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^ht Court ot l^ing'd H^pm^, 





JAMES MANNING, Esq. of Lincoln's Inn, 

^ AND 

ARCHER RYLAND, Esq. of Gray's Inn, 


VOL. V. 





AND V. & R. STEVENS {lau Suvem ^ Sont), 39, BELL YARD j 

OiUD HootollfTft anH 9ubU((ers: 



LLi.':'' : ;.. .FORD JR. U!J !':::::. ii 

JUL 15 1901 







During the period comprised in this volume. 

Charles Lord Tentekden^ C. J. 
Sir John Batlet, Kijft. 
Sir Joseph Littledale, Knt. 
Sir James Parke, Knt. 

Sir James Scarlett, Knt. 

Sir Edward Burtenshaw Sugden, KdI. 









ASPINALL, Sharp v. 


Bagshaw, Wilson v. 
BcaleSy Brett 9. 
B«lfordy Rex 9. 
Bennett v. Daniel 

r. Skandon 

Berkeley v. Demery 
Beroasconi v. Farebrother 
Beswick, Worswick v. 
Betfamm, Obbard v. 
Bignell v. Ellis 
Blackawton, Rex v. 
Blake, Hammond v. 
Borough 9. Moss 
Boucher, Fisher 9. 
Bowen v. Fox . 
Brett V. Beales . 

, Donlan r. 

Brown p. Duncan 
Browne 9. Cumming 
Butcher, Power 9. 


Cann, Ware 9. . 
Capper, Davies 9. 
Cfaew Magna, Rex 9. 
Cliolaielej, Cockerell 9- 










Clay 9. Harrison . • 17 

Clement, Fisher 9. • . 730 

Cockerell 9. Cholmeley • 509 

Colley 9. Hardy . . 123 

Const, Ward 9. . . 402 

Cooper, Daubeny 9. . 314 

1;. Meyer . . 387 

Coster, Fowler 9. . • 352 

Cumming, Browne 9. .118 


Daniel, Bennett 9. . • 444 
Daniels, Macpherson 9. .251 
Dare, Plaxton 9. • . I 
Daubney 9. Cooper . .314 
Davies 9. Rex ... 78 
Davis 9. Capper • . 53 

^ Mercer 9. . . 735 

Day 9. Picton . . .31 
Demery, Berkeley 9. . 442 
Dickinson 9. Valpy . . 126 
Doe d. Christmas 9. Oliver 202 
d» Evans v* Jones • 752 
Grubb 9. Grubb . 666 
Harris 9. Howell . 24 
Jackson 9. Hiley • 706 
Jones 9. Jones . 6i6 
Mann r. Walters . 357 
Nicholl 9. M'Kaeg 620 
d. Wigan 9. Jones . 563 



Donlan v. Brett 
Dowbiggin, Harrison v. 
Drummond, Muskett 9. 
DuDcaOy Brown v. • 


. 431 
. 210 

. 114 

Edingale, Rex v. . • 648 
Edmunds, Price «. . . 237 
Ellis, Bignell v. . • 1C5 
Exeter, Bishop of, v. Gully 4.57 
, Rex V. • . l67 

Farebrother, Bemasconi v. 364 

Faatitleroj, Horsfall v. . 653 

Fisher r. Boucher • . 589 

' V. Clement . . 730 

Fotster, Heysham r, . .277 

Fowler v. Coster . • 352 

Fox, Bowen v. . . 4 

Furnish v. Swann • • 452 


Gainsford v. Marshall . 45 
Garry v. Sharratt . . 609 
Gaussen v. Morton . .613 
Goodtitle, Williams r. . 757 
Graham, Newsome v, . 64 
Great Bentley, Rex v. . 559 
Griffiths, Reece v. . .120 
Grimwood, Wood ». 551, 584, 
598, 622 
Grubb, Doe d. Grubb r. • 666 
Gully, Bishop of Exeter v. 457 


Hammond t^ Blake • .361 

Hanford, Moseley r. . 607 

Hardy, Colley v. . . 123 

Harper v. Hayton . . 305 

^, Stannard v. . . 295 

Harrison, Clay v. • • 1 7 

— — , t7. Dowbiggin . 43 1 

V.Hodgson . 391 

Hawkins V. Whitten . ^ 219 

Hayton, Harper r. • 
Heysham v. Forster . 
Hiley, Doe d. Jackson t?. 
Hirst, Pease v. 
Hodgkinson, Rex v. • 
Hodgson, Harrison v. 
Holds worth v. Hunter 
Hop wood, Phillips r. 
Horsfall r. Fauntleroy 
Howell, Doe d, Harris v. 
Hunt v. Mortimer 
Hunter, Holdsworth v, 

V. Leathley . 

V. Wright 


Impey, Isaac v. 
Ingilby, Swaine v. 
Isaac V. Impey 








. 611 



James, Servante r. 
Jefferey, Spratt v. 
Jones, Doe d, Evans v. 

Jones V. 

• Wigan r. . 

, Williams r. . 


Kell V. Nainby 
Kensington, Robertson v. . 


Langriville, Rex v. • 
Leathley, Hunter v. • 
Lent, Mann v. • 
Lewis V, Marling 


Macpherson v. Daniels 
Main waring. Rex v. • 
M'Kaeg, Doe d* Nicholl r. 
M'Knight, Rex r. 
Mann r. Lent • 
Marling, Lewis v. 














Marsball, Gainsford v. . 45 

Martlealiam. Rex v. . .82 

MasoQ V. Wallis . . 85 

Melton, Middleton v. . fif)4 

Mercer v. Davis . . 735 

Metcalfe, Wise v. . . 235 

Meyer, Cooper v, . . 387 

Middleton t?. Melton . 264 

Mortimer, Huut r. . . 12 

Morton, Gaussen v. . , filS 

Moseley, Hanford r. . 607 

Moss» Borough v, . . 29(i 

Murdock, Bickards v. .418 

Muskett €7. Druminond . ^JO 


Nainby, Kell v. . . 76 

Newsoine v. Graham . 64 

Nightingale v. VVilcockson 16'9 

Nuitall, Wright v. . , 454 


Obbard v. Betham . . 632 
Oliver, Doe d. Christmas v. 20Q 
Oiford Canal Company, Rex v. 

J 00 

Pease v. Hirst . 
— ^, Rex r. . 
Phillips V. Hopwood 
Picton, Day ». 
Plaxtoo V, Dare 
Power r. Butcher 
Price t;. Edmunds 
Pritchard, Shaw r. • 

Rex v. 


V. Griffiths 

. Blackawton . 
, Chew Magna 
. Edingale 
. Exeter . 
. Great Bentley 










Rex r. Hodgkinson . . 162 

V. Langriville . . 726 

V, Main waring . . 36 

V. M 'Knight . . 644 

V. Martlesham . . 82 

V. Oxford Canal Company 


V. Pease . . . 507 

V. Roxley . . 40 

V, St. Andrew the Less 639 

p. St. Nicholas, Hereford 676 

V. St. Paul, Exeter . 94 

V. Scriveners' Company 543 

V. South Killingholme 683 

V. South Newton . 715 

V. Southwood . .414 

V. Upton Gray . 688 

V, Willoughby . • 32 

1;. Wilson • . 140 

— — V. Wooburn . . 723 
Rickards v. Murdock . 418 

Robertson v. Kensington . 381 
Roxley, Rex v. . . 40 

St. Andrew the Less, Rex t;. 639 
St. Nicholas, Hereford, Rex v. 676 
St. Paul, Exeter, Rex v. . 94 
Scriveners* Company, Rex t;. 543 
Servante v. James . . 299 

. 71 
. 609 
. 180 
. 225 
Jones 9. 

. 225 

Sharp V. Aspinall 
Sharratt, Garry v. 
Shaw V. Pritchard 

, Smith t;. 

Shenton, Thrustout d 

Smith V. Shaw . 

-; ", Wood r. 

South Killingholme, Rex v. 
South Newton, Rex r. 
Southwood, Rex v. 
Spencer, Young t;. 
Spratt V, JelFerey 
Stannard r. Harper 
Swaine v. In^iiby 
Swann, Furnish v. 





Taylor, Tinmouth t;. . 44 

Tharp, VVingfield t?. . . 745 
Thomas v. Williams . . 625 
Thrustout d. Jones v. Shenton 

Tinmouth v. Taylor . . 44 

Upton Gray, Rex v, . . 688 


Valpy, Dickinson r. . 126 


Wallis, Mason v. . .85 

Walters, Doe d. Mann v. 357 

Ward V. Coast . . . 402 

Ware w. Cann . • .341 

Waring, Williams r. • . 9 

Watts V. Friend . . 439 

Whitten, Hawkins v. .219 

Wilcockson, Nightingale v. 169 

Williams w. . .121 

V. Goodtitle • 757 

t;. Jones . . 3 

, Thomas v. . 625 

, Waring v. • 9 

Willoughby, Rex v. . . 32 
Wilson V. Bagshaw . . 448 

, Rex V. . .140 

Wingfield V. Tharp . . 745 
Wise V, Metcalf . . 235 
Wooburns, Rex t?. . . 723 
Wood r. Grimwood 551, 584, 
598, 622 
Wood V. Smith . .124 
Worswick r. Beswick . 586 
Wright, Hunter t?. . .611 
V. Nuttall . . 454 

Young V. Spencer 






A. ^'" 

Abbott v. Barry . 657 

Acherly v. Vernon . .766 
Agar V. Morgan . • 230 

Aglionby r. Towerson • 28 1 
Agutter V. Wilson . . 46 
Airy V. Bland . . .331 
Alderson v. Clay . .130 
Alexander v. Macauley . 170 
Alpass V. Watkins . . I<J7 
Althani's case . . • 734 
Anderson v. Anderson . 569 

V. Buckton . 326 

1;. Cleveland . 289 

Andrew v, Robinson . 334 

Archbishop of Canterbury's case 

Archer v. Bamford . . 634 
Armington's case 456 

Ashfond v. Thornton 504 

Atkins t7. Seward . 625 

Atkinson v. Hunter . .281 
Attorney-General v. Bishop 

of Litchfield . . 483 

v. Downing 767 

V. Tongue 508, 

V. Woolhouse 508 

Bacon v. 




Badham v. Mee . , 573 

Bailey v, Culverwell . 659 

Baldwin's case . . . 753 
Bampton v. Paulin . . 628 
Bank of England v. Beresford 294 
Bannister v, Fisher . . '""*'' 
Barchards v. Forrester 
Barclay r. Stirling 
Barker v. Bishop of London 

V, Macrae 

Barlow v. Bishop 

V. Rhodes 

Barnes v. Crow 

Barney w. Fairchild . 
Barry v. Babington . 
Bartlett v. Ramsden . 
Bar wick v, Matthews 
Basten v. Carew 
Batchellor t?. Salmon 
Bates V. Winstanley . 
Bathe v. Taylor 
Beachcroft v. Broome 
Beal V, Simpson 
Bedingfield v, Onslow 
Beecher's case 
Beete v. Bidgood 
Bell V. Bell 

V. Byhfie • 

V. Hobson ' 

Benfield, q. t. v. Milner 
Benjamin t). Porteous 
Bensley r. Bignold • 





Benton v. Trott . . 468 

Beraasconi v. Farebrother . £21 

V. Lord Glengall 368 

Berry v. Adamson . . J £ 1 
Berthon v. Loiighman . 424 
Birch V. Bishop of Litchfield 484 
Birks V. Tuppett . . 7oO 
Bishop of Durham's case • 24Q. 

Salisbury's case 242 

Salisbury v. Phillips 

Blakemore v, Glamorganshire 

Canal Company . 229 
Bloxam v. Saunders 
Blunt V. Neads 
Board v. Parker 
Bodenham v. Purchas 
Boehm v. Stirling 
Bonifant v. Greenfield 
Borrowdale r. Hitchener 
Bosanquet v, Dashwood 
r. Wray 

Bottomley r. Bovell . 
Bourne v. Freeth 
Bower v. Bower 
Bowse V. Carrington 
Bowyer v, Pritchard 
Bradford v, Bryan 
Bradley t?. Peixoto . 
Bragg V. Anderson . 
Branch r. Roberts . 
Brazier v. Jones 
Brewster v. Sewell . 
Bridgett r. Coyney . 
Brightwell v. Westhalley 
Bromage v. Prosser . 
Bromley v, Holland . 
Brooke v. Enderby . 
Brown V. Davies 

V. Higgs 

V. Pocock 

Browning v. Beston • 
Brownsword t;. Edwards 
Brunton v. Hawkes . 
Bullen V. Michel 
Bullock V. Thorn 








Burleigh v. Stott 
Burn r. Markham 
Burrows t;. Luscomb 
Butler and Baker's case 
Butts V. Bilke . 

Caddy v. Barlow 
Cadwallader v. Bryan 
Calder v. Rutherford 
Calthorpe r. Hey ton 
Campbell V. Hodgson 

t?. Leach . 

V. Rickards 

1,, Sandys 

Cannon v. Bryce 

r. Parke 

Capper r. Desanges 
Carruthers v. Lamb 

r. Payne 

Carstairs v, Rolliston 
Carter v. Boehm 
Cashman v. Reid 
Castlin V, Aubert 
Charles r. Marsden 
Chater v. Beckett 
Chippendale v. Tomlinson 
Cholmley v, Cholmley 
Cholmondeley r. Clinton . 
Clampe v. Clampe 
Claridge v. Dalton 
Clayton v. Andrews . 
Clayton's case • 
Clements r. George • 
r. Lambert 


t;. Gill 
t?. Green 

Coles V, Banow 
Collenridge v. Farqnharson 
Collier V. Hicks 
Collins V. Prosser 
Collott V, Haigh 
Constable v. Noble • 
Constantia, the^ case of 






















Cook V. Jones . . . 583 

V. Leonard . . 228 

r. VVherwood . . 750 

Cooper t7. Elston . . 44 1 

V. Thorpe . . 748 

Copley V. Day . . . 433 
Coppin V. Craig . , 697 

V. Humand . . 75O 

Corbett's case . . . 486 
Countess of Northumberland's 

case . . . 483 

Plymouth v. Lady 

Archer . .514 

Court V. Martineau . . 423 
Cowper t?. Langworth . 570 
Cox V. Coleridge . .316 
Cranley v. St, Mary, Guildford 

Crawshay v. Maule . .132 
Crisp V. BeUwood . . 436 
Crosby v. Wads worth 44 1 , 56 1 
Cross V. Kaye . . . 584 
• Crowder v. Oldfietd . . 479 
Cmmpton v. Ibbotson . 68 
Cunningham v, Lawrents . 65 
Curling v. Shuttleworth . 198 
Cutler v. Newlin . . 268 


Dalbiac v. Dalbiac . . 583 

Dalzellv. Mair . . 330 

Dand V. Sexton • . 455 

Dandridge v. Corden . 665 

Davey r. Prendergrass . 290 

Davie v. Mitford . . 379 

Davies v. Bush . . 205 

V. Thomycroft . 569 

Davis V. Lewis . . 255 

• 17. Russell . • 53 

• t7. Vass . . 86 

Day tj. Nix . . , 634 

Dc Crespigny v. Wellesley 256 

Deffle r. Desanges . .221 

De Ganiinde r. Pigori . 332 

Deverall v. Lord Bollon . J96 

Dickins v. Smith 
Dickson v. Evans 
Digby V. Fitzherbert 
Dingwall v. Dunster 
Dixon V. Cooper 

1;. Yates 

Dobell V. Stevens 
Doe V. Britain • 

V. Carter 

V. Clark . 

V, Davy . 

r. Finch . 

V, Fonnereau 

V, Frowd . 

1;. Gully . 

— ~ V. Hulme 

r. Jackson 

V. Jones . 

V. Lawson 

r. Manning 

V. Martin 

V. Martyn 

V. Mears 

?;. Parker 

V. Price 

V. Read . 

V, Routledge 

V. Scudamore 

V. Selby . 

V. Shipley 

V. Smyth . 

v. Somerville 

V. Steward 

V. Tofield 

V. Tyler . 

— — r. Vowles 

V. Whittick 

V. Wilkinson 

Doswell V. Impey 
Dover V. Maestair 
Dudley t;.* Watchom 
Duke of Dorset v. Sir 

Marlborough v, 



36 1 




. 485 
J 1)6, 378 




Duncan v, Scott , . 664 

Dunn t;. Shee . . 294 

Durrell v. Beverley . 424 


Earl of Devonshire's case . 578 

Falmouth v. Thomas 56 1 

Rutland's case . 753 

Uxbridge v. Bayley 198 

Eaton r. Sanxter . . 572 

Eccleston v. Clif^sham . 30 1 

Edgar v. Fowler , . 3S2 

Edge V. Parker . . 2W 
Edgington t>. Hood . .31 

Edmeads v. Newman • 657 

Edmonson 9. Hawkins • 583 

r. Popkin . 583 

Edwards v. Kelly . . 628 

Eldridge v. Knott . • 636 
Elliott V. Edwards . .197 

Ellis V. Schonaeck . • 135 

V. Taylor • . 485 

Ellison V. Dezell . • 294 

Elsing V, County of Hereford 83 

'^ " " . 561 

. 291 

. 268 

. 588 

. 169 

. 423 

. 186 

. 465 

. 376 

. 376 

. 376 

. 294 

. 368 

. 548 

. 356 

. 376 

. 743 

. 352 

. 2*il 

. 356 

Emmerson v. Heelis 
English r. Darley 
Evans r. Beattie 

t;. Prosser 

V. Roberts 

Everard r. Paterson 
Everett v. Desborough 
Everington v. Howard 
Ewer v. Moile . 
Exon r. Russell 
Ex parte Beadles 


Day . 



Hill . 






• Nunn 

Ex parte Parry 








Small . 

Smith . 

Stone . 


Welsh . 



Wride . 

Fairlie v. Denton 
Falder v. Hooker 
Farebrother v. Worsley 
Farrant v. Thompson 
Fentum v. Pocock • 
Ferguson t;. 

Cristall • 

r. Rawlinson 

Fisher v» Ball . 
Fitzroy v. Gwillim 
Fleming v. Simpson • 
Flight V. Chaplin 
Floyd V. Bethell 
Foster r. Frampton . 

t;. Jackson 

r. Stewart 

Foy v. Belt 
Francis v. Crysell 

v. Cry well 

Freeland v. Glover . 
Freme v, Wright 
Fuller V, Terry 


Gaby 9. Wilts Canal Company 


• 166 
. 199 
. 376 
I. 50 

• 288 

• 245 
. 51 
. 520 
. 45 
. 554 

• 633 
. 583 
. 476 
. 19 

468, 570 

. 657 

. 332 

. 340 

. 340 

. 423 

. 197 

. 416 

Garbutt v. Watson 





Gardiner v. i)a?i8 . .117 

Gardner v. Jessopp . *. 455 

Gamett ». Ferrand . .317 

Garrett v. Jul! . . . 29O 

George v. Lousley . . 86 

Gevers v. Mainwaring . 529 

Gibson v. Hunter ' . 390 

V. Minett . 166, 390 

— r. Rogers . . 767 

Gilman v. Wright .315 

Gladstone r. Clay . . 534 

Glasscock r. Morgan . 570 

Glover v. Cope 200 

GoBF j7. Popplewell . . 584 

Goodall V. Brigham . . 574 

Gooding's case . . 58 

Goodrigbt t?. Cater . . 570 

V. Forrester • 483 

Goodtitle v. Duke of Chandos 

r. Meredith 
- V. Woodward 

Goss V. Watlington 
Gould V. Robson 
Gofemors of British Plate 
Glass Manufactory v. 
Graham r. Pitman 
Grant r. Delacour 

V. Paxton 

Grave V. Dubois 
Graves v. Short 
Greene 1;. Cole 
Greenslade v. Dower 
Grills V. Mannell 
Grocers' Company v. Arch- 
bishop of Canterbury 
Groome v. Forrester 
Groves v. Buck 
Giymes r. Peacocke 
Guest v. Willosey 
Guidon r. Robson . 
Gulliver v. Wickett . 
Gully V. Bishop of Exeter 
Gunter v. Clayton 
Guthrie v. Fisk 













Haddow r. Parry 
Haire v. Wilson 
Hale V. Small . 
Halifax's case . 
Hallden v. Glasscock 
Harding V.Wilson 
Hardy v. Ryle • 
Harper v. Tahourdine 
Harris v. Booker 

V. Nichols 

—V, Pugh 

Harrison v. Courtould 
Harrow School v. Alderton 
Hartopp r. Hartopp 
Harvey t). Ramsbottom 
Haslewood v. Pope 
Havelock v. Geddes 
Hay don v. Myner . 
Haynes i;. Hay ton 
Hay ward v. Rogers . 
Haywood v. Rodgers 

V. Rogers 

Heane v. 






Helps v. Hereford . 
Henslow u. Fawcett 

V. Bishop of Salisbury 

Hewet V. Goodrick . 294 

Heydon*s case . . 646 

Hcyler r. Heyler . . 76(j 
Higham v. Ridgway . 272 

Hill V. Bishop of Exeter . 487 

v. Heale • . 169 

V. Manchester W^aterworks 


' r. Perrott 

V. Read . 

: r. Smith 

V. Thompson 

Hillary v. Waller 
Hindle r. O'Brien . 
Hoare v. Graham 
Hobson V. Middleton 
Hodgson V, Lay 

• V. Richardson 

r. Temple 



Hodscbn V. Harridge 
Hodson V. Young 
Holland v. Jourdine 
Holloway v. Berkeley 
Hoist V. Powoal 
Hopkins v. Hopkins 
Horsfall v. Mathef . 
Houlditch V. Milne 
Hovill V. Browning 
Hudson V. Bankes • 
Hull V. Pickersgill . 
Hurd V. Fletcher 
Hyde v. HiM . 


Idle V. Cook 
Ingram v, Rouche 
In re Fowler 



Pellow . 

Taylor . 

Irons r. Suiallpiece 
Isherwood v. Oldknow 


Jackson v. Garnsey 
t?. Ham 

V. Hobho«ec 

— V. Hurlock 

. t?. Pesked 

— V. Warwick 

J amcs V. Green 

Jefferson t;. Bishop of Durham 


Jeffreys v. Smith 
Jelfs V. Ballard 
Jellis T. Mountford . 
Jessor t?. Gifford • 
Jesus College v. Bloom 
Johnson v. Bray 

r. Freeth 

. V. Hudson 


. 7M 

. 221 

. 588 

. 417 

. 19 

. 27 

. 245 

. 628 

. 350 

. 477 

. 213 
196, 579 

. 405 

. 583 

. 750 

. 352 

. 354 

. 352 

. 315 

. 548 

. 660 

. 487 

. 487 

. 568 

. 767 

. 663 

. 744 

Jones r. Hill 
V. Verncy 



Jordan v. Lewis . i 19 

Joy V. Warren . . ^294 

Judine r. Da Cossa • 221 

Justice Windham's case . 364 


Keene t;. Deardon • • 636 

Ke^iicott V. Bogan . . 467 

Kerrison v. Cooke . . 289 

King t;. Gosher • • 477 

Kirby v. Smith . . 425 

Kitchen v. Campbell . 333 
Knightley and Spencer's cajje 468 

Koowie V. Harvey . . ^42 

Knowles «. Palmer • ^70 

Kooystra v. Lucas , . 452 

Kymer v. Suweraxip . 20 


Lady Gresham's case 


Morrison t?. Cade 


Lambert v. Liddard 


Lancaster r. Fielder 


Lane v. Howman 


Lang-u. Anderdon 


Langfort v. Tiler 


Larke v. Kyme 


Law r. Hod son 


Lawrence r. Hodgson 


Laxton v. Peat 


Leak v. Bishop of Coventry 


Leatbley v. Hutit^r 


Lc Bret t;. Papilo« 


Lee V. Levy 



V. Lingard 


1?. Nixon 


Leigh V. H-unt 


Lett V. Cowley 


Lewis V. Cosgrave . 


- V. Waller 


Lexington -w. Clarke 


Liardet v. Johnson 


Lickbarrow v. Mason 


Liford's case 




Lightly V. Clouston 
Liiidenau v. Devborougli . 
Lindon v. Hooper 
Little r. Poole 
Llojd r. Archbowle 

V. Bethell 

t?. Heariicote 

Loddington r. Kine 

Long r. Rankin 

Lord Abergavenny's case . 

Northampton's case . 

Radnor r.Vandebendy 

T7. VVormleigkton 

Loved ay's case 
Lovie's case 
Low V, Burrows 
Lticas i;. Delacour 

V. Nockells 

Ljle r. Parry 

Lynch v, Hamilton 

Lyster t;. Dolland 

Lytton V. Viscountess Falkland 



, 667 



. 116 

. 117 

. 476 

. 593 

. 26 

, 570 

. 503 













Maberly v. Robins . .197 

M'Andrew v. Bell . . 425 

Mace, q. 1. 1;. Lovett . 5H4 
Maddock, q. t. v. Hanrott . 584 

Maggs V. Hunt . 16 

Maitland v. Goldney . 255 

Maltby v. Carstairs . 290 

Manning r. Lechmere . 275 

Marriage i;. Lawrence . 435 

Marshalsea the, case of . 169 

Martin v. O'Hara . . 355 

Massey v. Parker • 569 

Matthews* Ex parte 117 

V. Lewis . 583 

Maundrell v. Mauudrell 195, 567 

Mavor v, Simeon . • 332 

Mawman v. Gillett . .117 

Maxwell r. Jameson • 334 

May field v. Wadsley 44 J , 56 1 

Maynard v. Rhodes . 423 

Mellifth V. Allnutt . 533 

Mellisli V. Andrews 

v» Richardson 

Mercer v. Sparks 
Metcalfe v. Parry 
Middleton v. Crofts 

— V. Hill 

Mild may's case 
Miller v. Race 
Mills i;. Bennett 

V. Spencer 

Mole V. Smith 
Monke V. Butler 
Moore v. Edwards 
Morgan v. Bridges 

^ r. Richardson 

Morrii$ v. Edgington 

V. Hayward 

V. Hunt 

V, Jones 

t;. Pugh 

Monys r. Leake 

Much VValtham r. Peram 

Munday v. Smith 


Nelson i;. Chenell 

V. Pixie 

Newton 1). Reid 
Nisbett V. Smith 
Nokes's case 
North v. Barker 
Notley v. Buck 


Oifard v, Betliam 
Oldiield v. Wilmore 
Orme v. Crockford 

«. Young 

Owston r. Ogle 


Page V. Tulse 
Palmer r. Knollis 
Parker v. Biscoe 
r. Staniland 







. 583 


. 996 

. 221 

. 264 

. 576 

. 282 

. 509 

. 169 

. 633 

. 451 

. 169 

. 281 

. 572 

. 676 

. 186 

. 84 

. 750 




. 321 

. 570 

. 767 




Parkes v. White 
Parton v. Williams . 
Paterson v. Gandasequi 
Patience v. Townley 
Peacock v» Monk 
Pemphrose v. Lord Lansdowne 

Percival v. Cooke 

V. Frampton 



Pereira v, Jopp 
Perring Vs Hone 
Petre v. Craft 
Phillips i;. Hopwood 
V, Pearce 

. 239 

. 666 

. S94 

. 134 

. 584 

. 357 

. 709 

. 298 

. 294 

. 343 

. 766 

. 452 

. 276 
392, 470 

. 294 

Philliskirk v. Pluckwell 
Philpot V. Bryant 
Pierce v. Winn 
Pigot V. Walker 
Plant V. James 
Plaxton V, Dare 
Plomer v. Ross 
Pole V. Ford . 
Pope V. Butt . . .750 
Potter V. Potter . . 767 

Pouiter V. Killingbeck • 56 1 
Powel V. Milbank . .281 
Powis t;. Smith • . 302 

Pratt V. Hillman . . 228 
Prestidge v. Woodman . 228 
Price t?. Messenger . 741 

Priddle and Napper's case 468 
Pring r. Clarkson . 294 

Pulvertoft V. Pulvertoft . 486 
Purvis V. Rayer . .198 

Pyeburn v. Gibson . . 455 

Queen*s College v. Hallett 52 


Raggett V. Axniore • 288 

Rankingot v. Marsh . 584 

Ravee v. Farmer . . 333 

Rawlins's case . • 207 

Rawson r. Walker . . 609 

Ravi'thorn v. Arnold . 1 1 

Ray V. Pung . . 195, 567 
Raylance r. Hewling 44 

Read v. Nash . . 628 

Rees V. Marquess of Headfort 

Regina 12. Simpson • .315 
Reid V. Fryatt . • 86 

Ren V. Bulkeley . . 580 

Reniger t;. Fogassa • 657 

Reppington v. Tarn worth 

School . .461 

Rex V. Ackley . . 42 

V. Adiard . . 40 

V. Aire and Calder Na- 
V. Andrews 

i;. Aythrop Rooding 

V, Baker 

1>. Banbury 

V. Bard well 

• w. Barham 

V, Barker 

V. Baw burgh 

V* Benneworth 



Bishop of Llandaff 

Worcester 496 

. 637 

-— V. 



— r. 

— V. 

— t;. 

— V, 

— «. 

— V. 







v. Brewers' Company 

V. Burbach 

V. Byker 

V. Calow 

V. Catesby 

V, Chediston 

V. Chertsey 

«. Chipping Norton . 

V. Clark 

V, Clarke 

v. Combe 

1?. Commins 




Rex V. 












V. Duke of Bridgewater, 

Trustees of . 108 

V. Duune . . 44 

V. EatingtOQ . . 34 

V. Edgemont . . 685 

V. Ellis . • . 6ii 

17. Farady . . 509 

V. Fillongly . 637, 729 

X?. Gash . . .75 

V. Hackoey . . 562 

V.Hall . . ,318 

r. Hardhorn with New- 
ton ... 41 

V. Hasling6eld . 286 

V.Hawkins . . 313 

r. Herstmonceux . 721 

r. Hodgkinson . 509 

V.Holland . .81 

V. Holy Cross, Westgate 6 19 

r. Horndoo on the Hill 178 

V. Home . .81 

V. Houghton-le-spring 34 

V. Hubbard . . 44 

V. Ingleton . . 637 

• V. I?e8 . . . 744 

r. Johnson . . 742 

V. Justices of Essex 698 

17. Somersetshire 


■ V. Staffordshire 


V. Yorkshire 698 

V. Kelstern .718 

- — V. King's Lynn . 650 

V. Kingswinford . 106 

- — V. Lakenheath «38, 72 1 
- — V.Leake . . 282 

- — V. Little . . 508 

V. Liverpool • . 678 

V. Lord of Manor of 

Oundle . . 583 

Rex V. Lower Mitton 

V. Lydd . 

V. Lyme Regis 

V. M'Carther . 

V. Macclesfield 

V. M'Gill 

V. Main waring 

V. Manning 

V. Marsh 

V. Martin 

V. Martley 

V. Marwood 

Mattishall . 
— '• — V. Mayor of Liverpool 282 


. 100 
. 685 
. 171 
. 171 
. 717 
163, 645 
. 509 
. 282 
. 360 
. 282 
. 637 
. 637 



V. Mitcham 

V. Myers 

V. North Collingham 

V. Curry 

x;. Duffield . 


