HoBley
- 8 EatI, 405.
- ISO
1>. HuDgeribrd Market Company (Ei
parte FaHow)
'\s B.^ Ad. S4l. .
. 681
1.. Same {Ex parte Still)
■ 4B.S^ Ad. 592. -
- i*.
^_P.Ide ....
- 2B.^ A. 869.
- 933
i..Jolifle .....
■ 4 TR. 290.
.t>.Jiutice>of Caihiobiiry
■ SD.^R.SS.
. G3S
•. Derbyshire
- 3 Ld. KenifonU Ifatti,
399. - 838
~. — e. Gloucesterehire
■ 5M.^S.i31.
• 3S4
__ V. North Riding of York.
■hire ....
;J6A4C. 15S. -
. SB.^C. 698.
- 838
1-. Saint Albaw -
- 837
p. ■Somer.clshire -
. SA*C.«16.
. 838
- I3f.*&631.
- 399
^— ... . WescRldirKofYorkBhlr.
1 5T,B. 6S9.
. 838
e. WostRidingofYorkihir.
(Bower «, Accounls of Melthan
Incioaure Comniii^oneri)
'Xs B. 4 Ad. 661. \
'(2tr.4Ar.s9o.s
- 607
.-^v. Wilt» - - .
. 13 Eail, 359,
- 254
». Knight - , - .
■ 7 B.JiC. 413,
. 748
V. Lady Portiogton
■ 1 SaUi. 16S. -
. 441
p. Lewis - . - , .
■ 4 Burr. 3456. ..
- 604
V. Linkinhome -
- 3 S. ^.^rf.413. .
- 155
■>. little Bolton
- QlU.367. -
- 241
V. Lord of the Manor of Hendon
. «T. «. 484.
- 389
..^ ». Lubbraham
, S p. ^ Ad. 96a.
• 138
TABLE OF CASES CITED.
Ra r. Maccl«iadd -
- sB.4r Maio. - - sag, S54
- ST.R. 76. . - 9SS
- SB.^C. 166. - - - 747
B. Machynlleth
r.MMti*hall . - -
- aS.^C. 7S3. - - 134
e. Mayor & AldeniKn of Loadon
- SS.^ Ad. 875. - - - 399
cMildwU
- ST.R. 101. - -838
B. Moore
- a B. ^ Ad. \84. . . . 8«
^Morrb
• I Leadt, C. C. 109. {ed. 1B15.) - 446
r. Neild
- 6£iu(, 417. - - - T16
B. Nether Heyfbrd
. Butt. S. C. 479. - - - 589
o. New Ri»er Company -
- I M.^ S. 508. - - 471
- 1 B.^C.SIS. - - 189
— B.Oakle,
J'tB.^Ad. 507. 1 2fcv. * M.
'1 58. - - - - 631
B.Onn«iby - . .
- 4 JS. 4-.^ii914. - - 140
B.Parkhoiise
- £ati'*P.C. c.xi. «.ll. /1.46I. - 711
1. Pease
. *B.4^Ad.*l. - - - 6T3
V. Rckering
- 9 B.4Ad.S61. - • I4S
B.PiiIej -
• iSEiut.91. - ' -485
e. Portington, Lady
- 1 Salt. 16S. - - 441
— ..Ridgway -
- S 3. 4r Ad. 530. - - - 716
r.Ring
- bT.S. 5SS. - - 600
«. Roger.
- ID. 4' A. 156. - -848
..RuihiB
- SS.^AU.ilS. - -351.834
B. St. Andrew the Great, Cambridge
- 8 J?. *. C. 664. - - 868
». St. Gil«, Cambridge
B. St. George's, Soutfiwark
- S M.^S. 360. • . .747
- Burr. S. C. 283. - - 588
— B. St. Katharine Dock Company
. 4 J!. 4- Ad. 36a - - 899
B. St. Marip>reffi, King's Ljon
- 6 *. 4- C. 97. - - - 841
B. St. Mary, Kfllleniiar
- Burr. S. C. 374, No. 95. - 164
B.St.Maiy,KidweUy -
- 2B.^C. 750. - - - 336
B. St Nichola*. Gloucerter
r 1 Boll. 150, pi. ISO. Cold. 863.
" L I T.R. 733. noU (a). - 470
- 5 B. ^ Ad. S19. - • ass
B. St. Peter, Hereford
■ I B.^ Ad. 916. . - - 135
B. SMinden
- 5D.^.R.eU. - - - 841
B.Shebbear
- 1 Eait, 73. . - 156, S40
B.ShiptOB
- flj!. *C.8S. - - 155
..Spragg
- a Burr. 993. - - 714
B.SU?^ ....
- 4 J».*C.87. - - - 159
B. Tadcarier
• 4 B. 4 Ad. 703. 138,337,889,835
B. Taylor
- 7 D. * «. 633. - - 847
e, Terret ...
- aT.a. 735. - - - 571
B. ThumiBiton
- 1 B.i Ad. 733. . - - 933
1. TitchEeld -
- Burr. S. a Sll, JW). 164. - 154
B. Turner
- 13£<ut,228. - -711
B. Wainflret, All Sainti -
- 8 a. 4 C. 837. - - - 139
B. WalUce
- Hawk. P. C, B. 2, c. 87, t. 53. - 606
B. Warnford
- 5 2>. ^ii.4e9. - -633
B. W.tton
- 4Cflrr.4-i'. 330. - - - 604
B. Weddiiwton -
B. Welbank
- Burr. S. C. 766, No. 859. - 154
- 4 3f.4-'S.32S. - - 881
B. Whitchurch -
- 1B.*C. 574. - - - 155
0. Wilke«
- 4 Burr 2527.2549. • - 855
e-Wmiamwii -
- 3 A* ^.583. - - - 563
B. Wilson (Sir T.M.)
- loB.^'.C.BO. - - 150
B.Wi» -
- 8*.*-irf. 203. - - -897
RcTDoldi B. Pinhowe
- CW». fifii. 429. - - - III
Ricbvdi B. Cbuiben -
- 10 Va.jun. 580. - - - 309
TABLE OF CASES CITBD.
Richmoiul e. Smith
ffix(In re)
ftoach o. Wadham
Roberta v. Head _
Robinson u. Carringion
Roe d. Hunter v. Galliers
Koper «■ LoDtdalc
Rogen o. Birkmire
Rosewdl ti. Prior
Row t. Dawson
Rowland*! CsM
Rowteyo.
. 8 A ♦ C. 9.
- 4 D.^ J. 552.
• 6 East, 989. . . . .
- l€Etut,tlS.
• I Jftm. ^ ^jir. 1. - - -
- 3T.Ii.U0.
- IS £iuf,39. . . - -
rOi. teiMp. Aon^. S15. 8S(r.
"\ 1040. - . . .
• Ry. 4- AT. 1S9. a B.4C. 409.
- 8 Soft. 460. 19 Mod. 655. - -
- 1 rM.«irii. 331.
- 5 Sep. 41 *. - - -
- 9 Mer, 138. . • - .
- 3 Bag. S. -
- 9 raiM/. 141.
- 1 M.i S. ISO. . - .
- 8 Bing. 855. 9 £..Afaafv,495. -
- 1 Fm. Mm. S49. 1 j*i*.177. - 808,
p. Wakefield .
Savery «. Smith
Saj-er r. Chaytor
Scales B. Pickering
Schneider ». Heath
ScAtt c Poreher
■ c. Wutbman -
Seddon c Tutop
Servante t. James
Sliarpe v. Tliomas
Shaw D. Broome
t). Pritehard -
Shelley e. Wright -
Sberwin d. CUrgea
Ship Wafre(Inre)
Shirley i'. Walts
Short V. Wood
Sunrooni v. Wilmot
SunpMHi e. Smith
■Sit Carpcnler^' Case
dinner d. lluckee -
Slin^tiby t>. Barnsnl
SlowTiian V. Diitlfin
Smartle d. Nenport v. Williams
Smith's (Chriitian] Cose
ftnitfa r. Cooker
■ ■ V, Crump
p. Dovera
ti. Jeflerys
8 Vet. i B. 5S7. - - - 1
1 5U. 95. - - - - 3
3 Batt, 354. - - - :>
* B.^ Aid. 595. . - .
iLut. 114S. - - - 4
1 LtU. 695. - • - 8
4 Bing. 453. - - - 6
3 CoHip. 50B. - - • - 5
3 Jfer. 658. - - - - 8
5 Stark, if. P. C. 168.
6 r. JI. 607. - - - 8
10£.4'C.4IO. - - - S
6 Bing. An. 4Jtf.4-P. 67. 9
{R.^M. 813, noU. *D.iR.
\ 730. - - - - 7
\oB.4r C.941. - - - e
milet, 9. - - - fl
/ 18 Afmf. 343, (M Oargei v. Sier-
fiS Mod
8 Piiee. 369, Motf.
3 ^Jimi, 900. •
1 P. Wvu. 470.
3 IStp. If.P.C. 91. -
1 iSlsnt. m £v. 161.«o(«{i<.)
a Alk. 51.
B £fp. 146 A.
5 B.4rC.6. -
1 AoU: A<p. 430. -
10 Sing. 409. . • -
1 Sait. 880. . . -
FCm Jonei, 379.
CVo. Cor. .519. -
1 Dowl.P.C.5l9. '
Hong. 438. - . -
6 T. R. 176. -
TABLE OF CASES CITED.
xxiii
Smith V, Martin ...
V. Pickering
V. Shaw - - -
r. Taylor - - -
r. Topping - - -
Somen v. Moseley - . .
Sootk Sydenham v, Lamerton -
Spargo V. Brown ...
Spear r. Travcrs ...
Sjnlsbury v. Micklethwaite
Sprett p. Jefiery - . .
Sprigg V. Neal ...
Stainer v. James ...
Scanden v. University of Oxford
Stansell v. JoUard . .
Sdbbs V. Clougfa ....
Storie V. Lord Bective
Stougfaton V, Reynolds
Stourbridce Canal Company v. Wheeley
Stfowd p/WUlis
Stnitt V. Bovingdon and others
Sturch V. Clarke ....
SammerriU o. Watkins
Sutton V. Claike ...
Sjliard v.
Page
- 497
• - 894
- 375
- . 699
- 925
- 2 Saund. 394. -
- 1 Peake N.P.C.SO. -
- 10 J?. 4- C. 277.
- \ New Rep, 196.
- 5 B,^ Ad. 674.
- 4 Tyr. 158. 2 Cro.Sf M, 477.
f Caset of Settlements and Re~
"\ movals. No. 103, p» 77. -
- 9 B.^ C, 938. ...
- 4 Camp, 251. - - - -
- 1 Taunt. 146
- 10^. ^C. 249. ....
- 3 Lev. 92. - -
- Cro.Eliz.3U. -
- }V.Jonety2l, -
- 1 Selw. N. P. 444, 8ih ed.
- 1 Sir. 227.
1 Jac. ^ W. 292, note (o)
2 Str. 1045. Ca, temp. Hard.
274. Fortetc. Rep. 168. - 344
2 B.^ Ad. 792. - - •561
Cro. Elk. 362. - - - - 798
5 Etp. N. P. C. 56. ' - 9
4 B.^ Ad.UZ. - - - 273
14 Eatt^ 556. - - - - 855
6 Taufd. 29 497
1 Bulitr. 101 272
-{
- 48
130
- 116
- 925
- 219
- 169
- 215
- 773
- 440
. 500
- 796
- 719
Tanfieid V. Finch - -
Tappenden v. Burgess
Tapicot V. Wooldndge
Tarlor v. Blair ...
r. Waters . - -
Tetherington v. Golding
Thomas v. Cook ...
• r. Saunders ...
• V. Sorrell - - -
Tbompton v. Dicas ...
Thuriby v. Plant - - .
Tilson V. Warwick Gas Light Company
Tomlinson v. Brittlebank
Towler V. Chatterton
Treport's Case . - -
TreviFan v. Lawrance
Trcf or v. Wall - - -
Tudor V. Samyne
Tnrberril «. Stamp
Tomer's (Sir E.) Case
Tomer v. Robinson
Twyne's Case ...
T)TTel V. Classick . . -
[Cro. Eliz. 27. I And. 121.
I 169. . . -
4 Eastj 255. ...
1 Sid. 425. . . -
3 T.R. 453. ...
7 Taunt. 584.
7 T. R. 80. - -
2 B.^ Aid. 119.
5 B.4r Ad. 462.
Faughany55l.
1 Cro. ^ M. 768. 3 Tyr. 873
1 Wmt. Saund. 236 a.
4 J?. 4- C. 962.
4 B.^ Ad. 630.
6 Bing. 258. . - -
6 Rep. 14 b.
1 Salk. 276.
1 T.R. 151.
2 rem. 270.
1 /So//:. 15.
1 Fern. 7.
5 ^. 4> i4(/. 789.
3 Rep. 82 a.
2 iS'Aou;. 185.
- 577
. 458
- 796
- 550
- . 542
• 619
- 140, 932
- 552
- 544
- 620
- 140
- 528
- 558
- 340
- 754
2 Ld. Raym. 1036. 799
- 612
. 307
- 497
- 306
- 687
- 950
- 772
Vanghan v. Browne
2 Str. 1 106.
- 51
TABLE OF CASES aTED.
Vicmn e. Wilcoclu
ViDCBDt V. VcDDer
Voogbt V. Windi
1 Mitne^ K«en,at3.
Cro. £la. *SS.
iB.^ Aid. 66S.
W«ii«.Wwtten - •
Waldock B. Cooper
Walford r. Anthony
Wallop V. Lord Portsmouth -
Walli «. Atchoon
WaIten>.PreU
Ward «. Clarke
nnd Knight's Case
Waterhouse t. Keen
Water* d. Hewlett
Watson t). Turner - -
\Vealherhead v. Drewry
Weaver v. Price
Web P. Paternoster
Webb T. Fox -
p. Nect
Weller and otfaen v. Baker -
Well* r. Giimey
Weat v. Andrewt
Wetton V. DowDet
Whaiely v. !Menhcim and Levy
Wheatley v. Lane
Wheeler nnd Bfttsford p. Alderwn
Whiiaker f. Edmunds -
Whiteomb n. Whiting -
White c. Geroch
». Mtlner
Whilwell t. Stevens
Wietin, Lord, o, Jonei
Wilby v. Qiiiniey
Wilde b. Minsterley
Williains v. Lord Bagot
■ o. Sangar - - -
Willion v. Berkeley
Willis V. Klfiicher -
WilMD V. H'Matb - -
Winch V. Kceley
Winchcombe v. Pulleston
Winter v. Brockwell
Woodi-.L-ke -
Woullaston e. Hudson
Wordsworth r. Harley
Worseley «. Demattoa
Wright e.Anr
f-Furfidd - -
Wyatt V. Harrison - -
'^nne v. Thomai
5 Eatl, 10. - - - -
s Wiit. 16 - - - - 6
8 B'mfi. 75. • - - - *
Sued, on Pow; SIh td. p. 768. - 5
3 Bmg. 469. - ... 9
M. * M. 36'1. - ■ - 4
M. 4- M. 497. - - - 4
ll.nni.a31. Cri>.'Eliz.aa7. - 4
4B.^ C. 200. - - - 7
3 flog. £cc. Rep. 790.
Eul.KP. 147. - - - «
II faff, 1GB - - - - 8
S B.^ Ad. 409. - - - - S
Pfl/Wfr, 71. - - - - i
7 T.fl. 391. - - - - 3
Cro. Eliz.ai. - - - - 7
2 H'iii. 414. - - - -
B B.^rC. 769. - - - - 3
SB.^ Aid. 33B. I B.^ C. B3, 3. S
I Dong. 23. - ... 3
3Eip.y.P.C.60B.
a B.4: .lid. 998.
S K. »i. 557.
1 Eip. A'. /* C. 72. - - - 1
O ff. * C. 468. - - - s
WiiA, 130, ed. 794. - - - ;
aSoa.A6r.sei,tit.TTetpMtl.pl.}. 4
4D. ^K. 31S. - - -(
10 EatI, 66. - - - - 5
Plowdm, S3^, 244. - - - 4
CVo. £7iz. S30, - - - ;
sB. ^ Aid. 844. 3 PAtf. J?^. 61. S
I 71 A. 619. - SOB, 806, G
Koy't Hep. 25. Hoi. 167. - !
8 Sail, SOB. - - - - J
51^1 Hep. S. • - - - i
8 Dowl. P. C. 360. - - - 4
1 «. *.rfrf. 391. - - • J
1 Jurr. 467. - - - - <
5 J. Moon, S30. - - - a
a B.^ Jd. 732. - - - 1
1 Sim. ^ &«. 1 90. - - J
3 a 4- ^rf. 871. - - • i
WUlcS, 568. - - . - t
Yartorough v. The Bank of England
Yard V. BTand
YeuBook ...
16 EatI, € • - • - 5SS
1 Ld. Bmm. 368. Carti. 469. - 6S
E.T, iB.i,/.H.pl.li,Toe. 'ASl
TABLE OF STATUTES CITED.
XXV
Year Book
Yettes p. Groves
Yoong V. Bninder
— - V. Watson
Page
M. T. 33 H. 6. /. 42. pi. 19.
Ejectione Jirmte. - - r 757
\E, T. 35 H. 6. /. 55. pi. 1.
IVarren • - - - 660
H.T. 6Ed.4. /.lO.pl.5. \ Ejectione
E. T. 7E(L4.f.5. pi. 1 6. Jjimug.
- - 756
M. T. 21 Ed. 4. /. 11. pL 9.
Ejectione Jirma. - • - 757
T. T. 8 H. 7. /. 4. pi, 1.
Warren ----- 660
- 1 Vet. Jun. 280. ... 892
- 8 East, 10. 514
- 5T.H. 462 774
TABLE OF STATUTES CITED.
(See also the title Statutes in the Index to the Principal Matters.)
Page
HCJIBT UI.
9. (Magna Charta). c. 11. (Com-
mon PUat) 438
SO. (Merton) c. 5. {Infant) ib.
EOVA&D I.
6. (Gloucester), c. 1. s. 2. (Cm^.) 831
13. Stat. 1. (Westm. 2.) c. 1. (De
donis) 437
c. 5. s. 2. {Quare Impedit,
limitation) 395, 440
18. Stat. 1. {Quia Emptores) c. 1. 438
27. Stat. 1. C.4. {XisiPriui) ib.
Edwaid II.
17. Stat. 1. (De prserogativa; c. 6.
{Alienationt) ib.
EOWAID III.
14. Stat. I. c 6. {Amendments) 439
42. c 11. {Jury panel)
RjCHAftO U.
15. c. 2. {Forcible entry)
Heney V.
1. c. 5. {Additions)
Heney VI.
8. c 9. {Forcible entry)
' * y {Amendments)
RlCHAEO III.
1. C.7. s. I. {Fines)
VOL. I.
775
631
439
627
618
763
UekeyVII. Page
4. c. 24. {Proclaiming Jine) 760
Henry VIII.
3. c. 11. {Physicians) 700
10. 14 8c 15. c. 5. {Physicians) 701
2 1 . 0. 13. 8. 32. {Ecclesiastics trading) 4 1 3
32. c. 28. {Discontinuance) 437
32. c. 30. {Jeofails) 777
34&35. c. 26. i.4\. {Welch fines) 764
36. c. 6. s. 4. {Jury process) 779
Edward VI.
2 & 5. c. 13. {Tithes) 449
Elizabeth.
r458
13. c. 5. {Fraudulent conveyance) -j
10. (Lfffl««) 440
20. 8. 1. {Charging benefice) -| gj^
1 8. C 1 4. (Jeofails) "774
27. C.4. (Fraudulent conveyance) 133
7. R. 2. {Jury process) 779
c. 8. (Exchequer chamber) 441
31. c. 2. {Proclaiming fines)
6. {Simony)
59. C.3. (Overseert)
43. C.2. (Poor. Overseers)
C.6. s. 2. (Certificate against
costs) - - - 75
b
760
438
693
r264
\695
xxvi
TABLE OF vSTATUTES CITED.
Jamss I. Page
7. c. 5. (CotU) 552
SI. c. 13. (Costs) 552
c. 15. (Amendment) 772
c. 16. (Lin^tations) |j^|
Chaelss I.
lO&ll. C.2. 8. 6. (Irish Act) (i2^o
tories and Vicarages) 440
Charles U.
17. C.3. {Umting churches) 440
29. C.5. (Statute of Frauds)
8. 1. {Interest in Itmd) 548
8. 1 & 2. {Leeue) 55
8.3. (Surrender) 137
8.4. (Guarantee) 71
s.l6.(Optfra«on o/Ji.fa.) | ^^^
8. 19. (j^TtfRCffpo/ttv «;!//) 164
William akd Maby.
3 & 4. c. 1 2. 8. 23. (Highway. Order
of Sessions) 838
clxii. (York, Paving, 4rc.) 829
4&5, C.24. 8.15. (Jurt/ process) 779
c. 31. (Hambieton indo^
sure) 1 45
5&6. c. 1 1 . 8. 3. (Costs, certiorari) 606
WlIXIAM III.
8 & 9. c. 1 1 . 8. 8. (Assigning breaches) 800
11 & 12. c. 19. (Gaol Rate) 870
Anne.
4. c. 16. 8.1. (Jeofails) 219
8. 7. (-Error) 442
5. c. 8. (ilc^ of Union) 701
8. c. 14. s. 1. (Execution. Rent) 641
c. 19. (Copyrieht) 584
9. C.20. 8.2. (Mandamus) 283
George I.
9. c. 7. 8. 5. (Settlement by estate) 1 25
George II.
[477
2. C.23. S.23. (Attorney's bill) J 717
[856
3. C. 25. 8.8. (Jitry process) 775
4. c. 28. (Distress) 195
11. c. 19. 8. 8. (Distress. GroW'
ing crops) 649
8. 19. (Distress. Landlord) 273
13. c. 18. 8.5. (Certiorari) 319
17. C.38. 8.8. (Distress, Overseers) 272
22. C.46. 8 \l. {Attorney, malprac^
tice) 560
25. c. 43. 8. 7. (Liverpool Court of
Requests) 616
30. c.24. 8.20. (Cheats, Certiorari) 841
George III.
5. c. 41. (Insolvents) 853
6, c.20.(DerbyCourtof Requests) 3iS
George III. Page
13. c. 31 . ( Warranty Scotland) 600
13. c.78. 8.19. (Highway^ Appeal) 235
8. 30. {Surveyor's ex^
pences) 840
z.AS,(Surveyor*s accounts) 836
8. 66. (Law expenses) 839
8.81. (Certiorari) ib.
14. c.78. s.3S.(Party Walls) 669, 679
15. c.23. (Guardians of Poor, St.
James^ ClerkenweU ) 317
16. c.38. (Insolvents) 797
18. c.\9.%.^.(Constable^s expenses) fi^O
22. c. 83. 8. 42. (Supply to Work'
houses) 518
23. c. 55. (Hull Gaol) 866
23. c. 70. 8. 34. (Actions against
Officers) 365
24. c. 54. (Gaol rate) SIO
24. sess. 2. c. 47. 8. 55. (Actions
against Officers) ib.
32. c. 57. 8. 7. (Apprentices, tranS"
fer) 157
c. 102. {Monmouthshire Canal) 372
33. c. 13. (Date of statute) 329
c. 54. (Friendly Societies) 32 1
54. c. 109. (Swansea Canal) 351
35. c. 101. 8.6. (ChargeabilUy) 712
35. c. HI. (Friendly Societies) 321
37. c. 112. 8. 12. (Insolvents. Be-
nefice) 181
39 & 40. c. 106. (Workmen, Con-
spiracies) - - 716
41. c. 107. 8.1. (Copyright) 585
c. 109. s. 8. (Inclosure) 254
42. c. 71. (Liverpool Exchange) 465
43. c. 1 1 1 . (Friendly Societies) 32 1
44. c. 92. (Warrant, Ireland) 600
45. c. 92. 8.3. (Subpoena) 598
48. c. 123. (Small debts) 438
49. c. 135. (Friendly Societies) 321
53. c. 102. 8. 27. (Insolvents* Be-
nefice. Half-pay) 182
54. c. 156. 8.4. (Copyright) 583
— c. 1 70. s. 9. (EvUence, Rate-
payers) 744
55. c. 68. s. 2. {Highu?ay, Appeal) 254
— c. 137. S.6. (Supply to Work-
houses by overseer) 514
— c. 192. (Copyhold, Surrender) 128
56. c. 50. s. 1, 2, 3. {Execution,
Growing Crops) 641, 643
— c. 1 39. s. 9. (Apprentices, TVans-
fer) 1 56
— — s. 1 1. (Apprentices, Paro-
chitU funds) 133
58. c.69. (Vestries, Voting) 517
59. c. xxxix. (St. Pancras Vestry) S3
TABLE OF STATUTES CITED.
xxvii
George III.
I QOg
59. c. SO. (SetUemetU, Renting) < ^30
1.235
c. 128. {Friend^ Societies) 321
George IV.
I. cxxxix. {Aire^ Colder Nam-
gation) S^^
3. C.23. i8. 1, 3. {Conmctions) -! 631
1^632
c. 126. s. 43. (Tofff, Turn-
pike) 729
S.57. {Contract) 203
8. 74. {Clerk) 203
4. c. 64. ». 2. {BuMngGaoU) 863
s. 68. {Gaol Bates) 863
8S. 45, 50. (iS^mooif^
goo/. Notices) 863
5. C.85. 8.15. (Gflo^) 863
6. C.16. t.5.{Bankrvpl. Frau-
dulent conveyance) 457
8.12. (Comimwiofi) 179
S.48. {ServanU) 685
8.63. (ilingnifUTn/) 179
8. 72. {Reputed oumer-
skip) 354, 806, 922
S.81. {Contracts) 920
8. 82. {Bond fide pay-
ments 459
8. 108. {Warrant of At-
torney) 185
C.50. 8.15. {Jury panel) 775
1137
227
228
232
Ixxix. (BimftiigAflm Gas Com-
pany) 526
c. 108. 8. 81. {Conviction,
Seaman) 483
Clio. 8. 27. {Ship, Registry
certificate) 482
7. C.57. (Insolvents.)
s. 11. {Assignment) 171
8.28. {Sequestration) 171
8.29. {Half-pay) 182
s. 30. {Reputed oumer-
ship) 804
8. 32. {Voluntary trans-
fer) 926
8.34. {Execution) 171 |
8. 42. ( 2^<ice of hearing
petition) 183
88.46.50. {Discharge), 854
88. 60, 61. {Protection
tfter discharge) S55
~ i, R
8.48. (Fratw/. FenaUy) 950
Page I George IV. ^ ^ ., Page
f 139 7. c. Ixxiv. (iJi^toiitf 7\<rfipi*tf
' ' Road) 201
7&8. c. 56, s. 20. {I^ip. Registry
cert^ate) ^82
9. C.14. 8.1.(Irilmte<iolM,i^c*«olo-
/e4g?«4?n/) 197,339
c. 1 5. {Amendment, Variance) 63
c. IxxxiiL (-Bir#/fl/, 4-<?- ^ww**) 723
c. 92. 8. 45. {Savings Banks,
Arbitration) 321
c. xcviii. {Aire and Calder
Navigation) 564
10. c. 56, {Friendly Societies) 327
11. c. 5. {Wistow Indosure) 245
clxx. (irfiiig«/orrfilfarto)|g^g
1 1 G» IV.l ^^ YQ^ g^ g. {Exchequer
«J?^ J cAamftCT-) 434
William IV.
1. {Bristol Poor Rate) 267
c. 18. 8. 1. {Settlement, Rent- \ 136
•fig) 1233
C.21. 8.3. {Mandamus) 297
8. 6. {Mandamus, Costs) 897
1 & 2. c. 58. 8. 1. {Interpleader) 926
8. 6. {Interpleader^ Order
of Court) 625
C.60. {Vestries) 80
2. C.39. (Uniformity of process) 619
8.4. {Copy of process) 553
Sched. No. 1. {Copy of
process) 620
c. 45. 8.3. {Members for
Marylebone) 85
2 & 5. c. 64. 8.35. {Boundaries
of Boroughs) «*•
c. 120. {Stage Coaches) 330
— Sched. No. 8. {Convic-
tion) 330
3 & 4. c. 1 5. {Copyright) 580
C.42. 8. 16. {Reference to
8 & 9 >K. 3.) 330
s,n,{Writoftrial)^^l^
8. 18. {Certificate,
Amendment) 76
8. 23. {Amending
record) 6 1
s, 25, {Special case) 580
8.30. {Error, In-
terest) 895
84 3 1 . {Costs against f 338
Executor) \ 896
s. 48. (i4m«irftiig"]
2 & 3 H^. 4. y 330
c. 120. J
c. 53, 8. 90. {Customs* Commit-
ment, Certiorari) 843
XXVllI
RULES OF COURT CITED.
William IV. Page
3 & 4. c. 55. 8. 27. {Ship, Certificate
registry) 481
' 4 & 5. c. 40. {Friendly Societies) 527
c. 76. S.51. {Poor, Supply
to Workhouses) 522
William IV. Page
4&6. C.76. 8. 64. 1 {Settlement,
s,65,J Hiring4rServi9e)^^4
c. Izii. {York Improvements) 829
c.xcii. 8.8. 11, 12. {Lwerpool
Court of Passage) 616
RULES OF COURT CITED.
Page
Uil. 26 G.J. {Charging in execur
tixm) 861
Mich. 57 G. 3. {Affidavit. Era-
sure) 376
Hil. 2W.4. I. 8.74. {CosU,) 341
Page
Hil. 2W.4. I. 8.85. {Charging in
execution) 860
Triii.3W.4. 8.3. {Bankrupts Bail) 382
Uil. 4 W. 4. Fir8t general rule8 of
pleading, 8.5. {Amendment) 64
ERRATA.
Page 49. marginal note, lines 11 and 12. for ** administered" read <' became executor."
ib. marginal note, line 4. from bottom, for " B,, as administrator** read ** B., as
executor."
52. marginal note, line 5. from bottom, for " covenant*' read ** agreement.'*
126. line 7. from bottom, for ** surrender** read « surrenders.*'
218. lines 15t 16« for "so admitted to be in existence** read '* really intended to lie
sued upon, he having by mistake answered to a different bill.*'
329. line 14. after "same title** read " L. 5.**
S4a line 21. for ** 2 & 3** read " S & 4.**
394. lines 13 and 14. retA " Bowerbank served a summons for time to plead, which he
obtained.**
ib, line 15. for " tbey " read " ITr^gA/.**
595. line 19. for " the defendants" read <• IFright.**
404. line 16. for " neo *' read ** nemo.**
405. line 14. for " ethaeredibus ** read " et haeredibus.*'
697. line 16. for <* Gloucester" read " Dorchester.**
750. line 17. for "defendant** read " plaintifi."
752. line 20. for " Raptr** read <* Roper.**
ib, last line but one^ for " Reed** read " Read.'*
Sale. Page 48. note (a, Summers v. MoseUy is now reported, 4 TyrwA. 158. 2 Cr.>.
4- M. 477.
CASES
ARGUED AND DETERMINED 18S4.
IN THX
Court of KING'S BENCH,
AND
UPON WRITS OF ERROR FROM THAT COURT
TO THE
EXCHEQUER CHAMBER,
IN
Easter Term,
In the Fourth Year of the Reign of William IV.
MEMORANDA.
During the last vacation his Majesty was pleased, by
bis letters patent, to grant the dignity of a Baron of the
United Kingdom of Great Britain and Ireland to the
Right Honourable Sir Thomas Denman Knight, Chief
Justice of the Court of King's Bench, and the heirs
male of his body lawfully begotten, by the name, style,
and tide of Baron Denman of Dovedale in the county
ofDerbff.
Vol. I. B In
CASES IN EASTER TERM
18S4. In the same vacation Mr. Baron Bayley resigned his
"""^^ seat on the Bench of the Court of Exchequer, and was
on that occasion created a Baronet of the United King-
dom. He was succeeded, on the 28lh day of February^
by John Williams Esquire, who was first called to the
degree of serjeant at law, and gave rings with the motto,
" Tutela legum;" and who afterwards received the
honour of knighthood.
Sir William Horne^ in the same vacation, resigned
the office of Attorney-General, in which he was succeeded
by Sir John Campbell^ his Majesty's Solicitor-General.
Charles Christopher Pepi^s Esquire, one of his Majesty's
counsel, succeeded Sir John Campbell in the office of
Solicitor-General, and received the honour of knight-
hood.
Mr. Serjeant Jones, in this vacation, received his
Majesty's licence to bear the surname of Atcherlet/y in
pursuance of the will of his late maternal uncle.
Early in Easter term Mr. Justice ParJce^ Mr. Justice
jUdersotif Mr. Baron Vaughan^ and Mr. Baron Williams^
resigned their seats in their respective Courts. Mr.
Baron Williams was appointed a Judge of his Majesty's
Court of King's Bench, Mr. Baron Vaughan a Judge of
the Court of Common Pleas, and Mr. Justice Parke
and Mr. Justice Alderson Barons of the Court of Ex-
chequer. They took their seats in the several Courts,
according to the last-mentioned appointments, on tlie
89th day of ApriL
IN THE Fourth Year or WILLIAM IV, $
1834.
IN THE EXCHEQUER CHAMBER. .
(Error from the King's Bench.)
Wright against Doe dem. Tatham (a).
THE defendant in error declared in ejectment against A bill wm filed
the plaintiff in error in the Court of King's Bench. ag%inst several
At the trial before Gumey B., at the Lancaster Spring whereupon an
assizes, 183S, the jury found a verdict for the plainuff Irvel'^non wm
below, and the counsel for the defendant below tendered ^^^^l *°j
' which the de-
a bill of exceptions. fendontt in
* Chancery were
By the bill of exceptions it appeared, that the plaintiff pUUntiffs, and
the plaintiff in
below claimed as heir at law of John Marsden deceased, Chancery de-
wfao was admitted to have died seised, leaving the specting a will
plaintiff below his heir at law; but Wright claimed Soned'in*the .
proceedings,
dcnsiDg real property. The issue was found in the aflSrmative, and the bill di&iniised. At
the trial of the issue, one of the three attesting witnesses to the will swore to its execution.
The plaintiff in Chancery afterwards brought ejectment on his own demise, as heir at law
of i/., against one of the defendants, who claimed, as devisee of i/., for the premises which
had been the subject of the issue. After the action of ejectment was commenced, judgment
was cmcred up on the issue from Chancery, in the court of law in which it had been tried.
An order of Court was made in the action of ejectment, that the short-hand writer's and
Judge's notes of the evidence of such witnesses on the trial of the issue, as should be dead
before the trial of the ejectment, should be read at the latter trial.
On the trial of the ejectment, the defendant gave evidence of these several proceedings,
tad proved the former testimony of the above-mentioned witness, who was dead, from the
ihoruhand writer's notes; and he produced a will, which was identified with that proved on
the trial of the issue out of Chancery : Held, that this was sufficient proof of the execution
of the will, though another attesting witness was present at the trial of the ejectment ; but
thit without proof of the evidence of the deceased witness, such proceedings would not have
been proof of the execution.
A question having arisen as to the sanity of the devisor, letters were tendered in evidence,
vhich had been found among his papers shortly after his death, written to him by persons
•I his acquaintance, of whom all but one were dead ; one of the letters purporting to be
sa SQswer to a letter written by the devisor. Quart, Whether such letters were admissible,
■ diewing that the devisor was treated by hb acquaintance as a person of sound mind.
(s) The cases argued and decided in the Exchequer Chamber, on writs
flf error upon judgmenu of the Court of King*s Bench, will in future be
r>bliriMd ia tb€i« Beports.
B 2 under
CASES IN EASTER TERM
1834.
WllIOHT
against
Dox dem.
Tatham.
under a will of Marsden. It appeared further, that the
counsel for the defendant below were allowed to state
and prove their case first.
The first exception stated, that at the trial it became
a matter in issue between the parties, whether or not
Marsdcn had been, from his attaining to competent age,
and down to the time of executing the will, a person of
sane mind and memory, and capable of making a will.
Shortly after MarsderCs death, there were found among
his papers several letters appearing to be addressed to
him by different individuals, and one of them purport-
ing to be an answer to a letter received by the writer
from Marsden. The hand-writing of these letters was
proved ; and it was proved that all the writers, except
one, were dead, and had been in habits of acquaintance,
more or less intimate, with Marsden. These letters being
offered at the trial to prove the affirmative of the above
issue, and being objected to as inadmissible, *^ the said
Baron stated his opinion to be that the said letters re-
spectively, and each of them, were and was not by law
admissible as evidence, and refused to admit the same
respectively as such. Whereupon the counsel for the
said defendant made his several and respective excep-
tions to the said opinions of the said Baron."
The second exception stated, that at the trial it
further became a matter in issue between the parties,
whether or not Marsden devised the premises mentioned
in the declaration, so as to bar the title of the lessor of
the plaintiff below. The counsel for the defendant
below proved that the lessor of the plaintiff had filed a
bill in Chancery against the defendant below and three
other persons, in respect of the said premises, praying
that a will therein mentioned, relating to the same pre-
mbes,
IN THE Fourth Year of WILLIAM IV.
mises, purporting to be a will o{ John Marsden, might be
set aside. It was provjed, that the defendants In Chancery
haTiDg, in their answer, set forth the last-mentioned will,
the Master of the Rolls thereupon ordered an issue of
devisavit vel non, in which the defendants in Chancery
(including the defendant below) should be plaintiffs, and
the plaintiff in Chancery (the lessor of the plaintiff
below) should be defendant. The counsel for the de-
fendant below produced the nisi prius record in the
Court of King's Bench, of the trial of the issue, with
the postea indorsed, whereby it appeared that the jury
found that Marsden did devise, &c., in the words of the
issue. The counsel for the defendant below further
proved, that the will which had been in question on the
tiial of the issue was a will which he then tendered in
evidence, and that one Giles Bleasdaky a subscribing
witness to it, had sworn to the execution of it at the
uial of the issue, and had since died. It appeared, on
cross-examination of one of the witnesses produced by
the defendant below, that Proctor^ another subscribing
witness to the will, was still alive, and was then present in
Court under a subpoena, as a witness on behalf of the
defendant below. The counsel for the defendant below
further proved, that the Master of the Rolls by a decree,
reciting, among other things, the trial of the issue, dis-
missed the bill in Chancery; and they also produced an
examined copy of a judgment entered up in that issue in
the Court of King's Bench, signed after the commence-
ment of tliis action of ejectment (a). They then proved
a rule
(t) In Easter tenn 1834, Sir James Scarlett moved For a rule to shew
tuut why this judgment should not be set aside, as being improperly
entered up on a feigned issue out of Chancery. The rule was made ab^
solute in the same term, no cause being shewn.
Hie roll baTing been carried into the treasury, the clerk of the treasury
Q 3 intimated
1834.
Whioht
againai
Dob dem.
Tatham.
6
CASES IN EASTER TERM
WmoHT
against
Doxdem.
Tatham.
a rule of the Court of King's Bench, made in the pre-
sent cause, ordering that the Judge's notes, and the short-
hand writer's notes, of the evidence, given at the trial of
the issue, of witnesses who should since be dead, should
be read at the trial of this ejectment. Bleasdale*8 evidence
at the trial of the ejectment, was accordingly read from
the notes of the short-hand writer. The counsel for the
defendant below then tendered the will in evidence;
but it was objected that this could not be read until the
execution had been proved by the attesting witness then
present in Court. ** And the said Baron thereupon
stated his opinion to be, that the said will could not be
read in evidence, and refused to admit the same, unless
the said living attesting witness was called by the said
defendant to prove the execution thereof. Whereupon
the counsel for the said defendant made his exceptions
to the said opinion of the said Baron, that the said will
could not be read in evidence, unless the surviving
witness was called."
The third exception was as follows : — ^* And there-
upon the said Baron stated his opinion to be, that the
evidence, so as aforesaid given by the said defendant,
did not sustain the affirmative of the said matter in con-
troversy and at issue as last aforesaid, as to the said will
as aforesaid, and directed the said jury to find a verdict
for the plaintiff. Whereupon the said counsel for the
said defendant made his exception thereto."
The exceptions concluded with the prayer of the
counsel for the defendant below, ^* that the said Baron
intimtted that be did not know in what way the judgment was te be aet
aside, and the Judges directed that he should attend in Court to receive
their directions. Upon his doing so, he was directed by the Court to
make an entiy on the margin of the roU, that the judgment had been set
aside by rule of the Court, and that the entry was made by their order.
would
IN THE Fou&TH Year OF WILLIAM IV.
would $et his hand and seal to this bill of exceptions^
ooQtaining the several matters as aforesaid, according to
the ibnn/' &c^
The jury found for the plaintiff. Judgment having
been entered in the Court below for the plainti£^ the
defendant brought his writ of error. The assignment of
errors specified the three points raised respectively by
the three exceptions as above mentioned (a).
The case was aigued in Hilary term 1834 {January
18th), before Tindal C. J., Park J., Gaselee J., Bostrn^
quei J., Bayley B., Vaughan B., and Gumey B.
188«.
agamti
Dak dem^
TAtRAMk
JF*. Pollock for tlie plaintiff in error. As to the first
exception, the letters are evidence as written declar-
ations made to the testator, shewing how he was treated
by the persons who corresponded with him. They are
admissibly just as evidence of a conversation held with
him would be. IBm/ley B. Could you make part of
that conversation evidence, without including the answer
of the party with whom it was held ?] If such party
were shewn to have made no answer, that would be
matter of remark ; but it would be no more. Suppose
the letters contained discussions, involving difficult
questions in science or in art, and were addressed
to Marsden by persons eminent in those departments :
the fact of their being so addressed would be, by itself,
evidence directly affecting the matter in controversy.
There can be no doubt that letters of a different import,
(a) When this case came on to be argued, a question arose, whether
the points disputed were aU suflScientlj raised on the bill of exceptioDS*
the Court intimating some doubt, whether they should not have been all
&tinctly specified at the conclusion of the bill ; and Botanquel J. re-
ferred to a case of LewU t. Armslrongt argued in the Exchequer Chamber
m the prtoeding term, in which the tame difficulty had arisen. The
Court, however, ultimately decided that the bill, in its present form, suf-
^cieady brought the wvtral points under its cogfkitance.
B 4 found
8
CASES IN EASTER TERM
1834*.
WUGHT
I>oidein«
Xatbam.
found as these were, would have been evidence to prove
the non-sanity of Marsden. In a case of Butlin v. Barry^
heard on the 16th of January in this year in one of the
ecclesiastical courts, a memorial written by an illiterate
person for the deceased, and adopted by him, and re-
maining amongst his papers after his decease, was
allowed as evidence to shew his incapacity. In Wheeler
and Batsford v. Alderson (a), a question arose as to the
capacity of a person who died in 18S0, a widow, leaving
a will dated in 1822. Sir John NichoU^ in his judgment,
which was in favour of the will, referred to a letter written
by the deceased person's husband in 1802, as bearing
every mark of being addressed to a wife who conducted
herself with propriety, and treated this letter as evidence
confirming other proofs of the deceased's capacity. The
same point arose in Waters v. Havdett (6). The printed
report of that case refers entirely to another point : but
the manuscript notes of the reporter contain the follow-
ing statement. A letter written by a brother of the half
blood to the deceased, from France^ was offered in evi-
dence to shew the way in which the deceased was treated
by his friends and relations, and that the writer did not
consider the deceased insane or incompetent. There
was no reply, nor did the letter refer to any commu-
nication received from the deceased, but it was a letter
of condolence on the death of his wife, and requesting
a reconciliation between him and the writer. This evi-
dence was objected to, but admitted after argument.
As to the second exception. The bill of excep-
tions identifies the property now in question with that
which was the subject of the proceedings in Chan-
cery : tlie first question then is, whether a verdict on a
specific issue between the same parties, coupled with the
(a) 5 Bag. Ece* lUp, 609.
(h) 5 Hag. Ecc. R. 790.
adoption
IN THE Fourth Year of WILLIAM IV,
adopdon of such verdict by the Master of the Rolls as
the foundation of his decree, be not at least primfl facie
eridence of the truth of the fact found, as between the
same parties contesting the same fact, so as to. make
&rther evidence unnecesssary. For the lessor of the
plaintiff in ejectment, and the tenant in possession^
are the substantial parties to an action of ejectment:
AsUn v. Parkin (a). It is true, that the defendant in
this action of ejectment was joined with others in the
former proceedings ; but that does not destroy the ad-
missibility of the records as evidence, whatever might
have been its effect, if it bad been sought to use them
by way of estoppel : Kinnersley v. Orpe (6). There a
record was held admissible as evidence in an action by
the same plaintiff against another defendant, on the
ground that the defendants, in the two causes, claimed
to act under the same authority, the sufficiency of the
aatbority being the question in dispute. A similar prin-
ciple prevailed in StnUt v. Bovingdon and Others {c)f
where Lord EUenborough said that, although the record
produced was not an estoppel, he should think himself
boand to tell the jury to consider it as conclusive of the
rights of the parties. In Hitchin v. Campbell {d\ the
former record was admitted, though the form of action
vas different. Then, if the former records be admissible
evidence, they constitute at least prima facie evidence of
the &ct found by the verdict: Bac. Abr* Evidence, F. (e)
In Outram v. Morewood{g)i the question arose upon the
record being replied as an estoppel, and the replication
was held good. If not pleaded, it cannot be less than
18S4.
'Wttianr
agttintt
DoKdem.
Tatham.
(a) 2 Burr, 665. {b) 2 Doug. 517. (c) 5 Esp. JV.P. C. 58.
(iO 2 IT. Bl. 779. 827. See 1 Siark, Ev. 2J 9. (ed. 1833.) Com* Dig.
Etidenctf A. 5.
(«) Vol ui. p. Q55. (ed. 1832.) ig) 3 Ettstt3A6.
prima
10
CASES IN EASTER TERM
1884.
Wftism
n/gamU
Doc dent.
Tatham.
primA facie evidence: Vooght ▼• Winch {a\ Hancock v.
WeUk and Another (6). With respect to any objection
arising from the proceedings having originated in
equity^ Whately ▼• Menheim and Letjy^c) shews that
they are not on that account inadmissible. The decree
of the Court of Chancery takes the place of a judg*
ment at law : Montgomerie v. Clarke {d). If it be said
that there is a technical and absolute rule that a will
of lands must be produced, attested according to the
requisites of the statute, the answer is, that the rule
does not go that length. iBayley B. The attesting
witness must have been called on the former occa-
Mon.] At any rate, some satisfactory proof must have
been given. In Burnett v. Lynch {e\ the testimony
of the subscribing witness to a lease was dispensed
with. IBayley B. It had been thought that, where a
party producing a deed upon notice took an interest
under it, the opposite party might, in all cases, treat it
as proved to be executed. That rule was considered a
bard one, and has been qualified since. The language
of the Chief Justice in Burnett v. Lynch {e\ shews that
that case was an exception from the general rule.] In
Scott V. Waithman {g\ the testimony of the subscribing
witness to a bond was dispensed with in an action
against the sheriff on that bond, the defendant having
produced it. So the acknowledgment of the bargainee
was held to be proof of a bargain and sale which was
enrolled, without proof of the sealing and delivery,
Smartle d. Newport v. Williams {h). No admission by a
(a) ^B-i AU. 662.
(c) 2 Etp. N. P. C. 608.
(e) 5B,iC, 589.
(A) ISalk.lBO,
(6) 1 anrife, JVT. P. C. 347.
(dj Pu/. N. P. 234.
{g) S Stark. N. P. C 168.
party,
IN THE FOVtLTU YlAR OF WILLIAM IV.
n
party, thoogh made on record^ can be stronger evidence
than the verdict of a jury adopted by the Court which
has directed the iasHe. Therefbrei it was not necessary
to produce the will at all ; but^ if it was necessary^ then
it was sufficient to produce^ as has been done, the pre*
nous records, and to identify the will which actually
was produced as the subject-matter of those records :
and the bill of exception shews that this identification
has been made. The second question raised upon the
Mcond exception is, whether, if it be necessary that the
sabocribing witness should be called, that rule has not
been complied with by the evidence given, under the
order of Court, of Bleasdal^B testimony on the former
occasion. In Rex v. JaUiffe {a\- Lord Kenyan said, that
evidence which a witness gave on a former trial might
be used on a subsequent one, if he had died in the
interim. The same point was ruled in Sirutt v. Bo*
vingdon and Others {b\ Mayor of Doncaster v. Day{c\
P^e V. Crouch {d). Nor is it material that another
witness to the will was alive; for, in the cases cited, the
evidence would not have been rejected upon proof that
other witnesses were alive, capable of proving the fact
in question*
Wiitefi*
Sir James Scarlett for the defendant in error. As to
the first exception, the question respecting the admis*
sibility of the letters is rendered immaterial by the second
exception. But the rejection of the letters was correct.
Evidence was admitted to shew their character; and
then the question arose, whether their contents could be
read. Now the contents could be produced only as, first,
a statement of facts, or secondly, a statement of the
(a; 4 7. R. S90. (6) 5 E^ N. P. C. 56.
(c) 8 T9uni» 26S. (</) 1 Ld. Raym, 730. (5th molttUon.)
opinions
12
CASES IN EASTER TERM
WuQur
Dob don*
Tatbam.
opinions of the writers : in neither character were they
admissible. To receive the opinion of a deceased per-
son, as to the sanity of another, would be to admit
evidence without an oath. The argument on the other
side proceeds upon an assumption that the criterion of
the admissibility of such evidence is the effect which
it would produce if received; whereas objectionable
evidence is rejected, precisely because it is capable of
producing an effect, if received : the question is, whether
the law will allow the effect to be produced by such
evidence. If a jury might be told that many living men
of science had expressed an opinion in favour of MarS"
detCs sanity, it would probably produce an effect on
them ; but it would not be receivable evidence. The
evidence in Butlin v. Barry {a) was admissible on the
ground that the adoption of the memorial was an act
of the deceased person. The report of Wheeler and
Batsford v. Alderson {b) does not shew in what way the
letter there referred to was found. As to the case of
Waters v. Hcndett (c), it is a decision contrary to the
principles of the common law courts, and probably de-
pended upon some rule connected with the peculiar pro-
cess of the ecclesiastical courts respecting evidence.
As to the second exception, and the first question
raised by it ; the general rule is, that when an attesting
witness to a document is alive he must be called. The
statute of frauds having prescribed peculiar solemnities
for the devising of lands, the Court will be less willing to
admit an exception in this case than in any other. The
strictness of the rule is relaxed in tlie case of a will,
under circumstances only of extreme necessity : Hands
v. James {d) is an instance. Here the existence of a
(a) Ante, p. 8.
(c) J H<tg, Ecc. Bfp* 790.
(b) S Hag, Ecc. Rep, 609.
(rf) 2 Comyni's Rep. 531,
living
IN THE Fourth Year of WILLIAM IV.
13
living witness does away with the necessity. The records
of the previous proceedings are not evidence to prove
the will. In the first place, the bill is not evidence,
even against the party filing it, except for the purpose
of proving the prayer and explaining the decree. The
answer cannot be read here, except as connected with
the decree ; for it is the evidence of the party who now
seeks to use it: it cannot be used to prove the facts
asserted in it. The decree was for the dismissal of the
bill ; that can have no greater effect than a nonsuit at
common law. Besides, a bill may be dismissed on the
&cts stated in the defendant's answer. This is not a
decree binding the parties ; if it had been so, its effect
might have been different. With respect to the feigned
issue, it is true that the bill of exceptions shews that a
judgment on the verdict was signed in the Court of King's
Bench after the present action of ejectment was brought.
Such a judgment, if pleaded, must be pleaded puis
darrein continuance. It is, however, not usual to sign
judgments on feigned issues. The issues are tried
under the direction of the Court of Chancery, and do
not bind that Court Admitting that, for the purpose
of using tliese proceedings in evidence, it was competent
to shew that the subject-matter of them related to the
will, that would carry the proof of the will no further in
the present action. If a landlord brought covenant
against his tenant for non-repair, and the lease were
read at the trial, and a verdict were recovered, and
afterwards the landlord brought a second action against
his tenant for arrears of rent, the former record would
have been between the same parties, yet the plaintiff
would not be permitted to put it in and connect it with
the lease, for the purpose of proving the execution of
the
18S4.
WftlGHT
agaifut
Doc d«D.
TATUAlf.
H
CASES IN EASTER TERM
1834.
We|3HT
Dos tern.
Mgamtt
TAlfBAH*
the lease. Even the answer in equity of the obligor of
a bond, admitting its execution, is merely secondary
evidence of tlie execution, Call y. Dunning (a), and no
foundation has been laid here for the admission of
secondary evidence. Secondly, as to the sufficiency of
the evidence of Bleasdal^s former testimony. The
best evidence of the execution of the will must be given.
Bleasdal^s former evidence is not the best^ another
witness lieing alive. It cannot supersede the necessity
of giving the best evidence, although it may be adduced
in confirmation. IBayley B. The question is, whether
this production of Bleasdale^s evidence has not the
same effect as if the evidence had been given by him in
the witness box on the present trial.] The judge and
jury ought to have the same means of examining his
evidence as were afforded on the first trial. As for the
order of Court, that cannot make his former testimony
evidence in this case, more than it would have done if
that testimony had not been given before a jury. Now
bad it been given, for instance, by way of deposition in
an equity suit, it would have been no proof of the exe-
cution of a will. And the contents of the will are not
proved at all, unless BUasdal^s evidence be admitted to
connect it with the record of the former issue.
JP. Pollock in reply. The letters are not offered
as shewing either facts or opinions by their contents,
but as constituting in themselves a fact, namely, the
treatment of Marsdeti by the writers. No argument can
be drawn from the nature of the second exception,
against the validity of the first. If the letters were im-
properly rejected, there is error on the record, what-
(a) AEaUtSS.
ever
IN THE Fourth Ykar of WILLIAM IV,
15
ever may be decided on the second exception. Had
the defendant closed his case at that rejection, he
would never have been called upon to prove the will.
In Jjuoas v« IfockeUs {a\ in the House of Lords, Lord
Ttnterdtn would not allow counsel to use a matter
appearing oo a bill of exceptions, not being distinctly
excepted to, for the purpose of reversing the judgment,
stjin^ that the court of error had jurisdiction, on a bill
of exceptions, only to decide on the matter excepted to.
On the same principle, nothing which appears here from
the lecond exception only can be made use of in the dis-
cassioa of the former. The case suggested, of successive
actions for non^repair and for rent in arrear, on the
sameleaic, is not analogous; for, in the present case,
there was a specific issue on the first record of devisavit
vel ttoo, which is now coupled with evidence of the
subject*iiiatter being the same. As to the alleged in-
soffideocy of the several parts of the proceedings in
equitjr taken singly, they are used as introductory only
to the issue and verdict, and the decree which adopts
tbis Ust. The answer is offered, not to prove the facts
alleged in it, but to explain the subject-matter of the
issuer devisavit vel non. Besides, the dismissal of the
bill did not take place upon the allegations of the answer,
as suggested, but upon the trial of a material traverse.
It is an adoption of the verdict by the Court. If a
ibnnal judgment of the Court of King's Bench be
necessary, that has been entered up here. With re*
spect to the objections to Bleasdale^s evidence, there is
. no authority for saying that the testimony of a dead
witness, provided it can be given at all, is not evidence.
1834.
WUGHT
agaifut
Doc drai.
(a) Reported, but not on this point, 10 Bit%s» i^7.
even
16
CASES IN EASTER TERM
18S4.
Wkioht
againti
DoK dem.
Tatham.
even as to the execution of a will^ of as high a nature as
that of a living one. The statute of frauds does not
specify how the attestatioui which it requires, is to be
proved. Tlie argument on this point would go the length
of shewing that all the three witnesses must be called.
Cur. adv. vuU.
TiNDAL C. J. delivered judgment in the same term.
Upon the argument of this writ of error, the two ex-
ceptions which were taken by the defendant below to
the direction of the learned Judge at the trial of the
cause, and which are specially assigned as errors upon
this record, have been fully discussed before us. The
first exception is taken upon the refusal by the learned
Judge to admit in evidence certain letters which were
offered by the defendant. These letters were proved to
have been written by different persons well acquainted
with the late John Marsden at difi*erent periods of his
life, to have been addressed to him in his lifetime,
and to have been found amongst his papers shortly
afler his death, the writers of such letters being dead at
the time of the trial. Upon this exception there exists
a difference of opinion in the Court, on the point
whether such letters were admissible in evidence or not.
But, as all the Judges agree that the second exception
ought to be allowed, and as the consequence of such
allowance is that a venire de novo must be awarded, it
becomes unnecessary, on the present occasion, to enter
into any discussion of the particular views taken by the
Judges as to the first exception.
The second exception was taken to tlie opinion
delivered by the learned Judge at the trial, as to the
admissibility in evidence of the will and codicil of the
said
IN THE Fourth Year of WILLIAM IV.
17
Slid 3okn Marsden. It was ruled by him, that the will
and codicil could not be read in evidence until the
sonriving attesting witness to such will and codicil, who
was proved to be within the jurisdiction of the Court,
was called and examined as to the execution of the will;
tnd that the necessity of calling such surviving witness
was not dispensed with by the producing and reading
in evidence the examination and cross-examination of
another of the attesting witnesses to the will and codicil,
since deceased, taken upon a former trial at law, upon
an issue between the same parties, and upon the same
question now in controversy. And upon this point, we
are all of opinion, that the will and codicil, after the
production of the evidence above stated, were admissible,
and ought to have been received in evidence without
fiirther proof; and, consequently, that the second ex-
ception must be allowed.
In order to explain the reasons upon which our
opinion is formed upon this second point, it will be
proper to consider, in the first place, the ground upon
which we hold the examination and cross-examination
of the attesting witness to the will, to be admissible in
evidence after the death of such witness, for any purpose
as between the parties to the present suit ; and, secondly,
the degree and character of such evidence, and the effect
and weight to which it is entitled, when once admitted,
with reference to the subject-matter in dispute.
In the course of the argument, indeed, on the part
of the plaintiff in error, it was strongly pressed upon
us, that the proceedings in the courts of equity and
law, which are set forth in the bill of exceptions,
formed such a prim& facie case in favour of the will as,
if not to dispense with the necessity of giving any
Vol. I. C further
18S4.
Weight
agnimt
DoK dem.
Tathak.
18
CASES IN EASTER TERM
1834.
Wmght
agttintt
Dotdem.
Tathax.
further evidence whatever on the part of the defendant
below, at all events to let in the reading of the will.
Upon this point it will be sufficient to say, that we
are all agreed that such proceedings had no such effect.
For, unless they could be held to go the length of
creating an estoppel against the plaintiff below, we see
no ground for holding them to constitute a prim4 facie
case in his favour. And that they could not constitute
an estoppel appears sufficiently clear from the nature of
the proceedings themselves, as set out on the record.
As to the second ground of exception, the facts are,
that Mr. Tatkam, the lessor of the plaintiff in this
action, filed his bill in chancery against Mr. Wright,
the defendant in the present action, and three other
persons. And, upon the answers of the defendants
coming in, the Master of the Rolls directed an issue at law
upon the question, whether the said John Marsden did
devise his estates or not by the very identical will which
is now in dispute.
It was further proved, that a trial of such issue, in
which Mr. Wright and the other defendants in the
chancery suit were the plaintiffs, and Mr. Tatham was
the defendant, afterwards took place ; and that, on the
trial of that issue, Mr. Giles Bleasdale, one of the attest-
ing witnesses to the will, was called and examined on
the part of Mr. Wright, and was cross-examined on the
part of Mr. Tatham. Now, if tlie former trial had
taken place in a suit between Mr. Wright and Mr. Tatham,
and those persons alone, no doubt could have been
raised that, after the death of this witness, the evidence
which he gave upon the former trial would have been
admissible upon the second. For, in that case, it
would have been evidence given in a suit between the
very
20
CASES IN EASTER TERM
1884.
Wright
againsi
DoK deixu
Tathasi.
trial, and the examination of witnesses on each side,
did not take place in a suit between third parties, or
strangers, but virtually and substantially between the
very same parties who are parties to the present suit,
and upon the very same subject-matter of dispute.
Nor can there, as it appears to us, be any objection to
the admissibility of this evidence, on the ground of the
plaintiff in equity having thought proper, since the
trial, to dismiss his own bill. For, whether the bill is
dismissed or not, the evidence was given in the course
of the trial of an action in a court of common law
under the obligation of an oath. The witnesses upon
that trial are equally liable to the penalties of perjury
if they have wilfully forsworn themselves, whether the
bill in equity is dismissed or not; and the evidence
given at the trial cannot be affected in its weight or
character by the voluntary act of the plaintiff in equity
dismissing his own bill : the effect of which, as to the
consequences above adverted to, can be no other or
different than if the plaintiff, in an action at law, had
elected to be nonsuited rather than have a verdict
against him.
But upon another, and . that a perfectly distinct
ground from the former, we think the examination of
Bleasdale was admissible in evidence on the present
trial. For a rule of Court was made by consent in the
present cause, which contains an express agreement
between the plaintiff and the defendant in this cause,
that the short-hand writer's notes, and the Judge's
notes, of the evidence on the former trial, should be
read in evidence on this, as to such witnesses who
should be dead or beyond sea. After this agreement
between the parties, we think it was not open to the
plaintiff
IN THE Fourth Year of WILLIAM IV.
21
plaintiff to dispute that the evidence given by Mr.
BUasdak on the former trial should be read in evidence
on the present, his death having been first proved.
I^ therefore, such evidence be, as we think it is,
producible, the only question that remains is, what is
the character and degree of that evidence^ and for what
purpose it can be produced ; and it seems to us, that
sach evidence is direct and immediate evidence in the
cause, and is producible in evidence in the cause for the
same purpose and to the same extent as if the witness
himself had been alive and sworn, and had given the
same evidence in the witness-box in the present cause.
For unless the evidence is carried to this extent, it is
impossible to define any line or limit to which it shall
be held to extend.
It is objected on the part of the plaintiff below, first,
that the admitting of this evidence is in contravention
of the rule of law, by which the best evidence is re-
quired to be given in every case; for it is contended
that the viva voce evidence of Proctor^ the surviving
witness, is better evidence than the examination of
BleasdaU^ who is dead.
But we think this argument assumes the very point
in dispute. If the evidence which had been offered of
the execution of the will, had consisted simply in
proving the hand-writing of Bleasdale^ one of the
attesting witnesses, which would have been the legiti-
mate mode of proving the attestation by him, after his
death, it might indeed have been objected with some
ground of reason, that such evidence could not be the
best, whilst another of the attesting witnesses was still
alive, and within the jurisdiction of the Court. For, in
that case, the proof of the hand-writing only would
C S have
18S4.
W«ICHT
ngninst
Doc dem.
Tatham.
22
CASES IN EASTER TERM
18S4.
WmcHT
agaifut
Dob dein.
Tatham.
have done no more than raise the presumption, that lie
witnessed all that the law requires for the due execution
of a will; whereas the surviving witness would have
been able to give direct proof, whether all the requisites
of the statute had been observed or not. Such direct
testimony, therefore, might fairly be considered as
evidence of a better and higher nature than mere pre-
sumption arising from the proof of the witness's hand-
writing. Stabitwr prcesmnptioni, donee probetur in con--
trarium. The effect, however, of Bleasdal^s examin-
ation is not merely to raise a presumption ; it is evidence
as direct to the point in issue, and as precise in its
nature and quality, as that of Proctor when called in
person : it is direct evidence of the complete execution
of the will, by the statement upon oath of the ob-
servance of every requisite made necessary by the
statute of frauds. If Proctor had been examined in
the present action by the plaintiff below, there can be
no doubt but the examination of Bleasdale on the last
trial might have been put in, to contradict him. But
on what principle could such contradiction have been
admissible, unless the evidence obtained by means of
the examination was of as high a character and degree
as that of the viva voce examination of the surviving
witness ? If the parol examination of Proctor was the
better evidence, as contended for, how could it be
opposed by the inferior evidence of Bleasdale^s ex-
amination ?
It was objected, secondly, that to allow this testimony,
that is, to dispense with the necessity of calling the
surviving attesting witness, is, in effect, to destroy the
security intended to be given by the statute of frauds.
For it is said that, as that statute requires the attest-
ation
>
24
CASES IN EASTER TERM
ISS^.
April 15th.
The tUtute
48 a 3. C.123.
for the dis-
charge of per-
aons 10 exe-
cution upon
any judgment
for any debt or
damages not
exceeding 2(V.,
applies to per-
sons in exe-
cution for
damages in
actions of
assault.
Winter against Elliott {a).
nrHE defendant had been imprisoned more than
twelve months in execution! on a judgment for
damages and costs, in an action for assault and battery,
the damages being 1 5.
Knawles moved this day, before Taunton J. in the
Bail Court, that the defendant should be discharged
under the statute 4*8 G. 3. c. 123. The learned Judge
granted a rule, to which no opposition was made at the
time. Granger having afterwards made an application
in this Court to have thj matter re-opened, on the
ground of the plaintiff having been unprepared, the
Court called upon him to state on what grounds he
proposed to resist it.
Granger. The statute does not apply to executions
for damages for an assault and battery. The words of
the preamble are, " whereas it might tend greatly to the
relief of certain debtors in execution for small debts : "
and it states, that the relief proposed will " occasion no
material prejudice to trade and public creditJ^ These
expressions are inapplicable to damages for a tort. It
is true that, in the enacting part, the words are, '^ all
persons in execution upon any judgment for any debt or
damages not exceeding the sum of 20/.'* But, taking
the preamble together with the enacting part, the word
(a) Taunton J. sat in the Bail Court this term.
** damages"
IN THE Fourth Year op WILLIAM IV. 25
^ damages" must be construed to mean only such 1884.
damages as are given in satisfaction of what is properly ^
called a debt. a^inM
Eluott.
The Court (a) refused tlie application, saying that
they considered the case to be within the statute.
(a) Lord Demnum C. J., LilUedale, Parke, and Pattuon Jf.
Henrt Moore and Charles Moore against wednetdn^,
William Taylor.
A SSUMPSIT on a policy of insurance on the ship An inmrance
•^^ WM made on a
Decagon, at and from St. Fincent, Barbaaoesj and ship at ana
all or any of the West India islands {Jamaica and cent, Barbadoea,
Si. Domingo excepted) to her port or ports of discharge ^^^ fr«^"^
and loading in the United Kingdom, during her stay ^^^^^
there, and thence back to Barbadoes and all or any of P«rt»ofdu-
■^ charge and
the West India colonies (Jamaica and St. Domingo Jo«l»ng in the
^ ^ United King.
excepted), until the ship should be arrived at her final dom, during
port as aforesaid; with liberty for the ship, in that and thence
1 111 b*ck to Bar-
Toyage, to proceed to, and touch and stay at any ports ladoe*, and aU
or places whatsoever, and to load and unload goods at ^weu'india *
all places she might call at On the trial before S^'^|~;h"ouW
Denman C. J., at GuildhalL at the sittinirs after last h«^« •";»^«i "t
' ® her final port
Hilary term, the only question was, whether the adven- •« aforesaid :
•^ . Held, that the
tare had or had not terminated before the loss of the adventure ter-
1 r 1 1 1 1 • •#«* n ro>n*ted at the
vesseJ. It appeared that the plamtins were owners of place in the
West India
Colonies where
she substantially discharged her cargo from the United Kingdom.
The ship discharged all the cargo, except some coals and bricks, at Barbadoes, and was
proceeding elsewhere for a fresh cargo. It became a question, on the evidence, whether the
coals and bricks were retained for the mere purpose of ballast. Ttie jury having found that
lSc cargo was substantially discharged, the Court refused to disturb the verdict.
the
Taylor.
26 CASES IN EASTER TERM
18S4. the ship, residing at Barhadoes. The vessel sailed from
-""" Barbadoes on the lOlh of May 1821, and arrived at
MOORI
agatnst Liverpool in June 1821. At Liverpool she took on
board an assorted cargo, of which a part consisted of
fifty tons of coals in bulk, and 15,000 common bricks.
The coals and bricks, with other articles of the cargo,
were expressly ordered by letter from the owners to
their correspondent at Liverpool ; and they were men-
tioned in the invoice and in the bill of lading as part of
the cargo shipped there. The value of the bricks and
coals together was between one seventeenth and one
eighteenth of the value of the whole cargo : the weight
of the two was about eighty tons, and the burthen of the
vessel 200 tons. She sailed from Liverpool on the 1st
of Jtdy 1831, and arrived at Barbadoes on the 2d of
August 1831. The whole cargo, with the exception of
the coals and bricks, was discharged at Barbadoes ; and
330 empty molasses casks were there taken on board by
the same boats which took the cargo ashore. The
vessel was about to sail from Barbadoes to Berbice, for
the purpose of procuring a cargo, on the 1 1th of August j
but was totally lost in a hurricane on the night of the
10th. On the 31st o(Jult/j two days before the arrival
of the Decagon at Barbadoes^ the plaintiffs sent to their
correspondent at Berbice a letter containing the follow-
ing passage: — " We have determined on sending over
the Decagon with as many rum puncheons as she can
carry besides the coals and bricks that she is ballasted
with; and we request that you will engage as much
molasses as will load her, say 330 puncheons." It was
shewn that both coals and bricks were at a higher price
at Berbice than at Barbadoes. It was also shewn that
some ballast was necessary for the voyage from -Ba;-
badoes
Tatlor.
IK THE Fourth Year of WILLIAM IV. 27
tadoes to Berhice : and one witness stated that the coals 18S4.
and bricks were more than was required for that purpose. "T
The counsel for the defendant contended, that the 'nt^ain»t
adventure was determined at Barbadoes^ the ship having
discharged all but the coals and bricks, which, he
suggested, were retained merely as ballast The learned
Judge directed the jury to find for the defendant, if they
thought that the cargo had been substantially discharged
at Barbadoes. The verdict was for the defendant
Sir James Scarlett now moved for a new trial. First,
assuming that the cargo was discharged at Barbadoes,
the jury should have been directed to consider, whether
dte vessel had arrived at her final resting-place from
the voyage which commenced at Liverpool. The ship
was covered by the policy so long as she was proceed-
ing to any West India colony not excepted, in pur-
suance only of the purpose of that voyage. The owner
could not decide, before her arrival at Barbadoes^ at what
place she should terminate the voyage, and commence a
new adventure; and accordingly the words inserted in
the policy are, " arrived at her final port," not " her
final port of discharge." It could not be contended
that, if she had sailed from Liverpool without any cargo
at all, she would not have been protected by the policy
to Barbadoes: it cannot, therefore, be held that the
duration of the protection, in the present case, is to be
measured by the time the cargo remains on board;
for, as the policy is on the ship alone, its construction
cannot be altered by the circumstance of her having,
or not having, a cargo. In Inglis v. Vaita:{a\ the
bsurance was at and from Liverpool to Martinique^
(a) 3 Campb. 431,
and
Moors
against
TlTLOft.
28 CASES IN EASTER TERM
18S4* and all or any of the Windward and Leeward Islands,
with liberty to touch at any ports or places what-
soever; and Lord EUenborough held, that the risk of
the underwriters ceased as soon as the disposal of the
cargo from Liverpool had ceased to be the sole object
of the ship. But, in the present case, the ship had
never been employed on any purpose besides the dis-
posal of the cargo from Liverpool ; and she was there-
fore protected till her arrival at the port at which it
was proposed that she should take in a fresh cargo.
Secondly, admitting that the jury were rightly directed,
their verdict is contrary to the evidence. The cargo
was not finally discharged till the coals and bricks were
unshipped. They were originally shipped as part of
the cargo. [Parke J. They might have been retained
on board for ballast merely, though a part of the cargo
at first] They would not cease to be a part of the
cargo. • A vessel might contain no ballast whatever
which was not of the same kind as the cargo itself.
She might be laden, for instance, with pig iron ex-
clusively; but she could not be said to be witliout a
cargo because the pig iron served for ballast Besides,
the proportion which the weight of the coals and bricks
bore to the tonnage of the vessel was beyond the ordi-
nary rate of ballast
LiTTLEDALE J. I should probably have arrived at a
conclusion different from that of the jury; for the pro-
portion of the bricks and coals to the rest of the cargo
does appear to me to be very large for articles which
were to serve as mere ballast, and there is no doubt of
their having been originally taken out as merchandise.
That, however, was entirely a question for the jury,
who
so CASES IN EASTER TERM
18S4. but they are, probably, better judges of such matters
than I am.
MOORI
against
Tatlok.
Patteson J. I think the words, ^* final port as
aforesaid," must be construed with reference to the
voyage insured. That voyage was to the ship's port or
ports of discharge and loading in the United Kingdom,
and thence back to Barbadoes^ and all or any of the
West India colonies. The voyage must be concluded
on the discharge of the cargo in Barbadoesj or any of
the West India colonies* The other question was alto-
gether for the jury. I was certainly struck with the
evidence of the intention to send the coals and bricks to
Berbice. On the other hand, the letter of the 31st of
July directs that the puncheons sent from Barbadoes
should be filled at Berbice : and speaks of the coals and
bricks as ballasting the vessel. I cannot say that the
jury were wrong ; they are more competent judges on
such a question than I am.
Lord Demman C. J. concurred.
Rule refused.
IN THE Fourth Year op WILLIAM IV. si
1834*.
Marston against Downes and Wife, Executrix »^«'»««'^«y.
of Vaughan.
ASSUMPSIT. Plea,plendadministravit. Replication Where an ex*-
JljL , . cutor plesdt
of assets in hand. Issue joined thereon. At the plend adminis-
trial before Paiteson J., at the last Spring assizes at thews paymeau
Shreacsbun/f the plaintiff proved a prima facie case of "'j|,^ extent of
assets in the hands of the defendants. The defendants, ^J^^^^'y ti,©
in answer, shewed payments made by them to the amount P'**"*'^*^ have
' ^ 'f J come to bit
of the assets proved. In answer to this, the plaintiff h«nd«. the
plaintift may
called a witness, who was an attorney, and who swore to thcw in answer
thnt the lunda
having paid to Drrames the husband, afler the death of so applied did
the testator, a large sum of money (not included in the defendant as
assets) which had been raised on a mortgage made to were"handed
a client of the witness. The witness brought the mort- J^ ^^^^
eaire deed into Court, under a subpoena duces tecum, t*io''» d«bi8,
^ ^ ' ^ ' and were not
but refused to produce it. He was then questioned as to part of the
' assets at first
its contents, upon which the defendant's counsel ob- proved to have
come to bis
jected that parol evidence could not be given of the hands,
deed. The learned Judge ruled, that the parol evidence of a penon'not
was (a) admissible. Upon which the witness hin^self "J^J^^^*^^""
asiced, whether he ousht to state the contents of the ^/'"•f** •* «he
'^ tnal to produce
deed? His Lordship answered, that he thought he • deedbelong-
ought to do so. The witness then stated, that the deed client, be dl-
rected by the
was a mortgage of some real property of the testator. Judge to give
The mortgage was executed by the husband Downes^ of the contents,
who was entitled to do so by another deed, giving him i^e iicUon*baTe
power to raise money by sale or mortgage, and apply j^'J^'^gVch^'^
evidence going
to the jury,
(o) See 1 Starkk on Ewid. p. 87| 88. note (c) (Ed. 1833.) even upon the
.1 supposition that
^® the Judge acted
erroneously.
DoWN£S.
82 CASES IN EASTER TERM
1834. the money so. raised to the payment of the testator's
debts. This deed also the witness refused to produce,
Maeston
against but Stated the contents. The plaintiff then shewed that
the payments proved on the part of the defendants had
been made within a day or two of the day on which the
money raised by the mortgage was paid to the husband;
and it was contended that this was evidence to shew that
the defendants had made the payments on which they
insisted, not out of the assets originally proved to have
come to their hands, but out of the money raised to
pay the debts. The counsel for the defendants objected
that the contents of the deeds ought not to go to the
jury as evidence affecting the issue between the parties,
and that, supposing them to be evidence for that purpose,
their contents ought not to have been shewn by the
parol evidence of the attorney. The learned Judge
overruled both objections ; and he left it to the jury to
say whether they believed the payments to have been
made out of the money raised by the mortgage, or from
the assets shewn in the first instance to have come to
the hands of the defendants ; telling them that, in the
former case, the plaintiff was entitled to a verdict. The
jury found a verdict for the plaintiff; and leave was given
to move to enter a verdict for the defendants, on the plea
of plen^ administravit, if the question ought not to have
been so left to the jury, or a nonsuit, if the contents of
the deeds were improperly admitted.
LudUruo Seijt. now moved accordingly. First, the
defendants were entitled to have allowed to them all
the payments made by them, without taking into ac-
count the monies received by the husband in con-
sequence of this mortgage. Those monies were not
assets;
DOWNXS.
IN THE Fourth Year of WILLIAM IV. SS
assets; for they were riot received by the husband in 18S4f.
the character of executor. That beins^ so, he was "t^
•^ Marston
entitled to repay himself, out of the legal assets, what* ^J!^
ever sums he had paid from other funds to satisfy
the debts chargeable on the assets. The husband is
made a defendant in this action for conformit}', as being
the husband of the esi^iscutrix, not in his capacity of
trastee. Whether he was entitled to advance these
sums, in the first instance, from the monies raised by
the mortgage, b a question which cannot be tried in a
court of law. IParke J. The application of the trust
monies has not been taken cognizance of here; the
question has been, whether the assets have been ex-
hausted.3 If the money had been advanced by a
stranger, the defendants might have paid him out of
the assets^ and therefore they may retain in this case.
{Parte J. Then you should shew that, if this trustee
had been a third party, he would have had power to
come on the executrix for repayment.] The convey-
ance is not ordered to be made out and out, so that the
property is still real property. {^Littledale J. Then
the trustee must file his bill in equity] Secondly, the
parol evidence ought not to have been required from
the attorney. It is true that secondary evidence had
become admissible, by the refusal to produce the deed.
But the attorney should have been protected from
giving that evidence, as well as from producing the
tide deeds. IPatieson J. The objection was not made
on the ground of the witness having obtained his know-
ledge by a professional communication (a)].
Cur. adv. vulL
(a) See JBrard ▼. Ackermaih 5 Esp, N. P. C. 120.
Vol. L D Lord
34
CASES IN EASTER TERM
18S4.
Marstok
ogotntt
Dowvu.
Lord Denman C. J. on a subsequent day delirered
the judgment of the Court. We are of opinion, first,
that the evidence was admissible for the purpose for
which it was produced ; and, secondly, that, whether or
not the privilege of the mortgagee extended to protect
him from the attorney's giving parol evidence of the
contents of the deed, still the evidence having actually
gone before the jury, the defendants were not a privi-
leged party ; and tkeyy therefore, had no right of objec-
tion, even on the supposition that the learned Judge had
done wrong«
Rule refused.
Turner against Pyne, Gent., one, &c.
A SSUMPSIT on the following agreement: —
" In the King's Bench. Between William Turner,
plaintiff, and Thomas Mannings defendant.
^* In consideration of the above-named plaintiff
allowing the above-named defendant time for payment
of the debt and costs in this action, amounting in the
Tkunday,
A debtor gave
a cognovit for
tbe payment of
bis debt by in*
stalments of
5/., wiih a pro*
▼ISO that on
default made
in paying any
instalment,
judgment
might be signed whole to 87/., and also in consideration of the plaintiff
and execution
issue for the accepting from the defendant a cognovit actionem,
whole. By . i * ^j
agreement of bearing even date herewith, for the payment of the said
the cognovit, a debt and costs by the month, by instalments of 5L
third party
undertook that,
within Keren days after any notice given to him for that purpose, the debtor should attend at
a certain place, so that, in case of any of tbe instalments not being previously discharged, a
ca. sa., to be issued on the judgment to be entered up on the cognoTit, might be duly exe-
cuted ; and in default of the debtor*s appearing at tbe time and place stipulated, the surety
undertook to pay the debt and costs. The first instalment being unpaid, and notice giveUf
the debtor appeared at the proper time and place, but was dismissed on promising to pay
the 51, in a few days, which be did :
Held, that the agreement of the surety was satisfied by bis baring once rendered the
debtor to be taken iu execution on tbe cognovit ; and that he was not bound to produce
bim asain upon nottce, on default as to a subsequent instalment.
therein
S6 CASES IN EASTER TERM
lSS4f. attend at Messrs. Dover and Lawrences office, on the
" 2Sd of June* at two in the afternoon ; but that the defend-
ogainu ant deceived the plaintiff in this, that Manning did not
Pymc.
attend there at the time specified, nor within seven dajs
after -the notice, whereby the plaintiff was deprived of
the opportunity of proceeding against him, and was put
to expense, &c. The count then stated a second notice,
to attend on the 24th of Jf//^, and default on that day :
and that the debt and costs, and subsequent costs oc-
casioned by the non-payment, amounted to 50/., of which
the defendant had notice, but refused to pay the same
on request. Plea, non-assumpsit. At the trial before
Denman C. J. at the sittings at Guildhall afier last
Hilary term, the plaintiff proved the above agreement,
and the cognovit, which empowered him to enter up judg-
ment for the whole debt remaining due, and costs, on
default in paying any instalment. It further appeared
that the first instalment, due on the 13th of Juncj was
not then paid, whereupon the plaintiffs gave the defend-
ant a seven days' notice, that the personal attendance
of Manning was required at Messrs. Dover and licroh
rence^s at two o'clock on the 23d, in order that he might
be taken in execution for the debt and costs in the
action Turner v. Manning, In the mean time judgment
was entered up, and a ca. sa. issued. Manning (having
received notice from the defendant) attended at Daoer
and LaVDrenc^s on the 23d, before two o'clock, and
stated his readiness to surrender at the time named;
but those gentlemen, after some conversation with Maji--
ningj said they did not wish to take him, but only to
fix the security; and they dismissed him, on his promise
to pay the instalment on the following Friday^ which he
did, being, on that occasion, accompanied by a clerk of
the
Prn.
38 CASES IN EASTER TERM
1884. LiTTLEDALE J. I do Dot think the meaning of this
Z, agreement was that the surety should be obliged to
^am«< render the debtor toties quoties. The cognovit enables
the plaintiff to enter up judgment and sue out execution
for the whole debt, on default made in paying any of
the instalments. Then the agreement is that, on notice
to the surety, the debtor shall personally appear at the
place named, so that, in the event of any of the instal-
ments not being previously discharged, a writ of ca. sa.,
to be issued on the judgment to be entered up on the
said cognovit, may be duly executed ; and, in default of
such appeafance, the surety shall pay the debt and costs
and all subsequent costs to be occasioned by the non-
payment thereof, or of any of the instalments, as
aforesaid. The words ^* any of the instalments" refer
to the case, which might happen, of two or three having
been paid before default, and the rest remaining due.
The object of the agreement was that, upon any default
made, the plaintiff should have execution, and should
have it without trouble, by means of the present de-
fendant's undertaking. But that execution, if the
plaintiff chose to avail himself of it, could not be for
5L only : it must have been for the whole debt ; and
if the surety produced the debtor once, ready to sur-
render to such execution, I think that satisfied the
agreement
Parke J. The defendant stood in the situation of
bail, obliged to render the debtor, or answer for the
debt But, upon this cognovit, the plaintiff could only
take out one execution, either for all the instalments,
or for the balance, if some had been paid; and the
surety performed his part by having the debtor ready
to
40
CASES IN EASTER TERM
1834.
Friday,
AprU 18tb.
Campbell against Fleming and Another.
If a partj be
induced to pur-
chase an article
hj fraudulent
misrepretent-
AtioQsof the
teller respect-
ing It, and,
after discorer-
ing the fraud,
continue to
deal with the
article as his
own, be cannot
recover back
tiie money from
the seller.
Per Lord
Demmutn C. J.»
JJutedaleJ.t
and PatteionJ.f
the right to re-
pudiate the
contnct is not
afterwards re-
▼ired by the
discovery of
another inci-
dent in the
same fraud.
A SSUMPSIT for money had and received. Plea,
the general issue. On the trial before Den"
man C. J., at the sittings after last Hilarj/ term, at
Guildhallj the plaintiff proved that, in consequence of
an advertisement in the newspapers, he entered into a
negotiation for the purchase of some shares in a sup-
posed joint stock mining company, and, upon represent-
ations made to him by the agents of the defendants,
became the purchaser of shares to a large amount.
After the purchase was concluded, he discovered that
the statements in the advertisement, and many of
the representations made to him in the course of the
negotiation, were fraudulent, and that the whole scheme
was a deception. The real sellers of the shares were
the defendants. The action was brought to recover
back the money paid for the shares. On the cross-
examination of the plaintiff's witnesses, it appeared that,
subsequently to the above transactions, the plaintiff
formed a new company, by consolidating the shares ori-
ginally purchased by him with some other property ; and
he sold shares in the new company, thereby realizing
a considerable sum of money. Evidence was further
given on the part of the plaintiff^ to shew that, at the
time of the original purchase, an outlay of 35,000/. was
represented to him to have been made by the supposed
mining company in the purchase of property, which
outlay in fact had not amounted to 5000/., and that this
part
FLXMuro.
4S CASES IN EASTER TERM
1834. Parks J. I am entirely of the same opinion. After
"""""^ the plaintiff, knowing of the fraud, had elected to treat
againu the transaction as a contract, he had lost his right of
rescinding it; and the fraud could do no more than entitle
him to rescind. It is said, that another fraudulent
representation was subsequently discovered. I cannot,
however, perceive that the evidence goes far enough to
shew that such a representation was, in fact, made.
Pattesom J. No contract can arise out of a fraud;
and an action brought upon a supposed contract, which
is shewn to have arisen from fraud, may be resisted.
In this case the plaintiff has paid the money, and now
demands it back, on the ground of the money having
been paid on a void transaction. To entitle him to do
so he should, at the time of discovering the fraud, have
elected to repudiate the whole transaction. Instead of
domg so, he deals with that for which he now says that
he never legally contracted. Long after this, as he
alleges, he discovers a new incident in the fraud. This can
only be considered as strengthening the evidence of the
• original fraud; and it cannot revive the right of repudi*
ation which has been once waived.
Lord Denbcan C.J. I acted upon the principle
which has been so clearly put by the rest of the Court
There is no authority for saying that a party must know
all the incidents of a fraud before he deprives himself of
the right of rescinding.
Rule refused.
GlSBS.
44 CASES IN EASTER TERM
18S4. would offend the defendant to keep her longer; it was in
""""■ consequence of what he had said. It was not because I
Kkiobt *
agamsi believed the words, but because I was afraid that it
would offend the defendant to keep her; he was my
landlord, and bame to complain of the conduct of my
lodgers." It was contended that the plaintiff ought to
be nonsuited, inasmuch as the witness acknowledged
that she did not believe the defendant's words ; and,
therefore, the alleged special damage was not properly
the result of the imputation complained of. The learned
Judge refused to stop the case, but gave leave to move
to enter a nonsuit. The jury found for the plaintiff.
Talfaurd Seijt. now moved to enter a nonsuit, or for
a new trial. To support such an action as this, the
damage ought to flow, not merely from the words in
which an imputation is conveyed, but from the slanderous
imputation as such. Here it was proved that the da-
mage did not flow from the slander, as such. The dis-
missal of the plaintiff resulted from an implied wish of
the landlord, which would have had the same effect,
although the intimation of it had not been accompanied
by the accusations complained of. Vicars v. fVilcocks (a)
bears some resemblance to this case; but there, it is
true, in addition to the words spoken, there was an act
done by a third person, from which the special damage
might have resulted. It was further contended^ at the
trial of the present cause, that the communication might
be considered as a privileged one, if made bona flde by
the defendant, as a landlord to his tenant; but the
learned Judge was of opinion, that the words proved
(a) 8 Enst, 1.
werj
46 CASES IN EASTER TERM
1 834. may not believe what is told, and yet not have courage
to keep the individual who labours under the imputation.
KXIOHT
agaitui
GlMBS.
Parke J. (a) If the learned Judge had stated to
the jury that the defendant was not protected by the
relation of landlord, in which he stood, I should have
thought that a ground of motion for a new trial; for I
am not satisfied that that relation might not have jus-
tified him, if it had appeared that such conduct was
pursued on his premises as would have exposed him to
danger for keeping a disorderly house. At the same
time, the jury might have been induced, by the nature
of the words used, to think that the communication was
not made on this account, but from improper motives.
It does not appear that the learned Judge's attention
was called to the point, and probably it was felt that, if
that question had gone to the jury, the result would
have been the same as in fact it ultimately was. At all
events, no misdirection appears. Then the remaining
question is, whether the special damage so resulted from
the words used as to afford ground for this action. It
is said that the witness would have turned the plaintiff
away on the defendant's wish to that effect being in-
timated, although no slanderous words had been used.
But it is clear that if the words in question had not
been uised, the plaintiff would not have been dismissed ;
and it is sufficient for this action, to shew that she was
turned out in consequence of such words of the defend-
ant. The effect of the evidence may be that the witness
would have turned the plaintiff away if different words
had been used ; but different words were not used, and
(a) LUtUdaU J. had left the Court.
she
*8 CASES IN EASTER TERM
1834.
Friday, Perry ogainst Gibson.
A penoo pto- A T the trial -of this cause before Alderson J., at the
meotaunJera last assizes for Cumberland^ a person was called
nibpoBna duoei • ^
tecum need upon under a subpoena duces tecum, to produce a
Dot be sworn, if , , , , .
the party by book belonging to certain trustees appointed under
called doei not ^^ &<^t of parliament, and which was in his custody as
m^i^ hinu ^^^^ clerk. He produced the book, and the plaintiff's
counsel, by whom he was called, having no quesUon to
put to him, and being prepared with other evidence to
identify die book, did not propose to have him sworn ;
but the counsel for the defendant insisted that this
should be done, in order that they might have an
opportunity to cross-examine. The learned Judge
refused to have the party sworn. The plaintiff having
obtained a verdict,
Dundas now moved for a new trial, on the ground
that a person attending with documents under a sub-
pcena duces tecum ought to be sworn before he puts
them in ; but he admitted that the contrary had been
decided last term by the Court of Exchequer, in
Somers v. Moseley (a), and that if this Court adhered to
die decision there given, he could not support his
motion.
Lord Denman C. J. It is best not to disturb a
question which has been fully considered and decided.
(a) Not yet reported.
Parki.
80 CASES IN EASTER TERM
1JB34. circumstances. On the 19th of November the defendant
"""""" went to the house to ask for half a year's rent, which
Don dem.
HoKKBT had been due more than twenty-eight days. He there
GiMnv. found the lessor of the plaintiff, who was about to
remove the efiects of the deceased : and a verbal agree-
ment was made between them, in the presence of the
widow, that the defendant should abandon the rent, and
should thereupon have possession of the premises, and
the lease be cancelled. ^Upon this agreement the de-
fendant obtained possession; but, on the 25th of
November^ the lessor of the plaintiff*, having then taken
out administration, tendered the rent, and demanded to
have the premises given up to him. The lease had not
been cancelled or surrendered otherwise than as above
stated.
The learned Judge was of opinion, that the defendant
was not entitled to possession by virtue of the clause of
re-entry, inasmuch he had made no formal demand of
possession : and that he could not avail himself of the
specific agreement with the lessor of the plaintiff*; first,
because it was not a valid surrender within the statute
of frauds, and, secondly, because, if it had been so, the
lessor of the plaintiff* had no right to make it before
he had taken out administration. A verdict was there-
fore taken for the plaintiff*; but leave given to move
that a verdict might be entered for the defendant.
F. Pollock now moved to enter a verdict, or that a
new trial might be had. There was a valid bargain for
giving up the premises, in consideration that the de-
fendant would waive the right of re-entry which had
accrued to him. IDenman C.J. The lessor of the
plaintiff* had no power to make it. Parke J. He was
nobody
52
CASES IN EASTER TERM
1834.
Saturday^
Christopher Richardson and Another, Ex-
ecutors of Peter Thomas Richardson,
against Giffobd.
Dedantion A SSUMPSIT for noH-repair of premises held by
stated, that in jHL r it ^ ^
ooDsideratioii the defendant as tenant to the plaintiffs. The
that the de-
fendant had first two counts stated an agreement by the defendant
become tenant , , ^
to the plaintiffs to repair, &c. in consideration of a demise. The
uporSe terms ^^ird count alleged, " That, in consideration that
Siring wrsawi ^^® defendant, at his request, had become and was
tenancy, keep
the premises in
tenantable
repair, the
defendant
agreed to
keep the same
in tenantable
repair during
the said te-
nancy. It was
prored that he
took the pre-
tenant to the plaintiffs, as executors as aforesaid, of
certain other premises with the appurtenances, of the
plaintifi& as executors as aforesaid, upon and subject to
the terms that the defendant should, as such tenant,
during his last- mentioned tenancy, kept the last-men-
tioned tenements in tenantable repair, order, and
condition, the defendant then and there promised the
mises, by writ- plaintiffs, as such executors, to keep the last-mentioned
ten agreement, *^ » r
for three years tenements in tenantable repair, order, and condition,
and a quarter, ^ ^ *^
and engaged to during his last-mentioned tenancy. And although
keep them in
good repair such tenancy continued from thence hitherto, to wit,
durin^^ the time
they should be &c., yet the defendant did not nor would during
tion ; but Se ^"^h tenancy keep the last-mentioned tenements in
STsiir^ tenantable repair, order, or condition," &c. Plea, the
si* nedT'lxrth 8^"^^^' issvLt* At the trial before Denman C. J., at the
parties: sittings in London after last Hilary term, the foUow-
Held, that , ° J^ '
the defendant ing instrument was offered in evidence. It was dated
was bound by
the coTenant to the 18th of February 1829, was stamped as an agree--
the agreement i^ent^ signed by the defendant, and addressed to Mrs.
was Toid, as to
the duration of the term, by the statute of frauds : and that the count was applicable.
Jiichard^on^
54 CASES IN EASTER TERM
1834. was the amount of damage. The jury found a verdict
for the plaintiflTs for lOOi^
RlCHARDSOV
agamM
GirroKii.
Botnpas Seijt now moved to enter a nonsuit, accord-
ing to the leave reserved. The document put in was
void both as a lease and as an agreement for a term ex-
ceeding three years, and therefore the contract declared
upon cannot be supported. IParke J. The first two
counts state a demise, but the third only alleges that, in
consideration of the defendant having become tenant to
the plaintiffs on certain terms, he undertook to keep the
premises in tenantable repain By the agreement he be-
came tenant from year to year, subject to such of the
condidons as were applicable to that species of tenancy.]
A mere tenancy from year to year is not a consideration
for undertaking such a liability; Doe dem. Rigge ti Bell {a)
does not go to this extent. The contract there was
held binding as to the time of quitting, and the Court
said that it was so as to the rent ; but not that the tenant
was bound by it to repairs^ for which a tenure from year
to year only might afford no compensation. [Lord
Denman C. J. The defendant here meant to bargain
for a term exceeding three years ; it turns out that this
part of the contract is invalid, but that does not excuse
him from performing his own engagements under other
parts of the agreement.] The same might be said if
he had entered under such an agreement as this, with
a contract to build, and yet he might have been turned
out at the end of two years. , But if the contract fails
J'
on one side, it should also on the other. \_Parke J.
Probably, if he had been let in under an agreement of
(a) 3 T. R. 471.
that
56 CASES IN EASTER TERM
ISSi. made a contract with Mrs. Richardson^ by which be
engaged to keep the premises in good repair during all
against the time they should be in his occupation : he did not,
GiFFOKD.
by that contract, legally agree for a term of three years ;
but, in point of law, he was tenant at will for the first
year, subject to the terms of the agreement on his own
part ; and afterwards tenant from year to year, subject
still to that agreement, which bound him to keep the
premises in good repair so long as he should occupy.
Possibly, if an attempt had been made to remove him
after he had incurred expense under the agreement, he
might have been entitled to call upon a court of equity ;
but, at all events, he had contracted by an express under-
taking to keep the premises in repair, and by that he
was bound. It was competent to the executors to shew,
that the contract made by Mrs. Richardson was entered
into for their benefit ; that point was properly left to the
jury, and they have found for the plaintiffs.
Patteson J. I am of opinion that the third count
was supported. The defendant became tenant from year
to year on condition of keeping these premises in good
repair. It is said, such an engagement must be looked
upon as made in consideration of the length of time the
defendant was to occupy ; and that, if that consideration
fails, the defendant's agreement must fail also. But it
is too much to say here that the consideration has failed-
I do not put this on the ground that a court of equity
would give a remedy in the case suggested : but that
there is no proof that the defendant might not have had
the term of more than thi'ee years secured to him if he
had applied for it.
Lord
59 CASES IN EASTER TERM
1834. time to H. C, but that H. C. did not pay; and the de«
„ daration went on in the usual way to state a breach of
OHOITIIIDS
a^stinu the guarantee by the defendant. There was a second
special count to the same effect, only omitting any men«
tion of the written memorandum) and merely stating
that the said H* C was indebted to the plaintiff on a
promissory note for 35/., and also in the sum of \0L
Plea, non assumpsit. At the trial before Denman C. J.,
at the sittings in Middlesex after last Hilary term, the
plaintiff gave in evidence the promissory note for 35/^
dated January 28th, 1832, and signed by H. C. the de-
fendant's son, and the following letter from the defend**
ant to the plaintiff, dated ilfo;^ 11th, 1832.
" Sir, — You will be so good as to withdraw the pro*
missory note, and I will see you at Christmas^ when you
shall receive from me the amount of it, together with
the memorandum of my son's, making in the whole 4i5l*
" Your very obedient servant," 8cc.
Another letter from the defendant to the plaintiff was
also put in, dated January 10th, 1833, in which he
acknowledged himself under obligation to discharge the
45/. due from his son, with interest, without delay.
The memorandum referred to in the declaration, and in
the first letter, was not produced. The jury, in answer
to a question put by the Lord Chief Justice, found that
the letter of May 11th referred to the promissory note
above mentioned, and they gave a verdict for the plain-
tiff for 47/. 105., subject to two objections, upon which
the defendant had leave to move to enter a nonsuit.
G. r. While now moved accordingly. First, the me-
morandum referred to ought to have been produced.
The letter of May Uth mentioned the sum of 45/., but
it
CUXKS*
60 CASES IN EASTER TERM
ISS^. frauds. The objection arises before the evidence in eic^
„ planation can be received. On production of the do-
0HORTRKSK
aipnnu cumcnt^ it does Aot appear in writing what the consider-
ation for the promise is. IParke J. Suppose, instead
of " the promissory note,*' it had been " the hogshead
of tobacco in your possession,** must it have been de-
scribed by marks and numbers ? Lord Denman C. J.
Or " the com you sold my son;" must it have been
shewn what corn it was ? Parke J. Even if the note
had been fully described, you might say that it was
possible there might have been another note, and that
the contrary should have been shewn.]
Lord Denman C. J. There would be no end to such
a course of objection. It might be said that the plaintiff
perhaps had another son, and that the letter did not
shew what son was meant.
LiTTLEDALE J; I think there was a sufficient con-
sideration stated, within the statute. It is true, the letter
leaves it uncertain what the note was, and whether it
was a note of the father or of the son ; and if it had
appeared that there were two notes, one given by each,
I do not think parol evidence could have been received
to shew which was meant. So if there had been two
notes in question for the same sum, but of different
dates. But when upon the evidence only one note ap-
pears to be in question, no such explanation is necessary,
and the. statement in writing is quite sufficient.
Parke J. I am also of opinion, that there is in this
case a sufficient statement of the consideration. The
defendant, by his letter, requests the plaintiff to witli-
draw
62 CASES IN EASTER TERM
1834. liability of the defendants to pay the plaintiffi in that
-_ behalf being limited to the sum of 50/. Averment^
^^'^^^ «that the plaintiffs supplied Alfred Ella with beer and ale
to a large amount, to wit, &c., but although the time
for payment elapsed, the said Alfred EUa did not pay^
of which the defendants had notice, but they have not,
although requested, paid the said sum of money. The
second count was like the first, except that the promise
stated was to be accountable to the jiaintiffii and to
pay them the amount of the beer and ale so supplied
from time to time. At the trial before Denman C. J.»
at the sittings in London after last Hilary term, a letter
from the defendants to the plaintiffs was produced, as
containing the promises declared upon ; but the words
were as follows : — " In consideration of your supply-
ing Mr. Alfred Ella with beer and ale, &c, we do
hereby guarantee to you the amount of the same sup-
plied from time to time; nevertheless it is understood,
that our liability to you is limited to 50/." It was con-
tended that this proof did not support either count.
The Lord Chief Justice was inclined to think there was
a variance; but upon the application of the plaintiffs'
counsel, he allowed the first count to be amended,
pursuant to 3 & 4> W. ^. c. 42. s. 23. (a), by stating that
the defendants promised the plaintiffs, to *^ guarantee"
(instead
(a) 3 & 4 W. 4. c 42. j. 95. « And whereas great expense is often io-
carred, and delay or failure of justice takes place at trials, bj reason of
▼ariances as to some particular or particulars between the proof and the
record, or setting forth on the record or document on which the trial is hady
of contracts, customs, prescriptions, names, and other matters or dream-
stances not materud to the meriis of the case, and by the mis-^atemeni of
which the opponte party cannot have been pr^udiced, and the same cannot
in any case be amended at the trial, except where the variance is between
any matter in writing or in print produced in evidence, and the record :
and whereas it is expedient to allow such amendments as beieinafier
men-
6* CASES IN EASTER TERM
1834. introdaced. The declaration shews an original liability
Hanbort created; the amendment substitutes a collateral one.
Ellju Only one word is changed; but it totally alters the
count. \Parke J. If the declaration, as it stood, was
such as -the defendant could not have been misled by^
the twenty-third section applies. Now, here, the second
count, at least, gave notice of the cause of action.
Littledale J. No one can read even the first count
without seeing that it is on a guarantee.] Then no
amendment was necessary. ^Littledale J. At all events
it does not prejudice the defendant] A great laxity in
pleading would be introduced, if the statute received so
large a construction.
Lord Denman C. J. The question is, whether the
defendant could have been prejudiced in his defence in
consequence of the amendment. I think he could not.
Littledale J. I think the amendment was allow-
able. The second count would shew, if the first did
not, that the plaintiff meant to insist upon a guarantee.
Parke J. I think, referring to the merits of the
case, and to the question whether or not the defendant
could be prejudiced, that this was such an amendmenC
as ought to have been allowed. And I may observe that,
if such amendments were not permitted, there would
be an end of the benefit of those new rules for plead-
ing, laid down by the Judges, which proceed upon
the assumption that, {a) ^* by the said act of the 3 &
4 tV, 4. c, 42. 5. 23., the powers of amendment at the
(a) H, r. 4 9f, 4.9 General Rules and Regulations, sect. 5.> 5 ^. jf M.
p. iL
trial
(6 CASES IN EASTER TERM
18S4. bo entered and execution issne for IS*7L IBs. 2cL for
~ debt and costs; that the plaintiff had requested the de«
oiftdnti fendants to allow Lang to be at large, and to forbear
entering up judgment or taking out execution on the
cognovit) or taking proceedings against the bail or
sheriff till the 20th day of February then next, upon
the plaintiff guaranteeing to the defendants the security
of the person of Lang at the termination of that period,
provided the above-mentioned sum was not before
then paid. The recited agreement then stated that it was
understood and agreed, and the plaintiff undertook and
promised, that, in consideration that the defendants
should not nor would enter up judgment or sue out
execution as aforesaid, nor proceed further in the said
suit nor take any further steps therein either against
the said James Lang, the said sheriff^ or the said bail,
or either of them, upon or until the said 20th day of
Feh-uary then next, the plaintiff should and would on
the said 20th day of February^ between the hours of ten
and four, duly render, or cause to be rendered, the said
James Lang into the custody of the Marshal of the
Marshalsea, Sec so that the defendants might then and
there and thenceforth have the full security of the body
of the said James Lang for their said debt and costs, or,
in de&ult thereof, that the plaintiff should and would
then pay to the defendants the said sum of 13?/. 155. 2d.
The declaration further stated that, before the day on
which long was to b^ rendered, it was further agreed
between the said parties at the request of the plaintiff^
that the time for rendering Laf^ should be extended to
the first day of Easter term then next, it being then
and there fully understood, and the plaintiff^ in con-
sideration
68 CASES IN EASTER TERM
1654*. nltiniately (as set forth in the first count) in consideration
y^^jj^ of their shewing forbearance to the plaintiff himself*
f^p**^ This agreement is collateral to the original debt, inas-
much as it is merely a new contract to secure a previous
debt In Ydrd ▼• Eland (a), the husband of an execu-
trix sued alone on a pronuse made to the plaintiff to
pay rent accrued in the testator's lifetime, in consider-
ation that the plamti£^ at the request of the defendimt,
would forbear to sue the defendant till Michadmasi and
motion was made in arrest of judgment, because the
wife was not joined. But it was held good. And
HM C. J. said that the wife could not be joined, because
she was neither privy to the contract, nor the person to
whom the money ought to be paid. He added,- that
the husband might have released the debt, and there-
fore forbearance by him was a good consideration to
maintain assumpsit. [^Park J. In Cartheafs report of
that case (i), and he argued it himself, it is said, that
there would have been a nonsuit if the wife had been
joined, because no promise was made to her.] The
case shews that an agreement of this kind is col-
lateral to the original debt. It must be admitted that
the wife must now be taken to have had an interest in
the original debt for which the cognovit was given to
the joint plaintiffs on the record below. But the new
contract would not have survived to the wife; she
therefore ought not to have been joined : Bidgpod v.
Way and Wife (c). It is true that the cases in the books
appear to be contradictory. But the instances in which
the wife is permitted to join may be reduced to two
(a) 1 Ld» Raym. 368. (b) Carth. 462. (c) 2 fT. SI. 185«.
classes:
70 CASES IN EASTER TERM
1854. ^deration that they should not nor would take out
execution until that time, and that no execution w«9
^«>^ accordingly taken out, would not such a count have
Noah*
been good?" Such a count could not be supported.
The forbearance is by the husband/ as was laid down
by Lord EUenbormigh C. J. in Humsey v. George (a) ;
the consideration, therefore, arising wholly during co<-
verture^ would, in the case supposed, move from the
husband alone, and would not support a promise to pay
to husband and wife. It is farther said in the judgment
below, ^* Supposing that the mention of the wife's i^ee?
ment had been omitted, and that of the other parties
stated, and that the consideration for the promise had
been alleged, as before, to be the forbearance of the
plaintifis to sue out execution, would such a count be
objectionable? In either case, the forbearance by all is
a .sufficient consideration for the promise." The ob-
jections to a count, framed as on the former supposition,
apply, a fortiori, to such a count as that last supposed c
and it is not a forbearance by all, because the wife has
not the power to forbear. She therefore does no act,
and makes no promise, and is consequently no party to
the contract upon which the action is brought. But
the supposition, that the agreement may be strudc out^
is not itself admissible ; as the record now stands, the
agreement is the main part of the contract. On the
contrary, the record may be read as if the words»
'* undertook and promised," &c. were struck out, for
such words are not necessary in pleading where the
consideration raises the promise (6). Then all that re-
Co) \M.is. isa
(6) Sec Mountford and Another t. HoHont 2 N* JL 62.
mains
Nu&SE.
72 CASES IN EASTER TERM
1884<. original proceeding. It may be true, that the promise
~ could not have bound the wife after her husband's death ;
Wills
^^^ but it is not necessary that every constituent part of a
consideration should move firom the party suing. Sup-
pose the husband, without the privity of any of the
other parties, had also promised to do some additional
act, the other parties would not the less have been en»
titled* to join in an action on the contract So, here,
the circumstance, that the wife is not a party to the
' promise^ would not prevent her from being a party to
the rest of the consideration. In Yard v. Eland {a\
Holt C. J. says, <* if the money had been to be paid to
the wife, then there might have been some reason to
join her with the husband." [Lord Lyndhwrst C. B*
The plaintiff says to the husband, you and your wife
have obtained a judgment against my friend ; now, if
you, the husband, will not enforce this, I promise to
pay to you and your wife. There is both a consider-
ation moving firom, and a promise made to, husband
and wife.] Such a promise was held to be a good
ground of action by husband and wife, in Prat and
Wife V. rayfor(6). iTindal C. J. The crasideration
laid in the present record is not a by-gone forbearance ;
there is a promise to forbear, and you go on to allege
that, after the plaintiff in error had contracted, you did
forbear in fact : is that a meritorious oHisideration for
the plamtiff 's contract, moving from the wife ?] After
verdict, the Court will look at the whole record. In
WeUer and Others y. Baker (c), the husbands and wives
joined in an action on the case, for an infringement on
(a) 1 Id. Baym. 368 (6) Cro. ESx. 61. (c) 3 ^FSZf. 414.
the
WtLtM
94 CASES IN EASTER TERM i
1854. die nmiy take adrantage of die record* as a party: ihe
can, Aerefer^ sufier no mconvenienoe during the hvu^
band's life. In Huggins v. Durham and Wife {a\ the
wife wonld have j(Hned in taking advantage of the ^rder
in Cbaoceryi and was therefore injured by the escape.
60 in WMer v« Baker (&), and Dunstan and Wife t.
Bunoell {c\ there was an immediate injury to the wife's
interest The case of Prat and Wife v. Tmflar (eQ
cannot be supported, for the action there was for money
advanced by Ae wife during coverture, and to be re-
paid to her,
TfNDAL C. J, Hiis is certainly a case of consider^
able nioe^; but, on the whole^ we are of opinion that it
ranges itself within that class of cases in which husband
and wife may jom. The wife is, as to part of the con-
sideration, the meritorious cause of action. We find
that there was a cognovit given by the defendant below,
in an action to which the wife was a party, as one of the
joint plaintiffs. Then we come to the question on the
promise to forbear. Take that to be, as it is in the
l^al view, a promise by the husband only ; it is, how-
ever, made with reference to a subject-matter in which
the wife is interested. That promise is followed up by
a forbearance by all the plaintiffi below ; and the de*
fondant's promise was made to the husband and wife :
at any rate the defendant bdow consents to have it so
considered, for his agreement, in point of form, is vritl^
bodi husband and wife. Again, we must consider that
die wife has been prejudiced ; for she is entitled to the
(a) SAr.7SS» (h) S JfUi 414.
(e) 1 ira^ 884» (d) Cro. Elm, 61,
money
7a CASES IN EASTER TERM
18S4, and he contended that the issuing of a writ of trial
^ made no difierence^ for the cause was still in the superior
agaitist court, though the power of trying had been del^ated
to the officer of an inferior one. The words of the
statute of Elizabeth apply to any judge before whom
the trial may take place : if they could be limited so as
to exclude the officer trying under this writ^ it might
also be said that a Judge at the assizes could not cer-
tify unless he were a Judge of the court from which the
record came.
Lord Denman C. J. We are of opinion that the
statute of Elizabeth does not apply to this case. There
will therefore be no rule.
LiTTLEDALE J. The words "Judges" and " Justices*
in the statute of Elizabeth cannot mean any but the
Judges and Justices of the courts at Westminster.
Parke J. It certainly was not intended by S & 4 fFl 4.
c. 42. 5. 17. to give the power of certifying to sheriffii
and other Juges to whom causes were sent by writ of
trial. There was once a clause in the bill to this e£fect,
but it was struck out.
Patteson J. The eighteenth section of S & 4 ^. 4.
c. 42. gives the sheriff or other judge there mentioned
autiiority to certify that judgment ought not to be signed
immediately; and it gives him the like powers with
respect to amendment as are thereinafter given to
Judges at Nisi Prius; but it does not speak of certify-
ing to deprive of costs.
Rule i-efused.
78 CASES IN EASTER TERM
1884. Wighiman shewed cause. As the case now stands,
""^"^ the only irround upon which the rule could be sup-
agahui ported (if the defendant were at liberty to raise that
point), is, that the assignment Was not an act of bank-
ruptcy. And as to that the only question is, whether
the bankrupts in fiict executed a deed conveying all their
property ; for if they did, as such a deed is clearly valid
as against them, and divests them of all their proper^ :
it is an act of bankruptcy, unless collusion with the
petitioning creditor be shewn, as in Marshall ▼• Bark"
north (a). Collusion, however, is not even sn^^ted in
this case, nor is there any evidence to shew that the deed
was kept secret ; on the contrary, in five days the com-
mission is issued, and the deed appears to have been
produced to the commissioners. There remains, there-
no ground for the rule.
F. PdUock (with whom was Hoggins) contr^. This
was a deed produced by the assignees without evidence
that it was ever in the custody of any person for the
benefit of the creditors, or even out of the bankrupt's
possession. It might be a mere pocket act of bank-
ruptcy, to be brought into operation or not, according
to circumstances. [^Parke J. Is there any authority to
shew that such a conveyance by a bankrupt must have
passed into the hands of other persons to constitute an
act of bankruptcy ? In Pulling v. liwker (6), the con-
veyance relied upon was found among the bankrupt's
papers, and yet it was held a good act of bankruptcy.]
It would be a double fraud if such a conveyance as
this could be executed, and then reserved, to operate
(a) 4B.^Ad. 508. (6) 4 J7. ^ JJUU 382.
as
sa
CASES IN EASTER TERM
1834.
AprU S4tfa.
The King against The Churchwardens of the
Parish of St. Pancras, Middlesex.
1. When the
act for the
better regula-
tion of Testrief,
1 & S IT. 4.
e.60. has been
adopted in a
paruh, there
mutt be elected*
at each of the
first three an-
nual elections,
one third of the
whole number
of which the
Testry chosen
under the act is
ultimately to
consist; and
there must be
CIR James Scarlett had obtidned a rule in Hilary term
last, calling upon the defendants to shew cause why
a mandamus should not issue, commanding them to
assemble the parishioners in manner required by the
statute 1 & 2 ?F. 4. c. 60., (entided «< An act for the
better regulation of vestries, and for the appointment of
auditors of accounts, in certain parishes of England and
WaleSf'') in order to elect a vestry and auditors of
accounts. The object of this application was to contest
the tides of the persons then acting as vestrymen and
auditors under the statute, which had been adopted in
deducted, by
lot» Arom the original Testry, at the first election, one third of the number of Testiymen
then existing (whatever the full regular number of the original vestry would be) ; at the
second election, half the number of the original vestrymen then existing ; at the third dection,
all the remaining original vestrymen.
8. A parish adopting the act had previously been divided into four districts, for the more
conveniently collecting the rates, and this division had been adopted for taking the poll
in the election of members of parliament ; a small part also of the parish was annexed
to a part of an adjoining parish, and separated from the original parish, for ecclesiastical
purposes : Held, that the election of vestrymen and auditors might be made in one place of
the parish only.
S. If a parish adopting the act be within the metropolitan police district or the dty of
London, or contain more than 9000 resident householders, the qualification for vestrymen
is, that they shoutd be resident householders, and should also be rated to the poor rate of
the parish on an annual rental of not less than 40i, ; but the rental may be made up of tene-
ments separately held, and not in the occupation of the vestrymen.
4. The qualification must be perfect at Uie time of dcction, but, if unqualified persons be
elected, this does not avoid the dection of qualified vestrymen or auditors dected at the
same time.
5. A parish which adopted the act, had previously been governed by a vestry established
by a locd act, which defined the qudification of a vestryman, and prescribed an oath to be
taken before any vestryman should be capable of acting in the execution of that local act;
by the oath, the person swore to execute the powers reposed in pursuance of the same, and
that he was possessed of the qudification prescribed thereby, which was different from that
required by I & S HT. 4. c. 60. : Hdd^ that this oath was not to be taken by the vestiymen
dected tmder th» latter act.
the
82
CASES IN EASTER TERM
1884.
Tbe Kivo
Mgavut
Tbe Church-
wardoiiof
to which there was no dispute, fiye objections were
taken to the titles.
First Before the adoption of the act 1 & 2 W4t. c. 60.,
the
from office (such portion to be determined by lot), and the perishionera
duly qualified shall elect a numDer of Testrymen equal to one third of the
Testry, to be chosen according to the provisions of this act ; and that on
the next ensuing annual election for Testrymen, one half, or at nearly as
may be one half, of the remaining part of the first aforesaid Testry shall
retire from office (such portion to be determined by lot), and the parish-
ioners duly qualified shall again elect a number of vestrymen equal to
one third of the vestry, to be chosen according to the provisions of this
act; and that on the next, that is to say, the third annual election for
vestrymen, the last remaining portion of the vestry as aforesaid shall
retire from office, and the parishioners duly qualified shall elect vestrymen
in like manner and number as at the two preceding elections,- so as to
fill up the vestry "to the exact number of vestrymen prescribed by
this act.
Section 25. enacts, that at every subsequent annual election those
vestrymen who have been three years in office shall go out of office, and
the parishioners shall elect, according to the provisions of this act, other
vestrymen, to the number of one third of the total number of which such
vestry shall consist, as also fill up any vacancies which may have occurred
from death or other causes: provided always, that any or all of the
vestrymen so going out by. rotation may be immediately eligible for
re-election.
Section 26. enacts, that the vestry elected under this act in any parish
not within the metropolitan police district, or the city of London^ shall
consist of resident householders rated or assessed to the relief of the poor
upon a rental of not less than ]Q{. ; and no person shall be capable of
acting as one of the said vestry unless be shall be the occupier of a houses
lands, tenements, or hereditaments, rated or assessed upon the afore-
mentioned amount of rental within the parish for which he is to serve :
provided always, that if the parish adopting this act should be within tbe
metropolitan police district, or the city of London^ or if the resident
householders therein should amount to more than SOOO, then and in that
case the vestry elected under this act shall consist of resident householders
rated or assessed to the relief of the poor of such parish upon a rental of
not less than 402. per annum.
Section 27. Provided always that nothing in this act shall be deemed,
construed, or taken to repeal, alter, or invalidate any local act for the
government of any parish by vestries, or for the management of the poor
1^ any board of directors and guardians, or for the due provision for
divine
84? CASES IN EASTER TERM
18d4« There were then twelve more vacancies in the number
j^^ yr^^^ of the original vestry ; so that the number which re-
Th^'^Ch^sh- ™^°^ ^^ ^^^ original vestry (exclusively of the vicar
jwudaaci and churchwardens), was reduced from seventy to fifly-
eight : twenty-nine of these were lotted ofl^ and forty
new vestrymen elected. These forty, with the forty
•
elected in the preceding year, the twenty-nine renuuning
of the original vestry, the vicar, and the two church-
wardens for the time being, constituted the vestry of
which the title was now impeached. It was objected
that^ in 1832, the original vestry should have been
reduced by deducting from the gross number, of which
it would have consisted, exclusively of the vicar and
churchwardens, had no vacancies occurred, the nearest
number to one third of that gross number, so that the
119 should have been reduced by forty in all ; and that,
a reduction of fourteen having already taken place by
the vacancies which had occurred, there should have
been lotted off only twenty-six; and further that, in
1833, the number which, after the last election, had
remained of the original vestry, without taking into
account the diminution by the subsequent vacancies,
should have been reduced by deducting one half of
that remainder ; that is to say, by deducting thirty-five
from the seventy ; and that, as a reduction of twelve
had already taken place by the vacancies which had
occurred, there should have been lotted out only
twenly-three.
Secondly. Before the passing of the earlier act, the
parish, which is very populous, had been divided into
four districts, for the purpose of assigning the collection
of the poor rates to different collectors* The parish
forms
86
CASES IN EASTER TERM
1834.
TlieKnia
The Chorcb-
wwdensof
St. Pavcaai •
men were not in the actual occupadon of houses, lands,
tenements, or hereditaments, for which they were rated
to the poor of the parish on a rental of so much as 40{.
per annum; but they were rated to the poor on that
amount in the whole, a part of the rate laid upon them
arising from tenements not in their actual occupation.
Other persons elected as vestrymen were in the actual oc-
cupation of tenements for which they were rated, in the
whole, on the rental required by the act; but the tene-
ments were separately occupied, and did not constitute
one entire tenement. It was objected that, under the
twenty-sixth section of the statute 1 & 2 fF. 4. c. 60.,
no person was qualified to act as a vestryman who was
not rated on a rental of 40/. per annum for one single
tenement in his actual occupation.
Fourthly. Other persons had been elected as vestry-
men, who were not rated, in the whole, to the requbite
amount at the time of the election, but who had been
so rated after their election. It was objected, that it
was necessary that the qualification should be perfect at
the time of the election.
Fifthly. The vestrymen elected under the provisions
of the later act took no oath. It was objected, that an
oath was still required under the provisions of the ele-
venth section of 59 G. 3. c. xxxix. (Local and personal
acts, public) (a).
The
(a) By which it is enacted, that no person shall be capable of acting as
a Testryman or additional Testryman in the execution of this act (except
in administering the oath hereinafter mentioned to the other vestrymen),
until he shall have taken and subscribed the following oath, which oath
the said vestrymen, or any two or more of them, at any of their meetings
to be holdca in pursuance of this act, are hereby empowered and required
to administer : —
" I, A. B.,
90 CASES IN EAST£R TERM
1884>. the person as a yestryman <^ appointed in pursuance of
an act passed in the fiffy-ninth year of the reign of King
offAui George the Third." The oath of qualification asserts
•Die Cboreb. * ^
of that he is qualified to act as a yestryman appomted ^^ m
pursuance of the said acti** that is, the act of 59 6. 3^
*^ according to the higher [or^ lower] rate of qualifi-
cation by the said act prescribed." It is impossible to
apply either of these parts of the oath to persons acdng
under another act, and not required to possess the
qualifications referred to in the oath. With respect to
the qualification, the oath imposed under the earlier
act was the only eyidence of the person being duly
qualified; in the later act the radng is the eyidence^
and supersedes the other. Neither can there be any
authority lodged in any quarter for remodelling the
oath, specifically set out in, and imposed by, the earlier
act, so as to make it applicable to a new species of
election. Such a power exists only, if at all, in cases
where the obligation to take an oath arises at common
law.
Eyen if these answers to the objections were in-
sufficient, it would not follow that the mandamus ought
to issue. Admitting the first objection to be good, the
eighty new yestrymen, and the persons remaining from
the original yestry, are not the less entitled to act, be-
cause too large a part of the original vestry has been
deducted. Again, the provision upon which the se-
cond olgection is founded is merely directory: there
is nothing to shew that the place of election is essential
to the validly of the proceeding. The third and
fourth objections, if good, would merely go to invalidate
the election of the persons objected to; and could not
warrant
92
CASES IN EASTER TERM
18S4.
The KiKO
agamsi
The Church-
'wardensof
St. Pahcia&
below its original statutory number. As the elections
bave been managed, there were only, exclusively of the
vicar and churchwardens, 110 vestrymen after the elec-
tion in 1832, and 109 after the election in 1833. Thus
the number has been kept below the numbers named in
each act; and, at each election, the new vestrymen have
borne a higher proportion to the original ones than the
legislature intended*
Secondly. The words of the twenty-second section
are, *^ when by reason of the populousness of any parish
the said parish shall have been, or shall be, divided into
districts for ecclesiastical or other purposes." The an-
nexation of one part of the parish to a part of another,
for ecclesiastical purposes, divides the parish into th '
part which is, and the part which is not, so annexed ;
and this is a division ^^ for ecclesiastical purposes."
And the division into the four districts is a division
'^ for other purposes;" which are, the more convenient
collection of the rate, and the voting at elections for
members of parliament. It is said that this division
might be varied: but the real question is, whether it
existed at the time of the elections of vestrymen.
Thirdly. The latter part of sect. 26. might be con-
strued in the manner contended for, if that part stood
alone; but it cannot be supposed that the legislature
intended to vary the method of estimating the different
qualifications, in the respective cases of parishes within
and without the metropolitan police district. In the
earlier part the words are, '^ occupier of a house, lands,
tenements, or hereditaments rated or assessed upon the
afore-mentioned amount of rental." So that the person
must occupy the house which is rated upon the required
amount.
94 CASES IN EASTER TERM
18S4. fifthly. It is true that the later act requires no oath.
Bat the proviso in the twen^-seventh section preserves
the local act, except so fiur as by the later act is ex-
TbtKiira
Sr. PAvauii
TlMCbiiicb-
^^i^ln^o' pressly enacted r^;arding the election of vestrymen and
auditors of accounts. The imposition of the oath can*
not be expressly repealed by any enactment regarding
the election. There is no enactment changing the
functions or obligations of a vestryman: and one of
those obligations is to take an oath.
The proceedings at the supposed elections are wholly
void, if any of these objections be good. The argument
.on the other side would shew that no possible deviation
from the provisions of the act, as to number or quali-
ficadon, would vitiate the proceedings. But it could
not be maintained that, if the whole original vestry had
been lotted ofl^ and forty new vestrymen substitutec!,
the new vestry would have had any l^^al existence.
LiTTLXDALE J. (a). I think that this rule must be
discharged. With respect to the question as to the
number to be lotted off under the twenty-fourth section,
the difficulty which has pressed upon me most is that
arising from the variation in the expression from
^^ vestrymen" to ^' vestry." It has b^ contended, that
the latter word must be interpreted to mean the aggre-
gate body. But when we observe the words used in
connection with it, such as ^^ one third of the then
existing vestry," and << the nearest number thereto,"
it appears to me that we must look upon the word as
meaning^ in this section, the same thing as ^^ vestry-
(a) Loid JDmiiiaii C» J. had left the Court duriog the argument.
men."
k
96 CASES IN EASTER TERM
ISSl*. the election takes place; the words requiring an occu-
pation in, and rating for the poor of, that parish, do
againti not occur before a later part of the section. There is.
Hie Church- ^
wardens of therefore, ground for construing one part by the aid of
St. Pamckai. - , i_ -r u
the other; and one would rather suppose that, if the
householder is to be rated for the relief of the poor on
the property which he occupies, in the case of a parish
in the country, the legislature meant to provide in the
same way as to parishes in town. The first part of the
provision respecting the parishes without the metn>«
politan police district is (except as to the words ^* of
such parish") couched in the same words as the pro-
vision respecting the parishes within that district. But
then the former provision has an additional clause,
incapacitating certain persons from acting; the latter has
no such clause, unless we are to incorporate the clause of
the former provision by implication. It is possible that
it may have been intended, in the former provision, to
permit the election of a householder whose qualificadon
was made up of any tenements whatsoever; but that
he should not be capable of acting, unless he occupied
the tenement for which he was rated within the parish.
However, we are not now called on to interpret that
former clause. The words applicable to the present
case are, ^^ resident householders rated or assessed to
the relief of the poor of such parish upon a rental of not
less than 40/. per annum." We know that the rate is
laid upon the person who occupies, not upon the house
or land. It is enough here, if the householder be rated
to the poor on the rental required. He must be a
householder, and he must be rated ; but it is not neces-
sary that he should be rated for the house which he
occupies : it b enough for him to have, for instance, a
house
98 CASES IN EASTER TERM
1884* of the daase in question present themselyes. The first
j^ - is that proposed by Sir James Scarlett. He ai^es
rrt^^^Kf^ V ^^^ *^ vestry" means the corporate body; and that one
wirdeni of third of the total corporate body is to be taken out at
Sr. Pavceas. .
the first election, and that the vacancies which had
occurred are to make a part of this third : so that the
number to be taken away by lot would be only twenty-
six. I think it is impossible to support this construc-
tion. It is clear that one third was to retire by lot ;
that cannot be made up of persons who have died, or
resigned, before the election. The second constrncdon
is, that one third of the total corporate body should be
lotted o£r, without taking notice of existing vacancies ;
that is, in the present case, that forty should be lotted
ofi^ independently of vacancies before created. This
construction spears to me equally unreasonable with
the first. Suppose the original body to have been
reduced by vacancies as low as forty; then, if forty had
retired, none of the original vestry would have been left
after the first election ; and the statute gives no power
for filling up the number, except by the election of the
forty new vestrymen. The third and only remaining
construction must therefore be adopted; that is, that
the fraction to be lotted ofi^ is to be estimated upon the
number of then existing vestrymen. This is what has
been actually done. With respect to the method of
taking the poll, it is said that the four districts of this
parbh satisfy the words << divided for other purposes."
But it is sufficiently explained in the affidavits that this
is merely a division which has been made for the con-
venience of the collectors, and that it may be varied at
any time. It is also said that a division has been made
by
100 CASES IN EASTER TERM
1834. subject of the poor rate; and, therefore, it is fair to
' !r" refer tlie words "rated or assessed^' to "occupier,*'
The KiMO ^
f»go*nii fix)in which no inconcrruity will follow. I find no
The Church- o ^
wardens of express provision that the rate shall be in respect of the
Sf.PAKC]LAS. . . .
property occupied ; and I cannot infer such an intention.
Certainly the clause is inaccurately expressed. But,
supposing some of the vestrymen to be improperly
elected, from want of qualification, it is clearly my
opinion that there would still be no ground for issuing
this mandamus. The election would be void so far
only; there would have been elected less than forty, by
the number not duly qualified. The mandamus should,
therefore, direct the supplying this number only : and
this disposes of so much of the objection as relates to
the persons who have become qualified only since the
election. I think these persons were not duly elected; but
that does not make the whole proceeding void : such a
construction would entail most serious consequences
upon corporations. Supposing one of a common
council were illegally elected, it would be monstrous to
say that all elected at the same time were badly elected.
The objection respecting the oath is disposed of by
the fact, that the oath is no longer applicable. It was
imposed to secure the exbtence of a particular qualifi-
cation in the persons acting; the qualification is now
changed, and the evidence of it is difierent I am there-
fore clearly of opinion that this mandamus ought not
to issue, and that the rule should be discharged.
Patteson J. I also am of opinion that this rule
ought to be discharged. The question, as to the proper
number to be lotted off, has already been fully gone
into.
102
CASES IN EASTER TERM
18S4.
The Kino
The Church-
wardens of
St. Pavckai.
legally a house cannot be rated. But I see that this
part of the section applies to those parishes only which
are not in the metropolitan police district And taking
by itself, as you must, the clause respecting the parishes
within that district, no difficulty arises. It is admitted,
that the parties are rated to the relief of the poor on a
rental of the required amount, and that they are resident
householders. But as to those vestrymen, who were
not rated on the required amount till after the election,
I am of opinion thatXthey are not qualified, and ought
not to act, or be allowed to attend. A mandamus might
go to compel the filling up of these places: but the man-
damus here applied for, is for filling up all the places.
Now, it does not follow that the whole election is bad,
because some are in the body who ought not to be there.
As to the oath, the law compels no impossibility ; and
here the administration of the oath is an impossibility.
Rule discharged.
Gale against Capern.
J)ECLARATION (of Michaelmas term 1882) in as-
sumpsit on an award. Plea of set-ofi^ stating,
among other things, that the plaintiflP was indebted to
the defendant in the sum of, &c., upon a promissory
note, dated the 4th of February 1826, made by the
plaintifi*; and whereby the plaintiff promised to pay
C.*8 death, by
A. C.*8 administrator, and was unpaid. Replication, that the supposed cause of set-off on
the said note did not accrue to defendant within six years, in manner and form, &c. :
Held, that this replication admitted, not only the' making of the note, but the indorse-
ment of it to the defendant by j4, C.'s administrator ; and that the defendant might, there-
fore, avail himself of memorandums of the payment of inU^rest, written on the note by ji*
C. (before Lord Tenterden'% act,) to bar the statute of limitations^
Jnn
Tkurtdmft
jtprU 24tb.
A plea of set*
off suted, that
the plaintiff
made his pro-
missory note
payable to A»
C. • which was
duly indorsed
and delivered
to the defend'
ant after A»
CAntw.
104 CASES IN EASTER TERM
18S4. Moody i in this term, moved accordingly* The in-
*~ dorsements by Arm Catford do not prove that the &•
agahut ftndant had a cause of action or set-off within six
years. Perhaps the replication might amount to an
admission that the note existed, and might render it
unnecessary to call the subscribing witness ; but it did
not supply the place of proof that Fine indorsed the
note, and had authority to do so, as administrator with
the will annexed : and these facts are put in issue by
the replication stating, that the cause of set-off did not
accrue to the defendant in manner and form, &c. If
the present defendant had sued upon the note, and
the statute of limitations had been pleaded, evidence
on his part that Ann Catford received interest on the
note within six years, would not have been sufficient
to shew that a cause of action accrued to him within
that time. ILiitledale J. Does not a replication in
this form admit that, but for the statute, the de-
fendant's claim would be right? Patteson 3. The plea
is, that the said supposed cause of set-off did not accrue
within six years. Is not that an admission that it did
accrue at some time, though earlier?] If the defendant's
right were proved to have existed before the fact relied
upon to take the case out of the statute, such an argu-
ment might be used : but that is not so here, because
the administration by Pincj and his indorsement, are
subsequent to the indorsements of the receipt of in-
terest, and are in no way proved by them. [_Paite^
son J. If an acknowledgment was made within the six
years to the then holder, does not it follow, from the
negotiable nature of the instrument, that a subsequent
holder may avail himself of that acknowledgment, in an
action upon the note ? lAttledale J. It is the misfortune
of
106 CASES IK EASTER TERM
18S4.
Tktinday, WiLKINSON OgamSt BtERS.
April 84th.
Where an A SSUMPSIT. The deckratioD stated that an action
commenced for had been commenced and prosecuted in the Palace
demen^^X- Couit by TTumuu Rimmerj as the defendant's attorneyy
d^dLt'^^an "^ ^® ™°*® ^f ^^^ defendant, agdnst the plaintifl^ for
^jri^^*** the recovery of a certain sum, to wit, 13/. 105., alleged
such demand, (q be due from plaintiff to defendant, which action was
is a good con-
■ideration for a depending, and costs had been incurred therein: and
promim by the
idaintifftoiuj thereupon, in consideradon that plaintiff would pay de-
and pay hu fendant the said sum of Id/. 10^., defendant promised
^^And. per plaintiff to settle with the said attorney for the costs of
^^i^^* the action, and to indemnify plaintiff and bear him
?[J^^J^"2J^ harmless from the same. Averment, that plaintiff con-
tbe same pro- fiding, &C., paid defendant the said sum, which he
mise made in
consideration accepted; but that defendant did not settle with the
of the payment «_ , i . i i-
of such demand, attorney, &C., by means and m consequence whereof
iTLa^onof the attorney proceeded with the action, and judgment
where^e ^^ signed against plainti£^ and he was obliged to pay
te^^^^tb^t ''^' ^^** ^^"^ ^^^ ®^ ^^® acdon, and Si for costs of en-
^^M***^ deavouring to set the judgment aside, of which de-
pnxeedings if fendant, on, &C. had notice, but that he did not nor
the plaintiff
attempted to would indemnify plaintiff &c. Plea, the general issue.
At the trial before Patteson J., at the sittings in Middle^
sex after Trinify term 1833, it appeared that the plaintiff
had employed the defendant (who carried on business as
a wood-turner) to do work for him ; that Bimmerj as the
defendant's attorney, served the now plaintiff with a writ
at the suit of the present defendant; and that a convers-
ation afterwards passed between the parties at the plain-
tiff's
Btjkks.
108 CASES IN EASTER TERM
183i. ground that the payment being merely the discharge c
an admitted debt, was no consideration for a promise b
WlUCINtOK
agaifui the creditor to the debtor. A rule nisi was afterward
obtained for entering a nonsuit, or for reducing tb
damages to IL ^s.
Sir James Scarlett and Piatt now shewed cause. Th
objection, if any, is on the record. Assuming that th
declaration was sustainable, of which no question i
made, the evidence was sufficient As to the particula
objection taken, the evidence here shewed a contract
good in all its parts, and consistent with recognise
practice. It constandy happens that a verdict is enters
by consent, in consideration that no costs shall be taxed
and if a party attempted afterwards to tax costs, th
Court would stay the proceedings. That cannot b
bad as a contract between parties, which the Court is i
the daily habit of enforcing. Supposing the whol
demand to be really due, the plaintiff avoids delay am
risk, and the loss of extra costs, by a compromise c
this nature. It is, therefore, a good consideration ; an<
if there be any, it is sufficient ; the Court will not lool
into the adequacy of it. If the creditor agreed to alloi
a discount for immediate payment, such a consideratioi
for the allowance would be good ; and this is the same ii
principle. If a creditor, after action brought, were t
say to the debtor, ** Pay me now, and I will take n*
costs," the contract would be one which the debto
might enforce. It is true it could not be effectus
without the sanction of the attorney; but that make
no difference in the case, considered as between th*
parties.
KeUt,
110 CASES IN EASTER TERM
WavnMMr
18Si» coDsidenUioa that the plaintiff would pay the defendant
the said utm of ISL lOs^ he promised, &c. : and the
evidence shews that a specific sum, the balance of
account between the parties, and no other, was in
question. \IMtledale 3. In Reynolds v. Pinhaae (a),
the declaration stated, that whereas the defendant had
recovered 5/. against the plaintiff, the def<»dant, in co&f-
sid^ration of 4/. given him by the plaintiff undertook
to acknowledge satisfaction of the judgment before sudi
a day; and it was demurred to, on the ground that
there was no consideration, but the Court held other-
wise; ^ for it is a benefit unto him to have it vrithout
fuit or charge ; and it may be, there was error in the
record^ so as the party might have avoided it''] If
in this case there was room for doubt, whether error
might not have been brought on the record, the reason-
ing in the case cited was applicable; and so if, in an
earlier stage of the cause, a doubt had existed whether
or not the debt was due. But here no doubt existed ;
the debt was due or it was not, and the plaintiff ad-
mitted it ; then in paying it, he only discharged a duty.
{Parke J* It is not clearly made out that there was a
specific demand of 13/. 105. previous to the agreement.
The plaintiff admitted a liability to pay what the de-
fisndant claimed as his balance; but that admission is
to be coupled with the fact, that the defendant at the
same dme agreed to pay his own costs ; and it does not
iqppear firom the whole, that the sum of \SL \Qs. was a
sum originally demanded by the defendant, or due from
the plaintiff] The case leaves no room for conjecture
as to this. The sum of ISZ. lOs. stated in the dedar-
(a) Cro. MUm. 429.
atioD.
Bnat.
112 CASES IN EASTER TERM
J 884. and Adams (the obligee), in consideradone inde, as-
sumed to Dixon (the bail) to deliver unto him the prin-
yamat cipal obligation, and a letter of attorney to sue it against
J. D." (the obligor) : and it was held not a sufficient
consideration, *' for Dixon had not done any act whereto
the law would not have compelled him." And if the
promise, as in that case, be to do a collateral thing, the
consideration may be insufficient. But here the debtor
says, *< You have sued me for a debt, and may have
trouble in recovering it ; if you will forego the costs*
(for the stipulation as to paying the attorney amounts
merely to that) <^ I will pay the debt now.** If the
creditor agreed to these terms, he could- not afterwards
enforce payment of the costs. To do so, he must have
proceeded to final judgment ; but it would have been
against his duty and against law to take that course.
We are not now taking into consideration the rights of
the attorney, in respect of his lien for costs ; but, look-
ing at the case as between the parties, if, after such an
undertaking, the plaintiff attempted to go on with the
action, it would be a breach of faith, and a contempt*
and the Court would stay the proceedings. A promise
which the Court would enforce, by restraining the
plaintiff from proceeding contrary to the terms entered
into, cannot be treated here as a promise made on in-
sufficient consideration, and is quite unlike an under^
taking to do something merely collateral, as in the case
of Dixon V. Adams (a). I therefore think the rule must
be discharged.
Parke J. I am of the same opinion. It is not
necessary to consider the case on the ground upon
(a) Cro. Elix. 538.
which
114
CASES IN EASTER TERM
1834.
WlLKIMSOW
agaitut
Btim.
as to the sum. I do not say that I differ from my
Brother Littledale in his view of the case, supposing
that there had been an admitted demand, though on that
point I am not quite sure. But it is unnecessary to
go that length, because it is not clear, in my opinion,
that there was a settled and admitted demand. There
is no ground for the reduction of damages : the de-
fendant, to fulfil his promise to the plaintiff, might have
paid the 1/. 45. to the attorney, and afterwards disputed
the matter with him. Whether the Palace Court were
right or not, in refusing to set aside the judgment, it was
by the defendant's own act that costs exceeding IL 4s.
were incurred.
Rule discharged.
Thurtdtttft
April 24th.
WooLWAY against Rowe.
DedmraUons ^^RESPASS for breaking and entering the plaintiff's
respecting the JL . ° o t
subject-matter
of a cause, by
a penoa who,
at the time of
making them,
had the same
interest in such
matter as one
of the parties
now has, are
admissible in
cridenoe
against that
party, though
the maker of
them is alire,
and might be
called as a
witness.
On the question whether ceruin land be part of the plaintiflTs esUte, or waste of the
manor, a perambulation of such manor, by the lord, including the land in question, is
evidence, as shewing an assenion of ownership by the lord, though it be not proved that
any person on behalf of the plaintiff was present at the perambulation, or knew of it.
close called ScorhiU and spoiling the herbage &c.
Plea, the general issue. At the trial before BosanquelJ^
at the last Spring assizes for Devonshire^ it appeared
that the plaintiff claimed the close in question as part of
his estate ; but the defendant alleged that it was part of
the waste of a manor, and that the plaintiff had no
interest in it but a right of turning on cattle. In
support of his case the defendant called the son of a
person who had formerly been proprietor of the estate
now held by the plaintiff, to prove that his father, while
possessed
BOWJL
116 CASES IN EASTER TERM
1834. instances, the evidence was improperly received. As to
^ the first : declarations of a former owner of the same
WOOLWAT
ogmn^ property, made against his interest at the time, are
admissible in evidence if he be dead ; but there is no
authority for their being held so while he is living.
Again, declarations* of a person identified in interest
with a particular party are admissible as evidence against
such party, though the person making them be alive, if
he be still so identified in interest at the time when the
evidence is offered ; but not otherwise. In Barough v.
White {a)y which was an action by the indorsee of a
promissory note against the maker, the defendant offered
evidence of declarations made by the payee while he
was holder, he being alive and present at the trial : but
the evidence was rejected at Nisi Prius, and this Court
approved of the ruling. [^Parke J. There the interest
of the plaintiff was not the same as that of the payee
had been. Declarations of a person who held a negoti-
able security under the same circumstances with a party
to tlie action, have been considered admissible against
such party ; but the right of a person holding by a good
title is not to be cut down by the acknowledgment of a
former holder that he had no title. In the case cited,
the then holder had a better title than the party whose
declarations were referred to. In the present case I
should have had no doubt about receiving the evidence.
It does not (bllow that it was inadmissible because the
party himself might have been culled.] The testimony
of the person himself would have been the best evidence.
In Spargo v. Brown (i), Baylcy J. says, " The general
rule is, that every material fact must be proved by
(fl) AB.^C, 325. (6) 9 27. j- C. 938.
testimony
WAT
IN THE Fourth Year of WILLIAM IV. 117
testimony on oath. There is an exception to that rule, 1834.
fiz. that the declarations of a party to the record, or of ^J~#
(me identified in interest with him^ are, as against such afgriHU
party, admissible in evidence. But, generally speaking,
mere declarations not upon oath are not evidence.''
And Liitledale J. expresses himself in the same manner.
Where the party is identified in interest at the time, the
declarations are those of a person for whose benefit the
action is brought or defended. The declarations of a
privy in estate are only receivable when he is dead.
{Paiieum J. Have you looked into the cases on this
snlgect, and found that the statement of a person
identified in interest with a party to the cause has never
been held admissible but where the person making such
statement was dead? I have never heard the point
so presented before. I always thought the party's
interest at the time of the declaration was the ground
on which the evidence was admitted. In one instance,
I remember an attempt on the circuit to introduce the
declaration of a very old person, still living, which was
rqected; but that was offered as evidence of reputation.
Parke J. The point taken here is quite new to me.]
As to the second objection; a perambulation by the
lord of what he considered to be his manor is no
evidence unless some person had been present on
behalf of the party whose interest was to be affected by
it This is not the perambulation of a parish but of a
private estate. [^ParJce J. Treading down the grass
under a claim of right would be an act done, of which
evidence might be given. Patteson J. If he had gone
upon the land and dug a hole, it would have been
admissible evidence, though it would, in reality, have
proved nothing.] Here the act was not upon the land.
I S And,
1 18 CASES IN EASTER TERM
18S4. And, although it proved nothing, the formality with
which it was done might have an undue effect upon the
WOOLWAT
against jury.
Rows.
Cur* adxk vtiU.
Lord Denman C. J. now delivered the judgment of
the Court The first question raised in this case was,
whether the declarations of a person formerly interested
in the estate now the plaintiff's, were admissible in
evidence, when the party himself might have been
called. We think they were receivable^ on the ground
of identity of interest The fact of his being alive
at the time of the trial, when perhaps his memory of
&cts was impaired, and when his interest was not the
same, does not, in our opinion, affect the admissibility of
those declarations which he formerly made on the
subject of his own rights. The second point was,
whether evidence ought to have been received of per-
ambulations made by the lord, when no person on
behalf of the plaintiff was present We think the
evidence was receivable, though of slight importance.
The land now in question was included in the pei^
ambulation, and the lord thereby claimed it and dealt
with it as his own. The evidence shewed an act of
ownership; and though slight in its effect, it might
properly go to the jury. There will therefore be no
rule.
Rule refused*
k
IK THE Fourth Year of WILLIAM IV, 119
1834.
Doe on the several Demises of Smith and
Payne against Webber.
pJECTMENT. At the trial before Bosanquet J. at in ejectment
the Ust spring assizes at Exeter^ the lessor of the demises of a
plaintiff relied on the title of Smithy as mortgagee of mor^igee^^Uie
Payne^ under a mortgage executed in 1815; some offe«S*to
slifht evidence was also given to shew a possession by P"'^® *****: . ^
^ D r- i^ seven or eight
Fame many years before. The defendant claimed yea"iMck,and
, «fter the eze-
uuder the will of Simon Webber^ who had devised the cution of the
rooitgagey he
premises to another Simon Webber for life, remainder to brought eject-
the defendant in fee. Sitnon Webber^ the devisee, died the mortgagor
in I8I7. Some evidence was adduced by the defend- p^Mion"* °
ant to shew that Simon Webber, the devisor, and also a Jj^'^^fc^d J^
prior devisor, under whose will the subsequent one "^'^JjJ''^^*
took, had formerly had possession of the premises. The ^^^^ ""^ >»
-^ ' ^ favour of the
defendant then proposed to prove the following facts, now defendant,
who thereupon
In 1825 the present defendant brought ejectment (on entered under
1* i>\/*i • • ^» ^ writ of DOS-
his own demise), for the premises now m question, session, and
against Paj/ne, who, after the mortgage in 1815, had ^^^^wiIm
been allowed to remain in possession. The cause was H^d^lh^t
finally referred to arbitration. Smith, who was a lessor ?**«** proceed-
^ ings were not
of the plaintiff in the present action, was at one of the admissible
evidence for
meetings ; the witnesses examined before the arbitrator the defendant
1 1 rr>\ J • #• r t against the
were since dead. The award was in favour of the now mortgagee,
defendant Webber, who obtained possession under a writ was^presenf at
of habere facias possessionem, recovered mesne profits J^fo^^^e^iJbi.
for six years, and had held the premises from the time ^*^^\ '^"?*^
•^ ' ^ appearing that
he took any
part in the proceedings.
The mortgage was executed in 1815. From that time, till the defendant obtained poa»
mnon as alwre stated, the mortgagor had occupied the premises : Held, that this, though
s possession of less than twenty years, entitled the mortgagee to recover against the do«
Pendant, the latter having adduced no admissible evidence in support of his own claim.
14 of
Wbbbe.
120 CASES IN EASTER TERM
18S4?* of the award till the commencement of the prese
^ . action. The learned Judge was of opinion that, ;
Smith and between the now defendant and Smithy this award ai
jo^mtt the proceedings thereupon were not admissible evidenc
and he refused to receive them. The plaintiff had
verdict
Erie in this term (a) moved for a new trial, on tl
ground that the evidence ought to have been admitte
The question in this case was between two partii
neither of whom had had possession for twenty yeai
As against the present defendant, there was no adver
possession till 1817. In answer to the supposed adver
possession which commenced then, the defendant shew
a possession by him for several years next preceding t
commencement of the present action. The questi
being, which possession was rightful, the defendant,
shew that his was legitimate, offered evidence of t
award and the proceedings taken by him upon
These would have been admissible, even if Smith alo
had been lessor of the plaintiff. Acts done agaii
Payne^ the mortgagor, would be acts done against Smi
the mortgagee, by whose allowance Payne was holdic
And Smitftj though not a party to the former action
ejectment, was present at the arbitration ; he therefc
had notice of the action, and of the title being then
question. The mortgagor might be considered as 1
agent on that occasion. The present action is in eff(
that of the mortgagor ; and, if so, Doe denu Morris
Bosser (b) shews that he cannot maintain it after su
mitting to a reference, in which the decision was agaii
him and in favour of the now defendant Doe dt
(a) JpTU2\^ {h) 3 East, 11.
Hardi
WjOBXB.
IN THE Fourth Year of WILLIAM IV. 121
Harding y. Cooke {a) was cited for the plaintiff at the 1834.
tiial, but cannot govern this case. There the plaintiff
proved twenty-three years' possession, and the defendant Smith and
eleven y«ars following the twenty-three; and this was a^^amu
beld to be no answer. But there the whole case on each
side appears to have consisted in the duration of each
party's possession; no other facts appeared; and the lessor
of the plaintiff had held the premises more than twenty
jears. It was never settled, however, before that case,
that even twen^ years' possession, of itself, afforded a
presampUon against a defendant who had held for
aeverai years subsequently. {Parke 3. It is primd
fiide evidence.] In the present case there were two
ponenions of less than twenty years ; and the evidence
m question was properly offered in support of the last,
to prove that it was not that of a wrong doer, but that
the defendant held it under circumstances that shewed a
probability of his bemg entitled.
Lord DsKMAN C. J. The facts offered in proof were
00 evidoice against Smith. At the time of the arbitra^-
tioD he knew that such an inquiry was going on, but he
WIS not bound to interfere in it. It is true that on one
oocuion he was present at it, but not as taking a part.
There is no ground for a rule.
LiTTLEDALE J. concurred.
Parsje: J. The arbitration was res inter alios. The
whole may be considered as passing behind the back of
Smith. It could not be evidence against a person dating
his title as far back as 1815.
Rule refused.
(a) 7 Bine» 346.
12« CASES IN EASTER TERM
18M.
Frkk^f THE following warrant was this day read in open
-*^«**- Court:-
William R.
Whereas it bath been represented to us^ that it would
tend to the general despatch of the business now pending
in our several courts of common law at WeshninsttTf
if the right of Counsel to practise, plead, and be beardf
extended equally to all the said courts ; but such objed
cannot be eflfected so long as the Seijeants at Law have
the exclusive privilege of practising, pleading and
audience during term time in our Court of Common
Pleas at Westminster : We do, therefore, hereby order
and direct, that the right of practising, pleading, and
audience in our said Court of Common Pleas during
term time, shall, upon and from the first day of Triniijf
term now next ensuing, cease to be exercised exclusively
by the Seijeants at Law, and that, upon and from that
day, our Counsel learned in the Law, and all othec
Barristers at Law, shall and may, according to their re-
spective rank and seniority, have and exercise equal
rank and privilege of practising, pleading, and audience
in the said Court of Common Pleas at Westminster^ with
the Serjeants at Law. And we do hereby will and re-
quire you to signify to Sir Nicholas Conyngham Tindalf
Knight, our Chief Justice, and his companions. Justices
of our said Court of Common Pleas, this our Royal will
and pleasure, requiring them to make proper Rules and
Orders of the said Court, and to do whatever may be
necessary to carry this our purpose into effect.
And
s
IK THE FOUETH YeAR OF WILLIAM IV. 128
And whereas we are graciously pleased, as a mark 18S4*
of our Royal favour, to confer upon the Serjeants at -
Law hereinafter named, being Serjeants at this present
time in actual practice in our said Court of Common
Pleas, some permanent rank and place in all our courts
of law and equity: We do hereby further order and
direct^ that Vitruobis Lawes, Thomas nOyly^ Thomas
Peaief BWiam SL Julian Arabinj John Adams^ Thomas
AadnfmSf Henry Storks^ Ebenezer LudlcnDj John Scrroenj
Hauy Joikn Stephen^ Charles Carpenter Bompas^ Edward
Gadbumf George Heath, John Taylor Cderidge, and
Tkeimas Noon Tayburd, Serjeants at Law, shall from
haocefarth, according to their respective seniority
amoDgit themselves, have rank, place, and audience, in
all our ooarts of law and equity, next after John Balgty,
Esquire^ one of our Counsel learned in the law. And
we do hereby will and require you, not only to cause
dus onr direction to be observed in our Court of
Chancery, bat also to signify to the Judges of our
Kieral Courts at Westminster, that it is our express
picasare that the same course be observed in all our said
Gomti.
Given at our Court at St. Jamefs, this
twenty-fourth day of April, in the
fourth year of our reign.
To the Right Honorable, Henry
Lord Brougham and Faux, our
Chancellor of Great Britain*
In pursuance of this warrant, the several Seijeants at
Lnr above named took their seats within the bar in the
Court of King's Bench.
124, CASES IN EASTER TERM
18S4.
SStrth. The King against The Inhabitants of Matlock.
A bouse in O^ ^^ appeal against an order of two justices, re-
IT. was let to moving George ArndU and bis wife from the
tift^f<fih^^ township of Wtrksworik to the township of MaOock
lhe°iifo^thi^ (both in Derbyshire), the sessions confirmed the order,
sunriTor. A, subject to a case. It was admitted on both sides that
and B, were •*
ejected wrong- the pauper George Amalt was legally settled in Mailodtf
bouse, but and was removable thither, unless the power to remove
and a person him from Wirkswortk was negatived by the following
who had lodged c ^ ,
with them, re- raCtS : -r-
h^^ Aft^. The pauper George AmaU, being a married man,
""y^ -'• H" went to live with his father in a cottage built on the
Bisted tlie les- ^°
sor to destroy waste in Wirkswortk. His father paid sevenpence a
the lease :
Held, that year rent to the Duchy of Lancaster for the cottage^
after these
transactions^, and the pauper continued to pay the rent after his
tinuedirre- father's death until about nineteen or twenty years
™I^ough°" ^8^> when all the cottages belonging to the Duchy d
bMMineactually ^^^^^ ^^^C Sold, and the pauper purchased his cot-
chargeable, tagg for 5/, 25. 2rf., and it was conveyed to him. In
1827 the pauper sold the cottage to a person named
Wilson for 40/. ; and Wilson at the same time demised
it to the pauper and his wife for their joint lives, and
the life of the survivor of them, at a rent of 40^. a year*
At Christmas 1831 Wilson demanded a year's rent o
the pauper, which he was unable to pay, and Wilson
then took possession of the cottage. The pauper denied
that there was any power of re-entry in the case ol
non-payment of rent. A lodger, as well as the pauperis
furniture, remained in the house after he quitted it<
About
126
CASES IN EASTER lERM
1884.
The Kino
agninU
IIm Inbabit-
«nu of
Matlock.
consented to this, for he has been a party to the destruc-
tion of the lease. His wife, it is true, has not con-
sented. [^Denman C. J. How could she consent? And
if she could not, there was a freehold interest still sub-
sisting. The lodger and the furniture remained on the
premises.] The lodger is not stated to have continued
to be the lodger of the pauper. ZUttledale J. He
is not stated to have become the lodger of WSton.
Parke J. The case shews a continued occupation by
the paupers till they went to the workhouse.]
Per Curiam* The order nltist be quashed.
M. D. Hill was to have argued against the order of
sessions.
Order of sessions quashed.
Saiurday,
w#/>rtf36th.
The Kino against The Inhabitants of
Thruscross.
s
ryS appeal against an order of two justices, for the
removal of James Fryer from the township of
Thruscross to the township of High and Law Bishopside
(both in the West Riding of Yorkshire)^ the sessions
discharged the order, subject to the opinion of this
Court on the following case : —
A record in
the record book
of a manor, of
admittance to
a copyhold, re-
citing a sur-
render of the
same copyhold
to the use of a
will, is ad*
missible eri-
dence of the
surrender, the steward not being able to find the surrender itself on the roll or dsewbeie^
and the surrender being irregularly kept in the manor, although all the other sow en Jew
were either preserved or recorded on the roll.
A devisee of a copyhold was admitted af^er he had resided more than forty days on the
copyhold. His son became emancipated after the expiration of the forty days* and before
the admittance: Held, by Lord Dettman C.J., LittledateJ., and PaftesonJ,^ Parle J.
dissentiente, that the fioher, by soch residence, gained a settlement, which was communicated
to the son.
The
Ill THE Fourth Year op WILLIAM IV. 127
The psaper^s grandfather was the devisee of a copy- 18S4.
iidd estate in High and Low Bishopside, under the will —
° The Kiwo
of one Fumiss. On the death of the devisor, in 1780| againtt
The Inhabit-
the grand&tber took possession of the estate under the ants of
defise; and the pauper's father, then about sixteen
years of age, lived with him there as a member of his
fcmily till 1 789, when he married ; but the grandfather
wts not admitted tenant of the property in question
before the year 1790. To prove a surrender of the
oopyhold to the use of Fumiss's will, the steward of the
manor was called, who produced the book of the records
of the manor, and read from it a record of the admits
tance^ reciting a surrender of the property in question,
made in 1774, to the use of the will. He also stated
dkat he had not been able to find the surrender itself
upon the roll or elsewhere, except as recited in the
admittance: that the old surrenders appeared to have
been kept in a very loose and irregular manner : that
the originals were very often not to be found: and,
fbrther, that there were many surrenders to the use of
wills on the records, the originals of which were not to
be found; but that he had not been able to discover
any other instance in which there was not either the
original surrender itself, or a record of a surrender on
Ae court rolls. The questions for the opinion of the
Court were stated to be, — Whether, under these cir-
cmnstances, the entry in the book of the recd^s of the
manor was evidence of a surrender to the use of the
will? whether the admittance of the pauper's grand-
bther, in 1790, had relation back to his possession in
1780 ? and, whether the residence of the grandfather
for more than for^ days, he having the right of admit-
tance, was sufficient to confer a settlement by estate ?
Milner
128 CASES IN £ASTER TERM
18S4. Milner in support of the order of sessions* If the
Court should consideri either that the evidence was in-
Tha KiMO
ammat sufficient, or that the admission had not a relation back
«nts of for the purpose of a settlement, the order of sessions must
be affirmed. [Lord Denman C. J. Can you contend that
there was not evidence of the surrender ? That is the
only question for us on the first point.] The sessions
ought certainly to have taken it upon themselves to find
the fact; but what they have intended to ask of the Court
is. Whether upon this evidence they were bound to find
the fact ? [Lord Denman C. J. That we should not
have answered. Parke J. In effect they say, If this be
evidence at all, we should have found the other way.]
In Bex v. Lubbenham {a\ decided in thb Court last
term, the sessions found facts, upon which they con-
firmed an order, and this Court would not say that
upon those facts they were bound to find otherwise.
But here the facts are not found. [Lord Denman C. J.
We must look at the case as we have it from the
sessions ; we have no power to say what they ought to
have found.] Then, secondly, the grandfather's ad-
mittance having taken place after the emancipation of
the pauper's father, the father gained no settlement in
High and Law Bishopside. Till the admittance, the
grandfather was a mere occupier, or a tenant at will in
the strict sense of the term. The devise in itself effects
so little, that, before the statute 55 G. S. c. 192., courts
of equity would not compel the heir to surrender to the
use of a will made, either without a previous surrender,
or where the previous surrender prescribed requisites of
the will which were not fulfilled by it ; and this was
(a) 5 B. j- Jd.
held
IK THE Fourth Year of WILLIAM IV.
129
lield even in a case where the will, having only two
witnesses, would not operate on any lands unless the
copyhold passed ; Sampson v. Sampson {a). [Parke J.
Tbe question here is, whether the admittance has
not relation back (i). The devisee might maintain
^ectment as against a wrong-doer, on a demise laid
before the admittance. Littledale J. The admittance
has relation back, against every one but the lord.] The
doctrine of relation will not affect this case. In order
to give the pauper a settlement, it is necessary that
before the father's emancipation the grandfather should
biTe been in the parish, and irremovable thence, for
fcrty days. It is true that, after the admittance, the
grandfather's rights became the same as they would
then have been if he had been admitted at the death of
tbe devisor; but, till the admittance, he might have
been removed by the overseers. [Littledale J. He
would, at the\ most, be removable only till he was
admitted.] But, in the mean time, he was not irre-
movable ; he was strictly a tenant at will. If so, the
Cither at the time of his emancipation was settled else-
where ; and the subsequent admittance of the grand-
£itber cannot so relate back as to displace that settle-
menL
18S4f.
The KiXG
againit
The Inhabit-
ants of
Tbeuscrosi.
Blacibume and Sir G. A. Leioinj contra, were desired
bf the Court to confine themselves to the second point.
(s) S Vei, ^ B. 337, The copyhold was not mentioned in the will,
■i A* detnce was a child, not a creditor. See Sac Abr, Capyholdf
G S.fol.iL p. 911. (ed. 1832.)
(&) See Bac Jhr. Copyhold, G. 1. toI ii. p. 209. ; G. 8. p. 818. (ed.
185S.)
Vol. I.
K
It
TBEUtCBOMi
180 CASES IN EASTER TERM
ISS^. It is sofficienti if the grandfather had, at the time of the
emancipation, such an estate at law or in equity as to
agahui make him irremovable by the overseers. This Court
Hie Inhabit. "^
•nu of would have compelled the lord to admit him after the
death of the devisor; and all his acts, subsequent to the
death, would bind the land as against himself. Therefore
his interest commenced at the time of the death, and
the delay of a formal admittance would not make him re-
movable. It is not necessary that there should be a
perfect legal estate, to protect the possessor from re-
moval ; Sex V. BtdterUm (a). Rex v. Holm East Waver
Qttarter (6), Ashbrittle v, Wyley (c). The father, as he
might have compelled an admittance, had at least as
great an interest as a cestui que trust. In Rex v.
Chew Magna {d)j there was no estate which could have
been made good against the owner of the fee. {^Parke J«
The estate devised here was in the heir at law, till ad-
mittance. I think you will find that, before that, the
devisee had no estate, either at law or in equity ; Rex
V. Sir T. M. Wilson (^).] The heir at law would be
trustee for him. IParke J. That is the question.] A
sole next of kin has an equitable interest in a lease-
hold estate^ before administration, sufficient to gain a
settlement; Rex v. Horsley{g\ which case explains that
of South Sydenham v. Lamerton (A). And it may be a
question here, whether a legal conveyance might not
be presumed. [^Parke J. No ; there must be an ad-
(a) eT.R.554. (6) ISEast^lVI.