V. Northweald Bassett 

V. Owersby-le-Moor 

V. Oxford Canal Company 

V, Polesworlh 

V. Potter Heigham 

V. Preston 

V. Ringstead 





0. Rogers 

» V. Rushall 

V. Sainsbury 

V. Si. Giles in the Fields 562 

V. St. John, Glastonbury 637 

V.St. Michael, Norwich 678 

V, St. Nicholas, Colchester 


V. , Leicester 83 

V. , Rochester 


V. Scammonden . 495 

V. Selway . . 509 

V. Shephard . . 744 

V. Sheriff of Surrey . I69 

V. Smith . . 577 

V. Staplegrove 34, 178 




V. Stockley Pomroy . 177 

1?. Stoke . . 560 

V, Stoke Damarel . 96 

t;. Stone . 177, S6S, 637 

i;. Sutton St. Edmund's 728 

V.Thompson . .314 

V. Thornham . . 727 

V. Tipton . . 649 

V. Toddington . 178 

V. Tonbridge . 360 

V. Treasurer of Surrey 742 

V. Turner . 37, 363 

V, Ulverton . . 42 

V. Upton . . 6s7 

V. Waddington . l63 

17. Warkworlh . 1 78 

V. Wasbbrooke • 749 

Websdell . . 589 
Whateley . .316 
Whitchurch . 69 1 

r.Wid worthy . .177 

©.Williams . 171,504 

V. Willoughby . 562 

V. Wootton . . 562 

Rich V, Clarkson . . 749 
Richards v. Thomas . 666 

Richardson v» Mayor of Oxford 

Ridley's case 
Ridout V. Bristow 
V. Pain 

Rigg r. Parsons 
Right V. Cuthell 

V, Hammond 

Roach r. Wad ham • 
Roberts v. Goff 

V. Wyatt 

Robertson v. French 
Robinson v. Yarrow 
Roe V. Hicks • 
Rogers v. Dallimore 

' t;. Humphreys 

V. Pitcher 

Romilly t;. James 
Rondeau v. Wyatt 
Rookeby's case 
Roper V. Halifax 

. 80 

. 609 

. 765 

. 52 

. 359 

. 342 

195, 567 

. 583 

. 557 

. 531 

. 391 

• 148 

. 11 

. 583 

. 671 

. 198 

. 441 

. 453 



Ross V. Ross . 

. 345 

Rowe V. Bellasys 

. 583 

r. Brenton 

. €76 

V. Peirce 

. 360 

Russell V. Russell 

. 557 

44 ^rnifnif^'i 


Rust V. Power 

! 583 

Ryle p. H aggie 

. 276 

Sacheverell v. Dale 

. 572 

Salt V. Richards 

. 519 

Samon v. Pitt 

. 750 

Sansom v. Goode 

. 443 

Saunders v. Mills 

. 264 

Saundys v. Olife 

. 452 

Sayer v. Pierre 

. 133 

Scavage v, Talham 

. 56 

Scorell V. Boxall 

. 561 

Scott V. Gillmore 

. 665 

v. Nesbitt 

. 583 

V. Nicoll 

. 583 

Scrafton v. Quincey 

. 196 

Scurry v. Freeman 

. 602 

Seddon v, Tutop 

. 333 

Sellick v. Smith 

. 230 

Shaw V. Evans 

. 443 

Shelton r. Livins 

. 561 

Shepherd v. Bishop of Chester 

Sheriff of Norwich r 



Shireburne r. Hitch 

. 480 

Short V. Lee 

• 276 

Silk 9. Osbom 

. 353 

Silver v. Bishop of Norwich 186 

Silversides r. Bowley 

. 30 

Simpson v. Clarke 

• 666 

Simson t;. Ingham 

. 91 

V, Moss 

. 509 

Sir Christopher Hatton's case 573 
— Edward Clere's case • 195 
Skaife v. Howard . .213 
Slingsby's case • • 304 

Smallcombe t;. Bruges . 374 
Smith V. Huson . .281 




Smith V. Johnson 

. 333 

V. Sandilands 

• oOo 

. 436 

r. Smith 


17. Surman . 

441, 56« 

V. Triggs 

. 148 

V. Wheeler 

. 572 

V. Wiltshire 

. 232 

Snag V. Fox 

. 417 

Snaith v, Mingay 

. 402 

Soape V. Turton 

. 570 

Solarte v. Melville . 

. 584 

Sollers V. Lawrence 

. 244 

Solomon r. Turner 

. 633 

Solomons v. Bank of England 


r. Jenkins . 584 

Spencer t;. Billing . .221 

V. Hamerton . 488 

Spires r. Morris . . 276 

Spitta V. Woodman 533 

Stead V. Heaton . . 272 

Steel V. Sowerby . . 5b4 

Stephens v. Stephens . 27 

Slerry v. Arden . 487 

Stevens t?. Eliz6e . . 373 

V. Lynch . 294 

Stevenson r. Snow . .612 

Stockman t;. Wither . 242 

StofFe V. Everett . . 569 

Storey r. Lord Windsor . 133 

Stothert v. Goodfellow . 267 

Strathmore v. Bowes • 766 

Strother v. Barr . .51 

Sturcb V. Clark -741 

Suckley r. Whithorn . 83 

Sutton V. Clarke . .281 

Swannock r. Lifford . 568 

Swift t?. Roberts .710 

Symons v. Blake • 432 

Talbot V. Habble 
Taylor v. Higgins 

V. Lindon 

Teed v. Elworthy 






Theobald v. Crichmore . 232 

The Protector r. Holt . 468 

Thomas v. Newton . 664 

Thompson v. Shirley . 453 
Thomson v. Leach . .148 

Thornton v. Adams . l69 

Thorpe v. Goodall • . 573 

Thrale v. Bishop of London 479 

'"' ^' . 442 

. 342 

. 354 

. 294 

. 297 

. 356 

. 628 

. 441 

. 148 

. 208 

. 666 

. 435 

. 479 

. 495 

. 67 

. 633 

. 476 

Thrustout V. Shouton 
Tilburgh t;. Barbat 
Till V. Wilson 
Tindal v. Brown 
Tinson v, Francis 
Todd V. Maxfield 
Tomlinson r. Gill 
Towers v. Osborne 
Townson v. Tickell 
Trecothick r. Edwin 
Treviban r. Lawrence 
Trinder t>. S medley 
Truman t?. Walgham 
Tufton t;. Temple 
Tull V. Parlett 
Turner t;. Winter 
Tye V. G Wynne 
Tysonn t?. Hylyard 


Underbill v. Ellicombe 



Veale r. Warner 

. 750 

Vernon's case 

. 487 

Vice V. Lady Anson 

. 131 

Vick V. Edwards 

. 295 

Violet V. Allnutt 

. 534 


Waddington v. Bristow 

. 56l 

Waddington's case 

. 79 

Wade V, Wilson 

. 601 

Waggett t?. Shaw 

. 623 

Wainwright v. Elwell 

. 149 

Walker v. Gann 

. 453 

Wallace v. Smith 

. 228 



Walsh V. Whitcomb 
Walter de Cherton's case 
Warre v. Miller 
Warren v> Greenville 
Warwick v. Bruce 
Wase t;. Pretty 
Watson V. Home 

V, King 

r- Wace 

Way 9. Modigliani • 
Weale v. Lower 
Weatherhead v, Drewry 
Webb V. Home 
r. Paternoster 




. 533 

. 271 


. 417 

. 405 

. 616 

. 367 

. 535 

. 207 









Weller v. Toke 
Westbury v, Coston 
Westfaling r. Westfaling . 
Whalley v. Thompson 
Whishard v. Wilder 
White V. Bishop of Peterbo- 
rough • 486 

V. Foljambe . . 195 

V. Hussey . . 486 

Whitehead v. Tuckett . 657 

Whitfield V. Brandwood . 405 

Wbitmash v. George • 267 

Whitnash v. George . 267 

Wilkinson V. Clay . . 334 

V. Colley . 359 

t;. Laudousack . 115 

Willes «. Glover . . 425 
Williams r. East India Company 


— V. Germaine . l69 

v. Leper . 6^7 

r. Morland . 51 

Williamson r. Allison . 124 

V. Beekley . 467 

Wilmore r. Oldfield . 7oO 

Wiltshire v. Lloyd . 455 

Winne r. . . 520 

Withall r. Masterman . 294 
Witham v. Bland . . 567 
Wohlenberg v. Lageman 
Wood bridge v. Spoouer 
WoodrofFe v. Williams 
Wood's case 
Wooldridge v. Boydell 
Woolnoth V. Meadows 
Wright V. Agar 

v. Doe 

V. Wales 


Wy man's case . .171 

Wynne v. Lord Newborough 559 

Yelland v, Fielis 
Yeo t?. Leman 
Young V. Munsby 









Plaxton 17. Dare, Esq. and another. 1839. 

TRESPASS. Declaration stated that defendants, on 19th The maniment 
August, 1828, and on divers, &c., with force and arms fjisor and^'his 
broke and entered a certain stable of plaintiff, situate, &c., assigns is the 
and then and there seized and took one mare and one halter for an eipired 
of plaintiff, of great value, &c., and kept and detained the '®*2.®' 
same for a long space of time, and until the plaintiff was leases and 
forced and obliged to pay a certain sum of money, to wit, expi^^kases 
fi/. l6s. in order to regain the possession of the mare and thongh can- 
halter. Second count, for an asportation generally. Plea, missiblein* * 
not guilty. At the trial before Gaselee, J. at the last evidence upon 
Chelmsford Assizes (a) the following facts appeared: — The boundary. 

mare and halter mentioned in the declaration were taken ^'^ assess- 
ments to 
(a) Counsel for the plaintiff, the defendants, Gurney, Brodrick, church rate 

^aaftie, Sent, and Bamewail; for and ChiUy. »** evidence 

upon a ques- 
tion of boundary, though the parish officers do not charge themselves with the receipt 
of the rate, otherwise than by crosses set against the names of the parties rated. 

VOL. V. 9 


1829. under a warrant of distress issued by the two defendants^ who 
were magistrates of the county of Essex, against the plaintiff, 
for the non-payment of 2/. Ss., for which he was assessed 
towards the relief of the poor of the parish of West Ham^ as 
inhabitant and occupier of a piece of land in that parish. The 
plaintiff, a farmer, residing at Ley ton, in Essex, was the occu- 
pier of a farm called Canhall Farm, and other lands, partly 
situate in the parishes of Wanstead and Leyton, and partly 
in the parish of West Ham. The plaintiff paid the sums 
at which he was rated for two closes in West Ham, bot 
disputed his liability in respect of eight acres, part of Great 
Ashfield, which he alleged was in the parish of Wanstead. 
In proof of this the plaintiff produced a lease of the close 
in question, dated 26th of November, 1646, from Richard 
Boothby to Thomas Mortimer* This lease was produced 
from the muniment chest of Major Colgrave, the present 
owner of Ashfield, in which Ashfield is described as being 
in the parish of Wanstead. On the behalf of the defend- 
ants it was objected that the lease, coming from the pos* 
session of Major Colgrave, who was entitled only to the 
possession of the counterpart, was inadmissible ; and that 
supposing this to be the proper custody, the lease, though 
admissible as proof of title, could not be used upon a 
question of locality, 8cc.; 1 Starkie on Evidence, S26; 1 
Phillipps on Evidence, 7th edit. 250, were cited. The 
learned judge received the evidence but reserved the point. 
Another lease of 19th of March, 1712, from fVm. Colgrave 
to James Hutton, and another of 1760, from Wm. Colgrave 
to Edward Harvey, were put in. These two leases ap- 
peared to be cancelled. The church rates for 1737 and 
1740 were then put in, and were admitted in evidence by 
the learned judge. The plaintiff then tendered a book 
produced from the parish chest, purporting to be a copy 
of the parish accounts, of the receipts and disbursements 
from 1712 to 1746. This being objected to, Mr. Serjeant 
Spankie insisted that this was a book of a public nature, 
and sufficient to charge the parish officers. The learned 


judge rejected this evidence, but took a note of its being 18^9. 
offered. The assessment to the poor rate for 1740 was 
put in. This contained no statement that the rates therein 
mentioned had been paid, otherwise than by containing 
crosses set opposite to certain names in the book. The 
learned judge said that he would receive the evidence, but 
that unless some proof of payment were given he should 
tell the jury to pay no. attention to it. A great deal of 
other evidence was gone into on both sides. The jury 
having found a verdict for the plaintiff, 

Gurney now moved to set it aside. Neither the lease 
of 1646, nor the cancelled leases of 1712 and 1760, nor 
the rates, were admissible in evidence against the defend- 
ants. [Baylejfy J. Is not reputation evidence of the 
boundary of parishes ?] 

Lord Tenterden, C. J. — This being a question where 
reputation would be evidence, this lease was properly ad- 
mitted. With regard to the rates, T am of opinion that 
they were properly received (a). Setting a cross against the 
names of the parties rated is the usual mode of denoting 
that the money is received. These documents being ad- 
missible, the question is reduced to a case of contradictory 
evidence ; and on whichever side we may think that the 
balance of evidence preponderated, there was clearly evi- 
dence on both sidesy upon which the jury might form their 
own conclusion. 

Rule refused, 
(a) Vide ante, iii. 36a 

Williams v. Jones. 

A DISPUTE between the parties having been settled by An award 
an arbitration, a second dispute between the same parties was b^^ristercJin- 
not be qoestioned on the groand.oF any statement not appearing on the face of the 
award, or annexed to it. 



1899. referred to a secood' arbitrator, who made his award in 
favour of the defendant. The day before the second award 
was made the arbitrator wrote a letter to the plaintiff's 
attorney, stating that he felt himself bound to make an 
award in favour of the defendant on the ground that the 
measure in dispute had arisen before the former reference, 
and that although he thought the first arbitrator mistaken, 
he considered himself concluded by the award. 

Campbell now moved to set aside the second award, on 
the ground that the arbitrator was mistaken in point of law, 
in supposing that he was concluded by the first award. In 
the late case of The Ayre and Colder NavigatioH (a), the 
Court set aside the award upon matter contained in a letter 
written by one of the arbitrators. [Littledale^i. That was 
to shew that the award extended to matters not within the 
submission.] The letter here may be considered as con- 
temporaneous with the award. 

LiTTLEDALB, J. — If you refer to a gentleman at the bar 

you are bound by his decision, unless it appear on the 

face of the award, or of some paper annexed, that the 

arbitrator wishes to raise the question. 

Rule refused, 
(a) Ante, iv. 738. 

BowEN and another v. Fox and others. 

Trover will not XROVER for the certificate of registry of the ship Gra* 
[irtywhh* titude(a). Plea, not guilty. At the trial before Bur^ 

titrate of re- ^°) ^^ declaration contained deliver the certificate of registry, 

eistry of a ship also special counts for refusing to which were not proved. 

IS deposited as 

a security for advances, upon a refusal to deliver up such certificate without payment. 

Quart, What shall be a wilful detention of a certificate of registry, authorising the 
interference of a magistrate under 4 Geo. 4, c. 41, s. 85. 

Qiutre, As tu the power of one part-owner of a ship to appoint a master, and to dis* 
place a master appointed bj^ another part-owner. 


roughs, J. (a) at the last Bodmin Assizes, the following facts 1899 
appeared : — The plaintiffs were the principal owners of the 
ship Gratitude, of which Bowen was captain, one sixty- 
fourth share being held by a seaman on board of the name 
of Myers. In 1823 the Gratitude being chartered to take 
a cargo of German linens from Hamburgh to Vera Cruz, 
in the course of her voyage was obliged to put into Rams- 
gate, at which place Myers, having taken offence at the 
captain, deserted the ship and went to London, where he 
remained. The Gratitude proceeded on her voyage down 
the Channel, and meeting with stormy weather, which oc- 
casioned some damage, she put into Falmouth, where, at 
the request of the defendants, they were appointed agents 
to the ship by Botcen, The repairs having been done and 
the Gratitude being about to sail, she sustained further 
injury in the harbour, rendering more extensive repairs 
necessary. Whilst these were going on, the butcher, who 
had supplied the crew with meat, arrested the captain. 
The defendants procured his liberation upon his depositing 
with them the certificate of registry, as a security for that 
and other advances made and to be made on account of 
the ship. The Gratitude being again completely repaired 
was removed into the outer harbour, upon which the de« 
fendants became apprehensive that the captain would sail 
without paying the ship's bill, though he had not taken his 
crew on board, and Bowen was again arrested, and was 
taken to Bodmin gaol at the distance of 35 miles. On 
leaving Falmouth Bowen appointed his brother Benjamin 
to be master during his absence. The defendants were 
requested by Benjamin Bowen to give up the certificate to 
the new master, and upon their refusal an application was 
made under 4 Geo, 4, c. 41, s. 25 (&), to the Mayor of 

(«) Counsel for the plaiotif&i vAo/^t^r, should detain the certifi- 

Meremeiher, Serjt., Manningy and cate of registry of any ship or ves- 

Coleridge ; for the defendants, sel, or hold the same for any pur-^ 

ITi/^, Serjt., ErMne, and Follett, pose other than the lawful use and 

(b) **' And whereas it is not proper navigation of the ship or vessel for 

that an J penonpunder any pretence which it was granted, be it therefore 


Bow EN 



Falmouth, as a magistrate, to compel the defendants to 
restore the certificate of registry, but the mayor refused to 

enacted, that in case the master 
of any ship or vessel, or any other 
person who shall have received or 
obtained, by any means or for any 
purpose whatever, tlie certificate 
of the registry thereof, (whether 
such master or other person shall 
be a part'K>wner or not,) shall wil- 
fully detain and refuse to deliver 
up the same to the proper officers 
of his Majesty's customs for the 
purposes of such ship or vessel as 
occasion shall require, it maj and 
shall be lawful to and for any 
owner or owners of such ship or 
vessel, the certificate of registry of 
which shall be detained and refused 
to be delivered up as aforesaid, to 
make complaint on oath against 
the master of the ship or vessel or 
other person who shall so detain 
and refuse to deliver up the same, 
of such detainer and refusal, to 
any justice of the peace residing 
near to the place where such de- 
tainer and refusal shall be in Greni 
Britain or Ireland, or to any mem- 
ber of the Supreme Court of Jus- 
tice or any justice of the peace in 
the islands of Jersey, Guernsey, or 
Man, or in any colony, plantation, 
island, or territory to his Majesty 
belonging, in Asia, Africa, or Ame- 
rica, or Malta, Gibraltar, or Heli- 
goland, where such detainer and 
refusal shall be in any of the 
places last mentioned ; and on such 
complaint the said justice or other 
magistrate shall and is hereby re- 
quired, by warrant under bis band 
and seal, to cause such master or 
other person to be brought before 
him to be examined touching such 
detainer and refusal, and if it shall 

appear to the said justice or other 
magistrate, on examination of the 
master, or other person, or other- 
wise, that the said certificate of 
registry is not lost or mislaid, but 
is wilfully detained by the said 
master or other person, such mas- 
ter or other person shall be thereof 
convicted, and shall forfeit and 
pay the sum of JOG/, and on failure 
of payment thereof he shall be 
committed to the common gaol> 
there to remain without bail or 
mainprize for such time as the said 
justice or other magistrate shall in 
his discretion deem proper, not 
being less than three months nor 
more than twelve months; and the 
said justice or other magistrate 
shall and he is hereby required to 
certify the aforesaid detainer, re- 
fusal and conviction to the person 
or persons who granted such cer- 
tificate of registry for such ship or 
vessel, who shall, on the terms and 
conditions of law being complied 
with, make registry of such ship or 
vessel de novo, and grant a certifi- 
cate thi^reof conformably to law, 
notifying on the back of such cer- 
tificate the ground upon which such 
ship or vessel was so registered de 
novOy and if such master or other 
person who shall have detained 
and refused to deliver up such 
certificate of registry as aforesaid, 
or shall be verily believed to have 
detained the same, shall have ab- 
sconded, so that the said warrant 
of the justice or other magistrate 
cannot be executed upon him, and 
proof thereof shall be made to the 
satisfaction of the commissioners 
of his Majesty's customs, it shall 

interfere. Shortly afterwards, Myers was brought down frain 1829. 
London to appoint another master^ to whom the defendants 
delivered the certificate, under an order obtained by them 
firom the mayor ; and^ the vessel sailing upon her voyage, 
Bowen was immediately liberated from prison. He fol-: 
lowed the vessel to Vera Cruz, and on his arrival there 
found that the goods had been landed by the supercargo, 
and that his ship had been sold by the intrusive captain, 
from whom no information as to the grounds of this pro^- 
ceediug, and no account of the produce of the sale bad ever 
been obtained. Upon this state of facts it was contended 
on the part of the defendants, that the original delivery of 
the certificate of registry being made for a valuable consi- 
deration, the defendants acquiied a lien for their advances, 
and for their responsibility to the tradesmen who repaired 
and victualled the ship ; that the refusal to deliver the cer- 
tificate to Benjamin Botven was not evidence of a conver- 
sion, and that the subsequent delivery of this instrument to 
the master appointed by Myers, was justified by that ap- 
pointment. On the part of the plaintiffs, it was answered 
that the statute expressly provided that the certificate of 
registry should never be held for any other purpose except 
the navigation of the ship, and that therefore no lien could 
be acquired ; and that at all events a delivery to a person 
Dominated as master by Myers, who was the owner of a sixty- 
fourth part, and who had no power to displace a master who 
was appointed by all the part-owners, and who himself held 
an eighth share of the ship, was a wrongful conversion of 
the certificate, which had occasioned an utter destruction of 
the plaintiffs' property. The learned Judge ruled, that 
MyerSf as part-owner, had authority to appoint a master to 
the ship, and that the master so appointed was entitled to 

be bwfal for the said commission- ship or vessel, in like manner as is 

ers to permit such ship or vessel hereinbefore provided in the case 

to be registered de navoy or other- wherein the certificate of re^stry 

^'vt, in their discretion, to grant a is lost or mislaid." 
license for the present use of such 


have the certificate of registry. His lordship told the jury* 
however^ that if they were of opinion that the defendants 
had been guilty of fraud in the transaction, they should 
return a verdict for the plaintiffs. A verdict was found for 
the defendants, which 

Merewether, Serjt. now moved to set aside. The statute 
4 Geo. 4, c. 41, s. 25, prohibits, under heavy penalties, 
the detention of the certificate of registry, under any pre- 
tence whatsoever, for any purpose, except the use and 
navigation of the vessel (a), [Lord Tenterden, C. J« Look- 
ing at the language of the statute, this clause appears to be 
introduced not with a view to the interest of the owners, 
so as to prevent other persons from obtaining a lien. The 
certificate is to be given up to the officer of the customs.] 
The object of the clause was to prevent any impediment to 
the sailing of the ship. \,liffyfey, J. Suppose the ship 
requires repairs, and the master says, I have no money, but 
I will deposit the registry as a security that I can obtain it 
from the owners. Here it seems to have been placed in 
the hands of the defendant as a security for advances. 
The question is, whether a party can be said wilfully to 
detain where he has a lien.] The preamble seems to say 
that he would, because he cannot hold. It supposes every 
refusal wilfuU 

Lord Tenterden, C. J. — It does not follow that this 
action can be maintained. This action is founded on the 
common law right of property, not upon the statute; but 
at common law the party cannot sue for a conversion 
without paying what is due. He should have pursued the 
remedy given by the act. The officer of the customs should 
be required to interfere* The effect might be to make the 
pledge of no avail. 

(a) Ante, 5, {b). 


Bayley, J. — It is not necessary to give any opinion ^f*^9, 
whether the owners bad a right to have this certificate of j, 

registry back again. o. 


LiTTLEDALE, J. and Parke, J. concurred. 

Rule refused. 

Williams v. Waring. 

Assumpsit. The plaintiflf declared as the indorsee A memoran- 

, , 1 • -iv • I - • <^Qin at the 

of a promissory note, made to the plamtitf, without noticing foot of a pro- 

any place of payment. Plea, non assumpsit. At the trial, P|?*®T "®^® 

before Jervis, J. at the last assizes for the county of Den- particular 

high, the note appeared to have the following memoran* P^*^ forms^no 

dum: — ** At Messrs. B. & Co. Barbican, London.'' The part of the 

whole of the note and memorandum was written by the though shewn 

defendant at the same time. It was contended that this was *® be contem- 
a variance, and that the decimation should have described with the note 

thi note as payable at the place mentioned in the memo- ^^^^^' 

niidum. The learned judge over-ruled the objection, but 

reserved the point. 

Campbell now moved accordingly to enter a nonsuit. The 

circumstance of the particular place not being contained 

in the body of the note is immaterial, where it is shewn 

that the whole was done at one and the same time. Thus 

in Trecothick v. Edwin (a), it was held by Lord Ellenbo' 

rough that where the place of payment is printed at the 

foot of the note it formed part of the contract. That de- 

ciaioo proceeded not upon any distinction between 

printing and writing, but upon the evidence afforded that the 

condition must have been there at the time the note was 

signed. Here the fact was proved. The contract is to be 

gathered from the four corners of the instrument. IParke, 

(«) 1 Stark. N. P. C. 468. 


1829. J. The late act (a) applies only to inland bills of ex- 

.^^^'^'^^ change. Lord Tenterden, C. J. In point of practice there 

V. IS a well known distinction between a place of payment in- 

>RiNo. serted in the body of the note, and a place mentioned in a 
memorandum at the foot of a note; in the former case it is 
considered as forming part of the contract, but where the 
place has been mentioned only in a memorandum at the 
foot of a note, I am not aware of any inquiry as to the time 
at which the memorandum was made. Parke, J. The 
question is, what the party meant by it. Bayley, J. Exon v. 
Russell {b) appears to me to be in point. In that case the 
memorandum was on the note at the time it was signed by 
the defendant, which being declared upon as payable at a 
particular place, was held to be mlsdescribed.] 

Lord Tenterden, C. J. — ^The distinction has been so 
long acted upon, and the case cited by my brother Bayley 
is so expressly in point, that I think this Court is bound to 
adhere to the course which has been hitherto adopted. 

Rule refused. 

(a) 1 & 9 Geo, 4, c. 78. no part of the contract, contrary 

(6) 4 M. & S. 605. The ground to the doctrine held by the Court 

of that decision was the opinion of Common Pleas, and to the ulti- 

- then held by the Court of King's mate decision of the House of 

Bench, that a particular place of Lords, in Rowe v. Young, 9 Brod. 

payment designated in an accept- & B. 165. 

aiice or in a promissory note, formed 

Bennett v, Skardon and another. 

Motion to set TRESPASS, quare clausum fregit. Plea, not guilty, and 

S^arefe!^ liberum tenementum. At the trial, before Tindal, C.J. 

enceatnisi at the last assizes for the county of Devon, a verdict 

to^bemadcT was taken for the plaintiff, subject to a reference to an 

after the first arbitrator, who was to set out boundaries, &c. The arbi- 

term, where trator made .his award at Plymouth, 215 miles from Loq- 

tlie award was 

published too late in the vacation to take the necessary proceedings before. 


don, on the 4th of November, and thereby directed a ver- 
dict to be entered for the defendants. The plaintiff was 
advised that the awdrd was bad in p6int of law. The ex- 
amiaations being very long, it was impossible for the 
plaintiff's attorney to consult his client to get ready a case 
for the opinion of counsel, and to obtain that opinion before 
the expiration of the first four days of the term. On the 
second day of the term, 12. Bayly obtained the following 
rule : — 

It is ordered. That all proceedings in this cause, and 
under the award made in this cause, be stayed until Friday 
next; and if any rule shall within that time be made to 
shew cause why the award should not be set aside, until 
such rule shall be discharged, and that if such rule shall be 
made absolute, then that there be a new trial in this cause. 
And it is further ordered, that if no motion to set aside the 
said award shall be made within the time aforesaid, the said 
award do stand absolutely. 

This rule was applied for upon the following cases : — 

Rogers V, Dallimore (a) ; Lee v. Lingard {b)\ BorvQwclale 

V. Hitchener (c) ; Rawsthorn v, Arnold (d). 



(fl) Though ihe Court would in 
general adopt the limitation of 
time prescribed by 9 & 10 WUL S, 
cap. 15, under an order of refer- 
ence, jei when Ihey see sufficient 
cause ihey will interpose their au- 
thority, though the time is elapsed. 
1 Marsh. 471; 6 Taunt. 111. 

(ft) 1 East, 401. When a ver- 
dict is taken pro form^, subject to 
an award, the sum afterwards 
awarded is to be treated as if it had 
origjoaily been found by tlie jury, 
and the plaintiff (and therefore 
also the defendant, where a ver- 
dict is directed by the award to be 
entered in his favour) is entitled 
to enter up judgment for the 
amooDt, without first applying to 
die Coart for leave to do so. 

(c) 3 B. & P. 244. If a verdict 
be taken for the plaintiff at nisi 
prius, subject to an award, and the 
order of reference be made a rule 
of Court, the verdict may be en- 
tered pursuant to the award, with- 
out any application to the Court; 
if in such a case the award be 
made before the term, the opposite 
party can impeach it only within 
the first four days of the term. 

(£2) 9 D. & R. 556 ; 6 B. & C. 629. 
Motion to set aside an award made 
under an order of nisi prius, must be 
made within the time allowed for 
moving for a new trial, although, per 
Abbotly C. J., the Court might not 
insist rigidly upon the compliance 
with that rule, if any sufficient 
ground were stated for indulgence. 



^^'^^'^^ Hunt and another, assignees of W. D. Gilbert and 

T. Gilbert, bankrupts, v. Mortimer and others. 

l£A, ad- Assumpsit, for money had and received to the use of 

to B. an in- ^^^ plaintiffs as assignees. At the trial before Lord Tenter- 
solvent trader, rfew, C. J., at the sittings at Guildhall after last term, the 
of enabling B. following facts appeared: — ^The defendants, who were 
^Td^^^^tMd. i^'onmongers, had been in the habit of advancing money to 
opon the terms the Gilberts^ who were opticians, for the purpose of ena- 
out^ftSrp^ce *^'*°8 the latter to execute orders for the East India Com- 
ofthegoods,a pany, which advances were repaid out of the money re- 
by JB. to A, out ^^^^^^ ^^om the Company, whose payments were made in 
of the P"ce bills at six months. In May, 1827, the bankrupts applied to 
is not a fraa- ' the defendants for an advance to enable them to complete 
dulent prefer- ^^ ^^^^^ received from the Company, and the money, 2,500/., 
was advance:! by the defendants upon the terms of their 
being repaid out of the money to be received from the 
Company. Between July and November, 1827, the Gil- 
berts were arrested by several of their creditors, and one of 
the defendants became bail for them in six actions. In 
November, 1827, the amount of the order, being due, was 
received by the defendants. The Gilberts stopped pay- 
ment on the SOth November. The commission issued in 
May, 1828, upon an act of bankruptcy committed in De- 
cember, 1827, though T. Gilbert^ who lived in the country, 
appeared to have committed an act of bankruptcy in Octo- 
ber, 1827. The learned judge told the jury, that as in per- 
mitting the defendants to receive the money from the East 
India Company, the Gilberts appeared to have acted with 
good faith, in pursuance of a previous agreement, the trans- 
action did not amount to a fraudulent preference, and that 
as no commission had issued within two months, the pay- 
ment could not be invalidated by an act of bankruptcy of 
which the defendants had no cognizance. A verdict having 
been found for the defendants, 


F. Pollock now moved for a new trial, on the ground ^ ^^^• 
thit the transaction amounted to a fraudulent preference, 
which was not protected in the manner stated to the jury. 
This debt was not assigned, nor was any notice given to 
the Company that the defendants had become interested iti 
the payment. [Baylei/fJ. The defendants lend money 
apon an express stipulation that they shall be repaid out 
of the particular fund.] A party has no vested interest in 
the proceeds of an adventure, in respect of which he ad- 
Tances money. The Gilberts had in law a right to apply 
the money due from the East India Company to any pur- 
pose which they might deem expedient. [Lord TeriUrden, 
C.J. The money was advanced for the very purpose of 
executing the orders. Parke, J. That is, in effect, an as- 
signment. Notice to the debtor is necessary only for the 
purpose of taking the case out of the statute of James (a).] 
By the acts of the defendants the credit of the traders was 
bolstered up till the defendants had recouped themselves 
by obtaining payment. The object was to enable the 
traders to linger on till the defendants had got the money. 
In the case of Parker v. Cox, which is now pending, a rule 
was obtained on the ground that the defendant bad kept 
up the credit of the bankrupt and had paid his clerks until 
the money was received. [Lord Tenterden, C. J. That 
case is quite different from the present. In Parker v. Cox 
there was no loan of money to enable the trader to execute 
the particular order.] That part of the present case, which 
is meant to be assimilated to Parker v. Cox, is the defend- 
ants' giving bail for the bankrupts in six actions, and there- 
by keeping them above water. It should have been left to 
the jury to say whether there was not an unusual interfe- 
/ence by the defendants in the affairs of the bankrupts for 
the purpose of putting off the evil day. That was a fraud 
on the bankrupt laws. Suppose a trader borrows money or 
obtains goods, and says, when the voyage is ended I will 
|Miy you out of the proceeds. [Bayley, J. That is not this 
case.] In the ordinary course of business the Gilberts 
(«) tl Jae, 1, c. 19, s. 11; and see Geo, 4, c. 10, s. 79. 


1829. would have been bankrupts long before, but they were 
^"^y^^^ kept out of prison solely by the interposition of the de- 
V. fendants, whose object was to defeat the statute, knowing 

Mortimer. ^j,^j jJj^ Gilberts were irrecoverably insolvent. It would 
have been very different if the assistance given by the de- 
fendants had been a transaction in the ordinary course of 
business. Here they interfere in an unusual manner for 
the purpose of effecting a particular object. l^Parke, J. 
Have you any authority for saying that notice of the as- 
signment of a debt is necessary, except for the purpose of 
getting rid of the reputed ownership, under 6 Geo. 4, c. l6, 
8. 72, following the provisions of the statute of James?^ 
None has been discovered. But as in the case of usury, 
the law will not suffer the spirit of the statute to be evaded. 
If any advantage was to be derived by the defendants from 
postponing the issuing of the commission, it should have 
been left to the jury whether the conduct of the defendants 
had not been directed to that object, which was to post- 
pone those who furnished goods to those who furnished 

Lord Tenterden, C. J. — I thought at the trial that it 
would be carrying the law of fraudulent preference to a 
greater extent than it had yet been carried to treat this 
transaction as a fraudulent preference, and I am still of 
opinion that we ought not so to treat it. 

Bayley, J. — I cannot see any premises from which 
«uch a conclusion can be drawn. 

LiTTLEDALE, J. — Two things must concur to make a 
fraudulent preference, contemplation of bankruptcy and a 
voluntary payment. Here the money was lent for a spe- 
cific purpose, to be repaid out of a particular fund. Far 
from being voluntary, the payment was the subject of a 
specific contract. Where a creditor has trusted in respect 
to the genei^l credit of the trader, if he is paid he obtains 


an advantage over those creditors who remain unpaid. In 
this case the defendants obtained no advantage at all. Here, 
but for the specific contract, the defendants^ knowing the 
traders to be insolvent, would not have lent the money at 
all; it would have remained safe in their own pockets. 

Pabke, J. — There is no pretence for calling this a 
iraudalent preference. When looked at, this transaction is 
nothing more or less than an equitable assignment of a portion 
of the particular fund, in satisfaction of money lent for the 
purpose of creating that fund ; which is very different from 
the payment of an antecedent debt contracted without re- 
ference to such fund. If at the time of the bankruptcy the 
debt from the East India Company had remained unpaid, 
the bankrupt would have had no title to that portion of 
the debt which had been appropriated to the defendants, 
except as apparent owner under the 72d section of 6 Geo* 4, 
c 16. But here the money was paid over before the act 
of bankruptcy. 

Rule refused. 

Phillips, Assignee of Arton, v, Hopwood. 

Trover. At the tnal before Lord Tenterden, C. J., at where a re- 

the sittings at Westminster after last Trinity term, the case pealing statute 

^ , 19 repealed, 

turned upon the sufficiency of the act of bankruptcy^ The the nrst sta- 

commission issued in July, 1 825. The alleged act of bank- ^ay SAch'' 

ruptcy was committed in March, 1825. By 5 Geo. 4, c.98y the third sta- 

wfaich came into operation on the 21st of June, 1824, all feet revWeV 

the prior statutes respecting bankrupts were repealed, and ab initio, and 
JT^ ^ t . r^ . r.r. 1 1 not merely as 

by 6 Geo. 4, c. 10, the act 5 Geo. 4, c. 98, was repealed as from that day. 

from the 2d May, 1825. The learned judge was of opinion 

that the act of bankruptcy was sufficient to support the 

comniission^and the plaintiff obtained a verdict. 






' «J. Williams now moved for a new trial. Upon the Ist of 
May, 1825, all the bankrupt act9 antecedent to 5 Geo, 4, 
c. 98, stood, by that act, absolutely repealed. [Lord Ten* 
ierden, C. J. The 6 Geo. 4, c. 16, put an end to 5 Geo. 4, 
c. 98, as if it bad never existed.] Maggs v. Huni (a) is di* 
rectly in point. [Bay ley ^ J. Upon the 2d of May all the 
former statutes were revived.] It is submitted that they 
were revived only from the 2d of May, the date of the last 
repealing statute, 6 Geo. 4, c. l6. During the whole of 
the 1st of May the former statutes were dead, they would 
not revive retrospectively. [Bayley, J. This commission 
does not depend upon any thing done on the 1st of May. 
If the act of bankruptcy had been between the 2d of May 
and the 1 st of September, a commission might have been 
sued out before the 1 st of September (6).] In BacotCs Abr. 
Statutes, " From what time to have effect" (c), it is said, that 
" It is the general rule that no statute is to have a retrospect 
beyond the time of its commencement, for the rule and law 
of parliament is, that '' nova constitutiofuturisformam debet 
imponere, non prateritis.** And the same rule appears to 
be deducible from the cases which are collected in 19 Vin* 
Abr. Statutes, B. 

Lord Tenterden. — The old statutes were in force in 
March, and also in July. 

Pabke, J. — ^The statutes were in force when the act of 
bankruptcy was committed, and when the commission 

Rule refused. 

(a) 4 Bingh. 212. 
(6) The day on which the pro- 
visions of 6 Geo, 4, c. iOf except 

as to the repeal of 5 Geo. 4, c. 98, 
began to operate, 
(c) 5 Bac. Abr. Statutes, (C.) 


Clay, Assignee of Malleys, a Bankrupt, v. Harrison. 18S9. 

Assumpsit on two policies of insurance, each for 100/., After stoppage 
on a cargo of deals, per Providence, Younge, from Peters- *" '^^""c^ges^ 
burgh to Hull, laying the interest in thjs bankrupt. At the to have an in- 
trial, before Bayle^, J., at the York Spring Assizes, 1828, l^^^^^ '""^^ 
the question raised was, whether the interest was in the And a policy 
btnkrupt at the time of the loss. A verdict was found for ^h^ stoppage 

the plaintiff for 200/., subject to the opinion of the Court becomes 

. , ,. , . , ^ « . /. ^ thereby void, 

upon a special case disclosmg the followmg facts: — Un 

the 20th January, 1825, Malleys, the bankrupt, ordered of 
Hubbard, who had a house at London and at Petersburgh, 
two cargoes of deals, to be paid for by Malleys's acceptance, 
at three months from date of shipment, on receipt of in- 
voice and bill of lading. In October, 1825, the deals were 
shipped on board the Providence for Hull. In November, 
1825, Malhys received an invoice, with a bill of lading in- 
dorsed in blank, and accepted Hubbard^a draft, payable 
S4th January, 1826, for 923/. 2s. 6d., amount of invoice. 
In September and October, 1825, the defendant subscribed 
the two policies on which the action was brought. On her 
▼ojage to Hull the Providence was wrecked near Elsinore, 
5th January, 1826. The cargo was saved, but was so 
much damaged that Younge, the master, did not think it 
worth sending out a ship for. On the 2dd January^ 1826, 
Midleys first heard of the loss, and he immediately gave no- 
tice to the defendant of abandonment of all his right and 
interest in the vessel so far as concerned his subscription, 
and requiring payment of the same, as a total loss, which 
oodce the defendant refused to accept, unless he could 
put bim in possession of the goods saved. Malkys was 
insolvent on the 23d January, 1826, and on the following 
day his acceptance was duly presented for payment, and 
dishonoured., On the 4th February, 1826, Hubbard g2Lve 
notice to the defendant not to pay the loss otherwise than 
to die order of himself, as the person solely interested. On 

▼OL, V. c 



1829. the 11th February, 1826, Hubbard sent one of the bills of 
lading to his agent at Elsinore. This bill of lading, which 
was to order, and indorsed in blank, reached the agent on 
the Sd March, 1826; whereupon he applied to the agent of 
the ship, who agreed to deliver the cargo; but no further 
possession was taken until Hubbard received 271/- 7s. lOd., 
the net proceeds of a sale which took place on the 22d May, 
1 826. An action was brought by Hubbard against MaUejfs 
in Easter term, 1826, on his acceptance, and notice of trial 
was given for the first sittings in Trinity term, but the re- 
cord was withdrawn. Malleys became bankrupt 23d May, 
1 826. Malleys's acceptance still remains in the possession 
of Hubbard, but has not been proved on Malleys^s estate. 

Patteson, for the plaintiff. The plaintiff is entitled to 
judgment on three grounds. First, there was a complete 
total loss before the attempt to stop in transitu, and which 
cannot be affected by any thing which occurred afterwards. 
Secondly, there could be no stoppage in transitu, because 
there was an abandonment and change of property, and be- 
cause the transitus was at an end before the supposed stop- 
page in transitu. Thirdly, the effect of stoppage in transitu 
is not to alter the property, but merely to create a lieii^ leav- 
ing an insurable interest in the bankrupt. Upon the first 
point the dates are very material. The contract was to pay 
by bills at three months; the loss happened on the 5th 
January, 1826, nineteen days before the bill became due; 
intelligence of the loss arrived on the 23d January, the 
day before the bill became due. [Lord Tenterden, C. J. 
I suppose no point is intended to be made as to the 
form of the abandonment. The notice is, that he aban- 
dons his interest in the ship, in which he had no inte- 
rest.] The objection taken to the notice was, that Jtfoi- 
leys was not in a situation to abandon. Mallej^s was 
bound to give every facility to the underwriters to obtain 
possession of the property abandoned. If any thing had 
been recovered from the proceeds of the sale, the bankrupt 
would have been bound to account to the defendant for the 


amount. Havelock s. Geddes{a). [Lord Tenterden, C.J. 
The whole case seems to turn upon the effect of the stoppage 
in transitu. Bctyleif^i. The question will be, whether the 
consignee can expedite his right. There would have been 
a right to stop, as against the consignee, whilst the goods 
were on their way to England. Lord Ttnterdm, C. J. 
Does an abandonment vest the property ? If it does, where 
is the use of asking for an assignment?] Circumstances 
equivalent to an indorsement of a bill of lading will prevent 
the right to stop in transitu. [Bayley, J. Supposing, 
after an abandonment, the goods were brought to England, 
would the vendor have a right to stop them in transitu?] It 
is conceived that he would not. The defendant cannot be 
allowed to take advantage of his wrongful act in refusing the 
abandonment which he was bound to accept. Secondly, 
there could be no valid stoppage in transitu, because the 
property bad been transferred. The transitus was at an 
end when the goods were landed. In HolU v. Pownal{b), 
it was held, that possession obtained by the consignee, be* 
fore the completion of the voyage, would not divest the 
right of the consignor to stop in transitu. But that nisi 
prius decision has since been qualified by the late case of 
Foster v. Frampton (c), in which it was held that if goods 
are shipped to be delivered at a particular place, and the 
consignee accepts them at an intermediate place, the tran- 
situs is at an end. Here the goods insured were accepted 
at an intermediate place by an abandonment to the under- 
writers. IBayky, J. In this case the abandonment is not 
accepted by the underwriters. The question now before 
the Court is, whether the goods were on their way to a port 
of destination. It does not appear whether the goods could 
have been sent home by another ship or not.] Thirdly, 
supposing the goods to have been stopped in transitu, the 
effect of the stoppage is not to rescind the bargain, but 
merely to give to the vendor a right to re-possess and hold 

(«) 10 East, 565. (e) 9 D. & R. 168; 6 B. & C. 

(« 1 E»p. N. P. C. 940. 107 ; « C. & P. 469. 



the goods. [BayUy, J. After stoppage in transitu, the ven- 
dor may bring trover against the captain, if he withhold the 
goods.] That results from the vendor's qualified right of 
property, from his right of possession. In Hodgson v. 
Loy{a), it was laid down by Lord Kenyon that the right of 
the vendor to stop in transitu only created an equitable 
lien, and did not proceed on the grounds of rescinding the 
contract. By the sale itself the property passes to the 
buyer (6). The vendor has merely a right to retain the pro- 
perty until the price is paid, and not even that, if time is 
given for the payment. In Bloxam v. Sanders (c), it was 
held that trover would not lie for a vendee who had not 
paid for the goods, because though he had the property {d) 
he had not the right of possession. The whole judgment 
went upon that distinction. Com. Dig. Agreement, B. 3. 
This agrees with the judgment of Buller, J. in Lickbarrow 
V. Mason (e). Here, the price was to be paid by bill; but 
nothing has occurred to prevent the property remaining in 
Malleys. [Lord Tenterden, C. J. The vendor might stop 
ia transitu before the bill became due, if in the interval the 
vendee became notoriously insolvent. If the goods had re- 
mained in the hands of the vendor, might he not have said, 
unless you pay me I will keep the goods as my own? 
Bayley, J. May not the vendor re-sell, unless the vendee 
will pay the price ? And does he not abandon all claim 
against the vendee by re-selling?] In Kymer v. Suwer" 
cropp (f), it was held that where goods to be paid for on 
delivery are stopped in transitu, the vendor may still main* 
tain an action for goods bargained and sold, if he offer to 
deliver them on being paid. In a late case the Court 
directed an account to be taken, in order to enable the 
vendor to prove for the difference. In Bloxam v. San^ 

(fl) 7 T. R. 445. (e) 2 T. R. 63, 5 T. R. 367; 

ib) t. e. by the sale and delivery, 683; 4 Bro. P. C. 2d ed. 57. 

Vide ante, ii. 566 u. (/) 1 Esp. N. P. C. 240; ante, 

(r)7D.&R.396;4B.&C.941. 19. 
{d) Sed vide ante, ii. 566, n. 


(ifrs(a), it was said that the contract was not rescinded by 
the stoppage in transitu. [Bayley,J. There the vendor 
had not any right of possesion. Lord Tenterden^ C. J. 
The property passed in the first instance by the sale and 
the delivery on board the ship (6), subject to being re-vested 
iQ the vendor under certain circumstances, which gave him 
aright to put himself in the same situation as if the con- 
tract had never existed. Littledale, J. In Langfort v. 
!R/er(c), Lord Holt says, " That after earnest given, the 
vendor cannot sell the goods to another without a default 
in the vendee ; and, therefore, if the vendee does not come 
and pay and take the goods, the vendor ought to go and 
request him ; and then, if he does not come and pay and 
take away the goods in convenient time, the agreement is 
dissolved, and he is at liberty to sell them to any other 
person." So if the vendee become insolvent.] The 
property is not re-vested until something be done by the 

F. Pollock, contri. The great question in this case is, 
what is the effect of the stoppage in transitu. This is only 
a constructive total loss. The Court will not carry that to 
such an extent as to give it the effect of destroying the 
right to stop in transitu. The goods remaining may be 
worth more than the proof under the commission. The 
second point, which is the main question in the cause, has 
been argued upon a petitio principii. The distinction in 
the cases referred to is, between an executed delivery, and a 
stoppage in transitu, supported on the ground that the de- 
livery had not been complete. Bloxam v. Sanders {d) is a 
case of executed delivery; whereas a stoppage in transitu 
implies that goods are still to be sent. The consignor must 
stop at his own peril. In cases of executed delivery the 
vendor may sue for the price in an action for goods sold 
and delivered, and may take the same goods in execution. 

(a) 7 D. & R. 596; 4 B. & C. (c) 1 Salk. IIS. 

94J. (d) 7 D. & a. 396; 4 B. & C. 

(b) Ante, ii. ^66, n. 941 ; ante, 30. 








By the contract of sale nothing passes but the right 
to have the goods. Until delivery the property is in the 
vendor. The vendee has jus ad rem^ but not jus in re (a). 
Where there has been no delivery, or where the delivery, 
being defeasible, has been defeated, as here, the vendor 
may, upon the expiration of a reasonable time, treat the 
contract as dissolved. After taking that course he cannot 
sue for the price. It is true that in Hodgson v. Loy (6), 
Lord Kenyon denied that the right of the vendor to stop in 
transitu proceeded on the ground of rescinding the contract. 
But certainly the current of authorities is the other way. 
Here it is more reasonable to consider the contract as re- 
scinded, the cargo having been sold by the vendor and the 
proceeds of the sale received by him. In Lett v. Cowley (c), 
Gibbs, C. J., says, that after stoppage in transitu the pro- 
perty is in the vendor; there is an actual re-vesting of the 
property. So in the case of The Constantia (d), it is termed 
a complete and effectual revendication. Whatever a bank- 
rupt holds merely as trustee for others, does not pass to his 
assignees (e), who, therefore, cannot sue. It is submitted 
that the vendor could not prove against the estate; he 
could only sue on the special contract for not accepting 
and paying, &c. 

Patteson, in reply. Stoppage in transitu is not per se a 
rescinding of the contract of sale. It has been said that 
the vendor may wait a reasonable time. Here he has made 
his election by bringing his action on the bill, which he still 
retains in his possession. The vendor would have had no 
right to sue if the contract had been rescinded; the bill 
should in that case have been immediately given up to the 
bankrupt. The seller and the buyer may both be said to 
have an interest in the goods after stoppage in transitu. It 
is sufficient to maintain this action if the bankrupt had any 

(a) Ante, ii. 506 n. 
\b) Ante, 20. 
(c) 7 Taunt. 109. 

{d) Rob. A. R. 391. 
(e) Vide Carpenter v. Marnell^ 
3 B. & P. 40. 


interest. Lett v. Cowley {a) is very distinguishable. In the 
case of the Constantia, the question was, whether there Clay 
could be stoppage in transitu without actual insolvency, Harbison. 
[Bayley, J. In Lett v. Cmvley, it was said that the pro- 
perty re-vested by the stoppage in transitu.] All the autho- 
rities shew that the property passes by the sale {b), though 
it is said on the other side that nothing passes by the sale 
bat the right to have the property. In no case is it 
laid down in what manner the stoppage in transitu ope- 
rates. It is submitted, however, that it operates merely to 
re-vest the possession. In those cases in which the expres- 
sion ** re-vesting the property" is found, that point was not 
before the Court, By holding that the effect of the stop- 
page in transitu was to re-vest the property, the vendor 
would not be in a better situation than if it were consi- 
dered that the possesmn only re-vested. [Lord Tenterden^ 
C. J. This is a very important case. Kymer v. Suwer- 
cropp was a case of an executed delivery.] 

Cur. adv. vult. 

Lord Tentekden, C. J, delivered the judgment of the 
Court. — The question in this case was, whether, at the time 
of the lossj the bankrupt was interested in the goods in- 
sured. This depended upon the effect of the stoppage in 
transitu, viz. whether it operated to rescind the contract 
and to re-vest ihei property in the vendor, or only to retain to 
the vendor the right of possession and to replace him in the 
same position as before he parted with the possession of 
the goods. This point does not appear to have been ex- 
pressly decided; but we are of opinion that in the present 
case the bankrupt, after the stoppage in transitu, had 

no property in the goods insured, and that the action 

caooot be supported. 

Judgment for the defendant, 
(a) 7 Taunt. 169. (b) Sedvide ante, ii. 566, n. 



Doe, d. William Harris, t. Elizabeth Howell and 


J. devises to CjECTMENT for a messuage and lands at Clifton in 
mainder to C. ^^^ county of Worcester. At the trial of this cause, before 
in fee, with Vaughan, Baron, at the Spring Assizes for the county of 
case C. shoald Worcester, 1828, a verdict was taken for the plaintiff, sub- 
die ^fore B. j^^j ^^ jjjg opinion of this Court on the following case: — 
have no other Shortly before the 19th day of February, 1763, John 
her deaX^to' "^^ died, seised in his demesne as^of fee of the premises, 
devise as she having first duly made and published his last will and tes- 
proper. C. tament in writing, executed and attested so as to pass his 
*"d d*^d^* real esUte, bearing date the 29th Sept. 1762, whereby he 
the lifetime of devised as follows : ** I give, devise, and bequeath unto my 
^d^visin^'***^ daughter, Elizabeth Harris, all those, &c. (the premises in 
given to B. is question,) To hold to her for and during the term of her 

fee* to herTy'" ^'^^ » ^"^ '''^™ **"^ ^^^^^ ^®' decease, in case her husband, 
wayof execu- Wm. Harris, shall survive her, then I give and devise the 
during the life sc^me unto the said Wm. Harris for the term of his life, 

of C, and and from and after the decease of the said Wm. Harris and 

uuon the death ^ , . .^ . ^ , . ▼ . 

or C. it be- £. his wife, and the survivor of them, then I give and 

remSnderca- ^^^'^^® ^^^ ^*^ messuages, &c. (the premises in question,) 
pable of being unto my grandson, John, the son of my said daughter £/r- 
fine. ^* ^ zabeth Harris, and his heirs and assigns for ever; but in 
case my said grandson shall die before my said daughter, 
and she shall have no other child living at her death, then 
my will is that my said daughter shall give and devise the 
said premises to such person or persons as she shall think 
proper." The testator, at the time of his death was a 
widower : Wm. Harris and the testator's daughter, Eliza- 
beth, who are named in the will, were married on the 28th 
of April, 1762; John, the grandson, mentioned in the will, 
was the illegitimate son of the said Elizabeth by the said 
Wm. Harris, and died in April, 1763, aged about two or 
three years ; Wm. Harris, the lessor of the plaintiff, is the 
son and heir of the said Elizabeth and Wm. Harris, her 


laid husband, and was born in January, 1766; Wm. Harris, 1829. 
the husband, died in the month of November, 1770, leaving 
bis said wife and his said son, Wm, Harris, the lessor of 
the plaintiff, him surviving. On the 27th of December, 
1772, the said Elizabeth, the widow and relict of the first- 
named Wm. Harris, intermarried with one Samuel Author^ 
nies. In Hilary term. Id Geo. 3, the said Elizabeth and 
Samuel Anthomies (her second husband) duly levied a fine 
with proclamations of the premises, in which fine one Ro- 
bert Jones was plaintiff, and the said Elizabeth and Samuel 
Anthornies and one James Payne were defendants ; Robert 
Jones afterwards conveyed the premises to one Child, from 
whom, by divers mesne assignments, they came into the 
possession of the Earl of Coventry, whose tenants the de- 
fendants in ejectment are. Elizabeth Anthomies died a 
widow in May, ]819, leaving Wm, Harris, the lessor of the 
plaintiff, and her then only child, her surviving. The lessor 
of the plaintiff made an actual entry upon the premises 
within five years next after the death of Elizabeth Jnthor^ 
mes and before the day of the demise laid in the declaration, 
for the purpose of avoiding the fine^ and also commenced 
this ejectment within one year after the making of such 
entry, and duly prosecuted the same. 

The questions for the opinion of the Court are, Ist. 
What estate in the premises the said Elizabeth took under 
the devise; and, 2dly, Whether the title of the lessor of the 
plaintiff was or was not bound by the fine. 

This case was first argued at the sittings after last 
Easter term, by Busby for the plaintiff and Shutt for the 

A second argument was directed upon the question whe- 
ther an executory devise might be converted into a contin- 
gent remainder by an event happening after the death of the 
devisor, viz. by the death of John, his grandson. 

The case was argued upon this point by 

^aiby, for the plaintiff. The question is, whether the 


fee being displaced by the death of JohUf the estate of 
Wm. Harris, the grandson, became vested or contingent. 
No cases have been found directly id point. John was 
in existence at the time of the death of the testator, 
which distinguishes the present case from Loddington 
V, Kime (a). If John took a vested remainder, the 
limitation over could only be by way of executory devise. 
If there be a devise to A., with a vested remainder in fee 
after his death to £., a further estate to C. must be by way 
of executory devise by implication; there is no case to 
shew that the executory devise could be converted into a 
remainder by the death of the intermediate party. Dot v. 
Selby (6). In giving judgment in that case, Bayletff J. put 
the very case now before the Court. Gullivers.Wickett [c). 
^Parke, J. He cannot have any vested estate if the child 
were living at the time of the death of tenant for life, the 
estate would be vested until the death of the tenant for life, 
it would be contingent. Bayley, J* No doubt, Johtt took 
a vested fee defeasible ; the question is as to the estate 
which William took. Lord I'enierden, C. J. No doubt, 
John took a vested remainder in fee.] If John took a 
vested remainder, the subsequent devise cannot be altered 
by his death. [Bayley^ J. If the previous fee is destroyed 
does the limitation over continue an executory devise?] It 
is submitted that it does, Gulliver v. Wickett. [Bayley, J. 
It was not held there to be an executory devise; Lee, C. J. 
says, ** The devise to Kaiherine for life, with remainder to 
such child as my wife is enceinte with in fee, is a good con- 
tingent remainder to a supposed child in ventre sa mere ; 
and if there had been no devise to the wife for life, the 
devise to the child in ventre sa mere would have been a 
good executory devise." There I think he was wrong. It 
was a limitation to a child defeasible (ci).] Here there is no 
child, even in embryo. [Lord Tenterden, C. J. No one can 
doubt that John took a vested remainder.] 

{a) 1 Salk. 284, 228. (c) 1 Wils. 105. 

(ft)4D.&R.608;2B.&C.926. (<0 8D.&R.718;5B.&C.86a. 


Shutt, contri. That which was originally an executory 
devise may become a remainder by an event occurring after 
the death of the testator ; the next question is, whether it 
b 80 in this case. There are many cases to sheWi that by 
the removal of the intermediate devisee, that which was at 
first an executory devise may become a remainder. Ste-^ 
fkem V. Stephens (a). It was remarked by Mr. Fearne {b) 
that in Hopkins v. Hopkins (c) it was held that the execu- 
tory devise having once vested^ the subsequent limitations 
thereupon became remainders* Brownsword v. EdiDardsid), 
Doed. Fonnereau v. Fonnereau(e). Then the only point is 
whether it became a contingent remainder; for this purpose 
it will be sufficient to refer to Doe v« Scudamore (/)• 

Busby, in reply« In the cases cited from Lord Talbot, 
at the time of the testator's death, the first devisee died, 
and the devise lapsed ; in Brownsword v. Edwards the limi- 
tation was to take effect at twenty-one. The estate of Wm. 
Harris, the grandson, must depend upon the estate which 
John, the prior devisee, took. On the death of John, Wil-- 
liam, the grandson^ may be considered a3 taking a defeasi- 
ble fee. 

Cfif. adv0 vult, 

Baylet, J., now delivered the judgment of the Court. 
After stating the facts of the case, his Lordship proceeded 
thus: — This case depends upon the effect of the fine 
with proclamations levied by the testator's daughter and 
her second husband. When that fine was levied, the only 
parts of the will capable of operating were the devise to the 
testator's daughter, Elizabeth, for life, and the devise over, 
that in case she should have no other child living at her 
death, she should give and devise the premises to such 
person or persons as she should think proper. The ques- 

(•) Cas. temp. Talbot, 298. (d) 2 Vez. sen. 243. 

(A) Feame, C. R. 526. (e) Dougl. 470. 

(c) Cbs. temp. Talb. 44 ; 1 Atk. (/) 2 B. & P. 294. 


tion whether the title of the lessor of the plaintiff is barred 
by the fine, depends upon the quality and character of the 
power given to his mother, Elizabeth, to give and devise 
the premises in case she should have no other child living 
at her death. It is a maxim of law, that no limitation 
shall be considered as an executory devise which may 
take effect as a remainder, the law favouring the alienation 
of property. Here, at the death of the testator, the limita- 
tion could enure only as an executory devise, by reason of 
the previous disposition of the whole fee. Upon the death 
of John this reason ceased, and the premises stood limited 
to Elizabeth for life, remainder to her husband, Wm. Harris, 
with the power to her to give and devise the fee if she 
should have no other children at her death. Upon the 
death of John, therefore, the character and quality of this 
limitation changed, and it became a contingent remainder, 
conformably to the principle upon which executory devises 
are allowed, namely, that of giving effect to the intention of 
the testator. In Stephens v. Stephens the limitations over 
must have been executory devises until the estate vested in 
the devisee in tail, when those subsequent limitations took 
effect as vested remainders. In Hopkins v. Hopkins, limi- 
tations, considered as executory devises, became contingent 
remainders upon the birth of the intended first taker. If an 
executory devise shall become a contingent remainder after 
the death of the testator by the birth of a person capable 
of taking, the same change must take place by the death 
of a person whose interest alone caused the limitation 
to be considered as an executory devise. A limitation in a 
will which could at first have operated only by way of 
executory devise may, by a change of circumstances in the 
lifetime of the testator, operate so as to give a vested estate 
in possession, or a vested remainder, or a contingent re- 
mainder, as is laid down distinctly by Mr. Preston in his 
book upon Abstracts, vol. ii. page 154, and a change of 
circumstances after the testator*s death may make a parti- 


colar limitation operate at first as a remainder, and after- 
wards as an executory devise, or i converso. So in 
Fearue (a) it is shewn, that where a limitation which causes 
subsequent limitations to operate by way of executory devise 
is removed, such subsequent limitations will operate in the 
same manner as they would have done had such prior limi- 
tations never existed. In Gulliver v. Wickett there was a 
devise for life, with a contingent remainder in fee and an 
executory devise over, and it was held, that upon failure of 
the contingent remainder in fee the ultimate limitation took 
effect as an ordinary remainder upon the determination of 
the life estate. Browtisword v. Edwards is to the same 
effect. Upon these authorities we think it clear that a 
change of circumstances after the death of the testator, may 
convert into a remainder that which at the death of the 
testator could have taken effect only by the way of execu- 
tory devise ; if this be so, this case is clear ; at the time the 
fine was levied the only vested estate was in Elizabeth, and 
the only other interest was a contingent remainder to such 
child or children as she should leave at her death, which 
remainder was destroyed by the fine. 

Postea to the defendant. 
(a) Fearne, Coot. Rem. 6th ed. 626. 

Don LAN r. Brett, Clerk. 

1 HIS was an action for goods sold and delivered, money a plaintiff ar- 

lent, &c., in which the defendant was held to bail for the !^*""8 ^^^ » 

latter sum 

sum of 575/. At the trial before Lord Tenterden, C. J., at than is legally 
Westminster, at the adjourned sittings after Trinity term, ^"Sourma. 
the plaintiff obtained a verdict for 82/. 9$. 6d. only. In the lice, is liable 
particulars of the p1aintiff''s demand he claimed a sum of fen^t's coms 
400/, as money due from the defendant to the plaintiff, as ""^®'' ^ ^^^' 
per memorandum beanng date 22d of August, 1828. The 


^99. ^ defendant obtained a rule, calling upon the plaintiff to shew 
cause why he should not pay the defendant's costs of the action. 
In the plaintiff's affidavit in answer to the rule it was 
stated, that this 400/. was the balance remaining unpaid of the 
purchase money for the next presentation to a living, which 
the defendant had repeatedly promised to pay, and that he 
was indebted in other sums amounting to 90/., for which 
the plaintiff held receipts signed by the defendant, but not 
stamped, and therefore not admissible in evidence. 

Piatt now shewed cause. The facts diselosed by the 
affidavits sufficiently negatived malice. In Silversides v. 
Bowleg {a) it was held, that to entitle the defendant to his 
costs under this statute it must be shewn that the arrest 
was vexatious and malicious. 

Hutchinson, contr^, was stopped by the Court. 

Bayley, J. — This rule must be made absolute. There 
was no ground for the arrest. 

Parke, J. — As this point has been held both ways, the 
best course will be to refer to the act, the words of which 
are, " without reasonable or probable cause," not using the 
words *' malice" or " maliciously.** If, therefore, without 
reference to the question of malice, the arrest was without 
reasonable or probable cause, the defendant is entitled to 
his costs; and inasmuch as the 400/. was not due on a 
valid contract, the arrest, quoad that sum^ was unfounded. 

Rule absolute (6). 

(d) 1 J. B. Mooi-e, 99. roll to evidence the defendant's 

(fi) See the next case. right to the costs allowed b^ the 

For the forui of the suggestion rule, see Tidd's Appendix, 4th 

to be entered on the judgment edit. 396, 6th edit. 394. 


Day v. Picton. 