(c) I Sir. 608. ^Sett, Ca. No. 115. p. 131. (d) 10 B, ^ C. 747.
{e) JO ^. 4* C. Sa {g) 8 Etui, 405.
(A) Catei of SettlemenU and lUmovalt, No. 103. p. 77. As to Um
Tariation in the reports of this case, see 8 Eait, 407.> note (d).
mittance.
132 CASES IN EASTER TERM
18S4. in the appellant parish. The question of evidence is
-^ J- disposed of: we must take it that a surrender to the use
agtmut of the will is found by the sessions. The question then
Tb6 Inhftbit*
•nu of is, whether a settlement was gained by the grandfather
Tmfftciowt»
before the pauper's father became emancipated. In the
first place, there can be no doubt that admittance has
relation back for some purposes, as to enable the devisee
to avoid mesne incumbrances by another party. Hiat
relation, however, will not, in my opinion, operate so
as to make the possessor irremovable in the mean time;
he must have an interest, before the admittance, suffi-
cient to make him irremovable. Then, was the pauper's
grand&ther in thb case removable in the meanwhile?
He ought to have had a legal or an equitable estate;
but that is not the condition of a copyholder before
admittance. The law'enables him to enforce a devise
made in his favour; but he is not even obliged to accept
such a devise. No case has yet gone so far as to allow
a settlement to be created by that which is neither a
legal nor an equitable estate.
Patteson J. It appears to me that a settlement
was gained by the pauper's father. It is true that he
had no legal or equitable estate. That is, howeverj
not absolutely necessary, according to Rex v. Holm
East Waver Quarter {a). Where a party can enforce
the conveyance of a legal estate, and is in the occu-
pation of it, that is sufficient to confer a settle-
ment. Here the devisee had that right, and no one
else had. He might have taken legal proceedings to
compel the lord to admit him; and, after he had en-
forced the admittance, he might have ousted the heir.
(a) 16 £ast, 1S7.
Thougb
1S4 CASES IN EASTER TERM
18S4. of October 1820, he was, by the trustees of a chant;
established by the Court of Chancery under the will o
the late Dowager Lady Say and Sekj for placing ou
Hie Kxiia
The Inhafait-
Aouof poor boys of that parish apprentices, bound as ai
QauMTfnu
apprentice^ with a premium of 20^, to Thomas Carte
of Swanbumef in the county of Btwhsj for the term o
seven years, and served as an apprentice under tha
indenture, so as to gain a settlement in the parish o
Saianbumej if the indenture was valid. The whole o
the premium was paid out of the charity fund ; no othei
premium or consideration was paid to the master iron
any other source ; and the costs of the indenture wen
paid by the master out of the premium. But, on tb
day before the binding, the pauper was provided with i
full new suit of clothes by the parish officers of Quam
ioHf which were paid for out of the public parochia
funds by one of the churchwardens. The clothe
would not have been all given to the pauper at tha
time, but in prospect of his being so bound apprentice
though no stipulation to that effect was made by o
with the master. The indenture of apprenticeship hac
not the sanction or signature of two justices of th(
peace. The question for the opinion of the Cour
was — Whether, in this transaction, an expense wa
incurred by the public parochial funds within the mean
ing of 56 G. S. c. 1S9. s. 11.?
Bodkin in support of the order of sessions. Th<
policy of the act is directed against all interference o
the parish officers without proper authority, howevei
small the expense incurred by the parish may be. Thi
case falls within die principle of Bex v. Mattishatt (a)
(a) SB.4;C. 733,
IPark
1S6 CASES IN EASTER TERM
1831*.
^'"^SJu The King against The Inhabitants of Banbl
Jpnl 26th. °
(Banbury against Farnborough.)
Under sut (^N appeal against an order of two justices remo
1 H^» 4« c* 18. \<^
no aeitiement Ktziahy the wife of Francts Taylor ^ from the pf
it gained by
occupying the of Famborough in Warwickshire to the parish of Ban
foracontinuoui ^n Oxfordshire^ the sessions confirmed the order, sul
J^in**duri^g" to the following case : —
^^^y*" Francis Taylor, the pauper's husband, took a h
one hiring for jn ^g parish of Banbury, of one Joseph Ward, for
during the re- year, commencing at Old Lady^ay 1831, at the rei
mainder under ^ •^ •^ .
Another hhring 20/. Ward was himself a yearly tenant of the b
for a year.
If w., being which he let to Taylor, under one William Cawley, I
year to year Old Lady-day to Old Lady-day, at tlie same ren
r. frim'y^Tar ^0/. Ttfj/for entered upon the house at Old Lady
to year, and jggj ^^j ^^ Qi^ Michaelmas 1831, paid ^Fflr^f hi
IF. give up ' ' ' *^
hit own in- year's rent. Shortly after Old Michaelmas 1831, it
terest to C. by "' "^ '
Terbal agree- verbally agreed between Ward and Cawley that Wt
ment, and after-
wards 7. i^rce tenancy under Cawley should be put an end to,
c. to become Ward released from further liability in respect of it;
year to year, it was then verbally agreed between Cawley and Ti
roentUa^Sir" ^^^ Cawley should accept Taylor as his tenant oi
iid"* ta^ n ' prenaises from year to year, to commence from
endtohi* Michaelmas 1831, at the same rent of 20/., and i
former hiring.
the same terms in other respects as before. Ti
occupied the house without interruption from the
of his entry at Old Lady^ay 1831, until shortly
Old Lady-day 1832, when he went to America, wit
having paid any rent except the half year's rent pai
W
Bamboet*
1S8 CASES IN EASTER TERM
18S4. any other respect, so as to distinguish the occupation
_ under Cawley from that under Ward / except that the
og^unit substitution of Michaelmas for Old Ladu-daVi as the
Tbe Inhabit. j
anuof period from which the year's holding was to date^
operated as an extension of the old term by half a year.
The Court will not narrow the construcUon of the
statute 1 W. 4. by holding this not to be the same yearly
hiring. The object of that statute was to put an end
to doubts of two kinds ; first, whether it was necessary
that the occupation by the pauper should be personal ;
secondly, whether it was necessary that the payment
should proceed from the person hiring. But, for the
purpose of the present case, the statute 6 G.4. c. 57- 5.2,
and the statute 1 W.^. c. 18. 5. 1. may be considered as
similar. The object was, that the party should be entitled
for a whole year, and occupy for a whole year ; and that
has taken place here. It was intended that the person to
gain a setdement, should have been entrusted with an
interest for a year ; here there is a trust reposed by two
persons, instead of one, and for a year and a half, instead
of a year. A stricter interpretation would contradict
the principle of Rex v. Tadcaster [a). {Paiteson J. In
that case there were two hirings, and two occupations ;
but each occupation was under a single hiring; and
there was one year's occupation under a yearly hiring.]
At any rate, the case shews that the words of the
statutes on this subject should not be construed BtricUy.
It cannot be contended that, if a person were to take a
lease for years of a tenement, at 1000/. per annum, and^
after half a year's occupation, were to obtain an ex-
tension of his term, he would not gain a settlement by
(o) ^B.^AdU 703.
occupy-
140 CASES IN EASTER TERM
ISS^. probable that tlie words ^* under such yearly hiring)''
merely meant a hiring for a year ; or perhaps they were
asaxiiu introduced as a substitute for the words " by the person
The Inhabit- .... J tr
anu of hiring the same," which occur in 59 G. 3. c. 50., but not
in 6 G. 4. c. 57. In Rex v. Tadcaster {a) the attention
of the Court was expressly drawn to the words ^* suck
yearly hiring" in 6 G. Ai* c. 57. s. 2. ; yet they held
that different premises, taken at different times, and
from different persons, might constitute a tenement ; and
Denman C. J. said that the words made no difference in
that respect (&), citing Rex v. St(m(c) : and Parke J. cited
Rex V. North CoUingJiam {d). It would be a very
refined distinction, to allow different hirings of different
tenements to be united, but not different hirings of the
same tenement
Amos and fVaddington contrk. The leasehold interests
of both Taylor and Ward were surrendered by operation
of law, and Taylor became tenant to Caidey : Thomas v.
Cook{e)i and the notes to Thursby v. Plant {g). The
hirings, therefore, are different. The statute 6 G. 4.
c57. was passed with the object, among others, of
putting an end to this very inconvenience of uniting
occupations under distinct hirings, which led into
questions of what had passed between parties at such
different hirings, a matter often liable to misrepresent-
ation. The facts in Rex v. Tadcaster (a), did not bring
the case within this mischief. The same may be said of
Rex V. Ormesby (A), where the occupation of each part of
(a) 4 B, ^Ad. 703. (6) P. 709.
(c) 4 P. 4: C. 87. (d) 1 jB. ^ C. 578.
{g) 1 Wmu Sound. 236a., note (it), 236 c, note (n\
(A) 4B.ijid. 214.
the
iw THE Fourth Year op WILLIAM IV. 141
the tenement was for a year, under one yearly hiring ; 18S4.
though the year was not the same for the two several
paits. The words of the present act satisfy Lord agahui
"^ . , '^ ^ ^ The Inhabit.
TenterderCs suggestion in Rex v. Stcno (a), alluded to in anu of
toe course of the present argument ; and the case must
be decided according to the plain sense of the words
used by the legislature.
LiTTiXDALE J. (6). I am afraid that our decision on
this statute may partake of the refinement which has
been deprecated; and I have little doubt that the
legblature would have made this a sufficient settlement
liad the case suggested itself to them. Here has been
treating at 10/. for a whole year; but Taylor entered
under Ward^ who was yearly tenant to Ccndeyj and
Oaiey afterwards took Taylor as his tenant; the
questioii then is, Whether, ailer this, we can say that
there has been, according to the statute 1 W. 4. c. 18., an
actual occupation ^^ under such yearly hiring," by the
person hiring the premises, for the term of one whole
year? There has certainly been an occupation for a
year; but was it ** under such yearly hiring?" There
was a surrender in law of the first interest; afler which
7ffy&>r became tenant to Cowley. Substantially that
comes to the same thing as if he had occupied under
CanoUy throughout, and paid rent to him in the first
instance; but still it is not the same yearly hiring. It
is true that Camiey was the landowner all along. But
the case is as if Ward had been seised in fee, and had
conveyed his reversion to Cawley ; and then Taylor had
aorrendered to Cawley, taking a new lease, with difierent
(a) 4 p. j* C 89. (6; Lord Denman C. J. had kft the Court. ,
rents
Bavsuat*
14S CASES IN £AST£R TERM
18S4. rents and covenants. It could not then haye been said
' that the last lease was a hirinfic from Wardm Yet that
Th* KiNa ^
agaiHMi would be the same case as the present* I think there-
Tbe Inhabit-
anu of fore that, although there has been a taking for at least
two years under fVard^ there has been no sufficient
occupation ; for there was not a year's occupation under
that taking, and the two cannot be joined. The words
of the statute are not satisfied, unless the occupation be
under the same hiring. As to Bex v. Tadcaster {a)^
that was a case of different tenements, taken at different
times, by different hirings, from different landlords; but
the whole occupation of each was under one yearly hir-
ing. I think that case has gone quite far enough, and
that we ought not to go further.
Parke J. I am of the same opinion, though I have
not been free from doubt daring the discussion. I am
not sure whether we shall fulfil the intention of the
legislature; it has often happened that we have been
unable to do so throughout a series of decisions. Siill
the rule of construction which the Court must follow is,
to intend the legislature to have meant what they have
actually expressed, unless a manifest incongruity would
result from doing so, or unless the context clearly shews
that such a construction would not be the right. Thus in
Bex V. Pickering (i), it was held that evidence might be
given of the proportion of the rent payable for the part
of a tenement which was within a parish, when another
part was without, under the statute 6 G. 4. c. 57.; though
that statute, in the second section, expressly provided
that it should not be necessary to prove the actual value
(a) 4 P. 4^ M, 70S. (6) 2 ^. j- Ad. 267.
of
IN THE Fourth Year op WILLIAM IV.
148
of the tenemeDt: some little violence was done there to
the lanjjTuage of the act, in consequence of the manifest
absurdity which would have resulted from a contrary
dedsion. So in Bex v. Tadcaster{a\ to avoid a
maaifest incongruity, a little latitude of construction was
idopted; otherwise a settlement could not have been
gained by any length of occupation of any number of
tenements, unless some one was hired at a rent of at
kast 10/. Probably, in that case, we went as far as
we ought to go. I am not inclined to go further.
The present case differs from Bex v. Tadca8ter{a) in
this material respect — that each tenement there was
occapied for a year under a yearly hiring; so that the
words of the statute were satisfied, if the whole might
beuiuted to make up the rent of 10/. But if we held
tbat a settlement was gained here, we should go further;
we ihoald say that it was not necessary that the tene«
meat should be occupied for the year for which it was
Ured: and then it might be said that it would be
eaoQgh if there were an occupation for a year, though it
were under no yearly hiring whatever. The plain
meaning of the act is, that the tenement must be hired
fcrayear, and occupied for a year under such hiring;
and, if so, there was no settlement gained in this case.
It is perfectly clear that, originally, Taylor had a term.
That term could not be put an end to by what passed
between Ward and CaviLey^ for the mesne tenant could
not put an end to the interest of his lessee; and there
was no writing between Ward and Candey. But after-
wards, at Michaelmas 1831, Taylor makes a surrender
in law to Candey by accepting a new term. That, at all
18S4..
The KiMo
againU
The Inhabiu
ants of
Bamsoat.
(a) 4 B,^'Ad, 703.
events.
144 CASES IK EASTER TERM
18S4. events, determined the original tenancy, and there was
no further occupation under it. The statute, therefore^
against was not Satisfied according to its ordinary meaning;
The Inhabiu
anu of and a decision in conformity to that meaning will not
involve any manifest absurdity.
Patteson J. I entirely agree in what has been said
The rule for construing a statute is as my Brother
Parke has laid down ; and here the words of the act are
as plain as they can be. No person, on the first read-
ing, could doubt that the words '^ such yearly hiring**
mean the same yearly hiring. ' An argument is drawn
fix>m the case of Bex v. Slow (a); but that turned upon
the absence of words, which very words are in the
statute now under our consideration. The only doubt
in the present case arises from Bex v. Tadcaster{b);
some little violence was there done to the words of the
act; whether there was any violence done to the in-
tention I will not say; perhaps there was. I should^
however, feel bound by that case^ if it were not distin-
guishable from the present; but I think that it is
distinguishable, for the reasons which have been already
given.
Order of sessions quashed.
(a) 4B.iC. 87. (6) 4 B. i Ad. 703.
nr THE Fourth Year of WILLIAM IV. 145
1834.
The KliNG against The Churchwardens and saturtu^,
Overseers of Great Hambleton.
ON a{^al by the Reverend Charles Collier^ vicar of An act of pur-
liament enacted
HoMMetoiu in the county of Butland^ against a that the tithn
nte fin: the relief of the poor of the said parish of Ham' should be held
UetoR^ whereby he was assessed in the sum of 60^ <* for ^^f^ ^er
I composition or money payment in lieu of tithes,** u«id«7n°Uie*
tbe sessions quashed the rate, subject to the opinion of £^[^^1
tkii Court on the foUowinir case : — l*^* i° ^®
° parish fthould
Toe paiidi of Hambleton was enclosed under an act be chai^^with
t %• I an annuity
ofpariiament passed in the ^ di 5W.SfM. (cSl. payable to the
pmte acts), entitled, <* An Act for settling and con- ume being,
fimiog the Manors and Lands in Hameldon^ in the JJously^S^ed
Coant^ of BuOandi' &c., whereby, after reciting that J^^^* ^^^
tbereColbre the late Duke of Buckingham was entitled to "» agreement
^ ' recited in the
the inheritance of a manor, and several messuages, cot- act, was to re-
ceiTerach
tiges, demesne lands, and other parcels of arable, annuity in lieu
nwidow, and pasture ground in the said parish, and Ticanalduest
tbe dean and chapter of Lincoln were then also entitled ^i^ ^^m not^
to die inheritance of another manor, or reputed manor, ^in^,^Le^
ind of the impropriate rectory, and of the advowson of n(j^**fjj^that
the vicaraire of the church of Hameldon aforesaid, and **>« ^^f* ^^^
^ 'not eitin-
odier lands in the said parish, and Sir Abel Barker^ guiihed.
BuAard Spellj and Thomas Islip, were then also entitled
to other parcels of land within the said parish, and no
olher person was then entitled to any lands, tenements,
or hereditaments within the same, except the vicar
thereof for the time being, which vicarage was endowed
of all small tithes arising within the parish and tithe-
VoL. I. L able
146 CASES IN EASTER TERM
1834. able places of Hameldon aforesaid : And after reciting
_. ^^ also that there was an agreement made for enclosing
<vn»ut and setting out severally to each person concerned
ChurehwirdtiM therein, certain allotments of ground, to be by them,
and Orentcn
of GuAT their heirs and successors, for ever enjoyed in severalty
respectively discharged of all right of common, in lieu
of their respective lands and estates that lay before dis-
persed and intermixed within the precincts of Grea^
Hameldon (a) aforesaid ; by which said agreement all the
lands and grounds so to be allotted and set out for and
in lieu of the old estate of the said duke in G. Hm
aforesaid were for ever thereafter to stand charged with
the annual rent or sum of 100/. yearly, to be paid to
the vicar of Hameldon aforesaid for the time bdn^^ in
lieu and satisfaction of all demands and dues what-
soever which he was to have had and enjoyed in right
of his said vicarage within the precincts of G. H. afor^
said; and by the said agreement all tithes whatsoever!
a'rising or growing from all or any of the said lands and
grounds within G. H. aforesaid, other than the tithes
arising from the lands allotted to the said dean and
chapter (which were to be discharged of all tithes)
were to be held and enjoyed by those that should have
the said duke's estate there : And recitmg fiirther, that
in pursuance of such agreement there were allotted
and set out several distinct parcels of land to be held
in severalty in lieu of the said duke*s old estate, and
of the said Sir Abel Barker's^ Richard SpelTs^ and
Thomas Islip*s old estates respectively, which parcels
had respectively been enclosed and enjoyed by the
several parties, according to the agreement, and that
by the said agreement the said dean and chapter
(a) See page 148. pott
were
Haxblroit.
IN THE FOUBTH YeaR OF WILLIAM IV. 147
to hold and enjoy all their reputed manor, with 1834.
the demesnes thereof and the appropriate rectory or '
parsonage aforesaid, with the parsonage house, and all agninM
tithes arising in the other villages to the said rectory Cburchwaideu
lydongiDg^ with their appurtenances (other than the ofOuA*
tithes of Great Hameldon aforesaid, which were to be
widft the said dnke's estate), and the said dean and
were also to hold and enjoy all other the par-
parcds of land thereinafter mentioned ; but that
tbe inheritance of the said dean and chapter could not
be altered, nor their estates exchanged, nor could the
be barred of his ancient endowment, or legally
in the said annual payment^ otherwise than by
antbority of parliament, it was enacted as follows : —
That all and every the lands, tenements, tithes,
and hereditamoits, which upon the said enclosure
were net oot and allotted for and in lieu of the said
dokfl^s ancient estate in Great Hameldon aforesaid,
dioukl be hdd and enjoyed in severalty, together with
iB the messuages, and all tithes whatsoever arising
fixmi his own or any other lands whatsoever in 6. H.
aforesaid, (except the lands allotted to the said dean
md chapter), subject and charged nevertheless to and
widi tbe payment of the yearly sum of 100/. to the
victtr of G. H. for the time being, to be paid by
qoarteriy payments, with power of distress upon all or
Qy of the said duke's lands in case of nonpayment
ifter twenty-one days' demand thereof. And it was
iirdier enacted that all the messuages, lands, &c.,
vhich the said late duke held in 6. H. since the en-
dosore^ as his own proper inheritance, by virtue of the
laid enclosure or otherwise, together with all tithes
aiinDg from the same^ and all tithes arising from any
L 2 other
148 CASES IN EASTER TERM
1834. other lands, &c., in G. H. aforesaid, other than those
that belonged to the said dean and chapter, should be
ogqitui vested, and the same were thereby vested, in the trustees
The ^ . . 1
Churchwirdeni of the said late duke, and their heirs, subject to the
•od Orerwon
of Geiat said yearly rent of 100/. as aforesaid, and to the same
Hambuxok.
trusts and estates as the late duke's manor of 6.
and other the said late duke's estate of inheritance in
G« H. aforesaid were then subject or liable to ; and that
all the lands, &c., allotted and set out to Sir AM
Barker^ Richard Spell, and Thomas IsUp, as aforesaid,
should be held and enjoyed by the respective persons
who had any estate or interest therein, either by descent
or purchase from them respectively, or their respective
heirs; with the proviso that the tithes arising from aQ
those lands were to be answered and paid to the said
duke and his heirs.
Mr. Pinch was the successor, by purchase^ to the late
Duke of Buckingham, and was entitled to all his estates^
and to the receipt of the tithes, or composition for
tithes, to which the duke was entitled in the parish of
Hambleton. Mr. Finch and the smaller proprietors
let their estates to tenants at rack-rent, without reference
to tithes; but the tithes and all other properties are
included in the said rack-rent Mr. Finch, for the
other lands in Great HamUeion not belonging to him,
receives certain sums of money in lieu of tithes. The
100/. per annum, mentioned in the act, is paid to the
vicar of Hamhleton, pursuant to the said act. The
parishes of Great Hameldon and Ldttle Hameldon are
consolidated for the maintenance of the poor, and ton
other parochial purposes, and are now called by the
name of HatMeton.
On the part of the respondents, it was contended that
the 100/» rent-charge was expressly given to the vicai
u
IN THE Fourth Year of WILLIAM IV. 149
in Ilea and satis&ction of the vicarial tithes of Great 18S4.
Harnddon^ the proprietors of the smaller estates there '
* ^ The KiNfl
^Mmtribotio^ as they had always done* before and since ogpmA
The
cbe passing of the act, a proportionate part of the rent- Cbuivhwatdem
^baige^ according to the quantum of their estates, to of Obxat
Hajolhoit.
prc^rietor of the duke's estate, in the nature of a
composition real ; and that the tithes were in effect ex*
tinginshed, and were by the act intended to be so, and
not again to be resumed.
The appellant insisted that the tithes were still in
ea^ and that the rent-charge could not be regarded as
ttabstitutioo for them, and therefore that it was exempt
bom assessment, upon the principle of double rating:
That the 1002. per annum charged upon Mr. FincKs
estate, and received by the vicar in lieu of the tithes^
was m the nature of a perpetual fee-farm rent. Finch
taking the tithes instead of the vicar ; and therefore that
the nte should have been laid upon Finch^ or the
parties compounding with him.
Sir James Scarlett and Amos in support of the order
of aeauoos. The tithes here are not extinguished ; and
tberefcie the vicar cannot be said to receive a com-
fxwtioQ for them, but a rent-charge payable in lieu of
the tithes, which are taken by another person. The
near here cannot even, as in the case of a temporary com-
pofitioii, take the tithes again in kind : he has only the
perpetual rent-charge, and occupies nothing which is
rateable. The act, instead of extinguishing the tithes,
has transferred them to the Duke of Buckingham^ who
ii noHr represented by Mr. Finch ; and Mr. Finch^ in
this character, takes the tithes, not only on the lands
which belonged to the duke, but on all the lands in the
L 3 parish^
150 CASES IN EASTER TERM
1834. parish, excepting those of the dean and chapter, whc
were rectors, and therefore were protected from tin
payment by the i^cL Now, the party to whom tithe
Hie
Chnrriiwardeiit are demised is the occupier liable to be rated for them
of GuAT Chanter y* GbM (a) ; where Bayley J. gives the follow*
ing definition : — ^* Where the owner of the tithe graoti
out and conveys any of the tithe to another, that otha
is the occupier. Where the right continues in himsdf
he is the occupier." But it cannot make any differena
whether the right to the tithe be transferred by th
owner of the tithe, or, as in this case^ by an act o
parliament. The annuity paid to the vicar is merdj
the consideration for which that transfer was made
In Mtx V. Boldero (6), it was held, that where the tithfl
were extinguished by statute, and an annual renli
payable to the vicar, was substituted, the vicar wai
liable to be rated for that annual rent, inasmuch as the
rent represented the tithes ; and Holrcyd J. there aaidi
that the tenants of the land were not occupiers of the
tithes, for that the tithes were expressly extinguished.
There are other cases to the same effect. But here the
rent cannot be said to represent the tithes, for thej
exist in other hands ; and, instead of being expresslj
extinguished, they are expressly continued.
Thesiger contrL If the tithes be extinguished, the
vicar is rateable for this rent, according to Bex v.
Boldero {b)f and Laamdes v. Home and Olkers{c), On
the other hand, it has been held, that where aju ad
expressly exempts from all rates, taxes, and deduction!
a rent to be paid the vicar in lieu of tithes which arc
(a) 9^. j-C.479. (6) 4JB,4C.467. (c) SUr.BLl25S.
extin*
352 CASES IN EASTER TERM
lSS4f. say that the vicar was not rateable for the rent Bat
here there is no extinguishment*
agamtt
Tbe
Churchwardens Parke J. Concurred.
and Of eneen
of Great
Hamblroit.
Patteson J. There is no difficulty or doubt in the
question.
Order of sessions confirmed*
SS^. The King against The Inhabitants of G winear.
^t^^^^Wi O^ appeal against an order of two justices, remo^i^
S h^Tj*^ -P**> ^^^ *e younger from the parish of Gmnear
till he should to the parish of Camborne (both in Corm>all)y the
be twenty-one *^ ^
yean of age, sessions quashed the order, subject to the following
senred the
master, first case : —
and afterwards Philip Rule the elder, the pauper's father, had been
as a miner.
He then left removed, with his parents and their other children, from
winTt^'nie'"'* Camborne to the parish of St. Erth in CortmaU. On
^her"*(who° *® ^^^ ^^ •^"'^ ^"^^^ ^^ ^^^ ^"'y '^""^ ^y *^ parish
was a miner), officers of St. Ertk to Rtchord Tredinnick of the same
and worked
with his father parish, farmer, till he should attain the age of twenty-one,
at the same
mine at which by indenture containing the usual covenants, as an ap-
he had worked • - i i , rr«i • i« j • i_ i_-
with his master, preutice m husbandry. The apprentice lived with nis
afterwards' master for some years in St. Ertky and served him in
agreed with
the father that
the apprentice should remain with the father, and the indenture be gHen up on a sub-
sequent day, upon the payment of a sum of money. On tbe day appointed, which was
before tbe passing of sUt. 56 6. 3. c. 139., the money was paid, and the indenture gbren
up to the father. The son was then under age. He worked with the father as a miner till
his majority, when the indenture was giren up to him by bis father. From his first coming
to hu father, the father had receired his wages, and maintained him :
Held, that eren supposing the parties to have had power tu dissolre the apprenticeship*
and to hare intended to do lo, it was not dissoWed till the money was paid ; and that
a residence of forty days between the making of the agreement and the payment of the
money, was a residence under the apprenticeship, and conferred a settiement.
husbandry,
^
OwmAm.
IN THE FouBTH Year OF WILLIAM IV. 153
husbandry, until be became reduced in circumstanceSf 18S4.
when he worked at the mines, employing the apprentice
in the same work. The roaster then removed to the agamat
The Inhabit-
pansh of Phillack in the same county, taking the ap- sou of
prentice with him. Whilst there, and about two years
before the expiration of the apprenticeship, a dispute
biTing arisen between the mistress and the apprentice,
the latter told his mistress that he would leave the place
ind never return to it; and accordingly he left it imme-
diately without the consent of his master, and never re-
turned, but went to live with his parents in the parish
of CanAomef where they occupied a small cottage at
SOs. a year, his fitther working as a labouring miner in
JSrbind mine. During the time the apprentice lived
in PUnacij hia master worked at this mine^ where the
mjqnrentice worked with him ; and after he had left his
xoaster, he continued to work at the same mine under his
father* Tredinnick^ a few days after the apprentice had
left him, ibund him working for his father at Hirland
siine^ and told his father that, if he kept the apprentice,
he, Tredinnickj would take up his wages. The &ther
replied, that he did not wish to keep the boy, but that
he would not go back. It was then agreed that the boy
sboold be given up to the father, in consideration of
four guineas to be paid on the next mine pay day for
the ores on which the father and son were then work-*
log. The agreement was made in Mayy and the money
was accordingly paid on the 16th of August ibllowing,
when the indenture was delivered up by Tredinnick
to the father. The apprentice, from the time when
he quitted Tredinnickj lived, with his knowledge, in
Cambame with his father, who received all the wages
^hich he earned at the mine, supplying him with meat
and
154 CASES IN EASTER TERM
18S4. and clothes and other necessaries, like the rest of his
children who lived with him. After the apprentice be-
agamM Came of Bge, he received his own waires, and the fiither
TlM Inhabit. ^ *
uttof then delivered up the indenture to him. Some tune
after his removal to Si. Erthj the &ther went to the
parish of Crawan to live, and was there, and also in
Camborne after his return thither, as above stated, re-
lieved by the parish officers of St. ErOu
Justin and Wtnthrop M. Praed in support of the
order of sessions. No settlement was gained in CSmh
dome, by P. Bide the elder, as apprentice to Tredin*
nick. First, his indenture had been cancelled by the
agreement between his fether and the master, and the
giving up of the indenture by consent of all the parties
Bex V. St. Mary KaUendar {a\ Bex v. Jitchfield (5), Bex
V. fVeddingt(m{c), Bex v. Harberton{d). In the last
case, the pauper was a minor at the time of the di»*
charging of the indenture. Bex v. Austrey (e) was the
case of a parish apprentice, whose consent, without
that of the parish officers, was held inoperative while
he was a minor. Here, the father assented. It is
true that the apprentice had resided forty days in
Camborne before the money was paid or the indenture
given up. But the agreement must be considered to
have cancelled the indenture; and the delivery of it up^
and the payment of the money, have reference to the
agreement only. Unless the agreement took efiect at the
time, the residence between May and August was not
with the master's consent, and therefore cannot be refers
(a) Burr. S. C. p. 274. No. 95. {b) Burr. S. C. p. 511. No. 164.
(c) Burr, S. C. p. 766. No. 839. (d) 1 T. R. 139.
(0 Burr, S, C p. 441. No. 14S.
red
IN THE Fourth Year op WILLIAM IV. 155
s«I to the apprenticeship. But, further, independently 1884.
^ the first objection, the residence cannot be referred to
the indenture. The apprenticeship may be considered
TbeKni^
OwmtAB.
Tb6 Inhabit-
as having a double object, instruction and maintenance. aati of
In Bex ¥• Linkinhome (a), the residence was referred to
the apprenticeship, on the ground of the maintenance
proceeding from the master; here, the master neither
instmcted nor maintained. The indenture was for
teaching husbandry, but the apprentice was serving as
a mineTf and he was maintained by his fether in his
family. There must be some connection of the new
Kmoe with the original apprenticeship, and not merely
i general assent by the original master to a service
dtewhere: Rex v. ShiptoH{fi)j Bex v. Whitchurch {c).
lUther of these cases was disputed by the Court in
Hear V. Banbury ((/), (Banbury v. Witney\ though there
was a difference of opinion on the Bench.
Crawder contriU Bexy. Austrey {e) shews that a minor
cannot consent to the dissolution of the contract of ap«
prenticeship ; and the contract here was not dissolved by
what passed between the master and the father, since
the apprentice's own consent had no effect. In Bex v.
HarberUm (g), it does not appear that the receipt of the
master for buying off the apprentice's time, which was
relied on as discharging the indenture^ was not given
a&er the majoriQr of the apprenUce. Again, even if the
apprentice was capable of consenting to a dissolution,
the case shews no dissolution till the money was paid
and the indenture delivered up, before which events the
(s) ZB.^Jd. 415. (6) SB.^C. 88.
(c) 1 17. 4* a 574. {d) BB.^Ad. 17S.
(0 Burr. 8.C 1^ 441. No. 14S. (g) I T. M. 189.
settle-
156 CASES IN EASTER TERM
18d4f. setdement was obtained. If the money had never been
-^ ^ paid, and the master had retained the indenture, there
^^^^w* could have been no pretence for inferring a dissolution^
antt of There can be no doubt, that the agreement to disdiarge
GWIKXAB, 1. . 1 J l_
the apprentice was prospective and conditional, and that
the master intended to keep the indenture till the con-
dition Was performed. And the intermediate service
was under the indenture : Bex v. Chipping Warden (a).
The master might have changed his mind before the
16th of August i and if the indenture had not been de*
livered up^ the apprenticeship would still have subsisted :
Bex v. Shebbear (b). But, further, it does not appear
that it was intended to put an end to the apprentice*
ship at all. The fiither kept the indentures and de-
livered them to the son at the expiration of the term of
the apprenticeship. The inference is, that it was merdy
meant that the apprentice should serve with the father
by the master's consent, the father taking the master's
placCi The species of service, though not that men-
tioned in the indenture, was the same as that which had
latterly been performed under the master. Bex v.
Shipton (c) principally turned on the effect of stat
SSG.Si c. 139. 5.9., which did not come into oper^
adon before the 1st of October 1816. Bex v. Lin^
Jcinhome {d) and Bex v. Banbury (e) are inapplicable^
for the residence was not, in either case, during a
service to which the original master had assented by
communicauon with the new master. This case is
therefore free from the doubts raised in those. In
Bex V. Barleston {g) the transaction took place after
(a) 8 r. R. 108. (A) 1 £j^, 73.
(c) %B.^C. 88. (dj 5B. ^ AiL 413.
(«) 5 B. ij- Ad. 176. (g) 5B,i JUL 780.
the
158 CASES IN EASTER TERM
1884. Pabxb J. I doubt much whether the parties h
ey^ contemplated a ditsoluticm of the apprenticeshi
agtbui whether, as Mr. Crowder puts it. there was more tl
TbelnliaUu r ^
Hit»of a transfer of the service. Supposing the intention
OwnitAB*
have been to dissolve the apprenticeship, I doubt a
whether the consent of the Ceither would here be suflk»
to make the dissolution complete. But assuming it
be suflBdent, still the agreement was prospective a
executory till the consideration for giving up the ind
ture should be paid: it was not to be considered
operating on the indenture till then. If the intent!
was merely to transfer the^services, there was dearih
residence widi the consent of the master. But, supp
ing that there was a dissolution on the 16th of .^ligi
the service performed in the meantime in the mi
was done first under the master, and next under I
fether with the master's assent, till the time when it v
agreed that the wages should be made up and the :
denture delivered over : therefore the residence with 1
fether, up to that time, must be considered as havi
taken place under the indenture of apprenticeship.
Patteson J. I think the service in Cambomej fn
May to August^ was a service under the indenture. 1
Augustf the apprentice lived with his father; the mon
was to be paid in August^ and had that payment i
been made, the master would have got back the i
praitice. However, I do not think that there was a
intention to dissolve the apprenticeship. In Bex
Harberton (a), which was cited to shew that the appr«
tice might consent, though an infant, the discharge to
place after the apprentice was of age.
Order of sessions quasb
(a) 1 r. A. 189.
;o CASES IN EASTER TERM
1834. expenses (as per agreement) : provided the seller objects
to pay any expenses, I hereby promise not to apply to
agamai Mr. 22. for any further sums. 8th of September 1831.''
Rktwolos.
Upon cross-examination of the defendant's witnessesi
it appeared that, for the purpose of effectuaUy conv^ing
the estate, it was found necessary that a fine should be
levied ; whereupon the defendant agreed with the vendors
that they should pay the whole expense of the fine and not
pay the plaintiff any part of the expense of the convey-
ance; and that the plaintiff had not been able to obtun
from the vendors any part of the expense of the con-
veyance, which had been wholly prepared by hino. The
delivery of the mare to the plaintiff was admitted. Upon
this the learned Judge nonsuited the plaindff, vnth leave
to move to enter a verdict for 18/., if the Court should
be of opinion that the agreement of the 8th otSepiemier
1831 was conditional, and that the condition had been
broken by the agreement between the defendant and the
vendors for the expensef of the fine and conveyance.
JF*. Pollock obtained a rule accordingly in Michaelmas
term 1833.
Erie and Thomas now showed cause. The last
agreement between the defendant and the vendors
cannot entitle the plaintiff to recover for any other work
and labour than that which he has performed for the
defendant; and that has been satisfied according to the
terms of the agreement of the 8th of September. No -^^
claim can arise from the defendant having prevailed ^
upon the vendors to take upon themselves the expense
of the fine. Even if that has prevented the plaintiff
from receiving of the vendors the share which they
must
162
CASES IN EASTER TERM
18S4-.
Not
agairut
Retholm.
the plaintiff. The fair way is to refer it to the Master
to ascertain whether any and what sum was so, in effect,
received by the defendant]
The Court (a) accordingly directed that it should be
referred to the Master to ascertain whether the defend-
ant had received any part of the expenses of the con-
veyance by setting off the same against the expenses
of the fine ; and, if he had, then the nonsuit to be set
aside, and a verdict to be entered for the plaintiff for
that amount; if not, the nonsuit to stand.
(a) Lord Ihnman C J., LUUedaley Parke, and Paitesan Js.
Saturday^
jfyrU26th.
Ann Hayslep against Gymer.
T^EBT for money had and received to the use of
the plaintiff. Plea, nil debet. At the trial before
Denman C. J., at the London sittings after last Hilary
term, the following facts were proved on the part of the
plaintiff: — The defendant was executor of a Mrs.
Wilkinson^ and the plaintiff lived in Mrs. Wilkinson's
house till the time of her death. On the reading of
In an action
brought to
recover back
notes delivered
to the defend-
ant by the
plaintiff; the
plaintiff proved
that the de-
fendant, who
was executor of
W»f having
questioned the
plaintiff as to
her having pos-
session of some property belonging to IT., the plaintiff handed the notes overto the defendant*
stating that ff^. had given them to her, the plaintiff, before her death. The defendant did
not deny the statement, but had no means of knowing its truth or falsehood. There was
contradictory evidence as to whether the defendant said that he would keep the notes, or
that he would keep them to be returned to the plaintiff on request. The notes had been
seen in the plaintiff's possession before /r.'s death. Other evidence was given, as to the
fairness of the conduct of the plaintiff respecting #f^.*s property in general : '
Held, that the declaration made by the plaintiff might go to the jury as evidence in licr
favour, on the ground (though very slight) of acquiescence in its truth by the defendant^
and also as being a part of the res gestae on the occasion of the defendant's obtaining the
notes, and as giving a character to the whole conduct of the plaintiff.
Mrs.
Gmsm.
IN THB Fourth Year op WILLIAM IV. 163
Jifrs. WiUansm^s will, the defendant asked the plaintiff 1334.
ivhether she had not possession of something given to J!
her by Mrs. WiUdnsony and how she had obtained it. (hp^wu
She prodoced a parcel, which contained bank notes of
the value of 280/., and said that Mrs. Wilkinson had
given them to her a fortnight before her death, telling
her they would be useful to her, after her (Mrs. WU'
HmtHi's) death; and that no one was present at the
tune. According to one witness, the defendant then
tad that he should keep the parcel till the plaintiff re-
<{Diredit; according to another, simply that he should
^ iL The plaintiff had Mrs. WiUcinsoris keys
doriogher illness, and superintended the*economy of the
We. Other property of Mrs. Willcinson*s to a con-
sidenble amount was shewn to have been in the power
of the plaintiff, which was found by the executors un-
<&toi{)ed. Mrs. Wilkinson did not take to her bed
OH)re than a week before her death. During that week
the phintiff shewed the notes, in her own possession,
to a witness. The action was brought to recover back
Aoe notes. The defendant's counsel objected that
there was not evidence to go to the jury, of the property
of tbe notes being in the plaintiff. His Lordship having
left the whole evidence to the jury, they found a verdict
br the pUintiff.
Sr James Scarlett^ in this term, moved for a rule to
shew cause why a nonsuit should not be entered. There
was no evklence at all of property in these notes, except
the plaintiff's own account of the matter. Now, al-
though it be true, that where a party to a cause endea-
vours to establish his case by an admission of the adverse
par^, the whole of that admission, and of the circum-
M 2 stances
Gtmir*
166 CASES IN EASTER TERM
1884* shew the whole that took place, and cases where the
J" party attempts to make his own declaration evidence in
ofsaUut the first instance. But here Mrs. Hcyslep was obliged
to shew, how the defendant had obtained possession of
the money, and she might give evidence of what she
herself said at the time, as a part of the transacticm;
and that being before the jury, it cannot be said that
they were not entitled to give it consideration. The de-
fendant, having asked her how she obtained the money,
did not, in terms, deny the truth of her answer; but he
retained the money, and thereby perhaps shewed that
he did not acquiesce in her account. There was, how-
ever, upon the whole transaction, evidence, though of
very trifling weight, to go to the jury, and there were
circumstances which supported the plaintifi^s statement
I think the verdict should not be disturbed.
Lord Denman C. J. I think the acquiescence of the
defendant amounts to very little indeed. But the ques-
tion is, whether or not the evidence of what passed
ought to have gone to the jury. The whole conduct of
Mrs. Hayskp was evidence, among other &cts in the
case, to shew whether or not she had obtained the
money fairly, and under what circumstances the de«
fendant got possession of it The verdict seems to me
to have been quite proper.
Rule refused.
1€8
CASES IN EASTER TERM
18d4^
CuBTn
ogntui
Griaveb*
The plaintiff gave prima facie evidence of bis case b}
shewing the deposit of the money with the defendant
and the fiulure of the consideration by the non-com-
pletion of the title : if the defendant wished to proted
himself by the written agreement^ he should have pro-
duced it* The written agreement makes no part of the
plaintiff's case, which rests not on that agreement, but
on fiulure of consideration between himself and the de-
fendant Again, the defendant's contract is, to hold
the money for the party entitled to iu The contract
between the plaintiff and the vendor is a distinct matter,
as was said by Dallas J. in Ijee v. Munn (a). \^Pai'
teson J. The contract of the auctioneer is to return the
money to the plaintiff if the vendor be not entitled to
keqp it : the question is, whether he be or be not sc
entitled ?] Suppose there were a contract between the
vendee and the auctioneer, and afterwards another con-
tract between the vendor and vendee, the latter contracC
would not be evidence in an action between the vendee
and the auctioneer on the former contract [Patteson X
Why not ? The auctioneer's contract is, to return on s
certain event : the latter contract may be evidence as to
the event] The event is the non-performance of the
conditions of sole. Again, the Court, if it take notice
of the agreement at all, will presume that it is the in<
strument, the execution of which is contemplated by the
conditions of sale, and that it is conformable to those
Conditions. If it vary the conditions of sale, the de-
fendant ought to produce it ; and if it do not vary
them, its existence is immaterial.
(a) 8 Taunt* 54.
Sii
170 CASES IK EASTER TERM
1834. Lord Denman C. J. The Court are of opinic
""^""^ that I ought to have allowed the question, whether tl
tigamtt agreement related to the deposit, to be answered. Th
rule must therefore be made absolute.
LiTTLEDALE J. concurred.
Parke J. Had the question been put, and had th
answer been, that the instrument was conformable t
the conditions of sale, I should have tliought tibi
sufficient evidence of its contents, and I should hav
considered that the plaintiff was not bound to produo
it. But the question was, whether it related to tfa<
deposit : if it did, it might be a necessary part of th<
plaintiff's case, though in the first instance it did no
appear to be so. There has therefore been a disallow
ance of a legitimate question. If it be objected^ tha
this is oral evidence of the contents of a written agree
. ment, the answer is, that some oral evidence must b
given to introduce the fact of there having been a writtei
instrument; and for this purpose a party may ask ii
cross-examination whether there was not an agreemen
in writing upon the subject-matter of the suit.
Patteson J. concurred.
Rule absolute
Hatch.
172 CASES IN EASTER TERM
1834. the matters of the petition and schedule were heard by
"~"~ the above-mentioned Court on the 15th of April and
Bishop
ag^mtt 14th of May following^ on which latter day the Court,
by an order of adjudication bearing date the said 14tli
of Mcy^ declared the insolvent entitled to the benefit
of the act, and adjudged him to be discharged out of
custody. He was accordingly d&charged.
After the assignment to the provisional assignee, the
said Court appointed Frederick Webb and Thomat
Thorpe FaUamSy two of the creditors, assignees of the
estate and effects of the insolvent ; and by assigottietlt
executed on the 29th of April 1833, all the said estate,
and all other the premises comprised in the former
assignment, were duly conveyed and assigned to WM
and FallowSf in trust for the creditors of the insolvent,
according to the act. The said debts, to the amount of
9000/., reknained unpaid when this case was stated.
Before the conveyance to the provisional assignee,
viz., on the I5ih of November 1832, the plaintifiP com-
menced the action in which this case was entitled, to
recover 500/., due on a bond executed in 1824. The
cause \Vas tried on the 29th of January 1833, and a
verdict found for the plaintiff for 500/. ; and subse-
quently to the above mentioned conveyance to the
provisional assignee, but before the said order of adju-
dication, viz., on the 8th of Febmary 1833, the plaintiff
signed judgment for 500/., and 74/. 105. costs, upon
which, and before the order of adjudication, viz. on the
18th o{ February 1833, he sued out a writ of sequestrari
facias, directed to the Bishop of Winchester^ who, on the
1st of March following, granted the plaintiff a seques-
tration against the defendant's rectory of Sutton^ for the
purpose of levying the said debt and costs. The plain-
Uff
i
176 CASES IN EASTER TERM
18S4. Court said they would, in each case, first bear the
counsel m support of the sequestration.
againM
Hatch*
Harrison for the plaintiff Bishop. The assignees
must contend that the defendant's ecclesiastical goods
vested in them by tlie assignment to the provisional
assignee; the plaintiff maintains that nothing oould
pass to them till the adjudication of the Insolvent
Debtor's Court The effect of 7 G. 4. c. 57. *. 11. (fl),
which directs the conveyance to the provisional as-
(a) 7 G. 4. c. 57. f. 1 1. enacts, " That such prisoner shaU, at the thne
of subscribing the said petition, duly execute a conveyance and Mslg;!!-
ment to the protisional assignee of the said court, in such form aa it to
this act annexed, of all the estate, right, title, interest, and trust of aoch
prisoner. In and to all the real and personal estate and efiecta of aoch
prisoner, both within this realm and abroad, except the wearing «ppard»
bedding, and other such necessaries of such person, and his or her hnOj,
and the working tools and implements of such prisoner, not exceedinig fai
the whole the value of 20L ; and of all future estate, right, title, interasi,
and trust of such prisoner, in or to any real and personal estate and efibeli
within this realm or abroad, which such prisoner may purchase^ or wfaidh
may revert, descend, be devised or bequeathed, or come to him or her
before he or she shall become entitled to his or her final discharge in puit-
suance of this act according to the adjudication made in that behalf; or
in case such prisoner shall obtain his or her discharge from custody with-
out any adjudication being made in tlie matter of his or her petition, then
before such prisoner shall be at large and out of custody; and of all debts
due or growing due to such prisoner, or to be due to him or her belbre
such discharge as aforesaid; which conveyance and assignment, so ex-
ecuted as aforesaid^ in form aforesaid, shall vest all the real and peraonal
estate and effects of such prisoner, and all such future real and peraonal
estate and effects as aforesaid, of every nature and kind whataoevef, and
all such debts as aforesaid, in the said provisional assignee ; and the •—m*
shall be made subject to a proviso, that in case the petition of any such
prisoner shall be dismissed by the said court, such conveyance and aaa^D*
ment shall, from and after such dismission, be null and void to all intenli
and purposes: and the said court is hereby empowered to <ltfmii^ ^aj
such petition in the matter whereof a final adjudication shall not have bcm
made in pursuance of this act, at any time when it shall seem fit to thi
said court to dismiss the same."
signeCf
^
178 CASES IN EASTER TERM
i8d4<. vacant ecclesiastical benefice is excepted from among
"^ those powers and trusts which the assignees may execute
against in place of the insolvent. The only authority by which
the assignees can take ecclesiastical property is the
twenty-eighth section of this act; for before such a
clause was introduced into the insolvent acts, they
could not seize the profits of a benefice ; ArbuMe v.
Caootan {a) : nor could they reach the half pay of an
officer, till a remedy was in like manner provided by the
l^slature; Flarty v. Odium (b). Now, by sect. 28.,
the assignees, to avail themselves of the profits of a
benefice, must obtain a sequestration as there directed;
and for obtaining it, the adjudication of the Insolvent
Debtor's Court is a condition precedent A creditor
who has sequestered before that condition has been
fulfilled, must enjoy the benefit of his priority. If the
provisional assignee takes the profits of the benefice by
virtue of the assignment to him, his title is defeasible at
any time by the dismissal of the insolvent's petition;
and while he so holds, there can be no certain provision
made for the cure being served and the ecclesiastical
charges defrayed ; but when a sequestration is obtained,
a bond is always given to the bishop for the due fulfil-
ment of these objects. This shews that a sequestration
is the proper medium, and it is the one contemplated
by the legislature, through which assignees, like other
creditors, are to avail themselves of ecclesiastical pro-
perty; and the statute says that the assignees may
adopt this course after the adjudication of the Insolvent
Debtors' Court, but not before.
(a) 5 B, ^ r. 321. (6) 3 T. /?. 681.
J. L. Adolphus
\
182 CASES IN EASTER TERM
1834. kind of property; the difficulty he suggests is in render-
„ ing it available. After statincc that no instance has
Bishop ° o
against been fouud in which proceedings against a benefice
Xi ATCU*
have taken place under a commission of bankrupt, he
adds, << Nor shall I undertake to point out in what
manner the assignees in tliis case must proceed. Bat
although there may be difficulties in the mode of pro-
ceeding, we are not therefore to hold that the nature
of the property which a clergyman has in his benefice
is changed by the operation of an insolvent act, or that
the assignees under such an act will be entitled to
demand and receive ecclesiastical dues.'' The next
Insolvent Act which passed was the general one of
53 G. 3. c. 102. ; and in that, for the first time^ a
clause is introduced {s. 27.) in nearly the same words
as section 28. of the present act, and containing also
a provision as to the pay of military and other officers,
similar to that in sect. 29. of the act now in force.
There can be litde doubt that, as the latter was intended
to meet the difficulty raised by the case of Flarty v.
Odium (a), so the former was introduced to remove the
anomaly complained of by Lord Alvanley in Arbuckle y.
Cowtan{b); and it must be presumed that the legis-
lature meant to do this effisctually. But to provide that
the assignees may apply for and obtain a sequestration
of the profits of the benefice, for which the adjudication
shall be a warrant, is nugatory in a case where there
are judgment creditors, unless it be taken to mean tliat
the assignees exclusively shall be entitled to such seques-
tration. They are precluded from obtaining it till after
the adjudication, which, by the statute, may be delayed
(a) 3 r. n. 681. (6) 3 B. i P. 321.
many
N
Hatch.
186 CASES IN EASTER TERM
1884. party. Aad there have lately been several other
'Z applications to the Court (in Flight v. Salter (a) and
agamtt Other cases of that class) where the setting aside
of the bishop's sequestration necessarily formed part
of the rules, and yet it does not appear that he was
called upon to shew cause. [Ldttledale J. When a
sequestration issues, it is his duty to see that the cure
is provided for out of the proceeds.] That reason for
making him a party might have been urged in Britten
V. Wait{b\ but does not seem to have been insisted
upon, though the Court ultimately made a rule for
taking an account before the Master of the profits re-
ceived under the sequestration. {Littledale J» Suppose
the bishop had actually paid over money.] The Court,
on referring the matter to the Master, might easily
shape the rule so as to protect the bishop. Then, as
to the effect of the thirty-fourth section. It cannot be
contended that a sequestration is not an execution ; and
whether or not the plaintiff in this case has actually
enforced it by seizure and sale can make no difference.
The common form of a sequestration granted by the
bishop is given in TiMs Practical Fortnst chap. 41.,
and that empowers the sequestrator to levy and sell;
and where process has been taken out, conferring this
power, it would be strange to say that the validity of
the execution, under sect 34., depended upon the point
whether or not the power of selling had in fact been
exercised at the time when the case came before the
Court The true question on this point would be^
whether an execution had been taken out which, if
not always enforced by seizure and sale, might at any
(a) 1 B. i Ad. 675, (6) 5 ff. i Ad. 915.
time
%
Hatch.
IK THE Fourth Year of WILLIAM IV. 187
tiine be so. Bat the legislature clearly intended that 18S4.
ifter an insolvent went to prison, no judgment on a "Z
oognofit or warrant of attorney should in any way be ^'^'''^
made available against his estate by execution. The
words as to seizure and sale were introduced for the
purpose of distinctly expressing that the creditor should
iMt only not seize and sell, but that, even if he had
already seized, he should not proceed to a sale. If
thoe were any ambiguity in the clause, it is removed
bj the concluding words : ** but that any person or
persons to whom any sum or sums of money shall be
doe in respect of any such warrant of attorney or
cognovit actionem, shall and may be a creditor or
creditors for the same under this act." If the party
may m any way possess himself of the property on his
bdindoal account, it is contradictory to say that he
sUl come in as a creditor under the act In the case
of a sequestration, therefore, as in other instances, the
rads of this clause, as was said by Tindal C. J. in
GtfjiKs V. Cowham (a), ** effect a statutory supersedeas
of the execution." It must be admitted that the assignees
Ate not. at present in a situation to ask for such a rule
as was originally prayed ; but if the rights of the parties
are ascertained by the judgment of the Court, there will
probably be no difficulty in shaping a satisfactory rule.
Lord Denman C. J. The case of Chuter v. Hatch
ii fiiU of difficulties, and the Ck)urt will take time to con-
aider it With regard to the former case, it appears to
me that the eleventh and twenty-eighth sections of the
act 7 6. 4. c. 57. must be read together ; and the latter
section expressly says, ** that nothing in that act shall
(a) 10 Bingh, 8.
<fxteiic!
188 CASES IN EASTER TERM
1834. extend to entitle the assignees of the estate of any sacb
prisoner, being a beneficed clergyman, to the income oi
against sucb benefice, for the purposes of this act." It is quite
Hatch.
clear, therefore, that by virtue of the assignment tliat
income does not pass. But then it is added, that it
shall be lawful for the assignees to apply for and obtain
a sequestration of the profit of such benefice for pay-
ment of the debts, and the order of adjudication made
in pursuance of the act shall be a sufficient warrant for
granting it ; and such sequestration shall be issued, as
it might have been issued upon a levari facias founded
upon a judgment But how is that ? Subject, certainly,
to other writs of execution which have a priority ; and
a creditor, who has levied any thing under such a writ,
is entitled to retain it against the assignees. I think,
therefore, it is quite clear the rule must be discharged.
LiTTLEDALE J. I om clearly of the same opinion.
Ttie proviso of the twenty-eighth section operates merely
as an exception to what is enacted in the eleventh, and
must be read as if introduced at the end of it. The
legislature does not deprive the assignees altogether of
this kind of property; but, till the adjudication, they
are not in a condition to proceed against it. After ad*
judication they may, but until then there is nothing to
prevent other creditors from suing out execution in the
ordinary way.
Parke J. I never felt any doubt on this case. The
two sections must be read together, and the effect ot
them is, that by the general assignment the fruits of a
benefice do not pass ; the assignees can only lay claim
to them under the latter clause of the twenty-eighth
section, and in the manner there pointed out, after ad-
judication.
Hatch.
IN THE Fourth Year of WILLIAM IV. 189
jadication. They only stand in the situation of judg- ISS^.
Dent creditors from that time, and have no other right
Bishop
of priority. Great inconvenience has resulted from the agfmut
doctrine of relation back, and there are no words in the
act to render it admissible in the present case. By
sect 28. the adjudication is put in the place of a judg-
ment, and the assignees, on obtaining a sequestration,
sund in the same situation as if it had issued on a levari
iadas upon such judgment.
Patteson J. The provisions of this act are certainly
contradictory, and when this case was last argued, I
thought that a decision, such as I am now obliged to
come to, would be so much at variance with the whole
olgect of the act, that I wished to see if any clause could
be pointed' out which would enable us to arrive at a
di&rent conclusion. I was much struck with the argu-
ment urged on behalf of the assignees, that by the
twenty-eighth section their hands are tied unlji the
adjudication of the Insolvent Debtors' Court, while other
creditors have notice, and are at liberty, to proceed
against the benefice; and I should have been glad to
find any words in the act shewing this not to be so.
Bat on looking into it, no such words are found. The
elerenth section, to operate favourably to the assignees,
should convey to them either a right to take the income,
or an absolute property in the benefice. The first it
certainly does not, or if it did, the right is cut down by
the twenty-eighth section. If the whole property passed
by the eleventh, the twenty*eighth would be absurd : and
boili must be taken together. Arbuckle v. Cc/wtan (a)
(a) 3B.i P. 321.
is
Hatch*
190 CASES IN EASTER TERM
1834. is an express decision that the profits of an ecclesiastical
^ benefice do not pass by assignment under the Insolfent
fjgfiMst Debtors' Act : the words in the clause of the then exist-
ing statute (87 G.3. c.ll2. s. I2.)» upon which that
case turned, were nearly similar to those of sect* 11. of
the present act I think that case, and the words of the
statute, cannot be got over. I see the inconvenience
which follows, but that is a matter to be provided for
by the legislature.
Rule discharged, with costs. As to Chuter v. HatA^
Cw\adv. vdU
The judgment of the Court, in Chuter v. Haich^ was
now delivered by
Lord Denmak C. J. In this case two points were
made on behalf of the plaintiff. First, that the bishop
ought to have been made a party when the rule was
moved for ; but on this it is unnecessary to give any
opinion, as we think the rule must be discharged upon
the second point, namely, that there is nothing in the
act, 7 G. 4. c. 57., to render the sequestration invalid.
The acts for the relief of insolvent debtors have made
various provisions in favour of the assignees for the pro-
tection of the estate ; in the case of a beneficed dei^-
man, the statute 5S G.S. c. 102. enabled the assignees
to obtain a sequestration of the benefice, upon the order
being made for the insolvent's discharge ; and the same
provision is continued in the present act. But their
power over the benefice is confined to this ; and a credi*
tor who, as in the present case, had sequestered before
the adjudication, is entitled to priority. Then it is con«
tended, that the plaintiff's sequestration in this case was
void by the thirty-fourth section, the judgment being on
a warrant
Hatch.
iH THB Fourth Year of WILLIAM IV, 191
a warrant of attorney, and the sequestration having 1834.
issued after the insolvent was in prison. But on con- - *
Bishop
nderadon we thmk it is not void, for that the language ngamst
of the dause cannot by possibility include the seques-
tntioQ of a benefice. We are of opinion, that the
danse applies only where seizure and sale are a neces-
sarj part of the execution. The rule will therefore be
disch»ged.
Rule discharged, without costs.
Saffert and Others, Assignees of Thomas Tuesday,
Dean Alderson, a Bankrupt, against Elgood ^ ^^
and Another. *
pEPLEVIN. The declaration charged the defend- Arent-charge
ants with taking the goods of the plaintifis, as bj a tenant for
tti^lDees of Thomas Dean Alderson^ in a certain ware- J^'b" "ia
kooae, buildings, &c. The defendants made cog- SatteHnterest.
niance, statiniF that before and at the time of the -And the
° goods of a
demise after mentioned, Lord Rodney and Hugh PaweU, stranger not
. . . . shewn to hold
£sq^ were seised in fee of a certain piece of ground the premises by
, , , title parainouot
sttnate, &c., on part of which ground the places in totherent-
whidi, &C., were built; and that being so seised, they, priofd'cmise!!)*
in 1805, demised the said ground, by indenture, to "^n^foTthe
John Hunter and Joseph Bramah for sixty-six years: •'^***^
that Hunter and Bramah entered, and that HtnUer
afterwards assigned all his interest to Bramah: that
fimia//, in 1809, by indenture, demised the ground,
with the buildings then standing and being thereon, to
Gmrge Alderson for sixty*two years, by virtue of which
demise George Alderson entered, and was possessed:
that
Eloood.
192 CASES IN EASTER TERM
1834. that afterwards, by indenture made on the 6th of Jtme
• ■ in the same year, George Alderson granted, bargained,
agMHtt sold, and confirmed to Josias Hemy Stracey^ for his life
and those of Jokn Stracejfy Henry Fauntleroy^ and James
Wittit Ljfon^ and the lives of the survivors and survivor
of them, an annuity or clear yearly rent-charge or
annual sum of 300/. charged upon and payable out of
the said ground and premises, by equal quarterly pay-
ments on, &c.; with power to Stracey to enter upon
the premises and distrain, if the said annuity or rent-
charge should at any time be in arrear fourteen days:
that J. H. Straceyj John Stracey^ and Lyon were still
living; and that because 75/. of the said annuity or
rent-charge was due and in arrear fourteen days, the
defendants, as bailiffs of the said Jl H* Stracey^ acknow-
ledged the taking, &c. (the places in which, &c. being
on the said ground), as a distress for the said arrears.
General demurrer and joinder. The demurrer was now
argued by
Plait for the plaintiffs. First, the grant of this rent-
charge was void. George Alderson^ who only held for
a term of years, could not charge the premises with a
life annuity, which is a freehold interest Such a charge
might be good by estoppel, as against the grantor or
his privies; but it does not appear that the plaintiffi
claim in privity with George Alderson, [^PatUsonJ.
In Butfs case (a), where such a grant was held to be
good, it was not put upon the ground of estoppel. It
is expressly said there, that the grantee takes a chattel
interest] Then, secondly, as it does not appear that
Thomas Alderson claimed under George, his goods were
(a) 7 Rep. 23 a.
those
k
Eloood.
IN THE Fourth Year op WILLIAM IV. 19S
those of a stranger, and the goods of a stranger are 1834.
not distrainable for a rent-charge: Com. Dig. Dis-^ -—
/rrss, B. 2. Thus, as it is there laid down, if one joint against
tenant grant a rent-charge, the cattle of his companion
cannot be distrained: if a man lease, and afterwards
grant a rent-charge out of the land, the lessee's cattle
are not distrainable : nor are the cattle of copyholders,
if a rent-charge be granted out of a manor. [Patteson J.
X>o you go so far as to say that the goods of a stranger
can in no case be distrained for a rent-charge ? The
authorities cited in Com. Dig. do not bear out that
proposition; and the contrary is laid down in Kimp
▼. Cnmes{a\ and stated to be the law in 2 Wms. Sound.
^^ note 7. As to the case of a copyholder, he is
in by an independent right, and therefore his cattle
cannot be distrained for a rent-charge granted by the
lord Where the grantor has leased previously, the
gmotee of the rent-charge cannot distrain for such rent-
charge at all on the demised premises, for the grantor
bad no right so to charge them during the term.] It
is not shewn by the cognizance that Thomas Alderson
came in subsequently to the grant of this rent-charge,
and we are entitled to assume the contrary. [Patteson J.
There is nothing to shew that when George Alderson
granted the rent-charge, any other person had a su-
perior interest If you had pleaded that, before the
grant, 6. A. had demised to you, it would have been
different Littledale J. The whole history of the pre-
niies is given in the cognizance, and nothing of that
land appears.]
Joseph Addison^ Oontra, was stopped by the Court.
(a) 2Lutw. 1573.
Vol, I. O Lord
194 CASES IN EASTER TERM
1834. Lord Denman C. J. On the first question raised
" by the demurrer, there is no doubt, and it is unneces*
agomu saary to say any thing. On the second point, no
authority is cited but those in Com. Dfg. Distress^ B. 2.
Nothing can be less satisfactory than the references
there given for the general proposition, that a stranger^s
goods cannot be distrained for a rent-charge. It would
be very difficult to determine, among those authorities,
how the law really stood. As to the particular instances
which are given, the cattle of a joint-tenant cannot be
distrained, because they are lawfully on the land by an
independent right, nor those of a lessee under a demise
antecedent to the grant of the rent-charge, because he
has an interest paramount to the charge. A copy-
holder, also, from the nature of his interest, cannot be
distrained upon for a rent-charge imposed by the lord.
The next instance, where a rent-charge is claimed out
of a manor by prescription, is given as doubtful. Then
it is laid down, that ** where a stranger claims under
the grantor after the grant of a rent-charge, his cattle
are liable to distress : as, the cattle of a lessee, where the
demise was after the grant." The plaintifis argue from
this, that, where a stranger does not daim under the
grantor, his cattle or goods are not liable. But it does
not follow from the proposition cited, that, if a stranger
has rashly put his goods into a place where the grantee
of a rent-charge is entitled to distrain, those goods are
exempt from distress because the owner does not claim
the place under the grantor. I am of opinion that they
were liable in this case, and that the cognizance is suf-
ficient.
LiTTLEDALE J. I am of the same opinion. It would
require very strong authority to support the general
pro-
Elopod.
IN THE Fourth Year of WILLIAM IV. 195
proposition that a stranger's goods are not distrainable 1834.
for a rent-charge. The remedy given by law for the
recovery of these rents (and extended by 4 G. 2. c. 28. ^gimut
CO rents-seek), namely, by distress, would be of little use
if the power of distraining ceased as soon as the pre-
inises got into other hands than those of the grantor.
A stranger, to exempt himself, ought to shew that he
liolds by some paramount title ; but there is no reason
for intending that in the present case. Some autho-
rities referred to in Com. Dig.y Distress^ have been relied
iipon,but they cannot be said to support the proposition
advanced by the plaintiffs. In Viner^s Abridgment^
IXstresSj (I.) pi. 27., it is stated that the grantee of a
Teot-charge may distrain the cattle of a stranger that
come upon the land ; and the Year Book II H. 6. (a),
ud Bro. Abr, Distress^ pi. 69. (68.) are cited ; but a
qoasre is added. In the margin, however, it is ob-
served that Brooke, in citing the case from the Year
Book, says, ** it seems they may be distrained." At
all events, therefore, the opinion of Brooke is in favour
of that doctrine ; and Kimp v. Cruwes (i), cited in
2 Wms. Saund, 290. note 7*9 is to the same effect. I
think the authority of that case must be considered as
having settled the law upon the subject
Patteson J. (c) Btitfs case {d) disposes of the first
pomt, and the second is decided by Kimp v. Cnraoes^b).
Judgment for the defendants.
(«) 9.0. S8.a. SS,tu S» C. (Perot t. Haifward) cited Bro. Ahr*
Ckav^r, pL 39., with *' Tidetur quod potest."
(0 SIulw. 1575.
(0 Porfte J. did not sit in this Court afVer AprU 28th. ffiUiamt J.
^ not taken hit seat when this case was decided.
(^j 7 &p. 23. a.
O 2
196 CASES IN EASTER TERM
MaJm!* ^^^ ^"^ Baggallay, ExecutoFs of James
Newton, against Pettet, Wanger, and
Freeman.
a
retolTed
TJS*^^^ A SSUMPSIT on three promissory notes made by
borrow money the Defendants jointly, dated 4th of May 18IS,
from H. N»9 i i 4-
who advanced payable to Henry Newton or order, two, three, and
promissory four years, respectively, from the dates, to which Henry
amount'^ miule Newton the testator James Newion was executor. The
f^^'L'^J^^ declaration averred that the sums mentioned in the
J'»t wno were
churchwardens notes Were advanced by Henry Newton for the use of
and OTerseer, •' •^
and who added the parish of Chingfordf and that the notes were siven
to their signa- * «3^ o
tares the tides to him by the defendants for securing the repayment
of their respect-
ive offices. In. thereof. Pleas, the general issue and statute of limit-
on Uie notes, ations. On the trial before Denrnan C. J., at the
mhial funds, London sittings after Trinity term, 183S, it appeared
accomus con- ^^^^ ^^ * vestry meeting of the parish of Chingford^ in
tainingUie 1813, it was resolved that the churchwardens and over-
item were
allowed by the seers should borrow 200/. of Hcniy Newton^ and should
▼estry; and '^•i . .
with other pa- pay him legal interest thereon, and 50/. a year of the
rishioners,
signed the principal, until the whole should be paid off. Henry
one instance. Newton advanced the money, and received the three
T> jir and
j'i'resided con. P^omissory notes mentioned in the declaration, together
^^ '"l^^an ^'^^^ another, which had been paid before the action
action brought commenced, the four making up the 200/. The notes
on the notes, o tr
against P., fT., were siizned by the defendants in the followinir form : —
and /•., within b / ©
six years from « Joseph Pettet j George Wanger^ churchwardens for the
W» 's signature
of the allow- parish of Chingford ; James Freeman j overseer." Several
from Uie °^ payments of interest on them had been made within
making of the
note,) the statute of limitf tions was pleaded ; the jury having found for the plaintiff) the
Court sustained the rerdict.
less
198 CASES IN EASTER TERM
1834. notes and signatures: the lender of the money clearly
required the responsibility, not of the parish, which
agairui could not be made available, but of the individual
makers. But even admitting that the defendants signed
the notes only as sureties for the parish, and that the
parish are the principal contractors for the debt, there
has been payment of interest within the statutable time
on that debt, by the parish, and that must keep the
notes alive as against sureties. If a banker were to
advance money to a customer, and take, as security, a
note by a third person for payment of that money with
interest, the payment of the interest by the banker's
customer would be considered to have the same effect,
against the surety, as payment by the surety himself;
on the other hand, it would clearly have been an answer
to any claim for interest on the note, made upon the
surety. Such a case would be still further strength-
ened, if, as here, the surety had been present at the
payment of interest by the principal contractor.
Z). Pollock in support of the rule. The notes are not
given by the defendants in their individual capacity.
But if they were personally responsible upon them, they
are not bound by the payment made by the parish ;
and, if they were sureties, they were entitled to notice
of non-payment, which notice has not been proved. No
recognition of the payment can be inferred from fVanger
having signed the allowance of the accounts ; he mig^t
have supposed the interest to be due upon some other
account. At any rate, it is no more than an acknow-
ledgment of the overseer having accounted for the
money received by him to the satisfaction of the vestry.
With respect to the case suggested on the other side,
of
^
PXTTIT.
200 CASES IN EASTER TERM
1834. there is any bar to the l^al rigfit of the plaintifiTs. I
~ have no doubt whatever upon the evidence. The parish
S?!^ wanted to borrow money from Henry NeoUon : he
would not trust the parish, because they could not bind
themselves in that character: and accordingly he takes
from the churchwardens and an overseer some promissory
notes. If thtt^ notes were merely memorandums, whj
should they have had the stamps and other requisites ol
promissory notes ? Now the makers of the notes could
not bind themselves as parish officers ; they contract
therefore, as individuals. Hence the addition of theu
tides to their signatures cannot destroy their individua
liability. But that addition does shew that they wen
entering into the transaction for the "parish, and that the]
therefore intended the parish to manage it. The in
terest is paid all along by the parish; the defendant
are resident all along, and might have known of the pay
ments. One of the defendants actually signs the parisi
accounts. Now this, though not a recognition, for all
of the joint liability, may be coupled with other facts, a
an admission of the right of the parish to pay for him
and if it be a payment for him^ it is a payment for all.
Williams J. It is not denied by Mr. D. PoUock
that the payment of interest, if it be treated as a paymen
by one of the defendants, is enough to bar the statute c
limitations. Then the only question is, whether ther
be proof that the payment has been made by the authc
rity of any of the defendants. I think there is proc
enough, and that the case is taken out of the statute*
Lord Den MAN C. J. I always thought this a ver
clear case. The defendants must have known that thes
payment
N
202 CASES IN EASTER TERM
18S4. a ]arge sum became due for the rent: breach, that
Nixon did not, nor did either of the defendants, pay the
agamu same. Count for use and occupation of toll gates, &c.
by the defendants, and hire of tolls. Money counts.
Nixon suffered judgment by default; Davison pleaded
the general issue. At the trial before Denman C. J.,
at the Northumberland Summer assizes, 1833, a verdict
was found for the plaintiff, subject to the opinion of tbb
Court on a special case.
The case stated that, at a meeting of the trustees,
duly convened, the tolls were let to Nixon^ as above
stated, and thereupon, by direction of the chairman,
Charles Head^ as clerk to the trustees, filled up and
signed a memorandum of agreement, which was after-
wards signed by Nixon and Davison. To shew that
Head was clerk, the following minute of an order made
by the trustees was read : — ^^ John BeUy of, &c., gentle-
man, and Charles Head^ of, &c., gentleman, having
undertaken the office of clerks of the trustees of the
said road and branches; ordered, that they be ap-
pointed to such office accordingly, at the yearly salary
of 50^" Bell and Head were attornies, and partners.
The agreement of the 30th of April 1830, stated that
Nixon having been the highest bidder for the tolls and
gates, and having become the farmer of them at the
sum of 692/. for one year from, && ; and having pro-
duced Robert Davison^ of, &c., and J. M., of, &c (who
did not execute), as sureties for the purpose above-
mentioned, the trustees, in pursuance of the authority
vested in them, &c., had contracted and agreed, and
did thereby, by Charles Headj gent., their clerk, contract
and agree with the said John Nixon to let, and J. N.
did thereby agree to take, the said tolls and gates for
one year from, &c., at the rent of, &c., subject to the
con-
206 CASES IN £AST£R TERM
1834. the plaindffi are enabled to sue both principal ai
surety together, whereas, if this were otherwise, ll
ofiokut surety might have given the principal a release, ai
made him a witness. If the surety had a set-off agah
the trustees, he could not avail himself of it in a joi
action. Again, if the contract were originally sevor
a payment by the principal within six years would i
take the case out of the statute of limitations as agaii
the surety: this may be collected from the judgmei
of the Court in Burleigh v. Siott {a). On the oti
band, a release or discharge of one several contracUM
not a discharge of the rest, MathemsorCs case (6)9 a
this is beneficial to the covenantees. The trustees
the present case may have wished to have that sectiri
It is said that covenants are to be treated as joint
several according to the interest of the parties ; but tl
rule relates to the interest of the parties suing, not oft
defendants : 1 Wms. Satmd. 154. note 1. (c). Where t
question is of the joint or several liability of the part
sued, the Court must look to the precise words of 1
contract ; it cannot make a contract for the parties.
Hall V. Smith {d\ and Clark v. Blackstock {e\ the no
might be joint or several, and so might the obligati
in Sayer v. Chcytor {g\ because words were used whi
might admit of each construction; but here there
no ambiguity. It is asked as the test of this bd
a joint or several undertaking of the defendants, whetl
a release to one would have discharged the otb
Mathewson's case (&) shews that it would not
(a) SB.j^C. 56. (b) 5 Rep. 22. b.
(c) Citing Enj^t ▼. DonnUhome, SBurr. 119a, and LiUey ▼. Bed
} Sir. 553. B Mod. 166.
(d) 1^. $0,407. (tf) IHoU'sN. P. C.47i
ig) 1 Lutw. 695.
Cresm
208 CASES IN EASTER TERM
1834. plaintiff is entitled to sue upon the agreement, he
only sue in the manner in which the parties
affomst made themselves liable. There are, indeed, ree
for viewing the case in the way suggested by the p
tiff, but they are not strong enough to counterbal
those on the other side. The defendants have cfa
to protect themselves in a particular way in making
agreement, and must have the benefit of it.
LiTTLEDALE J. The words used in this case t
that the parties meant to render thehiselves liable f
rately and not jointly. There have been cases wl
from something in the context, words which would ap
to have that e£fect have been held to constitute a
contract, and in others, though words were used w
seemed to indicate a joint liability, the opposite const
tion has prevailed, as in Collins v. Prosser {a). Bu
sufficient reason is given here for any such mode of u
pretation. It was more natural that the parties sb
wish to contract severally than otherwise; and if
second surety had executed the agreement, it was
bable that he would have chosen to bind himself jo;
with Davison and separately from the principal. \
respect to the point decided in the Court of Com
Pleas, it is unnecessary to say anytliing. The deC
ants are entitled to judgment
Patteson J. I am of the same opinion. If it a
be shewn that the sense we ascribe to the word *' s
rally" did any violence to the actual meaning of
parties, there might be ground for construing the ;
(a) IB.^a 689,
u
210
CASES IN EASTER TERM
1834.
Friday^
Ifay Sd.
To ft declar-
ation by in-
doniee agsintt
ftcoeptor, tbo
defendant
pleaded, that
he, to ae-
commodate the
drawer, and
without oon-
iideration,
wrote a qua-
lified acceptance
on blank
paper, and de-
livered the
paper to the
Heydon against Thompson, Gent., One, &c.
0
A SSUMPSIT. The first count of the declaratioi
stated that J. W. Eldred, on the 1st of June 1831
at London^ made his bill of exchange, requiring the de
fendant to pay the said J. W. £., or his order, 50/., si
months after date; that the defendant accepted the hi!
and J. W. E. indorsed it to Samuel Silver^ who indo
the same to the plaintiff.
Plea, that on the said 1st of June 1831, the defendai
Jbr the accommodatiany and at the request of J. Jfl £., t
drawerTfor the supposed drawer of the said bill, and without any g(P€^
and valuable consideration^ wrote his, defendant's nairiQ
and a qualified acceptance, according to the statute, icc^
upon a piece of blank paper having a three and sixpenny
stamp, in which acceptance he made the same payable
at BarcUn/s and Co., Lombard Sireety only, and not
otherwise or elsewhere : that the defendant immediately
afterwards delivered the said piece of paper, so written
upon and stamped as aforesaid, to J. W. JS., for the
purpose of hit
drawing
thereon a bill
at nine
months; that
he drew a bill
at six, which
was the bill de-
clared upon,
and indorsed it
without con«
sideratioo to
iSi, who in-
dorsed it with-
out coniider-
ation to the
plaintiff, both indorsees knowing all tlic facts. The plaintiff new-assigncd, that the bill
pleaded was noi the same bill or thai declared vpotit but another, for that the former was ac-
cepted generally, and the defendant never accepted the same in any qualified manner. Plea,
setting out as before a qualified acceptance on blsnk paper, for the same purpose as above
mentioned, and alleging tlie same facts as to the drawing and indorsing of a bill, which the
plea stated to be the bill above newly assigned, omitting, howeTer, to charge that the bill
was given without consideration, but stating that the indorsements were made *' without
any sufficient consideration, and tiiat the indorsees knevr that the paper was delivered for
the purpose of a bill at nine months being drawn, after tlic acceptance.'* Replication, that
the bill of exchange mentioned in the last plea was not the bill above newly assigned, but
another and different, with conclusion to the country : On denmrrer, i
Held, that this replication admitted the exiKtenco of the bill mentioned in the preceding
plea, and therefore ought to have concluded with a verification.
The plaintifT having obtained leave to amend, replied, ** that the defendant did not write
his qualified acceptance on the said blank paper, as in the last plea mentioned, in manner
and form," ftc. ; and concluded to the country : On demurrer.
Held, that tUs was in substance an allegaUon tluit no qualified acceptance was written
on the bill declared upon by the plaintiff; that it was, in effect, an answer to the wliole
plea, and that issue might properly l>e tendered upon it.
purpose
s
212 CASES IN EASTER TERM
18S4* specially, and upon argument before Patteson J. in the
^ bail court (by consent) in Trinity term 1833, the de-
ogflbut fendant had judgment, but leave was given to amend,
without payment of costs. And now the replication,
(after protesting that the defendant did not, for the
accommodation, &c., write his name and a qualified ac-
ceptance as above stated, or deliver the same to J. TV. E,
for the purpose of his drawing thereon a bill at nine
months, &c.) stated, that the bill of exchange in the
said plea mentioned, and alleged to have been drawn by
J. W. E. upon the said piece of paper therein mentioned,
^* was not, nor is, the same identical bill of exchange in
the said first count mentioned, but was and is anothei
and di£ferent bill of exchange ; for that the said bill ol
exchange, in the said first count mentioned, was and
is a bill of exchange drawn on the 1st day of June^
A.D. 18S1, by the said J. W. £., and directed to the
defendant, and whereby the said J* W* E. required the
defendant to pay the said J. }V. E. or his order 50/., six
months after date thereof, and which said bill of exchange
was and is accepted by the defendant generally, and the
defendant never did accept the same in any qualified
manner, expressing that he made the same payable at a
banker's house, or any other place, only, and not other-
wise, or elsewhere ; and which said last mentioned bill
of exchange was and is another and different bill of
exchange than the said bill of exchange in the said
first plea in that behalf mentioned as aforesaid." Veri-
fication.
Plea to the new assignment: — That on the said 1st
of June 1831, at, &c., ^^ the said defendant, at the re-
quest of the said J. W. £., the said supposed drawer ol
the said supposed bill of exchange above newly assigned,
wrote
THOMPSOlf.
214 CASES IN EASTER TERM
1884. the said bill of exchange mentioned in the plea of the
*^ defendant to the plea of the plaintiff, by him above
affdnst pleaded by way of new assignment and reply as afore-
said, and in that plea of the defendant allied to have
been made and drawn upon the said piece of paper
therein mentioned, was not nor is the said bill of ex-
change above newly assigned as aforesaid, in manner
and form as the defendant hath above alleged, but was
and is another and different bill of exchange. And
this the plaintiff prays may be enquired of by the
country," &c.
Demurrer, stating the following grounds: — That the
second new assignment does not state how or in what
manner the bill therein mentioned is a different bill of
exchange from that mentioned in the preceding plea:
that it attempts to confess and avoid that plea, and yet
does not allege and shew some other bill as being the
identical bill of exchange declared upon in the first new
assignment: " That the second new ^signment attempts
to traverse and put in issue the identical mode in which
the bill of exchange set forth in the plea to the first new
assignment was accepted, made, and indorsed with
notice thereof as therein mentioned, whereas the plain-
tiff ought to have traversed and put in issue the ex-
istence and substance thereof^ or to have newly assigned
and sufficiently set forth some other bill of exchange as
that upon which the plaintiff hath declared in the second
new. assignment." That although the second new as-
signment alleges, that the bill mentioned in the plea tn
the first new assignment is not the same as the bill
mentioned in that new assignment, and although it
attempts by inference to set forth another and a dif
ferent bill, it does not, as it ought to do, conclude witt
a veri-
«»6 CASES IN EASTER tERM
1884. defendant to plead a defence, the plaintiff then to reply,
^^^^ ** I did not mean to declare upon that but on a second,**
,^Jf"*^ which he points out. Surely the defendant ought tc
have an opportunity of answering as to that bill.
Erie contrsL According to the argument last used,
pleadings might be continued ad infinitum. The plain-
tiff, in his replication to the former plea, new assigned,
according to the suggestion of Patteson J., pointing oai
the distinction between the bill mentioned in the plea
and that declared upon ; and the defendant haTing
pleaded a further plea in answer to the new assign-
ment, the plaintiff now traverses a material fact in that
f further plea, namely, that the bill of exchange therein
mentioned is the supposed bill of exchange above newly
assigned. It has indeed been held, that wherever a
particular fitct in the opposite party's plea is selected
and denied, the replication in which such traverse is
taken must conclude with an averment : Baynham v.
Matthews (a). Smith v. Daoers (&). But it is laid down
in Hedges v. Sandon (c), and is now clearly established,
that where the replication is in effect a denial of the
whole substance of the plea, it may conclude to the
country. In Calvert v. Gordon {d)y the declaration was
in debt on a bond, conditioned that a clerk (for whom
the defendant was surety) should faithfully account:
plea, that, until the giving of a certain notice, he did so
account : replication, that before the notice, he collected
sums amounting to 2000/., for which he did not ac-
count, and the like as to divers sums collected after the
notice : rejoinder, that the sums first mentioned in the
(a) S Stra. 871. (6) Doug. 428.
(c) 9 7. R, 439. See 1 Wms, Sound. 103 a. note (3).
(d) 7A 4-C.809.
leplicatioi
218 CASES IN EASTER TERM
1834. to have denied it. The defendant's first plea was bad,
^ for it amounted to the general issue ; but the plaintiff
og^nM waived that by pleading over. Then, upon his new
assigning, the parties were in the same condition as if
the pleadings had begun de novo.
Taunton J. I have had some doubts, but I am
now fully satisfied that the plaintiff must amend.
Patteson J. The ground on which I decided
against the plaintiff's original replication was, that by
stating that the bill of exchange mentioned in the de-
fendant's plea was not the same as that first described in
the declaration, he acknowledged the existence of the
second bill, and therefore his replication should have
concluded with an averment, so as to give the defendant
an opportunity of answering what was said of the bill so
admitted to be in existence. The state of things was
the same upon the replication to the plea to the new
assignment; and it would have been so if the same
pleadings had recurred fifty times.
The Court gave the plaintiff leave to amend without
imposing any terms.
The amended replication was as follows : — ^' That
the defendant did not write his the defendant's name
and a qualified acceptance, according to the form of
the statute in such case, &c. upon the said piece of
blank paper having a three shilling and sixpenny stamp
thereon, as in the said plea of the defendant by him
above pleaded to the plea of the plaintiff by him above
pleaded by way of new assignment, &c. is mentioned, in
manner
MO CASES IN EASTER TERM
1834. argument To have pleaded any plea amounting to
jj ^ new assignment, which must have concluded with m
<^gamji verification, would have led to infinity of pleading ; the
plaintiff^ could not, in assumpsit, put the whole of the
facts in issue by a general plea, like de injuria : allp
therefore, that he could do was, to tender issue on some
material fact, which, if contradicted, left the defendant
no case. Here the defendant puts forward a bill whicb
he afiects to mistake for that declared upon by the
plaintifi; To bear out the plea, he must shew that he
was the acceptor of that supposed bill. We deny bis
acceptance of the bill in that plea mentioned ; and if he
was not the maker of such acceptance, he has failed to
shew his connection with any such bill : the whole ap-
plication of the plea to the present cause is gone, the
drawing and indorsing are not the drawing and in-
dorsing which the defendant has alleged. The issue
tendered does, in fact, question all the facts pleaded, for
the plea is a connected series of propositions, the found-
ation of which is, the writing of an acceptance by the
defendant on a piece of blank paper. All depends on
this writing being the same as he represents it to be.
He now contends that we should have denied the
delivery ef the bill to Eldred for the purpose alleged ;
but if the defendant did not write the acceptance de-
scribed in the plea, he could not deliver it for the
purpose of a bill being drawn upon it. [^Littledale J.
Does the replication, as it stands, put in issue his having
accepted?] It denies that he wrote his name and a
qualified acceptance on the said paper in manner and
form as the defendant has in his plea in that behalf
alleged ; and no other acceptance is pleaded. It is
unnecessary now to discuss the doctrine that, where a
defendant
Taoiinoir*
SS9 CASES IN EASTER TERM
18di. blank paper, as in the defendant's plea is above pleaded]
'l in manner and form as the defendant has in that pka
ogamit^ all^ped. The defendant alleges that the bill new as-
signed is a paper in respect of which the several things
have been done which were stated in his plea : the re
plication is, that it is not a paper to which the facts u
that statement will apply : it puts in issue this being i
paper concerning which any of those facts can h
asserted. It would be a sufficient issue for the deter
mination of the cause by a jury, whether or not IIk
paper newly assigned was the paper of which those
facts were stated. The case from Ventris answers an;
argument as to duplicity in the plea; but the facts here
are brought* to such an issue as would give the plaintil
the advantage of meeting by his proof the whole of th
defendant's case. *
LiTTLEDALE J. The effect of the first new assign-
ment was this : all that is stated in the plea, as to tbi
makmg and delivery of the acceptance, and the drawing
and indorsing of the bill, therein described, may bi
tnie ; but the plaintiff alleges that the bill on which b<
declares is another and a different bill, for that it wu
and is a bill accepted by the defendant generally. Th<
defendant might then have traversed the fact that tha
trill was so accepted, or might have said that it wa:
accepted specially, and concluded to the country. Bu
instead of that, he answers that the plaintiff wrote hi
name and a qualified acceptance on a blank paper, anc
delivered the paper to Eldred for the purpose of his draw
ing upon it a bill at nine months, and goes on to stat^
the drawing and indorsing of a bill on that paper, anc
the other iacts connected with it, and that it was the bil
newh
TBOMnoy.
IN THE Fourth Year of WILLIAM IV. 223
jsewljr assigned. The plaintiff now replies that he did 1834.
3iot write his name and a qualified acceptance on the said ""
Uank paper in manner and form, &c, and concludes to J"^**
the country. This is the state of the pleadings. The
phuntiff alleges that the bill declared upon was accepted
generally ; the defendant says that a qualified acceptance
was written on blank paper, and that the bill drawn on
that paper is the one referred to by the plaintiff: he
agun replies, ** the paper on which the bill I speak of
was drawn, had not the qualified acceptance described
by yon.^ The defendant, instead of at once going to
the eoontry on the plaintiff's new assignment, has en-
tered into a particular statement of fects ; the plaintiff
sdccts one of the most material of those facts, and
tenders issue upon it ; and I do not well see how any
other issue could have been taken.
Patteson J. I am inclined to think that the present
nptication would have been a good answer to the
original plea ; but it is unnecessary to decide that. Upon
then pleadings, the plaintiff is clearly entitled to judg-
incBt. The first plea states a case of fraud; that an
acceptance was given for accommodation, with an un-
<letstaDding that a bill at nine months should be written
over it, but the drawer fraudulently made the bill
peyoUe at six ; and then, to obviate any answer as to
^ plaintiff being a bona fide holder, it is added that
^ bill was passed to Silver j and from him to' the
plaintiff, without value : and the plea goes even further,
^ it states that both indorsees knew the original cir-
cumstances of the drawing. To this plea the plaintiff
^ first replied, not denying the existence of such a
bUl
TboMvioy.
QM CASES IN EASTER TERM
1834. bill as was set up by the defendant, but alleging that
" the bill declared upon by him was a different one, and
agatna Concluding to the country. This was demurred to. It
appeared to me, at first, that there was nothing in the
objection; but afterwards I thought myself bound by
the decisions, and by good sense, to hold that the
plaintiff, by saying ^^ the bill I declare upon is a dif-
ferent bill," admitted the existence of the bill pleaded,
and therefore ought to have given the defendant an
opportunity to answer what he had said of that bill, by
concluding with a verification. The plaintiff amended,
and concluded his new assignment with a verification.
The defendant, in his plea to the new assignment, again
stated the case of fraud, omitting the want of consider-
ation as between the defendant and Eldred^ but, m
other respects, as before. The plaintiff again replied
that the two bills were not the same, and concluded to
the country ; and it was contended that the replication
was, in effect, a second new assignment, and admitted
the existence of the bill previously pleaded by the de-
fendant; that the replication, therefore, should have
concluded with a verification, and that the same most
be done, toties quoties, so long as the same course of
pleading continued. Leave was given to amend again,
and the plaintiff now tenders issue upon this fact; that
the defendant did not write his name and a qualified ac-
ceptance on the piece of blank paper mentioned in the
plea to the last new assignment, in manner and form,
&C. He thus puts in issue the very b^inning of the
alleged fi*aud. Then it is argued that, striking out of
the plea all the matter upon which an issue is taken,
enough remains to support the action, and Bolton v.
annon
TTiioicnov.
IN THE Fourth Yejlb, of WILLIAM IV. 225
Qmnm{d) is cited. But what is, in fact, left? All 1884.
that relates to the writing of the acceptance is gone; it
Hktdok
only appears that Eldred drew on the said piece of _^ogairut
piper a bill of exchange^ which is the bill newly as-
signed, and indorsed it without any suflBcient consider-
ation to Silver^ who indorsed without any suflBcient
consideration to the plaintiflT. But this is not enough ;
ht if the drawer of a bill draws it for a good consider-
ition, he may indorse it over as a present ; and it has
often been held, that if an indorsee has given any
coonderation for a bill, he may recover the whole
amonnt, and hold the surplus above what is due to him,
as trustee for the next party entitled. The plea, indeed,
goes on to say that Silver and the plaintiflP, at the time
of the indorsements, <<knew that the said piece of paper
«» written upon and stamped as aforesaid was so de-
liTered by the defendant to the said Joseph Wright
BiM for the purpose aforesaid;" but, by the present
Ijpothesis, all that related to that purpose in the
(vmer part of the plea is struck out, consequently the
tverment means nothing. This is an answer to the
case dted from Ventris. The result of the whole is,
tbt the defendant in this plea alleges a case of fraud,
and the very inception of that fraud is denied by the
plaintiff's replication. The judgment, therefore, must be
fcr the plaintiflT.
Williams J. I am of the same opinion. The repli-
cation puts in issue the real subject of dispute between
^1^ parties, namely, whether there ever was such a
^paKfied acceptance as the defendant allies. It answers
(a) 1 r«Ur. 272.
Vol. L Q the
226
CASES IN EASTER TERM
1834. the whole plea, and tenders issue on a fact by which
„ the cause may be decided.
agamsi
Tuoiinoir*
Judgment for the plaintiff.
The King against The Inhabitants of
GOSFORTH.
Apcnonhir-
log A home
and stable for
a jeerina
parish under
diftrent Und-
lotds* at renta
amounting
together to
lOf., holding
■uch house
and stable, and
residing in the
hoose, for the
year, and pay-
ing the whole
rent, acquired
a settlement in
such parish,
under the act
59 6. 3. c. 5a,
though the
house and sta-
ble were en-
tirely separate
from cadi
other.
/^N appeal against an order removing Ann BirkeU
from the township of Whitehaven to the parish of
Gosfbrihy both in Cumberland^ the sessions confirmed
the order, subject to the opinion of this Court upon a
case, by which it appeared that the pauper's alleged settle-
ment in Whitehaven was derived from her father. The
father, while the act 59 G. 3. c, 50. was in force, namely,
in 1823, hired for a year, of a Mr. Falcon^ a dwelling-
house in the township of Whitehaven^ at the yearly rent
and of the yearly value of 8/. He also hired for the
same year a stable in the same township of a Mr. Gmy-
soft, at the yearly rent and of the yearly value of 6L 6s.
The stable was not under the same roof with the
dwelling-house, nor immediately contiguous or appur-
tenant thereto, but stood in a different street, upwards
of 200 yards off. He held and occupied both the
dwelling-house and stable, and dwelt in the dwelling-
house, for the whole year, and paid the whole year's
rent for them. The question was, whether, by the
occupation of a dwelling-house and stable under these
circumstances, the fiither acquired a settlement in White*
haven*
CoUman
IM TAB FouBTH Yeae OF WILLIAM IV. 227
Cdtman and Jrmstrong, who were to have supported 1884.
tbe order of sessions, admitted that they could not ^ „
... . TheKixa
effiBCtually distinguish the case from Rex v. Tadcaster (a), agquiu ^
The Jnhabiu
Whidi was decided after this case was granted. That, anti of
indeed, was under a different statute; but the act
59 6. d. c. 50., which applies to the present case, is,
perhaps, less favourable than 6 G. 4. c. 57* {Patteson J.
We recognised the authority of Bex v. Tadcaster^ the
other day, in Rex v. Banbury (b) ]• The Court there
•id that Rex v. Tadcaster had gone to the extreme
verge of the law.
Lord Denman C. J. That observation strengthens
the tathority; since the Court, notwithstanding the
opioioQ so expressed, felt themselves bound by the
dedsioD. The order must be quashed.
Patteson and Williams Js. concurred (c).
Order of sessions quashed.
W^htman was to have argued against the order of
sesiioQs.
(i) 4 Jl. {• Ad. 703. (b) Ant^ p. 136.
(c) LUUedale J. was absent.
Q 2
228 CASES IN EASTER TERM
1884*.
^^ The King against The Inhabitants of IvER(a).
A penon O^ appeal against an order of justices, removing^
bouses under Edward Ewer from the parish of Iver^ in the coun^^
«S;^Ting"" ®f Bucksj to the parish of Rickmansworth^ in the countjr
SSTtS^ ^^ ^^^> *® sessions quashed the order, subject to the
internAl com- opinion of this Court on the foUowinfi: case: —
munication; he '^ °
took the whole The pauper never gained a settlement in his own
at one hiring, ^
but peid distinct right His father, Henty Eisoer^ in 182S, took a boose
tents for them
of 62. cM^ per in Iver of Mr. Franklin^ for which he paid 6/. per
cupied one annum, and also 1/. per annum for a piece of land. In
and alloii^dhis ^^^ adjoining house, also belonging to Mr. jFVoffiUm,
?^"i""5 lived another tenant of the name of Dean. No other
****^f'' building adjoined either of the two houses. There was
by such renting no internal communication between them, and there
and occupation
forayearyhe was a Separate outer door to each. Each house had a
acquired a set-
tlement under chimney running up back to back in the partition wall
f. 2.' ' * between the houses, and there was one continuous roof
over the two bouses. A few days previous to January
1830 Dean quitted, and Henry Ewer proposed to Mr.
Franklin to take Dean*s house instead of his own. Mr.
Franklin agreed, if Henry Ewer could find a tenant for
the other. Henry F^r brought his son William Ewer
to Franklin^ who refused to take him as tenant Hemy
Fiwer then agreed with Franklin to become tenant for the
whole, and to pay 6^ for each house, and 1/. for the land,
that is, 13/. a year; and thereupon Henry Ewer went
(a) Rat ▼. Iver was decided, January 32d, 1854; but it having been
thought oonTenient that this case and Rex ▼. Wooiton should appear
together, the former is inserted here, and is omitted in the Reporta of
BUary term, 1834, SB,^ Ad.
into
IVXE.
IK THE Fourth Year of WILLIAM IV. 229
into the occupation of DearCs bouse, and let his son 1834.
into the possession of the other ; and the son with his """"
fiuniiy continued in the occupation thereof till Michael" ofomse
The Inhabit-
nas 1831, when he quitted, and Henry Ewer thereupon ants of
gafe np that house to Mr. Franklin^ who put in another
tenant Henry Ewer paid the 13/. rent to Michaelmas
1831, and Mr. Franklin gave him at each Michaelmas
I separate receipt for the rent of each house. From
1823 to Michaelmas 1831, no alteration was made in
the two houses. While the two houses were occupied
\ilDean and Henry Ewer^ and subsequently, while they
were occupied by Henry Ewer and his son, the occupier
of etch house was separately assessed to the poor-rate.
Heay Ewer did not pay his son's poor-rate, nor did he
OK any part of his son's house. The question for the
cpnion of the Court was, whether Heftry Ewer gained
taettlement in Iver by renting a separate and distinct
dweUmg-hoose or building. ^
Tayimrd Serjt and Monro^ in Michaelmas term 1833,
supported the order of sessions, and cited Rex v. Tad"
coUer{a) as decisive on this case. Parke J* mentioned
Bai, Macclesfield (&). No one being present to oppose
the order, the case stood over till Hilary term 1834, when
ByAndrewsi who then appeared for the appellants,
was called upon by the Court The material words of
66.4. C.57. 5;!., upon which the present question
tarns, are, that no person shall acquire a settlement in
any parish by renting a tenement, ^^ unless such tene-
ment shall consist of a separdie and distinct d'ooelling^
(«) 4 5. J Ad. 705. (*) 2 -». * Ad. 870.
Q 3 house
2S0 CASES IN EASTER TERM
1834. house or buildings or qflandj or ofhoih^ bona fide rented
by such person in such parish for 10/. a year for one
a^ainA ^ whole year, *< nor unless such house or building, or landf
ants of shall be occupied under such yearly hiring," and the
IVBE.
rent for the same, to the amount of 10/., paid for
whole year at least The appellants contend diat a
person renting one dwelling-house which he inhabits^
and one which he allows to be occupied by another
person, the two rents together amounting to KM. a
year, does not acquire a settlement under the statute.
Bex y. Tadcaster (a) established that a settlement might
be gained by renting a dwelling-house and a distinct
building; but no case has yet determined the point
here made by the appellants. In Rex t« Ditdieai (i)^
Bayly J. (who differed from the other two Judges}
thought that, to gain a settlement under the statute, the
party renting must occupy the whole of the rented pre*
mftes, and not underlet any part« Liftledale J^ though
of a contrary opinion, said, ** it might have been other-
wise if he had underlet the whole house, and occupied
no part ;" and Parke J. grounded his judgment on the
express words of the statute. It probably was not the
intention of the legislature in either statute to dispense
with the ^* dwelling" in the tenement, which is men*
tioned in 59 G. 3. c. 50., as one of the conditions o
acquiring a setUement by the renting of a house* Th(
words of 6 G. 4. c. 57. s. 1. are indeed different ii
that respect, but it is clear they do not permit i
setdement to be gained by the renting of a dwelling
house, no part of which is occupied by the persoi
hiring. The party must rent at 102., and occupy, i
(a) 4B, 4: '^<^ 705. And sec Rex v. Go^ortfi, ante, p. 226.
(6) 9j9. 4f C. 176.
" separate
Itib*
iH TttB Fourth Year op WILLIAM IV. 281
<* aepante and distinct dwelling-bouse^'' or a separate 1884.
md distinct building, (which clearly means something "
The Knro
dixEerent from a dwelling-house), or land, or a dwelling* aganut
\iCHise and buildings dwelling'-house and land, or build- ants of
tug and land* It is no where said that he may become
Kttled by occupjring a dwelling-house and holding
iDotbet dwellin^house ; and ^^ a separate and distinct
dwelling-house" cannot be construed to mean two,
Aough under the same roof* This appears to have
been the opinion of Taunton J., in Rex v. Macclesfield (a).
[Lord Denman C. J. You say that if a man held forty
dwelling-houses in the parish, at 9/* a year each, and
odj occupied one, he would not gain a setdement]
Tint b so. IPaHeum J* It would be so under iW.if*
c IS.] The first section of that act declares the law
vpoo the point* {TaiMon J* That section is not de«
dtntoiryi There are no words to give it such an
c&ct(i)* Patieson J. Your argument would go the
length of shewing that, even if the party rented and
occupied two houses, at rents together amounting to
lOL} he would not gain a settlement] He would not^
if be did not dwell in a house of 10/. a year rent* In
Ba f. Maccleffieldf the attention of the Court was
oot sofficiendy called to the effect of the words ** dwelU
ing-house" and ^^ building," as used in contradistinction.
[Lord Denman C* J* That case is very like the present]
there the premises were all held at an entire rent;
one garret extended over the whole upper part, and
the pordon said not to have been occupied by the
(a) 2B.^J(L 875.
(Q The Mcond section is retroftpectiye and decUratorj : Hex t. Durs"
^t^B, ^ AtL 465. : the first b protpectiTe only : Bex t. Ruthmt 5 B*
Q 4 pauper
232
CASES IN EASTER TERM
1884.
TheKiira
The Inbabit-
antoof
Ituu
pauper was not strictly underlet; it only appears that
the pauper put up a bed in it, and the persons who
slept there paid him a certain sum per week.
Lord Denman C. J. It is obvious that in this
the legislature had something in view which it is very
doubtful if they have efibcted. We will take time to
lock into the statutes.
Cur. adv* ncfiL
On a subsequent day in the same term,
Lord Denman C. J. said : In Bex v. Iver^ we are of
opinion, on reference to the statutes, that the renting of
the two houses did confer a settlement under S G*4fm
c. 57. The order of sessions will therefore be confirmed.
Order of sessions confirmedb
Saturday,
May 3d.
The Kino against The Inhabitants of
WOOTTON.
A settlement
was gained
under 6 G. 4.
c. 57* by rent-
ing, under dis-
tinct birings, of
tbe lame owner,
for tbe nme
year, two dwell-
ing-bou8ei,(ooe
of wbicb the
tenant under-
let, and nerer
penonaUjoc-
copied») at tbe
rents of 8£. and
5/. a year, in
different parts
of a parish.
C\^ appeal against an order removing Robert Htdl
and his family from the parish of fVooiton^ in Os^
fordshire^ to the parish of St. Mary in Wallingjbrdf
Berkshire^ the sessions quashed the order, subject to the
opinion of this Court upon the following case:-—
The pauper, Bobert Hallj being legally settled in the
parish of St. Mary^ about the year 1800 became tenant
of a cottage in the parish of Wootton^ at the yearly rent
of 8/., and resided in it, with his wife and family, until
Febniary 1832. In April 1827, a son-in-law of tbe
pauper
WoOffTOib
jji THE Fourth Year of WILLIAM 'IV. 23a
fnper Bobert Hall applied to JFfa/Ts landlord, Mr. 1834.
Vnrrity and wished to become his tenant of another _«_ „
^ The KiM«
of Us cottages in a different part of the parish of Woot* agmnMi
ion: Harris declined taking the son-in-law as his J^^^
ysmntf but agreed to let the cottage to the pauper at
SLajear. The pauper never occupied this last-men-
tkned cottage ; but on the same day he let it at the
nine rent to his son-in-law, who immediately took pos*
luaaa of it, and resided in it for about three years and
ahal^when he quitted it, and the possession thereof
WIS forthwith given to and accepted by Mr. HarriSi
The rent for the cottage occupied by the son-in«law
VIS paid by him to the pauper, who paid the rent for
bodi the cottages to Mr. Harris; and Harris gave a
nce^t for the same, amounting to IS/., stating that
nch sum was paid by the pauper for one year's rent of
tiietvo cottages.
Sir James Scarlett in support of the order of sessions.
Tbe setdement in Wootton was acquired before the
Pttsiogof 1 W. 4. c. 18., which, in s. 1., after reciting
the second section of 6 G. 4. c. 57., enacts, ** that from
^d after the passing of this act, no person shall acquire
> settlement in any parish by or by reason of such
fttrly hiring of a dwelling-house or building, or of
Ittd, or of both, as in the said act expressed, unless
lodi house or building, or land, shall be a&tuaUy
^(xi^d{a) under such yearly hiring in the same
parish, ly the person hiring the same^ for the term of one
vhole year, at the least." Several cases shew that^
hefore the passing of that act, it was not necessary
(fl) See n€X V. St, Nicholas Rochester, SB, i Ad. 219.
that
WoOITOM*
S84 CASES IN EASTER TERM
1834. that the whole of the premises hired should be actnallj
""""' occupied by the person hiring; and the first section
The Ktira • j j
agiwtMi of the act is not retrospective. Rex v. Iver (a), decided
The fnhahil-
aots of in last Hilary term, on the statute 6 G. 4. c. Bl.y is in
point
Cooper contrd. It certainly b established by Bac it
Hiithin {b\ that 1 W. 4. c. 18. 5. 1. is prospective only i
the present case therefore turns on 6 G. 4. c. 57« <• ll*
It may be a question whether the cases have conda-
sirely decided that underletting part of the premises
hired will not prevent the gaining of a settlement, where
the party hiring never personally occupied the premises
underlet, but merely took them and put in another
tenant. But, assuming that to be decided^ the present
case is distinguishable from Rex v. Iver (a) on this
ground, that the two houses> here^ are separate and dis-
tinct {torn each other, and in different parts of the parish,
whereas, in Rex v. /ivr, the two houses were adjoining
each other, had one continuous roof, and stood togetbei
apart from other houses, so as to form one separate and
distinct building. The question therefore arises, whe-
ther the words in the statute, ^^ unless such tenemenl
shall consist of a separate and distinct dwelling^hoosc
or building, or of land, or of both," apply to two dwell*
ing-houses rented in different parts of a parish. N(
case has gone so far. [^Littledale J. Suppose the per
son lived part of the week in one house and part in th<
other.] No settlement would be gained. Two dwell*
ing-houses do not answer to the words of the statute
In Rex V. Macclesfield {c\ the Court relied upon thi
(a) Antd, p. 228. (6) 5 Ji. i Ad. 215.
(c) 2 ^. t Ad. 870.
premise
TTOonoK*
IN THE Fourth Year op WILLIAM IV. 2S5
premises forming one distinct building. In Rea v. 1834.
Taikasier {a)f it was held that a house and building
night be joined to give a settlement ; but the distinction agahut
between that case and the present appears from the antiiof
reason there given by Parke J., namely^ that if these
could not be joined, the renting of a dwelling-house
ihidi had any building, even a pig-stye, connected
vith it, must fail to confer a settlement, if both were
bdd at an entire rent, though of 100/. Idttledale J.
lajs in that case, that a tenement, within the meaning
of the statute, may consist of several parts not contigu-
ous to one another; and this is not disputed; but
'^B dwelling-house" cannot be held to consist of several
dwdliog-houses. In all the judgments delivered in Rex
^* TadoMSter {a)y <' dwelling-house'' and ^building''
mtieated as distinct things.
IiTTTLEDALE J. (&}• I think that in this case a settle-
ment was gained. It is nearly the same in its circum-
stBDoes as Rex v. Iver (c) ; but, independently of that
dedsioD, I think the sense of the words in question is
not confined to a single dwelling-house. The tenement,
i? renting which a settlement may be gained, is de-
scribe in nearly the same words in the three statutes,
59G.d. C.50., 6 G.4.£r.57., and lfF.4. c. 18.; and I take
the meaning to have been, that the tenement should
consist of something in the nature of land ; not, for
instance, tithes; but something capable of a regular
occupation. If such a case as this be not included, the
l^u^age of the act, so &r, fails to operate according to
(a) AB.Jj: Ad. 705.
(6) Lord Denman C. J. was attending the Prifj Council.
(c) Ante, p. 238.
the
2S6 CASES IN EASTER TERM
1834. the intention. Looking at tlie words, ^^ a separate and
distinct dwelling-house or building, or land, or both,"
agaitut I think it makes no difference whether two or more of
TlM Inbaiilt.
anu of these descriptions of tenement be held, or one distinct
Woofioii^
and separate one of either kind. All that is requisite
is, that the tenement in respect of which a settlement is
claimed shall be either one or another of those three^ or
sereral of any. The meaning of the word tenement has
been narrowed by these acts, but not to the extent cash
tended for.
Patteson J. Rex v. Macdesfield {a) does not go so
far as this case; the decision, if it had gone to that
extent, would have been extrajudicial. But I am of
opinion that the renting here also was within the act.
I have always thought that the words ^* a separate and
distinct dwelling-house or building, '' in these statutes,
meant, separate and distinct as to any other person:
that the tenant should not hold part of a house. But
the renting, to give a settlement, may be of more than
*^ a dwelling-house or building, or land, or both,'' in
the limited sense contended for.
Williams J. The act 59 G. S. c. 50. was intro-
duced to avoid those perplexing discussions which had
arisen as to the kinds of tenement which had, before
that time, been held to confer a settlement, and which,
being sometimes made up of small items, as, for in-
stance, a cow-tenement and potato land [b) were very
litigious and vexatious. That statute, therefore, was
introduced, confining the description of the tenement
(a) 2 B, 4* Ad, 870. (6) See Rex t. Benneunrih, i B. f C. 775.
in
IN THE Fourth Yeab of WILLIAM IV,
287
in qaestion to land, and houses and buildings. But
then it became necessary to provide against the joining
tipgether portions of different houses to make up a
tenementf which would still have left great room for
diqmte ; and therefore it was enacted in 59 G. S. c. 50.
(and the enactment was continued in the subsequent
statutes)^ that the dwelling-house or building must be
separate and distinct: and I agree that if they be not
90| a settlement cannot be gained. But the meaning of
the l^islature in using the words ^* a separate and dis*
Una dwelling-house and building/' no doubt was, that
tbere should be entire holdmgs, and that setdements
should not be gained by a split or subdivided tenement.
I&tbb case two things were held by the tenant, both of
wUdi are within the express language of the act : he
d»ebre gained a settlement.
Order of sessions confirmed.
18di.
The Kino
agaitut
The Inhabit-
anUof
woonov*
2 88 CASES IN EASTER TERM
1884.
skuurdau. The King asainst The Inhabitants of
JbToySd.
to"
Newtown.
Fteipertgreed /^N appeal against an order removing John Stanley
by pwol to so ^*^ —
to IT., A flannel and his &niily from the parish of Newtawth Mont-
iiuuiufiicturer» .. . • t t* 'n • * 9
for three yean^ gomeryshtrej to the pansh of Berrtem m the same coun^i
wearing, and^ ^® sessions quashed the order^ subject to the opinion of
hSf ^b«S^ this Court upon the following case : —
!??1!2^*'*^ The pauper acquired a settlement in Berrtem as a
and the servant in husbandry* Immediately on leaving sudi
the other half service, when he was twenty-one years old, and un-
Ibr teacbinc
bimtheart. married, and without child or children, he agreed by
iBto^.T». parol with J<An WiUiamSj a master flannel manufacturer
"^^ flamd^ ^" ^(pw/airoi, for three years to learn the art of weaving
be thai left flannels, and was to be paid by his said master one half
Wm Djcoaaeoty ' *^
and went to of what he could get, and to find himself meaty drinks
JE*> another
flannel menu- clothes, washing, and lodging, and the master was to
fiicturer, told
him of his have the other half for teaching him the art of weav-
ployment with ^"g* '^^^ pauper thereupon went and remained in the
qunt^ E^xo ^^^ ^^^ fVilUams's employ six weeks, and during that
take him on ^j^g wove for him two pieces of flannel. The pauper
the
terms; but f. then left «7. fV. by consent, and the said pauper there-
told him that "^ ' r f
one year would upon applied to James Evans, another master flannel
be long
eoonghyirhe manufacturer in Newtotam, to take him on the same
boy. They terms as J. W. had, and informed him of his having
bad also some
conTersation as to what pauper had learnt with IT. The sessions further stated, '* that
the pauper agreed to go to E. for twelve moaths to learn weaving, and J?, agreed to take
bim, and teach it, and give him half his earnings ;*' and that the pauper went to &» and
worked with him for the year, on the former terms ; they also found that the pauper could
not leave or be turned away during the twelve months; and they decided, subject to a case^
that the pauper thereby gained a settlement :
Held* (notwithstanding the conclusion drawn by the sessions as to the power of leaving
or of turning away,) that^he object of the pauper's engagement with E. was learning, not
service, and, therefore, that it was an imperfect contract of apprenticeship.
lef
IN THE Fourth Year of WILLIAM IV. SS9
left J. W*i and what the contract with him was, and 1884.
liow he had been employed by him, and particularly
that he had been employed by him to make slays, and
TbeKfiro
NcWTOWM*
TIm iDbiMl-
GOttld throw the shuttle^ bnt had had bad slays (a) to aait of
Work with : to which Eoans said that the pauper's
bsiiog hod bad slays to weave with would improve him,
and as to throwing the shuttle it was no more than a
tailor threading his needle ; that he would take him on
thenme terms be had been with J. W*^ but for twelve
ooDths only, adding that twelve months would be long
eaoQgh if he was a good boy. The pauper agreed
to go to Evans for twelve months to learn the art qf
^iwingf and the said Evans engaged to take him and
to tect kirn the art qf weaving^ and to give him half of
lu8 earnings. The pauper went to Evans on the follow-
ingday, and continued to weave flannels in his master's
nxND, from his master's materials, and with his loom, to
tbeeadof the year, on the terms originoUy agreed upon.
Ik patqser could not leave nor be turned away during
On twdve numths^ and was piud by his master one half
of what he earned, and his master kept the other half
for teedung him the trade. He found himself meat,
drink, dothes, washing, and lodging, and lodged during
die above time with his mother in the parish of New^
^onu After his time was up with Evans he began to
Vttveby the piece; then he had all he got, like other
workmen.
J* H. LUyd and Coaling in support of the order of
scMODs. This was a contract of hiring and service,
(a) Say, or iky, a weaTer*8 reed. See Jokinon*» Dictionary by Todd, —
1W part of t loom wbkh strikee op the work. Jih*t Dictionary.
and
240
CASES IN EASTER TERM
1834.
The Kino
Tbclnb^i.
ants of
nlWTOWMs
and not an imperfect contract of apprenticeship. Th
sessions have, in effect, found so, by stating that th
pauper could not leave or be turned away during A
twelve months. [Lord Denman C. J. They hav
stated facts, and perhaps assumed that as a consequenc
of them, which does not follow.] If there is a doubt i
to that, the case should go back to be re-stated. [Xiffli
dale J. They state that the pauper agreed to go I
Eoans to learn weaving, and that he engaged to teac
it That may be the substance of what passed betwM
the parties. The sessions are not obliged to set dow
the very words ; it is more regular to state the effect (a)
Bex V. Crediton {b) was a different case from this ; tha
the sessions had found that the contract was for apprei
ticeship, and the Court acquiesced in their findiii|
If the sessions may decide as to the efiect of the OM
tract, they may say what relation it created betwee
the parties. Here they have stated that the parties ha
a certain intention in entering upon the engagemenf
but the conclusion they have afterwards drawn from th
facts, as to the relative rights of the paities under th
contract, is inconsistent with that, and is now said to fa
erroneous. If their finding on the latter point
not conclusive, the case ought to be sent bade, :
order that they may state whether the reladon
master and servant was created here or not. C^^
Denman C. J. They must have wanted our direcd^
on that intermediate fact, or they would not ha
sent the case.] The question is, whether this Com
will confirm the judgment of the sessions, or 3
(<x) See Rex v. Skebbear, 1 EaU, 73.
{b) 2B.^Ad.49S.
IV THB Fourth Year of WILLIAM IV. Ml
Inrb it upon their imperfect fiodiDg. Rex v. EcdeS' 1SS4.
ion {a)f where the contract was held to be for hiring and
Mnrioe^ is nearly the same as the present case, and
nieKino
I tltWJOWtU
nother is materially distinguishable from Bex v. Little kdu of
Belkm (b). ILiUledale J. Here the object, for which
the panper agreed with Efoan$ was to learn ; in Bex v.
Etdetion {a) the agreem^t was that the pauper idiould
lerf^ though it is said the master was to teach. PaUe^
Ml J. There is nothing here that shews an engaga-
OMBt Sat senrice^ except the finding of the sessions that
■tithcr par^ could rescind the contract. And the
cases shew that, if not a contract to serve^ it
a defisctive contract of apprenticeship.] The infav
diawn by the sessions is correct The master
igmd to pay the pauper for his services, as well as to
tadi hiniy and the services were of value. The pauper
to find himself necessaries, which is not usually the
in contracts of apprenticeship. The contract was
Oily for # year, and was not even reduced to writing.
y. jS. Clarke contra. Where, on the statement of a
aenioDs case, it is doubtful whether a particular fact
existed, the finding of the sessions may decide it; but
where the sessions state all the facts, and then draw
ACQDdasion firom them, this Court is not bound by
the finding. In Bex v. St. Margarefs^ Kin^s Lynn (c),
which resembled thb case, the Court held that the con-
tact was an imperfect centract of apprenticeship, though
die tesaons had decided that the pauper gained a settle-
ment by hiring and service. In Bex v. EdingcUe (d),
tUs Court put the same construction on a like contract,
(«) ^Eaa, 298. (b) Cold, S67.
(c) 6B. iC. 97. (</) 10 B. ^ C. 739.
Vol I. R assigning
2*2 ^ CASES IN EASTER TERM
1884. assigning as a reason, that the object of the parties
expressed at the time of the agreement, was, that tb
pauper should learn the trade. Rex y.KJombe^a)^ then
llieKnro
Thelnliiant-
utiar cited, is to a similar effect The facts here strong!;
Kswrowir.
support the same construction. In the contract wid
Williams the object was learning, and that with Eoan
was on the same terms. All that is stated of th
conversation between Evans and the pauper, tend
strongly to shew the intention. The terms of the con
tract being stated, this Court is to judge of its eflect
the statement that the pauper could not leave or h
sent away during the year, is only the suggestion of th
Court below. The doctrine on this subject has under
gone some variations from the time of the decision h
Rex V. Uitle Bolton {b) ; but the plain and intelligibli
rule is that laid down by Bayley J. in Rex v. Edm
gale (c), viz. ^^ That where the substantial object of thi
parties to a contract is to learn, and not to serve, th<
contract should be deemed one of apprenticeship, anc
not of hiring and service."
LiTTLEDALE J. {/!) There has certainly been some un-
dulation of opinion in the Court at difierent times on diL
subject; but I think we are bound by the last decisioD
The present case is like Rex v. Crediton {e\ but stronger
and there, as in this case, the pauper found his owi
board and lodging. On the facts of this case, as fonnc
by the sessions, I think the contract was for learning;
and was not a hiring for service. In Rex v. Ecdeston (gl
[a) SB.^C 82. (6) Cold. 367.
(c) 10 B. ^ a 742.
(rf) lK>rd Denman C. J. lef^ the Court during the argument.
(e) 2 B. t^ Ad. 495. (g) 2 Easi, 299.
the
NlWTOWK.
nr THE Fourth Year of WILLIAM IV. 245
tbe oootract was, generally, << to serve." Here,' by die 1884.
agreement, the pauper was to learn the art of weaving
fluDeb, and the master was to have half his earnings agauut
- I - . , * The inhabit-
fcr teKfaing. The master's observation, that twelve ants of
moDdis would be long enough if the pauper was a good
hoff strongly shews the intention of the parties to have
been teaching and learning ; and their language through-
OBt lias the same tendency. If the master had gone
into i difierent business, I should doubt if he could have
ifliiited on employing the pauper in it: I question
iliedier he had a right to employ him in any thing but
mfiDg flannels. Upon the whole, there is nothing
beieto shew a hiring for the purpose of service^ and I
doakthat an apprenticeship was not merely the primary,
bit:die only object of the contract
PmssoN J. I cannot distinguish this case from
&r ?. Crediton (a), and, being bound by that authority,
venmst decide accordingly. I confess I am also unable
to distinguish the case from Bex v. Burbach (i), but I
think that is overruled by Bex v. Crediton (a). The
disdnction between cases where the agreement is to
^vttl^ or to serve, and where it is to learn, seems to have
been first distinctly taken by Lord EUenborough in Bex
^^ BUbarougk (c) ; yet, in Bex v. St.Margarefs^ Kir^s
i^(d), the boy's agreement was ^^ to serve for four
jears," and that was held an imperfect contract of ap-
prenUceship. I cannot reconcile the cases; but ever
snoe Bex v. Bilborot4gh (c), the current of opinion has
(a) 2B.i:Jd. 493. (b) I M. ^ S. 370. (c) I B. i Aid. 116.
(^ 6 £. ^ C. 97. The lame words are stated in Bex v. Edingale,
10£. j^ C. 739., where the agreement was held to be a defective contract
^ sppcQtioeship.
been
244 CASES IN EASTER TERM
1884. been to consider agreements like the present as im-
perfect contracts of apprenticeship.
agahui
TIm Inliabii-
•nta of WiLUAMs J. I agree in the opinion expressed by
MSWTOWW*
Mr. Justice Lccwrence in Bex t. Eccleston {a\ of the im-
portance! in these caaes^ of adhering to what has been
once expressly determined. When the Court begins to
dedde them on nice and evanescent distinctions) infinite
trouble is occasioned. The tendency of opinion latterly
has been to treat agreements like thb as imperfect con-
tracts of apprenticeship ; and without considering the
several instances in which an inclination has been shewn
to dqpart from the doctrine laid down in Rex t. LUtU
BoUon {b\ it is enough to say, that I think the present
case is not distingubhable from Bex t. CrediUm (c\ and
ought to be governed by it.
Order of sessions quashed {(!)•
(a) 8.Baie,309. (6)01^367. {c) 2 B. ^ Jd. 49S.
(d) tfj 4 & 5 IT. 4. c 76.1. 64., it u enacted, ^ that from end after the
paning of tbia act, (]4di of August 1834) no aetUement ahall be mafmd
bj hiring and senrioey or by residence under the same." And bj sect. 65«t
** no person under any contract of hiring and senrice not completed at
the time of the passing of this act, shall acquire, or be deemed or
adjudged to have acquired, any settlement by reason of such hiriag
senrice, or of any residence under the same.*'
JN THE Fourth Year op WILLIAM IV. 245
1884.
The King against Martin Nockolds and the Saturday,
Churchwardens and Overseers of Wistow. ^
QN appeal to the Huntingdon quarter sessions {April An indoture
i«\t_ i_ T» r^ •■^. • act directed,
1833) by the Rev. George Mtngaye^ against an that the com-
iwaid made by Martin Nockolds^ the commissioner ap- by appointed
pointed by an act of 11 G. 4. c. 5. (private), « for in- J^^^JlJj*
doring lands in the parish of JVistow, in the county of ^^^^^^^^
HmUingdon^ and for extinguishing the tithes of the said annexed t^rtio,
pirish;" and on which appeal the said M. N.^ and the quantity of
, wheat equal to
cfaordiwardens and overseers of Wistow were the re* the annual
tpondents, the sessions decided in favour of the appeals tithes in the
parish of fT.y
*Ad dMold afterwards determine the yalue of such wheat in money, and charge and ap*
PQitioa the amount on the lands and tenements in fT., which sum was to be paid to the
'^Bctor quarterly, the first payment to be on the 25th of March next after the execution of
^ ■•aid, or such earlier day as the commissioner by bis award or by such premout
^^iAlg should appoint ; and the tithes were to cease from the apportionment of such rent,
J^ tt focb other time as the commissioner by any wriiing should appoint. The act also
'**«cIm1, that if any person should think himself aggrieved by any thing done in pursuance
I^WBuli ^ might appeal to the sessions within /our calendar month$ next after the cause of
tfUni skouid have arisen.
fht commissioner, by writing dated 3d October 1852, fixed the com rent in the pro-
■• stated in a schedule which was annexed, and appointed the payments to begin
S5lfa December then next, and the tithes to cease from 29th September then last. His
^nnl was not made till January 1833. The rector appealed at the Easter sessions, April
^ 1i 1833, on the ground that his (equivalent for the tithes was assessed too low :
Held, that the previous writing of the commissioner was operative before the making of
award ; that the cause of complaint arose on the execution of such writing, and, there-
!. that the appeal was too late.
^ The act directed, thst all notices necessary to be given by the commisuoner should be
^ ^^cn by advertisement in a certain psper, and by affixing such notice on the church door
^fat days before the time for doing the business to be notified. The commissioner on
<cuting the above writing, sent the appellant a copy of the schedule, with notice of the
■lies having been extinguished and the corn rents assessed, but the schedule in no way
flcrred to the writing. He also published notices in the newspaper and on the church
'• declaring that be had assessed the com rente by writing of the 3d of October, which
deposited with the clerk (whose address was given) in London ; and these last-men-
^^acd notices further stated the days when the tithes were to cease, and on which the rents
: to be payable. It also appeared by a correspondence, that the matter which formed
pound of the appeal was in fact known to the appellant before the 13th of December
Held, that supposing any notice to the appellant to have been necessary, ('and, semble, it
iK>t,) he hady by the communications above stated, sufficient notice of the cause of
ipbiot to have appealed within four months.
Vol. I. S subject
246 CASES IN EASTER TERM
18S4. subject to the opinion of this Court on the following
case:
TheKmo
agaimi The twentv-fifth section of the act is as follows.
KoCXOLDS.
'^ And be it further enacted, that the said commissioner
shall and he is hereby required within twelve months
after the passing of this act, to ascertain and distinguish
the yearly value of all the tithes, and of all moduses,
compositions, and other payments (if any) in lieu of
tithes, which shall be arising, issuing, or renewing out of
and from any of the said lands in the said parish of
Wistam hereby directed to be divided, allotted, and in-
closed, and out of and from all and every the gardens,
orchards, and other ancient and inclosed lands and
grounds in the said parish, and due and payable to the
said rector ; and in making such valuation, the tithes of
all such lands and grounds hereby directed to be divided,
&C., and of all the ancient and inclosed lands and grounds,
(except the inclosed fen lands and grounds), as shall be
arable, shall be deemed equal in value to one fifth part
of the annual net value of the said lands and grounds;
and the tithes of all such inclosed fen lands and grounds
shall be deemed equal in value to one seventh part, &c;
and the tithes of all other lands and grounds in the said
parish shall be deemed equal in value to one eighth
part, &c. after deducting the lands or grounds set out far
roads^ and the allotments hereinbefore directed to be set
out for the purposes of getting stone, chalk, gravel, and
other materials : And the said commissioner shall, and
he is hereby required, in the next place, by and from
the London Gazette^ or by such other means as he shall
think proper, to ascertain what has been the average
price of a bushel (imperial measure) of good market-
able wheat, in the county of Huntingdon^ for seven
years
NoCKOLOf.
IN THE Fourth Year of WILLIAM IV. 247
years next before the passing of this act, and shall, in 1884.
0jid by his award, or by some previous writing under his
The Knra
^and, and to be annexed thereto^ ascertain and distinctly ^ agpintt
s^X. forth what quantity, and how many bushels of such
wheat will, in his judgment, be equal to the annual
^alue of the said tithes; and after such valuation and
ascertainment, the said commissioner shall and he is
liereby required to determine what sum of money will
\)e equivalent to the value of the quantity of wheat so
ascertained; and such sum of money shall be charged
and apportioned by the said commissioner upon such
lands and tenements of each and every proprietor, and
in sQch manner as the said commissioner shall think
JQSt; and such sum of money, when so apportioned and
charged, shall be issuing out of £he lands and tenements
which shall be charged therewith by the said commis-
sioner, and shall be paid and payable by the person or
persons who, for the time being, shall be in the occu-
pation of such lands and tenements, to the said rector
>nd his successors for ever, (unless the same shall be
altered by the ways and means hereinafter mentioned
and provided,) by four equal quarterly payments, that
is to say, on, &c. the first payment whereof shall be
nude on the 25th day of March next after the execution
of the said award, or such earlier quarterly day of pay-
ment as the said commissioner shall by such award, or
hf such previous writing under his hand as aforesaid,
direct or appoint." The section further stated, '^ that
the sud rent should be in lieu and full discharge of all
tithes, rooduses, &c« in Wistam^ and that from and after
the apportionment of the said rent as before provided,
or at such other times as the said commissioner by any
"^ing under his hand should fix and appoint, all tithes,
S 2 moduses,
NOCXOLDS.
248 CASES IN EASTER TERM
1834. moduses, &c. within the said parish of Wisiow should
^■""^ cease and be for ever extinmiished."
agaijui The Commissioner, under the authority of this clause
by writing under his hand and seal, dated the Sd of
October 18S2, ascertained and set forth the quantity of
wheat equal to the annual value of the tithes, and the
sum of money equal to the quantity of such wheat, and
thereby charged and apportioned such sum of money
upon the lands and tenements of each and every pro-
prietor, in the proportions set forth in the schedule to
such writing; and the commissioner, by such writing
directed the first quarterly payment of such sums of
money or rent to be made on the 25th of December then
next, and fixed and appointed that all tithes within the
said parish had ceased and determined, and were for
ever extinguished, at and from the 29th day of September
then last. A copy of the schedule to this writing was
sent to the appellant, with notice of the tithes having
been extinguished, and the corn rents in lieu thereof
having been charged and fixed, which copy it appeared
had been received by the appellant early in October
1832; but such copy of the schedule did not in any
manner refer to the aforesaid writing respecting the ex-
tinguishment of the tithes, nor did it mention or notice
the extinguishment of such tithes in any manner, but it
was merely a copy of the schedule of the several allot-
ments, old inclosures, homesteads, gardens, 8cc in
WistaoD, the yearly corn rents or sums . charged thereon,
and the quantity and number of bushels of wheat equal
to the annual value of the tithes thereof respectively. A
nouce signed by the commissioner declaratory of the
tithes having been extinguished, and the com rents fixed
and charged in lieu thereof, was fixed to the church
door
KOCKOLM.
IN THE Fourth Year of WILLIAM IV. 249
door of Wistam about the 13th of October 1832, and 1834.
advertised in the Huntingdon Gazette on the 6th of that ~
. The Kino
month (a), the above act having directed, (sect 9.)i ^offnnu
** That all notices necessary to be given by the com-
missioner shall be given by advertisement in the Hun^
tingdon Gazettej or in some newspaper publish^ within
the said county of Huntingdon^ or in the town of Cam-
hridge^ and by affixion to some principal door of the
diurcb of the parish of Wisiao) aforesaid, eight days
at least before the period for doing the business to
^hich such notice shall relate.'' {b) The allotments
(•] HxM notices (which were not set out in the case) were as follows : —
" Widmo indosure. I, Martin NacMds, the commissioner appointed
in and by an act of pcurliament made and passed, &c (11 G. 4. ), intituled,
&C. do hereby give notice^ that I have, in pursuance of the said act, as-
tcrtaiDcd the quantity of wheat in my judgment equal to the value of the
tidici boetofore arising, issuing, or renewing out of all and every the
hadiaBd grounds in the said parish of fT., and due to the rector thereof;
■mI hive also determined what sum of money is equivalent to such quan-
% of wheat ; and that I have also, pursuant to the said act, by writing
VBtkr my hand and seal, bearing date the 3d day of October instant,
cbrged and apportioned such sum of money upon the lands and tene-
Doll of each and every proprietor, in such manner as 1 have thought
jut and equitable, and have set forth in a schedule to such writing
ttKxcd, which writing is/or thepretent depo$ited with the clerk, at No. 7.
Grot James Streets JBedfrrd Row, London, for the inspection of all parties
Wrrwted ; which sums of money are to be henceforth paid to the said
Rdor or his successors by four equal quarterly payments, on the S5th
^d March, &c. in each year, and are to be in lieu and fuU satisfaction
ad discharge cf all and all manner of tithes arising, issuing, or renewing
out 0^ and payable in respect of, all and every the lands and grounds in
^ said parish ; and that I have by the same writing directed the first
ftftOBDlt of such several sums to be made on the 25th day of December
nnt; and I hereby declare and appoint that all and all manner of tithes
within the said parish of W., have ceased and determined from the 29th
^ of September last, and that they are thenceforth for ever extinguished.
I>itcd the Sd OctiAer 1832. Martin Nockolds"
(i) In some instances the act expressly directed such notices to be
9^«n; bat it contained no direction as to notice, either to the rector or
^ piblic, of the matters specified in sect 95*, except as therein stated.
S 3 under
NOCXOIM.
250 CASES IN EASTER TERM
18S4. under the said indosure had been previously set oat
and possession thereof taken by the several person;
agama entitled.
The commissioner's award was signed on the 17th o^
January 18S3. The previous writing and schedule o
the 3d of October 18S2 are annexed thereto, but th<
award does not in any manner refer to or take notia
of the rector's tithes or com rent otherwise than by f
recital that the previous writing and schedule wen
signed on the Sd of October then last, and are annexed
to the award. Notice of appeal was given on the 22<i
of March 1833, for the then next quarter sessions, whid
were held on the 9th of April.
The sixtieth section of the act provides, ** That i
any person shall think himself aggrieved by any thiuf
done in pursuance of this act, except in cases where th<
orders, acts, or determinations of the said commissionei
are declared to be final and conclusive, and except alsc
in cases where an issue at law may be tried as in the ad
is mentioned, such person may appeal to any general oi
quarter sessions of the peace which shall be held for the
county of Huntingdon, within four calendar months nexl
after the cause of complaint shall have arisen, giving tc
the said commissioner and to the parties concerned
notice in writing of such appeal and of the matter
thereof ten days at least before such sessions."
The case set fortli a letter, bearing date ISth oi
December 1832, written by the commissioner to Mr.
Giraudj the appellant's solicitor, who had applied to
him to state in his award that he had deducted the
poor's rates in making his valuation for the com rents.
In that letter the commissioner said that he had no objec-
tion to insert such words in bis award as would make it
clear
NOCXOLDC
IN THE Fourth Year of WILLIAM IV. 251
crlear that the corn rents were calculated as payable to 1834.
'Cie rector free from all parochial rates, such being the ""■""
principle on which the schedule was drawn; and lie agaimi
^suggested that this should be arranged with his, the
^XMnmissioner's, solicitors. The statement, however,
^was not inserted, though a similar application to the
^d>oye was made by the appellant when the award was
executed ; and the appellant's complaint was, that the
award did not shew that the commissioner, in taking
the value of the lands, had deducted the amount of
poor's rate, nor, on the other hand, did it direct that
the com rent should be payable free from such rate.
If this Court should be of opinion that the appeal
was entered in due time, and also that the commis-
sioDer bad improperly valued and ascertained the said
oom rent, then the judgment of the sessions was to be
affimed, otherwise to be quashed. The case was now
argaed by
Kdfy and Gunning in support of the order. (The
aigoments as to the propriety of the valuation and
award are omitted, no judgment having been given oa
that point) This is, in terms, an appeal against the
award; and it was in time, being entered within four
months after the award was executed. It was not neces-
sary to appeal within four months from the making of
the writing and schedule mentioned in the case: the
cause of complaint arose when the commissioner's de-
cision was rendered complete by the award ; not before.
Many things which Rre necessary to perfect the final
tstimate, can only be settled by the award. For ex-
ample, the tithes of certain lands are to be deemed
equal in value to one fifth, one seventh, and one eighth
S 4 of
NOCKOLDS.
M9 CASES IN EASTER TERM
18S4. of the annual net value of such lands, *^ after deducting
" the lands or grounds set out for roads," and the allot-
The KiKO
agaifui mcnts to be set out for getthig materials. These deduc-
tions cannot be conclusively ascertained till the award
is made. The roads cannot be finally set out till the
award b made; and if that is appealed against with
success, all the deductions, and the valuations depend-
ing on them, must be disturbed : consequently an appeal
against these, before the award was made, would very
probably be useless. The equivalent for the tithes, in
com, is to be fixed by the award, or by some previous
writing, but which is '^ to be annexed thereto." The
days for payment of the com rent are to commence
with the 25th of March next after the execution of the
award, or such earlier day as the commissioner shall,
by his award, or such previous writing (which is to be
annexed thereto) appoint. The case shews that the
commissioner himself did not consider the matter finally
determined till the execution of the award. The previous
writing, with its schedule, could have no legal validity,
till annexed to the award. It might be contended that,
if the time for appealing did not date from the award, it
dated from the first day fixed for payment of the com
rent, which was the 25th of December 1832; but it is un-
necessary to insist on this. The only matter of which the
appellant had, or could legally have notice, was the award*
It is tme, a notice of the schedule was given him, but
that was superfluous on the part of the commissioner;
and the rector could not appeal against the schedule :
besides, the schedule afforded him no information as to
the extinguishment of the tithes ; it only stated how the
com rents had been apportioned. There was, indeed,
a general notice a£Bxed on the church door, and in-
serted
NOCSOLIW.
IK THE Fourth Ybar of WILLIAM IV. tss
serted in the newspapers for the information of the 1884.
oocnpiers^ but that did not give the statements neces-
sary to enable the rector to appeal, and it referred to agahui
the commissioner's solicitors in Ijondxm^ where it could
not be expected that he should go to make enquiry.
The only r^^lar noUce he could have of the writing
mentioned in the statute and of its contents, was by its
being annexed to the award.
Sir James Scarlett^ Pryme^ and Cooper^ for the com-
missioner (a). The sessions were wrong on both points.
As to the question of time, the act from which the
grierance here is to be dated was the publication of
the writing of the dd of October / and the rector had
sufficient notice of that to enable him to appeal. As to
the objection that the notices on the church door and
in tbe newspaper ought not to have referred parties for
information to the solicitors in London^ the answer is,
that most of the persons interested live within sixty
miles of Jjondon $ and the commissioner is not furnished
with the means of keeping a person on the spot to
answer enquiries. Besides, if these notices were im-
pn^r, they were a thing done in pursuance of the act^
and might have been appealed against under sect 60.
At all events, the parties receiving such notices (sup«
posing that the statute does not require more particular
ones to be given) suffer no greater hardship than was
imposed by the general highway act, IS G.%. c. 78.
1 19., giving justices the power of stopping and divert-
ing highways, which limited the time for appeal by
(>) TvmJSnwn was partly heard on behalf of the diurcfawardens and
ovcneot, bat the Court then intimated an opinion that they were not
cntidtd to a hearings at least on the point as to time.
persons
S54 CASES IN £AST£R TERM
Tbe Knia
NOGXOLM.
18M. persons aggrieved, and yet did not (as 55 G. S. c 68
$• %. afterwards did) prescribe any notice to be given ti
persons who might be entitled to appeal. It is not dear
in this case, that any notice was necessary; but if it waa
tbe commissioner has strictly followed the act: he pub
lished notices in the newspaper and on the church door
and, besides, sent a copy of the schedule (which was no
absolutely necessary) to the rector. The award unde
an enclosure act may be several years in the making
in the course of that time many things must be done t
give effect to the commissioner's proceedings, whid
could not be afterwards disturbed without great incoo
venience. Every assessment might be the subject of a
appeal which would overthrow the whole award. Th
general enclosure act (a) provides for the setting out an
stopping of roads before the allotments are made : bi
if the right of appeal continues till after the award, a
these proceedings may be then set aside^ or the whol
award reversed, if any of them be found irr^ular. Tl
convenient rule, therefore, is, that the writing mentione
in the act should be the ground of appeal. Rex v. 72
Justices of Gloucestershire {b) decides that the right (
appeal under such an act as this arises when the rigli
to tithe is, in fact, determined. The principle thee
acted upon had been established in Rex v. JTie Justia
of Wilts (c). By the language of the clause on whic
this case turns (11 G. 4. c. 5. 5. 25.), every thing that
to follow the substitution of com rent for tithes is mad
to depend on the apportionment itself and not on tl
^Kward. There is nothing to shew that the previoi
wriung and schedule^ though they were to be annexe
(«) 41 G. 3. c. 109. i, 8» (6) SM.^S, 1S7.
(c) lS£a«/,352.
IN THE Fourth Year of WILLIAM IV. 965
to the award, were to gain any validity from it They 16S4.
are only joined to it to be preserved as evidence. Each
of the documents may be in the nature of an award.
LiTTLEDALE J. (o) On the merits of the appeal it is
unnecessary to say any things because I am of opimon
that the notice of appeal was not given in proper time.
The commissioner is directed to value the tithes and
compositions, to ascertain the prices of wheat, and '* io
ind by his award, or by some previous writing under
his hand, and to be annexed thereto,'' to ascertain what
quantity of wheat will be equal to the annual value of
inch tithes, &c. ; after which valuation, he is to deter-
nune what sum of money will be equivalent to the value
of the quantity of wheat; and he is to charge and ap-
ptttioQ such sum of money upon the lands of every
proprietor as he shall think just ; which sum, when so
apportioned, is to be issuing out of the lands so charged^
nd be paid and payable to the rector. It appears to
me that, by this and the other parts of the dause, the
ipportionment might be considered as made before Um
oecation of the award. Such awards are generally
completed after all the interlocutory matter haa beeu
disposed of; and this is right ; for if it were not so^ an
tppeal subsequently made might render it necessary
that the award should be altered ; — if, indeed, the com*
missioners had the power, which might be a questioor
I think this a case where the cause of complaint arose
before the making of the award. The <* previous
wridng " to be annexed to the award is to form, a» it
^ere, a part of it : the conmiissioner, by means of suck
^ing, exercises a sort of intermediate power: the
(a) Lord Denman C. J. had left Iha Court.
writing
IN THE Fourth Year of WILLIAM IV.
857
does, the case states that a declaration by the commis*
siooer, according to this provision of the act, was fixed
<m the church door of IVistt/a^ and published in the
Hmiagdon Gazette; and that being done, I do not
horn that it was necessary for any notice to be sent to
tk individual parties interested. Then it is said that
these last notices do not contain all the requisite in-
fbnnation, but refer to the commissioner's agent in
Lmdon, I think the parties interested, supposing them
atitled to notice, were not bound to seek it from per*
fiODS in Ixmdon; and that, if none was offered but
what was to be obtained there, it would not be suffi-
cient But here a general notice was given by means
of the publications on the church door and in the
Gnette; and parties were only told that if they wuhed
mofe particular information, they might obtain it from
the derk in London. It was their own business to do
that if they desired it. I think, then, that the rector
had sofficient notice given him by the communication
lent to him in private (although that may not have been
precise in its terms), and by the declarations published
ID compliance with the act ; and at all events it is clear
fiom the correspondence that the appellant, by the ISth
of DecerrAer 18S2, was sufficiently apprised of the sub-
ject of compldnt to have appealed at that time. The
present appeal, therefore, came too late.
1894.
KooaoLOib
Pattjeson J. I am of the same opinion. The sixtieth
lection, which gives an appeal '' except in cases where
the orders, acts, or determinations of the said commis-
sioner are declared to be final and conclusive,'' or
where an issue at law may be tried (a), seems, by its
(•) Oi diipalcd cUuins to aqj of the laadi to bo allottod, ftc Sect. 14.
terms,
TbeKiwa
agakut
NOCKOLM.
958 CASES IN EASTER TERM
1884. lerms, to relate to matters preceding the award. Tbe
qaestion here is» when the cause of complaint arose?
Tbe cause is, substantially, that too small a sum has
been given to the appellant in lieu of his tithes. Now
the act directs that the commissioner shall by his award,
fx by some previous writing to be annexed therelo,
iKcertain the equivalent in com for the tithes, that he
shall determine the value of such equivalent in mon^,
and charge and apportion it on the lands, and that the
assessment shall begin to be payable on such day as the
commissioner by his award, or by such writing, shall
appoint ; and the tithes are to cease from and after the
time of the apportionment, or such other time as the
commissioner by any writing under his hand shall
appoint The '* previous writing" mentioned in this
clause is to be annexed to the award for preservation,
and that it may be accessible afterwards, and not be-
cause it is intended not to operate till the award is
joined to it. On the contrary, the tithes are to cease
from the apportionment, or from the time specified in
any writing by the commissioner. The writing, in this
case, was executed on the 3d of October^ and required
no assistance from the award to render it operative.
It fixed the 25th of December as the first day for pay-
ing the assessment, and the 29th of September as the
day on which the tithes should cease. The ^' thing
done," which was the subject of appeal, was the signing
of that paper. As to notice, there is no part of the
act which expressly requires that the proceedings of the
commissioner for extinguishing the tithes and apportion-
ing the assessments should be specified to any one;
but to take off the hardship which seems to result hoxa
this, it is stated that the appellant, early in October^
reoeivtd a copy of the commissioner's schedule, with a
notice
NOCKOUM.
IN THE Fourth Year of WILLIAM IV. 959
notice that the tithes had been extinguished, and the 18S4.
oom rents fixed; and a notice declaratory of the same ■
, "^ The Kiwa
proceedings, and referring to the writing and schedule^ ^J'^'^'^
was fixed on the church door, and published in the
Huntingdon Gazette ; not that I think this was neces-
sary, but as other parts of the act require notices to be
given in this way, the commissioner acted very properly
m so publishing them. We cannot but see that the
rector was aware of the proceeding now complained of,
edy enough to have appealed in proper time; the cor-
respondence shews that he was so, but wished to have
it more clearly ascertained by the award that the mode
offaluing exempted his corn rent from the poor^s rate.
1 do not know that the result of the valuation may not
be such in point of law, but the commissioner was not
boond to state it on his award. The order of sessions
most be quashed.
Williams J. I had some doubt upon this case^ but
1 now think it clear that the previous writing was, for
the present purpose, equally effective with the award,
and that the commissioner might, in that way, do what
is DOW the subject of complaint, extinguish the right to
tithes and assess the payment in lieu of them ; and that
act he did on the 3d of October. The appeal, there-
fere, is too late. As to notice, if that was necessary, in
the first place the appellant had a special notice from
the commissioner ; secondly, there were the notices in
the Gazette and on the church door ; and, thirdly, it is
hardly to be supposed that the rector would not himself
watch proceedings in which he was so materially con-
cerned.
Order of sessions quashed.
860 CAS£S IN EASTER TERM
1884.
3^^ The King against The Inhabitants of
Ardington.
mI^J*'^ on appeal against an order for removing GeorsS^
herd for a tenn Barrett and his family from the parish of ArdimU^^
ntberlnttfaaa , J v -b ^
a j«u>, ending in the county of Berks^ to the parish of Aldboume^ WH^^
mat 1885, the sessions quashed the order, subject to the opinion <^
TCcehe 51. iQi. ^his Court on the following case : —
]|3^ a^r* Three or four days after Old Michaelmas-day 1 823, tli«
^^^^2^^?*^ pauper, being then about sixteen years old, and settled
€ontimiedto f^ JUboume. was hired by his father to Mr. WUliam
liT« with and ' ^
woriL for his Browtiy a farmer in the parish of Little Hinton, Wilts,
iHlbre, but (the fiither being in Brown's service also,) to serve as
new agrMiiient. shepherd, for his board and lodging, in the house of
then paid the Brown at Little HirUofiy until the following Old Mickad-^
vtSne^ fiiiber, ^'^^^ *' ^^'^ ^^^ ^*' ^ ^^^ wages for the father. The
w^had also pauper served accordingly as shepherd under that
serrice during hiring, boarding and sleeping in Braamh house, till Old
the shove men*
tionedterm; MichaelmaS'doy 1824, on which day he, by his father^s
and asked «if J' ' J ^ J
be and his sons leave, went to HighwortJi fair for pleasure, and returned
chose to ffo on
with him.'* in the evening to his master's house. Mr. Bfown settled
sented. The ' ^^^h the pauper's father for the wages due to himself and
be^ Mune.^ his SOU up to Old Michaelmas^ four or five days after Old
The psi^ Michaelmas^ the father receiving the wages for his son.
the serrice as On the day the wages were paid the master hired the
befofef till
X<u/y-ii(iyi826, pauper's father, the pauper, and his brother, to serve
when the mas*
ter, being about him until the Old Michaelmas following, at 65. a week
farm, paid him ^'^^ the father, and 5/. 105. for each of the sons at
bis wages down
to that time, and he went into the seirice of the incoming tenant:
Held, that the hiring after Michaelmas 1825 was not a general hiring, and that the
wrrioe under it, connected with that of the preceding year, did not give a settlement; and
the Court quaked an order of sessions made in favour of such settlement
Michaelmas.
IN THE Fourth Year op WILLIAM IV.
261
Michadmas. The pauper and his brother continued,
vnth their father, to board and lodge at Little Hinton^
the pauper being employed as before, till Old Michaelmas
Day 1825, when the pauper drove his master's sheep to
Higkwarth fair and returned in the evening to Little
HifUon. A few days after Old Michaelmas 1825 the
master again settled with the pauper's father for the
vages agreed upon for himself and his sons at the pre-
^noas hiring, and asked the father " If he and his sons
chose to go on with him?" to which the father said
" Yes." The wages were to be the same. The pauper
Kmained at his master's house, boarding and lodging
>nd working on the farm, as usual, till about the 10th
ft March 1826, when he was sent by his master with
*kep to a farm he was about to occupy at Lockhinge
in Berkshire. He remained there, receiving 5s. a week
botrd wages, till Lady-day 1826, when he returned
to Brawn at Little Hinlon, and continued there, as
before, till the beginning of April, when Brown quitted
IMe Hinton, having paid the pauper's wages due
to him at Lady-day 1826, to his father, without de-
ducting anything on account of the pauper's absence
at Lockhinge. The pauper then entered the service
of the incoming tenant. The pauper boarded and
lodged at Brown*s house, and was employed on his
&rm as shepherd continually from three or four days
aiifci Old Michaelmas 1823 to a few days after Lady^
% 1826. No other person was ever hired or em-
ployed by Brown in place of the pauper during that
time. Th« father received the pauper's wages from
Brum without accounUng lu the pauper, bui found
him iQ clothes and pocket money during his service.
The pauper might have left his master's service at Old
Vou I. T Michaelmas
1884'.
The KiKQ
affunsi
The InbabiU
ants of
ABDnfQTOX.
262 CASES IN EASTER TERM
1834. Michaelmas 1824. He did not know what wages he
-. yr was to receive. On these facts, the sessions held that a
"««JJ*[^ yearly hiring of the pauper by Brawn in Utile HitUan
anuof must be implied, and they quashed the order of re-
moval. The case now oomug on for argument, tne
Court asked the counsel who supported the order of
sessions, what ground there was for implying a yearly
hiring?
Carrington and Tyrvohitt in support of the order o(^
sessions. The sessions have found that a hiring in
Utile HifUon was to be implied. [Lord Denman C. J»
But they send the evidence here, and put the questioi^^
to us. We cannot imply a distinct fact.] If there b
any premises to support their conclusion, this Court wil'
not disturb it, though they may not agree in the
elusion : Rex v. St. Andrew the Greats Cambridge (a
Here the evidence did warrant the finding. The
versation after Old Michaelmas 1825, amounted to
indefinite hiring ; and the service under it, though f!
less than a year, will connect with the preceding servi
This is like Rex v. Macclesfield {b\ where the mas
told the pauper ^^ he might as well stay on an end," ai
it was held to be a genei'al hiring. [Lord Denman C
There Lord Kenyan said that the words had that me
ing by the custom of the country.] The words here
stronger. IPatteson J. The wages here upon the
hiring are the same gross sum as on that of the fomo^
year.] It was admitted by the Court in Rex v. Ap£^
thorpe (c), that a hiring for a year might be presum
from the sprvnnt continuing^ iu ihe service, at the ex<
(a) 8 P. 4f C. 664. {h) 5 T. R. 76.
(c) 2B.iaS92.
IN THE Fourth Year of WILLIAM IV. 26S
piration of a previous yearly hiring, without any altera 1834,
ation of the terms. A presumption almost as strong
The Kims
arises in this case: the pauper, at the expiration of his agama
Thelnbabit-
senioe at Michaelmas IS25* entered on a new one which anu of
cootiniied several days without any specific agreement '
^ to terms; and the inference of a general hiring,
^hich might be drawn from that fact, is not repelled,
bat strengthened, by the subsequent conversation be-
tween Brawn and the pauper's father.
Per Curiam (a). It would be difficult to say how the
master in this case could have done better than he has
to avoid a yearly hiring, and that seems to have been
the intention of the parties. The words used by the
clearly do not import an indefinite hiring.
Order of sessions quashed*
Shepherd was to have argued against the order of
(a) Lord Denntan C. J., LUtledale, Patteson, and Williams Jf .
T 2
264 CASES IN EASTER TERM
1884.
The Governor, Deputy Governor, Assistants,
% and Guardians of the Poor of the City of
Bristol against Wait, Gardner, and Barp
NETT,
Ifai^is REPLEVIN. The defendants avowed, first, as
assessed to the XV
poor rata for overseers of the poor of the parish of St. Philip ana
premises which
he occupies, Jocob^ Stating that tbe taking, &c. were done by then
and other dis* _. ^
tinct premises by authority of an act (48 Eliz. c. 2.) for the relief ol
Dot occupy, the poor, and according to the said act* To this the
are distrur^* plaintiffs pleaded in bar, first, de injurifi ; secondly, thai
«[e?j\>My'!te *® defendants wrongfully took, &c. in the name of one
u not conBned entire distress, for and by reason of the non-payment d
by appeal, but divers, to Wit, four rates before then made, &c., for the
may bring an ^ , , ,
action. relief of the poor of the said parish, and not oUierwisei
tress be made and that in and by one of the said rates, viz., in and b]
several war- ^ certain rate made, &c., 22d of March 1882, th(
several roiw"^ ^^^^ plaintiffs were rated and assessed in the sum o
hfbl^^Ihe dL ^^^' ^^' ^^'^ ^^^ ®"^ ^" respect of the supposed occup»
tress is not y^^^ bv them of a Certain building called The Armoury
therefore void. ^ ° /^
If a party situate in the said parish, and that they, the plaintiffs
enter and make ,
a joint distress were not at the time of making, &c. the said last-men
for four several . . • #• i •
rates, being tioned rate, or at any time afterwards, occupiers o
tiiat purpoM ^he said building, nor rateable in respect thereof to th<
rams.^one X ^^^'^^^ ^^ ^^« po^"" °f ^'^^ said parish. Replication to th
which IS bad, fjj.g^ pj^jj similiter. The replication to the second pie
he may, m an ' ' *•
action of re- get out four rates, made respectively on the Sd c
plcvin for such
distress, justify under the good warranU, and sbandon the bad one ; and if At causes c
taking arc distinct, and the avowries separate, he will be entitled in » itrtum of all thegoodi
Where some of the avowries Justified tUe wliole taking under good warrants only, and th
plaintifiT alleged, in answer to each of the avowries, tliat the whole distress was taken jointl
under four warrants, of which one was bad, and the defendant did not, on the record, coo
tradict this allegation : Held, nevertheless, that the defendant was entitled to judgmeai
and a return of all the goods.
Mafx
266 CASES IN EASTER TERM
1S84. time of making, &c. the said rate thirdly mentioned in t
Gorman f ^^'^^^'^ ^^ ^^ ^^7 ^^^ aftcFwards, occupicn of t!
Bristol Poor building in respect of which they were rated in the las
Wait. mentioned rate> nor rateable in respect thereof to t
relief of the poor, &c General demurrer and joinder.
The second avowry stated that the pluntifi we
occupiers of certain premises in the parish, and rateal
in respect of their said occupation ; and it set oot t
rate of the 3d of March 1881, and followed in otb
respects, as to this rate, the same course of statemc
which was taken in the replication to the second pli
The third avowry was in the same form, and was oo
fined to the rate of the 22d of September 1831. T
fourth and fifth avowries were in the same form, ai
were confined respectively to the rates of 22d of Mar
1832, and 20th of October 1832. The plaintiflfe plead
in bar, thirdly, fourthly, fifthly, and sixthly, to tl
second, third, fourth, and fifth avowries respectively^ i
injuria. Seventhly, the plaintiffs pleaded in bar to tl
same avowries, that the defendants took, &c. the gooi
in the declaration mentioned, as for and in the name
one entire distress for the non-payment of the sever
supposed rates in the second, third, fourth, and fifl
avowries respectively mentioned ; and that by the ra
of 22d of March 1832, the plaintiffs were rated in r
spect of the supposed occupation of a building calle
&c. of which they were not, at the time of making th
rate, occupiers, nor rateable in respect thereof. R
plication to the third, fourth, fifth, and sixth pleas, sin
liter. To the seventh plea, that the defendants too
&C. as a distress for the said several rates in the secon
third, fourth, and fifth avowries respectively mentione
under and by virtue of the several warrants there
al
268 CASES IN EASTER TERM
lSS4f» Matde for the plaintiffs in replevin. All the de-
^ ■ . murrers raise the question whether, when four separate
Bairol Poor warrants are granted at the same dme to distrain for
Wait* four Several rates respectively, to one of which the par^
distrained upon is not liable, and one distress is made
for all the rates jointly, such distress can be supported.
A single warrant to distrain for several rates, one of
which is illegal, is altogether bad: Milwardv. Coffin {a)*
That case is supported by Hurrell v. Wink (6), in
which last case Forty v. Iniber (c), and Patchett v. Ban-
croft (rf), were cited. Forty v. Imber (c) decided that a
party might support a cognizance made for rent due
for a specified time, by a proof of rent due for a shorter
time ; and Patchett v. Bancrojt {d) decided that a single
distress warrant might be given for the aggregate of
taxes due under different acts of parliament ; neither of
which points is at present disputed. It is true, also^
that a party may, on distraining, assign one cause, and
may afterwards avow for another; for he is not to be
bound by a mistake in the account which he may give
of the transaction at the time, if he have good authori^.
But here the party admits on the record a joint distress
for all the rates ; and, after that, he cannot be suffered
to separate his defence by referring it to several distinct
claims. The fact of four warrants having been given,
is not inconsistent with the distress being made for a
single claim. Besides, if the four warrants justified a
single distress for all, the distress is joint, and the case
is the same as if there were a joint warrant : but if they
did not justify a joint distress, then the present distress
is not justified at all. The doctrine that a party may
(a) 2 W, BL 1330. (6) 8 Taunt. 369. S. C. 2 B. If. 417.
(c) 6 Edit, 434. (rf) 7 r. R. 367.
distrain
IN THE Fourth Year of WILLIAM IV. 269
distrain as for one cause, and avow for another, may, 1884.
perhaps, be considered to have been somewhat qualified ^ ^
\ GoTcrnow of
in Lucas and others v. Nockelk. That case was de- Bwotol Poor
cided on error in the Exchequer Chamber (a) and in the Wait.
House of Lords (£) ; and on both occasions it was held,
that die defendant having justified a seizure under a
& &., and the plaintiff having replied de injuria, the
Utter might prove at the trial that the goods were not
bona fide taken under the execution, and that the
execution was colourable. In the present case, the
question turns upon the distress being joint, not upon
the warrant being joint or otherwise ; for the owner is
entitled to an opportunity of redeeming all his property,
by satisfying tlie claim for which the distress is made,
which here he could not do, without paying the illegal
rate U^ther with the legal ones, whether there were
one or more warrants. A joint distress for rent due
upon two distinct demises of different premises cannot
be justified : Rogers v. Birkmire {c).
TMett for the defendants in replevin. First, the
proper remedy for the plaintiffs was by appeal to the
sessions* The record shews that the plaintiffs are oc-»
cupiers within the parish, who have been rated partly
for premises within, and partly for premises not within,
their occupation. Therefore the justices had juris-
diction, and the only question is as to the excess, which
is matter for an appeal, not for an action of replevin :
Marshall v. Pitman (d)^ Replevin lies where the party
is not liable to be rated at all, and so does trespass :
(o) 4 Bmg. 729. (b) 1 0 Bing. 1 57.
W Ce, r. Bardw. 245. S. C. 2 Sir, 1040. {d) 9 Bmg, 595.
Weaver
270 CASES IN EASTER TERM
1834. Weeroer v. Price {a). [Patteson J Suppose a person
^_ " - be rated in a parish in which he resides, the whole ol
GoTvniors ox
Bristol Poor the property for which he would be rateable lying
Wait. where, do you say that his remedy is confined to
appeal ?] That case would not answer to the criterioir::^!;
suggested, which is the occupation of some
within the parish. [Lord Denman C. J. Then you di
not insist upon the right of appeal precluding the otfae.'v .
remedy; for a person might appeal against a rat^ L
although he neither resided nor occupied property ^
within the parish in which he was rated.] He might \
then adopt either remedy. But if a single distress were
put in for a rate in respect to property, of which put
was within and part witliout the parish, the remedy
would be confined to the appeal.
Secondly, this is not a wrongful distress, since it is
good as to three of the rates : the only question is,
whether more was taken than those three warrant
Suppose a distress made for a rent and a heriot; an
avowry for the rent alone would be good ; for a distress
is not invalid where a right exists to take anything on
the premises. [Taunton J. The objection here is, not
that too much is taken, but that the taking is under
too many warrants, one being bad.] The distress, if
otherwise good, cannot be invalidated by the circaoH
siance thai there was one bad warrant. Milward v.
Coffin {b) differs from the present case, for there no
warrant entirely good existed. With respect to Rogers
V. Birkmire (c), it is not contended here that a distress
can be made upon one close for rent due on another
close separately demised. [Lord Denman C. J. There
(a) 3B ^ Ad. 409. {b) 2 W. BL 133a
(«) Ca, T, JIardw, 245. S. C 2 Str, 1010.