The defendant, on the l6th of April, 1829, purchased of Where a de- 
the plaintiff 70 dozens of port wine, to be paid for one half rested without 

in cash on the delivery of the wine, and the other half by a reasonable or 

•^ , probable 

bill of exchange payable four months after such delivery, cause, and the 

The cash was paid, but no bill was drawn by the plaintiff ve^"iesg7han 
on the defendant for the other half. On the @3d of April the sum sworn 
the defendant purchased of the plaintiff 37 dozens of pale to'costs* under 
sherry at 3fis., and 33 dozens of brown sherry at 37*., to be *3 Geo. 3^ 
paid for one half in cash on delivery, and one half in a bill no malice be 
at four months from the 1st of May. The defendant having ^^^^^ W- 
made default in the payment of 64/., being the stipulated 
cash payment on the sherry wine, and the plaintiff having 
ascertained that the defendant was offering the wine for 
sale at 265. per dozen, arrested him for 193/., being the 
amount of the cash payment then due, together with the 
sums for which the bills of exchange were to have beeq 
drawn and accepted. At the trial the plaintiff obtained a 
▼erdict only for the 64/. due in cash at the time of the action 
Irrought. A rule having been obtained calling upon the 
plaintiff to shew cause why the defendant should not be 
allowed his costs in this cause to be taxed by the master, 
pursuant to the statute of the 43d year of his late majesty 
King Geo. 3, c. 46, and ordering that in the mean time pro- 
ceedings should be stayed, 

Gnmey and White now shewed cause. In Edgington v. 
Hood{b) the defendant was arrested for 60/., and the plain- 
tiff recovered 22/. only; but as there was no vexation, and 
the plaintiff conceived that he had a good cause of action 
for the whole amount, the Court discharged the rule. 
Here, the plaintiff acted bon& fidef he stated that he 

(«) See the last case. the question as to his right to re- 

(fi) S Chit. Rep. 147. In that cover the whole 60/., and inclined 

case the Court were of opinion to think that he ought to have had 

that the plaintiff had fairly raised a verdict for that sum. 




thought he had a right to arrest defendant for 129/.# and 
said he had reason to believe that unless he resorted to this 
measure the whole debt would be lost. There is, there- 
fore, no ground for imputing malice to the plaintiff, but 
both malice and the absence of probable cause must concur 
to entitle a defendant to the remedy provided by this sta- 
tute, which is merely a summary mode of giving the party 
the benefit of an action for malicious arrest. 

Scarlett, A.G., and Paynct contri, were stopped by the 

Bayley, J. (a). — I think this rule must be made abso- 
lute. I take the rule to be, that where there is a reason- 
able and probable cause an arrest may be made ; otherwise 
not Now here every lawyer must have known» that at 
the time that the defendant was arrested for the 193A the 
plaintiff had no right to hold him to bail for that sum. 

LiTTLEDALE, J. — The plaintiff may have felt, that ia 
justice and equity the money was fairly due to him, but in 
law it clearly was not. 

Parke, J. concurred. 

Rule absolute, 
(o) Lord Tenierden, C.J. was absent through indisposition. 

The King v. The Inhabitants of Willoughby-with- 

An estate in UPON an appeal against an order of two justices^ 
Sough vested, whereby William Stokes, his wife and children, were re- 
will not confer moved from Huttoft to Willoughby-with-Sioothby, in the 
parts of Lindsey, in the county of Lincoln, the Court of 
quarter sessions confirmed the order, subject to the opinion 
of this Court upon the following case : — 

The pauper being settled m Willougliby^with^SIoothby, 
Join Neal, by indentures of lease and release of the IQth ThTKiNG 
and 20th of March, 1825, in consideration of 105/., con- v. 

ley ed a parcel of land and two unfinished dwelling-houses, 
aituate in Huttoft, to the use of Elizabeth Stokes for life or 
widowhood, remainder to the use of the pauper in fee. 
The 105/. was money which had been bequeathed by the 
father of the pauper to him absolutely, the interest of 
which the pauper had subsequently by his deed, in consi* 
deration of natural love and affection and lOs., settled upon 
bis mother for life or widowhood, the principal, after her 
death, to be paid to himself. A further sum of 50/. was 
expended by the pauper, after the execution of the convey* 
ance, in finishing the dwelling-houses, which sum had been 
bequeathed by the pauper's father to trustees in trust to 
pay the interest to the widow during her life or widow- 
hood, and the principal, after her decease or marriage, to 
the pauper. The pauper paid the interest of the 105/. to 
the trustees, and the trustees paid it over to the mother. 
The pauper entered upon one of the houses and part of 
the land at the time of the execution of the conveyance. 
The mother let the other house and the remainder of the land 
for the space of one year after the execution of the convey- 
ance, at the expiration of which year the mother told the 
pauper she would deliver up all the premises to him, and 
that he might do as he liked with them. The pauper then 
entered into possession of the other house and land, and let 
it, and received the rent himself and never accounted for 
it to his mother, and continued to occupy the same house 
he had previously occupied until 1828, when both were sold, 
aod were conveyed by a deed, to which his mother, who 
remained a widow, was a party. The pauper received the 
whole purchase-money, and did not account for it to his 
mother. They both joined in the receipt to the purchaser. 

Aldenon, in support of the order of sessions. Unless 
^ pauper had an immediate interest he had no right of 

VOL. V. D 


1829. residence. In Rex v. Eatington (a), where A*, residing 
-Jj^*^^***^ upon a cottage of his own, conveyed it by lease and release 
11. to B., with a proviso that A. should live in and occupy the 

WiLLouoHBY. ^.^j^3gg duriug his life, it was held, that inasmuch as the 
proviso reserved to A. a life estate, B. took only a remainder, 
which conferred no settlement by residence on the estate. 
It is immaterial for the present purpose to inquire whether 
the Court were right in putting that construction upon the 
proviso. The settlement was disallowed on the ground 
that the pauper took no immediate interest. The same 
principle was acted upon in Rex v. Ringstead (6). The 
operation of the will was inquired into for the purpose of 
ascertaining whether an immediate interest passed. Theu 
this is a purchase; but it does not appear that the pauper 
has any interest to the amount of 30/. It is impossible to 
determine the value upon the case as it is now stated. 

N. R. Clarke, on the same side, referred to the cases of 
Rex v. Staplegrove (c) and Rex v. Hoiightou-leSpring (d). 

Fi/nes Clinton, contri. Rex v. Eatington was decided 
upon another point. It was there assumed to be necessary 
that the party claiming a settlement by estate should have 
a right of possession. In Rex v. Slaplegrove, which was 
decided afterwards, it was held that it was not necessary that 
the party should have a right of possession at the time of the 
residence, but that he gained the settlement being entitled 
to the reversion only. [Parke, J. In that case there were 
strong grounds to believe that the demise for a thousand 
years was a mortgage term.] So here, the mother lets the 
pauper into possession. In Rex v. Houghtothle-Spring 
possession was held not to be necessary. The distinction 
is, that if he is in possession as mortgagor, he is in posses^ 
sion by leave and licence of the mortgagee. [Bayletf, J. 
In Rex V. Houghton-le-Spring the pauper had a present 

(a) 4 T. R. irr. (c) 2 B. & A. 527. 

(6) Anle, iv. 67; 9 B. & C. 318. {d) 1 East, 247. 


estate of freehold, not what the law calls a reversion.] In ^829. 
fier V. Rmgstead the point was not fully considered. 


Whiiekursi, on the same side. In Iter v. Houghton^e- Willouohby. 
Sifmg, Lord Kenyan says, ** it seemed to nie to be a most 
atraordinary {uroposition .to establish that a man might be 
removed from a parish in which he had property, perhaps, 
to a considerable amount, but whether more or less in such 
a case is unimportant, because he has let it out, and that 
if be afterwards came there again he was liable to be treated 
as a vagrant. A man, though not in the actual occupation 
of bis own estate, may have many reasons for wishing to 
live in the neighbourhood of it. He is entitled to the pri- 
vilege of superintending it, but, according to the doctrine 
cootended for, he may be sent to another part of the king* 
dom, if his settlement happened to be there." 

Bay LEY, J.-^A man who has a remainder only has no 
right to superintend. An estate in remainder expectant 
upon a prior estate of freehold, is not sufficient to confer a 
setdement. The party has no means of subsistence out of 
the actual profits or the rents. Rex v. Houghion^le-SpriHg 
only shews that if a party has a vested estate of freehold 
he need net actually occupy. There is a plain line of dis- 
tinction between this case and those which have been men- 
tioned. The Court cannot look at the quantum of rent^ 
but simply at the immediate estate of freehold. Here the 
son never had the present estate of freehold. 

LiTTLEDALE, J., coucurred. 

Parke, J. — This point was expressly decided, after a 
▼ery long argument, in Rex v. Ringstead. 

JLord Tenter DEN, C.J. — I concur in the opinion that 
ui estate in remainder is not sufficient. 

Order of Sessions confirmed. 


The King t;. Mainwaring. 

The exemption X HE defendant was convicted before a single magistrate 
c!4i,s.9S,(the ^^^ ^^^ P^('^ ^f Lindsey, in the county of Lincoln, under 

Hawkers' and the Statute 50 Geo. 3, c. 41, of the offence of exposing 

Pedlars Act,) . . . . 

in favour of goods to sale without having obtained a licence. On 

the real worker appeal, the sessions confirmed the conviction, subject to 

ffoods, &c., or the opinion of this Court upon the following case: — 

apprenft Zochariah Boyle, on or before the 21st of October, 18«8, 

and known was and still is a large china and earthenware manufacturer 

w^ usuaUy' ^^ Hanley, in Staffordshire. Before the said £ 1st of Octo« 

residing with ^er he consigned to Gainsborough, a market town, to his 

Dim, does not . . 

eitend to an own order, a quantity of china and earthenware, of which 

agent or ser- ^j^^ several articles mentioned in the conviction formed a 

▼ant residing 

in a separate part. The said china and earthenware were conveyed by a 

hou8e'"Sough carrier's boat from Hanley to Gainsborough, and the said 

solely em- Zochariah Boyle was the real worker and maker of all of 

nloved bv 

such woilLer ^^ ^^^ ^^ ^^^ manufactured by him at Hanley aforesaid. 

or maker. William Mainwaringf the defendant, was, on or before the 

said 21st of October, and still is, a servant in the sole 
employ of the said Zochariah Boyle ; he resided with his 
wife and family at Hanley, in a separate dwelling-house, 
his own freehold, being within three hundred yards of the 
house and manufactory of the said Zachariah Boyle, and 
never left that place except when employed elsewhere by 
bis master. When at Hanley he superintended and assisted 
in manufacturing, and was employed by the said Zacha- 
riah Boyle to sell the before-mentioned china and earthen- 
ware at Gainsborough. His salary was a fixed yearly 
sum, and did not depend upon the amount of any sale which 
he might effect; nor did he receive any commission or 
benefit, nor was he liable to any charges or loss whatever 
which might arise or be incurred in the sale, conveyance, 
or otherwise, of the said china and earthenware, but ren- 
dered a regular account of the same to his master, who 
bore all losses and expenses, and received all the proceeds 


ind profits. The defendant took possession of the china 1829. 

and earthenware so consigned as aforesaid, and upon its ^^•'^'^'"^ 

arrival at Gainsborough took a room at an inn there, and 9. 

00 the day mentioned in the conviction sold part thereof by Maikwarikc. 

public auction* The defendant had no hawker's licence, 

and had previously been selling at Nottingham and other 


N. R. C/ar&e and Fynes Clinton, in support of the convic- 
tion. The case depends principally on the construction of 
the 23d section of 50 Geo* 3, c. 41, by which it is enacted, 
" that nothing therein contained shall extend to prohibit any 
person or persons from selling any printed papers licensed 
by authority^ or any fish, fruit, or victuals, nor to hinder 
the real worker or workers, or maker or makers of any 
goods, wares, or manufactures of Great Britain, or his, her, 
or their children, apprentices, or known agents or servants, 
uMuaUy residing with such real workers or makers only, fi-om 
carrying abroad or exposing to sale and selling by retail or 
otherwise any of the said goods, wares, or manufactures of 
his, her, or their own making, in any mart, market, or fair, 
and in every city, borough, town corporate, and market 
town." The case of The King v. Turner (a) shews that an 
agent is within the act. The question for the consideration 
of the Court is, whether a person who resides in his own 
house, but whose principal employment is in the house of 
his master, can be said to be a servant or agent residing in 
his master's house. By requiring that the servant shall reside 
under his master's roof, the object of the statute will have 
been much better secured. If a person who forms no part 
of his master's family, may be sent about the country to sell 
goods in this manner, a great manufacturer may employ 
hondreds of agents in disposing of his goods in this manner, 
to the no small injury of the resident tradesmen, by whom 
the parochial and other local burdens are borne. From 

(o) 4B.&A. 510. 


these the itinerant vendor is exempted, and it is no great 
hardship that he should be subjected to the payment of the 
sum of 41. lOs. per annum. The maker or misuinfacturer 
Mainwarino. |,in,ggif jg exempted ; so are his servanto in some cases. 
But the question is, whether the additional words ** usually 
residing with such real workers or makers only/' are to 
have any weight. 

Denman, Hildyard, and fVhitehurst, contri. The Court 
will pause before they act upon any supposed advantage to 
firise from extending the restriction. The exemption ought 
to have a liberal consti'uction. If the act had contained no 
specific exemption for servants, it might have been con- 
tended that they were within th^ same protection with their 
masters. According to all fair construction the defendant 
was a servant usually residing with the maker. The word 
" only" shews that the meaning of the legislature was, that 
the agent should not be a person residing with any other 
parties as his employers. The act imposes a penalty, and 
restrains the common law right of trading wherever the 
party finds it to his advantage to trade. The object of the 
act being to restrain dealers from going from town to town, 
the words *' usually residing with such workers or maikers" 
must be understood with reference to that object, and are 
satisfied if the servant resides in the same town with his 
master. It is not necessary that he should reside in the 
same house. In 52 Geo. 3, c. 108, it is not required that the 
person vending the goods shall reside with the owner. 
The object of the statute was to confine the exemption to 
persons who were regularly and bon^ fide in the service of 
the manufacturer, and to exclude those who were merely 
constituted servants or agents for the special purpose. 
Residing in a place, does not necessarily mean sleeping 
there. In 2 Inst. 122, Lord Cofte says, '* If a man hath a 
house within two leets he shall be taken to be conversant 
where his bed is, for in that part of the house he is fnost 
conversant, and here conversant shall be taken for most coh^ 


vmafU" Lord Coke, therefore, impliedly says that a man I8i!9. 

may be a resiant within two distinct leeta. So the word ^^^T^X^ 
. . . The KtMO 

" inhabitant*' is not always used with reference to the place v, 

at whicb the party sleeps, as in cases upon the Statute of Mainwariko. 
Bridges* The conviction also cannot be supported. [Lord 
Tenterden, C.J. The case is not before us for that purpose.] 
This Court has a general authority over the proceedings in 
inferior jurisdictions where the certiorari is not taken away. 
[Lord Tenterden, C.J. We must decide merely upon the 
point which the Court of quarter sessions have reserved 
for our decision. If the Court of quarter sessions had 
thought proper to put a question as to the form of the con- 
viction, we should have been authorised to answer it.] It 
may be contended that even if no case had been reserved 
by the quarter sessions for the opinion of this Court, the 
mere circumstance of having appealed took the case out of 
the prohibition. But if the Court are to look only at the terms 
of the special case, that itself contains no statement that the 
defendant had not obtained a licence. [Lord Tenterden, C.J. 
The Court of quarter sessions very properly state so much 
of the case only as is necessary to raise the point upon 
which they require our opinion.] 

Lord Tenterden, C.J.9 after stating the language of 
the 23d section/ proceeded thus : — ^The words of an instni- 
ment are to be under^stood according to the subject-matter. 
Here they are explained by the context. The statute speaks 
of children and apprentices before it mentions the resident 
servants and agents. 1 think, therefore, that it means 
members of the manufacturer's family. If the construction 
which has been contended for were to prevail, a manufac- 
turer in London might employ as many agents as he 
pleased, provided those agents lived on the eastern side of 
Temple Bar. 

Bavley, J. — ^The defendant had no right of appeal 
uakss it be given by statute. The same clause which gives 


the appeal takes away the certiorari. The meaning of the 
legislature must, therefore, be taken to be, that we are to 
consider the case only with reference to the specific point 
Mainwariko. ^^^^j j.^^ ^jj^ opinion of the Court A point has been 
raised as to the 52 Geo. 3, c. 108, in which act children and 
servants are omitted. I entirely agree with Lord Tmterden, 

LiTTLEDALE, J. — I am of the same opinion. The word 
resident refers to the place where the party sleeps; that is 
so in all cases of settlement law. The position cited from 
Lord Coke, instead of assisting the defendant, seems to be 
rather the other way. In a late case (a) of an indictment 
against a party for not taking upon himself the office of 
constable. Lord Tenterden says, ** For all the purposes of 
pecuniary charge such an occupier is an inhabitant; and 
therefore he is liable to church rates, to the repairs of high- 
ways, and to the repairs of bridges." 

Parke, J. — ^The only question for the Court is, whether 

the defendant falls within the description of servant usually 

residing with the real worker or maker. Taking these 

words in the sense in which they are commonly used, they 

mean a person who inhabits and sleeps in his master's 

house; and this construction is strengthened by the pre* 

ceding words. 

Order of Sessions confirmed. 

(a) Rex V. Adlard^ 7 D. & R. 340, 349; 4 B. & C. 779. 

The Kino v. the Inhabitants of Roxley. 

vearfv^hinne* XJPON an appeal against an order of two justices, where- 
from the 13th by Robert Farmen/, his wife and family, were removed 
following i*2th fr<^*^ Roxley to Winterton, in the parts of Lindsey, in the 
°f ^^fr""" ^^"°*y ®f Lincoln, the sessions quashed the order subject 
the service b^ to the opinion of this Court upon the following case : — 
a dissolution 

of the contract, no settlement is gained, although the service continue 365 dajs, by 
reason of its being leap-year. 

What shall be a dissolution of the contract, and what merely a dispensation with the 
service, is a question of fact for the Court of quarter sessions. 


The pauper being unmarriedy and without children, was 1829. 
hired before old May day, 1819« (Idth May,) to serve 
James Barrett, in the appellant parish, from this old 
May day to old May day, 1820, as a servant in husbandry, 
at \5L wages. The pauper served Barrett in the appellant 
parish until the 11th of May, 1820, when wishing to visit 
his friends (fifteen miles distant) and to attend some sta- 
tutes (o) on the 12th of May on the way there, and avoid 
returning back to his master's, he requested his master's per* 
mission to go for altogether, and they settled the pauperV 
wages, and part was deducted for the time he had to serve* 
The pauper slept at his master's house, m ith his permis- 
sion, on the evening of the 1 1th of May, and finally left hi& 
master's on the 12th (6). 

N. R. Clarke, in support of the order of sessions. A 
day was wanting to complete the year of service. No 
settlement therefore waai gained in Winterton, Whether 
the deficient day was caused by a dissolution of the con- 
tract or by a dispensation with the service was a question 
of fact, for the determination of which the Court of quarter 
sessions was the proper tribunal. That Court has de- 
cided, and there were abundant premises to warrant the 
conclusion to which they have come. If the inference was 
left to be drawn by the Court above, it was clearly a dis- 
solution and not a dispensation. There is a concurrence 
of authorities to shew that this was a dissolution. The 
true criterion is to consider whether the master could still 
insist upon the service. This is laid down as the test by 
Lord Ellenborough in Rex v. Rushall (c). [Bayley, J. 
Rex V. Hardhom with Newton {d) proceeds upon the same 

Fifnes Clinton, on the same side, was stopped by the 

(a) Fairs for the hiring of ser- (6) 1820 was leap year, 

^wits; io some coanties called (c) 7 East, 471; 3 Smith, 45S. 

"Mops.* (rf) 12 East, 51. 

The Kino 


1829. Patteson, contrii. There was a good service for a year, 

and there was a good hiring for a year. [Lord Tetiierden, 
V, ^ C. J. referred to Rex v. Uherstoneia).] There it was held 
RoxLEr. ^^^ service for 365 days was enough, although the hiring 
was from Whitsuntide to Whitsuntide, and the servant was 
discharged before the second Whitsuntide, which shews 
that a service for a year of that extent is sufficient. In 
Rex V. Ackley(Jb\ a service of 365 days, extending over a 
leap year, was held not to confer a settlement; but there 
the hiring was clearly insufficient, being from three days 
after Michaelmas until Michaelmas following, in leap year. 
The Court, however, seemed to think the service good. 
IBayley, J. If not a good year as to the hiring, it would 
not be a good year as to the service. If the servant went 
^ . into the service on the 1 st of March^ and left the service 
\ on the 29th of February, it would not be sufficient.] No 
dissolution of the contract is actually found. The pauper 
bad a right in the morning of the 12th of May to go to the 
statute. [Lord Tenterden, C. J. He ceased to be a servant 
on the 11th.] In The King v. Potter Heigham (c) it was 
held that absence by consent of the master for one day be* 
fore the end of the year would not defeat a settlement by 
hiring and service. ^Parke, J. What did the sessions find 
in that case?] The sessions found nothing specifically on 
the question of dissolution or dispensation. [Lord 7Vfit- 
terderif C. J. Here the sessions only submit to this Court 
whether they lawfully may determine as they have done.] 

Whitehurst, on the same side. This was not a dissolu- 
tion of the contract at the time the master and servant se- 
parated. In The King v. Potter Heigham, though nothing 
was said as to the finding a dissolution or a dispensation^ 
the judgment of the Court of quarter sessions implied 
that the contract had been dissolved. Here, if the case be 
understood to amount to a dissolution, to take effect from 

(a) 7 T.R. 564, (c) Burr. S. C. 090; 2 BoU, 

(6)ST.R. 350. 316. 


the 12th of May, a settlement would be completely ^^^^- 
acqtiired. It was not the object of the pauper to quit on j^^ j^^^^ 
the ilth of May, but on the 12th. He merely wished to v. 

visit his friends after the statute, instead of going back 
again. [Sayley^ J. It is stated that the pauper slept at 
bis master's house by his permission. No permission 
would have been necessary if the contract had not been 
dissolved.] The permission was introduced into the case 
for tlie purpose of shewing that the pauper did not sleep 
at his master's house surreptitiously. The master might 
employ him on the 12th before he went to the statute. 
\Parkef J. Where a bill of exchange is made payable at 
so many months after date, the calculation is made by 
calendar months, without reference to their length.] In 
the case of lapse the half year is computed as half S65 
days, without regard to calendar months. 

Lord Tenterden, C. J. — Whether that which took 
place between these parties amounted to a dissolution of 
the contract, or merely as a dispensation with the service, 
it was peculiarly proper for the Court of quarter sessions 
to decide. They have considered that what passed 
amounted to a dissolution. They have acted upon that 
view of the case in the order which has been made, and we 
could not interfere even if we thought the conclusion at 
which they had arrived to be erroneous. When a leap 
year occurs, a year must be understood to mean 366 days. 

Bay LEY, J. — ^The statute 24 Geo. 1, c. 23, s. 2, speaks 
of bissextile, or leap year, consisting of 366 days (a). 

The other judges concurred. 

Order of Sessions confirmed. 

(a) There appears to be no more short of a complete revolation of 
rattoo for designating as a year a the earth in its orbit, than a period 
period of 365 days, which falls of d(>6 days, which exceeds it. 

44 CASES IN XU£ king's B£NCH» 

TiNMouTH v. Taylor. 

A plaintiff XHE plaintiff having been taken in execution for 34/., the 

in execu- * . i . . • i • 

tinn for costs costs of a nonsuit, and having remained m execution 

£*^*^U not ^^^^^ a y®^*'* Archholdj early in this term, obtained a rule 

entitled to his calling upon the defendant to shew cause why the plaintiff 

der^48^eo"3 ^^^^"'^ °^^ ^^ discharged out of custody. The application 

c. 123, after was founded upon 48 Geo. 3, c. 123, which enacts, " that 

having lain in ., . . . , .... 

prison twelve ^" persons m execution upon any judgment obtained lu any 

months. Court, &c. for any debt or damages not exceeding 20/., ex- 

the statute elusive of the costs recovered by such judgment, and who 
does not ap 

to la'intifi^ ^^^^ ^^^^ '*^" ^" prison thereupon for the space of twelve 
any case. successive calendar mouths next before the time of their 

application to be discharged, may, upon application for that 
purpose, in the manner therein mentioned, be forthwith 
discharged out of custody as to such execution by the rule 
or order of such Court." 

Coltman shewed cause. The title, the preamblci and the 
provisions of the statute distinctly point to defendants and 
not to plaintiffs. It is true that in Roylance v. Hewling{a), 
it was held that a plaintiff was entitled to his discharge 
under this statute. But supposing that case to have been 
rightly decided, it proceeded on the ground that the costs 
were a judgment-debt. Here then the debt exceeds 20/. 
He also cited Rex v. Hubbard{b\ and Rex v. Dunne (c). 

Archboldf control. After the case of Roylance v. HeW' 
ling, it cannot be contended that plaintiffs are not within 
the purview of the act. It is clear, from the language 
of the statute, that the party should not be detained in cus^ 
tody for the costs, whatever the amount might be, provided 
there were no debt or damages exceeding 20/., exclusive 
of costs. 

(a) 3 M. & S. 289. (6) 10 East, 408. (c) 2 M. & S. 801. 


Batlby, J. — The langaage of the act, primft facie, ap- 
plies to defendants only, and none of its provisions seem to 
liave the least, reference to plaintiffs. Supposing Roy lance 
T. Hewling to have been correctly decided, the costs ^ould 
Jliave become a debt by the judgment exceeding 20/. 

L1TTI.EDALE J. — ^The words of the statute manifestly 
apply to defendants. But assuming that plaintiffs may be 
included, the costs here would constitute a debt by judg- 
ment exceeding 20L 

Paeke J., concurred. 





Rule discharged. 

Gainsford v. Marshall. 

The defendant, a prisoner in execution, obtained a rule 
caDjog upon the plaintiff to shew cause why he should not 
be discharged out of custody for non-payment of the allow- 
ance of 5j. 6d» per week, under the Lords' Act (a). This 
rule was obtained, upon an affidavit stating that the turnkey 
had received for the defendant a half crown and a shilling 
from a person sent by the plaintiff, and that upon its being 
delivered to the defendant he discovered it to be a bad one, 
and retuaiied it to the turnkey. The affidavit in answer stated 
that the plaintiff's son tried the shilling before he sent it, 
and that it was a good one, and that the person who carried 
it to the turnkey delivered the same shilling which he had 
received to the turnkey, who examined it, rung it, and said 
it would do. 

The underta- 
king of the ex- 
ecution credi- 
tor to pay 
d<. 6d, per 
week to the 
debtor under 
the Lords' Act, 
is satisfied b; 
payment to 


Thesiger now shewed cause. The receipt by the turnkey 
was tantamount to a receipt of the money by the prisoner, 
Either V. Bull {b). 

(a) 39Gfo.9,c.e8; S6 G^o. 3, c. 44 ; dSGeo.3,c.5; 39Gfo.3,c.50. 
{h) 5 TR. 37. 

ChiUy, coutii. The Court of Common Pleas, in a very 
GatnIford recent case, haa decided that the turnkey cannot bind the 
V- prisoner by the acceptance 'of bad moneyi Agutter v. 


Bayley, J. — It is a settled rule in this Court that 
the turnkey is the person to receive the sixpences. If, as in 
the supposed case put by Mr. Chiity,. the plaintiflf's clerk 
had run away as soon a$ he had placed the money in the 
hands of the turnkey, or if the turnkey had promptly, after 
receiving the money, sent to say that it was bad, there 
would have been no acceptance by him. Here, on the 
contrary, ho complaint was made on that day that the money 
was bad. 

LiTTLEDALE, J. — I am of the same opinion. For this 
purpose the turnkey is the agent of the prisoner, as it has 
been held in this Court; and it would be very inconvenient 
if it were held to be necessary that the party who brings the 
money should in all cases see the prisoner. 

Parke, J. — I am of the same opinion. It is not satis- 
factorily made out that the money sent by the plaintiff was 

Rule discharged. 

(fl) 7 Taunt. 7. 


T. M. Young v. T. Spenceb and C. Spencer. ^^^/^^ 

Case by reversioner. The first count stated that the Where, in an 

defendanls, being possessed of a messuage in Stowell Street, re?ereioner^* 

Newcastle, as teoants to . the plaintiff, without his licence against the te- 

aod against his will, pulled down part of the wall and opened for opening a 

a door into Stowell Street, whereby the said messuage was ^^J^ '° a walJ, 

damaged and weakened, and the plaintiff was prejudiced in consent of the 

bis reversionary interest therein. The declaration also con^ [herebfda"^ 

tained counts in which it was alleged that the plaintiff was maging the 

owner of other houses in Stowell Street, which were injured j'udicing"the'^ 

by tfae opening of this door. Pleji, not guilty. At the plaintiff's re- 
. , ^ / tT , , , . . r , vereionary in- 

tnal before i^ay/e^, J., at the spnng assizes for the town terest, the 

and county of Newcastle, 1858, a verdict was, by the direc- ^^^^^ ^^^l^^ 

tioB of the learned Judge, entered for the plaintiff with and all actual 

li. damage^, subject to the opinion of this Court upon the hous^fs d^is- ^ 

foUovring case : — proved, the 

In March, 18^5, the defendants became tenants of the 'directed to in- 

plaintiff of a house in Stowell Street, for a term of seveft V^^ whether 

.the reversion- 
yeara. In lB27f the defendants, without the leave and con- ary interest of 

trary to the wish of the plaintiff, opened a door from the }|^as ''or hil^not 

house into Stowell Street, where the plaintiff had several been injured. 

other houses near to that occupied by the defendants : and ^\^^ entered 

evidence was given on both sides as to the effect thereby for the plaintiff 

produced on the house in which the door was made, and ou; direction or 

the plaintiff's other houses situate in the same street. The; inquiry, on the 

"^ . ^ ground that the 

learned Judge directed the jury at all events to find a ver- defendant had 

diet for the plaintiff with nominal damages, on the gr<>wnd /JJ^j^j^^^jJ^'j^j^gj.^ 

that the defendants had no right to open the door; and also ation, was set 

desired them to say whether any actual injury was thereby 

done to the house occupied by the defendants, or to the 

plaiatiff*s other houses in Stowell Street, in order that the 

opbion of the Court might be taken as to the other point, 

if they should find that no actual injury had been done. 

The jury found that the defendants did pull down the wall 

aad erect the door without the leave and against the wish of 

the plaintiff, but Uiat the. house occupied by them was not 


1830. thereby weakened or injured in any respect^ and that no 
injury was thereby occasioned to the plaintiff's other houses. 

Inghamf for the plaintiff. All the rights of property 
remain in the landlord, except such as the landlord chuses 
to part with. In trees, the tenant has no interest, except 
as to the fruit and for repairs. If mines are mentioned in 
the lease, the lessee has a right to break the land in search 
of them. If mines are not mentioned, the lessee has only a 
right to work such mines as were open at the time of the 
demise. Here the door-way in question was not necessary, 
or even convenient. A tenant has no right to change the 
condition of the property, except so hr as it is necessary 
for the purpose of effectuating the object of the demise. 
In Doe d. Pickery v. Jackson, {a), a door-way broken through 
the wall of the demised premises, was held to be a continuing 
breach of the covenant to repair. The interest which the 
tenant takes was considered in Farrant v. Thompson (6), 
where it was held, that the landlord, who had demised mill 
machinery, might maintain trover against the sheriff, who 
had seized it under a ii. fisi. against the tenant. In that case 
Mr. Justice Bayley said, ** There the goods were parcel 
.of the inheritance, and let to the tenant, to be used during 
the term in a particular way, viz. in that particular place, 
and he, by his own act, put an end to that qualified posses- 
sion." In the case of waste, the materials belong to the 
person who has the estate of inheritance. Here the act 
of the defendant was wrongful. The next question is, 
whether the plaintiff is entitled to retain his verdict. In 
waste, if damage to a less amount than 40 pence be shewn, 
judgment is entered for the defendant; and it is said that 
an action on the case, in the nature of waste, cannot be 
supported under such circumstances. If the reversionary 
estate be prejudiced it is a present injury. There is a nia<» 
terial difference between an injury to the reversion and an 
injury to the property. The jury in this case have found 
(a) 8 Stark. N, P. C. S03. (b) 5 B. & A. 8«6; « D, & R. i. 


that DO damage was done to the house^ but they have not 
found that no injury was done to the plaintiff's reversionary 
estate. In Cole v. Green (a), an action was held to be 
oiaintainable by reason of the alteration of the thing de* 
mised and of the evidence thereof. This is cited merely to 
shew what took place at the trial of the issue before Lord 
Hale, when it was resolved, that an act which affects the 
nature of the thing demised, or of the evidence thereofi is 
waste, notwithstanding any amelioration of the premiseSi* " If 
a lessee throws down a wall between a parlour and a cham- 
ber, whereby he makes the parlour larger, it is waste, because 
it cannot be intended for the benefit of the lessor ; nor is it in 
the power of the lessee to alter (a transposer) the house'' (&). 
Here the act done by the tenant amounts to a transposition 
of the house. Where a house is granted for a long lease, 
the throwing out of a door may alter the evidence and ren- 
der it difficult for the reversioner to identify his property. 
[Uitledale, J., Comyns's Digest (c), in citing the case from 
Rolkf says, '' if it can be shewn to be an advantage to the 
lessor, it may come from the other side"]. Where a com- 
moner has brought an action, it has been said, that if the 
action were not brought, the act complained of would be 
evidence of title. Where the evidence of title is affected, 
proof of actual damage is not necessary. In Serjt. Wilfianul's 
note to 1 Saunders, 346 b. it is said, that wherever an act 
iajores another's right, and would be evidence in future in 
bvour of the wrong-doer, an action may be maintained for 
the mvasion of the right, without proof of any specific 
injury ((/). If acts of this kind were continued during a long 
period, in the case of a long lease upon which no rent was 

(a) 1 Lev. 311. of fishing was not only an infringe- 

W 2 Rolle's Abr. 815, pi. 19. ineut of the plaintiff's right, but 

(0 Com. Dig. Wait, D. 2. would, if overlooked, be evidence 

(^Citing Patrick v. Greenwmff of right in the defendant; and re- 

which was trespass for fishing in a ferring to WelU v. Watling, 2 W. 

•ereralfisbery, without alleging that Black 1233; Hobwn v. Todd, 4 

any fish had been caught. The T. 11. 71; Pindar v. Wadsaorlh, 

Cooit of C. P. held, that the act 2 East, 154. 

TOL. V. E 




reserved, the tenant might, at the expiration of the term, 
allege that he had done a series of acts which a mere lessee 
has no right to do. The heir of the reversioner might thus 
lose bis estate by acts ivhich a jury might consider as occa- 
sioning no actual damage. 

Cresswellf contrd. Tliis is a case of great importance 
and extensive consequences. It would create great alarm 
if it should be decided that a tenant can make no alteration 
in the state of the demised premises without subjecting 
himself to an action. If it had been left to the jury, whether 
any actual injury had been sustained by the reversionary 
estate, they would have found that question in the negative, 
but the learned Judge refused to leave that point to them% 
Doe V. Jackson (a) is a very strong case, but it was not 
found there that no damage was done or that the wait was 
in repair. That was merely a nisi prius case, not afterwards 
moved. The action was founded on the contract to repair* 
It is not stated that it was properly fitted up with doors, of 
that the wall was repaired ; it is, therefore, difficult to say 
upon what ground the Court proceeded. In Farrant v« 
Thompson (fr), the defendant had detached part of the free* 
bold and had sold the materials. The plaintiff has treated 
this^ first, as a question of waste; secondly, he says, the 
present form of action is substituted for the writ of waste, 
which was first given by the statute of M arlbridge (c) ; but 
it was given against the tenant, and not against a mere 
wrong-doer. Lord Coke says, where land is on lease, and a 
stranger commits waste^ the landlord shall have waste 
against the tenant, and the tenant shall have trespass against 
him who did the waste (d). In the Year Book, 19M Hen. 
6, 45 a (e), it is said (/) that if a man enter upon land let 
to a tenant at will and subverts the land, the tenant at will 
shall have trespass for the injury done to him, and the les< 

(a) 3 Stark. N. P. C. 293; ante, 

(b) 5B.& A. 826; 2 D. & R. 
1; ait/e, 48. 

(c) 52flcn.3,c.24. 

(d) 2 Inst. 146. 

(c) M. 19 H, 6, fol. 45, pi. 94. 
(/) By Forletcue, 



tor shall have another acil<)ii of trespass for the destruction ^829. 

df his land (o). In trespass for beating servant per quod, the Young 

st&rvaAt niaj maintain an action without damage, the master 

hot. Btdingjitld V. Onnltm (A)> is the first case in which an 

action appears to have been brought by the reversioner. The 

declaration stated that the plaintiff was seised in fee of a 

dose, and that the defendant stopped a rivulet, which ran 

between the plaintiff's close and the close of the defendant^ 

thereby the plaitatiff's close was drowned {mrrmnd), and 

his tree$ perished. The defendant pleaded that one S. was 

|>osse^sed of the plaintiff's close by virtue of a lease from 

plaintiff's fihther, and that the defendant had paid to S.^ and 

thiat S. had accepted, 20s. in satisfaction of the trespass. 

Updk demtif rer it was held that this was no plea, and that the 

plaintiff might sue in respect of the injury done to the 

reversion. In Jtssor v. Gifbrd (c), it was held, that the 

reversioner might sue, if the interest would be less valuable 

if the plaintiff were to sell his reversion during the term, 

although the injury might possibly be Remedied before the 

expiration of the term. Here it is expressly found that the 

wall was not weakened by the alteration made ; therefore, it 

Would hot have b^eti less valuable upon a sale ; and unless 

fist property be diminbhed in value this action is not main* 

taibaUe, JtictcsoVi v. Pesked (d). In that case the evidence 

tX the property was altered quite as much as here. In 

Stmther v. Barr (e), the question imknediately before the 

Court was as to the tenancy. But in delivering his judg- 

neat, Bt^, C. J., sdy), '^ in order to support an action of 

this nature there must be some actual damage." Ferguson 

▼. Crttotffl (/). In William v. Norland (g), Littledale, J., 

»ji, " g^erally speaking there must be a temporal loss or 

Aimsge^ accruing from the wrongful Act of another, to main- 

(•) *" Qnbd conceditur per totam (e) .5 Bingh. 1 53; 2 M . & P. 207. 

curiam;*M. 19 H. 6, fo. 45, pL 91. (/) 5 Bingh. 305; 2 M.& P. 524. 

(*) 3 Lev. 209. (g) 4 D. & R. 583, 587; 2 B. 

(c)4Borr. 2141. & C 910. 

(lO 1 M. & S. 234. 



tail! an action on the case." Here there is no injury to the 
right, nor could any adverse possession be founded upon 
the act complained of. [Bay ley, J. The plaintiflf's ac- 
quiescence in this act might possibly have weakened his 
evidence as to the right to the other door, which was 
originally the only door.] In Corny hs*s Dig. tit. fVast. 
D. 2, the cases are stated in which an action of waste 
may be maintained ; but no such imaginary injury as the 
present is there stated. In Green v. Cole there had been 
a total alteration of the demised premises ; and there it was 
said that if the alteration were an improvement it might be 
shewn on the other side. This proves that such an inquiry 
might be entered upon. Jn The Governors of Harrow 
School V. Alderton{a), it was held, that in an action of 
waste, the plaintiff is not entitled to judgment where the 
damages found are merely nominal ; upon the ^authority of 
which case it has also been held, that the plaintiff cannot 
have judgment in an action on the case in the nature of 
waste, where merely nominal damages are found. Rigg v. 
Parsons (6). 

Ingham, in reply. The peculiar hardship attending the 
judgment in the action of waste has led to the rule, that 
unless the injury amount to 40 pence, the plaintiff shall 
not have judgment. Queen's College v. UalleU (c). In- 
jury to the title is sufficient without actual damage. If a 
series of acts of this nature were done and the title went 
into the market, it would be found to be less salable. If a 
tenant may open a door, he may shut up a door. [Hayley, 
J. In Slrother v. Barr{d) nothing was determined, except 
as to the point now before the Court. But it was said that 
the measure of damages would depend upon the length of 
the term.] 

Cur. adxK vuli. 

(fl) 2 B. & P. ST. (c) U East, 489. 

(b) Cited in Pindar v. Wads- (d) 5 Bingh. 136; 2 M. & P. 

worth, 1 Ensl, 164. 207 ; ante, 51. 


Lord Tbntbrden^ C. J., now delivered the judg- 
ment of the Court. After stating the facts of the case and 
the conflicting evidence, his Lordship proceeded thus: — We 
do not think that we can take upon ourselves affirmatively 
to say that there was an injury to the plaintiff's right, which 
would support an action. It might have been left to the 
jury to say whether there was or was not an injury to the 
right. Some of the old cases are not very reconcilable 
to our ideas of justice. One point, however, is intelligi- 
ble, namely, that if the evidence of the property be altered, 
the reversioner may maintain an action. We cannot take 
upon ourselves to say whether in the present case that is so 
or not. That is a question for the consideration of the jury. 
There must, therefore, be a new trial, unless the parties will 
consent to a stet processus. 

Rule absolute. 



Davis v. Capper, Esq. (a) 

Trespass against the defendant, a magistrate of the 
county of Gloucester, for assaulting and imprisoning the 
plaintiff, and detaining her in prison fifteen days. Plea, not 
guilty; and issue thereon. At the trial before Gaselee,J. 
at the Gloucestershire Summer Assizes, 1828, the case 
was this : — Mary Davis, the plaintiff, had lodged in the 
house of one Ann Hamerton, at Cheltenham ; and on the 
5th of January, 1828, she made a deposition that she had 
been robbed of various articles of property, and that some 
of them had been discovered in the possession of ^nn 
Hamerion. The parties appeared before a magistrate, but 
the charge against Ann Hamerton was at that time dis- 
missed. On the 27th of January Ann Hamerton sent for 
one Russellf the superintendent of police at Cheltenham, and 
informed him that she had been robbed while Maiy Davis 

(«) See IXiiTtf T. Russell, 3 M. & P. 590; 3 M. Sc R. Mag. Cas. 296. 

A warrant of 
for re-exami- 
nation for an 
time, as for 
fourteen da^s, 
is wholly void ; 
and trespass 
lies against the 
thouj^h he act- 
ed without any 
indirect or im- 
proper motive. 




lodged with her. She produced a letter addressed to the 
plaintiff at her, Ann Hamerton's, house, and bearing the 
London post-mark, stating that she had reason to believe 
the contents would lead to a discovery of the thief, whom 
she strongly suspected to be the plaintiff. Russell opened 
the letter, which was signed '^ Obadiah,*' and purported to 
be written by an accomplice in the robbery residing in 
London, who demanded payment of the plaintiff as the 
perpetrator of the robbery, and stated that he would wait a 
fortnight for her answer, jlnn Hamerion also informed 
Russell that four days after the robbery a letter in the same 
handwriting, and with the London post-mark, had been 
delivered to the plaintiff,, who refused to shew it ; and she 
concluded by requesting Russell to take the plaintiff into 
custody. Russell did accordingly apprehend the plaintiff 
late the same evening, detained her in prison that night, 
and on the following morning carried her before the de- 
fendant. The letter was tber^ produced and read, and Ann 
Hamerton deposed that during the time the plaintiff lodged 
with her she had lost various articles pf bed furniture and 
wearing apparel, and that she had reason to suspect, i^ad 
did suspect, that the plaintiff was concerned in the robbery. 
Upon this information the defendant committed the plain- 
tiff to the Bridewell at Northleach, under a warrant re- 
quiring the gaoler to keep her in custody until the 12th of 
February, and on that day to bring her up for further exa- 
mination. On the 12th of February the plaintiff waa 
brought up before two other magistrates for further exami- 
nation, and was by them re-committed. On the l6th she 
was again brought up before the defendant, who then dis- 
charged her, stating that there was no evidence against her, 
that he would have discharged her on the 12th if he had 
been present at the examination, and that he had com- 
mitted her in the first instance until the 12th under the 
expectation that she would by that time have explained the 
history and circumstances of the letter. No evidence was 
produced on the part of the defendant, but it was contended 


that the action could not be maintained on two grounds : 1829. 
firat, that the defendant had done nothing illegal, every 
magistrate having a discretionary power to commit for 
furthec enamination for such period as he thinks proper; 
apd« secondly, that even if he had abused his discretionary 
power, and thereby acted illegallyi case* and not trespass, 
was the proper form of action. The learned judge inclined 
to think that the action was not maintainable, but to save 
the expense of another trial he left two questions to the 
jury: first, whether the commitment was made bon&fide 
for the purpose of further examination, or for the purpose 
of compelling the plaintiff to state who was the writer of 
the letter; and, secondly, whether they considered the time 
for which the plaintiff had been committed was a reason- 
able time. The jury retired, and, after an absence of 
several hours, returned stating that they could not agree; 
whereupon the learned judge discharged them from giving 
any verdict and nonsuited the plaintiff. In Michaelmas 
terqi, 1828, a rule nisi for a new trial was granted, upon 
the grounds, first, that there was evidence to go to the jury 
that the commitment was made for the purpose of extort- 
ing a confession, and not for the purpose of further exami- 
nation, and therefore was illegal ; and, secondly, that even 
if the commitment was made bon& fide for the purpose of 
farther examination, it was made for an unreasonable time, 
and therefore was illegal. In Hilary term, IS29, 

Taunton shewed cause against the rule. This nonsuit 
was right, for the form of action was wrong. Assuming 
that there was evidence from which it might be implied 
that the defendant acted maliciously in committing the 
plaiDtiff, the form of action should have been case, and not 
trespasf. If the defendant had jurisdiction over the sub- 
ject-matter of the complaint, and the warrant is good upon 
the face of it, trespass is not maintainable; because t(ie 
foundation of that action is, that the defendant had no 
jurisdiction, but was a mere wrong-doer. The defendant 
here clearly had jurisdiction, for a complaint was made 




upon oath before him, and a felony charged. [Bayley, J. 
The complainant only swore that she had reason to sus- 
pect, and did suspect, that the plaintiff was concerned in 
the felony. Such a deposition would justify the apprehen- 
sion of the party, but I doubt whether it justified her com- 
mittal. Besides, is fourteen days a reasonable time for 
which to commit for further examination f] It may or may 
not be so, according to the circumstances. Generally 
speaking, the time for which a prisoner shall be committed 
for further examination is a matter in the discretion of the 
magistrate, and that discretion, exercised bon& fide, is con- 
clusive. But even if that be not so, still, if under any cir- 
cumstances the warrant can be good, it is an answer to the 
action. A fortnight may be too long, but it is not neces- 
sarily so. Here the letter produced before the defendant 
spoke of a fortnight ; he may have considered that letter as 
genuine, and believed that the writer would wait a fort- 
night; and upon that ground may have committed the 
plaintiff for that time for further examination. Scavage v. 
Tateham (a) may be relied on for the plaintiff, but that was 
a very different case from the present. There the magis- 
trate detained the prisoner in custody in his own house ; 
the detention was for the space of nineteen days; and it 
did not appear that there had been any examination at all. 

Curwood, contri, was stopped by the Court. 

Bayley, J. — I am of opinion that the rule for a new 
trial ought to be made absolute. Upon one question I 
entertain no doubt; it is clear that a magistrate may legally 
commit for further examination. But I think it equally 
clear that it should have been left to the jury to say whe- 
ther the commitment was made bon& fide for the purpose 
of further examination, or for the purpose of inducing. the 
plaintiff to make a confession. The declaration of the de- 
fendant^ that he had committed the plaintiff in the first 
instance until the 12th, under the expectation that she 
(a) Cro. Elic 8S9. 


would by that time state who was the writer* of the letter, 
was certainly evidence to go to the jury that he did not 
commit for the purpose of further examination. Upon the 
otber ground, the authorities are very strong to shew that 
a magistrate ought not arbitrarily to commit, even for the 
purpose of further examination, for so long a period as the 
defendant in this case did. The duty of magistrates in this 
respect is pointed out in Hale*s Pleas of the Cro%on{a), and 
is this : — ^Where a party arrested for felony is taken before 
a magistrate, he must discharge, or commit, or bail him. 
But prior to so doing he must, by 1 and 2 Ph. i^ M. c. 13, 
and 2 and 3 PA. 4r M. c. 10 (i), (re-enacted by 7 Geo. 4, 
c. 64,) take the informations upon oath of the prosecutor 
and witnesses, and put them into writing. He must also 
take the examination of the prisoner, not upon oath, 
aod put that into writing. And because it may be un- 
reasonable to take these informations or examinations pre- 
aendy, or possibly it may take longer time, the prisoner 
may be continued in the custody of the officer, or may 
be detained in the magistrate's house, or committed to 
tome near safe place of custody, till the examination can be 
taken: but this must be dispatched in some convenient 
time. The case of Scavage v. Tateham(c) is there referred 
to. That was an action for false imprisonment in London 
from the iOth to the 29th of September. The defendant 
justified, that he was mayor and justice of the peace in 
Pomfret, and that robbery was done there, and the plaintiff 
was thereof suspected and brought before him, and there- 
fore he detained him in his house during that time to exa- 
mine him and one Pole, who was not apprehended, con- 
cerning the robbery ; and afterwards, on the 29th of Sep- 
tember, delivered him over to the new mayor; and traversed 
the imprisonment in London. And upon demurrer it was 
adjadged that the inducement to the traverse was not good ; 
for a justice of peace cannot detain a person suspected in 
prison, but during a convenient time only to examine him, 

(•) Vol. I. p. 586 ; II. p. 120. (c) Cro. Eli». 889. 

W Ante, iv. 4S7 (6). 




which the law intends to bQ three days, ^nd within that 
time to take his examination and send bjpi to priion, for 
he ought not to detain him as long as he pleaseth, as he 
did, eighteen days. That decision, if adopted as an autho- 
rity to its full extent, would shew that the law has limited 
the reasonable time to three days. But I am pot disposed 
to go to that length. I do notnhink it possible to fix any 
specific limit. The time for which a party may reasouably 
be committed for further examination must depend upon the 
nature and circumstances of the case. But then these cir<» 
cumstances ought to be detailed in evidence. They should 
have been detailed in evidence in this case. Then, if the 
question had proved a mere question of law, the judge 
should have determined it ; if a mixed question of law and 
fact, the judge and the jury should have determined it 
in Bum's Jmtice, vol. i. p. 1009, £4tb ed. n. there is this 
case (a): — Gooditig was convicted at the Ixindon Ses? 
sious, in May, 1820, of assisting Davis to escape from 
th^ Giltspur Street counter, where he had been in cus* 
tody, charged with forgery. The case was afterwards 
submitted by his majesty to the judges, in consequence 
of a petition presented by Gooding, alleging that DuvU 
was never in kgal custodyi and submitting that Goodiiig, 
therefore, could not legally be convicted of assisting him 
to escfipe. The fact was, that Davis, at the time of his 
escape, was under commitment for further exaniiiuition 
pply, and that no warrant, commitment, or any written 
authority was ever made out by the committing magistrate, 
or by any other magistrate. The only question submitted 
to ihe judges was, whether a commitment for further 
examination, not being in writing, was legal. The judges 
were unanimously of opinion that such a commitment, if 
made for a reasonable time, was legal, though not in 
writing; but they stated that they considered the question, 

(a) Cited by Park, J. in his Chitty^s Bum*$ Justice, %'ol. ii. 
chaise to the grand jury, Mon- p. 100, n. 
mouth Summer Assizes, 1823, 


what was a reasonable time, to be a mixed question of law 
and fact} and that as the facts of the case were not fully 
detailed, they could form no opinion, in point of fact, 
whether the time in the particular case was a reasonable 
time or not; but that they presumed it must have been 
profsd at the trial to be so, because otherwise the prisoner 
ought to have been acquitted. That statement of the 
jadges shews them to )\nvt been of opinion, that the ques- 
tion whether the time, for which the party v?as committed 
for further examination, wqs reasonable or not, depended 
i)pon the circumstances of the case, and that the judgment 
of the committing magistrate was not conclusive of that 
<|tiestion. I feel myself bound to act up to that opinion in 
the present ease, and to state, that the circumstances which 
iaduoed this defendant to commit the plaintiff for fourteen 
days not being detailed, I feel myself unable to say whether 
that time was a reasonable time of commitment for further 
eiamtnation or not. Upon this view of the case, upon 
bath grounds, I am of opinion that justice cannot be done 
widioQt a new trial being had. 





LrrrLBBALB, J.*-i-I also think that there ought to be a 
new trial in this case, for the purpose of trying the question, 
whether the plaintiff was committed by the defendant really 
sad bop& fide for the purpose of further examination, or 
for the purpose of forcing from her a confession regarding 
the person who wrote the intercepted letter. If the com- 
mitment was made for the latter purpose it is quite clear 
that it was illegal. Upon the question of the discretionary 
power of magistrates, as to the time for which they can 
legally commit for further examination, I should require 
opportunity for consideration before I came to any decision; 
but it is not necessary to decide that question in the present 

Paike, J. — I am also of opinion that there must be a 
new trial had in this case, for the reason given by my brother 



1829. LUiledale. Upon the other point I agree with my brother 
Bayley» that it is a mixed question of law and fact for the 
consideration of thejury^ after a detail of all the circum- 
stances, whether the time of commitment for further 
examination is reasonable, or not. The case of Scavage v. 
Tateham (a), in whatever view regarded, seems to me to 
establish that proposition; because^ though the decision 
there may have proceeded on the ground that the prisoner 
had been improperly detained in the magistrate's bouse 
instead of being committed to prison, or that he had been 
improperly delivered over to the new mayor without any 
examination having taken place^ still it appears from the 
report rather to have proceeded upon the ground that a 
magistrate has no authority to detain a suspected person in 
custody beyond a reasonable time for the purpose of his 
examination : and it is clear that Lord Hale takes that view 
of the decision in the part of his treatise referred to by. my 
brother Bayley. So, in Gooding's case {b)» it is clear that 
the judges thought the time for which the magistrate bad 
detained the party in custody was not to be considered 
conclusively as reasonable ; but that the reasonableness of 
the time was a mixed question of law and fact, to be deter- 
mined by the judge and jury. A new trial, therefore, must 
be had ; which, if there be any doubt upon this point, will 
give the defendant the opportunity of raising the question 
upon the record. 

Rule absolute for a new trial. 

At the Gloucestershire Summer Assizes, 1829, the cause 
was tried again before Vaughan B., upon the same evidence 
as before. That learned judge left two questions to the 
jury : first, whether the defendant in committing the plain- 
tiff for the time mentioned in the warrant acted bon^ fide» 
or was influenced by some indirect or improper motive ; 
and secondly, if they thought that the commitment was 
(a) Ante^ 57. (h) Ante^ 68. 


made honk fide for the purpose of further examination, 
whether the time was reasonable : and his lordship expressed 
his own opinion that the time was» under the circumstances, 
unreasonable. The jury found that the commitment was 
made bon& fide for the purpose of further examination only, 
but that it was made for an unreasonable time, and returned 
a verdict for the plaintiff with 10/. damages. The learned 
judge gave the defendant leave to move to enter a nonsuit, 
if the Court should be of opinion that trespass was not 
maintainable for an unreasonable commitment made with- 
oQt any indirect or improper motive. On a former day in 
this term 



Taunton moved accordingly. Had the defendant acted 
wholly without jurisdiction, and shewn his want of juris- 
diction upon the face of his warrant of commitment, trespass 
would have been maintainable; but he had jurisdiction to 
commit, and his warrant was good upon the face of it ; 
therefore trespass will not lie. This distinction is taken in 
the late case of Groome v. Forrester (a). Lord Hale, speak- 
ing of commitment in cases of felony, says (b), *' The want 
of certainty seems not to make the commitment absolutely 
void, so as to subject the gaoler to a false imprisonment, 
but it lies in averment to excuse the gaoler or ofiicer, that 
the matter was for felony. '^ Here, the defendant having 
jurisdiction to commit for a reasonable time, and the rea- 
sonableness of the time being a mixed question of law 
and fact, (the law having assigned no fixed limit,) it Is im- 
possible to say when precisely the time became unreasonable, 
and the want of jurisdiction arose. The defendant, there- 
fore, at most, has fallen into an irregularity in the exercise 
of his jurisdiction ; and though that may render him liable 
to an action on the case, still, having had jurisdiction, he 
cannot be treated as a trespasser (c). It may be doubted 
whether the plaintiff would have been entitled to her dis- 

(b) 5 M. & S. S14. 
(*) Bale's P. C. 683. 

(c) Vide Baiten v. Carew, 5 D. 
& 11. 558; 3B.&C. 649. 

6d CAS£6 tn THE KtVO^B fi&KeB, 

1820. charge by habeas cdrpUs ; and trespass does not lie unless 
Vp'"^ Ihe cothinitment be so utterly void as to entitle the party 
V. committed to be discharged by habeas corpus^ although 

CAPPta. |[jg converse of the proposition does not hold ; for a party 
may be entitled td discharge by habeas corpus, ahd Hot 
Entitled to maintain trespass for false imprisonmenti 
[Baylejff J. May not a warrant of commitment be good 
for part of the time, and bad for the residue P] Not ho as 
to make the magistrate a trespasser; It is impossible to 
draw the line. Besidea, herie tio psirt WAs bad. It Wis a 
mere irregularity. [Parke, J. Gt>odivg^B case (c), shews 
that a commitment for an unreasonable time is void 
altogether. Lord Tenterden, C. J. Suppose a magistrate 
had authority by statute to commit for one teionth, and he 
committed for two, would not trespass lie against him?] 
Uhdoubtedly it would, because the law having limited his 
jurisdiction to a month, the commitment would bo void for 
the second month, in respect of which he would be wholly 
without jurisdiction. Here the magistrate had jurisdiction 
to commit for a reasonable time; without ahy express limi- 
tation ; and there is hothing upon the face of the warrant to 
shew that the time for which he committed was unrea- 

Cn^. idtt/o. vuU. 

Lord fENTERbEN, C. J. now delivered judgment. — 
This was an action of trespass brought against the defendant, 
a magistrate^ who had committed tliie plaintiff for k period of 
fourteen diys for the purpose of further examihation. Tbe 
jury fout^d thit tho commitment was made boirfl fide for 
that purpose, and Without any indirect or improper motive^ 
but that the tithe for which it was made was unreasonable. 
It wks icontetided on the part of the defendaht that the fbnii 
of the action was improper, that it should have bech case 
and not trespaSi). We are, however, of opinion that trespass 
was the proper form of action. A special action on tbe 
(a) 1 Bum's S, 1009» 94th cd. ; 2 Cbitty*s 6urn*s J. lOO, n. 


case canDot be maintained against a magistrate for anjrthing 
done by him in that capacity, unless his conduct have been 
iiiBuenced by some improper motive, and here the jury 
expressly negatived such a motive. And whether we con* 
aider this commitment as absolutely void from the beginning, 
as being for an unreasonable time, or consider it as void only 
pro tanto, that is, for so much of the time as was unreason- 
ble, still an action of trespass would be maintainable; 
beeausis the legal character of the act is the same, and every 
continuance of the party in custody is a new imprisonment 
and a new trespass. It appears to us, however, to be the 
far better opinion that, in a case like this, where the time is 
unreasonable, the commitment is void from the beginning (a). 
The duty of a magistrate is to commit for a reasonable time, 
and if he commit for an unreasonable time, he thereby 
does an act Which he is not authorised by law to do. It is 
clear that in Gooding's case (6) the judges thought that a com- 
mitmient for an unreasonable time would be a void commit- 
ment ; for the report states, that they presumed that it must 
have been proved at the trial that the time was reasonable, 
because otherwise the prisoner ought to have been acquitted. 
That goes to the very point, that a commitment for further 
examination, if it be for an unreasonable time, is, therefore^ 
wholly void, because the judges were of opinion that the 
party so committed was not in legal custody, and, theriefore, 
that another person who had aided him to escape from 
prison was not guilty of any offence against the law. For 
this reason, as well as for the other which I have already 
stated, we are of opinion that trespass was the proper form 
of tdion in this case. 

Rule refused (c). 






(a) And see Rex v. EUii^ 8 D. 
k R. 173. 
(^) I Buro'B J. 1009, 24th ed.; 

S Chitt/s Bum's J. 100^ n.; atUtj 

(c) And see Hardy y, Ryk, anie^ 
iv. 295; 9B.&C. 603. 


1829. ^- ^ , , 

y^^^^m^ Newsome V. Graham and another. 

Rent paid by ASSUMPSIT for money had and received. Plea, non 
in'g as devisee, assumpsit ; and issue thereon. At the trial before Bayley^i,, 

the amount of at the last Yorkshire Assizes, the case was this:— fT. D. 

which J. IS . , 

afterwards laylor died in 1819, intestate, and without issue, possessed 

M^i^ihifh^ir ^^ certain freehold estates. J. Taylor j his younger brother, 
maybereco- succeeded to the estates as heir at law, excluding the 
If.'ls money ^ daughter of B. Taylor, an elder brother, who was sup- 
had and re- posed to have been illegitimate. J. Taylor died iu 1820, 
ceived to his . . , ... i i i • • i i . ^ , 
use, B. setting having by will duly devised the estates to the defendants as 

Swlwids when ^^"*^®®^- ^he plaintiff had been tenant of part of the pro- 
the action is perty under W. £). Taylor and under J. Taylor, and after 
thTtnaU^^ *^ the death of the latter continued to hold under the defend- 
ants, and paid thcni rent for seven or eight years. It was 
then discovered that R. Taylor ^ the elder brother, had been 
legitimate, upon which his daughter and heiress at law 
brought ejectment against the plaintiff, and obtained a ver- 
dict establishing her title. She afterwards brought an 
action for mesne profits against the plaintiff, and obtained 
a verdict for the amount of six years' reut. The plaintiff 
then brought the present action to recover that amount, 
together with the costs of his defence. The present de- 
fendants knew, while they were in the receipt of rent from 
the plaintiff, that there were doubts respecting the illegiti- 
macy of the elder brother. It was contended on the part 
of the defendants that the action for money had and re- 
ceived could not be maintained, because the title to the 
estates might have come in question, which could not 
have been tried in that form of action. The learned judge 
directed the jury to find a verdict for the plaintiff, but gave 
the defendants leave to move to enter a nonsuit. The jury 
having found for the plaintiff, 

P. Pollock, on a former day in this term, moved accord- 
ingly. The title to the estates might have come in ques- 
tion, therefore this action cannot be maintained ; for title to 


hod, or to an incorporeal hereditament, cannot be tried m 
» action for money had and received : Cunmngham v. 
Lawrenis (a), lindon v. Hooper (6). The plaintiff claims 
the money aa rent paid without consideration* The ground 
of the claim is, that the trustees had no tiUe. But it was 
open to them to shew that they had title, for the recovery 
in ejectment is not conclusive of that question; this action 
therefore might have turned upon a question of title, and 
caDQOt be maintained as an action for money had and re^ 

Cur. ado, vulL 




Lord Tentsrbbn, C. J. now delivered judgment. — We 
are all clearly of opinion that the action for money had and 
received is maintainable under the circumstances of this 
case. They are these: — ^The plaintiff had from time to 
time paid rent to the defendants for certain premises which 
be held of them. It turned out at length that the defend- 
ants had no title to those premises. The plaintiff was 
ejected, and compelled to pay the mesne profits for the 
time during which he had held of the defendants. And 
this action was brought to recover back the rent which he 
had paid to them. The objection was, that titl^ to land 
could not be tried in an action for money had and received. 
That is true; but there was no trial of title in this case. It 
hid been previously ascertained that the defendants had no 
title whatever to the premises; and the defendants did not, 
at the trial of this cause, claim to have any title. Two 
cases were cited at the bar, but they are both distinguish- 
able from the present in that respect. From the short 
note of the nisi prius case of Cunningham v. Lawrents{a) in 
Bacon't Abridgment^ it may be inferred that the defend- 
ant claimed title to the land at the very time when the 
MTtion of assumpsit for the rents received was brought. 
In lindon v. Hooper {b)y the right of common was in dis* 
(a) 1 Bac. Abr. 7th ed. «60. (t) Cowp. 414. 