272 CASES IN EASTER TERM
1834« warrants which gave them a right to seiz^; the plaintii
^ . allefi:e that the seizure was for four rates, one of whicij
GoTernon of °
Bristol Poor was wrongful; and then the defendants set out the whoK.«
Wait. of the circumstances. But the introduction of this fourt:2i
rate by the plainti£& cannot alter the right upon whicb
the defendants ground their pleading. ^Patteson J. You
say that your general avowry is the same in efiect as
if you had pleaded the three good warrants, and tbat
they have no right to put the fourth upon you, Tatar
ton J. And that in this^ which is an action of re-
plevin, the only question is, whether any thing was
due in respect of which you seized. That is your strong
point.] That is so. It would have been no answer on
the part of the plaintiffs to say that the defendants came
in to seize under three good warrants, but produced a
fourtli which was bad. If they then relied on the bad
warrant, it is well established that a legal authority is
not vitiated by what the party executing it says at the
time. The defendants do not justify under the bad war-
rant, and the introduction of it by the plaintiffs cannot
make it part of the justification. It is sufficient if the
defendants now shew in their avowry any right to enter
and take. That a separate demand was made of each
rate (which, according to Hurrcll v. IVink (a), is neces-
sary) is admitted on the pleadings; as to so much, there-
fore, of the distress as relates to the undisputed rates,
there is no objection ; and if a man avow for divers
causes, and any one be found for him, he shall have a
return ; Roll. Abr. Replevin, M. pi. 4, 5, 6. 8. Syliard v.
{b) is to the same effect, and the principle was acted
upon in Miller v. Green (c). By stat. 17 G. 2. c. 38. s. 8.
(a) 8 Taunt. 369. S. C, 2B, M, 4)7. (6) 1 BuUt. 101.
(0 8 Bing. 92. 2 Cro. ^ Jer, 1 42 S. C
(which
IN TH£ Fourth Year of WILLIAM IV. 27$
(wbich extends to overseers the protection given to land- 1884.
lords by 1 1 G. 2. c. 19. s. 19.) it is enacted that no dis- ^ ,
•' Gorernora of
trws for a poor rate justly due shall be deemed unlawful, Beistol Poor
agaimt
nor the parties distraining trespassers^ on Recount of any Watiw
or want of form in the rate, assessment, or war-
nuit of distress, nor shall the parties distraining be
deemed trespassers ab initio for any irregularity after-
virds done by them, but the party aggrieved by such
irregularity may recover satisfaction for the special
dunage in an action of trespass or on the case. The
judgments of the Court in Sturch v. Clarice (a), shew
that in the case of distress for a poor rate, where an
excess has been committed, something being due, the
lemedy can only be in respect of that excess.
yjode in reply. No authority has been pointed out
to shake the proposition established by Milward v.
Cb^ (6), that if a party is rated for premises in his
occupation, and for others which are not, the whole
nte may be treated as a nullity, and those who levy it
uegailty of an excess of authority, and must be deemed
to have entered as trespassers. Where a defendant in
trespass justifies under a legal warrant, and the plaintiff
allcjjes excess, it is replied, not new assigned. {Patte-'
toni, Milward v. C(iffin (i) does not go the length you
ooDtend for; the argument there only was, that if ope
warrant be made for levying a good and a bad rate, the
varrant is bad, and the distress cannot be supported.]
The consequence is the same, if there be one distress
for several rates ; it makes no difference whether the
p&rty act upon a warrant or warrants^ At all events
the case shews that the plaintiff is not confined to an
(fl) AB,i Ad, 115. (6) 2 W. Bl. 1330.
appeal.
274 CASES IN EASTER TERM
1834. appeal* It is true, as was said in Hurrdl v. ^iji£(aX
that one distress may be made for an aggregate d
BurroL Poor several rates ; but that is when all the rates are good
Wais. In Marshall v. PUman {b\ the plaintiff was an inhahitani
of the parish, and as such was rated ; he did in &cl
possess visible personal property there ; and the quesdoB
was, how much, or whether any, of such property wii
rateable as stock in trade. The objection substantiaDy
was, that he was over-rated, not that he was bqrond tlie
jurisdiction of the justices* It might turn out that IvB
rateable property amounted to nothing; but the com*
plaint was in principle the same as where an assessment
is made for property in a parish, one part of which is
liable, and another not. Wewoer v. Price {c) shews
that, if the party distrained upon has no land in the
parish, he may bring trespass ; but that does not prove
that if he had some land in the parish, and was iaip
properly rated for other land also within it, trespass
would not lie.
Assuming, then, that the present action is maintaiiH
able, the question is, whether the distress be supported
by the facts admitted on the record in the pleadings
on both sides. It is said that the original avowries
were unobjectionable, and were an answer to the action:
but the defendants having, in their replications, assumed
the state of facts introduced by the plaintiff in tfadi
pleas in bar, are not at liberty to say that this state
of facts is inconsistent with their avowries; for thai
would be to allege their own replications to be a depai^
ture from their avowries. In Mogers v. Birkmire (d)^
(a) 8 Taunt, 369. S. C. 2 B. Af, 417. (b) 9 Bing. 595.
(c) SB.i Ad. 409.
(d) Ca. temp. Hardw. 245. & C. 2 Sir. 1040.
the
IN THE Fourth Year of WILLIAM IV. 275
tbe defeDdant distrained goods in a house for rent of 1834.
the house, and also of a stable : he was entitled to ^ .
GoTeraon of
distnin for the rent of the bouse, and had therefore a BuAol Poor
againtt
good justification for all he did ; but, as it appeared on War.
the record that he did distrain for both rents, the
phiotiffhad judgment The action there was trespass ;
hot k fortiori replevin would have lain. [Lord Den^
MS C. J. There the objection arose on the avowry.
SnppoKf here, [the parties had gone to issue on the
Bitter stated in the avowry ; the only way in which any
itiegularity would have appeared would have been by
eiidenoe that the parties claimed to take under four war-
nats, one of which was bad. That would come within
the cttes which say that, where there is a legal authority,
ID improper claim made at the time of executing it does
not prejudice.] Here the objection is, not that the
defendiats stated at the time that which was no ex-
cose^ but that they, in fact, took for one cause, when
they were only entided to take for another ; and their
pleading shews it. Such takings are distinct things in
temin natura, as much as entering under a fi. fa, and
entering under a distress. When it is said, as in Butler
and Boko's case (a), that << if a man takes a distress
bf one thing, yet when he comes into a court of re-
oord he may avow for what thing he pleases," the
Qeamng only is, that, although he may profess to dis-
tnin for one thing, yet if he, in truth, had power at the
time to Strain for another, he may avow for that, and
tkall not be concluded by what he before professed.
In the Anonytnous case, Godb. 1 10. pi. 129., the proposi-*
tUNi is evidently so considered. The placita cited from
(a) 3 Jiep. S6. a. citiog M. 34. E. I. and Avowry^ 2JS.y referriog appa-
*^7 to FUnh. Jbr., Avowry^ 232.
Roll.
276 CASES IN EASTER TERM
18S4. RolL Abr.9 Beplevitij M., reduce themselves to an illn
^ ' - tration of the point, that where a man avows for rent di
Bristol Poor for several causes or on several days, if it be the sam
Wait. and not a distinct rent, the whole may be joined in oi
avowry. Syliard v. {a) only exemplifies the
principle. In Crowther v. Ramsbottam (&), the pleadii
did not put in issue the cause for which the defendai:
really entered : the plaintiff having by his replicatii
admitted the issuing of the writ of justicies, but answere
as to the rest of the justification, ^^ de injuria, absqo
residuo causae.'' That averment merely denies th
existence of the cause alleged on the record for whit
was done. It does not traverse the allegation, ** virM
cujus the defendant entered, &c.," which is not trih
versable in that form. There was nothing on the re-
cord, there, to raise the question whether the defendants
had exceeded their authority, or had not, in fact, acted
in execution of the writ. The case, therefore, goes nc
farther than to shew that a man, by having verbalH
alleged one cause, is not precluded from pleadiHj
another. [Lord Denman C.J. In Lucas v. NockeIb(c
where the writ was pleaded with a ririute ctipis^ and tb
plaintiffs, admitting the writ, replied de injuria, absque
residuo causes, it was held, that, under that plea, the;
might prove that the defendants did not in reality ac
upon the writ.] Where the plaintiff means to insis
that, in point of fact, the defendant was not actinj
under the authority pretended, but under a difi*erei)
authority, he may and ought to shew "that by hi
pleading. Thus, Lord Holt says, in Groenvelt v. Bw
'afeU{d), " Suppose there were two warrants, the on
(a) 1 StOst, 101. (6) 7 T. R. 654.
(c) 4Bing. 729. 10 Bing. 157. {d) 1 irf. Raym, 465-
goo
>
IV THE FOUBTH YEAB OF WILLIAM IV. 277
and the other ill, and the plaintiff had been ar- 18S4.
'Wasted upon the ill warrant, he ought to shew it ape-
• 11 99 XT 1 J 1 •<• 1 OoTcmon of
^naUy. He adds, that ir the party arresting had a good BfttnoL Poor
iwaiiant, though he had declared that he arrested on the Wait.
XDSofficient one, that would not preclude him from
jvBtifying by the other. That is not now disputed ; but
the plaintiff may shew that he did not arrest under the
legal warrant. IPatteson J. He could not allege that,
if the party arresting had both warrants at the time.]
Lmas ▼• NockeUs (a) seems to shew that he might.
That case clearly establishes that, in some way, the fiict
of a party having acted in execution of the author!^
under which he justifies, may be put in issue: the only
question in any particular case would be as to the
course of pleading. When a plaintiff in trespass replies
excess, that, in effect, denies the vitiute cujus. ^Little*
dak J. It admits the authority; that, therefore, does
Hot apply to the case where it is suggested that an
illegal and not a legal warrant was acted upon.] It
^iiews that he was not acting upon that by which he
Jtisdfies. In The Six Carpenter^ case (£), it is said that
*^ If the lord who distrains for rent, or the owner for
^ianiage feasant, works or kills the distress; or if he
'^rho enters to see waste, breaks the house, or stays
^tiere all night; or if the commoner cuts down a tree,
^^ these and the like cases, the law adjudges that he
Entered for that purpose." ILitlledale J. Still that
^>^tes to improper acts done under that by which the
party professes to justify ; it does not apply to an acting
under a different and bad authority.]
The proceeding on a writ of recaption is a case
vbere the intention with which a legal process was
W ABmg, 729- 10 Bing, 157. (b) 8 Rej}. 146. b.
Vol. I. U executed
278 CASES IN EASTER TERM
18S4. executed may be, and necessarily is, enquired into; an<
_ ^ where a party may be liable to an action for doing whs
Bmutol Poor he had a lawful authoriqr to do, if he did it not undc
ngqiiui
Wait. that authority, but in the exercise of an unlawful dain
The plaintiff in that form of action complains that hi
goods, which had been distrained by the defendant, an
replevied, have again been distrained by him for the sam
cause : and Lord Hale in a note on Filzherberfs Natitr
Breviumy p. 72. tit. Becaptiorij says, *^ That where tfc
lord in a replevin avows for one cause, and justifies th
recaption for another cause, the plaintiff may aver that tb
first caption was made by him for the same cause as tb
second." And in BuUer^s case {a) the defendants mad
cognizance as bailifis to A. for a rent ; the plaintiff re
plied that two strangers had a right of entry into th
place where, &c and the defendants by their commam
entered and took the cattle damage feasant, absque hoi
that they took as bailiffs to A. And upon demurrer,
being objected ^^ that by this means the intent of th
party shall be put in issue, which no jury can try bi
only in case of recaption," the traverse was held to t
well taken. There two supposed authorities appearec
the one alleged by the defendants, the other by th
plaintiff; and it might have been contended, as it is b
the defendants here, that the latter authority was on
put upon the defendants by the plaintiff. The sam
argument might also have been used in the case on tfa
writ of recaption. IPatteson J. The replication thei
is a mere repetition of the writ. Nothing is put upo
the defendant. Littledale J. In Bullet's case (a), tl
taking by the defendants as bailifis to A. was traverse
with a special inducement; but that inducement mac
no difference.]
(a) 19 Viti* Abr, Rej)ievin, £. a. pi, 7.
]
IK THE Fourth Year op WILLIAM IV. 283
18S4.
The Kino against The Lord of the Manor of
OuNDLE, and his Steward.
"UANDAMUS. The writ, after reciting that the Copyholder in
<i*l fee, sumoden
manor of Oundle in Northamptonshire was and to such uses as
- . - o a_ 1 i 1 . >f. shall •ppoir.t,
trom time whereof, &c., had been an ancient manor and in default
wherein copyhold estates had been conveyed by sur- sJch appoint-
wider, went on to state, that on, &c., Richard Ragsdell ™^°of!^.*in
was duly admitted tenant in fee-simple to certain copy- ^^' -^•»'^^
^ ' *^-' out having
bold premises within the manor, and paid his fine and been admitted,
... . appoints. The
did the services, and thereupon became entitled to appointment is
i . , . ■ go<»^ eiecu-
coQvey the said premises to such person or persons as tionofthe
•boold be willing to become tenants ; and that, on the titles the ap-
81it of December 1830, he surrendered the premises Jdmit^as
wt of court, according to the custom, " to such uses, tS^^tyh^^^
upon such trusts, and to and for such ends, intents, and ^^'^ continues
■^ ' ' ' tenant to the
purposes, and with, under, and subject to such iiowers, lord till some
■^^ •' ' one is admitted
Provisoes, declarations, and agreements, as Thomas Daw^ under his sur-
render.
<M by any deed or deeds should direct or appoint, and Where, on
in default of and until such direction or appointment to mandamus (to
tbe use and behoof of the said Thomas Dawson, his i,oiid*er),^°con
hdre and assigns for ever. And that afterwards, to Scd!**^^"
wit, on the 22d day of the same month, the said Thomas the return, on
•^ ' argument, held
Dawson^ in exercise and in execution of the power and sufficient in
]a«r, and a |>eo
aothority vested in him under and by virtue of the said rempiory man-
. . . 1 J i» damns awatdtd,
last mentioned surrender, did by a certain deed of ap- the Court will
pointment duly signed, sealed, and delivered, direct and instance of the
party making
»ch return, direct the prosecutor to demur, in order that the case may go to a court of
Qnwre, Whether, by the sUt. 9 Ann. c, 20. t, 3., the return to a mandamus can be
dnmntd to.
U 4 appoint
IN THE Fourth Year of WILLIAM JV. 285
ike lord, according to the custom of the said manor. 1834.
The retnm then, after stating that the premises men« -««— —
Tlie Kiwa
tiooed in the surrender were those referred to in the against
^ proceeded as follows : - " And we further certify, ^\^
&&, that the said Thomas Dawson in the said sur-
reoder named is still living, and hath not as yet been
admitted or claimed to be admitted to the same copy-
hold hereditaments and premises as the tenant thereof^
porsiiaDt to the said surrender or otherwise; that the
Slid surrender hath not to our knowledge or belief been
in any manner vacated or become void, but that the
ame still remains in full force and virtue, and that no
sorreDder by the said Richard RagsdeU^ or by the s^d
Thmiu Dawson^ of the said copyhold hereditaments
and premises, to or Tor the use of the said John Pruday^
hath ever been presented or made known unto the lord
of the said manor or his steward, whereby or by virtue
whereof the said John Pruday hath or could become
entitled to be admitted to the said copyhold heredita-
ments and premises as tenant thereof, as in the said writ
is meationed and supposed. And for these reasons,"
&C. A concilium having been moved for, the case
came on in the crown paper in Hilary term lasty and
VIS argued (a) by
W. Hayes for the prosecutor. The appointment exe-
cnted by Dawson conformably to, and immediately after
the surrender, gave Pruday a complete title to be ad-
mitted : it was not necessary that Dawson should have
been admitted to render his appointment valid. It will
be contended, on the other side, that a surrender is a
(•) Before Lord Denman C. J., Littledale, Tauntorh and PaUeson Js.^
AMwvySSd.
common
286
CASES IN EASTER TERM
1834^.
The Kino
ognmst
The Lord
of the Manor
of OUNDLIU
common law conveyance, and must follow the rules
the common law. [Sir J. Campbell, Solicitor-General ^
who supported the return, said he should concede that^
if Dawson had had a naked power, the prosecutor would
have had a right to admittance, though Dawson hnd
not been admitted ; but he meant to contend, that in-
asmuch as Dawsoti had an estate as well as a power, his
admittance was necessary.] That makes no difference.
In the case where a copyholder surrenders to the use of
his will, and afterwards by his will directs that his
executor shall sell, with power to his executor to ap-
point in favour of a purchaser, the purchaser would be
entitled to admittance on the executor's appointment,
though the executor himself had not been admitted.
That case is like the present, where the surrender is to
such uses as the surrenderee shall by deed appoint; and
it makes no difference whether the use, in default of such
appointment, be limited to the surrenderee, or whether
no provision be made in case of default. The appointee
of the surrenderee is entitled to be admitted, like the
appointee of the executor. [Tauntoti J. The executor
has a mere power.] The question which arises is the
same. The copyhold, after surrender, must be in
some one. The lord is not prejudiced, for the sur-
renderor continues tenant till some one else is admitted ;
and while there is a tenant the lord cannot insist on any
other person being admitted. The use, also, in default
of appointment would continue to the surrenderor, if^
no provision were made respecting it in the surrender.
{Patteson J. The limitation here to Daw^ is not
only " in default of," but " until," appointment.] Thfe
words have precisely the same effect. It was a sur-
render to the use of Dawson in fee, pending the appoint*
ment;
of OVMDUC
IN THE Fourth Year of WILLIAM IV. 287
ment; the surrenderor continuing tenant till another 1884.
was admitted. Where there is a limitation to the use
The King
of a party, with power to him to appoint, it is im- agamai
The Lord
material whether the power stand before the limitation, of the Manor
as here, or after. All powers of appointment are
powers of revocation; the appointment must defeat
iome estate; the estate cannot have been in abeyance.
In Boddington v. Abemethy (a), freehold estates were
lettied to the use of W. 22. and to other uses, and copy-
bold estates were surrendered to the uses of the same
letdement The deed of settlement contained a power
to revoke, determine, and make void the uses, estates,
trusts, powers, and limitations therein contained, and
that power was acted upon by a subsequent deed, re-
looking the uses to which the copyholds had been sur-
nndered, and limiting and appointing the same to other
uses; and these latter uses were held good, although
tbej defeated the prior vested estates. That case goes
the whole length of the argument for the present pro-
iecator, and even farther ; at least it shews, that if the
Appointment in a case like this be well made, the limit-
ation in deianlt cannot give any right to be admitted.
A power is in the nature of an executory limitation : i^
therefore, the return in this case be maintainable, it
nay be contended, that on a limitation of copyhold to A.
io fee, and if B. return iTom'Some, to B. in fed yet, if
A returned from Bome^ A. would be the person to be
admitted on J3/s return, if he had not already been so.
It makes no difference that the contingency, as in the
present case, is something to be done by A. The argu-
iDent on the other side would be, that wherever there is
(a) SB.^C, 776.
a limitation
288 CASES IN EASTER TERM
1834. a limitation in fee^ with a shifting limitation engrafted
«. J- on it, the person to whom the first limitation is made^
jy^y^ must, in the first instance, be admitted. [Zitt/^
of Um Manor dale J. Suppose Dawson had made no appointmait,
but had come in and been admitted, and had held for
several years as tenant. If he had afterwards wished to
sell, could he at once have executed the power, or
must he have surrendered ?] When he executed the
power, the effect of his previous admittance would havt
been defeated, and the appointee would have had so
immediate right to be admitted. Boddington v, .^fi«r-
netiy{a) decides that. \Taunion J. If Damom had
been admitted and not made any appointment, had not
he such an interest as would have descended to his
heirs, and given them a right to admission ? Then he
bad an interest as well as a power, after the surrender
by Re^sdelL] Whatever might have been the case in
the event supposed, the appointment here was made^
and gave the use a different direction; thb question,
therefore, does not arise. Here are a valid power and a
valid execution : as soon as the appointment was made^
the original surrender became a surrender to the use of
the appointee in fee ; as in the case of a freehold estate,
where the fee is conveyed by deed subject to a power
of appointment, on the execution of such power the
freehold vests by relation back to the deed. Here^
upon the appointment made to Pniday in conformity to
JRagsddTg surrender, the intermediate interest of Dam-
son was struck out, and the whole right vested in the
appointee. Either the appointment is not good at all,
or it is good for this purpose. The use, to which a
(a) 5 B. ^ a 776.
of Ovuatc
IN TH£ Fourth Year of WILLIAM IV. 2M
€0|iyliold is surrendered, is rather an equitable dian a 1834.
1^ interest ; the lord is, indeed, compellable to admits "
tmt the person to whose use the surrender is has no agmui
legd estate^ though he has a legal remedy; and the ortheAfanor
fbnetion performed by the lord in admitting, is directed
hj the will of the surrenderor. ^ The lord is only as
sn instmment to conrey the estate, and as it were put
is trust to make such an admittance as he who sar-
raiderB would have him to make ;" BrooVs case («).
Sr J. Campbdlj Solicitor-General, contrii. The claim
BOW insisted upon would, if it prevailed, make an entire
change in the law as to admittances, for by surrender*
iDg to such uses as purchasers might appoint, a copy-
Md might be transmitted from one to another in-
Mnitely, without any of the parties being admitted.
[iRsttesofi J. It has been held that where a copyholder
ids to if., and A., before any surrender, conveys his
interest to J3., the original vendor may at once sur-
render to J3., and he may claim admittance, though
i.) the intermediate party, was not admitted : Bex v.
Th Lord cf the Manor of Hendon (£).] A., there,
never had a right to be admitted. The question here
i^ whether Dtmson had a mere power, or an interest
ilio. In the former case it may be conceded, for argu«
meat's sake, that he might appoint without being ad-
mitted, though Lord Kensington v. ManseU{c\ which
may be cited as to this point, is perhaps no authority
in a case where the power is to be executed not by
the 8arr«ideror himself, but by a stranger. But the
principle here relied upon on behalf of the lord is, that
(«) PopA. IS5. (6) S 7. R. 484. (c) IS Fef. Jon. S4a
there
IN THE Fourth Year of WILLIAM IV.
291
the same ground. Doe dem. Woodcock v. Barthrop (a) is
BO authority for the prosecutor. There, copyhold was
derised to A. and B. and their heirs, in trust to permit
If. to enjoy the same during her life ; and subject to
such estate, the premises were devised to such persons
as IL should by will appoint, and in default of appoint-
neDt, to jtf/s right heirs. The trustees were admitted,
but M. was not; and it was held that the appointee
Doder AT.'s will took a legal estate, though the trustees
liad Dever surrendered to the use of the will. But there
the Court considered that the trustees were tenants for
the life of M. ; that her appointee was entitled in re-
mainder, and that he, as remainder-man, was already
admitted by the admission of the tenants for life. [Z/tV-
Mak J. In the present case, Dawson^ if once admit-
ted, ooald only be got out again by surrendering; you
say that he must do that as well as appoint.] When
ODce in, he would be tenant in fee ; the mere appoint-
neot would be nugatory. \Taunton J. You say that
he has no more control with the power of appointment
than without it Littledale J. If so, there could be no
good power of appointment under circumstances like
diese. Taunton J. In the case of freehold, it was made
a question some years ago, whether the person who was
owner of the fee could at the same time have a power
of appointment over the whole estate, and it was held
that he might: Maundrell v. Maundrell (&). Patteson J.
The same doctrine was acted upon in Boach v. Wad-
(■) 5 7aim/.382.
(*) 7 Ve», jun. 567. 10 Veu jun. 246. See Mr. Butler'^ notes on
^ npon Uuletony there cited ; Co. Lilt. 21 6. a. note 2. S79. &• note I. :
I ^iiUa, note (4). See lee also Ray t. Pufig, 5 ^. j- Md. 561. And,
' « to the cast of Maundrell v, Maundrell, Sugden on Powers, p« 82. 5tb edit.
1834.
The Kino
agaimi
The Lord
of the Manor
of OOMSLV.
harrii
292 CASES IN EASTER TERM
1834. iam{a)f where an estate was conrqred to a trustee in
/ ~ fee to the use of such person and for such estate as W.
agamM should appoint, and, in deikult of such appointment, to
The Lord
of the Manor W. in fee, and it was held that an appointment made
by W. was an execution of the power, and that the
appointee came in^ paramount to, and not under, fF.
That is the point made here by the prosecutor.] Sudi
a mode of passing copyhold would be new, and de-
structive to the rights of the lord ; for, as was said in
Bex y. The Lord of the Manor of Hendon (6), a private
agreement between parties, not followed up by a sur-
render, could not give the lord any right to a fine.
Every purchaser, by means of such an instrument as
this, might obtain the dominion of the copyhold. In
Boddington v. Abemethy {c\ the question discussed was,
whether springing uses, to defeat vested estates, coold
be limited in a surrender of copyhold. The rights of
the lord were not in discussion there, for in that case
the first party who took the copyhold in pursuance of
the deed of settlement was admitted, and upon every
subsequent transfer there was a surrender and ad-
mittance.
W. Hayesj in reply. As to the supposed novelty
the conveyance of copyhold by surrender to such
as shall afterwards be appointed, the contrary is shei
in Sanders? s Treatise on Surrenders of Copyhold Properh/^^
p. fi5.^ where it is said, " In fact, on every surrender:^'
to such uses, as the surrenderor shall appoint, either
deed or will, and which in practice is of frequent
rencef the use to arise under the surrender is an use^
'commencing in futuro.'* And it is not there considered
(a) 6 JEatt, 389. (6) 2 T, R. 484. (c) 5 B. ^ C. 776.
material
^
of OtmoLB.
IK THE Fourth Year of WILLIAM IV. 29S
material whether the use in the meantime be in the 18S4.
sarrenderor, or in a donee of the power, or in a
The Knfo
stranger. The party to whom the use is limited in affdnst
defimlt of (or in default of and until) appointment, is of the Manor
entitled to admittance, but if admitted he is in subject
to the power. Maundrell v. Maundrell (a) shews that
the power is not merged in the fee, where they unite in
the same person. And the execution of the power so
entirely overreaches the intermediate use, that where
IB estate was conveyed to such uses as A. should ap-
point, and in the meantime to A. for life, after which a
jiK^ent was recovered against A.^ who subsequently
appointed, it was held that the creditor could not take
the lands under an elegit, his lien being defeated by the
execotion of the power : Doe dem. Wigan v. Jones {b).
{fatUson J. The judgment was not the act of the ap-
pointor, but a proceeding in invitum.] And, therefore,
H was held to fall within the rule, that when a power b
OecQted, the person taking under it takes under him
^ho created the power, not under him who executes it:
tlie only exceptions being, where the person executing
tie power has granted a lease or other interest, which
be may do by virtue of his estate, for then he is not
allowed to defeat his own act. And that would have
Ven so here, if Dawson had been admitted and had
surrendered to a purchaser. iLittledale J. If Dawson
^^ been admitted, and had not previously appointed,
do you say that he could have executed the power ?]
He could ; the use would continue directory to the lord
^ the execution of an appointment ; it receives no ap-
pGotion till then. [Patteson J. If Dawson were now
^ be admitted, he must be admitted to some estate :
(a) 10 Vet, jun. 846. {h) 10 B. j- C, 459.
Vou I. X then
of OVNDLX.
29i CASES IN EASTER TERM
1884. then what would there be to prevent his sarrenderin
' to some other person than the prosecutor?] If I
The Slmo
againti were now to be admitted* and not the prosecutor,
of the Manor would be difficult to say how the legal estate could I
got from him, and to the prosecutor, so that thei
should be an execution of the power. As to the o1
jection that Dawsorif according to the present argumen
would have had the entire dominion of the copyho
without being admitted, he could have no legal dominu
till admittance ; he would only have the use as limiti
for the purpose pointed out in the surrender to hii
and the right of compelling the lord to admit. Beal
Shepherd {a) is in favour of the prosecutor, for it w
held there that, on the execution of the authority i
the wife's attomies, the vendee was in by the will,
the uses of which the husband had surrendered, ai
that no further surrender was necessary, notwlthstan
ing the intermediate life estate which had vested in tl
wife. [^TAe SoUdtoT'GeneraL Suppose Dawson hi
been admitted in fee before appointment, and he hi
then executed the power in favour of the prosecutoi
it must be contended that in that case the prosecut
would have been in under the original surrender. TIm
all that had been done in the mean time is to be coi
sidered as avoided ; which appears an absurdity.] Tl
same difficulty might be put in cases of freehold limi
ations. But when it is said that the execution of t
power relates back to its creation, it is not meant th
the party who comes in under it is in, in point of tin
from that period, but that he is so in point of 1^
effect : there is a change of title as from that time.
Cur. adv. vi
(o) Cro. Jac» 199.
LOJ
^
IN THE Fourth Yeah of WILLIAM IV. 295
Lord Denman C.J. in this term {April 22d) de* 18S4.
livcred the judinnent of the Court.
•^ " The KiHo
The case of The King v. The Lord of the Manor of against
Omdle arose on the return to a writ of mandamus issued of the Manor
at the instance of John Pniday^ to compel his admission
to certain copyhold hereditaments. The writ set forth
that one Ragsdellj being seised of them in fee, surren-
^red them to such uses as one Dawson should by deed
direct and appoint; and in default of and until such
Section and appointment, to the use of Dawson in fee ;
<nd that Dawson did afterwards, by deed, direct and
appoint that the said premises should remain to the use
^iPrudajfj who thereupon became entitled to be ad-
mitted. The return introduced no additional fact, but
sdted, by way of observation, that Dawson had never
beeD admitted, nor had he or Ragsdell ever surrendered
the premises to the use of Pruday.
And whether such admittance and surrender was
necessary, was the question argued before us; Pruday
diiming to be admitted as the person to whose use the
wnender by Ragsdell enured by virtue of the deed of
ippobtment executed by Dawson^ while the lord con-
tended that, as Dawson took not only a power of ap*
pobtment, but also an interest in the mean time under
tbe surrender by Ragsdell^ he ought to have been ad-
Butted and paid his fine, before he could by deed
i|^int to Pruday.
The application to copyhold property of the general
doctrine, that an appointee under a power takes by the
iostniinent creating the power, and not under that by
vluch the power is executed, was not disputed; nor
^ts it denied that trustees with a mere power to sell
vere not compellable to come in as tenants, in con*
X 2 formity
of OVXDLI.
296 CASES IN EASTER TERM
ISSi. formity with Beal v. Shepherd (a\ Holder denu Sufya
agnmi . But a distincdon between those cases and the presc
TheLoid
of th« Manor was stroDgly insisted upon ; for, here, Dceason was i
a mere trustee to sell, but was surrenderee in fee 1
his own benefit, until and unless he should make
appointment: that event might never have happem
and, at any rate, without his being admitted, his inten
could not be transferred to Prudm/.
But it appears to us that these premises may be a
rect, without leading to the conclusion. The lord ne^
is nor can be for one moment deprived of a tenantf ^
the estate must always be in some person.
In the two cases above cited of trustees to sell, witho
an interest, the estate was not in abeyance till sale^ b
remained in the heir of the devisor, which heir the lo
might have compelled to be admitted, if the sale w
not made in reasonable time : but when such sale w
made, the purchaser was entitled to be admitted und
the surrender to the uses of the will, just as if he h
been a devisee named in it.
So, here, liagsdell remains tenant to the lord un
some person is admitted under his surrender. 1
doubt Dawson might have declined to execute any de
of appointment ; and if he had declined, he could m
without admittance and surrender, have passed his i
terest to another ; but as he has chosen to execute
deed of appointment under the power, his appoint!
the present applicant, takes nothing from him, b
becomes the surrenderee of Ragsdell, just as if he k
been named in the surrender.
(a) C/v. Jac. 190. (6) 2 Wilt, 40a
^
IN THE Fourth Year of WILLIAM IV. 297
Itfoflowsthat be is entitled to, be admitted witbout 1834.
's baving been admitted, and that a peremptory
of OaiTDLB.
The KxMO
ixmndamiis must issue. agama
The Lord
IVhat tbe effect of Dawson's being admitted migbt of the Manor
mwLWt been, is a question wbicb we are not required to
determine. ^
Peremptory mandamus awarded.
Od a subsequent day of this term, Sir J. Campbell
(Attorney-General) and Saxinn moved for a rule to
diev cause why tbe following order should not be made;
m. that the prosecutor should demur to the return,
ttd the defendants forthwith join in demurrer, and judg-
nent thereupon be entered on the record that the said
nburn should be quashed for the insufficiency thereof
nd a peremptory writ of mandamus awarded. They
itited that the defendants would consent that judgment
ibould go against them on the demurrer without argu-
ment, the object of this application being, that the ques-
tioQ discussed upon the return might be carried before a
court of error, which, at present, the parties were pre-
dflded from doing. [Lord Denman C. J. asked if there
vere any instance of a par^ who had obtained judgment
QD a concilium, being afterwards obliged to demur.] It
ii only since the act 1 fT. 4. c. 21. s. 3., that the pro«
▼iiions of 9 Ann. c. 20. s. 2. have been applicable to
writs of mandamus in general. The present case, there-
fare, is not likely to have occurred. [Patteson J. The
iUtnte of Anne says nothing of demurring to a return.
It seems to leave the old practice of moving to quash,
18 it stood before. Parke J. You will consider whether
ym would be in a better situation by demurring.] The
^Wt then granted a rule nisi ; against which,
X 3 Plait,
19B CASES IN EASTER TERM
1884* Plattf on a subsequent day of the term {May Stb)f
' "■ shewed cause, and contended that the lord, havinir been
agahut by peremptory mandamus commanded to admit the
The Lord
of tbe Manor prosecutor, could not now get rid of the judgment oi
the Court by an application like the present
Sir J. Campbell^ Attorney-General, and Swann contrd.
The effect of stat 1 W.^. c. 21. was to put all writs of
mandamus on the same footing as those relating to die
offices which are regulated by 9 Ann. c. 20.; and the
object of this latter statute was, Uiat a party dissatisfied
with the judgment of the Court below, might obtain that
of a court of error. [Lord Denman C. J. If he put the
case in the proper train.] Formerly, the remedy, in
case of a refusal to admit, was in equity ; and there the
party might have had an appeal : it would be hard i(
under the statute of Anne^ as extended by that of W. A.>
he should not have the same redress. Before the statut
of W. 4. was passed, the Court, in a doubtful case oft!
present description, would not have granted a perempto
mandamus, but would have let the parties go into equf
It is true that demurring to a return is not expre
mentioned in the statute oi Anne ; but it is said that
9
prosecutor may ^^ plead to or traverse all or any o
material facts contained in the return : " he may, t
fore^ plead that they do not amount to a sufficient t
in law ; and a substantial demurrer would be an if
plea, within the meaning of a judge's order. \_Pat
The original practice was, that the party object
return made an application to the Court to i
which was in the nature of a demurrer : if sv
cation was rejected, a peremptoTy tnaudamus
there could be no proceedvug \n error. Th'
IN THE Fourth Year of WILLIAM IV. 299
Ame does not remove any difficulty in that respect] 1884*
Incases under that statute there could have been no — —
The KiMO
remedy in equity. [Patteson J. Is there any instance a^nu
The Lord
uo which this Court has refused to carry its own judg^ of the Manor
ment into execution ?] This is an experimental sur-
render. [Patteson J. The same question which it
nises, or nearly the same, has been very much dis-
cussed, in treatises and otherwbe.] It must be ad-
mitted that there would be a difficulty in forcing the
prosecutor to demur* [Littledale J. The concilium is
the usual mode of demurring in such cases. Patteson J.
We considered it as equivalent to that, in Bex v. 7%^
•Mayor and Aldermen of London (a), where the pro-
secutor having moved for a concilium, and so obtained
judgment on the validity of the return in law, the Court
held that he could not afterwards traverse the facts con-
Uinedin it.]
The Court (fi) discharged the rule with costs (c).
(«) 3 J9. 4* jid, S75. See alsoi as to the practice of diicmning the
^alidi^ of a return on a concilluin. Rex t. The St, Katharine Dock
Ctrnfoi^ 4tB.iAd. 360.
(() Lofd Denman C. J., IMtledale, Pattesorh and ffHUanu Ji.
(c) In tXie next term, Piatt, on behalf of the prosecutor^ moved for the
coitaof the mandamus, pursuant to 1 IT. 4. c. 21. s, 6., but the Court
(lifltd Demman C J., Iditledale, TaurUon, and Williams Js.) refused the
•nJifition ; and Lord Denman C. J. obsenred, that the granting of costs
waa cntirelj in the discretion of the Court, and the case had been much
\OQ donbtlbl a one to warrant their doing so in this instance.
X 4
IN THE Fourth Year of WILLIAM IV. 801
said Mary Shaw for and during the remainder of the term 1 834.
of jears therein then to come, in case she shall so long
live therein, and remain the widow of the said James Shaw
against
SJkaw and unmarried, and from and after her decease Stswaeo.
or marriage as aforesaid, then I give and bequeath the
same premises unto all and every the lawful children of
the said James Shaw which shall be then living, to hold
the same unto them, their executors, administrators, or
assigns, as tenants in common, with benefit of sur-
vivorship."
The testator died, leaving the said James Shaw and
May Shaw him surviving; whereupon the said James
SuoDf with the assent of the executors, took possession
^ the bequeathed premises, and continued to reside
thereon till November 1818, when being in insolvent
circumstances, he quitted the premises and went to sea,
leaving his wife and family on the premises ; and she
coodnued to reside and carry on the business during
Us absence, which was about six months.
A commission of bankrupt, dated 24th of December
1813, was issued against James Shaw, soon after his de-
partore, and the usual assignment executed. After the
tttoing of the commission, Shaw returned and resided
with bis wife and family on the premises, and continued
to carry on the business there till the sale thereof was
Spieled by the assignees, when he and his wife were
toned out, and the vendee, under whom the defendants
claimed, look and retained possession. On the 4th of
^i^tttf 1831, Shaw died, leaving his widow, MaryShaWj
the lessor of the plaintiff, him surviving. On the 9th of
the same month, Mary SAaw^ the said widow, who then
was and from thence hitherto hath continued unmarried,
demanded
S0« CASES IN EASTER TERM
1834. demanded possession. This case was argued in last
Hilary term (a).
Shaw
SriwAKD. Piatt for the plaintiff. The question is, whether the
interest, which the lessor of the plaintiff took under the
will of the testator, passed to the assignees of her late
husband on his bankruptcy. Assignees of a bankrupt
take by the assignment only such interest in lands, &c.
as the bankrupt ^^ may lawfully depart withal ;" that is,
by his own act The wife's interest here was not of that
nature. He could not have reduced it into l^al pos-
session. The contrary might, indeed, be inferred from
Co. Lit. 46. 6., where it is said, that if a roan be pos-
sessed of a term for forty years in his wife's right, and
make a lease for twenty, reserving rent, and die, the .
husband's executors shall have the rent. But in £i«iu's4
case, cited by Lord Hale in his note on this passagCi^
the decision appears to have been otherwise. It i
further laid down in Co. Litt. 46. 6., that *< if a lease
made to a baron and feme for term of their lives, th».
remainder to the executors of the survivor of them, th» j
husband grant away this term and dieth, this shall no^
bar the wife, for that the wife had but a possibility, an» j
no interest" In the present case the wife had but
possibility, Matthew Mannings case(i), and the husj
band could not dispose of it. In Anmer v. Lodington{(r:^
a termor left by will his lease to his wife during her lif73
and after her death, <^ to her children unpreferred." Z
was held that this was a possibility in the children, ai
(a) January S4th and 25th. Before Lord 2>^nman C. J., LUtieiim^
Taufdont and Patteton Js.
(b) 6IUp,95.a.
(c) 8 Stp, 96. 6. 2 Leon* 92. 3 Leon, 89.
that
504 CASES IN EASTER TERM
ISSi. Skaafs absence from the premises was not a ceasbg to
_ ~ inhabit He personally withdrew for a few months, but
I>OB dOB. * "
Shaw his family remained ; and the testator could not mean to
SnwAEoi. debar him from leaving the place, animo revertendL
The inhabitancy by him, during the whole time, would
have been sufficient for the purpose of parochial settle-
ment* His being insolvent when he departed makes no
diflference, as it is not stated that he went without in-
tending to return. Supposing that a forfeiture accrued^
the parQr interested was not bound to enforce her right
It must be argued for the defendants, that the wiGe^s
continuance on the premises, after Show went to aoL
was an entry on a forfeiture. Her entry, for any foe
feiture by him under the will, would have this absun
consequence, that the estate, becoming forfeited to hes
would immediately vest in him, and he would thereta
gain such an estate as would pass to his assignees; whic
is plainly contradictory to the whole intention of tM
will. [^Denman C. J. Can a wife take advantage of
husband's forfeiture?] And can the husband
take advantage of it in consequence ? It is like obli
and obligee being the same person. The only w
therefore^ in which this bequest could consistently
effect, was, that the wife's interest should continue
possibility till the death of the husband, and then, sa
not sooner, become vested. The taking of the prem y^
by the assignees, when Shaw and his wife were turxK
out, being in invitum, cannot be continued as a ^^ gi^'^
up the possession " within the meaning of the will.
Sir J. Campbellf Solicitor-General, contra. It is not
disputed that this was an executory devise, and that tbe
husband, the first taker, had no interest beyond his own
life-
IN THE FouETH Year OF WILLIAM IV. SOS
life. Itis also admitted, that unless the interest in question 18S4.
was sDch as the bankrupt himself could have assigned, it
DoK dcm.
did not pass to the assignees. But the husband himself Shaw
ooold have assigned it. First, his estate had determined, BnwAta>.
sod the wife's had vested in possession, not on account of
foftitare, bnt because the estate was held under a con-
ditiooal limitation, and was determined by the condition
iappening. There is no objection in law to an agree-
neot between landlord and tenant, by way of condition,
duty if the tenant cease to occupy personally, the lease
ihall determine. The very case is put by BuUer J. in
Jfaf dem. Hunter v. GaUien (a). And similar terms
au^ be annexed to a devise. By this will, then, as
nan as Shaw ceased to reside, his estate determined,
ad the wife's vested. A constructive residence was
BoteoDtemplated, for the will provides that, if the pre-
miiei oome to the wife by the husband's non-residence,
Ae diall hold the same for the term ^< in case she shall
V long live therein." It is not found in the case that
^llsband went away ** animo revertendi." \Taunr
mJ, The wife remained and carried on the business.
It ii not found that he went away on account of in-
Kliency. Uttledale J. The question is, whether the
vife*! was not such an interest as a court of equi^
vwdd consider to be vested to her separate use. If so,
^ assignees could not be entitled, for they can only
tib what the bankrupt may legally and equitably as-
>gn*] The husband, on quitting possession, ceased to
We any interest; the whole was in the wife. And if
were not so, the same consequence would have re-
(a) 3 T. i2. 140.
suited
S06 CASES IN EASTER TERM
1884. suited when the assignees sold the property^ an
husband and wife were turned out of possession. [
Dot dcni*
Shaw ton J. Suppose the assignees acted wrongfully o
Srwaeo. occasion.] Whenever the husband's estate deten
an estate became vested in the wife in possessioi
was, consequently, liable to be disposed of by I
signees. If his non-residence determined it, i
already vested in the wife at the time of his bankr
and was therefore available as part of his estate
did not then determine, it was in the husband wl
became bankrupt; then the assignees were entit
aeize it; and upon the husband being put onto
aession^ it vested in the wife, and thereby again b
part of his disposable estate. iPatieson J. Yot
assume that the case was not one in which equity
interfere.] Then, secondly, supposing the estate
husband was not determined by the events relied
this was an interest of the wife which he might ]
A possibility that may vest in the wife during covei
assignable by the husband ; though the law is oth
if it cannot vest till his death. Possibilities pass
assignment in bankruptcy: Higden v. Williams
Here the husband had a life estate determinal
events which might happen during his life, and
which would be the commencement of an estate
wife. There are many cases in which, even wl
term is held in trust for the wife, the husband mi
pose of it JiTauntan J. Several instances are gi
Com. Dig. Choficery, 2 M. 9.] Some of the pr
authorities are Sir Edward Turner's case (6), j
{m) 3 p. Hms. 132. (6) 1 rem. 7.
IN THK Fourth Year of WILLIAM IV. 307
^Jiuni{a), Tudor v. Samyne{b\ and Bates v. Dandy {c)^ 18S4.
irhere Lord Hardvncke says, " that as the husband
Dox dam.
may assign the wife's term, so he may the trust of the Shaw
wife's term, unless it be the trust of a term from him for Sikwarb.
the wife's benefit" [Taunton J. The present case goes
a step farther than those; granting that the husband
may assign, hece he has not done so ; but the question
is, whether his assignees may.] The case is not within
the exception stated by Lord Hardwicke. In Dalbiac
y.Dalbiac{d)f Sir WiUiam Grant admitted that an in-
terest of the wife, which could not fall into possession
doring the husband's life, was not assignable by him ;
but he said it would be otherwise if it depended upon an
event that might happen during his life. And in Mit"
fatd V. Mitford (^}, the same learned Judge, after ob->
sertiog that the wife's choses in action, not reduced
ioto possession by the husband, survive to her, and that
tbe same rule prevails as to interests in equity, proceeds
tossy : — '* But there are some legal interests, which do
not admit, or stand in need, of being reduced into pos-
8es8k>D ; being in possession already, and not lying in
action; as terms for years, and other chattels real; of
thid) the le^al title is in the wife. They will survive if
DO act is done by him : but he may assign them ; which
pisses the legal interest, whether with or without con-
lideraUon. The analogy is followed in equity." Mr.
Atffer, in his note (I) on Co. Litt. 851. a, lays it down,
tUt contingent interests of the wife may be disposed of
by the husband, provided the contingency be one which
(o) I Venu 18. (6) 2 Vem. 270.
10 3^.207. Notes to Purdeto v. Jackton, 1 Ruis* 35., and Hm^
^^'UfifimifSRuiu 72.
[^ 16 Fes. Jan. 122. {e) 9 Vet. jun. 98.
may
308 CASES IN £AST£R TERM
1834. may happen during his life; and he refers to ma
_ 7" authorities. As to the dicta and cases cited on the oti
DoKoem*
Shaw side; the passage from Co. Litt.M.b.^ and MaUk
SnwAAo. Mannings case (a), and Amner v. Ijodington {b)^ conti
no proposition which the defendants need dispa
Lampet^s case (c), so far as it applies, is favourable
the argument now urged for the defendants. [Pol
son J. In the case in 17 Eliz.f for which Lampefn a
was cited, the contingency upon which the wife's i
mainder depended was her surviving the husband;
was not one which could happen in his lifetime.]
Gage V. Acton {d)^ Holt C. J. was in a minority on i
bench, but the best authorities support his dictum,
is clear, therefore, that at law the husband of the less
of the plaintiff might have assigned his wife's inten
while it was a possibility. The question whether th
interest would, in equity, be considered as vested to h
use, might be determined by a court of equity, but cai
not be raised here. ITaunton J. In fVinch v. Keeley (i
this Court determined that a chose in action, in which
bankrupt was interested as trustee, did not pass to fa
assignees.] The Court will notice a trust where it
quite clear that the party is a trustee ; but here tt
point is doubtful, and can only be effectually dealt wi
by a court of equity. And as the defendants are z:
seeking any equitable assistance, the equities whi
any other party may have cannot stand in the way
their right, which is complete in point of law.
Plattj in reply. The language of the bequest
Mary Shaw proves that the testator did not contempts
(a) 8 R^. 94. 6. (6) 8 Rqu 96. b. 2 Leon. 92.
(c) 10 Rep. 46. a. (</) 1 Salk, 327. 3 Leon. 89.
(e) IT. R. 619.
he
IN THB Fourth Year of WILLIAM IV. 809
her becoming entitled during her husband's lifetime, 1834.
for the premises are left to her only while she shall live
Don dem*
therein and remain the widow of James Shaw. Her Shaw
interest therefore was, in reality, contingent on an event Stbwahd.
wbldi could not happen in his lifetime. [^Taunton J.
Three contingencies are stated in plain words. You
^oold make two void.] As to the husband's power to
^ipose of the wife's contingent interest, if that interest
is to be considered as a trust held for her, Richards v.
Otmbers (a) shews that even by her consent or express
sppobtment, it could not be placed at his disposal. In
CbiR. Dig. Assignment^ C. 3., it is laid down, that 'Mf a
term be devised or granted to one for life, and after-
^rtods to another for the residue of the term, this re-
mamder of the term cannot be assigned, being but a
inenbility. So, if land be granted to husband and wife
for twenty years, and afterwards to the survivor for
^ven^-one years, the husband in the life of his wife
cnnot assign the term for twenty-one years, for it does
not Test till he survives, and therefore was but a pos-
sibility;'* for which Lampefs case (ft) is referred to. In
-^igdm V. WiUiamson (c), the contingent interest which
"^v held to pass to the assignees was in the bankrupt
l>iinsd£ In Pitt v. Hunt{d)j the assignment of the
tern in trust was a fraud upon the husband. In DaU
^ T. Dalbiac {e\ the very distinction was taken which
liidied upon here for the plaintiff, viz. that the interest
^^not &l] into possession during the husband's life;
^ in Mr. Buikr^s note on Co. Lit. 351. a., it is said
^ the husband's power to dispose of the wife's contin-
(a) 10 Vei. jun. 580. (6) 10 Rep, 51. a.
[t) S P. Wms. 159. (d) I Vem. 18.
10 16 Fes. Jan. 12S.
Vol L Y gent
310 CASES IN EASTER TERM
18S4. gent personal estate can extend only to such part as I
may possibly become possessed of during the marriag
Shaw The defendants here must contend that James ShaWj 1
agtdnti
SrxwAftD. abandoning or mortgaging the house contrary to tl
will of the testator, might at any time have vested tl
term absolutely in himself, through his wife. [^LM
dale J* You say that, according to that constructio
he would have bettered his situation by his own wrooj
fill act]
Cur. ado* xm
Lord Demman C. J* in this term {4prU 22d) del
vered the judgment of the Court The question he
arises on a very singular clause in the will of a
George Greenway^ which is in the following "^oti
(His Liordship then read them.) The facts are, th
the husband fell into embarrassed circumstances, ai
went to sea, leaving his wife and family to continue tl
trade upon the premises : that he was afterwards roai
a bankrupt, and after that returned to the premisi
where he carried on the business till the sale of the
was completed. The assignees sold them to the c
fendants, who are said in the case to have turned «
the bankrupt, his wife and family. It is not said
what means they turned them out. The bankri
died. The bankrupt's widow is the lessor of i
plaintiff
We are perfectly clear that the husband's going*
sea does not amount to giving up the possession of t
premises. And we think it at least extremely doubt/
whether his being turned out of them can satisfy the
words, which seem to imply a voluntary desertioi
But the defendants rested their claim to the premise
IN THE Fourth Year of WILLIAM IV. 311
on a more general ground, contending that, as it was 1884.
possible that the contingency on which the wife was to
take the lease might happen during the coverture, it Shaw
became the absolute property of the husband, and con- Steward.
seqoeDtly vested in his assignees.
According to the old law, a term for years given to
one for a particular estate, with remainder to others,
▼ested in him absolutely, notwithstanding the gift over.
In many cases, however, courts of equity have inter-
posed for the protection of married women, to whom
such remainders have been given. And inasmuch as
the assignees of a bankrupt take only such interest as
be could have lawfully departed withal, and as that
interest is equitable as well as legal, the duty of en-
quring in what manner a court of equity would deal
^ith similar dispositions of property may thus devolve
incideiitally on a court of law. If then we clearly saw
from decided cases that the wife's right to take under
this devise is kept alive during her husband's life, and
tbat the estate vests in her upon his death, we might,
perhaps, be bound to govern our decision by the same
nde. But we find no authority for this position. On
the contrary, the result of all the cases (which are col-
lected in Mr. Butler^s note to Co. Lit. SSl.a.) appears
to be, that a devise like the present would not be con-
itmed in a court of equity to enure to the separate
heoefit of the wife. We are therefore of opinion that .
lienor pf the plaintiff fails to establish her title to
lecofer in this ejectment, and that our judgment must
he br the defendant
^1 Judgment for the defendant.
-A
Y 2
9» CASES IN EASTER TERM
1894.
J^^^ Reeve against Annabella Davis and <
A ■team.Tet- A SSUMPSIT for goods sold, work, &c
wl was let by -^^
chirterputy general issue. At the trial before Denmai
xnonthVthe ^® London sittings after last Trhiify term, it
:^i^ *b«t the action was for stores furnbhed, «>
owners engag- '
ing to keep the done, to a steam-vessel. The defendants were 1
engine m '
i^r» hut ihm tered owners of the vessel, but the goods were
duurterer bind-
inghinMelfto and the work done chiefly upon orders me
doaUother , ^ ^ ^
n^n, to pay T^onqfson^ who was the captain : some were a
charges of by the ship's husband and the engineers. T
a^'toinSem- * ^** '^^ ^^ Thompson by a charterparty under j
i^r^e^wnert ^q^^ ^y himself and Annabella Davist acting i
^A«»»coe«»» and the other owners. By this charterparty
damages, ei- •' r j
1*^5 .*«• >n- hired and let to freight, and Thompson engaged
curred m re^
qpectofthe to freight the said vessel for twelve months, U
diarterparty
and employ- ployed in Carrying passengers and goods betwee
Tessel. The &nd Topsham in Devonshire. The owners conl
ap^^t^ren- deliver the vessel within three days into the ha
Slartorer who ^ession, or power of Thompson^ with perfect eng
■^/jV*P* chinery, and engineers, and to keep the engine
pain done to during the twelve months; and Thompson i
toe Tessel by
persons un- pay the wages of ail persons employed on boai
acquainted with
the aboTe con- the term, all the expenses of coals, oil, tallow,
Held, Uiat cidental charges attending upon the working ai
faicspMtof' ®^ ^® vessel, and pilotage and port charge
MndosTS^ demnify the owners against all debts, costs,
"8***"^ charges, and expenses occasioned, contracted
owners. "
curred by the vessel or any person employed <
or by him the said Thompson^ for or in respe
Dafis.
IN THB Fourth Year of WILLIAM IV. SI 3
said charterparty and employment of the vessel ; to pay ISS^.
the hire of the vessel mcmthly ; to insure in the names — —
Qi the owners; to keep all the vessel in repair, except ^gamu
the engine; and to deliver her up in good repair at
the end of the term. The owners were to appoint the
engineers, though they were to be paid by TAampson.
^e defendants paid 16/. into Court on account of work
^e to the engines, but contended that the contract
by which they had let the vessel to Jiampson exempted
^bem from further liability. The plaintiff's case was,
^t he had given credit to the owners, and not to
Jiompgtm, knowing nothing of the charterparty; he
therefore contended that his claim was not affected by
it The Lord Chief Justice was of this opinion; and the
jury, under his direction, found a verdict for the plain-
tiSl In Michaelmas term 18SS, a rule nisi was obtained
for a new trial, on the ground of misdirection.
FoBea and Busily now shewed cause. The owners
ue primft facie liable; it is for them to shew that
die charterparty exempts them from responsibility.
The mere letting to hire is not sufficient for that pur-
pose; and there are other parts of the contract in this
^ttse^ the clauses, namely, as to the engines and en-
gineers, and the engagement by the charterer to in-
denmify the owners against debts, costs, and charges,
,vhidi prove that the owners were not wholly divested of
lisbfli^ in respect of the vessel during the year of lettuig.
Cbitftf V. Ijewis (a) shews that words of letting do not
of themselves indicate a parting with the possession and
dispoBiUon of the ship by the owners, where there are
(o) 2B.iB. 410.
Y 3 cir-
SU CASES IN EASTER TERM
18S4. circumstances to raise a different presumption.' X^
Frazer v. Marsh (a), indeed, the charterer of a ship
Rbitz
against Considered liable for the stores, and the owners ei-^
empted ; but in that case there appears to have been a
general demise of the whole vessel, and there waa
nothing to shew that the owners retained any contro*
over her. Another point for the plainti&s is, that na
sufficient proof was given of any authority in Mrs.2)ani
to execute a charterparty for the other owners.
Kelly contrcL. The mere fact of ownership is not 0013
elusive of liability for the captain's contracts : Briggs —
Wilkinson {b). As soon as it appears that he had ^
express authority from the person charged as own^
and that an implied authority is not borne out by
facts, the question comes to be, to whom the c
was actually given ? In this case the goods w^s
not ordered by the owners, or by any person havi.«
their authority, but by Thompson; and the question i
for whom he acted in giving the orders. By refereKX<
to the charterpaity, it appears that Thompson had l3
come the charterer; the owners had given up tbc
legal interest for the time; they retained no contr«>
over the vessel, and had not even a right to go ^
board; and Thompson was bound to do the repai'
with an exception which is not material. The ord^'
therefore, for repairs and stores were given by J%aff^
son for his own benefit, and that leaves no doubt as ^
his liability. In Young v. Brander and Another (c), tfa
defendants were the legal owners of the ship; but ^
(a) 13 EaUy 238. Ijb) 1 B, ^ C.30, (c) 8 -Barf, la
N
Datis.
IN THE Fourth Year of WILLIAM IV, '$15
^as shewn, by evidence, that the party who ordered the ldS4.
repairs was not their agent, but a stranger ; and th^ "T
were held not liable. The situation of Thompson^ with Sf^''
respect to the present defendants, is the same as that of
a stranger* The observations of Lord Ellenborough in
trazer v. Marsh (a) are all applicable to this case.
Thompson had the control and possession and the use
and benefit of the vessel ; and there is no pretence for
saying that he was the servant or agent of the defend-
ants. They themselves have done no act which can
subject them to liability for these expenses. As to the
other point made, it is not supported in .fact ; and if it
were so, does not affect the case in point of law.
Lord Denman C. J. I am of opinion that this
verdict cannot be supported. The question is, who
were the contracting parties ? The mere circumstance
of ownership may be sufficient to create a liability
^bere the vessel has been left under the controul of a
party who has given orders, if no intervening owner-
diip has been created. But if a ship is let out to
hire^ I do not see how the owners are liable for work
^e upon it by order of the party hiring, more than
die landlord who lets a house.
LiTTLEDALE J. The rulc is, that upon a general
order for repairs given by the captain, the party exe-
cuting them has the security of the ship, of the captain,
^ of the owners ; but in an action against parties as
owners, the question is, who are so for this purpose?
The persons registered are not necessarily so; the
Y 4 register
Datm.
316 CASES IN EASTER TERM
18S4. register acts were not passed for this purpose; and the
"^ question of ownership, as it regards the liability for
agamM repairs, must be considered as it would have been
before those acts passed. Nor is there, on this view of
the subject, any hardship thrown upon the tradesman ;
he has always the means of knowing who are sub-
stantially the owners, by asking the captain to shew the
charterparty : if this is refused, he may decline dealing.
In this case the benefit of what was done enured to
Thompson. The party for whose profit the ship is in
reality employed at tlie time has the benefit of the woik
done on board, and is liable to the tradesman who does
it Here, if the charterer had been a different person
from the captain, the charterer would have been liable.
Patteson J. Briggs V. Wilkinson (a) shews that
question of liability in this case is not afiected by th(
register acts; the point to be looked to is, who w<
the real contracting parties ? Here the captain was
charterer, and had undertaken that he would do all th^m
repairs, except to the engine: he was not, therefore^
the agent of the owners in fact. Then was he so ii
law ? Young v. Brander {b) shews that, if he enl
into the contract for his own benefit, it makes no differ '-
ence that other persons were the legal owners. Frazer
V. Marsh (c) is on all fours with this case, except that
the vessel there was let for several voyages. As to the
supposed want of authority in Mrs. Davis^ it is dear
from Youf^ v. Brander (i), that the party ordering the
repairs need not have a complete title to the ship ; it is
(o) 1B,^C, 30. {b) 8 EatU 10. (c) 13 East, 238.
sufficient
IN THS FoimTH Year of WILLIAM IV. 817
sufficieot to shew that he did not order them as agent 1834.
to the registered owners. The rule must be made
iboolllte. offoimi
Datis.
DViLUAMS J. ccmcurred.
Rule absolute.
The King against The Churchwardens of the Tuemhif,
Parish of St. James, Clerkenwell. "^
IffSENCH had obtained a rule, in Trinity term last, a local act
calliiig upon the churchwardens of the parish of theitat.
Sl James, ClerkervweUj to shew cause why a mandamus for the reguul'
•lould not issue, commanding them to set aside the ^^^'^^jjed
^kcfion lately made of iruardians or ffoyernors of the **>«^ceof
•f o o guardians of
poor of the said parish, and to hold a vestry for the **»• vom for a
* *^ particular pa*
pupose of electing and appointing four persons to be rub, and
enactedf that
gurdians or governors of the poor of the said parish, Tacandesshould
*od to proceed in such election under the provisions of ailed up by the
Aelocd act of parliament, 1 5 G. 3. c. 23., instead of stat. |[Sf j^i^
S«G,8. c 69. The rule was obtained for the purpose |^^^* "^^
rf&mtinff the validity of an election of iruardians of ■'"ould elect
. persons in the
we poor, which took place in May 1833. The only room of those
1. . going out :
<~|tttioii finally made related to the manner of deter- Held, that
Bmingthe majority at the election. The guardians of ingofstat.
^ poor for the parish were elected under stat. 15 G. S. the inhabit-
^^^'[a), by tlie rated inhabitants of the parish as- Sow^ln*wch
sembled •^^j^^j!*
numberofTotesy
■ prapoitioQ to their respecti Te assessments, defined in the latter act ; for that the local act
MBotgtTe this vestry such a peculiar constitution as to bring it within sect. 8. of 58 G* 3.
C.69., windi preserves to vestries holden under any special act, the powers and rights of
''•Jng which they previously enjoyed.
(a) This statute names certain persons as guardians or governors of
»* poor for the district of Si, Jame$f and certain others for the district of
St.
318 CASES iM EASTER TERM
1884. sembled in the vestry room, the vacancies being anm
' ^ ally filled up. The statate makes an express r^galatic
agmna as to the principle on which the majority is to be dete
Cburchwardeot mined. At the election in question, the votes we
of St* Jakks,
Cliucsnwklu taken according to the r^ulations .of stat. 58 G»
c. 69. 5. 3. (a), the number of votes to be given by
rated inhabitant being determined by the amount of 1
assessment to the poor rate. It was objectedi that ea
rated inhabitant should have *been allowed to give
single vote and no more ; for that the operation of tl
stat 58 G. 3. c, 69. s, 3. was controlled in this respec
by the exception in the eighth section (b) of the sam
statute.
Si
St» John, both in the parish of St. Jamett CUrkentoelL It then cmeli
that when any one or more of the persons thereby appointed guardkno
goremors as aforesaid shall die or refuse to act, or shall remove out o
the said parish, it shall and may be lawful for the inhabitants of bath th
said districts (paying to the rates of the said parish for church aod pool
to assemble and meet together in the Testry room of the said parnb, c
Tuuday in Easter week in every year, or within one month after, to do
and appoint one or more person or persons to be guardian or gusidno
governor or governors, in the room of the guardian or guardians, govinv
or governors, so dying or refusing to act, or removing out of tlittfi
parish.
(a) By which it is enacted. That in all such vestries every iniiiliiti'
present who shall, by the last rate which shall have been made for ti
relief of the poor, have been assessed or charged upon or in respect of •>
annual rent, profit, or value not amounting to 501,, shall have ifld
entitled to give one vote and no more ; and every inhatutant the
present^ who shall in such last rate have been assessed or charged upo
or in respect of, any annual rent or rents, profit or value, amountiiig
SOL or upwards (whether in one or in more than one sum or cbtfgi
shall have and be entitled to give one vote for every 25^ of annual M
profit, and value, upon or in respect of which he shall have been anen
or charged in such last rate, so nevertheless that no inhabitant shall
entitled to give more than six votes.
(6) By which it is provided and enacted, That nothing in this act cc
tained shall extend, or be construed to extend, to alter tbe time of boldi
nr THE Fourth Year of WILLIAM IV. 319
Sir John CampbeU^ Attomey-GeDeral, and Bodkin^ 1834.
now shewed cause. There can be no doubt that the '
dectioQ was valid, unless the exception in the eighth againtt
Tbe
'section of 58 G.3. c.60. be applicable to the election Chnidiwardciit
ofgoardians of the poor under 15 G. 3. c.23. The Curksmwilx.
fint part of that exception relates to the time only of the
dectioD, and is immaterial as to tbe point of objection.
And as to the second part of the exception, this vestry
WIS Dot holden by virtue qf any special act, or of any
lodent or special usage or custom. The stat. 15 G. 3.
e.S8. merely creates a particular office, and gives the
power of election to the vestry; but it does not om-
A^At the vestry, which is left as it was before the act
Kdther is there any special custom or usage asserted.
If the exception applied to this vestry, it would apply to
ihnost every open vestry existing before the 58 G. 3.
c> 60. passed ; for there are very few open vestries which
are not sometimes held for particular purposes by reason
of special acts or ancient usage.
I
Sir Jame% Scarlett and Erie in support of the rule.
Although the vestry was not originally constituted by
the Stat. 15 G. 8. c. 23., yet, when held for the purpose
of electing guardians of the poor, it is held under that
stttnte. For this purpose, the vestry exists only by virtue
of the statute. It is not disputed that the intention of
ttf Tcilrj, pariih, or town meetiiig, which is by the autbofiiy of any act
ifnM to be bolden on any certain day, or within any certain time in
>Kb act preMiibed and directed, nor shall any thing in this act contained
otad to take away, lessen, prejudice, or affect the powers of any Testry
or meeting holden in any parish, township, or place, by wive cf any
fniai ad or ocfs, of any ancient and special usage or custom, or to change
^^Kt the right or manner of voting in any yestry or meeting so holden.
the
320 CASES IN £AST£R TERM
18 84. the statute was, that the election of the officers AotU
-TJT" ^ made by a majority of single votes of the inhabit-
agninti ants. The efiect of the statute must therefore be the
The
Churchwardens same as it would have been had such intoition been
Clbrkbmwxll. more expucitly expressed. But if it had been so es-
pressed, there could have been no doubt as to the appli-
cability of the eighth section of stat. 58 G. 3. c.69.
There might have been some difficulty, if the woidsof
the exception had been, ** or to alter the constitution of
such vestry : " but the words are, ^ or to change or
affect the right or manner of voting."
Lord Denman C. X The question is, whether i
meeting of this vestry holden for the purpose of electiflg
guardians of the poor, be under the protection of the
eighth section of stat. 58 G.3. c.69. (His Lordih^
then read the section.) We find nothing under the
former act creating a peculiar constitution for thevestrji
or giving rights of the kind meant to be protected bj
the section containing the exception. The intention of
58 G. S. c. 69. was to change the method of determiniog
the majority in all cases where no special constitutkn
exbted before. The rule must therefore be discharged.
LlTTLEDALE, PaTTESON, and WiLUAMS, Js., COD*
curred.
Rule discharged*
IN THE Fourth Ybar of WILLIAM IV. ^21
1884.
The King against The Managers and Directors TWfdty,
of the WiTHAM Savings Bank. "^
VNOWLES had obtained a rule in Trinity termi Thedireeton
A , of a nvings
ISSSf calling upon the managers and directors of bank are not
the bank for savings at JVUtiam^ in Essex^ to shew cause appoint an
iky a mandamus should not issue, commanding them under itat.
to name and appoint an arbitrator on their behalf, to ^.45.%ora»
vbitrate on a matter in dispute between the managers S"*??^ °^
<^ o deciding upon
f the said bank and the members of the Sons q/' the claim of
persons pro-
boMM Benefit Society at Coggeshall. It appeared fessing to apply
"^ / 66 rr on behalf of a
lut the society had been regularly enrolled, pursuant body of de-
positorSy if it be
D (he Itat 33 G. 3. c. 54. {a). In 1827| after that en- matter of dis-
DotaMB^ the society formally resolved that the old rules Sepodtonh^
tbould be abandoned. New rules were drawn up, and ][^i!,^Q^^
B^phriy adopted, and had been ever since acted upon ^^^^ ^^^
If the socie^ ; but these were never enrolled. After ^^l*
k society had been thus re-modelled, several sums
vae deposited by the then clerk of the society in the
Wtitm Savings Bank, and were entered in the books
of the bank to the credit of the << Benefit Club, Great
QggaieiZL" In the course of 1833, the society resolved
to draw from the bank the sum then standing in their
itttt,and the stewards and clerk or book*keeper of
k sode^ (who were not the individuals who had
>^ any of the deposits) gave due notice, to the di-
i^cton and clerk of the bank, of their intention to do
^ in conformity with the regulations of the bank. An
r
(o)ABMiidsdby8tat.95 6.3. c. 111. 49^3. clll. 49 G. 3. c. 125.
d6,8.cl2S.
application
322 CASES IN EASTER TERM
1834. application to two magistrates was shortly after made'
by certain members of the society, for the purpose of
Tb6 KiMO
tig^ihui excluding the said stewards and derk from the 80ciet]r,
flcfiogi Bank.' for alleged breaches of the society's rules. The magis-
trates finally issued an order oS exclusion. The directors
of the bank refused to pay over the money claimed to
the stewards and clerk, on the grounds of the exdn-
sion of the latter and the non-enrolment of the roki^
and stated that they should hold the money for the
benefit of certain other persons whom they considered
the real members of the society, but who, as was con-
tended by the stewards and clerk, had ceased to be
members. The stewards and derk, and seven other
members of the society, continued to act, with others, as
members, to the exdusion of the parties for whom the
directors of the bank professed to hold the money. And
these acting members called upon the directors of the
bank to name an arbitrator, for determining the dispute
between themselves and the bank, according to staL
9 6. 4. c. 92. 5. 45. (a) The directors refused.
(a) Which enacts. That if any dispute shall arise between any ffch
institution, or any person or persons acting under them, and any indi-
vidual depositor therein, or any executor, administrator, next of kin, <f
creditor of any deceased depositor, or any person claiming to be an^
executor, administrator, next of kin, or creditor, then and in eroy ffX^
case the matter so in dispute shall be referred to the arbitration of t^o
indifferent persons, one to be chosen and appointed by the trustees or
managers of such institution, and the other by the party with whom A^
dispute arose ; and in case the arbitrators so appointed ahaU not agi^ .
then such matter in dispute shall be referred in writing to the barrister ^
law so to be appointed by the said commissioners as aforesaid, and wliP^
ever award, order, or determination shall be made by the said arbitratof*'
or by the aaid barrister, shall be binding and conclusive on all partie^'
and shall be final to all intents and purposes, without any appeaL
IN THE Fourth Year of WILLIAM IV. 323
2L V. JRichards now shewed cause. The statute 1834.
G. 4. c. 92. & 45. was not meant to apply to a case of ^ ^
'^'^ ^ The KiKO
lis nature, where it is doubtful who represents the agaiiui
epontors, but only to cases of dispute between the SaTingi Bank,
ifings banks and depositors who have that character
lodbpntedly. The arbitrator is not to determine dis-
ates between the individuals making the deposits. In
ItfT. The CheadU Savings Bank {a) j the Court granted
I maodamus where there was a disputed claim : but
(a) Rex v. The Chsadle Savings Bank.
^'lELLY bad obtained a rule in Easter tenn 18SS, calling on the The Court,
vtoei of the CheadU SaTinin Bank to shew cause why a mandamus un^ ><*t.
M lot isiue commanding them to appoint an arbitrator, to whom, ^ Z^ 'mnted
|Mk«with an arbitrator named by Chrisiopher IFkUworih, on behalf of a mancuunus
■*Miw Wmam Whitworth and Francu mUworth, a reference might be calling i^ a
■>^«f tbt matter in dispute between the said trustees and the said Chru- ^ apuoint an
P^ WUtmorthf on behalf of his said children, touching two sums lately arbitrator to
mSm in the said bank in the names respectiyely of the said W. W. ^^^ between
• _, , thytn and ap-
H/*. If. It appeared from the affidavits, that one Ji>nJ(xn« had deposited pUcantsin *
cans fijr the benefit and in the names of the children severally, and that whose names
itasnce dead ; but that, before his death, one Labdon, who had been f deposit had
been n^ftdf>.
' pnoQ employed by Jenkins to make the deposits, had withdrawn ^ijoush the
<n> Ihe rules of the bank, published and allowed at the quarter deposit had been
•ios^ directed that every depositor or bearer should be furnished with withdrawn by
^iflnte book containing an entry of the deposit, and that the duplicate nm^jt for
1^ be brought to the bank when any money &hould be withdrawn, the applicants,
i^tbt it should be a sufficient authority to the bank to pay any money, *°^,?*J^** *^®
^i&olt of notice to the contrary from the depositor. Labdon swore ^^^ directed
> he hsd withdrawn the sums by the order of Jenkins, and had always that a duplicate
idcsMody of the duplicate books, and had delivered them up to the ^^^^ °^*^f ^
. posits shaU be
■k on withdrawing the deposits; that JimihW gave him to understand delivered by the
tt he meant to make other provision for the children ; and that, in fact, bank, and be
tWd dm so by his will. In HUary term 1 834, J" authority
*' "^ ' for paying
over any sums
ne Cncrt having heard S. V. Bichards against the rule, and jP. JTd/y to the person
"wpjwt of it, made it bringing it to
the bank.
Absolute, and though
such a dupli-
cate was delivered up to the bank when the deposit was withdrawn*
in
824 CASES IN EASTER TERM
1834. in that case there was no doubt that the parties, ii
whose behalf the mandamus was applied for, were th
againtt identical persons in whose names the deposit had bee
Svtingi Bank. made. The applicants claim as officers of the soaetj
in their individual character they have no claim, ft
they were not the actual depositors. Again, if th
justices had authority to exclude members from lb
society, under stat. 33 G. 3. c. 54. 5. 15., and the sub
sequent enlargement of the provisions therein con
tained, there can be no appeal, by the concludinj
words of the section : but the present application, i
■
successful, would have the effect of an appeal.
Knaades in support of the rule. If this mandamus b
refused, the bank will keep the money for themselva
and may do so whenever there is a dispute between tk
depositors ; for no action at law lies against the baidi
Crisp v. Bufibury and Others (a). In Exparte Ne^
risk (6), Sir TAomas Plumer, Master of the Rolls, hts
that, under stat. 33 G. 3. c. 54., a court of equity had ■
jurisdiction on a petition by a new trustee against a Is
trustee of a friendly society, which had abandoned
rules filed with the clerk of the peace. The magistnUB
had no power of expulsion ; for the rules, under whS
the society existed, were not enrolled, and the enrolmM
is essential to the power of the magistrates, as was s
mitted on both sides in Rex v. Gilkes and Others^
Neither, in fact, is it material whether or not the pres«
applicants have ceased to be members of the frienc:
society ; any persons who have joined to deposit &
entitled to the remedy by arbitration given by the statalE
(«} 8 mng. 394. (6) Jacob, 162. (c) 8 ^. j- C 48%
In
iM TH< Fourth Year of WILLIAM IV. sits
In Bex V. Tke Cheadk Savings Bank (a\ there certainly 18S4.
was a doubt as to who were the proper claimants, yet the
mandamus was granted. The arbitrator in the present agamu
case would have to determine exactly the same question SftYiogA Bank,
as is that case, namely, whether the party applying has
a claim on the bank. If the present applicants receive
the money on behalf of the society^ and it should turn
out that other parties are the persons entitled to claim
on behalf of the sodetyj such parties will have a legal
'comedy against the present applicants.
Lord Denmak C. J. Here is an institution called a
friendly societfr, the rules of which are not strictly en*
loUed, and which deposits sums which are placed to
^ credit of the society. The society becomes divided
iQlo bctions ; the oflBcers are changed ; and the persons
'Hifw claiming to be the officers have been either legally
^ illcgaUy (the latter perhaps is the more probable)
ttpelled by the magistrates. These persons now claim
the money on behalf of the society, in their characters of
stewards and bookkeeper. The directors of the savings
hank may answer, that they received the money, not
fromi these persons in their individual characters, but
fiom the society ; and that they must have proof that the
Wads into which they are required to pay the money
Ve the hands from which they received it. They have
a right to be satisfied that the claimants represent the
t^^Qe^. The rule must be discharged.
LintBDALE J. I also think that this rule must be
^iiAaiged. The act directs the appointment of an
^itrator when there is a dispute between the savings
(9 ■ bank and a party depositing. Who are the depositors
(a) Ante, p. 325. note (a).
Vol L Z here ?
826 CASES IN EASTER TERM
18S4. here? The persons calling for the money are ei
to the mandamus if they represent the society
otherwise. One party say, that the claimants d
The Kiiro
StfiDgiBank. represent the society, because they have been exp
the other party answer that, as the rules were n
rolled, the magbtrates had no power to expel,
it is said that it is unimportant whether the dai
be members of a friendly society or not, inai
as any persons may join to deposit, and an arbi
must be appointed, if a dispute arise between tl
positors and the bank. I agree to that : but do
claimants represent the depositors ? The bank w
consent to appoint an arbitrator, because they ai
sure on behalf of whom the application is made,
have ascertained that, at any rate, the magbtratei
professed to expel. It may be that the expulsio
made without authority, and yet the bank may :
to take upon themselves to acknowledge the pi
applicants. It appears that they were not the i
depositors, and that the money was deposited on I
of the whole body.
Patteson J. This is quite a clear case. The
4 question is, whether we must compel the bank ti
party to a reference for the purpose of asoerti
the rights in this quarrel among the depositors,
must see who the depositors are. Let them first
that among themselves.
Williams J. This at least is certain, that the i
was paid in, years ago, by a particular clerk on
of the society. When the application comes to
it not a most obvious preliminary we should see th
party applying acts for the party depositing? '
P
iH TH» Fourth Year op WILLIAM IV. 827
penons may be members, but can they claim for the 18S4.
society ? Must not the bank hold their hands till thev
The Kivo
see that cleared up ? If not, they might be subject to a agamtt
firesh Implication from a party really entitled. Savb^'BMk.
Rule discharged (a).
(o) Since the above case was decided, the law relating to Friendly
Societies has been modified by the sutute 4 & 5 W, 4. c. 4a, (Royal
AMBt, 50tb of Juljf 1834,) amending 10 G. 4. c. 58.
The King against John Biers and Another. J^*^^;
'pHE
May
defendants were convicted on an indictment, re- Asututepassed
m a session of
moved into this Court by certiorari, which stated : — parliament
IN • begun in the
loBt the defendants, on, &c. in the third year of the second, and
nigQof our Lord the now King, well knowing that E* W. the third year
vAT.W. were the proprietors of a certain licensed reign/^'t not
ltag^ealTiage drawn by two horses, numbered, &c., JaJs^nUie
''md that they, as such proprietors, were liable to the ***^*^^'^j**^
piymeDt of certain penalties in which the driver, whose reign: although
such act be nv
naiDe was unknown, of the said licensed stage-carriage ci^ i" « ^^r
A 1 , . . statute as
noiud be convicted before any one of his Majesty's " passed in the
JQstiees of the peace for the county of Middlesex j of any years," &c.
<Aooe committed by the said driver against a certain act ment for con-
of parliament made and passed in the second and third 'n^Jhe^nduce?
Jflflnof the reign of his present Majesty, intituled," &c. "JJ.^^jJlnte**'*
(settbgont the title), unlawfully did conspire, &c falsely, knew the party
^ conspired
vioogfully, and without probable cause, to exhibit a cer- against to bear
a certain cha.
^mformation against the said E. W. and T. W. as such racter, and to
be liable in that
character to the
^fndoQ of an act passed in the second and third years, &c. adding the title of the act cor-
i<Kdj, the judgment was arrested for such misr^ital.
Aadthii^ although there was a general count (to which the objection did not apply,)
^^Bg merely that the defendants conspired ** by false, artful, and subtle stratagems and
'^^ as much as in them lay, to injure, oppress, aggriere, and imporerish" the
Z 2 pro-
338 CASES IN EASTER TERM
1884. proprietors, &c before one of his Majes^s jostioes <
"""^ the peace in and for the said counQr, therein chargii
ocomn that the said E. fV. and T. W^ on the 12th day of Ap
in the third year aforesaid, at, &c., were the proprieto
of a certain licensed stage-carriage, &c., and that U
name of the driver was unknown ; and that, when 1
drove the same, the said driver did unlawfully carry ac
convey at one time more than one person on the hm
of the said carriage besides the said driver, to wit, St.
contrary to the form of the statute in such case mm
and provided, whereby the said driver had forfeited, te
to be applied as the law directs. The indictment tbc
stated, that the defendant J. A, in pursuance of the tii
conspiracy, on, &c in the third year aforesaid, appeuei
before a justice in and for the said county, and wnnig
fully, &c. exhibited to and before him a certain infixs
ation, in substance, &c. following : — County of MiddkKm
to wit Be it remembered, that on, &c. in the year G
our Lord 1833, &c. The information was then setoul
stating the alleged offence, and charging it to have beei
committed on, &c. in the year of our Lord aforesaid, an
contrary to the form of the statute in such case mad
and provided. The indictment then stated, that £. R
and T* W. were summoned to answer the informatioi
on, &c. in the year aforesaid ; that, on that day, tl
present defendants, in pursuance of the conspiracy, a|
peared in support of the information, and deposed c
oath to certain matters, which the indictment negative
There were other counts not differing from the abo^
in any respect which it is material to state ; and the
was a count not referring to any statute, but on
charging the now defendants with conspiring, "I
divers &Ise, artful, and subtle stratagems and coi
trivance
iH THE Fourth Year of WILLIAM IV. 329
tiivancesy as much as in them lay to injure, oppressi 1834.
tggriev^ and impoverish E. W. and T. JV., and to cheat
sad detrand them of their monies." agmnsi
Bizfts.
Molpkusy in this term, moved in arrest of judg-
iQCDt(a). The indictment is bad, inasmuch as it
sieges that the defendants, well knowing that the pro-
secutors were liable to such penalties as should be
Uicurred by the driver of their carriage, under an act
paused '* in the second and third years of the reign of his
prcieot Majesty,'' conspired, &c. A misrecital of the
day of passing an act of parliament is fatal : Bae. Abr.
SUMe^ L. 5. (b\ citing Partridge v. Strange {c) ; and a
statme cannot be passed in two years ; Bac* Abr. (^)
dile, citing Langley v. Haynes {e). So in Nutt v.
(5)9 it was held that a statute could not be
plcdkd as made in the 8th and 9th years of the reign of
tf^HUam the Third ; ^^ for in law an act cannot be made
in two years, and though so mentioned in the statute
book, it cannot be good." In Rumsey v. TuffneU {h\
judgOMnt was arrested because the declaration recited a
iMte as passed at a session begun in the 29th of
KKaiiert, whereas the session began in the 28tb. Be-
faethe statute 33 6. 3. c. 13. an act of parliament (in
Ae absence of any special direction on the subject) was
OQuidered as having passed on the first day of the ses-
KM; since that period the commencement of the act
(oopt where another commencement is therein pro-
^) dates from the day of its receiving the royal as*
^^( (4 Before Lord Denman C. J., LittiefUde, Patieton, and Williams Ji.
W P. 47a ed. 1832. (c) Plowd. 77. 84. S. C. Dyer, 74. 6. (19*)
W P. 471.
(() iroarr,S03. Mawk. P. C. b. 2. c 85. s. 104«
b) Artoe. Rep. 373.
% 9 Bill;. 235. 5. C. 9 B» M»ore, 425. more fully.
Z 3 sent:
Bicms.
SSO CASES iM EASTER TERM
1834. sent: in no case can it be supposed to have passe
two different years. The form of conviction gi?c
The KiKO
agamu the act now in question, (printed as 2 & 3 Jr. 4. cl
schedule, No. 8., speaks of it as an act passed in
third year, &c. The objection applies to all the co
but the last, and that is in too general a form to be
ported. A man could not be called upon to answc
indictment consisting merely of such a count
Sir James Scarlett contra. Supposing the objec
as to the date of this act to be well founded, still the
is correctly set out, and that is suflBcient The yea
which the session was holden is surplusage, and t
is no reason that it should not be altogether reje^
Besides, the statute 3 & 4 ^. 4. c. 48. for amen*
the act in question, speaks of it (in the preamble), a
act ^^ passed in the second and third years of the r
of his present Majesty," and that is suflBcient warrant
the mode of description used in the indictment. [
tledale J. It is very commonly used now in stab
PoHeson J. A correct mode of statement is followc
the act for the further amendment of the law, 3 & 4 I
c. 42. & 16., which refers to ^* the statute passed in
session of parliament held in the eighth and ninth y
of the reign of King William the Third, intituled,"
LitUedale J. There are several authorities in Vin, *
Statutes^ E. 3. and E. 5. as to the effect of misred
acts of parliament, in respect of the date. Brya%
Withers {a) is another.]
Cur. adxk '
Lord Denman C. J. now delivered the judgmei
the Court. We are of opinion, that the objection ti
(a) 2M.iS. 133.
Bum.
iH THE Fourth Year of WILLIAM IV. 331
to the indictment in this case is good, on the authority 1834.
of Langlof v. Haynes (a)y followed up by the decision in '
Ntt^ V. Stedman {b). The judgment will therefore be agaitut
mested.
Judgment arrested (c).
(fl) lioft, SOS. HavA, 1>. C b. 2. c. 25. 1. 104.
[h] Fortac B^ 372. t
(e) See Bonn ▼. Green^ 9 Cowp. 474. Qusre, whether, in the present
CM, the fint count of the indictment might not have been tupported, on
tkigmmd that the misreeital only affected a portion of the indictment
tUefa migfat well have been dispensed with, and which was not at all
nbtnA to in die subsequent part of the count. See Burt ▼. BothvfeB,
IXatoi 14a (ako 1 LiL Baym. 343.) ; and Palmer ▼. Tayhr, S Keb. 468.
ha laid down in Partridge ▼. Strange (Plowd. 84.), that the objection
rf moseital is not answered by shewing that the statute need not haye
Imndtcd at aU. But in that case there was a continued Teference to
^ttWe, as misredted, throughout the whole declaration*
M'CoRMACK against Meltok. srviod^,
JMay6Ui.
Miller moved for a rule to shew cause why an Fiaintiffha?ing
order of Taunton J. for amending the ca. sa. in j[^^,ted the *
tbcase should not be reversed, and the defendant ^^^J"
Acfcirged firom custody. The amount recovered by Z^^'^^IJ**
tk plaintiff for damages and costs was SSL 105., but di^tbede-
■^ ^ fendantoutof
u^ sum inserted in the psocess was S^L lOs. The custody, and
allowed the
amendment consisted in substituting the right sum, and process to be
adding a testatum clause. Miller admitted that the inserting the
littter amendment might be made, but contended that not^bd^' ^
4e former was in a matter of substance, and not *!J!I[?^!L?*
' Tarumce was
iBowable. IPattesonJ. ItisstAtedinTidd^s Practice (a) j ^^^^
4«t"ihe ca. sa. may be amended by the judgment, in fc^dantwaa
# .r o damnified*
titt names of the parties, if mistaken, or in the amount
«
(a) P. 1028. 9th edit.
Z 4 of
MXLTOK.
3S2 CASES IN EAST£R TERM
1834. of the sum recovered:'' and several cases are dte^ «
" among others, Laroche v. Wasbrough (a), where t:de
M'COKMACK
agahui writ of execution was amended by reducing the sti.ii^
in which 151. had been introduced by mistake.] Sup-
pose a party owing 20/. were arrested on a ca. stu
for 500/. ^LitUedale J. Probably, in such a case, the
amendment would not be allowed; it would appear,
there, that the irregularity arose from something more
than mistake. But in Mow/s v. Leake (i), where
execution had issued for 1400/., the judgment bdag •
only for 700/., the Court allowed an amendme&ti
appearing that the variance was merely a mistake, an <
that 700/. only had been levied.] There is no pretCDC-*^
here for saying that it was a mistake; and, if tfa-
process is amended, the party cannot maintain an actioi
for the improper arrest. IPatteson J. Why shoolc
he maintain an action when he has sustained no damage^"
He should have paid his debt]
Lord Denman C. J. This point was properiyig ^1
decided by Lord Kenyan in Laroche v. Wasbrough (c)— ^ ''
He there says, " The justice of the case requires lhaf-^=^
we should permit the plaintiff to amend; if the defend— -^^
ant had indeed suffered by the excess in the execution:
that might have varied the case ; but here he has no
sustained any damage by it." It was so in the
case: the defendant is not damaged; and, if he
suffered any inconvenience, it was his own fault in
paying what he owed. There will be no rule.
LiTTLEDALE, Patteson, and Williams Js. concu
Rule
(a) 2 T, B. 737. (A) 8 T. R. 416. note (a).
(c) 2 T. R, 739.
iH THE Fourth Year of WILLIAM IV, $33
1834.
James Phillips, an Infant, by Robert Wigin- Tuetdaj,,
TON, his next Friend, against Jon£s.
ydSSUMPSlT, The declaration stated, that in con- Defendant
sideration that plaintiff would enter into defendant's plaintiff's
semce in his trade of a jeweller, defendant promised ceive piainUff
that, if upon and after a reasonable trial he should ap- ^norTJnto his
ptoreof plaintiff he would take him as an apprentice ]||^T*'*^*'Z*''
in his said trade, and execute a proper indenture, on *» apprentice if
*^ *^ approved of.
the same being also executed by plaintiff and his father. Plaintiff went
M. 1 1 - ./v» /. 1. n J 1 /• 1 into the service,
^ALverment, that plaintiff confiding, && entered defend- and worked for
^ . .1 ^ .. 1 . •,. I defendant
111 service on trial as aforesaid, and continued in such nearly two
rice on trial for a long time, to wit, &c., the same being ^^1 appiu
Enore than a reasonable time in that behalf; that defend- StTrtegTaf
Astdid, after a reasonable time, to wit, on, &c approve of |!"?® ^r^^
plaintiff and that plaintiff and his father were willing to f«nd»nt told
^ '^ ^ the father that
^^xecQte the indenture, of which defendant, on, &c. had plaintiff should
serve out the
^cticei Breach, that defendant did not nor would re- two years, and
^^^ phiintiff as an apprentice in his said business, the father pay.'
^koagh he was afterwards, and after such approval, to 1^. *This*was
^i^ on, &c requested by plainUff so to do. The second SS^JSS **"'
^oant was on a promise by defendant, that if he should "u^'^'^u^^.^l
approve of plaintiff on a reasonable trial, he would pWmiff, and
^^cceive him into his service in his said trade, and if home about his
,^ ^ business.
^WiatiffweDt home, and on the father applying to defendant for an explanation, the latter
^U him to go and do his worst. The father then caused a letter to be written to de-
^^tdntby his attorney, requiring him either to take plaintiff as his apprentice, or recom-
P«uu him for his work ; but no satisfactory answer was given, and plaintiff, by his next
^Hcad, brought an action to recover compensation for his service.
TW Judge put it to the jury on these facts, whether or not the defendant's conduct was
wammied the father in considering the contract for an apprenticeship as rescinded;
fbnhcr stated, that if they thought it was, they were to give plaintiff such compens-
br fab work as they thought proper. The jury found a verdict for the plaintiff, with
^■&a|csby way of compensation for his services :
HtU, that the direction was right, and the verdict not to be disturbed.
he
534f
services dooe^^^^ for the P^ plea, *« ««»«
'^'*'*" v.tnaVV>efote^^^ 1833, ^^ appeat^ ^^
defendant ^°^;^^, understood ^ ^,,
Jovxs^
IN THB Fourth Y£ar of WILLIAM IV. SSS
seated; but^ shortly after this time, the defendant^ on 1884.
the boy's coming to his work in the momingi scolded
A HIULtPS
and beat him, and told him to go home about his a^but
buiiiess ; and he went home. The fiather, on the same
day, called on the defendant, with his son, to enquire
the reason of what had happened, and to learn what he
iDteDded to do, but was told by the defendant in a con-^
temptuous manner to go and ^^ do his best and worst"
The &ther then caused a letter to be written by his
attCMToey to the defendant, referring to his promise to
take the plaintiff as apprentice, requiring him either to
do so, or to pay the plaintiff a compensation for hb
woiky and giving him until the Saturday following to
mike his election before an action should be com-
meooed. The defendant, on the Saturday^ wrote to the
faber, proposing that he should call upon the defend-
ant on the Monday f to which (by the fiather's direction)
in answer was sent by the attorney, desiring that any
proposal to be made should be addressed to him.
Modking further passed, and in about a week the action
moommenced. Evidence was given to shew that the
bo/s services had been of some value to the defendant
bus contended on behalf of the defendant, that there
vv no proof of the plaintiff having been hired at a
alirji but that the evidence shewed the contrary, and
dist the plaintiff's case, if maintainable at all, should
liftve been grounded on the damage accruing to him by
tbe breach of the special contract to take him as ap-^
prauice; of which damage, or of any express refusal
to take the plaintiff, there was no proof. The Lord
Chief Justice left it to the jury (a) to say whether the ^
(a) See p. 337. post*
conduct
336 CASES IN EASTER TERM
ISSi*. conduct of the defendant had not been such that tfa
plaintiiTs father might justly consider the special coi
agaifui tract abandoned, and take his son away, in which cai
JONSfc
his Lordship was of opinion that the plaintiff was ei
titled to such compensation for his services as the jor
might think warranted by the evidence. The jai
found a verdict for the plainti£P, damages 20/. In it
ensuing term a rule nisi was obtained for entering
nonsuit, or for a new trial.
R. Vn Richards now shewed cause, and contend
that the special agreement had been determined, ai
that the defendant was bound to make some recoi
pense to the plaintiff for his services, and could not m
up in defence the contract which he had abandoned
The Court then desired to hear the other side.
Erie contr^. The evidence shews that there was an
open contract down to the time of bringing the action;
the plaintifl^ therefore, could not proceed upon the
general counts : Weston v. Dawnes (a), Cooke v. Jfiflt-
sione (6). The whole of the plaintiff's connection with
the defendant was in the character of an intended ap-
prentice, and not of a servant; if the case hadariaen
under the poor laws, it would have come within the
principle of Rex v. Bilborough (c), Rex v. St. Mary^ C"
*welly (d), and Rex v. Crediton (e). The test of the re
lation between the parties here would be, whether oi
not the defendant, if disposed to enforce the agreemeD^
could have sued upon it, as in Keene v. Parsons (g) ; an^
(a) J Doug. 23. (6) 1 Xew Rep, 351.
(c) 1 i?. ^ Aid, 1 15. {(i) 2 /?. ^ C. 750.
(0 2 B, 4- Ad, 493. {g) ^ Slurk, N. P, 506.
iher-
JONXS.
IN THE Fourth Year of WILLIAM IV. 337
there is nothing to shew that he could not [^Little^ 1834.
dale 3 • Suppose there had been a continued ill usage T
A ft ILL I PS
by the master from day to day, which had at last oftahui
rendered it necessary to remove the plainti£^ might not
an implied contract have been alleged to pay him for
his services ?] Earratt v. Burgharl (a) is the converse
of that case, and it certainly was held there, that an im-
plied contract arose on the part of the father to pay for
the bbard and lodging of his son in the master's house.
But the facts here do not admit of a similar suggestion.
[PsUeson J. The defendant's expression, when the father
cdled upon him, is very like a refusal to execute the
special agreement] The correspondence which fol-
lowed shews that it was not so considered by the parties.
[Lord Denman C. J. My impression of the master's
oondoct was, that he was following up a system of
erasioo: and I think I must have stated to the jury that
tk question was, whether his behaviour was such as
jtttified the father in taking his son away ; and that if
Aej thought so, the son was entitled to some recpm-
poie for his services.]
LnTLEDALE J. I think that, if the conduct of the
B^ttter was such as fairly authorized the father to take
^wa away, the son was entitled to some compensation,
^ there is no occasion to disturb the verdict
Patteson J. I cannot doubt that the Lord Chief
liitice lefl the case to the jury in the manner he has
'I idled; and they being of opinion that the father was
Jttti&ed in considering the contract at an end, the plain-
(a) 5 Car, ^ P,38l.
tiff
388
CASES IN EASTER TERM
1884.
Phillitc
agaimU
Jovn»
tiff was entitled to some remuneration. If it had ^
peared by their finding that the contract was still ope
when the action was commenced, it would have been
different case.
Williams J. I think there was evidence which migl
properly go to the jury in the manner in which the Lot
Chief Justice left it The expressions of the mastc
and the other fitcts in the case, lead to the condunc
that he was evading the performance of his agreemec
If he had not actually determined the contract, he ha
put off the fulfilment of it unreasonably and unjustlj
The Lord Chief Justice therefore left the case properij
to the jury, and they were at liberty to find an implied
agreement that the plaintiff should have something fin
his services.
Lord Denman C. J. The service performed gave a
prim& facie right to compensation, and that prira& &dc
case was not contradicted by the other facts.
Rule discharged
A/oy 6tb.
Under 3 &
4 IT. 4. C.42.
I. 31m execu-
tors are liable
toooits in
acttom com*
menced before
thoitatute
cemo into oper-
ation, and tried
afterwards i
UclJ, LitOt'
tialcJ* dis-
sentientc.
Freeman and Others, Executors of Freeman
against Moyes.
npHIS action was commenced by the plainti£& a
executors, in Easter term, 1832, an action for tl
same cause having been brought by the testator, bi
having abated by his death. Notice of trial was give
for the London sittings in Michaelmas term followinj
but the cause, being made a remanet, was not tried ti
the sittings after Michaelmas term, 1833, when the d
fendai
IN THE Fourth Year of WILLIAM IV,
339
faiclant had a verdict. He afterwards took out a sum-
moDs for taxation of costs, under the statute 3 & 4
W. i. e. 4f2. s. 31 (a). The master doubted whether
the statute, which came into operation on the 1st of June
1833(i), applied to an action previously commenced ; but
lie taxed the costs, and recommended that the question
should be submitted to the Court. In Hilary term, 1834,
I rale nisi was obtained for setting aside the taxation;
aguost which
1834.
Febsxaw
ogainti
Moris.
Sr James Scarlett in the same term shewed cause (c).
The words of the clause in question are retrospective.
It enacts that, *' in every action brought," not, ** to be
broQf^t,'' by an executor, he shall be liable to costs.
Thatmdudes actions depending at tlie time when the
, act passed. Where it is meant that an act should have
i prospective effect only, it is common to use corres-
pooding words. In this instance the l^slature would
hsTe said, *^ in all actions hereafter to be brought," Sec
The daose of Lord TenterderCs act, 9 G. 4. c. 14.
I* 1* which provides, ^^ that in actions of debt or upon
diecase^ grounded upon any simple contract, no acknow-
Mgment or promise by words only shall be deemed
soffident evidence of a new or continuing contract," &c,
(a) 3 & 4 W, 4. c 42. «. 31. ** And be it further enacted, that in
**aT action brought by any executor or administrator in right of the tea-
(■tor or intestate^ such executor or administrator shall, unless the court
IB vhid) sodi action is brought, or a judge of any of the said superior
flBva^ ihall otbcrwise order, be liable to pay costs to the defendant in
CM of biing nonsuited or a verdict passing against the plaintifi^ and
*»in other cases in which he would be liable if such plaintiff were suing
* Ui own right upon a cause of action accruing to himself; and the
^wliut sbaU have judgment for such costs, and they shall be recovered
a liU manner."
W Seet 44.
(c) JoHuary SOih, before Lord Denman C. J., JJUledale and Taun-
talis.
has
SiO CASES IN EASTER TERM.
1854>« has been held to exclude evidence of acknowiedgm
made before the statute came into operation {a\
Frbsmah
Movn.
Plait contra. There is nothing in the words of
clause in question to give it a retrospective effect;
great injustice would be done if that effect were gh
It was not the fault of the plaintiffs that this cause ^
not tried before the act came in force. Cases m
Lord TenterdefCs act are not in point ; that statnfti
troduced a rule of evidence, which applied to every oi
that might afterwards be tried, depending ilpon m
evidence : but there is a difference between an act mtf
regulating trials for the future, and one which shot
take away the antecedent rights of parties litigrfi
[Taunton J. The consequences of Lord Tenierdalt\
in the description of cases cited were equally penal a
plaintiff: he commenced a suit founded on a verbal p
mise, which at that time was suflBcient ground for 1
action; but, upon the trial, he was told, the stati
having passed in the meantime, that he must prodoo
promise in writmg, or fail.] If the Court should tU
that the act 2 & 3 W. 4. c. 42. has the effect of nnki
the plaintifis liable to costs, at least this is a case
which the Court will " otherwise order," as the
enables them to do {b).
Cur. adv. o
Lord Denman C. J. now mentioned this case^ ai
after reading the clause relied upon in support of
taxation, said: Upon enquiry we find that both the Co
(a) Towler ▼. ChaUerton, 6 Bing* 258.
(6) See Lyiom ▼. Barrow ^ \OBing, 563,
vs THE Fourth Year of WILLIAM IV.
of Common Pleas and Court of Exchequer (a) hold,
that actions already commenced when the statute came
into operation are within the meaning of that section.
The role for setting aside the taxation will therefore be
dischai]ged«
341
1834.
Frbjimak
against
LiTTLEDALE J. I must own, as far as my own opinion
goeS| I should have thought differently. It seems to me
a strange consequence of the act, that a party should
commence a suit, and find only on the eve of the trial
tbt he is liable to costs ; which, if he had known before,
be probably would not have brought the action.
Rule discharged (b).
(•] UPidup ▼. Whartofit 2 Oo. 4* M, 405. Hilary term 1834, where
At ane point arose as in the present case, the Court of Exchequer, being
Bftnad that such a question was then depending in the King's Bench*
^ tine Car consideration, and in Easter term BayUy B. said, " that the
Com kid conferred with the Judges of the King's Bench, and that both
OrM eoooured in thinking the statute retrospective ;*' but the Court
<f EidMqoery under the circumstances of that case, did not allow the de«
Mm to bare costs. S, C, 4 Tyrwh, 221.
W Sm^ as to a similar question on the rule of Court, HU* 2 W. 4.
]ilk74. (3 B. j* Ad, 385.) Cox ▼. Thomasorii 2 Tyrwh. 411. 2 Cro, j-
^•49&, where it was held that the rule applied to costs incurred before
tCBttioto operation, and taxed afterwards.
Sitilio, as to the construction of 3 & 4 fT. 4. c. 42. <• 30., Carvalho t.
^vii is Error, post.
Voul.
Aa
542 CASES IN £AST£R TERM
18S4.
Tueaday, The KiNO ogomst The Archdeacon of Chestei
May 6th.
A Testry being A RULE had been obtained calling on the Archdeaccn^
held in Man- of Chester to shew cause why a mandamus sboii* ^
^^il^noT ^ °^^ issue, calling upon him to swear in certain perso^»^
churchwardens, „amed BarbouT, Bastron, and Grime, as churchwards iis
notice wu 797 ««
giTcn that the Qf ^^g parish of Manchester, or the Manchester divisloo
meeung would
be held in the thereof, ou the grouuds, that they were duly elected;
parish churdif
but that, if a that the meeting at which their election took place was
manded, it illegally adjourned ; and that a poll subsequently takea
would bead- ^ a \ ^ 1
joumed to the was not duly taken.
Srm^ng ^* ^^ appeared by the affidavits that a meeting of the ley--
a"* Thandt. P**}'®*'^ ^^ ^^^^ ^^ JEostcr Tuesdajf, the 9th of Jjfnf
upon which a 1853, in the collegiate or parish church o( Mandiester,
poll was de-
manded, and for the election of churchwardens for the parisbi who
thereupon the
chairman, wiUi- are also overseers of the township oi Manchester. The
sense of £e R^v. Cecil Daniel Wray^ one of the fellows of the church,
^urned'the' ^^^^ ^^^ chair. The meeting is usually held without
town-bal^**** any notice; but on this occasion, a contest being ex-
whcre a poll pected, the churchwardens, as it was stated, to avoid un*
was taken : *^
Held, that tiie secmlv behaviour in the church, had the followinir notice
proceeding was * ^ °
regular, no bu. given ill church on the Slst of March preceding the
siness having
been inter- election : —
and the ad*. ' " Notice is hereby given, that a meeting of the inhabit-
i^rlTcuhJ'' *" an^ in vestry, of and for the parish of Manchester, wiU
*Irt of*Se^ be held in the parish church oi Matichester, on, &c at
original ap. eleven in the forenoon, for the appointment of chnicb— •
pointroent. *- '^
wardens and sidesmen for the parish of Manchester for*"
the year ensuing; and, if a poll should be demanded, tbi^
meeting will be immediately adjourned to the town-halB
IN THE Fourth Year of WILLIAM IV. 348
in Manchester^ and the polling will commence and be 1884.
cept open till four o'clock in the afternoon of the said — —
^th day of Aprils and the polling will be continued from ivomjt
lay to day at the town-hall aforesaid, from the hour of ArcbdeMoa of
ten in the forenoon to the hour of four in the afternoon
cf each day {Sunday excepted), up to and including
Tuesday the 16 th day of April."
Signed by the churchwardens.
Dated, &c
The chairman, on taking his seat upon the day of
dection(a), stated the substance of the notice, after
vbich one of the outgoing churchwardens proposed a
listof persons to serve the office for the ensuing year.
The list having been moved and seconded, a consider-
able damour and difference of opinion arose: other lists
vere proposed, and, among them, one containing the
DUDes of Messrs. Barbour^ Itostron^ and Grime ; and
^ list, being put to the vote, was, on a shew of hands,
cirried by a large majority. A poll was then de-
Baoded; and the chairman, without any motion having
been made or vote taken on this subject, adjourned the
dectioQ to the town-hall. Several persons (stated on
aUirit to have been ley-payers) objected to the
^oamment, both at this time and during the poll.
Ifaoy who had not been at the meeting in the church,
polled in the town-hall; and the churchwardens' list
'w carried by a majority of 2059 to 28. The arch-
^IctcoD swore in the parties so elected, and refused to
>*ttr in the others. It was further stated, in the affi-
^ts agunst the rule, that the number of persons en-
^ to vote at the election was 25,000 ; and that many
(>) As to ibe minister's right to preside, see WUson ▼. M*Math, 3 B»
k M 844, note (b). 3 PhiU. Rep. 6U S. C.
A a 2 per-
844 CASES IN EASTER TERM
ISSi*. persons Qot qualified to vote were at the meeting in the
church, and active in the proceedings.
agoutsi
The
ArrhdeMODof Sir James Scarlett (with whom was Starkie) noi
Cbsstkr.
shewed cause. After the notice that had been given,
the chairman had a right to adjourn the meetings
Since the announcement in the church, no person
given notice of any intention to oppose such adjoui
ment. Had any such intended objection been
known, many persons would have attended the meetic^
in the church, who, as it was, did not do so. The
can be no reference to custom in this case, because ;^
does not appear that there was ever a contest on sa
an occasion before. [Lord Denman C. J. The
ceeding seems to us to be very reasonable, unless axxjr
authority can be shewn against it.]
F. Pollock and Rttshton contra* The right of
journing is in the assembly at large, Stotighton v. Rf2f
nolds{a)f and, if it is not in the chairman, he cannot
transfer it to himself by giving notice beforehand that
in a certain event he will exercise it. It makes no dif-
ference as to the right, that some persons who did n^^^
attend would have been present if they had thought tfc*^
adjournment would be opposed. [Lord Detiman C— J'
This is not properly an adjournment. May not ll^^^
chairman appoint a convenient place for taking th ^
poll? Suppose the whole proceedings had been ori
ginally appointed to take place in the church, and th<
meeting had been so tumultuous that it became neces*
sary to remove into the churchyard; would it have^^
(o) 2 Stra, 1045. S, C Oi. temp. Hard. 274. Fori. 168. See Vn^"^^
tkaux's Directions to Churchtoardens, 8th ed« by T^frwhitt, p. 62. note 5.
beeni-
IN THE Fourth Year of WILLIAM IV. 845
been irregular to do so ?] If the appointment is relied 1834.
upon, it must be put on the footing of an original ap-
pointment of two meetings, which the chairman had no agamtt
. , , The
right to make. Arcbdetcon of
Chjmtkk*
Lord Denman C. J. The objection has been dis-
tinctly and plausibly put. But those who summon a
meeting of this kind must necessarily lay down some
order for the proceedings : and I think it is competent
to them to say that the meeting shall be held in one
place, and, in a certain event which may require it, shall
be removed to another. There is no surprise or
injostice proved in this case. It is not like Stoiighton
^^•Jdynolds^a). There it was held that the chairman
<^M not adjourn the business of the vestry while it
'^^^ in progress ; but here the business was not in pro-
s'^ at the time of the removal to the town-hall. It
fand been announced that, if there should be a poll, it
oold be taken in the town-hall ; and neither the shew
hands nor the poll was interrupted by the proceeding
'^•'hich took place.
Littledale J. I see no objection to its being an-
*^«unced beforehand, that if the parishioners, when
^^sembled, wish for a poll, it shall be taken in such a
l^lace. The election here might be by shew of hands
^^* by poll. I think the proceedings were divisible, and
^^ut the poll might even have been appointed for the
^<xt day.
Patteson J. It is true, as Mr. Pollock puts it, that
^Uhe chairman had assumed a discretionary power of,
346 CASES IN EASTER TERM
1884. adjourning, he could not justify it by saying, he ha<
T~~ announced that he would do so. But here the announce
TheKivo
ttgtunu ment is. not that if there is a poll the chairman will d
The
ArcbdMcon of as he pleases, but that in that case the poll shall be hel
in another place. The place where the poll is to h
held is part of the original appointment The cas«
therefore! is not like Staughton v. Reynolds (a).
Williams J. concurred.
Rule discharged, with costs Q
(a) 2 Stra. 1045.
(6) la the course of the argument the Court adTerted to a case of J
T. The Churchwardens of St, Mary, Lambeth, Trinity 7. 183S, in whi^
rule nisi had been obtained for a mandamus to elect churchwardeni^ «
on the ground, that on the occasion when the persons then acting ^^h
supposed to have been elected, the rector, who was in the chair, had, ttm]
a poll being claimed, adjourned the meeting for that purpose fronm
school-house (where it was holden by appointment) to the church,
own authority, and that he had postponed the poll till some other bosi
which he considered necessary, had been disposed of. The poll was gt
into on the same day, and continued on subsequent ones, at the chaiv
No previous notice had been given of such adjoummenL The afficiai
were numerous, and went into much detail. The statements in opf
sition to the rule tended to shew that the poll could not have be
properly, if at all, taken in the school-house, from the nature of the plw
and the numbers and tumultuous state of the meeting ; and the rule ^
also opposed on other grounds, independent of the discretionary power"
the chairman to adjourn, viz. a former practice of electing at the cfaur^
and an alleged acquiescence, on the present occasion, by the parties o^
complaining. Stoughton ▼. Reynoldst 2 Stra, 1045., was cited in tm
port of the rule, upon which Parke J. observed, that in that caae t^
adjournment was to a subsequent day, and asked if the poll could n^
have been adjourned from one room into another? The Court (Lor'
Tenterden C J., Liitledale, Parke, ^nd Taunton Js.) considerinf tb'
question too important to be decided without further considentioa
and the day on which it was brought on being the last of Trinity tenn
it was proposed, and agreed by the parties, that the judgment sliould b<
given early in the vacation, and the rule drawn up as of the last day o
term. The Court, in the vacation, ordered that the rule should be di»
charged, but it was understood that no reasons were given.
IN THE FocjRTH Yeae OF WILLIAM IV.
16S4.
Mansfield against Brearey. wednetday,
^ May 7th.
A SSUMPSIT. The declaration stated, that in con- Wber« a cause
sideration that plaintiff had employed and retained before a sheriff
defendant for certain reward and commission, to sell a rnfiriof^court^
turaip-cutter oftheplaintifl^ of great value, viz. 10/., de- guwt toVT"
fendant promised that he would endeavour to sell the * ^ *ihS^^'
same, but not for less than ♦/., and would return it if he 5°"'* '«^»ii not
bear a motion
Goold not procure that sum. Breach, that defendant sold for a new trial,
unless the notes
the same for a smaller sum, &c. to wit, 1/. 105., and did of the sheriff or
other judge be
M return it There was another similar count, but produced and
omiuing the promise to return the chattel; a third count Iffidavit. ^ 8uch
«i a promise to sell the turnip-cutter for the best price "eldnot bT*'*
tiefeiidant could get ; and counts for goods sold, money ^^*jjj ^ ^^^^
haA and received, and on an account stated. Plea, the ^^^ ""*^**' ^*
above statute
£eoeral issue. The cause was tried at Derby, before the b«fore an under
^ , "^ sheriff, the de-
Under sheriff of the county of Derby^ on the 4th of claration con-
tained special
JAruary last, by virtue of a writ of trial, under 8 & counts on a
'^ W. 4f.c* 42. s* 17*, and a verdict found for the plain- ^ndant to^seUa
ti^ for 1/. 1 Is. piSSiffrit a
price not bdow
'^L, afcrring that defendant sold the snnie at an inferior price, to wit, 1/. IQp^t there
>rae also ocmmu>n. counts. Evidence was given for the plaintiff ol the special contraot,
mod evidence on the other side, tending to discharge or excuse the defendant; and it
'^rss proved that defendant sold the chattel for 1/. lit., which he had not paid over.
^Mcndant, when the action was brought, lived within the jurisdiction of a court of
^■qoests established bj a statute, which enacted that no action for any debt below 40s.
^boold be brought against any person residing within the jurisdiction, except in that court.
Ilw act was insisted upon bj the defendant at the trud. The jurj found a Terdict for
^tht plaintiff for ]/. lis.
On motion to enter a noiuuit, or verdict for the defendant, or fer a suggestion under tiie
local eoort act. Held, that this Court could not consider the action as one brought mereij
^ rroover a debt, evidence having been given in support of the special counts, and there
Wag nothing to shew that they were inserted colourably.
Abo, that it made no difference, that the under sheriff had at ftrat entered the verdict am.
^ postea as taken on the count for money had and received, and afterwards alteredl it
to s general verdict, on the application of the plaintiff.
A a 4 fVAite^
348
CASES IN EASTER TERM
1884.
MAVSriSLD
agtdnti
Bkkakit.
Whiteftursij within the first four days of the term^
moved for a rule to shew cause why a nonsuit shoul
not be entered, or a verdict for the defendant, or wh
the verdict should not be entered on the postea as on th
common counts only, and a suggestion entered on th
issue roll, that the verdict was taken on those coun
and that the case was within the Derby Court of
act, 6 G. 3. c. 20. But the Court having announ
early in the term, that on motions for new trials,
causes tried under 3 & 4 fF. 4. c. 42. s. 17.,
should require the notes of the judge of the inferior
to be produced, and verified by aflBdavit(a), and
notes in the present case not being ready, the Ccz^m.
allowed the motion to stand over. On a subsequent di^
{April 24th), the motion was renewed, a copy of the
notes being then in court, signed by the under sheriff
m
urt
the
(a) The followiog case occurred on the last day of this term :—
Tkunday,
May 8th.
The Court re-
fused to grant
a new trial for
a Terdict
alleged to be
against evi-
dence and the
presiding
judge's direc-
tion) in a cause
tried in an
inferior court
of record under
S&4 /F.4.
c. 42. *. 17.,
because the
notes of the
presiding
judge were
not produced,
nor their non-
production
accounted for.
BuRNEY against Mawsok.
Alxxander liad obtained a rule, on the 1 7th of April in this tem, to
shew cause why the verdict in this case sliould not be set aside and a new
trial had. The cause was tried, under a Judge's order, before the mayor
and bailiffs of LiveriMol, The jury found a verdict for the defendant.
The affidavits, in support of the rule, alleged facts to shew that the ver^ct
was against evidence, and against the direction of the presiding judge ;
but the judge's notes were not produced, and no allegation was made of
any attempt to obtain them.
F, Pollock now shewed cause, and contended that the Court could not
proceed in the absence of the notes.
■
After hearing jiUxandsr in support of the rule.
The Court (Lord Denman C. J., LiUUdale, Paltaofh And Wlianu Js.),
on the above ground,
Discharged the rule.
and
Brsakit*
IN THE Fourth Year of WILLIAM IV. 3*9
and accompanied by his affidavit, stating that the cause l6S4f.
-^as tried before him, on, &c., and a verdict of 1/, II5. __
MAjrtniLD
ionnd for the plaintiff, and that the paper writing an- ji^nui
nexed contained a fair transcript of the notes of evidence
^aken by the deponent on the trial. A rule nisi was
llien granted, and in answer to a question submitted by
ooonsd, the Court (a) said that the under sheriff's notes
need not be filed.
The grounds of motion were as follows. It appeared
at the trial that one Chambers^ an agent of the plaintiff,
deposited the turnip-cutter at an inn called the Cross
Kys at Derbyy where he took the defendant, an auc-
tioneer, to see it, and commissioned him to sell it, directing
him, however, not to take less than 4/. The machine
Z'^emained at the Cross Keys about eight months, during
pnrt of which time it stood in the open air, and thereby
recdved damage : evidence was also given to shew that
it was not originally worth 4/. The defendant at last sold it
lor IL 1 15. ; and there was evidence of Chambers having
pv-eviously said, that it must be sold for what it would
letch ; but he himself stated that the first direction was
the only one that he gave. The 1/. II5. was not paid
o^w'er to the plaintiff. The defendant proved that, at the
time when the action was commenced, he resided within
the jurisdiction of the Derby Court of Requests ; and he
contended before the under sheriff that the action was
in reality for a debt under forty shillings, and ought
therefore to have been commenced in, the Derby court,
according to the act 6 G. S. c. 20. (i). The jury found
a verdict
(•) JJuUdale, Parie, and Patleson Ja,
W Tbc act gives power to proceed in that court for any Jebi not
^^'^f^ 40t. (with certain exceptions) due from any person inhabiting or
residing
350
CASES IN EASTER TERM
1884.
Mavsvibld
BllBAaXY.
a verdict for the plaintiff for 1/. lis. The under sht
certified on the postea, that judgment ought not to
entered up till the defendant had had an opportunity
applying to this Court for relief under the act On
present motion it was contended that, by the Derly G
of Requests act (though not specially pleaded), the pb
tiff was not entitled to recover before the under sherii
being clear that the action was in fact brought for mo
had and received, and that the jury had so considerei
the verdict having been given for the precise sum reoei
by the defendant ; and Parker w. Elding (a), and the ja
ment of Lord Kenyon in Taylor v. Blair (6), were cii
Affidavits were also put in, stating that the defendi
when the cause of action arose, and also at the time of
commencement of this suit, was inhabiting and resid
at, 8cc., within the jurisdiction of the Derby court, i
liable to be summoned before that court for the dc
and further, that the postea, as originally drawn
stated the verdict to have been given on the seve
count (which was for money had and received), and t
a copy of the postea in that form was delivered to
defendant's attorney, but that it was subsequently alte
residiDg within the town and borough of Derby and liberties thereof, j
f. 25. ; and section 24. enacts, that no action for any dd>t below •
and recoverable by rirtue of that act in the said court of requests, sha
brought against any person residing or inhabiting within the jurisdii
thereof, in any of the King's courts at WestmmtUr or any other o
whatsoever, or elsewhere out of the said court of requests ; and if
action shall be brought, and it shall appear to the judge or judgct d
court where such action shall be brought, that the debt to be lecwfert
the plaintiff in such action doth not amount to 40<., and the defeii
shall prove that at the time of commencing such action he was I
to be summoned before the said court of requests for such debt, the
judge or judges shall not allow costs to the plaintiff, but shaU order
to pay the defendant's costs.
(a) 1 EaUf 352. (6) 3 T. B. 45S.
IN THK Fourth Year of WILLIAM IV* 351
by the under sherifi^ after an application by the plaintiflTs 1884.
attomejy so as to make the verdict appear general.
Busby now shewed cause. First, the affidavit of
lesidenoe is not sufficient. It states only that the
defbdant was residing within the jurisdiction at the
time when the action was commenced ; not that he
was so before or after. He might have been there on
1 fisit, merely for a day. [Lord Denman C. J. What
? it were so?] The precedent of an affidavit given in
TUfs Forms (c. 40. p. S47. ed. 1 828), on motion for leave
toeDter a suggestion on the London Court of Conscience
let, (which uses nearly the same words, as to residence,
with the present act,) states that the parties, ^* at the time
of the commencement of this suit, were, and ever since
ban been, and still are, respectively inhabiting" in the
dtj €S, London. [Lord Denman C.J. The answer to
Aat would be, that the form should be corrected in
fiitoie.] Then, as to the principal point, the breach of
oootract stated in the special counts was the substantial
came of action ; the common counts were only added
fi>r caution. If the verdict was given in respect of
Qoliqaidated damages, the case is not within the act,
Jimas V. Greening {a) ; and the plaintiff has a right to
assume that it was so given, a general verdict appearing
on the postea.
Whitekurst contra. This was a common case of
noDey had and received ; and the question is, whether
a plaintiff, by merely putting a special count at the
W of his declaration, can defeat the statute. In
(a) 5 r. R. 529.
Jonas
against
BKXAiinr.
BiiBAMnr.
352 CASES IN EASTER TERM
lSS4f, Jonas v. Greening {a\ it does not appear whether tha
,, were any common counts, or, if so, that such couni
^f^^ were applicable. The evidence here shews that tha
was, in reality, no cause of action but one, — the not
payment of the money received on the sale ; and tb
jury shewed that tliey thought so, by the sum for whic
they gave their verdict. They have, in effect, negatife
the special counts, though they did not say on wba
count their verdict was given. The Judge who trio
the cause ought to have had that correctly stated on th
postea. ILitiledale J. The regular course was to appl]
to him if the postea was wrong (ft). Lord Denman CJ
He has entered the verdict generally.] It was at fin
entered on the seventh count ; and the Judge had K
right to alter it after he had delivered it to the plaintif:
at all events, by the certificate annexed, he has referred
the matter to this Court. As to the mode of taking ad-
vantage of the statute, the cases cited in moving for the
rule shew that where there is a prohibitory clause in an
act of this kind, the defendant may either plead it, or
avail himself of it on the general issue, and in the argu-
ment in Barney v. Tubb (c), which was assented to bj
the Court of Common Pleas, this appears to be taken
for granted.
Lord Denman C. J. This was undoubtedly an actioi
brought to recover u debt not exceeding 405. ; but J
was also brought to recover unliquidated damages oa >
contract, which contract was proved at the trial. Tb
jury may probably have thought that, although such
contiact was broken, no actual damage had ensued ^
(a) 5 r. /?. 529.
(6) TmW* Practice p. 713. note (ij. 901. 9th ed.
(c) 2 H. BL 352.
Brxakit.
THE Fourth Year op WILLIAM IV. S5S
tiff. If they had thought otherwise, the ver- 1834.
d probably have been for a larger sum ; if they
ight that the contract was not broken, they against
t have given a general verdict We must take
i under sherifiTs notes, that the verdict was on
tunts; and, as to the special ones, that the jury
be contract broken, but without actual damage
lintiff. The rule must therefore be discharged.
.EDALE J. I am of the same opinion. It is
a plaintiff has no right to exclude the operation
tute by inserting a special count in his declar-
ut in this case there was evidence of a bonfi
1 for unliquidated damages. We are not en-
>ay that tlie verdict was on the common counts.
i evidence of the plaintiff's agent having at last
lefendant to sell the machine for what it would
was for the jury to say whether that direction
1 or not.
AMs J. (^) I am of the same opinion. The
ed are not like the present. In Parker v.
) there was no count on a special contract. It
at a plaintiff ought not to be enabled, by intro-
ich a count, to deprive a defendant of the be-
he statute. But there is nothing here to shew
nlroduction of the special counts was a mere
ice. Witnesses were examined in support of
id, although the plaintiff failed in making out a
lamage on those counts, there was enough to
t they were not merely colourable.
Rule discharged.
Patieson J. had gone into the bail court to hear motions. *
i Easi, Z52.
354^
CASES IN EASTER TERM
1834.
A canal com-
pany were em-
powered by
■tatute to im-
pose rates of
John Farquhar Eraser, Esquire, Administratoi
of John Farquhar, Esquire, against The
Company of the Proprietors of the Swansea
Canal Navigation.
n[^RO VER for barges, coal, and culm. The trover and
conversion were laid on the 20th oi September 1831.
Plea, the general issue. At the trial before Aldenm J.
ofg^^dT^X a^ *« Glamorganshire Summer assizes, 1832, a verdict
fi*°th' "laces of ^^* fou^d for the plaintiff subject to the opinion of this
payment, and Court on the following case.
in case of non- *^ ^
payment to At the time of the making of the indenture next-men-
seixe the goods . ,
in respect of tloned, James Cox was lawfully possessed of certain veuH
which such
rates ought to
bare been paid, or any part thereof, and the boat laden therewith, and detain the aaed
payment of such rates, and also of all arrears of the said rates due from the owns of
such boat; and if such goods were not redeemed within seven days, to sell the «bI|*
in cases of distress for rent : Held, that this clause did not empower the company to ^
train goods when no longer upon the canal, or to sell the boats.
The act also directed, tliat all actions fur any thing done in pursuance thereof ibodd be
commenced within six months next afler the fact committed, or, in case of a contionite
of damages, then within six months next after the doing such damage should have cutA
Collieries, machinery, barges, &c. had been mortgaged by C to F.,to secure therepsyflHt
of certain monies, with a proviso, that in case of default F. should stand possessed of illthi
mortgaged property, in trust to levy out of the same so mudi as should be due to bin. f*
died, and the plaintiff took out administration, after which the mortgagor, who hadreioiiBM
in possession, made default, but was not dispossessed, and afterwards made a doniH
of the property to mnother party, of which transaction the plaintiff was not proved to Im>*
had any knowledge. The mort^gor*s lessee took possession, and put his name upoo^^
barges. These, and a quantity of coal, the produce of the collieries, were afWrwardt itii"
by the company for rates due from the mortgagor's lessee, and sold. The adnioisinU'
commenced an action of trover against the company for the goods, more than six
after the seizure, but within six months of the sale :
Held, that the suit was commenced in time, since the plaintiff, who was out of pos
had no cause of acdon till the goods were sold. Semble, that if the mortgagor's lessee b*^
sued, whether in trespass or trover, his action must have been commenced within six DOlttv
of the seizure ;
Held also, that the plaintiff, as administrator, had sufficient property in the cotl :
from the mines after he took out administration, and in the barges marked with the i
of the mortgagor's lessee, to maintain this action.
Before the seizure, the mortgagor's lessee became bankrupt: Held, that the go^
seized were not in his possession by the consent of tlie true owner, viithin 6 G. 4. & 1^
«. 7*2. ; for that the consent of the mortgagor, who was merely permitted by the true oW
to retain possession, did not satisfy the terms of the sutute.
IN THE Fourth Year of WILLIAM IV. SS5
and mines of coal and culm, houses, wharfs, railways, 1834.
machioery, boats, barges, and other goods and premises. ^"""^
Bf indenture of the 12th of October 1824, the said James against
... .The
Car, in consideration of 20,000/., granted, bargained, Swavska Canal
sold, and demised the said mines, houses, wharfs, rail-
wtj$f and other premises (in the indenture particularly
described) to John Farquhar (the intestate), his executors,
kCi, for certain terms therein respectively ; and the ma-
dttoery, boats, barges, &c., for ever, subject to redemp-
tioQ on payment of the said sum of 20,000/. and interest
OB the 12th of October 1827 ; but it was declared that on
default made in payment of the said sum and interest,
or any part thereof, for one calendar month after the
same should be due, the mortgagee should stand pos-
lesied of all the premises by the said indenture granted
deniied and assigned, in trust to receive the profits, and
out of the same, or by working, or demising, mortgaging,
idliaig^ or disposing of the same veins, machinery,
bai;gieS| &c. to levy or raise out of the said several pre-
Biiies the said sum and interest, or so much as should
be doe. In 1826 the mortgagee died, and the plaintiff
Unk oat administration of his effects.
Defiuilt was made in payment of the 20,000/. and in-
Icrat^ and thereby the estate and interest of the plaintiff.
It administrator, in the above-mentioned premises, be-
came absolute, and has so continued ever since; but, un-
til the making of the agreement next mentioned. Cox
Wu permitted to remain in undisturbed possession of all
the mortgaged property.
By agreement of the 1st of Mai/ 1830, Cor, for certain
tOQsiderations, agreed with Messrs. Mercer and Co. to
grant them a lease of the veins of coal and culm at JVen^
irrforgen (which were part of those comprised in the
above
S56 CASES IN EASTER TERM
1 834. above mortgage) ; and Mercer and Co. were to take the en-
"Z gines, machinery, waggons, &c, in, under, and about the
againu works at the said colliery, and on the wharfs at Swansea
The
SwAxsKA Caiud (which were all part of the mortgaged premises), partly as
Compttiiy*
absolute purchasers, and pardy on payment of a certain
interest on the value ; with a view to which arrangement^
the articles were to be valued. Mercer and Co. were to
take possession, and the works were to be carried on by
them from the date of the agreement, they paying all tolls,
taxes, and other outgoings for working and conveying
the coals and culm to Swansea^ and being also entided
to all advantages arising therefrom, though Coa^s name
should be used in carrying on the works; Mercer snd Co.
engaging to indemnify him. Mercer and Co., by the^
same instrument, agreed to take a lease of the said whar^
at Swansea for forty years, if Cox^s interest should so loi
continue.
At the time of entering into the agreement, and fi^'
many months after, Mercer and Co. did not know thi
the plaintiff had any interest in any part of the abo?(
mentioned premises. Immediately after execudng
agreement, they entered into possession, and paid
the price of the barges, on a valuation made pursuant
the above stipulations. They continued in possessi(
of the barges, coal, and culm, part of the above propert^;^
which were the subject of this action, till the seixuL. -
thereof by the defendants ; and of the rest of the pi
perty, till their bankruptcy after mentioned. During
that time Mercer and Co. were assessed to, and paid,
rates, taxes, and other outgoings in respect of the
premises. After the execution of the agreement,
about the time when the valuation therein mention
was completed, Mercer and Co. expunged the name ^
Ill THE Fourth Year of WILLIAM IV. 357
CoXf wbicH bad previously stood on the barges, and sub- 1834.
stituted their own ; they also changed the numbers of '
the barges ; and the substituted names and numbers con- egnmu
tbued till the time of the seizure. Sw^/c^-l
On the 27th of September 1881, the agent of the ^^^'
pUntiflT directed a bailiff to distrain the coal and culm
on the above-mentioned wharfs, and referred him for
forther instructions to another person, who gave them
to him in writing, and told him he was to seize for the
plaintiff; but the contents of the paper did not appear.
Before September 1881, Mercer and Co. had become
indebted to the defendants for rates due to them for the
carriage of coals and culm, the proceeds of the said
colliery and other collieries, upon and along the Swansea
anal, under the act 84 G. 8. r. 109. (a), which rates,
afler
(c) Tbe act is « for making and maintaining a navigable canal from
^ tovn of Stvansea in the county of Glamorgan into the parish of
Yi^aigitiUais in the county of Brecon." Section 67. empowers the
<ao!psDy of proprietors to demand and take tbe rates after mentioned for
the tOBu^ and wharfage of all coals, &c. and other goods which shaU
le orried or conveyed on any part of the said canal. Hio rates of
iBDoage and wharfage on tlie several descriptions of goods are then
*pNi6ed, and the clause proceeds : *' All which said rates shall be paid to
<vb person or persons, at such place or places, at or near to the said canal,
iuflich manner, and under such regulations, as the said company of
proprietors at some general assembly or assemblies shall direct or appoint ;
^ b case of denial or neglect of payment of any such rates, or any part
tbotof, on demand, to the person or persons appointed to receive the same
ss aforesaid, the said company of proprietors may sue for the same by
setioD of debt or upon tbe case, in any of his Majesty*s courts of record ;
crtbe person or persons to whom such' rates ought to have been paid, may,
sod he or they is and are hereby empowered to seize the goods or other
tbiags for or in respect whereof any such rates ought to have been paid,
sr any part thereof, and the boat or other vessel laden therewith, and
Mn the same until such payment shall be made, and also until payment
«f aQ arrears of the said rates which may be due from the owner or ownera
af neb boat or vessel to the said company of proprietors, together with
naienable diarges for such aeiiure and detention ; and if such goods shall
Vol. 1. B b "«»
858 CASES IN EASTER TERM
1884. after demand r^ularly made at a time and place near
""~" the said canal duly appointed by the defendants for the
againtt payment of such rates, remained unpaid. On the 12th
fiwAwssA Canal of September 183], the barges now in question (some of
^^ which were part of the said mortgaged property), then
in the occupation of Mercer and Co., and lying in the
defendants' canal laden with goods (yz), were seized fi>r
the rates so due, under colour of the statute ; and the
defendants gave notice of the seizure to Mercer and Co.
The barges had been used in the carriage of coal and
culm on the canal, in respect of which carriage part oT
the above rales were due ; but no rates were dne in
respect of the barges themselves. On the 15th of the
same month of September^ the defendants seized for tbe»
same purpose the coal and culm now in question,
thereof being the produce of the mines and veins
prised in the mortgage, and part the produce of oth<
mines. They were lying on the wharf also comprised i
the said mortgage, in the occupation of Mercer and
The defendants kept possession of the barges till th-
24th of the same month, when (having had them a{
praised) they sold them for the satisfaction of the
rates. They kept the coal and culm in the place wb
they were seized, till the 26th of the same month, wb
(having had them appraised) they sold them in furths
satisfaction of the above rates. Part of the rates wer
due for carriage upon the canal of the coal and culm s
seized and sold.
not be redeemed within seven dajrs next after the taking thereof, the
shall be appraised and sold as the law directs in cases of distress f?
rent."
(a) During the argument the case was (by consent) aniifndfd,
inserting here, " in respect of which rates were due and had been
raanded, but which goods were no part of the subject of the present actio*-
IN THE Fourth Year of WILLIAM IV. S59
On the 20th o^ September 1831, Mercer and Co. com- 1834.
mitted an act of bankruptcy ; a commission issued on the I
Feabxb
S7th, under which they were duly adjudged bankrupts : o^sninu
oathe 13th o( October their effects were assigned under Swanska Camd
tlie commission, and on the 14th of December 1831 the '^^^
assignees commenced an action (which was still pending
when this case was stated) against the servants of the de-
faidaotSy for the same seizure which was the subject of
tie present action.
The present action was commenced on the 17th of
Umh 1832.
The questions for the opinion of this Ck>urt were : -^
Whether this action was commenced in time, according
to sect 123. (a) of the canal act, 34 G. 3. r. 109. ? Whe«
therthe defendants were authorized by section 67. of the
act to sell the barges, and to distrain the coals and culm
off the canal ? Whether the plainti£^ as administrator,
Ittd t sofiicient property in the goods when converted,
to aaiatain trover ? and, Whether the defendants could
insist, as a defence, that^the goods were, at the re-
spective times of seizure, in the possession, order, and
disposition of Mercer and Co. as reputed owners, within
€6.4. c. 16. 5.72., and consequently that the property ^
& them was vested in the assignees {b) ; and if so, whe-
C^ the fiicts stated established such reputed ownership ?
(a) Which enacts as follows: — <' That if any action or suit shall be
**<nght or commenced against any'person or persons for any thing done
^ (wrsaance of this act, erery such action or suit shall be brought or
^onunenced within six calendar months next after the fact committed ; or
^ttK tfiere shaU be a continuation of damages, then within six calendar
^"OBthi next after the doing or committing such damage shall have ceased^
•Bdaottfterwards."
W MdenonZ, at the trial, held that the present defendants, if they
P*^ an iqpparent ownership with consent of the real owners, were not
^'■lidBd to avail themselves of it.
Bb 2 If
360 CASES IN EASTER TERM
1834. If the opinion of the Court should be in &vour of the
p defendants on any of these points, a nonsuit was to be
ogainu entered. If their opinion should be in favour of the
The
SwAwsKA Canal plaintiiF on all the points, the verdict was to stand, sub-
Company*
ject to arbitration as to tlie amount. This case was
argued in last Hilary term (a}.
Sir James Scarlett for the plaintiff. As to the first
point. Although the seizure of the goods was wrongful,
that fact alone did not amount lo a conversion. It maj
happen that goods are seized by mistake, and would be
returned on proper demand ; if they were demanded and
refused, then, and not before^ the case of conversion
would be established. The goods here were, in the first
instance, merely detained, not removed ; and no further
act was done with respect to them till the days of sale^
namely the 24th and 26th of September 1831.
plaintiff's causes of action arose on those days, and
sequently within six months of the commencement
the suit. At all events, when goods are seized and pi
into the hands of a person to be sold, if the seizure is
cause of action, the committing of the damage does n(
cease (according to the limitation clause in this ac-
till the sale has actually taken place. Next, as to
seizure of goods not on the canal, and of tiie barge^^
The defendants were not entitled to take either. TIH'
act S')f G. 3. r. 109. empowers them, on nonpayment
the rates, to seize the goods or other things for or in
spect whereof any such rates ought to have been pai
or any part thereof, and the boat or other vessel
therewitfij and detain the same until such payment sh -^h
be made, and also until payment of all arrears of w^^
(a) Jaiu 24tb. Before J)enman C. J,, Littiedtik, Taunton^ and
- T_
IN THE Fourth Year of WILLIAM IV. 361
said rates which may be due from the owner or owners 18S4.
of such boat, &c. This means that the goods shall be —
Frasiii
seized while on board the boats, that is, while on the againn
The
caoal. The goods cannot be followed. A distress for Swanska Canal
rent must be taken on the land ; so a distress for canal o«np*"y-
tolls ought to be taken on the canal, unless it be ex-
pressly enacted otherwise. It -is like stopping a carriage
for the toll at a turnpike gate ; if the carriage had passed
the gate, it could not be detained elsewhere. While the
goods are undelivered, the master of the boat has the
control of them ; when landed, they are in other hands,
it may be, those of a purchaser. In this case they were
taken when lying on a wharf, over which the canal com-
pany had no power or control. The clause just cited
goes on to enact that ^' if such goods shall not be re-
deemed within seven days next after the taking thereof^
the same shall be appraised and sold, as the law directs
incases of distress for rent." That does not authorize
ftlling the boats. The sense of words in an act like
^is is not to be extended in favour of those who pro-
^re it to be passed : Hull Dock Company v. Im Marche(a).
^ tonnage is not laid upon the boat, but on what is
<^ed. The barge must be detained, for the purpose
^detaining the goods, but it does not follow that that
^uld be sold ; and the act expressly says that if the
&od$ be not redeemed, the same shall be appraised, &c.,
Uie *< goods " having already been mentioned as distinct
ffom the barge. \Taunton J. The right of detaining
^ barge is given as incidental to that of detaining the
goods. It might be said that the company had no right
to remove them during the seven days. Littledale J.
They would at all events be sold to somebody, but it
W 8 A 4f- C. 52. Stourbridge Canal Company v. Whedey, ^ B. i
^792. 8. P. «
B b 3 might
963 CASES IN EASTER TERM
1834* might be difficult to replace the barge.] And it is the
r oompanjr's fault if they sufier arrears to run on so long
offoinu that the cargo is not sufficient to discharge them. It
SwAirsKA Canal will not be presumed that the act ocmtemplated sndi a
distress as would .take away the means of carrying on a
man's trade. Then as to tlie plaintiff's right to sue, and
in this form of action. Trover was maintainaUe for
the conversion in selling the goods : a seizure, if in a
right consistent with that of the owner, and not under a
claim of property, cannot be treated as a conversion tiil^.
there has been some act of appropriation ; so if there be:s
a seizure on a supposition of title in the party seizing^^
and it is not clear that on proper representation the
perty would not be restored, trover will not lie till thei
has been a demand and refusal, or something to shew
intention of the party to treat the goods as his o^
[^Denman C. J. If the time limited by the statute
elapsed since the doing of that which is in fact the
of action, can you extend the plaintiff's right of suii
by bringing trover instead of trespass?] It canni
follow, because the statute prevents a party from brinj
ing an action, the time for which has expired, that
also prevents his suing for another cause, the time f<
which has not expired. Here the sale was a
act, authorizing the plaintiff to sue in the present fo
Supposing that the original seizure was a trespass,
plaintiff might waive that, and bring trover for the selling
Then as to the plaintiff's right, as administrator, W
sue. The legal title to all the property is in him.
soon as the coals were separated from the mine,
had a right to bring trover against any one taking thi
away. The right to the barges had vested absolut
in him. If Cox sold or gave possession of any of
property to Mercer, it must be taken, upon the sta
iH THE Fourth Year of WILLIAM IV. 363
ment in the case, that be did so without the privity or 18S4.
consent of the plaintiff; and Cox could not confer upon "^"^
mercer a tide which he himself had not. As to the last againtt
The
qnestion stated, the defendants, who are wrongdoers, Swamska Canai
are not entitled to interpose a jus tertii in the assignees : *
and the assignees can have no better title, as against the
plainti£^ than Cox had, which is none. The clause of
the bankrupt act (6 G.4. c. 16. 5.72 ) as to possession
of goods with the consent of the true owner, cannot
ipply to this case. Cox was not the true owner ; and
diere is nothing in the case to shew that the plaintiff
consented to Mercer^s possession of any part of the
property.
Wkitcombe coqtriu First, the cause of action here,
ifom which the limited time must be reckoned, was the
seimre, not the detention or sale. In Godin v. Fer^
m(a), where goods were seized and detained by custom-
iiODse officers, that construction was given to the clauses
of limitation in 23 6. 3. c. 70. s. 34., and 24 G. 3. sess. 2.
Ci47. 5. 35., which do not materially differ from the clause
iiow in question. It is true the action there was in
trespass, not trover ; but that distinction was taken in
Saunders v. Saunders (i), and the Court held it to be
immaterial in which form the action was brought, as in
each the legality of the original seizure might be brought
in question. The argument that a party might, at first,
detun property by mistake, or without a setded intention
of converting it, and that no cause of action arises till
the intent is finally evinced by some act, is answered by
the case of Crook v. M*Tavish{c)i where an officer
(«) 2 F. Bi. 14. (6) 2 £att, 254. (c) 1 Bing. 167.
B b 4 boarded
364 CASES IN EASTER TERM
1834. boarded a ship, and left armed men on board, but did
not decide on seizing her dll some days after, and it was
againu held that the cause of action arose when the vessel was
The
SwAMSKA CAoal first stopped and the men put on board. It may be
true that, where goods are detained, there may sub*
sequently be a demand and no refusal, and in such a
case trover may not lie ; but when there is a demand
and refusal, the intention of converting is referred back
to the seizure. The refusal is not a tort in itself, but is
evidence of the original intent. In suing for a parti-
cular wrong, a trespass may be waived and the action
brought on the case ; or a tort may be waived, and the
transaction treated ns matter of contract : but can one
tortious act be waived for the purpose of insisting on
another, and thereby evading a statutory limitation?
and, if so, could the same be done with a series of sach
acts ? Suppose that sect 67. of this statute gave a
power of seizing and detaining only, and the clause cE
sale were omitted, and the company were to seize ^
barge and goods, and keep and use them for sevex^
years; would the owner, after that lapse of time, be ^
liberty to fix upon any instance in which the com]
had exercised a control over the property, and found
action of trover upon it ? The addition of the claus
sale makes no difference. If the goods are nt last
still the seizure is the first tortious act ; the sale is or ^
evidence of intent iTauttton J. The subsequent
may be an aggravation.] If the original act was a
plete seizure, there was then a complete injury c(
mitted, and a perfect cause of action. ^Taunton —
That may be an answer, where the subsequent ac^B^
only ejusden) generis ns the first] It is true thatr^^
such act enhances the damage, it may be treated a ^ ^
fr^sb
IN THE Fourth Yeae op WILLIAM IV. S6S
fresh tort ; yet it has been held that an action for words 1 884.
is barred by the statute of limitations after two years — -
from the speaking of such words, if the words be action- agmnu
able in themselves, though there was a subsequent Swavska Canal
special damage (a), which proves that, in that case, the o"P">7-
plaintiff could not waive the original tort in order to
evade the statute. Wordsworth v. Harley{b) shews that,
as soon as any act is done which is a complete injury of
the kind complained of, the limitation of time runs.
Then if the seizure was in reality the ^^ fact committed"
in this case, within sect. 12S., there was no ^^ continue*
ition of damages'' to warrant bringing the action later*
That occurs only where the act complained of does not
do all the damage at first, so that the amount of injury
bolting from it is not then ascertainable ; as where a
>&an undermines his neighbour's house or land. Here
^e whole damage was capable of being ascertained at
•'•e tiflse of the seizure.
Secondly, there is nothing in sect. 67. of the act to
^QDfine the right of seizure to goods on the canal, and
^o argument can be drawn from powers of dbtreos,
^^ this is not a distress ; the authority given is merely
to seize." The company may appoint the place
^bcre the rates shall be payable ; they might appoint a
ing-whar^ and the goods landed there might surely
seized if the rates upon them were not paid. [Z)^-
C. J. Convenience is in favour of the right being
^Qnited to goods on the canal ; it would otherwise be
tiecessary to make an enquiry as to each parcel, whether
It Iiad been carried on the canal or not. And the power
^^cnis to seize the goods, and the vessel ^^ laden there
i
{•) See S<mnders ▼• Edwards, 1 iHd. 95. (6) IJB. i Jd. 391.
366 CASES IN EASTER TERM
18S4. with." PaUeson 3. Could they seize empty barge
It has been assumed, on the other side, that the rigb
mftimui seizing the barges was given as incident to thatof aoi
SvAMtsA Canal the goods. But the company may seize part only
^^^' that which the act authorises them to take. If the go
must always be seized on the canal, and there only,
company could not give credit, because they would I
the security of the goods ; yet the statute contempb
credit, when it speaks of arrears. If the barges as i
as the cargoes may be detained till pajrment, why i
not both be spld in de&ult of payment ? The woi
of the act, that ^^ if such goods shall not be redeem
within seven days next after the taking tboreo^ l
same shall be appraised and sold," are large eiiou
to include both kinds of property. [Z>fniMiiC
The question is, what the words **such goods "re
to ? The goods on board woukl be always sure to w
the accruing tolls, and selling the bai^ might
utnous to the owner. As to arrears, the compi
are not obliged to allow of any ; they have the reiiie
in their hands. Taunton J. The act says, that t
company may seize the goods or other things in resp
of which rates are unpaid, and tie boat or other ves
laden therewith, and detain the same till payment; ^i
if such goods shall not be redeemed" within seven da:
the same shall be sold. The restriction of the langui
in the clause of sale furnishes a strong inference tl
nothing is to be sold but the goods or other things fi
mentioned.] The words may be more largely iol
preted in one clause than in the other. [^DenmoH C
This b a clause giving a very large and summary poi
the parties insisting on it must bring themselves stri<
within it.] If the latter clause does not apply to
bar]
IN THK Fourth Year op WILLIAM IV. 367
birgesy it does not appear that they can be redeemed. 1894.
[PaUnon J. The redemption of the goods implies a
redemption of the barges. LitiUdale J.* They are seized ugimui
u a warehouse for the goods.] SwAirnA Onal
Then as to the remainii^ points. The plaintiff can-
not maintaio this action against the defendants, unless
ke ooald have maintained a similar one against Mercer
and Ca, through whom they claim. But he could
sol have sued Mercer and Co. for disposing of this
property, unless he had determined the implied licence
vkidi he had given them, to use the barges and take
tbe produce of the mines. He could not, as mortgagee,
kve brought trover against Cox^ whom he had suffered
to retain the possession and control of the property ;
nor can he now all^e ignorance of the underlease from
CVr to Mercery which he suffered to be made after his
•
tide ai administrator had vested. Allowing possession
to continue, is the same, in legal effect, as acquiescing
ID ID act done; as, for instance, where a party concurs
ii the selling of his goods under a commission of
Itttopt (a), in which case it has been held that a man
ttinot treat as a tortious conversion that which be has
Uttself licensed. Besides, the plaintiff here distrained
|Ntrt of the goods demised to Mercer and Co. ; he must,
in 80 doing, have meant to treat them as property of
Uercer and Co., which he was entitled to take as a
Stress; if so, he affirmed the demise to them, and then
Ae ooe, as to the defendants, is the same as that of a
dieriff'selling furniture which is demised to a tenant and
tikea in execution, pending the lease: the landlord
Cflmot maintain trover (i). If the plaintiff, in ordering
(«) Ckcrh V. Clarkcy 6 Esp. 61. (6) Gordon ▼. Harper, 7 T. R, 9.
the
368 CASES IN EASTER TERM
1834. the goods to be taken, meant to treat them as his am
he was not entitled to do so without a previous demam
FMAftR *
againu {Tounton J. The case does not state that the plamti
The
SwAVfKA Canal knew any thing of the transactions between Cox an
^^^^' Mercer and Ca] It does not shew the contrary; an
he must be presumed to have known something of
relation existing between those parties and betwee
Mercer and Co. and himself. As to the right of di
defendants to set up a jus tertii in the assignee
arising from reputed ownership in the bankrupts, it i
true no case has been found in which any parties be
assignees have availed themselves of that fact (a) ; but
can seldom happen that others will have occasion tod
so. If the defendants here cannot set it up, the; wi
have to pay the plaintiff for the goods which are th
subject of this action, and will afterwards be liable ft
them to the assignees. [Patteson J. You assume tb
the assignees could recover for them.] The case c
reputed ownership is clear from the facts stated
[Taunton J. There must be an assent by the tru
owner.] The goods were in the order and dispositioi
of the bankrupts with the consent of Cox, who wa
permitted by the plaintiff to deal with them as b
pleased. [Taunton J. That is an assent only of tb
permittee of the true owner.] Cox had authority fros
the true owner to give that assent.
(a) la PhiUipiy, Hopwood, 1 B. j- Ad. 619. it wai held, thit t A
fendant might resist an actioa by persons claiming to be assigi)ccs of
bankrupt, on the ground of a former bankruptcy, under which there h
been no certificate. But that case seems to rest, not merely on t j
tertii in the old assignees, but on the absolute invalidity of the icco
commissioa. See further the distinctions taken in Jf^ebb v. Fox, 7 T*
391. ; Kitchen t. Bartsch, 7 East, 55. ; Drtiyton ▼• Dale, 2 J?. {• Cr^ S9t
IN Tus Fourth Year of WILLIAM IV. 369
Sir James Scarlett in reply. In Godin v. Ferris {d)f 18S4.
the seizure was under a direct claim in riirht of the kincr;
the property being taken under a title inconsistent with ugamst
that of the owner, a complete cause of action arose at Swamka Canal
that time, and there was none subsequent: the tortious
act there was one and the same throughout : here
there are two distinct wrongs ; but one of them affects
the plainti£^ and the other does not. In Crook v.
IPTamsA (i), (which must have been an action of tres-
pass^ although that is not stated,) the only point of time,
from which the right of action could be dated, was that of
the seizure and placing men on board ; there was no new
caaae of complaint afterwards. In Wordsworth v. Har-
l9(c}, the heightening of the wall was no new trespass.
In the present case, nothing was done or intended by
the original seizure which could injure the plaintiff:
"Ae parties acted under a mistake as to his rights, but no
actual injury was done to them until the sale. He was
Bot in possession ; and therefore the trespass by merely
Ninng the property, did not affect him. The real injury
to him, as reversioner, commenced when there was a
ttle, the consequence of which was an asportavit, and
oet before. He sues only in respect of his right of
property. In Jenkins v. Cooke {d\ argued last Trinity
term, where a similar question arose to that now before
the Court, the plaintiff being the owner, but not in
possession, of the goods seized, it was held that the
^ of limitation ran from the sale. [^Denrnan C. J.
The Court there held, that the sale was the fact which
effected the plaintiff's interest, and a rule for a new trial
vas made absolute on that ground. Patteson J. The
(a) S H. BU 14. (6) 1 Bing. 167.
(0 1 B. i Ad. 391. ((/) See the end of this case.
present
0 CASES IN EASTER TERM
1634. presoit case was referred to in moying for the i
As to the question under the bankrupt •€!» it wm
afioinu maintained on the other side, that if the tme owi
SwawsiaCmuI properQr consents that A» shall have poaseisioD of
CompsBj*
consults to a possession by every person licensed I
The meaning of the clause cannot be extended be
a consent given to the bankrupt himself. The si
6 G. 4. c. 16. 5. 72* says that» if the bankrupt has i
possession, by the consent of the true ownm*, I
whereof he is the reputed owner, the comniasioneis
have power to sell the same for the benefit of the <
tors. But it does not follow that, if the goods tat
so disposed of, an individual can step in and claim
by virtue of that clause. Nor is there any colour
for alleging a consent by the plaintiff to the convej
of his property from Cox to Mercer. [^Patteum J.
onus of shewing such consent lies on the defendant}
DfiNMAN C. J. We are all of opinion that the
points of the case are with the plaintiff; but with i
to the limitation of time, the words of the stat
very doubtful.
Cur. a
Lord Denhak C. J., in the present term {Aj
delivered the judgment of the Court.
In this case, the Court, having decided, in t
of the argument, two points in the plaintiff'
viz. that he had sufficient property and rigl
session to entitle him to maintain the action
the defendants had no right to convert his go
for an opportunity of considering whether tl
jection was well founded.
IN THE Fourth Year of WILLIAM IV. 371
It arose upon the 1 23d clause of the canal coinpan3r's 1834.
ct) under which every action brought against them for
vj diing done by them is to be commenced within six
FftASKft
akndar months next after the fact committed^ or in case Swamuta C«ud
liere shall be a continuation of damages, then within six
deodar months next afler the doing or committing
iodi damage shall have ceased •
The plainti£P here brought trover for certain goods
Hd boats which had been mortgaged to him, and were,
]f the mortgagor, leased to certain persons residing near
tkcanal.
These goods had been unlawfully seized as a distress
irtoIl% claimed from the person in possession, by the
Ueodants, more than six months before action, bat
bid afterwards been sold within the six months. The
ttadants argued that the seizure by them was the fact
mmttedj whence the action was brought too late:
bat the plaintiff claimed the right to treat the act of
ale as the &ct committed, and we are of opinion that
be may do so. If this action had been brought by the
BiortgBgor^s lessee, being in possession of the property,
tbecBses of Godin v. Ferris {a) and Crook v. M^Tavish {b)
ve strong to shew that it must have been within the
Hioited period after the first unlawful seizure : and the
Coort might have found it difficult to say that his re-
sorting to an action of trover instead of trespass could
bMe extended his rights. But he suffered no injury
hKD the trespass committed on his goods while in the
possession of another ; the damage that was first done
to him arose from the sale, by which they were placed
^fond his reach and converted to the use of the de-
(«) 2£r. Dl. 14. {b) 1 Bing. 16?.
fendants.
S72 CASES IN EASTER TERM
1834. fendants, at a time when the plaintiff was entitled to du
" possession of them.
againH Wc therefore think the pIainti£P has brought hu
SwAwsKA Canal action within six months of the fact committed.
Judgment for the plaintiff(ff]
(a) William Jenkins against Cookb.
A canal com- Thi declantion contained counts for an excessTe distms and tale of lb
***A r^ b pJ*»nt>ff*» goods, generdly, and other counts for ao injury to hi
sutute, to de- reversionary interest in such goods, by an excessive distress and taleef tb
mand and sue same, they being at the time let to hire by the plaintiflT to Jotepk Dngm
for certain s j^^^ j^^ j-^^ Jenkins, and in their possession. The seventh eoai
upon the
carriage of alleged that, while the plaintiff was proprietor of certain tnB% kt»
goods, and to which had been let on hire (as before], the defendants seised and Hok
distrain any ^^^ ^^^^^ ^y^^ possession of the said J. D, J. and J. X, and abtttakb
carnage or
fpoods in re- '^^^f '^^ converted and disposed thereof, to the injury of pUttin
spect of which reversionary interest. Tliere was also an eighth count in trover. FH
any such tolls ^^ general issue. At the trial before Gumey B., at the MammmtUHi
ought to be ° ^
paid and to Summer assises 1832, it appeared that the defendant was derk tolki
detain the same Monmoulhtkire canal navigation company, and had distrained and mU, fr
"^^ ^^^h^ tonnage due to them, several tram- waggons, which the plaintiff had let to
tolls, and of all ^^^ ^ ^^ above-mentioned parties, and which (according to someof Iki
arrears of the witnesses) were, at the time of the scixurc, demised to the same pria>
same then due j^^ distress was made on the 3d of June 1831 ; the sale was on the 14i
from the owner *
of such carriage of September following. The action was commenced on the 5th c£M»d
or goods; and 1832. The statute 32 G. 3. c. 102., by which the company wss
1? ^*** '^ho M PO™*^> empowers them (s. 91.) to ask, demand, take, and receife
not be re- rates, tolls, and duties therein specified, for the tonnage and wharfage of il
deemed within iron, ironstone, &c., and other goods, wares, merchandizes, and coomfl^
live ays, ^^ whatsoever, navigated, carried on, or conveyed upon, through, or oicr
sell the same,
as in the case of a distress for rent ; they were not expressly authorised to levy snj toll
upon carriages :
Held, that trams could not be distrained for arrears of tolls due from the ownen Ar
goods carried in them, if they were not carrj'ing goods of such owners at the time of tki
distress.
The statute enacted, that any action, brought for any thing done in pursuance of tbei0^
or in execution of the powers and autliorities granted by it, should be brought withia as
calendar months next after the fact committed :
Held, first, that such a distress was a thing done in pursuance of tlie act.
But, held, secondly, that where an owner of trams let them to a third person, tf'
during such letting they were illegally distrained for arrears due from the person hin^^
while not carrying such person^s goods, and afterwards sold, such owner might sue widil
six mouths from the time of sale, on a count complaining of injury done to his reverMOtf]
interest by the seizure and sale.
IH THX FOUBTH YeaR OF WILLIAM IV. S7S
ODib, nflwajs, and ttone roads, or any part thereof; and bj 18S4>.
lion 100. they are authorized, in case of non^ajment, to sue for the ,
ouB^ or to leiie and distrain aay boat or wa^^n, or other carriages, Feamr
^ wares, &c., ibr or in respect of which such rates, &c. ought to be °^^*^
1 The
1, or anj part thereof, and detain the same respectively till payment gi^^ygg^ Canal
of ndi rales, tolls, or duties, and of all arrears of the same Company.
D^ fiom the owner of such boat or waggon, or other carriage^ goods,
, md to appraise and sell the distress, as the law directs in cases of
tm far rent, if not redeemed within five days. By section 147. it
mded, ** that if any action, suit, or information shall be brought or
■Moced against any person for any thing done or to be dohe in
uiDoe of tlus act, or in execution of the powers and authorities, or the
IS and directions, hereinbefore given and granted, every such suit or
nadon shall be brought or commenced within six calendar months
the fiict committed ; or in case there shall be a continuation
(, then within three calendar months next after the doing or
Batting such damage shall cease, and not afterwards." The learned
|i thought that, supposing (as was contended) that the hiring in this
WH not detennined before the seixure, the time of limitation com-
omI ai the seizure, and the action was barred ; and he directed a
id liv the defendant
(mk, m Michaelmas term 18S2, moved for a new trial on the ground
■rifitilion, and contended, first, that the limitation clause did not
y la an action like the present, which was, substantially, brought for
{NDpose of recovering back property taken without any lawful claim,
wm ID the nature of an action of detinue ; and he cited the language
kfk^ J. in Edge v. Parker (8 B. & C 700). But the Court (Parhe,
tUmif and PaUetim Js.) were clearly of opinion that the clause
idsd the case of a distress, which could not have been levied but
V the powers and authorities given by the act. (See Smith v. Shaw,
BL {- C S77. Lord Oakley v. The XenringUm Canal Company, 5 B.
'i. 138.) Maule then contended that, if the waggons were let to hire
Ik time of the seizure, and if the plaintiff was entitled to rent for
1 till they were sold, no damage or cause of action accrued to him till
I ; and he referred to Frater v. The Swantea Canal NavigatioH Com-
h htely tried before Alderton J. The Court granted a rule nisi ; and,
fVmiey term 1833 {May 27th, before Denman C. J., Littledale, Parke,
PsttesoM Js.),
^^CampbeU, Solicitor- General, and J2. F. Bichardi shewed cause,
contended that, even on the supposition that the goods were under
VR at the time of the seizure, the action was out of time, as the
>Mi8^ if he could maintain it at all, might have commenced it imme-
^ sftier tha seizure en the Sd of June, when the goods were taken
Vol. I. C c o"^
574 CASES IN EASTER TERM
1834* oQt of the poncssion of the lessees ; that the ml camt of flctioii WM A
_^ wrong then done to the plaintiff, although further wrong was comiBini
FnAssa ^ ^c course of the same tranMhCtion by selling the goods : and tfacj cili
asoimi Codm ▼. Ferris (3 H. BL 14. )> Savnden t. Saumders (2 Eatt, S54.),a
ftwAKsiaCanal ^<»*^* M'Ttwish (1 Bing. 167.). [Parke J. In those cases there w
Co;npanj. nothing that c6uld be treated as a oonversiony subeequent to the oc%iBi
taking.]
Maule and fThateley, contrik, contended that the actioo
able upon any of the counts ; that, assuming a right of actioo t» !■*
accrued at the time of the seisure, the plaintiff was not obliged to proctti
till it became evident, from the sale, that the goods would not be remntdj
that, at all events, the sale was a distinct injury to the plaintiff in hbli
▼ersionary interest, which had not come into possession before the sdnffft
and in support of the count in trover they cited Farrani ¥. J%mi^m
(5 B. 4; A. 826.).
Per Curiam. There most be a new trial, in order that it mtj h»
ascertained how long the plaintiff's interest continued to be a ittuiauif
interest merely. If it was a reversionary interest at the time of tbt mI%
then such interest was injured by the sale, and not by the original tilti^
The action, therefore, in respect of the sale, would, in that csie^ bt
brought in time ; but, if the interest of the sons was determined
the seisure, it might be difficult to say that the action was in time.
Rule
On the second trial, before Patteion J. at the Momrumtkikhe
assizes 1834, it appeared that the trams were distrained for arrears (if lA
due, upon goods carried in them, from Josejth Dragon JenMn$, and JUi
Jenkinti the sons of the plaintiff ; and that, at the time of the diiinii^
they were laden with goods belonging to a person named Webbt to
they had been let by the sons ; and the jury expressly found that the
were the property of the plaintiff, and were hired of him by the
and that tlie hiring hsd not terminated at the time of the seisure. Wf
then found a verdict for the plaintiff, under the direction of the lesii*^
Judge, who reserved leave to die defendant's counsel to move to enicr '
nonsuit.