VOL. v. 1' 


1829. pute at the time when the action for money had and re* 
ceived was brought to recover back the money paid for the 
release of the cattle; the defendant, who had distrained 
the plaintiff's cattle, agreed to return the money, if the 
plaintiff should make out his right, and tlie action was 
brought for the express purpose of trying the right. In 
the present case it did not appear that the defendants, 
either at the time when the action was brought, or at the 
, trial of the cause, claimed to have any title to the premises. 
This, therefore, is the simple case of money paid under a 
mistake as to the facts, and fails within the general rule 
that money so paid may be recovered back as money had 
and received by the defendants to the plaiutifi^s use. 

Rule refused. 

A patent is Lewis and another v. Marling. 

not avoided -^ 

by the specifi- OASE, for infringing a patent obtained by the plaintiffs 

ing as part, f^^ improved shearing machines for shearing woollen cloths. 

but not as Plea, not guilty ; and issue thereon. At the trial before 

a necessary m i-i t 

part of the Lord Tenterde/i, C. J., at the adjourned Middlesex sittings 

somethin' ^^^^^ '**® '^^^ '^^"™' ^^^ ^^^^ ^^^ this:— The plaintiffs had 

which proves obtained their patent in 1818, and in their specification, to 

*^A pa*tenr which a drawing was annexed, they claimed as their inven- 

for a machine tion, among other things, " thirdly, the application of a 
invented, and . ^ /? . • . i- . * , , 

first brought proper substance fixed on or m the cyhnder A. to brush 

into use, by the surface of the cloth to be shorn ;" and " fourthly, the 
the patentee, . . •" 

isnotavoided described method of shearing cloth across from list to list 

a^simifaT^^ ^^ ^^ ^ rotatory cutter.*' It appeared that the brush was soon 

machine hav- abandoned by the plaintift's, being found useless, and that 

viousry'in-'^^" they never sold any machines with it; and upon this ground 

vented by it was contended that they had claimed too much, and 

another, b y , . , , . , ___. , 

whom it was therefore that the patent was void. With respect to the 

never brought rotatorv cutter, it appeared that a similar machine was in 

into usem this * » rr 





use in America twenty years ago, and that a specification of iB29. 

it was sent to England in 181 1 and seen by several persons, 

though 00 machine was ever constructed by it; that in 18 1 6 

a model of a similar machine was brought to England from Marliko. 

America, and seen by some few persons, though no machine 

was ever constructed by it^ nor was its existence publicly 

or generally known ; and that about thirty years ago a 

similar machine was constructed in England, and tried by 

the defendant, who did not find it answer. Upon this 

evidence it was contended that the invention claimed by 

the plaintiffs was not new, and therefore that the patent 

was void. The Lord Chief Justice was of opinion, upon 

the first point, that as the specification did not describe the 

brash as a necessary part of the machine, the patent was 

still good, although, upon trial, that part of the machine 

bad proved useless; and, upon the second point, that as 

the rotatory cutter had not been publicly or generally used 

or known in England, the plaintiffs must still be considered 

as the inventors within the meaning of the statute 21 Jac. 1, 

c S, 8. 6, although a specification and model of it had been 

bfoaght from America, and a similar machine had been 

constructed in England ; but his lordship left it to the jury 

to say whether a similar machine had been generally known 

in England, and whether the patent of the plaintiffs had 

been infringed by the defendant. The jury found a verdict 

for the plaintiffs. 

jP. PoUock now moved for a rule nisi for a new trial, and 
renewed the objections taken at Nisi Prius. First, the patent 
is void, because the specification describes as part of the 
invention of the plaintiffs, the application of a brush to 
brosh the surface of the cloth; whereas it was proved that 
such brush was useless, and that the plaintiffs never sold a 
sii^le machine with the brush attached to it. Now a patent 
is void if the specification is either ambiguous or gives 
directions tending to mislead the public. Turner v. Winter {a) ; 

(a) I T. R. 608. 





and here the public would be misled, if, at the expiration of 
the time for which the patent was granted, they attempted 
to construct a machine according to the directions of the 
.specification. It was suggested at the triai> as an answer 
to this objection, that the specification does not describe 
the brush as a necessary part of the machine. But this 
seems to be no good answer in hw, because the defendant 
is entitled to treat the case as if the patent had been ob* 
tained for the brush alone; and because in every patent^ 
all that is claimed must be new and useful, or the patent is 
void: Hill V, Thompson {a), Bruntonv^Hawkes{b\Cromp^ 
ton V. Ibbotson (c). Secondly, the patent was void because 
part of the invention claimed, namely^ the rotatory cutter, 
was proved not to be new ; at least there was strong evi-^ 
deuce upon that subject, and which was not left to the jury 
by the lord chief justice in the manner vvarranted by former 
decisions. The evidence was this: — About thirty years 
ago a similar machine was constructed in England; in 
1811 a specification, and in 1816 a model, of a similar 
tnachine was brought to England from America, and though 
ho machine was ever constructed from either, both were 
seen by several persons. Now the proprietor of that spe- 
cification or model could not, after having so exhibited it, 
have maintained a patent for the machine ; and if he could 
not, it is difficult to understand why the plaintiffs should 
be in a better situation. 

Lord Tenterden, C.J. — I am of opinion that we ought 
not to grant a rule to disturb the verdict in this case. With 
respect to the first objection, it does not appear^ upon 
adverting to the specification, that the patentees described 
the brush as a necessary part of the machine, although they 
claimed it as an invention. Before they applied for the 
patent they had constructed a machine, of which the brush 
formed a part, but before they made any utachines for sale 

(a) 2 Moore, 424; 8 Taunt. 375. 

(b) 4B.&A. 541. 

(r) 1 Danson and Lioyd, 33. 


they difcotered the brush to he unnecessary^ and abandoned I89d. 
it I 9gree that if a patentee insert in his specification, as 



a accessary ingredient in the patent article, any thing which v, 

proves not to be necessary, or even useful, and thereby 
misleads the public, his patent may be void; but I think it 
would be too much to say that this patent is void, because 
the plaintiffs claim to be the inventors of a particular part 
of the machine, not described in their specification as ne- 
cessary, and which turns out not to be useful. Several of 
the cases already decided have borne with sufficient rigour 
upoD patentees, but no case hs|s yet gone the length of 
decidiog that aiich a claim renders the patent void, and I, 
for oi9e> nm not disposed to create such a precedent. The 
pther ground of thisi motion was an alleged misdirection oi^ 
mj p^rt to the jury. With a view to impugn the novelty 
ef the invention, evidence was given that a machine similar 
to that of tbe plaintiffs had been previously constructed ii^ 
Englaadi but that it had not been approved of, ^nd never 
came into use. Another piece of evidence was, that a model 
bad been brought to England from America, and exhibited 
to some few persons, but that no machine had ever been 
nade from it. It was further proved, that a specification 
had been brought to England from America, and shewn to 
several persons, but that no machine was ever made from 
it. So that upon the result of all the evidence it appeared, 
that until the plaintiffs obtained the patent for their machine, 
W) similar machine had been publicly known or used in 
this country. I told the jury, that if it had been proved 
that the plaintiffs had seen the former model or specifica** 
tion, that might have been an answer to*their claim to the in-f 
veotion, but that there was no evidence of that kind; and I 
left it to them to say whether a machine similar to that of 
the pbuntiffs had been in public use and operation before 
the patent was granted. They found that there had not i 
«id I think there is no reason to find fault with their, 


1889. Bayley^ J. — I am of the same opinion. In order to 

support a patent, the specification must make a full and 
fair disclosure to the public of all that is known to the 
patentee respecting his invention; the object being, that 
ultimately the public shall have the benefit of the disco- 
very (a). If, therefore, the patentee represent several 
things as competent to produce a specific effect, when only 
one will answer, that is bad; or if he suppress any thing 
which he knows will answer, that is bad also. It is ob- 
jected in this case that the plaintiffs described the appli- 
cation of a brush as a part of their invention. But at the 
time when the specification was made a brush was used ; 
and there is no reason to doubt that the plaintiffs at that 
time thought it necessary ; therefore that objection fails. 
As to the specification and model sent over from America, 
if it had been proved that the plaintiffs had seen them, or 
either of them, they could not afterwards have claimed the 
discovery. But if I discover a particular thing for myself, 
it is no objection to my claim to a patent that another has 
made the same discovery, provided I am the first to intro* 
duce it to public notice and adoption. Here, there was no 
ground to doubt that the plaintiffs were the inventors, if 
liot the first inventors, of the machine, and that they were 
the first persons who introduced it to public notice. 

> Pabke, J. — I am also of the same opinion. The ob- 
jection to the patent, as explained by the specification, is, 
that it is for several things, one of which was then sup« 
posed to be useful, and is now found to be not so. Now 
although it has been decided that all the parts of an inven- 
tion for which a patent has been granted must be new, it 
has never been decided that they must all continue to . be 
useful. The law has not yet gone to that extent, nor do I 
think it desirable that it should. The prerogative of the 
crown as to granting patents was restrained by the statute 

(a) JUardet v. Johntan, Bull. N. P. 76, b.; Godson on Patents, 121. 

1(1CHA£LHAS TERM, X 0£0. IV. 

SI Jac. \, c. 3» s. 6, '' to the true and first inventors of 
manufactures, which others at the time of granting the 
patent shall not use." The condition, therefore, is, that 
the thing shall be new, not that it shall be useful; and 
though the question of utility has been sometimes left to 
the jury, it appears to me that the condition imposed by 
the statute is complied with, if the subject-matter of the 
patent be proved to be new. There was nothing in this 
case to shew that the plaintiffs were not the first inventors 
of this machine, at least in England ; and its having been 
previously invented in America, does not affect the ques* 
tion. It is a further part of the condition of the statute, 
that the manufacture shall not have been used by others ; 
which^ it is said, has not been complied with in the present 
case. But there was no evidence of the user of this machine 
ID England before the plaintiffs obtained their patent ; and 
there b no authority for saying that a patentee is to lose 
the benefit of bis invention because it has been also invented 
bjf another, unless that other has also brought it into public 
use. For these reasons I am of opinion that neither of the 
objections urged against this patent ought to prevail, and 
that the plaintiffs are entitled to retain the verdict which 
has been found in their favour. 

Rule refused (tf). 

(a) LiUUdale, J^ was in the Bail Court. 

Sharp v. Aspinall and Parker. 

OECLARATION in trespass. The first count stated The proceed- 
that defendants, being justices of the county of York, j,"^"P?„Voni 
unlawfully issued their warrant to the constable of Slaid- member of a 
bum, authorizing him to levy the sum of 75. 6d. by distress ^^^ J^^^ ^g 

and tale of the goods, chattels and moneys, of a certain Oeo, 3, c. i!25, 

8. 3, must be 
all before two justices resident in the county in which the society is held. 




1829. friendly society called The Humane Charitable Fraternity, 
held at Slaidburn in the West Riding of the county of 
York| and in default of such distress being found, then to 
AspiNALL. i^yy iii^ said sum of 7^. 6d, by distress and sale of the 
goods, &c. of plaintiff, therein described as an officer of 
the said society; under which warrant defendants with 
force and arms broke and entered the house of plaintiff in 
the said county, and took away a writing desk of plaintiff 
of the value of 10/. and sold it, although defendants had no 
jurisdiction over the subject-matter of the complaint on 
which the warrant was grounded, and had no right to issue 
the warrant. Second count for breaking and entering 
plaintiff's house, and taking away his goods. Third count 
for taking away plaintiff's goods. Pleas : first, not guilty. 
Secondly, that before and at and after the said time when 
&c., one A, was a member of the said friendly society, 
held Sec, called Sec., the rules, orders, and regulations 
. whereof had been and were, before &c., duly exhibited, 
confirmed and filed at the general quarter sessions of the 
peace in and for the said West Hiding, according to the 
provisions of the statute 33 Geo. 3 ; and the said ^. so 
being such member &c., did before &c., complain to 
defendant Parker, being then and there a justice of the 
peace for the said west riding, and residing within the same, 
and also a justice of the peace for the county palatine of 
Lancaster, the said county palatine adjoining the said West 
Riding, of relief having been refused to him the said A, by 
the said society, to which he was lawfully entitled ; that a 
summons was issued to plaintiff as steward of the said 
society; that defendant Parker being such justice as afore- 
said, and defendant Aspinall being a justice of the peace 
for the said West Riding, and also for the said county pala- 
tine, and residing in the said county palatine, near to iS., 
attended at the time and place mentioned in the summons \ 
that plaintiff made default; whereupon service of the 
notice was proved on oath, and defendants proceeded to 
hear the complaint, and made an order that the said sum of 



7f. &/. should be paid to A* ; and because plaintiff refused )829; 

to pay« defendants issued their warranty &c. Replication, 

de iDJuri& sufty 8cc. i\t the trial before J3^/ey, J. at the Z. 

lut York assizes, the facts were proved as stated on the Aspihali. 

record. It was contended on the part of the plaintiff that 

tbedefendantSf not being both resident in the West Ridings 

kad no jurisdiction to make the order upon which the 

warrant was founded, inasmuch as the statute 49 Geo. 3, 

c. 1^, s. ly confined the power of making such orders to 

two justices '* residing within the county, riding, division, 

kc., within which such society shall be held.'' On the 

part of the defendants it was contended, that the clause of 

the statute referred to was only directory, and that the 

order being made by two justices of the West Riding, though 

not both of them resident within it, was good, inasmuch as 

the statute 28 Geo. 3, c. 49, empowered justices to act for 

soy two adjoining counties, provided they were personally 

resident within one of them. The learned judge was of 

opinion that the defendants had no jurisdiction to make 

the order, and directed the jury to find a verdict for the 

plaintiff, but gave the defendants leave to move to enter a 


Vfightman now moved accordingly. It was assumed at 
the trial that the order in question was made under the 
authority of the Jir$t section of the 49 Geo. 3, c. 125, and 
the objection was founded upon that assumption. Now that 
was a mistake, for the whole of the proceedings were taken 
under the third section of that statute, which, as regards 
the present question, is essentially different from the first* 
The powers given by the first section are, no doubt, 
confined to justices residing within the county in which the 
society is held ; for the words ''such justices" in the latter 
parts of thdt section can only refer to the justices there 
first mentioned, namely, resident justices; and if the pro-< 
ceedings had been taken under that section, it may be 


1899. admitted that the objection would have been fatal, notwith- 
standing the statute £8 Geo, 3, c. 49* But the subject- 
matter of these proceedings was relief, a word not to be 
found in the first section, and the whole scope and object 
of the two sections differ; for the first empoM^ers justices to 
enforce the obedience of the members to the rules of the 
society, and the third empowers them to give relief to the 
members of the society against the misconduct of the 
officers. The third section begins by enacting that "if 
complaint shall be made to two such justices by a member of 
relief having been refused, it shall be lawful for the mid 
two justices residing within the county in which the society 
shall he held, and such justices are thereby required, to 
summon the officer against whom complaint shall be made, 
and, upon his appearance,. &c.| such justices shall proceed," 
&c. Now the words ''such justices'' in the beginning of 
this section cannot be taken to refer to the justices men- 
tioned in the first section, because there is an intervening 
section, the second, which contains a long recital of two 
prior statutes, introduces a new set of enactments wholly 
independent of the first section, and twice mentions 
"justices,'' generally, without any definite description. 
Then, taking the words '^ such justices" in the third section 
to refer to the last antecedent justices, namely, those 
mentioned in the second section, which is the proper rule 
of construction, the complaint of relief being refused may be 
made to a;?y justices, who would have jurisdiction wherever 
resident; and the subsequent words in the third section, 
respecting residence, must be considered as directory only, 
and not restrictive. Ai all events those words, even if 
considered as restrictive, can apply only to the granting of 
the summons; and as the summons in this case was granted 
by the resident justice, the proceedings will still be valid 
by the 3 Geo. 4, c. 23, s. 2, which provides, *' that in all 
cases where two justices are authorized and required to 
bear and determine any complaint, one justice .shall be 


competent to receive the original information or complaint, 
and to issue the summons or warrant requiring the parties 
to appear before two justices; and after examination upon 
oath into the merits of the complaint, and the adjudication 
thereupon by any such two justices being made, all 
subsequent proceedings to enforce obedience thereto may 
be enforced by either of the said justices, or any other 
justice for the same county/' 



Lord Tenterden, C. J. —I entertain no doubt upon 
this case; the point is perfectly clear. The proceeding is 
under the third section of the statute 49 Geo. 2, c. 125. 
The early part of that section provides, that if complaint 
shall be made of relief being refused, two justices residing 
withiii the county in which the society is held, shall summon 
the part^ complained against; and the latter part directs all 
the subsequent proceedings to be taken before such justices. 
The word such can only mean resident; if the first proceed- 
ing is to be before two resident justices, the order must 
be made by them also. The direction of the learned 
judge, therefore, was perfectly correct, and no rule can be 

The other Judges concurred. 

(a) A friendly Society, whose 
rules hare l>een allowed by the ma- 
l^stntes and registered in London, 
afterwards bold their meetings in 
Middlesex. Tlie magistrates of 
Middlesex have jurisdiction to de- 
^<le DpoQ complaints made by 

Rule refused (a) 

members of the society. So held 
upon an indictment for disobe- 
dience to an order of two justices 
of Middlesex. Res v. Ga«A, 1 
Stark. N. P. C. 441 ; Mann. N. P. 
Digest, 8d ed. S09. 


1829. Christopher Kell, Gent, one, &c, v. Nainby. 

An attorney ASSUMPSIT on an attorney's bilk At the trial before 

busmess under Gaselee, J., at the last Sussex assizes, the case was this:— 

the firm of *«K. fhe business, in respect of which the action was brought, 

son not being was done by the plaintiff for the defendant in the years 

in fact his i8«7and 1828. William Kell, the plaintiff's son, who 

partner, may ^ "^ 

sue alone for proved the business done, stated, upon cross-examination, 

his bill for pro- ^^^^ ^^ ^*® "^^ *" partnership with his father, but acted as 
fessional busi- his clerk, and received a salary. But he admitted that " Kell 
and Son** was on the door of his father's oflBce, and ihat 
letters relating to the business had passed between the 
parties addressed and signed, respectively, '' Kell and Son." 
It was thereupon contended that the son ought to have 
been made a co-plaintiff with his father. The learned 
judge told the jury, that if the action had been brought by 
the defendant against the plaintiff and his son jointly, either 
for a debt or for negligence, the evidence would have been 
auiRcicnt to charge the son, because he had permitted him- 
self to be held out to the world as a partner with his father. 
But as the action was brought by the plaintiff as a creditor 
of the defendant, it was perfectly immaterial to the debtor 
that the son had been held out to the world as a partner, if 
in fact he was not so, and had no claim upou the defendant. 
The son had sworn that he was not a partner Mvith his 
father at the time the business was done, and if they be- 
lieved his evidence, the plaintiff was entitled to a verdict. 
The jury found a verdict for the plaintiff. 

Piatt now moved for a new trial. The question that 
should have been left to the jury was, not whether they be* 
lieved the statement of the son that he was not a partner 
with the plaintiff, but whether they believed, upon the 
whole evidence, that the plaintiff and his son were jointly 
employed by the defendant. The evidence was very strong 
to shew a joint employment of the father and son. It 
might be true that they were not, strictly speaking, partners. 


lod yet they might be jointly employed by the defeDclant; 
and if they were so, no private arrangement made between 
themselves could alter the nature and effect of that em- 
ployment. That employment formed the contract between 
the parties, and the son was as much a party to it as the 
father: the fact that they were not jointly interested in the 
profits made no difference, if they were jointly employed 
to do the business. The defendant addressed letters to 
the two as partners ; he received letters representing them 
u partners ; he never had any reason to doubt that they 
were partners. It is clear that the two would have been 
jointly liable to the defendant in an action for negligence, 
and that shews that the employment must have been joint. 
This case is not like that of partners in a mercantile esta- 

Lord Tbntebden, C. J.— I think the question left to 
the jury was the right one, and that if they believed the 
son, the plaintiff was entitled to a verdict. If the son 
spoke truth, there was no partnership between him and the 
plaintiff. The son, by permitting himself to be represented 
as a partner with his father, may have rendered himself 
jointly liable with his father in an action for negligence ; 
but it by no means follows from thence that he was bound 
to sue jointly with his father, when he claimed no interest 
as a partner, and declared that in fact he was not one. 

LiTTLEDALE, J., Concurred. 

PabkE) J. — The person with whom a contract is actually 
made, may sue upon it without joining others with whom 
it is apparently made. They may be liable, as partners, to 
dl the responsibility attached to persons holding themselves 
out in that character (a) ; but they are not bound to join in 
an action from which they seek no benefit, and from which 
they declare that they are not entitled to receive «ny. 
(«) S. P. Guidon v. Eofaon, 2 Cnmpb. N. P. C. 30^ 


1829. There was no evidence in this case to shew that the son 
was actually employed by the defendant* The son proved 
that he was not an actual partner; and although he may 
have appeared to the defendant to be a partner^ unless he 
was a party to the contract for a breach of which the action 
was brought, he was not bound to join in that action (a). 
There was no evidence to shew that he was a party to that 

Rule refused (A). 

(a) Ace. Teed v. Elworihy, 14 (b) See Goa> <m Partnership, 

East, S34. 125^130, 3d ed. 

Davies and others t?. The King (in error). 
An indictment 1 HIS was an indictment for poaching. The first three 
!j.and"ot£, ^^"^^* ^^""^ founded on the statute 57 Geo. 3, c. 90, which 
on, &c. at,&c. proved to have been repealed before the alleged offence 
of three toge- ^^^ committed; they were, therefore, abandoned. The 

ther, did by fourth count, the only one now relied on, stated, " that 

night unlaw- t^. , . \«ir j 

fully enter di- Davtes and others, (nannng them,) with force and arms, on 

and were ^'a«» the 17th day of December, in the year aforesaid, at the 
and therein the parish of Whitegate, in the county of Chester, being to the 
armed wfth number of three or more persons together, did, by night, 
guns, for the unlawfully enter divers closes and inclosed lands there 
stroking game, situate, and being in the occupation of the said JS. C, and 
does not suffi- ^g,.g ^jj^^ g,jj there in the said closes and lands, armed 
ciently allege «. • 

that the de- With guns and other offensive weapons, for the purpose of 

l^nMi'm^ihe ^^^^ ^^^ *^^'^® taking and destroying game, against the 
closes, armed, form of the statute." At the trial before Jervis, J., at the 
of destroyi^ ^^^^ Spring Assizes for Chester, the defendants were con- 
game, victed upon this count, and sentenced to fourteen years' 

transportation. A writ of error was afterwards brought, 

which now came on for argument. 

«7. Jervis, for the plaintiffs in error. The fourth count 
is bad in various particulars. The offence charged being 


one created by statute, all the particular circumstances 18^9. 
giveD to define the offence should be distinctly stated, and 
the case should be brought within the statute by express 
words: 2Ha/e,P.C.170; StaundJ. 139, h.\ Foster,C.L.423. 
The 9 Geo, 4, c. 69f s. 9* describes the offence as being, 
aoy persons to the number of three or more together by 
night unlawfully entering or being on any land^ open or 
iDclosed, for the purpose of taking or destroying game, any 
of such persons being armed; aud s, 12 declares^ that for 
the purposes of that act the night shall be considered to 
commence at the expiration of the first hour after sunset, 
and to conclude at the beginning of the last hour before 
sunrise. Therefore, first, it should have been stated at 
what hour between sunset and sunrise the defendants were 
in the closes, in order to shew clearly that they were there 
by night within the meaning of the act of parliament. That 
was the ancient rule with respect to indictments for bur- 
glary, although it may have been somewhat deviated from 
in modem practice. In 2 Hale, 179» it is said, " Where 
the time of the day is material to ascertain the nature of 
the offence, it must be expressed in the indictment; as, in 
an indictment for burglary, it ought to say, ' tali die, circa 
horam decimam in nocte ejusdem diei, felonic6 et burglari* 
ter fregit;' but, according to some opinions, ' burglariter' 
carries a sufficient expression that it was done in the 
night.'' And in Waddingions case {a) it was held that in an 
indictment for burglary, either at common law or upon 12 
Ann, St. I, c. 7, (repealed, but re-enacted by 7 & 8 Geo. 4, c. 
29), it was necessary to lay the crime to have been committed 
in the night, and at about such and such an hour, though the 
evidence need not strictly correspond with the latter allega- 
tion; but that an indictment making no mention of the 
hour would be insufficient for burglary, though it would 
hold for the larceny. Secondly, there is no allegation that 
the defendants were unlawfully in the closes for the pur- 
pose of destroying game, it is only stated that they unlaw- 

(fl) 2 East, P. C. 513. 


18S9. fully entered the closes. The intent is not coapled with 
their unlawfully being there. The entry might be unlaw- 
ful from the means by which it was effected, and jet 
the defendants, when there* might be in the pursuit of some 
lawful occupation. Thirdly, it is not alleged that the de- 
fendants were in the closes together to the number of 
three: it is merely stated that they entered the closes 
together to the number of three. In this the main object 
of the statute, namely, to prevent preconcerted resistance 
to apprehension* is lost sight of. Here no unity of purpose 
is alleged ; the statement is consistent with the supposition 
that the defendants entered together, and separated before 
the intent charged was contemplated by either of them. 
Fourthly, there is no description of the closes; the defend- 
ants are merely charged with having entered '' divers closes 
and inclosed lands.'' That is not a sufficient averment; 
the indictment ought in some way or other to particularise 
the place, because the defendant is entitled to know to what 
specific place the evidence is to be directed : Ridley^s 
case (a). Lastly, the allegation, that the defendants were 
armed, is mbplaced. The ofience described in the statute 
is, the being in the close with intent to destroy game, being 
armed ; the offence described in the indictment is, the being 
in the close, armed, with intent to destroy game : in tliis 
respect the indictment follows neither the letter nor die 
spirit of the statute, and is bad accordingly. 

Cottiftgham, contrs^. The fourth count is good. [Lord 
I'enierden, C. J. Can you support this count in respect 
of the allegation that the offence was committed by night? 
Does the averment that the defendants were then and there 
in the said closes, necessarily imply that they were there 
by night? Does it imply any more than that they were 
there on the day and place aforesaid? If it mean the 
latter only, the count is clearly bad.] The averment tliat 
the defendants were then and there in the closes, folIoM'S 

(a) R.&R.C. C.515. 



immediately the averment that they entered the closes by 1899. 
night. The entry by night is the last antecedent, and to 
that the words " then and there" must be taken to refer» ^ v! 
and so taken, there is, in effect, an allegation that the de- ^**® ^i^o. 
fendants were in the closes by night. The description of 
the offence in this count is sufficient according to the rule 
laid down by De Grey, C. J., in Rex v. Home (a), and 
Lord Kenyon, C. J., in Rex v. Holland (6). The former 
sajs, " The charge must contain such a description of the 
crime, that the defendant may know what crime it is which 
he is called upon to answer, that the jury may appear to 
be warranted in their conclusion of guilty or not guilty 
upoa the premises delivered to them, and that the Court 
maj see such a definite crime that they may apply the 
ponishment which the law prescribes :" and the latter, " It 
is argued that three things ought to concur in every crimi- 
nal proceeding ; first, that the party accused may be ap- 
prised of the charge he is to defend ; secondly, that the 
Court may know what judgment is to be pronounced 
according to law; and thirdly, that posterity may know 
what law is to be derived from the record. These are 
general propositions to which I assent." The count now 
in question should be read as one sentence, and then it 
clearly chaises that the defendants committed an offence 
by eotering and being by night in certain closes, armed, 
with intent to destroy game ; and that is the offence de- 
scribed by the statute. 

Lord Tehterden, C. J. — It seems to me that the ob- 
jection to which I directed Mr. CoUiugham's attention 
cannot be got over. The count states that the defendants 
" did by night unlawfully enter divers closes, and were 
then and there in the said closes," &c. It does not state 
that they '' by night did unlawfully enter, and were," &c. 
If it had done so — if the wprds"by night" had been placed 
at the beginning of the sentence — they might have go- 
(«) Cowper, 633. (6) 5 T. R. 607. 

VOL. v. G 




verned the whole sentence. Or, if they had been placed at 
the end of the sentence, they might have referred to the 
whole sentence. But here they are placed in the middle 
of the sentence ; are applied to a particular branch of it ; 
and cannot, therefore, be extended to that which follows. 
The sentence contains two distinct branches. The firet 
states that the defendants by night entered into the closes, 
but does not state that they entered being armed, or for 
the purpose of destroying game. The second states that 
they were in the closes, armed, for the purpose of destroy- 
ing game, but does not state that they were there by night. 
These two branches of the sentence being distinct, there- 
fore, and neither of them stating all that is necessary to 
constitute the offence described in the statute, the count is 
bad. Upon this ground, without entering into the other 
objections that have been raised, I am of opinion that the 
indictment in this case cannot be supported, and that the 
judgment must be reversed. 

The other judges concurred. 

Judgment reversed. 

A single wo- 
man, set- 
tled in J., 
WAS removed 
from B, to C. 
The order of 
removal was 
quashed on 
appeal, but 
she had been 
delivered of 
a bastard child 
in C.:— Held, 
that the child 
was not settled 
in ji. 

The King v. The Inhabitants of Martlesham. 

On appeal against an order of justices for the removal of 
Henry Athrol, otherwise Walford, from the parish of Play- 
ford to the parish of Martlesham, both in the county of 
Suffolk, the sessions confirmed the order, subject to the 
opinion of this Court upon the following case : — 

Sarah Athrol, single woman, being pregnant, was re* 
moved by an order of justices from Playford to Stutton. 
Before the sessions, she was delivered at Stutton of the 
pauper, a bastard. At the sessions, Stutton appealed, and 
the justices quashed the order. It was admitted on the 
present appeal, that the mother, at the time of the bastard's 
birth, belonged to the parish of Martlesham. 


Scarlett, A. G. and T* Clarkson, in support of the order 
of sessions. Under the peculiar circumstances of this case, ^. y. 
the pauper, though born illegitimate in the pariah of Stutton, v. 

was not settled there, but in the parish of Martlesham, the ^J^tlesham. 
place of his mother's settlement. It is a general rule, no 
dottbt, that a bastard, being nuUius filius, cannot take a set- 
tlement by parentage, and is settled where born \ but the 
present case seems to form an exception to it* It is the 
very case put by Bayley^ J. in Rex v. St. Nicholas, LeiceS' 
ter{a), where he said, *' If the mother of a bastard child is 
laid under constraint, and removed to a place against her 
will, and is there delivered, the law says that the child shall 
not be considered as settled in that place; because the 
mother was not there in the character of a free agent. The 
legislature presumes in such a case, that if she had been 
left to herself she would have remained' in the parish in 
which she was settled, and, consequently, that the burthea 
ought to fall in the place in which it would have fallen in 
the ordinary course of events but for her removal (6)." 
Here the mother was under constraint. She was settled 
at Martlesham, but was wrongfully removed to Stutton; 
therefore, she must be considered as having been resident 
at Mardesham at the time when the child was born. In 
any view of the case it is more reasonable to consider her, 
in construction of law, as residing in Martlesham, her own 
parish, than in Play ford. At common law, if an illegiti- 
mate child is born while tlie mother is in the custody of the 
law, as where she is in the house of correction, Suckley v. 
Whithorn (c), or in the county gaol. Eking v. The County of 
Hereford (d), it follows the settlement of the mother. 
Here, if the mother had been convicted of an offence in 
Plajford, and committed to a gaol in Stutton, the child 
would have been settled in Martlesham, the place of the 
mother's settlement, because her residence in Stutton, being 

(«) 4 D. & R. 463 ; 3 B. & C. (c) 2 Bott, S; S Bulstr. 358. 

889. (<0 9 Bott, 4. 

{h) 4 D. & a. 467. 



18^9. constrained, would have been deemed in law a residence in 

JI^^'C^ Martlesham : and the mother's removal to Stiitton had the 
The King ^ ^ . , , , . • 

17. same effect, for it was made by an order of magistrates over 

Maetlesham. ^j,Qnj (1,^ parish of Playford had no control, and who sent 
the mother to that place in which she then appeared to 
them to be legally settled. The cases of Much Walt ham 
V. Peram{a) and Westbury v. Cost on {b) do not affect the 
present question, because they only decide that if a woman 
be delivered of an illegitimate child pending an order of 
removal which is afterwards quashed, the child is not settled 
in the parish in which it was born ; they do not decide that 
the child is settled in the parish from which the mother 
was removed, if that parish is not the place of her settle- 
ment. In the first of those cases the mother's settlement 
was in Much Waltham ; in the other, it does not appear 
from the report whether the mother's settlement was in 
Westbury or not. 