Talfourd Serjt. moved {A}ml 16th, 1834,) for a rule to shew cause vrl
the verdict should not be set aside, and a nonsuit entered, or a new Xf
had. The rule was moved for on three grounds, as to tho third of wlsl
(excessive damages) a rule nisi was granted. Tiie other two grou^
were, first, tliat the defendant had a right to distrain the trams ; a^
secondly, that, under the facts proved, the limitation clause barred ^
pUintiff's action. First, as to the right to distrain. The ninety.fiiftl^
%
IK THE FougTH Ye^h OP WILLIAM IV. 375
icntitkt the oompuij to demand tolls on certain goods, but there 18S4*
DO diiise autiK>riiing a toll on trams. Then the hundredth section _^_
«t power to distrain, not only goods, but any waggon or other car- Frasbe
p ia Raped of which tolls ought to be paid. This must mean the ^^^'^
The
liiges canying goods in respect of which the tolls are due ; other- g^^^gi^ Canal
R^ IS BO toll is laid on the trams, the words would be without mean- Company.
[. Agam, the same section authorises the carriage, &c. to be detained
pqrBenl be made of such tolls, and of all arrears of the same, due
m (ht owner. These words would be absurd if they were not con-
Md to mean, that the carriage, which had carried goods at any previous
ib dwold be liable to be distrained and detained for all tolls re-
HRag doe OB such goods. [Parke J. What objection is there to
Mniiog tbe intention of the act to be, that the carriage should be
de fiable during each trip, as well as the goods, for tolls payable
■ tbe goods for that particular trip ; and that there should also be^
V imure^ a geiienl lieo for arrears due from the owner of the articles
■ which the tolls, so seiaed for, are payable ? Patteton J. When the
M were seised, they were not in the use of the two sons, but lent to
Ikir pwioo ; and you distrained them, not for what they were actually
ifiagi but for arrears due from the two sons. Now you may distrain
Irili^ and keep for arrears; but you cannot distrain for arrears.]
■dly, at to the limitation clause. Tbe time must be reckoned from
I Mive, the sale, or some intermediate period. The seisure would
too ftr back ; and, unless some period can be shewn at which the
wAiaaij interest came into possession, the situation of the plaintiflf
• let altered after the seisure, and therefore his injury must be dated
^ the seisure, especially as the seizure and the sale are connected
pdMr ia the declaration as a single transaction. [Parke J. The
Mffwill say, you ought to have sold no more than the interest of the
wm\ the injury, therefore, dates from the sale of the whole property,
VA li always supposed to be injurious to the reversion, as if a sheriff
Anore than the tenant's interest.]
IW C»wi (Lord Denman C. J., Littledaie, Parke, and PaUeson Js.)
the rule as to tbe fizst two grounds.
Ce S
S76 CASES IN EASTER TERM
18S4.
Thursday, WiLLiAMs agotfist Clough, Clerk.
May 8th.
A line drawn QIR JAMES SCARLETT, on shewing cause sgaiut
w^in^ A ^ule obtained by the Attorney-General in thb
afiBdATit,*lcaT. ^^^^^ objected that an affidavit on which the rule hsi
ew**»Hrfecd^" been grounded was inadmissible, there being an enson
legible, ii an jn the jurat ; and he referred to the rule of Coui^
the Rule of Mich. T. 37 G. 3. (a\ which provides, << That no affidaiiK
mat term, be read or made use of in any matter depending in tUi
Titiatet the Court, in the jurat of which there shall be any intoi-
the omiMio^ior Uneation or erasure." The jurat had been conunenoed '
^JSS^oid*'^ thus : — « Re-swom at Brynhffrid,'' the words «M
l^^'y the Brynhyfrid'' had been struck out by drawing a sligk
line through them, which, however, left the writuf
perfectly legible, and the jurat then appeared as M*
lows : — << Re*sworn at BrytAj/Jnd by the several d^
ponents A. jB., C. Z)., and E. F., at Brynkufndt in the
parish of, &C., on, &c. Before me G. i7., a commii-
sioner," &c. [Lord Denman C. J. The principle €f
the rule is, that there shall be no alteration in the
jurat.]
Sir J. Campbelly Attorney-General. That is, tb*^
there shall be no alteration which is not submitted ^
the eyes of the Court. There is no change here l^l
which any thing is suppressed.
Lord Denman C. J. I think the rule applies. Ps-^
ties should attend to the rules of Court
Rule discharged
(a) 7 r. J?. 82.
iM THB Fourth Year op WILLIAM IV. 377
18S4.
The Kinoes warrant was this day read in open Tkuniajf,
Coart^ appointing Tkomas Chapman Esq., Assistant-
Master of this Court, to the o£Sce of Marshal of the
Manhalsea of this Court (a), and the oath of office was
administered to him: Immediately after which, the
Coort made the following order, on the motion of
Sr Jl Campbell^ Attom^-General, (who stated that a
fike rule had been made on the appointment of the late
Ibnlial,)
That llamas Chapman Esq., the present Marshal of
the Marshakea of this Court, do take into his custody
iD the prisoners who are at large without the walls of
die prison of the said Court, and also all prisoners who
hue escaped and are not lawfully discharged out of the
nid prison, and bring them into the prison aforesaid.
(•) In the room of WUtiam Jtnett Eiqt, who died in thii tenn, haTing
Ud the office nearly forty-three yeaiBt
Cc S
578 CASES iM EASTER TERM
1834.
Tkur9di^f. Goodwin against LiORdon.
A defendant T)UNBAR moved {May 7lh)(a), that the defimdiiit
who has been -/--/ . •■^•iL
in custody on a might be discharged out of the custody oT the sh^
felojn7,andM riff o{ Surrey^ under the following circomstanoes. The
diwharped^is defendant was tried at the Swrey sessions on two in-
"ron?!i^^ dictments for embezzlement, on the prosecution of the
his return plaintiff. He was acquitted, and dischanred the follow-
home; and the ^ T » o
Court will not ing day by proclamation. On his way home finom the
relieve him & J J f J ^
from such ar. gaol, to which he had been committed for trial, he wis
not appear that arrested on mesne process, at the suit of the plaintiff, ibr
fion'on the"' ^^'"^ ^^^ ^^^ afterwards taken back to the same giol,
^i"^n'!!"'^ and there detained in custody on such process. The
tntance to get affidavits in support of the motion allied, that the d^
him into cus< ' ' ^i ^
tody on the fendant had a cross claim against the plaintiff arisiog
out of the same transactions between them as the sup-
posed debt for which the latter had arrested himi lod
exceeding it in amount ; and the defendant stated that
he had heard of no charge or claim against him by the
plaintiff till he, the defendant, had demanded a settle-
ment of the accounts, and that he believed the arrest to
have been made for the purpose of harassing him, soA
preventing the enforcement of his demand. PatUsonJ'^
on summons, refused to discharge the defendant
Dunbar now contended that the defendant, while
his return from the sessions which he had been oblig^^
to attend on a criminal charge against himself, was pr^
vileged from arrest. A party in attendance directly
(■) Before Lord Denman C J., Litftedalr, and ffiUiami Ju
IK THE Fourth Yeae op WILLIAM IV. S7d
the business of a Court, or even in any matter relative 1834.
to it, is entitled to freedom from arrest eundo et '
Goodwin
redeundo, Meekins v. Smith (a), especially when brought against
... LoaooH.
there, as in this case, on compulsory process. {lAttle"
dale J. It has lately been held that a party brought
before a Court in custody on criminal process is not
widiin the rule.] In Wells v. Gurney (6), a debtor was
arrested on Strnday for an alleged assault, in order to
gain an opportunity of arresting him upon civil process
on the Monday^ when he was bailed for the assault:
and this Court discharged him out of custody as to the
dvil arrest. [Lord Denman C. J. If it appeared here
that the arrest of the defendant on a criminal charge was
merely a contrivance to get him into custody on the civil
suit, that case would apply ; but it does not follow that
that was so because the defendant was acquitted. Do
your affidavits allege that it was a contrivance? (c)] It
may be gathered from the facts. Independently of
cases, the privilege ought to be allowed here on principle.
[Lord Denman C. J. The question comes simply to this ;
whether a person taken into custody on a criminal
diarge is privileged from arrest redeundo, when dis-
missed from such custody ? That is a point of great
general importance.]
Cur. adv. vuU.
Lord Denman C. J., on this day, delivered the judg-
meat of the Court We think the defendant, in this
cue, was not entided to the privilege. The only direct
(«) 1 B. BL 636, (h) SB.ia 769.
(e) It WM oot stated in the affidAviti that the alleged debt arose out
ef lbs MQe transactioiis as the criminal charge.
C c 4 authority
880
CASES IN EASTER TERM
1634.
OooowiK
a.:ainti
LORDOK.
authority we have been able to find upon the point is an
anonymous case in Mr. Dcndif^s Reports qf Cases of
Practice {a\ where an application like this was made
before Parke J^ who consulted the other Judges of this
Court, and they all held that the privilege could not be
claimed.
Rule refused.
(a) 1 2>omL Pnut. Cman, 157.
The King against The Churchwardens of the
Parish of St. Saviour's, Southwark.
A TMtrj baT-
ing. bj a tbew
of hands, piMed
a resolution,
directing an
illegal appli-
cation of lome
charitable
funds, and a
poll haying
been demanded
of the person
presiding at the
vestry, and
not granted, the
Court refused a
rule for a man«
damns to com-
pel such person
to grant a polL
r ORD DENMAN C. J. A rule was obtained m the
bail court, in Hilary term, to shew cause why a
mandamus should not issue, directing the churchwardens
of the parish of St. Saviour^ s^ Sotdhwark^ to assemble the
parishioners of the said parish, for the purpose of taking
the poll upon a motion put to the vote by a shew of hands
at the general or vestry meeting of the inhabitants of the
said parish, holden on the 21st of January last, viz.,
that the resolutions of the general or vestry meeting of
the inhabitants of the said parish, holden on the 7th of
January then instant, as to the monuments to be erected
to the memory of certain persons, might be confirmed.
These persons had bequeathed property to be applied to
particular objects of charity in the parish. At a vestry
meeting, holden on the 7th of January last, a resolution
was proposed and carried, that a tablet or monument
should be erected to record the bequests of the devisors,
to be paid for out of the funds issuing from the bequests.
On the 2\si of January another vestry meeting was held,
at^
IN THE Fourth Year of WILLIAM IV. 381
at which the resolution of the last meeting was con- 1834.
finned upon a shew of hands. A poll was demanded ' ~
"^ ^ *^ The Kino
by the opponents of the resolution ; but the church- agmnsi
The
warden, who presided at the meetings refused to grant Churchwardens
it Then the present rule was obtained. It was ob- SATiouji't.
that such an application of the fimds would be
a breach of trust, and that this Court ought not to
grant a mandamus for the purpose of putting it to
the vote, whether such a breach of trust should be
oommitted. We are of opinion that the mandamus
cannot be granted, and for the reason suggested. It
may be said, that the object in demanding the poll was
to set aside the illegal resolution which had been passed
by the shew of hands ; but we cannot assume that the
resdt of the poll would be to rescind the resolution. '
V the result were the other way, it would be said that
the poll was taken under the authority of a mandamus
from this Court.
Rule discharged.
Ball in support of the rule,
fi* V, Richards against the rule.
iM
CASES IN EASTER TERM
18S4.
Thursftntf,
May 8th.
If adeftnduit,
against whom
judgment hat
bran reoofcred,
afterwards be-
cojie bank-
nipt, and '•biaia
hUoeitiBcate
within fourteen
dayi of tenrioe
of procew upon
bis bail, the
bail are en-
titled, under
the general
rule of 17th
June 1831, to
ba^e proceed-
ings against
them suyed,
though no
notice be given
to the plaintiff,
or application
made to stay
such proceed-
ings, till after
the cspiration
of the fourteen
d-'ys.
JoN£8 against Ellis and Another.
JpOLLETT had obtained a rule to shew cause wbj
an order made by Littledale J. for staying proceed*
ings in this cause upon payment of costs of the action,
should not be discharged. The plaintiff had brought
an action against a person named Fringe and the defeod-
ants had become bail to the action. On the lOlh ofiltf-
ffisti Pring became bankrupt The cause was tried, and
the plaintiff obtained a verdict against Fringe and signed
final judgment. A ca. sa. was issued against Pring, sod
non est inventus returned ; whereupon a writ of saoi'
mons was issued at the suit of the plaintiff against th^
present defendants on their recognizance, and was servi
on them on the 7th of November. On the 16th of Ni
vemberj Pring obtained his certificate. On the 14th
December the defendants served a summons on tb*-
plaintiff for the exoneration of the bail ; and on tk^
llth of January last, the order of Littledale J.
obtained accordingly.
Kelly now shewed cause. By the general rule of 17t0
June 1833(a), the defendants were entitled to rendestf
their principal within fourteen days next after service c^
process upon themselves, but not later. If the certificate
be equivalent to a render, that has been done ; for the cei^
tificate was obtained within nine days of the service of tir'
writ of summons on the defendants. Before the gener^"
(a) S B.i Ad 468.
Ellis.
IN THE Fourth Year of WILLIAM IV. 383
nile was made, the certificate was considered to be equi- 1834.
Talent to a render (a), on the ground of its making the ""
render useless. It is true that the general rule directs agama
the stay of proceedings " upon such render being duly
made, and notice thereof given ; " and that, in the pre-
sent case, no notice was given or application made till
the 14th December^ which was twenty-eight days after
the certificate, and thirty-seven days after the service of
the sommons. But the rule does not require that the
notice shall be given within the fourteen days, though
the render must be within that time. And a del&y in
giving the notice, or in applying for the exoneretur,
cannot prejudice the plaintiff in this case^ as the judge's
ord^ directed the payment of costs of the action gene-
rally. In many cases notice could not be given within
the fourteen days, where the certificate was not known
to the bail in time, or where the principal rendered him-
self on the last day.
Fdlett in support of the rule. If the certificate be
now equivalent to the render, the application for the
exoneretur should be made within the fourteen days.
The certificate requires the notice, or the application, to
give it an effect tantamount to that of a render ; other-
wise there is nothing to prevent the plaintiff from pre-
suming that he is to continue the proceedings.
Lord Denman C. J. I do not think that it was in-
tended, by the general rule, to alter the effect of the
certificate, or to prevent it from having, as before, the
same operation as an actual render.
(e) See Mannin ▼. Partridge and Another, 14£bfl,599.
Little-
S84 CASES IN EASTER TERM
1834. LiTTLEDALE J., Patteson J., and Williams J, oon-
curred.
JONKS
agaiH^i Rule discharged*
Elus. ^
2?*^^' Jones against RETNOLDd.
J/ay8tb
DefcndUmtgsft ipOLLETT had obtained a rule {Jpril 17th) to
iKrttobe en- shew cause why a judgment signed on a cognoTit
after the final gi^^n in this action should not be set aside for irre-
^J^J^J^*[^j gularity. By the cognovit, it was declared that no
^*^J°^|^ judgment should be entered up thereon, or execution
aaainit the issue, ** until after the final hearing of a certain Chan-
the final decre« eery suit instituted by the above-named defendant against
or order to be
pronounced the above-named plaintiflT, and the final decree or ordor
in the emt to be pronounced thereon ; " and that, in the event of
being in fayoiir ^^^ ^"^ decree or order being in favour of the plaintiff
•ud^***entfwas *" ^^® acUon, judgment might be entered up, and ex-
to be entered ecution issue, ." and the same shall operate in accordance
up in accord- *
ance with the with such decree or order." The defendant, in the
decree, and do- ,
fendant was not coguovit, undertook ** not to take any further proceed-
to impede the
judgment by ings at law or equity (except as aforesaid) to impede or
faw or eqmtj» delay the said plaintiff in obtaining satis&ction of the
2^'^ed^ said judgment so to be entered up." The Chancery
cree havrng g^j^ ^^^ heard before the Master of the Rolls, who dis-
been given m ^
foTour of plain, missed the bill with costs; but the defendant (the plain-
tifi; defendant ^ ^ .
appealed: dff in chaucery) presented a petition of appeal to the
Held* that
judgment could Lord Chancellor, which had not yet been heard. After
up on the cog- the petition was lodged, judgment was issued on the
noTit tiU the
appeal was COgUOVIt.
determined.
Whitcombe now shewed cause. The petition of appeal
does not prevent the decree from being '^ final," in the
iH THS Fourth Year of WILLIAM IV. 385
sense in which the word is used in the cognovit That 1834.
word was inserted merely to protect the defendant .
against jadgment being signed upon the making of any againtt
order by the Master of the Rolls directing interlocutory
proceedings, as, for example, a reference to a Master in
(%ancery to ascertain some &cu The dismissal of the
bill is a final decree. Besides, the defendant is not to
impede the judgment ** except as aforesaid ; " that ex-
ception relates only to the suit b^re the Master of the
Rolls.
Fottetij in support of the rule, was stopped by the
Court
Lord Den MAM C. J. Final decree must mean a con-
dosive decree : the decree of the Master of the Rolls is
not conclusive, till the appeal be determined.
LiTTLEDALE J., Patteson J., and Williams J. con-
curred.
Rule absolute, {a)
(a) See Dummer ▼. Pitcher, 5 B, ^ Jd. 347.
386
CASES IN EASTER TERM
1834.
Tkurtday,
21ay Sth.
A caMwnt
btck to the
wtdons to be
rvtti^tcd» muft
be reheard ; and
thosvMiom
mvy receive
furtlier eti-
d«Doe» and
make a new
order oa Mich
rehearing.
The certiorari
bj which the
original order
wat remotcdt
doet not ope-
rate to reiDove
the tubwqucnt
one. Tlie
party wiahing
to contest tiich
order, must
obtain a cer-
tiorari, and
lemoveit*
il certiorari
cannot heap-
plied for aftinr
the eipiratiun
of SIX cilendar
montlis from
the mailing of
the order, &c
to be rcmovedf
whatever may
have been the
cause of delay.
The Kino against The Reverend Richard
Rouse Bloxam, D.D.
AT the Waraoickskire January sessions, 1839, Jamn
Smith having been convicted by Dn Eloxam of
being an idle and disorderly person in refusing to sup-
port his wife and child, whereby they became chargeable
to the parish of Rugly^ appealed against the conviction,
which was quashed by the se^ions, subject to a case.
Dr. Bloxam thereupon obtained a certiorari to remote
such case, and the orders and proceedings of the
sessions, into this Court, and the usual recognisances
were entered into for prosecuting the certiorari. On
the hearing in this Court, the case was sent back to the
sessions to be restated.
At the Jti/^ sessions 1833, the appeal was reheard,
and the Court then confirmed the conviction, subject
to a case reserved to the appellant.
In Michaelmas term 1833, a rule of this Court was
obtained calling on the prosecutor of the appeal to shew
cause why the recognizances of the defendant (Dr.
Bloxam) and his bail should not be discharged, and
why all further proceedings on the certiorari and the
restated order of sessions returned therewith into this
Court, should not be stayed until the prosecutor's at-
torney should undertake to pay the defendant or his
attorney his costs if the last decision of die sessions
should be affirmed by this Court. It was stated on
affidavit, in answer to this application, that the ground
on which the case was before sent back to the sessions,
was their omission to state certain &cts ; that they had
now
Blozam.
IN TUX Fourth Ybab of WILLIAM IV. 387
DOW specially found those and other facts, but that such 1834.
their special finding was inconsistent with the deter- "
The KfMo
mtnation they had come to in favour of the conviction ; jtgninti
that at a subsequent session {October 1833) the appel-
lant had moved that the case should be restated, and
tbe proceedings returned to this Court under the ori-
ginal certiorari, and an order had been made by the
jostices accordingly. A rule was thereupon granted
by this Court, enlarging the rule for discharging the
recogDizances, until the judgment of this Court should
be given upon tbe restated case and order of sessions, in
the matter of the above-mentioned conviction.
In Hilary term 1834, a rule was obtained calling on
tbe prosecutor of the appeal to shew cause why the rule
last above-mentioned should not be discharged, and why
the certiorari should not be quashed, and a procedendo
awarded to carry back the record of conviction to the
Kssions. The affidavit in support of this rule professed
to ezphiin the finding and judgment of the sessions
complained of by the appellant; and it stated that,
although the sessions had made an order for restating
^ case and returning the proceedings to this Court,
00 case had ever l)een prepared or brought up on
oehalf of the appellant under the existing writ of cer-
•
tJorari, nor had he applied for any new certiorari for
that purpose, and that six months had elapsed since the
reservation of a case at the July sessions ; it was there-
fore suggested that the prosecutor was now disabled
irom further carrying up such restated case or proceed-
•
logs to this Court, under the present or any other cer^
^orari, that the conviction must remain in force, and
"^w the object of the respondent in suing out the cer-
^fari and giving the recognizances having thus been
effected.
S6S
CASES IN EASTER TEtlM
1884.
The Kiwo
againtt
Blozam.
effected, the recognizances ongbt to be discharged. In
an affidavit on the other side, it was represented that the
delay in preparing the case had been occasioned by the
defendant's refusal to settle one.
Jmos and H. R. Reynolds now shewed cause. The
rule now prayed for is for a twofold purpose ; to quash
the certiorari and discharge the recognrzances, and that
a procedendo may issue. As to the first, the original
order must be considered as still subsisting; and ifso^ it b
for the respondent to bring it back to this Court under
the certiorari obtained by him, and by which the Court
retains jurisdiction over all the proceedings. The np'
pellant was not bound to bring up the second order.
Mr. Nolarij indeed, after observing (a) that '* cases are
so rarely remitted back by the Court of King's Bench
for inquiry, that rules to regulate the mode of proceed*
ing upon this second hearing of appeals can scarody
be considered as established by the settled practice of
any court of sessions," states it to have been hdd in
one instance, **that an order of sessions imperfectly
stated, and sent back to be restated, is quite out of the
case upon the return of the second order, and a perfect
nullity;" that the sessions should make a new order,
and a second case be signed by counsel : and he cites
JRex V. St. Georg^s^ Soidhxoark {b). There, it is true, the
sessions, on the case being sent back, made a new order,
but they were expressly directed by the rule of the
Court to ** re-examine," and to "make forther order ;**'
here the direction of the Court is merely to restate,
other instances, where cases have been sent back that
(a) 2Nol. p. X. p.611.
(6) Bwr. S. C. SS5.
iH THE Fourth Yeae of WILLIAM IV. 389
sessions might receive evidence which they had 1834.
we rejected, the course has been, not that a fresh
er was made after the hearing of such evidence, agnuut
but that the party who originally applied to this Court
caxne to it again, and moved that the first order might
be cjoasbed. In Sea v. Nether Heyfcrd (a), where the
case was sent back that a particular fact might be stated,
the sessions certified as to that fact, but did not make a
new order. The sessions in such a case have merely
to restate facts, as they are directed to do by the Court.
[Sir James Scarlett^ amicus curias. A question of this
luod was mooted before Lord Kenyan^ on a case from
UmAe$ter^ respecting the appointment of a constable.
The case was not sufficiently stated, and was therefore
ttDtback to the sessions. Upon that occasion it was
ttked, whether the whole matter was to be raised de
DOTOy as if it were a new trial in a cause? Lord Kenyan
^ of opinion that it might; and it was said on that
occasion that if the sessions came to a new conclusion,
^ party objecting to the first order would rest satis-
M; if they decided as before, the case must be sent
1^ to this Court. Patieson J. When a case is re-
ined back to the sessions that they may receive par-
^^r evidence, the admission of that will probably
^ige them to receive other evidence which may become
li^cessary in consequence. Lord Denman C. J. It must
^ like a new trial. It may be before an entirely dif-
^nt bench of magistrates.] Supposing that they are
to hear de novo, it does not follow that they are to
^ke a new order. In Rex v. Bilsdale Kirkham (&),
^We the sessions had refused to hear evidence of the
(a) Burr. S. C. 479. (6) Burr. S. C. 828.
Vol I. Dd valua
890 CASES IN EASTER TERM
ISS^. value of a tenement at a particular time, and conse*
quently confirmed an order of removal, the Court sent
The KiKQ ^ ^
against back the case in order that that fact might be stated.
Bloxam.
having first, however, decided, that if the tenement was
worth 10/. a year at that time, a settlement was gained
in the respondent parish. The sessions then sent a re-«
statement, that the tenement was above the value of lOt^
at the time in question, upon which the Court quashed,
the orders. There the sessions would themselves hav^
quashed the order of removal if they had considered,
themselves to have authority. [Lord Denman C. J^
They attained the same object in a more circuitous and
expensive way.] Assuming the first order to be still
subsisting, the next question is, which party ought to
bring ttiem up for the purpose of taking the opinion of
the Court on the second order. Although the appellant,
in whose favour the first order was, must move to quash
the second, it does not follow that he is the party to bring
them before the Court. The proceedings are all under
the original certiorari, and should be brought here by
the party who obtained that. It is suggested in 2 ^<^
lan^s Poor LaWj p. 612, note (4), referring to Bex ^*
Ashton Underhill{a)j that if the second order of sessio*^^
reverses the first, and the parties who thus beooCB^^
defendants resist it upon the return, they should ent ^^
•
into a recognizance to secure the opposite party h-^ — ^
costs. That implies that, in the author's opinion, th^^^
are not obliged to sue out a certiorari for the purpose c-^^
it
bringing up and contesting such orders; because in
case recognizances must be entered into as a matter ^^ ^
course. As to a procedendo, the Court will at all even^"
(a) CflW. 418. 2 AW. P. L. 5S5,
e occasioned it, ana the Uourt Having in a
stage of this case intimated an opinion that the .
I certiorari would give them jurisdiction over all
ceedings.
contra. The rule to be collected from Nolan's
aw (pp. 610, 611) clearly is, that upon a general
»D to restate, the proceeding at sessions is in
ense a new trial. There is no record upon which
sr statement can be added to the old case. A
le is statedi The sessions here have heard new
^ and confirmed the conviction which was before
1. The question then is, who should have brought
case. The person suing out a certiorari enters
recognizance to pay costs to the party in whose
judgment shall be given. It would be absurd to
i a party shall be under the necessity of bringing
>rder which is in his own favour, and subjecting
'to the costs of contesting such order. The spe-
iding of the sessions was only important in the
>f the appellants being advised to take up the
md none has been tendered to the respondents
ir part [^Patteson J. If the certiorari does not
I upon the latter proceedings, and the case is,
Bloxam.
392 CASES IN £AST£R TERM
1834. Lord Denm an C. J. By 13 G. 2. c.lB. s. 5., a cer-
tiorari roust be applied for within six months next after
The Kma
against the conviction, order, or other proceeding to be removed:
and according to the authorities cited in 1 Chiihfs Sin-
itUeSf tit. Certiorari^ p. 133. notec. (a), the time is to be
reckoned without regard to delays in drawing up the
case, or from any such cause ; and if this were not so
held, the statute would in effect be repealed. It follows
from the express words of the act, that the Court has no
power of extending indulgence to a party who^ from
whatever cause, is behind the proper time* Then how-
ever, it is said that the original certiorari is still io force.
The question therefore is, whether, when a party has ob«
tained a certiorari to remove a judgment given against
him, and the case has been sent back to the sessions,
which implies a power given to them of rehearing the
whole, he is afterwards bound, upon the sessions re-
versing their former judgment, to bring up proceedings
which are then in his favour : Or whether the certiorari
when originally issued, had the effect of removing those
proceedings which had not then taken place ? and I
think this cannot be maintained. As to the question,
who should remove the ultimate proceeding of the ses-
sions, it is often unnecessary to raise it, because if the
second hearing convinces the justices that their former
decision was right, the judgment is the same, and no
such difficulty can arise. But where an opposite deci-
sion is coroe to, he who complains of it is the party to
bring up the case. The appellant ought to have done
so in the present instance, but he is out of time. The
(a) See Rex v. T/ie Justices o/ Susitx, I Af. f S, 631. 734.
IN THE Fourth Year of WILLIAM IV. 393
proper course will be, to discbarge all the rules; tlie 1834.
case will then stand as if there bad been no appeal.
LiTTLEDAiE J. I am of the same opinion. The
party who originally removed the proceedings has no-
thmg to do with removing them now. They have
dianged sides.
Patisson J. I do not acknowledge the distinction
between restating and rehearing. How is it possible for
the sessions to restate the case without hearing it again?
The bench may not consist of the same persons. If tlie
certiorari were considered as operating upon the last
order of sessions, there would be this absurdity, that the
party who sued it out would be liable, under his recog-
nizance, to pay costs unless he got a judgment set aside
which was in his own fiivour.
WiLUAMs J. concurred.
The Court made the rule absolute for discharging the
recognizances, but, with this exception, discharged all
the rules.
The Kino
against
Bluxam.
Dd 5
894*
CASES IN EASTER TERM
1834.
Thursdatft
May Hth.
The King against The Archbishop of York,
Wright, Bowerbank, and Unwin.
TN a quare impedit commenced in this Coart(a),by
the Attorney-General, in the name of his Majesty,
the issue was made up and notice of trial given for the
Nottingham Summer assizes, 1833, at which assizes the
record was withdrawn. The plaintiff afterwards took
out a summons for amending the issue, and Littledale J.
after hearing both parties upon such summons, made an
order {Febntary 17th, 1834,) that the plaintiff should
have leave to amend, by adding certain counts to the
declaration, and that the defendants should have until
the tenth day of Easter term to plead de novo, if they
should be so advised. The order was silent as to costs.
In Easter term {April 23rd), the defendants served a
summons for time to plead, which they obtained ; and
on the 25th, they obtained a rule to shew cause why the
order of LittUdale J. should not be set aside.
The original declaration (of Hilary term 1833, deli-
vered in May of that year) contained only one count,
stating the right of presentation to have vested in the
crown, by reason of a simoniacal contract, the parties
to which were, Wright^ the owner of the advowson,
Baxerbantf who at the time was entitled to the next
presentation, and Joseph Rolling (/nspin, clerk. The
In quare im-
pedit bj the
crown for a
present ition
forfeited by
aimonj, the de-
claration (of
MUtry term,
1853) Mated
the simoniacal
contract to have
been made
between A.,
B. , and C. »
and the con-
sideration to
bave been the
granting of a
lease of lands,
parcel of the
rectory, at an
inadequate rent.
In Hdary
Tacation, 1834,
counts were
added, bj leare
of a Judge,
stating the con-
tract to have
been between
A* and B,
only, and the
conskideration
to have been
the giving up
part ot the
profits of the
l>enefice, and
exiTuiing a
resignation
bond:
Held, that
these counts
did not sute a
new cause of action, and, theri,'fore, might properly be added under a Judge's ordrr.
The Court will not, as a matter of course, renew an order made by a Judge i
cbamben.
fa) The King may bring quuc imped t in what court be will. Fi'i
X B, 52. (E.) P.tfir/. -M4,
all
YOMK.
IN THE Fourth Year of WILLIAM IV. 895
alleged contract was, that Bcfwerhank should present 1834.
Unwirij and IVrisfit and Bawerbank sho\i\d cause him to _ ^
^ The KiMo
be instituted and inducted, and that Unwin. in con- oguinu
The
sideration thereof^ should grant tf right a lease of lands, Archbishop of
parcel of the rectory, at a rent below the annual value ;
and such contract was stated to have been carried into
execution. The additional counts were four: First,
statin|2^ the contract to have been between Bawerbank
and Uwwin only, but with the privity of Wright. Second,
merely stating the contract to have been between BoxDer-
bank and Unwin. Third, stating the simony to consist
in Unwin a^^reeing to take 100/. per annum only, from
Bowerbank^ for the profits of the benefice. Fourth, stating
that Bawerbank took a resignation bond from Unwin (a).
*Pbe grounds of the present application were, that the
Judge's order, in effect, enabled the crown to declare
fbrnew causes of action, when it was too late' to do so;
and that, at all events, the learned judge ought to have
given the defendants the costs of preparing for trial
at the assizes.
Hill now shewed cause. The objections should have
^n taken on the summons. The defendants cannot
^pply now to set aside an order, under which they
^ave themselves taken an indulgence. The crown may
*^inend at any time: T^e Aitot-ney-Genercd v. Hen^
^fnon{b). Supposing that the additional counts were
opon new causes of action, the King is not bound by
^lie statute of Westminster the second (IS Ed. 1.5/.1. c.5*
^ 2.), which limits the time for bringing quare impedit
(a) See note {b< at the end of (he caw. {b) 3 Arutr, 714.
D d 4 to
596 CASES IN EASTER TERM
1834. to six months (a). But the causes of action are not
different; they only vary the mode of staling one and
The KiKO
agakut the same cause. As to the costs of withdrawing the
The
Archbithop of record, the Court cannot order the King to pay costs.
And if this were otherwise, there was no groand for
requiring them, since the crown was not applying fiir
an indulgence, but exercising a prerogative.
fViitej contra. In the Attorney-General ▼• Hender^
son (6), the crown paid costs, even on moving to amend
a revenue information in the Elxchequer. The crown
here ought not to have been allowed to make the amend-
ments, for the new counts introduce new causes of
action. The first additional count states a contract
between Bawerbani and (/rnnin, with the privi^ of
Wright^ and for his benefit* If that is not an agree-
ment with Wright (which may be a question, and in
which case the count does not differ from the preceding
one), it is an agreement between different parties from
ihose mentioned in the former count, and therefore a
distinct contract, and a separate cause of action. The
parties mentioned in the subsequent counts are also
different from those in the first IPatteson J. No
doubt they state different contracts, but that does not
make the cause of action different. The cause of action
is the recovery of the presentation. Only one thingcan
be recovered.] But the ground assigned is diflerent
IPatteson J. It is only a different mode of laying the
same ground of action, namely the right of presentation
(a) The stmtute does cot bind the King, Hm. A^. Qu^e finjiftf.
pi. 39. KoKs/. -344. Nor any other person, in the cs$c of simonr,
irinckcomhe t. PuUfsi^n^ X.ys Fep. i5, S. C. ^A 167., cd. ISTI.
See Km. Abr. iVran*i«.*wn }'. c.
(f) Zjtnstr, 714.
by
IN THE Fourth Yeae or WILLIAM IV. 397
bf reason of a simoniacal contract, which contract is 1834'.
difl&rently described in the different counts.] This is a
■^ ^ ^ The KiMO
peoal proceeding, and in Wright v. Ager {a\ the Court agninu
Tbo
of Common Pleas would not allow new counts to be Archhitbopof
added in a penal action, after die second term. [Pa/-
iewtmj. The attempt there was to add counts on a
difierent statute^ and for a different penalty.]
Lord Dekmam C. J. This was an application to a
jadge at chambers for an indulgence and an exercise of
his discretion. The Court has hardly authority to
r
interfere, at least it could not do so with propriety. I
must, however, add, that I think the learned judge did
rightly in allowing the amendment, and that he could
not impose the condition of costs being paid by the
Grown in respect of the bygone transaction. The rule
will be discharged.
LriTLEDALE J. Concurred.
Patteson J. I am of the same opinion, and I must
pn)test against the doctrine being received, that, wherever
& judge has exercised his discretion upon a matter
l>rought before him at chambers, his decision may be
^viewed by the court on motion. If this were allowed,
^▼^ order made at chambers might be brought before
the Court.
Williams J. concurred.
The Court discharged the rule, but allowed the costs
of amendment as of course (6).
(fl) 5 B, Moore, 550.
(^) The original declaration and additional counts in the aboTe case
*^ M follows : — (See the references to precedents, in 10 Wentw^t Index
b) the tide Quare Impedit, pp. xiii., xiv.)
** Not-
598 CASES IN EASTER TERM
1884. ^ N^idn^kamuhire, to wit. Edward Archbishop of York, Mk
......^ the Rer. WiU»m Boweriamk, and the Rct. Jotepk RoiUng Un
Xbe KiNfl sumznooed to answer to our Lord the now King in a plaa»
mgahui permit him to present a fit person to the church of the rectosy c
Aicbbishop of ^^ ^ county of Xoiimgkam, which is Toid, and in his gift. I
YoaK. whereupon the said Lord the King, by Sir William Home Knt.,
General of the said Lord the King, who for our aid Loed
prosecutes in this behalf, says»*' — (The declaration then proceadi
that the Lord Viscount Howe, now deceased, being seised in :
adTOwson, presented Edward Grrgory his derk, who on such pr
was admitted, &c. That Lord Howe's interest in the adTowaoo
assignment to the said John Wrigki, who diereby became aeii
adTOwson in fee : and that afterwards, to wit, &c. a part of the <
of Wright in the adrowson, to wit, the right to die then next jpn
came by grant to, and Tested in, the said WilSam Bowerbarnkg
the church afterwards became vacant by the death of Edmmrd
The declaration then went on as follows : — ) ** And the said
General further saith, that the said church of the rectory of X. i
a benefice with the cure of souls** (in the third additional earn
stated to be of large yearly Talue, to wit, of the yearly value c
** and after the death of the said E. G., and after the said church ;
vacant, and whilst the same continued so vacant as afm-esaid, s
the said John Wri^ and Witliam Bowerbank were so interested i
advowson as aforesaid, to wit, on, &c. {December 19th, 1824), it
there belonging to the said William Bowerbanic to present a fit
the said church, to wit, at, &c. , a certain corrupt, simoniacal, and
contract and agreement was made by and between the said Jak
and the said William Bowerbank, and the said Jo$eph RoUimi
contrary to the statute in that case made and provided, that is to
for and in consideration of the said J. R. U. then and there <
simoniacally, and unlawfully bargaining and agre«og with the i
and W, B.% that the said J, R. U. should grant and execute
corrupt, simoniacal, and unlawful lease to the said J. W., to wil
as herein-after mentioned, the said W, B. should present, anc
said J. W, and W. B, should cause and procure the said J, i2*
instituted and inducted into the said church ; and that forthwith i
presentation, institution, and induction, he the said J. R. CT. si
would, in consideration of such presentation, and of having been
and procured to be instituted and inducted as aforesaid, make anc
and seal and deliver to the said J. fT. as his act and deed, a k
certain term, to wit, for the term of ninety-nine years, in cast
J. R. U. should so long live and continue rector of the said r
divers, to wit, 324 acres of the lands, parts and parcelsof the sail
at a much less rent than the same were then and there reaaooak
to wit, at the annual rent of 170/., when in truth and in fact
were then and there reasonably worth a much greater and largi
IN THE Fourth Year of WILLIAM IV.
899
not, to wity the annual rent of 6002., contrary to the ftatute in gucb case,
&c And thereupon afterwards, to wit, on the day and year last afore-
tiidy at, &c the said J. R. U» was presented to the said church by the
lud Wm Bm, and he was then and there instituted and inducted into the
tttd church as rector thereof, in pursuance of, and upon and in furtherance
oi^ the said corrupt, simoniacal, and unlawful terms aforesaid, and contrary
to the said statute. And thereupon the said J, R» {/., in further pur-
RiBoe of and in furtherance of the said corrupt, simoniacal, and unlawful
contract and agreement, afterwards, to wit, on, &c. {February 12th,
1825), at, &c. did make, and execute, and seal, and as his act and deed
^fer to the said J. W. such corrupt, simoniacal, and unlawful lease
ai iforaaid for the said term, and of the said lands, parts and parcels of
the nid rectory, and at and for the said small and unreasonable rent as
libreaid, that is to say, a lease thereof from the said J. R, U. to the said
J. IT., to hold the same to the said J, IF. as from the 1 1th day of October
Aen last past, for and during and unto the full end and term of ninety-
nine years thence next ensuing, and fully to be complete and ended, in
cae the said J. R. U» should so long live and continue rectbr of the said
nctory of Langar, at and under the said small and unreasonable rent, to
*i^ the yearly rent of 170/., contrary to the said statute, and the said
J- W, then and there accepted and received the same from the said
/• IL U, upon and in pursuance of the said corrupt, sii^oniacal, and
nnliirfbl contract and agreement a^ aforesaid, contrary to the said statute,
*Bd whereupon and whereby the said last -mentioned presentation, institu-
tloo and induction then and there became, aod were and are respectively
*Mly foid, and whereby the said church was and continued so vacant as
<fcresaid. And tlie said Attorney- General further saith, that the said
dnitfa having become so vacant by the death of the said Edward Gregory
iiafbreaaid, and by reason of the said several premises, it thereupon did
(ha belong to our said late Sovereign Lord George the Fourth, and now
MoDgs to our Lord the now King, to present a fit person to the said
ckurch so void ; but that the said archbishop, and the said J, W., and
^» B., and J. R. U. unjustly hinder the said Lord the now King from
pnienting a fit person to the said church.
The second (and first additional) count stated, that " a certain corrupt,
iimooiacal, and unlawful contract and agreement was made by and
bctveen the said W. Bowerbank and the said J. R. Unwm, [vnth the
?nRfy, consent, and approbation of the said John JVrighl] that the said
^' B. should present the said J. R. U* to the said church so being vacant
la afonsaid, and cause and procure him to be instituted and inducted
into the same drarch, and that in consideration thereof the said J, R. IT*
ihoold make and execute, and seal and deliver to the said jr. fT, as his
act and deed a lease,** Sec, The rest of the count did not materially dififer
nam the first.
The third count was similar to (he second, only omitting the words
between brackets.
* The
1834.
The Kino
agniiut
The
Archbishop of
YoaK.
*00 CASES IN EASTER TERM
1 834<* The fourth count began like the preceding ones, and» after an avemmt
-— that the said church of the rectory of L. was and is a rectorj wi^ the
The KiKo cure of souls, of a Urge yearly Talue, to wit, &c. went on to state a coo-
^nT'^ tract between Bowerbank and Unwirif that Bowerbank should preaent
Archbishop of ^^ " ^^^ cause and procure him to be instituted and inducted into the i
Yoax . church, and that the said J. R. U. should take, have, and recciTe to his own
use a part only of the yearly profits of the said benefice, to wit, the stun of
1001. a year, part thereof, and that the said W, B., in cooaidcntion of
his presenting the said J. S- CT. to the said church so being meant as afiire-
said, and causing and procuring him to be instituted and inducted into
the same church, should take, have, and receive to his own use the residae
of the profits of the said benefice, contrary to the statute in such case,** &&
And after stating the presentation, institution and induction, in punuanoe
of the contract, it went on to allege that ^ntom, in futther pursuance, ftc
afterwards, to wit, on, &c. *' and from thence for a long space of timc^ to
wit, for the space of four years then next following, did take^ have^ and
receive to his own use a part only of the yearly profits of the aaid benefice^
to wit, the sum of 100(. a year, part thereof; and the said W. B,, in
further pursuance, &c., did, during all the time last aforesaid, U^ haie^
and receive to his own use the residue of the profits of the aaid benefice^
amounting to a large sum of money, to wit, the sum of, &c. to wit, at, ftc.
contrary to the said statute.** Whereupon and whereby the preaentatioa,
&c. became void, &c. Conclusion as before.
The fifth count stated the contract to be between Bowerbank and Umsm,
that Bowerbank should present, &c. (as before), and that in coosidefatioa
thereof, Untoin <' should make and seal, and as his act and deed ddivcr
to the said H^. B» a certain writing obligatory in a large penal sum, to
wit, the penal sum of 50001. of lawful money, &c., conditioned (amongst
other things) for his the said J. R, U, *s resigning the said benefice within
sik months after notice in writing for that purpose from the said IT. B*^
contrary to the statute in such case,** &c. It then alleged the presentation,
institution, and induction, in pursuance of the last-mentioned contract;
and that JT. R. U,, in further pursuance of the same, afterwards, to wit,
on, &c. << did make and seal, and as his act and deed deliver to the
W. B, a certain writing obligatory in a large penal sum, to wit, the
sum of 5000/. of like lawful money, conditioned (amongst other thin;^)
bis the said J, R. Cr.*s resigning the said benefice as aforesaid; and
said W. B, then and there accepted and received the said writing obUga ^
tory of and from the said Jl R, U., upon and in further pursuance of
said last-mentioned corrupt, simoniacal, and unlawful contract
agreement, contrary to the said statute ; whereupon and whereby,** &&>
The rest of the count was like the preceding.
The declaration concluded : — " Whereupon the said Attomey-Genend
saith that the said Lord the King is prejudiced, and hath sustained
damage to the amount of KXXV., and this he is ready to verify.**
Jht
iw THE Fourth Year of WILLIAM IV. 401
The pleas, pleaded before the adding of the new counts, were, — a 1834.
diwlaimer by the Archbishop ; pleas by Wright and Bowerbank, traversing ____
the simoniacal contract between Wright, Bowerbank, and Unwin; plea. The Kinc
liy Unwm^ the same, with a protestando (but see, now, tlie First General agatnti
finfcf pf Pleading, Hil. T. 4 W. 4. No. 12. 5 J5. $ Ad, v.), as to several Archbillbon pf
of tiie other matters alleged in the first count YoaK.
^ Subsequently to the decision above reported, Mr. Unwin vacated the
liiiog, and the cause was never tried.
The Right Honourable George Lord Viscount
MiDDLETON, Sir George Shiffner, Baronet,
and Inigo Thomas, Esquire, against William
Lambert.
T^£BT for the several sums of Sd. and 3d.y for tolls al- Under charten,
leged to be due from the defendant for the passing dean ai^ chap-
of carts laden with ale or beer, and drawn by two and all their *^
horses, on the 31st of May 1880, and the 2Sd of June "uoHoiit^
18S0 ; and also the full sum of 4rf. for the toll for the P^«** ?*".
minage, &c. m
ptssure of certain sheep on the said 23d of June, Plea, ^*^y ■°<* ^^
rou(;h, fair, and
4e general issue. On the trial at York, at the Spring market, in the
passage of
sssizes 1832, before Alderson J., a verdict was found bridges, and all
for the plaintiffs for the sum of 6^., the amount of the in ail places
loD for the passage of the carts, and for the defendant jy^^o^nrf "'their
M to the other tolb, with leave for the defendant to Und^Sd^
enter a verdict generally, and for the plaintiffs to in- !" ^^ charters
o J ' I IS exenrpt from
crease the verdict by the toll for the sheep, subject to J^a'^et toil and
•^ * " toll traverse,
toe opinion of this Court upon the following case : — nat only for
mi i--/T«i-i*i/* 1 1 articles going
The plaintiifs derived title from the crown to the to or coming
from the lauds
fur tlie ncces>
iiry BumuraDce and enjojrment of tbem» but also for good« tent out or coming in for the
purpose of mercha idize.
Quaere, whether, in the latter case, the ex:mption could have been claimed by ecdesi-
iMietl persons
Qu»re, al>o, whether the exemptioa from toll claimable at common law by ecclesiastical
perwns and tenants in ancient demcine, extends to goods bought and sold, or earned, tur
tbc mere purpose of trade.
following
402 CASES IN EASTER TERM
1834. following tolls at Boroughbridge, payable as tolls tra-
verse, viz. Srf. for every loaded cart, and Sd. for eveiy
Lord
MiDDLKTOK score of sheep. They proved, as in the case of PMam
Lamuekt. v. Pickersgill (a) (in which the right to the toll in ques-
tion was argued and established), that the manor of
Boroughbridge was parcel of the possessions of the crown
at the Conquest, and continued to be parcel of the pos-
sessions of the crown of Efigland and of the duchy of
Lancaster respectively, to the reign of King Charks the
First, who severed the manor from the tolls, which had
been annexed to the duchy of Lancaster^ under which
the plaintiffs now claimed as lessees.
The defendant did not deny the general right of the
plaintiffs to take the tolls above mentioned, but claimed
a special exemption under several grants and confirm-
ations from the crown, and in support of such claim he
gave in evidence various charters; and first a charter
of 33 Edw. l.(&), inspecting and confirming a charter
of Henry 3., inspecting and confirming a charter oi
Henry 1., which last charter (as recited) contains the^
following amongst other clauses.
^' Henricus Rex AnglicCj archiepiscopis, episcopisMP
abbatibus, consulibus, proceribus, et universis fidelib
suis Francis et Anglis totius Atiglicey salutem.
sessiones et dignitates et libertatis consuetudines qu
habuit Eboraci Ecclesia, concedo, et regia auctoritat^^
praesenti carta confirmo, sicut hie subscriptae sunt^
Sub regibus antiquis et archiepiscopis, et, quod pleriqu^
meminisse possunt, Edwardo rege et Aldredo archie-"^
piscopo, fuit Ecclesise Sancti Petri consuetudo e
(c) ) r. R. 6G0.
(6) The copy uted by the plaintiflTs purported to be taken from tbe
ginal record of Chancery prescnred in the Tower.
libertatisJ
againtt
IN THB Fourth Year of WILLIAM IV. 403
libcrtalis." («) — " Canonici S^ Pelri in Hird (6) id 18S4.
est domestica vel intriinseca familia appellabantur
Lord
Terra Canonicorum proprie Mensa S'*. Petri (c) De- MioDLrroir
nique si quid in ecclesia, vel in cimiterio, vel in do-
mibas canonicorum, vel in t.^rris eorum, injuste agerent
aat ipsi canonici adversus se invicem, aut adversilks
alios, vel alii adversus canonicos, vel adversil^s alios,
forislactura nulla archiepiscopo sed tota canonicis judi-
catntor. Archiepiscopus autem in rebus canonicorum
boc tautum juris habebat, quod, defuncto canonico, ipse
aliis praelationes, et prsebendas prsebeat ; nee tamen
sloe oonsilio et assensu decani et capituli. Si vero
archiepiscopus adversiis apostolicum vel regem com-
mitteret, ad quod redimendum vel pacificandum pe-
Cttoii opus esset, nihil tamen canonici archiepiscopo,
prater suam voluntatem, darent; et pecunia canoni-
coram et hominum eorum pro commisso, vel debito
srchiepiscopi, nee etiam in namium caperetur. Habe-
(i) The charter proceeds as follows : — « Si quis enim quemlibet,
^ttscunque facinoris aut flagitii reum et coDvictum infra atrium ec-
^Ittia caperet et retineret, uniTersali judicio sex centum emendebat. Si
^«o infra ecclesiam, duodecem hundreth ; infra Eboracum, octodecem.
^ooiteotia quoque de singulis, sicut de sacrilegiis injuncta, in hundreth
^^cto librae continetur. Quod si aliquis, vesano spiritus agitatu, dia-
**^^ ausu quemquam capere prasumeret in cathedra lapidei juxta
^Itve, quam Angtici vocant Fridstoll, id est cathedra quietudinis vel
^^•cis, hujus tam flagitiosi sacrilegii emendatio sub nullo judicio erat, sub
^^qUo pecuniae numero claudebatur ; sed apud jin^lat^ Boteles, hoc est,
^^oe emendi, vocabatur. Hae emendae nihil ad archiepiscopum, sed ad
^^tBooioos pertinebanU Canonici Sancti Petri,** &c (as above. The
'^ot three lines are printed witliout punctuation, exactly as they appear in
^^plamtifis* copy.) The whole is set out, (but with some slight varia-
^■ou), in Dugdale's Monasticon, vol. vi. p. 1180, (ed. 1828. by Caley,
-^^ sod Bandinel), from a register in the possession of the dean and
^%«raf York.
(i) See Spdman*t Glotsary, Sd ed. in voc Hird.
[c) Ai to land " mensie unita,** see the judgment of Sir W, Scott, in
^^ Duke of Portland v. Bingham, 1 Hagg. Consist, Rep, 164.
bant
40i
1884.
Lord
MlDOLRON
LAMBIftr.
CASES IN EASTER TERM
bant canonici in domibus, et in terris sulsy soocaniy ei
saccam, iol, et theam, intol et uttol, et iniaDgentheo^ et
ooines easdem honoris et libertatis consoetudinesy qnas
ipse rex in terris suis habebat, et quas archiepisoopas
do Domino Deo et de rege tenebat: hoc etiam ampliiksi
quod nemo de terra canonicorum S. Petri wapentac-
mot, nee tridingmot, nee schiresmot seqaebator; sed
caiumpnians aut calumpniatus, ante ostium mooai-
terii S. Petri rectitudinem et recipiebat, et iaciebaL
Hoc autem k religiosis principibus, et bonis antecesso-
ribus, sic provisum est, quatenus canonici pIacitaDte%
pulsato signo, ad boras canonicas ciio possent r^gredi;
archiepiscopo ver6 per seneschallos, et prasfecto^ et
milites suos, faciliiks erat praedicta placita sequi,
tenere. Si ver6 aliquis terram aliquam Sancto
daret, vel venderet, neo postea soccam vel saccam,
aut theam in ill& clamabat ; sed easdem consuetudi
quas et alia terra Saticti Petn\ ista habebat; tantn
amoris et reverends antecessores nostri huic san
principis apostoiorum ecclesiae deferebanu" (a)
The case tlien set out a part of the charier of Hemr^
}
(a) The renuuDing part of the charter is at follows: — ^
autem rex congregabat eierdtum, unus homo tantitan pneparabatiiry 4e
terra canonicorum, cum vexillo Sancti PHri, qui, si burgenses in ezcrcit
irent, dux et signifer eos prapcederet ; sine burgensibus Tero ncc i{
Hanc etiam consuetudinem sire dignitatem habebant canoaki
Petri ab antecessoribus regibus, nominatim quoque k regt JSdmmni^
cessam, et con6rmatam, ut nullus de familia regis, vel de exefcita ans,
propriis domibus canonicorum, nee in ciritate, nee extra,
Ubicunque fit duellum Eborady juramenta debent 6eri super
super reliquias ecclesite Sancti Frtri; et facto duello, victar anna ▼icti
ecclesiam & /Vfri offerat, gratias agens Deo et Sancto Peiro pvo ▼ictori^
Si canonici vel homines conim clamorem fecerint in placitis legis*
eorum ante omnem causam terminei ur, quantum potest tamiiiarip
ecclesiflp dignitate. Testibus. Archicp:scoi>o Ebcrac. W. Gifford ypitCT^H^
W;fnton, E. Bloet, episc po Lincoln^ E. Fiambardy episcopo DimdM.
N'., comite dc H'anytnL E. Basset, G, Eidclt. S. 61io Sig^JL Apud
—^ »»
ogctbut
IN THE Fourth Year op WILLIAM IV. 405
ihe Third (as recited in that of Edward the First), 1884.
nrbichy after ratifying and confirming the grant and
confirmation in the preceding charters, and the liberties Misdutov
therein contained and used by the said church down
to that time, proceeds : — ^^ £t ad declarationem qua-
rinidani libertatum in eadem carta sub quibusdam gene-
r^litatibas contentarum, et concessionem libeitatum ube-
rioTem, concedimus decano et capitulo ejusdem ecclesise,
et hac cart& nostrft confirmamus pro nobis et hasredibus
oofitris, quod ipsi decanus et capitulum habeant omnia
amerdamenta omnium bominum suorum ad ipsos deca-
nam et capitulum et singulos canonicos pertinentium, et
fines pro eisdem amerciamentis." — ** Volumus eliam et
concedimus pro nobis ethseredibus nostris, quod iidem
decanus et capitulum et singnli canonici atque eorum suo-
cessores et eorum homines universi sint quieti in civitate
etbargo, in foris et nundinis, in transitu pontium et maris
portoum, et in omnibus locis per totam Anglianij Hiber"
^iontj et WaUiamj et omnes terras et aquas nostras, de
SQolibet theolonio, tallagio, passagio, pedagio, lastagio,
staliagio, hydagio, wardagio, operibus et auxlliis castel-
loraoi, murorum, pontium et parcorum, walliarum, fos-
sitorum et vivariorum, navigio, domuum regalium
^sdificatione, et omnimoda operatione et custodia cas-
^ram, et de omni carreio et summagio, nee eorum
<^, carrectae aut equi capiantur ad aliqua carriagia
^cienda, et quod silvse eorum ad praedicta opera, vel
^oa alia, nullo modo capiantur. £t quod sint quieti
de omnibus geldis, danegeldis, fengeld, homgeld, for-
geld, penygeld, tethyngpeny, hundredpeny, miskening^
cheragio, cheminagio et herbagio, et de vectigalibus et
tribotis, et exercitu et equitatu, et de omni terreno ser-
Vol, L E e vitio
406
CASES IN EASTER TERM
1834.
Lord
MroDLCTON
agahtU
Lambxet.
vitio et secular! exactione, salvo servitio unias signi&i
secundum quod continetur in prsscripta carta prsfiil
regis Henricij proavi nostri." {a) The charter of Ec
ward I. confirmed the preceding charter.
The defendant next proved certain proceedings i
quo warranto, before the justices in eyre, iii the thir
Edward III. By those proceedings it appeared tbf
the dean and chapter of the church of St. Peter^ Yorl
were summoned to answer by what warrant they claime
certain liberties. The defendants, in their plea, set on
various clauses of the aforesaid charter of Henry III
with confirmations thereof; and further set out a claus
contained in a charter of 10 Edward II. (which th«
proffered in court), and which clause is as follows: —
*^ Praeterea, cum in cartS domini Edwardi^ quonda
regis Anglia, patris domini regis nunc,quam profemv
(n) The charter then went on in Uie following words, which
out in the case: " Et similiter, quod in perpetuum sint quieti de
Coroitatuum, Hundredorum, Wapcntagioruni,et Trithingor6in, et dei
dro et latrocinio, escapio et concelamento, et hamsokne, grithbrech, \Aa
y^te, fitwyte, forstall, leyrwite, bengwyte et wardpeny, et bordhalpeoy i
de omnibus auxiliis vicecomilum et mini&trorum suorum, et de scut^l
et assisis, et recognitionibus inquisitionibus et summoniUonibus, nisi 1
libertate et negotils eccIesisB Eboraci. £t tunc si sit placitum inter 1
mines praedictSB ecclesiae et canonicos, vel inter canonicos per se vel is>
homines per se ex utraque parte, omnes de assisa sini de libertate prwli'
ecclesiae, vel de libertate bcatie Marias Eboraci, si iUi non sufficiant.
vero inter decanum et capitulum vel eorum aliquem, canonicos sing*
vel eorum homines, et aliquem qui non sit de libertate, assisa ds^
arrainiari et capi, medietas assisoe sit de hominibus libertatis pnec^
ecclesiie, et alia medietas de forioseds. Et quod idem decanus et ^
tulum habeant curiam suam et justitiam, cum socco et sacca, tc^
theam, et infangenethef et utfangenethef, flemensfirth, ordel et orest, ^
tempus et extra, cum omnibus aliis immunitatibus, libertatibus, eof ^
tudinibus et quietantils suis."
For explanations, or notices, of the more unusual words in the *^
charters, see CouelTs IrUerpreier, ^)elman*s Glossary, and 3 Hic^
IheiauruSt p.. 284.
inte
IN THE Fourth Year of WILLIAM IV. 407
iter csetera contineatur haec videlicet clausa in hcec 1884.
erb^ &C Ac quidam voluntarie intentes (a) libertates "T 7
•* ^ Lord
*t quietantias prasdictas indebite pro viribus impugnare Middlston
affdnsi
asserant, et malitios^ prsetendant libertates et quietantias LAxwaT.
illas decano et capitulo pro se et nativis suis tantum-
modo, et non pro libere tenentibus suis concessas fuisse,
et eas ad dictos nativos et non libere tenentes referri
debere: Idem dominus rex pater, &c., volens hujus-
iDodi ambiguitateoi amovere, et securitati eorundem
decani et capituli ac hominum et libere tenentium
soorum in bac parte providere, concessit et declaravit
pro se et baeredibus suis, quod libertates et quietantis
prsdictse taih pro libere tenentibus ipsorum decani et
capituli quam pro caeteris hominibus suis intelligantur :
£t quod iidem decanus et capitulum et successores sui
pnedicti omnibus et singulis libertatibus et quietantiis
pnedictis tarn pro libere tenentibus suis tarn pro caeteris
hominibus suis in perpetuum gaudeant et utantur, sine
occasione vel impedimento ipsius regis vel hasredum
SQonun, justiciariorum, escaetorum, vicecomitum, aut
>liorum ballivorum seu ministrorum regis quorum-
cunque."
The record of the above proceedings, after setting
OQt the plea, proceeded : — ^* £t super hoc dominus rex
iQandavit justiciariis suis hie breve suum sub magno
sigillo suo in haec verba. Edwardus^ dci gratia, Rex
^luKj dominus Hibemia et dux Aquitaniaj justiciariis
SQis itinerantibus in comitatu Nottingham^ salutem.
Cum diversae libertates et quietantiae per cartas proge-
Qitorum nostrorum quondam regum Anglia dilectis
Qobis in Christo^ Decano et capitulo ecclesiae beati Petri
^^aci sint concessae, et nos nuper cartas illas per
^^ftftam nostram confirmavimus, et concessimus eisdem
(n) Sic.
£ e 2 quod
408 CASES IN EASTER TERM
1834. quod licet ipsi vel eorum prasdecessores libertatibus et
~ quietantiis praedictis antea plene usi non fuerint, iidem
MxDDLKTON taRien decanus et capituluin et successores sui eisdem
againU
Lambiet. libertatibus et quietantiis extunc gauderent et uterentur,
prout in cartis et confirmatione presdictis plenius con-
tinetur; vobis mandamus quod prsedictos decanum et
capitulum ac singulares canonicos ecclesias prasdicts
libertatibus et quietantiis hujusmodi coram Tobis in
itinere prasdicto uti et gaudere permittatis et eas eis
allocetis, juxta tenorem cartarum confirmationis et
concessionis prasdictarum. Teste me ipso apud KeniU
worthy vicesimo die Novembris^ anno regni nostri tertio.
£t petunt quod libertates et quietantias prasdicte
juxta tenorem mandati domini regis eis allocentur. Ita^
praedicti decanus et capitulum ad praesens eant indesioe^
die, salvo jure regis, &c.
The above several charters were further confirmed bji^
charters, 3 & 7 i2. 2. ; and the right to the tolls wa^s-.
admitted (for the purpose of this cause only) to haT» ^
been in the crown till after the date of the last chartei
The said several charters were accepted by the dea^
and chapter, and they have constantly exercised th.^
jurisdiction thereby granted to them within the liberty
of St. Peters and they have been accustomed, for
years back, to grant to the tenants of the liberty whi
are called charters of exemption, in the foUowii
form : —
Liberty of St. Peter of York. — Whereas the dean
chapter of the cathedral and metropolitical church
St. Peter of York^ and their successors, and the m<
and tenants, and all other the inhabitants within
liberty of the said dean and chapter, by custom befoi
the reign of King Edward the Confessor, had
IN THE Fourth Year of WILLIAM IV. 409
erifoyed several remarkable liberties and immanities, 1884<«
were acquitted of and from payment of all and all
Lord
jKMJBtxmev of tolls, tonnage, pontage, murage, pedage, Middlktov
sixiallage, and stallage whatsoever, in all fairs and Lauukt.
markets within the realm of England f Irelandj and the
doinioion of WaleSy which the charter made to the dean
a]3<3 chapter of the said church by King Henry the First
ratifies and confirms, and the same, as well by several
otber charters made since as by several acts of parlia-
ment, have been ratified and confirmed, as by the same
charters and statutes doth fully and at large appear:
^fow know ye, that I Henry John Dickens^ Esq.,
teward of and to the said dean and chapter, do by the
authority incident to the said office of steward, hereby
<^citify to all whom it may concern, that the bearer
"€reoli WiUiam Lambert of Helperby, common brewer,
^ an inhabitant within the liberty of the said dean and
chapter, and is to have and ei^joy the benefit of all
'■^aiichises and privileges within the said charters
^^ntained, to the men and tenants of the said liberty
appertaining, and is to be toll free in all places in
England, Ireland^ and Wales. In testimony of which, I
'^ve hereunto set the seal of the said office, the 20th
day of 3%, &c (6G. 4.)
The defendant had one of these charters when the
^11 in question was demanded. He had resided many
Shears at Helpa-by in the county of YorJc^ in which place
^e dean and chapter had various possessions at the time
^hen Dcmesdcy Book was made out The case then
set out the passage of Domesday Book {a) stating the
Hoantity and description of land held by the church of
(a) See fol. 503. of the copy published by the Record Commissioii.
E e 3 St.
410
CASES IN EASTER TERM
1834.
Lord
MiDDLKTOK
Lamsibt.
St. Peter in Helperby. {a) Helperhy is a manor withi
the liberty of St. Peter^ and parcel of the possessions <
the dean and chapter. The inhabitants of Hdperi
attend at the quarter sessions held for the liberty *
St. PeteTj to serve on juries there. The constable a
tends there. The surveyors of highways for Helperi
are appointed, and public houses licensed there. A
the land in Helperly is copyhold of the manor. Tt
defendant is lessee for twenty-one years of the mao<
under the dean and chapter; he has resided for seven
years in his own house, which is built on copyhold Ian
held of the manor, and he occupies from ISO to 15
acres of land, his own estate, both arable and pastnn
within and held as copyhold of inheritance of the sai
manor. He also carried on very considerable busine
as a brewer on the premises so occupied by him, ar
during such his occupation, two of his carts laden wi
ale manufactured by him as a common brewer for sal
and half a score of sheep, being a part of his farmli
stock, passed over the bridge at Boroughbridgej for whi«
toll was demanded as usual, but which he refused
pay. The sheep were in charge of the defendam.
servant going to the fair at Boroughbridge. The cm
(a) It WIS objected in argament for Uje plaintiffs, that the case did
shew the lands in question to bare been the property of the dean '
diapter at the time of the grant of Henry the First ; that Domesday 1^
did not specify the particular lands, and that the benefit of the ki^
grant coold not be extended to aAer-purchascd lands; to which point 9 A
Ahr. SOS. Prerogative le Roj/^ (T.) pi. 1. was cited. But it was ansv^
that eren if the description in Domesday were not sufficiently partial'
the clause beginning *< St verb aliquis,** &c. in the last-mentioned cfaav
(ant^ page 404.) extended the privilege to such lands; and further* ^
t})c objection was not raised at the trial, when, if suggested, it could K>
been met. No notice was taken of the point in the judgmcr.t of
Court.
IN THE Fourth Year of WILLIAM IV. 411
2nd horses were also driven by the defendant's servant 1834.
^nd by his orders; one of the carts passed over the
fcridge on a day which was neither a fair day nor a^ Middlron
agahui
snarket day. Lambiiit.
The defendant contended, first, that the charters set
^)ut exempted his and his servants' catde and carriages
^rom the payment of any toll for passing over the bridge
^t Boroughbridge^ and that it was immaterial whether the
jgoods conveyed were grown upon his farm or not, or
^^hether the catde driven over the bridge constituted
^ part of his farming stock or not; and, secondly, that at
any rate the sheep, as part of his farming stock, were
exempt.
This case was argued in Michaelmas terra, 1838. {a)
Starkie for the plaintiffs.— The exemption is not made
out; or if it is, it does not extend to ale manufactured
b; a common brewer, or to sheep under the circumstances
bere stated. The charters must be construed with re-
ference to the persons to whom, and the exigencies for
^hich, they were granted. Charters of this kind, granted
U) ecclesiastical bodies, exempt them from toll, so far as
it affects the use to be made of their lands for their own
immediate purposes, but not for trade. It is so laid
<]own in 2 BoU. Abr. p. 202. Prerogative le Roy (T.) pi. 2.
^' Si Roy graunt al un Abbot qu' il et homines sui sint
C]uieti ab omni theolonio in omni foro, et in omnibus
Hundinis, et in omni transitu portuum, viarum, et marium
per totum regnum nostrum et omnia mercata sua et
lominum suorum, &c I'Abbot et ses nomes serront sol-
mcDt quiet! a praestatione theolonii in venditionibus et
(a) Before Denman C. J., Taunton^ and Patttion Jt. Nov, 1 9tb. '
E e 4 emp-
412 CASES IN EASTER TERM
18S4. exnptlonibus per ipsos factis de necessariis suis ut in Ticti
"T^jT vestita et similibus : Et hoc ad opus proprium ipsoraii
MiDOLnov Abbatis et hominum suorum, sed si praedictus Abba
agamtt
liAMiEBT. aut homines sui emptiones, sen venditiones fecerint i
mercatores communes, et de communibus merchandisi
et ratione merchandisarum faciend. debent theoloniui
sicut et caeteri mercatores communes non obstante chart
praedicta." The monasteries, like other bodies and in
dividuals, used the markets and great fairs for the pui
pose of laying in provisions for their own use and t
keep hospitality, and to these purposes their exemptioi
from toll is referable. In Com. D. EcdcsiasiiccU persom
(D.) (vol. iii. p. 5670 ^^ ^ ^^^^ ^^^^ such persons shal
be discharged of tolls, &c. for their ecclesiastical goods
but it is afterwards added, that *^ toll, &c. may be takei
of them if they merchandise; for the writ says, dn
merchandizas non exerceant de eisdem.** In 2 Ifist. 22
a case is cited of T^e Abbot of St. Editard's v. JW
Bailiffs of Southampton^ where King Henry the Third ha
granted to the abbot of L. and his successors ** qua
ipsi et homine^i sui sint quieti ab omni theolonio in om^
foro et in omnibus nundinis, &c." and it was resolv»^
that the abbot should have the privilege by force of tlJ
general grant in this manner; ^^ quod ipsi et homing
sui sint quieti a prasstatione theolonii in venditionibus
emptionibus pro suis necessariis, ut in victu, vestitu,
similibus, et hoc ad opus proprium ipsius abbatis
hominum suorum.'' Tenants in ancient demesne aF-
pay no toll for things arising from the lands holden
that tenure; but the same distinction is applied to the^
and for a like reason, 2 Inst. 221(a): and an anci^
record is there cited, which says, " quod hi qui clamcra
(a) See the passage cited in the jud<;mcDt of ihe Court, po&t, 4*A).
IN THE Fourth Year of WILLIAM IV. 413
esse immunes de theolonio praestando, ut tenentes in 1884.
antiquo dominico, vel per chartas regum, non debent '^ 7
distringi pro aliquo theolonio pro merchandizis ad usus Middletok
ogaifut
sues proprios emptis ; imo pro merchandizis qa' emerint LAMiimT.
vel yendiderint ut mercatores, debent solvere pro eis."
In Biv. Abr. ToU^ pi. 1. the exemption of such tenants is
said to be *' pur les choses provenants de mesmes les
tenements pur vendre ou achate pur Jour sustenance
accordant al quantity de lour tenements : " and 9 H. 6.
25. is cited, (flr) Fitzherbert says, {F. N. B. tit. Writ of
ieifig quit of ToUj f. 228. A.) that it appears that such
tenants ** shall be quit of toll for their goods and
chattels which they merchandise with, as well as for
ther other goods ; for the writ is general, pro bonis et
fetus suis." But however this may be as to such tenants,
the reason does not apply to ecclesiastical persons ; for
the writ set out by Fiizhetbert^ (f. 227. F.) in the case of
^m ecclesiastical person, contains an express proviso as
to the goods exempted, " so that he do not exercise any
Merchandise with the same." The lands in question
clearly belonged to an institution in its nature monastic,
'or the charter of Henry I. uses these words of the
Pi^)perty to which they belong ; " terra canonicorum
Pt-oprie mensa Sancti Petri." Such an institution
^'Qold not carry on trade; at any rate not that of a
^^mmon brewer (b) ; nor can their privilege from toll
^>e extended so far as to exempt the ale of such a trader.
-^^ to the sheep, it does not appear that they were bred
^pon the lands; and at all events, when once removed
'oT sale, they were like any other merchandise.
(a) Page 25. pi. 20. See also Bro, Abr. Auneient deTnetne, pL 22.
(citing i9H»6. 66.,) where a qusre is put, whether the tenants bhall be
^''ee /rom toll of all tilings which they sell and buy ?
W See, however, st. 21 //. 8. c. 13. 5 32.
Coltman
414 CASES IN EASTER TERM
1834. Coltman contiii. The chapter of Fitzherbert^ on the
writ of being quit of toll, gives the forms of writ appli-
Lord
MiDDLRON cable to two classes of persons who were exempt &^
Lambbat. common law, viz. ecclesiastical persons, and tenants i^^
ancient demesne. By the writ relating to ecclesiastic^^
persons, and Fitzherberfs construction of it, thdur e^^
emption appears to be general. FUzharbert^ ^^^^r
stating that exemption, and setting out the writ, ad«^
(f. 227. F.) : " But Herle J. said that these wonds^
dum merchandisas aliquaSy &c.. were of no effect^
because, by his opinion, they are quit of all things^
although they do merchandise : but now the statute oi
H. 8. (a) is, that they shall not merchandise.^ As to
tenants in ancient demesne, he states it to be a qaesdoa
whether they are exempt from toll when exerdsiog
merchandise, but adds, as his own opinion, ** that tbey
shall be quit of toll generally, although they merchandise
with their goods," f. 228. £. It is true the contniy
has been held as to tenants in ancient demesne^ /Tori^
arid Knighfs case (b) ; and in the case of the Jbboi ^
St. Edward's (c), and 2 Boll. Abr. p. 202. Prercgatice ^
Bxy^ (T.) pi. 2., it seems also to be considered that ^
exemption of ecclesiastical persons does not extend to
general merchandise. But those authorities apply ^
dealings in a fair or market, not to toll demand
for passing a bridge. By the charter of Henry 1"*
•
the dean and chapter and their men are to be '* qi^^
in civitate et burgo, in foris et nundinis, in tran^^^
pontium et maris portuum — de quolibet theolonio, ^'
lagio, passagio," &c. and afterwards, " de chemina^^
Now there is no case in which the exemption from '^
thorough or traverse has been restricted in the mani>^
(fl) 21 /f. «. cAo. (6) 1 Le^n, 251. Ov. EL 227. & €•
S -\. t^
IN THE Fourth Year of WILLIAM IV. 415
contended ibr on the other side. In Fitzherbert^s 1834.
Abridgments ToU, pi. 5. (fol. 222 a.) toll traverse is dis-
inguished from market toll ; it being there said that Midblwok
;lie king shall be toll free in all markets and fairs for Lambkat.
tallying things, &c. : but quaere of toll traverse, if he
shall pay that, and semble, he shall. In the passage
l>efore cited from Fitzh. N. B. 228. E., it is said, that
forasmuch as tenants in ancient demesne shall be quit of
pontage, murage, and passage, it is conceived that they
shall be quit of toll generally, although they merchan-
dise with their goods. Pontage, therefore (and so also
toll traverse), is on a distinct footing from market toll.
Suppose the exemption claimed by a person travelling
on horseback, or on foot, it could not be asked of him
if he was going on the necessary business of his farm.
There is no authority for narrowing the effect of the
general words of exemption in the charter of Hem-y III.;
>nd if tlieir import is to be cut down, the plaintiffs
ue to do it. These observations apply as well to the
sheep as to the other goods ; but in Fitzh. N. B. 228.
Qotei. a case is cited (a), where, in an action for refusing
toll, it appeared that the defendant, a tenant in ancient
demesne, bought beasts in the market, and used some
for manuring his land, and put some to pasture to fat-
ten (i), and sold them the next week in the market:
the plaintiff offered to aver that he bought the beasts to
^dl them, and resold them after convenient time: *' the
defendant demurs ; but the opinion of the Court being
^insthim (the plaintiff), he became nonsuit:" and it
^ added, " so that it seems for things bought for their
W Yearb. 7 //. 4. 44.
(&] See the judgment in the present case, post, 421. In the edit. 1794
^Tiifh. N> li. it is printed, «« to make grases/'
sustenance,
416 CASES IN EASTER TERM
18S4« sustenance^ or manuring their lands, or concerning has
~ bandry, they are discharged, but not to merchandise
Liord ^
MiooLBTON and the merchandise of these is different from othe
OMOMtUi
Lambbat. merchandise." The argument of Hobart in Ward af»
Knighfs case {a\ supports the same proposition. What
ever, therefore, might be the decision here as to the a]c
the sheep were clearly exempt They are stated in di<
case to have been *^ part of the defendant's fkrmin
stock," and that allegation is sufficient, at least in th
absence of any suggestion that they were bought fo
the mere purpose of merchandise : Saoery v. Smith (£
The defendant is clearly within the description of** eortu
homines" in the charter of Henry III., being a tenant <
the manor, and the grant of Edward IL (set but in tb
proceedings on quo warranto) declaring ** quod libertaU
et quietantiae praedictse tarn pro liber^ tenentibus ipsonii
decani et capituli quam pro caeteris hominibus suis ii
/ telligantur." That, if an extension of the former graimi
was yet valid, being made when the tblls were still
the crown.
StarJde in reply. As to the distinction taken betw^
toll traverse and market toll, all the exemptions gi"^
by these charters must be governed by the same p^*
ciple : it cannot be said that the grant takes effect wV
the goods are in the market, and ceases to operate wV
they are out of it. The objection, that trading was '
contemplated by the charters, applies under both ^
cumstances. The words of exemption in the caS^
The Abbot of St. Edward^ s{c\ were as large as thp*
used here, and yet were held not to protect the par<
(a) 1 Leon, 232. (6) 2Xtt/w. 1146.
(c) 2/ni^.22I.
wb
IK THE Fourth Year of WILLIAM IV. 417
irlien trading. The passage, Fitzherbert^ N. B. f. 227. F., 18S4.
•elied upon on the other side, is loose ; and the dictum '.
if Herle J. is given as the expression of his opinion, Middlxtok
againH
lot the author's. F. N. B. f. 228. £• refers only to tenants Lambikt.
n ancient demesne. As to the question whether per-
sons passing on horseback or on foot could be asked for
what purpose they were travelling, it might, perhaps,
be answered (if necessary), that the exemption would
not attach to sucn persons if they were travelling for
purposes not connected with the use of their lands,
according to the intention of the charters. In the case
dtcd from 7 H. 4. 44., it appeared, on the pleadings,
that the beasts had been put upon the land with the
intention of their being jfattened. Here that is not
shewn. In Savery v. Smith (a), it lay upon the defend-
ant to shew that the pigs which he had seised for toll
Were bought by the plaintiff for the purpose of mer-
duindise; he failed to do so, and for that reason the
plamtiff had judgment. Here facts are stated which
establish the claim to toll, and the defendant does not
bring himself within the exemption.
Cur. adv. vidL
Lord Denman C. J. in this term {April 22d) de-
livered the judgment of the Court. After stating the
Mature of the action, and the circumstances under which
^e special case was ordered, his Lordship proceeded.
Xlie case stated, that the plaintiffs established their
^1 tie to the tolls in question, as lessees under the duchy
^^ Lancaster. They had belonged by prescription to the
inanor of Boroughbridge^ which manor was parcel of the
possessions of the crown at the time of the Conquest,
(a) 2LtUw. 1146.
and
418 CASES IN EASTER TERM
1834. and had continued vested in the crown till the reign of
Charles the First. By that king they were severed ftom
MiDDLRow the manor, and annexed to the duchy of Lancaster.
LAMDEar. The defendant, to prove an exemption in himsdf
from the liability to pay these tolls, produced sevoal
charters, and, among others, a charter of the 33 Eda>, 1^
which inspects and confirms a charter of Hetuy 3^ ood-
taining a grant to the church of York^ in these words;
that the dean and chapter, and the respective canoosi
and all their men, (eorum homines universi,) should be
quit of toll and of other matters, in city and boroaghi
in fairs and markets, in the passage of bridges and ports
of the sea, in all places throughout England. And be
produced some proceedings in quo warranto before tbe
justices in eyre in the 3 Edw. 3., wherein was set out a
charter of Edw. 2^ stating that Edw, 1., by a oertiia
charter, granted and declared that the liberties and
quittances aforesaid should be understood as well fix
the free tenants (liberi tenentes) of the said dean and
chapter, as for their other men (caeteris hominibos))
and that the said dean and chapter should have and
enjoy them for ever for all. This record, after recitiDg
a confirmation by Edw. 3. of the aforesaid liberties)
concludes with the king's writ for their allowanoei
Two confirmations of all these charters, by Rtck,i^
were shewn ; and it was admitted that the right to the
tolls was in the crown, jure coronse, till after the date
of the last charter. It was then proved, by reference to
Domesday, that, at the time that book was compi^d*
Hclperby was parcel of the liberty of St. Peter. Tb^
case states that it is a manor, and that all the laD^
therein is copyhold of the manor. The defendant ^
also stated to be a lessee for twenty-one years under tX^
IN THE Fourth Year of WILLIAM IV. 419
an and chapter, and occupier of a copyhold house 18S4.
Id of the manor, and of 150 acres of land his own 1 7"
Lord
late, within and held as copyhold of inheritance of the Middlrok
isnor; that he carried on there the business of a LAmsaT.
ommon brewer; that two of his carts, laden with ale
Danabctured by him as a common brewer for sale,
md some sheep, part of his farming stock, passed over
lie bridge, and that toll was demanded for them and
refiued. The sheep were in the charge of his servant,
gomg to the fair at Baroughbridge : one of the carts
pused on a day which was neither a fair nor a market
Looking at the mere words of these documents with-
OQt more, the defendant's claim to exemption should
Kem to be distinctly made out King Henry the
Third, in whom, at the time, the right to this toll was,
ttd who was therefore competent to discharge it, grants
ui exemption from this and all other toll, to all the men
)f the dean and chapter, of whom the defendant is #ne.
^ifficoldes, however, and very great ones, occur in the
ODsideration of this subject We are called on to put
^al construction on charters of great antiquity, upon
question which, in modern times, does not appear to
are been discussed, and upon which the authorities,
lost of them of very remote date, are not consistent
or the defendant it has been contended, that a grant of
Kemption of this sort, made to ecclesiastical persons,
^uld only enure to their benefit when the articles were
onveyed for the necessary sustenance of their houses,
r the cultivation of their land, and not for the purpose
f the carrying on of trade or merchandise. It also has
^een endeavoured to be shewn, that these men of the
lean and chapter must be privileged to the same limited
extent
420 CASES IN EASTER TERM
1834. extent and in the same manner as tenants in andeot
■ demesne, of whom CiJce (a) declares, that they ** shill
Lord
MiDDLRov pay no toll, because at the beginning, by their tenure,
LAiinaT. they applied themselves to the manurance and hns-
bandry of the king^s demesnes, and therefore for tbose
lands so holden, and all that came or renewed there-
upon, they had the said privilege ; but if such a taitnt
be a common merchant for buying and selling of wares
and merchandises, that rise not upon the manuranoe ar
husbandry of those lands, he shall not have the pri?ikge
for them, because they are out of the reason of the pri-
"vilege of ancient demesne, and the tenant in aiicient
demesne ought rather to be a husbandman than a mer-
chant by his tenure, and so are the books to be iiH
tended." And for this he gives the words of an apdent
record, which is directly in point (i). To the sameeftct
also is Bro. Abr. tit. Toll, pL I., 9 Hen. 6. 25., BacAbr.
tit. Fairs and Markets (D), 20 Vin. Abr. tit Tdl (E)i
p. 292., and Com. Dig. tit. TM (G). On the other
hand, Fitzherbert {N. B. 228.) is of a contrary opinioiif
and says, that tenants in ancient demesne shall be quit
of toll for their goods and chattels which they m^^
chandise with, as well as for their other goodsi foi
the writ is general, pro bonis et rebus suis. For this
doctrine he relies on the Year Book, 7 Hen. 4. 44»>
but this book it is clear that he misunderstood. To *
declaration in that case for selling beasts at a marked
and fair without paying toll, the defendant pleaded tb^
he was a tenant in ancient demesne, and that all tho^
have been free to buy and sell beasts for manuring
their lands, &c. without toll, time out of mind, an^
(a) UnsU 221. (6) Am^, p. 418.
agamti
iH THB Fourth Year of WILLIAM IV. Ml
lat he bought at fairs, and some he used for manuring 1884.
is land, and some he put to pasture to make them fat — -
id more fit for sale (pur eux faire grass {a) and pluis MnDLBioir
t)le a vendre), and some time after sold them at a fair.
?he plaintiff offered to aver that he bought the beasts
o tell them, and that he sold them ut supra. The de-
Gsodant demurred, and the opinion of the Court being
tgainst him (the plaintiff), he became nonsuit. Now
here there was no claim by the defendant to be quit of
toll for all merchandise, but for beasts only, bought and
lold for the cultivation of his lands ; and the opinion of
the Court only was, that the circumstance of the defend*
ut selling the beasts again, after he had fattened them
oohis land, was not to be deemed merchandising. And
this view Lord HaU^ in his note to Fitzherbertj appears
to have taken, for he adds, ** So that it seems for things
hougbt for their sustenance, or manuring their lands, or
copcerning husbandry, they are discharged, but not
Sv merchandise ; and the merchandise of these is dif-
faent from other merchandise."
But we are not called upon, in this instance, to decide,
m this conflict of authorities, what the privileges of a
tenant in ancient demesne may be, because the defend-
utdoes not claim in that character. The privileges of
& tenant in ancient demesne rest on the custom of the
i^m, the claim of the present defendant on the king's
express grant by charter ; and if the words of the grant
he plain, there is no occasion to resort to doubtful
uudogy for explanation. For the same reason, it does
not appear to us to be necessary to decide what
privileges ecclesiastical persons, in general, have with
(a) Sic in Year Book.
Vol. I. F f respect
4,22 CASES IN EASTER TERM
1884. respect to toll, upon which jadicial opiiiicms have not
""""* been unanimous. See Com. Dig. tit. Ecdes. Perums (D).
Lord
MiDOLvrov There are not wanting authorides that such a gnnt
Lamaut. as the present extends only to buyuigs and sellings of
necessaries, and not of common merchandise: 2 BolL
Mr. 202., 2 Inst. 22 L, BjoU Pari 8 Ed. 2. No. IS., as
to pannage (a). It should seem, however, from passages
in some book&i that the grant was considered to be gene*
ral : Vin. Abr. ToU (E), 4. 8. (p. 298.), Pitz. N. B. m^
228., in which last book are given forms d writs in re~
^ dress of lay corporations, to which charters of exempdozi
have been granted. These writs recite the privilq;e to
be without qualification. Now though, possibly, if the
claim here was made by one of the ecclesiastical body of
the church of York^ there might be good ground to
contend that the exemption belongs only to them for
their ecclesiastical goods, or for manuring their lanc^
or for personal necessaries, though we by no means say
it would ; yet here the claim is by a man of the dean and
chapter, who, not bearing the clerical character, does not
seem to come within any of the reasons which apply to
a restriction in the case of an ecclesiastic, to whose
calling trading itT merchandise was repugnant, an^i
therefore, not to be encouraged by exemption from toll
This distinction would certainly be liable to the ob-
jection, that the subject-matter of the grant, namelyi tb^
exemption, would differ according as the party claimiiiC
was a member of the body or a tenant, and would be
larger in the case of the latter than of the immediate
grantee. But as the words of the charter of Henry UI*
(a) Sic in the printed Bolli, {RoluU PartianutUorum, ut H ,
&c, vol. U p, 291.) Qu. paviager See FitjJi. N. B. 827. F. iiol»(*)'
9 Tm.* A.
IN TEA Fourth Year of WILLIAM IV.
425
are clear and unambiguous, and the exemption is
witfaont qualification, there being no necessity for any
an the case of a copyhold tenant, we think that we
cannot introduce any, firom the uncertain dicta of even
the moat distinguished text writers on the ancient
common law. It must consequently comprise as well
che beer manufectured for sale as the sheep. The
Terdict must be entered generally for the defendant.
Postea to the defendant.
1884.
Lord
MiDDLnoir
John Utterton, and Frances Anne, his Wife,
and Others, against Robins and Others.
THE Vice-Chancellor sent the following case for the A wOl or codi.
*- ^ ^ cil oontaining a
opinion of this Court : — dc^lM of fmI
ggtttWi but not
John Robins^ being seised and possessed of divers dalj witnoaed^
^hdd and leasehold estates, made and* published his firn^d bj «
^ duly executed and attested, bearing date the 12th ^dil^^^g
^ Sepiember l%2Sj and thereby, among other things, *felu2^
i^Qeathed a messuage on Brompton Terrace to certain {J®"*V^
Porsoos to the use of his daughter Frances Anne Utter» ™«n* be in no
... "^J annexed
^ during the joint lives of herself and her husband, lotbe wiUor
... . prior codicily
^th remainders over. And he gave and devised the ua though the
^due of his real and personal estate to trustees to iieswt"totbe
^iertain uses, one fourth part of such residue being Sid^irt'^e
former one, or
^^ will : Semble, however, that the instrument relied upon as confirming a prenoua one
^koold dittinctly refer to iu*
Tcitator by several unwitnessed memorandums subsequent to his will left a freehold
^^euM^ acquired among other estates sinoe the date of the will, to his daughter ; and he
^^Wwards made the following codicil, which was duly attested : — *< I make this a further
^^sdicU to my will ; I give and devise all real estates purchased by me since the execution
^ my said will to the trustees therein named, their heirs, &c. to the uses and upon the
^*wi therein expressed concerning the residue of my real estates :*' Held, that the house
l^»acd to the tnisteesy and not to ^ daughter*
Ff 2
limited
424 CASES IN EASTER TERM
1834. limited to the same uses as were declared of the abo?e
RoBINf.
messua£;e.
UmaTON °
against By a codicil duly executed and attested, bearing date
the 8th of May 1825, the testator, after reciting that he
had purchased certain estates since the execution oi his
will, devised these last to the trustees therein named aa
to the residue of his estate therein mentioned, upon tb&
trusts declared as to such residue.
A memorandum in pencil appeared on the margin o'
the will, bearing date the 6th of August 1825, writteK=i
and signed by the testator, but not attested, in the bL —
lowing words: — " As the house on Brampton Terror^ ^
is sold, I give my daughter, Frances Anne UtterUm^ m;
freehold house in Portugal Street^ Lincoln's Inn
purchased of Lady BuUcley^ in lieu of the house
Brampton Terrace : it is conveyed to my son Joseph^
my desire and will is, that it should be assigned to m;
daughter in trust as the other property.'' The
of the messuage on Brotnpton Terrace was stmc
through with a pencil.
The testator, after the said 8 th of May 1825, wrote an
signed the following codicil, or memorandum, whict^^i
however, was not attested: — " Memorandum fov^y
executors and trustees, 29th of August 1825. Whereas I
purchased a house, freehold, of Lady Bulkley^ in Portvg^^
Street^ Lincoln's Inn Fields^ (per Lightfoot and BobsP'^
and which is conveyed from Lady Bulkley to my sO^
Joseph Robins^ the deeds in my possession,) I give ^^
said house, now in the occupation of Mr. Uther^ tail^^'
as tenant at will, to my dear daughter Frances Uttert^^^
wife of Colonel John Uttcrton^ and to go to her faff»i*5
as settled according to the other property in my wi'*' '
am certain that my son Joseph will assign it accordi'
RoBiirs.
IN THE Fourth Year of WILLIAM IV. 4^
lo my wish : — John Sobins^ Regent Street. I had given 1884.
iny said daughter a house at the west-end of Brompton ~
Terrmce^ which I since sold ; and the above is in lieu of ataama
the said house : — John Robins J*
By a codicil of the 17th o( December 1825, duly attested,
tbe testator confirmed his will ; and after reciting that
lie had purchased divers real estates since the execution
diereoi^ he added, " Now I do, by this codicil to my
said will, devise the same to the trustees in my said will
mentioned, their heirs, &c. to the uses, &c. in my said
will expressed of and concerning the residue of my real
estates." By another codicil, of the 7th of December
1827, duly attested, he republished his will, in order that
^1 estates purchased by him since the date and pnbli*
cation thereof might pass under the general devise of his
vieal estates therein contained. By another codicil, of
^e 27th of January 1829, duly attested, he devised and
bequeathed all lands, tenements, and hereditaments
purchased or acquired by him since the date of his will
to the uses and on the trusts therein declared as to the
i^due.
The testator afterwards wrote and signed a memoran-
^Qm, entided, ^^ A memorandum, made the 16th of
-^fyril 1829, to be observed by my executors (first
division), of tny desires and intentions after my decease,
^nd according to my will;" and in the said memo-
i^dam, after enumerating the property specifically
^levised to the other branches of his family, he proceeds
^ enumerate the messuages specifically devised to
^n.Utterton and her family, which part of the said
Memorandum contains a passage in the words and
^gnres following, viz. " A freehold house situate in
Portugal Street f LincoMs Inn JFzV/^fc, purchased of Lady
F f 3 Bulklej/j
426 CASES IN EASTER TERM
18S4. Btdkley^ let to Mr. Wood^ cabinet maker, on lease for
twenty-one years from Christmas 1826, determinable^ it
UtTIRTOV if ^ . »»
agamu a net rent per annum 50L^ the house repaired at Mr.
Robins.
Bobin^s expense. Mr. Wood paid a premium of 5011''
This was not attested.
By a codicil of the 5th of Febnuny 18S0, duly
attested, the testator devised as follows : — * ^^ I Jois
Bobins do make tliis a further codicil to my will, wbidi
bears date the 12th day of September 1828: I gife ancL
devise all real estates and hereditaments purchased b^
me since the date and execution of my said will to tbe^
trustees therein named, their heirs and assigns, to
uses and upon the trusts in my said will expressed an
declared of and concerning the residue of my
estates."
The testator died on the 17th of May 18S1. Th
executors proved the will, codicils, and memorandum
the Prerogative Court, however, did not grant probai
of the interlineations, erasures, marginal additions,
alterations in the will ; but granted probate of the
as originally executed, reserving, however, to any of ih -^
parties power to propound such interlineations, &c. ^m.^
any future tiroe«
The testator sold the house on Brompton Terrace M.m '
August 1824. Between August 1823 and the 6th «3r
August 1825 he purchased the above-mentioned hoa^<
in Portugal Street {a) \ and the same was conveyed ^^
the use of the testator and his heirs by deeds of tbe
20th and 21st oi November 1823.
The present suit in Chancery was instituted for tb^
purpose, among others, of having the will and codi^^*^
(a) It was admitted during the argument that the purchase was ^
the eiecution of the will.
01
Bonus.
IV THE Fourth Year of WILLIAM IV. 427
^e testator establishedi and the trusts thereof carried 1834.
o execution. The question referred by the Vice- ,,
lanceilor to this Court was, ^^ Whether the house agaimi
d premises in Portugal Street^ in the pleadings of the
lue mentioned, were devised by the will of the testator,
any, and which, of his codicils mentioned in the
eadings ; and, if so, to whom the same were so de-
sed, and for what estate and interest ? " This case
■8. argued in Trinity term (June 7th) 1833.
Jimes MusseU for the plaintiffs. The testamentary
E^pers not witnessed must be considered as republished,
>gether with the will, by the subsequent attested codi-
ils; and the effect, in point of construction, of all
bese papers taken together, is, that the house in For*
^al Street passes, by specific devise, to Colonel and
ifrs. Uttertonj and does not go as part of the residue*
Q Guest V. Willasey (a), the testator added a codicil to
is will (which had been duly attested), altering some
f the dispositions of property, disposing of an after-
^oired estate, and appointing an additional executrix ;
Old by a second codicil (referring to the will, but not to
li« previous codicil,) he gave new directions as to a part
^ the property, and substituted new executors for two
^ those named in the will. Neither of these codicils
^ properly attested. He afterwards made a third
Codicil, properly witnessed, appointing a new executor
^ lieu of one of those named in the second codicil,
bat not otherwise referring to the previous codicils, or
^ the will, and not containing any other direction,
^e Court of Common Pleas held that the third codicil
^^a republication of the other two, and of the will.
(a) 2Bing.A29. 3.8^.614.
F f 4 It
Roum.
488 CASES IN EASTER TERM
18S4* It is true^ the codicils there were all written on the baxk
of the original will ; and it does not appear in this case
agauut that any of the writings (except the first memorandum)
was on the same paper with any preceding one (a), bat
that is immaterial : any codicil may operate as a repob-
lication of a previous one, or of the will, whether it be
on the same paper or not In Crosbie v. M^I}otud(b)
Sir 22. P. Ardetij M. R., lays it down, that *' if a man
ratifies and confirms his last will, he ratifies and confirms
with it every codicil that has been added to it*' It wia
indeed once thought important that the documeDts
should be on one paper, or at least tied up togetber^
or connected in some similar way ; but it is now settled^
that mere material connection is of no importance* Th^
law upon the subject is thus stated in 1 Powell on Devise^^
p. 610. {c) : — << A codicil, if executed according to ih^
statute of frauds, will amount to a republication of ^B
will of real estate; and this rule, it is to be observedK*
applies, whether the codicil be or be not annexed to
will: for every codicil is, in construction of law, part
a man's last will, whetlier it be so described in sue?
codicil or not, and, as such, furnishes conclusive er
dence of the testator's considering his will as existing
that time : " and several authorities on the subject ai
cited in the text and the editor's notes. Whether
not the instrument so republished was originally attest^^
according to the statute of frauds is immaterial to tfc>6
present question. In Carleton v. Griffin (<f), a testat^T
devised real and personal property by will unattested:
(a) It was afterwards admitted that they were all separate.
(6) 4 Ves. jun. 616.
(e) 3d edit, by Jarmatu See also the notes to Duppa v. Afoyo, 1 l^^>*^
Sound. 277 c. to 277/. (5lh edit. 1824.)
(rf) 1 Btfrr, 549.
iH THE Fourth Year of WILLIAM IV. 429
biy « subsequent writing, attested by three witnesses, but 18S4.
relAdng solely to personal property, he confirmed (except ' T
ia one instance) the former disposition ; and the Court mq^unH
RoBiiri.
held that the former writing was authenticated by the at-
testation, and the whole took effect as one will. Where a
testamentary paper is republished, it operates on property
acquired in the intermediate time^ and is in every respect
considered as if made at the period of the republication :
bat if so, that is by virtue of the last attestation, and
not of the former one, supposing it to have been attested
before. Where, for instance, the original witnesses had
died, it would be absurd to say that the first attestation
could be carried down to the latter period. In this case,
tbe attested codicil of the 5th o( February 1830, coupled
with the previous unattested one of April 16th, 1829,
gites effect to the devise contained in the latter. Then
arises the question of construction; namely, whether,
i^ing both codicils as instruments valid to pass real
estate, the specific devise in the codicil of ] 829 is to take
^ect, or is to be considered as revoked and annulled by
^ gift to trustees contained in the last codicil. It
<^not be said that the codicil of February 5th contains
^y revocation of the previous gift to Mrs. Ulteriorly or
^hi any of the codicils in which the testator makes that
sift are revoked by subsequent ones. Effect is to be
9^60, if possible, to every part of a will, and an express
sift is not done away by subsequent general words. In
^difast V. Pardoe (a) the testatrix expressly devised to
^« certain premises which comprised a portion of land
iQ Umlayton Marsh ; and afterwards, in the same will,
she devised all her lands in hondaxfton Marsh to B. ; and
>t was held that the first devise of marsh lands was
(a) 2 W. BL 975.
not
430 CASES IN EASTER TERM
1834. not thereby revoked. In Bofdey v. 2^oii(a) the test-
ator charged all his estates with the payment of hb
agpuui debts, and made his son executor and residuary de-
Yisee: subsequently by a codicil he devised certam
after^«cquired lands to his said son in fee; and Sr
W. Grant held that the oodicili notwithstanding the
generality of the words, left the last-mentioned estates
subject to the payment of the debts. Here^ the in-
tention in iavour of Mrs. Utterton is clear: the me-
morandum of April 16th, 1829, shews that it oontbued
down to that time; and the only subsequent codicil ooa-
firms that memorandum. {Parke J. Do you say that
a codicil duly attested would operate as a republicadon
pf every document which could be the subject of probate^
although not referred to by such codicil?] The last
codicil here does refer to the preceding one, being added
to it as *^ a further codicil;'' and the preceding one
impliedly refers to those of a like purport which went
before it In Guest v. WtUasey (b) the third codicil con-
tained no reference to the first.
Wright contra. The house in Portugal Street passed
to the trustees as part of the residue. No codicil whidi
mentions Mrs. UttertorCs name is duly attested, or re-
ferred to by any codicil which is so. In Guest v. Wtl-
lasey {b) they were all on the same sheet. Even if the
attested codicils did refer to the unattested ones, there
is no evidence that these last were ever seen by the
witnesses who signed the others; and the witnesses,
whose signature is to give effect to a document, ought
to have seen it. In Gue^ v. WiUaseyifi) it must be
inferred that tliis was the case, all the codicils being om
(a) S Utr. IS8. {b) 2 Bm^. 429. 3 Bm^, 614.
ROBIKI.
IN THS FOUBTU YeAR OF WILLIAM IV. 431
1^ sheeL IDenman C.J. Do you mean that this 1SS4.
ovsld be an objection where the previous codicil was
^ * UniRToir
isi^nctly recognised by the subsequent one?] A paper agpuut
rhich has not been seen by the attesting witnesses can-
ddC be introduced for the purpose of passing real estate ;
it never was a testamentary paper for that purpose.
\Denman C. J. Suppose the testator said, ^* I leave to
i» all the property I took under my father's will/' must
the witnesses see that will ?] The contents of the father's
lill there would only be explanatory of that of the
testator;, they would not be part of it. [Parke J. Ac-
oordiog to your argument, an attested codicil of itself
does not operate as a republication.] In words it does,
bot not in point of attestation. {Patteson J. You
idmit that if the original codicil had been signed by
dtfee witnesses, the subsequent one, attested in the same
BMonefi would be good as a republication, and to pass
sfter-parchased estates. To prove the latter codicil,
^d it be necessary to call the witnesses who attested
the previous one ? Denman C. J. You are taking more
l^en upon yourself than is necessary. The question
bere is, whether the last codicil does in fact refer to the
Preceding unattested ones ? We think the point you
^ now contending for cannot be maintained. Sup-
V^ a man having made a devise of real property,
^ot attested, went into a distant country, and there
^ed a paper which was duly attested in his pre-
^ce by three witnesses, stating that his will was in
^particular place (mentioning the place in which it was
1^)> would not the will in that case pass the property;
or would the attestation be insufficient, because the wit-
'^csies did not see the original paper?] They ought to
^ the original, in order that they might know that
nothing was fraudulently slipped into it. The cases in
which
4d£ CASES IN EASTER TERM
18S4<. which it has been held necessary that the witoesi
! should sign the will in the testator's presence {Broden
agahui y. Brodertck (a) and many others) shew the importai
which has been attached to every circumstance whi
could insure the indentity of the will attested with tl
executed by the testator. The rule on this subject, a
the grounds of it, appear in Bull. N. P. 263, S64. Bi
at all events, it is a decisive objection in this case^ tt
none of the attested codicils refer to any of the memon
dums relied upon as containing a devise to Mrs. Vtierto
In Carleion v. Griffin (b) the attested memorandum ooi
firmed the previous writing in the most express terms
Jl Bussett in reply. The cases shewing that tl
testator must see the witnesses sign do not aflect tl
present argument. The opinion once held, that a codM
must be annexed to the instrument which it republish
was directly superseded by the decision in Barnes
Cr(me{c\ which over-ruled The JUomey-General
Dtmning (d). The rule as to attestation is, that tl
witnesses see the paper which contains the republicatio
and the document republished is considered as part
that, and both together form the body of the wilL
is suggested that the republishing codicil should conta
a reference to the previous document ; but that was n
held necessary in Guest v. Willasey {e). IParke J. So
pose every codicil in this case had been duly atteste
can it be contended that the property in question wou
not pass by the words used in that of February 5th, 185
to the uses declared as to the residue ; even admittii
that under other circumstances a codicil could ba
(a) 1 p. U'wu. 239. (6) 1 ^urr. 549.
(c) 1 Ve9> jun. 486. {d) Amb, 575.
(«) S Bin^. 429. 5 Bmg, 614.
tk
BOBIXI.
IN THE Fourth Yeab of WILLIAM IV. 4SS
\bmt, iromenae efiect in republication which you would 18S4.
ascribe to it ?3 Holdfasl y. Pardoe (a) gives the answer "
UmftToif
to that question* {^Parke J. There it was held that agaiiui
the testatrix clearly did not intend to dismember a
furm which she had already devised under a particular
description ; and there was no reason to think that she
iDtaided to revoke that disposition by the subsequent
defise.] The question here is of intention ; and there
b no ground for supposing that the testator, by his last
oodidl, intended to revoke the previous gift to Mrs.
Vtterion. His purpose was to ratify, not to annul, his
prior gifts ; and all he further desired was, to dbpose
of that after-acquired property, as to which he had not
before given any specific directions. If it were neces-
auy, the words written on the margin of the will might
be insisted upon. Neither this nor any other memo-
nndnm, in which the gift to Mrs. Utterton is referred
t^ can be shewn to have been revoked.
Cur. adv. vidt.
The Court afterwards sent the following certificate : —
We have heard this case argued by counsel, and are
^f opinion that the house in Portugal Street in the plead-
ings mentioned passed by the codicil of the 5th of
^Anutfy 18 SO to the trustees named in the will, their
'^rs and assigns, to the uses and upon the trusts ex-
pitssed in the will of and concerning the residue of the
testators real estates.
T. Denman.
J. LiTTLEDALE.
J. Parke.
J. Patteson.
(a) S W. BL 975.
END OF EASTER TERM.
1834.
CASES
ARGUED AND DETERMINED
IK TBm
Court of KING'S BENCH,
AHD
UPON WRITS OF ERROR FROM THAT COUBT
TO TBI
EXCHEQUER CHAMBER,
xir
Trinity Term,
In the Fourth Year of the Reign of Wiluam IV. (a)
IN THE EXCHEQUER CHAMBER.
(Error from the King's Bench.)
Stuurdi^, The King against Wright, (b)
JfoylOth. ^ ^ ^
The statute ''F'HE defendant was indicted at tlie Lancashire session^
116.4. & 1
1 IT. 4. c.7a Jpril 1831. The first count stated, that Bober^
rcuirn before Wright^ of the township of IVavertree in the coun^
ten Judges in
the Exchequer
Chamber of wnts of error upon judgments given in the King's Bench, Common Pleas,
Exchequer, extends to a judgment given against a defendant on an indictment in the Kiog'
Bench.
An indictment charged that defendant, at the township of IT., on a highway there,
ing from a highway, leading from the village of IT. towards C, to another higfawi
leading from the village of fr. towords £., by a wall thertt extending into the taid highway
bj him erected, had encroached, &c. : Held, that the indictment was not uncertain,
that <* thert** and ^'said"* could be referred only to the highway first mentioned.
(a; Patteton J. sat in the bail court during this term.
(6) This and the following case were decided in ficitioa,
Lancaster
CASES IN TRINITY TERM. ^SS
Leuwoisier^ on, &C with force and arms, at the township 18S4.
oT Jfaoertree aforesaid in the county aforesaid, in and — ^
upon a cominon highway there leading from a certain agpuM
public road or common highway in the said township
and county leading from the village of Wavertree
towards the parish church of ChiUwaU^ towards and
note a certain other public road or common highway in
the said township and county, leading from the said
tillage of Wavertree towards and unto the township of
UUle WodUon in the said county, by a certain wall
ikere^ containing in length 330 yards, and extending
into (he said highwcy^ at the north end thereof, seven
;ards, and at the south end thereof five yards, by him
the said Robert Wright erected and built, hath unlaw-
fully and unjustly encroached and yet doth encroach ;
[ and the said wall, so as aforesaid erected and built by
him the said Robert Wright^ from the said first day, &c.
onto the day of exhibiting this information, at the
township of Wavertree vXoressA^f in the county aforesaid,
^h force, &c* unlawfully hath continued and doth
^tinne, by reason whereof the common highway
^resaid hath become and is greatly straitened, so that
^ liege subjects of our Lord the King, upon and
^fongh the same common highway aforesaid, with their
Dorset, carts, and carriages, cannot go, pass, &c. to the
S^eat and common nuisance, &C There were two
^ther counts. The indictment was removed by certiorari
)nto the Court of King's Bench; and the cause was
^ed at the Lancaster Summer assizes 1831, when the
^(feodant was found guilty on the first count, and not
9^% on the second and third counts. Judgment was
^tered up, in the Court of King's Bench, against the
^fendant, in Michaelmas term 1882 ; upon which
judgment
I
4S6 CASES IN TRINITY TERM
1834. judgment the defendant brought error in the Excheqi
-« «, Chamber.
The Kino
Afomif The case was called on in Hilary term last ; wl
Waiaht*
Tindal C. J. expressed a doubt whether the stati
entitled *^ An Act for the more effectual Administrat
of Justice in England and JValeSj" 11 G. 4. & 1 fP
c. 70. 5. 8. (a), by which the present jurisdiction of I
Exchequer Chamber in error was created, applied
judnmcnts upon indictments; and it was directed d
the argument should be deferred, in order that coani
might be prepared to discuss this question, as well
the validity of the judgment itself. The case was aftc
wards argued, on the 22d of April, before Tindal C. «
Lord Lyndhurst C. B., Park^ Gaselee, and Alderson, J
and Vaughanf BoUandf and Williams, Bs«
Crompton for the plaintiff in error. As to t
question of jurisdiction. First, the rule which fa
sometimes been laid down, that the king is not boui
by an act of parliament in which he is not name
applies only where the property or peculiar priWleg
(a) Which enmcts, ** That ¥rrits of error upon any judgment given
any of the said Courts [King's Bench, Common Pleas, and Ezcbeqfui
shall hereafter be made returnable only before the Judges, or Jad;
and Barons, as the case may be, of tlie other two Courts in the Ezcbeq
Chamber, any law or statute to the contrary notwithstanding; tfai
transcript of the record only shall be annexed to the return of the wi
and the court of error, after errors are duly assigned and issue in ei
joined, shall, at such time as the Judges shall appoint, either in tenn
vacation, review the proceedings, and give judgment as they shall
advised thereon ; and such proceedings and judgment, as altered
affirmed, shall be entered on the original record, and such furdier p
ceeding as may be necessary thereon shall be awarded by the Court
which the original record remains, from which judgment in errxv no «
of error shall lie or be bad, except the same be made returnable in
High Court of Parliament.**
WeI61IT»
Mfi THE Fourth Year of WILLIAM IV. 4S7
){ t.ft:Be crown is affected. In Com. Dig. Parliament^ 18S4.
IU3- it is said, "Generally, the king shall not be
Tesir^fcined of a liberty or a right which he had before, ,^^^^_
bj the general words of an act of parliament, if the king
Vye not named in the act" The authorities which sup«
yitt this position are mostly taken from times in which
the prerogative was highly favoured. They are col-
lected in WiUion v. Berkeley (a), to which Comyns refers.
He further says, " Yet, if a statute be intended to give
A remedy against a wrong, the king, tho' not named,
shall be bound by it : as, by the st. 32 H. 8. 28. to
prevent a discontinuance by the husband of the lands
of his wife during coverture. R. 2 Insl. 681. So, in all
statutes made against wrong to prevent fraud, or the
decay of religion, the king is bound. A. 5 Co. 14. 6.
^nd therefore, the king shall be bound by the st.
^. 2. I. de donis. 5 Co. 14-. J. So, by the st. W. 2. 5.
'gainst tortious usurpations. Ibid, {b) [So the king^
«^o' not named, is bound by acts for the advance-
ttient of religion, or of learning, or providing for the
poor; as, the act 10 Car. for uniting livings in Ireland.
S^. 516.]" Com., Dig. ut sup. In Bac. Abr. Prero-
fptroe^ E. 5. (c) it is said, " Where a statute is general,
•nd thereby any prerogative, right, title, or interest is
devested or taken from the king, in such case the king
sball not be bound, unless the statute is made by ex-
press words to extend to him," for which Ttie Case of
Magdalen College (d) is cited. The same Digest men-
^ons, as instances in which the crown is bound, though
not expressly named, the statute of Westm. 2. de donis (e\
i
{(i) Pbwden, 239. 244. (ft) See 2 List, 359,
(c) Vol. vi. p. 462. («d. 183?.) (dj 11 RejuGCub.
(0 IStat. \3E(L\, c. 1.
VoL L G g and
Wbiuht.
438 CASES IN TRINrrY TERM
1834. and tlie statute of Merton {a\ chap. 5., against usury ii
doublinir the rent, in the case of an infant heir who ha
The Kivo ®
agtdnM made deiault in payment ; and the same statute, c. 1(
ordaining that suit to the lord may be done by attomq
and Stat SI EUz. c. 6. against simony (A). The sam
class of cases is cited in Vin. Abr.^ tit. Statute (EL 10.
The statute of quia emptores{c) did not restrain tb
king from creating fresh tenures to be holden of him
self: but a tenure so created was not a subinfendatioc
such as the statute was passed to prohibit. [Tindal C. J
The statute de prarogativd regis, 1 stat. 17 Ed. 2. c. €
was afterwards passed, to restrain the king^s tenants i
eapiie.2 Again, by Magna Charta(£^), common plea
roust be holden in some certain place; yet the king roa^
sue an action for any common plea before himself in tk
King's Bench (e) : but this is because a contrary coc
struction would have directly affected the peculiar pre
rogative of the crown ; a distinction often taken in tb
early authorities. [Tindal C 3. No doubt the king &
ways chooses his own court.] A strong instance of tt
exemption of the king from the provisions of a statute
the case of stat. 1. 27 Ed, 1. c. 4., which gives a trial J
Nisi Prius (g). Now there is no Nisi Prius in the Coa
of Exchequer, but a particular commission {h\ But tb
words of that statute are, *^ enquests and recognisanci
determinable before justiceso/'«M^ Bench :*^ and there'
also a reservation, ^^ unless it be an enquest that requiret
great examination," which reservation lAight be mad
(a) 20J7. 3.
(6) See Hargrove'^ note, Co, Litt, 120. a, n, (3).
(c) 1 Stat 18 Ed. 1. c. 1. (d) 9 /T. 5. c. 1 1. (e) 2 Inst. 25. (2).
(g) See argumdnt in Magdalen Coiiegc case, 1 1 Rep* 68. b.
(*) Sec BtJler, M P. part?, ch. 1. p. 304. 2 Inst. 424. (11). FU
X. B. 241. A.
appi
Weigbt.
IN THE Fourth Year of WILLIAM IV. 489
s^licable by the Attorney- General, in any case affecting 1 834.
the CTowo, suggesting that it required great examination.
In Reg^na v. Tuchin (a), Powell J. laid it down that the ^<»**^
statute of amendment, 1 stat. 14! Ed. S. c.S.^ did not
extend to the crown, because the words there are, ^* by
challenge of the party," and he said that the crown was
never named in an act of parliament by the name of
P^-^ty. It seems, therefore, that, except for this ex-
P^'ession (which does not occur in 11 G. 4. & I fT. 4.
^ '70.S. 8.), he would have held the crown to be bound
^^^n by the amendment act. In JilUion v. Berkeley {b)
•
'^ ^as held, by the Court of Common Pleas, that the
'^Uig was bound by the statute de donis^ and could not
^*^^i a gift to him in tail male, with remainder over, as
& fee simple conditional at common law ; and that, there-
Ic>re, his alienation, after male issue had (c), should not
bar the reversioner. A case is there cited in argument
(p« 236.), in which it was held that the king was bound
by the statute of additions (IjFf. 5. c.5.\ and there-
br« that the want of an addition vitiated an indictment :
perhaps, however, that case cannot be relied on here,
^ the statute of additions has the words, *^ in every
original writ of actions personals, appeals, and indict-
iQents," which is the answer given to it in the argument
^ Pknoden (p. 240.). In The Case of Ecclesiastical Per-
^ons[d) it was held that the crown, though not named.
(o) SLd. Haym. 1066. S, C 1 SaUc 51. 6 Mod. 268.
(&) P£oir/. 223. ; see p. 255. et seq.
(c) In fact, the alienation in that case had been made by the issue {Ed-
*>^ the l^th) who died without ever having issue ; but such issue had
^ tune power to alien as the original donee {Henry the Seventh)
^ «hile his issue lived. Bac Abr. Ettate in TaH, vol. iii. p. 159.
(«il832.)
W SRep, I4.a.
G g 2 was
440 CASES IN TRINITY TERM
18S4. nM bound by the stat 13 Eliz. c 10., and could not ta
a lease contrary to the provisions of that act. And
ftgamat the third reason of the judCTient there it is said, ** a
WUOBT. .
statutes which be made to suppress wrong, or to ti
away fraud, or to prevent the decay of religion, sh
bind the king^ although he be not named." In The C
ofMn^dakn College (a), the same decision was made
to the same statute ; and the Court laid down this d
tbction : *^ That where the King has any prerogati'
estate, right, title, or interest, that by the general woi
of an act he shall not be barred of them'* (6). So
Sianden v. University of Oxford {c\ where it is said tl:
the crown b bound by the statutes de donis^ and IZEl
c 10., this distinction is made, *< Car la [i. e. staL 13 JSI
e. 10.] le Roy est barre a faire tort, mes lou le Roy est
tide al ascun interest en property ceo ne poet estre toll (
luy sans speciall mention en le Statute et cest distinctic
esi231o^eesi\eA\tCasede Magdalen CoUedge. L'Estatu
de West. 2. (//), ordein que plenarty per 6 moies barra
partie que ad droit sed ceo ne barra le Roy, car tm
expresse nosroe en ie Statute issint nul Statute de Xvam.
ation barra luy, car son prerogative ntdltun tanpus ocaer
Regif ne serra toll per un generall statute." That cL
tinction is not applicable in the present case ; and t,
same may be said as to all the statutes of limitations.
Sex V. The Archbishop of Armagh {e\ it was held that -
Ifish act of parliament (10 & 1 1 Car. 1. c. 2. & 6.) for tJ
consolidation of endowed rectories and vicarages, booi
the crown, though not expressly named. There Eyre
(a) II Rep. €6.b. (6) Kb. (c) U\ Jon. 21., by JtmaT-
{d) 1 Sut. 13 Ed. 1. c. 5. 2 Inst. 561. (22).
(r) 1 Str, 516. S. C. S Mod, 6., where the case is said to have been
Uie EngU^ sutute, 17 Car. S. c. 3., " for uniting churches in chics 10
corporate.*'
poiD0
WmoHT.
IN THE Fourth Year of WILLIAM IV. 441
pointed out that the statute did not deprive the crown of 1834.
any prior right, but only new-modelled it, which may be — —
The Kjwo
said of the present act. The provisions in the statute of n^intt
fraads (a), as to the teste of the writ, do not bind the
king ; but that is because it is his prerogative, that, where
the rights of the crown and of a subject are in conflict,
that of the crown is to be preferred. So the ground of
the exemption of the crown from the provisions of the
statutes of bankrupts is the interest which the crown has
in property, and its peculiar prerogative of being pre-
ferred to all other creditors. Here the tide of the act
at once brings it within the description which Lord
Coke gives of the statute of advowsons (6), ** a law that
advanceth right;" which reason he puts as shewing that
the king shall be bound, though not named.
Secondly, This is not an act limiting or restricting
the crown. [^Tindal C. J. You need do no more than
^teyour second point: the crown is as much interested
^ the prisoner as for the prosecutor.] Besides which,
^e writ of error may be needed on behalf of the crown,
*® in cases of revenue.
Thirdly, The statutes in pari materia^ which the
'^islature must be presumed to have bad in view, have
^pressly excluded the cases affecting the crown ; but
^^re there is no such exclusion. The ancient juris-
diction of the Exchequer Chamber in error was con-
stituted by Stat 27 Eliz. c. 8. There the second section
^ the words, '^ other than such only where the
queen's majesty shall be party." lAlcterson J. And
^at act enumerates the causes of action, and also sp&-
(a) 29 Car. 2. c.3. See Rex v. Ladj/ PortingloH, 1 Salk. 162. at to
'mpiied trusts, under the seventh section of the *>aine statute,
W 1 Stau 13 Ed, 1. c. 5, 2 InM* 36^ (9).
G a 3 cifies
Wright.
442 CASES IN TRINITY TERM
1834. cifies that the commencement must be in the Kingfs
Bench.] Neither kind of limitation is expressed in the
ngainu present act. The stat. 4 Ann, c. 16.» entitled ** An Act
for the Amendment of the Law and the better Advance-
ment of Justice," has an express exception, in the seTODtb
section, of cases of treason, felony, or murder, or upon
penal statute. It seems difficult to see how the act, in-
dependently of the exception, could have extended to
indictments : yet the framers of it appear to have thought
that the nature of its object, the amendment of the law
and the advancement of 'justice, was likely, in the ab-
sence of an express exception, to cause the act to he
applied with the utmost possible generality.
Fourthly, One object of the present act was to establish
one uniform court of error. [^Aldersan J. The eleventl^^
section shews that ; it distinguishes the cases of prac— —
tice in which the courts have a common jurisdictioi
Tindal C. J. Which means that the fifteen judges
not make rules of practice for criminal cases in tik. -^
King's Bench, or real actions in the Common Plea^^
Alderson J. The ninth section speaks of felonies aoL ^
misdemeanours.] And, though criminal cases are n
expressly named in the sixth section, it cannot be su
posed that the Terms were altered as to one class
causes and not as to another. If so, all the venires i
. criminal cases are erroneous. It might also be argu
that the sitting of a single judge in a criminal matt€?=^
was not warranted by the first section; and that th^^
ancient jurisdiction in error, of the Lord Chancello
and the two Chief Justices, must be preserved
all revenue cases; and, perhaps, it may be said th
that will be the only court of error in all cases wliai
ever commenced in the Exchequer, since the ki
Wbiohis.
IN THE Fourth Ysar of WILLIAM IV. 443
is formally an interested party in all such, and esper 1884.
cially since that interest is connected with property. — —
So, on the king bringing quare impedit in the Com- ^agama
mon Fleas, it might be said that error lay to the Court
of King's Bench, which Court has now no officers
to conduct the process. The king's suits relating to
revenue, brought in the King's Bench, must, in the
same way, go to the House of Lords in the first in-
stance. To exclude these suggestions, the legislature
used the words, *^ any judgment given by any of the
said Courts." iTindal C. J. The word "any" in-
cludes actions of replevin, which the old act did not
include.] It is also by virtue of the generality of the
expression, that actions by original in the King's Bench
Are included.
Irfistly, As to some difficulties which may be sug-
gested. It may be asked, whether the execution of scn-
^^nce shall be suspended in criminal cases whenever the
d^endant chooses to bring error. But the subject is not
^^tided, as of right, to a writ of error in cases of felony
^^ treason ; and it has been doubted whether he be so
^VcD in cases of misdekneanour. Again, it may be ob-
i^cted, that the Judges of the Common Pleas, and the
Karons of the Exchequer, are not properly criminal
Judges. But, in fact, they may be called on for their
opinion by the House of Lords on criminal matters;
^od they ordinarily receive commissions of oyer and
terminer, and gaol delivery. Besides, an analogous ob-
jecuon might be made to the jurisdiction in error of the
Justices of the King's Beqch and the Barons of the
Exchequer upon real actions, or to the ancient juris-
diction of the Lord Chancellor and the two Chief
Justices in error on matters of revenue. iTindal C.J.
G g 4 Lord
444 GASES IN TRINITY TERM
18S4. Lord Coke says (a), that BractorCs expression respecdu^;
the Justices of the King's Bench, " qui proprias caiisas
agmnu regias terniinant," includes their jurisdiction in all cases
of error, and that these may well be called propria causa
regis.']
The question on the present record turns upon the
words in the indictment, ^^ by a certain wall ihere^
^^ extending into the said highway." [Lord i^iu^
htarsi C. B. Suppose the whole description of the road
put into a parenthesis.] A parenthesis cannot be sap-^
plied in an indictment. The words there and said mos^
be referred to the last antecedent. Uncertainty as to tim^^
and place vitiates an indictment ; 1 Stark. C P. c. 4...
p. 65. {b) In Longe v. Atkins {c\ a plaintiff dedared^^
in an inferior court at Readings that the defendant
consideration of carrying goods of B. from Reading
London, adtunc et ibidem assumed, &c The
was referred to London, so as to take the contract
of the jurisdiction of the inferior court. [Lord
hurst C. B. There the word might have been
to either antecedent: here the sense allows you to
it to only one. Tindal C. J. Ogles case {d) is in youiB^
favour; there the indictment stated that A. B. at N^
made an assault upon C. £). of' F., and him adtunc
ibidem with a certain sword percussit, &c.] It
said there, that if the indictment referred to both placets
it was impossible, and ^* if only to one, it must refer to th^
last, and then it is insensible.^* Besides, it is not enougi
that a particular construction will make sense : the woi
there is technical, and is necessarily referred to the h
in) 4 //IS/, c. 7. p. 71. {h) 2d edit. (1822).
(c) Com. Dig, Paroh, (A. 14.),' 2 lioU, Ah. ParoU, (E.) p. 252. I. ^
(d) 2 Hcd. P. a 180.
anteceilei^^. t
IN THE Fourth Year of WILLIAM IV. 445
asmC«oedent: the same was held in the case even of an I8S4*
obligation, as to the word he^ although the last ante- _.
cedent was in a parenthesis; Mancesler v. Daperia). agamai
Wuam.
[I^x>rd Loflidhursi C. B. There the construction adopted
iii3cle sense. Tindal C/J. Is not the last antecedent
the last word which can be made an antecedent so as
to have a meaning?] In Walfordy. Anthony {b) there
were three defendants; and the declaration used the
words *' a close of the said defendants*^ and it was held
an ambiguity, and not a reference to the last defendant
named. [Lord Lyndkurst C. B. Because any one of the
defendants might be understood.]
Tindal C. J. We do not propose to hear counsel on
the other side^ on the point of jurisdiction.
Starkie, for the crown, stated that he had not been
^'^structed to question the jurisdiction. As to the record.
In tincKs Discourse qfLcew^ book i. chap, d., it is said,
M^ords of constructiop must be referred to the next
antecedent, where the matter itself doth not hinder it (c)^"
^^Gtti^s case {d\ an indictment for murder had the
^ords, '^ John Guier, husband to the said Emelin Guier
^f HanAridge aforesaid in the cofinty aforesaid, yeo-
man ;** and it was held, that as ^' yeoman" must refer to
John Guier, and ^ not to Emelin Guier, the county also
I'dated to the husband. Besides, if sensible matter be
alleged, insensible matter following may be rejected, if
the indictment will be good without it. In Bex t. MoT"
(a) 2RoU. Affr. Parob, (E.) p. 252. L 12. Com. Dig. ParoU, (A. 14.)
M Page 8. in the En^h translation, 1759. The original French
pb. ed. 1613) does notconuin the qualification; but Gulp's case is cited.
W 1 Dyer, 46. b.
ris
446
CASES IN TRINITY TERM
1834.
The Kixa
ngnmtt
Wai«ht.
ri$ (a) the indictment stated that Francis Morris^ th.^
goods and chattels. Sec. feloniously did receive and have ^
he the said Thomas Morris then and there wdl knowin^g
the said goods &c. to have been felonioosly stolen, &c. ^
and the words <^ the said Thomas Morris ** were rejectee^
as surplusage, the indictment being sensible and goo«:S
without them. [He was then stopped by the Court]
Cur. ado. wt^.
TiNDAL C. J. delivered the judgment of the Coar-t»
Some doubt having occurred to the Court, whether its
jurisdiction extended to the case of criminal proceeding
brought by writ of error from the Court of King^s Bench,
we requested this point might be discussed b^Mre ^mt
heard the argument in the case itself. Such discussion
has accordingly taken place ; and, if we had still enter-
tained any doubt upon the subject, we should have di-
rected an argument by the law officers of the Crown
before all the Judges. But we are perfectly satisfied
tliat, upon the proper construction of the statute by
which this Court is constituted, we have jurisdiction
over criminal as well as civil coses, when brought beft''^
us by writ of error.
The act itself is entitled, *^ An Aa for the mo^
effectual Administration of Justice in England a^
Wales:** and the preamble of the act declares its i^'
tention to be, ^^ to make more effectual provision €^
the administration of justice in England and Wal^^
•
And again, the eighth section, by which this Cour^ "
constituted, is expressed in terms the^most general a^
ample, " That writs of error, upon ony judgment gi*^^
(n) 1 l^cachf C.C* 109. (ed.4. 1815), ca 65. p. 109.
WUOHT.
IN THB Fourth Year of WILLIAM IV. 447
ly cny of the said Courts, shall hereafter be made re- 18S4*
oxvable only before the Judges or Judges and Barons, -T""
The Kivo
as the case may be^ of the other two Courts, in the ,2$"*^
exchequer Chamber." In the case, therefore, of an act
of parliament passed expressly for the further advance-
taent of justice, and in its particular enactment using
terms so comprehensive as to include all cases brought
up by writ of error, we think there is neither authority
nor principle for implying the exception of criminal
cases, upon the ground that the king, as the public pro-
secutor, is not expressly mentioned in the act. By such
acoDstruction of the act, its object and intent can best
be attained : and it may be observed, that no difficulty
can follow from this construction, as to the carrying into
dbct the judgment pronounced by this Court in criminal
<!Oes; the statute having directed that a transcript only
^'Ftbe record shall be annexed to the return of the writ
^ error; and that the judgment, when altered or
^rmed, shall be entered on the original record, and all
''hither proceedings shall be awarded by the Court in
^ich the original record remains.
W^itb respect to the error assigned in this partiailar
^^se, we ajpe all of opinion that it is not available, and
^at the judgment of the Court below ought to be a&
K^ned. The indictment alleges that the defendant, at
^be township of fVavertree, in the county of Lancaster, in
^d upon a common highway ihercj leading from a cer-
^ public road (of which the termini are described) to
a certain other public road (of which the termini are
also described, and which are from Wavertree to the
township of Little WooUon)^ by a certain wall therej
blending into the said highway, unlawfully hath en-
croached; and it is contended in argument by the
plaintiiF
Waiout.
448 CASES IN TRINITY TERM
18S4. plaintiff in error, that the latter word there must,
necessity, be referred to the Jasl antecedent, that is,
The Kino r«
ogahut LtUle JVodton. The answer appears to us to be, th
the only way of reading the indictment so as to mal
sense of it, is by considering the township of Ui
WooUon to be stated in the indictment merely as t
terminus of one of the two cross highways ; and in tli
case there can be no ambiguity in the indictment,
the word there cannot refer to that highway, but mu
of necessity, refer to the highway in question, namel
that at IVavertree. And we think if there is no nea
sary ambiguity in the construction of the indictment, \
are bound not to create one, by reading the indictme
in the only way which will make it unintelligible*
Ogl^s case (a) the sense b ambiguous : the assault m
as well have been made at N. in the county aforesaid,
at F. in the county aforesaid, of which place the defen
ant is described by his addition. It is just as sensib
whether the reference is made to the one or to the othi
There was, therefore, an uncertainty in that case, whi
was held to be fatal. But in this case, the nuisance 1
erecting a wall, which is local, must be at Wixoertr
where the road has already been described to be:
could not possibly be at Woolton. There is, therefo
no uncertainty, and the word there must consequen
be held to refer to the only antecedent which can ma
sense of the indictment, that is, to IVavertree. V
think the authority cited from Fhich's Law is decisi '
Upon the whole, we are of opinion the judgment m i
be affirmed.
Judgment of King's Bench affirmed ^
(a) 2 Hal. p. a 180.
{b) See Rex v. CtmnUUhoriiC, 2 If, .V- ^d, iSl,
IN THE Fourth Year of WILLIAM IV. 449
1884.
IN THE EXCHEQUER CHAMBER.
(Error from the King's Bench.)
Bayley against Drever and Others. &fti«/ay,
^ May lOtb.
TERROR from the Court of King's Bench. The de- Kon-paymcnt
fendants in error declared below against the plain- not*rmi«e at
fiffin error, in debt, upon stat 2 8cSEd.6. c. IS., for fg^n^* J*y
^ '^ r -» impropriator,
not settincT out tithes, and claimed the treble value, preemption,
° to go to a jury,
The defendants in error claimed as lay proprietors ofa grant of
*. . the tithe to the
oi titbes of corn, grain, and hay, of land in the parish landowner.
^ Prestbwy^ in the county of Chester^ occupied by a riofat to all
^ plaintiff in error ; and from the bill of particulars {q^h ]^j {„.
it appeared that the demand was limited to the single JIJTri^'thneu
or treble value of the tithe of hay. On the trial be- «>dof there-
^ ceipt or the
^rtBdland B., at the Chester Summer assizes J 831, com tithe «nce
that time by
the defendants in error proved the grant of (among another party,
is evidence
^her things) the rectory and tithes, of all kinds, of the from which a
jury may, if
Parish of Prestbury, by letters patent of Queen Elizabeth^ they think fit,
^ Thomfis Leigh and certain other persons, in the year .u the tithes
I579, and a deed of partition in 1586, whereby the me^?oS^*"im-
^tber grantees releaft>ed and conveyed the same rectory g^^atter**^
^nd tithes to Thomas Leish. They also cave in evi- P*'*^? •"^^t
^ . . therefore, tho
dence leases of the tithes, of all kinds, in the township latter, in sup.
port of a
of hmer Withingtorii in the parish of Prestbwy^ within claim for hay
which township the lands of the plaintiff in error were documenta^^
situate, granted by different members of the family of dence of^hay
-i^A, for terms of years which bad since expired; the ^^^||^*|,
earliest ^^ presumed
grantor.
DasTBft.
MO CASES IN TRINITY TERM
1834. earliest dated in 1705, tlie latest in 1799. Payments
rent under some of these leases were shewn to have be
Batlbt
^gamu made to the Leigh family. Parol eTidenoe was a
given, on behalf of the defendants in error, of the c
lection and receipt on account of the Ijeigh family,
their lessees, of certain rents or money payments in I
of tithe; and some of the witnesses deposed, that
valuing the different farms in the parish (including tl
of the plaintiff in error), for the purpose of tithe, thi
uniformly up to the period of the dispute, tookii
account the value of the hay. It appeared, howe?
that the valuation in the whole did not exceed wl
would be a fair estimate of the corn tithe alone ; that 1
addifion of hay tithe would have nearly doubled 1
amount received ; that, except in one or two instaoc
no tithe of hay had ever been taken in kind ; that ab
the year 1816 disputes arose between the tithe-own
and the parishioners respecting the right to hay titi
that the parishioners, when it was specifically cUiiii
altogether refused to pay it ; and that, since that peri<
the com tithe alone had been x^lued and collected,
further appeared, that in the year 1822 Bichard Le
died, and that since that time the corn tithe or a moi
equivalent had been received on account of thedefenda
in error ; but there was no evidence of any perception
hay tithe by them, or on their account The counsel
the plaintiff in error objected to tlie leases being pul
the jury as evidence of the perception of the hay tit
on the ground of the want of proof of connection
title, as to the hay tithe, between the lessors and
defendants in error. The learned Judge over-ruled
objection, and admitted the evidence. He further t
the jury, in summing up, that no presumption of a gr
IN THE Fourth Year of WILLIAM IV. 46.1
of the hay tithe could be made, even as against a lay 18S4.
impropriator, from the non-payment of the hay tithe.
The counsel for the plaintiff in error excepted to the agauut
admission of the leases, and also to the direction of the
learned Judge. There were other exceptions, which
were not discussed on the present argument, nor noticed
in the judgment. The jury having found a verdict for
the defendants in error, and judgment having been
entered up thereon in the Court of King's Bench, the
presoit writ of error was brought.
The case was argued before Tindal C. J., Lord
Igndhurst C. B., Park^ Gaselee, and Bosanquet Js., and
BfUand and Gumey Bs.
J. H. Uoyd for the plaintiff in error. Of the two
fKsdons submitted to the consideration of the Court,
^ most important is the general question as to the
doctrine of presumption against a lay impropriator,
fuming, as will probably not be disputed, that there
^ tame evidence to go to the jury, from whence a
P^nrnption might be drawn, it becomes an abstract
question of law, which may be considered apart from
tte evidence set out in the bill of exceptions ; and,
'^ point of law, the doctrine, that no presumption of
^ grant can be made against a lay rector from con-
^ued non-payment alone, cannot be maintained. That
doctrine is undoubtedly supporftd by authorities; but
^ careful examination of the reasoning on which it
^ foanded will shew that it rests on a fallacy. It
^ admitted by the plaintiff in error that no such pre-
smnption can be made against a spiritual rector, inas-
much as he has not the power to make such a grant.
^^ is also admitted, that a layman cannot, unless he
derive
Drxtea.
452 CASES IN TRINITY TERM
18S4. derive title through a religious house before the d
""""* solution of monasteries, set up against the owner
mgabut tithes^ whether lay or spiritual, a claim of prescript
exemption. And from this latter proposition 1
doctrine now in question seems to have taken its origi
the argument being, that i^ from mere nonpayment
tithes, the presumption of a grant were to arise, tl
would, in effect^ amount to a prescription in mm de
mando. But the reasoning on which the prescripti
is held inadmissible, though unquestionably sound,
technical merely. There can be no prescrijA
because, before the dissolution of monasteries, which
within legal memory, a layman, except in the at
before adverted to, could not himself enjoy, or I
exempted from the payment of tithes. But after tb
period, when tithe came, as in the present instaoo
into lay hands, it acquired all the qualities of h
property generally; that is to say, it could be dii
posed oi^ or granted away, in whole or in part, jm
as land or rents might have been. Now as to s
other property, the Courts not only admit but favon
a presumption arising from long enjoyment, and d
reason can be assigned why the same indulgenc
should not be extended to ecclesiastical property in I*
hands. In substance it makes no difference, whetbc
there is a long continued perception of tithe, or a Ion
continued exemption ^rom payment. From tlie oD
arises the reasonable inference of a grant, from lb
other a like presumption of a release, on the priocipl
that otherwise it cannot be supposed that the pft^
originally entitled would forego the exercise of a beo
ficial right. This doctrine of presumption, in ordin*
cases, is familiar ; but its application to tithe is deP^^
St
XN THE Fourth Year of WILLIAM IV. 45S
SqcIb a distinction, however, is unjust and inconsistent 1884.
Suppose^ for instance, that a lay rector had, many years r
ago, as he had undoubted power to do, on good consider- ngamti
aiioTi, granted away or released by deed a portion of his
Uthe ; that the property so released from tithe had passed
in regular descent, without alienation or lease, through
\M0 or three generations from the original grantee or re*
lessee; and that, by accident or time, the original deed
were lost; there would then be no evidence of the exist-
ence of such grant or release but the fact of non-pay-
loent: yet, upon the pr^ent doctrine, the Court would
i^ect the reasonable presumption of such deed having
existed, and would give back to the lay rector what he
lud once bargained away. According to this doctrine,
length of enjoyment, which con6rms all other rights,
would serve only to weaken this, by destrojring the
4*ttmentary evidence of title without giving an equiva-
lent presumption in its favour. [^TAe Court here in-
timated, that whatever the reasonableness of the doc-
Wne, they should probably feel themselves bound by
^^ authorities.] The cases are all collected in Eagle
^ Tit/iesy c. 3. s. 6. ; and on examination it will be
©and that they proceed, for the most part, on the
^tion that a claim of exemption founded on non-pay- '
^twas, in fact, a prescription in non dccimandos and
*"fi propriety of the decisions themselves has been fre-
^endy called in question. [Lord Lyndhurst C. B.
fne conclusion at which Mr. Eagle arrives is this : —
The determinations upon this very important question
go to this extent, that mere non-payment is undoubtedly
^% even amongst la}' men, any answer to the demand
o» tidies. But there has not always been a uniformity
^ opinion on this point among the judges ; and some
Vol. I. H h even
DftXTtR.
454 CASES IN TRINITY TERM
18S4. even of those who have thought themselves obligei
submit to the authority of the decided cases, 1
a^auui expressed themselves dissatisfied with the prindpl
which those decisions are founded (a)/'] The aul
while he states the prevailing doctrine, evidently •
siders the law on this point to be both unsettled and
satisfactory. In Medley v. Talmy {b) (in 1696) the g
was presumed by the Court against a layman, on evid
of non-payment for forty-four years only. iGaseL
In Nagle v. Edwards {c\ in 1796, Macdonald C. R 8
that the point, though once doubted, seems now
at rest, and that there is no difference between a
and an ecclesiastical rector.] In Fanshaw v. More
Baron Clarke says, that although the authorities agi
a prescription in non decimando are very great, yet
reason grows weaker every day; that dischaiges l
been often purchased from lay impropriators, and I
the grants may be lost; and then he points oat
inconsistency of the refusal to allow the presumpi
with admitted legal principles. [Lord Lj/nd/iurst C
But he ends with submitting to it Tindal C
There is no collateral circumstance from whid
grant can be inferred here. The case therefore co
to this: there are two modes in which your claio
the exemption might be set up ; one of these is i
and you say that we must, therefore, put it upon
other. Every prescription in non decimando migh
open to such an argument.] If the same evidence w\
raise both claims, the jury, as one was legally imposs
would fix on the other, as the more probaW** ^^ the !
[Lord Lyndhurst C. B. Yuu might apply that to the
(tf) c iii. § 6. vol. i. p. 92. (6) 1 JE'og. <jf Y, 620. S GfP. ^i
(c) SAiMr. 705. 2 Eag. i F. 428. 4 Gw* 1444i
W 2 Ea^ i r. 92. 2 Gw. 78I«
IN THE Fourth Year op WILLIAM IV. ^56
)fgL spiritual rector: an exemption from his claim might 1834.
uir^ a legal origin.] The jury may choose. [Lord
Ijm^ikurst C. B. There is no evidence besides that of againd
Qoa* payment *, and, therefore, upon the authorities, there
iras nothing to go to the jury.] It must be admitted that
the decisions appear to go to tiiat extent. But The
Mermen and Burgesses of Bury v. Evans {a) was merely
a question on prescription in non decimando. Lord Re*
iadakm Norbury v. Meade (b) intimated a strong opinion
in favour of allowing the presumption now contended for.
Upon the other point, no connection in title has been
shewn between the plaintiffs below and the family of the
I^gisi so far as the hay tithe is concerned ; and^ conse-
quently, the leases were not admissible in evidence.
Assuming the title of the Leigfis to be established, there
tt nothing but the perception of the corn tithe by the
plwniiflFs below, which may well consist with this, — that
^e had been a lease to them from the Leigh of the
^ni tith^ alone. The leases were offered in evidence, for
^e purpose of shewing a right to the tithe of hay ; and
panting that they are evidence of such a right in the
^ilf of Leighy how can they be made available to the
PUntiffs below, who have not connected themselves
^''ectly in title with that family, and have claimed and
^joyed only the tithe of corn ?
[Upon this point the Court intimated that the per-
option of the corn tithe was at all events good prim&
^ evidence of a title to the tithe generally ; and that
''Imtwas evidence, therefore, in favour of a former owner,
^ouki be «qually evidence for the party who had the
P«^tion of the corn lUlic now.]
(«) 2 Com, Rep, 643. Bunb, 345. 2 Eag, ^ F. 72. 2 Gw, 157.
H h « Temple
DSSTSB.
450 CASES IN TRINITY TERM
18S4. Temple contii was stopped by the Court
Batut
agpbui Lord Ltkdhvrst C. B. I was always mvc
with the arguments which have been urged in I
the presumption of a grant But the decbioD
strong to be orer-ruled by us in this Court,
weight the objections may hare in another pho
The rest of the Court concurred.
Judgment of the King^s Bench
Baxter and Another, Assignees of
against Pritchard.
An Mignmeat rpnQVER for certain articles of furniture a
by a trader of X
bis whole ttock, in trade. The first count alleged a posse
with ioteot to
•bMondfrom Hill the bankrupt, and a finding by the c
his creditors
and csrry off before the bankruptcy, and charged a conven
mon^y, is^ ^^^ bankruptcy. The second count laid the p
ropicy^Irh!!^* in the plaintifis as assignees. Plea, not guill
the purchaser defendant gare notice of disputing the petitioi
for the goods, ditor's debt, the tradinir, and the act of bat
and IS Ignorant ^
of the trader's On the trial before Denman C. J. at the London
after Trinity term 1839, the only question u
in dispute was, whether an assignment made b;
the defendant constituted an act of bankruptc
which the following facts were proved. HiU^
trade as an oil and colour man, on the 9th of .
1891, by several deeds, assigned to the defen
lease of certain premises held by iiiin (Hill\ ar
book debts, furniture, fixtures, stock in trade^ an
The property sold was taken at a valuation«
design.
IN THE Fourth Year of WILLIAM IV. 457
teined the porchase money, and absconded for America. 18S4.
The jury expressly found that HiU had made the assign-
#iient with the mtention of defraudinff his creditors, but agoinsi
4(hmt the defendant was no party to the fraud. The
X^rd Chief Justice thought that, on these fi^ts, the
-^isrignment was an act of bankruptcy, and he directed
^ verdict for the plaintiff, reserving leave to move to
enter a nonsuit Sir James Scarlett obtained a rule ac-
'<X)rdingIy in Michaelmas term 18SS. In Easter term
last {April dOth),
Sir John Campbell^ Attorney-General, and FoUettf
shewed cause {a). This is an act of bankruptcy within
two clause^ of the third section of stat. 6 6. 4. c. 16.
First, the trader has made a fraudulent grant or convey-
snoe of his goods ; secondly, he has made a fraudulent
gift, delivery, or ^transfer of his goods. It is true that the
]vy have negatived fraud on the part of the drfendant;
but they have found fraud on the part of Hill. HilPa
^ if valid, would have the effect of preventing the
'^^le distribution of his property under the bankrupt
1^^; and this being the fraud contemplated by the
^islature, it is complete without any fraud on the part
of the defendant On this principle, any voluntary
Pitference is now an act of bankruptcy ; and, evea while
it Was no act of bankruptcy unless made by deed, trover
<>f money had and received would lie in all cases of
^ preference, against the receiver. Yet a voluntary
Pitference may be given, without any fraud on the part
^ the person preferred. Not only may there be, as in
«« case last put, an act of bankruptcy effected by a
^'■nrfer, where the receiver b not aware that creditors
(«) Bdbre Denman C. J., LUtledale, Pattnon, and WOUafniJu
Hh 3 wiU
PKnCHAKD.
458 CASES IN TRINITY TERM
1834. will be defrauded, but also there may, on the other h
_" be a transfer where the receiver has knowledire oi
«g»mit trader's insolvency, and yet no act of bankruptcy,
the case of a creditor who obtains a preference by mc
or importunity. The privity of the receiver is ther
no test, either way, of the existence of the fraud ooc
plated by the legislature. The cases respecting ini
lent assignments, antecedent to the passing of the st
of 6 6. 4. c. 16., are applicable to the present ques
excepting only that a deed is no longer requisite to
iTect the act. Now the cases may be distributed
two classes : first, where there was fraud at common
or under tlie statute 13 Eliz, c. 5., in which class of <
there is no fraud unless both parties be privy ; secoi
where the fraud consists in evading the bankrupt 1
in which class fraud may exist, though one part;
not privy. The cases are collected in Lord Her
Digest of the Bankrttpt LaWy ch. 2. s. 2. (a) The sen
head of fraudulent assignments, there given (6), com
hends assignments which are fraudulent, as being ag:
the policy of the bankrupt law ; and it appears, from
authorities tliere, that it has been held that the assigni
of all a trader's property, for the benefit of all the credi
is an act of bankruptcy, because it incapacitates the
son assigning from carrying on trade (c). [^Littleda
Have you any instance where a sale has been held ai
of bankruptcy, if the trader got as much as he pi
(o) Page 26. (3d ed. I8o2.) (6) Page 27.
(c) Page 28. See Lord Mansfield in Comptan t. Bedf/rd, 1 W. SL
in Devon r, IFatts, 1 Doug. 92. ; in Butcher t. Enslo, ib. 29tf. ; •
Harman t. Fish ir, I Cowp^ 125. ; and Lord El/rnktrough in Tnppem
Burgesst 4 East, 235. But see Lord Eidoni remarks, in Ex parte B*
lercs, 148., on Settle t. Jffammond, Co, B, L, 89., and his jud|
in Ihaton ▼. Mifrmon, 17 Fes. 198, 199.
wi
IN THE Fourth Year of WILLIAM IV. 459
wicX^?] Lord MansfieUTs judgment in Worseley y. De- 1834<«
tos{a) goes that length. The enforcement of this r
rul^:^ may be a hardship upon the purchaser; but this agaiiut
th^ Jaw will work, rather than permit a fraud upon the
b&^cmlcnipt laws. No man should take such an assignment
wi^liout satisfying himself that there are no creditors.
la €2ooke v. Caldecott (&) it was left to the jury, whether
th^ party receiving the transfer had reason to know
that; the trader was defrauding his creditors ; but there
the sale was only of a part of the property, so that the
bet: of the trader being incapacitated from carrying on
trade did not arise. And in Ward v. Clarke {c) the
jury were told to consider whether, from the circumstances
of the sale, the purchaser must not have known that it
was not in the ordinary course of business ; but there
the only question was, whether the purchaser was within
the protection of the eighty-second section of stat. 6 G. 4.
^* 16., on the ground of the transaction having been bond
f^ / Here there is a sale of all the property, with an
intent, on the part of the seller, to abscond with the
money, and defraud his creditors. [Patteson J. In the
<^^ses where a deed of assignment has been held to be
^ act of bankruptcy, the transfer itself, independently
^^ the collateral fact of the seller's intention as to his own
luture proceedings, has been held to be a fraud on the
^^editors : you are seeking to incorporate such an intent
•
^to the transaction, in order to make out the assignment
^^ be a fraud.]
Sir James Scarlett and Hutchinson in support of the
'^le. The question which has been put, whether a sale
(a) I Burr, 407. See the conduiion of the judgment, p. 484.
i&) Af. 4 M. 522. (c) M. i M. 497.
H h 4 has
460 CASES IN TRINITY TERM
1884. has been held to be an act of bankruptcy, if th
got as much as he parted with, decides this case.
<ww»M« never been so held. [F. Pollock^ amicus curia^
the contrary had been decided in a case of Bjou
cock (a).] It is not, in itself, an act of bankrup
FUTCHASBb
(a) Rose against Haycock.
A mU of Uie Tbu was an action of trover, tried before Mr. Baron HvOoi
whole of a ^^^^ ^ ^^ Spring a»iEcs in 1827.
trader s pro- » r ©
pcrtj is not, of '^^ question was, whether a deed, bj which a trader sold tl
itself, an act of his property, was, of itself, an act of bankruptcy, independei
bankruptcy. question of fraud? By the deed in question the bankrupt ha
who seeks to ^1 bis share in the stock in trade for a sum of money, whicb '
treat the sale hinu Two days before this, tlic lease of the premises wherein t
bank *Dtcv ^** carried on had been sold, so that the bankrupt had incapac
must shew "^^ ftom carrying on his business. The purchaser was the
aome fiict from father. There was evidence that a letter had been sent by t
which fraud ^^^ ^ 1^^^^ ^j^^ purchase, which would indicate that the «
nay be in- r >
fcrred. barrassed. But the plaintiff's counsel did not impute fraud,
able to shew that the purchase-money was improperly distrib
contended that, in point of law, the sale was an act of bankru]
learned Judge was of opinion that it was not, of itself, an ac
ruptcy ; that there must be some evidence to shew fraud, or
from which the jury might fairly conclude that the transactio
bonAjide. The counsel for the plaintiff declined addressing th
the learned Judge directed the plaintiff to be nonsuited.
F, Pollock, in Easter term 1 827, moved for a rule nisi for a
This sale cannot be allowed by law. If it is an act of bankr
trader to assign all his property for the purpose of a just <
among all his creditors, h fortiori it must be such an act to
property, by which he becomes enabled to pay whom he pU
thus sells himself up ; and the very circumstance is enougt
buyer on his guard. Here there were debts to tlie amount o
and the purchase-money was not equal to tliat sum.
Lord Tekterdkn C. J. Tlie sale was not in point of la<
itself only, an act of bankruptcy. The words of the bankrupt s
c. 16. s, 3., are, " If any such trader sliall make any frauduler
conveyance of any of his lands, tenements, goods, or chatte
utmost that could be contended for, by a party who sought to i
would be, that it should go to the jury upon the question of f
IN THE Fourth Year op WILLIAM IV. 461
tr^er to incapacitate himself from carrying on trade. 1884<.
Lord Mansfield certainly appears to have used an ex- *
pression which might lead to such a doctrine, but he agamMi
PmncHARBb
seesus to have assumed the principle without much con-
sideration. If a sale be made for full value the creditors
are not injured. And this is supported by Lord KenyorCs
remarks in JVhitwell v: Stevens (a). A fraudulent convey-
ance of any part of the property is an act of bankruptcy ;
but there must be such a transfer as in itself constitutes
a fraudulent transaction, as well as an intent on the part
<tf the seller to defraud. If a fraudulent intent on the
par| of the seller were sufficient, no purchase could be
made in a shop with safety. The transfer, as well as
the intent, must be fraudulent; and a contract cannot be
ftaodolent unless both the contracting parties be tainted
widi the fraud.
Cur. adv. vuU.
Lord Denman C. J. in this term delivered the judg-
n^nt of the Court.
^e question is, whether an assignment by a trader
®'bis whole stock, with intent to abscond and carry off
^€ purchase-money, is an act of bankruptcy as " a
fraudulent transfer and delivery of his property with
^'Jlent to defeat and delay his creditors," when the
*°^ in such a case as the present, it should go to them with a strong
l^^^^^rvatioQ on the want of any facts from which fraud could be properly
^"Bvred. Even an assignment for the bene6t of creditors is not now an
*^ ^bankruptcy, except in certain cases mentioned in the fourth section.
^ fiir and boniL fide sale is scarcely witliin the mischief for which the
''•nkrupt ict proposes a remedy.
Rule refused.
f«) I Eip. N. P. C. 72.
purchaser
BAXTsa
PRRCHAms.
492 CASES IN TRINITY TERM
■
1884. purchaser pays a fiur price for the goods» ttidisip
rant of the trader's design?
The case being new, I thought myself boond
adhere to the words of the act ; and considering tl
all acts of bankruptcy are made to depend on i
conduct and motives of the bankrupt alone, and ihrt,
one sense, his sale of proper^ to the defendant v
clearly fraudulent, I directed the jury to find a y€A
for the plaintiff, with leave to move for a nonsuit
The case has now been fully argued before us, i
my first impression was rather fortified than wetken
by a scrutiny of the older cases, in which Lo
Man^lMj and other contemporary judges of lii
authority, appear to have held, that the mere assig
ment of a trader's whole property by deed wai
act of bankruptcy, as disabling him from further can
ing on his trade, though for a good consideratioii, i
even with the praiseworthy motive of fairly distriboti
it among his creditors. It is enough to allude genen
to Woraiey v. Demattos (a), Compton v. Bedford {b)j L
V. Skinner {c)^ Devon v. fVatts («?), Hassells v. Sinq)9(M(
Butcher v. Easto '(g).
On fuller consideration, I am satisfied that my fi
impression was wrong; and agree with the opini
which has been formed by the rest of the Court If)
language of the clause is construed with strictness, it
not the transfer and delivery of the goods that can
called fraudulent, in any sense. The trader is bouiui
deliver the goods he has sold for valuable considerad*
receiving, in return for them, a fund of equal tat
fa) 1 Burr. 467. (6) 1 IF. BL 362.
(c) 2 W. Bl, 996. {(I) 1 Doug. 86.
{e) 1 Doug, 89. note. {g) 1 Doug. 295.
«r1
MV THE Fourth Year of WILLIAM IV. 46S
fbiob might be made available for the benefit of his 18S4.
^reAitors. Possibly the best thing for them would be "
{he oonversion of goods into money. It is remarkable againtt
that the word sale does not occur in this clause; and
equally so, i:«at none of the older cases turn on a sale
accompanied with payment of the full price. Again,
the Court held in Hill v. Famell {a) that where a part
of the property had been sold by a trader after an act of
bankruptcy, but bon£l fide bought, the purchaser could
oot be compelled to part with the goods unless the
assignees, at least, tendered the price paid. It was
there justly said, that the protecting words of the eighty-
second sectl>;n could not otherwise receive their full
c&ct The incongruity would, indeed, be monstrous
if the purchaser were to be at liberty to keep goods so
obtained, but should be disabled from even recovering
& difidend on the price he had bona fide paid, if no
previous act of bankruptcy had been committed.
Another great inconvenience was forcibly pointed out:
ss the transfer and delivery of any part of the property
^ay be by the statute an act of bankruptcy, a trader
carrying on business in the ordinary way might be made
> bankrupt by a regular sale in his shop, by proof sub-
seqneDtly obtained that he had a scheme for cheating
hb creditors of the money; and in that case the
fortunate purchaser must both yield up to the as-
signees the article bought, and lose his right of proving
under the commission.
These startling consequences, which would, perhaps,
^wrant some degree of violence to the wording of the
^'^j will be 'avoided by confining the epithet " fraud-
(a) 9B, i C. 45.
ulent"
464 CASES IN TRINITY TERM
1884. ulent" to the gift, transfer, or delivery of goods, wut
r not extending it to the projects which possibly the trmd!es
agamtt may entertain, as to the disposal of the porchase^
PftlTCHARO*
money.
Whatever authority exists on the subject coincides
with this view. Mr. Pollock informed us of a case de>
cided at nisi prius by Baron Htdlock in 18279 where
the mere fact of selling the whole stock in trade was
held to be no act of bankruptcy, without proof of (nod.
That learned Judge nonsuited the assignees. And Mr.
Adolpkus has furnished a note of the refusal by tUs
Court to set aside the nonsuit [a) . In Cook v. CaldecoU [h)
Lord Tenterden lefl it substantially to the jury to 8^9
whether the purchaser was aware of the traders intoi*
tion to defraud his creditors of the money raised fay
sale of portions of his stock in trade: Hill v. Fanidl[^
points the same way, and supplies the powerful align-
ment to which allusion has been made. And the Master
of the Rolls recently decided the case of iZo&rfUoav.
Carrington {d) on the same principles.
For these reasons we are of opinion that the sale cv
a tradesman's stock to a bona fide purchaser who pays
, the fair price of it, in ignorance of any fraudulent in-
tention of the seller, is no act of bankruptcy. The rule
for entering a nonsuit must be
(a) The repoiten were indebted to Mr. Bantow for die note olS0^'
Haycock,
(6) M. i M. 52t. (c) 927. i C.45.
(d) IMonk^ji^U
IH THB FOURTB YeAB OF WILLIAM IV. 465
1834.
le Kino against The Company of Proprietors
of the Liverpool Exchange.
\N an appeal by the Company of Proprietors of the Bj a statuter'
' T ' f -r* I 1 • /• 1 '»'hich incor-
laoerpool iLxcnange, at the quarter sessions for the porated a com-
)nmgh of Uverpoolj against a rate by which the pro- ^j'wjl em^
rietors, as owners and occupiers, were rated at 2s. 4ed. J^JIdJ]^ umd
I the pound upon an annual sum of 1200/. for their J°^jj^^'
iblic news room in the Exchange Buildings^ and the hereon. »n
which the pro-
mveniences and improvements thereof, and the pri- prietorswere
to be bene-
leges thereto annexed or appertaining, the rate was Bciaiijin.
ofirmed, subject to the opinion of this Court upon the proporu'on to
II • their sub-
llowmg case : — cripUons.and
The appellants are a company incorporated by act JI!l^\o"h«TCr-
parliament, 42 G.3. c.7l. {a) intituled " An Act for ^^^^^i *nd it
was eoacieu
^ling certain persons in the town and port of Liver^ ^a' ^"^^ ^^
^ ^ more rooms
ol^ in the county palatine of Lancaster^ to erect an should be pro-
L r I * 1 . /.I y'l^ed. and used
(Change there for the accommodation of themselves as public rooma
d the merchants and others concerned in trade in business re-
B said town and port, and for incorporating the pro- and°a)mmerce
ietors thereof;" the preamble of which states, that the f"^nS^"hS'*fJp
athants, brokers, underwriters, and others concerned the purpose.
' ' ' One of the
rooms so pro-
id wu supplied with newspapers and other publications, and non-proprietors were ad-
tcd upon an annual subscription : Held, that the company was rateable for the rerenue
cr deducting the expenses of the room) arising from such subscription, though stock
lade, profits, and personalty were not rated in the parish, the rate being taken in the
>b upon the fair annual value of the property to bo let.
^7 the statute, each proprietor was entitled to attend the room without making any pay-
't: and, by the by-laws of the company, each proprietor was entitled to a payment from
company of an annual sum upon every share above one held by him ; and every pro-
^ not attending the room was paid by the company an annual sum : Held, that the
Puy was not rateable for the value of the privilege of such of the proprietors as
Hied
(a) Local and personal, public.
in
466 CASES IN TRINITY TERM
i 834. in trade and commerce in the town and port of lioerpdi
* had for a long time past experienced great inoonfemeoec
od^AsiMr from the want of a public exchange, and rooms lod
Pkoprietort of buildings for the purpose of transacting the g^wnl
Exchange, trade and business of the said town and port B]
sect. 2. the company were empowered to purchase
certain houses, buildings, lands, and premises mentioBed
in the act. By sect. 6. the company^ were empowott
to pull down the houses and other buildings, and If
erect on the land an extensive and ornamental range o
public buildings, with a spacious area in front, to h
called by the name of the " Liverpool Exchange,* ao
cording to certain plans. By sect. 6. it was enacted
that the area to be formed in front of the aforesaid baU
ings should be appropriated to the public use of tin
merchants, and traders, and inhabitants of the town o
Liverpool^ and of persons resorting thereto for the pur
poses of trade and commerce, in the manner of ai
exchange, under such regulations and restrictions, anc
to be opened and closed at such times, as the ^ aid compao]
of proprietors, their successors or assigns, should firofl
time to time direct; and further, that two or mon
rooms should be provided in the said intended build-
ings, which should be used as public rooms, for tbc
purpose of transacting such business respecting trade
and commerce as the said company, their successor
or assigns, should think proper; which rooms shottMi
out of the yearly or other income to arise from the
profits of the said undertaking, be furnished and prO"
vided with such necessary or other articles as the ss**-
company, their successors or assigns, should from tiiD
to time direct ; and the said company, their successo''
&c. should have and be entitled to admission to s(^^
rooms free from any further or other individual expei^'
1
IN THE FOUBTH YeAR OF WILLIAM IV. 467
at subject to such regulations, at such times and in 1884.
ioch manner, as the said company, their successors, &c.
iboald from time to time order and direct* By sect. 7* agm»i
it was enacted, that it should be lawful for the said com- Proprietonof
the X«iTxuooi«
paoy, their successors, &c« to sell, or order to be set, Eiduuige.
let, conveyed, or disposed of, so much or such parts of
ao; of the lands and premises so purchased and which
shoald not be deemed necessary for the purposes afore-
said^ or of any part or parts of the buildings to be
erected as aforesaid, except such parts as were intended
to be appropriated for public rooms and accommodations,
in manner therein specified. By sect. 8. it was enacted,
tint the property of and in the said concern, and of
and in the several lands so purchased, and the buildings
iiid the profits arising therefrom, should be vested in the
ttid company, and they should respectively be entitled
thereto in such shares and proportions as the amount of
tbeir several subscriptions in and to the same, and with,
voder, and subject to such clauses, covenants, con-
ing, provisoes, agreements, and restrictions as were
^ that act contained, or should thereafter be agreed
upon by the said company. By sect. 9. it was enacted,
^i the beneficial interest of the proprietors in the con-
c^ should be considered personal property, and should
^ assignable, transferable, and devisable accordingly.