W. E, Taunton, contrd. If the parish officers of Play- 
ford had used due diligence they might have discovered that 
the mother's settlement was in Martlesham, and have re- 
moved her thither before the birth of the child ; instead of 
which they wrongfully removed her to Stutton, where she 
continued until the child was bom and the appeal deter- 
mined. The mother's residence in Stutton therefore, being 
the consequence of a wrongful removal, must, by construc- 
tion of law, be considered as a residence in Playford, and 
the child must be considered as having been born in Play- 
ford, and, consequently, as settled there. At all events the 
removal of the pauper to Martlesham is illegal, for he is 
clearly not settled there, because being illegitimate he cannot 
derive any settlement from his mother. 

Lord Tenterden, C. J. — It is sufficient for present 
purposes to say that the removal to Martlesham cannot be 
supported. A bastard cannot acquire a settlement by parent- 
(a) 9 Salk. 474. (b) S Salk. 532. 


age, therefore the pauper was not legally settled in Martle- 1829. 
sham. The order of sessions must be quashed. ^, ^ 


The other judges concurred. Mahtlesham. 

Order of Sessions quashed. 

Mason v, Wallis. 

This was a rule nisi for an attachment for not performing When a cause 
an award. It appeared that by a judge's order dated igth a judge's or- 

JuDC, 1B22. all matters in difference in the cause were re- der, empower- 

logthe arbitra- 
ferred to an arbitrator, so as he should make his award in tor to enlarge 

writing on or before the 1st day of July then next, or on or ghLfapp^t^ 

before such further or ulterior day as he should appoint in ond a judge 

writing under hia hand, to be indorsed on that order, and ^n eolane^ 

tht Cotirt of King's Bench or a judge thereof should order* "^?* hy the 

All the costs were to abide the event of the award. The aloDeisirregu- 

arbitrator, by indorsement on the order dated 29th June, ^"* *?*^ *"? 
' -^ . . ' aivardmaae 

1822, enlarged the time until the 6th November then next, after such en* 
Bj a second indorsement dated 6th November, 1822, he J^^^™®"'** 
further enlarged the time until the 23d January then next. 

By a third indorsement dated 2Sd January, 1823, he fur- 
ther enlarged the time until the l6th April then next. The 
last meeting before the arbitrator was on the 7th April, 

1823. By a fourth indorsement dated l6th April, 1823, 
he further enlarged the time until the 1st June then next. 
No judge's order was obtained in respect of any of these 
enlargements. The arbitrator made his award on the3J8t 
May, 1823, ordering the defendant to pay the plaintiff 11/. 
6s. 7d, in full satisfaction of all demands. The award recited 
the order of reference, but did not recite any of the enlarge- 
ments. The plaintiff proceeded to make the judge's order 
a rule of Court, and the several indorsements were made 
part of the rule. The plaintiff then taxed his costs, and 
demanded of the defendant the sum awarded, and the taxed 
costs ; and payment being refused, he obtained this rule for 
Vk attachment. 


1829. Barstow shewed cause. The award was not made id 

due time, for the enlargements of the time were not made 
in the mode prescribed by the order of reference. By the 
terms of that order the arbitrator was to make his award 
within a certain limited time, or such further time as he 
should appoint in writing, and the Court or a judge thereof 
should order. Two things, therefore, were necessary to 
the validity of any enlargement of the time, first, the arbi- 
trator's appointment, and secondly, a judge's order; and 
one of these being wanting, the award is a nullity. In Rdd 
V. Fryatt (a), where the terms of the order of reference were 
the same as here, it was held that the time was duly en- 
larged by the arbitrator's indorsing on the order, on the day 
preceding the expiration of the original time, that he re- 
quired further time, although the judge's order granting 
further time was not obtained until a subsequent day. But 
there a judge's order was obtained before the award was 
made, and it was assumed that without such an order the 
award would have been bad ; here no judge's order was 
ever obtained. Lawrence v. Hodgson {b) will be relied on 
by the other side, where it was held, that an objection that 
the time for making an award has not been duly enlarged, 
is waived by the proceeding in the reference, with a knoto^ 
ledge of that fact But here there is nothing to shew that 
the defendant knew of the irregularity in making the en- 
largements, and besides, there was one enlargement made 
after all the meetings before the arbitrator had taken place. 
This last fact is sufficient to shew that at the time when 
the award was made the arbitrator had no authority: 
George v. Lousley {c), Davis v. Vass{d), Wohlenberg v. 
Lageman (e), Hallden v. Glasscock (f), and Dickins v. 
Smith (g). 

(a) 1 M. & S. 1. And see Good (e) 6 Taunt. 951. 

V. WUks, 2 Tidd, 881. (/) 8 D. & R. 151 ; 5 B. & C. 

(6) 1 Y. & J. 16. 390. 

(c) 8 East, IS. (^) 8 D. fit R. 285; SB. fie C. 

(</) 15 East, 97. 528. 



Hutchinson, contrd. The defendant is estopped from 18^9. 
teking this objection, because his attendance before the 
arbitrator after the time had been enlarged, amounted to an 
admission that the enlargements were duly made, and that 
the arbitrator had authority to act after an enlargement 
made by himself alone; Lawrence v. Hodgson {a). The 
rule of Court embodies all the enlargements, therefore the 
Court will presume that when that rule was granted proper 
evidence of the enlargements having been duly made was 
laid before them, for the defendant has not sworn that no 
judge's order was made. Against such an objection as 
this the Court will presume every thing, and at least will 
presume that the order of reference was not made a rule of 
Court without sufficient evidence of proper enlargement ; 

Batley, J. (c). — I think the objection is fatal, and that 
the defendant is not estopped from taking it. Assuming 
that he waived the objection by attending before the arbi- 
trator, still that waiver would extend only to prior enlarge- 
ments, and there was one enlargement here after all the 
attendances were over. The arbitrator, therefore, had no 
authority at the time when he made the award. We cannot 
presume that judge's orders for enlargement were obtained 
merely because the order of reference was made a rule of 
Court. Indeed, the presumption is the other way, for if 
such orders had been produced, the rule would have been 
drawn up '' on reading'' those orders as well as the arbi- 
trator's indorsements. 

LiTTLEDALE, J. and Parke, J. concurred. 

Rule discharged. 

(«) 1 Y. & J. J 6. (c) Lord Tenterdeny C. J. was 

(6) 8 D. & R. 285 ; 6 B. & C. absent from indisposition. 


y,^^^^ Pease and others^ surviving Partners, v. Hirst and others. 

A.fgtLve his ASSUMPSIT on a promissory note, dated 6th January, 
bankers, as a 1817, whereby defendants jointly and severally promised to 
advances, a pay on demand to plaintiffs and R. Harrison, or order, 300/., 
liraiid^B.^*^^ with interest. Pleas, non assumpsit, and the Statute of 
jointly and Limitations. At the trial before Bai/ley, J., at the York- 
promised to ^^^^^ summer assizes, 1828, the case was this: — In January, 

pay on demand 1817, the plaintiffs and JR. Harrison, since deceased, car- 
lo the bankers . tt , m. 
or order 300/., ned on busmess m partnership as bankers at Hull. 1 he 

Th*^b°^k^^^ defendant Hirst had for some years kept an account with 
credited A. them as his bankers, and at that time, for the purpose of 
amount^f the obtaining credit with them, he prevailed upon the other 
note, and defendants to join him in making the note in question. The 
yearly with ^^^^ ^^^ delivered to the bankers, who thereupon credited 
interest. Up- fji^st for 300/., and debited him yearly with interest on 
on a change » ^t .. 1 . • •«• 

in the firm that amount. In November, J 820, two of the plaintitis 

of the bankers rgji^ed from the partnership, when a balance was struck 

the note umn- ^ '^' 

dorsed, was, between the old firm and the new, and Hirst^s account was 

count trans" transferred in the books from the old firm to the new. The 

ferred to the note was at the same time delivered to the new firm, but 

one time -4. was not indorsed to them. In December, 1821, Harrison 

had a balance died, and the account was again transferred to the new firm 

in the bankers* . / ** . , . • 

hands exceed* as before. The surviving partners continued in the business 

L^the^^ote ""' ^^^" *^ ^^^ ^™^ "^^^^ ^^^ ^^'^^" ^^* brought, but in the 
A. paid inte- interval two new partners were admitted, upon whose ad- 
note^vearly to mission Hirst^s account was again transferred, as on former 
thenewnswell occasions. At one period the balance of accounts was ia 
Held, first, Hirst's favour to the amount of nearly 700/., but that did 

that the note, ^^^ appear to have been a cash balance. Hirst was debited 
bemg a con- ' *^ 

tinning secu- 
rity, might be enforced, notwithstanding the change in the banking firm. 

Secondly, that the note not having been indorsed, the original payees (or the sarvi- 
▼ors of them) were the proper persons to sue upon it. 

Thirdly, that the note was not discharged by AJs having at one time in the bankers' 
hands a balance exceeding its amount. 

Fourthly, that payment, within six years, of interest on the note by A. took the 
note out of the Statute of Limitations as to B. 


with interest upon the note by all the diiferent firms down 1829. 
to the year 18244 and he regularly allowed the same in his 
account. It was contended on the part of the other de- 
fendants, first, that they being merely sureties for Hirst, 
their liability had shifted with every change of the firm, and 
that they were now liable only to the persons constituting 
the last new firm, and not to the plaintiffs who constituted 
the original firm, which had long ceased to exist: and 
secondly, that as between the plaintiffs and those defendants 
as sureties, there was no payment of interest within six 
jears to take the case out of the statute of limitations, such 
payment having within that time been made, not to the 
plaintiffs who were the original payees, but to the different 
persons constituting the firm at the time of such payment. 
The learned judge overruled the objections, but reserved 
the points, and the plaintiffs had a verdict, with liberty for 
the defendants to move to enter a nonsuit. A rule nisi 
having been afterwards obtained accordingly, 

Scarkii, A. G., now shewed cause. First, the defend- 
ants are liable to the present plaintiffs. The plaintiffs are 
the surviving payees of the note, they have the legal interest 
in the note, and are the persons entitled to sue upon it. 
The fact that Hirst had at one time in the hands of the 
bankers a balance exceeding the amount of the note, did 
not operate as a discharge of the note. It did not appear 
that that was a cash balance; but assuming that it was, the 
bankers were not bound in law to apply it in discharge of 
the note, and in fact they never did so. Nor was it intended 
that they should do so; the evident intention of all parties 
was, that the note should remain in the hands of the bankers 
as a subsisting security for all advances which they should 
from time to time make to Hirst. If Hirst had intended 
that balance to have been applied in discharge of the note, 
he would have specifically appropriated it to that purpose; 
and, in the absence of any specific appropriation, the 
bankers were entitled to apply the balance to a different 


purpose : Bosanquet v. Wray (a), Brooke v. Endtrhy (6). 
Secondly, the payment of interest upon the note was suf- 
ficient to take the case out of the Statute of Limitations. 
To this objection the late case of Burleigh v. Stott (c) is a 
complete answer; for it was there held, that a payment 
of interest by il. on the joint and several note of A. and B., 
is evidence of a promise by B*, and takes the note out of 
the Statute of Limitations, though JB. was a mere sure^, 
and the payment was made without bis knowledge. 

F. Pollock, contrsi. The note was dated in January* 
1817> and was given to the persons who then constituted 
the banking firm. When that firm ceased to exist, the 
liability of the maker to the original payees ceased also, and 
the note became the property of the successive firms to 
whom it was from time to time transferred. It was so 
treated both by the bankers and by Hirst* The property 
in the note, therefore, is in the persons constituting the 
present firm, and they are the only persons entitled to sue 
upon it. Three of the defendants are mere sureties, and 
all that they did was to agree, in January, 1817f to gua- 
rantee to certain persons then constituting the banking 
firm, the payment of 300/. advanced by that firm to Hirsi. 
[Bayley, J. They do not appear on the face of the note to 
be sureties.] They were such in fact, and the form of the 
note cannot vary the nature of the contract* The note is 
payable on demand, which in a case like this ia the same 
as if it had been payable one day after date. The sureties 
could not mean, by signing a note payable instanter, to 
take upon themselves a responsibility extending over a period 
of ten or twelve years ; and at any rate the bankers were 
bound, in favour of the sureties, to apply the first available 
balance in their hands belonging to Hirst in discharge of 
the note : ClaytorCb case (d), Bodenham v. Purchas (e), 

(a) 6 Taunt. 597 ; 2 Marsh. 31 9. (c) Ante, ii. 93 ; 8 B. & C. 36. 

(6) 4 Moore, 501 ; 2 Brod. & \d) 1 Meriv. 692. 

Bingh.70. (e) 3 B. fir A. 39. 


Simson v. Ingham (a). With respect to the Statute of i829. 

limitations, the evidence furnished no answer to that plea. 

As against the plaintiffs the statute must be taken to run 

from the date of the note« it being payable instanter; and 

payment of interest by Hirst within the last six years to 

other persons, is no acknowledgment of a debt due to the 

plainti£& from the three defendants, who are mere sureties. 

The payments of interest by Hirst were made generally on 

account of his fluctuating debt owing to the bankers, and 

were made, not to the plaintiff's, but to the persons who 

from time to time constituted the banking firm. 

Bayley, J. (ft). — I am of opinion that the verdict found 
for the plaintiff? is right,, and ought not to be disturbed. 
The action is brought upon a promissory note, and the first 
objection is, that three of the four defendants having joined 
in that note as sureties, to a banking firm then consisting 
of the plaintiffs and one Harrison since deceased, their 
liability has ceased by the subsequent change in the firm. 
Assuming that those defendants are. mere sureties, the 
question still remains whether they have restricted their 
liabiiity to a limited time and to particular parties. A 
swety, party to a bond or note, may confine his responsi- 
bility to a particular period and particular persons; but a 
surety bond or note may be so framed as to comprehend 
ao unlimited time, and future as well as present parties. 
In the present case no restriction either as to time or parties 
is apparent upon the face of the note* None of the makers 
have placed themselves in the place of sureties ; on the 
contrary^ the form of the note shews them all to be prin- 
cipals, and not to have confined their liability to the then 
existing firm, for the note is made payable to the plaintiffs, 
or order. This shews clearly that the note was intended 
by all parties to subsist from time to time as an available 
security to such persons as should constitute the firm, and 

(«) 5 D. & R. S49; 3 B. & C. 65. 

(^) Lord Tenterdetif C. J., was absent, from indisposition. 


1829. supplies an answer to this objection. The next objection 
is« that the note was discharged by a balance belonging to 
Hirst, which at one time came into the hands of the 
bankers, because^ it is argued, the plaintiffs are bound to 
consider the debt owing upon the note as liquidated by 
that balance. Now it does not appear that that was a cash 
balance ; but if it had been, the bankers would not have 
been bound to apply it in discharge of the note, because 
Hirsi never specifically appropriated it to that purpose. 
Besides, it would have been directly contrary to the inten- 
tion with which the note was given, that it should be dis- 
charged by the first money belonging to Hirst which came 
to the hands of the bankers, for the object was, that Hirst 
should from time to time have advances from the bankers, 
and that the bankers should hold the note as a subsisting 
security for those advances. If the parties who were in 
substance, though not in form, sureties, had called upon 
the bankers to apply that balance in discharge of the note, 
they would, perhaps, have been bound so to apply it; 
but no such call was ever made. A third ground of objec- 
tion is, that the action is not maintainable by the present 
plaintiffs. It was in evidence that several changes in the 
firm took place, and that upon each change the note was 
transferred in account from the old firm to the new, and 
that Hirst from time to time paid interest to the successive 
firms, as upon a debt owing to the persons successively 
constituting the firm. It is argued that the property in the 
note, both in point of law and by the understanding of all 
parties, had passed to the last new firm, and that the 
persons constituting that firm were the only persons entitled 
tp sue. It seems to me, however, that the action was 
properly brought in the names of the partners to whom the 
note was given. They were the original payees; the legal 
interest in the note originally vested in them; and it was 
never divested out of them. The note was made payable 
to them or order, and if they had indorsed it to the new 
firms, the argument on this point would have been good. 


and the action must have been brought in the names of the 
indorsees; but not having been so indorsed, the action 
could only be brought in the names of the original payees, 
for the benefit of the parties interested. The last objection 
is founded upon the plea of the Statute of Limitations, in 
respect of which it is said, that as to the three defendants^ 
who are mere sureties, there was no acknowledgment of 
the debt within six years. But it was proved that interest 
upon the debt had been paid within that time by one of 
the four persons jointly liable; and it is clear upon the 
authority of the case cited for the plaintiffs (a), and other 
cases, that that payment operates as an acknowledgment of 
the debt by all the parties, and takes the case out of the 
statute as to all. Upon these grounds I am of opinion 
-that the verdict found for the plaintiffs is right, and that 
the role for entering a nonsuit ought to be discharged. 

LiTTLEDALE, J. — I am entirely of the same opinion. 
It is clear that payment of interest by Hirsi, one of the 
jcMQt promissors, takes the case out of the Statute of Limi- 
tations as to all. All the defendants, therefore, are liable; 
and thej are liable to the present plaintiffs. The firm, 
indeed, was changed from time to time, and the securities 
beloogiog to the old firm were transferred to the new; but 
still the persons entitled to the legal interest in those secu- 
rities miist sue upon them, and those persons, as regards 
the note in question, are the plaintiffs. Suppose a bond 
instead of a note had been given, as a security for advances, 
to the firm as originally composed, as well as to any persons 
who might afterwards be added to it ; the proper persons 
to sue would be the surviving obligees. It is insisted that 
the note must be considered as discharged, by the circum- 
stance of the bankers having at one time struck a balance 
which was in favour of Hirst, Now it was plainly not the 
intention of the parties to consider the note as satisfied as 

(«) Burleigh v. Stott, anle, ii. 93; 8 B. & C. S6. And see the cases 
there cited. 




80on as there should be a balance of equal amount in the 
hands of the bankers; the intention was, that the note 
should be a continuing security for advances to be made 
from time to time. It is made payable on demand, and to 
order. There was, therefore, no legal obligation on the 
bankers to appropriate that balance to the discharge of the 
note; and there having been no appropriation by the debtor, 
I think the debt cannot be considered as discharged. 

Rule discharged (a), 
(a) Parke, J., having been of counsel in the cause, delivered no opinion. 

An indenture 
of apprentice- 
ship to which 
pansh officers 
are parties, is 
valid if allowed 
by two justices 
under their 
hands only, 
though ex- 
pense be incur- 
red, but not 
by the parish 
funds, under 
56 Geo, 3, 
0.139, ss. 1 
to 10. 

S. 11 of that 
act, which 
requires an 
allowance by 
two justices 
under their 
hands and 
seals, applies 
only to cases 
where expense 
is incurred by 
the parish 
funds, the pa- 
rish officers not 

The King v. The Inhabitants of St. Paul, Exeteb. ' 

Two justices, by their order, removed Jane Bishop, single 
woman, from the parish of St. Paul, in the city and county 
of Exeter, to the parish of Tedbum St. Mary, in the county 
of Devon ; and the sessions, on appeal, quashed the order^ 
subject to the opinion of this Court upon the following 
case : — 

The pauper, Jane Bishop, was, in the year 1818, bound 
an apprentice by the parish officers of Tedburn St. Mary to 
one H. Belworthy. The indenture by which she was bouud 
was made in pursuance of a previous order of two justices, 
to which reference was made by its date, and was duly eze« 
cuted by the said parish officers and by the master, ^n 
allowance of the same was written at the foot thereof, which 
was signed by two justices, but was not under seal. On 
occasion of this binding an expense of \7s, was incurred 
by the public parochial funds of the parish of St. Mary, 
namely, 75. as the costs of preparing the indenture, and 
10s. which were given to the master with the pauper. Xhe 
pauper resided in the parish of St. Mary under this inden- 
ture for about four years, 
being parties to the indenture. 


Cratoder, in support of the order of sessions. The in- 
denture of apprenticeship in this case was one by reason of j^^ ^^o 
which expense was incurred by the public parochial funds, J. 

and which ought to have been approved of by two justices Exeter.' 
tmder their hands and seals, within the express words of 
the statute 56 Geo. 3, c. 139i s. 11. Its approval by two 
justices was not under their seals, for which defect the 
sessions quashed the order of removal, as they were bound 
to do. The section referred to recites, that the salutary 
provisions enacted by the 43d of Elizabeth were frequently 
evtded in the binding out of poor children, and the premium 
of apprenticeship, or a part thereof, was clandestinely pro- 
vided by parish officers, who were thus enabled to bind 
out such poor children, without the sanction of justices; 
and enacts, ** that no indenture of apprenticeship, by reason 
of which any expense whatever shall at any time be incur- 
red by the public parochial funds, shall be valid and eifec- 
tual, unless approved of by two justices, under their hands 
snd seals, according to the provisions of the said act (43 
EHzabeth) and of this act." The words of the enactment 
are undoubtedly more extensive in their import than those 
of the recital, and they were considered to be so, and full 
operation was given to them, by Bay ley, J. in Rex v. Mat- 
tishall (a). It is true that the first ten sections of this sta- 
tute apply to parish indentures, and require only that the 
allowance of those indentures shall be signed by two justices. 
But that cannot restrain the operation of additional words 
in the eleventh section, and that in express terms requires 
that every indenture by reason of which expense is incurred 
by the public parochial funds, shall be allowed by two jus- 
tices under their hands and seals. The object of the eleventh 
section was to place ail parish bindings under the superin- 
tendence and direction of two justices. There is nothing 
contradictory between that and any of the preceding 
dauses ; the one is cumulative upon, not inconsistent with 
the others. But independently of this, the words of the 
(a) Ante, iii. 386; 8B.&C.735. 



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St. PAU^ 


eleventh section are plain, express and positive^ and cannot 
be restricted in their fair operation^ Rex v. Stoke Da-- 
marel{a); where it was held that an indenture, in respect 
of which expense was incurred by the parish, must be al- 
lowed by two justices under their hands and seals, though 
the parish officers were not parties to it: and where Bay- 
ley, J., speaking of this section, said, " I do not know how 
to get over the words of this clause of the act of parlia- 
ment; they are plain and unequivocal: and I shrink from 
adopting a rule of construction with respect to them, which 
would have the effect of deciding that the legislature did 
not mean that which they have expressed" (6). IParke, J. 
In that case the binding was one clearly within the recital 
of the eleventh section ; Rex v. Maitishall (c) only shews 
that the enactment extends to cases ejusdem generis with 
those mentioned in the recital : in the latter case the parish 
officers did not provide part of the premium, but furnished 
money to purchase clothes for the apprentice.] Cases may 
come within the enactment which are not mentioned in the 
recital : the argument on the other side must be that the 
enactment is controlled and limited by the recital. 

Coleridge^ contr^. The cases which have been cited do 
not apply to the present, because there the parish officers 
were not parties to the indenture, here they are. This is 
a parish indenture, and the question is, whether such an 
indenture must be allowed under seal by 56 Geo. 3, c, 139> 
s. 1 1 ; a question certainly not decided in either of the cases 
referred to. The mischief intended to be remedied by that 
statute was the improper apprenticing of poor children, and 
the remedy suggested is the securing in all cases the con- 
trol of two justices. The mischief extended to two cla.sse8 
of apprentices, first, parish apprentices, or children entirely 
and exclusively bound out by parish officers ; and, secondly^ 
apprentices really bound out, wholly or in part, by parish 

(a) Ante, i. 458; 7 B. & C. 563. (c) Ante, iii. S86 ; 8 B. & C. 73S. 
{b) Ante,'i. 466, 

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officers, but tiaminally by their parents or themselves, so as 
to evade the provisions of the statute of' Elizabeth. To the 
first of these classes the first ten sections of the present v, 

statute apply; to the second, the eleventh section. The Exeter!' 
first and second sections direct in what manner parish ap* 
prentices shall be bound, and one of the directions is that 
the allowance of the indenture shall be signed by two jus- 
tices. The fifth section provides that no settlement shall 
be gained, unless the allowance of the indenture shall be 
signed as before directed. The sixth section imposes a 
penalty on the parish officers and the master, whenever a 
parish apprentice is bound without the allowance before 
directed. Looking at these two sections together, it is 
obvious that the same default is made the ground of avoid- 
ing the settlement on the one hand, and imposing the 
penalty on the other^ namely, the binding the apprentice 
without an allowance signed by two justices. But looking 
at the fifth section alone the inference clearly is, that where 
the directions there referred to are complied with, a settle- 
ment will be gained, that is, where the allowance is signed, 
and signed, only, by two justices. [Bayley, J. In this case 
expense has been incurred by the parish ; does not that 
bring it within the operation of the eleventh section?] It 
is submitted that it does not, because this is strictly a parish 
binding, to which that section does not apply. In Rex vj 
Bawburgh(a), which was the case of a parish binding, and 
where the indenture was held to be invalid under the first 
and fifth sections of the statute, Bayley, J. is reported to 
have said, " I doubt whether the eleventh section applies 
to such a case as the present, or whether it applies only to 
such cases where the binding is by the parents, and not by 
the overseers" (6). Indeed that section seems to have been 
introduced for the very purpose of meeting those cases in 
which the parish officers are not the parties binding; and here 
they are the parties binding. [Litiledale, J. Still there has 
been expense incurred by the parochial funds.] But not 

(fl) 3 D. & R. 338; 2 B. & C. 222. (ft) 3 B. & C. 225. 

VOL. V. H 


18^9. clandestinely^ The recital q{ the eleventh section speaks of 
J^I^^J^^^ *-' premiums clandestinely provided by parish o65cers." The 
^. enactn^ent speaks of '* expense incurred by the public pare* 

•^. Paul, ^j|,ij|| funds." Construing both together, and at least the 
recital is td be considered as the key for the proper con- 
struction of the enactment, the latter must be taken to 
mean " ei^pense clandestinely incurred." Now the sessions 
have not found that the money was advanced clandestinely 
in this case, and the Court will not presume fraud. 

The case was argued at the sittings in Banc after the 
last term, when the Court took time for consideration^ 
Judgment was now delivered by 

Bayley, J., who, after recapitulating the £scts of the 
case, proceeded to the following effect : — It was insisted 
that the fact of expense having been incurred by tfae public 
parochial funds brought the case within the operation of 
the eleventh section of the statute, the 56 Geo, 3, c. 139* 
Undoubtedly, if that section extends to cases where the 
binding appears, upon the face of the indenture, to be by 
the parish officers, the indentui^ now in question would be 
void for want of the seals of the justices. If, on the other 
hand, it applies only to cases where, the parish officers are 
not parties to the indenture, but where some part of the 
expense attendant upon the binding is paid out of the 
public parochial funds, the converse would be the result. 
After a careful consideration of the statute, and conferring 
with my Lord Tenierden, vfho concurs in the judgment I 
am about to pronounce, we are of opinion that the first ten 
sections are confined to cases where the parish officers are 
parties to the indenture of apprenticeship, and that the 
eleventh section is confined to cases where the parish 
officers are not parties to the indenture, but where expense 
is incurred by the public parochial funds. That this ia the 
true meaning of the eleventh section appears to us* to be 
evident from the use of the word '* clandestinely" in the 
preamble of that section. The mischief recited in that 

MKHAZLAAS term, X GEO. 1 VX 99 

preamble is, that the premium of apprenticeship, or a part ^S^- 
thereof, was clandestinely provided by parish officers, who r^^ ^iiYiG 
were thus enabled to bind out poor children without the ' v. ^ 
sancdon of justices; and, for remedying that mischief, the ExbterT 
enacting part of the clause provides, that no indenture, by 
reason of which any expense shall be incurred by the public 
parochial funds, shall be valid, unless approved of by twp 
justices under their hands and seals. The first ten sections, 
which evidently apply only to bindings by parish officers, 
require diat the indenture shall be approved of by two 
JQStices, under their hands only* Parish officers cannot be 
said to provide the premium clandestinely where they are 
parties to the indenture; therefore, the eleventh section 
can apply only to cases where they are not parties to the 
indenture, but where they do provide the premium, or i 

some portion of it. In this case the parish officers were 
parties to the indenture, which, therefore, is one regulated 
by tfae first ten sections of the statute ; and the allowance 
of it being signed, though not sealed, by two justices, it is 
a vafa'd indenture, and the pauper gained a settlement by 
service under it in the parish of Saint Mary. The order 
o/ sessions must consequently be quashed. 

Order of Sessions quashed. 



^'^^'^ The King v. The Oxford Canal Company. 

ciniuct^S? ^^ * ""^^ ™*^^ ^^^ ^^^ relief of the poor of the parish of 
proprietors Foleshill, in the county of the city of Coventry, the Oxford 
ed to uke a Canal Company were rated for their messuages, buildings, 
mileap ton- stop-land, towing-path, and that part of the canal lying 
and other within the said parish^ and for the tolls, duties, and ton- 
p>ods, except- u^ges arising therefrom, estimated as of the annual value 
two miles, in of 9,0001., at 100/. On appeal, the sessions confirmed the 
whidb the pro- ^^^' subject to the opinion of this Court upon the follow- 
prietorsofthe ing case: — 
Canal were ^J ^ G^o. 3, c. 70, the appellants were empowered to 

authorised to make and maintain a navigable canal from the Coventry 

take all dues ... 

payable under Canal Navigation to the city of Oxford. The appellants 

uhat act "J^* are the owners and occupiers of the canal which has been 

from the made by virtue of this act. The length of the canal is as 

Oxford Canal ^ n 
^ithinthose follows:— 

two miles. From the northern extremity at Longford, where it joins 
act the pro- ^^^ Coventry Canal, to Braunston, the point of union with 
W^^^c^ ^\ ^^^ Grand Junction Canal, is thirty-four miles seven eighths, 
were authoris- From Braunston to Napton, the point of union with the 
di^pa^aWe Warwick and Napton Canal, is seven miles, 
under the From Napton to Oxford, the southern extremity, is forty- 
Caned act, ^^^^ miles one eighth; and the total length of the Oxford 

for all goods, Canal is ninety-one miles, 
except coals, 
carried upon 

the Oxford Canal, and afterwards upon the Coventry Canal, within three miles and a 
half of the point of junction of the two canals. That point of junction was in parish 
F., which contained one mile nine hundred and sixt^-tnree yards of the Oxford Canal, 
part of the two miles before mentioned, and two miles and a quarter of the Corentiy 
Canal, part of tfae three miles and a half before mentioned. 