%8ect. 11. it was enacted, that as soon as the under-
t^ing should have become productive beyond the ex*
P^diture necessary for carrying the same into execution,
^^ and in such case the clear gains of the concern for
tue year, after reserving a reasonable sum for contingent
^Penses, should be divided amongst the company in
pit>portion to the interest which each of them might
^^^^ in the concern.
'Ilie undertaking was divided into 800 shares, and
the
468 CASES IN TRINITY TERM
18S4. the buildings were finished in the year 1808, and there
are two large public rooms for commercial purposes, as
The KiMi
agamit directed by the act of parliament. One of them is leC
Proprietors of by the Company of proprietors to the Uverpool under*
Exchasge. writers at the sum of 205/., and upon which sum die
underwriters are separately assessed. The other rooiB»
which is called the ^* Exchange News Room,*' is held
by the company, by whom it has been fitted up and fiur«
nished, and is supplied with newspapers, and periodicdy
literary, and commercial publicatioas. There are a
master and several assistants paid by the company ; and
it is a part of the duty of the master to obtain the
earliest account of the arrival of vessels, and othei* nauti-
cal information, and communicate it by public notice to
the persons frequenting the room.
The following by-laws or regulations have been duly
made under the authority of the said act. — ITthD^
cember 1808. That non-proprietors should be permitted
to subscribe upon payment of three guineas per annaov
to be paid at the time of subscribing; and that erei^
proprietor holding more shares than one should bave
the power of appointing a person as his substitute to
the use of the public room or rooms in respect of each
share. — 31st December 1814. It having been repre-
sented that considerable abuses and irregularities bad
arisen in consequence of admitting persons to the news*
room under the nomination of proprietors, it was
resolved, that from thenceforth no person not being •
proprietor should be admitted unless he became ^
subscriber, and that every person in lieu of such rigb^
of nomination should be entitled to receive the annu^
sum of 3/. 35. in respect of each share.
Since 1814, those proprietors who have held voo^^
shares than one, and have frequented the news rt^''**'
IN THE Fourth Year of WILLIAM IV. 469
hare been paid 3/. Ss. in respect of each share above ISSi.
<Nie ; and the proprietors not using the news-room have
8bo been paid SL Ss. on each share. In the year against
coding the dlst of December 1831, the Exchange news* Froprieton of
iQom was attended by 116 proprietorsi and by 1141 Exchange,
tfuiual non-proprietors, and a few quarterly non-
proprietors; and pursuant to the by-laws before set out,
eadi annual non-proprietor paid to the company the
nm of 3/. 3s. ; and each proprietor not attending the
loom received 3/. 3& Each proprietor attending the
loom, was admitted free of charge, but did not receive
die S/. 3s« In the year ending the 31st of December
1832, the Exchange news-room was attended by 108
^ poprietors, and by 1211 non-proprietors, on the same
terms as the preceding year; and the same allowance
VIS made to proprietors who did not attend the room.
I The case then set out the income arising from the
nxMD, and the expenditure upon it, for the years 1831
lod 1832, the former arising exclusively from the sub-
options of non-proprietors, the latter from newspapers
^ other publications, coals, gas, rates, taxes, salaries,
''^nmce, repairs, and contingent expenses; and it
^er stated what addition would be made to the net
'cvcDue in each year, upon the assumption that the
prifilege of attending the room was worth 3/« 35. to
^ proprietor so attending.
Stock in trade, profits, and other personal property,
^ not rated in the parish of Liverpool. The rate for
me parish of Uverpool is laid upon the principle of
taking the fair annual value of the property to be let.
IW Exchange news«room, if let simply with reference
^ its situation, size, and accommodation as a news-
^^^s and without reference to its attendant revenue as
Vol. I. I i above
470 CASES IN TRINITY TERM
1834<. above stated, is of the annual value o(600L only. The
appellants contended, that the assessment upon the
agamst Company should be reduced to that sum : and if the
The ^tii.n,
Fh>prieton of Couit should be of that opmion, the same was to be
die LiviftiooL 1 J J- 1
Exchange, reduced accordingly.
If the company are rateaUe in respect c^ profits, bo^
the value of the privilege of those proprietcnrs who attend
the room is not to be included therein, the room is oT
the value of 1000/.; and the assessment was to be re-
duced to that sum.
If the company be rateable in respect of tbdr anixi*
ally divisible profits derived fix>m the room, aooordiiig
to the sum for which the room would let with such an
attendant revenue as above stated, the newa-room in
question is worth the annual sum of 1200/.; and in such
case the rate was to be confirmed.
The case was argued in Easter term last (a).
Alexander^ in support of the order of sessions. Tb^
room should be rated at its admitted annual valoe^
stated in the case. The only difficulty must have aris
firom confounding the rating of personal profits, withtb^
rating of realty enhanced by its incidents. The company
had no power to use the room otherwise than as a pobli^
room, furnished with every thing necessary for such por^
pose. The newspapers and periodical publications ar^
therefore, to be considered as inseparable from the rooocB ;
and then there can be no doubt that the value arising frof^
them must be included in the rate. The case thus fdl^
within the principle of Rex v. St. Nicholas^ Gloucester \p^y^
where the profits arising from the use of a steelyard*
(a) Before LiUledale, Parker and Paitts^n Js. jfprit 26th.
(6) 1 Bott, 150. pi. 180. (6th ed.) Cold. 262. 1 T. E. 725. note (^"3*
IN THE Fourth Year of WILLIAM IV. 471
to the freehold, were included in the rating of a 1834.
There Lord Mansfield said that the nature of
^ t^hing shewed that the machine was annexed to the agaimt
The
eehold ; and Willes J. added that, if a billiard table Proprietors of
ood in the house, the house would be rateable on the ad* Exchange.
aaced value produced by the table. In Rex v. Hogg {a)
in engine-house, as such, was held rateable for the
profits of an engine not fixed to the freehold. So in Rex
V. Bradford (&), the additional rent, arising from the pri-
vilege of using a house as a canteen, was included in the
nte on the house. In all cases, therefore, where profits
ffise from the inseparable annexation of any thing to
the subject of the rate, such profits must be included
in the rate. Neither can any objection be raised here,
00 the distinction between the liability of property in
the hands of an owner and its liability in those of a
tenant. In Rex v. T/ie New River Company (c\ Lord
BlerAorougfi says that this distinction is immaterial,
c^pt that the value admits of a more easy criterion
[^ e. the rent) in one case than in the other. Nor is it
•
'iDportant that stock is not usually rated in Liverpool ^
^ the value which it is sought to include here is the
viloe^ not of personalty, but, of an incident to the free-
hold. Besides, the usage cannot controul the general
li^w; Bex V. Hogg, {a) At all events, if the rate is not
to be on the whole 1200/., on the ground that the privi-
lege of the proprietors is to be considered as one that
n^ost, under all circumstances, be allowed free of expence,
the quantum cannot be reduced below 1000/.
Henderson contra. The Act makes no provision as
to the rating ; and no personalty can be considered as
W I r. JL 781. (ft) 4 If. 4:8. 317. (c) lU. 4;S. 508.
I i 2 an
472 CASES IK TRINITY TERM
1834. an adjunct to the room; the rate therefore must be oO
~ such adjuncts only as make a necessary part of the
agninu fitting up. The revenue derived from the room is not
Proprietors of rateable, and can be no test of the proper rate. The
Eicbaoge. true test is that laid down by BayUy J* in Bex ?. Tke
Birmingham Gas Light and Coke Company (a), vis. the
rent which the company could be forced to pay if the
premises were not their own property. That is found
by the case to be 600A According to the claim made
on the other side, this rent would be increased bj the
revenue arising from the privilege of attending the rooo.
The revenue itself never can be brought within the cri*
terion given by BayUy J., for it cannot be let; and, eveii
if it could, the rent arising from it would affi>rd no t€sC»
revenue not being the subject of rate. The revenue
arises from subscriptions, which are not in the nature of
rent for the room, but are of the same kind as subscriptioos
to clubs. Thus, at Llqyd^s^ the subscriptions are paid for
the privilege of attending the room, of obtaining cora^
mercial information there, and for other advantages of •
similar nature. And the success of such establishments de*
pends upon the convenience of the arrangements, and tbe
propriety of the management. Now profits arising fro0
personal exertions and qualifications cannot be rated-
Any one might open a room of the same kind in Lroerpootf
on paying a rent of 600/ ; and the room of the Company
would possess no advantages over it, except such as
arise from personal exertions or qualifications. It would
be different, if any thing were annexed to the room, aS
in Rex v. St. Nicholas^ Gloucester, (b) IParke J. Ther^
the profits made by the use of the machine were rated.3
(a) lB.j;C. 511.
W 1 J3oU. 150, pi. 180. (6th ed.) Cold, 362. 1 T, R. 7SJ. DOtci(«r^
^N TH» Fourth Year op WILLIAM IV. 475
Thst was because the machine was part of the freehold. 1834.
[Pcarte J. Here it is not proposed to rate the profits of ' !^
the newspapers.] It is proposed virtually to rate, as if against
the room and subscriptions were let. In Hex v. Hogg{a)y Proprieton of
the LivBiifOOt
the house and engine were leased as an entire subject ; ExcbAog*.
here the revenue cannot be the subject of demise. In
da V. Bradford {b\ the Court considered that the
privQege went to make up the rent, as appears from the
lan^age of the Judges ; and there Dampier J. pointed
oat that the whole was carefully included under the
power of distress ; and Lord EUeriborough assented to
the comparison of the case with that of a mill to which
•n exclusive privilege of multure was attached, and which
bronght a higher rent from that circumstance. If the rate
cm be laid as contended for on the other side, it will
practically be a rating of profits; and then it might be
oootended that, if two shopkeepers rented houses of the
MiQe value, the one which had the better custom was
•object to the higher rate.
Cur. adv. mil.
In this term, Littledale J. delivered the judgment of
the Court: —
The question in this case is, whether the news-room
^ the Liverpool Exchange is to be rated at such sum as
^t Would let for, considering its situation, size, and
•ccommodation, without reference to the revenue derived
by it in consequence of the act of parliament 42 G. 3.
^"71.; or whether that revenue is to be included. In
the course of the argument the cases of Rex v. Hogg{a\
^^ ▼. St. Nicholas Gloucester (c). Rex v. T/te New River
(«) 1 T, n. 721. (b) 4 Ar. ^ S. 317.
W I BoU. 150. pi. 180. (Glh cd.) Cald. 262. 1 T. R. 723. not« (a).
I i 3 Company f
474 CASES IN TRINITY TERM
1 834-. Company {a\ Bex v. Bradford (ft), and Bes t. The flir-"
mingham Gas Light and . Coke Compangf (c), amoogs^
against Others, were cited. These cases establidi the prindpi^^
The
Proprieton of that the advantages attendant upon a boilding, either i
ExcbangT''' respect of its situation or the mode of its occapatioii,
to be taken into the account in esthnadog its rateable
nual value, wherever those advantages would enable
owner of the building to let it at a higher rent than ii
would otherwise fetch ; but not the profits of a tni^
carried on in the building and not enhancing its renC
The news-room in question has certain advantages,
an attendant revenue in consequence of the act
parliament referred to ; under which act it must alwi^*^
have those advantages and an attendant revenue^ thoug^V^^
the amount of it may be more or less from variocvs
circumstances : but it must be a public room at all time^iy
by the express provisions of the act. The circumstao^^^
of its being a public room permanently under the
gives it the advantages which it has, and as it cann*
be let as a private news-room, or as a room for str^y
purpose which excludes the public, it seems absurd "K^
consider it in that light for the sole purpose of rating 2^*
As long as it continues one of the rooms mentioned ^ ^
the sixth section of the act, so long the advantag^^
alluded to must be attached to it, and must be tak^^
into the account in estimating its annual value. Ti^^
next question is, whether the value of the proprietor^
privilege is to be taken into consideration. Now tb^^
act, by the same sixth section, expressly provides, th^^
the proprietors shall have admission, free from sx^ ^
further or individual expense. If, therefore, any
(a) lM.iS. 503. (6) 4 AT. 4- S. 317. (c) I S, ^ C
IN THE Fourth Year ov WILLIAM IV, 475
weir« to hire the room, he would not charge any thing to 1 834.
apEroprietor for his individual use of it; and, this being
The KiMO
BO^ we think that the value of the proprietors' privilege agninst
Th6
caxtnot be taken as part of the annual value. Proprietors of
XJpon the whole we are of opinion, that the assess* Exchange,
viesit mast be reduced to the sum of 1000/., which is
found by the case to be the value, according to the
principle of taking the fair annual value of the property
to be let, estimated as we have already stated.
Rate reduced to the assessment of IOOO/4
Franklin against Featherstonhaugh. uaj^!
ON taxation of the bill of costs of Messrs. Becfrey Son, ^ P»«jy **^
tached for con*
. and CoUisoHy attomies, delivered to the defendant tempt in an
• , . . , , ecclesiastical
m this cause, it appeared that the bill delivered amounted court, employed
to 28/i Ss. Sd.f and consisted, first, of items for business attorney to pro-
done by Beckey Son, and Collison, in procuring the release SI[Jge[* Atth^
of the defendant, who had been attached by process of ^\eta^T?
an ecclesiastical court for a contempt; and, secondly, of ^"***iJ2i^th"'
tbe tliree followinc: charges : -^ attorney, what
° ^ the cosU' in the
^. 5. d» ecclesiiisUcal
^ court would pro-i
"&ld costs of contempt - - - 7 15 2 bably amount
Do. Messrs. Farrer and Frenches costs * 2 0 2 rised him to
lio, Messrs. -Boj: and Son, for their charges - 5 1 6 ^|*aJd*to^
what might be
''^ccairy. The attorney employed a proctor, who did the business required, and settled
]J^ tbe advene proctor, whose charges, on that occasion, were objected to and reduced,
-^e attorney paid the bill of the proctor retained by him, having first examined thd
'^^■'Iges and had them inspected (though not regularly taxed] by the taxing Officer of the
^^^wMUcal court, who thought them reasonable. He afterwards delivered his own bill
^ tbe client, containing items amounting to 9/. for his own charges, and 14/. for thtf
^'^octor's and other charges in the ecclesiastical court. The Master uxed off iL from th«
^^^itner items, but declined taxing the latter : and he included the whole in his allocatur :
Held, first, that the costs in the ecclesiastical court were properly included in the bill as
I'^'tHinements by the attorney ; secondly, that, under the circumstances, it was not necessary
^ *afcr them back to the Master fur taxation.
The
IN THE Fourth Year of WILLIAM IV. 477
>tjgfa not regularly taxed, were carefully examined by 1834.
r- Becke^ and inspected by the taxing officer of the
clesiastical court, who was satisfied with them, as was agahut
.... F«ATHKt8TOK«
ISO Mr. Becke : that, according to information given to hauch.
Ar. Becke^ the bill of Messrs. Box and Son, being be-
tween proctor and client, could not have been taxed with-
out Box and Son's consent : that Mr. Becke paid the said
costs and charges, and that such payment was a necessary
disbursement : that the said items of charge were placed
together at the foot of the bill, only to shew the propor-
tion which those costs bore to Becke^ Son, and CollisoiCs
charges on their own account, but that the whole of
the charges were included in one sum total of 23/. Ss. 8cf.
tdlett now shewed cause against the rule. The ar-
gonent on the other side is, first, that the costs of con-
t^pt, and payments to the proctors, were not taxable
disbursements, in which case they form no part of the
hill which has been taxed, and then, after deducting
^W, the taxation (amounting to 2/. 9s. Sd.) takes away
^tt than one-sixth of the bill : or, secondly, that they
^ taxable, and, in that case, ought to be referred back
^ the master. But these were taxable items, and have
"^ sufficiently taxed. In Ex parte Inman {a) where the
^icitor to a commission had paid the commissioners
^xtra fees (which were not regularly payable) for travcl-
'iDg expenses, and charged them in his bill, it was held
that these were taxable in a court of equity, in the exercise
of its jurisdiction over bankruptcy, by analogy to the
statute 2 G. 2. c. 23, s. 23. Even when the client has
made advances to the attorney in the course of a cause
(a) Buck's Casci in Bankrvpi(y, 129.
(3f
iM THE Fourth Year of WILLIAM IV. 479
•orrcct. The Master might, if necessary, have referred 1834*
hesc items to the proper officer of the ecclesiastical „
x^Tt; bat Lord Mansfield said, in a case cited in a note agom$t
FlATlURSTOX**
to Hooper v. Till {a) that such charges, included in an HAoaK.
attorney's bill, might be taxed by the Master, where the
iihole was referred to him. So bills for business done
at quarter sessions, and at great sessions in Wales, are
taxable by the Master. [ Taunton J. Has not the whde
diarge in this case been before the Master? and do
you say the proctor's bill is not taxed because he has
M retrenched it? Littledale J. You do not say that
be has declined considering those items, thinking that
be had no jurisdiction.] The affidavits do not say that
be has taxed them : he has allowed them in a gross sum.
]^aimton J. It appears that, although there has been
no formal taxation, there was an examination of the
Accounts, and a communication made by Box and Son
to the adverse proctors, in consequence of which they
'^uoed their charge as much as it would have been
^uced on a regular taxation. Then, as these are ap-
plications to the discretion of the Court, ought we, in
the exercise of that discretion, to refer it to the Master
to do that pro forma which would merely leave the bill
ui the same state as before ? j The bill is said to have
been reduced as much as if it had been taxed ; but this
^^ merely an arrangement of Becke and Co. and their
proctor; and the Court will not delegate the duty of
tbe Master to those parties.
Lord Denman C. J. It has been the constant course
to consider disbursements of this kind as part of an
(•) \Doug. 199. n. [1.]
attorney's
480 CASES IN TRINITY TERM
1834. attorney's bill; and, although the proctors* diargeihai
not been actually taxed by the Master, yet as they hi!
againsi been bon& fide subjected to revision, we think there
BAVQB. no ground for directing a review of the taxation*
LiTTLEDALE J. If these were shewn to be items wbii
ought not to have been included in the attorney's bilSL^
the rule ought to be absolute for the coats of tazatioc^B-'-
Supposing the items to have been such as the
law officer could not have taxed, they might have
referred to the officer of the ecclesiastical court,
it is said that they could not have been taxed thee —
without the consent of Box and Son. But, how<
this may be, the parties here had in some measai
agreed before-hand, what should be the amount
charges in the ecclesiastical court; and, that being
those charges may properly be considered a disbi
ment in tlie cause. I therefore think the rule ought
be discharged.
Taunton and Williams Js. concurred.
Rule
IN THE Fourth Year of WILLIAM IV. 481
1834.
The King agaimt Walsh. {^^o;!
^rB~XE defendant was convicted by a justice of the A conviction
"^ under lUftt*
I^eace of the West Riding of Yorkshire^ on an in- 3&4 ir.4.
forirm aition stating that he, George Walsh of Selby^ in the s^ted that the
said ^est Riding, mariner, did, on, &c., unlawfully de- f^iiSt^dr"
taia a certain certificate of register of the sloop or vessel 'l!®' "p ! ***'•
called the Norwich Castle^ then and there beinff in the <^*"'^ ^ ***
nver Ouse at Selbij aforesaid; and that he, the said cenofcuuomi:
. Held, that this
Cj. # J., did then and there unlawfully and wilfully refuse was bad, as not
J I ,1. , . , ./• /. . Hringing the
ana neglect to deliver up tlie .said certificate of register offence within
to his Majesty's officers of customs, for the purposes of the section"
such sloop or vessel, contrary to the form of the statute to'dellve*/"^
"^ that case made and provided. The conviction re- ^^J^^^^^^f^-
cited the information; and that the defendant was ap- Majesty's cus.
*^ toms."
prehended and brought before the justice, who examined The convic-
^ tion did not
into the charge ; and it continued as follows : — " And state for what
g\ t ... puriiose the
^^ tile day and year, &c. one credible witness, to wit, certificate was
^- -O., upon his oath deposeth and saith in the presence ^^^Lord Den-*
o^ the said G. IV., that he, the said G. JF., now hath the Z'm^ms'jT^
possession of the said certificate of register of the said *!*"^ **?'' °°™'?'
. " sion also made
sioop or vessel ; and that he, the said G. fT., wrongfully ^e conviction
^nd illegally detains the same, and refuses to deliver the satisfying the
words of the
*^nie certificate of register up to his Majesty s afficns of same section,
^^^OfnSf for the necessary purposes of the said sloop or for the purpose
"^^el: and whereupon the said G. fF., now here in my Jewe?, alocci-
P''^sence, acknowledgeih and saith diat he hath the pos- "°uj'J||*!/
^^sion of the said certificate of register of the said sloop . Held also,
° ' that tliese
^^ Vessel; and also that he, the said G. fV.y hath refused weredefectein
Q I . ^ ^ substance, and
^^^* now doth refuse to deliver up the said certificate of not cured by
^ T V \ the general act,
V OL. I . K k register 3 G. 4. c. 2S.
482 CASES IN TRINITY TERM
1884. register to the officers of his Majesty's said customs, fov
""■""" the purposes of the said sloop or vessel : therefore, it
The KiKo : ^ / , ^ . -
agaifui manifestly appearing to me, that the said G. H'. is guil^^
Walsh.
of the offence charged upon him in the said informati(
I do hereby convict him of the offence aforesaid, ai^d
do declare and adjudge that the said G. fV. hath for-
feited the sum of 100/.," &c. The defendant, in de&ixlt
of payment, was committed to the house of correction at
Wakefield for three months. The conviction was after-
wards removed into this Court by certiorari, and a rule
obtained, calling on the convicting justice and the in-
former to shew cause why the defendant should not be
discharged out of custody.
Hoggins now shewed cause. The principal objection
made to the validity of this conviction is, that it only
states a refusal by the defendant to deliver up the car-
tificate to the officers^ not to the proper officers^ of bis
Majesty's customs. The enactment, 6 G.4. c. 1 10. 5.27-9
upon which this conviction proceeds, is explained by
7 & 8 G. 4. c. 56. s. 20. [Lord Denman C. J. The
present conviction must be taken to have proceeded on
8 & 4 WC 4. c. 55. s. 27. (a), but the language of both ^
nearly
(a) 3 & 4 W. 4. c. 55. 5. 27. " And whereas it is not proper that »oT
person under any pretence whatever should detain the certificate ^
registry of any ship or vessel, or hold the same for any purpose ott*^
than the lawful use and navigation of the ship or vessel for which it f^
granted ; be it therefore enacted, that in case any person who shall b^^*
received or obtained by any means or for any purpose whatever the
tificate of the registry of any ship or vessel (whether such person st>^
claim to be the master or to be the owner or one of the owners of i^^^
ship or vessel, or not,) shall wilfully detain and refuse to deliver up •^'^
same to the proper officers of his Majesty's customs, for the purpose* ^
such ship or vessel, as occasion shall require, [or to the person or pei*^***
Waim.
IN THE Fourth Year of WILLIAM IV. 483
early the same.] Sect. 20. of 7&8G.4. c.56. may 1834.
Jrve to explain both the other enactments, and that ~
>eaks of ** the officers of the customs," generally, as ^Htamu
)e persons to whom the certificate is to be delivered
>T the purposes of the act there referred to. [Lord
Penman C. J. Still, must not a conviction under the
present act be for detaining according to the words of
be statute, viz. from the proper officer? that is the
>ffeDce charged. From whom is the detention here?]
?rom his Majesty's officers. The acts say, that if it
ball appear to the justice that the certificate " is wilfully
etained by the said person " (not stating from whom),
e shall be thereof convicted. [Lord Denman C. J.
lien you would say that the officers need not be men*
oned at all.] If the wilful detainer is shewn, the re-
jsal to deliver the certificate to certain officers is not a
ecessary part of the statement. In Ex parte Edwards(a\
be conviction was under 6G.^, c. 108. 5.81., which
nacts, ^< that if any person so convicted as a seaman
'^ ct seafaring man, and carried on board any of his
^Qjesty's ships of war, shall, on examination by any
^^*)g the actual command, possession, and management of such ship or
^^^1 as the ostensible and reputed master, or as the ostensible and re-
^uteti owner or owners thereof,] it may and shall be lawful to and for
y Such last-mentioned person to make complaint on oath of such de-
■*»i«r and refusal to any justice of the peace," &c. " And if it shall
'Ppcar to the said justice, on examination of such person or otherwise,
^ the said certificate of registry is not lost or mislaid, but is wilfully
^^ned by the said person, such person shall be thereof convicted, and
•^^^U forfeit and pay the sum of 100/.'* &c.
^e twenty-seventh section of 6 C 4. c. 110. does not materially vary
^^ the above, except that the words here printed between brackets art
^^tted, and the clause proceeds, " it shall and may be lawful to and for
^y owner or owners of such ship,** &c.
W 8Z>. 4-5.115.
K k 2 surgeon
>Val»h.
IN THE Fourth Year of WILLIAM IV. 485
Jzicit contra. The conviction is substantially bad, 1884.
f-sCy in not stating the purpose for which it was neces-
^xy that the certificate should be delivered up, and, o^gamu
ecoiidly, in not alleging that it was withheld from the
proper officers. That expression in the act relates to
particular persons, holding certain public offices, and
who are specifically pointed out by the third and twen-
tieth sections of the act, 3 & 4 ^. 4. c. 55. In Bex v.
Fixl€y(a\ the conviction (upon an act similar to the
present) charged the defendant with unlawfully detain-
ing, and unlawfully refusing to deliver up a certificate of
registry to the proper officer, on being required to
deliver the same by the owner of the ship; and such
conviction was held not to be supported by proof that
tbe defendant withheld the certificate from a person
sent by the owner with a letter requiring the defendant
generally to deliver it, in order that an indorsement
°i^ht be made upon it at the custom-house. (Here he
^«s stopped by the Court.)
Lord Denman C. J. I am of opinion that this rule
^*>st be made absolute. The conviction ought to have
shewn what the purpose was for which the certificate
^as required, in order that the Court might see whether
^^ Was such a purpose as the act, 3 & 4 ^. 4. c. 65.^
^nteroplates. It should also have specified the officers
^^ such a manner that the Court might know that they
^^re those whom the act calls the proper officers. The
^Qviction is therefore bad, unless aided by the statute
^ G. 4. c. 23. s. 3. That act, it is true, says, that
^'^ere the merits have been tried, and the defendant has
[a) IZ East,9\.
K k 3 appeared
Walsh.
486 CASES IN TRINITY TERM
1834. appeared and pleaded, the conviction shall reoein
fair and liberal construction ; but still it must appear
jn««imtf the face of the conviction that some direct charge i
made, of the nature contemplated by the ace um
which the proceeding takes place. It has been
geniously contended here, that the charge of refusing
deliver the certificate to his Majesty's officers of i
customs implies a general denial to all the office
But it ought to appear distincdy that the denial was
such officers as the statute authorises to demand 1
certificate : if this were not so, a party might be cc
victed under circumstances quite foreign to the pi
poses of the act.
LiTTLEDALE J. The ^^ proper officers" within t
meaning of this clause are pointed out in the earl
part of the statute. The certificate might have be
demanded by other and subordinate officers. It dc
not appear by this conviction to whom the refuj
was made: the only statement is, that the defends
reiused to deliver the certificate ^^ to his Majesty's ol
cers of customs." It is said that this includes t
proper officers ; but we cannot intend that all came in
body and met with the refusal : and the general rule
that, in drawing a conviction on a statute, you mt
bring the case within the very words. The ** libei
construction" directed by 3 G. 4. c. 23. 5. S., cann
extend to such a defect as this. The form of convi
tion adopted here is not one furnished by the statut
which does not give any; and the words of a convictic
under an act of parliament ought either to be in
proper form prescribed by the act, or to be such i
clear
IN THE Fourth Year of WILLIAM IV. 487
l^sktrly shew that an offence against the act has been 1834.
jmitted.
TheKnio
a/ftiinti
Walss.
kUNTON J. I am of the same opinion. No offence
was committed against the act, unless there was a wilful
detention of the certificate, and refusal to deliver it to
the proper officers of the customs. The word " proper'*
excludes all others; there may be good reason for ex-
cluding those, and it would not follow from a refusal of
the certificate to them, that it would be refused to those
authorised to receive it It is necessary to all convic-
tions that the substance of the offence should be stated ;
and the omission here is of substance, not of form. The
argument, therefore, from the general act, 3 G. 4. c. 23^
does not apply. In £r parte Edwards (a) the party
had, in point of fact, *^ been refused to be received on
board one of his Majesty's ships as fit for his Majest)^8
service," and it was held that the commitment need not
further state a previous examination by a surgeon, but
diat it was sufficient, under the act there in question^
^ shew that he had been deemed unfit, and therefore
fefuseil (6). That case was entirely different from this;
and Fawcett v. Fcndis (c) is still more so. The ground of
decision there was, that the facts omitted in the con-
^ctioD were matter of defence: that cannot apply to
"*e present case.
(a) 82). j- R. 115.
(i) The act 6 (7. 4. c. 108. «. 81. expressly states, that « upon proof
^" the party " has been refused to be received on board one of bb
^•jeity't khips as fit for his Majesty's &enrice,'* the justices may enforce
^ pentlty, « without hearing any evidence other than such proof as last
W?^. 4 C394.
K k 4 Williams
488
CASES IN TRINITY TERM
1834.
Tbe Kiva
agaiHSt
Wauh.
Williams J. I also think that the convictioD ctn-
not be supported. The act 3 G. 4. c. 23. i. 3. only
extends to cases *^ where it appears by the convictioD
that the merits have been tried." Here, the merits, as
it strikes me, do not appear by the conviction to baie
been gone into. I agree with my Lord Chief Justice^
tliat the conviction ought to have shewn the purpose fi>r
which the certificate was required, and also that the
officers were the " proper officers." The conviction,
therefore, is too general, and is not aided by the statute
of 3 G. 4.
Rule absoltttei
Friday,
May 23d.
Breckon against Smith.
PUintiffde. TNDEBITATUS assumpsit for goods sold, and on
dared for X r o
goods sold,
and on an
account suted. particular delivered with the notice of declaration was
an account stated. Plea, the general issue. The
The particular
delivered with
the declaration
wras, *<to a
beast sold and
delivered,
13/: lOf."
The only evi
as follows: — "To a beast sold and delivered, 13/. \0s*
At the York Summer a>sizes, 1833, the cause was tried
before Lord Detiman C. J. as undefended, and the case
proved by the plaintiff was, that the defendant bad said
1b"^ 7*V*^ ^ * ^^^^^ person that he (defendant) owed the plaintiff
admitted in |3/, iQj., and was afraid he was goinir to put him to
conversation o o i-
with a third trouble: the defendant did not say what the sum ^ss
person* not
shewn to be an owmg for. The Lord Chief Justice thought the evH
plainiiif, that dence insufficient, but directed a verdict for the plaindS
latteiTis/. lOf.: S^^^S '^^^e to move to enter a nonsuit. A rule nis»
Held, that
this was no
evidence of an account stated ; and that it was not evidence on the ccunt for goods soI°«
fts it was not shewn to be applicable to the particular.
I^eave was given to the plaintiff to amend his particular, and go to a new trisi on p*7'
itof COMS.
fras
IN THE Fourth Year of WILLIAM IV. 489
obtained, on the ground that there was no evidence 1834.
ipport the declaration, or, if any, that it varied from
"^ BmcxoK
ctuae of action stated in the particular. a^nintt
Uacander now shewed cause. The general rule is,
t an admission by the defendant of his owing a cer-
1 sum to the plaintiff is prima facie evidence against
I in an action to recover the debt : 1 Phill. on Ev.
\ 6th ed. An acknowledgment by the defendant of
lebt due on any account will entitle the plaintiff to
9ver upon the account stated: Knffooles v. Michel {a).
Ashby v. Aihhy{b\ the declaration was on the
Qey counts: the defendant had given a note for
i. for goods sold, but the note was not proved ;
only evidence was, that the defendant had ad-
ted owing the plaintiff 150/. ; and there was no count
goods sold. But the Court of Common Pleas
1 that the general acknowledgment was evidence
cb entitled the plaintif}' to recover on the account
ed. \Tmint(m J. The plaintiff may recover on that
nt, if the defendant has accounted with him for a
;le item of his demand : Highmore v. Primrose (c).
e question is, whether that is proved in this case.
Ukdale J. One item is sufficient, but the accounting
1st be with the plaintiff. If a person, in an off-hand
nversation with ^., says, "I owe B, 10/.;" is that
ideDce of an accounting with B, ? Lord Denman C. J.
I Aihly V. Ashby (&), though it did not appear that
lere was an actual accounting with the plaintiff, there
lay have been circumstances which gave that character
) the admission. There had been payments of interest
(«) 15 Eoi/,249. -70 3 Af. tj ^' ^^C (c) 5 Af . cj- & 65.
on
Smitb.
THE Fourth Year of WILLIAM IV.
Itiff might hereafter bring an action for the
ect*matter of the present demandi viz. the price
t sold to the defendant i and if a judgment re-
were to be pleaded, and issue taken on the
)f the causes of action, the plaintiff might con-
t the particular now in question was for money
received by the defendant for a beast sold by
igent to the plaintiff; and the evidence in the
ause, being so loose, would afford no answer to
[estion. The plaintiff, therefore, might recover
' the same demand. (He was then stopped by
t.)
Ml
1834.
BaicKoy
againti
Smith.
Denman C. J. I fear the plaintiff's case is too
* the reason just given ; but I think there ought
new trial on payment of costs, the plaintiff
ave to amend his particular.
EDALE, Taunton, and Williams Js. concurred.
Rule absolute accordingly.
Whitehead against Tattersall.
Saturday,
Mttjf 24 tb.
NANT. The action was for breach of a Corenantor
nant to repair premises leased by the plaintiff submitted the
1 . 1 amount of da-
C^m0^ ^^%^i
"Dl.
r\.
492 CASES IN TRINITY TERM
1884. fendant had sent to him a letter in the foUowii^ worto
— " Mr. TattersaU agrees to abide by the determinalkMi
agnnm of Mr* Boisofi and Mr. Mead as to the dilapidations ^
No. 33. Bloomdmry Square^ and if they cannot agree, tc
pay a moiety of the expense of any one they may calj
in." The plaintiff agreed to this, and the arbitrators
named, not having agreed, called in an nmpire, who
signed the following report : — '^ I have surveyed and
estimated the several works necessary to be done in
repairing the dilapidations to a house, &c«, and find tk
same amount to the sum of 551. 5s" The Lord Chkr
Justice was of opinion that, in default of evidence to
impeach this award, the jury must take the damages ai
found by the umpire ; and a verdict was according
given for 55L 5s. damages.
Piatt now moved for a rule to shew cause why then
should not be a new trial, on the ground of misdirectioii
Had the action been brought upon the award, the fiixi-
ing in it would be conclusive;, but this is an action Ibr
breach of covenant : therefore the award cannot go
further than an admission of the defendant would gh
and that would not be conclusive evidence. [^Littledakl
No evidence was offered to impeach the award.] Bot
proof would have been offered that, in fact, the damages
were less than those found by the award. iTauntonl
The award of an arbitrator concludes the right, unless
you can impeach the award. Lawrence J., at the Here'
Jbrd assizes, ruled that an award was conclusive evidence
in an action of ejectment;]
Ix)rd Denman C. J. The award binds the plaintiff;
and, that being so, it must bind the defendant. There
must be no rule.
Little-
THK Fourth Year of WILLIAM IV. 493
EDALE) Taunton, and Williams Js. con- 18S4.
Whitkhxad
Rule refused. agmmt
Tattsbsall.
d Margaret Dodd against Samuel and jfoy84th.
James Holme.
The declaration stated, that before and at Twopenoni
r 1 n 1 1 • -m having adjacent
time ot the committing, &c. the plaintiffs w6re lands, the one
I of an ancient dwelling-house, and that before, at the eztremitj
defendants were employed in digging the Si?ouI"^ter.
IDS of a certain intended buildins: in a cer- J^"^« «»«▼»»«•
o hu own sou
3 of land next adjoinin^r to the land whereon n««rto, but
•^ ^ without touch-
dwelling-house was built, yet defendants, well iog» the ground
so built upon.
the premises, but intending, &c., while the Quaere, whe-
were so possessed, &c., so carelessly, neg- making such
unskilfully, and improperly dug the said found- bound to mo
the land next adjoining the said land on STurt'found!!"
e said dwelling-house was built, that by reason •A***"? *** "®?
° ^ thereby weak-
Lhe foundations and walls of the dwellinir- •"*** J ""^
^ whether, if
ank and gave way, and became and were they be so, he
weakened, loosened, damaged, and unsafe, and actionable ne-
ling-house thereby became untenantable and having so used
table. The second count was similar, but Jhho^ut pro-
B dwelling-house to have been built for a lone J^^"? '^•^ ^^
^ o bis neighbour,
although no
negligence be
shewn in the mode of carrying on the work ?
g him not liable in the case of a newly built house ; Qunre, whether he would
house had stood twenty years before the excavation was made?
re it is alleged and proved that the defendant so negligently, unskilfully, and
dug his own soil that the plaintifiTs house was thereby injured, an action lies:
;h it be shewn that the house was infirm, and could at all events have stood only
hs, still the plaintiff may recover in proportion to the loss actually suffered, if
1 that the injury to the house was the consequence of the defendant's negligence;
nrmining the question of negligence, the jury ought to consider the state of the
Mise.
time.
Holme.
494 CASES IN TRINITY TERM
1834. time, viz. twenty years before, &c. The third a
— stated the dwellin£[-house to be ancient, and thai
DODD °
ocfftisr defendants wrongfully, carelessly, and unskilfully n
an excavation near the foundations of the said d^
ing-house, whereby the soil about the said foundat
was loosened, and the foundations wakened, &c.
fourth count was similar to the third, only stating
dwelling-house to have been erected twenty yean
fore. The fifth count was similar, except tliat it mi
described the house as a certain dwelling-house,
declaration concluded with various special avermenl
damage. Plea, not guilty.
At the trial before BcUand B., at the Lancaster S
mer assizes, 183S, it appeared that the plaintiffi* wai
old house; some witnesses remembered it thir^
years: an old warehouse belonging to the defend
had formerly come close up to it, but was pulled do
and the defendants, at the time referred to by the
claration, excavated ground on the site of the «
house, for the foundation of a new building,
excavation was six feet deep, and came within tl
four feet of the plaintiffs' house. The intermediate
was not touched. After the excavation was made^
gable wall of the house bulged, and the defendants I
(but not before) endeavoured to shore it up; bat
wall gave way in all directions, and it became neoes
to rebuild it. Afler the excavation began, the weal
was very wet, which partly occasioned the fall of
gable. Witnesses for the plaintiffs stated, that if
wall had been shored properly and in time, it wc
not have given way. The defendants' witnesses \
that the wall was in so rotten a state that it could
have been effectually shored ; that it had only a slij
foundati'
HE Fourth Year of WILLIAM IV.
a, and was pressed upon by a great weight of
in the plaintiffs' premises, and that, even if
ed, it could not have stood six months. For
dants it was contended, thnt a man could not,
tg his house on tite extremity of his own land,
prevent a neighbour from using his own land
icent ; and Pa/ton v. The Mayor of London [a),
U T. Harrison (i), were cited. The learned
ter detailing the evidence to the jury, stated
as follows : — " If I have a buihling on my
, which I leave in the same state, and my
r digs in his land adjacent, so as to pull down
be is liable to an action. If, however, I had
f wall, so that it had more on it than it could
he would not be liable." And he stated the
for the jury to be, whether the fall was occa-
the defendants' negligence, in which case the
ngfat to be for the plaintiffi; or by ib own
in which case they should find for the defend-
le jury found a verdict for the plaintiffs. In
at term following, a new trial was moved for,
onnd that the learned Judge had misdirected
ioMmach as they might have been led by the
up to auppose that the mere act of digging
|dtintiffi' land, in consequence of which the
WW a negligence for which an action lay,
*'. wall was impr<q>erly loaded ; whereas the
Iwhetlier the work had been done by
a negligent manner, or with as much
mstances allowed. It was also con-
aid havi! been left to the jury whether
the
•flM
HOLKK.
496 CASES IN TRINITY TERM
1884. the house was built in such a manner as a man o
"""~ to build a house at the extremity of his land, in orH
Dodo
agamu have an action against his neighbour (if any such m
would lie) for injury occasioned to the house b]
neighbour digging in his own soil. A rule nisi hi
been obtained,
Blackbume and Soscae now shewed cause.
learned Judge's direction, taking it to have been a
presented, was right A man excavating his own
adjoining the house of another, is bound to tak<
necessary precautions that injury may not result
his act He is cognizant of what is taking place;
neighbouring owner is not, or if he is, he does not Ii
what precaution may be necessary. . He cannot c
upon the land where the work is doing. fVilde v. 1
sterley{a\ on the authority of which Wyatt v. Harriso
was decided, is in favour of the plaintiffs, as far ai
gards the case of a house not new : and it is not mtc
question there, whether the party digging his land
it negligeiitly or not. It is there said, that ^* it was ^
own fault that he built his house so near to B's iai
for he, by his act, cannot hinder B. from making the t
use of his own land tliat he can." So also it might
said, that the proprietor of the land now excavated oo
not use it so as to prevent A. from enjoying the ben
of his own land by building on any part of it. 1
question, therefore, in such cases', comes to be, whici
the parties has first appropriated his land to a parties
purpose in derogation of the other's right. It is like
case of appropriation of flowing water. \^Littleda>
(a) 2 RoU, Abr. 564. tit. TresjKiu, I. pi. 1. (h) 3 B. .J- A(l.&
JTN THE Fourth Year of WILLIAM IV. 497
ba^ can only be by twenty years' adverse enjoyment, ISS^.
losic^^i ▼. Hill (fl).] Although the building were recent,
»tt;]3e adjoining proprietor, if he wishes afterwards to agninu
HoLME«
iffBL^rsXt his own land, must take care that he does not
ler^lsy injure. the land upon which his neighbour built
vheKi he had a (iill right so to do. Turbervil v. Slamp {b)
applies in principle to the present case. In Slingsby v.
'Bomnrd {c\ the declaration alleged that the defendants
dug a cellar under Barnard's house, so near the found-
auon of the plaintiff's house, that it was undermined,
and part fell ; and this was held good, on objections not
affecting the present point; but it does not appear
that negligence was alleged. In Smith v. Martin {d)
tbere was a similar declaration, not averring negligence;
but no objection was raised on that ground, and the
plaintiff had judgment In Bobefis v. Readme) negli-
gence was not alleged, but that was not made an ob-
jection. The objections made in Sutton ▼. Clarke {g\
^bere the defendant was held not liable for consequential
damage to neighbouring land, are not applicable here ;
wd Gibbs C. J. said (A), " This case is perfectly unlike
A&t of an individual, who, for his own benefit, makes
an improvement on his own land according to his best
^ and diligence, and not foreseeing it will produce
any injury to his neighbour: if he thereby unwittingly
injure his neighbour, he is answerable." In Jones v.
^i^d (f), the Court clearly intimated their opinion, that
u^e party doing a work is bound to take care that it be
>)ot injurious to the adjoining premises, and to use
(o) 3 A j^ Afh 304. SB.i Ad. 1. (6) 1 SaUc. IS.
(0 1 RolL Rep. 43a {d) 8 SauruL 594.
(0 16 East, 215. {g) 6 Taunt. 29.
(A) 6 Tauni. 44. (i) 5 JB. ^ Aid. 837.
* oi«» I. L 1 every
498 CASES IN TRINITY TERM
18S4. every precaution for that purpose which a skiliiil man
' could reasonably be required to use in such a case. The
HornM expressions of Abbott C. J. (a) and Bajfley J. (4)
strong to that effect And that was the case of person
employed by commissioners of sewers in the perfi
ance of a public duty, where the acts done would
the most favourable construction. B/ex t. The
fHtssioners of S€wers for Pagham Levels (c) bears n^c:
analc^ to this case ; it was decided on the ground, tbi^.t
each land- owner has a right to protect himself against
the sea« and that his neighbour must take the same
cautions for himself. In Peyton v. The Mayor^ 4^
London (d\ the chief question raised was, whether tbe
plaintiff had a right to have his house supported by tbe
adjoining one, which the defendants pulled down* Lord.
TaUerden there said, *< Adverting to the fiicts proved*
and to the want of evidence from which a grant to t
plaintiff of a right to the support of the adjoining hoia
might be inferred, and to the form of the declaration*
we think the nonsuit was right" There it was hel<3»
that the plaintiff's duty was to shore up his own hofMS^
on the inside ; but here, the plaintiffs could not kno^
what precaution to take ; they were obliged to rely ^>^
the defendant doing his duty, by using proper pr^"
caution, or not carrying his excavation to a dangera^^
extent In Brown v. JVindsor (e), the defendant w<**
held liable for having carelessly and unskilfully excavat^^
his own soil, so as to sink the wall of his own house, a^^^
thereby to injure that of the plaintiff; but there the plai*^
tiff had been expressly permitted to rest his buildt ^^S
(a) 5B»i J. 844. 1 DowL {• JR. 505.
(&) SB.^ji. 845. 1 Dowl. 4: R. 504.
(0 SB.^a 855. (d) 9B. 4" C 725. (e) I Cro. i J.
^f
HOLMX.
IN THE Fourth Year of WILLIAM IV. 499
igainst that of the defendant Here, a similar licence, as 1 SS4f*
to the soil, may be presumed from long user, [Lord DeU'
ftum C. J. The mere user of his own house on his own apOnu
§0\\ shews nothing.] Garravo B. said there, ** There
fOay be cases, where a man, altering his own premises,
Cannot support his neighbour's, and the support if ne-
cessary must be supplied elsewhere. In such case, he
must give notice, and then, if any injury occur, it would
not be occasioned by the party pulling down, but by
the other party neglecting to take due precaution."
ffj^ V. Harrison (a) goes no further, for the present
poipose, than fVilde v. Minsterley{b)i the declaration
there did not (in the part which alone was demurred to)
>II^e any negligence or other fault in the defendant.
In Walters v. Pfeil (c), Lord Tenterden stiysy that " the
owner of premises adjoining those pulled down must
shore up his own in the inside, and do every thing
proper to be done upon them for their preservation. —
Still the omission does not necessarily defeat the action ;
if the pulling down be irregularly and improperly done,
>nd the injury is produced thereby, the person so acting
omybe liable for it, although the owner of the house de-
itroyed may not have done all that he ought for his own
protection." But here it is not shewn that any thing was
i^ecessary on the part of the plaintiff; the evidence was,
that the wall would have stood if shored up from without.
It is also a material point in the present case, that the
plamtiff's house was ancient. In Palmer v. Fleshees (d)
it is said, that if land be let to A. for building a
hoose, and other land to B. for the same purpose, and
^ erects a house, and then B. digs a cellar in his
(«) 3 17. j. Ad. 871. (6) 8 RoiL Jhr. 564. tiu Trespasi^ I. pi. I.
(«) U»^M. 364. (d) iSid.\ei.
L 1 2 land
[
Houu.
600 CASES IN TRINITY TERM
1834. land whereby the wall of A.*s bouse adjoining falls, no
TT action on the case lies, for each may make the best
opinst advantage of his own : but it is otherwise {sembU\ if it
was an ancient wall or house which fell by such digging.
{LittledaU J. Wilde v. Minsterley (a) is stated as tbie
case of a house newly built.] In Stansell y. Jcttard (6),
Lord Ellenborotigh held, <* that where a man had built
to the extremity of his soil, and had enjoyed his build-
ing above twenty years, upon analogy to the rule as to
lights, &c., he had acquired a right to a support, or as
it were of leaning to his neighbour's soil, so that his
neighbour could not dig so near as to remove the sup-
port, but that it was otherwise of a house, &c. newlj
built." Lord Tenterden apparently inclines to the
same opinion in Wyatt v. Harrison (c). Here the plain-
tiff had such a right to the support of the soil for hi<
house, assuming the case to be analogous to that o
flowing water, for there had been more than a twent;
years' enjoyment. As to the objection that the learn
Judge did not leave it to the jury whether the plainti
house had been properly built ; it would be absurd ii
in every case where a man's house is injured by
improper act of his neighbour, he should be bound
shew that the house was originally built with due p
caution against such accidents; especially where th
building is of an ancient date. A man has the som
right to build on the confines of his land as elsewhere
his neighbour may also excavate on the confines of hi^
land, but must do so with proper care not to endange
what the other has built. [^Littledale J. Suppose th
house was ancient, and insufficiently built, and was,
(a) S RoU. Ahr. 564, tit. Trtspan^ I. pi. I.
(6) MS. 1 Sdv. N. P. 444. 8th ed. (c) SB.f Ad. 875.
''. Pollock and Wightman^ contr^. One material
^^^stion in this case was, whether the plaintifTs' house,
^h^n originally built, was such as it ought to have been,
^^t.li reference to its situation on the confines of another
P^K'son's soil : a further question is, whether it still con*
^nued in the state in which it ought to have been,
^ith reference to the rights of that person on his own
^^ilj at the time when the excavation was made. If it
^as not then in such a state, the taking down of the
Warehouse is no excuse : if it was in a proper statCf
And the removal of the warehouse left it in a situation
^f danger, the plaintiff should have used the pre-
caatioos that became necessary, and might then have
proceeded against the party removing for compensation.
(a) 2i. i M. 364. (6) 1 Oo. $ J. SO.
Lis The
HOLMK*
IN THE Fourth Year of WILLIAM IV. 501
the time of the excavation, ready to fall for want of 18S4.
proper repair. Could the plaintiff sue, being himself in
iault by his neglect ?] Lord EUenborougVs observations asamu
in Walters v. Pfetl{a) furnish one answer to that ques-
tion. And, if it is applied to the present case, the
evidence shews that the plaintiffs' house was weakened
by the pulling down of the defendant's warehouse, which
formerly adjoined it. A further answer to the present
application is, that the question, whether or not the de-
fendant's work had been done in a negligent manner,
^Mras in fact before the jury. It is, in effect, if not in
express terms, raised by the learned Judge's summing
up, and must have been present to his mind, as he took
Par-t in the decision of Brown v. Windsor {b). And the
evidence throughout has a bearing on the same ques-
The finding, therefore, is conclusive, whatever
be the opinion of the Court upon the other points
>
502
I8S4.
DODD
agai$ui
Houciu
CASES IN TRINITY TERM
The law which has been stated respecting euemea
enjoyed for twenty years, and so passing into a rig|h^
does not apply. If a party opens new windows*
takes to himself the use of flowing water, or of a wa;
across land, the person to whose prejudice this is d
has notice of the act or acts, and may at any time i
temipt them. But if a man builds a crazy house at
extremity of his land, the neighbour, whose property
adjoins, is not in a situation to know the nature
consequences of that act. He cannot ascertain how
building is constructed ; nor, if he could, can he int&^tv
fere by action or otherwise. It cannot be contend^^
that he must immediately excavate his own land ^o
prevent the other party from establishing a claim to
have such a house in its vicinity ; but it would be hfla.vd
if he were therefore to forfeit his right of digging Isb
own soil at a future time, when occasion required ic
A person who chooses to build a house at the verge of
his land, must make it fit to bear any fair exercise of
those rights which, notwithstanding the erection of sim<^
1^ house, still belong to the adjoining proprietor. If ^^
will build on an insufficient foundation, he may do ^^
in the centre of his land ; if he does it at the extremS^7'
he must bear the consequence. \^lAMedale J. He d
not then build in such a manner as is proper in
situation.] No authority has been cited which
out the distinction suggested between an ancient
modern house. The dictum of Lord TenUrden
Wyatt V. Harrison (a) only amounts to a quasre.
support the argument on the other side, it most
maintained, that where a man has a house at the
of his land, and the digging of his neighbour's
0
(o) 3 ^. j- Ad. 875.
^1ie
IN THB Fourth Year of WILLIAM IV.
tlie proximate cause of that house falling \a% whatever
may bave been its previous condition, the neighbour is
liable. No case bears out that proposition. XJLitile^
dale J. Suppose the house to have been substantially
bail^ to have stood thirty or forty years, and to have
been kept in proper repair : do you say that if the de*
feodanty by excavatmg his adjacent ground, let down
that house, though without actual negligence on his
part, an action would not lie against him ?] It would
not, if there had been no negligence in the defendant*
It is difficult to say how, in such a case, the mischief
could occur without some actual negligence ; but at all
events it cannot be contended that a party has a right
to be guaranteed against all consequences of the use
which his neighbour may make of his own land* The
question here is, whether the state of the plaintiffs*
premises was not such that damage ensued from what
was in itself a legal act The only ground upon which
"^ fiict of the house being ancient could affect this case^
*^ld be (as it is put by Lord Tenierden in Wyait v*
S^frison (fl), ) that the " circumstance of antiquity
'^^ht imply the consent of the adjoining proprietor, at
^ former time, to the erection of a building in that situ*
^^•^ Nothing but that supposed consent, in deroga-
^^ of his own right, could preclude him from using
^ soil as he thought proper to the very extremity; and
^ere the facts nq;ative such consent, for the defendants
bad a warehouse at the extremity of their land, adjoin-
•
^g the plaintiffi* house, and, as far as could be known^
built at the same time. The plaintiffs therefore have no
^ht to put the case in any other way than as if both the
(a) 3B.4; Jd.S75.
SOS
1834.
Domm
mgoitui
HOLMB.
LI 4
house
604 CASES IN TRINITY TERM
L8S4. house and warehouse had been built reoent]y> and die
""^^ house had been as strongly constructed as it ought to
agahut have been, to stand in that situation. Upon the whoU^
Holms.
then, the question raised is the same as that m
Wyatt V. Harrison (a). No actual n^Iect can be al-
leged, except that the defendants did not shore up the
plaintiffs' house ; and Peyton v. TTie Mayor of Lour
don (6) shews that that was not necessary.
Lord Denmam C. J. The case, as presented to the
Court, involves some curious points, which, however, it
is not necessary to decide. The declaration charges
that the plaintifi were possessed of a house, and HkwX
the defendants so negligently and carelessly dug tbeit
foundations in the land next adjoining the landonwhm^
the said house was built, that the walls thereof sank
gave way. The question is, if those allegations
proved, and if it was properly left to the jury whetk=30
they were or were not proved. The real point in
case was, the cause of the damage sustained by
plaintiffs. It is impossible not to see that the questii
what that cause was, involves the consideration of
state in which the plaintiffs' house was at the time ^
the act done by the defendants. Upon that subjec^=^ ^ ^
great deal of evidence was given, and, no doubt, p'
perly impressed upon the jury ; and I think it was si
stantially left to them in the charge of the lean^'^
Judge, whether or not the result complained of
caused by the negligent act of the defendants. It bel
so left to them, I think, upon the balance of
no other result could have been expected than the ^^^^T"
(a) SB.iAtU 871. {b) 9 B. i C. 725.
Holms.
IK THE Fourth Year of WILLIAM IV. 505
diet they gave; the damage having occurred so soon ISSif*
after the act complained of. A man has no riffht to
accelerate the &11 of his neighbour's house. Without, as^anut
therefore^ entering into the general question of law as to
the right of a party building on the edge of his own
toil, or the question whether twenty years' occupation is
an essential part of such right, on which I give no
opinion, I think the question in this case was fairly left
to the jury, and the verdict a proper one.
LtiTLEDALE J. I think that the plaintifis' house,
-^viog stood more than twenty years, might be con*
dcred as an ancient house. What difference that might
^b under other circumstances, it is unnecessary now
* ny: the plaintiffs had at all events acquired certain
sits; and the compliant in this action is, that the de-
^dants, by their negligence, occasioned a loss to the
itbtifis, which was a prejudice to those rights. The
a.med Judge appears, by his report, to have put the
Be to the jury in language like that used by this Court
their judgment in Wyatt v. Harrison (a). I do not
id that he left it prominently as a question, what was
estate of the building; but that must have been a
sitter submitted to them; for, in enquiring whether
le injury was owing to the neglect of the defendants,
le state of the premises must have been a part of the
consideration. I am of opinion that there is no ground
>r a new trial.
Taunton J. The question in the cause was merely
»ne of feet, and I cannot see in what respect the jury
(a) 3^. t Ad, S7l.
have
Hoxjcb
506 CASES IN TRINITY TERM
1834* have drawn a wrong conclusion. In every coont of the
declaration it is stated that the defendants did the Mt
ufomM complained of negligently^ carelessly, and unskiUuUj,
and that by reason thereof, that is, of such negligent and
improper conduct, the damage was occasimied. A veij
long enquiry was gone into at the trial, how &r tin
defendants had acted negligently or cautiously, upon
whicn the jury have formed their conclusion ; and tky
must be taken to have decided, according to the sv»>
ments in the declaration, not only that there was n^
ligence in the defendants, but that, by reason of rack
n^ligence, the damage accrued. It was said that tk
house, if undisturbed, might not have stood six montb;
but if that was so, still the defendants had no right t»
accelerate its fall : six months' enjoyment was of bom
value, and the defendants had no right to deprive tk
plaintiffi even of that short-lived existence of their dweB-
iog-house. If the building had fallen down merdf in
consequence of its infirm condition, that would not hav*
been a damage by the act of the defendants ; but the
jury have found otherwise, and I think the evideooe
supports their finding. As to the summing up^ the
learned Judge has stated it briefly in his report, aou
may not recollect every observation he made, but, coo*
sidering the length of time occupied by the causC) aod
the quantity of evidence gone into, it is impossible^
even if the Judge had been silent on the point, that tbo
jury should have omitted to consider whether or not the
act of the defendants was done by them n^ligently*
and, without looking narrowly, and, as Lord KefO/^
used to say, *^ with eagle's eyes," at the words used ^J
the learned Judge, I think we are justified in say^
that the minds of the jury were sufficiently directed ^
rBM Fourth Year of WILLIAM IV. 507
icm how far the damage complained of arose 18S4*
improper act of the defendants.
[AMS J. I am of the same opinion, and I think
ir from the learned Judge's report, that the
of the jury was drawn to that which was the
ect of enquiry. Much evidence was given to
it the iiuury was occasioned by the feulty state
Dse, and not by the n^ligent proceeding of the
ts; that question must have been fully before
and there was nothing in the summing up to
f it from their notice. The bad condition of
e would only affect the amount of damages. If
ue that the premises could have stood only six
the plaintiffs still had a cause of action against
bo accelerated its fall : the state of the house
ender more care necessary on the part of the
Its not to hasten its dissolution. There was
t of an actual neglect in them ; and, upon the
there is reason to think that the jury drew the
inference.
Rule discharged*
Dooa
HOLMB.
508 CASES IN TRINITY TERM
18S4.
Saturday, ByWATER aSaitlSt RiCHARDSON.
May 8401. ^
Plaintiff bought /^ASE. The declaration stated that plaintiff al
m horee, war- Vx
ranted sound. Special instance, &c. bargained with defendii
tract, at a re- buy of him a horse for 40/., and defendant, by fii
^timeof warranting the said horse to be sound, sold
^fiTed''"* ^^ plaintiff for the said sum, which plaintiff pai^
the wall of the fendant, whereas the horse at the time, &c. wm
repository, hay- ^
ing certain souud, and hath SO continued, &c., and defendac
rules painted
upon it. one of means of the premises falsely and fraudulently dea
which was, thst , , . .^
a warranty of the plaintiff ou the sale of the said horse, and the
given, should became useless to plaintiff, and he was put to ezp
tmtwelve on ^^« There were other counts, one of which stated
2eiae.*2h!^n plaintiff, relying, &c resold the horse on a like
Resale should ranty, and was sued thereupon by the purchaser;
plete, and the that defendant, in order to induce the now plaint!
seller's respon-
sibility ter- resist that action, and not take back the horse, fi
a notice, and and deceitfully represented to plaintiff that the I
tifioue, of un. ^^ souud, whereby he was induced to defend the ac
!riven itTSe *^ ^"^ afterwards, on discovering the falsehood of de(
TT^rales were *"'*^ representation, was obliged to pay 90/. to
"°f *^***^"*"*^ if^e proceedings stayed, &c. Plea, not guilty.
Uie time of this At the trial before Bolland B., at the Lam
sale and war-
ranty. The Summer assizes, 1833, the plaintiff proved that
unsound, but horse was sold to him by the defendant, with a wr
!mmade*tm warranty of soundness, in April \SS2; that hen
after twelve on
the following day. The unsoundness was of a nature likely not to be immediilc]
covered ; some eridence w<i8 given to shew that the defendant knew of it ; and the
was shewn at the sale under circumstances favourable for concealing it. AfVcr wd
the plaintiff.
Held, that there was sufficient proof of the plaintiff having had notice of the mki
time of the sale, to render them binding on him.
Also, that the rule in question was such as a seller might reasonably impoce* and tK
facu did not shew such fraud or artifice in him as would render the condition inopcm
in THE Fourth Year of WILLIAM IV. 509
him, with a warranty to the same effect, in June 1832, 1834.
and was afterwards sued upon that warranty by the "
purchaser, and obliired to compound the action and agmntt
take back the horse. The unsoundness in question was
what is termed a ** navicular disease," which was stated
to be an inflammation in a joint on the inside of the
looT, and to be of such a nature that it may be alle-
viated by proper treatment, so far as to render a horse
fit ibr gentle work, and to make him appear sound for a
dwrt time, and on soft ground, but can seldom, if ever,
be permanently cured, so as to qualify him for hard
work. The horse was sold to- the plaintiff on the de-
iaidaDt*8 account, at a repository for horses, where the
groand was covered with a soft material. Some evi-.
denoe was given to shew that the defendant must have
known of the unsoundness at the time of the sale. The
defeadant, at the trial, admitted the unsoundness, but
idled upon the following rule, or condition of sale,
which was painted on a board fixed to the wall of the
repository : — -
**A warranty of soundness when given at this re-
pository will remain in force until twelve o'clock at
1K)0D on the day next after the day of sale, when it will
become complete, and the responsibility of the seller
will terminate, unless in the meantime a notice to the
contrary, accompanied by a certificate of a veterinary
sturgeon, be delivered at the office of 'Robert iMcas^ in
&ra/ Charlotte Street^ such certificate to set forth the
^nse, nature, or description of any alleged unsound-
ly^ In this case the seller to have the option of
pn)caring the certificate of a second veterinary surgeon
(which he shall be bound to do within twenty-four
uooTs after the delivery of the purchaser's notice and
certificate
Ill TBI Fourth Year of WILLIAM IV. 511
ootract subject to the conditions in question. The 1884.
egaiation relied upon cannot be taken to apply to sales '
J private contract, but must have been meant to govern agabui
RiOHABMOIf*
ales by auction, to which, and not to private sales,
oodidons of this kind are usually attached. In MeS"
loni V. Aldridge (a), where such rules were held to
ind the purchaser, the sale was by auction, and the
QCtioneer drew the attention of the bidders to the con-
idons of sale. Lord Kenyan there referred to the
nctioe of carriers in posting up bills in their coach-
Sees to limit their responsibility for loss of goods.
htt in that case, the carrier wishing to divest himself of
ihility must fix upon his employers a knowledge of
lie notice intended to have such effect ; Kerr v. WtU
»(&), Rowley v. Home{c); and those cases shew
oat the evidence given here was not sufficient for the
orpose. Secondly, assuming that the notice was sufii-
leat, there was so much fraud in the conduct of the
sDer, that the condition is not binding. In Baglehole
• Walters (eQ, though Lord Ellenborough over^ruled the
octrine of Lord Kenyan in Mellish v. Motteux (^), that
idler ^* with all faults" is bound to inform the buyer
f SQcIi defects as could not, by any attention on his
irt, be discovered, he nevertheless admitted that the
dier would be liable if he used artifice to disguise the
ndts, and prevent their being discovered by the pur-
ser. And Mansfield C. J. lays it down in Schneider
^* Heath (g), that on a sale " with all faults," the vendor
s not protected if he has been guilty of any positive
^Qd in the sale. Kow it is a fraud in law, if a party,
(a) 3 Eip. N. P. C. 271. (6) 6 Jf. ^ & 150.
(c) 3 Bing. 2. {d) Z Camp. 154.
(«) 1 Feake N. P. d 115. (g) Z Camp. 508.
from
CASES IN TRINITY TERM
rom whatever motive, knowingly makes a represent-
ttion whicli is not true» in a manner calculateil toin-
luce another to act upon it, so that lie lliereliy incurt
jamage : FtMUl v. Walter {a). And in Aldridgt t.
MesiumHp), upon a bill of interpleader, (under which the
case of Mesnard v. Aldridge (c) was tried,) Aldrir^t, the
Buctioneer who had sold the horse, applied to the Coort
of Chancery to have costs allowed him, on the groond
that be had been merely a stakeholder : it was, howenr*
intended that Aldridge was not entided to be so a»-
udered, inasmuch as he might have paid OTer tbe
money to the vendor, who, by the conditions of alck
was entitled to it if the horse was not returned in «
given time : but Lord Eidon said, " I have tried actioo%
more than once, in which it appeared clearly, that the
condition to return a horse by a certain day was in-
serted on purpose, because the defect would not appea'
till a day or two after that day. The justice of tke
case is, that the plainuff should have his costs." Lord
EldorCs observation applies to the present case. HeW
the horse was sold with a false representation, and upo^*
terms intended to prevent the buyer from returning tbe
horse, although he should discover the unsouixlDeA
within a reasonable time. If any effect is to be give*
to the condition, it must be applied only to such fanl'*
as a purchaser could have detected by twelve o'dock
on the day afler tbe sale.
Alexander and Wightman cootrl. This was a t*!"
within the rules of the repository, and there was so^*
;ieDt evidence of the plaintiff being cognisant of tbo^
f,)SS>iAd.\\*. (5)6rM.jnD.1l8. (,c) 3 E^ K F.'CS7i-
rule*
iH THE Fourth Year of WILLIAM IV. 51 S
rules. Tlie case is not distinguishable from Mesnard v. 18S4.
jOiridgeia). There it was held that printed conditions ^
BVWATIK
fMuted on the auctioneer's box gave a purchaser suffi- «gmit
cient notice of the conditions of sale ; and the law there
laid down applies to a private sale under the circum- •
stances proved here. The repository rules were, there-
fore^ sufficiently connected in proof with the sale of the
horse. Then as to the nature of the warranty ; the
defendant might have sold the horse without any, in
which case there would, of course, have been no right
of action. So, a)so, he had a right to sell with a war-
ring expiring at the end of twenty-four hours ; after
which time the parties were in the same situation as if
no warranty had been given. A man who buys a horse
QDder such a limited warranty buys at his peril, and
should be the more on his guard.
Lord Denman C. J. I tliink there can be no doubt
that the plaintiff, in this case, was aware of the rules of *
the repository ; and, if so, it is the same as if the seller
had told him by word of mouth that he would war-
nnt the horse against such defects only as might be
pointed out within twenty-four hours. He had a right
to give such a limited warranty, and the plaintiff only
^ to blame if he did not avail himself of the time given
to discover and object to the unsoundness. Perhaps it
may be very prudent in a vendor to make such a stipu-
lation ; at all events the purchaser, in a case like this, is
"Ound by it. I think the principle of Bagiehole v. JVal^
^{b) applies, and that this was a warranty against
^h faults only as the purchaser might discover in
^enty-four hours.
(a) 3 E^. N. p. C. 271. (b) 5 Camp. 154.
Vou I. Mm Little DALE
514
CASES IN TRINITY TERM
1884.
Bywatvk
<igamst
RlCHAKMOV.
LiTTLEDALE J. I am of the same opinion. The
warranty here was as if the vendor had said, ^* Aikei
twenty-four hours I do not warrant" Such a stipolt-
tion is not unreasonable.
Taunton J. and Williams J. concurred.
Defendant's rule absolute. Plaintiff's rule dis-
charged.
Iftmday,
May S6tb.
The statute
55 G' 9. c. 137.
1. 6. which
prohibits any
churchwarden y
orerscer, &c.
from « supply-
ing, for his
own profit* any
goods, mate-
rials, or pro-
visions for the
use of any
workhouse or
otherwise for
the support and
maintenance of
the poor in any
parish, &c. for
which he shall
be appointed,"
does not extend
to a person
doing work on
the workhouse,
and supplying
materials in-
cidentally to
such work ; as
a painter and
gljxier who
mends the win-
dows of the
workhouse,
providing
pnint, glass,
and lead.
Barber against Waite.
T)EBT for penalties under the statute 55 G. 3. c m
s. 6. (a) The declaration stated that <' the defendazii
at, &c., was an 'overseer of the poor of the parish c
Bosicm
(a) Which section enacts, that « No churchwarden or overseer of tl
poor, or other person or persons in whose hands the collection of the nfci
for the relief of the poor, or the providing for, ordering, managemssi
controul or direction of the poor of any parish or parishes, towndiip *
townships, hamlet or hamlets, place or places, sliall or may be plac«
jointly with or independent of such churchwardens and overseers, or sv
of them, under or by virtue of any act or acts of parliament, shall, eitlv*
in his own name, or in the name of any other person or persons, provid
furnish or supply for his or their own profit, any goods, materials •
provisions, for the use of any workhouse or workhouses, or otherwise, *•
the support and maintenance of the poor, in any parish, &c. for which 1
or they shall be appointed as such, during the time which he or thej A^
retain such appointment, nor shall be concerned, directly or indirectly
furnishing or supplying the same, or in any contract or contracts relstitf
thereto, under pain of forfeiting the sum of 100/., with full costs
suit, to any person or persons who shall sue for the same by action
debt, or on the case, in any of his Majesty's courts of recocd at Wea
minster ....
" Provided nevertheless, that if it shall happen tn any parish, ie
that a person or persons competent and willing to undertake the supply
any of the articles or things required for such workhouse or workhouse
or for the use of tlic poor there, cannot be found witliin a convenie:
distaw
IN THE Fourth Year op WILLIAM IV.
515
]f€Jtsi(mj in the county of Lincoln^ appointed in that be-
beilf, and that he, the said defendant, so being such
overseer, did, during the time he retained such appoint-
ment, to wit, on, &C. at, &c., in his own name provide,
faT*i)ish, and supply, for his own profit, certain goods
and materials, to wit, 1000 squares of glass, 500 feet of
lead pipe, 5 cwt* of paint, 50 bushels of whitening, and
SO pump boxes, for the use of the workhouse of and in
the said parish for which he, the said defendant, was
appomted such overseer, he, the said defendant, not
then having obtained any certificate from any justice of
the peace, permitting and suffering him, the said de-
fendant, so to do according to the statute in such case
made and provided, contrary to the form of the statute
in such case, &&, whereby and by force of the said
statute the said defendant forfeited," &c. The declar-
ation contained nine other counts, some stating the
*<>pply to have been in the name of one N. £., and
otiiers adapting the statement in various other ways to
the section declared upon. Plea, the general issue. At
the trial before Park J., at the Lincolnshire Summer
18S4.
Barbik
Ware.
^stance therefrom, other than and except some or one of the church-
wardens and overseers of the poor, or other person or persons having the
^^*^*lcriiig, managing, controul or direction of the poor, in such parish, &c.,
^wn and in every such case it shall and may be lavrful to and for any
two or more neighbouring justices of the peace (proof thereof having
^^^^ first duly made before them upon oath, and which oath such justices
or any one of them are and is hereby authorised and empowered to
sanuiusta>) by certificate under their hands and seals, to permit and
*uSer any one or more of such churchwardens and overseers or other
**^ person or persons as aforesaid, to contract and agree for the furnish-
^ and supplying of any articles or things which may be required for
*och workhouse or workhouses, or otherwise, for the use of the poor of
*^ parish, &c during the time which he or they may retain such ap-
pointment ; any thing herein contained to the contrary notwithstanding."
M m 2 assizes
Waiw.
516 CASES IN TRINITY TERM
1834. assizes 1833, it appeared that the defendant, a plumber,
painter, and glazier, was an overseer of the parish of
a^anui BostoTij and that, while holding that office, he repaired
the windows of the workhouse. In so doing, he sap-
plied, among other things, the materials mentioned in
the declaration; for which, and for the labour, he was
paid by the parish. It was contended, on behalf of the
defendant, that the furnishing of materials for the repair
of the workhouse was not a supplying of *^ goods,
materials, or provisions for the use of any workhouse
or otherwise for the support and maintenance of the
poor," within the meaning of the statute. A verdict
was found for the plaintiff, but leave given to move to
enter a verdict for the defendant. Sir James Scarkitj
in Michaelmas term 1833, moved accordingly, and citedL
Proctor V. Manwaring {a), A rule nisi having beei^
granted.
Hill and Whitehurst now shewed cause. This wa.^
a transaction within the mischief of the act. A tmste*^
ought not to be a buyer from, or seller to^ tlia^
trust estate: here the defendant was in the situatio
of a trustee, and, consequently, was both buyer an
seller. If an overseer may not sell for the use c^*
the poor provisions or clothing, which have a know
market price, much less ought he to furnish material
for the purpose of a repair done by himself, whei
more must be left; at the discretion of the tradesman^*^
The plaintiff's case is consistent with a literal construe-^
tion of the statute. It must be contended, on the other^^
side, that the words ** for the use of the workhouse**
(a) ZB. i A. 145.
must
IN THE Fourth Year of WILLIAM IV, 517
must mean *^ for the use of the poor in such house/' ISS^.
It is true^ the words which follow are " for the support b""""
Rod mainteoance of the poor ;" but it cannot be denied aganui
, Waiti*
tuat that which is necessary to keep the house comfort-
Rble in which they reside is for their support and
maintenance. In Skinner v. Buckee {a\ an action on
this statute, the overseer had supplied coals, and it was
not contended that this was not a supply of goods for
the support and maintenance of the poor within the
set ; but the less obvious objection was taken, that the
supply was not for a profit. [LiUkdale J. Here the
supply was of materials for the purpose of carrying on a
W'ork.] Materials are mentioned in the act, as well as
goods and provisions, and each word must have a dis-
tinct meaning. The proviso in sect. 6. speaks of per-
sons undertaking the supply of ^' any of the articles or
things required for such workhouse or workhouses, or
^V" the use of the poor there ;" and it is clear that the
I^Sisl^ure did not intend to describe different things in
tbe proviso and in the enacting part of the section : it is
^^1^0 evident that the matters *^ required for such work-
■^oose'' are spoken of as something distinct from those
r^cquired " for the use of the poor there." In West v.
^^^idrews (6) the overseer was held liable for selling live
sheep for the use of the poor in the workhouse; yet
t^at was not an immediate supply to the poor, nor of
^irticles in a state to be used by them. [IMtledale J. It
Was a supply of provisions.] Not while the animals
Were alive. [Lord Denman C. J. Must they have been
toasted before they could be called provisions ?] That
case shews that the act is to receive an extended rather
(a) SB. ^ C, 6. (h) 5B, iA, 328.
M m 3 than
IN THE Fourth Year or WILLIAM IV. 519
jixiges o^ but respecting which they could not, from I8S4.
their situation as paupers, exercise a free opinion, or ^
appeal to an authority independent of the officers them- agqmk
Waitc*
selves. The clause was not intended to protect the
parishioners. If the words, *^ for the use of any work-
house,'' mean for the use of the building, it might apply
though there were no poor in the house ; and if those
words have reference to the building merely, an overseer
might supply goods to the poor within it; for the sub-
sequent part of the clause, ** or otherwise for the support
ind maintenance of the poor in any parish or parishes,
township or townships," &c. refers to the poor of the
parish at large, distinguishing them from the workhouse
poor. But it is evident both classes of poor were meant,
SQd the words, *^ for the use of any workhouse,'' refe^
<o the poor therein. [^LiUledale J. Suppose the over-
seer were a tailor or shoemaker ; if he furnished clothes
^^ shoes, it might be said that they came under the
^^^acription of ** goods." But suppose he found nothing
^tit the work, and the necessary things for workings
^oiild that be within the act ? The clause does, indeed,
'Mention materials.] That may mean the materials
^*^Qted for setting the poor on work. But if the over-
*^«r were a tailor, and merely mended the clothes, it
^^uld not be argued that the materials he used for that
purpose came within the meaning of the act.
Xiord Denscan C. J. I am of opinion that this ob-
J^cUon is properly taken. The question is, whether the
^^rnishing of such goods as are in question here, by a
Person who is overseer at the time, be a supply within
^e meaning of the statute. I think the legislature, in
this clause, considered the supply of goods, ^^ for the
M m 4 use
WjJXM.
iH THB Fourth Year of WILLIAM IV. 521
Taunton J. The object of the statute was to pre- 1834.
Tent the jobbing of parish officers among themselves :
it IS to be r^etted that this species of case is not agamsi
within the words ; but, for the reasons which have been
gireo, I thmk it is not The language of the Judges,
which has been referred to, in the second case of West
▼. AndrevDs (a), only decides this, that the sixth section
of 55 G. S. c. 1S7. not being limited to churchwardens
and overseers, but extending to any <^ other persons in
whose hands the collection of the rates for the relief of
the poor, or the providing for" and ordering of the
poor, might be placed, a guardian of the poor appointed
Qoder 22 G. 3. c. 83. was liable, as such *^ other per-
md/' to the penalties of the subsequent act The argu-
neat of Bayley J. tends to shew that churchwardens
ttd overseers could not have been intended to stand in
* different degree of responsibility, with reference to this
wter act, from guardians created under the previous
We. It is not a general decision upon the construction
^ the act now in question.
AViLLiAMS J. To hold that the sixth section of
^S G. 3. c, 137. was applicable here, would be extend-
^g the operation of a statute in a penal case. The
proviso which has been relied upon on behalf of the
plabtiff enables overseers in certain cases ^^ to contract
and agree for the furnishing and supplying of any
articles or things which may be required for such work-
house or workhouses, or otherwise, for the use of the
poor of such parish, when a person competent to supply
them cannot be found within a convenient distance."
(a) I B. i C. 82, 83.
How
IN THE Fourth Year of WILLIAM IV. 52S
BmOey fiiir day. The plaintiff asked whether there 18Si.
was room for his hotse, upon which the ostler of the "I
defiendant took the horse out of the gig, and put him agamu
into a stable^ and the plaintiff carried his coat and whip
from the gig into the house, and took some refreshment
there. The osder placed the gig outside of the inn
yard, in a part of the open street, in which the defend-
ant was in die habit of placing the carriages of his
guests on &ir days. The gig was stolen from thence.
The jury, under the direction of the learned Judge,
fbood a verdict for the plaintiff, leave being reserved to
nofe to enter a nonsuit. Jervis accordingly obtained a
nde in Michaelmas term last.
K r. Bickards now shewed cause. The gig having
been delivered to the ostler was l^ally in the custody
of the defendant, who was the osder's master. As
^ost the defendant, the place where the ostler put the
Pg must be taken to be part of the inn, though without
^ curtilage. In Caly^s case (a) it is held, that if the
SOcst order the ostler to put his horse to pasture, the
•
^lUiholder shall not be answerable for the horse being
'tolen from the pasture ; but if the innholder of his own
''ead put the horse to grass, then he shall answer for
'um if he be stolen. The reason is, that the pasture
becomes a part of the inn, as against the innkeeper.
1*fae case is quoted to establish the same distinction in
^^eO. Abr. Action sur Case^ F. pL 3, 4. (6) [Littledale J.
1*bere he is liable as a bailee, independently of his cha-
'^■cter of an innkeeper.] He receives as an innkeeper.
1^ modem cases are to be explained by this dbtinc-
lion; the question alwaysJbeing, whether the defendant
(o) 8 lUp, 32 a. (h) Vol. i. pp. 3, 4.
have
J
TYLxm.
524 CASES IN TRINITY TERM
1 834. have custody of the property in the character of an imi-
— "^ keeper: Burgess v. Clements {a), Fammorth ▼. P«i»
JONSS
offxinu wood {b)j Bichmond v. Smith {c). There can be no doob^
upon the facts of this case, that the defendant, by his
servant, took charge of the gig in the character of ao
innkeeper : the guest could not be expected to know th
local limits of the inn,
Jervis in support of the rule. The street cannot hi
considered as a part of the inn ; and if the defendot
were held liable for a loss occurring there, it might he
said that he was liable for goods taken firom the pocbt
of his guest in the open street. To consider the sMt
as part of the inn, for the custody of carriages then^
would be giving a legal sanction to a nuisance. In thi
cases cited, the innkeeper has been held liable ody
where the property was under his control, wheret^ ■
the'present case, the parties must be held to have agreed
to place the gig out of the inn, and therefore out of the
defendant's protection. The inconveniences of constni-
ing the liability so extensively as is contended for oa
the other side would be very great.
Lord Denman C. J. The inconveniences of eiibtf
construction are numerous, and might be strouglypet*
And this case certainly comes very near to the disUD* i
guishing line. But, upon the best consideration} *^
seems to me that this gig was taken while under die
protection of the innkeeper. He took in the horse; he
put the guest into a room in the house ; and he placed
the gig where the carriages of his other guests wett
(a) 4 M, ^ S, 306. and note to Farnwarth ▼. Packwood, 1 Stark. If> ^'
a *J51.
(6) 1 Stark, N. P. C. 249. (c) SB. ^ C.9,
placed
s
for the horse. In the common course of things^
keeper is liable for the loss of goods placed under
if in an action upon the case. This was a fair
> it 18 reasonable to suppose that the part of the
s usually occupied by carriages was full. On
lintiff enquiring whether there was room^ the
int finds room for the horse: it is not likely
e parties understood that the gig was to be at
xj of any one who [came by. The place where
t is the place commonly used for the purpose on
"8 by the defendant: it must, therefore, as against
indant in this case^ be taken to be part of the
t is suggested, that this use of the open street is
nee; that may be so, but cannot be insisted
; between these parties.
in'ON J. It does not appear that the gig was
his place at all at the request or instance of the
*: the place is therefore a part of the inn ; for
mdant, by his conduct, treats it as such. If he
to protect himself, he should have told the plain-
he had no room in his yard, and that he would
gig in the street, but could not be answerable
'
586
CASES IN TRINITY TERM
18S4.
Jovu
agahut
Ttluu
Williams J. I am of the same opini(m. It is
that some qaesdon might arise, whether phunng tli
in the open street might not create a public impedii
Bat the defendant cannot set that up as between hi
and the phuntiff. The plaintiff could not but coc
that the gig was placed in the defendant's custodj
found the defendant acting as an innkeeper, an
latter made no complaint of want of room. No <
this case goes near to the limit of the law ; but I
sider the defendant answerable.
Rule discha
•J/«y S6tb.
Smith, Assignee of Cope, a Bankrupt, agi
The Birmingham and Staffordshirb
Light Company.
a corporation
It liable in tort
for the tortious
act of its agent,
though not
appointed by
seal, if such act
be an ordinary
aenrioe, such as
a distress pro-
fessedly made
under a statute,
for a debt due
to the corpora-
tion ; and a
jury may infer
the agency
from an sdop-
tion of tlic act
by the corpora-
tion, as from
their having
received the
proceeds of the
soiaure.
nrROVER for certain articles of furniture, lati
property of the bankrupt, converted by the dd
ants after the bankruptcy. On the trial before
dal C. J., at the Summer assizes for Stafford 18S
appeared that the articles had been distrained for n
due to the company for gas supplied to the banl
before his bankruptcy. The seizure was made,
the fiat in the bankruptcy, by a person of the nai
LMmley. The company is incorporated by stat 6
c. Ixxix. (local and personal, public) ; and IjuMki
authorized to distrain, by warrant under the han
two justices, according to the provisions of the i
ninth section (a) of that act* On the part of the |
(a) Which enacts, That in case any person or persons wbosb
tract with the said company, or agree to take, or sliall use or ei
r THE Fourth Year op WILLIAM IV. 527
ideDce was given to shew that Lundey had autho- 1834.
•om the company to seize; it being, however,
1 . Smith
led that there was no authority under seal. Evi- agamtt
Tbe
was also given, on the part of the plaintiff, to Bibmiwohaic
that the proceeds of the sale had been received ** Compwif.
bmdey by the company. The Lord Chief Justice
to the jury to say, whether, if they believed that
9ceeds had come to the hands of the company, the
ny had adopted Lumlei/s act, directing them, if
msidered that the company had so adopted it^ to
verdict for the plaintiff. The jury found a ver-
r the plaintiff, but leave was reserved to move to
a nonsuit, or for a new trial. A rule having
Obtained accordingly,
if (with whom was F. V. Lee) now shewed cause,
iry believed that the company had adopted the
Lumley in seizing and selling, and had received
oceeds. The only question is, whether it was
uy, in order to make the company liable, that the
r the said gas, either in their private dwellings, shops, grounds,
les, or otherwise, shall refuse or neglect, for the space of twenty-
aAer demand, to pay the sum or sums of money then due for
e to the said company, according to the terms and stipulations
said company, it shall be lawful for the said company, or their
superintendent, or any person or persons acting by or under their
', by wammt under the hand and seal of any two of the justices
iace for the county wherein the offence shall arise (which war-
1 justice is hereby empowered to grant, upon confession, or upon
such demand by the oath of one credible witness), to levy the
I or sums of money in respect whereof such refusal or neglect
>pen, by distress and sale of the goods and chattels of the person
IS so neglecting or refusing to pay the same, rendering the over-
any) to such person or persons refusing or neglecting, afVer the
r charges of making such distress and sale shall be first de-
appoint-
598 CASES IN TRINITY TERM
1834. appointment of LumUy should be under seal i
then stopped by the Court
Smcth ^^ •^
BiEMUfOBAM jR. V. Richards and Whateley in support of the nd^
^*°^^^' No adoption of the acts of Lumley can render Horn
company liable as wrongdoers, unless he was con-
stituted their agent in the only way by which the agnl
of a corporation can be created, and that is by deed «
Yarborough v. The Bafik of England (a) did not dedd«
this question ; for there the motion was in arrest i^
judgment, and the Court held that, after verdict^ m
proper appointment (under seal, if necessary) mustiM
presumed; and Tilson v. The Warwick Gas Light Om^
pany {h) was decided upon a similar principle^ the point
being raised upon general demurrer, and the want cif
an appointment under seal not being expressly pot
upon the record. But in Horn v. luf (c) it was heH
that a defendant could not justify, in trespass, a si&mt
as servant of a corporation, without shewing, in bisple^
an authority by deed. lii Duncan v. The Proprieion(f ,
the Surrey Canal {d) the objection was taken, but not
decided upon. In The East London Water Works Qw-
pany v. Bailey (e) it was held that a corporation oooU
not be sued upon a contract not under seal [g). The
sixty-ninth section points out in what way the authority
of the justices is to be obtained by the agent of thecoiD'
pany ; but it leaves open the question, how that agent is
to be constituted.
(a) 16 Eati, 6. (6) AB.^C. 962.
(c) 1 Vent. 47. S. C. 2 Keh. 567. 1 Mod. 18.
(d) Z&arlu N. P. C. 50. {e) 4 Bing. 285.
(g) Sec also, as to this point, the argument in DunUcn f* Tki ^*'
pnkU Gat Light Company, 3 £. j- Ad. 125.
Lord
I
1
IN TH« FOUETH YlAR OF WILX.IAM IV. 529
Xord DsNiutf C J. It cannot be said that there 18S4.
r^is DO evidence to go to the jury. Proof of agency
Smitv
^mtj oertainly be required : but how is it made out here ? wgamu
first, by persons acting in a way in which no one ButimcoKAM
woidd act without authority. It iSf indeed, argued as ^^*
ID this, that the authority must be under seal. In Yot'^
imrmt^ y. J^e Bank of England (a), the Court seemed
ratber to think that it was not necessary that an agent
of t corporation should, in all cases, have an appoint-
ment under seal, in order to render the corporation
liiUe in tort for his acts. In Carey v. MatH^ws^ men-
tioDed in Salkdd (b\ it is said that a corporation ag-
grqiate may appoint a bailiff to distrain without deed or
vanrsnt, as well as a cook or butler. Then, in the
preient case, the Lord Chief Justice left it to the jury to
consider, whether the corporation obtained the proceeds
or not; and, if they did, whether it was not reasonable
to presume that Lumley had their authority : and this
without reference- to the 69th section of the act, which
directs that the clerk shall get authority from the jus-
tices, but says nothing of his getting it from the cor-
poration. I am of opinion that the rule must be dis-
darged.
LmxEDALE J. According to the report of the Lord
Chief Justice of the Common Pleas, it appears that
Jjitdof had, in fact, the authority of the corporation.
iWi the question arises, whether it was necessary that
Ais should be given by deed. The statute appears not
^ contemplate such a deed, for it directs that a warrant
shall issue under the hands of two justices of the peace.
(a) 16£>if,6. (6) lSanu\9\.
Vol. L N n This,
IN THi Fourth Year of WILLIAM IV. 581
Williams J. I am of the same opinion. I will 1834.
advert to one case which has not been cited. In Doe '
Smith
£iem. Dean and Chapter of Rochester v. Pierce (a), M^Do* againu
wudd C. B. held, that a verbal notice to quit, given by BuMiNaHAM
tbe steward of the dean and chapter, was sufficient, with- ^^^*
out any other evidence of his authority ; and that the
dean and chapter shewed that they authorized and
adopted the act by bringing the ejectment.
Rule discharged.
{a) 2 Cnmgh, 96.
Doe dem. Oliver against Powell and Pyne. ^)^y'
^ May 27Ui.
pJECTMENT. On the trial before Gumey B., at In defence to
■*-* .an action of
the Monmouth Summer assizes 1833, it appeared ejectment, it
that the lessor of the plaintiff claimed under a sale of the that the parties
premises made to him by the assignees of a bankrupt ^, dLdn^
named Popcj to whom they had been conveyed in 1818, ttSTwh^they
hefore his bankruptcy, by the Tredegar Wharf Company ; ^^^^^ ^
and that the defendants claimed under a conveyance of ^« defendant
himself claims
1824 from the same company. The defendants offered by a conveyance
evidence to shew that, at the time of the conveyance of parties, if the
101A 1 j« 1 1 • latter conrey-
iol8, there was an outstanding legal estate m a trustee ance was sub.
for the company; and that the company, therefore, had tSicTth^de^
no legal estate to convey to Pcpe. The learned Judge Jj" m^^.*"
'ejected the evidence, on the ground that the defendants
<^Qld not impeach the title of the company under whom
^ey claimed. The jury found a verdict for the plain
^K In Michaelmas term last, Ludlorm Serjt obtained
a rule to shew cause why the verdict should not be
^t aside, and a new trial had, or a nonsuit entered,
N n 2 the
592 CASES IN TRINITY TERM
1884. the learned Judge having at the trial gi^m leave to
7* move to enter a nonsuit upon a point which it is not
Dos draoDa
Olttcb. necessary to state here, as the decision of the Court did
FbwBLb not proceed upon it.
Mdtde and IL V. Bkhards now shewed oausei aad.
contended that the evidence rejected was inadmissibk^
for the reason given by the learned Judge at the triaL
Ludbm Seijt and Justice oontrL It is true that th^
defendants could not have been permitted to shew
the company had not a good title in 1824, the time
the conveyance to the defendants ; but it does not follow^
from the company having a good title in 1824, that thegf
had a good title in 1818. The defect may have been
cured in the interval.
Per Curiam {a). The evidence ought to have
admitted. The outstanding term might have been called
in between 1818 and 1824, so that the company
have had a good title at the latter time, and a bad
at the former.
Rule absolute for a new trul.
(«) Lord Denman C. J., LiltUdiUe, Tmnion, and WStiamt J%.
IN THE Fourth Year of WILLIAM IV. 5SS
1834.
HoDGKiNSON against Hodgkinsgn. Df^^^
I^NOWLESf on a former day in this term, moved lijecopyofa
-^-i> capiai d«liverad
for a role to shew cause why the defendant should to m pmj «•-
Kitedy under
S3ot be discharged out of custody, on the following 2 ir. 4. c S9.
^pnound. The defendant was arrested on a capias di- dent, if any
.arected to the sheriff of Middlesex^ and was served with a written ta to
iting, which purported to be a copy of the writ, but JSri^n****
Sji which the direction of the capias appeared to be •* to '*™J* ?I !|^**'
^lie sheriff of MiddesexJ* It was contended that, by f^^^ ^ wriucn
tat MUdUtn.
Season of the letter I in <* Middlesex " being omitted,
€liis was not a copy of the process within the act 3 F^ 4.
^. 39. 5. 4., which requires '* one ^ch copy to be de-
livered to every person upon whom\ such process shall
be executed f and Nicol v. Bqyn (a), Byfieldv^ Street {b\
and Smith v. Crump (c), were cited.
Stephen Serjt. now shewed cause. The objection is
fiivolous, and not to be encouraged. The intention of
^e act was only that a copy, in substance, should be
delivered ; and this is such a copy. ** Middesex** is
only « Middlesex** abbreviated : it is like writing the
^ord " Middx.y* which is constantly done* [Lord Den^
^*«»» C. J. This is a different word.] In Nical v.
^9S/n (a), the variance was, that the copy purported to
^ addressed to the sherifis of London, instead of the
^eiriff, so that the description of the person was varied :
C«) 10 Bmg, 339. See Barksr ▼. IFeedm, 4 Tyr. 860., 1 Cro., M.iR,
^^»» when a writ of capiat was set aside for irregularityi in being directed
^ Uic sberiffi of Middlaex.
C^} I0£ing. 27. (c) 1 Dowl. P. C 519.
N n 3 the
5S^ CASES IN TRINITY TERM
18S4. the Court there declined to go into the question how
' far a literal variance was material, but gave e£kct to the
HODOKIKSOW
ognnu objection because the sense was altered. jUderson J.
there said, that if the objection had been that sheriff
was spelt with only one^^ there might have been ground
for contesting it. And Tindal C. J. said, ** We do not
say that the omission of a single letter will, in every
case, be a conclusive objection.'* [Lord Denman C. J.
In SmUh v. Crump (a), Parke J. said, ^* If we once enter
into the question as to what is material or what is
immaterial in the process, we shall have innumerable
questions of that sort coming before the Court'' A
great deal of time would be lost, if copies not quite per-
fect were to be allowed, and the question always enter-*
tained, whether or not the copy came near enough to
the original.] The observation of Parke J. must not.
be carried to the utmost possible extent; if it were,
every copy must be a fac-simile : not even an abbrevi-*
ation could be used.
Knaooles contra. If abbreviations are to be used, thejT"
must, at least, be such as are commonly known ; this i^
not such, and is evidently not meant for an abbreviation^-^
As to the observation of Alderson J., in Ntcol v. Bqyn{b)^
the omission of any in ^^ sheriff*' would alter neither th
sense nor the sound ; but where either of these is al
tered, the objection of variance applies. In Bjifield v..
Street (c), Tindal C. J. said, " This is a statutory regu^--
lation, which renders an arrest incomplete, unless a copy^^
of the writ be delivered to the defendant Here, that::^
which was delivered is not a copy of the writ" That: —
(a) 1 DoW. P. C 5)9. (A) 10 Bms* 541. (c) iO Bmg. 28.
appli
IN THE FouiiTH Year OP WILLIAM IV, 585
pplies to the present case. [Lord Denman C. J. 18S4.
appose the word Middlesex had been wrongly spelt in
UODGKINfOir.
. <• . I HoDOKinioir
tJie capiaa and rightly in the copy.] The writ might be ^^ ogojiur
^jnended. It is so laid down by Tindal C. J. in Byfield
^m Street {a). [TaurUon J. The Judges have come to a
s^csolation since the Uniformity of Process Act, that such
amendments shall not be allowed (6)].
Lord Denman C J. I do not say that the omission
of a single letter in the copy must in all cases be a
variance within the act, but I think the rule, as stated
by Mr, Knaaiesj is as good a one as can be laid down
upon the subject, namely, that it is a variance if either
the sound or the sense be altered. Now, if that be so,
the objection is well taken in this case, for the sound is
altered. It is not a very agreeable or dignified employ-
ment for the Court to be examining into such trifling
defects ; but if the law has established certain regulations
to be observed in these proceedings, I know no other
^urse we can adopt, than to say, that if a party will not
^^ail himself of the rules laid down for his guidance, he
Q^ust take the consequence of his omission.
Littledale J. The change here certainly alters the
^Und. I am sorry we are obliged to decide against the
Pontiff on this objection ; but the statute has required
^ ^^py to be delivered, and this is not one.
Xaunton J. I am of the same opinion. It is said
^hat the omission of a single letter ought not to be con-
(«) lOPff^.88.
(6) See Lakin and Others. Executors of Watson ▼. Massigf 4 Tyr, Sep.
^9* Ad exception is allowed, where the demand would otherwise be
^^^rred bj the statute of limitations. S. C.
N n 4 sidered
I
586 CASES IN TRINITY TERM
1884. sidered a ▼ariance; bot if so, it might be contended tfan
" a second, and third, and fourth, might be taken awqri
agamM till the whole of the ** cauda equina" was gone.
HoiMIKllltOV.
Williams J. had left the coun.
Roleabioiala
ITednesday, CAROLINE BrIDGES OgoinSl RiCHARD
Jfoy 88tb. n
Blanchard.
hLai'1?which TRESPASS for breaking plaintiffs close and throwing
he WM making down part of her wall. The defendant pleaded the
alteratioiis, ad- ^ ' *
joiniDg the general issue, and further (among other pleas) that de-
grouDOi of B»f
hiswifewroteto fendant was possessed of a dwelling-house contiguous to
<«BeforaUie the Said close^ in which dwelling-house there was aod
painuf put on *^*'' ^^ ^V^^ ought to be a window through which the
^wUhto^' light and air ought to have entered the said dwelling-
plMt a window house, and because plaintiiF had wronfffully erected tbc
in it, and it ' ' .
can be finished said wall in the said close so as to darken the said win-
more neatly
with your per-
roisftion to pbce the necesiary ladder, &c. : the motive for doing this is, that I thw
gain a more cheerful view." B* answered (by letter), *< You are welcome to place a laddtf
in my grounds near your house, and I shall be obliged if you wUl caution the worki>^
not to injure the shrubs." ji. placed the ladder, and nuule a window in the part of ^
house to which the ladder was applied, overlooking the premises of B*, who wts ahu^
from home at the time. B» afterwards objected to the window, and wnAe as follows '.-^
** When you applied to me for permission to place a ladder in my grounds, being wtthfl^^
a friend to advise with, and even without knowing eaactly the situation in which y€0^
window would be placed, I unfortunately complied with your request, without consults^
my own comfort;"
Held, that the first two letters did not shew a consent by B. that ^. should opc0 ^
window overlooking ^.*8 grounds ; that the third letter^ being written after the whole traCP^
action, could not be resorted to in proof of such consent, and, even if available, did f^
prove the consent relied upon ; and, consequently, that ji, could not justify throwing do^^
a wall which B* had built on her own soil after the completion of the window, obatnidi^W
the access of light and air to it.
QjamvUt whether a licence to the owner of a house to enjoy an unobstructed aceesa of li^^
and air to his new window from over his neighbour's premises may be given by parol, ^
U an easement, to be granted under seal ?
Supposing that sudi licence may be given by parol, qusre, whether it ia coantermaia^
able?
BLAJfCHAia.
r THS FoujiTH Yeak of WILLIAM IV. 537
d prevent the Ugbt and air from coming through 1834.
ne^ &C. to defendant's annoyance and damage* — — —
mt entered the close, and, to a necessary degree, _ agaiiut
i down and prostrated the wall to abate the nui-
ind in so doing, &c. Replication, de injurid, and
signment of excess. Issues to the country. On
d before AUerson J. at the Hampshire Summer
1883, it appeared that the defendant, in 1832,
ade a new window overlooking the plaintiflfs
», under an alleged licence from the plaintiff;
at the plaintiff, in the same year, objected to the
r, and requested the defendant to remove it, which
refused, the plaintiff built a wall on her own
, excluding light and air from the window. The
mt threw down part of the wall to remove the
tion, whereupon this action was brought. In
»f the alleged licence, the two following letters
n in ; the first written by the wife of the de&nd-
lo at that time was altering his premises, to the
% whose mother was lately dead; the second,
le plaintiff in reply.
y dear Madam, — I beg to apologise for tres-
; on your attention just now, but before the last
paint is put on the side wall we wish to place a
r in it; and our workmen say it can be finished
re neatly, with your permission to place the
;ry ladder, &c.; the motive for doing this is,
should gain a little more cheerful view of the
»n, and passing objects, which to me will be a
*e, being so much a prisoner to the house from
1 delicate state of health. I sincerely hope you
iovering the severe shock your spirits must have
received :
iM THE Fourth Year of WILLIAM IV. 5S9
and bad been countermanded : and he therefore directed 1 8d4«
a Terdict for the plainti£^ giving leave to move to enter
Baiooif
iDOOsuit In MichadmcLS term, 1833, a rule nisi was agabiu
obtained for entering a nonsuit, or for a new trial, on
tbe ground that the question of licence arising upon the
letters and the &ct5 proved in the case, ought to have
been left to the jury.
Dampier and Smirke now shewed cause. The question
of licence^ arising on the construction of the letters, was
entirely for the judge; and the defendant's counsel at
tk trial acquiesced in his deciding it, on the under-
ttandiog that leave should be given to move for a
ooiiamt: there is no ground, therefore, for a new trial.
is to the effect of the letters, a licence, in a matter of
10 much importance to the property of the person
graodng it, ought to be in very clear terms. The first
letter contains no request to be allowed to make or
continue a window; the request is of permission to
plaoe a ladder. It is said that the letter announces
in intention to make a window, but that is not suffi-
cient The mere notice of such an intention does not
Taise an implied assent to the thing proposed, and no
SQch assent is expressed here by the plaintiff. Suppose
tbe defendant had requested the loan of a ladder for the
purpose of making a window; or the assistance of a ser-
vant of the plaintiff in carrying a ladder for that pur-
pose, and the plaintiff had assented ; would that have
been a licence to make a window? The letter containing
the request, does not say in what side-wall the window
u to be opened, or in what part, or of what size and de-
scription it is to be. To establish a licence, it should
have appeared that leave was given to make a window
in
540 CASES IN TRINITY TERM
1834. in the very place in which it was made. It cannot bt
that the plaintiff saw and acquiesced in what was
BLAMCHASBb
agaimsi done^ for she was not living at home at the time. Be>
sideSf no licence was necessary for merely opening a
window in the defendant's own wall ; thon^ a lioeaoi
was necessary to secure the enjoyment of it, unobstraMi
from the plaintiff's premises ; but this was not adoi
The plaintiff's letter of the 28d of Fcbruasy csnapt
explain the licence which was given and perfected bmdj
months before. If a licence can be explained at sacks ]
distance of time, at what period is its import to beooM J
finally settled ? The letter is only the plaintiff's eoa-
struction of a former writing^ which it prop^y bskogi '
to the Court to construe.
But assummg that the plaintiff did contemplate ^fif ]
a licence, it ought to have been granted under mL
The efiect of the supposed licence is» that there sbsD hi
free access of light and air to the window from ofer thi
grantor's premises. Now» air is precisely similsr ta
water, whether we consider the nature of the propo^
in them, the kind of use made of them, or the oiodeof
acquiring rights to them, both bemg originally comnoa
to all.' And the right to have free access of water fioa
over a neighbour's premises lies in grant, and can osij
pass by deed ; Fetitiman v. SmM (a), Hewlins v. SUf'
pam (i), Liggins v. Lige (c), Wrigki v. Hawari(i^
Such access of water, or of light and air, is an cue-
ment, and the right to it used to be pleaded by wsyof
prescription, although that form is unnecessary, aod
not used in these pleas. Now, prescription is ooly di
things that lie in grant. Merely to have windows io
W 4 Eim^ 107. {b) 5B.fa22l.
ic) 7 Jfmg. €82. (<f) 1 iSte. j- A«. laa t Mt p. SOS.
one's
i
IN THS TOURTH YSAR OF WILLIAM IV. Ml
QD^s own bottse requires no grant ; but the unobstructed 1854.
enjoyment of such windows, looking over a neighboui^s
praniaes, is an easement in fais land by wbieh he himsdf ^igokui
Is ^prerenfeed from enjoyii^ it as fully as he otherwise
1ii|^t; and sudi easements have often been considered
to be the subject of grant; Bland v. Moseley^ cited in
Mdrefs case (a), Lemis ▼• Price {b\ Darwin v. UjOon (c),
Bmhr w. Rickardsm (d), Canham r. Fist {e\ per Bay^
% J* The same learned Judges in Hewlins v. iSS&fp-
fam {g\ dtes the definition of an easement from Termes
it b Ley^ where it is said to be a privilege that one
aeighbour hath of another by charter or prescription
vithoot profit; and refers to Shqpp. Toucbst. 2$i^ where
it it laid down that licence or liberty cannot be created
ttd annexed to a freehold without deed. So in Bryan
V. WUstier {h% it b said of the privilege there in qnes-
tioBy ^ if it be not an interest in land it is an easement,
or the grant of an incorporeal hereditament ; which
mid only be effectnally granted by deed.*' It would
k hard if a party could be held, by a hasty letter, as
is this case^ to bind hhnself and his heirs for ever.
There are^ indeed, cases which appear to decide that a
pmon may, by parol licence, acquire some rights >«ver
nother^s soU ; as WA v. Paternoster {i\ and Wood v.
Ltk (I) I but the first case cannot be said to determine
vxj thing on the point, and the judgment was against
Ae licensee; the latter case is of doubtful authority,
1 Si^den on Vendors, p. 80. 9th ed. : and, as Bayley J.
(«) 9 Bip. 58 fl. (6) 9 Wmt, SamntL 175. nete (9).
|c) 9 Wnu. Sound. 175«. oote(S}.
(d) 4B.tJULS79. (e) 2Cro.iJ. 1S8.
(r) SB. 4- (7. 929. (A) SB. 4- C 993.
(ij Futmer^ 71. (*} SayerU B^,5.
observes
£42 CASES IN TRINITY TERM
BUDOXS
Blavchais.
18d4. observes in Hewlins v. Shippam {a\ in nrither case was
the objection taken that the right lay in grants and
therefore could not pass without deed. In those cues
the licence related to an actual user of the ndgfaboai^s
land ; and Gilbs C. J. puts it upon that footing in Tmf'
lor V. Waters (i).
The present case is also different from those in wUck
it has been held that a party having, by his neighbom^
licence, done something upon his own soil which intti^
fered with the neighbour's enjoyment of air, lighc^ or
water, was not a wrongdoer for refusing afterwards to re-
store things to their former situation at the reqoeit cf
the licensor ; Winter v. Brockwell (c), Uggins v. Lige((fy
The first of these cases has been much discussed sinee;
and the latter is limited, as to part of the doctrine hii
down in it, by the recent case of Mason v. HiB[e)»
Winter v. Brockwell (c), however, only shews thit •
party, having incurred expense in making an altentifln
on his own land by his neighbour's licence, shall do(
be subjected to the cost of altering his premisa
anew, if the neighbour withdraws his licence. LiggiMi
V. Inge {d) proceeds partly on the same principle. But
here, the neighbour seeks, not to enforce an altentioD
in the premises of the supposed licensee, but to makei
particular use of her own land. In Uggins v. Inge{i\i
it was held that the plaintiff by his parol licence, thoogb
not amounting to a transfer of any right or interest, hd
relinquished and acknowledged that he no longer wanted
that portion of water which the defendant thereopoD
diverted. The water there had flowed to the plaintiff's
(a) 5B.tC. 233. (6) 7 Taunt. 384,
(c) B East, 508. (d) 7Bmg.6S2.
(«) SB,4-J(L 304. SB. ^ Jd.}.
IN THE Fourth Year of WILLIAM IV. 543
mill. The plaintiff here gave up no corresponding enjoy- 1 834.
ment of the light and air passing over her soil ; the only "
mode in which she could testify her relinquishment of agahut
theset would have been by a grant under seal. This
was so put in the argument in Moore v. Bawsan (a), (and
IS not inconsistent with the decision of the Court) :
^ The right .to enjoy in a particular mode a portion of
the light which, prima facie, belongs to the owner of the
idjoining land, and which he may appropriate, to his
own use, is an easement annexed to the land, and must
be transferred by deed/' The licensee, in such a case,
dio has not obtained a proper grant, must pursue his
femedy (if entitled to it) in a court of equity, as in other
.CHes where a party has incurred expense under a licence
which is revoked.
Supposing the plaintiff's consent to have been avail-
able as a licence, there is no universal rule to be deduced
ftom the cases, that such a licence, though executed, is
not oountermandable. A licence may not be so where
it conveys a certain interest to the licensee ; but where
it has not that effect, as in the case of a licence for an
moertain time, it may be countermanded: Fentiman
V* Smith (i). Doe dem. Fcley v. Wilson (c). Hex v. Horvr
i(m on the Hill (cZ), (where Lord EUenborough said that
nch a licence was not a grant, but might be recalled
immediately, and that this Court would not consider
what might be determined in the case by a court of
equity), Bryan v. Whistler {e). -On the other hand,
where it conveys an interest for a time certain, the
licence may be irrevocable, as amounting to a lease,
(a) 8B.4-C. 334. (6) 4 Eati, 107.
(c) 1 1 Smsi, 56. (d) 4 M. Jt S. 562.
(e) SB.iC 388.
Regina
544 CASES IN TRINITY TERM
Baioau
QgamH
18S4. R^ina y. Winier{a), and this may explain Web ▼.
Patemosier (6), so far as that case may be tboiight to
bear on the present Another claas of casetj whcfe
licences have been hdd not countermandaUe^ are those
(of which Winter v. Brockwdl (c) is one) whore licenns
haTO been given by way of indemniQr against an actioa
which might otherwise haye been brought by the gruitiiy
party against the licensee for the act so permitted* With
reference to such cases, it is said in Thomas v. Somill(il
that a licaice strictly conveys no interest or propertjff
but only makes an action legitimate^ which, without i^
had been unlawfiiL This illustrates Liggins v. ii^(r)b
but cannot apply to the present case; because here op
acUon would have lain for merdy making the windoe^
and therefore no indemnity was needed. The rigbt to
an unobstructed enjoyment of light and air has acMM-
times been put upon the ground of an implied coveoiDt
on the neighbour's part; as by LUtiedale J. in AToorif ?.
Rawson {g) s but no covenant is either proved or to be
implied in the present case ; and an express parol agree-
ment, even if proved and a sufficient consideratioo
shewn, could at most only be ground of action or of s
bill in equity.
FoUett and SeweU^ contr^. The question in this case
is, properly, not whether the plaintiff was predoded
from making use of her land, but whether she had ^
right to build a wall upon it, for the express purpoa^
of obstructing the defendant's window. It is contended
that no licence was granted to the defendant to ba^^
(a) S Saik. 588. (6) Palmer^ 71.
(c) 8 Eaa, 508. {d) Vaugk. 551.
(ji) 7 Bing. 682. {g) 5 A 4^ C.540.
IK THE Fourth Year of WILLIAM IV. 545
the window uoobstnicted ; but when a person' consents IBS^.
to his neighbour's doing an act on his own land, which ^~~^
the party so consenting might, if he would, have ren- ogainti
dered nugatory, and the neighbour consequently incurs
an expence^ that consent is a licence^ and the licensor
has no right afterwards to recover at law for the act so
done^ or to build a wall, or proceed in any other manner
to defeat it. He cannot render nugatory the consent
which he has given, although it was only by parol.
That there was a consent in this case, is clear from the
correspondence. There could be no doubt, from the
ntuation of the defendant's premises, relatively to those
of the plaintiff^ that the window was to be made in a
place overlooking her grounds; and unless this had
been so^ no consent need have been asked for opening
the window. It is true, the permission asked is, in
terms, only to place a ladder; but the intention is
clearly shewn, and the plaintiff, if she objected to the
window, might have refused to allow the ladder to be
placed. But the letter of the 2Sd of Febniajy shews
that she consented to that proceeding with a full know-
ledge of its object
Then it is contended, that the privilege (supposing it
to have been given) of having such a window unob-
structed, is an easement, because the person allowing it
gives up, in part, the use of her own land ; and, there-
fore, that the permission ought to have been granted by
deed. But the right to enjoy an obstructed access of
light (ind air to a window, is not an easement nor the
subject of grant. According to the judgment of Little-
^ok J. in Moore v. Rawsoti (a), " every man on his
(a) SB. 4: a 340.
Vol. 1. O o own
Blavchaid.
546 CASES IN TRINITY TERM
18S4. own land has a right to all the light and air which will
come to him," and may erect buildings with as manj
Qgaimt windows as he pleases. ** To appropriate to himsd
the use of the light, he does not require any conseni
from the owner of the adjoining land. He, therefiMre
begins to acquire tlie right to the enjoyment of the ligfa
by mere occupancy." The learned Judge then adds
that the neighbour may, within twenty years, obstmc
the light by building on his own land ; but if he doe
not do so within that period, the law implies a consen
on his part, that the owner of the window shall continue
to enjoy the light without obstruction, so long as b
shall continue the same specific mode of enjoymeni
<* It does not, indeed, imply that the consent is given b^
way of grant; for although a right of common (exce|:
as to common appendant), or a right of way, being
privilege of something positive to be done or ased i
the soil of another man's land, may be the subject <
legal grant, yet light and air, not being to be used i
the soil of the land of another, are not the subject «
actual grant; but the right to insist upon the noi
obstruction and non-interruption of them more proper!
arises by a covenant which the law would imply not 1
interrupt the free use of the light and air." The judj
ment, also, of Tindal C. J. in Liggins v. Inge [iM
favours this view of the subject. The word ^^ covenant
in the judgment of Liiiledale J., does not mean a coir*
nant under seaL [^Littledale J. The consent must I
of such a kind as the law deems necessary'. I did Vk<
mean to lay it down, that a parol consent was sufficief^
I only referred to the technical distinction between suc
(a) 7 Bifig, 690.
thio^
IN THE Fourth Year of WILLIAM IV. 547
things as common and right of way, which are subjects 1884.
of grants properly speaking, and light and air, which
aie not so. Technically, you can only grant that over H^unu
BLAMCHAmD.
which you have an actual power for the purpose of
granting; but a covenant not to obstruct the light and
air, would come to the same thing.- That covenant must
be in such form as the law requires.] The question
then is, what amounts to a sufficient legal consent ? If
I grant to another any easement or privilege irrevo*
cably to be exercised on my land, a deed is necessary ;
not so, if it is merely the privilege of doiug something
on his land which, otherwise, I might oppose. This
distinction is recognized by Bayley J. in Heidins v.
Sldppam{a)j and Tindal C,J. in Liggins v. Ligefjj).
And in the latter judgment it is asked, ** Suppose A.
authorizes B., by express licence, to build a house on
Bh own land, close adjoining to some of the windows
of il's house, so as to intercept part of the light; could
he afterwards compel B. to pull the house down again.
Simply by giving notice that he countermanded the
licence?" It is the same whether A. attempt to revoke
'he licence by means of an action, as in Winter v.
Brockwell (c), or by abating what he deems a nuisance :
^e consent, if acted upon by the licensee, is irrevocable,
wough given by parol only. The judgment in the
^cond case of Mason v. Hill (d) does not, so far as it
^Qches on the present point, at all shake the doctrine
^f Winter V. Brockwell{c\ Liggins v, Inge {b), or that
^hich may be collected from fVeb v. Paternoster (^), as
^ an executed licence. It may be hard that a person
(a) SB.^C, 23-3, 2:J3. (6) 7 5t/i^.690.
(c) 8 East, 308. (rf) 5 B, .J- Ad. 15.
(e) Palm. 11,
O o 2 should
Blanchakd.
548 CASES IN TRINITY TERM
1884. should be held to have bound himself and bis heirs by ,
' parol consent ; but it would also be hard if. after harim •
agamu allowed his neighbour to incur an expense by reason o
such consent, he could, at pleasure, render it nugatorj.
[^Littledale J. Suppose he had given a parol licence to a
neighbour to put cattle on his premises, and that persoo
had, in consequence, made pens and roads, could not
the licence be countermanded ?] That would be an act
done on the licensor's land, in which case the licence is
subject to technical difficulties ; if it conveys an interest
in the land, it must be granted by lease written and
signed, or be held merely at will (a) ; and if it is an eas^
ment^ it can only pass by deed. Here, the act was done
upon the land of the party claiming the licence; and if
the letters did not clearly shew a consent by the plaio-
tifi^ it is evident that, while the work was carrying oo,
she must have been aware of the defendant's proceed-
ing: she made no objection to it; and such acquiesceooe
has, in many cqses, been held equivalent to a licence:
Neale dem, Leroux v. Parkin {b\ Doe dan. JVindlq ▼•
Pye (c), Doe dem. Foley v. Wilson (rf), Doe dem. Skep-
pard V. Allen {e).
Lord Denman C. J. Great research and ingenuity
have been shewn in arguing this case ; but it will not
be necessary to enter into a consideration of the doc-
trines which have been discussed, as I think the letters
before us do not establish the licence relied upon by
the defendant. The consent to the making of a windo«^
ought to have been express ; but no express consent ap-
(a) 29 Cor. 2. c. 3. J. I. (6) 1 Esp. 23a
(c) 1 Etp. 366. {d\ 1 1 EaU, 56.
(e) 3 Taunt. 78.
pear*
IN THE Fourth Year of WILLIAM IV. 549
e^rs to have been given. It might, perhaps, have been 1834*.
|3 roper question to be submitted to the jury upon the
rtic3lecase^ whether the plaintiff did or did not agree agahut
0 ^e making of the window; but the case having been
mt. into such a form at the trial, as brings it before the
Coiirt for their opinion upon the construction of the
letters, we must decide it upon that. Now on reading
the letter of the defendant's wife, it does not appear
that a licence is or has been asked for any purpose
beyond that of placing a ladder in the plaintifTs grounds.
It may be, that if the plaintiff had cautiously spelt the
letter, she might have discovered that something more
was intended by the request; but if the same words had
been used in conversation, she would probably not have
discovered that intention; nor does it appear by her
answer that she did so here. (His Lordship then read
the plaintiff's letter.) The extent of the plaintiff's com-
munication is, that she permits a ladder to be placed,
aod the caution which she gives, against injuring the
shrubs, has reference to that only. Another letter of
the plaintiff has been referred to, but that was written
A^ter the whole matter hud come to a conclusion, and
^nnot have any weight. I think, therefore, that no
such consent was given to the making of this window
^authorised the defendant to pull down the wall by
*hich it was obstructed ; and that on this short ground
4e rule must be discharged. "^
LiTTLEDALE J. There might have been some evidence
^ go to the jury, of a licence to make the window,
l^tit I ihink the letters themselves do not shew such a
"cence. It is true that, in the first letter of the de-
fendant's wife, she points out the object of her asking
O o 3 leave
550 CASES IN TRINITY TERM
1834. leave to place the ladder; and it may have been n^
cessary that, for the purpose of acquiring a right to
against enjoy the window unobstructed, she should obtain lea?e
to make it : but the plaintiff was not likely to know
her own legal rights in this respect; and the consenl
which she in fact gave, had reference merely to the
placing of the ladder. The only observation added in
giving it, regards the mischief that may be done to the
shrubs. Reliance has been placed upon the plaintiff* fl
subsequent letter, in which she says, ^ without knowing
exactly the situation in which your window would be
placed, I unfortunately complied with your request;"
but what was that request ? Only to be permitted to
place a ladder ; and it does not appear that any other
request was brought under the plaintifiTs consideration.
If the defendant's wife, in her letter, had specified where
the window was to be, whether it was to be large or
small, and how far it was likely to be convenient or
inconvenient, the parties would probably have entered
into some discussion about it in their subsequent corre-
spondence. But here the only consent asked or given
relates to the ladder.
Taunton J. It is not necessary to enter into the
questions which have been raised on the subject of ease*
ments and licences, because I think that the whole of this
case depends upon the first two letters ; and that the
plaintiff's letter did not convey any licence or consent
to the throwing out of tliis window, whether such con-
sent be matter of grant, or whether it be merely a waiver
pf rights, which is a question of a very refined and tech-
nical nature. The whole request, on behalf of the de-
fendant, was only to have the ladder placed, in ord^
that
IN THE Fourth Year or WILLIAM IV. 551
t the work then in progress might be more neatly 1884.
shed : the motive stated for the request is an entirely '
^ « ^ Beidors
srent matter : it is, indeed, implied in that statement _ agabui
* Blanchabd.
Lt the defendant means to throw out a window, but
t request is confined to the placing of the ladder; and
e consent is also limited to that. There might be a
ew to an ulterior object ; but it is not to be taken for
ranted that the plaintiff approved of that object, the
ature and extent of which she could not be apprised
U for nothing had been stated to her of the length,
readth, height, or situation of the intended window.
Lnother letter of the plaintiff has been relied upon ; but
ren that seems to prove, that at the time of the de-
ndant's application she did not know precisely where
le window was to be : and, at all events, the corre-
)ODdence which passed at that time did not, in my
pinion, amount to the assent contended for. We
% not, therefore, called upon to consider the other
oints of the case, and, least of all, the question of
Hintermand ; but, upon that subject, the observations
f Mr. FoUett respecting the case of Liggins v. Inge (a),
5nd, I think, strongly to shew, that if there was a good
cence given in this case, it was not countermanded by
hat took place afterwards.* There, however, a parol
cence was expressly stated : if the same fact had been
'early shewn here, it is probable, but I will not say
^rtain, that Mr. Follett*s argument on this part of the
^ would have been found applicable.
Williams J. concurred.
Rule discharged.
(a) 7 Bing,6S2.
Oo 4
IN THE Fourth Year of WILLIAM IV. 653
edition introduced into the rule 4br removing the ISS^*
aose was merely to indemnify the defendants as to the ";
•^ ^ Thomas
xpense of the removal. agnvMi
Saundsrs.
I
Lord Denman C. J. The costs to be allowed to the
lefendant, as to the removal of the cause, are those
rhich are necessarily incidental to the removal, not the
lonble of those.
LiTTLEDALE J. If the rule for removal were silent
\ to the costs of removal, perhaps it might be other-
ise; but, as it stands, the defendants can only be in-
emnified for the extra expense.
Taunton J. I think the meaning of the phrase
double costs," in the statute, is, that the ordinary
Dgle costs should be' doubled, in the event of a verdict
Bssing for the defendant, or the plaintiff becoming
onsuit or suffering a discontinuance. The enactment
elates only to the costs incurred in the ordinary course
f law. The extra costs occasioned by a removal are
lot in the ordinary course of law : they are incurred by
. party being permitted to have the cause tried in
I county which is not the regular place for the trial ; and
hey are so much distinguished from the ordinary costs,
hat the plaintiff must pay them, even if he obtain a
verdict; and this without reference to the statute.
Williams J. I am of the same opinion. The extra
costs are merely the additional expenses.
Ordered, that so much of the Master's taxation
as allowed double costs for the extra ex-
penses be set aside; and only single costs
allowed for the same.
554, CASES IN TRINITY TERM
1834.
IN THE EXCHEQUER CHAMBER.
(Error from the Court of King's Bench.)
Thtnday, Day agoinst Robinson, in Error.
Iftfy 29th.
dtSonfor X^^ defendant in error declared below, in case,
S^^iiiTM against the plaintiflF in error. The first count ol
foUows :— ^|jg declaration stated, that the plaintiff, before, &c hid
•* You have ' .
robbed me of been retained and employed by and in the service of thi
one sbtlling,
tan money ;'* defendant as his servant ; that the plaintiff, before anc
nuendo ex- at the time,'&c. had quitted the service of the defendant
meaning to be, and had been recommended to, and was likely to h
tiff had frw^' retained and employed by, and in the service of, o«
^*r^^li^to -E^ftcard Rawlins, as a servant for certain wages 8tci
Ms own use one y^i ^he defendant, well knowing the premises, but con-
ceiTedbyhim trivin^: to injure the plaintiff &c. and to brini? him into
for the defend- . . . . ,l
ant, being the public scandal &c. with and amongst all his neighboun
sale of some &c. and particularly with the said Edward Raxdinsy and
plaintiff fo^, * to cause It to be suspected and believed that, whilst be
to,**the d^flnd- the plaintiff was in the service of him the defendant as
ant; but the aforesaid, he the said plaintiff had therein conducted
facts stated in ' ■
this innuendo himself dishonestly and unfaitiifully, and had robbed
were not al-
legvd by any him the Said defendant, and that he the said plain-
independent ... J
averment in the tiff was a dishonest and disreputable person, and
Held, that the ^^ therefore unfit to be employed as a serraot,
bad?^intro^ and to prevent the said Edward Rawlins from retain-
ducing new
facts; and that, without the innuendo, the count did not charge words actionable o
themselves.
There were good counts besides, and special damage was laid at the end of the ^<^j
ation. Judgment having been entered on a verdict with damages generally^ it was bdd »■
on error brought : and
The court of error awarded a venire de novo.
inj
ROBIMSOK.
IN THE Fourth Year of WILLIAM IV. 566
g and employing him the said plaintiff in his 18S4.
irvice, as he otherwise wight and would have done, "T
° Day
nd to vex, oppress &c. the said plaintiff, in a „^*^^
ertain discourse which he, the defendant, had with
be plaintifl^ of and concerning him the said plain-
\S, in the presence and hearing of divers &c. falsely
nd maliciously spoke and published to, and of and
Doceming, the said plaintiff, these false &c words
Jlowing: (that is to say), "You" (meaning the said
laintiff) " have robbed me " (meaning himself the
tid defendant) " of a shilling." The second count
d Dot vary, in the introductory part, from the first,
It laid the words as follows : " You " (meaning the
id plaintiff) " have robbed me " (meaning the said
ifendant) " of Is. tan money " (meaning that he, the
id plaintiff, had fraudulently and wrongfully taken
id applied to his own use the sum of l5., being part of
certain sum of money, that is to say, the sum of 6s. 6d.,
hich he the said plaintiff had received into his custody
ithe servant of and for and on behalf of him the said
sfendant ; and which said moneys were so paid to the
lid plaintiff, for and on account of him the said defend-
3t, as and for the produce of the sale of a certain
oantity of a certain article called tan, theretofore sold
ythe said plaintiff, for and on behalf, and as the
arrant of him the said defendant, and for which said
am of 6s. 6d.^ he, the said plaintiff, as such servant as
foresaid, was accountable to the said defendant). In
he third count, the colloquium was laid to be with one
^' A, and the words as follows : " Robinson " (meaning
lie said plaintiff) "has been robbing me" (mean-
"g the SJiid defendant) " of tan money " (meaning
that
ROBIMSOV.
556 CASES IN TRINITY TERM
ISS^. that he the said plaintiff, had robbed him the snd d^
fendant, of certain moneys of him the said defendmtf
Dat
agahut which he the said plaintiff had received into his coslodf
as the amount, &c. following substantially the cone-
sponding innuendo in the stcond count), ^* and has also
robbed George AsplMs desk of money two or diiee
times " (thereby then and there meaning that he, the
said plaintiff, had on two or three several occasions
feloniously stolen and taken away divers sums of money \
from and out of a certain desk used by one Gearp
Aspliuj then and there being also a servant of him the
said defendant, and which said sums of money were then
and there the property of him the said defendant); ''and
I " (meaning himself the said defendant) *^ have sod
him " (meaning the said plaintiff) ^* off" (thereby tha
and there meaning that he, the said defendant, had
dismissed and discharged him the said plaintiff, fron
the service and employ of him the said defendant, ob
account of the dishonest and unfaithful conduct of hin
the said plaintiff). The fourth count was upon a eol-
loquium with R. B. as to the tan money only, with the
innuendoes as in the third count The fifth count was
upon a colloquium with divers subjects &c., and the
words were laid as follows : — " Robinson " (meaning the
said plaintiff) ^^ broke open and robbed George AspUift
desk" (meaning that he, the said plaintiff, had felooi-
ously stolen and taken away divers sums of money and
other articles, from and out of a certain desk used by and
in the possession of one George Asplin). The sixth
count was on a colloquium with one J. Z/., and the
words were laid as follows : — " Ah I Mr. Robinson, in-
deed ! He " (meaning the said plaintiff) *< has beeo
robbing
RouHsoir.
IK THE Fourth Year of WILLIAM IV. 557
dbbing me" (meaning himself the said defendant); 18S4<.
* aod I have sent him off" (thereby then and there ~
DDcaoiDg that be, the said plaintiff, while he was in the J'f*'^
service of him, the said defendant, had robbed, cheated,
aod defraaded him, the said defendant, and that by
retson of the dishonest and unfaithful conduct of him,
the said plaintiff, as such servant as aforesaid, he, the
Slid defendant, had dismissed, &c. as before). The
Kventh count was the same as the third, except that the
colloquium was laid with W, J. The eighth count was
in the same form, on a; colloquium with W. c/., and the
voids were, *^ Robinson has robbed me " (meaning that
ke^ the said plaintiff, had cheated and defrauded him, the
aid defendant, of certain moneys which he the said
diintiff had received into his custody as the servant of
mdfor and on behalf of him the said defendant). It
was charged as special damage at the end of the de-
claration, that, by means of the committing of the said
Kferal grievances, the said Edward Rawlins, who was
aboot to retain the plaintiff as servant for wages, re-
iitted to do so. The defendant pleaded the general
issue to the whole, and a justification as to part, to
irbich justification the plaintiff replied de injuria. Both
issues were found for the plaintiff: and the jury assessed
the damages generally on the whole declaration. Judg-
ment was entered up for the plaintiff in the Court of
Kng's Bench.
The case was argued before Tindai. C. J., Lord
Lyndhurst C. B., Park J., Gaselee J., Bosanquet J.,
BoaAND B., Alderson B., and Gurney B.
^y was to have argued for the plaintiff in error, but
^ court called on the other side.
Phtt
508 CASES IN TRINITY TERM
1884. Piatt for the defendant in error. There is i
■■""" that the first count is good. [^Tindal C J
agqmst clearly good, according to Slaaoman v. Duttom
Rouwioir.
Tamlinson v. Brittlebank {b). But in some of i
counts, the innuendoes change the sense of the
words, by the introduction of new and distinct
alleged in the inducement All the decided
against the introduction of new facts in the inna<
Admitting the innuendo in any count to be bai
be rejected as surplusage ; and then the words a]
able in themselves (</). [Tindal C. J. That
hold good, where the words spoken import in tl
a criminal charge, and the innuendo introduo
that is merely useless, and not in any way alt
nature of the charge, which the words themseh
import. But how are we to know that tan m
be the subject matter of robbery ? and even if
to take notice of the meaning of tan money, the
troduced in the innuendoes shew that the defer
not mean to impute robbery, but cmbezzlemen
expression, *^ one shilling tan money " cannot 1
something of value; suppose the expression 1
** one shilling pocket money." \_Alderson J.
know that these words would have been sland
themselves : but your supposition introduces
meaning of the word " rob." Park J. And y
the words on the record not to mean robber;
innuendo must be supported, or rejected ; if it
(a) 10 Bing. 402. {b) A B. ^ Ad. 6SL
(c) See Cvm. Dig, Actimi ujwn the Case Jbr Defamation^ G
Bac* Akr. Slander, S. 4. (p. 307. vol. vii. ed. 1832.) De Gr
jR. V. Homef 2 Cowp. 6S4, 1 Vin. Abr, Actions [fur lyordt], '.
(d) See Corbet v. ffiU, Cro, EUz. 609. and Srmth v. Cooker
S12.
IN THE Fourth Year of WILLIAM IV.
559
ported) it shews a good cause of action ; if it be rejected,
tliere is a simple charge of robbery, which is slanderous.
Andi even admitting the words in every count not to
be actionable in themselves, there is a special dami^e
Ud.
18S4.
Day
againit
RoBUiaoK.
TiMDAL C. J. (after conferring with the other judges).
Tbe special damage is stated as the result of the speak-
ing of all the words in the several counts, not of the
words stated in those counts only which are good. It
ii impossible therefore upon this general finding of the
juy that we can see that the damages have been given
k respect of those counts only which are good, and of
the q>ecial damage resulting from the words stated in
diose counts. Part of the damage may be for the one
count, and part for the other. In order therefore that
die damages may be ascertained to be given for that
fart of the declaration which is free from the objection
Wbre adverted to, we think a venire de novo must be
traded.
Venire de novo awarded (a]«
(a) See 2 fFmt* SauruL 171 c. note (I.) to Sambletan v. Veert,
iM THE Fourth Year of WILLIAM IV. 661
profit; but nothing further was alleged as to any par- 1854.
ticipation of profits between Tredwell and Kit^. The . TTI
affidavits of Kingy Tredwellj and others, in answer, ad- ^"^
mitted that King was resident in L/mdons but stated
that he used the office at Evesham as a branch office,
and occasionally attended it, and that Tredwell acted
there solely as his clerk, and had never transacted
business there for his own profit or on his own account.
Evesham is more than ninety miles fi*om London.
Sir James Scarlett now shewed cause, and contended,
that the affidavits in support of the rule made out no
case, as they neither stated a participation of profits by
Tredwellj nor even the belief of the deponents that he
had, on any occasion, shared the profits of business done.
JP. Pottockf contra. It is sufficient if the facts stated
are such that the Court can have no doubt of the
unqualified person having partaken of the profits. In
' the case In re Clark (a), which was a similar one to the
present, Abbott C.J. said,^-'^ I disclaim for myself any
wish to proceed in a case like this, upon mere suspicion ;
but we are to ask ourselves this question (which is not
unfrequently asked in summing up a case for the jury),
adverting to the evidence before us, are our own judg-
ments satisfied, are our minds convinced that the
crime charged has been proved to our satisfaction and
conyictiou? That conviction may arise as well from
collateral circumstances as from direct and positive
proof.'* IWilliams J. In a case in which I once moved
for a criminal information, the same objection was taken
to the affidavits as that which is now made. I said, that
the affidavits presented facts to the Court from which
(a) 5J).4;R. 262.
Vol. I. P p they
IN TpE Fourth Year of WILLIAM IV. 563
I8S4.
\e King against The Justices of the West Tkundayf
^ May 29lh.
Riding of Yorkshire.
In the Matter of the Aire and Calder Na-
vigation, and Lake Lock Railway Com-
panies.)
V RULE had been obtained calling on the justices A river naviga-
and clerk of the peace of the West Riding to videdthatno
lew cause why a certiorari should not issue to remove be*token*in^
pursuance
ircof ibould be removed by certiorari. By a subsequent statute for improving the same
vigation, it was enacted, that all the powers, provisions, exemptions, rules, remedies, re-
lations, penalties, forfeitures, articles, matters, and things whatsoever, contained in the
rmeract, should be in full force, and extend to and be applied and enforced as to that act
d the matters therein contained, in as full a manner to all intents and purposes as if
vein re-enacted : Held, that these were sufficient words to take away the certiorari on
seaedinga under the latter act.
By the latter act it was provided, that if the undertakers of the navigation could not agree
th any parties for the purchase of lands, a jury should be summoned to the quarter ses-
na, who should assess the purchase-money to be paid, and also what other separate and
(tinct sums should be paid for damages before then sustained, orybr the future temporary
perpetual continuance of any recurrtng damage* which should have been occasioned by
itting the act in execution ; the purchase-money and damages to be assessed separately ;
d that the justices in sessions should give judgment for such purchase-money or recom-
nce as should be assessed by such jury ; which verdict and judgment should be binding
I all persons. By a separate clause it was provided that the undertakers should not be
lUged to receive any complaint of damage, unless notice were given them within six months
W the daroage^ A jury summoned to assess compensation as above mentioned, found a
irdict of fiL for value of the land taken ; present damages, nothing; future damages, 2800^
"he judgment entered up recited that the jury had assessed 61. for purchase-money, and no
ipsrste or distinct sum for damages before then sustained by the execution of the act ; and
lit they had assessed the distinct sum tu be paid for the future temporary or perpetual
ontinuance of any recurring damages which should be occasioned by putting the act in exe-
vtioo, at 2800^ ; and it was adjudged that the undertakers should forthwith pay the 6/.,
^ the S80(V. A mandamus being moved for to the justices to amend the judgment
7<trikiog out the award of 280(V., it being contended that the verdict could not legally
ike effect aa an award of present damages under the act, none having yet been sustained :
^dd, that as the statutes did not allow a removal of the proceedings by certiorari, the
^^m could not indirectly bring them under review by a mandamus.
Xlie land taken was ground upon which the owners had laid a railway, and they claimed
'obive their damage calculated on the assumption that the purchasers would so use the land
^ to deitroy the railway ; the latter, however, declaring that, to avoid doing so, they should
■^ a tunneL The damages so claimed were allowed by the jury, as ** future damages.*'
Q>xr», whether the verdict so given, and entered up in the judgment as above mentioned,
Hil^?
P p 2 into
mv THE Fourth Year of WILLIAM IV. 565
contrjict with the undertakers for the sale of, and to 1834.
sell and convey to the trustees of the said under- _ ~
^ The Kino
takers, for the purposes of the act, any lands, &c., so afnUnst
The Justices of
set out By sect. 20., if any proprietor shall, for fourteen the West
days after notice from the undertakers, refuse or neglect Yoruhiu.
to treat with them for the sale of lands, &c., they are
empowered and required to cause a jury to be empan-
i^lled, 8cc, to appear at some quarter session, for the
^unty, riding, &c., to be appointed in the warrant for
summoning such jury; and twelve of such jury are
^Qre to ** enquire o^ assess, and ascertain the sum or
sums of money to be paid for the purchase of such
l^ods," &C., ** and also what other separate and distinct
sum or sums of money shall be paid by way of recom-
penoe, either for the damages which shall or may before
that time have been sustained as aforesaid," (by the
execution of this act) ^^ or for the future temporarj^ or
perpetual continuance of any recurring damages which
shall have been so occasioned as aforesaid, and the
cause or occasion of which shall have been only in
part obviated or repaired by the said undertakers, and
which can or will be no further obviated, repaired, or
remedied by them ; and the said justices shall accord-^
ingly give judgment for such purchase money or recom*
pence as shall be assessed by such jury; which said
verdict, and the judgment to be thereupon pronounced
>s aforesaid, shall be binding and conclusive to all in-
tents and purposes, against all bodies politic, corporate,
or collegiate, and all other persons whomsoever." By
sect 26. the undertakers are not required to receive
Any complaint of damage sustained in consequence of
the act, unless notice shall have been given them in
Planner there prescribed, within six calendar months
P p 3 next
i
IN THE Fourth Year of WILLIAM IV. 567
*^ all and every the powersi provisions, exemptions, rules, 1834.
Teraedies, regulations, penalties, forfeitures, articles, mat- T'
terBy and things whatsoever therein contained," (except agmntt
The JuKticei of
as va.Tied by this act, and with some other exceptions not the West
inatevial,) ** shall be and are hereby declared to be in Yoekihirs.
fiill Asrce and effect^ and shall extend to and be used,
ezecimted, applied, enforced, and put in execution, to all
intend and purposes, as to this act, and the several
matLers and things therein contained, for making, com-
pleting, preserving, and maintaining the cuts, canals,
railways," &c., ^* and works to be made by virtue of this
act) and for carrymg the several purposes of this act into
execution, in as full, ample, and beneficial a manner, to
>U intents, constructions, and purposes whatsoever, as
^ the same had been severally, separately, and respect-
ively repeated and re-enacted in the body of this act,
^i^d made part thereof."
The undertakers of the navigation, having occasion
^ make a railway intersecting that of the Ixike Lock
tympany, proposed (and gave legal notice of their
desire) to buy of them, for that purpose, eight perches
^ the land over which the latter railway passed ; intend-
r ing, as they afterwards stated, to convey their own rail-
c Way beneath it by a tunnel. A jury was summoned to
c the West Riding sessions, to assess compensation. Upon
r the hearing of the case, the counsel for the undertakers
represented their intention as above stated ; but it was
answered, that if they obtained the land] there was no-
1 thing to prevent them from so using it as to destroy the
[ Lake Lock Company's railway ; and, therefore, such a
sum ought to be given for prospective damage as would
compensate for the total destruction of the railway at
tUt point The chairman, in summing up, told the
JUfy to pay what attention they thought fit to the in-
P p 4 tentions
I
568 CASES IN TRINITY TERM
1 8S4>. tentions of ihe undertakers as stated ; but observed, that
he did not know of any power that could prevent the
againti Undertakers from letting down the Lake Lock raiUrood
the^Wcst And destroying it, and that the jury, if they thought it
YbMSHiEt. likely that such would be the case, should give their
verdict for the full value of the said rail-road ; or if
not, then for such a sum as they thought fairly due for
such damages as they considered likely to arise. The
jury gave their verdict as follows : —
^* The eight perches of land we value at - j£6.
*^ Present damages ... Nothing.
<< Future damages ... j^gsoa**
The counsel for the undertakers objected to the Te^
diet as illegal, but the objection was over-ruled. The
judgment, as entered up by the clerk of the peaoe^
proceeded, after several recitals, to state the verdict
of the jury, awarding 6/. to the proprietors of the Zab
Lock Railway for the land, and further stating that the
jury do also ** ascertain that no separate or distinct
sum of money should be paid by way of recompence
to the said proprietors for the damages before that
time sustained by the execution of any of the powers
granted in and by the said act." And that the jury do
** assess and ascertain the separate and distinct sam
of money to be paid by way of recompence to the said
proprietors of the Lake Lock Railway, for the futnrc
temporary or perpetual continuance of any recurring
damages which shall be so occasioned as aforesaid, and
the cause or occasion of which shall be only in part
obviated or repaired by the said undertakers, and which
can be no further obviated, repaired, or remedied by
them, at the sum of 2800/." And that it was thereupon
adjudged that the undertakers should forthwith pay to
the proprietors of the Lake Lock Railway 6L for the
purchase
IN THE Fourth Year of WILLIAM IV. 569
chase of the eight perches of land, <^ and also the 1834*
1 of 280Ctf« for the future temporary or perpetual """""^
The Kiiro
lUDaance," &c. ; repeating the words of the verdict agaUui
The Justices o
last set out. The undertakers tendered the 6/. for the West
land, but contended that they were not liable to pay york^m.
2B00L or any part of it, until some damage had ac-
ted to the Lake Lock railway. The proprietors of
t railway insisted that the undertakers had no right
enter upon their land, not having paid the 2806/.
Blackbume and Dundas now shewed cause. First, the
tiorari is taken away by 1 G. 4. c, xxxix. 5. 11 7.)
lich is embodied in 9 G. 4. c. xcviiL by the first
:tion of that act. Then, secondly, an attempt is
ide to avoid the operation of that clause by applying
r a mandamus to the justices to enter up the verdict
cording to what is assumed to be its legal effect. The
idertakers wish to have the decision of the jury re-
ared by this Court ; but the act 9 G. 4. c. xcviii. s. 20.
cpressly says that the' verdict of such jury and the
idgment to be thereon pronounced ** shall be binding
od conclusive, to all intents and purposes." The only
round shewn for this application is excess in the da^
lages; that was a matter to be dec'ded at the sessions;
od if the sessions have not exceeded their jurisdiction,
hb court cannot interfere. These are acts of parliament
ntroduced by the undertakers themselves ; such acts are
0 be considered (as Lord Eldon said in Blakemore v.
ffc Glamorganshire Canal Navigation (a) ) " in the light
^contracts made by the legislature, on behalf of every
person interested in any thing to be done under them :''
tnd those who procure them to be made must be held
(n) \Mxflne^ Keen, 162,
to
I
570 CASES IN TRINITY TERM
18S4. to a strict observaDce of them. The verdict it not
"^"^^ shewn to be erroneous. The Railway Companyvae
a/eamai entitled to assume that the whole of the land woidd tw
tiM West taken from them if the Navigation Company obtaiiied
iTomuMiEi. the right to it. The notice originally given bj dti
latter was of an intention to take the land, and Mt
merely to make a tunnel.
Sir James Scofiett, F. Pollock^ Milmer^ Wi^dmih
and P. Heyaooodj contr^. The jury had no right to
assess any sum for damages in this case. The twentiei
section of 9 G. 4. c. xcviii. empowers juries to detet^
mine only what shall be paid for purchase-moneji mi
for damage done, and, if recurring damages shall hill
been occasioned which the undertakers cannot remd^
to give a sum which will cover such damage. Tbey mt
not authorised to make a speculative award fijr danap
where none may ever happen; but if a particikr
damage has been occasioned, which by its nature is
likely to produce injury from time to time, they may thci
give reasonable compensation; as, for instance, if a dnin
has been obstructed, by reason of which the land will be
overflowed in high floods, although such an event imj
not happen for several years. Then, supposing die jay
to have done wrong in this respect, what is the remedj?
Sect. 117. of ] G. 4. c. xxxix., taking away the certioniif
is not re-enacted by 9 G. 4. c. xcviii. s. 1. That sectioo
only incorporates the powers and provisions of tbe
former statute so far as to keep in force the claosc
necessary for the making, completing, and preserfiog
of the cuts, railways, and other works contemplated bj
the new act, and for otherwise carrying the purposes d
that act into execution. At all events, a certiorari caooot
be
.i
I
A
J
TOKKOUAI.
EHB FOUBTH YSAR OF WILLIAM IV. 571
away by doubtful words. Rex y. Terrei (a), and 1834.
&io^(6), are cases similar to the present, in which
leld that enactments in prior statutes, taking agmmu
Tbc JttiticM 9i
rtiorari, were not incorporated in subsequent UmWmi
;eneral clauses of reference. The clause in the ta».«»>.
i section, which makes the verdict and judgment
OS binding and conclusive *^ against all bodies
X)rporate, or collegiate, and all other persons
sver," is introduced for the purpose of making
usion available against bodies, and individuals
ts, fenes covert, and others), who, but for such
ion, would not have been bound, but not to
judgment conclusive, which is invalid in itself,
ver, the certiorari is taken away, a mandamus
ily remedy, and ought to be awarded, for the
of making the proceedings conformable to law,
erk of the peace has entered a verdict which is
and contrary to the statute. The verdict, if
up in the original words, would have been a
s to the future damages : the defect is concealed
node of entry, but that is no reason that the
us should not go. [Williams 3. A mandamus
et an inferior jurisdiction in motion, where it has
to entertain the subject-matter in question, but
irect them as to doing a particular tiling, which
that they would not otherwise do it according
duty. A mandamus goes to compel overseers
a rate, but not to make an equal rate.] In the
ided to (c), if an unequal rate had been made,
ies aggrieved would have had a further remedy
. R. 735. (6) 2 Doug. 553, note.
Rex ▼. BarrutaUe, 1 Barnard, K, B. 137. S, C Foley's Law*
• and Cotes, p. S6. 3d ed.
by
IN THE FOUETH YeAE OF WILLIAM IV. 57S
1ms a clause taking it away in the strongest and most 18S4.
geoenl terms. [His Lordship here read the 1 17th
ndion.] Then the act 9G.4. c.xcviii. 5.1., reciting agamsi
. . . ThaJu»ticetof
tbe pre?ious statate, embodies all the powers, provisions, the We»t
Riding of
exemptions, rules, remedies, regulations, penalties, for- Yorxshieb.
fatmres, articles, matters, and things whatsoever, therein
omtained. It is impossible to say that the provision in
nedon 11 7« of the former act is not included among the
^articles, matters, and things" declared to be in force
far tbe purposes of this. Then, can we supply by
■andamus what cannot be effected by certiorari ? When
this application was first made, the amount of the
damages, and the manner in which the case was left; to
tbe jury by the chairman, made the Court willing, if it
bad been in their power, to correct the proceeding at
sessions. I should have been happy if we could have
done so. But, in the first place, looking to the nature
of tbe powers vested in this Court, we must take care
dbt we do not, by a side-wind, repeal those clauses of
die acts in question by which the certiorari is taken
*«vay; and that, in my opinion, we should do, if we
S^^ted a mandamus for overhauling the proceedings at
^^ssions, and, in effect, if we thought them wrong,
90asbing them. And then another question is, if the
J^iybav^ in feet, done any thing which we could say
^'^ bad no right to do. Now supposing that there is
^^ 'tern wfaicb they have improperly taken into consider-
^On either their finding as to that must be regarded
^ ^ part of the ground upon which they have given
^ir general verdict, and therefore as inseparable from
^^t verdict, or it must form a divisible item. If it is to
\ looked upon as merely shewing a matter improperly
tak into account by the jury, and which has had the
effect
IK THX Fourth Year of WILLIAM IV. 575
ermed the legsl effect of the verdict? They must give 1834.
t according to the finding, as the act requires. If the **""~
ttsessment of future damages is void, as to which I give affimn
no opmion, it can be treated as a nullity. the Wi
Riding of
ToistxiEB.
Taunton J. I am of the same opinion. I have no
doobt that the certiorari is taken away. As to the
olgection taken to the entry made at sessions, if there is
I fice in the proceedings, it appears on the &ce of them,
md may be taken advantage of hereafter if an attempt
ii made to enforce the full compensation.
Williams J. I am of the same opinion, and I wish
that the prospective finding of the jury may prove to be a
Qollity. The certiorari is taken away by the first statute^
md continued to be taken away, if I may use the ex-
pression, by the second. If we granted a mandamus to
tbe justices it would be, not to exercise a discretion, but
to exercise it in a particular manner. And no sufficient
sotbority has been given to shew that one set of jus-
tices in session having taken upon themselves to execute
the act, others, at a subsequent session, can revoke their
pioceecling.
Lord Denman C. J., and Littledale and Taun-
ton Js., desired to be understood as not deciding whe-
ther the verdict was a nullity or otherwise.
Rule discharged.
IN THIS Fourth Year of WILLIAM IV.
577
inguished between annuities Tor life and annuities
years; and speaking of the latter he said, —
Phere is no case in which such an annuity has been
d not to be usurious, where, on calculation, it
leared that more than the principal, together with
al interest, is to be received." In Fereday v. WigJU^
i[a\ Sir John Leach M. R. held such an annuity
be usurious. In some earlier cases, indeed, as Tan-
i V. Finch (i), a contrary doctrine seems to have pre*
led. The old cases are collected in Comyn on Usun/f
t i. ch. 2. sect. 5. (c) ; and in some of them a con-
ct for an annual payment for a definite time, not being
)ressly upon a loan, seems to have been considered
:essarily a fair purchase. But the present is, in fact,
ontract to repay a loan of 200/. by 120 instalments
lOL In Holland v. Pelham {d\ Bayley B. said, that
make the transaction in question not a loan, the
Dcipal should be in hazard, as between the borrower
I lender. That cannot be pretended here. In Murray
Hardily (e), De Grey C. J. said that, to constitute
usurious contract, there must be a loan, and illegal
irest : and he shewed that a real hazard was necessary
prevent the transaction from being a loan. Now here
principal is in no danger, and is to be repaid at all
nts. It is true that in Doe dem. Grimes v. Gooch (g)
tzs left to the jury to say whether the contract was
rious ; but there, as it was urged in argument, the
itract was, on the face of the deeds, a fair purchase:
"e the objection is on the face of the indenture set
th in the declaration ; and, therefore, the question is
)perly raised by demurrer.
1834.
FlEQUSOK
againtt
Spkaxq.
») 1 Russ. 4: M. 50.
c) Page 42., &c.
0 2 W. BU 862.
l^OL.L
(6) Cro. Elix. 27. S.C. I ^nd. 121., pi. 169.
(d) 1 Cr. ^ J. 580.
(g) SB. 4 Aid. 664.
Q q Plan
Spkako.
xw THK FouETH Year OP WILLIAM IV. 573
dioiild be bound to notice the fact. The Master of the 18S4.
KoUs unites the funcUons of judire and jury: but „
we cannot assbt an equivocal state of facts. It appears agnnat
to me that the transaction is not, aa the face of it,
necessarily void. Instalments are made payable for a
long course of years, and interest will be due on all that
remaios unpaid. The effect of this is a matter of calcu-
lation, upon which the opinion of a jury should be
taken. If they were to find the transaction to be
merdy a cloak and device for usury, it would be bad;
but it would be otherwise if they said, looking to the
value of the annuity granted, that the transaction was
t boD& fide contract for an annuity. The Court cannot
determine this.
LiTTLEDALE J. I do uot Say what a jury might find,
if issue were joined on a plea of usury. But we cannot
say that the deed is, on the &ce of it, usurious. It is
dear that the plaintifi^, as he does not receive back his
principal, is entitled to more than five per cent, per
>noam. In a certain number of years that, as fixed by
die present agreement, may amount to more than the
principal with five per cent. But we cannot take judicial
>K>tice that the money ultimately received will exceed
the principal and legal interest.
Taunton J. For a long time, the impression on
i&y mind was the reverse of my present opinion. I
wcede to the suggestion of my brother Littledale. The
purchase money is parted with. At the end of the
sixty years, there is an end of both purchase money
»nd interest. The creditor is therefore entitled to re-
ceive more than what would be legal interest on a loan
580 CASES IN TRINITY TERM
18S4. of so much. The objection is that, in the sixty
this payment of 20/. would produce more than the
FiRGUSOK
a^nut cipal and interest. But the Court cannot jac
calculate the excess ; it is matter for a jury.
Williams J. concurred.
Judgment for the pi
Sprakc.
M^5otb Cumberland against PlanchL
A person to A CTION upon the case. Issue having been j
whom the copy- -ZjL ° '
right of a an order was made by Parke J., under stat
dramatic piece „
has been as- ^ ^F. 4. c. 42. s. 25. by conscnt of the parties, th
Tiouily to, and ^^^^^ should be Staled for the opinion of the Coui
of, the'paswng* special case; which was as follows : —
TiF 4^ 15 '^'^^ plaintiff is a bookseller and publisher in Id
(loth June The defendant is the author of a farce, called the (
18-3.7 J, IS an
assignee within eyed Monsicr, composed, printed, and published '
the art which ten years before the passing of the act 3 & 4
gives to llie x . i »
author's as- c 15. (Toyal assent, lOlh June 1833), entitled " An
cwe^of a"dra! amend the laws relating to dramatic literary propert
matic work
published
within ten
years, tlie sole (a) The first section of the act is as follows : — *< Whereas, Ir
^J!^I1L?IJV passed in the fifty-fourth year of the reign of his late Migest
George tlic lliird, intituled, An act to amend the several acti
encouragement of leamingt by securing the copies and copyi
jtrinted books to the authors of such books^ or their assigns,
amongst other things provided and enacted, that from and after t
ing the said act, the author of any hook or books composed, and not
or published, or which should thereafter be composed and printed a
lished, and his assignee or assigns, should have the sole liberty of]
and reprinting such book or books for the full term of twenty-eigl
to commence from the day of first publishing the same, and ^ly;
author should be living at the end of that period, for the reaidut
natural life : And whereas it is expedient to extend tlie provisioiu
presenting it.
IN THE Fourth Year of WILLIAM IV.
58 1
On the Ist of November 1828 the defendant, by an
iastrument under seal (a copy of which was annexed to
this case), assigned to the plaintiff for a valuable con-
sideration all his right, title, and interest whatsoever in
the copyright of the said farce.
Previously to that assignment, the defendant duly
granted to the proprietors of the Haymarhet Theatre
for a valuable consideration the right of representing
the said farce at that theatre, and the same had been
1884.
CuMmcRrAVD
Planch^
vid act; be it therefore enacted by, &c, That from and after the passing
^ thii act the author of any tragedy, comedy, play, opera, farce, or any
<)(lier diamatic piece or entertainment, composed, and not printed and
published by the author thereof or his assignee, or which hereafter shall
^ composed, and not printed or published by the autlior thereof or his
**igiwe, or the assignee of such author, shall have as his own property
^tde liberty of representing, or causing to be represented, at any place
^ places of dramatic entertainment wliatsoever, in any part of the United
Kingdom of Great Sritain and Ireland, in the Isles of Man, Jersey, and
^Wnii^, or in any part of the British dominions, any such production
» aforesaid, not printed and published by the author thereof or his as-
HP^ and shall be deemed and taken to be the proprietor thereof; and
^ dM author of any such production, printed and published within ten
yctti before the passing of this act by the author thereof or his assignee,
orwta^ shall hereafter be so printed and published, or the assignee of
*^ author, shall, from the time of passing this act, or from the time of
"vdk publication respectively, until the end of twenty .eight years from the
^ of such 6rst publication of the same, and also, if the author or
"Dillon, or the tunrivor of the authors, shall be living at the end of that
Pviod, during the residue of his natural life, have as his own property the
*^ liberty of representing, or causing to be represented, the same at any
^ place of dramatic entertainment as aforesaid, and shall be deemed
*^ taken to be the proprietor thereof: Provided nevertheless, that nothing
iQ this act contained shall prejudice, alter, or aflTect the right or authority
^ *oy person to represent or cause to be represented, at any place or
Placet of dramatic entertainment whatsoever, any such production as
'''"'WDd, in all cases in which the author thereof or bis assignee shall,
P'V^oasIy to the passing of this act, have given his consent to or
^i^Wiied such representation, but that such sole liberty of the author or
''isttrignee shall be subject to such right or authority."
Qq S
frequently
Plamchs.
IN THE Fourth Year of WILLIAM IV. 583
the right or aothority of th« proprietors of the Hay* 1884.
fnarket Theatre to represent the farce there. If the
Cdmbirlamd
Court should be of opinion that the plaintiff was such J^^^,
assignee, it was agreed that judgment should be entered
Sat the plaintiff for one shilling damages; but if the
Court should be of a contrary opinion, a nolle prosequi
was to be entered.
The assignment, of which the copy was annexed to
die case, was of all the author's right, &a in the copy-
right: of the farce, and of an opera, with the songs and
printed stock thereof, and of all and every the defend-
ants right, title, and interest whatsoever in the copy-
rights of another farce, and another dramatic piece, '^to
bave and to hold the aforesaid four copyrights to the
nid John Cumberland^ his executors^ &c. as his and
tbeir absolute property."
P. Pollock for the plaintiff. There are two questions
in this case : first, whether the assignee of the author
ba?e the same rights as the author himself would have
kid; secondly, whether the author could have prevented
the representation of the piece at any other than the Hm^
market Theatre. The first section of stat. 3 & 4 W. 4f.
c. 15. gives to the author, or his assignee, the sole right
of representation, subject to any permission given by the
author, or his assignee, previously to the passing of the
act In the present case, therefore, the author or his
assignee had the sole right of representation, subject to
the permission granted to the Hen/market Theatre. Then
is the plaintiff the author's assignee, in the sense in which
the word is nsed in the statute ? The first section recites
>tat.54 G. S. C.156. s. 4., and, in the part recited, assignee
must mean assignee of the copyright, for, at the time of
Q q 4* passing
584
CASES IN TRINITY TERM
18S4.
CaMBBRLAMD
agahui
Plamchx.
passing the act of 54 G. 3., there was DOthing else to
assign. Now the first section of stat 3 & 4 IF. 4. c. IS.
must use the word *' assignee," in the enacting part, in
the same sense in which it is used in the recited part of
the former act. The pIainti£P is therefore the assignee
spoken of in the enactment of the latter statute. In Cb(-
man v. Wathen (a), it was held that a dramatic repre*
sentation was not a publication within stat. 8 Ann. c 19.;
and in Murray v. EUiston (i), the representation of i
play previously published by the author, was held to be
no cause of action. Therefore, ^^ assignee," at the time
of passing stat. S & 4 Jf. 4. c. 15. could mean only the
assignee of the right of publishing. That statute also
expressly includes productions published within ten
years before the passing of the act, by the author or
his assignee : but such assignee could be assignee of do
more than the copyright. The defendant would oov
have had the right of restraining every one from repre-
senting the piece, had he not made the assignment, or
given the permission : his assignee must stand in the
same situation, subject to the permission, which gives a
right expressly protected by the act. The statute mani-
festly gives the same rights to author and assignee.
Sir James Scarlett for the defendant. The intention
of the late act was to confer a new privilege upon the
author. That privilege cannot have been assigned away
by the author before he possessed it. The plaintiff pu^
chased merely what the copyright then carried with it;
and, after the assignment, down to the time of the ad
passing, the defendant had as much right to represent the
(a) 5 r. R. 243.
(b) 5B, i AM. 657.
piece
THE Fourth Year of WILLIAM IV.
585
the assignee, or any other person. Then the act
1 a new privilege, which the assignee of the old
claims for himself. The stat 8 Ann. c. 19. s.l.
irteen years' exclusive liberty of printing and
ig to the author of books thereafter to be pub^
»r his assignees; the stat. 41 G. 3. c. 107. s. 1.
»ther fourteen years to the author^ if he should
the first fourteen years : then stat. 54 G. 3»
, 4f. (a) extended the privilege of the author and
ns to twenty-eight years absolutely, and also, if
or outlived that period, to the remainder of the
life. But in the case of books already pub-
he last-mentioned act, by the eighth section {b%
s benefit of the extension of copyright to the
of such books, and not to the assignees. [Lord
C. J. mentioned Brooke v. Clarke (c), and IV/iiie
ch {d)2' The general object of the stat. 3 &
c. 15. was to encourage genius; and therefore
privilege must have been meant to be conferred
1834.
CuMnRLAMD
agtdnst
Plakcus.
recital in stat. 3 & 4 JF. 4. c. 15. «. 1. ante, p. 580. note (a),
eighth section is as follows : — ** And whereas it is reasonable
"s of books already published, and who arc now living, should
he benefit of the extension of copyright ; Be it further enacted,
e author of any book or books which shall not have been pub-
teen years at the time of passing this act shall be living at the
and if such author shall afterwards die before the expiration of
iirteen years, then the personal representative of the said author,
dgnec or assigns of such personal representative, shall have the
>f printing and publishing the said book or books for the further
mrtecn years after the expiration of the first fourteen years :
tiat nothing in this net contained shall affect the ri^t of the
* assigns of such author to sell any copies of the said book or
.'h shall have been printed by such assignee or assigns within the
en years, or the terms of any contract between such author and
lee or assigns.*'
. 4f Aid. 39C. (tl) 2 //. i AM. 298.
on
IN THE Fourth Yeah op WILLIAM IV. 587
XiTTLEDALE J. I am of the same opinion. The 18S4.
signee of whom the act speaks, is the assignee of the
ipyright, — a person already recognized by the law. agqiiut^
y the words ** not printed or published by the author
lereof or his assignee^" the assignee of the copyright
Aust be meant. So again, in the words ** the author of
my guch production, printed and published within ten
years before the passing of this act by the author thereof
or his assignee,'' the meaning must be the same. We
cannot, therefore, say that << assignee'' means the
assignee of the privilege created by the act The
aothor may, perhaps, lose some privileges by this con-
struction; but it seems to me that the legblature in-
tended to give the right of representation to the person
entitled to the copyright.
Taunton J. concurred.
Williams J. I am of the same opinion. We have
ft determinate meaning necessarily given to the word in
the early part of the act.
Judgment for the plaintiff.
588
CASES IN TRINITY TERM
18S4.
Friday^
MaySOlh,
William Hamblyn Da vies, an Infant, by Johh
Da VIES, his Father and next Friend, agmt
Mary Williams, Widow, Jane WiluaMi
Spinster, John Williams, George Williams,
Louis Barree, and Elizabeth, his Wife, for-
merly Elizabeth Williams, Spinster, and
Sarah Williams, Spinster, an Infant
nPHE Vice-Chancellor sent the following case for tie
opinion of this Court : —
W. settled
lands, of which
he was seised
ia fee, to such ^ ^ ••/•<•»
uses as he Michael Williams^ being seised in fee of the messQige
by deed or will, and hereditaments next mentioned, by indentures of
of appoinunent, '^^^^e and release, bearing date respectively the 2Sd ind
himl^lffoHife, ^^^^ ^^ys of Marck 1800, the release being nude
with remainder between the Said Michael Williams of the first p«it>
©▼cr. After- ^
wards A. de- John Williams Mansfield of the second part, and Sawd
vised all his ^
real estates Bennet of the third part, in consideration of the natural
whatsoever and
wheresoever,
and all his
estate, right,
title, and in-
terest tlierein,
and all lease-
bold premises
whatsoever, to
which he might
be at the time
of his decease
entitled, and
all his house-
hold furni-
ture, money,
&c. and all
m'.her hit real
and personal
estate what-
soever and
whereM>evet) upon certain trusts. At the time of making the will, and also attbetiiB*
of his death, A. was seised in fee of lands besides those subject to the power : Held» ^
the detise was not a good execution of the power.
released
love and affection which he the said Micfiael fVUUau
had to Thomas Williams and Marj/ Davies^ then Maj
Williamsy his children by Mary his late wife deceasedi
and for portioning and making a provision for them in
the lifetime of the said Michael Williams^ and for
settling, conveying, and assuring of the capital messuage
or dwelling-house, garden and premises thereinafter
mentioned, with the appurtenances, to the uses, and
upon the trusts thereinafter mentioned, and for the
nominal consideration therein mentioned, granted and
WlLUAMSk
IN THE Fourth Year of WILLIAM IV. 689
ased unto the said John Williams Mansfield^ and to 1884.
heirs and assigns, all that capital messuage or r
illing-house and garden (here followed the description ^j^^ahut
the parcels): to hold the same premises and the
lurtenances unto the said John Williams Mansfield^
heirs and assigns for ever, to the use of the said
nudBenneif his executors, administrators, and assigns,
the term of 500 years thenceforth next ensuing,
}Q certain trusts thereinafter declared, which were
raising the sum of 400/. to be paid to the said
omas Williams and Mary DavieSf then Mary Williams^
the time therein mentioned, and which said sum has
ce been paid off and discharged, and the said term of
0 years duly surrendered ; and from and after the
piration or other sooner determination of the said
m of 500 years, and in the mean time subject thereto^
s said messuage and premises were, by the now stating
lenture of release, limited to the use of such person or
rsons, and for such estate and estates, either absolutely
conditionally, and upon such trusts, and for such
ents and purposes, and under and subject to such
vers, provisoes, conditions, and limitations, and with
ch remainders over, and subject to such charges or
ms of money, as he the said Michael Williams, at any
oe or times thereafter during his natural life, by any
ed or deeds, writing or writings, to be by him sealed
d delivered in the presence of, and attested by, two or
ore credible witnesses, or by his last will and testa-
^t in writing, or any writing purporting to be his last
U and testament, to be by him signed, sealed, pub-
hed, and declared in the presence of, and attested by,
ree or more credible witnesses, or by any codicil or
dicils thereunto annexed or declared part of the same,
should
WlLUAMt.
XN THS Fourth Year of WILLIAM IV. 591
devise^ and bequeath all my real estate whatsoever 1834.
«Dd wheresoever, of or to which I or any person or "T
persons in trust for me am, or is, or are seised ugamtt
or entitled for any estate of freehold or inheritance
in possession, reversion, remainder, or expectancy,
widi their and every of the appurtenances thereto
bciloiiging, and all my estate, right, title, and interest
therein, and also all leasehold premises whatsoever of or
to which I, or any person or persons in trust for me,
am, or is, or are, or shall, or may be at the time of my
decease, seised, possessed, or entitled, for any term or
temis of lives, or years, or years determinable on lives,
with their appurtenances, and all my estate and interest
therein, or which I may have therein at the time of my
decease, and also all my household furniture, plate, linen,
and china, stock in trade, book debts, sum and sums
of money and securities for money, and all other my
feal and personal estate whatsoever and wheresoever,
tuto John Baaoland, Thomas Bffweuj and Bichard
Cfoggi their heirs, executors, administrators, and as-
signs, to have and to hold, receive, and take all and
singular the said real and personal estates and effects
berebbefore devised and bequeathed, unto, and to the
use of, and by them, the said J. JS., 7. £., and R. C,
their heirs, executors, &c., according to the different
natures, tenure, and legal qualities thereof respectively ;
hot, nevertheless, upon the trusts, and for the purposes
hereafter declared of and concerning the same."
After declaring the trusts of the testator's personal
estate^ which were for the benefit of the defendants, Maiy
WSUamSj and the testator's children by her, the will pro- *
ceeded to direct : <* And as to, and for, and concerning
all
WlLUAMI.
IN THE Fourth Year op WILLIAM IV. 593
be seised and possessed of my said real estate, to and 18S4.
for the use of my said children now living, and herein- T
before named (being the testator's said children by ^ag***'^
bis second wife, the defendant Mary Williams) ; and all
and every, if any other, my child or children by my
said wife hereafter to be born, share and share alike»
as tenants in common, and their several and respective
heirs, and with such or the like benefit of survivor-
ship^ and under and subject to such or the like trusts,
powers, provisions, conditions, and declarations, as
herein-before declared and contained as to^my per-
sonal estate, or as near thereto as the different natures
of the said estates will admit of." The case then set
out powers of leasing by the . trustees, and provisoes
for making their receipts sufficient discharges, for
dianging trustees, for the trustees not being made
chargeable except for monies actually received, or for
wilful neglect, for their reimbursement of necessary
esLpences, a nomination of guardians to the children
of the second marriage, and an appointment of the
three above named trustees as executors.
The said Michael fVilliams did not in his life time
convey away the reversion in fee limited or reserved
to him under and by virtue of the limitations contained
ui the aforesaid indenture of release, but was seised of
SQch reversion at the time of making his said will, and
died seised thereof; and the said Michael fVilliams was
previously to and at the time of making his said will,
^d at the time of his death, also seised, or entitled to
i^im and his heirs, for an estate of freehold and inherit-
^ce in possession, of or to a messuage, dwelling-hous^
And hereditaments, not comprised in the said indenture
of release of the 24th of March 1 800.
Vol. I. R r The
IN THE Fourth Year op WILLIAM IV, 595
my red estate to A.^ will be considered an execution 18S4.
of the power : Lemz v. LeaoeUjfn {a) ; Wallop v. Lord ^][^
PortsmouH (4) ; Jones v. Curry (r). wi?""-
In the present case, it is true that the devisor was
possessed of a real estate, besides that which was sub-
ject to the power; but this he has devised by a distinct
clause of his will. He first devises all his real estates
whatsoever and wheresoever, in the fullest terms ; and
then, by a subsequent clause, he devises all other his
Teal and personal estate whatsoever and wheresover.
The early part of the devise is sufficient to dispose of
aU the realty which is not subject to the power. Then,
in interpreting the latter part, the construction must be
the same as if there had been no real estate besides
that subject to the power; for it can make no difference
•a to the principle of interpretation, or as to the effect to
be ascribed to the latter clause, whether the testator
uAd no real estate at all, or whether, having such, he
'lAcl previously disposed of it, as he does here, by a
di&^ioct and independent devise. It is as if there had
b^^n a distinct deed passing the estates not within the
(H^^^wrer, of which the devisor was seised; or as if the
^K^lier clause had stood by itself in the will, and the
latter in a codicil.
^ J. Uogd for the plaintiff. The devise must be
interpreted independently of the circumstances under
which the indenture of the 24th oi May 1800 was made.
As to the effect of the devise itself, the question is not,
which, of two intentions, is the more likely to have been
(a) 1 Tunu ^ Ruiu 104.
^6) Sug4. Paw. Appz. No. 11. p. 762. (5th ed., 1831.)
(c) 1 Swttntt* 66.
R r 2 enter-
IN THE Fourth Year of WILLIAM IV, 597
leasehold estates whatsoever. The will was held not to 1884.
operate as an execution of the power.
Kinderdey in reply. There were not, properly speak-
ing, two clauses in the devise in Hougham v. Sandi/s{a) :
tbe sentence was one. Besides, the subject of the power,
there^ was money to be laid out in land ; and the en-
desi^vour was to maintain, that this was referred to by the
w^ords ^* all my real estate.'' Now though, for some
puz-poses, courts of equity treat such money as land,
ye^ it does not follow that it would be referred to by an
appointor under the words *^ real estate."
Cur. adv. vult.
The following certificate was afterwards sent : — *
^^^e have heard this case argued before us by counsel,
ancl are of opinion that the will of Michael Williams did
no€ operate as an execution of the power contained in
the said indenture of release.
Denmak.
J. LiTTLEDALE.
W. E. Taunton.
J. Williams.
(a; 2 Shu 95.
Datiis
agtttHti
WlLUAMl.
Rr 3
S9S
CASES IN TRINITY TERM
1884.
Saturdayt
May SI St.
In the statute
45 G. 3. c. 92.
«.3., for en*
forcing the
appearance of
persons served
with subpoena
in one part of
the United
Kingdom, to
give evidence
in another, the
«« parts" sig-
nified are £ngm
landf Scotland^
and Ireland.
Where a per-
son has been
served with a
subpoena, not
issued from
the crown
oflBcc, to ap»>
pear and give
evidence at
quarter ses-
sions, and
makes default,
the Court of
King's Bench
cannot attach
him for con-
tempt, either by
its general
authority, or by
virtue of the
above statute.
The King against Brownell*
A RULE was obtained in Hilary term, calling oa
William Daniel Brownell to shew cause why aa
attachment should not issue against him for a contempt
in not attending) pursuant to subpcena, to give evidence
before the grand jury of the county of fVarmck^ at the
quarter sessions for that county {October^ 1888), against
Frederick Boom^ on a bill of indictment for misdemeanor-
The rule was drawn up on reading an order of the saiA^
sessions (made on the motion of counsel, supported bj
affidavit), whereby the clerk of the peace was directed t(
certify the default of the said W. D* Brcnmell to this
Court ; and the certificate of the said clerk, under hi
hand and seal, stating that, at the said sessions, it
duly proved, to the satisfaction of the Court, that
indictment was preferred at those sessions against
for a misdemeanor ; that BraameU^ who was the
of the prison at the parish of Aston^ Warwickshire^
a material and necessary witness for the crown, and h
been duly served (a) with a subpoena under the seal
the Custos Rotulorum, to appear and give
before the grand jury at the said sessions upon the sai
indictment; that he attended the sessions at Warmdr^:^
and was sworn to give such evidence to the grand jury
that he was called upon his subpoena by the baili
attending the grand jury, but refused to go before them
(a) It was not expressly svrorn where the subpoena was served, bat i
was stated by counsel, in the argument on this rule, and not denied, t
the service was within iho jurisdiction of the quarter sessions.
ff
it
Bbowmklu
mv THE Fourth Year op WILLIAM IV. 599
and quitted the town without leave of the Court, in 1834.
consequence whereof the bill was ignored. The signa-
tures of the clerk of the peace to the order of sessions ^^^^
and certificate were verified by affidavit
Dundas now shewed cause. This application is
founded on the statute 45 G. 8. c. 92. s. S. {a). But
the authority there given to the Court of King's Bench
does not extend to the present case. The statute is
entitled " An Act to amend two Acte of the Thirteenth
*nd Forty-fourth years of his present Majesty, for the
more effectual execution of the Criminal Laws, and
iQore easy apprehending and bringing to Trial Offenders
^^caping froni one Part of the United Kingdom to the
<>ther, and from one County to another." The parts of
(«) 45 G> 3. c, 92. ;. 3. ** And nvhereas it is fit to provide for the
H^Pcanmce of persons to answer in cases where warrants are not usually
^^u«d, and to give evidence in criminal prosecutions in every part of Uie
^^ted Kingdom ; be it further enacted, That the service of every writ of
**^|)<xiia, or other process, upon any person, in any one of the parts of the
United Kingdom, requiring the appearance of such person to answer or
^'^c evidence in any criminal prosecution in any other of the parts of the
'^■xie, shall be as good and effectual in law, as if the same had been
*^*>ed in that part of the United Kingdom where tlie person so served is
'^Siuired to appear ; and in case such person so served shall not appear
^^^cording to the exigence of such writ or process, it shall be lawful for tbt
^^^^^rt out of which the same issued, upon proof made of the service
^^^v^f, to the satisfaction of the said Court, to transmit a certificate of
'^^b default under the seal of the same Court, or under the hand of one
^K the judges or justices of the same, to the Court of King's Bendi in
'^^^hnd in case such service was had in England, or in case such service
^^^s had in Scotland, to the Court of Justiciary in Scotland, or in case
•**cfc service was had in Ireiandy to the Court of King's Bench in Ir^
^>ui; and the said last-mentioned Courts respectively shall and may
^^^^i^pon proceed agunst and punish the person so having made default,
in like manner as they might have done if such person had neglected or
*^QMd to appear in obedience to a writ of subpoena or other process issued
^**t of such last-mentioned Courts respectively."
R r 4 the
•Bbowmsli.*
600 CASES IN TRINITY TERM
1 834. the United Kingdom referred to by those recHied acli
(13 G. 8. c. 31. and 44 G. 3. c 92.), are Scotland and
The KiMo ^
ogatHtt Ireland: the first statute, passed before the Union with
Irelandy was '* for the more effectual execution of the
Criminal Laws in the 7\oo Parts of the United Kingdom,'*
and refers distinctly to Scotland: the second, which is
subsequent to the Union with Ireland^ and is *' for th^
more easy apprehending offenders escaping from one
part of the United Kingdom to another, and also finom
one county to another,'' relates to offenders passing fioa^
Ireland to England or Scotland^ or from those countries
to Ireland^ or from one Irish county, && to anotbefir.
It is evident from the whole context of the preseamt
statute, and from the third section particularly, that tft»e
*< parts of the United Kingdom" are there spoken ^
in the same sense as in the previous acts. By section '4.
it ought to have been proved that the expenses of fcSie
witness were tendered to him when he was served wmth
the subpoena ; but that point need not be insisted apc^o*
The sessions have sufficient power to check offences cf
this kind without the aid of the statute: they nrm^J
fine the party, though absent, for the contempt, Resr' ▼•
Clement (a), and he may be indicted for disobeying
subpoena.
M. D. Hill contr^. The process of indictment is
tedious to afford any practical remedy for the disok^^
dience of witnesses. It was decided in Bex v. Ring{^^
though at first doubted, that this Court might atti^*
for disobeying a subpoena to give evidence in an infe
Court, where the subpoena had issued from the cro
(a) 4 B. 4^ JUL 218.
(6) 8 7. JR. 585. See Ba v. Dixtm, 5 Burr. 1687.
IN THE Fourth Year op WILLIAM IV. 601
(£Rce; but it does not follow this Court may not, in the ISSI*.
exercise of its general jurisdiction, enforce obedience to "
any subpcena issued by competent authority. It is against
usual (as stated in 2 Nolan* s P. L. 541. note 4. (o) ) to
obtain a crown office subpoena where the witness lives
in a different county from that in which the sessions are
held ; but it is not the practice in other cases ; and it
would be very inconvenient, especially in remote coun-
ties, if a crown office subpoena were necessary, or if, in
default of it, this Court could not enforce the jurisdiction
of the Court below in case of disobedience. As to the
statute 45 G. 3. c. 92. s. 3., the main intention there
certainly appears to be, to enforce the attendance of
witnesses residing in one distinct part of the United
Kingdom, on subpoenas requiring their appearance in
&iK>ther; but the language used may go beyond the
noain intention, and the statute is remedial, and to be
largely construed. The statute, however, even as inter-
preted on the other side, seems to recognise the com-
mon law power now contended for ; since, in giving a
^tnmary power of punishment in the cases there men-
tioned (sect. 3.), it professes to make the service of a
subpoena in one part of the United Kingdom, to give
^idence in another, as effectual as if the same had
^en served in that pari of the United Kingdom in
^hich the witness is required to appear. But it would
^ much more effectual if, in the case of a subpoena
^^uiring attendance in the same part of the king-
dom in which it is served, the summary power did not
S^nerally exist. There is no reason that the law should
give such a power where the subpoena goes to a distant
(a) 4th ed., 1825.
place.
602 CASES IN TRINITY TERM
lSS4s. place, if it happens to be in another divtsioii of tbe
United Kingdom, but withhold it if the subpcena be
agaiMMt served at a neichbourini? place, within the same &•
vision.
Lord Denmam C. J* Supposing that the pnurtitt
contended for already existed, Mr. Hill has givoi good
reasons in support of it ; but I think it has not bees
shewn that we possess the power which we are called
upon to use. It is said that this Court has a genenl
authority; but such an authority must be acted upon
within known limits, and we cannot, however coDve*
nient it might be, give ourselves powers which have oot
hitherto been exercised. It was even doubted, in Ba
V. Bing (a), whether this Court oould attach hr £t
obedience to a subpoena from the crown office^ wheie
there was no proceeding in this Court. There is, howeTCTf
a mode of bringing witnesses within the jurisdictioD of
this Court, if it is thought necessary, by applying for a
subpoena from the crown office. The stat. 45 G. 3. c.92*
5. 3., is clearly confined to the case of witnesses who are
in other parts of the United Kingdom, namely, Scotland
and Ireland^ or required to appear there. [His Lorf"
ship here read the section as far as the words, ^* required
to appear."] It is said that this recognises the geoenl
power relied upon in making the present applicatioo*
But, first, I cannot say that I should be willing to infer
a power of this kind, even from a supposition io an
act of parliament that such a power existed; andf
secondly, I do not think that any necessary inference
of the supposition arises here, from the language of tbe
statute.
(a) 8 r. R. 5B5*
Little-
B&owKsu..
THB FOUBTH YXAR OF WILLIAM IV. 60S
[.EDALS J. As to the general autbority of the 1934.
if it could have been shewn by any practice
existing, the case might have been different* ^^s'^
ourt does not, in practice, interfere by attach*
mless there has been some disobedience of a
process of the Court, which is a contempt of the
tsel£ Those who wish to have the attendance
esses enforced by the authority of this Court,,
obtain a subpoena from the crown-office* If a
is wanted for the inconveniences which have
tinted out, the legislature must supply it.
irroN J. Disobedience to a crown-office sub-
is a manifest contempt of the authority of this
disobedience to a subpcena from quarter sessions
I am of opinion that we cannot interfere*
LiAMS J. concurred*
Rule discharged*
le King against Passman and Others. MaJ sui
he Middlesex sessions^ in December 18SS, a bill Where the pro.
lecutor of an
s found against the defendants for a conspiracy, iudictment has
rni « <• l^moved it by
prosecution of William W/ialley. The defen- cerUorari, and
ut in bail, and gave notice of trial for the en- irregularity in
essions, which began on the IGth of January the'cowt of^'*
They appeared at the sessions house on that ^^£l ^^^
ivinc: instructed counsel, and broucht several *ny represent-
^ ' o guon of hard-
» from distant counties; but shortly before sh'p imposed
on the defend-
ng of the Court, the prosecutor, without having s-nt, oblige tiie
prosecutor to
otice of such intention, lodged a certiorari to pay him his
costs incurred
remove beloir.
IN THE Fourth Year of WILLIAM IV. 605
Derdorari. At all events, the Court, in this case, might 1834.
qoash the certiorari, unless the prosecutor would con* "^
KDt to pay costs. aganut
PAIMfAir*
Lord Denman C. J. The Court has no power to
^t this rule. In Jones v. Davies{a) the certiorari
lad been unlawfully sued out : it is not easy to distin-
piish whether the Court thought themselves entitled
n that account to impose payment of costs upon the
irowcutor, or whether they felt justified in doing so
or any other reason. But here, the prosecutor having
ioDe only what he had a right to do, we can no more
mlgect him to the payment of these costs, than we
sould fine, or impose any other punishment upon him.
Is to the suggestion of quashing the certiorari, that
roold be matter for another motion, to be made upon
bown particular grounds.
Ijttledale J. The decision in Jones v. Davies (a)
vent upon special grounds : it seems the Court there
iiooght that the proceedings had been improperly re-
aoved from the great sessions ; but it is not a case which
[ should follow as a precedent. It is diiBcult to say
vhat power the Court could have over the costs below,
dthoogh they had power over the certiorari itself if it
issued improperly.
Taunton J. I am also of opinion that we cannot
g»nt these costs. When Jones v. Davies {a) was de-
^ed, the practice of removing causes by certiorari
lost before trial was prevalent in the ^/c// jurisdictions,
h appears by the report of that case, that there were
(a) 12?. J C. 143.
at
iH THE Fourth Year of WILLIAM IV. 607
id); but, at the instance of the appellants, they granted a 1834.
CBse. A rule nisi was afterwards obtained for a mandamus ' ~
The KtuG
to the justices to enter continuances and hear the appeal. «^rrrtm/
'^'^ The JusUcet of
the West
MSner now shewed cause. A mandamus lies only
where there is no other remedy: here the appellants
had a remedy given them by the case granted at ses-
noDs; they should have followed that up, and the
qaestion between them and the respondents might then
have been tried upon the statement submitted by the
sessions, and not upon affidavits. He then proceeded
to argue the case upon the point raised below.
DundaSf contr^ It is clear, from the late decision in
Btt V. The Justices of the West Riding {Bcnoer v. The
Accounts of the Meltham Inclosure Commissioners) (fl), that
the order ought not to have been confirmed; justice,
therefore, has not been done, and there is no rule of
hw which prevents applying for a mandamus where the
ttisions have granted a case.
Lord Denman C. J. I am very unwilling to interfere
^ththe practice of the courts below; and if the justices
here have themselves granted a complete remedy, I
think we ought not, by mandamus, to interfere with
the course of enquiry into which the case has been put
hjr them. The sessions cannot do better than grant a
case, if they doubt the legality of their own decision ;
vA where that has been done, I think that one of
the parties cannot come with a high hand to this
court, and say they will abandon the remedy so given,
(a) SB.i Ad, 667. 2 Nev, ij Man, 590.
and
IN THE Fourth Year of WILLIAM IV. 609
paTtits attended the Court upon such summons, Jati' lSS4f»
uarjf 23d ; and, after hearing them, the Court made the saltem,
amendment. A rule of this Court was afterwards ob- gg«<wr
tained, calling on the defendant in error to shew cause
<( why the transcript should not be amended by striking
out the words then and there^ and making it correspond
with the record as it was when the writ of error was
allowed." The affidavits in opposition to the rule
stated that, at the trial, the money was proved to have
been lent within the jurisdiction ; and also that notice
was given of the allowance of the writ, before final
judgment was signed.
Tdlett and Butt now shewed cause. This application^
if well grounded, ought not to have been made in the
present form: the prayer should have been for a
mandamus to the Court below to certify the record
properly. [Taimton J. There is a case now depending
before me, upon an application like the present, made
in the bail court. His Lordship then stated the
circumstances o^ France v. Parry ^ for which see p. 615.
post] In the present case, the Court below had
amended their record before the transcript was sent up :
to alter the transcript would vary it from the record ; in
the case just mentioned, the alteration proposed is to
make the transcript like the record. The opinion of
the judges, delivered to the House of Lords in Mellish
V. Richardson {a\ was, that a court of error cannot
examine into the propriety of amendments made by the
Court below, being a court of record. It may be, in
the present case, that this Court might have authority
(flj 9 Bing. 125. ; and see 6 Bligh, 70. S. C.
Vol- 1. S s to
SlAI)<«
IN THS Fourth Year of WILLIAM IV. 611
GOberfs Hist. Com. Pleasj p. 112. In Fiia v. Vita (a), 1884.
before the statute oFJames^ this Court held a misprision^
in the proceedings of an inferior court, to be amendable Sf^*^
here^ after error brought In Doe dem. Lawrie t.
HybaJl (ft), this Court, after error brought, directed an
application to be made to the Court of Common Pleas,
for leave to amend the record, which was granted. In
Bex ▼. Carlile{c\ a similar course was taken; and Lord
Tenierden said, after the amendment, that if error were
brought in the House of Lords, the amended record
irould be the only one of which that Court could take
Docice. {Littledale J. Is it correct to say that, in a
CBLse like the present, a transcript, and not the record
itself is sent? On a writ of error from the Common
Pleas (except in the case of a fine), or from an inferior
court, the record itself is supposed to come here {d).
ir We made the amendment as now prayed, would not it
he sanctioning, by a rule of court, the practice of
sending a transcript instead of the record ? TawUon J.
In the great majority of instances, the record is not
made up in the inferior court till . it becomes necessary
to do so. When error is brought, the Court below
puts together the disjointed members of what should be
the record, and sends them to this Court. In such a
Cftse, it is impossible for this Court to judge what may
"ftve been omitted, unless they had before them the
'"Materials which the Court below had.
J*. Pollock and Martin, contr^. The defect in this
declaration is clearly error, even after verdict : 1 fVms.
(a) Cro. EHm. 485. (b) 1 Mo. i P. 3.30. (c) 2B.^Jd, 971.
' Cf'j Sm 8 Wmu Sound. 101 n. note (1) to Jaque$ ▼. Cefor.
S s 2 Saund.
IN THE Fourth Year of WILLIAM IV. • 618
Mid does not extend to mistakes of the party. There is 1834.
DO ground for considering this a misprision of the clerk. glwiii
If the inferior Court has done wrong in making this ^«n«*
amendment, and this Court has not jurisdiction to cor-
rect their proceeding, any writ of error may be rendered
nugatory. Formerly, the mode of evading the operation
of a writ of error was to enter continuances, and delay
signing judgment till after the writ was returnable;
but the Court of error, if satisfied that the continuances
^ere entered with that view, would have made the de-
endant in error pay costs, or would have set aside the
xecution; Rejindoz v. Randolph (a), Jaques v. Nixan{b)f
i^r Buller J. So the Court will correct the intended
v-cMion in this case. In Mellish v. Richardson [c\ be-
idcs the distinction already taken, the question as to the
Qnsdiction of the Court of error was not the same as
h^^t now raised; because it was assumed that the amend-
ment there in question had actually been made upon
^e record of the Court below. If the rule now applied
^^^ is not precisely that which the Court can grant, it
^ay be otherwise shaped, so as to meet the object, which
^s to do away with the alteration of this transcript, and
to treat it as an unauthorised and intrusive act.
XK)rd Denman C. J. Assuming that the record as
^t originally stood was erroneous, and that the Court
^elow had no right to amend it, I think we have no
'^'ght to make the alteration called for by this rule.
We cannot recognise a transcript; we must take it for
Rented that the record itself is sent to this Court, and
(a) 2Sira, 834. (6) 1 T. R, 28a
(c) 9 Bing. 125. 6 niigh, 70.
S s 3 we
IN THE Fourth Y£ar of WILLIAM IV. 615
18S4.
France against Parry.
or from the Court of Passage of the Borough
of Liverpool (d).
4UNT0N J. This case came on in the Bail A court of
requests' act
Court. The affidavits, on the first hearing, ap- provided, tt»t •
defendant lued
'ed to me insufficient : others have been since filed, elsewhere for a
rule called on the Defendant's agents to shew within the cog-
;e why the signer of the writs, or officer in whose ^rtl^tnlght
ody the transcript of the record in this cause was, ^'^^/f^^ouia
lid not be ordered to amend the transcript according •?!«.««• *y **>«
^ ° Terdict that the
le amendment stated to have been made in the re- cause was
within the cog*
I in the Court below. It appears that this action nicanceofthat
originally brought in the Court of the borough of the plaintiff
?rpoolj in the county of Lancaster ; and that it was nonsuit, if
the judge or
t, who should try the catae, should not. in opm courts certify, as by die act wa^ directed,
i action brought in a local court of record, the defendant pleaded the court of requests*
ind the cause appeared, by the verdict, to be within the cognisance of that court. The
» of the court of record were the mayor and bailiffs of the town, and they were assisted,
fi trial, by the recorder, who was not a judge of the coun of record. A certificate was
I, pursuant to the act, but by the recorder alone. Held, that this did not satisfy
«t.
n error brought, the entry on the proceedings sent up to this Court was, simply, that
ipeared by the certificate of the court of record, that, &c. (without stating that the cer-
te was made in open court, or by whom it was made, except as above) ; but it was
e^ted on affidavit, that the certificate had really been lAule in open court by the
"der; that the proceedings sent up were merely a transcript of the record which re-
ted below ; and that the record of the Court below had been amended there, by enter-
he certificate as having been made fy thejudfie*, who tried the cause, in ojten court g
it was moved that this Court should amend the proceedings in conformity with the
ation said to have been made below. This Court refused the amendment; first.
Use they could not take notice that they had only a transcript before them, so as to be
:>erty to amend in conformity with the record below; secondly, because, if the docu«
t before them were to be considered as a record, they had no power to make the
ridraent, it being contrary to the fact as to the person certifying.
) Tlie above, being the case referred to by Tiiunton J. in Salter v.
? (antd, p. 609.)* i> therefore introduced here, but the judgment was
rered 'in the full court) on Saturday y June the 7th.
S s 4 tried
IN THE Fourth Year of WILLIAM IV. 617
be act requires the certificate to be given in open 1834.
joart; but the recital in tlie transcript was the follow- "
* Faamck
ng: — ** And because it appears by the certificate of ajfomu
lie said Court before whom the said issues were tried,
iat the said James had probable cause of action," &c.
rbe transcript was, however, an accurate copy of the
record. It was found that the transcript was inoperative
bere. Application was then made to the Court below,
to alter the form of the recital of the certificate in the
record. The Court below did make the alteration, and
ht amended entry was as foHows : — * ** And because it
appears by the certificate of the judges of the said court
)efbre whom the said issues were tried, duly made, and
trtified by the same judges in open court, according to
be statute in such case made and provided, that the said
hmes had probable cause of action," &c. : — and cer-
ainly the alteration was conformable to the fact, in so
u* as it stated the certificate to have been made in open
oort The way in which the record was made up
^ this. The certificate was indorsed by the town-
lerk's clerk on the back of the proceedings, as they
tood up to the trial : but no record, strictly speaking,
i ever prepared in the Borough Court, unless in obe-
lieDce to the mandate of a superior court, or unless
'hen required by the parties. The recorder signed the
ertificate, indorsed as before mentioned, in open court;
od the record of the judgment and proceedings at, and
deviously, and subsequently to the trial, constituted the
^rd, which was settled by counsel, and of which the
■^script was subsequently sent to this Court in obe-
lience to the writ of error. The record below was
fterwards amended v^ith the express assent of the Court
^low, and in obedience to its direction.
On these facts, it is very doubtful what was the
nature
Parkt.
IN THE Fourth Year op WILLIAM IV. 619
he trial was before the mayor and baili£&, who alone 1834.
ire the legitimate judges of the court. It should,
h^ore, be signed by them, not by the recorder; and, agaiiut
mseqaently, the amendment prayed for would be con-
reiy to the facts. Therefore, assisted as I am by the
ndgment of the Court in Salter v. I^ade^ 1 think this
nle must be discharged*
Rule discharged.
JosqA Addison^ in support of the rule.
Cromptorij against the rule.
Ward against Tummon. ^^^'
rHE defendant was arrested on a capias, in an action ^bere plaintiff
arrests defend-
OD promises, at the plaintiff's suit. The affidavit to ant on a capiaa
(dd to bail stated the debt to be for use and occu- promises, and
adoD. The plaintiff afterwards declared in covenant. caronimt,"the
L role was thereupon obtained, calling on the plaintiff ^^^^^4,
isbew cause why the bail should not be discharged, ^'.j^V^d* ***
nd the proceedinffs set aside for irregularity. daration, imt
^ ^ & .7 wiU not dis-
charge the b«I.
Jrchbold, on a former day of this term, shewed
Mue(a). The defendant asks for too much. There
I no objection to the writ, and therefore the plaintiff is
ntitled to his bail. As to the declaration, the plaintiff
lay be considered as declaring by the by, for a different
ause of action from that specified in the writ (&). This
lay be irregular, perhaps, since the late Act for the
loiformity of Process ; but it does not affect the writ.
(a) Before Lord Denman C. J. and WiUianu J. May 31 st,
<^) See, howcTcr, Teiherington v. Gotding, 7 T. R> 80.
J. Ln Addphm
620 CASES IN TRINITY TERM
18S4. J. L. Adolphus contra. In King v. Skejgington (a), the
writ of summons was in an action of trespass on the
TUMMOK.
Ward
agaimt case upon promises, and the notice of declaration wb
in an action of trespass on the case; and the Cooitof
Exchequer held, under the Act for Uniformity of Pio*
cess, 2 W. 4. c. 39., schedule, No. 1., that the proceed-
ings were irregular, and set them aside. In Thompffk
V. Dicas {b)j the same Court held, that, since that acti
the writ thereby given is the commencement of the
suit (c), and must specify the true form of action; and
that the declaration must pursue the form of action SD
specified. The declaration there was set aside, bdngii
trespass, whereas the writ was in trespass on the CMb
No objection of this kind could ever be sucoessfiil, if
the plaintiff, on its being taken, might allege that tk
declaration was by the by. The variance between tbe
writ and declaration discharges the bail. [^Wittiaml !
It seems to me that you are asking too much. I qoei- \
tion if both parts of the rule can be made absolute.]
Cur. ado. cdt J
Lord Denman C. J. now said : — We think you in
entitled to have the declaration set aside, but not tbe
bail discharged.
(7. L, Adolpkus asked if the rule might be taken in the
alternative.
Lord Denman C. J. No : we think the bail are not
entitled to be discharged.
Rule absolute for setting aside the declaratioiK
(a) I Cro. ^ M. SSZ. 3 Tyr, 318.
(b) 1 Cro. <|- ^f. 76S. 3 T^, 875.
(c) S* P, AlUon ▼• Underkill, 1 Cro, ^ M. 492. 3 2>r. 427.
IN THE Fourth Year of WILLIAM IV. 621
18S4.
I
[ In the Matter of Arbitration between Charles ^^nd^*
Wright and Charles Pole.
: CHARLES WRIGHT, proprietor of the Ship Inn An innkeeper
L v haTing insured,
at Dover, effected an insurance, as after-mentioned, ag^'nst fire, bis
" interest in the
vith the Sun Fire Office Company. In Naoember 1832, inn and
afire broke out on the insured premises, and Wright not, upon such
claimed compensation from the company for the loss beingpartiT^
thereby occasioned. His claim being objected to, the J^nrt'STin'
parties, by deed, (which was afterwards made a rule of J^][^ned i^
Court,) referred the dispute to arbitration. It appeared *»»• **»""« .
^ '^^ other premises
Wore the arbitrator that, by the policy of insurance, while his own
. , ytvt9 being
rfrigJu and another (his partner when the policy was repaired, and
j\ t J • 1 1 t . , . by the refusal
s^ed) had insured, among other things, *'on their of persons to go
mtferes/ only in the said Ship Inn and offices, 1000/." while under
By virtue of this clause, Wright made the following de- i^^^'„ living
mand before the arbitrator: — " Also such damaires as he '©-'"•^^ **»e
^ premises m
cu satisfy the arbitrator he has sustained under the claim proper time,
^vered to the Sun Fire Office for his loss in his interest
m the said Ship Inn and offices; such damages consisting
in rent paid by him to his landlord, J. M. Fector, Esq.,
the hire of other houses or apartments whilst the apart-
ineDts damaged in such inn by the fire were undergoing
tie necessary repairs, and the loss or damage sustained
I7 him by reason of various persons refusing or declin-
^g to go to the said Ship Inn whilst the apartments so
<l«naged were undergoing such repair." It was objected
tbat this claim was not maintainable, for that the interest
iosared could be understood only to mean the interest
Wright had in the fabric of the inn and offices, by
reason
and PoLi.
IN THE Fourth Ybar of WILLIAM IV. 625
ley are covered by the insurance actually effected.] In 1834.
hmUy V. Cohen (a), Lord Tenterden said that* in a , — —
lolicy of insurance, '^ although the subject-matter of the Wkioht
Dsorance must be properly described, the nature of the
Bterest may in general be left at large : " Littledale J.
oakes a similar observation ; Parke J. says, ** the par-
icular nature of the interest is a matter which only
«ars on the amount of damages ; it is never specially
etout in a policy;" onA PattesonJ. adds, *^it is only
leoessary to state accurately the subject-matter insured,
lot the particular interest which the assured has in it"
A Flint V. Flemyr^ {b) it was held, that a ship-owner,
ID an insurance of freight, might recover for the profits
rbich he would have made by carrying his ovm goods.
Tamton J. The profits were of the same nature,
rhether he carried his own goods or those of another.]
KeUy^ contra, on stating that he should not dispute the
iward on any point but this, was stopped by the Court.
Lord Denman C. J. We all think the case quite
dear on this point. The interest in question might have
been the subject of insurance, but an arbitrator cannot
take into consideration the possible profits of an inn,
oader the shape of an interest in buildings.
Littledale J. concurred.
Taunton J. If a party would recover such profits
tt these, he must insure them qu& profits. I never
heard before of a recovery of profits of a business as an
{•) ZB.i Ad, 478. (6) 1 B. i Ad, 45.
inci-
Brazikr.
IN THE Fourth Year of WILLIAM IV. 625
^presentatives of the plaintiff Johnson (who bad died), 1834.
»^ personal representatives of Mutton^ and the third """~
JoHNsoir
^questration creditor, upon notice to their respective jigainst
t^omeys, to appear before this Court, and state the
Bt:are and particulars of their respective claims to the
5>ods seized in execution under the above writs of
evari facias, and to maintain or relinquish the same,
ind to shew cause why the Court should not make such
order respecting the same as to it should seem fit,
pursuant to the statute (1 & 2 17^. 4. c. 58. s. 6.) in that
case made and provided, and in the meantime all pro-
ceedings against the bishop and the sequestrator be
stayed.
It appeared by affidavits filed on behalf of the plaintiff
Jahnson^s representatives, in answer to this application,
that his execution, in the suit in this Court, issued upon
a judgment entered up on a warrant of attorney. The
warrant of attorney was in the common form, and had a
memorandum indorsed, stating that it was given to
Kcare an annuity granted by the defendant for the term
of his natural life, described in an indenture, of even
date with the warrant of attorney, made between the
defendant and the plaintiff Johnson, whereby it was
agreed that judgment should be entered up on the
warrant of attorney, but no execution issue thereon till
the annuity should have been in arrear fourteen days
after any of the days of payment in the said indenture
mentioned ; but in case of such arrenr, execution might
be sned out for recovery of the amount, and all costs
occasioned by nonpayment
Sir James Scarlett now shewed cause on behalf of the
representatives of Mytlon. The warrant of attorney, in
Vol. I. T t this
Bjuxixr.
626 CASES IN TRINITY TERM
1884. this case, is not on independent securityi but refers tot
deed. If that deed create a charge upon the benefice^
Johnson
againti which the warrant of attorney is given to enforcei the
warrant of attorney and sequestration are void; and
they cannot be held good till the deed is produced to
satisfy the Court that they are so.
Adams Serjt. and Follett^ for the representatives of
Johnson. It is established, that if the warrant of attorney,
in a case like this, be, upon the face of it, free from
objection, a judgment entered up on it is available for
recovering arrears of the annuity : not so, if the wanmt
of attorney refer to a deed which is void under 13 Eix>
C.20. 5.1., as charging the benefice, and inoorponte
the terms of that deed ; Fl^ht v. Salter (a). Gibbons t.
Hooper (i), Kirlew v. Butts {c\ Britten v. Wait {d)i and
Cokbrooke v. Layton (^), shew the distinction {g). The
plaintiff JbAfuon is not bound to shew that the indenture,
in this case, is free from objection; and if it were
objectionable, the warrant of attorney is still good.
22. V. Richards^ for the Bishop and the sequestrator,
was not heard.
Lord Denman C. J. There is no ground laid for
requiring the production of this deed.
LiTTLEDALE J. I am of the same opinion. A part^
has no right to come into this court, as into a court 9^
equity, with a bill of discovery.
(a) 1 B. 4- Ad. 673. (b) 2 B. ^ Ad. 734.
(c) 2 B. ^ Ad. 736. note {b). {d) S B. ^ Ad, 915.
(c) 4 B.^ Ad. 578.
(g) Sec also Nctvland ▼. Watkin, 9 Bing' 113., and Faordoih ▼. Gvr-
ney, 9 Bing, 622.
Tauntok
IN THE Fourth Year of WILLIAM IV. 627
Taunton and Williams Js. concurred. 1834.
Bkazieju
JoiiNsoy
7)1^ Court ordered, that the Bishop or sequestrator against
do pay over the money now in the hands of the seques-
trator under the writ of sequestration issued in this cause^
to the representatives of the plaintiff JbAi»on.
The Kino against Wilson. M<miiay,
^ June Sd,
A writ of certiorari, of Michaelmas term last, was A conTicUon
,. , . n r - 1 ' under stat.
directed to two magistrates of Leicestershire^ com- s/f. 6. c. 9.
minding them to send up all and singular records of piaint mmde to'
conviction under tlieir hands and seals, whereby John in^^eil^'into^
Wilson vfBs convicted of unlawfully, and with strong ^^^^^!,^^^
hand and armed power, detaining the possession of a *." un'a^'fui
*^ or ejectment, and
certain messuage in, &c. against the statute, &c., and « forcible de.
adjudged for such offence to pay a penalty of 5/.; and defendant; that
the justices, oa
also an inquisition holden at, &c. on, &c, touching the personal view,
laid forcible detainer, and all proceedings had thereon, fendant for-
with all things touching the same, as fully and perfectly ^!ccordWi^u}^^'
as they had been taken before them (the justices), or ^1^^^"/*^""^
any of them, and then remained in the custody or therefore con-
•' •' Ticted by them
power of them or any of them. To this writ the of forcible de-
tainer by their
magistrates returned the conviction and inquisition, with own view. The
defendant gave
a written notice
to the justices,
''^ the conviction, denying the force, and complainant's possession. On an inquisitioi
^'^^■^ards had, the jury found a seisin in fee by the complainant, and an unlawful entry,
^f^^D, and forcible detainer. The justices indon«ed upon the inquisition a memorandum,
p having reseixed the premises and put the complainant into possession. The conviction,
I^^^Uition, and memorandum having been returned by the justices to a certiorari, requir-
^ * return of the conviction and inquisition, and all things touching the same, this Court
■^fosed to grant a mandamus to amend the return by returning the information, and by
'^^rning on the face of the conviction the evidence given touching the entry, and the facu
^^'^'ching the conduct of the defendant on tlie view, it not being suggested in affidavit that
^T evidence was received by the magistrates on the view. The Court gave no opinion us
^ ^^e validity of the conviction.
T t 2 a me-
WlLflON.
628 CASES IN TRINITY TERM
1834. a memorandum indorsed on the latter. The coDTiction
was as follows : — " Leicestershire (to wit) : Be it re-
againxt membered, that on, &c, at Market Harborough in the
county of L. aforesaid, Thomas Bates and John StUa
complain to us, the Rev. Edward Griffin^ clerk, and
William de CapeU Brooke^ Esq., two jusUces, &C., as-
signed, &c., that John Wilson^ late of^ 8u^, into the
messuage of them the said Thomas Bates and Jokn Stiles^
situate in the parish of M. H., and being the messuage
situate between the house in M. H^ in the occupatioii,
&c., and the house in M. H. aforesaid, in the occupatioo,
&C., did, on, &c., enter^ and them the said T. B. and
J, &, from the messuage aforesaid, whereof the said T.B.
and J. 5., at the time of the entry aforesaid, were seised
to them and their heirs in their demesne as of iee^
unlawfidlt/ ejected^ expelled^ and amovedy and the said
messuage from them the said T B. and J. S. unlawfbUy
with strong hand and armed powerj doth yet hold and
from them detain^ against the form of the statute, &c:
whereupon the said T. B. and J. & then, to wit, on, ScCf
at, &c., pray of us, so as aforesaid being justices, that a
due remedy be provided to them in this behalf accord-
ing to the form of the statute aforesaid ; which complaint
and prayer by us the aforesaid justices being heard, we
the aforesaid Eduard Griffin and IVilliam de Capdl
Brooke to the messuage aforesaid personally have come,
afid do there Jind and see the said John Wilson the qforem
said messuage wit/i force and arms unlawfully with strong
hand and armed power detaining^ against the form of the
statute in such case, &c., according as they the said T. &
and J. S. so as aforesaid have unto us complained : there-
fore it is considered by us the aforesaid justices, that the
aforesaid John Wilson of the detaining aforesaid with
Strang
IN THE Fourth Year op WILLIAM IV. 629
strong hatid, ly cur awn proper view then and there as 1884.
(^etaid had, is convicted according to the form of the
statute aforesaid : whereupon we the justices aforesaid againti
do set and impose a fine of 5/., to be paid by him to our
said Sovereign Lord the King for the said offence, and
do cause him then and there to be arrested ; and the
said Join Wilson^ being convicted upon our awn proper
view of the detaining aforesaid with strong hand^ as afore-
said, by us the aforesaid justices is committed to the
gaol of our said Lord the King at, &c., being the next
gaol to the messuage aforesaid, there to abide until he
shall have paid the said fine to our said Lord the King
for his offence aforesaid : concerning which the premises
aforesaid, we do make this our record. In witness
whereof^ &c (Signed and sealed by the two justices).''
Hie inquisition purported to be taken on the 10th of
September by the oaths of twelve, &c., before the above-
named justices and another, and expressly found a
lawful and peaceable seizin in fee of the premises, by
Bates and Stiles^ and an unlawful entry, ejection,
expulsion, and amoval, and an unlawful holding and
detainer with strong hand and armed force, by Wilson.
On this inqusition the following memorandum was
indorsed : — ** County of Leicester: Be it remembered,
that we Edward Griffin^ and John Wetherallj clerks,
and WiUiam de CapeU Brooke^ Esquire, justices in the
within inquisition named, did, this 10th day, &c.,
PCi'Mnally go to the messuage and other the premises in
^6 within written inquisition mentioned, and did reseize
^^ same, with the appurtenances, and did restore and
put the within named Thomas Bates and John Stiles into
^^ possession thereof, according as they before the
T t 3 entry
WiLSOK.
6S0 CASES IN TRINITY TERM
18S4>. entry and forcible detainer thereof by John WtUan^ in
''—^ the said inquisition mentioned, were seized, aooordingto
The Kino ^ . ,
a^Qtnu the form of the statutes in such case, &c* Giveiiy &c
(Signed and sealed by the three justices^'
In Hilary term last, M. D. Hill obtained a mk^
calling upon the three justices last mentioned to ibev
cause why a mandamus should not issue, commandiDg
them to amend the return to the certiorari, by retaming
the information on which this conviction was founded,
and also by setting forth on the face of the oonTiction
the evidence which was given before them touching the
entry into the premises therein mentioned, and also the
facts touching the conduct of the defendant on the view
had by the justices, and on which facts they adjudged
the defendant to be guilty of the forcible detainer in the
conviction mentioned ; and also the depositions taken od
the inquisition. The affidavits upon which the rule was
obtained suggested certain particulars as to the conduct
of Wilson at the time of the view, and also as to the
evidence given at the inquisition ; and it appeared from
them that, after the conviction and before the inquisi-
tion, Wilson served one of the magistrates with a written
notice, containing a traverse of the force allied to have
been used by him ^^ touching the possession of the said
premises," and containing also an allegation that StSa
and Bates were never in possession of ttie premises, but
had intruded themselves thereon. It further appeared
by the affidavits, that, after the inquisition, the defend-
ant was put out of the premises, and possession given to
Stiles and Bates, But it was not suggested that any
evidence was given to the justices at the time of the view
upon which the conviction was made.
Humfirry
WiLSOM.
IN THE Fourth Year of WILLIAM IV. 63 1
Humfrey and FoUeit now shewed cause. The statute 1834.
3 G. 4. c. 23. 1. 1. ffives a general form of conviction '
for cases where no particular form has been directed; ^?p*^
and the general form sets out the evidence. But this is
a conviction under the statute 8 Hen. 6. c. 9., the second
section of which enlarges the provisions of the statute
15 Mich, 2. c.2^ recited in the first section; and the
effect of the two sections is, that the justice or justices,
upon complaint made of forcible entry or holding of
lands, tenements, or other possessions, are to go to the
place where such force is made ; and if they or he find
any persons holding such place forcibly, such persons
ahall be taken and put into the next gaol, there to re-
Kxiain convict by the record of the same justices or jus-
tice, until they have made fine and ransom to the king.
^Zliere is, therefore, no evidence required, except the
nding of the justices upon view ; and such finding is
pressly set forth in this conviction. Supposing oral
i^idence to have been given for the defendant, the jus-
upon the view might find against it, though
ncontradicted, and convict accordingly. In Rex v.
^akl€i/{a) a conviction was quashed, because neither
complaint nor conviction alleged an unlawful ejec-
n, which, as Pattesan J. there pointed out (£), was con-
ined in the precedent in Rex v. ElweU (c). Here the
mriction recites that the complaint was of an unlawful
Section and forcible detainer, and states that the jus-
tices found an unlawful and forcible detainer on the
'^iew, according to the complaint, which is thus em-
Viodied in the conviction; and the statute gives the
justices power to convict upon the view of a forcible
(a) AB.^ Ad. 507. S, C. 1 Nev, ^ M, 58. (b) ^ B. 4; Ad. 314.
(c) 3 Ld. Baym. 1514. 3 Ld. Batftn. 360.
T t 4> holding.
Wilson.
632 CASES IN TRINITY TERM
1834. holding, after such complaint made. But, when tlie
conviction is upon the view of the justices, there can be
a!;aMU no cvideuce to set out The answer of the magistratei
to the mandamus would be, that they did not act upcm
evidence at all, but on their own view. Besides, the
inquisition shews the fact of the unlawful entry ; and
by Stat 3 G. 4. c. 23. s. 3., mere want of form is not
sufficient ground for setting aside a conviction when the
merits have been gone into, and when there has been,
either no appeal, or an affirmation of the conviction
on appeal ; and the trial on this inquisition may be con-
sidered to be in the nature of an appeal from the first
conviction.
M. D. Hilly m support of die rule. The applicatien
here is, not to quash the conviction, but to have the
facts set out by the magistrates. It is clear that, if any
unlawful entry took place, the view was subsequent to
that, and upon that view nothing could appear but the
forcible detainer. Now, it is admitted that a forcible
detainer is not sufficient If there has been no evidence
besides the view, the magistrates should so return.
Then the opinion of the Court could be taken as to the
propriety of the conviction; at present it cannot; Bix
V. Justices qfCashiobury (a). It does not appear, by the
return to this certiorari, what ground the magistrates
proceeded upon. [Lord Denman C. J. You say, that
either the justices saw the forcible entry, in which case
they may set out that they did so; or they did not see
it, and then the conviction is bad.] At any rate, the
return should shew whether the magistrates have pro-
(o) 3 D, ^ R, 55.
ceeded
IN THE Fourth Year of WILLIAM IV.
oeeded open any, and if so what, evidence of unlaivful
entrj, or have thought such evidence unnecessary. The
statute 3 G. 4. c. 23. 5. 1. is imperative; and the Court
requires the material evidence to be very exactly set
oat ; /n rr Bix (a). This is not a defect of form.
6SS
1834.
Tho Kiica
figanut
VfiLaoVm
Xiord Denman C. J. In the case In re Bix (a), there
must have been some aflSdavit, shewing that there had
been evidence given which was not exactly set out in
the conviction. So, in Rex v. lVarrf/brd{b\ it was appa-
rent upon the face of the Conviction that the evidence
was set out, not according to the words actually used,
but according to the technical construction of its result
But here the conviction does not set out evidence at all ;
and the Court is asked to require the justices to do so.
That which did take place is effectually set out ; and
the question, whether the proceeding be good or not,
ouiy be discussed as the conviction now stands.
LiTTLSDALE J. As far as the mere inquisition is
^ncemed, there might, perhaps, be no harm in having
^ that relates to it set out. But as to the rest, the
justices are authorised by the statute to go to the place ;
^d if they find a forcible holding, they are to convict*
^^ Seems to me that it is left to them to ascertain the
^^ upon their own view, and that they are not bound
^ set out any evidence. Whether the conviction be
good or not, I do not say.
Taunton J. The rule calls upon the justices to
amend the return to the certiorari, as to the conviction,
(fl) 4D, i R. 359.
(6) Sn. i R. 489.
m
6S4 CASES IN TRINITY TERM
1834. in three pardcnlarg. First, to retam the infonnatkm oO*
,^ _ which the conviction was founded. I think that b alreid^
Toe Kino
aipmut returned in substance by the recital in the conTictioiv^
\
Secondly^ to set forth on the &ce of the conviction the <
dence which was given before them touching the entry inU^
the premises. But it appears by the conviction already^
that they proceeded upon their own view. Thirdly, tfp
set forth on the face of the conviction the facts toochin^
the conduct of Wilson on the view had, on whidi bttm
they adjudged him to be guilty of the forcible detaiiier«»
But it does not appear that they have convicted apoim.
any such facts : the conviction purports to be made on^
view ; so that, if we were to comply, we might be calliii^
on them to do what they cannot da I think, therie«>
fore, that we ought not to grant this mandamus^ oo tbe
mere speculation that the evidence called for exists. I
am, however, not to be considered as pronoandog aiiy
opinion respecting the validity of the conviction.
Williams J. I am of the same opinion. Tbeie
are no facts wanted, and none that appear to be pa^
posely kept back. In the case first cited in support of
the rule, the affidavits suggested the deficiency: bere
the justices, whether right or wrong, have stated tint
they convicted on the view. Indeed the object of tk
application seems to have been to obtain the opinioD ^
the Court as to the goodness of the conviction.
IN THB Fourth Yeae of WILLIAM IV. 635
1834.
Doyle against Anderson. ^!I^S'.
Doyle against Stewart.
^HESE were actions on the same policy of insurance. Where a plain"
i- . tr ^ tiff brings
Nine other actions had been brought on the same sereral actions
policy, and the eleven had been consolidated upon the ^^ofas-
usual terms, that the proceedings in ten should be stayed, *^!^^*J!^^
the defendants severally undertaking to be bound by the courtwUi^not
verdict in the eleventh (a). The defendant obtained a »"«bou' the
^ consent of the
verdict in this eleventh, Doyle v. Dallas (6), and costs plaintiff, make
a consolidation
were taxed against the plaintiff; but they had not been rule upon the
ptid, and the plaintiff was in prison for debt, and had plaintiff and
Applied for relief under the Insolvent Debtors' Act. bound In all'
The plaintiff proceeded in another of the eleven actions, J^* ^^1%]^^
Dyle V. Douglas^ and obtained a verdict, and the costs ^"^'
We taxed and paid by the defendant in that action.
Afterwards the plaintiff proceeded in the other nine
KtioDs. MauUf in Easier X^rm last, obtained a rule, on
affidavits of the above facts^ calling upon the plaintiff to
•tew cause why the proceedings in Doyle v. Stewart
should not be stayed, upon the submission of the plaintiff^
^defendant in that action, to be bound and concluded
*^y tlie verdict which might be obtained in Doyle v.
^"^derton. The plaintiff agreed, that if the Court
S'^ted such a rule in these two actions, the like rules
*ould be made in the other seven.
(«] See Do^ ▼. Doughih 4 P. 4* Ad. 544. {b) 1 M. 4- Rob» 48.
Kelly
Ahdbesoit.
sse CASES IN TRINITY TERM
18S4. Kelfy now shewed cause. The Court has no power
"""^ to compel the submission of the plaintifl^ as required bj
agahui this rule* The submission of the defendant has alwtyi
been made a part of the consolidation rule, because he
seeks an indulgence, which is granted to him npoo his
consenting to the terms imposed. Here the plaintiff
seeks no indulgence, and refuses his consent. Tlie
very terms in which the rule is drawn, shew that die
consent of the plaintiff is necessary ; but that consent
cannot be exacted from him. He obtains no benefit
by the consolidation. It cannot be said that the plain-
tiff's proceedings in these two causes have been vex*
adous : he may have better evidence for the one cause
than for the other; and this is shewn by the results of the
two actions of Dqi/le v. Dallas and Doyle ▼• Dou^au
But, even if he had proceeded vexatiously, the Comt
would not interfere to the extent required by this rule.
Supposing the rule to be made absolute, as it is now
worded, the object sought would not be attained : fi>r
the staying of the proceedings is made to depend on the
submission of the plaintiff, which he ipay refuse. The
language of the Court in Doyle v. Douglas {a) shews
that the plaintiff is not to be bound by the consolidatioD
rule.
Maule in support of the rule. If the terms of the
rule be inaccurate, they may be modified so as to ex-
press the real intention, which is, that the proceedings
in Doyle v. Stewart should be stayed, and that botb
parties in that action should be concluded by the erent
of Doyle v. Anderson. The understanding has, certainly)
{a) 4B, i Ad* 546.
for
IN THE Fourth Year of WILLIAM IV. 637
for a long time been, that both parties were bound by 18S4.
tbe consolidation rule, although the rule, as ordinarily
drawn, has not so expressed it Neither is such an ex- agamtt
_ , n t r^ i 1 . AliDEȤOjr.
ercise of the power of the Court unprecedented m cases
of vexatious proceedings. Substantially, there are but
two parties to the whole set of actions, the assured on
the one side, and the body of assurers on the other :
and tbe object of the consolidation rule has always been,
that in this case, as in other actions, a single trial may
decide that which is, in fact, only a single question.
The rale is the creature of the Court; and therefore
the Court has power to determine its conditions and
c&ct. If circumstances require an alteration in its
form, the Court is competent to make it; and. the
deration in the pleadings in actions on policies, intro-
duced by the new rules, will probably render it neces-
sary to alter the practice as to consolidation rules, since
iQuch of what was formerly given in evidence under the
general issue, must now be specially pleaded. Accord-
uig to the present practice, the consolidation rule cannot
he made till after issue joined : if this practice be ad-
hered to, the costs of the special pleas and other plead-
•
u^gs to issue, which must be included in the action
against each underwriter, will cause a great and useless
increase in the expense of the proceedings. The de-
fendants do not ask for an indulgence, but only for that
^hich justice requires to be done. If it is just, the only
<)uestion is, whether the Court has the power of doing
^M and the Court has the power, by staying the pro-
^^^^gs, and that without the consent of the parties,
b an ordinary consolidation rule, the proceedings are
^^yed on the consent of the defendant to be bound by
^e event of the cause tried, without any consent on
638
CASES IN TRINITY TERM
1834.
DOVLC
against
Amobe&on.
the part of the plaintiff. They are, indeed, only ttajed
till after the trial ; but the Court might, on the ame
principle, stay them indefinitely, or till the plaintiff
consented.
Per Curiam (a). We think that we cannot oompiy
with this application. We might, perhaps have
glad to find that we had sach a power ; bot the
ciple of the role has always been, that a party askiif
for a favour must pay a price for it. It may be^ thit
the proceeding is also for the benefit of the plaintiff^
but we cannot force a party to accept a benefit for which
he does not ask, and impose conditions upon him far a^
doing.
Rale discbaigei
(o) Lord Denman C. J., Littiedale, Taunion, and mOmmt h>
Monday^
June 'id.
Whitaker against Edmunds.
In an action
on a bill of
exchange by
a third in-
dorsee againtt
the acceptor,
the defendant
cannot put tde
pliuntiff to
A SSUMPSIT by the indorsee of a bill of cxc4aDge
against the acceptor. The declaration stated tbe
bill to be payable four months ader date ; and to btte
been drawn by Rowley j payable to his own order, aD»
indorsed by him to Cooke, by Cooke to Shieldsy and by
Uon7b7gi^>ng '^'^^* ^^ ^^^ plaintiff. The defendant pleaded tk«
eride^ncTto general issue, and gave notice of disputing the considtf'
fthew the want
of it, merely
as between the drawer and his indorsee, and each subsequent indorser and indoncc; ^
he must also shew the want of consideration as between himself and the drawer, ^^j
this purpose, it is not enough to prove that the drawer, on the day before tbe matnritfj''
the bill, procured all the indorsements to be made without consideration, in order that <"*
action might be brought by an indorsee, on the understanding that the money, when tff^
vered, should be divided beuecn one of the indorsee! and the drawer.
atioo*
Edmuvm.
IN TUR Fourth Year of WILLIAM IV. 639
atioD. On the trial {a) before Patteson J., at the Middlesex \ 834.
sittings in this term, the making of the bill, the indorse-
Whitakir
oieait, and the acceptance were proved. The defendant agamu
gave prima facie evidence to negative consideration be-
tween Bjonxiey and Cooke^ Cooke and Shields^ and Shields
and the plaintiff. The only facts proved to n^ative
consideration between the defendant and JRowley, were
the following: — A witness stated that, on the day
before that on which the bill became due, Baaoley asked
him to discount the bill ; that he refused, but offered to
introduce Bxmley to a person who would discount it;
diat, accordingly, he afterwards introduced Ratdey to
Skidds^ who agreed to sue upon the bill, provided
another name were put to it ; that, thereupon Eowleif
called Cooie from an adjoining room, that Cooke and
Shields indorsed, and it was agreed that, when the
money was obtained, Rowley and Shields should divide
it between them. The learned Judge considered these
facts not sufficient to put the plaintiff upon proof of
consideration, because the defendant had not shewn
that there was no consideration between the drawer and
acceptor, and because these facts did not amount to a
fraud which disqualified the holder from suing; and
he held that the defendant must go further, and shew
^'hat passed between the acceptor and drawer. The
plaintiff* had a verdict, without any proof of consider-
ation being given by him.
H(^ins now moved for a rule to shew cause why
^he verdict should not be set aside, and a new trial
had. The circumstance of two additional parties being
)
(a) See 5. C. at N. P., 1 M. i Rob. 566.
Edmoiim.
6+0 CASES IN TRINITY TERM
1834. procured to the bill by the drawer, on the day
"~~~' its maturity, for the purpose of suing upon it, and
againit agreement that one of the indorsers should have a si
of the money recovered, are at least eridence from whii
a jury might infer, either that the drawer, who up to tlitr Mm
day was the sole party, had not himself a good groiiii^^»
of action, and, not being able to sue upon the bill,
not communicate such a right, upon this state of frdir^
to an indorsee ; or else, that there was fraud, to whk
the drawer was privy ; and, if so, the plaintiff ought
have proved the consideration ; Heath v. Sansom («)•
Lord Denman C. J. It does not appear but that th -
defendant actually owed the amount of the bill to
drawer; and if he did, that which passed on the
of the bill to the intermediate parties, cannot b^
defence.
LiTTLEDALE, Taunton, and Williams J&
Rule
(a) 2B.i;A(L S91.
Ill THE Fourth Year of WILLIAM IV. 6
1 834.
Wx^iGHT and Another against Dewes, Cheatle, J^^'
and Others.
T^ICL A RATION in trespass ; first count for break- A tenant's
-■^-^ ... J growing crops,
ing and entering plaintifis' close at Chilcote^ and taken in execu-
. • , . , . tion and sold,
culling down, reaping, and carrying away ten acres and remaining
of iKrIieat, his property, there growing ; second count for m'Les^'mison-
cutting down and carrying away five acres of wheat of '^^ unxwe'of
the plaintiffs, growing and being in a certain field in being reaped,
Chilcate^ &c. Plea, the general issue. The cause was trainable by the
^ ^ landlord for
^Hed at the Derbyshire Spring assizes, 1833, and a ver- rent become
j« due afVer the
^ict found for the plaintiffs, as after-mentioned. On taking in
i^otion made in Easier term, following, to enter a non- Such crops
•^it, the Court directed a case to be stated, which was 8o7a£n sold,
as follows:— and left on th;
premises, and
The plaintiffs brought an action for a debt of more **** •"«*" of
■^ ° rent paid, pur-
•han 1000/. due to them jointly, from one Benjamin »uanttosut.
mjg, 8 Ann, c. 1 4.
^ouslei/f who occupied a farm at Chilcote^ Derbyshire ^ s, i.,theUnd-
^ / 1 • ^^^^ cannot dis-
^ tenant from year to year (not under any written train them for
P^eement) to one Francis Robertson. Having obtained quently due,
dgment, the plaintiffs sued out a writ of fi. fa. there- tT.uL^u""*''
on, directed to the sheriff* of Derbyshire, commanding enJ^Jd^^^^^the
^ to levy 1061/. lis. The sheriff; by virtue of that agreement with
•^ ^ ^ the sheriff (to
t> seized certain goods and chattels of the said use and expend
the produce in
\/amin Mousley on the said farm, in September 18SJ, a proper man-
ncr) directed
remained in possesion of the said goods and chattels bystat. se c. J.
^ the SI St of October following. On the 20th of Noris'he
en-
"fer, the sheriff seized under the some execution the Ull^/from ^o
s of wheat, which were the subiect of this action, «*»«"<» of«"ch
•^ ' agreement, that
the straw of
uch crops was sold for the purpose of being carried off the land, contrary to sect. 1.
L. I. U u and
IN THE Fourth Year of WILLIAM IV.
643
for rent accuring after the execution and sale, unless such
com be left on the premises an unreasonable time after'
it is ripe. That case has never been questioned ; and it
overrules a dictum of Thompson B. to the contrary effect,
in Gwilliam v. Barker {a). ^Taunton J. That was an
obiter dictum, and not necessary to the decision of tlie
case.] On behalf of the defendants, reliance will pro-
bably be placed upon the statute 56 G. 3. c. 50 {b) ; it
may
1834.
Wbioht
against
Dbwis.
(a) 1 Pricey 277.
(6) S6 G» S. c. 50. $• 1, <* Whereas it it expedient that the execution
of legal process should be so regulated as to be consistent with good hus-
bandry, and the effect and intent of covenants and agreements entered
into between the owners and occupiers of land let to farm ; Be it enacted,
&c.y Tliat from and after the passing of this act, no sheriff or other officer
in England or Wales, shall, by virtue of any process of any court of law,
cany off or sell or dispose of for the purpose of being carried off from
sny lands let to hna, any straw threshed or unthreshed, or any straw of
crops growing, or any chaff, colder or any turnips, or any manure,
compost, ashes or seaweed, in any case whatsoever ; nor any hay, grass or
grBMiB, whether natural or artificial, nor any tares or vetches, nor any
foots or vegetables, being produce of such lands, in any case where, ac-
cording to any covenant or written agreement, entered into and made for
Ae benefit of the owner or landlord of any farm, such hay, grass or
g^ liHim, tares and vetches, roots or vegetables, ought not to be taken off or
^'ftUiolden from such lands, or which by the tenor or effect of such
oo'vnenants or agreements, ought to be used or expended thereon, and of
^ls£<}i covenants or agreements, such sheriff or other officer shall have
a written notice before he shall have proceeded to sale."
ly sect. 2. it is enacted. That the tenant shall, on knowledge of the
against his goods, give a written notice to the sheriff, &c. of such
or agreements known to him, as may relate to and regulate the
and expenditure of the crops or produce of the land, and of the land-
's name and reudence, and the sheriff, &c. shall give notice to the
'^'^^^ord and bis agent of possession having been taken of any such crops
^ l^^voduce, and, in case of the absence or silence of the landlord or agent,
postpone thtt sale till the latest lawful day.
3. " Ph>vided always and be it further enacted. That such sheriff
^ ^Hher officer executing such process may dispose of any crops or pro-
***** hereinbefore mentioned, to any person or persons who shall agree in
^'^^^log with such sheriff or other officer, in cases where.no covenant or
U U 2 written
644
CASES IN TRINITY TERM
1834.
Wright
agaitiMt
may be said that the sheriff, by sect. 1. of that act, could
not lawfully sell the straw of the growing crops, and it
will be contended that, by sect. 3., be could only sell
the crops or produce to a person who should agree with
him in writing to use and expend the same on the lands,
according to the custom of the country. But the sheriff,
here, had merely conveyed a quantity of growing wheat
to a purchaser; it does not appear that it was to be
carried off the farm. If he conveyed any thing other-
wise than the statute requires, there is nothing in either
of the sections above referred to, to shew that the pur-
chaser's right is thereby altogether defeated : at least, i
the wheat was his property, the action lies. As to thi
third section, the question is (as Parke J. su
when the rule nisi was moved for). Whether it be an,
thing more than directory? If this were held to
otherwise, no person would buy crops under an
ecution. The statute does not say, that every purcha^s-^
not made as it directs, shall be void. The sheriff ms
liable in an action for non-compliance with the p
visions of the act ; but, by section 9., even that is not
unless it be proved on the trial that his omission w;
written agreement shall be shewn, to use and expend the same on 8i&'
lands, in such manner as sliall accord with the custom of the
and in cases where any covenant or written agreement shaU be
then according to such covenant or written agreement ; and aOar
sale or disposal so qualiSed, it shall be lawful for such person or
to use all such necessary bams, stablei, buildings, outhouses, yards
fields, for the purpose of consuming such crops or produce, as
sheriff or other officer shall allot or assign to them for that purpose,
which such tenant or occupier would have been entitled to and oog^
have used for the like purpose on such lands.**
Sect. 4. requires the sheriff, &c. to permit any landlord aggriered
breach of such agreement, to sue thereupon in his name, first giving
an indempity.
The other material sections are sufiiciently stated in the argument.
wilfi*^'
J
IN THE FouATH Yeae oJp WILLIAM IV. 645
iiniL The general principle in the case of sales under 18S4<»
:ecution is, that the purchaser's right is not affected by ^
I irregularity of the officer. It cannot generally be ex*- agahut
icted, in cases under the present act, that a purchaser
ould satisfy himself of all the directions of the statute
Lving been complied with ; yet it would be hard if, in
•nsequence of any omission, though involuntary, by
e sheriff, he should lose the fruits of his purchase ; as,
r instance^ if the agreement prepared by the sherifi^
ider sect 3., does not in all respects accord with the
tstom of the country, which the purchaser may be un*
iquainted with. The statute 8 Ann, c. 14. s. 1. is very
fierently worded from this; it directs that no goods
iing on premises held by lease, shall be taken under ex-
ration on any pretence, unless the rent, as there men-'
oned, shall be first paid to the landlords The present
ct merely commands and regulates^
Danielj contra. First, the purchaser here could
cqaire no title if the requisions of the statute in sections
• and 3. were not complied with. In Peacock v.
^^^urvis{a% it did not appear that they were not; the
B3e, therefore, decides nothing on this point The
instruction now contended for would frustrate the
^ign of the statute in favour of good husbandry ; for,
Case the provisions there laid down were neglected,
^ landlord would have no remedy at all against the
'i*chaser, and, according to sect. 9., none against the
^Hff, unless he could shew that the omission had been
^'ftil. Yet the act clearly contemplates that the agree-
^Ot therein prescribed shall always be entered into;
(a) 2 Bro<L»^ B, ZSi,
U u 3 for
Diwcfc
646 CASES IN TRINITY TERM
ISS^. for it provides, in secU 3.> that after the sale $o qudiyki%
' it shall be lawful for the purchaser to use all sudi
WVIGHT ^
agamu necessary bams, && for consuming such crops or
produce, as the sheriff shall allot ; and as the tenant
himself might have used for such purpose on the lands.
Sect 6. enacts, that where the purchaser of any crop or
produce before-mentioned shall have entered into any
agreement with the sheriff touching the use and expen-
diture thereof on lands let to farm, it shall not be lawful
for the landlord to distrain for rent on any com, hay,
straw, or other produce thereof, which, at the time of such
sale and the execution of such agreement under the ac^
' shall have been severed Jrom the soil and sold, subject to
such agreement, by the sheriff, nor on any tumip%
drawn or growing, if sold according to the act, &c.; but
this provision would be nugatory if such produce vested
absolutely in the purchaser by the sale, and the landlord
were precluded from distraining, whether the agree-
ment were entered into or not. It is said that the pu^
chaser cannot be expected to kuow whether or not the
sheriff has fulfilled the directions of the act; but if the*
act obliges the one to take an agreement, it equall,^
obliges the other to enter into it : it is not contei
that the words are obligatory on one and directory
the other. The purchaser, who stands on the benefit
his contract with the sheriff, as against the landloi
must prove that he has done what the statute requires
him. The rule that purchasers are not aflected by
irregularity in the levy does not apply; this is
restricted power given to the sherifl^ and it must
shewn that such power has not been exceeded.
Then, secondly, although the statute should not affeci=^
the plaintiff's right, yet the 'defendant, as landlord,
entitle
IN THE Fourth Year of WILLIAM IV. 647
entitled to distrain the crops in question for the rent 18S4.
doe at Ladjf'dayj 1832. Peacock v. Purvis {a) is no suf-
ficient authority to the contrary. That case was argued ^nntt
without any reference to the statate B6 G. S. c. 50. ;
tfaere^ too, the seizure was on the 28th of Aprils and it
was argued, that as the landlord received a year's rent at
that dm^ he must be taken to have received it out of
the value of the crop, and ought not to come upon the
same crop again for a new half-year's rent due in May*
But here the same argument would not apply ; for the
seizore was in October^ when the crop could not have a
value* [Taunton J. Nothing is more common than for
wheat crops to be the subject of valuation in September
or October^} The broad principle, however, upon which
the decbion in Peacock v. Purvis {a) proceeded, was, that
goods in the custody of law (as the crop there was held
to be) are not liable to distress. But what are the au->
thorities on which that assumption rests ? In Eaton v«
Southby{b), there referred to, reliance is placed on a
passage in Co. Lit* 47* a.j which begins, " here it is
necessary to be seen of what things a distress may be
taken for a rent;" and, after enumerating some things
virbich may not be taken, as a horse in a smith's shop,
or m a hostry, materials in a weaver's shop for making
dloth, and cloth or garments in a tailor's shop, adds^
'* nor any thing distrained for damage-fesant, for it is in
custody of law, and the like." But in those cases the
uiterests of third persons, the actual owners of the
pi^operty, come in question, and the law laid down is
w their protection ; nothing is said of goods of the
Pliant himself seized in execution, nor can the passage
(«) 2 Brod. 4; B, 362. {b) WUki, ISl.
U u 4 be
IN THE Fourth Year of WILLIAM IV. 649
md calf were seized, and the calf distrained afterwardst] 18S4.
[f the calf remained on the demised premises after the ^
execution, till it grew up, it would have acquired a against
ralue firom the land, for which the landlord would be
entitled to repayment ; a right would accrue to him in
respect of the improvement so gained. ITaunton J.
biTeither the identity nor the former right of property
woold be destroyed.] According to the argument for
the pluntiffi, the landlord might be in this situation.
rhe crops might be seized before the landlord's
Mieiaelmas rent was due; he could not then claim any
portion of the proceeds of the levy under staL 8 Ann*
c 14., in respect of future rent, Hoskins v. Knight {a\
Gmttiam v. Barker {b) : but the sheriff might remain in
possession till the next year's crops were sown, and sell
those crops before the return of the writ* As it is now
contended, the landlord could not distrain the crops
then sown ; and, consequently, he would lose hb natural
security for the rent, for a year and a half^ or even for a
longer time, if it were a biennial crop. The statute of
Anne was meant to give landlords an efiScient remedy ;
it is not so if they have no claim under the statute for
rent not due at the time of the taking, and cannot dis-*
xain for rent accruing before the removal. [^Tauntoti J.
Landlords had no right to distrain growing crops till
i^e statute 11 G. 2* c. 19. s. 8. ; but an execution might
>e had against such crops at common law.] That statute
'AS Dow given landlords the same rights as to growing
-rops which they had before with respect to goods and
•■^^ttels, and if moveable chattels were left on the land
^^ more than a reasonable time, the right of distress
*ould revive. ITaunton J. The crops, by their nature,
(a) lU.i S. 245. (6) 1 Price, 274.
cannot
660 CASES iM TRINITY TERM
18S4. cannot be immediatdy removed.] Whfle thqf renuai
—^ they acquire a value at the landlord's expense wbkk
agamH moveable goods in general do not; yet die argument i^
that the right of distraining revives by time as to such
goods but not as to crops* The dictum of JTkiniqmm B»
in QwiUiam v. Barker (a) was not thrown out merely
obiter, but was material to the case.
Clarke^ in reply. As to the argument from inooD^
venience, the statute of Anne places landlords in a better
situation than other creditors,, but is not calculated to
secure them from every possible disadvantage. The
circumstance of the crop remaining on the ground tOI
maturi^, does not take away its identity, or the rights of
any party in it If, indeed, it were severed from the
soil, and left for more than a reasonable time, the land*
lord might exercise his right of distraining, but that
the sixth section of 56 G. 3. c. 50. forbids sndi dis^
tress in cases where the purchaser shall have entered
into the requisite agreement with the sheriff; or agum
if the crop were left uncut for an unreasonable tim^
after maturity, the right of distraining might revive*
The section just referred to tends, with others, to shet^
that the statute does not contemplate the agreement
with the sheriff as being necessarily entered into in ever^
case of execution against farm produce. The power o^
selling crops is not given, but only regulated, by the
tute. It does not appear on this case, that there was an;
covenant or agreement between the landlord and tenant^
according to which the agreement with the sheriff mighC^
be drawn ; and it may be that there was no custom o
the country on which it could be framed : none, at leas^
(a) I Price, U77.
IN THE FouBTH Year OF WILLIAM IV. 651
is shewn. If the sheriff has wilfully exercised his an- 1834.
thority in an irregular manner, so as to prejudice the
lAi:idlord9 there is a remedy for the landlord by action. agamst
Xord Demmam C. J. I am of opinion that^ in this
cwkSdf Peacock v. Purvis (a) is expressly in point : the
only distinction su^ested is, that the seizure in this
c&se was in September^ whereas there it was in ApriL
It IS singular that in that case the statute 56 G. 3. c. 50.
should not have been adverted to ; but the reason pro-
l>ably was, that counsel did not think it applicable. In
the present case also, I think that the provisions of the
statute do not apply, and that the plaintiffs are entitled
to a verdict.
LiTTLEDALE J. I am of the same opinion. The
statute 8 Ann^ c. 14. 5. 1. provides that, when goods are
taJcen in execution, the creditor shall pay the rent then
doe to the landlord, not exceeding rent for one year;
simljject to that payment, it protects the creditor's exe-
cution against any claim of the landlord. The landlord
Could not distrain growing crops till the passing of
I' X G.2. c. 19*; but the statute of Anne protects exe-^
coitions against the right of distress given by the later
^^^t, as effectually as against the right previously exist-'
^<^S. It is said that the decision in Peacock v. Purvis (a)
Soes not apply, because of the provisions in 66 G. 3.
^^ -50. I agree, however, with my Lord Chief Justice,'
tl^atthe statute was probably not relied upon in that case^
^^^icaase it was inapplicable. The facts here are, that the
^l^eriff seized the crops on the 31st oi October j and shortly
^fler sold them to the plaintiffs, and that^ before the
(a) 2 Bntd. 4- B, 36S.
Djnrnk
IN THE Fourth Year of WILLIAM IV.
goods taken in execution cannot be distrained (a), and
that where a tenant's growing corn was seized, and sold
under a fi. fa., and the vendee permitted it to remain till
it was ripe, and then cut it, after which, and before it was
fit to be carried, the landlord distrained it for rent, both
the Courts of King's Bench and Common Pleas held that
it was not distrainable (6). I cannot trace any such de-
cisioD; yet the author cannot have invented the pro-
position, nor can he have meant to state it upon his own
Aothority, because that edition was written when he was .
J^ouDg, and had not sufficient opportunity for deliber-
^OD. But on the authority of Peacock v. Purvis (c), I
think the plaintiff in this case is entitled to recover.
AViLLiAMS J. I am of the same opinion. All the
rent which was due to the landlord when the bargain
ftnd sale took place, had been paid to him ; and the
growing crops were necessarily left upon the premises ;
it would have been ruinous to do otherwise. Upon
this state of facts, the case must be governed by Pea--
cock V. Purvis (a).
Postea to the plaintiffs.
(o) The reportqs have not been able to meet with the first edition of
^r. Wood/oWt Law of Landlord and Tenant. In the last edition (1834),
^^ paragraph apparently referred to by Taunton J. begins as follows : —
" Ooods in the custody of the law are not distrainable ; for it is repug-
'^Qt that it should be lawful to take goods out of the custody of the law ;
''^^l that cannot be a pledge to me, which I cannot reduce into my actual
1**^— It wun ; therefore things distrained damage-feasant cannot be taken
"^^ rent ; nor goods in a bailiff's hands under an execution ^ nor goods
"^^s^d by process at the suit of the king." This appears to be tidcen, very
''•^^riy verbatim, from Gilbert* s Law o/DittreueSy p. 44. ed. 1757. \
C^) This is printed conformably to the passage as it stands in the
l^*'<^9ent edition, and appears to correspond with that read by Taunton J.
^^ bis judgment. The authorities cited for it in the present edition areV
^oton V. Southby, Peacock v. PurviSf and Parshw v. Crifps.
{p) 2 Brod. 4^ B. 562.
653
1834.
WaiOHT
againtt
Diwxs.
A
V
654 CASES IN TRINITY TERM
1834.
?•*»*?' Morris against Dimes.
June 3d. ^
KiS^f file**''' X^^^^^^^' ®° *® ^^ ^^^^ ^^^ R, tt Ae
wren in land, Hertford Summer assizes 18SS, a verdict was fbuixl
of which he u
teised in fee, it for the plaintiff upon some of the issues, and for the de-
ft grant of free
warren in gron. fendant upon Others^ subject to the opinioa of thb Cooit
Therefore, .urn •
where defend- upon the followmg case : —
beaded su^a* ^^^ ^^^ count of the declaration charged the defend-
^^^^^^^ ant with breaking and entering a close of the plainti^
Sfe from'^'to ^"^^ ^^^^^ ^^^ ^'^^^» (describing the boundaries^
p., and pleaded situate in the parish of Rickmansworth. in the ooontyoT
a conveyance * ^
by F. of the Hertford^ and five other closes, not named, of the pltio-
laid free war-
ren to the de. tiff, in the parish and county aforesaid, and hantin^
fendant ; it was j i .n- .l • j •• j
held, that the Searching for, and kiUing game therein, and seunng, and
susTained^by Carrying away the same, and converting it to his own
veyancefrom" ^^^ '^^^ second count charged similar trespasses io
^i °h*h"th**'^* another close of the plaintiff, describing the boundaries,
land in ques- The third count was for seizinff and takinir away dead
tion was copy- *^ o ^
hold, with all game, the property of the plaintiff.
and singular
fisheries and By fii'st plea, after describing and naming the five
fowling, hawk- Unnamed closes in the first count mentioned, the de-
and' shooting; fendant pleaded, as to the whole of the trespasses com-
^^M^7ii' plained of, that Kintr Charles the First was seized in fee
and all other ^f ^|jg closes in which, &c., and that, beincr so seiied,
nghtsy hberuesy ' ' "^ o
franchises,
jurisdictions,
pririleget, commodities, advantages, hereditaments, and appurtenances whatsoever to ^
said manor belonging, or in anywise appertaining thereto, or at any time occupied ores-
joyed therewith* or reputed part, parcel, or member thereof, or granted by the King to F*
as appurtenant to the manor.
And this, though it was shewn that the King, at the time of the grant to P., was Jefd cf
the manor, and held certain demesne lands in fee, and granted the free warren in bolb tkt
demesne and other lands of the manor.
Quiere, Whether the words of the conveyance by F, woidd have conveyed a ftte wV**
appurtenant to the manor ?
Docks.
IN THE Fourth Year of WILLIAM IV. 6&5
he, by letters patent, of the 5th of Jidi/ 1628, granted to 1834.
WUliam Earl of Pembroke^ Thomas Morgan^ and John
Morris
ThoTf^ood^ and the heirs and assigns of the said earl, ajsaanst
that they and the heirs of the said earl might hav^ hold,
and enjoy, on the said several closes, free warren, fowling,
and hunting ; and that the said earl was seized of the
said free warren by virtue of» that grant. The plea
then deduced title to the said free warren down to the
year 1818, when it alleged a devise of the same by
Henry Fotherley Whitfield to John Forster and Thomas
Deaconj by virtue whereof they became seised of the
said free warren; and that they, on the 16th of June
1818, bargained and sold, and on the 17th of June^ by
a certmn indenture of that date, released^ the free warren
over the close in which, &c., to Robert Williams^ William
WiUiamSy and Thomas Lane^ and their heirs. The plea
then deduced title from the three last-named parties to
the defendant, who, under his right of free warren, justi*
fied the trespasses complained of. The second plea
was in all respects like the first, except that it through-
out alleged the free warren to have been " granted" by
the several deeds and assurances therein mentioned,
instead of stating the same to have been ^' released," as
m the former plea. The defendant pleaded seven other
pleas to different parts of the declaration, alleging a
prescriptive right of free warren.
To the first and second pleas, the plaintiff, after pro-
testing the seisin of King Charles the First, replied, that
l^onUr and Deacon did not, by the indenture in the first
plea in that behalf mentioned, release to R. fVUliams^
^* WiUiamSf and T. Lane the said free warren in and
over the said closes in which, &c., in manner and form
^ in the first plea was alleged, and that tliey did
DlMXS.
656 CASES IN TRINITY TERM
1834. not, by the said indenture in the second plea in that
behalf mentioned, grant unto the said JB. W% W. W^
MOERIt
aeainu and T.L. the said free warren in and over, &c^ m
manner and form, &c. ; and upon these traverses issue
was joined. The plaintiff also traversed the prescriptife
right claimed by the other pleas, upon which travefses
the defendant also joined issue.
At the trial of the cause, the defendant, to support his
case on the first and second issues, proved a conveyance
by lease and release of the 16th and 17th of June 1818,
by which John Forster and Thomas Deacanj by the
direction of the Court of Chancery, granted, bai^oed,
sold, aliened, released, and confirmed to Robert Williams^
William Williams^ and Thomas Laney their heirs and
assigns, all that the said manor or lordship, or reputed
manor or lordship, of Rickmansvcorth^ and all that the
market-house in the town of Rickmansworth^ with all the
market ground there, or in and about the same places
and such of the tolls, stallage, and profits of the market
as might from time to time arise and accrue to the lord
of the said manor ; and also the right and privilege of
nominating the occupiers of five alms-houses therein
mentioned ; together with all and singular heaths, moorsy
marshes, woods, underwoods, timber trees, and all other
trees, mines, delfs, minerals (except mines of lead and
tin, and all mines royal, and all prerogatives to such
mines belonging, as the same were excepted out of tbe
said deed of grant or letters patent), quarries, pits of
chalk, stone, lime, and gravel, lime-kilns, brick-kilos,
fisheries, and right of fishing, fowling, hawking, hunt-
ing, and shooting; ways, waters, watercourses, ponds,
pools, rivers, brooks, currents, and streams of water;,
commons, common of pasture and turbary, folds, fxii'
tfvinrfeSt
IN THE Fourth Year of WILLIAM IV. 657
coarses, and liberty of foldage^ waste, waste grounds, 1884.
profits, royalties, courts of leet, courts baron, and cus- ^
tomary courts, views of frankpledge ; and all other court ogotiuf
and courts ; and all profits and perquisites of courts and
leets, and all that to courts and leets and view of frank-
pledge did belong ; and all waifs, estrays, treasure-trove,
goods and chattels, debts, right and credits of felons
and fugitives, felons of themselves, and persons put in
outlaw, deodands, wards, reliefs, escheats, heriots, fines,
amerciaments, chief rents, quit rents, and other rents,
reversions, services, fairs, markets, tolls, and all other
rights, liberties, franchises, jurisdictions, privileges, pro-
fits, commodities, advantages, hereditaments, and appur-
tenances whatsoever to the said manor or lordship, ,
market-house, lands, tenements, hereditaments, and
premises therein-before described or intended to be
thereby granted and released, belonging, or in any wise
appertaining, or to or with the same or any part thereof
then or at any time theretofore usually had, held, used,
occupied, or enjoyed, or accepted, reputed, deemed,
taken, or known as part, parcel, or member thereof,
or as were in and by the said deed of grant or letters
patent granted and assigned by the crown to the said
WUliam Earl of Pembroke^ and his heirs, as appurtenant
to the said manor or lordship, or any part thereof.
The defendant, also, gave in evidence the said letters
patent of King Charles I., by which free warren was
gnmted in the following terms: — " Moreover, we have
granted, and by these presents for us, our heirs and
successors, &c., do grant, to the aforesaid William Earl
^fPembroke^ Thomas Morgan^ and John Thorogood^ and
^e heirs and assigns of the aforesaid William Earl of
Pfmbrotef that they and the heirs and assigns of tlie
Vol. L X X aforesaid
DiMXS.
IN THK Fourth Year op WILLIAM IV, 659
WB8 also shewn by the court-rolls, that the five closes 18S4.
oentioned, but not named, in the first count of the
MORIIS
ledaration, were copyhold of the manor. The defend- a^'ikut
int also gave evidence that former game-keepers had
ported over the manor. The close called Great Wood
Fidd was enfranchised from the manor previously to the
ime of the before-mentioned devise by Henry Fotherly
Vhipkldf and siuce the letters patent of Charles I.
The plaintiff, upon this evidence, contended, first,
hat the grant of free warren by Charles I. over lands
lot held in demesne, if in fact made, was not valid in
x>int of law; and that such right, if it could have been
^nted by the crown, must be presumed to have been
^leased at some subsequent period, before the alleged
levise to Forster and Deacon. Secondly, that, sup-
losing the free warren claimed by the first and second
ileaa did vest in Forsier and Deacon^ the same was a
ree warren in gross, and did not pass by the words of
he release of the 1 7th of June 1818. Thirdly, that, at
ill events, that release could only pass a right of free
warren over such of the closes mentioned in the declar-
ation as were then part and parcel of the manor of
JiickmansaMrth. The defendant contended, that all the
objections were invalid; and, further, that the plaintiff
was estopped from raising them by the form of the
issues taken on the first and second pleas, he having
nerdy traversed one particular conveyance in the de-
duction of title. A verdict was taken for the plaintiff,
with 405. damages, on the last seven issues, and for
^ defendant upon the first and second issues, subject
^ a case. If, upon any of the objections taken, the
^rt should think the plaintiff entitled to recover on
^ther of the last-mentioned issues, a verdict for him
^as to be entered on such issue, with 405. damages.
X X 2 The
DiMia.
IN THE Fourth Year of WILLIAM IV. 661
become extinct, if the person entitled to it be also en- 18S4.
titled to the land, and grant the land without reservation
. • . . Mo»»ii
(lb.) ; but where it exists simply in a manor, it cannot ^gnnti
pass by a grant of the manor with its appurtenances,
though the owner of the manor be also owner of the
warren : Br. Abr. Warren^ pi. 7., Vin. Abr. Warren^
(F.) S., citing the Anonymous case in Dyer^ SO. b.
pL 209., and Trebles notes there. It may be contended,
here, that the release contains words sufficient in them-
selves to describe a right of free warren, whereas in the
instances cited there was nothing mentioned besides the
land and its appurtenances. But in Baaalston v. //ar-
A^{a\ warren was claimed in land which was parcel
of a manor ; the manor had been granted, and warren
in the manor, and afterwards the grantee bargained and
sold, to the party claiming the warren in that cause,
the manor and all warrens thereto appertaining^ or ac"
eepied and reputed as part of the manor; and the claim
was holden to be unsupported, because the claimant had
shewn a warren in gross in tlie patentee, which did not
pass by the bargain and sale of the manor.
& B. Harrison for the defendant. The Court will
eSsctuate the intention of the parties, if possible. And,
by the words used in the release, it is evident that the
releasors intended to part with every thing relating to
the manor, including privileges of every kind, and spe-
cifically those relating to sporting. In Sheppard*s Touch-^
^onif p. 92., it b said, *' This word [manor] is a word of
l^rge extent, and may comprehend many things. And
^erefore by the grant of a manor, without the words of
^ pertinentiiSf do pass demesnes, rents, and services,
(a) Cro. Elk. 547.
X X 3 lands,
IN THE Fourth Year of WILLIAM IV. 663
by J. SL (a) The Courts will construe the description 18S4.
largely: thus a nominal manor will pass under the TT^
words ^* messuages, lands, tenements, and heredita- agabut
Dimes*
ments;" Norrisy.Le Neve(b); which shews that the
strict l^gal term need not be used. In the earlier cases,
a difficulty might possibly be created by the conveyance
being by feoffinent; but here it is by lease and release.
ChanneU in reply. In the instance suggested in Trin*
8 H. 7. f. 4., the conveyance is supposed to be by gi*ant.
And the Court will construe the grant of a subject-
matter such as warren strictly, as has been done, even
where the question has been merely what animals were
comprehended in such grants.
Lord Denman C. J. The defendant justifies by
reason of a free warren granted by the Crown to the
Earl of Pembroke and others, and conveyed by the lease
and release of 1818. The question then arises, whether,
supposing a warren to be conveyed by the lease and re«
lease, it be the warren granted to the Earl of Pembroke.
On that question Bawlston v. Hardy (c) is precisely in
point. There the Crown granted a manor to Sir WiUiam
PetOj and granted to him to have warren in the same
laanor ; and the Court held this to be a warren in gross,
^hich would not pass by a grant of the manor, and all
warrens thereto appertaining, or accepted and reputed
as part of that manor. So, here, the warren granted by
the letters patent does not pass by the terms of the re^
lease.
(a) See cases cited in Doe dem. Smith ▼. GaUotoay, 5 B. ^ Ad. 43. ;
^iW^. Foif (E. 4.)
(*J 3 Alk. 82. (c) Cro. Eliz. 547.
X X 4 LiTTLEDALE
Dutxs.
664 CASES IN TRINITY TERM
18S4. LiTTLEDALE J. I do not decide on the groand that
3 no free warren could pass by the words of the release of
^ifuf 1818, though perhaps it could not The plea allegesi
that the Crown granted to the Earl of Pembroke and
others that they should have and enjoy free warren in
closes of which the King was seised in fee; and that
Forster, and Deacon, by lease and release^ granted the
said free warren to the parties through whom the de-
fendant claims. The plainti£P takes issue on the grant
of Forster and Deacon. The defendant has pleaded a
warren in gross : he does not make it appendant or
appurtenant* He shews merely that Charles I. granted
a free warren, as he might da In The AUomey^Generd
V. Parsons (a) a question seems to have arisen as to the
effect of the King's grant of free warren : here nothing
can be plainer than the allegation in the plea. To sbeir
the existence of the free warren, the defendant produced
the letters patent of Charles L The words there are,
** we do grant, &c., that they and the heirs and assigns of
the aforesaid William Earl of Pembfvke may have free
chase and free warren in all the demesne lands, and the
lands holden by copy of court-roll of the aforesaid
manor." Taking that alone, it is certainly a grant of a
warren in gross ; I presume that there was a grant of
the manor itself to the Earl of Pembroke ; for it appein
that the King was lord of the manor, and, being so^
probably he granted the manor. Had he, by the same
deed, made the warren appurtenant to the manor, and
granted the manor, it might have raised a questioO)
whether that was a good grant of a warren appurtenant.
But here the King, being seised of demesne lands
(a) 2 Cr. i J. 279.
grants
Dixn.
IN THE Fourth Year of WILLIAM IV. 665
Ants free warren in these demesne lands. I dare say 18S4.
ere may have been a grant of the manor by a separate
MoRRIt
ed, but whether that was so or not, this is n grant of agnimi
Mrarren in gross. Then the title is deduced to Forster
d Deacon. Now, let us see what Forsier and Deacon
^ and whether the defendant, who claims under Robert
tttiamsj William Williams^ and Thomas Lane, can say
Bt the warren in question was granted to them. The
ientures of lease and release convey ^* all that the
irkelrhouse," &c. [His Lordship here read the words
the release of 1818.] Whether these words be suffi*
iDt to include a free warren, I will not enquire ; the
■nt is only of things belonging to the manor, and
e warren was distinct from the manor; and, there-
ne, it will not pass by the release. It is immaterial to
Dsider the other questions which have been raised.
Taunton J. It appears to me that the only material
\nt lies in a narrow compass, and is not difficult.
larles L made a grant of free warren to the Earl of
mbroke and other persons, from whom title is derived
Forster and Deacon j and they are stated to have
anted the free warren by lease and release to Williams
d two others, through whom the defendant claims.
he plaintiff replies, that Forster did not release the
id free warren ; and the question is, whether or not
e free warren granted by Charles I. passed by the
lease. I am of opinion that it did not. The grant
f Oiarlesl. is a grant of a warren in gross; that
I of a naked bare right, not annexed, nor appendant
r appurtenant to any thing else. It is in these words.
His Lordship here read the words of the letters patent.]
This
DlMXS.
IN THE Fourth Year of WILLIAM IV. 667
scriptioD. A warren appendant or appurtenant can 18S4.
exist only by prescription. This warren seems never to
have been heard of before the grant of Charles I. It o^nnsi
is not said to have even been a parcel of the manor.
The defendant, therefore, cannot make out the right
claimed by his first plea; and his second plea is, in
efiect, the same.
Williams J. With respect to one of the questions
raised by the case, if it had been necessary to come
to a conclusion that, when a distinct issue is taken,
a party is entitled to travel back to matter upon which
another issue might have been taken, I should have
wished for more time to consider before giving my
assent. But, agreeing as I do with the rest of the
Court in the construction which they put upon the deed
of 1818, and that this deed does not sustain that which
certainly is put in issue, I will not enquire how much is
put in issue besides. I shall content myself with saying,
that tbb deed conveys a manor only with its accompani-
ments (not even mentioning free warren, supposing that
that would have been enough); and that as a manor
may, and generally does, exist without free warren, I
think the defendant has not made out his issues.
Judgment for the plaintiff*
IN THE Fourth Year of WILLIAM IV. 669
reason of the taking down by the company of the house 18S4*-
and premises numbered 22. in the Strand^ for the pur- ^
poses or in execution of the said act." affdnu
^ ^ The
Mary Yeaies was possessed of the premises. No. 23. Homokkiord
Maekit
Sirands as tenant for a term of years, and carried on Compuix.
business there. The company bought the adjoining
house. No. 22., for the purposes of the act, under the
authority thereby given them (sect. 2. (a) ), with respect
to the premises mentioned in a schedule to the said act,
in which the last-mentioned house was comprised. In
August 1832, they gave notice to Mrs. YeateSj in the
form prescribed by the Building Act (14 G. 3. c. 78.
$• 38.), that the party-wall between the two houses was
apprehended to be so far out of repair, that it must be
repaired, or pulled down and rebuilt ; and they, in that
notice, stated their intention to have the wall surveyed,
pursuant to the last-mentioned act, and required her to
appoint surveyors to meet those of the company, on the
17th of Naoembe}*i and to view the wall, and certify its
condition. Mrs. Yeates referred the application to her
landlord, who appointed surveyors to meet those named
by the company. On the 2d of November she was
served, on behalf of the company, with a certificate of
the surveyors, dated the same day, that the wall was of
insufficient thickness, and not secure against fire, and
ought to be rebuilt. Before the serving of such certifi-
cate (as she stated), the company began to take down'
No. 22.; and, on the 14th of November^ they proceeded
to pull down the party-wall and build another. No. 22.
was entirely taken down and rebuilt. By these opera-
tions Mrs. Yeates sustained the damage for which com-
(a) See it set out in the next case, p. 678.
pensation
IN THE Fourth Year of WILLIAM IV.
671
Sir James Scarlett and Fdllett shewed caus^ No-
vember 7th 1833. The sixty-sixth section means only
that the houses to be built in Hungetford Street (a)
shall not be subject to the provisions of the Building Act
inter se : it does not preclude the act from operating in
questions arising from the situation of those houses
relatively to others. The damage here complained of
1834.
The Kma
againu
The
HOMOSKIDAD
TAxwLwt
Compftoj*
widen and alter the said street, and to extend and embank the wharfs,*'
&&
Sect. 65. enacts, *< That in pulling down and rebuilding Hungeifard
Strett aforesaid, it shall and may be lawful to and tor the said company
to advance the houses to be rebuilt on the western side of the said street
fourteen feet on the public highway : Provided always, that the houses to
be erected by the said company on the eastern side thereof be thrown
back a distance of not less than twenty-four feet."
Sect. 66> " ProTided always, and be it further enacted. That for
prewrving uniformity in the erections and buildings hereby authorised
to be erected, such erections and buildings shaU not be subject to the
provisions of an act passed in the fourteenth year of the reign of his late
Bfigctty King Gwrge the Third, intituled," &c. (setting out the title of
the Building Act) " and that such provisions, or any of the clauses con-
tained in such act, shall not be applied or enforced with respect to such
erections and buildings."
Sect. 68. " Provided always, and be it further enacted. That in case
iny messuages or buildings, lands, tenements, or hereditaments, shall be
dsmaged or injured by or in the taking down of any of the messuages or
Voildings to be taken dovni for the purposes of or otherwise in the exe-
cotioQ of this act, the said company by their said directors shall and they
ve hereby authorised and required, by and out of the money to arise by
vinne of thb act, to make to the owners and occupiers of such messuages
ud buildings, lands, tenement*, and hereditaments, so damaged or
iojorcd, such compensation and satisfaction for sudi damage or injury as
^ itid directors shall in their judgment think reasonable, by payment of
* Mim of money in gross ; and in case the owners or occupiers shall think
^ tatiifaction offered to them by the said committee not sufficient, then
^Hinetball be ascertained and settled by a jury in manner herein-before
P'^ided*' (sect. 6.) ** for ascertaining the value of the messuages, lands,
*^ hereditaments to be purchased, taken, and used for the purposes of
this act.
(a) No. 23. vras the comer house of Hungerford Street*
did
IN THE Fourth Year of WILLIAM IV.
673
amount would be for a' jury to settle. The company's
buildings are, by sect. 66.^ exempted from the operation
of the Building Act; Mrs. YeateSj therefore, could not
have enforced it against them ; and if so, it would be
unjust that they should be enabled to enforce it against
her. The rule, as laid down in Bex ▼• Pease (a), is,
that provisions in acts of parliament are to be construed
according to the ordinary sense of tl^e words, unless
such construction would lead to some unreasonable
result; and here, supposing the ordinary sense of the
words to be as contended by the company, the result of
their construction would be unreasonable. If there is
an ambiguity, the construction of an act of this kind
should be against the company, and in favour of private
rights : Scales v. Pickering (&)•
1834.
The Kma
against
The
HnKGRJlFOED
Maesxt
Compuiy.
Denman C. J. I should be disposed to submit this
to a jury if there were any doubt; but, looking at
the clauses of 1 1 G. 4. c. Ixx., which have been referred
to^ I think we have no power to grant a mandamus. It
appears to me that the intention of the sixty-sixth section
was merely to preserve uniformity among the buildings
to be erected under that act, and not to do away with
the necessity that a good party-wall should be main-
tained between one of those houses and a neighbouring
house^ not within the provisions of the act. The com-
pany, then, have only exercised an ordinary right : finding
that a house, adjoining one which they had purchased,
bad an insufficient party-wall, they, as any purchaser
might have done, enforced the provisions of the Building
(«) 4 1?. 4- Jd, 41. See B. t. Churchwardens of St. Pancras, aiitd»
^ 99. ; and A. ▼. InhabUantt nf Banbury, antd» p. 142, 143> 144.
(4 ^B'mg. 453. per Bett C. J.
VoL.L Yy Act
IN THE Fourth Year of WILLIAM IV.
67*
this wall, is under the Building Act, and not under
e statute 11 G. 4. c. Ixx. It has been suggested
ith considerable ability by Mr. Stammers^ that the
tter act repeals the obligation on the part of the com-
my to provide for the support of their party-wall at
e instance of a neighbour, and consequently that they
"6 not entitled to make a requisition upon the neighbour
r that purpose* But I think the company are ex-
opted from the Building Act only as to the manner of
parating their new houses from each other. They
ay build them of such proportions, and separate them
^ such divisions, as they please ; but, as between the
mpany's buildings and those belonging to other per-
ns, the public are entitled to the same protection with
spect to the party-walls as they had before the passing
the company's act.
18S4.
Hie Kivo
agninat
The
hunqerfokd
Markst
Company.
Taunton J. I am also of opinion, for the reasons
leady given, that the company are not exempted from
e Building Act, in respect of a party-wall like this, by
e Stat. 11 G. 4. c. Ixx. 5. 66. Then the question is,
lether the party making this application has sustained
image by the doing of any thing in execution of this
atute. Certainly every thing done by the company,
sDstituted as it is by this act, is, to some intent, for the
urposes and in execution of the act ; but the question
ere is, not whether their proceeding was so generally,
>ut whether the particular thing complained of was so.
^king at the affidavits, and at the general complexion
^ the case, I think there is no doubt that the taking
lown of this wall was in execution, not of the statute
11 G. 4. c. Ixx., but of the Building Act. The agree-
ment of Mrs. Yeate^s son, not to insist upon the notice
Y y 2 (whether
676
CASES IN TRINITY TERM
18S4. (whether he was then her agent for that particular por*
'~ pose, or only a general agent for her), leaves no doobt
againti that the parties, at that time, understood that the steps
The
HuNQHFORo in question were being taken under the Building Act,
CompMiy. and that they meant to proceed under that, and not tbe
local statute.
Patteson J. I am of the same opinion; and I think
the company merely did what might have been done hj
any person who had taken the premises adjoining those
of Mrs. Yeaies.
Rule disduurged.
Wednesday^
June 4Ui.
The King against The Hungerford Market
Company.
(Ex parte Etre.)
The statute T^OWLING had obtained a rule in Michadmas tens
gave xoThe l^st, calling upon the defendants to shew cause why
M^HCom- a mandamus should not issue, commanding them to
poiirereTo pur- *^^"^ * warrant for summoning a jury (pursuant to stat
chase and hold
lands; and
also a power to purchase certain specified lands and houses, at a price to be mmmAt if
necessary, bj a jury ; the costs of the assessment to be borne by the company, if a bifbtf
price was assessed than they oflered, but otherwise by both parties equally. The eoapflf
were empowered to crvct a market-house, and other convenient buildings, Ac IbraBtf^
and were directed to make a certain avenue. If any injury should be done to any mmut^
&c. by the taking dawn of any tuUdings for the purposes of or in the eieatiian ef tki etif
compensation was to be asseued in the manner before provided for asoertainiag tlMVthwrf
lands, &c. to be purchased. No action was to be brought for any thing dona in
of the act, or of the powers given by it, without twenty-eight days* notice, nor lii
months afker the cause accruing :
Held, that injury done to a house not specified in the act, by taking down an
house, which also was not specified, but had been purchased by the company, and whkb na
taken down to make the avenue, was not an injury for which a jury could be TOmnwf*^ t*
make compensation under the act ; and that taking down the party wall between tbt tuo
houses was not such an injury.
Qu«re, Whether the clause as to the notice and limitation of action would hcff bus
applicable, if the owner of the house injtired had brought an action ?
IN THE FOU&TH YeAR OP WILLIAM IV,
677
I G. 4. c. Ixx. {a\ local and personal, public), to assess 18S4.
nnpensation to be made to Eleanor Eyre for the tZTkimo
UDage and injury sustained by her, in respect of her agdnu
remises situate No. 12. ViUiers Street^ in the Strand^ HonoBMoan
f reason of the taking down, or beginning to take Compu^r.
own, by the said company, of the house and premises
umbered 11., for the purposes and in the execution of
le said act The affidavits stated the following facts: —
Irs. Eyre was occupier of the above-mentioned house,
bich was adjoining to Na 1 1 . in ViUiers Street. No. 1 1 •
ad been purchased by the company : it is not in the
rst schedule of the act, referred to in the second
(a) Sect. I., aiUr incorporating the company, enacts, that they shaU have
11 power and authority to purchase and hold lands, tenements, and here-
taments to them, their successors and asagns, for the use of the said
idertaking, and also to sell and dispose of the said lands, tenements)
id hereditaments again, in manner by this act directed, without incur-
ig any of the penalties or forfeitures of the statute of mortmain.
Sect. 2. enacts, *< Hiat when and as soon as any grants, releases, con<*
ymnces, or assurances, grant, release, conveyance, or assurance, neces-
ry or expedient for conveying and assuring the said old market, market^
nae, messuages, wharf, stairs, shops, and buildings so contracted to be
urcliased" (as recited in sect. 1.), " with the appurtenances thereunto
iooging, and the inheritance thereof in fee simple, shall have been made
id executed unto the said company, it shall be lawful for the said com-
my, (or the directors for the time being to be appointed by this act,) and
tcyare hereby authorised and empowered, to treat for, purchase, and
ike all or any of the several subsisting leases or agreements for leases
f or in any part or parts of the said premises, and also to treat for, pur^^
htm, and take the several messuages, wharfs, lands, and hereditaments
KBiioned and specified in the first schedule to this act annexed, or so
BMiy or such part or parts thereof as the said company or their directors
(or the time being shall think necessary and proper to be taken and used
for the purposes of this act ; which said premises when purchased shall be
mpectivdy conveyed to and vested in the said company in fee simple for
tbe purposes of this act.'*
Sects. 6. and 7. provide for the assessment of compensation by a jury, in
cue the owners of premises comprised in the schedule refuse or are unable
to trcst ; and for the vesting of such premises in the company on payment
of the compensation.
Y y S section ;
IN THB FouKTH Ykar OF WILLIAM IV. e79
also took down the party-wall of the adjoining house; 1834>.
and it was held, that the owner of the adioininir house " ~
oodM not avail herself of the sixty-eighth section, in agamu
raapect of the injury done by taking down such party- HuKaBKrotD
wall; because, in taking down that wall, the company Conpuiy.
had done no more than any other purchaser of the ad-
joining premises might have done under the Build-
ing Act (a). On the same principle, the remedy here
must be at common bw. IPatiesan J. In the case
cited, much stress was laid on the sixty-sixth section of
the local act {iy] The sixty*eighth section applies only
where the company have availed themselves of the
especial privileges conferred by the act. In the eighth
section {c) (with which, as well as with the other clauses
rdating to the assessment of compensation, the sixty-
eighth connects itself), the provision as to costs is, that
they shall be borne equally by the company and their
opponents where the damages do not exceed the com-
pensation offered by the company, and by the company
alone where they do exceed it. This clause cannot
(fl) 14 G. 3. c. 7& (6) Antd, page 67 1 . note.
(c) Sect. 8. enacts, " That in every case where a verdict shall be given
by any such jury as aforesaid for more money than shall have been pre-
viously oflf^red by the said company as a recompense and satisfaction for
ny such messuages, wharfs, lands, or hereditaments as aforesaid, or for
any tndi estate, right, or interest therein, or for any damage or injury
tint may have been sustained by any person or persons as aforesaid, all
the costs incurred in summoning, impanelling, and returning such jury,
taking such inquisition, and the attendance of witnesses, and recording
the verdict or judgment thereon, shall be borne by the said company *,
and in every case. where a verdict shall be given by any such
jury for no more or for less money than shall have been previously offered
by or on behalf of the said company as such recompense or satisfaction as
aforesaid, all the costs incurred as aforesaid shall be borne in equal pro-
portioiis by the party or parties refusing or neglecting to treat or agree
as before mentioned and by the said company.**
iH THK Fourth Yeae of WILLIAM IV.
681
at they are doing no more than any other owner of
D. 11* might do^ would apply to the case even of
king down the houses mentioned in the first schedule^
Der they were once purchased. The remedy given by
e six^-eighth section is cumulative, and may exist
gether with the common law remedy. The latter is
lofined to cases of negligence and wilful trespass. The
^ature, while they conferred peculiar rights on the
mpany, probably intended to impose more than the
«nmon law liabilities. But for the first section, the
«Dpany could not have purchased No. 1 1. ; they pur-
lased it, therefore, under the power given in the act^
id they have taken it down in the execution of the
t. In Ex parte Farlow (a), and Res v. The Hungerfbrd
Market Company {Ex parte StiU) (i), it was urged, that
is remedy could not be granted in a case where the
mpany, having acquired the reversion of premises
icapied by a tenant, used against that tenant those
jbts only which any other landlord might use : yet the
ourt granted the remedy. ^Littledale J. If Mrs. Eyre
id brought an action at common law, do you say she
ost have given twenty-eight days' notice, and have
3en barred by the lapse of six months, under the
iaety-third section ?(c)] The company would have
it) 2B.iA(L 341. {b) 4B.^ Ad, 592.
(e) Sect. 9$. enacts. That no action shaU be commenced againtt WKf
enon ** fat anj thing done in pursuance of this act, or of any of Horn
xnrers hereby given," until twenty-eight days' notice (in manner par-
icolirly directed by this clause) shall have been given, or a/Wr sufficient
>itii£KtioQ or tender of amends made, or after six calendar months next
ifter the cause of such action shall have arisen ; and every such action
■ball be brought and tried in the county where the cause of action shaU
litvt iriseit, and not elsewhere ; and the defendant or defendants may
pU the ganeral issue, and give this act and the special matter in
^videDce, &c And if the action shall be brought contrary to these
P'^oviiions, the jury shall find for the defendant or defendants*
been
1834.
The Knro
The
HmfoxEroRD
Maekr
Company*
IN THE Fourth Year of WILLIAM IV. 683
or buildings to be taken down for the purposes of, or 1834>,
otherwise in the execution of this act." It is not very — —
^ The Kma
dearly made out by these affidavits, whether the damage ai^auait
Too
complained of was done " by or in the taking down" HovouiroftD
of No. 11., or by caking down the party^wall between comiMuij.
No. 11. and No. 12. If it was done by taking down
the party-wall, then the case of Hex v. The Hungerford
Market Company {In re Yeates) (a) is directly in point,
and shews that the writ of mandamus ought not to issue.
But, assuming that the damage was done ** by or in the
taking down" of No. 11., then the question arises,
whether that taking down was ** for the purposes of, or
otherwise in the execution of the act," within the
meaning of the sixty-eighth section. Now, it is to be
observed, that the company had no power to take
No. 11. against the will of the owner and occupier; but
bought the house in the same manner as any other
person might have done, by agreement with the former
owner. No doubt can be entertained, that if any other
person had so bought No. 11., or if it had remained the
property of the former owner, such purchaser, or such
owner, might have pulled it down without any authority
from Parliament, and would not have been liable to
make compensation to the occupier of No. 12. for any
damage not arising from negligence, unless, indeed, the
party-wall had been taken down, and then the Building
Act would apply ; but the assumption now is, that the
damage did not arise from taking down the party-wall.
Why, then, should the company be obliged to make
compensation, if any other purchaser, or the former
owner, would not? — Only because the legislature, having
(a) Antd, p. 668. S. C. 2 Kev, ^ Man, d4a
given
IN THE Fourth Year of WILLIAM IV. BBS
subject of compensation under the sixty-eighth or any 18S4.
other section. For these reasons, we are of opinion
toat this rule must be discharged. agnuui
The
Rule discharged. Hunoirfoed
Market
Company.
Thomas against Williams. wednuday,
^ June 4Ui.
A SSUMPSIT for waires due from the defendant to ^ coramisdon
jLJL , , ° of bankrupt
the plaintiff. Plea, first, the general issue, secondly does not
operate af a
bankruptcy and certificate. On the trial before Lord diisoiation of
Denman C. J., at the Middlesex sittings after last Easter of hiring
term, it appeared that the plaintiff, in October 1826, bankrupt and
entered as clerk into the service of the defendant, who if ^t'^lerk
was an auctioneer, at a salary of 60/. per annum. The '^"^ ""^^ ^^
•^ ^ a year, con-
defendant became bankrupt; and a commission issued tinueinthe
bankrupt'a
on the 10th of July 1828. He had been imprisoned office after Um
about a month before that time, under an exchequer and then in'tbe
process at the suit of the Crown, and remained in prison year» bymutoal
till a year after the commission had issued. From TOotSctbe*
the commencement of the imprisonment, till the issuing ^^°**5^' ^^
of the commission, and for ten days after, the defendant's •^^iogtbat
*^ the clerk is to
business was conducted by the defendant's brother. From be paid rate-
. . . . «**y for hifl
October 1826, till the issuing of the commission, and lenricet during
as long after as the brother conducted the business, the year, the clerk
plaintiff continued to attend ; but, after the commission by'oie certifi.
issued, there was nothing for him to do, and he left off ^'^erinsTaiUhe
attending, upon the brother ceasing to conduct the JJ|J«««<'«efrom
business. When the plaintiff ceased to attend, 10/. oftheyeariatt
before the oom-
minion up to
the time of retcindiDg, no part of such wages being proveable under the commission. The
provision in 6 G* 4. c. 16. i. 48. for payment of clerks and servants, makes no dilference in
this revpect.
A jury may infer such an understanding from the clerk baring continued af^er the bank-
ruptcy in the bankrupt's office as long as the bankrupt's brother remained there managing
the iMisiness (as he had also done for a month before the bankraptcyj, although, in fact,
there waa nothing for the clerk to do after the bankruptcy.
wages
WlLLUMi.
IN THE Fourth Yiar of WILLIAM IV. 687
le should not receive his wages before the end of the 18S4.
'ojage, and that he should assist in bringing the ship "
Midc before he could make any demand for them, and ^^^f''*^
who had been discharged before the end of the voyagej
ras held not to be entitled to recover for work and
aboor ; HuUe v. Heightman. (a) IDenman C. J. The
my here found that the contract was dissolved.] There
ras no evidence from which the jury could infer it» for the
parties never met. And then, as to the time ; if the con*
nct was dissolved at the time of the bankruptcy, the
itftificate is a bar; if it was dissolved afterwards, the
jlaintiff has done nothing without proving that there was
m agreement to pay wages pro rata ; for, without such
in agreement, no part of the wages is recoverable. In
Grimman v. Legge (6), where the contract between a
andlord and his lodger was rescinded in the middle of
I quarter, by mutual consent, but the rent had been
originally made payable quarterly, it was held, that the
landlord could not recover pro rata, nor for the whole
of the current quarter. In Aikin v. Acton (c). Lord
TaUerden^ at nisi prius, expressed an opinion, that a
servant, discharged without notice in the middle of a
year, for indecent conduct, could not recover wages for
any part of the year. Denman C. J. acted upon that
opinion, at nisi prius, in Turner v. Robinson ; and this
Court afterwards refused to disturb the ruling (cQ. In
Cutter V. PaweU{e)i a seaman received a promissory
note for the payment of thirty guineas, provided he
coQtinaed and did his duty in the ship to the port of
I^verpool ; but he died shortly before the ship's arrival
{n) 2 Eati,i43. (6) 8 P. j- C. 324.
(c) 4 C. 4r P. 208. (d) SB.^Ad, 789.
(0 6 r. A. 32a
at
WlLLlAin«
IN THE Fourth Year op WILLIAM IV. 689
Lord Denman C. J. now delivered the judgment of ISS^.
the Court. — —
Thomai
This was an action of assumpsit for salary due to a jagainu
Bierchant's clerk. The defendant pleaded the general
issue ; and, secondly, his bankruptcy and certificate.
The facU proved before me at nisi prius were, that
the plaintiff entered into the defendant's service at 60/.
a year ; that he served a complete year, and until the
middle of Mai/ in the second year. Then the defendant
fell into difficulties, and left his business to be con-
ducted by his brother : he became bankrupt, and a com-
mission was awarded against him on the 10th of Jult/.
The plaintiff continued acting as a clerk, while tlie
brother conducted the business ; which he ceased to do
about the 20th of the same month.
He had received the whole of the first year's salary,
and mo^ey from time to time on account of the second :
the balance due pro rata, at that period, was 10/.
It appeared to me, that the salary was not due at the
time of issuing the commission, and that, therefore, the
certificate was no bar ; but that the plaintiff was entitled
to recover on the quantum meruit for all that part of the
second year during which he acted as clerk ; the jury
agreeing with me in opinion that his ceasing so to act,
because his master ceased to carry on the business,
proved a dissolution of the contract by mutual consent
A new trial was moved for, on the ground that the
act of bankruptcy, or at least the commission, operated
ipso facto a dissolution of all contracts; a proposition for
which no authority was quoted. But the learned counsel
referred to the forty-eighth clause of the Bankrupt Act,
which enables the assignees to pay all servants of the
bankrupt such wages as may be due at the time of the
Vol. I. Z a com-
IK THE Fourth Year of WILLIAM IV. 691
18S4.
Eaden and Another against Titchmarsh and »w««dB3^
^^ June 4tb.
Wallis.
DEBT for goods bargained and sold, and goods sold Bytbepncdn
of a pariah, tl»
and deliveredi and upon the money counts. Titch*' two ovemera
mio'sh pleaded nil debet, and fVallis suffered judgment appointed once;
by default. The plaintiffs, in their particulars, claimed ^.t^j solely tor
18/. 165. for coals, with which the defendants were y^^,^^^^*^
charged, in the particulars, as overseers of the parish of *'|!j*' ^***--
Kingston : part of the coals, of the value of 2L 7s. 2rf., *cting oveneer
for on© year
were charged to have been delivered on the 5th of ordered coal%
which were
February 1829, and the rest to have been delivered tent to him,
... 1 r> '^^ distributed
during the months from September 1829 to January by him among
1830, both inclusive. On the trial, at Cambridge^ on the pJiA;'^the
17th of March 1834, before the under-sheriff of Cam- "^^^^^.^
bridgeshire^ the plaintiffs proved the delivery of the coals **?*"» '"f ,
atterwflrcis soeci
to WaUis^ and by his orders, and that they had been both overseen.
The acting
distributed among the poor of the parish by Wallis^ overseer
• 1 -1 1 « • mi 1 suffered j«dg-
either gratuitously, or at reduced prices. The coals mentbyde-
fault :
were placed to the debit of the parish, in the books of Held, that,
the plaintiffs. It further appeared, that two overseers Sic*?urywerr*'
vere appointed every year for Kingston parish ; that the ^^^*J JjJe ^
same two were always reappointed once, so as to be in tber the coals
"^ ' *■ were supplied
office for two successive years; but that one of them for the parish,
by whom they
aJways acted alone for the first year, and the other for were ordered,
^ second; that Titchmarsh and Wallis were appointed credit was given
^t the same time; that Titchmarsh acted alone during overseer only,
or to both as
overseers; and
^ find for the defendant (the overseer who had not acted), if the plaintifif^ relied solely on
^ responsibility of the acting overseer; but otherwise for the plaintiff. And the fury
baling found for the plaintiff, saying that the coals were supplied to the parish, and the
^**^Ts^ were jointly liable as such, the Court refused to disturb the verdict.
Zz 2 the
IN THE Fourth Year of WILLIAM IV. 693
Lamb V. Bunce (a), a parish officer was held liable for 1834.
medical attendance bestowed upon a pauper, who had
£adbn
suffered an injury in an adjoining parish, and had been againti
Conveyed into the defendant's parish, and there attended
by the parish surgeon, with the knowledge, but without
the order, of the parish officer. So in Watson v.
Turner (6), medical attendance on a pauper, without a
request by the overseers, was held to be a good con-
sideration to support an express promise by the over-
seers to pay. In Malkin v. VicJcerstaff[c\ a parish was
divided into two parts, and each part appointed two
overseers of its own, and had separate rates, and sup-
ported its poor separately ; but, at the end of every year,
if one part were out of purse, and the other had money
in hand, the overseers of the latter paid the balance to
those of the former; it was there held that the four
must be considered as joint overseers for the whole
parish ; and the Court there appeared to be of opinion
that, when a party had advanced money upon the order
of one overseer of one division, it was for a jury to say
whether the special circumstances of the case shewed
that he gave credit to such overseer solely, so as to
negative the liability of the three others. That shews
that the mere fact of the order being given by one only
does not exclude the liability of the other; and that an
overseer may be liable on a contract in which he has
not personally interfered. The arrangement between
the officers, that each should act for a separate year,
cannot affect other parties : no power of making such
an arrangement is recognised by statutes 39 Eliz, c. 3.,
and 43 Eliz. c. 2.
«
(«) 4 a/. 4- 5. 275. (6) Sul. N. P. 147.
(c) 3B.i Aid, 89.
Z z 3 KeUy
TlTCUHAKtH.
IN THE Fourth Year op WILLIAM IV. 695
as to this, there was evidence each way. The under- 1834.
sheriff made no mistake; he did not leave the question
absolutely to the jury, to whom the plaintiffs gave credit, ^ agmmt
but only told them that, if the plaintiffs had relied upon
WaUis alone, the defendant was entitled to a verdict.
LiTTLEDALE J. I think there was evidence of a joint
contract
Taunton and Williams Js. concurred.
Rule discharged.
Collins against Carnegie. Thunday,
June 5th.
CASE for slander. The declaration contained six To prove that
a paftT had
counts. The first count stated, that whereas before, ceived the d
&C., the plaintiff had been, and still was, a physician, of^Medidne ia
and during all that time had used and exercised the of st^An^Su,
profession of a physician, to wit, at W. in the county of ^^/*,*Jjd .*"**
Dorset, and on that account, durini? all that time, had ^"**«" PfP",
° ' were produced I
been, and still was, called or entitled " Doctor," meaning t^« waled in-
strument pur-
Doctor of Medicine, and had always hitherto behaved, ported to be
, a diploma of
&c., yet the defendant, contriving to injure the plaintiff the degree coo.
ferred by the
unitersity, aod
it was proved that a person at St. A.* calling himself the university librarian, had slicwn, at
the university seal, in a room which he stated to be the university library, a seal correspood-
ing to that on the instrument produced. The written paper was, on the face of it, an act ok
the university conferring the degree, and it was proved that, in the same room, the same
person, with other persons calling themselves professors of the university, had shewn, as the
book of acts of the uniTcrbity, a book containing an entry agreeing with the written paper :
Held to be sufficient proof.
Where a declaration alleged that plaintiflT had been and was a physician, and exercised
that profession in Engiand, and on that account had been and was called Doctor, meaning
Doctor of Medicine, and then stated that defendant slandered plaintiff in his character of a
physician practising in Engiand, and denied his right to be called a Doctor of Medicine:
Held, that the plaintiff must prove that be was entitled to practise as a physician in EngiawL
Such proof is not furnished by shewing the fact of his having so practised.
Nor by shewing that he has received the degree of Doctor of Medicine at the Uoifenity
of St, Andretot.
Zz 4
in
IN THE Fourth Yeab op WILLIAM IV. 697
The count then charged words imputing drunkenness 1854*
id other immoral habits to the plaintiff (a); and
ded the words and innuendo following:} — ** A man agtOtut
his description will be guilty of any thing : I will do
ery thing in my power to oppose such a character
bilst here : — (thereby meaning to insinuate and cause it
be believed, that the plaintiff was not a physician, nor
ititled to use or exercise his said profession, and that
e plaintiff by exercising and practising physic, was
lilty of an imposture; and thereby also meaning to
sinuate, &c that the plaintiff, by his profligate and
imoral conduct, and by his habits of intoxication, was
yt a fit person to be employed, trusted, or consulted as
physician)." The sixth count was for words slandering
e plaintiff in his profession of a man-midwife. Plea, not
lilty. On the trial before Alderson J., at the Gloucester
immer assizes 1830, the words charged in the above
lunts were proved ; and it was further proved that the
aintiff had practised, both as a physician and as a
an*midwife, at W. in Dorsetshire. In further proof of
s being a physician, the plaintiff produced an instru-
ent under seal, purporting to be a diploma of a
actor's degree conferred upon him by the university of
^ Andretsis in Scotland, and also a paper professing to
e a copy of an entry in the boqk of nets of that
niversity, containing the grant of the degree to the
iefendant. A witness stated, that he had been to
U, Andrew's^ and had seen, in a room which he was
old was the library of the university, a person calling
aimself the librarian of the university, who had shewn
^m^ as the university seal, a seal exactly corresponding
(a) As to this, see ^yre ▼. Croverh Mich» Term, post*
with
CARMIOtS.
Cakukqis.
IN THE Fourth Year of WILLIAM IV. 699
his practising. This, therefore, maintains the verdict, 1884.
independently of the degree conferred by the Scotch '7
diploma; for that, if insufficient in itself, cannot shew ^againu
the absence of other qualifications. The first count is
framed on the plaintifiP having practised as a physician,
and does not aver that he had duly taken his degree,
as was the case in Moises v. Thornton (a). In 2 Starkie
on SlandcTf p. 2. (b), it is said, ^< therefore, where a
plaintiff avers generally that he filled any particular
dtuation or office, in which he has been calumniated,
or that he exercised any particular profession or
business, it is sufficient to give general evidence of his
having acted in that office or situation, or of his having
exercised that particular profession, or carried on that
trade or business." It is true, that in the same passage
a question is stated as to a diploma : and reference is
made to Smith v. Taylor (c), where the Court of Com-
mon Pleas was divided on the question as to the necessity
of producing direct evidence of the degree in physic.
Again, if the mere proof of practice be not enough, the
plaintiff has, at any rate, a right to practise by the Scotch
diploma, which was authenticated at the trial : in this
respect, also, the present case differs from Moises v.
Thornton (a), where there was no authentication. Sir
James Mansfield C. J., in Smith v. Taylor {d\ says that,
since the union with Scotland^ it has been generally
understood that a degree conferred by a Scotch university
gives the same right to practise physic as a degree at an
English university ; and, as to this, no actual difference
of opinion was expressed by any of the other Judges.
^o instance has been known of a prosecution instituted
(rt) 8 T. B, 303. (6) 2d edit. 1830.
(c) 1 New R. 196. (U) 1 New S. 203.
Cakmioie*
IN THE Fourth Yeab of WILLIAM IV. 701
jeneral, calling certain persons to their assistance; and 1834.
«ct. 3, saves the privileges of the universities of Oxford -^—
COLLIMS
md Cambridge. Then stat 14 & 15 //. 8. c. 5., after against
recititing the charter of physicians (of 23d September^
10 H. 8.)» confirms the same, creates the eight elects,
ind, in the third section, enacts, that no person shall
practice, throughout England^ until he be examined by
the president and three others of the elects, and have
letters testimonials of their approbation, unless he be a
graduate of Oxford or Cambridge^ ^* which hath accom-
plished all things for his form, without any grace." Such
practising, therefore, though not made subject to a specific
penalty, is illegal. At the time of the passing of these
BCtSy there were probably as many persons practising
Qoder foreign degrees, especially from Bologna or
Paduaj as under English degrees. As to the fact of the
college not having prosecuted parties practising under
Scotch degrees, the charter of Henry the Eighth enables
them to recover only within London and seven miles
diereof. {a) And, for practising within this district,
they have sued and recovered the penalty, even against
graduates of Oxford: College of Physicians v. Levett (ft).
College of Physicians v. West (c). The Act of Union [d)
can make no difierence in the effect of this statute. The
third section does, indeed, recite the clause of the Scotch
Act of Union, by which it is ordained that the univer-
sities and colleges of Saint Andrew* s, Glasgow^ Aberdeen^
and Edinburgh shall continue for ever; and the tenth
section confirms the Scotch act. But the effect of a Scotch
(a) See the clause, in the judgment in this case^ post, p. 704., and the
note (a).
(6) 1 Ld. Raym. 472. {East. T. \l JF. S.)
(c) 10 Mod, 555, {HU. T. 5 G, h) (rf) 5 Anne, e, 8.
degree
Caknkoik*
IN THE Fourth Year of WILLIAM IV. 708
amton{a), to have been acting as such: and no evi- 18S4.
ice was given, except from hearsay, that the book "
duced was the book of the university, or that it was ^agamti
Lhe place proper for its custody. iTatmton J. Ac^
ding to that course of argument, it might even be
ed, how the witness knew that he was in St. Andretxfs^
€pt by hearsay ?]
Lord Denman C. J. No doubt a person complaining
Ei slander upon him, in a particular character, must
•ve that he possesses that character, when the slander
s not admit it. In the present case, we all think
t the learned Judge did right in admitting the evi-
ce, and that the degree was proved. If not, it is
icult to say what proof would be sufficient. Proof
the actual appointment would be demanded, and
;t, proof of the authority of the persons appointing,
. so on without end. When the authority is shewn
reside in any party in fact, it must be considered
t the authority of that party is proved. As to the
ct of the degree, the Court will take time to con-
Cur. adv. vulL
jord Denman C. J. this day delivered the judgment
he Court. The question on which we deferred our
gment in this case, whether a doctor of medicine, by
:ue of a diploma given by a Scottish university, can
fully practise in England ^ beyond seven miles from
ndon^ without a licence from the College of Phy-
ians, appears to be decided by a careful perusal of
(o) 8 T. R, 303.
the
Cakxioii.
IK THB Fourth Ykab op WILLIAM IV. lOS
ibnner statute had given to the Bishop of London and 1834.
other bishops. The statute was acted upon by Lord
H0U9 at nisi prins, in 7%^ College of Physicians v. Z>- ^''^'^
veti la)j where even a doctor of physic at Oxford was
held liable to the penalty for practising without pre-
idons examination by the college in London s and the
same opinion was expressed by Lord C. J. Parker and
the whole Court, in The CoU^e of Physicians v. West (5).
The statute, indeed, imposes no penalty on unlicensed
practitioners beyond the seven miles; but the prohi-
bitory words are strong enough to make the practice
nnlawiul. This action cannot, therefore, be maintained
for slander of the plaintiff in a profession which, by law,
be could not exercise; and, according to the leave
reserved at the trial, a verdict must be entered for the
defendant on the counts which charge him with such
slander.
It only remains to observe, that the dictum of C. J.
Mansfield {c) J on which the plaintiff's counsel relied, as
shewing that the Scotch universities have the same pri-
vilege as the English^ does not appear to us to prove
that even that was his opinion : the Act of Union cer-
tunly does not warrant it And, even if it did, the pri-
vilege is granted in favour of such degrees only as are
obtained without grace, which was not proved with
respect to this plaintiff's diploma.
Verdict to be entered as above.
(•) 1 JA. nayn. 478. (6) \OU9d. 353. (c) 1 New R. 903.
Vol. I. 3 A
SlWASD.
IN THE Fourth Year op WILLIAM IV, 707
parish of Chatteris^ and wrongFulIy and unjustly to 1884.
oppress and aggrieve the parishioners and inhabitants — —
of the said parish of St. Ivesj and wrongfully and un- agamsi
justly to charge and burthen the parishioners and
inhabitants of the said parish of 5/. Ives with the main-
tenance and support of the said 5. M, B.j on, &c., with
force and arms, at the parish of Chatteris^ in the Isle and
within the jurisdiction, &c., unlawfully did combine,
conspire, confederate, and agree together, for the
wicked intent and purposes aforesaid, to cause and
procure a marriage to be had and solemnized between
the said B. B. S. and the said S. M. J3., they the said
S. B. S. and the said S. M, J3., at the time of the said
combination, conspiracy, &c., being respectively such
poor persons of the said several and respective parishes
in that behalf aforesaid ; and that the said J, 5., iZ. H.^
BiidJ.S.t in pursuance of the said combination, con-
spiracy, &c., afterwards, to wit, &c., did promise the
said R. B. 5., that they the said J. 5., B. i/., and
i7. S.y or one of them, would pay for a marriage-
license and all the other costs, charges, and expenses,
in, about, and attending the solemnization of the mar-
riage between them the said B. B. S. and 5. B. M. ;
and also that they the said J. 5., i2. if., and Jl 5., or one
of them, would give to the said B. B. S. a large sum of
money, to wit SL of lawful, &c., if he the said R. B, S.
would marry and take to wife the said S. M. B. By
reason of which said premises, the said B, B, S, was
then and there prevailed upon by the said J, 5., B, i/.,
and Jm S. to consent and agree, and did then and there
consent and agree, to marry and take to wife her the said
S. M. B,j and did afterwards, to wit, on, &c., at, &C.9
marry and take to wife the said 5. M. B. (he the said
£. B. 5., before and at the time of the said combination,
3 A 2 conspiracy,
Skwamm.
IN THE Fourth Year of WILLIAM IV, 709
aforesaid: that, in pursuance of the conspiracy, Sprtggs 1834.
and Brittany then being such poor persons, &c., and he
being such inhabitant of St. IveSj and she such inhabitant a^amtt
of ChatteriSf as last aforesaid^^vere married together ac-
cording to the rites and ceremonies of the Church of
England; and that the defendants afterwards, by colour
and pretence of the said marriage, caused the said Sarak
Mm/les' Spriggs to be removed, as the wife of the said
ILB.S*jto St. Itesj as the place of his last legal settle-
ment, by virtue of an order, bearing date, &c., under
the hands of, &c. (two justices for the Isle o{ Ely): by
means whereof the inhabitants of iS^. Ives were put to
great expense, &c.
The fourth count (commencing as before) stated, that
Sarah M, B. was a poor unmarried woman wth childj
and from thence until her marriage, &c. was legally set-
tled in Chatteris; that the defendants, unlawfully conspir-
ing and devising to exonerate the inhabitants of C from
the charge and expense which might ensue to them
from and in consequence of S. M. B.j as a poor person,
bdng an unmarried woman with child, and then having
a legal settlement in C, and to aggrieve the inhabitants
of Si. Ivesy and wrongfully to charge and burthen them
with the maintenance of the said S. M. B., then being
snch poor unmarried woman with child, and with the
chai^ges of her lying in and delivery, unlawfully did com-
bine^ conspire, confederate, and agree, and meet toge-
dier^r the purpose last aforesaid^ and, being so met, did
wrongfully and unlawfully cause and procure the said
1LB.S.J being such poor unmarried man and settled in
& loesy to marry the said S. M. B.j she then and there
being such poor unmarried woman with child, and
being, before and until the said marriage, such inhabit-
ant of CX as last aforesaid : that, in pursuance of the said
s A 3 conspiraqr
Skwars.
IN THE Fourth Year of WILLIAM IV. 711
conspiring to marry paupers, sucli misconduct ought to 18S4.
be shewn. A rule nisi having been granted, ,^
Kelly and B. Andrews now shewed cause. The ruling
of BuUer J., in the case cited, seems to refer to what is
to be proved, not what is stated in the indictment.
[Lord Denman C. J. The latter part of the passage
shews, that the matter ought to appear on the indict-
ment (a)]. The objection here taken is founded on an
erroneous view of the offence, which is, in substance, a
conspiracy, not to procure a marriage, but uplawfoUy to
exonerate one parish from the maintenance of a pauper,
and .throw it upon another. {Taunton 3. It is not the
combining to do any wrongful act that constitutes a con*
spiracy ; Rex v. Turner (&)]. A conspiracy merely to
procure a marriage would not be indictable; but it b^
comes an offence if the thing is to be done for an un«
lawful end, or by unlawful means. Here, an unlawful
end is stated, — to transfer a burden wrongfully from one
parish to another : if no means were stated, or no overt
acts alleged, the indictment would still be good. The
third count simply states the conspiracy to have been
to exonerate Chatteris from the charge of a person set-
ded there, and wrongfully, unjustly, and unlawfully to
burthen St. Ives with it. The means by which it was
proposed to be done, whether it were by improperly
procuring a marriage, as here, or by forging an order
of removal, are matter of evidence, and do not affect
the indictment. [Lord Denman C. J. If you state the
(a) « But where the indictment suted the marriage to ha?e Ibeen pro*
cored by threats and menaces against the peaee, &c., it was holden sulB*
denty without averring it in terms to have been against the wiU or ooiw
isnt of the parties; though that must be proyed." Has ▼• PafkhoutCf
EteUr Sunu Ass. 1792, cor. BulUrJ., MS., isdted.
(5) 13£^,S28.
means,
SlWAMK
IN THE FOUBTH YSAR OF WILLIAM IV. 713
ibilityO The case cited was that of an order of re- 1884.
moval) which must expressly adjudge the party to be — —
chargeable. But at all eventS) the gist of this indict- against
ment is the conspiracy; and that is well charged as
having an unlawful object. It is said in 2 BmseU on
Crimes^ p. 567. 2d ed., that in an indictment, ** though
it is usual to state the conspuracy, and then shew that in
pursuance of it certain overt acts were donci it is suf-
ficient to state the conspiring alone. And it is not
necessary to state the means by which the object was
to be effected, as the conspiracy may be complete before
the means to be used are taken into consideration :" and
Sex V. Gill {a) is cited. [Lord Denman C. J. There
the conspiracy was to commit an offence : here it was to
do an act which might be lawful unless it were shewn to
be otherwise.] In some of the counts it is laid, that the
defimdants unlawfully conspired to exonerate Chatteris
and burthen St. Ives. Regina v. Best (i) shews, that a
oonspiracy to burthen an individual unjustly (and it is
the same of a parish) is an offence, and that the offence
is complete as soon as the parties have conspired. It
would be requiring too much precision to insist that the
means of carrying the conspiracy into effect should be
stated so as to shew how they were unlawful. [Tatin-
ton J. It is not said that all the means must be specified.]
Sir James Scarlett^ Storks Seijt, and F. V. Lee^ con-
tra, were not heard.
Lord Denman C. J. I am of opinion that this rule
must be absolute. An indictment for conspiracy ought
to shew, either that it was for an unlawful purpose, or
to effect a lawful purpose by unlawful means : that b
(a) S A {■ Aid. S04. (6) 1 Saik. 174.
not
SlWARD.
IN THE Fourth Year of WILLIAM IV. 715
means or devices, or false pretences. If it had been 1834.
alleged to have been done with a sinister purpose, and
by unlawful means, that statement would have been sufll- agamu
cient. The substance of this charge is, that the defend-
ants conspired to burthen the parbh of Si. Ives with a
pauper (for the merely exonerating themselves could be
no offence); but, because the natural consequence of the
marriage of these parties was to subject the husband's
parish to a burthen, it does not follow that those who
procured the marriage were indictable.
Taunton J. I am of the same opinion. Merely
persuading an unmarried man and woman in poor cir-
cumstances to contract matrimony, is not an offence. If^
indeed, it were done by unfair and undue means, it
might be unlawful ; but that is not stated. There is no
averment that the parties were unwilling, or that the
marriage was brought about by any fraud, stratagem, or
concealment, or by duress or threat. No unlawful
means are stated, and the thing in itself is not an oBence :
to call this a conspiracy, is giving a colour to the case
which the &cts do not admit of. As stated, it is nothing
more than the case where the officers of a parish agree,
after consultation, to apprentice out children from their
own parish into another : no doubt, when that is done,
the one parish may be exonerated and the other sub-
jected to a charge ; but no offence is committed.
Williams J. I have always understood, that an in-
dictment was sufficient if it alleged what amounted to a
conspiracy in law, though no overt act were stated, or
none stated perfectly : and in this case, I have had some
doubt whether the fourth count was not sufficient; but,
on consideration, I can hardly think that, in that count,
if
iw THE Fourth Year of WILLIAM IV. ^17
18S4.
Sadler against Palfreyman, Chambers, and Thunday,
and
Chambers and Ward against Sadllr.
^HIS was a rule, calling upon the defendants in the A defendant^
first action, and the plaintiffs in the second, to shew compromising
cause why a rule made in these causes, for referring it to d«riaLn*to"paf
the master to tax certain costs of taxation (as after men- ^^J^^^^n
tioned), and all proceedings thereon, should not be set *|jo™«y »"^
aside. It appeared that the parties to the first action *»»!«* to the
siirned an as^reement that it should be settled on the tiie attorney's
-Vi . . . bill, under
following terms, viz : — ^^ That the plaintiff will accept, stat. 2 G. 2.
c« 23« *• 23. if
and the defendants shall pay, 10/. in full of all damages upon such tax-
charged in the declaration in this action, and that the the piaintiffV
defendants shall pay the costs of the attornies of the Sf^^Jl^n'^^^^T
said plaintiff^ in this action, and in the action brought by ^^T" ^*"
the said C L. Chambers and A. Ward against the said
C Sadler f as between attorney and client, and indem-
nify the said C. Sadler therefrom, and from all the de*
fendanls' costs herein." The bills of costs were taxed
accordingly, and more than one sixth of each was taken
off; whereupon a rule of this court was made for refer-
ring it to the master to tax the defendants in the first
action, and the plaintiffs in the second, their costs on the
taxation of the said bills, and that the said costs, when
taxed, should be paid by the attornies whose bills had
been so reduced, to the said defendants and plaintiffs re-
spectively. In opposition to the present rule, aflBdavits of
Vol. I. SB Messrs.
IK THE Fourth Year of WILLIAM IV. 7W
perhaps been placed on Langford v. Nott (a), where a 1834?.
party petitioned for taxation of a bill of costs which he — —
had paid, the business, however, havhig been done for againa
other persons, to whose costs the petitioner had ulti-
mately become liable; and the Master of the Rolls (Sir
T. Plumer) questioned whether the jurisdiction given by
the statute extended to a case not between solicitor and
client. But there the party applying had actually paid
the bill ; and the point was never finally decided. So in
Storie v. Loid Beciive {b\ the defendant had agreed to pay
the bill of the plaintlfTs solicitor, amounting to a speci-
fied sum, 289/., and had paid it, and the Master of the
Rolls upon petition afterwards refused to allow a tax-
ation. In the present case Sadler had not paid the bills,
nor had he ever intended to part with the right of tax-
ation; on the contrary, he meant to use it for his
own benefit, and that of the party binding himself to the
payment. In Vincent v. Venner (c) a party who, for the
purpose of compromising a suit, had agreed to pay the
plaintiff's costs as between solicitor and client, and had
paid three bills accordingly, was allowed, on petition,
to have them taxed. When the present action had been
compromised, the parties were no longer adverse to each
other, and Palfreyman^ Chambers^ and Ward might be
considered as Sadler's agents for the purpose of the tax-
ation. [Lord Denman C. J. It rather seems that Sadler
was theirs.] This motion is an attempt by the attornies
to set up a jus tertii, contrary to the agreement of all the
persons interested.
(o) 1 Jac. i W. 291. (6) 1 ^a^ ^ W. S92. note (a).
(c) I 2i^lns i Keerh 2\i.
S B 2 FdOettj
IN THX FouBTH Year OP WILLIAM IV. 731
Lord Denman C. J. The case is a little embarrassed 1884.
by the circumstance of the bills arising in cross actionsi — —
Sadlkii
but we may consider it as if only one cause bad been in ugqmtt
question. By the cofnpromise agreed to, Sadler was to
receive 10/. from PaJfreymanj Palfreyman undertaking
also to pay tlie bill of costs of Sadler's attornies. The
party so undertaking became chargeable with that bill.
Then, unless he had the right of taxation, he would
have no check upon the attornies of the other party.
One security which the statute gives against the attorney
on taxation is, that if the bill taxed be less by a sixth
part than the bill delivered, the attorney is to pay the
costs of taxation. Upon reference to the words used in
the statute (his Lordship then read them), I can see no
reason why the parties, against whom this rule has been
moved for, should not receive the costs of taxation ; I
think they fall within the express w;ords of the clause
i^hich gives such costs. t
LiTTLEDALE J. The party, in this case, who had to
pay the costs, was entitled to go before the master for
the purpose of having them reduced. That could not
be done without expence ; and if the reduction amounted
to more than one sixth, the expence ought to be paid by
the attorney who delivered the bill. It makes no dif-
ference to him whether one party or another is to receive
the amount.
Taunton J. The express direction of the act is,
that ^^ if the bill taxed be less by a sixth part than the
bill delivered, then the attorney or solicitor is to pay the
costs of the taxation." There could be no question that
the attornies ought to pay ; the only doubt raised is, who
3 B 3 bad
729 CASES IN TRINITY TERM
18S4. had the right to receive. I cannot see why Palfreyman
""""^ and the parties joined with him in this case are not to
againti be Considered as the '* parties chargeable," within the
meaning of the statute. The words of the statute, as to
the taxation, are, '< the party or parties chargeable bf
such bill.** It is said that because these persons are not
the parties to whom the bill is made out, they are not
within the provision of the statute. But when they en-
tered into an ngri^ment to pay the costs as between
attorney and client, they had a right to see that die
ch'ent did not pay more to the attornies than was
allowed by law ; and for that purpose to consider their
own names put into the bill in place of that of the
original debtor, and themselves as the parties thereby
chargeable. I do not rely upon the words in section 23|
<^ any other person in that behalf authorised," because I
think they simply mean persons authorised by the party
chargeable as before mentioned, in contradistinction to
that party.
Williams J. I am of the same opinion. The attempt
is to represent Palfreyman and the parties joined with
him as strangers to this transaction. But by the agree- •
ment of compromise they became immediately interested
in the question, and had a right to the benefit of that
inquiry which took place.
Rule discharged.
IN THE Fourth Year of WILLIAM IV. 7JS
1834.
Fenton against Swallow, Hayley, and Kilner, J'wariy,
June Sfiu
COVENANT by the clerk to the trustees for putting A local tum-
pike act im-
into execution a statute, 9 G. 4. c. Ixxxiii., for posed tolls
for every
amending, &c. the present roads, and making and main- hone drawing
taining certain new roads between the towns of Birstal o^^ toiu u^n
and Huddersfield in the county of York (a). The de- ^•^l'!^i^'^
claration alleged, that, by an indenture of the 26th of S^f®^;,j|^if
September 38SS, between six of the trustees of the first the toiu had in
* any one day
part, l>^i> P^id for
the patting of
any hone, such
bone should on that day be permitted to repass onct toll free; but enacted that the tolls for
horses drawing any stage-coach, should be payable every time of passing. The trustees
let the tolls, with power to collect them according to the act, and subject to such rules and
restrictions as should be made by the trustees: and the lessee covenanted with the
trustees, to permit the owners of stage-coaches, waggons, &c. to pass in the following
manner; viz., horses drawing any such carriaget as Uierein-before mentioned, to be re-
spectively allowed to pass along the road on payment of full toll going, and quarter toU
returning, at any time during the same day.
Horses passed through a gate, drawing a stage-coach, and full toll was paid for them ;
they returned the same day, drawing another stage-coach, and the lessee exacted full toll t
Held, that the lessee ought, by bis covenant, to have demanded quarter-toll only.
(a) Local and personal, public. — Sect. 12. The trustees, or any per-
son or persons appdinted or authorised by the said trustees or their lessees,
are authorised and empowered to demand and take the several tolls after
mentioned, at each and every of the respective toll gates, turnpikes, bars
or chains, and side gates, which shall be continued or erected by virtue of
this act, and on every day, such day to be computed from twelve of the
clock at night to twelve of the clock in the next succeeding night (that
IS to say), for every horse or other beast drawing any coach • . . stage-
coach • ... or other such carriage, any sum not exceeding the sum of
fimr pence halfpenny for every horse, &c laden or unladen,
and not drawing, the sum of one penny. • • .
Sect. 17. *' Provided always, and be it further enacted, that in case the
tolls hereby authorised to be taken shall, at any time or times, on any one
day (to be computed from twelve of the clock at night to twelve of the
clock in the next succeeding night) have been paid for the passing of any
horse, beast, or cattle, through any such toll gate or toll gates, &c. or
cfaainsy tuch hone, beast, or cattle shall, upon a tidtet, denotiog the pay-
S B 4 °^c°t
Swallow,
IN THE Fourth Year op WILLIAM IV. 725
ervants (except all post-chaises), to pass in the following ISSi'.
lanner (that is to say), horses or beasts drawing any
Fkntok
uch carriage as thereinrbefore mentioned^ should respect- againti
rely be allowed to pass along the road on payment of
uU toll going, and quarter toll returning, at each toll«
;ate upon the said road, at any time during the same
lay, instead of full toll both ways ; as by the said in-
lenture, &c. The declaration then alleged an entry by
he defendant Swallow^ and a performance by the trus-
ees of all covenants on their part, and alleged the fol-
swing breach of the above-mentioned covenant on the
»art of the defendants : — that the said Luke Swallavoy after
be making of the said indenture, and during the conti-
luance of the said demise, to wit, on &c., and on each of
be several respective days between that day and £.c.,
lemanded and took from one Edward Jackson^ then and
here being the driver of a certain stage-coach, carrying
passengers and goods for hire and reward, upon one of
be said turnpike-roads under the management of the
aid trustees, full toll going, and full toll returning,
hrough the same gate upon the said turnpike-road, for
md in respect of divers, to wit, four horses drawing the
said stage-coach so carrying passengers and goods for
hire as aforesaid, on each of the said several and re-
spective days as aforesaid, instead of full toll going and
quarter toll only returning, as in the said covenant men-
tioned.
Plea, first, non est factum; secondl)^ that the said
*^i^e Sxoallow did not, after the making of the said
^denture, and during the continuance of the said
^mise, demand and take from the said Edward Jack-
^^3 then and there being the driver of the said stage-
coach carrying passengers and goods for hire and re-
ward
Swallow.
IN THE Fourth Yeae op WILLIAM IV. 787
NiUett Y. PoU(m{a\ two acts of parliament imposed ISS^.
certain tolls upon horses drawing a coach or waggon, r
and others upon horses not drawing, and there was a ^agamu
power given to distrain any horse or any carriage upon
which toll was imposed; and afterwards it was pro-
vided that no person should be obliged to pay more
than once, in one day, in respect of any carriage or
any horse, nor in respect of any carriage or horse em-
ployed for certain purposes, and that toll should not
be taken from any person for the same horses at more
than one toll-gate, in one day. It was held that the toll
was imposed on the horses merely, and could not be
taken upon a horse passing a gate twice on the same
day drawing different carriages. In Williams v. San^
gar (6), an act, after imposing so much on such and such
carriages drawn by so many horses, and so much on
every horse, &c., provided that no person should be
subject to the payment of toll more than once in any
one day for passing and repassing xmth ike same horse
or carriage through the same turnpike ; and it was held,
that a carriage in respect of which toll had once been
paid, was not liable to a toll on the same day at the
same gate, though drawn by different horses. In Grayy.
Shilling (c), an act imposed tolls on carriages, and tolls
on horses not drawing; and, by a distinct provision, ex-
empted persons having once paid, and passing a second
time, wiih the same horse, &c., on the same day : then
another act repealed the toll clause of the former act,
and imposed tolls on horses dramng a carriage, and tolls
on horses not drawing, but continued the provisions of
the former act in other respects ; and it was held that no
(a) 1 Bing. N. C. 81. (6) 10 JSoif, W.
(c) 2Br.iB.Z0.
toll
IN THK Fourth Year of WILLIAM IV.
:over. If there be an ambiguity, the construction
)uld be in favour of the pubh'c.
Sir G. A. Lewifif in support of the plea. The word
'A means the same ; if not, it would have been easy
' the parties to use the words of ike same description.
Loaring v. Stone (a) the words imposing the toll were
3 same, in every material respect, as the words in the
eenant here. The defendant here is to take tolls
t>ject to the provisions of the act. Now the act, after
exempting clause for a second passage by the same
rses, provides (&), ^* that the tolls hereby made pay-
le for or in respect of horses or beasts drawing any
ge-coach, &c., shall be payable and paid every time
passing along the said roads,'' &c. The trustees
ly, indeed, under the General Turnpike Act, S G. 4.
126. & 43, (c) reduce the toll, but they have not here
loced it, as to different stage-coaches.
729
1834.
FlllTOK
against
Swallow.
Wightman in reply. In Loaring v. Stone (a) the ex-»
ipttng clause had the words ^* with the same horse, or
(t) SP. 4 C. 515. (b) Sect 16.
(e) Which enacts, that it shall be lawful for the trustees or commis^
oners under any turnpike act, in case no power or effectual power
loold be given to them under the act by which they are appointed, and
»j are thereby empowered, at a meeting to be held for that purpose,
)f which notice is to be given, as the clause particularly directs,) from
nx to time to lessen and reduce all or any of the tolls granted by any
f the said respective acts, for and during such time as the said trustees
r oommissioners shall think proper ; and afterwards at any meeting to
* bdd as aforesaid, from time to time, as they shall see occasion, to
dvaticc all or any of the tolls, so lessened, to any sum or sums of money
^ exceeding the several rales granted by such acts of parliament and
^«t respectively.
borseSf
SWAtXOW«
IN THK Fourth Year of WILLIAM IV. 731
that any horsei upon which toll has been paid once in 1884.
the day, shall be permitted to repass once toll free.
So far, there is no limitation of the exemption; the ogahui
horse may be led, driven, or ridden, or may be
drawing or not drawing. Then comes a proviso, that
the tolls payable in respect of horses drawing any
stage-coach shall be payable every time of passing : but
under the General Turnpike Act, 3 G. 4. c. 126.
s. 43. the trustees have power to reduce the tolls ; and
this power is general, and not limited to horses return-
ing with the same carriage. Then, by the regulations
imposed here, the toll is reduced on horses return-
ing; and we must presume that the covenant is in pur-
suance of the act. The question then arises, whether
suck carriage means the same can-iagej or, generally, a
carriage of the same nature; I think the meaning
is not confined to the identical carriage. Therefore^
upon the construction of the act, I think this was a
case under the first clause of exemption as to the horses ;
and that the liability imposed by the subsequent proviso
is reduced, according to the General Turnpike Act, in
the case of horses returning on the same day with a car-
riage of the same description.
Taunton J. Assuming that this bargain between the
trustees and the defendant is in conformity with the local
act, and construing it with reference to the act, I think, as
I thought upon the first reading, that the judgment must
be for the plaintifi. The words used are not ** the same
carriage,'' but, generally, " horses drawing any such car-
riage— returning; " so that it would not matter whether
the carriage were the same or difierent ; and the defend-
ant would, vx either case^ be guilty of a breach of covenant.
That
IN THE Fourth Year op WILLIAM IV. 733
1834.
Doe on the several Demises of William Sweet- FrUt^,
^^ June 6th*
LAND and Charity Hill against Thomas
Webber.
ON the trial of this ejectment before Park J., at the A party baY«
Devonshire Lrent assizes^ 1832, a verdict was taken tary setUcment
by consent for the defendant, subject to the opinion of conTeyed away
this Court on a special case. The questions raised by an »tatT«f«er-
the case were, first, whether a certain marriage settle- a^rtmi^"©?
ment, made by John Hill on the 26th of May 1798, the same estate.
" *^ 1 he mortgagee^
after his marrias^e, was or was not invalid as a^fainst a representing
° himself as a
subsequent purchaser of the settled premises for valu- bond fide pur-
chaser for vatucf
able consideration; secondly, whether, in fact, there claimed to treat
had or had not been a subsequent purchase for value, ment as Toid,
The judgment of the Court having been given upon the 27 J/;«. c.*4.:'
second question only, so much of the case and argu- ^c}g,!gJ|*ons or
ments as relates to the first is omitted. admiswons,
implied or
On the 26th of May 1798, John Hill, being entitled "press, of
^ '^ the mortgagor,
to the reversion in fee of Middle hangford (the estate in made after he
had parted with
question in this suit), expectant upon the life of Ann his interest by
Western, demised it to the lessor of the plaintiff, William were not ad- '
Sfweetland, and another (since deceased), for eighty dence on behalf
years, if his then wife Charitxj Hill (the other lessor of g^^^^^f^
the plaintiff) should so long live, to commence after the |^®^^^®^
death of the said Ann Western and himself, in trust to gagor,)toshcw
that money had
permit her to receive the rents for her own use for so actually been
advanced upon
vnany years of the term as she should live. the mortgage.
By indentures of lease and release of the 4th and 5th
tJi February 1803, made between the said John Hill of
the one part, and John Wilcoch, of Exeter, banker, of
Vol. I. 3 C the
IN THE Fourth Year of WILLIAM IV. 735
Mr. Piddejfj the attorney who prepared the mort- 1884.
gage, stated that, after the notice had been so left, John — —
Doc deni*
Hill and his brother came to him in consequence, and Swxrlano
requested him to interfere with WilcocJcs not to sell the WiniK.
property, the brother promising to pay off the debt.
John Hill did not say that the money had not been
advanced. The brother paid 100/. towards it. Mr.
Pidsley also stated that, when the security from Hill
to WilcocJcs was prepared and executed, he had no in<*
timation of any marriage settlement.
A commission of bankrupt, dated the 14th oi Septem*
ber 1804, against the said John Hilly was put in; and it
was proved that Hi//, in his last examination under
tliat commission, on the 1st of December 1804, stated,
amongst other things, as follows : — -
** I was entitled" (in 1798) " to the reversion in fee
of an estate called Little Langfordy situate, &c* This
estate^ by certain indentures, &c., I conveyed to John
WilcociSf of &c., in trust for sale on his advancing me
800/. thereon, which I conceive to be not much less
than the value thereof. I understand some doubts have
arisen as to the validity of this conveyance to Mr. Wil^
cocks J but whether they are well or ill founded I can-
not say. I had notice from Mr. WilcocJcs^ bearing date
the 2d day of February 1 804, that, in default of pay-
ment of the said sum of 800/. and interest within one
calendar month from the date of such notice, he would
proceed to sale, but which said estate, I apprehend, has
not been sold. The debts I now justly owe amount to
about 700/."
It was proved that, In February 1804, while Hill
continued to bank with John WilcocJcs and Co., bis
account with that firm was made out^ and transmitted
3C 2 to
IN THE Fourth Year of WILLIAM IV,
737
The questions for the opinion of the Court were, first,
lether the lessors of the plaintiff, claiming under the
tlement of the 21st of May 1798, were, on the facts
ove stated, entitled to recover. Secondly, whether
s evidence objected to waS admissible, and whether
sre was legal evidence of any debt being due from
hn Hill to, John WilcocJcs under the mortgage of the
1 of February 1803, or of there being any vahiable
nsideration for that deed. A verdict was to be en<-
ed for the lessors of the plaintiff, or the verdict for
I defendant to stand, accordingly.
1834.
Dob dfqn.
SwiXTLAUD
ngaiHit
Fcllett for the plaintiff*. It is admitted that a mort-
ice advancing money is pro tanto a purchaser for a
luable consideration. But here there is no proof of
I advance of money. The statement of the consider-
on in the mortgage deed of 1803 cannot be re-
ved as evidence of that fact ; and, if admissible, it
uld not shew the fact. For it is to the effect only
it monies are to be afterwards advanced. Again, tlie
mission made by John Hill^ after the conveyance, is
t evidence to shew the fact of valuable consideration
ving passed : a party cannot, by admission, make
od a conveyance, so as to defeat a settlement by
lich, antecedently to the admission, his interest has
ssed. Had the admission been made before the
tlement, the lessors of the plaintiff, as they claim
der John Hill, might be bound by it; but such a
claration, made after his interest is gone, has no
ijrer the character of an admission. Tlius, a declar-
on of a party to a bill of exchange, made after pass-
^ the bill, is not receivable as an admission to defeat
; this was the opinion of the Courts both of King's
3 C 3 Bench
IN THE Fourth Year of WILLIAM IV. 789
fts against creditors or subsequent purchasers. Lord 1834.
Dentnan C. J. The settlement may be fraudulent or — —
Dot dem.
may not; can the declarations of the settlor, after he SfrsnLAirD
had parted with his interest, be received to shew what Wmsx.
the character of the settlement was ?] If he received
money in consideration of the second conveyance, the first
is bad as against the subsequent purchaser. Proof that
the conveyance of 1803 was made for value, would shew
that HiWs interest in the property was not divested by
the settlement of 1798. If his act or admission is not
evidence to shew that he did receive value, neither is it
evidence to shew that he executed the latter conveyance
at all ; and then the first is not shaken. [Lord Deii-^
man C. J. The act of executing the conveyance is evi-
dence, but declarations made by the party after having
(as far as appears in proof) passed away his interest
by the settlement, stand on a very different ground.]
They are part of the res gestae, and are to be con-
sidered, not as mere statements by Hill, but as a part of
his conduct through the transaction. Even his execu-
tion of the deed is only one of the acts which form that
course of conduct, and which mnst be taken into con-
sideration, though operating in derogation of his own
former deed. The facts clearly lead to the inference
that value was received for the conveyance in 1803.
(He then proceeded to observe upon the facts stated
in the case.) The declarations of Hill are those of a
person unaffected by any view of advantage in making
them. It may be said, that by avoiding the settlement
his estate (subject to the mortgage) was enlarged ; but ^
the settlement would at all events be good, except against
a bon& fide purchaser. His advantage would have lain
3 C 4 (if
YffMMn.
740 CASES XN TRINITY TERM
1834'. (if on either side) in denybg the receipt of any monej
■ from WilcocJcs.
DcBdem.
SWKITLAKO
w1^^. Lord Denman C. J. I think it is clear that there was
no evidence to go to the jury, of any advance of money
to John Hill by Wilcocks the mortgagee. The settlement
of 1798 was good, unless shewn to be void under the
statute 27 Eliz. c. 4, and that could only be by legitimate
proof that, on the subsequent conveyance, the parchaser
actually advanced the money. The proof here given
amounts at most only to declarations by Hill that he
had received money from Wilcocks. But it b clear that
a person who has parted with his interest in property is
not to divest the right of another claiming under him
by any statement which he may choose to make. The
payment made by the brother does certainly give to
what passed the appearance of a bona fide transaction ;
but even this it would be dangerous to rely upon ; and
it could be evidence only by reference to the conduct of
Hill himself, and that not a part of his conduct imme-
diately connected with a receipt of money from the
mortgagee. Mr. Crawder is obliged to contend that the
declarations of HiU are admissible, as being those of a
disinterested party ; but I know of no case which sap-
ports such a principle, and it would go very far towards
removing the necessity of evidence being given on oath.
Mere want of interest, not coupled with other circum-
stances, has never, as far as I know, been held a ground
for admitting declarations as evidence; nor, if it wereso^
is it clear that the party making these declarations was
without interest in their result.
LnxLE*
IN THE Fourth Year op WILLIAM ly. 741
LiTTLEDALE J. The evidence in question might have 1884.
been good as against HiU himself, but cannot be admit-
ted to affect the interest of third persons under this set- Swutlamo
tlement For that purpose, there should have been Wsmik.
proofs of an actual advance of money by the mor|gagee to
HiU. The payment by the brother, and the other facts
proved as to him, amount to nothing more, ultimately,
than evidence of HiWs declarations. It does not follow
from the payment of 100/. that any further sum had ever
been advanced; and if the only sum ever advanced was
paid off, tlie mortgagee would no longer stand in the
situation of a purchaser for valuable consideration, as
against whom a prior voluntary settlement would be
void.
Taunton J* The defendant's case rests, not upon
plain straightforward evidence of money having been
advanced upon the mortgage, but on declarations made
by a husband after executing a marriage settlement, and
adduced for the purpose of cutting down the right ac-
quired under that settlement, in favour of the person
whom he now treats as a mortgagee for value* I am of
opinion that he, having parted with his interest by the
settlement, was not competent to cut down that settle-
ment by his declarations afterwards made. It is not for
us to decide what sliould have been the effect of the
evidence if admitted ; it is sufficient to say that, as the
case stands, there is no proof, satisfactory to my mind,
of a debt due to Wilcocksy or of any value given for the
mortgage. Whether a jury would have thought other-
>vise it is not necessary to consider.
WiU
PDBtlft.
IK THS Fourth Ycar of WILLIAM IV. 743
person named TTiotnas Shearman had paid a part of the 1834.
principal and interest due on the note, \vithin six years """^
of the commencement of the action. The plaintifls' t^dmu
counsel then proposed to prove that the signature of
Thomas Shearman to the note was in the handwriting of
the person who had made the payment ; to which the
defendant's counsel objected, as there was a subscribing
witness to Thomas Shearman's signature of the note, who
was not called. To meet this objection, it was proved
that the signature ^^ Thomas Shearman** was on the note
before the defendant signed it ; and that the defendant
and JVfteeler had executed the note as sureties to the
two Sliearmansj whose names were on the note. The
learned Judge expressed an opinion that the evidence
did not shew, prim& facie, that the payment had been
made by a party to the note ; but he directed a verdict
for the plaintiffs, giving leave to move to enter a non-
suit. N» IL Clarke obtained a rule acccordingly in
Easter term last.
W/iiiehursi now shewed cause. The defendant is not
entitled to dispute the fact that Thomas Shearman was a
party to the note ; and then the case is within the prin-
ciple of Whitcomb v. Whiting {a) and other decisions of
the same class. The defendant, having signed the note as
surety, has, in effect, subscribed his name to a repi*esen-
tation that Thomas Shearman was indebted ; he is there-
fore estopped from disputing \\\B,i Shearman was indebted,
or that he might act (as by making payments) in respect
of the note. And his signature, following that of
Thomas Shearman^ is equivalent to a representation that
(a) 1 Doug. 652. See J&ew ▼• JMe/, tntdi 195*
the
744
CASES IN TRINITY TERM
18S4.
Wyi.dk
against
POBTUU
tlic latter is genuine. IF the facts do not amount to an
estoppel, they are at least conclusive evidence against
the defendant.
TAe Court {a)^ stopping N. B. Clarke^ who was to
have supported the rule, made it
Absokte.
(a) Lord Venman C. J., LittUdale, TawUony and Wvliamt Js.
Monday,
June 9tli.
The King against The Inhabitants of the Town-
ships of BONDGATE in AUCKLAND, NeWGATE
in Auckland, and the Borough of Auck-
land.
TNDICTMENT for non-repair of a highway. The
indictment averred, that from time whereof &&,
there was and yet is a certain common &c. highway in
the town of Bishop Aitckland^ in the parish of St. An-
df'cw Auckland^ called T/ie Market Place, used for all
&c. to go &c. into and from several other common &c.
highways, in the town of Bishop Auckland aforesaid, in
the parish of St. Andreas Auckland aforesaid (wbidi
The rated in-
habitants of a
district indicted
for non-repair
of a highway,
arc not ren-
dered com-
peicnt wit-
nesses for the
defence by
Stat. 54 G. 5.
c. 170. f. 9.
An indict-
ment charged
that the in-
habitants of tlie last-mentioned highways were named in the indictment,
B^ndgaie'm hut uot set out by termini); and tliat certain parts of
^cw2^Z\ti ^'*® ^°"^*^ highway calletl &c,, situate in the town &tj
u!rblrough"o^f '^^ ^^^ P^"sl^ ^^-^ (^ ^^''^^''^) ^^^^ 's to say, (the indict-
Auckiand, in ment then set out several parts bv their termini ami
the parish of * *
Su Andrew
Auckland^
were iromemortaUy liable to repair a highway in the town of BiiJiop AycHa»d, is the
parish of St* Andrew Aucklnndy and no consideration wan laid : Heid bad, in arrfft of
judgment, as not shewing that the highway was within the defendants* district:
Held, to be no objection, that Uie inhabitants of the three townships were chinp
conjointly*
situatioO}
IN THE Fourth Year of WILLIAM IV.
745
situation, all the termini, as well as the several parts
themselves, being laid to be in the town of Bishop
Auckland^ in the parish of 5/. Andrew Auckland) on &c.,
and continually afterwards until Sec, in the town of
Bishop Auckland aforesaid, in the parish of St. Andrew
Auckland aforesaid, were ruinous &c. for want &c. ;
and that the inhabitants of the townships of Bondgate
in Auckland, Newgate in Auckland, and the borough of
Auckland, in the parish of St. Arldrew Auckland afore-
said, from time whereof &c., had repaired &c., and
still ought &c. ; and that the said inhabitants had not
yet repaired the same. On the trial before Alderson J.,
at the last Spring assizes for Durham (a), the defendants
called as witnesses certain rated inhabitants of the
several townships, who were objected to as incom-
petent by reason of interest: and the learned Judge
held their evidence to be inadmissible. A verdict of
guilty was found.
18S4.
The Kino
agninsi
The Inhabit-
anU of
Bishop
AuCKCANOt
Alexander moved, in Easter term last {April 15th) {a),
for a rule to shew cause why a new trial should not be
bad, on the ground of the rejection of the evidence, or
why judgment should not be arrested. With respect to
the evidence, the stat. 54 G. 3. c. 170. s* 9. provides that
no inhabitant, or person rated or liable to be rated to
any rates or cesses of any district, parish, township, or
hamlet, shall be deemed and taken to be, by reason
thereof an incompetent witness for or against such dis-
trict, parish, township, or hamlet, in any matter relating
to such rates or cesses, or to the boundary between such
(a) See S. C. at K. P, \ M, ^ Boh, 287. nole (rf).
(6) Before Lord Denman C. J,, Purki, LitUedale, aud Patieton Js.
district,
746
CASES IN TRINITY TERM
1884.
TheKiirtf
Thelnhabil-
ftDUof
BxsHor
AUCX&AMB
district) parish, township, or hamlet and any adjoiniDg
district, parish, township, or hamlet. In Mandtm y«
Siansfield (a), it was held that an occupant of rateable
prc^rty within a chapelry was a competent witness to
prove the affirmative of an issue whether a particultf
messuage was within the chapelry ; and A^fry J. then
put the decision, not merely upon the ground of its not
being distinctly shewn that the plaintiff, on the balaoco
of advantage and disadvantage^ was interested to estab-
lish the affirmative, but also on the ground that tbe
statute was applicable^ the quesdon relating to the rates
and cesses of the district, and to the boundary between
it and the adjoining district* That applies to tbe
present case; and the interest here is not stronger
than it was in Marsden v. Stan^ld (a). In iter f.
Hm/man {b) and Heudebourck v. Langton {c\ rated inba*
bitants were admitted as witnesses, on questions rdating
to the highways, who were as much interested in the
event as the witnesses here rejected. It is true that, in
Oxenden v. Palmer ((/), a rate payer within a parish wis
held incompetent to prove the affirmative of an issue
whether there was a custom in that parish that persoiUy
whose duty it was to amend the highways in the parish,
should have the right of taking certain materials from
a close of the plaintiff. But Lord Tenterderis judgment
there turned on the particular nature of the question, is
not appearing properly and strictly to relate to rates or
cesses of the parish. [Parke J. The language of tbit
judgment appears to me to be applicable to the present
case.] Then as to the indictment. First, it does not
(a) 7 ^. j* C. 815. (6) IU.^M, 401.
(c) 1 Af. j- J/. 402. note (6;. S* C, not S. P.| 10 A ^ C 54«.
W ^B.4: A(U 236.
sbeir
IN THK Fourth Year op WILLIAM IV.
7*7
shew that the highways are within the townships in«
dieted, but only that they are within the town of Bishop
Auckland in the parish of St. Andrea) Auckland. That
being so, the indictment is bad for want of alleging a
consideration for the duty to be thrown on the defend-
ants; Rex y. St. Giles, Cambridge {a). That case was
recognized as law in Rex v. Ecclesjleld {b) (where it was
held that a consideration need not be shewn for a cus-
tom that the inhabitants of a district in a parish should
repair all roads in that district)^ and in Rex v. Ma^
dytiUeth {c\ which is a case closely resembling the
present. Secondly, the indictment is bad, for charging
three townships conjointly ; since, if all be liable, it is
the separate neglect of each. This objection was taken,
but was not determined upon, in Rex v. Machynlleth (c).
{Idiiledale J. I cannot see that there is any thing in
this last objection. — Lord Denman C. J. We will con-
sider of the other objections.]
Cur. adv. vult.
1834.
The KiMo
ag^i»tt
The Inhabit^
ants of
Bishop
AuCKLAKBb
In the same term {Apil 17th}, the Court refused the
rule for a new trial, and granted a rule nisi for arresting
the judgment on the first objection to the indictment.
Cresmell now shewed cause. After verdict, the
Court will support the judgment, unless it clearly ap-
pear that the defendants could not be liable. The jury
must have been satisfied with the proof of the liability :
the motion in arrest of judgment admits that all was
proved which could be proved on the issue joined ; and
this is the principle upon which the Courts always
refuse an application for a new trial after a motion in
(a) 5M. 4;S.260.
(c) 2S.4:ai66.
(6) lS*tM.34S.
arrest
748
CASES IN TRINITY TERM
1834.
The Kivo
againti
The Inhabit-
ants of
BUROP
arrest of judgment has been disposed of. In tbe pre*
sent case, enough appears to support tbe judgment
The argument on the other side must assume that the
town of Bishop Auckland cannot possibly be idenbal
witli the district consisting of the townships of BonJgate
in Auckland^ Newgate in Auckland^ and the boroof^ of
Auckland. Rex v. Gamlingajf (a), which may appear to
be in favour of the defendants, is much shaken by wbat
fell from the Court in Bex v. Knight (&)• Rex v. Ifo-
chynUeth {c) differed from this case : there a bridge was
laid to be within two parishes, Pennegoes and Ma^ph
Uethf and an immemorial liability, ratione tenurae^ was
laid in the inhabitants of the parish of Penn^oes and the
inhabitants of the town of Machynlleth ; and it was not
alleged that the bridge was in the town of MachynOeii
nor that either of the parishes was in the town, or the town
in either of the parishes. Here the highway is alleged to
be in the town of Bishop Auckland^ in the parish of St.
Andrexs) Auckland^ and the townships are alleged to be
in the same parish. Now, the township of the borough
of Auckland may be considered identical with the town,
for every borough is a town, though every town is not
a borough, the town being the genus, and the boroagh
the species; Lit. s. 171., Co. £//. 115. b. [ilM^
dale J. But how can we say that Auckland and Bl^t
Auckland are the same? Are Weat-mouth and -BWtp
Wearmouth the same ? (</)] Still this indictment may
be supported after verdict. The highway appears \f> ^
in the parisli of St. Andreio Auckland. Now there «
nothing to prevent the Court from assuming that the
three townships make up the whole parish. " If *
(rt) 5 T, li. 515. (6) 7B.^C 415.
(c) ^B* ^ C. 166.
(^0 See Bix v. SisJwp Wearmouth, 5 JS. j* Ad. 9i2.
matter
IN THE Fourth Year of WILLIAM IV.
matter be alleged in parochi&y it shall be intended in
law, that it containeth no more towns than one, unless
the party doth shew the contrary ;" Co. Lit. 125. b. On
the same principle, the three townships, which alone are
here mentioned, shall be intended to be the only town-
ships in the parish. {^Uttledale J. Even if Lord Coke
be right, where only one town is in question, you
get at large as soon as you come to the plural number.]
It is a common form to allege that there are many
, vills, each of which repairs its own roads. If this indict-
ment had alleged that there were many townships, and
that three repaired their own roads, it might have been
bad; but here only three are mentioned. Suppose the
allegation of tlie immemorial liabih'ty were struck out ;
it is clear, from Lord CoJc^s authority, that this would
be understood to be a liability charged on the whole
parish.
749
18S4.
The Kino
agtunU
The Inhabit'
anU of
BUHOP
Auckland.
Alexander and W. H. Watson^ in support of the rule,
were stopped by the Court.
Lord Denman C. J. It is impossible not to see that
the indictment, here, was intended to charge a liability,
which was not to be the ordinary one. The Court can
decide nothing by way of inference.
LiTTLEDALE, Taunton, and Williams Js. con-
curred.
Rule absolute.
VouL
3D
IN THE Fourth Year op WILLIAM IV. 751
rule to shew cause why the nonsuit should not be set 18S4<.
aside, and a new trial had, ^ ,
Dot dem.
POOLB
against
Cresswell (with whom were Alexander and W. H^ EaMMoroxi
Watsm) now shewed cause. Tenants in common cannot
join in a demise in ejectment. They hold by several
titles, and not a joint title ; Littleton^ s. 292. ; or, as it is
expressed by Lord Coke, by one title and by several
rights ; Co. Lit. 189. a. (a). Now, the nominal plaintiff in
gectment recovers upon the title or right of the party
making the fictitious demise ; therefore, if that party do
not possess the title and right, the plaintiff cannot re-
cover at all. Here no such title exists, as that oi Barbara
BooU and Elizabeth Poole. Supposing the plaintiff to
(4>tain a verdict here, what title will be established?
what will be the interest in virtue of which the sheriff
will execute the judgment? Joint tenants, having a
single title, join in the demise in qectment, and the
judgment is in favour of the single title. So parceners
may join; because any number of parceners constitute
a single heir. This shews why, if two tenants in
common be disseised, *^ they must have two assises,
and not one assise; for each of them ought to have
one assise of his moiety, &c. And the reason is, for
that the tenants in common were seised, &c* by several
titles. But otherwise it is of joint tenants ; for if twenty
jointrtenants be, and they be disseised, they shall have
in all their names but one assise, because they have
(o) This expression appears to refer to a case where parties bold bj
ttdependent rights, originating in the same title, as in the present case.
Such independent rights would, of course, be subject to the same argu-
Benu as the independent titles of any otlier tenants in common. Lord
'I^oke goes on to say, that *' joint tenants have one joint /reehold, and
cnants in common have several freeholds."
3 D 2 not
752
CASES IN TRINITY TERM
Dob dem.
Pools
againtt
EaUMOTOK.
not but one joint title;'' LiU. ^.311. So tenants in com-
mon must distrain separately for rent &c. reserved, if
the thing reserved be capable of division (a) : for eadi
tenant in common has a distinct reversion. If it be urged
that tenants in common may join in a real lease, and
that they may therefore be alleged to join in a fictitious
demise, the answer is, that parties with different titles
may join in a real lease, but that these titles do not, in
themselves, constitute a single title to land. In Bd^
let's Nisi Prius^ B. S. c. 2. p. IO7.9 the same doctrine is
expressly laid down; Moore v. Fursden{b) is to tbe
same effect; and so are the opinions of three Justices of
the King's Bench against one, in Mantle v. JVoUing-
ton (c) ; and the same principle is recognised in Morris r.
Barry {d). One tenant in common might prove a good
title ; the other might fail. Neither could demise in
entirety. In Boner v. Juner (e), it was held at nisi
prius, by Holt C. J., that coparceners might join in eject-
ment : that rests on the ground before shewn. In Boe
dem. Raper v. Lonsdale (g), one of several joint tenants
recovered on his single demise : that was decided ODthe
ground that the demise was a severance of the joint
tenancy. Upon the same principle, it was held, in Doe
dem. MarsacJc v. Reed (A), that the plaintiff might re-
cover on the several demises of two joint tenants. In
(a) See Co. Liit, 197. a,b.. Lit, s. 317., and Lord Ccie Uiere, O. V^-
198. b. ; Harrison t. Bamhy^ 5 T. R. 24S. Contra, as to distres dinMC*
i^nt, CuUry t. Spearman, 2 H. BL 386., OTerruling JTiffii y. Fkidnf'
Cro. EHu 530.
(6) 1 Shtno. 342. ; and see Hcatherlfy dem. Wortkmgtim t. ITestM,
2 irUu 232.
(c) Cro. Jac. 166. (rf) I JTils. 1.
(e) 1 Ld. Raym. 726. (g) 12 East, 59.
(A) 12 Eoit, 57.
that
iH THE Fourth Year of WILLIAM IV. "^^^
that case Sir Vicary Gibbs^ then attorney-general, said, 1884?.
as amicus curias, that " the rule was formerly considered dob dcm.
to be, though he had never heard any reason assigned Poo"
for it, that in laying demises in ejectment, tenants in EauiiCTOK.
common must sever, joint tenants must join, and parce-
ners might either join or sever. But if joint tenants
might sever, it seemed difficult to say why tenants in
common might not join, as each might still be taken to
have demised according to his legal interest.*' The rule
there suggested was, at any rate, inaccurate as to joint
tenants ; for the cases cited shew that they may sever : but
then they recover as tenants in common, the severance
having converted the joint tenancy into a tenancy in
common. And this shews the reason of the rule, that
tenants in common must sever : for they cannot become
joint tenants by joining.
Coltman and Ingham in support of the rule. The
action of ejectment has, for a long time, been merely a
fictitious method of trying the title of the lessor. For-
merly, it was a proceeding in which the actual state of
facts appeared in the declaration ; and then, no doubt,
the declaration was subject to all the rules relating to
variances in the evidence. The amendment having
been refused at the trial, the lessors of the plaintiff,
should this rule be discharged, will be in a situation of
much hardship; for, if this had been, as formerly, a
proceeding founded upon an actual lease to the plain-
tiff, the variance between the declaration and the lease
would certainly have been cured by amendment at nisi
prius. There can be no doubt that tenants in common
may join in a real lease ; and, had such a lease been
made, it must have been described as a lease by the
S D 3 two
IK THE Fourth Year op WILLIAM IV. 755
lessor appeared in evideDce to be entitled to a diird part 1884.
only ; and this was held not to be a variance. These " ~
cases shew that strictness in proof of the title laid is Pool* "^
DO longer required. EaRiHOTOic
Lord Denman C. J. When the motion was made
in the present case, I thought that there had been some
alteration in the old law on this point; but it is clear
that the ancient rule which originally prevailed in
actions of ejectione firmae, continued in force after the
proceeding had become fictitious: and there is good
reason for this. Were it otherwise, titles of any kind,
however unconnected, might be joined in a demise.
LiTTLEDALE J. The old law certainly was, that in
all real actions tenants in common must sever, and that
in personal actions they must join (a). In mixed actions
they were to sever (d). I do not see that the fictitious
nature of this proceeding suggests any reason for de-
parting from the rule. It is laid down, as now insisted
upon by the defendant, in Buller^s Nisi Prius (c).
Taunton J. There is an authority in favour of the
defendant, which has not been mentioned, Blachasper^s
case, cited from Nqy, in Lord Hale^s MSS. {d). The
fictitious action of ejectment appears to be more ancient
than Mr. Coltman supposes. The Year Book of 7 Ed. 4.
(a) See LUtUton, ss. 314, 315, 316.
(6) See Curtis r. Bourn, 2 Mod, 61.
(c) B. 3, ch. 2. p. 107.
(d) Nby, 15. Hargrove's note (7.) to Co, LilU 45, a. But, qumre,
whether uny decision appear in Noy*s report?
3 D 4 fol.
756
CASES IN TRINITY TERM
1834.
Dos dem.
Pools
agamsi
EUUMOTOK.
fol. 6. (cited by Mr. Selwyn in his Nisi Prius) (a), shew
that the term was recovered by the judgment, at some
time between the sixth year of Richard the Second and
the seventh year of Edward the Fourth. This form of
judgment
(a) ^jectmeni, I. p. 692. (ed. 8.1 831.) See Reevet's HiMoiy tflke
English Law, rol. S. ch. 15. p. S9.» ch. 92. p. 390., toI. 4. ch.27.
p. 164. (ed. 2. 1787.) The result of the authorities effected by tk
learned authors seems to be as follows : —
In East. T. 6 R. 2., the whole Court assented to a remark, that ejec-
tione firmsB is nothing but an action of tresptaB in its nature^ and dat Uk
plaintiff shall not recover his term which is to come, any more than, ia
trespass, a man shall recover damages for a trespass not done, but to be
done ; but he must bring an action of covenant at common law to recover
his term : FUx. Ab. Ejfctione Firma, 2. From this it may p«riii|ii bi
inferred that, at that time, an attempt had been made to recover, m thb
action, either the actual term, or damages to cover the loss of the whole
term, including the part unexpired.
East. T. 7 E(L 4. (Year B. ITiL 6 E. 4. f. 10. East* 7 £. 4. £ 5.)
A husband being seised in right of his wife, and husband and wife hanqf
made a lease, the husband alone, in the wife's life, sued the lessee in
debt for rent arrear ; and the question was, upon a plea in afaatmrst,
whether he could so sue. In the course of the argument, Catdg
(counsel) used the following illustration : — Of those things which ire
personal, and when the thing is to be recontinued [et quant le chose est
recontinue il est pur aver continuance], in such cases the writ must be
in the names of the two. As if lease be made to husband and wife, tnd
they be ejected, if they will bring writ de ejectione firms, in that case the
writ must be in the names of the two, because they are to recover their
term, tlie which, when recovered, is a thing which shall have continuiBoe
to the end of the term. Aflerwards, Fairfax (counsel) said, in answer,
in some case it shall be so, and in some case not ; for, if the tenn be
expired, the writ shall be in the name of the hudwnd alone, for tbst
he alone is to recover damages, which the wife cannot have in comisoa
with the husband, &c. ; but if the term be not expired, the writ shall
be in both their names, for that they are to recover their term to oooe,
which the wife may have aAer the death of the husband. For be
(^Faiffax) said expressly, that in ejectione firmae and quare ejedt in/ra
terminum, if the term be not expired, tlie plaintiff shall recover his term
and damages for the time that the other has occupied. Here both sides
appear to assume that the judgment is to be for a recovery of the tern
itself.
Jenkwh
IN THE Fourth Year of WILLIAM IV. 757
judgment introduced the proceeding in which the actual 1834.
parties were fictitious. The exact commencement of —
this we do not know : it certainly was earlier than the Poolk
b^inning of the eighteenth century. A case in Cro. Emumotok.
£/jz. p. 21. {a)y leads me to infer the existence at that
time of the action of ejectment, as a mode of trying the
title of the lessor of the plaintiff.
Williams J. concurred.
Rule discharged.
JenkinM, cent 2d, ca. 26, p. 67. ** If the plaintiff prevailed in a writ of
ejectione firmae in the time of Bich. 2. he recovered only damages, and
not the possession of tlie land: but in 14 ^. 7. the Judges of that time
adjudged (which is the law at this day,) that if the plaintiff prevails in such
action, he shall recover the possession of the laud, if his term be noc
expired; if it be elapsed, he shall recover damages.'* The record in
BaUdCs EfUries, IJectione Firmtr, 8. (dated East. T. 14 Hen, 7.) p. 252 b,
253 a, ed. 1596, is supposed by Mr. Reevet (voL 4. p. 165.), to be the
record of the case referred to by Jenkins.
It seems, however, that the date of this change has for a long time been
a matter of dispute. Fitxherbert (iV. Breih Ejectione FimuBt 220. H.)
says, " In tliis writ he shall recover his term again, if the term be not
ended .... And anno 14 Hen. 7., in ejectione firma brought against a
stranger, the plaintiff bad judgment to recover his term, and thereupon
the defendant brought a writ of error, and the judgment was affirmed,
and execution awarded for the plaintiff. And 17 f/. 8. such judgment
was given in the Common Pleas, that he should recover his term and his
danuges.'* It appears to have been mode a question, after 6 R, 2, and
before 7 Edw. 4, whether the tenant should recover his term, or damages
only, in gectione Jimue ; Year B. 33 H. 6. f. 42. Per Hussey (C J. of
K. B.)> Year B. Mich. 2\ E. 4. f. 11., in quare ^ecii infra termmunh
ejetdione Jirnue, and ^ectment de gard, a man is to recover the possession
and his damages also. In Lord Hale*s note (a) upon the passage cited
from Fitzfierbert {N. B. 220. H.), it is said, << Difer said that before 14
H. 7. the judgment was only, that the plaintiff should recover his term :
Dyer, 13.'* The reference to Dyer is inaccurate. See, further, Mr. Harvey*^
argument in Fairciaim dem. Fowler v. Shamtitle, 3 Bur. 1296. Also the
old Katura Brevium, f. 135.
(a) n'ebb v. Nect, Trin. T. 25 Eliz. (1583 . From the remarks of
Keeling J. in Keyes v. Bredon, 1 Keb. 705., it seems that, in 16 Car. 2., the
practice of trying titles by ejectment was recent ; and the case itself shewa
that the adores fabula were not there fictitious.
IN THE Fourth Year of WILLIAM IV, »759
plaintiff; or why the matters in dispute should not be 1834.
referred back to the same arbitrator, on the ground — ^—
Dov drau
that, upon the facts stated in the award, the arbitrator Flxmimo
ngntntt
should have found for the plaintiff; and that the fine was Foba.
not properly levied. The deputy proclamator of fines
in the Common Pleas certified (and also made affidavit)
that he had held the office for eight years last past,
and had, during that time, been the officer to make
proclamations on all fines levied in the Common Pleas,
and that he was employed in the office during twenty-
six years previously; that he was personally well
acquainted with the manner in which proclamations had
been made on all fines levied in the Court of Common
Pleas during the thirty-four years ; and that, during all ^
that period, the uniform practice had been to proclaim
two fines in each term, for and in the name of all the
fines engrossed in or as of that term, and to proclaim
the same two fines in the three next succeeding terms ;
and that, in making such proclamations, no regard had
been had to the returns of the writs of covenant, or the
days or times when the fines were engrossed or con-
sidered to be engrossed, but only to the terms of
which the fines were engrossed or considered so to be;
and that the first proclamation upon more than four
fifths of all the fines levied during the thirty-four years
bad, in point of fact, been made before the fines were
engrossed, and before the time when, by relation, they
were considered to be engrossed: and he further
certified that he had examined the documents in the
office for the period of between fifty and sixty years
back, to ascertain the manner in which proclamations
vrere made on fines levied before he came into the office;
and found that the proclamations during all the last-
760 CASES IN TRINITY TERM
1834. mentioned period were made in the manner before
stated ; and that it had always been considered sufficient
Dob dein,
Flbming to make the first proclamation at any time during tbe
againtt
FoBD. term of which the fine was engrossed, and the other
three in the three next succeeding terms.
Tomlinson shewed cause in this term, May SOth. (a)
The objection to the proclamation will rest upon the
words of Stat 4. H. 7. c. 24.| which enacts that (^
the engrossing of every fine, the same fine be openly
and solemnly read and proclaimed in the same term,
and in three terms then next following the same engross-
ing, at four several days in every term. By stat
31 El. c. 2^ the number of proclamations is abridged;
and, after recital of stat. 4. H. 7. c. 24., it is enacted,
that every fine with proclamations shall be proclaimed oolj
four times; that is to say, once in the term wherein it is
engrossed, and once in every of the three terms holden
next after the same engrossing. The date of the en-
grossing is, in fact, the date of the chirograph, which is
the date of the return of the writ of covenant. Now, the
statute of Elizabeth does not expressly direct that tbe
first proclamation shall be after the engrossing. It does,
indeed, recite the statute of Henry 7., which contains
such an express direction; but the recital in tlie statute
of Elizabeth does not in terms repeat that part of the
statute of Henry 7. ; for the words are, ** Whereas the
statute, &c. hath ordained, That every fine to be levied
with proclamations in the King's Court, &c should be
proclaimed in the same court that term in w/iich it is en-
grossed, and in three terras then next following, at four
(a) Before Lord Denman C. J., LiitledaU, Taunton, and WiHamii*'
IN THE Fourth Year op WILLIAM IV, 761
&c/* If the question were new, there might, perhaps, be 18S4<.
some difficulty in contending that the regulation respect- "
Dob dem*
iDg the first of the four fines nvas to be other than the Flbmimo
ogojntt
previous regulation respecting the first of the sixteen. Fobo.
But the words of the statute of Elizabeth are at any rate
Dot so inflexible as to prevent the court from accommo-
dating it to the actual practice of the Common Pleas. The
proclamations are, in fact, now a mere form. If the one
day fixed upon, in each term, for proclaiming all the
fines, were earlier than the last general return day, the
proclamation would, in all cases where the writ was re-
turnable on the last return day, necessarily be of a day'
earlier than the day of the return of the writ, and there-
fore earlier than the engrossing. Probably the greater
number of fines are, in fact, levied in the vacation, and
the writ of covenant is in such cases returnable on
the last general return day of the preceding term ; and
consequently the concord, engrossing, &c., are dated as of
that day. In all such cases the proclamation must ne-
cessarily precede the engrossing. And this practice is
sanctioned by the rules of courts of equity. Thus in *
Short V. Wood (a), money was directed to be laid out in
land, to be settled on a woman for life, remainder toiler
son in tail, remainder to the son in fee, and, until the pur-
chase of land, the interest to go as the profits of the land ;
and the mother and son brought a bill to have the money
paid to them. The Lord Chancellor {Parker) said that, if
there had been a remainder which could not have been
barred without a recovery, then, inasmuch as the tenant
in tail might die before such recovery suffered, or might
die in vacation^ txihen a recovery could not be suffered^ the
Court would not have decreed the payment to the tenant
(fl) 1 p. Wms. 470.
76« CASES IN TRINITY TERM
1884<. in tail, but would have decreed the purchase and setde-
" ment, in order that the chance of the reminder-man might
FuDfiMo be preserved ; but that in the then case, the son, baYiog
FoftD. the immediate remainder in fee, might bar the limitadons
by a fine only, which Jine might he levied in vacation time
as well as term ; and it would be vain for equity to decree
a settlement which, the same moment it was made,
might be cut oif : and the payment of the money was
decreed. And this is now recognised in books of
Chancery practice, as the practice of the Court. [Tamr
ton J. In Lord CoJc^s Readings on Fines^ it is said(ff),
<^ A fine is engrossed, and is said to be engrossed, whea
the chirographer has made the indentures of the fine,
and delivered them to the parties, to whom the comm^
sion was made. Note; — Yet a fine, before it be en-
grossed, is a perfect record, and may be executed.'']
In Comyn^s Digest, Fine, (H. 2.) it is said, <* If a fine
was acknowledged in Hilary term, and recorded in
Easter, it may be pleaded, quidamjinis se levavit termino
Sancti Hilarii ; for it was a fine before the engrossing."
iTauntonJ. referred to Crompton^s Case (6).] The prac-
tice respecting the amendment of fines shews that the
Court considers the proceeding mere matter of form. If
the practice, as sworn to, be incorrect, it is, on the one
hand, not worth while to correct it now, the assurance
being entirely altered by stat 3 & 4 W. 4. c. 74. ; and, on
the other hand, there would be much mischief produced,
by the danger in which existing titles would be placed
No practising conveyancer ever thinks of enquiring into
the days of the engrossment and first proclamation of a
fine.
(«) Law Tracts, p. 228. (First Beading on Fines), ed. 1 764.
(6) 3 Dyer, 254. a. pi. 104. ; and see Sir JbAn Brome*t Case, 4 Leon» 9&
IN THE Fourth Year of WILLIAM IV. "763
FoUeti contra. The passage cited on the Bench from 1884.
Cok^s Beadings on Fines shews that the date of the en-
Dob QflDa
grossing is the same thing as the date of the chirograph. Flbmimo
In Cruises Digeslf tit. S5. c. 2. s. 68 (a), it is said, *^ With Foks.
respect to the time when a fine is completed, Lord Coke,
in his comment on the statute De Modo levandi Fines (ft),
says — 'A fine is said to be levied when the writ of covenant
is returned, and the concord and the King's silver duly
entered ; this maketh the land to pass, and from this
shall the year and the day be accounted, albeit the fine
be engrossed afterwards.' " And in s. 69., ^' When the
mode of levying a fine by first acknowledging the
concord, then suing out an original writ, and paying the
King's silver, was allowed, a different manner of express-
ing the rule laid down by Lord Coke was adopted ; for
the fine was said to be completed upon the entry of
the King's silver, provided it was previously acknow-
ledged." In Sheppard^s Touchstone^ p. 3., it is said,
*' There are indentures made by the chirographer, and
delivered to the party to whom the conusance is made,
which is called the engrossing of a fine, for then a fine is
said to be engrossed, when the chirographer makes the
indentures of the fine, and doth deliver them to the
party to whom the, conusance is made." It is clear that
the engrossing never could take place before the date of
the return of the writ and of the final concord. Lord
Coke says that the engrossment may be made afterwards :
the fine, however, cannot properly be said to be complete
till the engrossment. The words of stat 1 Rich. 3. c. 7. 5. 1 •
are, ** after the engrossing of every fine ;" from which the
^words of Stat. 4 H. 7. c 24. are taken. The statute of
HizaJbeth cannot be understood to have made any alter-
(a) Vol.y. p. 84. {3d ed. 1824.) (6) 2Jnj/.517.
ation
IN THE Fourth Year of WILLIAM IV. 765
other band, the same authority was cited to prove that 1834.
it is not necessary that a fine should be ingrossed, pro- ~
vided it be recorded ; for it is a perfect record before Fliming
it is ingrossed, and it may be ingrossed at any time Ford.
after it is levied. Without deciding any thing on this
point, it is sufficient to observe that the statute directs
die proclamations shall be made after the ingrossing;
and though in ancient times certainly courts were very
strict in enforcing in all particulars the mode of levying
fines prescribed by the statutes, yet when we hear, as we
do from the affidavit of the officer of the Court of Com-
mon Pleas, that during all his time, comprehending a
period of nearly forty years, three fourths of the fines
levied have been levied in the same manner this was,
we must pause before we shake the security of so many
cities by pronouncing this fine void. This very length
of usage goes a great way to shew that this provision
of the statute has been construed to be only directory*
The case of Doe dem. Jones v. Harrison (a), was cited
in the argument for the lessors of the plaintifl^ but it
was upon another point; and though it manifests the
inclination of the Court by every reasonable intendment
to support fines, it cannot be relied on here on either
side. The judgment must be, that the rule to set aside
the award be discharged.
Rule discharged*
(o) 3 p. jf Ad. 764.
Vol. I. 3 E
766 CASES IN TRINITY TERM
t834.
Tue$dosf, Doe dem. Biass against Horsley.
June lOtb. ^
Lands wen TT-JECTMENT for lands in the county of York. At
devised in fee, Il« ^
charged with an the trial before Alderson J. at the York Spring
annuity; and . , .
power was assizes 1832, the plaintiff was nonsuited, subject to the
given to the n i • r^ i << n • m
annuitant to Opinion ot this Couit upon the following case : — Thomas
annuity'were in Biass the elder, by his will dated the 21st o( Jbpst
twiem/days 1800, devised the lands in question to his son Thrnas
after the day of £iass in fee, subject to an annuity of SOL per an*
payment, being ^ j j r
imrfuUjf de- num to his daughter Hannah^ payable quarterly, ind
was also given, thereby charged the lands with the payment of the nid
if it should be
inarrearfor annuity; and he also thereby declared his will and
enter and enjoy desire, that if the said annuity should be behind and
to^ake ^e^pro- Unpaid for twenty days after the day of payment, being
a^u^itMl'*"^ ^tt/«///y demanded, it should be lawful for the said
diouldbe there- Hannah to enter upon the said lands so chai;ged> and
satisfied ail the distrain for the same ; and in case the said annuity
arrears, with
all costs, or should be behind and unpaid for forty days next after any
until the per- *. i i p i ' i
son entitled to of the days of payment whereon the same ought to be
session should pnid, then and so often it should and might be lawful
arrears and ^^^ ^'^^ ^^^^ Hannah to enter into and enjoy the said
Sarupon^ihe ^^"^* ^o charged with the said annuity, and receive and
fo"r^"da ^'m ^^^^ ^^^ ^^^^^ issues, and profits thereof to and for
•"ear, the her own use and benefit, until she should be therewiii
annuitant
might bring and thereby paid and satisfied all the arrears of her
ejectment,
without mak- annuity, with all costs and charges, or until the person
demand. or persons who should be then entitled to immediate
possession of the said premises should pay, satisfyy and
discharge to her the said Hannah all the arrears of the
said annuity and every part thereof, incurred before
and
IN THE Fourth Year of WILLIAM IV. 767
nd that should incur during such times as they should 18S4.
ispectively receive the rents, issues, and profits thereof, " ~
r be entitled to receive the same, together with all her Biass
I agamii
ostsy &c. The testator died on, the 9th o'i January 1802, Hobslmt.
pon which event his son Thomas entered upon the
lid lands, and occupied them, by himself or tenants, till
didy^day 1830, when certain persons, to whom the
mds had been mortgaged by him, took possession, and
)ntinued in possession until Ladt^day 1831 ; the defend-
Qt then entered into possession as their tenant. The
nnuity was in arrear from 1823 to 1828, after which
me it was regularly paid by or on behalf of the persons
1 possession. Notice to pay the current annuity had
een given to the tenants of Thomas Biass after 1828,
ut no demand of the arrears from 1823 to 1828 was
bewn to have been made on any person, nor was any
emand of possession of the lands proved. The jury
mnd that the four years of the annuity between 1823 and
828 still remained unpaid at the time of the bringing
lie ejectment. But the learned Judge being of opinion
hat proof of a demand was also requisite, nonsuited the
laintiff, subject to a special case, with liberty to enter a
0
erdict for the plaintiff, in case a demand was not neces-
ary. This case was argued on a former day in this
erm {June 6) (a).
J. Henderson for the plaintiff. The will provides
wo remedies for the nonpayment of the annuity,
listress and re-entry. In the distress clause, a demand
it twenty days is required. Yet a distress might be
nade, although this condition is introduced, without
(fl) Before Lord Deiiman C. J., Littledale, Taunton, and JFUknms, Ju
3 £ 2 a demand ;
IN THE Fourth Year of WILLIAM IV. 769
certain rent, &c., upon such condition, that if the rent 1834.
be behind, that it shall be lawful for the feoffor and his
Dob dem.
heirs to enter, and to hold the land until he be satisfied Biass
or paid the rent behind, &c. ;* in this case if the rent be Hoksliy.
behind, and the feoffor or his heirs enter, the feoffee is
not altogether excluded from this, but the feoffor shall
have and hold the land, and thereof take the profits,
until he be satisfied of the rent behind ; and when he
is satisfied, then may the feoffee re-enter into the same
land, and hold it as he held it before. For in this case
the feoffor shall have the land but in manner as for a
distress, until he be satisfied of the rent, &c., though he
take the profits in the meantime to his own use, &c."
In Jemmot v. Cooly (a), where the question turned upon
the effect of an entry by the grantee of such a rent, only
one of the several reports of the case (1 Keb. 784.) makes
any mention of a demand, and no point seems to have
been raised respecting it. Nor does there appear to be
any similar case in which a demand came in question.
In Peirson v. Sorrel{b)j Pemberton C. J. held at Nisi
Prius that, if legacies be given by will, '^ and that,
in case of nonpayment, the legatees may enter and
enjoy the profits of such and such land till satisfied,"
no demand is necessary ; for it is no forfeiture, but an
executory devise, although there be a place and time
appointed for payment. In Havergill v. Hare (c), land
was conveyed by fine to the use that a grantee of a
rent might, upon its being in arrear, and no sufiicient
distress, enter and enjoy till the rent should be satisfied:
and the Judges agreed that this was not a condition,
(fl) 1 Lev. 170. ^. C. 1 Siiund.\\2. b, Sid, 223, 334. Sir T. Rnym,
135, 158. 1 JTeb, 784, 915. 2 ITeb. 20, 184, 270, 295.
(6) 2Show.lS5* (c) Cro.JacSlO, First question.
3 £ 3 but
IN THE Fourth Year of WILLIAM IV. 77 1
pcaue/* In Dormer's case (a), it was said that re-entry ISS^.
might be for default of payment, without demand, by
special consent of the parties ; which was acted on in Biam
Doe dem. Harris w. Masters {b). ILittledale 3. There hX*!^.
is a case like this in Dyer (c), where the Judges were
divided.]
Cur. adv. vidt.
Lord Denman C. J. now delivered the judgment of
the Court: —
This is an ejectment, brought by the devisee of an
annuity under the will of the last owner of the land.
The devise was in the following terms : (His Lordship
here regd the will.) And the question was, whether,
the annuity being unpaid for six weeks, a demand of it
was necessary before the right of entry for non-payment
accrued. At the trial, my brother Alderson nonsuited
the plaintiff for want of a demand, after consulting my
brother Patteson. This circumstance, rather than any
doubt entertained by the Court on the argument, made
us pause before we came to a decision. But we have
reason to believe that the learned Judge who presided
at the trial acted from no strong or decided opinion;
and the judgment I am about to pronounce has the
concurrence of my brother Patteson.
We think the plaintiff entitled to recover, although
no demand was made, on the principle established by
many authorities cited at the bar, that the present is not
a case of forfeiture for non-payment of the annuity, but
only a right to enter and receive the profits till the
arrears are satisfied. In the former case, a demand is
necessary ; in the latter, there is no authority for saying
(a) 5 Bep. 40. 6. (ft) 2 B. J C. 490. [p) 5 Dyer, 348. cu
3 E 4 that
Smith.
IN THE Fourth Year of WILLIAM IV. 773
said t/. S. and J, P. S., defendants, was not at the 18S4*
retnm thereof, that is to say, on the said Monday the """""
1 5th day of April {a), or on any other day or time whatso- aganui
ever, returned by the sheriff of the said county of York^
or by the under sherifiT, or by any other officer in that
behalf, nor was there any panel" of the names of the
jurors in the said writ of distringas juratores referred to,
returned and annexed thereto." This case was argued
in Easier term last, April 22d {b).
Alexander for the plaintiff in error. The omission
to return the distringas, and the want of a panel,
are objections which may be taken after verdict, and
are good ground of error. Judgment was arrested in
Stainer v. James {c\ because the sheriff's name was not
put to the distringas or the tales awarded upon it; for
want of a return to the venire or distringas, in Becknam
v. Bye [d) ; and for want of a return to the venire, in
(a) The statement on the judgment-roll, after the venire, and con-
tinuances by vicecomes non misit breve, proceeded as follows : — ** After-
wards the process thereof is continued between the parties aforesaid
of the plea aforesaid, by the jury being respited between them before our
Lord the King at Westminster, until Monday, the 15th day of jlpril next,
unless his Majesty's justices, assigned to take the assizes in and for the
county of York, shall first come on Saturday, the 2d day of March next,
at the castle of York in the said county, according to the form of the
statute in such case made and provided, for default of the jurors, because
none of them did appear. At which day, before our said Lord the King
at Westminster aforesaid, comes the said plaintiflT by his attorney afore-
said ; and the said justices before whom the said record was tried have
sent hither their record had before them in these words, to wit : — After-
wards, that is to say, on the day and at the place within contained,
before,*' &c. (the judges of assize), ** come as well the within named
plaintiff as the within named defendants, by their respective attomies also
within named, and the jurors of the jury whereof mention is above made
slso come, who to speak the truth,*' &c.
(6) Before Lord Denman C. J., Litlledale, Parke, and Patteson Js.
(c) Cro. Eliz, 311. (d) Cro, Elix. 587.
Ackeridge
Smith.
IN THE Fourth Year of WILLIAM IV. 776
lel is returned or annexed to the distringas. The 1834.
t 3 G. 2. c. 25. s. 8., clearly required that a panel
>uld be annexed to the distringas as well as to the a^omn
lire ; and this regulation is continued by 6 G. 4.
50. %. 15.
Archbold contra. The cases cited are distinguishable
•m this, and are not sufficient to establish that the
nt of a return upon the distringas, or of a panel
aexed to it, is error. In Blodwell v. Edwards {a\ a
tringas, with a decern tales, had been awarded for
nt of jurors; that was in the nature of a venire facias,
d ought to have been returned into court before the
y at Nisi Prius. The case was within the mischief of
t. 42 Ed, 3. c. 11. So in Becknam v. Rye{b\ 'it was
BBcient ground for arresting the judgment that the
lire facias was not returned ; that was the objection
lich prevailed in licywland^s Case{c). The same
servation applies to Ackeridge v. Conham (d), and
nmg V. Watson {e). The statement of Wilby v. Qiiin^
{g) is very short, and cannot be much relied upon.
Brawn v. Johnston (A), there was a variance between
i returns to the venire and habeas corpora. Crowder
Rooke (/) was also a distinguishable case; it appeared
;re, by the record, that the day of Nisi Prius had
ne by when the cause came on, and consequently that
*re was no authority to try. Holdesworth v. Proctor (i)
>ms to have proceeded upon an unauthorised applica-
n of Rowland's Case (c), the decision being, that the
a) Cro. Eliz. 509. (6) Cro. EUx. 587.
\c) 5 Rep. 41. fc. (t/) 3 Bulst. 220.
» Cited 5 r. JR. 462. (g) Hob. 130. (5lli ed. 1724.)
;A) BuU. N. p. 324.
;0 2 mis. 144. Sec Child v. Harvey, 1 SaUc. 48.
[i) Cro. Jac. 188.
want
Smith.
IN THE Fourth Year of WILLIAM IV. 777
corpora are not well returned; for on the venire the 1834*
jury do not appear to have been summoned; and it "
does not appear on the other writ that they were against
attached by pledges." To which one answer was, —
** As to the return, there can be no other than one
general return since the balloting act (a) : " and the
Court were inclined to affirm the judgment. In Com.
Dig., Amendment (G.) 1., it is said: — " If the return
upon a venire facias was right, but the return upon the
habeas corpora or distringas was defective, it was
amendable by the stat. 18 Eliz. 14«.*' — "So, if there
was no return upon the habeas corpora or distrin-
gas; for the venire facias is the principal process^
R. 1 Bol. 204. /. 15. 25." — " But if there was no
return upon the venire facias, it was not amendable till
the stat. 21 Jac. 13. R. 1 Bol. 204. /• 10." In an
Anonymous case (6), however, before 21 Jac. 1., it is said
to have been holden, " that if there be no venire facias,
nor habeas corpora, yet if the sheriff do return a jury,
the same is helped by the statute of Jeofailes." In
Fonokes v. Childe[c) (14 Jac. 1.), HaugJuon J. said,—
" If the distringas be album breve, it hath been adjudged
that this shall be aided by the statute;" and Dod-
dridge J. there held, that if there had been no distringas
returned, the defect would have been cured, after trial,
by stat. 32 H. 8. c. 30. And in Churcher v. Wright (d)
(15 Jac. 1.), after verdict it was moved, in arrest of judg-
ment, that the distringas was blank, and had no return or
sheriff's name; but the venire being well returned, and the
distringas being of the right jurors, the Court held that
(a) 5G.2. C.25.
(5) Gcdb. 194. But see Iftfton ▼. Peartey, 1 Brouml. j- Goldes. 78.
(c) 5JBmUi. 18a Cro. Jac. 396. (d) Cro. Jac. 44J.
it
778 CASES IN TRINITY TERM
18S4* it was amendable : and they distinguished the case {irom
Bcndand^s Case (a\ because there " the sheriff's name
againii WQS Wanting upon the venire facias, which guides the
residue of the process/* Since the statute ofJameSf there
appears scarcely an instance in which the objection has
been taken, except in Philips v. Philips (&), and another
in the same book (c).
Then as to the operation of the statutes. By 18 Eliz,
c. 14., it is enacted, that judgment shall not be stayed
or reversed after verdict, ^^ by reason of any defiwlt in
form, or lack of form, touching false Latin, or variance
from the register, or other defaults in form, in any writ
original or judicial, count, declaration, plaint, bill, suit
or demand, or for want of any writ original or ju-
dicial," &C. A distringas is one of the judicial writs
here referred to, and the total want of such writ would
be remedied by the statute ; a fortiori^ the want of a
return. The stat. 21 «7. 1. r. 13., after reciting the
statutes of 32 H. 8. c. 30. and 18 Eliz. c. 14., ccmAs
(sect. 2.), that no judgment shall be stayed or reversed
after verdict ^^ by reason that the venire facias, habeas
corpora, or distringas, is awarded to a wrong officer," &c.
^' or by reason that there is no return upon any of the said
writs, so as a panel of the names of jurors be returned
and annexed to the said writ." The want of a returui
therefore, to the distringas, as well as to other writs, is
expressly cured by this statute. The proviso as to a
panel does not apply to the writ of distringas. The
words of the statute of James are, ** so as a panel be an-
nexed to the said writ" not writs. When that statute
passed, there was but one writ to which it could be
fa) 5 Rep, 41. b, (6) Andr. 24S.
(c) French ▼. WiUthire, Jndr. 67, 99.
requisite
Sxrrii*
IN THE Fourth Year of WILLIAM IV. 779
requisite that a panel should be annexed, namely, the 1884*
venire. The annexation of a panel to the venire, to be „
. . Rooima
returned before the sittings of nisi prius, was required by ?°^
the stat« 42 EcL 3. c. 11. ; but it does not appear ever to
have been necessary to return the distringas at all, until
the provbions in 85 H. 8. c. 6. s. 4., for returning issues
upon the distringas ; the practice on which subject was
further regulated by 27 Elh. c. 7. s. 2., 4[& 5W.^ ifef.
c. 24. 5. 15., and other statutes. In a case before the stat.
H. 8. it appears to have been laid down by Hussey C. J.,
that if the sheriff had returned no writ of distress, and
the jury had appeared, they should have been sworn ;
Bro. Abr., Retome de Briefer pi. 86. ; Vin. Abr.y Trials
(T. e.) pi. 13. note. The necessity of returning a panel
with the distringas as well as with the venire, arose from
the practice of summoning other jurors upon the dis-
tringas than those returned upon the venire; but since
the statutes 3 G. 2. c. 25. s. 8. and 6. G. 4. c. 50. s. 15.
have directed that the same jurors shall be summoned on
each, the necessity no longer exists ; and although those
statutes direct that a panel of the names of the jurors shall
be annexed to the writs respectively, the object of that
provision, as it regards the distringas, is to save the
inserting of all the names in the body of the writ, and
not to make it indispensable that a second panel should
be returned. The words of the statute 6 G. 4. c. 50« s. 15.
show that the annexing of the panel to the distringas is
not considered, in that act, as the business of the sheriff,
but of the officer of the court, who issues the process ;
for it is said that, in the writ of distringas subsequent to
the venire, it shall not be requisite to insert the names
of all the jurors contained in the panel to the venire,
'^but it shall be sufficient to insert in the mandatory
part
Smitk.
IN THE Fourth Year of WILLIAM IV. 7Sj
the proviso that tiie writ have a panel annexed. That 1834.
proviso, by its terms, attaches to each of the writs — — •
before named ; if <^ any of the said writs" be without a ng.hut
panel, the statute does not aid it. The stat. 6 G. 4*. c. 50.
«. 15. directs the sherifi^ on his return of every venire
facias, to annex a panel to the writ, containing the jurors'
names ; and enacts that in the distringas, &c., it shall
not be requisite to insert the names of all the jurors
contained in the panel, but it shall be sufficient to
insert in the mandatory part of such writs, certain
words, and to annex to such writs panels containing the
same names as were returned in the panel to the venire
fiicias. That clearly implies that it is the sheriff's duty
to annex the panel to the distringas.
Cur. adv. vuU.
Lord DcNMAN C. J. now delivered the judgment of
the Court.
This was a writ of error coram nobis to reverse a
judgment on the ground that the writ of distringas jura-
tores was not returned, nor any panel of the names of
the jurors returned and annexed to the writ. It was ar-
(Tued on the part of the defendant that the defect was
matter of error at common law, and not cured by any
of the statutes oi Jeofails. For the plaintiff it was con-
tended that the want of a return was cured by the
statutes 18 Eliz. c. 14., and 21 James 1. c. 13., and that no
panel was requisite prior to 3 G. 2. c. 25. s. 8.
Several cases were cited, which sufficiently establish
the position, that the want of a return, or a defective return,
was error ot common law. The statute 32 H. 8. c. 30. was
cited, which cures many things after verdict, but not the
want of a return to the jury process. Then the statute
Vol. I. 3 F 18 Eliz.
Smith.
IK THE Fourth Year or WILLIAM IV. 785
be a panel, and here there was none. And looking to the 1834.
words of that statute, it should seem to apply rather to ^
the want of a formal return indorsed on the writ, than to ogamM
an omission to return it at all, and then the meaning
would be that no judgment should be stayed, by reason
of a blank return, provided a panel be annexed.
In this case no panel is annexed, and we feel ourselves
obliged, however reluctantly, to hold that the judgment
is erroneous.
Judgment reversed.
Doe dem. Thomas Foster against The Earl 7w«fay,
^ _^ ° June lOCh.
01 Derby.
EJECTMENT for lands at Huytm in the county of -'• btlng seiied
Lancaster. At the trial before Alderson J. at the which ha
_ ' . , 111 claimed «i heir
Lancasier Sprmg assizes, 1834| it appeared that the at law, con-
defendant purchased the premises in dispute in 1823, Bothj^rtod
from Henry Fosie7\ who claimed to have become en- ^JuJ^uttcd"^"
titled to this and another property called the Crqfi u^^*h*^-ong
estate (which H. F. continued to hold), as heir at law ofejectroent
^ against him lor
to JMary Trovers : that the said Mary Trovers died in the premiiea
retpecriveljTy
Jantuzry 1823, before the above-mentioned purchase : which they re.
that in 1826, Thomas Foster, the present lessor of the was again dis-
plaintiff^ also claiming to be heir at law to Mrs. Trovers, ^'tgain ^ '
brought eject-
ment against him, claiming the same premises as in the former action, and by the same title.
On the trial, B. cffered to proTe the deposition made by a witness, since deceased, upon
the trial of the former ejectment between jt, and C e Held, that the CTidence was in*
admissible.
The former action of ejectment between JB. and C was called on for trial immediately
after that in which j1. obtained a verdict against C I'he counsel for C. in the second
2'ectment said, they would not trouble the Court in this case, the et idence in both being
le same, but would consent to a verdict, which was immediately taken for the plaintiff:
Held, that this could not be considered as proof of an agreement between the parties, that
the evidence given in the first cause should be considered as repeated in the second ; but
that the party relying on such agreement mutt shew it, either by the Judge's notes, or by
some ot]]«r distinct proof.
3 F 2 brought
DsftBT.
IN THE Fourth Year of WILLIAM IV. 785
the examination of William Foster on ihe trial in 1830. 1834.
The learned Judge thought the evidence not admissible, nlTdT"
because tlie parties in that cause and in this were not FokTsm
the same; he therefore rejected it, and the plaintiff The Earl of
had a verdict. In the following term a rule nisi was
obtained for a new trial, on the grounds, first, that the
testimony given by the deceased witness in the cause.
Doc dem. Henri/ Foster v. Thomas Foster^ was legitimate
evidence in the cause between the present parties ; and,
secondly, that when the defendant's counsel, in the
cause^ Doe dem. Earl of Derby v. Thomas Foster^ agreed
to a verdict being at once taken for the plaintiff, it was
understood that the evidence in the preceding cause
should be considered as repeated ; and, consequently,
the evidence of William Foster had, in effect, been
given in a former cause between the present parties,
and, therefore, ought now to have been admitted.
F. Pollock^ Tomlinson, and Addison, now shewed
cause. The evidence was not admissible. To make it
so, the parties in the cause in which the evidence was
given ought to have been identically the same as in this,
or at least substantially so. The lessor of the plaintiff,
here, was neither parly nor privy to the cause of Doe
dem. Henjy Foster v. Thomas Foster. If, indeed, Henry
Foster had, in a former action, recovered, against Thomas
Foster, the whole property constituting the Huyton and
Croft estates, and afterwards conveyed the latter to Lord
Derby, and the earl had then brought an action against
Thomas for one of those estates, claiming under Henry,
there would have been a sufficient privity between Lord
Derby and Henry Foster to let in evidence of a deposition
made on the former trial. But the estate claimed in this
3 F 3 action
DiRir*
IN THE Fourth Year of WILLIAM IV. 787
is laid down, as to the parties and form of action, in 1834.
1 Stark, on Ev. p. 219. 2ded. (a\ with reference to the - ?
^ ^ ' Doe defn.
admissibility of a former verdict in evidence; and Foitk*
agamst
Kinnersley v. Orpe {h) is there cited, where " in an action The Evl o^
for a trespass in the plaintiff's fishery, a verdict for the
plaintiff in a former action, against one who justified as
the servant of J. <S., was admitted in evidence against
the defendant in the second action, upon its appearing
that the defendant in that action had acted by the
command of «7. S. ; for it was considered that «7. S. was
the real party in both actions." Again, in 1 Stark, on
Exk p. 223. 2d ed., it is said not to be *^ necessary that
the former verdict should have been founded upon the
same precise subject-matter, provided the question be
the same, and between the same parties.'' Here it was
substantially so. Lord Derby was privy in estate to
Henry Foster : the titles of both depended on the same
evidence; and a verdict against Henry Foster would
have been conclusive against the earl. The lands in
question in the two causes were parcels of one and the
same estate. It was admitted by the counsel for Thomas
Foster, that the verdict in one cause was decisive of the
other, the evidence in both being, as they said, precisely
the same. In Com, Dig , Evidence (A 5.), it is said
that '* a verdict in another action for the same cause
shall be allowed in evidence between the same parties.
So^ it shall be evidence, where the verdict was for one
under whom any of the present parties claim." Here
the cause was the same in the two ejectments, the
interest and title being the same, though the parcels of
land were different. \_Littledale J. No authority is
(a) See the arguxentin Wri^i v. Doc d, Taihatn, anii, pp. 9. II.
(^) 9Dougl.5n,
S F ^ given
IN THE Fourth Year of WILLIAM IV. 789
tssj on the first, was admissible here, as much as if it 1834.
id been given on the second ejectment to which Thomas ~
osier and Lord Derby were actually parties. The FcMri»
cond case was suffered by the then defendant's counsel ThifStflof
rest wholly on the evidence given for the plaintiff in *****
e first The objection from want of mutuality does not
ise, there having been no evidence for the defendant,
ny witness who might have been called on either side^
the first trial, might have been cross-examined on
e second if the parties had wished it; and former
^positions of witnesses are admissible, if ** the party to
s afiected by them has cross-examined the deponents,
' has been legally called upon and had the opportunity
do so ; " 1 Slark. on Ev. 264*. 2d edit In Cazenove
Vaiighan (a), Lord Ellenboroitgh says, ^* The rule of
le common law is, that no evidence shall be admitted
It what is or might be under the examination of both
irties."— •" But if the adverse party has had liberty to
oss-examine, and has not chosen to exercise it, the
ise is then the same as if he had cross-examined;
herwise the admissibility of the evidence would be
ade to depend upon his pleasure, whether he will
oss-examine or not; which would be a most uncertain
id unjust rule."
Lord Denman C. J. Supposing that there is no
oof of a particular agreement at the time of the former
!als, to consider the evidence in the first ejectment as
ad upon the trial of the second, I think the deposition
the deceased witness was not admissible in this case,
r the reason given by the learned Judge at nisi prius.
(a) 1 It. i S. 6.
It
Dkkbt.
•HE Fourth Yeae of WILLIAM IV. Wl
nee in question. If the parties on the former 1.884.
consented that the evidence civen at the first „ ^
c Dob dem.
Id be considered as read on the second, a minute Foct»
agituui
Brect might have been made upon the Judge's The Earl of
It none appears. The mere understanding of
*s, as it is alleged here, cannot be relied upon
reement Then the evidence of the deceased
omes before us merely as evidence given upon
)etween different parties from those in the
»use. Kinnersley v. Orpe (a) does not apply.
le defendant in each cause justified as the ser-
Dr. Coliojij and he was the real defendant in
ons. The rule must be discharged.
TON and Williams Js. concurred.
Rule discharged (6).
present Earl of Derby afterwards brought another ejectment
mas Foster for the premises claimed in the abore action, laying
in the names of Henry Foster, and of the late and present earL
before Alderson B., at the Lancaster Spring assises, 18S5, the
loned examination of the deceased witness, WiUiam FosUr,
in evidence for the plaintiff, on the counts laying the demises
le of Henry Foster. This was objected to on behalf of the
Inasmuch as the trial on which that examination was taken
le property, late Mrs. Travers\ at Crtfi, whereas the present
for the land, formerly her*s, at Hvyton, a different property.
1 Judge, without hearing counsel in answer to the objection,
had no doubt of the examination being admissible, the ques-
he same in both actions, vis. who was the heir at law of Mn.
See 1 Stark, on Ev. 223. 2d ed., citing Lewis ▼. ClargeSf
as Sherwin v. Clarges.) On this decision, a compromise was
he defendant, and acceded to.
, Alexander, Hlghtman, and Cowling for the plaintiff.
Seijt. (A. G. of the county palatine}/ Tomlinton, and Jddi-
defendant
IV THE Fourth Year of WILLIAM IV.
798
rather more fully than in ihe condition); yielding and
paying therefor yearly and every year during ihe said term
unto the said (hoen Griffiths^ his executors, &c. ihe yearlj/
sum qflifOl. of lawful, &c. And the said defendant did
thereby for himself, his heirs, executors, &c. covenant,
promise, and agree to and with the said Oxs>€n Griffiths^
his executors, &c. (stating a covenant by the defendant
to pay the said rent of 140/. at the appointed days).
And the defendant further alleged, that there were not,
nor are, any other covenants, clauses, provisoes, con-
ditions, or agreements in the same indenture of lease
contained, which from and after the execution of the
said writing obligatory during the continuance of the
said term by the said lease granted, on the part of the
lessee therein mentioned, tenant, or assignee, were or
ought to be paid, observed, performed, fulfilled, or kept:
as in and by the said indenture, &c. The plea then
alleged that the defendant entered by virtue of the de-
mise, and was possessed, and that he, from time to time
and at all times, well and truly paid to Oyoen Griffiths in
his life time, and to the plaintiff as his executor since his
death, ihe said yearly rent or sum of 140/. at the days
and times, &c., and in the manner and form by the said
indenture limited and appointed, &c. according to the
true intent and meaning of the said indenture, &c.
Replication. That the said defendant has not since
the making of the said writing obligatory, and during
the continuance of the term in the said condition thereof
mentioned, well and truly paid or caused to be paid to
the said plaintiff, executor as aforesaid, since the death
of the said Chxen Griffiths^ ihe said yearly rent or sum
of nol. in the said condition mentioned, according to
the terms thereof, but has hitherto neglected, &c. De*
1834.
Lainsou
AfrrtMil
Taimirb.
TftXMxmi.
IN THE Fourth Year of WILLIAM IV. 795
annum instead of 140/., the said yearly rent in the said 1834.
indenture of lease mentioned, and thereby reserved,
being 140/. and no more, and no other rent or yearly jigamtt
sum being thereby reserved or made payable. The
plea then averred payment of the last-mentioned rent,
and that Owen Griffiths never demised the premises in
the said indenture and in the said condition mentioned,
or any other premises whatever, to the defendant, at or
under any greater or other yearly rent than the said
sum of 140/. Replication, that the said rent in the said
indenture is by mistake stated to be 140/. instead of
170/i, without this that the said rent in the said con-
dition of the said writing obligatory mentioned, is by
mistake stated and set forth to be 170/. per annum in-
stead of 140A And this, &c. (to the country }• Si-
militer.
Fourth plea. That the said defendant hath from time
to time, and at all times since the making of the said
indenture of lease in the said second plea mentioned,
being the same indenture of lease in the said condition
of the said writing obligatory also mentioned, during
the continuance of the said term, &c., hitherto well and
truly paid, or caused to be paid, unto the said O. G.^
bis executors, &c., the said yearly rent or sum in the
said indenture of lease mentioned and thereby reserved
and made payable, according to the true intent and
meaning of the same indenture of lease. Replication,
that the said defendant has not, since the making, &c.,
and during the continuance, &c., well and truly paid,
or caused to be paid, to the said plaintiff, executor as
aforesaid, since the death of the said O. G., the said
yearly rent or sum of 170/. in the said condition men-
tioned, according to the terms thereof, but has hitherto
Trfmcec
IN THE Fourth Year of WILLIAM IV. 797
indenture must be looked to, in order that it may be 1834.
seen what the defendant was to perform. If the con-
Lainsok
dition were simply for the payment of the 170/., this jigmnst
defence could certainly not be set up, unless fraud
could be shewn ; but, as the condition mentions the
indenture, the Court must look at the indenture. It
• they do so here, the pleas shew an answer to the de-
claration ; for it cannot then be said that the condition
was for the payment of 1 70/.
Dampier for the plaintiff. The question, as to so
much of the record as is now before the Court, is,
whether the defendant be entitled to make the averment
. which he has made. The question whether any mistake
. was made, is one of fact, which is to go to the country.
In the second and fourth pleas, the defendant confesses
that the lease, as mentioned in the condition, is at a
rent of 170/.; the indenture set out in the plea is not
that which is mentioned in the condition, and the de-
fendant is estopped from denying that the indenture is
.truly set out in the condition. The estoppel might
have been replied, but it may be insisted on upon de-
murrer, where it arises upon the pleadings; and it is
not waived by the plaintiff replying over. The inden-
ture and the bond constitute a double security. Thus,
in Cotterel v. Hooke (a), it was held, that where defend-
ant covenanted to pay an annuity, the deed of covenant
reciting a bond of even date to secure the payment of
the annuity, and the bond had become, forfeited before
a discharge of the defendant under the insolvent act,
16 G.S. c. 38., (but the penalty did not appear to have
(a) 1 Dmig. 97.
Vol. I. 3 G been
TuUCXftB.
IN THE Fourth Year of WILLIAM IV. 799
mdentare. It is true that a party may plead such 1884.
matter in discharge as is not inconsistent with the re- '^— —
cord : thus, if the record here did not shew the cove- againsi
nants in the indenture^ the defendant might plead that
there were no covenants, HoUamai/s case (a); but he
cannot do so when the record shews the covenants. It
is true, also, that, if the condition refer to a generality,
the existence of it may be traversed in the plea; but no
traverse can be taken upon a particularity averred in
the condition, as here. If the defendant here is estopped
by the condition on the record from pleading that there
was no indenture, he must be equally estopped from
pleading matter, the effect of which is to shew only that
there is no such indenture as that recited in the con-
dition ; as a lessee, who is estopped from pleading that
bis lessor nil habuit in tenementis, cannot plead that his
lessor conveyed in fee before the lease, Palmer v.
Ekins(b). In Trevivan v. Lawrance{c\ a scire facias
bad been brought, reciting the judgment of a wrong
term, but, on nul tiel record being pleaded, the issue
bad been found for the plaintiff, and an elegit had
issued : ejectment being brought by the plaintiff in the
scire facias, it was held that the defendant, who had
ilso been defendant to tlie scire facias, could not take
idvantage of the variance. The very object of the
x>nd, in the present case, may have been to correct
summarily a mistake in the lease, or to supersede the
lecessity of proof of a lease. It may be said that es-
toppels are odious ; that, however, is true to this extent
only, that they shall not be implied, as appears by the
(a) 1 Mod, 15. (6) 2 L(L Raym, 1550.
(c) 1 Salk.276. S. C. '2 Ld. Raym, 1036. 1048.
3 G 2 language
IN THE Fourth Year op WILLIAM IV.
801
n bond as this without referring to the indenture. The
decisions in the class of cases to which Hosier v.
Searle {a) belongs, are inapplicable : there the defend-
int pleaded that the indenture was never executed at
ill ; here the plea merely explains the meaning of the
parties in a contract which is not denied.
Cur. adv. vuli.
1834.
LiAiiraoit
afgamst
TuMIRJb
Lord Denman C. J. on this day delivered the judg-
ment of the Court. After having stated the pleadings,
his Lordship proceeded as follows : —
It appears, upon these pleadings, that the condition
of the bond is to pay the rent of 170/., at certain times
mentioned in the condition, and to perform and observe
the covenants, conditions, and agreements in the lease;
and then, as the lease, when set out, shews the rent to
be 140/., the question is, whether the payment of 140/.
constitutes a performance of this part of the condition
of the bond, or whether the defendant is estopped from
shewing that the rent is different from the I'^O/.
mentioned in the condition.
The first point to be considered is, whether, upon this
bond, the defendant would be estopped from saying
there is no such lease as is mentioned in the condition.
In 1 RoUe's Abridgment, 872.(6) it is said, — "If
the condition contains a generality to be done, the party
shall not be estopped to say there was not any such
thing. But in all cases where the condition of a bond
has reference to any particular thing, the obligor shall be
estopped to say that there is no such thing." (c) The
same rule, as to generalities and particularities, is laid
(a) 2 B. 4- P. 299. (b) Esteppell, (P.) pi. 1
3 G S
(e) Ibid. pL 7.
down
IN THE Fourth Year of WILLIAM IV. 803
which have been cited. And the whole lease being set 1834.
out« the defendant contends that the actual lease is to '
Laikbow
be taken as a further description of the lease recited in againtt
TkKMMK.
the condition of the bond, according to what is said by
HoU C. J. in Evans v. Pcncel (a) ; and that the bond
and lease are to be taken as together forming one instru-
ment. And, as it appears by the lease that the rent is
140/. a year, the defendant says, as it is the lease which
contains the real contract of the parties, and the rent
being to be paid for the occupation of the land, that if
he has paid the rent stipulated, he has performed the
contract specified in the lease, and it is therefore an
answer to the action ; that the bond does not shew the
contract as to the rent, but is merely given as a
collateral security for the performance of the terms of
the lease : and if he has performed the terms of the
lease, the bond cannot be enforced against him.
But, notwithstanding this argument, we think, as far
as the bond goes in a court of law, the obligor is
estopped from saying that the rent was not 170/. a year,
because his shewing the lease at a rent of 140/. is, in
effect, the same thing as saying that there is no such lease
as is stated in the bond. In 1st Boll^s jibridgment^
873. (6), there is a case oi Fletcher v. Farrer^ as follows.
** If the condition of an obligation be to do certain things,
for which he is bound in a certain recognisance, shewing
the certainty of it, then the obligor shall be estopped to
plead that he was not bound in any recognisance,
inasmuch as the condition has reference to a particular.
So the obligor, in the case aforesaid, shall be estopped
*
(a) Comb. 377. (6) EttoppeU (P.) pi. 10, 1 1.
3 G 4 to
LXB.
IN THE Fourth Year of WILLIAM IV. 805
effects, debts, &c. to the provisional assignee, which 1834.
assignment vested the. supposed causes of action in the — •
J 1 • • Buck
declaration mentioned, and the sums of money therein against
supposed to be due, &c. and the plaintiffs right. Sec
therein, in the said provisional assignee. The plaintiff
replied, that before his imprisonment, and before the
assignment to the provisional assignee, to wit, on, &c.,
he had, pursuant to an agreement (set forth in the re-
plication) assigned by indenture certain debts due or to
become due to him, the plaintiff, including that for which
this action was brought, to William Gustard^ in just pay-
ment of a debt owing to him by the plaintiff, and had
constituted Gtistard his attorney to sue for the debts so
assigned, in his (the plaintiff's) name : and that the debt
now sued for, and in the indenture mentioned, still re*
mained unpaid : and so the plaintiff said that the assign-
ment in the plea mentioned did not vest the causes of
action in the declaration mentioned, and the sums of
money therein stated to be due from the defendant to
the plaintiff, and the plaintiff's right, &c. therein, in the
provisional assignee in manner and form, &c. General
demurrer, and joinder. The demurrer was argued in
this term, June 6th (a).
Manning in support of the demurrer. The statute
7 G. 4. c. 57. 5. SO. (i), makes the same provision as to
goods
(a) Before Lord Denman C. J., Littkdak, Toiin/on, and WUliams Jf.
(6) Which enacts, That if any person who shairpetttion the said court
for his or her discharge from imprisonment, under this act, shall, at the
time of his or her arrest, or other commencement of such imprisonment,
by the consent and permission of the true owner thereof, have in his or
her possession, order or disposition, any goods or chattels whereof such
prisoner was reputed owner, or whereof he or she had taken upon him or
IN THE Fourth Yeab of WILLIAM IV. S07
being out of the assignor. If notice had been given to 18S4.
every one except the defendant, could it be said that the -—
Buck
insolvent was still the reputed owner ? There was no apimt
averment of any notice in Wtnck v. Keeky {a) ; only a
primd facie assignment, antecedent to the bankruptcy^
was shewn. In Eckhardt v. Wilson {b\ there was no
averment of notice, and no objection was taken to the
omission. In Carpenter v. Mamell (c), it was held that
where a note, not negotiable from its form, had been
indorsed over by the payee, and the payee had become
bankrupt, his assignees could not sue upon it, inasmuch
as the payee was only a trustee for the person to whom
he had indorsed : but it never was contended that notice
to the maker was necessary to prevent the property
passing to the assignees. At all events, the defendants,
to raise this defence properly, should have rejoined, ad-
mitting the prima facie answer given by the replication
to the plea, but averring that the debt was in the pos-
session, order, and disposition of the insolvent with the
consent of Gustard : the plaintiff might then have taken
issue in a surrejoinder. The plaintiff is not bound to
negative a distinct fact, the reputed ownership, merely
because such a fiict, if alleged on the other side, would
constitute an answer to his replication.
Manning in reply. Such a rejoinder would merely
have been an argumentative allegation of want of notice.
The replication gives no answer to the plea without
allegation of notice. As to Winch v. KeeUy (a), it oc-
curred before the decisions of Gordon v. The East India
(a) 1 r. JR. 619. (1787). (6) S 7. R. 14a
(c) 5^4^ p. 40.
ConqHifttf
IN THE Fourth Year of WILLIAM IV. 809
replication is bad. We con^der that case to have been 1 834.
rightly decided.
Bucc
Leave given to amend, on payment of costs (a); asainti
Lis.
(a) DEAN and DAVIES against JAMES. 7W«/a^,
Jan. ITUi, 1838.
AffUMPsrr for goods sold and delivered by the plaintifls to the defendant, To aMuinp«it
and on money counts. Fleas. 1. Non assumpsit, except as to 20^ (A ^J ^^^ plain-
tender was pleaded as to this sum ; the references to it in the subsequent ^jj ic. de^
pleadings are omitted, as immaterial). 2. Bankruptcy of Dean, com- fendant pleaded
mission, and assignment thereunder to A. J?, and J. 2). (among other **J5 bankruptcy
things) of all Dean** estate and interest in the several sums of money pUcn^on that
and causes of action in the declaration mentioned, in trust for the credi- before the
tors, by virtue of which assignment the assignees became and were entitled bankruptcy, the
II 1 . - « , . . . « . bankrupt plain-
to a 1 (he estate and mterest of Dean, of and m the several debts, sums tiflTasaijined to
of money, and causes of action in the declaration mentioned. the other all his
Replication to the 6rst plea, joining issue. To the second plea, as to SO/l, '"J*"*** »" J"*
debt, and that
parcel iSic, that the promises in the declaration mentioned, so far as they re- ||,^ bankmpt
lated to the said SO/., were made after the making of the assignment, to wit, now *«ued only
on &c. ; without this, that all the esUte and interest of Dean in the 30/.. f! *'"**!*/'°r-
, . - . . - . , r hisco-plamtiff.
and I he causes of action m respect thereof, were assigned to jf. R, and 'ji,^ Court
J, D,, in manner and form &c. ; and as to the alleged promises, so far was of opinion
as the plea related to the residue of the said several sums &c., the plain- *"*5 *"* ' v' j
... ... canon was bad,
tins replied, that after the making of the promises &c. in the declaration fm> qqi stating
mentioned, so far as they related to the said residue, and before Dean that tlie debtor
became bankrupt, as in the said plea was alleged, to wit, on &c. by a JV* "^!IfL
certain indenture then and there made between Dean of the one part, and aviflnmeiit,
the plaintiff Davies of the other part, (profert) the date whereof &c. the although the
said Dean for a good and valuable consideration assigned, transferred, ^f ^^ ^"
and set over unto tlie said Davies, among other things, all the right, title, without alleg-
interest, property, claim, and demand whatsoever of him, Dean, of, in, ing the want of
to, from,, out of, and upon the said residue &c., by means whereof the ^ .*. . J^
said Davies then and tliere became and was, and from thence hitherto hath had leave to
been and still is, solely entitled to tlie said residue &c. And the plaintiffs amend,
averred, that as to the said residue Sec, this action was brought by and in
the names of both the said plaintiffs, to recover damages in respect of the
promises and undertakings in the declaration mentioned, so far as the
same related to the said residue &c., for the use and benefit of the said
plaintiff Davies solely, and at his request ; and that so far as related to the
promises &c., as to the said residue &c., in the said declaration men-
tioned, the said plaintiff Dean was named therein as a trustee for the
purpose aforesaid, and not otherwise.
Rejoimler, as to the replication to the second plea, so far as relaUd to
the SOL, that Dean*9 estate and interest therein were utigned to J. M.
and
IN THE Fourth Year op WILLIAM IV. 811
1 T. R. 237. ; and Ex parte Monrot Bucket Cam in Bankniptcyt SOa, 18S4.
and Exports Burton, 1 Glyn j- Ja. 207., are to the same effect. In the _
last-mentioned case the distinction now attempted between assignments to Bock
a stranger and to a joint creditor was taken, but without success. The againU
Qnart here called upon
Manning in reply. The defendants have not pleaded the want of
notice to the debtor. The replication states that Dean assigned all his
interest to Daviet for a valuable consideration. Nothing being shewn to
the contrary, it must be taken, that if notice to the debtor was necessary,
it was given. Necessary circumstances implied by law need not be ex-
pressed in a plea; thus if it be pleaded that ^. infeoffed B., livery of
sdsin is implied. [Taunton J. It could not be said that jt, infeoflEed,
unless there had been livery of seisin.] Here it must be taken that tb«
assignment was such as would effectually pass the inters to Dtndem
[Lord Tenterden C. J. It might have had that effect without aodce to
the debtor, if Dean had not afterwards become bankrupt.] At aU •vcnli
the want of notice should have been pleaded in the njoioder*
Lord Tentzrdzm C. J. That need not have been dona for the pur-
pose of raising this objection ; and it is very common to plead over to a
bad plea for the purpose of inducing the opposite party to demur. We
cannot get over the cases which have been cited on behalf of the defendant.
Ex parte Burton, 1 Giyn ^ Ja, 207., is in point
Manning then oked leave to amend, which was granted.
Judgment for the defendant, nisi.
IN THE Fourth Year of WILLIAM IV. 813
rectory of Rofherhithe, and the glebe lands, 8tc. ; that 1884.
the parties had ascreed that the said annuity should also ^
be secured by a warrant of attorney from Heaoett to con- «4«iu#
fess judgment for 3600/., which Hewett had accordingly
executed; and that the purchase-money had been paid by
Salimarshe. After this recital, it was declared that the
judgment on the warrant of attorney was to be entered up
as a collateral security only for payment of the annuity,
and that no execution should issue on such judgment
unless and until the payment of the same or some part
thereof should be twenty-one days in arrear after any of
the specified days of payment; but that in case of such
arrear, then, and so often as it should so happen, it
should be lawful for Salimarshe to sue out such execution
on the said judgment as he should think fit, and also
to sequester the rectory, and all and singular or any of
the glebe lands, &c., thereto belonging, or any other
benefice or benefices which Hewett might take in lieu
thereof, and for that purpose to instruct counsel, Sec,
to act for both the parties in such proceedings as should
be necessary to obtain an immediate sequestration of the
said rectory or other ecclesiastical preferment, to the
intent thiat, by virtue of all or any of the ways aforesaid,
the said Saltmarshey his executors, &c., might recover
the arrears of the said annuity, and all costs, &c.
In Skrine v. Hewett^ the warrant of attorney (dated
Febmary 18th, 1826) began by reciting that Hewett
had agreed to sell Skrine an annuity of ^2561. per annum
for 1950/., to be secured by and made chargeable upon,
and to be issuing and payable out of, all and singular
the rectory of Ewkurst, and the rectory of the parish
cl^urch ofEotherhithe, and also to be secured by Hcwetfs
fi^^rrant of attorney, and a judgment to be entered up
Vol. I. 3 H thereon
IN THE Fourth Year of WILLIAM IV. 815
y. Hooper {a) J Britten v. JVait{b): and not that the se- 1884.
questration shall operate as a continuing charire upon ^ ^— -
the benefice. In this respect the case differs from aganut
Flight V. Salter {c), and resembles Colebrook v. Layton{d).
The annuity deed is not before the Court ; the warrant
of attorney only gives power to issue execution from
time to time, as arrears fall due. Such a warrant of
attorney was held good in Moore v. Ramsden {js\ and
the Court distinguished the case from Flight v. Salter^
on the ground that the sequestration was only for satis*
faction of arrears, and not to give continual posses-
sion, (g)
Sir J. Campbell^ Attorney-General, and Conyn^
contra. In Colebrooke v. Layton (cf ), the attempt was
to invalidate the warrant of attorney by matter stated
on affidavit Here enough appears by the instrument
itself to bring it within 13 Eliz. c. 20. It recites that the
annuity is charged upon the benefice, and the warrant
of attorney is for enforcing, by the process therein de-
scribed, the debt so charged. Flight v. Salter (c) was
decided on the ground that the warrant of attorney was
given for the express purpose of enabling the grantee
of the annuity to get possession of the benefice; and
the warrant of attorney was set aside as well as the
sequestration. The same objection applies here. It is
true that in Flight v. Salter (c) the warrant of attorney
provided that the execution should be issuable imme-
diately, whereas in the present case it is not to issue
(a) 2B.iJd. 734. (b) 5 B. ^ Ad. 915.
(c) 1 B. 4f Ad. 675. (d) 4 5. 4f Ad. 57d.
(e) SB.j; Ad. 917. note (d). (jg) S. C Lumley on AnnvUia, p. 238.
8 H 2 Ull
IN THE FODRTH YZAtL Of WILLIAM IV. 9Vf
ecclesiastical profits of a benefice, and a warrant of at-> 18S4«
torney which produces a sequestration, and which does,
of necessity, provide for the serving of the cure. If the
legislature had meant to prevent a clergyman finom
giving a warrant of attorney, they would have said so ;
but they have cautiously avoided using ai^y words to
that efiect"] It does not appear that the warrant of
attorney there was in the same form as that in FUghi
T. Salter (a) : the case does not necessarily go fiirther
than Gibbons v. Hooper (b). If the Vice^Chanodlor had
laid down that a warrant of attorney, providing in dureot
terms for a sequestration which should enforce a charge
upon the benefice, was valid, provided enough of the
ecclesiastical profits were left for serving the cure^ it
might well be contended that such a judgment was in-
consistent with the statute of J^izabeih. [Lord IXta-
man C. J. That case appears singularly at varii^ce
with Netdand v. Watkin^ (c)]
Cur. aOd. vidi.
F. Pollock and Curwood then shewed cause in SkriM
V. HewetL There is no ground for setting aside die
warrant of attorney. Although, upon the fiu:e of iti it
be not free from objection, yet it is not wholly invalid^
like the instrument of the same description in Fli^iiT*
Salter (a), which authorised the immediate issuing of a
sequestration, to be a continuing security for the pay«
ments named in the annuity deed. This warrant of
attorney gives execution only in case of the annuity
being in arrear twenty-one days; it does, indeed^ pro*
{•) I B. 4; Jd. 673. {b) S B. f Jd. 754. (e) 9 Bktg.llS.
SH 8 fess
IN THE Fourth Year of WILLIAM IV. 819
ments thereof. That clearly makes it a continuing charge 1 SSi'.
to the full amount of 8900/.
Saltmambs
Cur. adv» VUlL againU
HswiR.
Lord Den MAM C. J., now delivered the judgment of
the Court in Saltmarshe v. Hewett.
This was a rule calling upon the Plaintiff to show
cause, why the warrant of attorney in the said rule men-
tioned, the judgment and writ of sequestration, should
not be set aside.
And the question to be decided is, whether that war-
rant of attorney is void, as being contrary to the statute
of 13 Eliz. c. 20. The warrant of attorney is to confess
judgment in an action of debt for 3600/., and the defeas-
ance thereto, upon which the quesUon turns, is in the
following form. (His lordship then read the defeasance.)
It is therefore expressly provided, that in case the said
annuity, or any part thereof, shall be in arrear for a
certain time therein specified, *^ then and so often as it
shall so happen^ it shall be lawful for the said A. Salt-
marshey his heirs, &c* to sue out such execution or
executions, upon or by virtue of the said judgment, as
he or they shall think fit, or be advised; and also to
sequester the said Rectory of Botherhithej and all and
singular or any of the glebe lands, buildings, &c thereto
belonging." So that if we had been called upon now
for the first time to put a construction upon the act
of Parliament, it seems hardly to admit of a doubt but
that the Rectory of Botherhithe is charged with the
payment of the annuity in the event of its being in
arrear, or, in other words, that the said benefice is
charged with a ** profit, out of the same to be yielded
8 H 4 and
IN THE Fourth Year of WILLIAM IV. B21
to pay the annuity, in the event of its being in arrear, 1834.
the rule to set aside the judgment was discharged. In —
the present case however, from the language of the de- againtt
feasance, to which reference has been abeady made, we
are of opinion that enough appears to shew that the
warrant of attorney was ^ven ** to charge the benefice^"
and is therefore void by the statute. In adopting this
distinction, we think that we are not only deciding in
conformity to the authorities and the meaning of the
statute, but are, probably, laying down as intelligible
a rule as can easily be suggested, for preventing the
recurrence of those questions which have been so fre-
quently raised, in a very short time, upon the construc-
tion of these instruments.
It seems proper to add, that the authorities cited to
us, (with the exception of Colebrook and Others v. Laytorij
which is of a more recent date) namely, Sha*a) v. Prit^
chord (a). Flight v. Salter (i). Gibbons v. Hooper (c), and
Doe T. Carter {d\ were brought under the consideration
of the Court of Common Pleas, in the case of Nealand v.
Watkin (e). There a rule had been obtained to set aside
the plaintiff's warrant of attorney, judgment and seques-
tration. The warrant of attorney is not set out, but the
report states that the defendant, a clergyman, gave it to
the plaintiff " to enter up judgment^br the arrears of the
annuity^ and in the warrant expressly authorised him to
issue sequestration." The court, having taken time to
consider, made the rule absolute, deciding that the
plaintiff should no further enforce his writ of seques-
tration, but should not be subject to an action of tres-
(a) 10 B^ 4- a 241. (6) 1 B. i Jd.675.
(e) 9B.4:j4<L 754. ^d) ST.R. S7J5O0,
(e) 9Bmg, 113.
pass.
PSOLT.
IN THE Fourth Year of WILLIAM IV, 823*
&c., by reason of which &c. (statmg the nuisance ISS^.
resulting). The second count charged the defendant
The Kiifo
with continuing the necessary and sink before that againtt
time made &c., by persons unknown, and laid the
nuisance as before. The third count charged that the
defendant, near &c. (as before) did put, place, and
leave, and did cause and procure to be put, placed,
and left, divers large quantities of ordure &c« The
fourth count charged the defendant vdth permitting
and suffering the nuisance (as in the third count, ex-
cept that the nuisance was said to be created by persons
unknown) to remain. On the trial before Lord Den^
man C. J. at the last Spring assizes for Bedford, it w^
proved that the defendant was in the receipt of the
rents of twelve dwelling houses, which were let for
short periods to tenants, and that two necessary houses
and a sink belonging to them were used in common
by the persons occupying the dwelling-houses. It did
not appear whether any of the present tenants com-
menced occupying the dwelling-houses before the de-
fendant began to receive the rents; but the necessary
houses and sink were constructed and used by the
tenants of those premises before his time. There was
no distinct proof of any actual demise of the necessary
houses and sink, but they had regularly been cleansed
by the persons occupying the dwelling-houses, until the
time of the nuisance, when the cleansing had been
neglected. The nuisance had arisen since the de-
fendant began to receive the rents. The only method of
draining the places from which the nuisance proceeded
would be by cutting through a close belonging to the
defendant. Some evidence was given to shew an im-
plied admission by the defendant that he himself was
bound
IN THE Fourth Year of WILLIAM IV. 8S5
pect of the number of persons injured. In Bex v. 18S4.
Moore (a), the owner of grounds converted into a shooting ~
ground, was held liable for a nubance naturally and pro- agahut
PXDLT*
bably resulting from the use of them for that purpose,
though the actual nuisance was committed by strangers
not on the premises. Here the defendant takes the lia^
bilides and powers of the owner from whom he pur-
chased. The reversioner, if he does not demise, can
abate the nuisance, and is clearly liable for the continu-
ance ; but he cannot get rid of such a liability by demis-
ing (even if he has so done), without a power to abate.
But, in fact, it does not appear certain that the buildings
which create the nuisance have been demised.
Kelly in support of the rule. In all the cases cited, the
defendant had been guilty of either creating or permit^
ting the nuisance : neither of which can be charged here.
It is true that, if a nuisance be committed, the liability
may be fixed upon the person for whose benefit it was
committed ; and it is also true that when, as in Rex v.
Moore (a), a building is so erected, or disposed of, that
the inevitable, or perhaps even the probable, consequence
is a nuisance, the person so erecting or disposing of it is
indictable. In Rosewell v. Prior (i), the defendant had
himself erected the nuisance, and had demised the pre-
mises, with the nuisance upon them, for a pecuniary
consideration : he was therefore guilty of both the erection
and the continuance. But here, the defendant has never
had possession during the existence of the nuisance;
and no nuisance was produced till the tenants neglected
to cleanse ; so that the principle of Rex. v. Moore (a), is
(a) SB. 4; Ad. 184. (6) 2 Salk, 460. 8. C 12 Mod. 635.
inapplicable ;
IN THE Fourth Year of WILLIAM IV. 827
duced been matter of independent contract, no one 18S4.
pould have doubted that the person receiving a profit ^^
from the use would have been answerable for the agaitut
PSDLT.
nuisance.
LiTTLEDALE J. I sce no difficulty in this case. If
a nuisance be created, and a man purchase the premises
with the nuisance upon them, though there be a demise
for a term at the time of the purchase, so that the pur-
chaser has no opportunity of removing the nuisance,
yet by purchasing the reversion he makes himself
liable for the nuisance. But if, after the reversion is
purchased, the nuisance be erected by the occupier, the
reversioner incurs no liability: yet, in such a case, if
there were only a tenancy from year to year, or any
short period, and the landlord chose to renew the
tenancy after the tenant had erected the nuisance, that
would make the landlord liable. He is not to let the
land with the nuisance upon it Here the periods are
short, so that there has been a reletting; and that has
taken place after the user of the buildings had created
the nuisance. This is, therefore, a case in which the
reversioner is liable.
Taunton J. If, as has been suggested, these build-
ings were not demised at all, but only the use of them
permitted in common to the occupiers of the dwelling-
houses, there is an end to the defendant's objection.
But, supposing it otherwise, and that he could not
enter for the purpose of cleansing without making him-
self liable to an action of trespass, he may thank
himself; for I hold that a landlord, in a case like this,
should exact from his tenants an obligation to cleanse,
with
York.
IN THE Fourth Year of WILLIAM IV. 829
and allow the costs and expenses contained in a paper 1834.
writing annexed to the affidavits in support of the rule,
and incurred by Matthew Gawthorp in and about an in- agotyu/
The Justices oT
quest holden for assessing damages under stat. 3 & 4 ^. 4* the City of
c. Ixii. (local and personal, public) {a). It appeared
that
(a) For improTing and enlarging the market places within the city of
York, &c., and for amending an act of his late Majesty, for paving, light*
ing, watching, and improving the said dty ; and other purposes.
Sects. I, 2, S, and 4. provide for the election of certain trustees.
Sect. 23. gives power to the trustees to purchase the messuages &c.
mentioned in the first schedule to the act (including those of Gawihorpe)^
for the purposes of the act.
Sect. 28. enacts, that if any bodies politic &c., corporations &c.y
tenants 'for life &c, or any other persons or person, proprietors of, or
interested in any messuages &c., mentioned in the first schedule to the
act annexed, or any occupier of any messuages &c., sustaining any loss,
injury, or damages, shall, for the space of ten days next after notice
given (as by this section is directed), neglect or refuse to treat and agree,
or shaU not agree, for the sale of the said premises, or by reason of
absence or disability shall be prevented from treating and agreeing, or
cannot be found or known, or shall not produce a clear title &c., the
trustees shall cause the value and recompense to be made for such mes-
suages &c. to be enquired into and ascertained by a jury &c. which shall
be summoned and returned on the warrant of the trustees issued to
the sheriffs of the city, or sheriff' of the county, and twelve of whom
ihaU be sworn (as by this clause is directed). " And the said sheriffs or
^^jiff are and is hereby required from time to time, as occasion shall be
or reqiiire, to call before the said jury, and examine upon oath, (which
oath the said tAw^ffs or sheriff* are and is hereby empowered to administer,)
all and every person «nd persons who shall be thought necessary and
proper to be examined as a witness or witnefwes touching or concerning
the premises ; and they or he shall also order and cause the said jury,
or any three or more of them, to view &c. ; and the said jury shall assess
the damages and recompense to be given for the messuages &c., to the
respective owner or owners and occupier or occupiers thereof, according
to their respective interests therein, and shall give in their verdict there-
upon,'* &c., and the sheriffs or sheriff" shall thereupon order and adjudge
the sum so assessed to be paid.
Sect. 31. enacts, that in case any such jury shall give a verdict for
more money as a recompense for the right, interest &c., of any person
&c., in or to imch messuages &c., or for any such damage &c. as afore-
VOL. I, 3 I said,
YOKK.
IN THE Fourth Year of WILLIAM IV. 831
tendances, conferences, brief, &c., and an item as fol- 18S4.
lows : — • " January 22d. Attending this day at the
Guildhall all day, when case heard, and compensation a^nu
The Justiocf df
fixed at 720/. — SL 3s. Paid the following witnesses the City of
for their attendance and loss of time in surveying,
measuring, and valuing the property in question, and in
attending as witnesses at the inquest." The names of
the witnesses, and sums paid, were then added. Ap-
plication was made to a single justice of the city to
settle and allow the costs contained in this bill ; but the
justice, conceiving that the statute did not authorise the
allowance of the costs, refused tlie application.
Sir James Scarlett and Alexander now shewed cause.
The costs of the inquest mentioned in the act are only
the costs of the sheriff and the jury; part of the other
expenses specified in the act are expenses with which
the sheriff has nothing to do : but the words, taken all
together, including the costs of the inquest, will cover
the whole expenses connected with the sheriff, and were
obviously not intended to comprehend more. If the ex-
penses of surveyors, witnesses, and brief, which are now
claimed, were meant to be comprehended in tins clause,
that intention might easily have been expressed; but
the legislature, having distinctly specified particular ex-
penses, must be understood to have excluded all others.
[Littledale J. The statute of Gloucester (a) gives only
*^ the costs of the writ purchased ;" yet these words eir
tend to all the legal costs of the suit (6).] Acts of par-
liament were very shortly engrossed at the time when
that statute was made: and, if it had specified a par-
ticular part of the costs, the words would probably not
(a) eEd.\, e.\. #. 2. (6) See 2 Iml. SSS. ^11).
3 I 2 have
YOKK.
IN THE Fourth Year of WILLIAM IV. 833
titled to a full compensation from them. They make an 1834.
offer, which is rejected ; a jury decides that the offer is ~
, , The Kino
inadequate: they are then in the situation of a party to agmnsi
' . . The Justices of
a cause, who has had a verdict against him. If the costs the City of
now claimed be not included in the proviso, the enact-
ment, that the costs shall be recovered from the trustees
^^ by the person or persons entitled thereto," is without
meaning; for then no person, besides the sherifi^ can
have any claim upon the trustees. In Rex v. Glastonby{a)y
Lord Hardwicke thought that if any costs were reco-
verable, all would be so ; and it may perhaps be true
that, as said in Cone v. Batdes {b\ the question, whether
costs be or be not recoverable at all under a statute, is
to be decided on a strict interpretation of the statute ;
but it does not follow that the same strictness is to be
used in determining the extent to which, if recoverable,
they are to be allowed. Costs of a trial are considered
to include costs of witnesses and counsel ; so are costs of
a reference : the costs of the inquest must mean as much.
Then, as to the proviso that, in a particular event, each
party shall pay half the costs : in the first place, the
meaning probably is, that each shall pay his own costs,
which construction would be put on an award that each
party should pay a moiety of the costs of a reference; and,
secondly, even if this be not so, the legislature may have
considei^ed the whole proceeding to be an enquiry into
the truth, made in common by both parties, and there-
fore to be paid for by a single party, on one event, or in
equal shares, on another. With respect to the difficulty
of taxation, a single justice can have the bill taxed
by competent persons : the justices at quarter sessions
(a) Cas, Temp. Hard, 356. (6) 1 Salk, 205.
3 I 3 have
IN THE Fourth Yzak of WILLIAM IV. 835
quisition or trial. With respect to the forty-third 1834.
section, it seems to me rather to make airainst the ap- ,^ ,,
' ^ ^ The KiKO
plication, for it provides expressly for the expenses of agaUui
The Justices of
the hearing and determining. the City of
YOEK.
Taunton J. Our decision in this case will not affect
the decision as to costs in other cases. At common
law no costs were recoverable ; then they were given by
the statute of Gloucester (a), in cases where damages
should be recoverable, either by that statute or other-
wise (&). No costs are recoverable except by statute.
The words here are, costs ** of the said inquest." This
must be intended to include all the costs of the trial,
like the costs of a reference. With respect to the costs
of surveyors, I should pause before saying that costs
are to be allowed for them, qu& surveyors ; but if they
have been witnesses, they will be on the same footing
as others.
Williams J. concurred.
Rule absolute, for a mandamus to allow
the costs and expenses incurred by
M. G. in and about the inquest.
(o) 6 fitf. ]. c 1. f. 3. (6) See 8 Inst. S89. (13}*
81 I
FOWLXB*
IN THE Fourth Year of WILLIAM IV. 8S7
d another of the present defendants, being then the 18S4.
o surveyors ; which rule was finally discharged.
lere had been no agreement of the inhabitants of the jagamtt
unship to the incurring of these expenses before or after
3y had been incurred, nor were they allowed by any
itice of the peace, except as hereafter mentioned. The
lole accounts of the year ending the 15th of October
33 were produced at a meeting of the township,
len the first items before mentioned were objected to.
be accounts were afterwards duly taken to a single
itice, before whom the same objections were made.
be justice postponed the allowance to the special
ssions, at which the same objection was made, and the
ecial sessions allowed the whole accounts.
Alexander now shewed cause. The eighty-first section
the statute 13 G. 3. c. 78. provides that no proceed^
of5 had or taken in pursuance of that act shall be re-
oved by certiorari. The forty-eighth section directs
at the surveyor shall keep books, and enter in them
counts of monies received and paid ; that he shall pro-
ICC them at a vestry or other public meeting held for
at purpose, for the inspection of the inhabitants; and
at he shall afterwards lay them before a justice, who
ay allow them, or postpone the allowance to the special
ssions ; at which they are to be allowed or disallowed.
11 this has been done ; and the accounts having been
gularly allowed at special sessions, the order of allow-
ice is a proceeding had and taken in pursuance of the
:t, and, therefore, not removable by certiorari. In Rex
The Justices of St. Albans (a), the Court refused to
(a) 3B, ^C, 698.
grant
IN THE Fourth Year of WILLI A.M IV. 8S9
true that, in some cases^ specified in the sixty-sixth sec- 1834.
tion, certain steps are necessary before the surveyor is
entitled to incur expense. Those cases are, prosecutions agqinu
for non-repair of a highway, or for nuisance upon a
highway, and defences of indictments against the parish.
But it cannot be supposed that in all other cases he is
precluded from claiming expenses actually and bon& fide
incurred in the discharge of his public duties. The
legislature clearly intended to trust the magistrate with
the discretion as to the propriety of charges, and as to
their necessary connection with the surveyor's duty.
^Taunton J. The surveyor certainly might have to de-
fend himself at law in a case in which the parish were
the real parties, — in a mandamus, for instance. If the
narrow construction were to prevail, he could not have
this expense allowed. Lord Denman C. J. Or he
might be sued for taking gravel, which he is allowed to
do, and may be under the necessity of doing (a). ]
Wightman and 5. Temple^ in support of the rule. The
forty-eighth section specifies several expenses with which
the surveyor may credit himself in his accounts ; and
these do not include law expenses. The sixty-sixth
section, it is true, does enable the surveyor to charge
in his accounts certain law expenses; but these are
confined to prosecutions for not repairing highways^
or for nuisances on the highways, and to the defence of
indictments against the parish &c.; and the expenses
to be allowed are only the reasonable expenses incurred
after the prosecution or defence shall have been agreed
upon by the inhabitants at a vestry or public meeting,
(o) Sect. ^9.
or
FoWUEft.
IN THE Fourth Year of WILLIAM IV. 841
In Hex V. Saimders {a\ an indictment v^as remoTed by 1834.
certiorari into the Court of King's Bench, which con-
Th« KiMo
tained counts on a conspiracy at common law, together agiaintt
with counts on stat. SO G.2. c.2^.^ although the twentieth
section of that statute enacts that no certiorari shall be
granted to remove any indictment, conviction, or other
proceedings had thereon in pursuance of the act. On the
same principle, if an allowance include items not within
the jurisdiction of the special sessions, the certiorari
must be granted, although other items be within the ju-
risdiction. The jurisdiction might, perhaps, extend to a
case where the expenses were incurred in consequence
of an act which the surveyor was legally bound to perform
for the parish : but that is not so here.
Lord Denman C. J. On the whole, I think that
the magistrates had jurisdiction in this case, that the
proceedings, therefore, were had in pursuance of the
act, and that, consequently, they cannot be removed
by certiorari. I was, indeed, much struck with the lan-
guage of Lord Chief Justice Abbott^ respecting the
statute 30 G. 2. c. 24. (b) But here the law expenses
appear to have been incurred honk fide ; and the statute
certainly intended the magistrates to exercise a dis-
cretion.
LiTTLEDALE J. It appears to me, also, that the ma-
gistrates had jurisdiction, and that, consequently, the cer-
tiorari is taken away. The forty-eighth section of IS G.3»
c. 78. directs that the surveyor shall enter an account to
whom and on what occasions he shall have paid or applied
(a) 5 D. ^ n* e\\. (6) Bex ▼. Saunders, 5 D. ^ H. 612.
the
IN THE Fourth Year of WILLIAM IV.
jastices had a jurisdiction, and that the certiorari is con*
sequently taken away.
Williams J. I am of the same opinion. In support
of the rule, counsel were driven to contend that, even
supposing the justices to have jurisdiction over the bulk
of the account, a single item in that account, as to
which they had no jurisdiction, would prevent the allow*
ance from being a proceeding under the act, and ex-
clude the operation of the clause which takes away the
certiorari; and a case was cited in answer to my enquiry
on this point. Still the question would remain, whether
or not the item was shewn to be out of the jurisdiction*
As to this, I own I have some doubts ; but it seems to
me too much to say that the justices have no jurisdiction
at all.
Rule discharged.
849
1894.
The Kivm
againit
FOWLBB*
In the Matter of Elmy and Sawyer.
Tkursday,
June 12tb^
ON the motion of PlatL a writ of habeas corpus was A party ccwi-
■^ victed in •
issued in this term, directed to the keeper of the penalty under
gaol of Ipswickf commanding him to have the bodies of smuggling
Samuel Elmy and James Sam/er before the CJourt, to un- ^. 53.)^ ^'^s*
conimitted to
gaol by warrant of the convicting justices, till he should pay the forfeittnre. The aet (s. 90.)
eonpowers justices to amend any such conviction or warrant of commitment^ whether befor«
or after conviction. Four days after the committal, the warrant (which was defective in
point of law) was withdrawn from the gaoler's possession, and another substitutes ; it did
not appear by whom. The second warrant was of the same date, and signed and sealed by
the same justices as the first, and did not materially vary from it, except that in the
recital of the conviction certain cordage was said to be adapted for " slinging" casks, in-
stead of ** slinging or sinkings" and the name of the place at which the party was said to
have been detained for his offence, was altered. The above facts, and copies of the war-
rants, being returned on certiorari and habeas corpus :
Held, tnat the Court could not presume, either from the facts returned, or from the
warrants, that the second warrant was substituted by the justices, as an amendment of the
first, in pursuance of the authority given tbem by the act. The prisoner was discfaargedi
dergo,
IN THE Fourth Year op WILLIAM IV. 845
act of parliament relating to the customs, and that he 1834.
was adjudfired to have forfeited for his said offence lOO/.. "■"" ^
** ° ' In the Matter of
which sum had not been paid ; and the warrant required Elmt and
the officer of customs to whom it was directed, to convey
the said Sawyer to the county gaol at IpsnoicA and deliver
him to the gaoler, and the gaoler to receive and keep
him until he should pay the forfeiture. The warrant
was signed and sealed by the justices, and bore date the
17th of May 1834-. The return then proceeded as fol-
lows : — " And I the said Samuel Johnson, do hereby fur-
ther certify that the said James Sawyer was detained in
my custody in the said gaol under and by virtue of the
said warrant of commitment until Thursday the 22d day
of the said month of May, when some person in my ab-
sence came to the said gaol, and obtained possession of
and carried away the said warrant of commitment, and
left at the said gaol, in lieu thereof, a certain other
warrant of commitment, bearing date the said 1 7th day
of May, under the hands and seals of the said justices,
which last mentioned warrant of commitment is in the
words following, that is to say, * Borough of Dunwich in
the county of Suffolk, to wit. To John Dewblack an officer
of customs, and to Samuel Johnson the gaoler or keeper
of the gaol at Ipswich in the county of Suffolk : Whereas
James Sawyer, &c. : ' " this warrant then recited at length
a conviction of James Sawyer by the above justices of an
offence wrhich appeared to be substantially the same as
that set forth in the former commitment, but the state-
ment was varied in several particulars [a) : and it con-
cluded
(a) The principal alterations vrere, that the original commitment set out
the conviction as charging the defendants with having been on board a
boat liable to forfeiture for having on board cordage adapted for slinging
or unking small casks, whereas in the second commitment Che words, " or
Vol. I. 3 K dnkfag,"
Sawtui.
IN THE Fourth Ybar of WILLIAM IV. 847
or warrant of commitment for any offence under any 1834.
act for the prevention of smuggling, or relating to the "
Ip the Matter of
customs, at any time, whether before or after convic* J^Lurand
tion. The second warrant here was an amended war-
rant, according to the statute, and the return shews
that the prisoner is detained under it. [Lord Den^
man C. J. It will be objected, that nothing is shewn to
satisfy the Court that the amendment was made, or the
second warrant substituted for the first, by the authority
, of the justices.] The return sufficiently shews that,
unless, which will scarcely be contended, an affidavit is
necessary in addition. The second warrant is stated to
be under the hands and seals of the same two justices,
and to have been left <' in lieu'' of the first [Lord
Denman C. J. It states different facts.] Not in any
material respect: the principal amendment is only for
the purpose of shewing that the justices had jurisdiction.
The amendment directed by the act may be made by
substituting a new warrant : it cannot be necessary that
the alterations should be written upon the original paper
or parchment [Lord Denman C. J. They might state
in the new warrant that it was substituted by them for
the other.] IF they in fact amend the original warrant,
under the authority of an act of parliament, there is nq
occasion for reciting that they so amend it.
Besides, there is, in the present case, a good convic-
tion returned to the Court ; and if it appear, on motion
to discharge a party upon habeas corpus, that there is a
valid conviction, the Court will not interpose. In Bex
V. Taylor (a), it was said by the Court that they would
not discharge on a defect in the warrant of commitment
(a) 1 D.i R. 622.
3 K 2 until
Sawtkiu
IN THE Fourth Year op WILLIAM IV. 849
warrant* Nothing was done but substituting one paper 1834.
for the other. It cannot be said that there is a con- , rZT^ ^
Id the Matter c-f
viction before the Court to which the second warrant Elmt and
relates. It. does not even appear by any express state-
ment, whether the first or the second was the warrant
originally made. And supposing this were otberwisci
no authority has been cited to shew that where a party
has been illegally in custody under a commitment, he
can be detained in such custody by amended process*
Sir J. Campbell^ Attorney-General, in reply {a). The
signing and sealing of the warrant by the two justices,
is a sufficient proof that they gave their authority for its
being used. It will not be intended that the warrant
was surreptitiously taken from them and carried to the
gaoler, they not having meant it to be made use of. It
is said, that the defendant does not appear to have been
charged under the second warrant; but there was no
occasion for any fresh charging. When the amended
warrant was delivered to the gaoler it operated retro-
spectively, and took effect as from the time of the ori-
ginal commitment.
Lord Denman C. J. It appears to me that the de-
fendant, in this case, is not detained under a good
warrant of commitment. The act does, indeed, give
power to the justices to amend any conviction or war-
rant of commitment; and in this case they had a per-
fect right to make such amendment, if an error was
discovered. But it ought to appear by the return
that they had done so, or there should have been
(a) The Attorney- General, as representing the Crown, claimed to be
beard last,
3 K 3 in
IN THE Fourth Yeab of WILLIAM IV. 851
rant, or that they might not make a second ob a new 1834.
piece of parchmeot ; as to this I give no opinion ; but, if
they adopted the latter course, they might have oon* Eucr
▼eyed the warrant to the gaoler in such a way as to
apprise him of their intentioo, either by sending ijt in a
letter, and therdn stating how it differed from the fi:ir*
mer warrant (in which case they might have added,
that the amendment was made under the statute), or by
personally delivering the second warrant to him in lieu
of the first, and requiring that to be given up. Here it
does not appear that any act was done by the justices
with reference to the second warrant; nor does the
instrument itself show that there was any amendment
made in pursuance of the statute. I do not mean to
say that the warrant is wrong in itself; but it is not
in strictness made out that the prisoner is detained
under it.
Tauntom J. I think there is no reasonable doubt
upon this question. Prima facie the warrant under
which the party was received into custody must be pre*
sumed the genuine one; and, to enable us to consider
that put an end to, the second warrant ought to have
been fully established as the act of the justices who
issued the first To say that the warrant verifies itself
in this respect, is a petitio principii. The words ^* given
under our hands and seals" &c. do not shew that it was
signed and sealed by the justices in lieu of the former
warrant, or intended to operate as an amendment of it
in pursuance of the act. Nor does it appear that they
authorized its being left with the gaoler in lieu of the first.
It may be that since the arrival of the second warrant,
the gaoier detained the party as under the authority of that
3 K 4« warrant:
IN THE Fourth Year of WILLIAM IV. 853
1834.
Dickson against Baker. jSfil^S.
ON the 22d of May 1833, a writ of capias ad satis- A pwtj out-
lawed on ctTil
faciendum issued against the defendant, on a judg- prooett, after
ment recovered against him by the plaintiff. The writ on his petition
was returned non est inventus. A writ of exigi facias was ^^lud^to^uie^
issued, returnable on the 2d of N&oember 1833 (the last S2JtoJ^*co„w
proclamation being on the 28th of OctoberlSSS)^ where- J^J^^l®.**
upon the defendant was outlawed. On the 6th of November ««>* enUtled to
a rerertal of
1833, the defendant, being in custody at the suit of other the outlawry,
though the
parties, filed a petition in the Court for the relief of debt on which
Insolvent Debtors. He included in his schedule his fo^ded'be
debt to the present plaintiff, who opposed him on the J^^ui^. "
hearing. The Court adjudged that the defendant should
remain in custody for eight calendar months from the
6th of November 1833, at the suit of the present plaintifi^
and be discharged as to all other debts. In Easter term
last, Kelly obtained a rule, calling on the plaintiff to
shew cause why the outlawry should not be reversed.
FoUett and Sandford now shewed cause. In Rex v.
Castleman(a), this court seemed to consider that the Court
of Quarter Sessions, under the then Insolvent Act,
BGeo.S. C.41., might discharge an insolvent debtor,
though charged with outlawry. The opinion might be
founded on the particular words of that act. But in
Beauchamp v. TomJcins (6), the Court of Common Pleas
was evidently of opinion that a bankruptcy and certi-
(a) 4 Burr. 2119, 2127. (6) 3 Taunt. 141.
ficate
Bakxr.
854 CASES IN TRINITY TERM
18S4f. ficate were not of themselves ground for rerersing
"■— ~ outlawry, and that error must be shewn in law or fii
DiCKftOM
offdnu It is impossible to give a greater efiect to a dischai
under an Insolvent Act, unless the act contain so
express provision to that effect : but there is none sod
Kelly contra. The effect of outlawry, as defined
Tidd (a), is to put a roan out of the protection of 1
law, to make him incapable of suing, and liable to i
prisonment ; and to create a forfeiture of his goods t
chattels, and the profits of his lands. The object oft
process now is, to obtain payment of the debt sued fi
and the provisions of the act, 7 G. 4. r. 57«, are suflBcic
to relieve the party from the penal consequences of oi
lawry. The 46th section relieves the prisoner, after t
time of discharge adjudged by the court, from all del
or sums due or claimed to be due, at the time of filing tl
petition, to the persons named in the schedule : if di
charged from the debt, he must be discharged from tl
outlawry, which is only its civil consequence. And hei
no capias utiagatum had issued, which distinguishes th
case from Beauchamp v. Tomkins. {b) The 50th sectio
enacts, that the discharge of the prisoner shall extend I
all process for any contempt of any court for not
payment of money or cost"", and all costs incurred Ix
fore the filing of the sch(:dule, in any action or sui
and the party entitled to such costs shall be deeme
a creditor within the act. Here, the filing of the sch<
dule has been subsequent to all the proceedings on tb
outlawry : so that, on the one hand, the prisoner wi
be relieved from the debt and costs on the 6th of Jd
next; and, on the other, the plaintiff may claim a divi
(a) TitUTi Prod. ch. 7. p. 131. (9th ed. I88S ) (6) 5 r«Miir.Hl.
den(
BAkfffe.
IN THE Fourth Yeah of WILLIAM IV. 1155
dend on all his costs. The 60th section enables any 18S4.
person entitled to the benefit of the act, if arrested by
DlOKiOlf
reason of any debt, or sum of mone^ or costs, with a^tmtt
respect to which he shall be entitled to such benefit, to
obtain a discharge from a judge of the court whence (be
process has issued : so that the insolvent could not be
hereafter arrested on a capias utlagatum. Sect. 61. pro-
tects him from execution by fieri £icias or el^t. So
that both his person and his property are protected.
He might have put in special bail if this outlawry had
been on mesne process, or have rendered. [Follett
denied that he could have rendered, referring to Bex
V. Wilkes (a), as containing the history of the process of
outlawry.]
Lord Denman C. J. Perhaps it may be a just con-
sequence that the outlawry should be reversed by the
discharge of the prisoner under the act. But this Court
is not called on to take any step. If the adjudication
of the Insolvent Court reverse the outlawry, our inter-
ference will not be necessary. But, if we are called on
to act, we must see that in so doing we should be follow-
ing precedents ; and we find none.
LiTTLEDALE J. It sccms hard that a man should be
taken up, after he has been discharged by the Insolvent
Court ; but we have no power to reverse this outlawry.
In Beauchamp v. Tomkins (6), the Court would not re-
verse the outlawry till error was shewn. In Summervil
V. WcUkins (c), the Court seemed to think that the outlaw,
who had been bankrupt, and relied on that fact, had not,
on that account, any locus standi in judicio. Outlawry
(a) 4 Burr. 2527, 2549, &c. (6) 3 Taunt, 141.
(c) l4East,5S6.
has
RXVSTT.
IN THE Fourth Year of WILLIAM IV. 857
were received by Mr, JIf." (the attorney) *'for damages 18 84.
and costs in the several actions relative to the Bran^ — —
MlLU
deston estate, 162?/. 185. 11^,;" leaving due to M. against
on the whole taxation, 2371/. 6s. 9d. It further ap-
peared that, of the 4675/. Bs., 13001. consisted of bills
for business done by M. as attorney for the plaintifi^ in
certain suits, in which the parties opposed to the plaintiff
had finally become liable to pay the costs. These last
mentioned costs, on being taxed as between party and
party, had been reduced from 1531/. Ss. lOd. to the said
sum of 1300/., which had been received by 3f., the
attorney, from the parties liable; and this, with other
sums received for damages due to the plaintiff from
the same parties, formed a part of the 1627/. 185. lid.
deducted by the master : but only a very trifling deduc-
tion was made, on this last taxation, from the 1300/.
Hutchinson, in this term, obtained a rule calling on the
plaintiff to shew cause why it should not be referred to
the Master to tax the attorney's costs occasioned by the
taxation of the bills, and why such costs when taxed
should not be paid by the plaintiff. The aflSdavits in
opposition to the rule contained some statements intro-
duced for the purpose of shewing that M., the at-
torney, had not acted fairly towards the plaintiff in the
transaction.
F. V. Lee now shewed cause. First, the aggregate of
the bills before the Master being 4857/. 195. 5f/., and the
whole sum deducted by him being 858/. 135. 9</., the case
is within stat. 2 G. 2. c. 23. s. 23., which directs that, if
the bill taxed be less by a sixth part than the bill de-
livered, the attorney is to pay the costs of the taxation.
It is true that, in order to make out the deduction to be
as much as one sixth, the sum disallowed altogether
must
KsTsn.
IN THE Fourth Year of WILLIAM IV. 869
LiTTLEOALE J. (a) Mr. Tidd certainly lays down a 18S4.
general rule which is in favour of the present appli- ~ *
cation. He says (i), ^^ In the exercise of this discretion, yrfmt
however, the courts are governed by the statute ; and,
accordingly, the costs of taxation have been always reci-
procally given to the client or attorney, as a sixth part
has, or has not, been taken off.'* Most of the authorities
which lie cites for this are cases in equity, or old cases;
and, for my part, I think the point deserves to be
looked into. But, as my brothers are of a different
opinion, the rule must be made absolute.
Taunton J. The objections to this rule being made
absolute are threefold. First, as to the sum of
182/. 14i. 5d. which has been totally disallowed by the
Master, the question, whether that sum is to be con-
sidered a part of the sum deducted, is disposed of by
White V. Milner (c). To that case no objection is made,
except that there is no other to the same efiect; the
reason of which I believe to be, that it has never been
disputed, and that it has been unnecessary to confirm
so simple a point. Secondly, as to the 1300/. made up
of bills which have been taxed twice, first between party
and party, and, secondly, between the attorney and his
client. On the last taxation, the attorney puts down
these bills as they stood ufter the first taxation, and
charges his client with them, giving credit for the taxed
costs which he has received. In this there is nothing
(a) Lord Denman C. J. bad left the Court during the argument.
(6J Tidd't Pract, ch. 14. p. 336. (9th ed. 1828). The sutute doea
not give a discretion where a sixth part Is taken off; and, accordingly, it
has been held that in such case the enactment is imperaUTe, and the aiU
tomey must pay the costs ; Higgins t. fiholcoU, 5 B> ^ C* 760.
(c) 2 H, BL 357.
irregular.
IN THE Fourth Year of WILLIAM IV. 861
a rule calling on the plaintiff to shew cause why the ]834.
defendant should not be discharged out of custody, as """"
BOKXR
not having been charged in due time. agamu
Piatt now shewed cause. This application is not
supported by the rule of Court, HiU 2 W. 4. I.,
sect. 85. (a), which directs that the defendant shall be
charged in execution within two terms inclusive after
trial or judgment ; of which the term in or after which
the trial was had shall be reckoned one. The judg-
ment ought to have been entered up as of Easter term ;
besides, the defendant was not a prisoner within the
rule, which applies only to persons in custody at the
time of the declaration or trial. Then as to the sur-
render. By the rule of Court, HiL 26 G. 3.(6),
which follows in part another old rule, which latter
again follows another, ^^ in case of a surrender in
discharge of bail after trial had or final judgment
obtained, unless the plaintiff shall cause the defendant
to be charged in execution within two terms next after
surrender, of which two terms the term wherein
such surrender shall be made shall be taken to be
one," the prisoner is entitled to his discharge: and in
Smith V. Jefferys{c)t this Court held that, under that
rule, if a prisoner surrendered in vacation, the two
terms within which he was to be charged were the two
terms after that vacation. If a prisoner surrender in
terra, he must be charged, under that rule, in that or
the following term.
(a) 3 B. ^ Ad, 386.
(6) Tidd't Pr, ch. 15. p. 354. (9th ed. 1828.) (c) 6 T. It. 776,
VoLt I. 3 L Mansel
Baku.
IN THE Fourth Year of WILLIAM IV. 863
IN THE EXCHEQUER CHAMBER.
(Error from the Court of King's Bench.)
Thompson against Raikes and Another. /^*27th.
n^^HE plaintlflT in error declared against the defendants Held by the
-^ . Court of
in error, in trespass, for breaking his warehouse, King*t Bench,
situate in the town and county of Kingston-upon-Hulli tante),and the'
and taking his goods there for a distress, pretended to be fi"rm(S on error
due by virtue of a certain supposed rate or assessment; If ^J 4"*^* 54 **'
and for detaining the said goods till the plaintiff was the justices of
" ° ^ ti town and
obliged to pay, and did pay, a sum of money to redeem county of a
town, men-
them. Pleas, first, Not Guilty ; secondly, that after the tioned in Scfie-
making of an act of parliament of 4 G. 4. for consoli- act, might rate
dating and amending the laws relating to the rebuild- for rebuilding
ing, &c. of certain gaols, and after the 1st of September l^tHld^'"*"^
1823 therein mentioned, and before the time when, &c. county on a
' ' new tite :
Although by
a local act, which had been carried into effect, it had been enacted that ground should be pur-
chnsed, and conveyed to the corporation of the said town, and that the justices for tlic town
and county should cause a new gaol to be built thereon ; that a jimited sum should be raised
by assessment on the town and county, for the purposes of the act respecting such gaol, the
surplus to be repaid proportionally to the parties assessed ; and that such gaol, when finislied,
should be a public gaol for the town and county, and should from time to time be main"
tainedf svjijhtrtetl^ and repaired by the corporatian.
The sixty-eighth section of 4 G. 4. c. 64. enacu, that the justices in ressions may raise
money on the counties, towns. &c. to which the act extends, for defraying the expences of
the matters and things there! n-before directed to be done respecting gnols, &c., in the a.ime
manner as rates applicable to the building, repairing, or maintenance of such prisons re-
spectively are now directed to be raised by law :
Held by the Court of Error, that this applies only to the mode of raising such raleiy
and not to the persons on whom they are to be laid.
Held by both Courts, that the power of the justices to rate, as above, under stat. 4 G» 4.
c. 64., is not limited by stat 5 G. 4. c. 85. s. 15.
Hi Id by the Court of Kinu's Bench, on the construction of 4 G. 4. c. 64. u. 45, 50.,
that when a presentment has been nade as to the propriety of changing the site of a gaol,
and the justices in session have taken such presentment into consideration, giving the notices
required by sect. 45., and have resolved that the site ought to l>e changed, such justices may
at their next session confirm the resolution, and contract for building the new gaol, with-
out having given fresh notices.
3L 2 at
Ra2EIS*
IN THE Fourth Year of WILLIAM IV. 865
sions, the justices there assembled made a second reso- 18S4.
lution in the same words as the former: and that in '
pursuance of the said resolutions, and under the autho- agahut
rity of the statute, the justices assembled at those
sessions then and there contracted for the building of
a new united gaol and house of correction in a certain
other part of the said town and county, which they
deemed most eligible: that afterwards, to wit, &&, a
new united gaol and house of correction in and for
the said town and county were erected and built within
the county of the town of Ktugsian-upon-HuU afore*
said, according to the act : that divers sums, amounting
to 25S0/., became necessary to be raised on the town
and county of the town aforesaid, for the expenses
necessary to the execution of the said act, and there-
upon, afterwards, and before the time when, &&, to
wit, at the general quarter sessions holden at the said
town, &c., on the 12th of At4gusij 2 JV. 4., for the said
town and county, before, &c., by an order of the jus-
tices at those sessions assembled, in open court, the sum
of 2535L was rated and assessed upon the said town of
Kingston-upofi'Hull and county of the same town, as a
general rate or assessment upon the said town and
county, for the purchase of land, and for erecting and
building thereupon the said united gaol and house of
correction, and for defraying all other expenses incident
thereto ; and it was thereby further ordered that the
said sum of 2535/. should be and the same was thereby
rated and assessed by an equal pound rate of sixpence
in the pound upon the united parishes, &c. (mentioning
the parishes and townships rated, and the proportions
in which the rate was assessed) ; and it was directed by
the said order that the high constable of the said town
3 L 3 and
IN THE Fourth Year of WILLIAM IV.
867
after the making of the said rate in the second plea men*
tioned, viz. on the 9th of July 1829, entirely pulled
down and removed, and the site thereof duly sold and
conveyed to the purchaser thereof; and that the said new
erected gaol and house of correction so erected and built
as in the said second plea mentioned, was, so far as relates
to the gaol, built in lieu and substitution of and for the
said gaol which had been so built by virtue of and
under the said act of 23 G. 3.; and that the said
rate or assessment was made for defraying the expenses
(among other things) of erecting and building the said
new gaol : wherefore the said supposed order and the
said supposed rate and assessment in the said second
plea mentioned were and are wholly void in law. The
replications to the other pleas gave, in substance, the
same answer. To each of these three replications there
was a general demurrer. The plaintiff joined in de-
murrer.
The demurrer was argued in the Court of King's
Bench in Michaelmas term 18S3 (ja) {November 8th), by
Cressrwell in support of the demurrer, and Tomlinson
contra. The objections to the rate were, in substance,
that the justices of the town and county of Kingston-upon
Hull had no power by law to make a rate upon the in-
habitants at large of the town and county to pay the ex**
pence of purchasing a site for, and erecting, a new gaol;
that, assuming them to have had such power, they
^"ght, under the statute 4 G. 4. c. 64-. ss. 45, 50. (ft),
to
(ft) Before Parke, Taunton, and Patteson Js.
C*J 4 G. 4. c. 64. 4. 45. enacts, that in case it shall appear at any time
^^ justices at any general or quarter sessions of the peace, holden in any
^^^ty^c- €>r in any district, city, town, or place to which this act shall
^'^d, by any report or presentment made (as specified in this section],
* ^ny gnol or iiouse of correction, to which this act shall extend, within
3 L 4 «"<^^
1884.
TnoMPtov
agnin^i
Raikis.
Raikki.
IN THE Fourth Year of WILLIAM IV. 869
must be decided mainly on the construction of stat 1884.
4 G. *• c. 64. Sect. 2. enacts that one gaol and one house ^
*^ Thomtson
of correction shall be maintained in the several cities, t^nu
towns, and places mentioned in the schedule A. annexed
to the act, one of which is Kingston-upon-HulL That
must be at the expence of the inhabitants of such cities,
towns, and places. In the latter part of the same section
it is said, that ^' the regulations and provbions contained
in this act shall extend, in manner hereinafter mentioned,
to every such gaol and house of correction maintained
at the expence ^such city, town, or place :" and in sects.
10. and 14. some of those regulations are in terms ex-
tended to the places in schedule A. Section 68. is in
these words : — ^^ And in order to defray the expences
of the several matters and things hereinbefore directed
to be done, respecting gaols, houses of correction, and
other prisons, and for the support and maintenance of
prisoners confined therein, who are entitled by law to
such support, and for all other expences necessary to the
execution of this act, and not hereinbefore particularly
•
provided for : be it further enacted. That it shall and
may be lawful for the justices, at their general or quarter
sessions assembled, and they are hereby authorized and
empowered, to cause such sums of money as s^all be ne-
cessary for all or any of those purposes, to be raised on
the counties, ridings, divisions, districts, cities, towns or
places to which this act shall extend, in the same man-
ner as rates applicable to the building, repairing or main-
tenance of such prisons respectively are now directed
to be raised by law." If it is said that the last words
of this clause limit the operation of sect 2., and render it
necessary that the rates shall be raised upon such persons
as have formerly been liable to them, it may be answered
that
Raikks.
IN THE Fourth Year of WILLIAM IV. 871
and the justices of the said town and county may use or 18S4.
sell the materials, and sell the site of the old gaol,
Thompsoit
the purchase-money to be applied to the building of against
the new; and they are empowered (s. 13.) to raise by
assessments, as there directed, on the occupiers of
houses, &c. in every town, hamlet, &c. within the town
and county, a sum not to exceed 2500/., to be applied
(sects. 13. 15.) for the purposes of the act respecting the
gaol, and the surplus to be repaid, proportionably, to
the persons who have paid such assessments. Now the
authority of parliament became necessary, as recited in
this statute, not because the justices wanted power,
generally, to rate the inhabitants for building a gaol,
but because, at the time when that act passed, they
could not make a rate for building it on a new site. The
sum to be raised on the inhabitants is limited, but that
does not shew that the corporation were deemed liable
for the residue, as the legislature evidently anticipated
that the sum mentioned would be more than sufficient*
The act provides (s. 11.) that the corporation shall from
time to time support and repair the gaol ; but that does
not imply that they are to rebuild it, or, at all events, to
rebuild it on a diiFerent site. The observations of the
Court as to bridges in Rex v. The Inhabitants of De^
von (a), will apply to this point. If the property in this
gaol vested in the corporation by stat 23 G. 3. c. 55.^
they were not for that reason bound even to repair it ;
Bex V. The Earl of Exeter (i) : and the act does not
bind them to rebuild it. Assuming no prior obligation
to exist, there is no difficulty in supposing that the legis-
lature may have intended that one body of persons
should be liable to repair, and another to rebuild* The
(a) 4 B. J r. 670. (Jb) 6 T. 2?. 37J.
replication
Raikks*
IN THE Fourth Year of WILLIAM IV, 875
town oi Kingston-vpon-HuU had a power to make a rate 18S4*
upon the town and county for the purchase of land, and
for the erecting and building thereupon a gaol and house ^^^
of correction, under 4 G. 4. c. 64. Secondly, whether
the justices had pursued the proper course required by
the statute previous to the making of the rate ; and, if
they had not. Thirdly, whether the rite was void.
The question has already been before the Court, on a
rule for a certiorari to remove the rate (a), and Lord
Tenterdetij and my brothers Littledale, Taunton^ and
Patteson^ decided, after a full consideration of all the
clauses of the act of parliament, that the rate was autho-
rized by the 4 G. 4.
The case has been since very ably argued before
myself and my brothers Taunton and Patteson^ my
Lord Chief Justice having declined to take any part, as
having been concerned as counsel.
My brothers have seen no reason to alter the opinion
which they formed before; and are satisfied that the
former decision was right For myself^ I am not sure
that I should have been of the same opinion so &r as
relates to the power to make a rate in respect of a new
gaol, if the question had now been for the first time
agitated ; but as the precise point has been expressly
decided by this Courts after full consideration, I must
defer to that authority, and act in conformity to it. The
judgment therefore of the Court, upon this part of the
case, is, that the justices had power to make this rate by
the 4 G. 4. c. 64.
The second question is, whether the justices have pur-
sued the proper course required previous to making the
rate.
(a) See note at the end of this case.
The
IN THE Fourth Year of WILLIAM IV. 877
business relating to the presentments is to be taken 18S4.
into consideration ; and when the justices have resolved
at one sessions that the old prison ought to be removed, ^mMt
the act itself gives notice that at the following sessions
the same subject may be reconsidered, and the con-
tract entered into; for in this case the resolutions
must be at two successive general or quarter sessions;
but if the resolution is only to enlarge or rebuild,
then the contract may be made at any subsequent
sessions, and then public notice in the newspaper of
the intention to proceed at some particular sessions is
required.
The justices, therefore, having acted as the statute
directs, it is unnecessary to consider the third ques-
tion, whether the rate would have been void if they had
not
W^ are therefore of opinion that the judgment must
be for the defendants.
Judgment for the Defendants.
The plaintiff brought a writ of error. The errors
assigned were, that the second, third, and fourth pleas
were insufficient in law, and that the judgment ought
to have been for the plaintiff. The case was argued
in the Exchequer Chamber in this Trinity vacation
{June 2Sd), before Lord Lyndhurst C. B., Park, Gaselee^
and Bosanquet Js., and Bolland and Alderson Bs., by
Tomlinson for the plaintiff in error, and Cressvoell for
the defendant in error. The only question discussed on
this occasion was upon the authority of the justices to
make the rate, the plaintiff acquiescing in the deci-
sion of the Court of King's Bench as to the other
objections. The same course of argument having been
Vol. I. 3 M taken
IN THE Fourth Year op WILLIAM IV, 879
prescribed by the act, may take measures for altering, 18S4.
enlargingy or repairing^ or for building or rebuilding
any such cfaol or house of correction. against
By the fiftieth section, a power is given to remove
the site of such gaol or house of correction. Then by
the sixty-eighth section, in order to defray the expences
of the matters directed to be done respecting gaols,
houses of correction, and other prisons, and the other
charges therein mentioned, the justices are authorised
to cause the necessary sums to be raised on the counties,
cities, towns, or places to which the act shall extend, in
the same manner as rates applicable to the building, re-
pairing, or maintenance of such prisons respectively, are
now directed to be raised by law. The latter words of
this section undoubtedly throw some obscurity over it >
but the meaning appears to be this, that the amount of
the expences of the gaol, house of correction, and other
prisons, and of the other matters referred to in that
section, should be raised in the same manner as rates are
raised, either for the building, or the repairing, or the
maintenance of such prisons. It seems to have been
intended merely to point out the mode or form in which
the money was to be raised.
There is nothing in this interpretation of the 68th
section at variance with the second section of the same
act, upon which reliance was placed in the course of
the argument for the plaintiff. For, taking the whole
of the second section together, it appears to have been
intended, that the gaol and the house of correction
which are to be maintained in each of the cities and
towns mentioned in the act, are to be maintained at the
expense of such city or town, in the same manner as
the gaols and houses of correction in the counties are to
3 M 2 be
IN THE Fourth Year of WILLIAM IV.
upon-JBully whereby a rate was assessed upon the inhabitants of the said
town and county to defray the expenses of rebuilding the gaol on a new
site. (See p. 865. ante.) In HUary term 1831, Sir James Scarlett, F»
PoUock, and Cressweil, shewed cause against the rule, which was supported
by Sir 7. Denman, Attorney-General, CampbeU, Coltman, and ArchbUi.
The argument turned chiefly on the construction of the several clauses
of 23 G. d. c. 55., 4 G. 4* c. 64., and 5 G. 4. c. 85., referred to in the
case above reported.
Lord TENTxaoKN C. J. It has been argued in support of the rule,
that the inhabitants of the town and county ought not to be charged with
this rate, unless there were distinct words in stat. 4 G. 4. c. 64., making
them liable to it, because it does not appear that they were obliged to
build a gaol before the statute passed. But the rate is for building a
house of correction as well as a gaol ; and it cannot be said that the in-
habitants were bound, before the statute, to build a house of correction,
more than to build a gaol. If, therefore, it is admitted that they are
chargeable for the house of correction, the argument from former liability
may be used against as well as for the rule. The local act, 23 G. 3.
c 55. , recites, that it is just that the charges of building the gaol should
be borne and defrayed by and out of the estates within the town and
county in a fair and equal degree, and it lays the expense of building
the gaol on the inhabiunts, but directs that, when built, it shall be main-
tained, supported, and repaired by the mayor and burgesses of the said
town or borough of Kvngston-upan'HuU. So the law stood, under the act
23 G. 3. c. 55., which was applicable to the gaol only. Then, by stat.
4 G. 4. c. 64. «. 2., it is enacted, that one gaol and one house of correction
shall be maintained in the several cities, towns, and places mentioned in
the schedule, (among which is ICmgMton-upon'Hull,) and that the regu-
lations after-mentioned shall extend to every such gaol and house of
correction maintained at the expense of such city, town, or place. It
might be said here, that if the gaol is not to be maintained at the ex-
pense of the county of the town, the regulations cannot be enforced
in such gaol ; that, however, is not contended. By the forty-fifUi and
fiftieth sections, if it is found that the site of the old gaol is improper, and
that it ought to be removed, the justices (and not the mayor and others, aa
directed by the local act in question here) are to buy the land for the pur-
pose : and by the sixty-eightli section, which is loosely worded, but which we
must construe, if we can, consistently with justice, and with the situation
and obligations of the respective parties, it is enacted that, in order to
defray the expenses of the matters and things before durected to be done,
it shall be lawful for the justices in sessions to raise the necessary sums
for such purposes on the counties, &c- cities, towns, or places to which
this act sliall extend, ** in the same manner as rates applicable to the
building, repairing, or maintenance of such prisons respectively are now
3 M 3 directed
881
18S4.
Thompsoh
agaimt
b!aikxs.
IN THE Fourth Year of WILLIAM IV. 88 S
18S4.
IN THE EXCHEQUER CHAMBER.
(Error from the King's Bench.)
Burn and Another against Carvalho and
Others, Assignees of the Estate and Effects
of FoRTUNATO, a Bankrupt.
IT appeared by the record sent up from the King's F., a merchant
at Liverpool^
Bench, that the plaintiffs below declared against the used to consign
goods (o bis
defendants below in trover for cotton goods, laying the agent at AoAia,
right of possession in the bankrupt before, and in the 'rirXiZ
assignees after, the bankruptcy; that the general issue bHU*upon*ihe
was pleaded ; and that at the Lancaster assizes, on the <^»*of««nd
' ' against such
7th of March, 1 JV. 4., the cause was tried by a jury, fonsignmenta,
who found a special verdict The verdict was in all ^*on to their
amount, to be
material respects the same with the case as stated in paid by the
agent out of the
proceeds. Some
biUs so drawn, and negotiated by the indorsements of a house in London with which F»
corresponded, were refused acceptance by the agent The London house thtreupon re-
quested F. to write to his agent at Bahia, with orders, " that in case be did not pay i^.*a
drafts, he should immediately hand over such property as he might have of i^.*s, of an
equiiralent value to tite bills not paid by him, to the agent of t^«e Xom/on house at Bahia,**
F' replied, that he would write to his agent, agreeably to these injunctions, directing him
to hand over to the agent of the London hou^e, *< property of i^. in bis bends, to cover
the amount of bills that eventually might not be paid.** Afterwards, and before the letter
from JF. to his agent reached Bahh, F» became babkrupt. JF.'s agent subsequently handed
over to the London house goods consigned to bim as above mentioned, to an amount Icsa
than that of the bills unpaid :
Held, that there was no le^ral or equitable assignment of tliose goods to the London
house before the bankruptcy, and that on that event the property in them vetted in the
ftssigneca.
In an action of trover brought by the assignees for the goods, in which the above facta
were proved, the defendants aUo offered in evidence the letter written by F. to his agent
at Bakia (after promising the London house to write, as above stated), in which he ordered
that party to hand over all the property which he held on J*.*8 account to the agenta of the
London bouse :
Qtuere, Whether the letter was admissible; but held that, if it were, the decision ought
still to be the same.
3 M 4 Carvalho
Cartalho.
IN THE Fourth Year op WILLIAM IV. 885
This, however, is at variance with the doctrine, that 1884,
assignees can recover only such property as they are
entitled to apply to the satisfaction of the demands of ^agawH
the creditors ; a doctrine which is very convenient, as
superseding the necessity of instituting suits in equity
to compel assignees to refund, and which has been
recognised in Lempriere v. Pasley{a\ and Brawn v.
Heathcote. {b) In the present case, the defendants, at
the time of the bankruptcy, had an equitable lien,
which was good against the bankrupt, and therefore
against the assignees, upon all the property in JRegcfs
hands, or upon so much of it as was necessary to cover
the bills, which, in fact, would be all. There is an ap-
parent variance between the letter dated 9\h April 1829,
from the bankrupt to the defendants, and that dated 1 1th
Aprils from the bankrupt to JRego ; the former promising
to direct that so much property should be handed over
as would cover the amount of bills that eventually might
not be paid ; the latter directing all to be handed over.
But, in fact, all was required to cover the amount; the
latter was the performance of the promise contained in
the former. [Lord Lyndhnrst C. B. If Rego held
more than was necessary to cover the amount, he would
have had to hand over only a part, which part the
order to him did not specify. Would you say that, in
that case, he must have handed over all ?] It is not
necessary to go so far. The gross property could not
be touched by the bankrupt till enough had been
handed over to cover the amount : there would be an
equitable lien upon all. But the bankrupt's letter of
1 1th of April to JRego shews that, according to his own
understanding of the contract with the defendants, the
(a) 2 r. R. 485. (6) 1 Ath 160.
whole
Caetalbo.
IN THE Fourth Year of WILLIAM IV. 887
or undetermined as to the amount to be transferred. 1834.
Now the letter is written in execution of the contract
Buaw
previously made between the parties ; it is a substantial agaimti
performance. In Bailey v. CtdverweU (a), the agent of
the owner of goods had sold them to a person who de-
sired the agent to keep them in his hands unless he
could sell them at a certain price ; and afterwardsy the
goods not being sold, the buyer directed the agent (who
still held them, and had required security for payment
of the original purchase-money) to sell them, and pay
the proceeds to the original owner in liquidation of the
purchase-money due to him, and to pay the surplus
to himself, the buyer. After he had given these
directions, but before they had been complied with,
he became bankrupt His assignees then brought
trover for the goods against the agent ; but it was held
that the application for payment must be taken to have
been made by the agent on behalf of the original owner^
that the original owner must be considered as having
assented to the arrangement made, that such assent
woald be referred to the time of the direction being
given by the bankrupt, and that such direction was not
couBtermandable : and the assignees were nonsuited, on
the ground of the goods being subject to the equitable
daim of the original owner. Here there is an express
request by the plaintiffs in error, in their letter of
April 4th, and this must be coupled with the letter of
Jfyril 11th, which was a performance of the request; the
request and performance together go at least as far as
the order and the inferred assent in Bailey v. Culver"
f0p(ll (a), and the request is made by the party actually
(a) 8 r. 4- C 448-
interested.
IN THE Fourth Year op WILLIAM IV. 889
may have" of an ^^ equivalent value to the bills not 1834.
paid." And the bankrupt answers, by the letter of
the 9th of April, that, agreeably to their instructions, agahut
he will write. Had nothing further been done, he
would have been bound, and the equitable lien would
have been created at and from that time. It is not
necessary, even on the supposition that there was more
property than enough, that there should have been a
specific appropriation of any part of it to the discharge
of the bills. The assignees have no right to property
in which the bankrupt is not beneficially interested;
here the equitable lien upon the whole prevents him
from having any beneficial interest in any part of it
till the lien be discharged. [Lord Lyndhurst C. B.
Suppose a man holds goods of a trader to the value
of 10,000/., and he gives another person a charge upon
them to the amount of 100/., will not the goods pass
to his assignees?] It is possible that, if the charge
were so definite, the goods might pass to the assignees,
subject to it. That, however, is not the case here.
\Tindal C. J. referred to Falkener v. Case, (a)] Then
as to the alleged uncertainty respecting the sum to be
secured. In the case In Re Ship Warre{b) it was
considered by Lord Chancell(fr Eldon that an assign-
ment was good in equity, although both the sum to be
secured, and the property upon which the security was
given, were uncertain. It is true that, in that case,
there was afterwards an actual taking of possession:
but, in the present instance, nothing prevented the actual
transfer at the time of the agreement, except the dis-
(a) 1 Broum, Ch. Ca. 125. ; more fullyt from a MS. by Athurtt J.» in
Lempriere v. PasUy, 2 T. i2. 491.
(6) Note to M<mkhou9e v. Hay, 8 Price, 269.
tance
Caxtauki.
IN THE Fourth Year of WILLIAM IV. 891
signment; that is the ordinary practice, and creates no IS 84.
lien between the drawer and indorser. The letter to Bego ""■"■
of the 1 1th of April cannot be taken into consideration ; aiamtt
it is not the agreement between the plaintiffs in error
and the bankrupt ; it never was communicated to the
former, andj therefore, was merely a transaction be*
tween the bankrupt and his agent, and as such re-
vocable, Scoti V. Parcher {a) ; and bankruptcy always
operates as a countermand. And, without this letter,
there is only a promise to hand over property to a par-
ticular amount, not being specifically selected, in the
event of the bills not being paid ; there is, therefore, an
uncertainty, first, as to the goods which may be in Regds
hands; secondly, whether any, and what bills would
be unpaid ; thirdly, as to the part of the goods which
jRego would appropriate to the security of the bills. The
order was not executed till after the bankruptcy; to
make this valid as against assignees, there should have
been some assent by Rego^ to hold for the plaintiffs in
error, before the bankruptcy ; Ex parte HejpBOod. (£)
The doctrine of equity has never been applied, except
in the case of an actual contract; it has not been ex-
tended to the case of an order to an agent. And here
the order varied from the preceding contract, and there-
fore was not a performance of it. Again, a promise to
pawn goods, does not bind the goods themselves, either
in law or equity, though it may subject the person
promising to an action. \Tindal C.J. Suppose you
order a banker to pay money to a third person, and
the banker assents, does not that pass the money?]
Not if my bankruptcy intervene between the order
and the assent. Even in the case of a contract of sale,
(«) 3 Uer. ^S'i. (6) S Rw^ Co. Bank, 355,
the
IN THB FOUBTH YlAB OF WILLIAM IV. 893
BURK
mgamM
Cartauiq*
most remote possibility of interest in the assignees 1884.
would entitle them to recover ; and in Winch v. Kedey (a)
BuUer J. seems to adopt the same criterion*
Cur. adv. wU*
In the same vacation, {June 2Sd),
Lord Ltmdhubst C. B. (in the absence of Tindal
C J.) delivered the judgment of the Court
The question in this case is, whether there was an
equitable transfer by FortunatOf brfore his bankruptcy,
of the goods which are the subject of this action.
Unless there was such a transfer complete before the
bankruptcy, the property in the goods passed to the
assignees. We think there was not such a complete
transfer, and, consequently, that the plaintiffi bdow are
entitled to recover. By the terms of the bankrupt act (6),
wH the personal estate of the bankrupt at the time of
tlie bankruptcy wo*ild vest in the plaintiffs below by
the assignment: the proper^ in question had there-
toae passed to them, unless an equitable lien existed,
It the time of the assignment, upon the whole or
IB ascertained part of such property. And on their
Ue it is admitted, that nothing passed to them by the
Bflignment but such property as the bankrupt was
gnitably, as well as legally, entitled ta Then do the
cts here shew, consistently with decided cases, that
e equitable tide to these goods had passed from the
ikrupt to the defaidants before the bankruptcy ?
Bhmn v. Heatheeie (c), Falkener v. Case (d), and
wriere v. Pasley (e), the assignment was direct and
(a) 1 r. R. ess. (6) 6G.4.C. 16. f. 6S.
r^} I Jik. 160. (d) 8 7. R. 491.
O S T. R. 485.
« I. 8 N unequivocal.
IN THE Fourth Year of WILLIAM IV. 895
signment of any certain and specified amount of pro- 1884.
perty, but at most only an agreement to assign on
a contingency, and goods of an uncertain quantity. agamti
And that quantity remained uncertain till the act of
bankruptcy was committed; from which time all the
property, legal and equitable, which the bankrupt had,
became vested in the assignees ; and, having once passed
to them, it could not be divested again, to answer the
event of a conditional assignment. There is no au-
thority for saying that this could take place ; and the
principle of the bankrupt law is against it As to
the letter dated April 11th, which was rejected by the
Court below, some of the Judges of this court think
that, as it was the letter referred to by the bankrupt in
his letter dated April 9th, as about to be written by him,
and as the writing of it formed part of the transaction,
it was admissible in evidence. But the reception of it
would not remove the difficulty which has been stated,
and therefore it is unnecessary to determine this point.
The Lord Chief Justice of the Common Pleas concurs
with us in the present decision. The judgment will be
affirmed.
Judgment affirmed.
At a subsequent sitting of the Court of Error in ^ entctment
the Exchequer Chamber (Michaelmas term 1834), c.42. «.3o.,
that if any per-
Starkie applied to the Court for an order on the ton •< shall sue
_- .1. • r I • 1- out any writ of
Master to review his taxation ot the costs m this cause, error/* Ac, as
and to disallow interest on the amount of damages, tioDed,and
(2049?.), which he had allowed from the bringing of ^^^""^^^
the writ of error, under the statute 3 & 4 ^. 4. c. 42. ?>• defendw>t
' in error, the
. Court of Error
•haU allow interest for such time as execution has been delayed by luch writ, applies
only where the writ has been sued out since the passing of the act.
S N 2 5. SO.
IN THE FouRtH Year OP WILLIAM IV. 897
and the Court directed the taxation to be reduced flis 1854.
prayed (a). -—
(a) See a similar decision on ttaL 1 IT. 4. c. 81* t. 6., Bex v. Iftt^
2 ^. j- ^</. 203.
Henry H awahoen Fazakerley against Gilbj^rt
Ford and Ha warden Thomas Gillibrand,
now Hawarden Thomas Fazakerley. (a)
THE Lord Chancellor sent die following case for ir. g^> in 1775,
dariied hit
the opinion of this Conrt : -*^ manor-house
Colonel Samuel Hawarden Fazakerley (hte of Liver^ his nephew for
pool), by his wUl, bearing date the 27th of .fime 1804, ^thTi^"!^
first and other
•ons in tail male. The nephew's son, T. 0>f took under the will ; and upon his marriage, in
1801, suffered a recovery, and oouTeyed the estates to the use of himself for life ; remainder,
subject to a term in S» H. F» and another, for securing a jointure and raiting portions for
joanger childreoy to the use of the settlor^s first and other eons by the marriige, in tail male.
Power was given to the trustees to sell and exchange the lands, and invest the monies.
In 1804, S, H. F.t the termor and trustee under the settlement, deviied his own estates
in trust for the second son of T. G, , the settlor, in tail male ; and in like manner to the
third and other sons, &c., with a power to the trustees, if at any time tfate person entitled to
the possession or to the rents and profits of the said estates should be a minor, to receive
and apply such rents and profits during the minority. I^roviso, that in ease and so often as
the manor$9 landSf j-c. devivd by the will of W, G. for an ettate in tad mmle should descend
to, or devolve upon, my son of the said T, G» (the settlor), or heir mate of the body of such
aon, and the person on whom the same should so descend or devolvo should, under tho
trusts of the present will, be tenant in tail male of the messuages, lands, &c. devised by this
will, M as to be then actually in possession of entitled to the rents, ismtest ^^ profits theretf,
and there should at the same time be any other son, &c. of the said T, G; then the estate
by this will declared to be in trust for Ae person so beooming entitled nnder the will of
W. G. should cease and determine, and the now devised premises should be in trust for tho
person who would b^ entitled if the forfeiting party were dead, and there were a fidlure of
issue in tail male. No express reference was made in this will to the settlement of 1801.
S' JET. F, died in 1813, and hn devised estates vested in the trustees for the second son of
T. G. The eldest son of T. G, died in 1816, and 7. G. himself in 18S8 ; whereupon his
estates vested in the same second son : he was still a minor. Several chttdren of T, G, by
the marriage of 1801, and lllcewiae the widow, survived him« Many parts of the settled
estates had been sold and exchanged by the trustees under the settlement.
Held, by Denman C J., Parke J., and Patteson J., Taunton J. disscotfente^ that, under
these circumstances, the estate devised by S. H. F. to the second son of 2*. G. did not go
over by the shifting davse.
(a) This and the next two cases, argued and dedded In former Itrm^
*re introduced here, not having been published in Messrs. JBamatMll and
Adolphus*n Reports.
3 N 3 devised
Fofto.
Fourth Years of WILLIAM IV. 899
becommg entitled, endeavour to obtain an act of par* 18S2*
liament or licence from the Crown, or use other proper '
FAIAXIHLtT
means for taking the said name ; and the testator de- agmui
clared his will, that in case of default, then, from and
after the expiration of the said space of one year, the
trust estates declared for the benefit of him, her, or
them so neglecting or refusing should cease^ determine^
and become utterly void, and the estates go to the
person next in remainder on the trusts before declared,
as if the person so neglecting, &c. being tenant for life,
were dead, or, being tenant in tail male, or in tail, were
dead without issue, freed and discharged fit)m any leases
or demises made before such determination of the estate,
pursuant to the powers after .mentioned. Then fol-
lowed a clause to prevent the determination of any per-
son's estate by the last proviso from prejudicing the
contingent trusts for the sons or daughters of such
forfeiting parties, or any other persons ; and to direct
the application of the rents and profits during the sus-
pense and contingency of the then expectant remainder.
The next clause gave power to the trustees, if at any
time the person "^r the time being entitled to the pos-
session^ or to the rentSj issuesj and profits" of the mes-
suages, &c., therein-before mentioned, under the trusts
of the will, should be under the age of twenty-one and
unmarried, to receive the said rents, &c., and apply a
competent part to the maintenance and education of
the person so entitled, and to invest the surplus in stock
or real securities; to receive and lay out the annual
produce of such stock, &c. at compound interest, and
at the end of the minority or discoverture, if they
should think proper, to convert the accumulations into
money, and invest the same in the purchase of free-
S N 4 hold
FbUfc
Fourth Years of WILLIAM IV. 901
SQch case, and so often as the same shall happen^ the 1852.
messuages, lands, tenements, rents, and other here- -
ditaments hereby devised, shall immediately thereupon agaimt
be in trust for the person or persons who would ht
entitled thereto if the person upon whom the estates
devised by the will of the said WilUam GiUibrand shall
so descend or devolve as aforesaid, were then actually
dead, and there was a failure of issue inheritable under
the estate in tail male herein-before devised in trust for
him as aforesaid, save and except, nevertheless, and so
as that if^ at the time of such descent or devcdution,
there shall neither be any such other son, nor any heir
male of the body of such other son, the cesser or de«
termination of the estate so directed to cease and
determine shall, during such vacancy, be suspended
and not take place."
The will then gave power to the trustees, during
life estates and minorities, to cut timber and a{^ly
the proceeds as therein mentioned ; powers to ^^ the
person or persons for the time being entitled to the
receipt of the rents, issues, and profits," Sec, if of
full age, and to the trustees during minorities or va*
cancies, to grant certain leases for seven, or building
leases for ninety-nine years : and a power to the trii8«
tees, at the request, and by the direction of the person
or persons who for the time being should, by virtue of
or under any of the trusts, &c., <*be entitled to the actnal
possession, or to the receipt of the rents, issuesy and
profits " of the said messuages, &C., if of full age, or
if not, then at the request and by the direction of such
person's guardian, to sell and exchange the said here-
ditaments and premises in the usual manner. The
will ended with a disposition of the personal estate;
the
FOED.
Fourth Years op WILLIAM IV. 908
the said hereditaments and premises under that will, to 1832.
assume the surname and arms of GiUibrand only.
'' Fazakerlkt
In 1780, the testator William GiUibrand died, and amntt
Thomas Hawarden^ his said nephew, who took the
surname of GiUibrand^ entered into possession of the
devised estates. He died in 1787; and thereupon the
plaintiff's late father, the said Thomas GiUibrand^ eldest
son of the said Thomas Hawarden (afterwards GiUibrand)^
became tenant in tail male in possession of the said
estates.
By indentures of lease and release, dated 10th and
11th oi August 1801, being the settlement made in pur-
suance of articles entered into (2Sd of March 1801) pre^
viously to and in consideration of the marriage of the said
Thomas GiUibrand^ the plaintiff's father, and MarceUa
(then MarceUa Goold\ afterwards his wife, and by a
common recovery suffered in the same year, the heredi-
taments and premises devised by the will of the said
William GiUibrand were discharged from the estate in
tail male limited by the said will, and all remainders ex-
pectant thereon, and limited to the use of the said
Thomas GiUibrand^ the plaintiff's father, for life; re-
mainder to the use of trustees to support contingent
remainders; remainder to the use and intent that the
said MarceUa GiUibrand^ in case she should survive 71 G.^
should receive an annuity of 500/. during her life, in lieu
of dower, with the usual powers and remedies for re-
covering the same, and, subject thereto, to the use of
the said Samuel Hawarden Taxakerley (the first-named
testator) and George Goold^ their executors, administra-
tors, or assigns, for a term of five hundred years, to be
computed from the death of the said Thomas GiUibrand^
upon certain trusts for better securing the annuity, and for
raising
FouBTH Years of WILLIAM IV. 905
JFazakerley^s will; which recovery was, by previous 1832.
FASAKiftLsr
deed, limited to enure to such uses as the plaindff should
by deed appoint, and, in default of appointment, to the mgmmu
use of the plaintiff, his heirs and assigns for ever. The
plaintiff, on attaining his age of twenty-one years,
entered into, and has since continued in, possession or
receipt of the rents and profits of such of the estates
devised by Thomas GiUibrand^s will as were not sold or
exchanged, and also of the lands purchased or received
in exchange under the power oontmned in the above*
mentioned settlement The defendant, Hawarden Thomas
Gillibrandj took the name and arms of Faxakerley in
October 1829.
The question directed by the Lord Chancellor (a) to
be submitted to this G>urt was, ** whether, under the will
and codicils of the testator, &nitttf/ Hawarden FazakerUyy
the plaintiff, Henry Hawarden Fazakerley^ is now
(a) The cause was originally heard (in Junt 1881) by Sir X. Skniwelif
Vice- Chancellor, who decreed in fieivour of the plaintiff. His Honour
(after commenting on various parts of the will of Colonel FaiakerUjff and
after stating that the question depended mainly on the meaning to be put
upon the word ** devolve** in the shifting clause oS that will), concluded
his judgment as follows : — " It is, I think, most consistent with the
general words used by the testator, to give them a general meaning, and
not to say that the party has had the estate devolve upon him, when, in
fact, he has become eutitied to the estate as tenant in tail in possession,
but subject to a charge. I must construe this clause in the same way as
if the GiUibrand estate had been charged to its fuU value, that is, to such
an amount as would have absolutely destroyed the beneficial eijpyinent of
it. The testator meant, in effect, to say that, if the party, who should b^
tenant in tail of his estate, should ever have the full, beneficial ei^oyment
of the GiUibrand estate, he should cease to have the JPoxafer&y estate t
but my opinion is that that event has not happened, and, eonaaqpicntly>
that the shifting clause has not taken effect;" FoMolteriey v. For4p^
4 Sifftons, 419, (not published when this case was argued). On appeal*
the Lord Chancellor sent the present case to the Court of King's
Beach.
entitled
Fourth Years of WILLIAM IV. 907
dead without issue inheritable. That clause, after an 1832.
elaborate artrument before the Vice-Chancellor, was held — —
° Faiaksalit
not to apply; and rightly. That the will of G>lonel Fa- agamtt
zakerUy is drawn with much skill and attention, is evident
from several circumstances, particularly from the manner
in which the testator guards the clause requiring the name
and arms of Fazakerley to be assumed, by the proviso in
case the person becoming entitled shall be compelled,
under forfeiture, to take some other name and arms^
and again from the careful wording of the clause before
referred to, by which the trusts of the will are shifted
in the event there pointed out, and are declared in that
case to be for the person or persons who would be
entided, if the forfeiting party ^' were then actually
dead, and there was a failure of issue inheritable under
the estate in tail male herein-before devised in trust for
him as aforesaid," &c. But it is also apparent that the
person who drew this will had before him the will of
William Gillibrandy and had not before him the settle-
ment of 1801. The expressions he has used shew that
he considered the descent of the Gillibrand estates as
governed by the directions and conditions contained
in William GillibrancCs will; whereas a lawyer, with
the setdement of 1801 before him, woukl have known
that they were no longer applicable, in consequence of
the recovery by which that settlement was carried into
effect. He would not have inserted the clause of
excuse from taking the name and arms of Fazakerley
in case the party should be bound to take another
name and arms; the obligation contemplated being
evidently that imposed by William Gillibrand^s will, and
annulled by the recovery.
A clause like that relied upon by the defendants must
be
Fourth Years or WILLIAM IV.
909
can be said, here^ that the ^ manors, lands, tenementSi
and hereditaments devised by the will of William OilH'
band " may still be said to devolve^ though exchanged, or
impaired in value, what limit is to be put to such a mode
of construction ? Suppose Thomas Gittibrandf who suf-
fered the recovery, had mortgaged the estate to the full
value within 500/. ; or suppose he had sold it, and the
second son had bought another estate with the money ;
would the shifting clause have taken effect ? The defend*
fendants must say that it does so, to whatev^ extent
the property may have been diminished, or changed in
fiirm, even if it were reduced to a single acre. They,
indeed, may ask on the other hand, whether, if the
estate had been diminished only by one acre, the clause
would have become inoperative. But the only safe
course is, to adopt the literal construction of the devise^
and to treat it as contemplating strictly the whole of the
estates devised by William GiUibrand^% will according to
its original operation. It is only by resorting to the
settlement of 1801, that a different construction can be
authorized. But (as has already been argued) the will
of G>lonel Fazakerley contains internal evidence that
the person who drew it had in his mind the will of
William GUlibrandj but not that settlement It does
not follow, because Colonel Fazakerley executed the
settlement as a trustee, that he knew or remembered its
contents ; nor, even assuming that to have been so, is it
to be supposed that he knew the effect subsequently
produced by it upon the estates. His will, in terms,
refers to that of William GiUibrandy and that only ; there
is no ambiguity ; and the Court cannot go into parole
evidence to shew that the testator had in contemplation
a <;ettlement to which the will makes no allusion. It is
Vol. I. SO not
18M;
FAtAKiBunr
Foaa.
Fourth Years of WILLIAM IV. 911
tended by the clause in question. There is no doubt 1882.
that, to ascertain that point, the Court may look „
at the situation of the property, that of the families, agamtt
and that of the testator, at the time when this will
was made. (He then recapitulated the principal facts
of the case.) The plaintiff says that Colonel Faza-^
kerUy must not be assumed to have known tlie situation
of the fiunily whose interests were affected by the set-
tlement. It must, however, be remembered that he
was not only an executing party to the settlement, but
a member of that family ; the persons in whom he was
interested, and who were the objects of his bounty,
were HawardenSj and not of the family of GiUibrand.
The will was executed in 1804, but be continued add-
ing codicils till 1813 ; and before that time several
of the children were born, and most of the exchanges
and sales had been made. Such being the circum-
stances under which the clause in question was drawn,
what effect is to be given to the words? It is said
that to render this clause applicable, there must be
a devolution or descent of the GiUibrand property, ac-
cording to the terms and limitations of William GiUt"
brand^s will. But the mention of his will is not made
with that object The framer of the clause is speaking
of estates which would or might come to a member of
the Hawarden family from two other families, the Gil'
librands and the JFazakerleys ; and in using the words
<^ manors, lands, &c. devised by the will of William
GiUibrandf** he merely describes the estate by the
family from which it comes. There was no other mode
in which he could do it without obscurity. The Vice-
Chancellor decided this case upon the interpretation of
the word ^^ devolve," and was of opinion that the *^ de-
8 O 2 volution**
Fourth Years of WILLIAM IV. 9i3
the party himself. You would not contend that in any 1832.
possible way in which the estate could come^ it would .
be a devolution r] It is not necessary to say so. It is V^^
urged for the plaintiff on the ground of internal evi-
dence, that the framer of Col. Fazakerle^s will had
before him the will of William GiUibrand^ and not the
settlement : but this point is not clear enough, even as
• • • '
to Gillibrand*s will, to furnish any ground of argument;
for the clause in Col. Fazakerlet/s will, which dispenses
with taking the name^ refers to the case of a party
bein^ obliged, under forfeiture^ to take another name;
but in GiUibrand^s will, which is supposed to be there
referred to, no such forfeiture is imposed. The defend-
ants ask whether the divesting clause would apply, if
the estates had come to the plaintiff so impaired as to .
be of little value? It would be suflScient to answer, that
that case has not arisen. The property is in the same con-
dition, as to incumbrances, and the power to charge^ as
in 1804, when Col. FazaJkerlet^s will was made. If a
shifting clause could be nullified whenever there was
power to create a charge, or whenever such power had
been in any degree enforced, such clauses would scarcely
ever be effectual.
If it is relied upon, as an argument for the plaintifl^
that Colonel Fazakerley did not know of the settlement
in 1801, the fact ought to be proved by those who
would avail themselves of it He knew of WiUiam GU*
libraruTs will ; it is not likely that he should have been
unacquunted with the particulars of the settlement.
Those who drew Colonel Fazakerletf% will with so much
care would probably not be uninformed on such a point
The case does not state whether Colonel Fazakerley
•«■• •
knew or did not know the effect of the settlement; but
.f ' •••«,«•.
SOS be
Fourth Years of WILLIAM IV. 915
contemplated such purchase money when speaking of 18S2.
the -estates devised by the will of William GUlibrancW] „ ""— ^
He must have known that they were liable to be so ogamu
converted, the power to sell having been acquired
before he made his will, by the settlement to which he
was party*
As to the objection, that the plaintiff was not entided
to the rents and profits within the words of the shifting
clause, when the GiUibrand property devolved upon
him, because he was then a minor, it was clearly the
intention of Colonel Fazakerky^ that if the party upon
whom the GiUibrand property devolved was, in any
sense, in possession of the Fazakerley estates at that
time, they should go over. The strict construction
argued for on the other side is neither necessary nor
borne out by the context On Colonel Fazakerlejfs
death, the plaintiff, though a minor, took a vested
interest under his will, and was *' entitled to the rents
and profits," though not to the full rents, which were
to be received and applied by the trustees as directed
by the will. The very clause which directs that
application speaks of the person ^^ entitled to the pos-
session or to the rents, issues, and profits" of the
Fazakerley estates, being under the age of twenty-one
years.
But the real question is, whether, upon the other
ground, the plaintiff is in a situation to which the
shifting clause applies. The principles upon which
that question must be determined are not new. In
every such case, as it is laid down in 2 Pcfwdl on
Devises^ p. 6. (a), '* the courts will look at the cir-*
(•) 3d edit, by Jarnutn*
S O i cumstances
Fourth Yeabs of WILLIAM IV.
9ir
equity ; bat in a court of law, and in a qaestion on the
construction of a will, it cannot be so consiidered, uniesa
the will were clearly so worded as to make the money
an equivalent for the land. Suppose the whole of the
lands had been sold, could it then be said that the ear
tates devised by the will descended to or devolved upon
the devisee? He might go into a court of equity an4
insist upon the purchase money being laid out according
to the trusts of the will ; but it could not be said that the
•
words of the will, in that case, still took e&dt as a
defimtio locij unless it be held that such words admit of
an unlimited alteration in the subject-matter. As to the
argument, that the shifting clause, if it applied only to
GilUbrafiSPs will, was insufficient from the moment when
it was drawn, there is nothing so extraordinary in that
circumstance as to call for a construction which is noi
the natural one. It has been observed that the will of
WiUiam Gillibrand contains no clause of A>rfeiture ibr
omitting to take the name and arms of that family,
whereas the framer of Col. Fazakerkt^s will appean (6
have thought that such forfeiture was imposed. But
it might be a question whether, upon such omission,
the estate under Gillibrand*s will might not be deter-
mined, at all events by the heir<^t-law; and, if the
conveyancer who drew Col. Fazakerkj/a will thought
so, he might not unnaturally insert the clause as it
now stands. Supposing CoL FazaierUy to have been
cognizant of the settlement, the defendants must go
fiuther, and say that he contemplated and knew of all
the exchanges and alterations of the property which
took place under it: otherwise, as soon as the estate
ceased to be altogether the same, by a change in any of
its parts, the divesting clause would no longer apply.
It
•
FAIAXtftLKT
Foi
Fourth Years of WILLIAM IV. 919
the testator Samuel Hamarden FazakerJey^ the plaintiff 1882.
Henry Hawardtn Fazakerley is now endtled in posses- •
sion to the estates thereby respectiyely devised. V*^
« T. Demman.
J, Parks.
J. Patteson.'*
*^ This case has been argued before my Lord Chief
Justice and my brothers James Parke^ PaUesotif and
myself, by counsel; and upon the supposition that,
according to the practice of the Court of Chancery,
monies produced by the sale of settled estates under a
power of sale and exchange^ not yet actuaUy inyested in
land, are yet to be considered as actually so inyested,
I am of opinion that, under the will and codicils of
the testator Samuel Hawarden Fazakerley^ the pluntiff
Henry Hawarden Fazakerley is not now entitled in pos-
session to the estates thereby respectiyely devised.
«• W. K Tatotoit.''
Fourth Years op WILLIAM IV. 91^1
ferredi with' a special finding of facts, the plaintiflb 1884.
obtained a rule to shew cause why the postea should ^"^^
Shaw
not be delivered to them. In Hilary term 1884 (Jo- agahut
Habtxt.
nuary 18lh), JP. Pollock, Kelly, and J. H. Lloyd shewed
cause agaipsit the rule (a), which was supported by Sur
James Scarlett and Follett. The facts Of the case and
the principal points discussed will sufficiently appear
from the judgment,, which was deliyered in the same
term {January 81st) by
Denman C. J. This was an action brought by the
assignees of Biehard Bailey, a bankru|>t, agiunst the
defendant, to recover amongst other things a qiontity
of timber. On reference to a gendeman of the bar,
the facts stated on his award are in substance as fol-
lows:—
Bailey, bemg a timber merchant at Naraidi, in
Jlpril 1827 purchased a large quantity of growing
timber of Mr. Henley, in NorfbUc, in his own name, but
in reality as agent for the defendant, who was a banker
in NortDich, and who furnished the money to pay for
the whole: that agency, however, was concealed until
the month of May 1828. Part of the timber so pur-
chased, viz., 350 loads of ash timber, was sold by
Batlcy in his own name ta one Larson, a timber
merchant at Southampton and London, by contract
dated the 19th of December 1827; and by another
contract of the same date, Langlon sold to Bailey 850
loads of oak timber then at Southampion^ to be delivered
free on board ; these contracts were by way of exchange.
About the same time Bailey also bought of Langion
other timber for money. The arbitrator found that
(a) Before Der^/nn C X, LUUedale, Taunion, and PaUum Ji.
Langton
Sbaw
agakut
HakwkTp
Fourth Years of WILLIAM IV. 9SS
and the 29th of Jlfoy 1828 (this last date being two 1884.
calendar months before the issuing of the commission),
which would operate to give the defendant, the real
owner, the benefit of the eigh^-first section of 6 6. 4.
c. 16.
The award finds that on the 22d of May 1828, the
defendant pressed Batley for payment of his banking
account, and for delivery of the timber which belonged
to him ; that Batley on that day proposed to one Blatej
the agent of the defendant, to deliver to him a quanti^
of the timber lying at Southampton^ which he had
bought on his own account, in order to make up a
deficiency in the timber belonging to the defendant,
to which proposal Elake answered that he must consult
the defendant. Nothing was done on this proposal,
nor does it appear whether it was accepted until the 2d of
June following. On the same 22d of May^ the defend-
ant wrote to Langtouj informing him that the contract
of exchange, though in Batktfs name, was in reality
entered into by him as agent for the defendant; and
Langtonj by letter dated the 23rd of Afoy, accepted
the defendant as principal. On the 24th of May the
defendant by letter directed Langion not to suflfer
Batley to take the timber under the contract of ex-
change, but expressly declined the contract as to that
which was purchased for money.
On the 7th and 9th of Junej Blake^ as agent for the
defendant, and one Bayley as agent for Batley^ met on
Netley Common^ and Bayley marked and delivered to
Blake a large quantity of timber (being the timber
now in question), and for which a receipt was given in
the following terms : — *^ Received of Mr. Bayley for
B. Batley «nd Co., timber as above stated for Sir
B.L
Fourth Years of WILLIAM IV.
925
That it did not so operate, and was not intended or
supposed so to operate, is apparent from the subsequent
formal delivery, and the receipt which was given. If
then the possession, order, and disposition of this part
of the timber continued in BcUley, with the consent of
the defendant, till after the 29th of May^ i. e. till within
two months of the issuing of the commission, it is plain
that nothing has occurred to give the defendant the
benefit of the eighty-first section of the 6 G. 4*. c. 16.,
or to prevent the operation of the seventy-second section
of that Act, whatever might have been the construction
of those sections under other circumstances. As to the
timber which belonged to Batley himself, it is sufficient to
say that no contract respecting it appears to have existed
on or before the 29th of May^ to which the subsequent
delivery on the 10th of Jime can be referred; and,
therefore, the eighty-first section of the act does not
apply to that timber. A small quantity of twenty-two
1834*
Shaw
against
Habybt.
tained, bad not ddi?ered it, ttood in a similar situation to that of a
wharfinger or other intermediate party holding goods, of which a transfer
takes place while they are in his hands ; in which case it has been held,
that the mere fact of a written order by the vendor for the delivery of the
goods being communicated to the wharfinger, and assented to by him
(even though no actual transfer be made in his books), passes the property
to the vendee: Deacon* s Bankrupt Law, 412., and the cases there cited
(Lucas V. Dorritn, 7 Tauni. 278. ; Harmon v. Anderson, 2 Camp. 245. ;
S^tear v. TraoerSf 4 Camp* 251.) : and he contended that, in this case,
for the purpose of transferring the reputed ownership of the goods from
Batiey to the defendant, the communication made by the latter to Langjton
had an effect analogous to that of the communication to the wharfinger in
the cases referred to. F* PoUock, on the same side, dted Smith ▼. 7op-
ping, 5 B. ^ Ad* 674., as shewing that there must be an actual content
of the true owner, down to the time of the bankruptcy, to constitute a
possession, order, and disposition, within 6 G* 4. c. 16. s» 72. [Touii-
ton J, There the owner had given the bankrupt notice of his dissent
before the act of bankruptcy.]
Vol. I. 3 P loads
Fourth Years of WILLIAM IV.
9S7
The crops were upon certain lands, the property of
the present plaintiff, which Edward Thorpe had oo-
cupied by his permission. The plaintiff having dis-
trained upon Edward Thorpe, the latter sued him ia
trespass. The plaintiff justified, for rent in arrear, and
Edward Thmpe disputed the tenancy, claiming in fiu^t
to have been merely the plaintiff's bailiff: he also sued
the plaintiff for work and labour as his bailiff. The
now defendant. Eyre, was attorney for Edward Thorpe in
those actions. The actions were referred, by order of
Nisi Prius, to an arbitrator, who, by the terms of the
same order, was also to say what was to be done by the
parties with respect to the land. On the 1st of June
1831 the arbitrator published his award, whereby, after
disposing of the two actions, and finding that Edward
Thorpe was tenant to the present plaintiff, he ordered
that the tenancy should cease on the delivery of the
award; and that, within one month from that time,
Edward Thorpe should deliver up possession. William
Thorpe, the landlord and present plaintiff took pos-
session on the 4th of July 1831.
The present defendant Eyre commenced an action for
work, labour, and money expended, as an attorney,
against Edward Thorpe^ on the 4th of May 1831, and
judgment by default (the judgment referred to in the
issue) was signed, and a fi. fa. sued out in the course of
the same month {Trinity term, 1 fV. 4.) ; the fi. fa. was
delivered to the sheriff on the 6th of June, and he there-
upon seized the crops in question on the same day.
On the 2d of July 1831, Edward Thojpe (who in
June 1831 had been rendered in execution in discharge
of his bail in another suit) petitioned the. Insolvent
Debtors' Court; and on the 15th of September 1881,
3 P 2 he
1894.
Tmovn
Stbb.
CASES IS THi
he was by that court rema
ordered to be then dischai
the day of filing the petitioi
to the provisional assignee ;
seat plaintiff, was afterward
the provisional assignee assij
October 1831.
On the trial of this cause,
posing to put in evidence I
actions brought by Edward
plaintiff, the defendant's cc
award, being between the 1
evidence as against Eyre, I
the learned Judge overruli
mitted the evidence. Evi
plaintiff, to shew that the
voluntary and collusive bt
THorpe. The defendant, to
sion, proved the existence c
judgment was recovered, b
torn of the country was, tha'
way-going crops upon the re
daif tenancy, and that Edwat
tenancy. The learned Jud
award determined the posse
delivery (a), that the proper
the land, and that the custc
prevent this. He also direi
the judgment was voluntar
Thorpe, and whether there
and Eyre, or whether the
(a) It leemi lo have b«cn ouumcd
the iwatd might be conuderad n taki
Fourth Years of WILLIAM IV. 929
hostile between the two; adding, that he considered 1884.
that the defendant Eure had proved the existence of
the debt on which the judgment was recovered. The ^*'*"*'
jury found for the plaintiff on both issues. The learned
Judge then asked them, whether they considered the
judgment to be collusive and fraudulent, to which they
answered in the affirmative. In Easier term 1888, the
defendant obtained a rule, calling on the plaintiff to
shew cause why a new trial should not be granted on
both issues, on the ground of the admission of improper
evidence, and of misdirection, and also on the ground
of the verdict being against evidence. In Hilary term,
1834, January 2dd,
Biggs Andrews and Gunnings shewed cause (a).
First, as to the collusiveness of the judgment. Edward
Thorpes suffering judgment by default was a voluntary
and collusive act, even at common law, or under stat.
IS Eliz, c. 5. ; and, if so, it is void as against the as-
signees. It is also void by the Insolvent Act, 7 6* 4.
c. 57. 5. 82. (b) ; for it is a voluntary making over,
within
(a) Before Lord Denman C. J., Littlelale, TaUnioHf and Patieton Jt.
(6) Which enacts, that if any prisoner who shall file his or her petitioo
for his or her discharge under this act, shall, before or after his or her
imprisonment, being in insolvent circumstances, voluntarily convey, assign,
transfer, charge, deliver or make over any estate real or personal, lecu*
rity for money, bond, bill, note, money, property, goods, or effects what-
soever, to any creditor or creditors, or to any person or persons in trust
for, or to or for the use, benefit or advantage of any creditor or crediton,
every such conveyance, assignment, transfer, charge, delivery and making
over, shall be deemed and is hereby declared to be fraudulent and void, as
against the provisional or other assignee or assignees of such prisoner
appointed under this act: Provided always, that no such conveyance,
assignment, transfer, charge, delivery or making over, shall be so deemed
fraudulent and void, unless made within three months before the com-
mencement of such imprisonment, or with the view or intention by the
8 P 3 party
Tuminc
Etbi*
990 CASES IN THE Third and
18S4. within three months of the arrest. It will be said
that the provisions of this act should be constmed
strictly, on account of the punishment imposed in
s. 48. (a) ; but that section and s« 82. are not co-ezten-
sive, as to the acts pointed at. And, indeed, statnto
against fraud, though penal, are to receive a liboil
construction: Tvyn^s case.{b) It is true that the
statute does not use the word <* judgment ;** but in
Herbert ▼• Wilcox {c\ a payment, though that woid
does not occur, was held to be within s. 32. A warrtM
of attorney, given by a party in contemplation of taking
the benefit of the Insolvent Act, has been also boldai
to be within the same section : Siarpe v. nomas, (d}
There was quite enough evidence to go to the jury;
and, if so, the direction being correct, the verdict can-
not be disturbed. [The arguments here on the weight
of the evidence are omitted.] Secondly, as to the
admissibility of the award. It is, in the first place, evi«
party lo conTeying, assigning, transferring, charging, deliTeriog, or making
Ofer, of petitioning the said Court for his or her discharge from custody
under this act.
(a) By which it is enacted, that in case it shall appear to the court, &c.
that such prisoner has fraudulently, with intent of dinoinishing the
sum to be divided among his or her creditors, or of giving an undue prdcr-
ence to any of the said creditors, discharged or concealed any debt doe to
or from the said prisoner, or made away with, charged, mortgaged or con-
cealed any part of his or her property, of what kind soever, either bcAre
or after the commencement of his or her imprisonment, then it shall snd
may be lawful for the said court &c. to adjudge that such prisoner shall
be so discharged and so entitled as aforesaid, so soon as be or she shall
have been in custody at the suit of some one or more of the persons, ss
to whose debts and claims such discharge is so adjudicated, for sncfa
period or periods, not exceeding three years in the whole, as the ssad
court &C. shall direct.
{h) 3 Rep, 82. a. (c) 6 Bing. 203,
{d) 6 Binj. 417. S. C, 4 M. ^ P. 87.
ilence
Fourth Years of WILLIAM IV. 931
dence under both issues, as a fact shewing in what cir- 1834-.
cumstances Edward Thorpe was, at, and just previously "
to, the time of the judirment by default at the suit of againu
^ Etbb.
Eyre* It is also evidence as to the property, just as
any other .deed would be, which affected to deal with
the land. It is not necessary, to make such an instru-
ment evidence on these grounds, that both the parties
to the particular action should be parties to the instru-
•
ment. Thirdly, as to the effect of the award : it de-
termined the tenancy from the delivery, and revested
the property in the present plaintiff. It will be argued
that an award is not a surrender, and therefore that the
property was not changed ; and Hunter v. Rice {a) may
be cited. In that case, an award was offered by the
plaintiff as evidence of his property in certain hay ; and
the award had directed that the hay should be delivered
up to the plaintiff, on his paying a certain sum, which
sum had been tendered and refused. And it was held,
that this award did not transfer the property. But
the arbitrator, there, had no power reserved to him
of saying specifically what was to be done with the
hay; and Lord Ellenborough distinguished between
property awarded to be transferred, and property ac-
tually transferred by the contract of the owner through
the medium of his agent. Now here, Edward Thorpe
by his own act had conferred upon the arbitrator the
full controul ; for the arbitrator was to say what should
be done with respect to the land. Besides, the party
who was to deliver possession, in Hunter v. Rice{a\
repudiated the award : here, Edward Thorpe has let the
plaintiff into possession. In Doe d. Morris v. Rosser (i),
(a) 15 East, 100. (6) 3 Eaii, U.
3 P 4? an
Etki.
Fourth Years of WILLIAM IV. 9SS
ceased to be tenant, and became bailiff. Lastly, as to 18S4.
the claim of emblements: the custom shews only a riffht '^
to the crops on the regular expiration of the tenancy agamii
at Lady-day, This case is not within the custom, which
would not have given emblements to Edward Thorpe
if he had actually surrendered at Lady-^ky. Emble-
ments are given only where the tenancy determines
by the act of God, or of a third person; the act of
a third person means only the act of one over whom
the party has no control ; and the rule properly applies
where the loss of the possession could not be fore-
seen or guarded against Thus, if a parson let land
for a year without confirmation, and die within the
year, the lessee shall have emblements; but if the par-
son lose his benefice by misconduct, he himself shall
have no emblements. ^Taunton J. This is a question
of way-going crops under a custom; it is quite a
different matter from emblements, which are by com-
mon law : Com. Dig. Biens. G. 2. Pattesofi J. It might
be argued that, although the custom might not in itself
give the crops to Edward Thorpe^ yet it might furnish
an inference that the arbitrator's intention (he not de-
claring the contrary) was, that the tenant should not
lose the crops to which he would have been entitled
under the custom.]
The Defendant in person, in support of the rule.
First, as to the direction of the learned Judge. The
jury may have been led to suppose that if Edward
Thorpe did not resist the judgment, it was voluntary and
collusive; on which principle every judgment by de-
fault would be collusive. But since there was a debt
proved, as the learned Judge himself pointed out, the
proceeding to recover it must be held to be adverse.
The
T>OIR
Etbi,
CASES IM TBi
The doctrine of (raadulent pi
the thirty-second section of 1
section is inapplicable in all i
been simply passive. It doe
Ti«ion, which is found in
to procuring goods to be
safest guide in doubtful case
and besides, this statute may
the snigect of his rights, in
law ; and, if so, it should b
admitted by Lord TenUrden
Ac common law the debtor n
of altoisegr for this debt.
itself be considered as tanti
party against whom it is rect
Gerrard Fleetwoods case(c]
chattels is good after judgn
A judgment creditor must
be is entitled to redeem a mo
and Angel v. Draper {e}, am
Marlborough (g) (second poii
principle, namely, that the c
ment, not followed by exei
the property. In Doe dem
said, that 8 judgment was
party against whom it was
ceeding in invitum, and th
by the subsequent executioi
power, though the party
(a) e G. *. c. 16. t. 3.
(e) iRtp.ni. a. SeeSAijit.^
«d. 1B34.)
(d) 5 Jdt. 200.
(g) a P. r. 191.
Fourth Years of WILLIAM IV.
9M
who had suffered the judgment Sharpe v. Thomas (a)
does not militate against this principle, for there
the party had not been merely passive; he had ex-
ecuted a warrant of attorney. It has been held that
a transfer made under apprehension of arrest is not
voluntary within . the thirty-second section of the In*
solvent Act; Corboidd y. Broadhurst (b) : and that case
shews that the word ^* voluntary" is to be interpreted
as in the Bankrupt Act. Now, under the Bankrupt
Act, it is held that a fresh consideration prevents a
payment from being voluntary : Hunt v. Mortimer (c),
Amell V. Bean, {d) But here the debt, which was esta-
blished, was in the nature of a new consideration for
the judgment. [He then proceeded to argue this from
the facts.] It is only where there is no new contract
producing the transfer, &c., that the intention of the
bankrupt is material. The learned Judge ought to have
defined the meaning of '^ voluntary " to the jury. The
merely submitting to the judgment is not a fraud
within Stat. IS Eliz, c. 5.i Holbird v. Anderson {e).
[Patteson J. No doubt a man, independently of the
Bankrupt and Insolvent Acts, is entitled to prefer one
creditor to another.]
Secondly, as to the evidence. Fraud is not to be
presumed ; but there should be distinct evidence of
fraudulent intention, as was laid down by Burrough J.
in Flook V. Jones (^), where the question was whether
bankruptcy had been contemplated. [The arguments
upon the facts here are omitted.]
1834.
Tkoktm
agahui
Eyes.
(n) 6 Bins. 417. 51 C. 4 AT. ^ P. 87.
(c) 10/?. 4: C. 44.
(e) 5 T. R. 235.
(b) I M. i Bob. 189.
(Jj 8 Bing. 87.
(g) 12 A/ooTY, 112.
Then
CASES IN THB
Then as to the award. 1
topped by the award ; Rex \
ton (A). And if it is said tl
present defendant, as claiming
Thorpe, it may be answered t
certun to every intent, and n;
ment or inference : Co. lAt. i
award, if admissible as again
determine the tenancy ; Hum
of nisi prius directed the arb
be done b^ theparties; he coi
such as the determination of
has been denied that Edreard
liable to the present plaintiff
occupation after the delivery
he would have been so liabli
other side, would make him li
award cannot, as has been t
render in law ; the transactioi
stances essential to such a cor
at common law, would have I
the fi. fa- : Anoni/mous Case, in
of Frauds, 29 Car. 2. c. S. i
that the property shall be boi
the delivery of the writ; but
(ifleenth section, it appears thi
as a protection to bon& fid
(q) 3 B. 4 ^rf. 833.
(l) ISEnK, ICa
(d) Cra. Elit 174. See Ibe cu« citi
«nd now (il lo Wheallfy v. Lane, 1
Pur. ch. iii. s. 4. p. 198. (9th cd. 183
£tbx.
Fourth Years of WILLIAM IV. 987
coDsideradon, which the present plaintiff can scarcely 1884.
be said to be by virtue of the award. Now the writ
Thokr
was tested before the date of the award. At any rate, ogomst
Edward Thorpe was entitled to emblements, for he can-
not be said to have determined the tenancy himself,
according to the authorities; Bidwer v. BuhDer{a);
1 Roll. Abr. 726., Emblements^ A. pi. 7* ; Davis v. £y-
ton {b). It is very improbable, besides, that the arbitra-
tor should have meant to deprive Edward Thorpe of the
customary way-going crops, to which he would have
been entitled if he had gone out regularly at Lady^day.
Cur. adv. vuU.
Lord Denman C. J. delivered judgment in the same
term, January 27th, as follows : —
This case, which was tried before BoUand B. at the
assizes for Buckinghamshire, arose out of proceedings
under the Interpleader Act. The Court directed two
issues: first, whether certain growing crops taken in
execution by the defendant in an action against one
Edward Thorpe were his property; secondly, whether
the judgment and execution were void against the plain-
tiff, as assignee of Edward Thorpe under the Insolvent
Act of 7 G. 4. The verdict wtos for the plaintiff on
both issues, finding that the goods did not belong to
Edward Thorpe, and that the judgment and execution
were void as against the plaintiff. The defendant
moved for a new trial, complaining that the verdict was
against evidence on the latter issue, and that an award
between the two Thorpes was improperly received in
(a) 2B.4; Aid. 470. (6) 7 Bing. 154.
evidence
Fourth Years of WILLIAM IV. 959
report, we apprehend that the jury had no sufficienieA- 1884.
dence to support their finding. "
We therefore think it desirable that both these issues a^ainu
should be submitted to another jury.
Rule absolute for a new trial*
END OF TRINITY TERM, VACATION, ETC
AN
INDEX
TO
THE PRINCIPAL MATTERS.
ACCOUNT STATED.
Assumpsit on. Attumpsit,V.
ACTION.
AVhat new cause of, in counts added
under Judge's order. Order of Judge ^ 1 .
See different titles of Action.
ADJOURNMENT.
Of Vestry, when it may be. Vatrtf, 3.
ADMINISTRATOR.
See Executor and Administrator.
ADVERSE POSSESSION.
What available as, in ejectment. Pot-
setsum,
AFFIDAVIT.
Effect of erasure in jurat. Erasure.
AGENT.
1. When act of agent abroad transfers
apparent possession. Bankrupt^ ii. 3.
2. When letters to a^ent are evidence
against third parties. Bankrupt^ ii. 3.
3. What evidence fixes a corporation
with the tortious acts of its agent. Cor^
poration.
Vol. I.
AGREEMENT.
1. What joint, and what several.
By a memorandum of agreement be-
tween the trustees of a turnpike-road and
N.^ the trustees agreed to let, and N. to
take, the tolls for a year, at a certain
rent ; and iST., as renter of the tolls, and
D., as his surety, severally promised the
trustees that N, should pay the rent at
the appointed times, and perform certain
conditions annexed to the agreement :
Held, that the contract was several, and
not joint, and that the trustees could not
sue the parties jointly for arrears of the
rent. Lee v. Nixon, SOI.
2. Interpretation of.
A debtor gave a cognovit for the pay-i
ment of his debt by instalments ot 5/.,
with a proviso, that on default made in
paying any instalment, judgment might
be signed and execution issue for the
whole. By agreement of even date with
the co^ovit, a third party undertook
that, within seven days after any notice
given to him for that purpose, the debtor
should attend at a certain place, so that,
in case of anv of the instalments not
being previously discharged, a ca. sa., to
be issued on the judgment to be entered
up on the cognovit, might be duly exe-
cuted ; and in default of the debtor's
appearing at the time and place stipu-
lated, the surety undertook to pay the
debt and costs. The first instalment being
unpaid, and notice given, the debtor ap-
3 Q peared
942
AGREEMENT.
peared at the proper time and place, but
was dismissed on promising to pay the 5/.
in a few days, which he did :
Held, that the agreement of the surety
was satisfied by his having once rendered
the debtor to be taken in execution on
the cognovit ; and that he was not bound
to produce him again upon notice, on
default as to a subsequent instalment.
Turner v. P^ne, 34.
3. To repair. Landlord and Tenant, 1.
4. How far agreement of executor de
son tort binding on him. Executor and
Adninuiratory 4.
5. What rescinds contract. Hirmg^S,
Auumpsit^ IV., 1 .
6. When one contract arises upon
rescinding another.
Defen&nt agreed with plaintiff's father
to receive plaintiff (who was a minor)
into his service on trial, and to take him
as apprentice if approved of. Plaintiff
went into the service, and worked for
defendant nearly two years. Afler seve-
ral applications made during that time by
the father, defendant told the father that
plaintiff should serve out the two years,
and then be bound, the father paying
defendant loL This was agreed to; but
defendant shortly afler quarrelled with
Elaintifi^ and told him to go home about
is business. Plaintiff went home ; and
on the father applying to defendant for
an explanation, tne latter told him to go
and do his worst. The father then caused
a letter to be written to defendant by
his attorney, requiring him either to take
plaintiff as his apprentice, or recompense
nim for his work; but no satisfactory
answer was given, and plaintiff, by his
next friend, brought an action to recover
compensation for his services.
The Judge put it to the jury, on these
facts, whether or not the defendant's
conduct was such as warranted the father
in considering the contract for an ap-
prenticeship as rescinded ; and he fur-
ther stated, that if they thought it was,
they were to give plaintiff such compens-
ation for his work as they thought proper.
The jury found a verdict for the plaintiff,
with damages by way of compensation
for his services ;
Held, that the direction was right,
and the verdict not to be disturbed,
Phillip* V. Jones, 333.
7. Effect of bankruptcy on contract of
hiring, Hiring. 3.
H, What questions may be put respect-
ANNUITY.
ing an agreement in writing, not pro-
duced. Evidence, V. 4.
AMENDMENT.
I. At Nisi Prius, under sL 3 & 4 fF. 4.
C.42.
1. Declaration stated that the defend-
ants, in consideration that the plaintifi
would supply E, with beer, undertook
and promised the plaintiff to fmf tieu
the amount of the beer so supplied. An-
other count stated an undertaking, on the
same consideration, to be accountable and
to pay, &c. The proof was, that the de-
fendants (by letter) undertook to gaoraa-
tee to the plaintiffi the anaount supplied.
Held, that, under 3 &4 fr.4.c.48.«.f3.,
the Judge at Nisi Prius might amend the
record by substituting the word " gua>
rantee" for ** pay" in the first count.
Hanbury v. EUa, 61.
2. \Vhether to be discussed in baoL
Ejectment, 2.
8. Of particulars of demand. ifsfaoMfd,
III.
II. Of ca. sa. Arrest, 2.
III. Upon error, of judgment of inferior
court. Certificaie. Inferior Cour^, II. 1.
IV. Of warrant of committal, under
St. 3& 4 ^.4.c.53. Statute, I. 55.
ANCIENT BUILDINGS.
See Case, Action on.
ANCIENT DEMESNE.
Exemption of tenants in ancient de-
mesne from tolls. Thll, 3.
ANNUITY.
1. When presumed to be usurious.
Usurt/.
2. When it shews a charge on a bene-
fice. Statute, I. 2.
5. When rateable to the poor. Poor,
I. 1.
4. When annuitant must make demand
before entry.
Lands were devised in fee, charged
with an annuity ; and power was given to
the annuitant to distrain, if the annuity
were in arrear for twenty days after the
day of payment, being lawfully demanded;
power was also given, if it should be in
arrear for forty days, to enter and eojov
the lands, and to take the profits, until
the annuitant should be thereby paid and
ANNUITY.
satisfied all the arrears, vnth all costs, or
until the person entitled to immediate
possession should pay all the arrears and
costs : Held, that upon the annuity being
forty days in arrear, the annuitant might
bring ejectment, without making any d&>
roand. Doe d, BUu$ v. HorUey^ 766,
APPARENT OWNERSHIP.
1. By bankrupt. Bankrupt, II,
2. By insolvent debtor. Statute. I. 27.
(1.).
APPEAL.
1. Against award under inclosure act,
when to be made.
An inclosure act directed, that the
commissioner thereby appointed should
by his award, or by tome previotu writing
to be annexed thereto, ascertain the quan-
tity of wheat equal to the annual value of
the tithes in the parish of H^., and should
afterwards determine the value of such
wheat in money, and charge and appor-
tion the amount on the lands and tene-
ments in W., which sum was to be paid
to the rector quarterly, the first payment
to be on the 25th of March next after
the execution of the award, or such ear-
lier day as the commissioner by his award
or by Much previous writing should ap-
point ; and the tithes were to cease from
the apportionment of such rent, or at
such other time as the commissioner by
any writing should appoint. The act also
directed, that if any person should think
himself aggrieved by any thing done in
pursuance thereof, he might appeal to the
sessions within four calendar months next
after the cause of complaint should have
arisen.
The commissioner, by writing dated 3d
October 1832, fixed the corn rent in the
proportions stated in a schedule which
was annexed, and appointed the payments
to besin from 25th December then next,
and the tithes to cease from 29th Septem-
ber then last His award was not made
till January 1833. The rector appealed
at the Easter sessions, April 9th 1833, on
the ground that his equivalent for the
tithes was assessed too low :
Held, that the previous writing of the
commissioner was operative before the
making of the award ; that the cause of
complaint arose on the execution of such
writing, and, therefore, that the appeal
was too late. The King v. Nockolds, 245.
See Notice, 3.
ARBITRATOR.
943
3. How far right of appeal against poor
rate supersedes replevin for distress for the
rate. Distress, 3.
3. Mandamus to quarter sessions to
hear appeal.
Where the quarter sessions have dis-
missed an appeal upon a point of practice,
subject to a case, whicn the applicants
for the case have not brought up, this
Court will not, at their instance, grant a
mandamus to enter continuances and hear
the appeal. The King v. The Justices of
the West Riding ( Warmsworth v. DonctU'
ter), 606,
4. Appeal against decree in chancery.
Defendant gave a cognovit, not to be
enforced " until after the final bearing of
a chancery suit instituted by the defendant
against the plaintiff and the final decree
or order to be pronounced thereon :*' and
in the event of the decree being in favour
of plainti£^ iudgment was to be entered
up in accordance with the decree, and de-
fendant was not. to impede the judgment
by proceedings at law or equity, except as
aforesaid. The decree having been given
in favour of plaintiff, defendant appealed :
Held, that judgment could not be entered
up on the cognovit till the appeal was de>
termined. Jones v. Reynokts, 584.
APPOINTMENT.
1. What is execution of power of ap-
pointment. Power, 1. Copyhold, 1.
8. Limitation of uses of surrender of
copyhold to appointment. Copyhold^ 1.
APPRENTICE.
1. Settlement by apprenticeship. Poor,
2. Effect of rescinding contract of ap-
prenticeship. Agreement, 6.
APPURTENANT.
When free warren shall be. Warren,
ARBITRATOR.
1. When directors of savings bank
must appoint arbitrator. Savings Bank,
1, 2.
2. Effect of award.
An action between the owner of land
and a party holdine by his permission,
but claiming to hold as baili£^and not as
tenant, was referred to an arbitrator,
who was to say what was to be done
3 Q 2 by
944 ARfflTRATOIL
bv the partiea with recpect to the laod.
He Bwarded that the hotctine was as
tennni, that the tenancy should cease on
ibe delivery of the award, and that pos-
letsion of the land should be delivered
up to the owner in one monLh after.
On an iisue between the landlord
and an execution creditor of the tenant,
whether the cropa on the land nl a cer-
tain time were the property of the party
to found to have been tenant, the award
was held to be admissible in evidence on
the part of the landlord.
Held also, that the award did not of
itKlf change the property :
Held further, that if it had deter*
mined the tenancy, the tenant would
not have been entitled to way-going
crops, although there was a custom of
the country that the tenant, at the re-
gular expiration of a Lady-dag tenancy,
•hould bare them, and although the te-
t commenced holding on Ladif-iia]/.
Ante, a. Poit, 4.
w far award conclusive as to da-
mages, when action is not oD the award.
Covenantor and covenantee submitted
the amount of damages accruing from a
breach of covenant, to an arbitrator:
Held, that in an action on ihe covenant,
the arbitrator's award was conclusive as to
the amount of damages, unless the award
itself could be impeached. iVhilehead v.
Taltfrtaii, 491.
ARREST.
1, Consequence of irregularity after
Where plaintiff arrests defendant on a
capias in an action on promises, and de-
clares in covenant, the Court, since the
act e ir.4. C.39., will set aside the de-
claration, but will not discharge the
bail. Ward V . Tummon, S13.
3. Discharge from arrest for variance
between judgment and process.
Plaintiff having recovered 33/., arrested
the defendant on a ca. sa. for 54/. The
Court refused to discharge the defendant
out of custody, and allowed the process
to be amended by inserting the true sum,
it not being shewn that the variance was
intentional, or that the defendant was
damnilied. ArCormack v. Melton, 331,
3. Discharge from arrest for variance
between capias and copy.
I.IL
The copy of a o^iiai ddivB
party arrested, under S fV. 4. c.
IB insufficient, if any word be t
ai to vary from the orif^nal in
Ai if imddetex be written foi
lejr. Hodglmuoit r. HodgHKtom
4. Discharge from arrest ud
48 G.3. c. 133. Slalaie, I. 15.
5. Frivilc^ from arretC
A defendant who has been in
on a chaige of felony, and is
and discharged, is not ptirile]
arrest on his return borne:
Court will not relieve hint frooi
rest, if it does not appear tha
prehension on the criminal cbai
contrivance to get him into n
the civil suit. Goodtm t. Lott
ARREST OP JUDCMEl
Btit Jtuigment, I.
Discharge of penon in exec
damages in action of assault. SiM
ASSIGNEE.
1. Ofbankrupt. Bantnpt.
3. Of insolvent debtor. Slat
3. Ofcopyright of dramatic pt
shall be. Slalide, I. 33.
4. Of reversion, when liable
1. What assignment is act
rnptcy. Banlcnipl, I.
2. What assii;nnient destroy!
ownership of bankrupt. Ban.
I. 2, 3, 4.
3. What assignment destroyi
ownership of insolvent debtor.
37. { I).
ASSUMPSIT.
I. What shall i
11. What a good conaideratit
Where an action has been coi
for an unliquidated demand, paj
the defendant of an agreed sui
charge of such demaiH^ i* a g
ASSUMPSIT, m. IV.
sideration for a promise by the plaintiff*
to stay proceedings and pay his own
costs.
And per Litiledale J., even in the case
of a liquidated demand, the same pro-
mise made in consideration of the pay-
ment of such demand, may be enforced
in an action of assumpsit, where the
agreement has been such that the Court
would stay proceedings if the plaintiff*
attempted to go on. Wilkinson v.
Byers^ 106.
III. Goods sold.
Plaintiff* declared for goods sold and
on an account stated. The particular
delivered with the declaration was, ^ to
a beast sold and delivered, 13/. 10«." The
only evidence was, that the plaintiff* ad-
mitted in conversation with a third per-
son, not shewn to be an agent of the
plaintiff, that he owed the latter 13/. \0s.\
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 shewn 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 costs. JBreckon v.
Smith, 488.
IV. Money had and received.
1. To recover money paid on misre-
presentation.
If a party be induced to purchase an
article by fraudulent misrepresentations
of the seller respecting it, and, after dis-
covering the fraud, continue to deal with
the article as his own, he cannot recover
back the money from the seller.
Per Lord Denman C. J., Litiledale J.,
and Patteson J., the right to repudiate
the contract is not afterwards revived by
the discovery of another incident in the
same fraud. Campbell v. Flemings 40.
2. On a transaction between defend-
ant and a third party.
The plaintiff*, an attorney, agreed, for
a certain consideration, to convey to the
defendant an estate (which the latter had
purchased upon the terms that the vendor
and vendee should pay for the convey-
ance in equal proportions), and the plain-
tiff* also agreed that if the vendor objected
to pay any expenses, he, the plaintiff)
would not apply to the defendant for any
further remuneration. The conveyance
was made by the plaintiff! The defendant
agreed with the vendor, that if the ven-
dor Would pay the whple expense of
ATTORNEY.
945
another transaction between himself and
the defendant, he, the vendor, should
not pay any of the expenses of the above
conveyance: Held, that so much of
those expenses as the defendant (as be-
tween himself and the vendor) had been
allowed to set off* against his share of
liability on the other transaction, was
money had and received to the plaintifi'*8
use, and might be recovered by him, be-
sides the consideration originally agreed
upon for making the conveyance. Noy
V. Reynolds^ 159.
V. Account stated. Anii, III.
See Agreement.
ATTESTATION.
Evidence^ III.
ATTORNEY.
1. Confidential communication to.
Evidence, I.
2. What attorney may include in his
bill of costs.
A party attached for contempt in an
ecclesiastical court, employed a common
law attorney to procure his discharge.
At the time of doing so, he ascertained,
in company with the attorney, what
the costs in the ecclesiastical court would
probably amount to, and authorised him
to employ a proctor, and to pay what
might be necessary. The attorney em-
ployed a proctor, who did the business
required, and settled with the adverse
proctor, whose charges, on that occasion,
were objected to and reduced. The at-
torney paid the bill of the proctor re-
tained by him, having first examined the
charges and had them inspected (though
not regularly taxed) by the taxing officer
of the ecclesiastical court, who thought
them reasonable. He afterwards delivered
his own bill to the client, containing items
amounting to 9/. for his own charges, and
1 4/. for the proctor's and other charges
in the ecclesiastical court. The Master
taxed off 2/. from the former items, but
declined taxing the latter; and he in-
cluded the whole in his allocatur :
Held, first, that the costs in the eccle-
siastical court were properly included in
the bill as disbursements by the attorney;
secondly, that, under the circumstances,
it was not necessary to refer them back
to the Master for taxation. Franklin v«
FeatherttonAaughf 475.
3 Q 5 $. What
BANKRUPT, 11. 1-
947
petty to another party, of which transac-
tion the plaintiff was not proved to have
any knowledge. The mortgagor's lessee
took possession, and put his name upon
the barges. These, and a quantity of
coal, the produce of the collieries, were
afterwards seized, under a canal act, for
rates due from the mortgagor's lessee,
and sold. The administrator brought
trover for the goods seized.
Before the seizure, the mortgagor's
lessee became bankrupt : Held, that the
goods seized were not in his possession
by the consent of the true owner, within
6 G. 4. L\ 16. «. 7S.; for that the consent
of the mortgagor, who was merely per-
mitted by the true owner to retain pos-
session, did not satisfy the terms of the
statute. Frcuer v. Swan$ea Canal Com-
pantf^ 354.
2. To assumpsit by two plaintiffs, for
goods sold, &C., defendant pleaded the
bankruptcy of one. Replication, that
before the bankruptcy, the bankrupt
plaintiff assigned to the other all his in-
terest in the debt, and that the bankrupt
now sued only as trustee for his co-plain-
tiff.
The Court was of opinion that the
replication was bad, for not stating that
the debtor had had notice of the supposed
assignment, although the defendant had
pleaded over without alleging the want
of notice. But the plaintiff had leave
to amend. Dean v. James, 809.
.7. jF., a merchant at Liverpool, used to
consign goods to his agent at Bahia, in
SotUh America, for sale, and to draw bills
upon the credit of, and against such
consignments, in proportion to their
amount, to be paid by the agent out of
the proceeds. Some bills so drawn, and
negotiated by theindorsementsof a house
in London, with which F. corresponded,
were refused acceptance by the agent.
The London house thereupon requested
F, to write to his agents at BMa, with
orders, *' that in case he did not pay F»s
drafts, he should immediately hand over
such property as he might have of ^.'s,
of. an equivalent value to the bills not
Kaid by him, to the agent of the London
ouse at Bahia" F, replied, that he
would write to his agent, agreeably to
these injunctions, directing him to hand
over to the agent of the London house,
" property of jP. in his hands, to cover
the amount of bills that eventually mij^t
not be paid." Afterwards, and before
the letter from J^. to his agent reached
Bahia, F, became bankrupt. J^.'s agent
subsequently handed over to the London
house goods consigned to him as above
mentioned, to an amount less than that
of the bills unpaid :
Held, that there was no legal or equit-
able assignment of those soods to the
London house before the bankruptcy, and
that on that event the property in them
vested in the assignees.
lu an action of trover brought by the
assignees for the goods, in which the
above facts were proved, the defendants
also offered in evidence the letter written
by F. to his agent at Bahia^ (after pro-
mising the London house to write, as
above stated,) in which he ordered that
Earty to hand over all the property which
e held on ^.'s account, to the agent of
the London house.
Quofre, Whether the letter was ad-
missible; but held that, if it were, the
decision ought still to be the same. Bum
V. Carvalho^ 883.
4. In trover by assignees for timber,
an arbitrator to whom the cause was re-
ferred, found that the bankrupt, before
his bankruptcy, had on behalf of an un-
named principal (the defendant) taken in
exchange a quantity of timber, to be
delivered free on board; and that he
had at the same time bought other timber
of the same party on his own account ;
that the timber was delivered to the
bankrupt, and lay, till after the bank-
ruptcy, on a common, mixed with other
timber of the bankrupt, and in hb actual
possession ; that the defendant, after the
bankruptcy, but more than two months
before the commission issued, wrote to
the vendor, stating himself to be the
principal, adopting the contract as to
the goods taken in exchange (but no
others), and directing that the bankrupt
should not be suffered to take them ; and
that the vendor accepted him as pur-
chaser accordingly. 'Phe arbitrator also
found that, before the commencement of
the two months, the defendant had re-
quired the bankrupt to deliver the timber
belonging to him (defendant), and that
the bankrupt had proposed to make up
a deficiency in the quantity, by delivering
some of his own timber; that no contract
of sale was made as to the latter, nor did
any thins further pass respecting the
timber tm within two months before
the commisftion, when the bankrupt made
3 Q 4 a formal
BILL OF EXCHANGE, 3, 4.
CANAL ACT.
949
defendant cannot put the plaintiff to
prove consideration, by giving primft
facie evidence to shew the want of it,
merely as between the drawer and his
indorsee, and each subsequent indorser
and indorsee; but he must also shew the
want of consideration as between him-
self and the drawer. And for this pur-
pose, it is not enough to prove that the
drawer, on the day before the maturity
of the bill, procured all the indorsements
to be made without consideration, in
order that the action might be broueht
by an indorsee, on the understanding that
the money, when recovered, should be
divided between one of the indorsees
and the drawer. Whittaker v. Edmunds^
658.
5. What payment answers plea of Sta-
tute of Limitations. Statute, L 7. (2).
4. When promissory note is pleaded
as set off, what replication admits. Plead'
ins* Civil, VIL
BISHOP.
Whether he must be made a party to
a rule to set aside sequestration issued by
him. Statute, L 27. (2.)
BOND.
How far admission of condition on
record is estoppel. Estoppel, 1.
BUILDING ACT.
SceiS/o/tt/^, H. 4. (1.).
BUILDINGS, ANCIENT.
See Cate^ Actum on,
CANAL ACT.
1. Interpretation of 32 G. 3. c, 102.
(Monmouthshire Canal).
A canal company were authorized, by
statute, to demand and sue for certain
tolls upon the carriage of goods, and to
distrain any carriage or goods in respect
of which any such tolls ought to be paid,
and to detain the same until payment
made of such tolls, and of all arrears of
the same then due from the owner of
such carriage or goods ; and in case such
distress should not be redeemed within
five days, to appraise and sell the same,
as in the case of adistrest fof rent. Tbey
were not expressly authorised to levy
any toll upon carriages :
Held, that trams could not be dis-
trdned for arrears of tolls due from the
owners for goods carried in them, if they
were not carrying goods of such owners
at the time of the distress.
The statute enacted, that any action,
brought for any thing done in tnirsuance
of the act, or in execution of tne powers
and authorities granted by it, should be
brought within six calendar months next
after the fact committed :
Held, first, that such a distress was a
thing done in pursuance of the act.
But, held, secondly, that where an
owner of trams let them to a third per-
son, and during such letting they were
illegally distrained for arrears due from
the person hiring, while not carryins
such person's goods, and afterwards sold^
such owner might sue within six months
from the time of sale, on a count com*
plaining of injury done to his rever*
sionar}' interest by the seizure and sale.
Jenkins v. Cooke, 572.
2. Interpretation of 34 G.8, c, 109.
(Swansea Canal).
A canal company were empowered, by
statute, to impose rates of toll for car-
riage of goods on the canal, and to fix
the places of payment, and in case of
non-payment to seize the goods in re«
spect of which such rates ought to have
been paid, or any |)art thereof, and the
boat laden therewith, and detain the
same till payment of such rates, and also
of all arrears of the said rates, due from
the owner of such boat; and if such
eoods were not redeemed within seven
days, to sell the same, as in cases of dis-
tress for rent : Held, that this clause did
not empower the company to distrain
goods when no longer upon the canal, or
to sell the boat.
The act also directed, that all actions
for any thing done in pursuance thereof
should be commenced within six months
next after the fact committed, or, in case
of a continuation of damases, then within
six months next after the doins such
dama^ should have ceased. CoTlierieSi
machinery, barges, &c. had been mort-
gaged bv C. to jP., to secure the repay*
ment of certain monies, with a proviso,
that in case of defiiult JF*. should stand
possessed of all the mortgaged propertVi
in trust to levy out of the same so much
as should be due to him. J^. died| and
the
CERTIFICATE.
CERTIORARI, IL, 9, 951
of that Court. The judges of the court
of record were the mayor and bailiffi> of
the town, and they were assisted, at the
trial, by the recorder, who was not a
judge of the court of record. A certifi-
cate was given, pursuant to the act, but
bf the recorder alone. Held, that this
did not satisfy the act.
On error brought, the entry on the
proceedings sent up to this Court was,
simply, that it appeared by the certificate
of the court of record, that, &c. (without
stating that the certificate was made in
open court, or by whom it was made,
except as above): but it was suggested
on affidavit, that the certificate had really
been made in open court by the re-
corder; that the proceedings sent up
were merely a transcript of the record
which remained below ; and that the
record of the Court below had been
amended there, by entering the certifi-
cate as having been made by the judges
who tried the cause, in open court ; and it
was moved that this Court should amend
the proceedings in conformity with the
alteration said to have been made below.
This Court refused the amendment; first,
because they could not take notice that
they had only a transcript before them,
so as to be at liberty to amend in con-
formity with the record below ; secondly,
because, if the document before them were
to be considered as a record, they had
no power to make the amendment, it
being contrary to the fact as to the per-
sons certifying. France v. Parry, 615.
CERTIORARI.
L At what time to be applied for.
A certiorari cannot be applied for after
the expiration of six calendar months
from the making of the order, &c., to
be removed, whatever may have been
the cause of delay. 7%tf King v. Blox'
am J 386.
il. When barred.
1 . By Stat. 13 G.5. c, 78. Statute, I. 1 3.
2. By local act.
A river navigation act provided that
no proceeding to be taken in pursuance
thereof should be removed by certiorari.
By a subsequent statute for improving
the same navigation, it was enacted, that
all the powers, provisions, exemptions,
rules, remedies, regulations, penalties,
forfeitures, articles, matters, and things
whatsoever, contained in the former act,
should be in full force, and extend to
and be applied and enforced, as to that
act and the matters therein contained, in
as fill! a manner to all intents and pur*
poses as if therein re-enacted: Held, that
these were sufficient words to take awaj
the certiorari on proceedings under the
latter act.
Bv the latter act it was provided, that
if the undertakers of toe nav^tion
could not agree with any parties wr the
purchase of lands, a jury sbotdd be
summoned to the quarter sessions, who
should assess the purchas&>nioney to be
paid, and also what other separate and
distinct sums should be paid for damages
before then sustained, or for the fuiur€
temporary or perpetual contmwmce of any
recurring damases which should have
been occasioned by putting the act in
execution; the purchase-money and da*
mages to be assessed separately; and that
the justices in sessions should give judg*
ment for such purchase-money or re-
compense as should be assessecT by soch
jury; which verdict and judgment should
be binding on all persons. By a separate
clause it was provided that the under^
takers should not be obliged to receive
any complaint of damage, unless notice
were given them within six months after
the damage. A jury summoned to assess
compensation as above mentioned, found
a verdict of 6/. for value of the land
taken; present damages, nothing; future
damages, S800/. The judgment entered
up recited that the jury had assessed 6/.
for purchase-money, and no separate or
distinct sum for damages before then sus-
tained by the execution of the act; and
that they had assessed the dbtinct sum
to be paid for the future temporary or
perpetual continuance of any recurring
damages which should be occasioned bj
putting the act in execution, at S800/.;
and it was adjudged that the undertakers
should forthwith pay the 6/.^ and the
2800/. A mandamus being moved for to
the justices, to amend the judgment by
striking out the award of S800/., it being
contended that the verdict could not
legally take effect as ao award of present
damages under the act, none hating yet
been sustained : Held, that as the statute
did not allow a removal of the proceed-
ings by certiorari, the Court could not
indirectly bring them under review by a
mandamus.
The land laken was ground upon which
the
COSOUDATION RULE.
CORPORATION*
955
CONSOLIDATION RULE IN IN-
SURANCE CAUSES.
Where a plaintiff brings several actions
upon the same policj^ of assurance,
against several unoerwriters, the Court
will not, without the consent of the
plaintiff) make a consolidation rule upon
the terms of both plaintiff and defenoant
being^bound in all the actions by the
event of one. Doyle v. Anderson, and
Doyle V. Stewart, 635*
CONSPIRACY.
1. What is indictable as a conspiracy.
An indictment does not lie for con-
spiring merely to exonerate one parish
from the charge of a pauper, and to
throw it on another.
Nor for conspiring to cause a male
pauper to marry a female pauper, for that
purpose; it not being stated that the
conspiracy was to effect such marriage by
force, threat, or fraud, or that it was so
effected in pursuance of the conspiracy.
It is unnecessary to allege overt acts,
if the indictment charge what is in itself
an unlawful conspiracy; but if not, the
indictment must shew some illegal act
done in pursuance of the conspiracy.
Persuading a male pauper settled in
one parish to marry a female pauper
settled in and chargeable to another, is
not such an overt act.
To allege in an indictment that an un-
married woman in a parish was with
child, is not equivalent to an allegation
that she was chargeable to such parish.
Per Lord Denrnan C. J. and Taunton J.
QtuFre, whether an allegation that de-
fendants conspired together /or thepur^
pote of exonerating, &c, is equivalent to
an allegation that they conspired to
exonerate ? Per WilUanu J. Rex v.
Seward, 706.
2. What to be alleged in the indict-
ment. Ant^, 1.
3. General count for, what sufficient.
Sialutc, IV.
CONTEMPT.
In disobeying subpcena. Statute,!. 14.
Statute, IV.
CONTINGENCY.
Contingent interest created by will.
Baron and Feme^ S.
CONTRACT.
See Agreement^ Apprentice, Ainrnpnt^
Hiring.
CONVEYANCE.
1. What is a conveyance of firce ¥rar«
ren in gross, or appurtenant. fVarren.
S. What conveyance is an act of bank-
ruptcy. Bankrupt, I.
conviction;
I. Of forcible entry and detainer. Sta^
tute,l. 1.
S. Recital of conviction, in warrant of
committal, under st. 3 & 4 W, 4. e. S5»
Statute, I. 35.
3. Under st. 3.&4W. 4. e. 55. Sta-
tute, I. 36.
COPY OF CAPIAS.
What insufficient. Arrett, 3.
COPYHOLD.
1. Limitation of uses on surrenderor
copyhold.
Copyholder, in fee, surrenders to such
uses as A. shall appoint, and in de&ult of,
and until such appointment, to the use of
A. in fee. A., without having been ad-
mitted, appoints. The appointment is a
good execution of the power, and en-
titles the appointee to be admitted as
surrenderee of the copyholder, who con-
tinues tenant to the lord till some one is
admitted under his surrender. Rex v.
The Lord of the Manor of Oundle, S85.
2. When a copyhold confers a settle*
ment without admittance. Poor, II.
3. Evidence of surrender. Emdencc,
VUI.
COPYRIGHT.
Who is assignee of copyright of dra-
matic pieces. Statute, 1. 33.
CORPORATION.
How far liable for acts of servants.
A corporation is liable in tort for the
tortious act of its agent, though not ap-
pointed by seal, if such act 1^ an orcu-
nary
DAMAGES.
DISTRESS, 1—5^
955
DAMAGES.
1. Special, in slander. Slander^ 3, 4.
S. What recoverable, upon insurance.
Inturance, 3,
3, By way of compensation under local
ac^ Certiorari, 11. 2. Cotts, 3. Sta-
tute, 11. 4.
4. How fixed by award. Arbitrator, 4,
DATE.
Of fine, how it affects proclamations.
Une.
DEBT.
What is a debt, within act establishing
a local court. Local Churt.
DEBTORS.
1. Discharge of debtors in execution
upon small debts. Statute, I. 15.
2. Discharge of debtors for irregularity
in proceedings. Arrest, 2, 3. 5.
DECLARATION.
Consequence of variance between de-
claration and capias. Arrest, 1.
DECLARATIONS.
When evidence. Evidence^ II.
DECREE IN CHANCERY.
When said to be final. Appeal, 4.
DEGREE.
1. How proved. Evidence, VII. 1.;
Slander, 1.
2. Effect of a Scotch degree as to
right of practising medicine in England.
Slander , 1.
DELIVERY OF GOODS.
What is. Bankrupt, II. 4.
DEMAND.
By annuitant, when necessary. An-
nuiti/f 4.
DEMISE IN EJECTMENT.
What evidence will support a joint
demise. Ejectment, 2.
DEMURRER.
To return to mandamus. Mandamut^A.
DETAINER, FORCIBLE.
Proceedings on. Statute, I. 1.
DEVISE.
See WiU.,
.DEVOLVE.
Meaning of the word in a will. Truit,
Shifting.
DIPLOMA.
1. How proved. Evidence, VII. jSI!ffii-
der, 1.
2. Effect of a Scotch diploma, SUm*
der, 1.
DISCHARGE.
1. Of Debtors. Arrest, 8, 5, 4, 5.
Statute, I. 16.
2. Of bail. Arrest, 1. Bail, 1, 2.
3. Of ship's cargo. Insurance, 2.
DISTRESS.
1. What a landlord may distrain.
A tenant's growing crops, taken in ex-
ecution and sold, and remaining on the
premises a reasonable time for the pur-
pose of beine reaped, are not distrainable
by the landlord for rent become due
afler the taking in execution.
Such crops having been so taken, sold,
and left on the premises, and the arrears
of rent pud, pursuant to stat. 8 ifmt.c. 14.
«. 1., the landlord cannot distrain them
for rent subseauently due, on the ground
that the purcnaser has not entered into
the agreement with the sheriff' (to use and
expend the produce in a proper manner),
directed by stat. 56 G, 5. c, 50. «. J. Nor
is he entitled to presume, from the ab-
sence of such agreement, that the straw
of such crops was sold for the purpose of
being carried off* the land, contrary to
sect. 1. Wri^t v. Dewes, 641.
2. Distress Tor rent charge, upon whom.
Rent Charge, 2.
3. Distress for poor rates, where ground
of replevin.
If a party is assessed to the poor rate
for premises which he occupies, and
other
ERROR, a, s.
EVIDENCE, II. 3.— III. 1 . 957
returned and annexed thereto. Such
defect is not cured by the stat. HI Jac. 1.
c. 13. Rogers v. Smiih, 772.
2. On error from inferior court, what
the court above will amend. Certificate,
Inferior Courts II. 1.
5. When interest is allowable on error
brought. Statute, L 34.(5).
ESTOPPEL.
1. Estoppel by admission on record.
In an action upon a bond, appearing
upon oyer to be conditioned for the pay-
ment of the rent of certain premises, re-
cited in the condition to be demised by
indenture at a certain specific rent, as by
the said indenture, &c., the defendant
cannot plead that the indenture men-
tioned in the condition was an indenture
by which a certain rent, less in amount
than the rent mentioned in the condition,
was reserved) and that such less rent has
been paid. Lainson v. Tremere^ 792.
2. Where one may impeach the title
of the party through whom he claims.
Evidence y XIII.
EVIDENCE.
I. Confidential communication.
If an attorney of a person not a party
to an action, having refused at the trial
to produce a deed belonging to his client,
be directed by the Judge to give parol
evidence of the contents, the parties to
the action have no right to object to such
evidence going to the jury, even upon
the supposition that the Judge acted
erroneously. Manton v, Downet,3l.
II. Declarations.
1 . Declarations respecting the subject-
matter of a cause, by a person who, at
the time of making them, had the same
interest in such matter as one of the par-
tics now has, are admissible in evidence
against that party, though the maker of
them is alive, and might be called as a
witness. Woolway v. Route, 114.
2. A party havmg, by a voluntary set-
tlement after marriage, conveyed away
his interest in an estate, afterwards exe-
cuted a mortgage of the same estate.
The mortgagee, representing himself as
a bon& fide purchaser for value, claimed
to treat the prior settlement as void,
under stat. 27 Eliz. c. 4.: Held, that
declarations, or admissions, implied or
express, of the mortgagor, made after he
Vol. I.
had parted with his interest by the settle*
ment, were not admissible evidence on
behalf of the mortgagee (af^er the death
of the mortgagor), to shew that money
had actually been advanced upon the
mortgage. Doe dem, Sweetland v. Web^
ber, 735.
8. In an action brought to recover back
notes delivered to the defendant by the
plaintiff) the plaintiff proved that the de*
fendant, who was executor of ^., having
questioned the plaintiff as to her having
possession of some property belonging to
W,^ the plaintiff handed the notes over
to the defendant, stating that W. had
given tiiem to her, the plaintiff, before
her death. The defendant did not deny
the statement, but had no means of know
ing its truth or falsehood. There was
contradictory evidence as to whether the
defendant said that he would keep the
notes, or that he would keep them to be
returned to the plaintiff on request. The
notes had been seen in the p]aintiff*'8 pos*
session before fF.'s death. Other evidence
was given, as to the fairness of the con*
duct of the plaintiff respecting W*s pro-
perty in general :
Held, that the declaration made by the
plaintiff might go to the jury as evidence
m her favour, on the ground (though very
slight) of acquiescence in its truth by the
defendant, and also as being a part of
the res gestee on the occasion of the
defendant's obtaining the notes, and as
giving a character to the whole conduct
of the plaintiff. Hayiiep v. Gymer, 162,
III. Attestation.
1 . Evidence of attesting witness of will|
when dispensed with.
A bill was filed in Chancery against
several defendants, whereupon an issue
of devisavit vel non was ordered, in which
the defendants in Chancery were plain*
tiffs, and the plaintiff in Chancery defend-*
ant, respecting a will of ilf., mentioned
in the proceedings, devising real property.
The issue was found in the amrmative,
and the bill dismissed. At the trial of
the issue, one of the three attesting wit*
nesses to the will swore to its execution.
The plaintiff in Chancery afterwards
brought ejectment on his own demise, as
heir at law of ilf., against one of the de*
fendants, who claimed, as devisee of
Af., for the premises which had been the
subject of the issue. Afler the action of
ejectment was commenced, judgment was
entered up on the issue from Cbancefy ia
JR the
EVIDENCE, VI^XI.
make it incumbent od the plunUff to
produce the writing as part of his case.
Curlitv. Grmted, 167.
VI. Evidence of sanity.
A question haTing arisen at to the sa-
nity of B devisor, letters were tendered in
evidence, which had been found among
his papers shortly aSlet his death, written
to him by persons of his acquaintance, of
whom all but one were dead ; one of the
letters purporting to be an answer to a
letter written by the devisor. Qwere,
Whether inch letter* were admissilile, as
shewing that the devisor was treated by
his acquaintance as a person of sound
mind. Wright v. Doe dem. T^ham, 3.
VII. Evidence of diploma of decree.
To prove that a party had received
the degree of Doctor of Medicine in the
University of SU Andrew't, a sealed in-
strument and a written paper were pro-
duced : the sealed instrument purported
to be a diploma of the degree conferred
by the university, and it was proved that
a person at St. A., calling nimself tbe
university librarian, bad shewn, as the
university seal, in a room which he stated
to be tbe university library, a seal corre-
sponding to that on the instrument pro-
duced. The written paper was, on the
face of it, an act of the university confer-
ring the degree, and it was proved thai,
in the same room, the same person, with
otherpersonscalling themselves professors
of the university, had shewn, as the book
of acts of the university, a book coniain-
itig an entry agreeinft with the written
paper: Held to be sufficient proof. Cal-
titti v. Canegie, GS5.
See Slander, 1.
VIII. Evidence of surrender of Copy-
hold.
A record in the record book of a
manor, of admittance to a copyhold, re-
citing a surrender of the same copybold
to the use of a will, is admissible evidence
of the surrender, the steward not being
able to find the surrender itself on the
roll or elsewhere, and the surrenders being
irregularly kept in the manor, although
all the other surrenders were either pre>
served or recorded on tbe roll. Seje v.
The InhaUtanli of Thratcrou, ISS.
IX. Presumptive evidence of grant of
tithe. TUhe, 1.
X. Evidence of contract by act of
parties. Agreement, 6. Hiring, 3.
XI. Evidence of title to protect from
ilistress for tent-charge. Bent-eharge, S.
EXECUTOR, I. 969
XII. Perambulations.
On tbe question whether certun land
be part of the plaintiff'* estate, or wa>t«
of the manor, a perambulation of sueh
manor, by the lord, including the lend in
■question, it evidence, as dewing an asser-
tion of ownership by the lord, though it
be not proved that any person oo behalf
of the plaintiff' was present at the peraiD-
bulation, or knew of it. Woolwai/ r. Bout,
XIII. Impeachment of title of
through
party giving evu
lE
In defence to an action of ^ectment,
it may be shewn that the parties under
whom the plaintiff claimi, Dad no title
when they conveyed to biro, although th«
defendant himself claims by a conveyance
from the tnme parties, if the latter con-
veyance wo* subsequent to that which
the defendant leeks to impeach. Oi>*
dem. Oliver v. Powell^ 531.
XIV. Swearing of witneM.
AtUi.y. 1.
XV. Incompeieoey from interest.
Inhabitants on a road indictment. StO'
Me,l.l6,
EXCHANQE, BILL OF.
EXECtmON, UNDER A JUDG-
MENT.
I. How far a protection against dii-
tre*t. DMrett, 1.
S. At what time a defendant moit be
charged in execution.
Where a trial took place in the ««c»-
tion, and judgment was entered up against
tbe defendant a* of the preceiUng term,
and the defendant lUTTendered in dis-
charge of his bail in the same faca'
tion ; Held, that the defendant most
be charged in execution before the end
of the next term. Borer v. Baker, 860.
EXECUTION OF POWER.
EXECUTOR AND ADMINIS-
TRATOR.
1. When adminislrUor bai suffident
property to maintain trover. Canal
Act, 3.
3 R 9 S. Evi-
960 EXECUTOR, a— 4.
s. Evidence under plenfe adminiitraTit.
Where an executor pleadi pleni ad-
miDiilravit, and )hewi payments made by
him to the extent of the astett proved bj'
the plaintilF to have come to nil hands,
the plaintiff may ahew in answer that the
fund* to applied did not coine to the de-
fendant at eiecutor, lint were hunded to
him in trust to pay the testator's debt:
and were Dot part of the assets at fir^t
proved to have come to his hands. Mart'
ion V. Donnwi, 3 1 •
3. To what coita executon are liable.
Staiaie, I. 34. [5).
4. Executor de son tort, by what con<
tracts bound.
Lessee of premises, under a
of re-entry if the rent should be
twenty-eight days, died in bad
stance^ and his brother became i
de son tort. B^ the brother, agreed with
the landlord to give him possessi
B lea
celled, <
I his
abandoning the rent, which wi
eight days in arrear, B, alterwards took
out letters of administration :
Held, that the ngrt«mentofB., as exe-
cutor de son tort, did not conclude him
B3 rightful administrator, nor give a right
of possession to the landlord who had
entered under the ngrcement, but who
had not made any formal claim in respect
of the forfeiture, nor taken a regular sur-
render of [he lease. Doe dcm. IIonAt/
V. Glenn, 49.
FINAL.
When a decree in Chancery will be
said to be final. Appeal, 4-
FINE.
What shall l)efine with proclamations.
The date of the chirograph of » line
was two days later than the day of the
first proclamation, both diiyj being in the
same term i three other proclaniations
were duly made in the three Tullowing
Held, to be a good fine with proclama-
tions. Doe dcvt. Fleming v. Ford, 758.
FORCIBLE DETAINER.
FORCIBLE EJECTMENT.
Stalide, I. I.
FORCIBLE ENTl
Statute, I. t .
Action to recover money
misrepresentation. Auutmpi
FRAUDS, STATUn
Statute, I. 8. Gtmramtee,
FREE WAftRE>
. Assumpsit forgoodsBoK
ri(. 111.
3. When delivered. Ba«i
GRANT.
What is presumption i
tithe. Tithe, I .
2, What is grant of free
purtenant, or in gross. War
CROSS.
^ree warren in gross. iVa
GROWING CROP
. When diitrainnble. fli
. Whose property. ArUi
GUARANTEE.
. Innssumpsit for the debt
emcnt of consideration.
Assumpsit on the following
— " You will be so good as b
the promissory note; and I i
at Chrittiiiat, when you sh.
from me the amount of it, toi
the memorandum of mv sou's,
the whole 45/." A pmmissoi
35/. made by the defendant'!
payable lo the plaintiff, was
GUARANTEE, 2. 3.
the trial; but not the memorandum.
The guarantee was proved, and a sub-
sequent admission by the defendant that
he had to pay the plaintiff* 45/. due from
his son :
Held, first, that the plaintiff was not
bound to produce the memorandum;
secondly, that the consideration, viz. the
withdrawing of the note, was sufficiently
stated to satisfy the statute of frauds,
though the amount and maker's name
were not specified, there being no evi-
dence of any other note to which the
agreement could apply. Shortrede v.
Cheeky .57.
2. What evidence of document re-
ferred to in guarantee nccessar}'. Anthy 1.
3. Whether agreement using the word
** guarantee" be rightly described as pro-
mise to pay ; if not, whether variance
amendable. Amendment, 1. 1.
HIGHWAY.
1. Requisites of indictment for non-
repair. Indictment y 3.
2. Requisites of indictment for en-
croachment. Indictment, 4.
3 Whether inhabitants competent
witnesses on trial of indictment under 54
G.3. c. 170. Statuteyl, 16.
HIRING.
1. Creation of contract, where con-
tract of apprenticeship rescinded. Agree-
vient, 6.
2. When contract inferred from acts.
Post, 3.
3. Effect of bankruptcy on contract.
A commission of bankrupt does not
operate as a dissolution of the contract
of hiring between the bankrupt and his
clerk.
If the clerk, being hired for a year,
continue in the bankrupt's office after
the bankruptcy, and then in the middle
of the year, by mutual consent, the con-
tract be rescinded, on the understanding
that the clerk is to be paid rateably for
his services during the current year, the
clerk is not barred by the certificate from
recovering all the wages due from the
expiration of the year last before the
commission up to the time of rescinding,
no part of such wages being proveable
under the commission. The provision
in 6 G.4. c, 16. 4.48. for payment of
clerks and servants, makes do difference
in this respect.
INDICTMENT, i— 4. 96 1
A jury may infer Buch an understand-
ing from the clerk having continued after
the bankruptcy in the bankrupt's office
as Jong as the bankrupt's brother re-
mained there managing the business (as
he had also done for a month before the
bankruptcy), although, in fact, there was
nothing for the clerk to do after the
bankruptcy. Thamtu v. WUHamit 685.
4. Settlement by hiring and service.
Poor, VI.
5. Settlement by hiring tenement.
Poor, IV.
HORSE.
Warranty of. See WarrmUy,
HUNGERFORD MARKET
COMPANY.
Construction of act. Statute^ II. 4.
HUSBAND AND WIFE.
Baron and Feme,
INCUMBRANCE.
1. When a benefice is shewn to be in*
cumbered. Statute^ I. ?.
2. Whether estate, when incumbered,
can be said to " devolve " within mean-
ing of a will. Trust, Shifting.
INDICTMENT.
1 . Effect of misreciting year of statute.
Statute, IV.
2. For conspiracy. Contpiracy^ l.
3. For non-repair of highway.
An indictment charged that the in-
habitants of the townships of Bandgate
in Auckland, Newgate in Aucklattd, and
the borough of Auckland, in the parish of
St, Andrew Auckland, were immemorially
liable to repair a highway in the town of
Bis/top Auckland, in the parish of St»
Andrew Auckland, and no consideration
was laid : Held bad, on motion in arrest of
judgment, as not shewing that the highway
was within the defendant's district :
Held, to be no objection, that the in-
habitants of the three townships were
charged conjointly. Bex v. InhalntantM
of Bishop Auckland, 744.
4. For encroachment on highway.
An indictment charged that defend-
3 R 3 ant»
962
INDICTMENT, 5.
ant, at the township of IF^ on a highway
thm, leading from a highway, leading
from the Tilfiige of W. towards C, to
another highway, leading from the village
of W. towards L^ by a wall there, ex-
tending into the said highway, by him
er^sted, had encroached, &c.: Held, that
the indictment was not uncertain, and
that *• there" and •* said" could be re-
ferred only to the highway first men-
tioned. Rex Y. Wright^ 454.
5. Count for conspiracy, when too
general. Statute^ IV.
INFERIOR COURT.
I. Wilt of trial in.
I. Power of judge, as to costs. CoitStS,
S. What to be shewn, on motion for
new trial, after trial in inferior Court.
Trial, New.
II. When judgment of inferior Court
amendable above.
1. By the proceedings of a local court
returned into K. B. on writ of error, it
appeared that the declaration below
cnarsed that the defendant was indebted
to the plaintifl^ within the jurisdiction,
for money then and there lent. On mo-
tion made in K. B., by the plaindflT in
error, that the transcript sent up might
be amended by striking out the words
** then and there," and making it corre-
spond with the record as it was when the
writ of error was allowed, it was stated on
affidavit, that the words were inserted by
the Court below (after hearing the par-
ties upon summons), subsequently to the
allowance of the writ :
Held, that this Court could not notice
the document returned as a transcript,
but must consider it as the record, and
could not amend it on this application.
Salter v. Slade, 608.
S. Certificate of inferior court, what is.
Certificate.
INHABITiVNTS.
When competent witnesses, on road
indictment. Statute, I. 16.
IMPRISONMENT.
See Arrest,
INSURANCE, 1, 2.
INN.
1. Responability of innkeeper. ^
An innkeeper on a fair da^^, upon bong
asked by a traveller, then driving a gigcf
which he was owner, ** whether he had
room for the horse?" put the hone into
the stable of the inn, received the tra-
veller with some goods into the inn,
and placed the gig in the open street,
without the inn yard, where he was ac-
customed to place the carriages of his
guests on fiur days. The eig having been
stolen from thence. Held, that the inn-
keeper was answerable. Jones v. T)fler,
522.
2. What loss covered by insurance on
interest in inn and offices. Insmranee, 5.
INNUENDO.
In declaration for slander. Samier, 2.
. INQUISITION.
On forcible entry, ejectment, and de-
tmner. Statute, L 1.
INSOLVENT DEBTOR.
StatuU, I. 27.
INSURANCE.
1. Consolidation rule. ComsolidahoM,
Rule in Insurance Causes, •
2. Termination of adventure.
An insurance was made on a ship at
and from St, Vincent, Barbadoes, and all
or any of the West India Islands, to her
port or ports of discharge and loading in
the United Kingdom, during her stay
there, and thence back to Barbadoet,
and all or any of the West India Colo-
nies, until the ship should have arrived
at her final port as aforesaid : Held, that
the adventure terminated at the place, in
the West India Colonies, where she sub-
stantially dischai^ed her cargo from the
United Kingdom.
The ship discharged all the cargo, ex-
cept some coals and bricks, at Barbadoes,
and was proceeding elsewhere for a fresh
careo. It became a question, on the
evidence, whether the coals and bricks
were retained for the mere purpose of
ballast. The jury having found that the
cargo was substantially discharged, the
Court
INSURANCE, s.
Court refused to disturb the yerdict.
Moore V. TayloTy 25.
5. For what loss assured may recover.
An innkeeper having insured, against
fire, his ** interest in the inn and offices,"
cannot, upon such inn and offices being
partJy burned, recover against the in-
surers for loss sustained by his hiring
other premises while his own were being
repaired, and by the refusal of persons
to go to the inn while under repair, the
insurers having re-instated the premises
in proper time. In re Wright and Pole,
621.
INTEREST ON MONEY.
When allowable, on writ of error.
Statute, 1.34.(5.).
INTERESTED PARTY.
1 . Who is, so as to make declarations
evidence. Evidence, II.
2. Rated inhabitants. Statute, 1. 16.
JOINDER OF PARTIES.
Baron and Feme, 1. Agreement, 1.
JOINT DEMISE IN EJECTMENT.
Ejectment, 2.
JUDGE.
1 . Judge's order. Order of Judge,
2. Judges of inferior court. Inferior
Court, Certificate,
JUDGMENT.
1 . Arrest of, for misreciting year of sta-
tute in indictment. Statute, IV.
2. On error upon judgment of inferior
court, what court above will amend.
Inferior Court, 11. Certificate,
3. What judgment void under In-
solvent Debtors* Act. Statute, I. 27. (3.).
JURORS.
Annexation of panel of jurors to writ.
Error, 1.
JUSTICES.
1. Proceedings on forcible entry, eject*
ment, and detainer. Statute, 1. 1.
LICENCE.
963
. 2. Power of justices as to building
gaols. Statute, 1. 23.
See further, Magistrates, Quarter Ses»
sions. Special Sessions,
KING.
By what statutes bound. Statute,!. 29.
LANDLORD AND TENANT.
1. Agreement by tenant to repair, what
avoids.
Declaration stated, that in consider-
ation that the defendant had become
tenant to the plaintiffs of premises, upon
the terms that he should, during his said
tenancy, keep the premises in tenantable
repair, the defendant agreed to keep the
same in tenantable repair during the said
tenancy. It was proved that he took the
premises, by written agreement, for three
years and a quarter, and engaged to keep
them in good repair during the time they
should be in his occupation; but the
agreement was neither stamped as a lease,
nor signed by both parUes :
Held, that the defendant was bound
by the agreement to repair, though the
agreement was void, as to the duration of
the term, by the statute of frauds : and
that the count was applicable. Richard^
son V. Gifford, 52.
2. What a landlord may distrun. Dis'
tress, 1.
LAYMEN.
How far exemption of dean and chap-
ter from toll exempts their lay tenants.
ToU,3.
UCENCE.
A, having a house in which he was
making alterations, adjoining the grounds
of B,,mi wife wrote to B, as follows:—
" Before the last coat of paint is put on
the side wall, we wish to place a window
in it, and it cthfi be finished more neatly
with your permission to place the neces-
sary ladder, &c.: the motive for doing
this is, that I should gain a more cheerful
view." B, answered (by letter), •* You
are welcome to place a ladder in my
grounds near your house, and I shall
be obliged if you will caution the work-
men not to injure the shrubs." A, placed
the ladder, and made a window m the
part of his bouse to which the ladder
3 R 4 was
964
LICENCE.
MANDAMUS, i.
wag applied, overlooking the prcmlsei of
B.f who was absent from home at the
time. B, afterwards objected to the
window, and wrote as follows ;—" When
you applied to me for permission to
place a ladder in my grounds, being
without a friend to advise with, and even
without knowing exactly the situation in
which your window would be placed, I
unfortunately complied with your re-
quest, without consulting my own com-
fort:"
Held, that the first two letters did not
shew a consent by B, that A, should
open a window overlooking ^.'s grounds ;
that the third letter, being written after
the whole transaction, could not be re-
sorted to in proof of such consent, and,
even if available, did not prove the
consent relied upon ; and, consequently,
that A. could not justify throwing down
a wall which B, had built on her own
soil after the completion of the window,
obstructing the access of light and air
to it.
Quaere, whether a licence to the-owner
of a bouse to enjoy an unobstructed
access of light and air to his new window
firom over his neighbour's premises may
be given by parol, or is an easement, to
be granted under seal ?
Supposing that sUcli licence may be
given by parol, qusere, whether it is
countermandable? Bridges v. Blan-
chard, 536.
LIMITATION OF ACTIONS.
1. Under stat. 21 Ja, l. c 16. Sta-
tutc, I. 7.
2. Under local act. Canal Act, 1, 2.
LIMITATION OF USES AND
TRUSTS.
1. On a surrender of a copyhold.
Copi/hold, 1.
2, In a devise. Tryst, Shi/iing.
LIQUIDATED DEMAND.
Payment of liquidated demand, whether
consideration in assumpsit. Assumpsit, II.
LOCAL ACT.
Staiute, II.
LOCAL COURT.
In an action tried under ttat. 3&4W.4,
c, 42. X. 17., before an under sheriff, tht
declaration contained special counts on a
pronuse by defendant to sell a chattel for
plaintiff, at a price not below 4i., averring
that defendant sold the same at an in-
ferior price, to wit, 1/. lOf. ; there were
also common counts. Evidence was
given for the plaintiff of the special con-
tract, and evidence on the other side,
tending to discharge or excuse the dt»
fendant ; and it was proved that defend*
ant sold the chattel for 1/. ll«., which
he had not paid over. Defendant, when
the action was brought, lived within the
Jurisdiction of a court of requests estab-
lished by a statute, which enacted that
no action for any debt below 40i. should
be brought against any person raiding
within the jurisdiction, except in that
court. The act was insisted upon by the
defendant at the trial. The jur)' found
a verdict for the plaintiff for 1/. 11*.
On motion to enter a nonsuit, or verdict
for the defendant, or for a suggestion
under the local court act. Held, that
this Court could not consider the action
as one brought merely to recover a debt,
evidence having been given in support
of the special counts, and there being
nothing to shew that they were inserted
colourably.
Also, that it made no difference, that
the under sheriff had at first entered the
verdict on the posted as taken on the
count for money had and received, and
afterwards altered it to a general verdict,
on the application of the plaintiff. Mant*
field V. Brearey^ 347.
LOSS.
For what loss party may recover on
insurance. Insurance, 3.
MAGISTRATES.
When they shall have double costs.
Statute, 1. 4.
See further, Justices, Quarter SeuUms,
Special Sessions.
MANDAMUS.
1 . To Quarter Sessions to hear appeal.
Appeal, 3,
2. When
MANDAMUS, s— 4.
NOTICE, 1—5.
965
9. When Court will interfere with
vestry by mandamus. Vesir^y 4.
3, When clause in statute taking away
certiorari precludes mandamus. Cer-
tiorari, II. 2.
4. Demurrer to return to mandamus.
Where, on return to a mandamus (to
admit a copyholder), a concilium has
been obtained, and the return, on argu-
ment, held sufficient in law, and a pe-
remptory mandamus awarded, the Court
will not, at the instance of the party
making such return, direct the prosecutor
to demur, in order that the case may go
to a court of error.
Quare, Whether, by the stat. 9 Ann,
f.20. s. 2., the return to a mandamus can
be demurred to. Rex v. 7%tf Lord of the
Manor of Oundle, 285.
MANOR.
What is a grant of a free warren ap-
purtenant to a manor. Warren,
M.UIRIAGE.
Conspiracy to marry paupers. Con-
tpiraci/, 1.
MARSHAL.
Warrant appointing Marshal of K. B.
377.
MEDICINE.
Right to practise in England. Slander, U
MEMORANDA.
Aiderson, J. and B. 2.
Aicherley, Seijt. 2.
Baylcy, B. 2.
Campbell^ Sir J., Sol. Gen. and Att.
Gen., 2.
Denman^ Lord, C. J. 1 .
Jlome, Sir W., Att. Gen. 2.
Jones, Serjt. 2.
Parke, J. and B. 2.
Pepys, Sir C C, Sol. Gen., 2.
Vniighan, B. and J. 2.
Williams, B. and J. 2.
MONEY HAD AND RECEIVED.
Assumpsit, IV.
MORTGAGE.
Declarations of mortgagor, when evi«
dence to support mortgage, Evidenc9^
IL2.
NEW ASSIGNMENT.
Pleading, Civil, VIII.
NEW TRIAL.
See TVial, New,
NON-REPAIR OF HIGHWAY.
Indictment, 5. Statute, I. 16.
NOTE, PROMISSORY.
See Bill of Exchange and Promiisory
Note.
NOTICE.
1. What necessary, to prevent appo*
rent ownership by bankrupt. Bankrupt,
2. What necessary, to prevent appa«
rent ownership by insolvent debtor. Sto»
tute,l.21.(\,)
3. By commissioner under inclosure
act.
An inclosure act directed that the com-
missioner thereby appointed should by
his award, or by some previous writing to
be annexed thereto, ascertain the quantity
of wheat equal to the annual value of
the tithes in the parish of W.^ and should
afterwards determine the value of such
wheat in money, and charge and appor«
tion the amount on the lands and tene*
ments in W., which sum wat to be paid
to the rector quarterly, the first payment
to be on the 25th of March next after
the execution of the award, or such
earlier day as the commissioner by his
award or by such previous writing should
appoint; and the tithes were to cease
from the apportionment of such rent, or
at such other time as the commissioner
by any writing should appoint. The act
also directed, that if any person should
think himself aggrieved by anything done
in pursuance thereof, he might appeal to
the sessions within four calendar months
next after the cause of compkdni should
have arisen. The commissioner, by writ-
ing dated 3d of October 183S, fixed tho
corn
966 OTICE, 1.
corn rent in the proportions stated in a
schedule which was annexed, and ap-
pointed the payments to begin froro the
SSth of December then next, and the
tithei to cease from the 29lh of September
then last. His award was not made till
JamtarylBZS. TherectorBppea1ed(more
than four monthi after the 3d of October
issi, and therefore, es it was held, too
late), OD the ground that his equivalent
for the tithes was assessed too low.
The act directed, that all notices ne-
cessary to he piea by the comiciissioner
^ould be given by advertisement In a
certain paper, and by affixing such notice
on the church door eight days before
the time for doing the business to be no-
tified. The commisuoner, on executing
the above writinc, sent the appellant a
cany of the schedule, with notice of the
dues having been extinguished and the
com rents assessed, but the schedule in
no way referred to the writing. He also
publisoed notices in the newspaper and
an the church door, declaring that he
had assessed the com rents by writing of
the 9d of October, which was deposited
with the clerk (whose address was given)
in London; and these last- mentioned no-
tices further stated the days when the
tithes were to cease, and on which the
rents were to be payable. It nlso ap-
peared bv a corresnondence, that the
matter which formed the ground of the
appeal was in fact known to the appel-
lant before the I3lh of December 1H32:
Held, that supposing any notice to the
appellant to have been necessary, (and.
lembie, it wHs not,) he had, by the com-
munications above stated, sufficient no-
tice of the cause of complaint to have
appealed within four months. Rej v.
Nockoidt, 345.
1. Notice to vendee of terms of sale.
Warrani^.
NUISANCE.
l.Who
If the o
erect a building
of which the oc-
cupation is likely to produce a nuisance,
and let the land, he is liable to an indlct-
nuenl for such nuisance being continued
or created during the term.
So be is, if be let a building which
requires particular care to prevent the
occupation from being a nuisance, and
the nuisance occur for want of such care
on the part of the tenant-
ORDER OF SESSIONS.
If a party buy the reverrion dnrii^
B tenancy, and the tenant •fterwirds,
during hit term, erect a nuinnce, lh(
reversioner is not liable for itj but il
such reversioner relet, or, having u op-
portunity to determine the tenancy, omil
to do so, allowing the nuisance to ca>
tinue, he is liable for such continuince
Per LilUedaie J.
And such purchaser ii liable to be »
dieted for the continuing of thenuisanct
if the original reveruoner would ban
been liable, though the purchaser hii h»i
no opportunity of putting an end to tbi
tenant's interest, or abating the niumare
Eex y. PrdUy, saa.
S. To highway. Indkiment.S,*, Ste
lute, I. 16.
OATH.
Effect of itat. 1 & 8 IF. 4. r. 60. on
oaths imposed on vestrymea by fbnnn
acts. StrOute,!. 31.{5.j.
ORDER OF JUDGE.
1. Counts added under.
In quare impedit by the crown fiw i
presentation forfeited by simony, the de-
claration (of HUary term, 1833) stated
the simoniacal contract to have been
made between A., B., and C, and the
consideration to have been the grantii^
of .T lease of lands, parcel of the rectory,
at an inadequate rent. In Hilary vaca-
tion, IBS'*, counts were added, by leave
of a judge, staling the contract to ban
been between A. and B. only, and the
consideration to have been the giving uf
part of the proSii of the benefice, and
executing a resignation bond :
Held, chat these counts did not states
new cause of action, and, therefore, michl
properly be added under a judge's ordH.
Jiei V. The ArckbUhop of York, 394.
2. The Court will not, as a matter ol
course, review an order made by ajudgc
at chambers. Hex v. Tke Arcbbithop oj
Yorlt, 394.
ORDER OF SESSIONS.
What order removable by certiorari
Cote, Special, 1. Certiorari, II. 3- Sla^
tule, I. 13.
OCTLAWRY.
PHYSICIAN.
967
OUTLAWRY.
When reversible.
A party outlawed on civil process,
after judgment, and on his petition sub-
sequently made to the Insolvent Debtors'
Court, adjudged to be discharged, is not
entitled to a reversal of the outlawry,
though the debt on which the outlawry
is founded he included in his schedule.
Dickton v. Baker, 855.
OVERSEER.
1 . What is a supply of goods to poor
by overseer. Statute, I. 17.
2. When overseer is liable for goods
supplied to the poor.
Iiy the practice of a parish, the two
overseers were always reappointed once;
but one of them acted solely for one of
the two years, and another for another.
The acting overseer for one year ordered
coals, which were tent to him, and dis-
tributed by him among the poor of the
parish; the seller debited the parish with
them, and afterwards sued both over^
seers. The acting overseer suffered judg-
ment by default :
Held, that, upon these facts, the jury
were properly told to consider whether
the coals were supplied for the parish,
by whom they were ordered, and whether
credit was given to the acting overseer
onlv, or to both as overseers; and to
find for the defendant (the overseer who
had not acted), if the plaintiff relied
solely on the responsibility of the acting
overseer ; but otnerwise (or the plaintiff.
Andthe iury having found for the plaintiff,
saying that the coals were supplied to the
parish,and the overseers were jointly liable
as such, the Court refused to dbturb the
verdict. Eaden v. Titchmarsh, 691.
OWNER OF SHIP.
When registered owner is liable for
repairs. Ship,
OWNERSHIP, APPARENT.
See Apparent Oumership,
PANEL.
Annexation of panel of jurors to dis-
tringas. Error, 1.
PARISH.
See Churchwarden; Overseer; Poor;
Statute, 1. 16. Vestry.
PARSON.
1 . Right of assignees of insolvent debtor
over his benefice. Statute^ I. 27. (2.)
2. Sequestration of benefice. Setptes--
tration,
3. What shews a charge on the bene-
fice. Statute^ I. 2.
PARTICULARS OF DEMAND.
1. How the evidence must meet. As^
sumpsit. III.
2. Amendment of. Assumpsit^ III.
PARTY TO ACTION.
1 . Who shall be. Pleading, Ovil, I.
2. Party to one action of ejectment,
how far privy to party in another. Evi-
dence^ III. 1 ., IV. 2, s.
See Res inter AUos.
PARTY WALL.
How far subject of Hungerford Market
Act. Statute^ II. 4.
PAUPER.
See Poor.
PAYMENT.
1. What payment of a debt is a con-
sideration in assumpsit. Assumpsit^ II.
2. What payment answers plea of sta-
tute of limitations. Statute^ I. 7. (2).
PERAMBULATION.
How far evidence. Evidence^ XII.
PERSONAL ACT.
Statute, n.
PHYSICIAN.
Proof of right to practise as, in Eng-
land. Slander, 1.
PLEADING,
9«B PLEADING, CIVIL,, L— VIII.
PLEADING, CIVIL.
1. Party to action.
1. Wlien adminiBtrator has sufficient
interne to sue. Canal Acly S.
3. Joinder of purtics. Baron and
Ferae, ].; AgrveiHeiit, 1.
U. Demise id ejectmeot. Joint or
teveral. Ejeetmmt, 3.
III. What it good coniidention. Ji-
mmpiU, II.
I V. Which party is to allege fact*.
). At to notice, to lake apparent owner-
ship of debt from bankrupt. Sankrapl,
IL S.
3. Aa to notice, to lalie apparent owner-
ship of debt from insolvent debtor. ^-
tule,l.aT.{i).
3. Ac to usury. Uiiiry,
V. Conclusion of plea. Po»i, VI 11.
VI. How far aJniisiian on record ii
"^i
VII. What IS admitted by pleadiof
A plea of setoff staled, that the plain-
tiff mode his promissory note payable to
A. C, which was duly indorsed end de
liverod to the defendant after A. C.\
death, by A. C.'n adiuiniitrator, and wa^
unpaid. Replication, that the supposed
cause of set-oSon the sai4 note did nol
accroe lo defendant within six years, in
manner and form, &c. :
Held, that ihis replication admitted,
not only the making of the note, but the
indonement of it to the delendant l)y
A. C'.'i administrator, and that the de-
fendant might, therefore, avnil hiiniicir of
memorandums of the payment of interest,
written on the note by A. C. (before Lord
Tenlerdeii's act.) to Imr the statute ol
limitations. Galex. Cajicrn, 103.
VIII. New assignmcnt-
To a dcclamlion by indorsee ngainv;
acceptor, the defcndniit ple.idcd, that he,
to accomniodatc the drawer, and withmit |
consideration, wrote a qualified acccjit-
Boce on blank paper, and delivered ihe
taper to the drawer, tor the purpose of
ill drawing thereon a bill at nine months;
that he drew a bill at ii\, wbicli was the
hill declared upon, and indoriUjd it with-
out consideration to S., uho indorsed it
without consideration (u tile plaintifl^ both
indorseesknowingnll thefucta. Theplain-
tiff new-assigned, that ihe bill pleaded was
tiol the lame bill ai Ihat drilared upon, but
aHolAer, for that the former wa^ accepted
POOR. I.
generally, and the defendant ncier w
cepted the same in any qualified mtrnwr
Plea, setting: out as before a qualified tt
eeptanee on blank paper, for the wn
purpose as above mentioned, and sllq
ing the same facts aa to the drawing an
indorNng of a bill, which the plea itaif
to be the bill above newly assiened. ondt
ttn|!, however, to charge that the bill m
given without conmderetioD, but slititt
I that the indorsements wero made " with
J out any sufficient conitdcMtioc, atHi tbi
the indorsees knew that the paper wi
delivered for the purposeof a hill at nin
ntonths being drawn after the acrtfi
ancc." Replication, that the bill of el
change mentioned in the last plea «i
not the bill above newlv assigned, bu
another and dilfercnt, with conclution ti
therountry: Uu demurrer,
Held, that this replication admitted tb
existence of the bill mentioned in thi
preceding plea, and, therefore, ought ti
have concluded with a verification.
The plaintiff having obtained leave W
amend, replied, " that the defendant die
not write hit qualified acceptance on tbi
said blank paper, as in the last plea men
tioned, in manner and form," &c. ; aai
concluded to the countrv; On demuner
Held, that this was in substance ui
allegation that no qualified accepltnn
was written on the bill declared upon bj
the plaintiff'; that it was, in elftci. »'
answer to the whole plea, and that i><ui
might properly be tendered upon it. //«■
'. Tiuniptoa, v
IX. How far pleadings can rai-e quei.
tion whether an net It done under a par
ticntar authority. DUtrru, .'.
X. Uf what year a statute thoutd Im
pleaded to be. Slatutf.W-
XI. Where additional count* ■■h.'ill h«
hold to shew new cause of action. Order
0/ Judge, 1.
PLEADl.NG, CRIMINAL.
Indic/mfKl.
PLENE ADMINISTRAVIT.
What is evidence under. EjccwIoraiiJ
POOR, I. I.—IV. 5.
969
I. An act of parliament enacted that
tlie tithes of a parish should be held in
fee by A., who was owner of part of
the lands in the parish, and that all A's
lands in the parish should be charged with
an annuity payable to the vicar for the
time being, who had previously enjoyed
the small tithes, and who, by an agree-
ment recited in the act, was to receive
such annuity in lieu of all his vicarial
dues : Held, that the vicar was not rate-
able to the poor in respect of such
annuity, for that the tithes were not ex-
tinguished. JRejT v. The Churchwardens
and Overseers of Great Hambieton, 145.
^2. By a statute, which incorporated a
company, the company was empowered
to purchase land and erect buildings
thereon, in which the proprietors were
to be beneficially interested in propor-
tion to their subscriptions, and such in-
terest was to be personalty ; and it was
enacted that two or more rooms should
be provided and used as public rooms for
transacting business relating to trade and
commerce, and suitably furnished for the
purpose. One of the rooms so provided
was supplied with newspapers and other
publicationsi and non^proprietors were
admitted upon an annual subscription :
Held, that the company was rateable for
the revenue (after deducting the expenses
of the room) arising from such subscrip-
tion, though stock in trade, profits, and
personalty were not rated in the parish,
the rate being taken in the parish upon
the fair annual value of the property to
oe let.
By the statute, each proprietor was
entitled to attend the room without
making any payment ; and, by the bye-
laws of the company, each proprietor
was entitled to a payment from the com-
pany of an annuail sum upon every share
above one held by him ; and every pro-
prietor not attending the room was paid
by the company an annual sum : Held,
that the company was not rateable for
the value of the privilege of such of the
proprietors as attended. Hex v. 77ie
Company of Proprietors of the Liverpool
ICxchangCf 465.
11. Settlement by estate.
A devisee of a copyhold was admitted
after he had resided more than forty
days on the copyhold. His son became
emancipated after the expiration of the
forty days, and before the admittance:
Field, by Lord Denman C. J., Little-
dale J., and Patteson J., Parke J. dissen«
tiente, that the father, by such residence,
gained a settlement, which was commu*
nicated to the son. Hex v. The Inhabit*
ants of ThruscrosSy 126.
UI. Irremoveability by estate.
A house in the parish of W, was let to
i4., and B,y his wife, for their joint lives,
and the life of the survivor* A» and B,
were ejected wrongfully from the house,
but their furniture, and a person who
had lodged with them, remained in the
house. Afterwards A. assisted the lessor
to destroy the lease :
Held, that after these transactions A,
and B. continued irremoveable from W.^
though they had become actually charge-
able. Rex V. The InhabUanU ^ Mai*
lock, 124.
IV. Settlement by renting a tenement*
1. Under stat. 1 H^.4. c. 18. no settle*
ment is gained by occupying the same
tenement for a continuous year, the occu-
pation during part of the year being under
one hiring for a year, and during the re-
mainder under another hiring for a year.
If IV^ being tenant from year to year
to C, let to T. from year to year, and
W. give up his own interest to C. by
verbal agreement, and afterwards T. agree
verbally with C. to become his tenant
from year to year, such last agreement
is a new hiring by T., and puts an end
to his former hiring. Rex v. The Inka*
bitants of Banbury {Banbury v. Farn*
borough\ 156.
2. A person hiring a house and stable
for a year in a parish under different
landlords, at rents amounting together
to 10/., holding such house and stable^
and residing in the house, for the year,
and paying the whole rent, acquired a
settlement in such parish, under the act
59 G. 5. c, SO., though the house and
stable were entirely separate from each
other. Rex v. The Inhabitanii of Got*
forth, 226.
3. A person rented two houses under
one continuous roof, having distinct outer
doors, and no internal communication!
he took the whole at one hiring, but
paid distinct rents for them of 6/. each
per annum, occupied one house himself,
and allowed his son exclusive possession
of the other :
Held, that by such renting and occu-
pation for a year, he acquired a settle-
ment under 6 G. 4. c. 57. s. 2. Rex v.
7^ Inhabitants of Iver, 228.
4. A
970
POOR, IV. 4.-.VL
4. A settlement was gained under
6 G, 4. c, 57. by renting, under distinct
hirings, of the same owner, for the same
year, two dwelling-houses, (one of which
the tenant underlet, and never personally
occupied,) at the rents of 8/. and 5/. a
year, in different parts of a parish. Rex
Y. The InhabUanU of Wootton^ 232.
V. Settlement by apprenticeship.
1. The trustees of a charity established
for placing out poor boys of a parish as
apprentices, bound out a poor boy of
the parish, and paid the premium. The
parish officers furnished him, from the
parochial funds, with a suit of clothes,
all of which would not have been given
to him at that time, except with the
prospect of his being bound ; but no
stipulation was made on the subject by
or with the master : Held, that the supply
of clothes was not an expense incurred by
the parochial funds withm 56 G.3. c, 139.
«. 1 1., and consequently that the indenture
did not require theapproval of two justices.
Eer ▼. The Inhabitants of Quainton, 1 33.
2. A boy bound out by a parish as an
apprentice in husbandnr, tilt he should
be twenty-one years of age, served the
master, first in husbandry, and aflerwards
as a miner. He then lere his master^ and
went to live with his own father (who
was a miner}, and worked with his father
at the same mine at which he had worked
with his master. The master afterwards
agreed with the father that the appren-
tice should remain with the father, and
the indenture be given up on a subse-
quent day,upon the payment of a sum of
money. On the day appointed, which
was before the passing of stat. 56 G, 3.
c. 139., the money was paid, and the in-
denture given up to the father. The son
was then under age. He worked with
the father as a miner till his majority,
when the indenture was given up to him
by his father. From his first coming to
his father, the father had received his
wages, and maintained him :
Held, that even supposing the parties
to have had power to dissolve the appren-
ticeship, and to have intended to do so,
it was not dissolved till the money was
paid ; and that a residence of forty days
between the making of the agreement
and the payment of the money, was a
residence under the apprenticeship, and
conferred a settlement. Rex v. The In-
habitatUs of Gwineary 152.
3. Pauper agreed by parol to go to IV.,
a flannel manuftu;turer, for three yean
to team flannel weaving, and was to b
paid half his earnings and find hiiosd
necessaries, and the master to have th
other half for teaching him the an
Pauper went into FF.'s employ, and wof
some flannel ; he then left fV. byconseoi
and went to J5., another flannel manu
facturer, told him of his former employ
ment with H^., and requested E. to tak
him on the same terms ; but E. told hii
that one year would be long enough,
he was a good boy. They htM also som
conversaUon as to what pauper had lean
with W. The sessions further stata
" that the pauper agreed to goto E. fc
twelve months to learn weaving, and i
agreed to take him, and teach it, and gii
him half his earnings ; " and that tli
pauper went to jff., and worked with hii
for the year, on the former terms ; the
also found that the pauper could dc
leave or be turned away during the tweli
months ; and they decided, subject to
case, that the pauper thereby gained
settlement :
Held (notwithstan^ng the condusio
drawn by the sessions as to the power c
leavine or of turning away), that the ot
ject of the pauper's engagement with i
was learning, not service, and, therefon
that it was an imperfect contract of ^
prenticeship. Rex v. T%e Inhabitants c
Newtown, 238.
VI. Settlement by hiring and service.
Pauper was hired as a shepherd for
term rather less than a year, ending i
Old Michaelmas 1825, when he was t
receive 5/. lO** wages. Upon, and for
few days after, Old Michaelmas^ he cot
tinned* to live with and work for h
master as before, but without any ne
agreement. The master then paid th
wages to the pauper's father, who ha
also been in his service during the abov<
mentioned term ; and asked ** If he an
his sons chose to go on with him." Th
father consented. The wages were to t
the same. The pauper continued in th
service as before^ till Lady-day I82<
when the master, being about to qo
the farm, paid him his wages down t
that time, and be went into the service c
the in-coming tenant :
Held, that the hiring after Michaelim
1825 vras not a general hiring, and tba
the service under it, connected with tha
of the preceding year, did not give a set
tlement ; and the Court quashed an orde
POOR, VII.— XI.
PRODUCTION.
971
of sessions made in favour of such settle-
ment. Rex V. The Inhabitant* of Arding'
ion, 260.
VII. What 18 a supplying of the poor
within Stat. 5 G. 3. c. 137. i. 6. Sta-
tute, I. 17.
VIII. When overseers liable for goods
supplied to the poor. Overseer, 2.
aI. Conspiracy to marry paupers. Con-
spiracy, 1.
POSSESSION.
1 . To what extent evidence.
A mortgage was executed in 1815,
from which time mortgagor occupied the
premises till 1825, when the defendant
obtained possession, and ejectment was
brought in less than twenty years after
1825 : Held, that the mortgagor's posses-
sion from 1815, though a possession of less
than twenty years, entitled the mortgagee
to recover against the defendant, the
latter having adduced no admissible evi-
dence in support of his own claim. Doe
dem. Smith v. Webber, 119.
2. Meaning of the word in a will.
Trust, Shifting.
3. Apparent possession. See Apparent
Ownership,
POSSIBILITY.
Assignment of. Baron and Feme, 2.
POSTEA.
When it may be altered. Local Court.
POWER.
1 . What shall be execution of.
A, settled lands, of which he was seised
in fee, to such uses as he should appoint
by deed or will, and, in default of ap-
pointment, to the use of himself for lite,
with remainder over. Afterwards A. de-
vised all his real estates whatsoever and
wheresoever, and all his estate, right,
title, and interest therein, and all lease-
hold premises whatsoever, to which he
might be at the time of his decease en-
titled, and all his household furniture,
money, &c. and all other his real and per-
sonal estate whatsoever and wheresoever,
upon certain trusts. At the time of
making the will, and also at the time of
his death. A, was seised in fee of lands
besides those subject to the power:
Held, that the devise was not a good
execution of the power. Davies v.
Williams, 588.
2. Limitation of uses on surrender of
copyhold to appointment. Copt/hold, 1.
PRACTICE.
Sec Amendment; Arrest; Attorney; Bail;
Capias; Capias ad Satisfaciendum; Cer*
tificate ; Certiorari ; Concilium ; Con-
solidation Rule ; . Costs ; Erasure ;
Error ; Execution^ under a Judgment ;
Inferior Court ; Order of Judge ; Order
of Sessions; Outlawry; Particulars of
Demand; Postea ; Quarter Sessions;
Sequestration; Sheriff; Trial, New;
Trial, Writ of; Variance ; Venire de
novo ; Venue^ change of; Verdict,
PRESUMPTION.
1 . Of grant of tithe. Tithe ^ 1 .
2. Of usury. Usury.
3. Of charge on benefice. Statute, I.
2.(1).
PRIVILEGE.
1 . From arrest. Arrest^ 5.
2. Of Crown, how far affected by
statute. Statute^ 1. 29.
PRIVITY.
To party in action. Evidence, III. 1.^
IV. 2, 3.
PROCESS.
1. Variance between process and de-
claration. Arrest, 1.
2. Variance between judgment and
process. Arrest, 2.
PROCLAMATIONS.
What shall be good fine with pro-
clamations. Fine.
PROCTOR.
Disbursements by attorney for business
done by proctor. Attorney, 2.
PRODUCTION.
1. Of deed referred to in warrant of
attorney, to negative presumption of
charge on benefice. Statute, 1. 2. (l).
2 . Of writings in general . Evidence^ V.
PRO-
979 PROMISSORY NOTE.
REVERSAL OF OUTLAWRY.
PROMISSORY NOTE.
See BUI of Exchange and Prormsiory
Note,
PURCHASE.
See Agtignment,
PURCHASER.
Bee Astignee ; Reverwmer,
QUARE IMPEDIT.
What counts can be added under
Judge's order without introducing new
cause of action. Order ofJudgey 1.
QUARTER SESSIONS.
1. Mandamus to quarter sessions, to
hear appeal. Appeal^ 3,
3. Effect of sending case back to.
Case, &fecial, 1.
3. Finding of facts by quarter sessions
on a special case, how far conclusive.
Poor,W, 5., VI.
RATE.
1. For Poor. Pooryl. Distress, 3»
S. For highway, when it disqualifies
witnesses. Statute, I. 16.
RECORD.
1. In an action, how it estops. JEs-
toppely 1.
2. What is record of inferior court,
and whether amendable. Inferior Court,
II. Certificate*
3. What record of a manor is evidence
of surrender of copyhold. Evidence, VIII .
REGISTER OF SHIP.
When registered owner is liable for re-
pairs. Ship.
RENT ARREAR.
What may be taken under distress for
rent arrear. ' Distress, I.
RENT CHARGE.
1. Who can grant.
A rent-charge granted for life by a
tenant for years, is not void, but is good
as a chattel interest. Se^cry v. £/•
good, 191.
S. Whose goods may be taken 4inder
distress for rent charge*
The goods of a stranger not shewn to
hold the premises by title paramount to
the rent-charge (as by a prior demise),
may be distrained for the arrears of a
rent-charge. Saffery ▼. Elgood, 191.
RENTING TENEMENT.
See Poor, IV.
REPAIR.
1. Agreement to repair, how affected
by invalidity of lease as to duration o(
term. Landlord and Tenant, 1.
S. On indictment for non-repair of
highway, who may be witnesses. Sta-
tute,\.\6,
5. Requsites of indictment for non-
repair of highway. Indictment, 3.
4. When registered owner of ship
liable for repairs. Ship,
REPLEVIN.
Pleading in. Distress^ 3»
RES INTER ALIOS.
1. When award is. Arbitrator, J.
2. What legal proceedings are. En*
denccy IV.
3. VVhat declarations are. Evidence,
II. 1, 2.
RESCINDING.
1. Rescinding contract of apprentice-
ship, so as to create contract of hiring.
Agreement, 6.
2. Effect of bankruptcy in rescinding
contract of hiring. Hiring^ 3,
RETURN.
1. To certiorari, of proceedings on
forcible entry and detainer. Statute,!, 1.
2. To mandamus, whether it may be
demurred to. Mandamus, 4.
REVERSAL OF OUTLAWRY.
When it may be. Outhwry,
R£.
REVERSIONER.
SHIP.
975
RE\'ERSIONER,
1. At what time he may sue for injury
to his interest. Canal Act*
2. When liable for nuisance. Nui'
sance, 1.
ROAD.
See Highwaif.
RULE OF COURT.
I. General.
I. M. 37 G,5. Erasure,
3. Hil. 2 W, 4. 1, s. 85. Execution,
under ajudgmeni^ 2.
5. 17 Juncy 1839. Bail, 1.
II. Consolidation rule. [Coniolidation
Rule in Insurance Cawes,
SAINT ANDREWa
1 . Diploma of degree at the University
of St, Andreu^i, how proved. Evidence.
vn.
2. Effect of degree of M. D. at that
University. Slander, 1.
SANITY.
What admissible in proof of. Evidence.
VI.
SAVINGS BANK.
When the directors must appoint an
arbitrator.
1. The directors of a savings bank are
not compellable to appoint an arbitrator,
under stat. 9 G, 4. c. 92. s, 45,, for the
purpose of deciding upon the claim of
persons professing to apply on behalf of
a body of depositors, it it be matter of
dispute among the depositors, whether
the applicants be entitled to represent
the boay. Rex v. Witham Savings Bank,
521.
2. The Court, under stat. 9 G, 4. c, 92.
«. 45., granted a mandamus, calling upon
a savings bank to appoint an arbitrator
to decide between them and applicants
in whose names a deposit had been made,
though the depont had been withdrawn
by the person who made it for the appli-
cants, and though the published rules
directed that a duplicate book of the de-
posits should be delivered by the bank,
and be an authority for paying over any
sums to the person bringing it to the
Vol. I.
bank, and thoueh such a duplicate was
delivered up to the bank when the depo-
sit was withdrawn. Rex v. Cheadle
Savings Bank^ 323.
SEQUESTRATION.
1. What sequestration good against
assignees of insolvent clergyman. Statute,
I. 27. (2).
2. Vvhether bishop should be mada
party to a rule to set aside sequettratioii
issued by him. Statute, 1. 27. (2).
SERJEANTS.
Warrant respecting, 12S.
SESSIONS.
See Quarter Sessions, Special Sessiom,
SET OFF.
What replication to plea of set oft
admito. Pleading, CivU,yll.
SETTLEMENT OF POOR.
Poor, II., III., IV., v., VI.
SETTLEMENT OF PROPERTY.
Effect of voluntary settlement, as to
admissibility of declarations of settlor.
Evidence, II. 2.
SHERIFF.
L Functions of, upon writ of trial.
1. As to certifying, with reference to
costs. Costs, 6.
2. As to altering the postek Local
Court.
II. New trial after trial before sheriff.
What must be shewn on moving for
new trial. Trial, New,
III. Agreement with sheriff by pur-
chaser of distrained goods, under stat.
56 G, 3, c, 50. Distress, 1.
SHIFTING TRUST,
See Trust, Shifting,
m
SHIP.
When registered owner is liable for
repairs.
A steam vessel was let b^ charterparty
for twelve months, the registered ownen
engaging to keep the engine in repair,
3
9U
SHIP.
hut the charterer binding himself to do
all other repairs, to pay all wages, and
charges of navigating, Sic. and to indem«
nify the owners against all debts, costs,
damages, expenses, &c. incurred in re-
gpect of Uie charterparty and employ-
ment of the vessel. The owners were
to appoint the engineers. The charterer,
who acted as captain, had repairs done
to the vessel by persons unacquainted
with the above contract :
Hdd, that no action lay, in respect of
those repairs, against the registered
owners* Reetfe v. Davis, 312,
SIMONY.
What variation in the description of a
fiimoniacal contract shews a different
cause of action in counts added by a
judge's order. Order of Judge, 1.
SLANDER.
1. Proof of introductory avermait as
to pimntiff's character.
Where a declaration alleged that
plaintiff had been and was a physician,
and exercised that profession in England,
and on that account had been and was
called Doctor, meaning Doctor of Medi*
cine, and then stated that defendant slan-
dered plaintiff in his character of a phy-
sician practising in England, and denied
his right to be called a Doctor of Medi-
cine : Held, that the plaintiff must prove
that he was entitled to practise as a
physician in England^
Such proof is not furnished by shew-
inff the tact of his having so practised.
Nor by shewing that he has received
the degree of Doctor of Medicine at the
University of Si, Andrew^t, CoUim v,
Carnegie, 695.
2. What may be shewn by innuendo.
A count in a declaration for slander,
laid the words as follows :-^** You have
robbed me of one shilling tan money;"
and the innuendo explained the meaning
to be, that the plaintiff had fraudulently
taken and applied to his own use one
shilling received by him for the defendant,
being the produce of a sale of some tan
sold by the plaintiff for, and as a servant to,
the defencfanti but the facts stated In
this innuendo were not alleged by any
independent averment in the declaration :
Held, that the innuendo was had, as in-
trodudng new facts; and that, without
STAMP.
the innuendo, the count did not chai^
words actionable in themselves.
There were good counts besides, and
special damage was laid at the end of the
declaration. Judgment having been en-
tered on a verdict with damages generally,
it was held ill on error brought ; and
The court of error awanled a venire
de novo. Datf v. Robini(m, 554.
5, How special damage aids defecdve
counts, Jnie, 2.
4. Evidence of special damage.
In case for slanderous words, by reason
of which the plaintiff was turned out of
her lodging and employment, it appeared
that the defendant complained to E^
the mistress of the house, who was ha
tenant, that her lodgers, of whom the
plaintiff was one, behaved improperly at
the windows; and he addea, that no
moral person would like to have such
people in his house. E. stated in her
evidence, that she dismissed the plaintiff
in consequence of the words, not be*
cauge she believed them, but because she
was afraid it would offend her landlord
if the plaintiff remained :
Held, that the action was maintain*
able, the spedal damage being the con-
sequence of slanderous words used b^
the defendant. Krught v. Gibbt, 43.
SMUGGLING.
What warrant will support committal
under stat. 3 & 4 fF. 4. c. 53. Statute^
1.35.
SPECIAL CASE.
Case, Special,
SPECIAL DAMAGES.
Damages.
SPECIAL SESSIONS.
What surveyor's expenses they may
allow, so as to take away certiorari.
Statute, I. 13.
STAMP.
Effect of want of stamp upon a written
agreement for a lease for years, as to the
agreements in the lease. Landlord and
Tenant, I,
STATUTE.
STATUTE,!, i,f.
975
(STATUTE.
I. Decisiong on particular ptMo eta*
tutes.
1. 8 /T. 6. r. 9. Proceedings on forcible
entry,
A conviction under stat. 8 H. 6, e. 9,
set forth a complaint made to two justices,
of an entry into premises of the complain,
ant, an unlawful ejectment, and a forcible
detainer by the defendant j that the jus-
tices, on personal view, found the de«
fendant forcibly detaining, according to
the complaint, and that he was therefore
convicted by them of forcible detainer
by their own view. The defendant gave
a written notice to the justices, after the
conviction, denying the force, and com*
plainant's possession. On an inquisition
afterwards had, the iury found a seisin
in fee by the compuunant, and an un»
lawful entry, ejection, and forcible de*
tainer. The justices indorsed upon the
inquisition a memorandum of having
reseised the premises and put the com*
plainant into possession. The conviction,
inquisition, and memorandum 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 man*
damns to amend the return by returning
the information, and by returning on the
face of the conviction the evidence given
touching the entry, and the facts touch*
ing the conduct of the defendant on the
view, it not being suggested on affidavit
that any evidence was received by the
magistrates on the view. The Court
gave no opinion as to the validity of the
conviction. Eex v. WUfonf 627.
( 1 .) Objection to charge on benefice,
how raised.
On a proceeding under the In*
terpleader Act, at the instance of a
sequestrator, to settle the rights of
several sequestration creditors of a
beneficed clergyman, a creditor claimed
under a warrant of attorney, which ap*
pcared, by memorandum indorsed, to
be given by the clergyman for the
purpose of securing an annuity granted
by deed ; Held, that the creditor need
not shew the deed, in order to prove
that it was free from objection under
Stat, 13 Eliz, r. 90,, the warrant of
attorney being, on the hoe of It,
regular, JiAmon v. Bmkry 624,
I (9) What is a charge on the benefice,
J?, a beneficed clergyman, gave S. 4
warrant of attorney to enter up judg*
ment against him for 9600/. The de*
feasance recited, that S, had agreed to
purchase an annuity of H* for 1800/.,
and that the annuity was, or was in*
tended to be secured to S» by indenture
of even date with the warrant of at-
torney, charging the annuity on his
benefice; and that ^. and ^T had also
agreed that the annuity should b#
seaired bv warrant of'^ attorney as
above, which had been executed, Tb6
defeasance further declarad, thai the
judgment on the warrant of attorney
was to be a collateral security only,
and that execution was not to issue
till payment should have been twen^*
one days in arrear, in which case, and
as often as it should so happen, 8*
might immediately obtain sequestration
of the rectory, to the intent that be
should recover the arrears.
The Court set aside the warrant of
attorney, as charging the benefieei
contrary to stat. 13 JSJIv. r, go,
JET. gave another warrant of attorney
to 5. 8, reciting an agreement between
them for the purchase bv 8» 8% of an
annuity for 1950/„ sucn annuitv to
be charged upon his benefice, ana also
secured by ^.'s warrant of attornev,
and jud^ent thereon, for S900/, It
then recited an indenture between the
parties, charging the benefice with the
annuity, ancf declaring that the Judg-
ment was to be a security for the same,
and that. In case of deikult in payment
for twenty*one da^rs, it should be law-
ful for 8 8* to issue execution for
5900/, and costs. In order that be
might sequester the benefice, and
thereby be in possession In trust for
better securing to him all arrears then
due on the annuity, and all ftiture
payments thereof; and It was further
stipulated by the Indenture, that ex*
ecution was not to be sued out before
default, but might issue as often ai the
annuity should be In arrear. The
warrant of attorney then proceeded,
In pursuance of the said agreementa
and for further securing the annuity,
to authorise the attormes to confess
judgment for 3900/. &o«
Tiie Court set the warrant of at-
torney aside, SaUmurik^ ▼• StwfH^
tmi Skrlnc t, ffew^t, 8ia,
5S9 5.4SEfm,
976
STATUTE, 1. 5—1 1.
5. 45 EUz. c* 5. Who may certify to
deprive Plaintiff of coits. CosU^S,
4. 7 Jo. I . c. 5. When magistrates shall
have double costs.
In an action ag^nst magistrates for an
act done in the performance of their duty
as such, the plaintiff obtained a rule of
Court to remove the action to a county
different from that in which itwasbrough t ;
he undertaking, by the rule, to pay the
defendants' costs of the removal. The
defendants obtained a verdict : Held, that
the defendants' costs of the removal were
not to be doubled, under st« 7 Jac* 1. c. 5.,
and 21 Jac, U c, 12. Thoxnoi v. Sawf
deri^ 552.
5. 21 Ja. 1. c* 12. Arde, 4.
6. 21 Ja. U c. 15. What defecU it
cures. Error ^ 1.
7. 21Ja. I. cl6.
( 1 •) What is admitted by replying the
statute of limitations to a plea of set
oC Pleading, Civil,\m.
(2.^ What payment answers a plea
of this statute.
[1.] A parish vestry resolved to
borrow money from H, N,, who
advanced it, and took promissory
notes for the amount, made by P.,
W.^ and JF*., who were churchwardens
and overseers, and who added to
their signatures the titles of their
respective offices. Interest was paid
on the notes, from the parochial
funds, and the accounts containing
the item were allowed by the ves-
try ; and W.^ with other parishioners,
signed the allowance in one instance.
P., W,y and F, resided constantly in
the parish. To an action brought
on the notes, against P., W,, and P.,
within six years from W.\ signature
of the allowance, (but not from the
making of the note,) the statute of
limitations was pleaded. The jury
having found for the plaintiff, the
Court sustained the verdict. Rew
v. Pettety 196.
[2.] A joint and several promissory
note was signed by 5., and after-
wards by de^ndant, as surety for 5.
There was a subscribing witness to
' /S.'s signature. Defendant being sued
(alone) on the note, pleaded the sta-
tute of limitations ; and at the trial
it was proved, to take the case out
of the statute, that a person named
S, had made payments on the note.
Evidence^ but not that of th« sub-
scribing witness, was offered to shew
that the name S. on the note was the
hand- writing of the party who made
the payments :
Held, that this could not be
proved without calling the subscrib-
ing witness, and that without such
proof there was no prim^ facie case
in answer to the plea. Wyldt v.
Porter, 742.
8. 29 Car. 2. c. 5.
(l.) What sufficient statement of
consideration for promise to pay debt
of another. Guarantee, 1.
(2.) When a lease for a number
of years is void, as to duration of
term, for want of writing, how the sti-
pulations in the lease are affected.
Landlord and Tenant^ 1.
9. 8 Ann. c. 4. Payment to landlord on
dbtraining. Distreu, I.
10. 9 Ann. c. 20. Demurrer to return to
mandamus. Mandamus, 4.
1 1. 2 G. 2. c. 2J. Costs on taxation of
attorney's bill.
(I.) A defendant, who, upon com-
promising a suit, has undertaken to
pay the plaintiff's costs as between at^
torney and client, is entitled to the
costs of taxing the attorney's bill,
under stat. 2 G. 2. c. 25. i. 23., if upon
such taxation, had under the plaintiff's
authority, more than one-sixth has
been deducted. Sadler v. Palfrey-
man,'! n,
(2.) If, on a taxation of an attorney's
bill, as between attorney and client,
the Master strike off a part of the
charges, on the ground that the client
is not the person liable for such part,
the sum upon which the sixth is to
be calculated, under stat. 2 G. 2. c. 23.
i. 23., is the original bill reduced by
the part so dissJlowed; and the di^
allowance of such part is not a reduc-
tion upon taxation within that clause.
Costs in a suit were taxed as be-
tween party and party, and the residue,
after taxation, paid to the attorney of
the successful party. The attorney
afterwards delivered hb bills to his
client, under an order of Court for
such delivery, and for a general re-
ference of the bills for taxation. They
included, among other matters, the
above costs as reduced, for which the
attorney gave credit : Held, that he
was entitled to insert the reduced, and
not the original amount of cofts» and
that.
STATUTE, 1. 12—20.
Sf77
ihat, on taxation of the bills, the client
could not add the sum formerly de-
ducted from these costs to the sum
taxed off from the general amount of
the bills, in order to make the whole
deduction exceed one sixth of such
amount.
Although the statute 2 G. 2. c, 25.
9, 25., directs that where an attorney's
bill on taxation has been reduced b^
less than a sixth, the Court ** in their
discretioti," shall charge the attorney
or client with the costs of taxation ;
the proper course in such cases is,
that the client be charged with the
costs j Held per Taunton and JViU
Hams Jii,y LUtUcUUe J, dubitanie. Mills
V. Revett, 856.
12. 22 G. 2. C.46. When attorney will
be struck off roll, under sect. 11. Al-
tomeyy 5.
15. 13 G^. 5. c. 78, What expenses
Special Sessions may allow, so that cer-
tiorari shall be taken away.
Two surveyors of the highways in-
cluded in their accounts certain expenses
incurred in supporting the appointment
of one of themselves, as surveyor for a
previous year, against an appeal to the
quarter sessions; which appeal was dis-
charged ; and the expenses in opposing a
rule for a certiorari to remove into the
Court of King's Bench their accounts, as
surveyors, for a previous year, which
rule was discharged.
These expenses had not been agreed to
by the inhabitants, nor allowed by a jus-
tice, before they were charged in the
accounts. The accounts being submitted
to a meeting of the inhabitants, the items
referring to these expenses were objected
to. The accounts were duly taken to a
single justice, who postponed the allow-
ance to the special sessions-, at which the
accounts were allowed. The items were
objected to both before the single justice
and at the special sessions : Held, that
the special sessions had jurisdiction, un-
der Stat. 15 O.3. c. 78. X. 48., to allow
the accounts; and that, therefore, by
the eighty-first section of the same sta-
tute, the order of allowance could not
be removed by certiorari^ Rex v. -Foii;-
ler, 856.
14. 45 G, 5. c» 92. Subpoena underi. 5.
In the statute 45 G, 5. c. 92. s. 5.,
for enforcing the appearance of persons
served with subpoena in one part of the
United Kingdom, to give evidence in
another, the '^ parts " signified are Eng-
land, Scotland, and Ireland,
Where a person has been served with
a subpoena, not issued from the Crown^
ofiice, to appear and give evidence aC
Quarter sessions, and makes default, the
lourt of King's Bench cannot attach him
for contempt, either by its general au-
thority, or by virtue of the alKivestatate.
7%e King v. Broumelly 598.
15. 48 G. 5. c. 125. Who will be dis-
charged under.
The statute 48G.S. e; 125. for the
discharge of persons in execution npon
any judgment for any debt' or damages
not exceeding 20/., applies to persons in
execution for damages in actions of as-
sault. Winter v. Eiliolt, 24.
16. 54(?.S. c. 170. When inhabitants
may be witn^ses.
^ The rated inhabitants of a district in-
dicted for non-repair of a farighwajr, zxt
not rendered competent witnesses for the
defence by stat. 54 G, 5. c. 170. s. 9.
The King v. TTie InhaMUmU of Bishop
Aueklanal 744.
1 7. 55 G. 5. c. 1 57. What is within s, e.
The statute 55 G.5. e. 157. #. 6. which
prohibits any churchwarden, overseer, &c«
from " supplying, for his own profit, any
goods, materials, or provisions for the
use of any workhouse or otherwise for
the support and maintenance of the poor
in any parish, &c, for which he shafl be
appointed," does not extend to a person
domg work on the workhouse, and sup-
plying materials incidentally to such work;
as a painter and glazier who mends the
windows of the workhouse, providing
paint, glass, and lead. Barber v. W(dte,
514.
18. 56 G. 3. c, 50. Execution on farm.
Distress^ 1.
19. 56 G,3, c. 159. What is expense
incurred by parochial funds, under x. If.
Poor,y. 1.
20. 58 G. 5. c. 69. Regulation of vestry
under.
A local act passed before the statute
58 G. 5. c. 69., for the regulation of pa-
rish vestries, created the office of guar-
dians of the poor for a particular parish,
and enacted, that vacancies should be
annually filled np by the rated inhlabitants
assembled hi the testry room, whO' should
elect persons in the room of those eoidg
out : Held, that after the passing of stAt.
58 G. 5. c. 69. the inhabronts most be
allowed in such election the namber of
5 S 5 votes
97&
STATUTE, I. 21 -.2T.
votes in proportioii to their respective
BsMttinents, aefindl in the latter act ; for
that tho iocal act did not give this vestry
Mich a peculiar constitution as to bring it
within sect. 8. of 58 0. 3. c, 69., which
preserves to vestries holden under an^
ipeeiai act, the powers and rights of
voting which they previously enjoyed.
Mat V. 7%e Ckurckufotdens of St, James,
defkenweU, 817.
SI. 59 <?. 9* e. SO, Settlement by
renting a tenement. Poor^ IV. 2.
92. a G, 4. c, 27. What defects b
conviction «. 9. cures. Pott, 36 .
25. 4 (?• 4. c. 64. Power and proceed*
Ings of justices under the act.
(t.^ Held by the Court of King's
fiencn {Parke J. dubitante), and the
iudgment affirmed on error in the
Excnequer Chamber, that under stat.
4 0, 4. c« 64. the justices of a town and
county of a town, mentioned in schedule
A. to that act, might* rate the inhabit*
ants for rebuilding the gaol of such
town and county on a new site :
Although by a local act, which had
been earned into efiect, it had been
enacted that ground should be pur**
ehased) and conveyed to the corpor-
ation of the said town, and that the
justices for the town and county should
cause a new gaol to be built thereon ;
that a limited sum should be raised by
asseument on the town and county,
^or the purposes of the act respecting
Buoh gaol, the surplus to be repaid
proportionally to the parties assessed ;
and that such ^ol, when finished,
should be a public gaol for the town
and county, and should from time to
time be maintained^ nupported, and
repaired by the corporation;
The sixty-eighth section of 4 0,4,
c, 64. enacts, that the justices in ses*
sions may raise money on the counties,
towns, 9c. to which the act extends,
for defraying the expenses of the mat«
ters and things thcrein^before directed
to be done respecting gaols, &c., in the
same manner as rates applicable to the
building, repairing, or maintenance of
such prisons respectively are now di»
rected to be raised by law :
Held by the Court of Error, that
this applies only to the mode of raising
such rates^ and not to the persons on
whom they are to be kid.
^. Held by both Courts, that the power
of the justices to rate as above is not
limited by itat. 5 G. 4. c. 85. t. 15.
Held by the Court of Kiair's Bench,
on the construction of 4 G. 4. c. 64.
Si, 45. 50., that when a presentment
has been made as to the propriety of
removing the ute of a 0ol» and the
justices in session have taicen such pre*
sentment into consideration, giving the
notices required by sect. 45., and have
resolved that the site ought to be
changed, such justices may at their
next session confirm the resolution,
and contract for building the new gaol,
without having given fresh notices.
Thompson v. Rmkes, 869.
(2.) Same decision (in K. B.) as in
the case above, on the power of the
justices to make the rate.
Held that, under 4 G, 4. c. 64. i. 68.,
which empowers justices to raise money
for the purposes of the act, as to
gaols, in the same manner as rates
applicable to the building, repairing,
or maintenance of such prisons re-
spectively are now directed to be
raised, the justices of a town and county
might have power to raise money on
the inhabitants in general for the pur-
pose of building a gaol, though other
persons might have been liable at tbe
time of passing the act, and might con-
tinue liable, to the expense of repairing
and maintaining such gaol. Rejt v. The
Justices of Kingston-upoH-HuU, 8 80.
24. 6 G.4, C.85. How far s* 15. limits
powers given to justices under stat. 4 G.4.
r.64. <ifi/^, 23. (I), (2).
25. 6 G, 4.C. 16.
(1.) Apparent ownership by bank-
rupt, under s» 72. Bankmpty 11.
(2.) What contract is protected by
«. 81. Bankrupt^ II. 4.
26. 6 G, 4, c, 57. Settlement by renting
a tenement. Poor^ IV. 3,4.
27. 7 G, 4.C. 57.
(r.) Apparent ownership by insolvent
debtor.
Under the thirtieth section of the
Insolvent Debtors* Act (7 G.4.c, 57.)
a debt due to the insolvent will pass to
the provisional assignee, although it has
been assigned to a third party before
the insolvent's imprisonment, if notice
of such assignment was not given
to the debtor before such imprison-
ment.
A plea in assumpsit alleged, that
the debt sued upon had vested in the
provisional assignee, the plaintiff having
become insolvent, and having executed
an assignment under the act. The re*
plication
STATUTE, 1. i8— 31.
979
plication alleged an assignmetit to a
third party before the imprisonment,
for good consideration :
Held, on general* demurrer, that the
replication was bad, for not alleging
that the debtor had notice of such
assignment. Buck ▼. Lee^ 804.
(2.) Rights of assignees over parson's
benefice.
The assignees of an insolvent clergy*
man do not acquire any ri^ht to nis
benefice, or the income of it, by the
assignment, nor until they have ob*
tained a sequestration, as directed by
7 (r. 4. c. 57. t, S8., after adjudication
by the Insolvent Debtors' Court on
such insolvent's petition. An indivi-
dual judgment creditor may sequester
the benefice for his own debt, notwith-
standing the assignment to the provi-
sional assignee ( and the assignees, after
adjudication, are not entiSed to set
Ei5ide the sequestration of such cre-
ditor, or to claim precedence over it
for a sequestration issued by them pur-
buant to the act.
Sect. 34. of the Insolvent Debtors'
Act, 7 G. 4. c, 51. enacts, that where
a prisoner who applies for his dis-
charge under that act shall have exe-
cuted any warrant of attorney to confess
judgment, no creditor obtaining judg-
ment thereupon shall, after the impri"
sonmcnt of the debtor, avail himself of
any execution issued or to be issued
on such judgment, by seizure and sale,
or by sale, of his property :
Held, that the sequestration of an
ecclesiastical benefice is not an exe>
cution within this clause*
When the Court is moved to set
Aside the sequestration of a benefice,
issued by the bishop, Qtuere^ Whether
the bishop must be made a party to
the rule. Bishop v.* Hatck, and Chuter
V. Hatch, 171.
(.3.) What judgment void under
section 32.
Semble, that to make a judgment
void as being voluntary under the
thirty-second section of the Insolvent
Act (7 (r. 4. c. 57.), there must be
collusion between the party suffering
it and the creditor recovering it, for
the purpose of giving the latter a pre-
ference :
At any rate the mere circumstance
of the judgment being suffiered by de-
fflult, does not make it void under that
section, if there be a bon4 fide debt*
Thorpe v. Eyre, 986*
(4.) What is an execution under
section 34. Anth^ S.
(5.) Whether outlawry reversible
upon dischaf^e of outlaw under the
act. Outlawry,
38« 9 G. 4. c. 99. When directors of
Savings Bank must appoint arbitrator*
Savingi Bank%
29. 1 1 G. 4. & 1 ^. 4. c. 70* To what
writs of error section 8. applies.
The statute 11 G. 4 & l fT. 4. c. 70*
«. 8. for the return before ten judges in
the Exchequer Chamber of writs oferror
upon judgments given in theKing^tBench,
donuuon Pleas, and Exchequer, extends
to a judgment given for the Crown on
an indictment in the King's Bench. Rex
v. Wright, 434,
30. 1 W. 4. c. 18. Settlement by rent-
ing tenement. Poor^ IV. 1*
31. 1 & 9 fK. 4. c. 60. Election of
vestrymen and auditors*
(1.^ When the act for the better re«
gulation of vestries, 1 & 9 H^. 4. c* 60*
nas been adopted in a parish^ there
roust be elected, at each of the first
three annual elections, one third of the
whole number of which the vestry
chosen under the act u ultimately to
consist ; and there roust be deducted,
by lot, from the original vestry, at the
fiirst election, one third of the number
of vestrymen then existing (whatever
the full regular number of the original
vestry would be); at the second elec»
tipn, half the number of the original
vestrymen then existing ; at the third
election, all the remaining original ves*
trymen.
(2.) A parish adopting the act had
previously been divided into four dis^
tricts, for the more conveniently col*
lecting the rates, and this division had
been adopted for taking the poll in the
election of members of parliament ; a
small part also of the parish was an-
nexed to a part of an adjoininff parish,
and separated from the originiu parish,
for ecclesiastical purposes :
Held, that the election of vestrymen
and auditors might be made in one
place of the parish only*
(3.) If a parish adopting the act be
within the metropolitan police district
or the city of London^ or contain
more than 5000 resident householders,
the qualification for vestrymen is, that
3 S 4 they
(
980
STATUTE, 1. 31—36.
they should be resident householders, |
and should also he rated to the poor
rate of the parish on an annual rental of
not less than 40/.; but the rental may
be made up of tenements separately
held, and not in the occupation of the
vestrymen.
(4.) The qualification must he perfect
at the time of election, but, if unquali-
fied persons be elected, this does not
avoia the election of qualified vestry-
men or auditors elected at the same
time.
(5.) A parish which adopted the act,
had previously been governed by a
vestry established by a local act, which
defined the qualification of a vestryman,
and prescribed an oath to be taken
before any vestryman should be capable
of acting in the execution of that local
act ; by the oath, the person swore to
execute the powers reposed in pursu-
ance of the same, and that he was pos-
sessed of the qualification prescnbed
thereby, which was different from that
reauired by 1 & 2 fT. 4. c, 60. :
Held, tnat this oath was not to be
taken by the vestrymen elected under
the latter act. The King v. 7%e
Churchwarderu of St, PancraSy 80.
32. 2 W. 4. c. 39.
(l.) Consequences of variance of de-
claration from capias. Arrest^ 1.
(2.) Of variance between capias and
copy. Arresiy 3.
33. 3 & 4 }V, 4. c. 1 5. Who is assignee
of copyright.
A person to whom the copyright of a
dramatic piece has been assigned, pre-
viously to, and within ten years of, the
passing of stat. 3 & 4 IV, 4. c. 15. (1 0th
June 1833), is an assignee within that
clause of the act which gives to the
author's assignee, in the case of a dra-
matic work published within ten years,
the sole liberty of representing it. Cum-
beriand v. Plmiche, 580.
34. 3 & 4 IV. 4. c. 42.
(1.) Amendment at Nisi Prius.
[l.] Amendment^ 1.
[2.] Ejectment, 2,
(2.) Power of judge of inferior court,
upon writ of trial under *. 17., to
certify against plaintiff's costs. Costty 5.
(3.) Liability of executors to costs.
Under 3 &4W, 4. c. 42. *. 51., ex-
ecutors are liable to costs in actions
commenced before the statute came
into operation, and tried afterwards :
Held, LUUedale h dissentieiite. Frt9»
wutn V. JkToyeSy 338.
(4.) What must be shewn on ax>vin^
for new trial atter trial under 1. 17.
Trial, New, 1, 2.
(5.) Interest on writs of error.
The enactment of 3 & 4 IP. 4. c. 42.
1. 30., that if any person ** shall sue
out^any writ of error," Sec, as there
mentioned, and judgment shall be given
for the defendant m error, the court
of error shall allow interest for such
time as execution has been delayed by
such writ, applies only where the writ
has been sued out since the passing
of the act. Bum v. Carva/ko^ 895.
35. 3&4 JV.4. C.S3. What a good
committal.
A party convicted in a penalty under
an act against smu^iog (3 & 4 H^ 4.
c. 53.), was committed to gaol by war-
rant of the convicting justices, till be
should pay the forfeiture. The act
(sect. 90.) empowers justices to amend
any such convictioD or warrant of com*
mitment, whether before or after con-
viction. Four days after the committal,
the warrant (which was defective in point
of law) was withdrawn fix>m the gaoler^s
possession, and another substituted; it
did not appear by whom. The second
warrant was of the same date, and signed
and sealed by the same jusrices as the
first, and did not materially vary from it,
except that in the recital of the con-
viction certain cordage was said to be
adapted for *' slinging*' casks, instead of
" shnging or sinkijig ;*' and the name of
the place at which the party was said to
have been detained for his o£fence, was
altered. The above facts, and copies of
the warrants, being returned on cer-
tiorari and habeas corpus :
Held, that the court could not pre-
sume, either from the facts returned, or
from the warrants, that the second war-
rant was substituted by the justices as
an amendment of the first, in pursuance
of the authority given them by the act.
The prisoner was discharged. In the
matter of Eimy and Sawyer, 843.
36. 3 & 4 W. 4. c. 55. Conviction
under.
A conviction under stat. 3 & 4 W.A.
c. 55. 1. 27. stated that the defendant
refused to deliver up a certificate of re-
mstry to his Majesty* s officers of customs:
Held, that this was bad, as not bringing
the ofience within the words of the
section*
STATUTE, II. 1—4.
981
section, ^ shall refuse to deliver up to
the proper officers of his Majesty's
customs."
The conviction did not state for what
purpose the certificate was required:
Held, per Liord Denman C. J. and WU'
lianu J., that this omission also made the
conviction bad, as not satisfying the
words of the same section, '' to deliver
up for the purpose of such ship or vea*
sel, as occasion shall require."
Held also, that these were defects in
substance, and not cured by the general
act, 3 G. 4. c. 23. t, 3. Rejc v. Walth^
481.
II. Decisions on particular local and
personal statutes.
1. Canal Acts. See Ccmal Act.
2. Certiorari, when taken away by
Local Act. Certiorari, II. 2.
3. Costs of proceedings to assess com-
pensation. Cotti, 3.
4. Hungerford Market Act.
(1.) How it affects the Building Act.
By the act (U G.4. c. 70.) estab-
lishing the Hungerford Market Com*
pany, they are authorised to pull down
certain messuages or buildings, and
erect others on the site, making com-
pensation (to be assessed, if necessary,
by a jury) to the owners of any pre-
mises which mav be damaged by the
taking down of such messuages or
buildings. The act also provides, that,
for preserving uniformity in the build-
ings to be erected, the same shall not
be subject to the provisions of the
Building Act, 14G. .% c.78., nor shall
Buch provisions be enforced with respect
to the same.
The company having bought pre-
mises, No. 22., under the authority
and for the purposes of the local act,
gave notice to the tenant of the ad-
joining house. No. 25., pursuant to the
Building Act, that the party wall be-
tween the two houses was apprehended
to be unsafe, and that the owner or
occupier of No. 23. was required to
appoint surveyors to meet those of
the company on a day named, and
certify its condition. They had after-
wards leave, from an agent of the
tenant, to make the survey earlier
than the time .fixed by the notice.
Upon such survey, the wall was con-
demned; and before the time first
named for the survey, the company,
having served the tenant of No. 23.
with the surveyors' certificate, accord-
ing to the Building Act, began to pull
down the wall, which was then rebuilt,
and the landk>rd of No. 23. paid half the
expense, according to the Building Act.
They also pulled down and rebuut the
whole of No. 22. The tenant claimed
compensation, under the local act, for
losses sustained (in business and other-
wise) in consequence of the above pro-
ceedings: the only material damage,
however, appearing to have resulted
from the taking down of the party wall :
Held, that the clause excludine the
operation of the Building Act did not
apply to party walls between the com-
pany's houses and those of other per-
sons.
Held, also, upon the facts of the
case, that the pulling down of the party
wall was a proceeding not under the
authority oi the local act, but under
the Building Act, although the parties
had waived the notice given under the
latter act, with respect to the time
of survey. Bex v. The Hungerford
Market Company (Ex parte leates),
668.
(2.) What done in execution of the
act.
The statute 1 1 G. 4. c< 70. gave to
the Hungerford Market Company
general powers to purchase and hold
lands; and also a power to purchase
certain specified lands and houses, at a
price to be assessed, if necessary, by a
jury ; the costs of the assessment to be
borne by the company, if a higher
Crice was assessed than they ofleredy
ut otherwise by both parties equally.
The company were empowered to erect
a market-house, and other convenient
buildings, &c. for a market^ and were
directed to make a certain avenue^ If
any injury should be done to any mes-
suages, &c. by the taking down of any
buildings for the purposes of or in the
execution of the act, compensation was
to be assessed in the manner before
f)rovided for ascertaining the value of
ands, &c. to be purchased. No action
was to be brought for any thing done
in pursuance of the act, or of the
powers given by it, without twenty-"
eight days' notice, nor six calendar
months after the cause accniing :
Held, that injury done to a house
not specified in the act, by taking down
an actjoining house, which aUo was not
specified.
MS STATUTE, 11. 5.— III.
Boecified, but had been purchased by
tne company, and which was taken
down to make the avenue, was not an
injury for which a jury could be sum-
moned to make compensation under
the act; and that taking down the
party wall between the two houses was
not such an injury.
Quitrcy Whether the clause as to
the notice and limitation of action
would have been applicable, if the
owner of the house injured had
brought an action ? Rex v. The Hun-
gerford Market Companjf. (Ex parte
£yre)y 676.
And see anih (1).
5. Inclosure Act.
(1). When appeal against award to
be made. Appeal^ 1.
(2.) What notice of award to be
given by Commissioner. Kotice, J.
6. Local Court, what is a debt within
Jurisdiction of. Local Court
7. Turnpike Act, how construed.
A local turnpike act imposed tolls for
every horse drawing any coach, and other
tolls upon every horse not drawing; it
provided, generally, that if the tolls bad
in any one day been paid for the passing
of any horse, such horse should on that
day be permitted to repass once toll free ;
but enacted that the tolls for horses
drawing any stage coach should be pay-
able every time of passing. The trustees
let the tolls, with power to collect them
according to the act, and subject to such
rules and restrictions as should be made
by the trustees; and the lessee conve-
nanted with the trustees, to permit the
owners of stage-coaches, waggons, &c. to
pass in the following manner; viz., horses
drawing any such carriage, as therein-
before mentioned, to be respectively al-
lowed to pass along the road on payment
of full toll going, and quarter toll re-
turning, at any time during the same day.
Horses passed through a gate, drawing
a stagecoach, and full toll was paid for
them; they returned the same day, draw-
ing another stage-coach, and the lessee
exacted full toll t
Held, that the lessee ought, by his
covenant, to have demanded quarter-toll
only. Fentonv. Swalhiv^l25.
8. Vestry Act, how considered with
reference to 58 Gr.3. c. 69. *. 8. Anlby
1.20.
in. What shall be said to be done In
pursuance of statute.
SURRENDER, 1, 3.
1. Canal AcL
2. Antky II. 4.
IV. Of what year a statute thall be
entitled.
A statute passed in a session of par*
liament begun in the second, and con-
tinued in the third vear of a king's reign,
must not be pleaded as passed in the
second and third yeart of the reign : al«
though such act be recited in a later sta*
tute as '* passed in the second and third
years," &c.
On indictment for conspiracy, laying
in the inducement that the defendants
knew the party conspired against to bear
a certain character, and to be liable in
that character to the operation of an act
passed in the second and third years, &c.
adding the title of the act correctly, the
judgment was arrested for such misre-
cital.
And this, although there was a general
count (to which the objection did not
apply,) stating merely that the defendants
conspired ** by false, artful, and subde
stratagems and contrivances, as much as
in them lay, to injure, oppress, aggrieve,
and impoverish*' the prosecutors. RexY,
Biert, 327.
V. What statutes bind the King. Ante,
I. 29.
VI. When a statute is retrospective.
Ante, 1.34. (!i)AS)'
SUBPCENA.
1. W*hat subpoena is within stat. 45 0.3-
c. 92. 8. 3. Statute, I. 14.
2. What subpoena it is a contempt of
the Court of K. B. to disobey. Statute,
I. 14.
3. Whether witness producing docu-
ments under subpoena duces tecum, muit
be sworn. Evidence^ V. 1.
SURETY.
1. Whether surety and principal were
several or joint contractors. Agreement^ l.
2. Interpretation of surety's under-
taking for the appearance of a debtor.
Agreement, 2.
3. Pleadings and evidence in action
against surety. Guarantee*
SURRENDER.
1. Limitation of uses on a surrenderor
copyhold. Copt/hold, 1.
2. How surrender of copyhold proved.
Evidence, VIII.
9> Suf'
SURRENDER, J, 4.
TRIAL, NEW, 1.
985
3. Hiirrcnilcr by opcralion of law.
Poor, IV.
4. Surrender in discharf^ of bail,
whence reckoned, as to charging party
in execution • Execution, under a Judg'
meni, 2.
SURVEYORS.
"■ What expenses of surveyors allowable
by special sessions, so as to take away
certiorari. Statute, I. 19.
TAXATION.
1. What attorney may include in his
bill of costs. Attornctf^ '2.
2, What he umy have taxed. Statute,
I. 11. (2).
". Who may have costs of taxation,
within Stat. 2 G, 2. c. 23. t, 23. Statute,
I. 11. (1).
4. Mow the sixth on an attorney's bill
shall be calculated. Statute, I. 1 1. (2).
TENANTS IN COMMON.
Demise by, in ejectment. Ejectment, 2.
TENANT AND LANDLORD.
See Landlord and Tenant*
TENEMENT.
Settlement by renting tenement. Poor,
IV.
TERMINATION OF ADVENTURE.
Insurance, 2.
TITHE.
1. Presumption of grant.
Non-payment of tithes does not raise,
ns against a lay impropriator, presump-
tion, to go to a jury, of a grant of the
tithe to the landowner.
t)vidence of a right to all kinds of tithes,
in a lay impropriator, up to a given time,
and of the receipt of the corn tithe since
that time by another party, is evidence
from which a jury may, if they think fit,
infer a grant of all the tithes by the first-
mentioned impropriator to such latter
party ; and, therefore, the latter, in sup-
|)ort of a claim for hay tithe, may give
documentary or other evidence of hay
tithe having been taken by the presumed
grantor. Bayley v. Drevcr, 449.
2. When tithe is extinguished, so as to
affect ratcability to poor. Poor, I. 1 .
TITLE. •
1. When one may impeach the title of
party through whom he claims. EMemcCf
XIIL
2. What evidence of title necessary to
protect from distress for rcnt^harge*
Rent'charge, 2
TOLL.
1. What to be taken under canal act.
Canal Act.
2. What under turnpike act. Siahdef
IL 7.
3. Interpretation of charter exempting
from toll.
Under charters, granting to a dean and
chapter, " that they and all their men
shall be quit of toll, passage, cheminage,
&c. in city and borough, fair, and market,
in the passage of bridges, and all ports of
the sea, in allplaces throughout £n^/imi,'*
their lay tenant of lands mcluded in the
charters is exempt from market toll and
toll traverse, not only for articles going to
or coming from the lands for the neces*
sary manurance and enjoyment of them^
but also for goods sent out or coming in
for the purpose of merchandise.
Quarc, Whether, in the latter case, the
exemption could have been claimed by
ecclesiastical persons*
Quare, also, Whether the exemption
from toll claimable at common law by
ecclesiastical persons and tenants in an-
cient demesne, extends to goods bought
and sold, or carried, for the mere puqiose
of trade. Lord Middletonv. Lambert^ 401 •
TRANSCRIPT.
What is transcript of record, and whe-
ther amendable. Inferior Court, II. 1.
Certificate^
TRIAL, NEW.
What to be shewn, in moving for new
trial afler trial under J & 4 H\ 4. c. 4S«
1.17.
1. Where a cause has been tried before
a sheriff or judge of an inferior court by
order, pursuant to J& 4 ^.4. c. 42. 1. 17.5
this Court will not hear a motion for a
new trial, unless the notes of the sheriff
or other judge be produced and verified
by affidavit. Such notes, however, need
not be filed. Man^ldv. Brearey^ 347.
8. Th«
USES.
WARRANT, I. 1. 2
985
USES.
Limitation of uses, on a surrender of
copyhold. Copyhold^ 1.
See further, Tnut, Shifting,
USURY.
When inferred, on face of pleadings.
On demurrer to a declaration framed
on a contract which is in terms a pur-
chase of an annuity of 20/. for sixty
years for the price of 200/., the Court
will not infer usury. Ferguton ▼.
Sprang, 576.
VARIANCE.
1. Between capias and copy. Arrett^ 3.
2. Between aeclaration and capias.
Arrest, 1.
3. Between declaration and evidence.
Amendment,!. i Ejectment, 2^
4. Between judgment and final process.
Arrett, 2.
VENDOR AND VENDEE.
1. Action by vendee to recover price
paid on fraudulent misrepresentation.
Assumpsit, IV. 1.
2. Notice to vendee of conditions of
sale. Warranty.
3. Evidence of writing signed by ven-
dee of land, in an action by him against
the auctioneer to recover deposit. Evi^
dence, V. 4.
4. What amounts to a delivery by
vendor. Bankrupt^ 11. 4.
VENIRE DE NOVO.
When awarded, for uncertainty as to
application of damages to different counts.
Slander, 2.
VENUE, CHANGE OF.
Effect as to double costs. Statute, I. 4.
VERDICT.
1. When verdict entered on postea
may be altered. Local Court,
2. When uncertainty as to application
of damages to different counts shall be
ground for awarding venire de novo.
Slander, 2.
VESTRY.
1. When to be elected under 58 G. 3.
c. 69. Statute, I. 20.
2. How elected under 1 & 2 FT. 4.
c. 60. Statute, I. 31.
3. Adjournment of vestry.
A vestry being about to be held in
Manchester for the election of church-
wardens, notice was given that the meet^
ing would be held in the parish church,
but that, if a poll was demanded, it
would be adjourned to the town hall.
At the meeting there was a show of
hands, upon which a poll was demanded,
and Uiereupon the chairman, without
taking the sense of the meeting, adjourned
the election to the town hdl, where a
poll was taken : Held, that the proceed-
ing was resular, no business having been
interrupted by it, and the adjournment,
in a particular event, being part of the
original appointment. Rex v. The Arch-
deacon of Chester^ 342.
4. When Court will interfere with
vestry by mandamus.
A vestry having, by a show of hands,
paised a resolution, directing an ille«d
application of some charitable funds,
and a poll having been demanded of
the person presiding at the vestry, and
not granted, the Ck>urt refused a rule
for a mandamus to compel such person
to grant a poll. Rex v. The Church^
wardens of St. Saviour^ 380.
VOLUNTARY SETTLEMENT.
See Evidence^ II. 2.
WAGES.
What recoverable afler bankruptcy of
master. Hiring, 3.
WALLS, PARTY.
See Statute, II. 4.
WARRANT.
I
I. Of attorney.
1. What execution under warrant of
attornev is within sect. 34. of Insolvent
Debtors' Act. Statute, I. 27. (2).
2. When warrant of attorney bad, as
charging benefice. Statute, I. 2.
n. Of
9sa
WARRANT, 11.
11. Of committal.
Amendment of warrant of committal
for smuggling, under stat. 3 & 4 ^. 4.
c. 53. Statute, I. 95.
WARRANTS READ IN COURT.
1. Respecting Court of Common Picas,
189.
8. Appointment of Marshal, 377,
WARRANTY.
Of a horse, how qualified.
Plaintiff bought a horse, warranted
sound, by private contract, at a reposi-
tory. At the time of sale there was a
board fixed to the wall of the repository,
having certain rules painted upon it, one
of which was, that a warranty of sound-
ness, there given, should remain in force
till twelve on the day after the sale,
when the sale should become complete,
and the seller's responsibility terminate,
unless a notice, and surgeon's certificate,
of unsoundness, were given in the mean
time. The rules were not particularly
referred to at the time of this sale and
warranty. The horse proved unsound,
but no complaint was made till after
twelve on the following day. The un-
soundness was of a nature likely not to
be immediately discovered; some evidence
was given to shew that the defendant
knew of it ; and the horse was shewn at
the sale under circumstances favourable
for concealing it. After verdict for the
plaintiff^
Held, that there was sufficient proof
of the plaintiff having had notice of the
rules at the time of the sale, to render
them binding on him.
Also, that the rule in question was
such as a seller might reasonably impose,
and that the facts did not shew such
fraud or artifice in him as would render
the condition inoperative. Bt/water v.
Bichardson, 508.
WARREN.
What is a free warren in gross, or ap-
purtenant.
A grant by the King of free warren in
land, of which he is seised in fee, is a
grant of free warren in gross.
Therefore, where defendant, in trespass,
pleaded such a grant of free warren to
P„ and deduced title from P» to F., and
WILL.
pleaded a conveyance by F. of the said
free warren to the defendant; it was
held, that the plea was not sustained by
proof of a conveyance from /*. of a
manor, of which the land in question
was copyhold, with all and singular fish-
eries and right of fishing, fowling, hawk*
ing, hunting, and shooting; and all profit^
royalties, &c. and all other rights, liberties,
franchises, jurisdictions, privileges, com-
modities, advantages, hereditaments, and
appurtenances whatsoever to the said ma*
nor belonging, or in anywise appertaining
thereto, or at any time occupied or en-
joyed therewith, or reputed part, parcel,
or member thereof, or granted by the
King to P, as appurtenant to the manor.
And this, though it was shewn that the
King, at the time of the grant to P., was
lord of the manor, and held certain
demesne lands in fee, and granted the
free warren in both the demesne and
other lands of the manor.
Qiiare^ Whether the words of the con-
veyance by -F. would have conveyed a
free warren appurtenant to the manor?
Morris v, Dimet, 654.
WAVGOLNG CROPS.
When claimable. Arbitrator^ 2.
WIFE.
See Baron and Feme.
WILL.
1. Attestation. Evidence, III. 1, 5.
2, Interpretation. Baron and Feme, 5.
Trmt, S/nffing.
3, Effect given to codicil in modifying
will.
Testator by several unwitnessed memo-
randums subsequent to his will, left u
freehold house, acquired among other
estates since the date of the will, to his
daughter; and he afterwards made the
following codicil, which was duly attested :
— " I make this a further codicil to my
will; I give and devise all real estates,
purchased by me since the execution of
my said will, to the trustees therein named,
their heirs, dec. to the uses and upon tho
trusts therein expressed concernmg the
residue of mv real estates :" Held, that
the house passed to the trustees, and not
to the daughter. Utterton v. Robins^ 4i'5
4. What will shall be an execution of
a power. Power, 1 .
WL\.
WINDOW.
YEAR.
987
WINDOW.
What is a licence to open, and its effect.
Licence,
WITNESS.
See Evidence,
WORDS.
See Zander,
WRIT OF TRIAL.
See Trid, Wnt of,
YEAR.
Of what year a statute shall be en*
titled in pleading. Statute^ IV.
END OF THE HllST VOLUME.
Printed bjr A. SivninrooDi,
Neir-Stnet. Sqiurc.
rr
V ,;
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