By the Grand Junction Canal act, reciting that that canal might be injurious to the 
proprietors of the Oxford Canal, and that compensation should be made to them for 
such injury, they were authorised to take 2<. 9d, per ton for all coals passing from the 
Oxford Canal into the Grand Junction Canal, without regard to tlie distance they 
might pass on the Oxford Canal; and 4s. Ad. per ton for all other goods passing from 
any canal into the Oxford Canal, and from thence into the Grand Junction Canal, or 
vice yersft, without regard to the distance they might pass on the Oxford Canal:— 

Held, that the proprietors of the Oxford Canal were ratable in parish F. for all the 
dues received by them, in the proportion in which they were severall^y earned in that 
parish, but that, in 6xing the rate, all the expenses incurred in maintaining the part of 
the canal situate in that parish must be first deducted from the total amount of dues 


B; the said Oxford Canal act the company are empow- 1829. 
ered to levy a mile tonnage for coals and other merchandises xh K no 
carried upon this canal, which they levy accordingly, except^ v. 

xng only that they are not to take a tonnage upon coals for a Cana^l^ 
distance of' two miles, measured from Longford towards Compast. 
Braunstofi, respecting which it is enacted as follows : — 
" Provided nevertheless, and be it further enacted, that it 
diall be lawful for the company of proprietors of the 
Coventry Canal Navigation, their successors and assigns, 
iirom time to time and at all times hereafter, to take and 
receive all the rates and duties payable by virtue of this 
act for all coals that shall be carried or conveyed from any 
part or parts of the said intended cut or canal, within two 
miles from the junction thereof with the Coventry Canal at 
Longford aforesaid; which said rates and duties so to be 
collected and received, shall be and are hereby vested in 
the said company of proprietors, their successors and 
assigns, and shall and may be collected and levied by them 
in such manner, and with such and the like remedies and 
[x>wers for collecting and levying thereof, as any rates or 
duties granted by this act can or may be collected or levied, 
and the same, when received, shall be applied and disposed 
of to and for the same uses, intents and purposes, as the 
several rates and duties granted by an act of 8 Geo. 3, enti- 
tled, 'An Act for making and maintaining a Navigable 
Canal from the City of Coventry, to communicate upon 
Tradley Heath, in the County of Stafford, with a Canal 
now making between the Rivers Trent and Mersey,' are 
thereby directed to be applied and disposed of, and to no 
other use or purpose whatsoever; and that it shall be 
lawfttl for the said company of proprietors of the navigation 
intended to be made by virtue of this act, to take all the 
rates and duties payable by the said recited act, for all 
goods, wares and merchandises, except coals, which shall 
be navigated, carried or conveyed upon any part or parts of 
the said canal intended to be made by virtue of this act, 
and afterwards upon the said Coventry Canal, within three 


18S9. .JDiles and a half of the junction of the two canals at Long 

TheKiira ^^^* towards Coventry; which said last-mentioned rates 

V. .and duties so to be collected and received, shall be and are 

Canal^ hereby vested in the said company of proprietors of the 

CovPAWY. Oxford Canal Navigation, their successors and assigns, 
and shall and may be collected and levied by them in sach 
manner, and with the like remedies and powers for collect- 
ing and levying thereof, as any of the rates and duties 
directed to be paid by the said recited act can or may be 
collected and levied, and the same, when received, shall be 
applied and disposed of to and for the several uses, intei^ 
and purposes, as the several duties granted by this act are 
directed to be applied and disposed of, and to and for no 
other use or purpose whatsoever; any thing contained in 
the said recited act or this act to the contrary notwith- 

The said recited act of 8 Geo. 3, imposes a mile tonnage 
pn coals and all other merchandises passing along the 
Coventry Canal. 

The point of junction of the Oxford and Coventry Canals 
is in the respondent parish, which parish contains one mile 
nine hundred and sixty-three yards of the Oxford Canal, 
being part of the two miles above mentioned, and also two 
miles and a quarter of the Coventry Canal, being part of 
the three miles and a half above mentioned. The com- 
pany of proprietors of the Oxford Canal are neither owners 
nor occupiers of any part of the Coventry Catial. 

The Oxford Canal Company are further entitled to certain 
compensation tonnages, by virtue of the Grand Junction 
Canal act/ 33 Geo. 3, c. 80, which enacts as follows : — 
** And whereas it being apprehended that the making of 
the said intended canal will be injurious to the compamy of 
proprietors of the Oxford Canal Navigation; it ia agreed 
that the compensation hereinafter mentioned shall be made 
to them as an indemnification against such itguty : Be it 
therefore enacted, that instead of the tolls, rates and duties 
which would have been payable to the company of proprte-» 


tors of the tmid Oxford Canal Navigation, by virtue of I8i9. 

certun acta of 9« \5, and 26 Geo. 3, for making and main- .^iT^^T^ 

^ The Kino 

Umuig the aaid Oxford Canal Navigation, or any of them, v. 

for or in respect of the coals, goods, and other things here- c^al 

iotfter mentioned and made chargeable with certain rates Compast. 

to the company of proprietors of the said Oxford Canal 

Nav^atiott^ in case no alteration had by this act been made 

IB the tbUs, rates and doties payable to them, it shall be 

lawful for the company of proprietors of the said Oxford 

Caaal Navigation to take for their own proper use and 

behoof the respective rates hereinafter mentioned ; that is 

l9 say» for ail coats that shall pass from the said Oxford 

Canal into or upon the said intended canal, the snm of 

2$. 9d. a ton, and so in proportion for a less quantity than 

a ton, without any regard to the distance the same shall 

pias on the said Oxford Canal ; and for all other goods, 

wares, merchandises and things which shall pass from any 

navigable canal into or upon the said Oxford Canal, and 

from thence into or upon the said intended canal, or from 

the said intended canal into or upon the said Oxford Canal, 

aod from thence into or upon any other navigable canal, 

except lime and limestone, and also except all such articles 

and things as are at present exempt from the payment of 

any tolls, rates or duties to the company of proprietors of 

the said Oxford Canal Navigation, the sum of 4s. 4d. a ton, 

and so in proportion for a less quantity than a ton, without 

any regard to the distance the same shall pass upon the 

said Oxford Canal." 

The Oxford Canal Company are further entitled to tolls, 
by the folbwii^ clauses of the Warwick and Napton Canal 
act, 34 Geo* 5, c. 38 : — " And whereas the making the said 
intended canal may be injurious to the company of pro- 
prietors of the Oxford Canal Navigation, unless provision 
be made for preventing any such injury : Be it therefore 
enacted, that it shall be lawful for the company of proprie- 
tors of the said Oxford Canal Navigation to ask, demand, 
take and receive, to and for their own proper use, over and 

The Kino 





above all the rates of tonnage or duties which they are or 
shall be entitled to for or in respect of any coals, goods 
and merchandises, or other things navigated or passing in 
or upon any part of the said O&ford Canal, by virtue of any 
acts of parliament now in force, except as hereinafter is 
excepted, the rates or duties hereinafter mentioned; that 
is to say, for all coals which shall be navigated out of the 
said intended canal into the said Oxford Canal, the sum of 
2s. 9d, a ton, and so in proportion for a less quantity than 
a ton; for all goods, wares, merchandises and things (except 
lime and limestone and manure) which shall be navigated 
out of the said intended canal into the said Oxford Canal, 
or out of the said Oxford Canal into the said intended canal, 
(except such as shall be bon& fide navigated from the 
Coventry Canal,) or from any intermediate place between 
the said Coventry Canal and the said intended canal, into 
the said intended canal, the sum of 4s. 4d. a ton, and so in 
proportion for a less quantity than a ton." 
. The Oxford Canal Company are rated in the parish of 
Foleshill in the aforesaid sum of 2000/., in manner follow- 
ing: — 

£. i.d. 

1. For tlie mile tonnage payable to the Oxford Canal Com- 
pany for merchandises (not being coals) passing along the 
Oxford Canal, in the parish of Foleshill, for as far as such 
merchandises pass in that parish 450 

2. For the mile tonnage payable to the Oxford Canal Com- 
pany in respect of tolls collected on the Coventry Canal, 
in the proportion of one mile nine hundred and sixty- 
three yards to two miles 6000 

3. For such a proportion of the compensation tonnage pay- 
able to the Oxford Canal Company under the Grand 
Junction Canal act, for merchandises (not being coals) 

. passing from the Coventry Canal along the Oxford Canal 
into the Grand Junction Canal, and vice versd, and con- 
sequently through the parish of Foleshill, as one mile nine 
hundred and sixty-three yards bears to thirty-four miles 
and seven eighths 900 O 

Carried forward .... 1410 O 

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Brought forward . .. . £1410 
4. For the same proportioD of the compensation tonnage for 
coals passing along the same portion of the Oxford Canal 

from the Coventry Canal into the Grand Junction Canal, 1090 Oxford 


2500 COMPAMY. 

From this sum of 2500/. a deductiob of 20/. per cent, has 
been made, as the reasonable profit of a supposed lessee, 500 


Wbich leaves the sum of £000/. as the supposed rental of 
the above-mentioned tolls, and upon which the rate has 
been made. The mile tonnage payable to the Coventry 
Canal Company, for coals passing along the Oxford Canal, 
in the parish of Foleshill, is 350/. The parochial rates on 
landed property in Foleshill, payable by the occupiers, are 
all shillings in the pound on the amount of their actual 
rents. The sum which the Oxford Canal Company receive 
vpon all their compensation tonnages, taken in the propor- 
tion of one mile nine hundred and sixty-three yards to 
ninetjH>ne miles, is 1000/.; the expense of collecting the 
tolls for which the company are assessed is 6/. per cent. 
The annual repairs of the canal in the parish of Foleshill 
amount to 20L The annual repairs of the whole canal 
amount to 4000/. The expense of works, (such works not 
heing situated at Foleshill,) by which that part of the canal 
which lies in the parish of Foleshill is supplied with water, 
amounts to 100/. The works by which that part of the 
canal which lies in the parish of Foleshill is supplied with 
water, supply the canal for a distance of forty miles. The 
total amount of the tolls collected on the canal is 50,000/. 
The tolls payable throughout the said distance of forty 
miles, estimated on the principle of the assessment in the 
parish of Foleshill, amount to 95,000/. The questions for 
the consideration of this Court are. 

First, For what tolls, and for what proportions of such 
tolls, are the Oxford Canal Company ratable in the respon- 
dent parish ? 

Secondly, To what deduction are the Company entitled. 



The KiMG 




to place them on an equal footing with the other occupiers 
of land in the same parish ? 

The rate is to be amended accordingly. 

Amos, in support of the rate, and of the order of sessions. 
First, the Oxford Canal Company are ratable ** for the mUe 
tonnage payable to them for merchandises (not being coals) 
passing along the Oxford Canal, in the parish of Foleshill, 
forjas far as such merchandises pass in that parish.'' This 
is clear upon the principle laid down in Res v. Milion (a), 
and. recognised in subsequent cases (6), aamely, tkitf eveiy 
piuriah through which a canal pattes is entitled to reeetve 
from th^ canal company, oat ot Am general fiind arising 
from the tolls, a sum proportionate to that whick the land 
used by the company in that parish produces. Secondly, 
the Oxford Canal Company are ratable ** for the mile too^ 
nage payable to them in respect of tolls collected on the 
Coventry Canal, in the proportion of one mile nine hundred 
and sixty-three yards to two miles." The Oxford Canal 
^ct vests in the Oxford Canal Company certain tolls 
earned on the Coventry Canal in respect of all mercfaan* 
diaea. (except coals) for the distance of three miles and 
a half on the Coventry Canal. The same act vests in the 
Coventry Canal Company the tolls for coals passing on the 
Oxford Canal for a di&tance of two miles measured from 
Longford, the point of junction, towards Braunston. In 
effect, the Oxford Canal Company give to the Coventry 
Canal Company two miles of their canal, part of which is 
in the parish of Foleshill, and receive from them the tolls 
earned on three miles and a half of the Coventry Canal. 
But the profit is produced by the two miles of the Oxford 
Canal, part of which is in the parish of Foleshill, and is, 
consequently, ratable in that parish. Thirdly, the Oxford 
Canal Company are ratable *' for such a proportion of the 

(fl)-3B.&A. 112. 
(b) See Rex t. Kingmmford, 
ante, i. 80; 7 B. & C. 336; ReJi v. 

Lower MUion, ante, iv. 711 ; 9 B. 
& C. 810; and the various autlKH 
riti^ thereili referred to. 

The Kma 


compensation tonnage payable to them uoder the Grand 18S9. 

JuQctioa Canal Act, for merchandises (not being coals) 

passing from the Cov^itry Canal along the Oxfiird Canal Jf 

ifito the Grand Junction Canal, and vice versft, and conse- q'^^^ 

quendy through the pariah of Foleshill, as one mile nine Couvaxys 

kandred and aixty*three yards bears to thirty-four miles and 

seven-eigktha.'' It is presumed that this proposition will 

not be disputed, for it is founded upon the decision of this 

Court in Rex v. Tile Oxford Canal Company {a), which is 

expressly in point* Upon the. same principle it will follow 

that, fourthly, the Oxford Canal Company are ratable ''for 

die same proportion of the compensation tonnage for coab 

pissing along the same portion of the Oxford Canal from 

the Coventry Canal into the Grand Junction Canal." 

There can be no distinction between the compensation 

tonnage for coals and that given for other merchandises ; 

or, if there is, it lies upon the other side to shew it : be^ 

cause, according to the decision in Rex v. The Oxford 

Canal Company, the compensation tonnage in this case is 

divisible among the parishes used by the Grand Junction 

Canal Company in earning that tonnage. The Grand 

Junction Canal Company, upon the supposition that they 

might have occasion to use the Oxford Canal, gave the 

Oxford Canal Company a compensation for that use in the 

shape of a toll of 2s. 9d, on coals, and 4s, 4d. on other 

merchandises* That supposition has been realized, the 

Grand Junction Canal Company have used that part of the 

Oxford Canal which lies in the parish of FoleshiU, for the 

passage of coals out of the Coventry Canal from Longford 

to Braunston. It follows that the Oxford Canal Company 

are ratable for such proportion as their land lying in the 

parish of FoleshiU bears to the entire distance. The ques- 

lion of ratability being thus disposed o^ the only remaining 

question is, what deductions from the gross amount of the 

toUa are to be made in favour of the Oxford Canal Comr 

pany. The principle upon which that question must be 

(») D. & R; 06r 4 B. & C. 74. 


1829. decided^ is this, that the rent is the criterion of the value of 

f^^^^^^^ the occupation of the land ; Rex v. The Trustees of the 

V. Duke o/Bridgewaier{a). It was there decided, that the 

Canal* Proprietors of a canal were ratable in respect of their occu- 

CoMPANir. pation of land, upon the sum for which the land would let, 

and not upon the net produce of the land. Here, infixing 

the rate, a deduction of 20/. per cent, has been made, " as 

the reasonable profit of a supposed lessee,'^ and the residue 

of the tolls has been rated as the amount of annual rent 

which a tenant would pay. \_Parke, J. The poor rate 

certainly ought to be deducted, for if a tenant pays the 

poor rate be will pay so much less rent to his landlord*] 

Upon that principle, undoubtedly, it does seem just that 

the poor rate should be deducted. 

Hill, contri. It is not intended to dispute the ratability 
of the Oxford Canal Company, so far as respects the first 
three items mentioned in the rate; but it is confidently 
submitted that they are not ratable in respect of the com- 
pensation tonnage for coals mentioned in the fourth item. 
The term " compensation tonnage'* implies that such ton- 
nage was given in lieu of something given up. But the 
Oxford Canal Company gave up nothing for which they 
were ratable; therefore, they are not ratable for the com- 
pensation. The Coventry Canal was in work before the 
Oxford Canal was made. The Oxford Canal Company 
take the tonnage mentioned in the third item of the rate. 
The Coventry Canal Company take a tonnage for coals on 
a certain part of the Oxford Canal, covering the whole of 
the parish of Foleshill. Therefore, when the Grand Junc- 
tion Canal Act was passed, the Oxford Canal Company 
had no tonnage for coals passing through the parish of 
Foleshill. IParke, J. Surely under the act of 33 Geo. 3, 
the canal in Foleshill may be used for the purpose of carry- 
ing coals.] Not so as to afford a profit to the Oxford 

(«) AfUe, iv. 143; 9 B. & C. 68. 


Canal Company, and^ therefore, not so as to render them i829. 

ratable. T Parke. J. They received the compensation ton- ^"^^-^^^ 
> ^ .^ . . u . . 1^ The Kino 

nage as an mderonincation agamst the injury they were v, 

supposed likely to sustain by means of the formation of the Oxford 
Grand Junction Canal.] The Coventry Canal Company Company. 
bave still what they originally had, the mileage tonnage 
upon coals passing through the parish of Foleshill. If 
that which has been called compensation tonnage is to be 
considered as an indemnification against the general injury 
to the Oxford Canal, it ought to have been given in the 
proportion which the length of that part of the canal that 
is 10 the parish of Foleshill bears, not to the length of that 
portion of the canal which lies between the parish where it 
joins the Coventry Canal and Braunston, but to the whole 
line of the canal. When the Grand Junction Canal Act 
passed^ the mileage was Id. per ton for coals^ and \j^d, 
for other goods. The compensation tonnage of 2^.9^. and 
4m. 4d. was evidently computed with reference to the Id. 
and IJcf. per mile. The mileage for coals at Id. for S4| 
miles would be Qs. 10^. But the Coventry Canal Com- 
pany was then entitled to the mileage over 2 miles. De- 
ducting then ^d. from the £«. lO^d., and giving the party 
to be indemnified the benefit of the fraction of (he compen- 
sation tonnage for coals would be reasonably fixed at2«.9d. 
The compensation tonnage therefore proceeds upon the 
principle that the Oxford Canal Company had no tonnage 
over these two miles ; and the legislature has not made the 
public pay double tonnage in the parish of Foleshill, which 
it would bave done if the portion of the canal which is in 
that parish bad been considered the meritorious cause of 
earning a portion of the compensation tonnage. Coals 
now pay and always did pay to the Coventry Canal Com- 
pany mileage for that part of the canal which is in Foleshill, 
and if the 2s. 9d. a ton relates to that portion of the canal^ 
coals would in Foleshill pay double tonnage In order to 
make a canal ratable, there must be not only a user of it in 
the parish, but a profitable user. Here, there was no pro- 


fitaUe user of the canal by the Oxford Canal Company ill 
xJJ^'k^o respect of the carriage of coals in the parish of FoleshiU. 
V. The only remaining question is, what deductions ought to 

Canal ^^ made; in other words^ what proportion of the total 
Company, amount of tolls received ought to be considered as consti-*- 
luting the sum for which that part of the canal which lies 
within the parish of Foleshill would let to a tenant. As 
there has never in fact been any tenant, but the canal has 
remained in the hands of the proprietors, who have col-* 
lected the tolls themselves, it 'is not very easy to ascertain 
that amount with precision. It is, however, admitted, sup- 
posing the canal to be let, that the tenant ought to have a 
profit of 20/. per cent. That must be taken to mean a net 
profits a profit resulting after deducting all payments made 
in respect of the canal: therefore, the poor rate, the ex* 
pense of collecting the tolls, and the expense of annual 
repairs, ought to be deducted from the total amount of 
tolls received. Now the annual repairs of that part of the 
canal which lies in the. parish of Foleshill amount to 20/. ; 
and the annual repairs of the whole line of the canal 
amount to 4000/.: there may be a question, therefore, 
whether the sum to be deducted should be such a propor<« 
tion of the total amount of repairs as the length of canal in 
the parish of Foleshill bears to the whole line of the canal, 
or only the amount of repairs incurred in that part of the 
canal which lies in the parish of Foleshill. {^Bayletf, J. I 
feel no doubt upon that question. The rate must be in 
proportion to the value of the land in the parish where the 
rate is made ; therefore all expenses incurred in repairing 
that part of the canal in that parish must be deducted.] 
The expense of supplying water for the canal must also 
be deducted. It is analogous to the expense of supplying 
manure for the cultivation of land. The real value of land 
is its value after deducting the expenses of cultivation* 
Without a supply of water the canal could never produce 
9ny profit at all. [Bayley, J. No doubt there must be a 
deduction in that respect. The sessions must compute the. 


({ttanlum. We can only lay down the principle. We never 1699. 
compute the quantum, except where the sessions tells us rpTTR^^ 
the principle upon which they have calculated the quan<^ o. 

tttiD, and their calculation is evidently erroneous.] The Can^al 
case finds that the works by which that part of the canal Company. 
which lies in the parish of Foleshill is supplied with water» 
supply the canal for forty miles. The true principle, there* 
fore, will be to fis the quantum in the proportion which the 
part of the canal situate in the parish of Foleshill bears to 
forty miles. 

BilYLBY, J., after conferring with the other judges. — The 
principle which we lay down is this: — ^The sessions must 
laake. an allowance for the proper proportion of the expense 
of supplying water; and they must make allowance for the 
poor rate, the expense of annual repairs^ and the expense 
of collecting the tolls. The only, question for our consi- 
deration is, whetlier any part of the compensation tonnage 
can be regarded as having been earned in the parish of 
Foleshill. With reference to that question we shall take 
time to consider of our judgment. 

Cur. adv. vuli. . 

BayleYi J. — The several questions which were argued 

on both sides, in this case, were disposed of in the course 

of the argument, except that arising upon the fourth item 

of charge on the company mentioned in the special case. 

It was contended that the company were not ratable in 

respect of a proportion of the compensaUon tonnage for 

coik passing along the portion of the Oxford Canal lying 

IB the parish of Foleshill, from the Coventry Canal into 

the Grand Junction Canal, because it was said that the 

tonnage on coals was a compensation to the company for 

tbe injury done by the construction of the Grand Junction 

Canal, pursuant to the S3 Geo. 3, c. 80, to their former coal 

tonnage; and that as the company had, before the4>assing 

of that act« no coal tonnage in the parish of Foleshili^ no 

The Kino P®*^* ^^ ^^^ compensation tonnage could be considered as 

V. earned in that parish. It was further urged that the new 

Canal tonnage dues were given by that act instead of the old dues, 

Company. ^^^ must be considered as standing, with respect to their 
ratability, in the same situation. Upon reference, however, 
to the Grand Junction Canal Act, it would seem that the 
new coal tonnage is not given as a compensation for the 
injury done to the company, in respect of the old coal ton- 
nage, specificallj/. The recital shews that it was given 
because it was apprehended that the intended canal would 
be injurious to the Oxford Canal generally, and that certain 
compensations ought to be made for that general injuiy; 
and the legislature thought that an indemnification would 
be given by certain new dues upon coals and other goods 
carried to or from the intended canal by means of the 
Oxford Canal, without regard to the distance they might 
be carried on the latter. And these new dues do not 
appear to be in addition to the old dues, but the public are 
to pay one class of dues only ; and this seems to be the 
meaning of the introductory words of the clause, making 
them payable instead of the former tolls. The Grand 
Junction Canal would probably benefit the Oxford Canal 
in that part of it which formed the line of communication 
between that and the Coventi7 Canal, namely, from Long- 
ford to Braunston, and it would probably be in other parts 
where they to a certain degree were parallel, namely, from 
Napton to Oxford, that the injury would occur: and the 
intention probably was to recompence the injury in one 
part by compensation in another. 

The question, however, is, not for what injury the right 
to receive the new tonnage dues is given as a compensation ; 
or, in other words, for what reason the legislature have 
given that right to the Oxford Canal Company ; but, what 
is the legal liability of the company in respect of these 
dues, when received by them, to contribute to the poor 
rate. The Company are. ratable in each parish for the net 


annHal profit of the portion of the canal lying in that parish ; 
in other words, for what the canal earns in each parish; 
and the tonnage daes are paid by the owners of goods^br 
pasmg along the canal', and are received by the company 
/or the tite of the canals though the reason of their being 
enabled by the legislature to receive them was, that their 
canal was likely to be injured by the new navigation. It 
was upon this ground that these dues were received for the 
ase of the canal, and were -earned by the canal, that the 
company were held ratable in respect of them in Rex v. 
The Oxford Canal Company (a). For the passage of coals, 
therefore, along the part of the canal lying in tbe parish of 
Foieshill, some portion of the new dues is received by the 
company, and in respect of that portion the rate is proper. 
It is true that the consequence of this will be, that for 
coals passing along that part of the canal lying within two 
miles from the junction with the Coventry Canal, the com- 
pany will receive more dues, and therefore be ratable for 
more, than for those passing along other parts of the canal; 
because they will receive for such coals the proportion of 
compensation dues above mentioned directly, and indirectly 
a part of the tonnage dues on other goods on the first three 
miles and a quarter of the Coventry Canal, for which it is 
admitted by their counsel that they were properly rated 
in the rate in question. But this consequence can make 
no difference in the construction of the act of parliament, 
which makes the dues payable by tbe public to the com- 
fany for passing along their canal, so that those dues consti- 
tute a part of the profits of that portion of the canal along 
which they pass. 

The canal earns no part of the original tonnage upon 

coals carried along the two miles in the parish of Foieshill 

into the Coventry Canal, because it receives its equivalent 

by means of the tonnage upon other goods for the first 

Arte miles and a half upon the Coventry Canal ; but those 



The King 


Com PA NX,. 

vol.. V. 

(a) 6D. &R.86; 4B.&C. 74. 


The King 




two miles contribute to earn the compensation tonnage^ and 
for that there is no equivalent. 

. The rate is therefore to be confirmed in this respect; 
but the case must be referred back to the sessions to make 
the several deductions to which the company were held. 
upon the argument, to be entitled. 

Rule accordingly. 

The breach of 
inere revenue 
which tend to 
insure the due 

Sayment of 
uties imposed 
upon the ma- 
nufacture of 
an exciseable 
article, does 
not render the 
tmde itself ille- 
gal, so as to in- 
capacitate the 
from recover- 
ing the price 
of such article, 
or from suing 
upon a gua- 
rantee given 
for the due 

Brown and others v, C. Duncan. 

Assumpsit on the following guarantee given by the 
defendant to the plaintiffs, Messrs Brown & Co. : — 

" 7 January, 1826. Messrs. Brown & Co. I hereby 
undertake to guarantee the due payment of all sums of 
money which Mr. Alexander Glennie may become indebted 
to you as your agent in the sale of malt whiskey, and for 
which Mr. Glennie shall not duly account for or pay and 
discharge. Peter Duncan** 

At the trial before Lord Tenterden, C. J. at the sittings 
at Guildhall after last Trinity term, it was proved, that 
after the guarantee Glennie became indebted to the plaintiffs 
within the terms of the guarantee in 2300/. On the part 
of the defendant it was shewn, that Clerk, one of the plain- 
tiffs, carried on business at Aberdeen as a retailer of 
spirits, within two miles of the plaintiffs' distillery, and 
that his name was not inserted in the licences taken out 
for the distillery under 6 Geo. 4, c. 81, sect. 7 (a). It was 
contended, that these circumstances rendered the joint 
trading of the five plaintiffs illegal under that statute and 

(fl) " That in every licence lo be 
taken out, under or by authority of 
this act, shall be contained and 
set forth the purpose, trade, or bu- 
siness, for which such licence is 
l^nted, and the true name and 
place of abode of the person or 

persons taking out the same, and 
the true date or time of granHof; 
such licence, and (except in the 
case of auctioneers) the place at 
which the trade or business for 
which such licence is granted shall 
be carried on." 


under 4 Geo. 4, c.94, sect. IS 1 (a), and sect.. 132(6), aiid that 
the plaintiffs were thereby disqualified from suing for the 
price of ^irits distilled by them, and from enforcing a 
guarantee given in respect of sales of such spirits. The 
learned judge directed a verdict for the plaintiffs, giving 
leave for the defendant to move to enter a nonsuit. 



F. Pollock now moved accordingly. Clerk could not be 

entitled to 8ue« even if the omission of his name in the 

licences had arisen merely from negligence; but here the 

omission of Clerk*s name in the licence was for a fraudulent 

purpose; and the Court will not extend the same indu!^ 

gence to fraud as to errors. If Clerk had been let in as a 

partner without the knowledge of the defendant, the dcr 

fendant would have contracted no liability to him. He 

would have a right to say, I was dealing with Brown 8c Co., 

not as they chuse to arrange amongst themselves, but as 

they give out to the world. [Lord lenUrden, C,J, In 

Johnson V. Hudson (c), it was held that the mere breach of 

a revenue regulation, protected by a penalty, was no answer 

to an action.] In Cannon v. Brt^ce ((2), 'the distinction 

between malum prohibitum and malum in Se was expressly 

overruled. In Bensley v. Bignold (e), a printer, who had 

(a) ** That ifany distiller licensed 
wider this act shall at any time, 
doriiig the continuance of sach 
Koeooe, be directly or indirectly 
oonceroed or interested in the sale 
of any spirituous liquors whatever 
by retail, or in carrying on the 
bosineas or trade of a retailer of 
any spirituous liquors whatever, 
wtAh ^stiller, in each and every 
such case, shall foHeit the sum of 


(6) ** That no distiller licensed 
ander this act shall b« directly or 
indireclly concerned or interested 
in carrying on the trade of a whole- 

sale dealer in spirits, or be con- 
cerned in trade with any whole* 
sale dealer in spirits at any place 
within the distance of two miles 
from the distillery of such distiller; 
and if any such distiller shall be 
directly or indirectly concerned or 
interested in the trade or business 
of a dealer in spirits at any place 
vrithin such distance of such dis- 
tillery, then, and in every such 
case, such distiller shall forfeit the 

(c) 11 East, 180. 

(rf) 3 B. & A. 179. 

\e) 5 B, & A. 335* 
I 2 


1889. not affixed his name, was not permitted to recover for his 
labour and materials. [Parke, J. Your argument goes to 
shew that the plaintiffs cannot sue for any purpose.] It 
was so held, in Bensley v. BignoM. [Lord Tenierden, C.J. 
There the act of printing was illegal. Here the distilling 
was illegal, but not the sale.] The goods might have been 
seized in transitu if it had been known that five persons 
were interested in the distillery. If Caiman v. Sryce and 
Bensley v. Bignold are law, this action cannot be supported. 
In Cannon v. Bryce it was held that the plaintiff couM not 
recover, because he knew that the money which he lent 
was intended to be applied in paying stock-jobbing diffe- 
rences, which the law had said should not be paid. la 
that case, it was said by one of the judges, that the only 
way to make parties obey the law is to make it their interest 
not to violate it. In Law v. Hodson (a), a brick-maket 
was not allowed to recover the price of bricks sold, because 
they were not of the statutable size. [Parke, J. Here the 
provision is not for the protection of purchasers, -as in the 
case of brick-making.] The 4 Geo. 4, c. 94, 8. 131, ini- 
poses a penalty on a licensed distiller carrying on the trade 
of a retailer. A party is not at liberty to pay the penalty 
and do the act. The IS^d sect, is however clear of any 
difficulty, that section expressly prohibiting distillers from 
being concerned or interested in the trade of a wholesale 
dealer in spirits within two miles distance from the distil* 
lery. The 6 Geo. 4, c. 81, s. 7, requires the time, name 
and place of abode of the distiller to be mentioned in the 
licence, the name having been required by the previous 
statute 4 Geo, 4, c. 94, s. 7* After an experience of 
two years, the legislature found that requiring the name 
only was not sufficient. These spirits were seizable any 
where. They might have been followed to the Port of 
London. [Lord Tenterden, C. J. Is there any clause to 
that effect, or is that merely your own inference ?] It is 
understood that they are clearly seizable. [Lord Tenier- 

(a) 11 East, 300. And see WUkinsm v. Loudonsackj 3 M. Sc S. 117. 

MlCilA£Ll<A$ TERM, X GEO. IV. 

^,C. J. You object that the dormant partner could not 
m.] That might be contended, but it is unnecessary to 
go 50 far. A dormant partner need not be joined as a co- 
pluQtiS^ Lloyd v. Archbowh (a). Clerk bad no property in 
tbeae goods. By reason of the illegality of the transaction, 
he could not huve fUed a bill against his partners to account 
for the profits of the trade. 

Cur. adv. vult. 






LordTENTERDENy C. J. uow delivered the judgment 
of the Court, after stating the facts of the case and refer- 
ring to the statutes. It was contended at the trial, that 
Clerk having acted in violation of these statutes, it was 
iacompetent to him to sue for the price of the spirits 
ill^;ally distilled, and that, therefore, the present defendant, 
who has guaranteed the price, could not be sued. But we 
thiofc that this objection cannot be supported. The acts in 
qoestion contain no clause preventing the carrying on of the 
trade of a distiller by persons who have not complied with 
the regulations prescribed for the security of the revenue. 
Hodgson V. Yemple(J>) was a very sfrong case. The goods 
were sold with a knowledge on the part of the vendor that 
the vendee filled the incompatible characters of rectifier and 
retailer, aiid they were delivered at a place where the 
vendee carried on business, not in his own name, but in 
the name of another person, which was contended to be a 
clear violation of the law. In Johnson v. Hudson (c), the 
vendors recovered the price of tobacco which they had sold 
without being licensed, on the ground that this was not a 
fraiid upon the revenue, but merely the breach of a fiscal 
regatation, protected by a specific penalty. The present 

(«) 9 Taont. 324. And see 
Mma v. Giikti, lb. SS5, n.; 
Xiuw V. Delacmtr^ 1 M. & S. 249; 
Msttkeam, ex parte, 3 Ves. & B. 
125; Gardiner v. DavU, 2 C. & P. 
^9. It appearB tp be in the option 

of the plaintifis to sue with or 
without joining the dormant part- 
ner. Skinner and others v. Siockt, 
4B.& A.437. 

(b) 5 Taunt. 181. 

(c) li East, 180. 







case is very different from those which turn upon acts of 
parliament having for their object the protection of the 
public, as the acts against stock-jobbing, and those against 
usury, or against the fraudulent making of bricks below a 
certain size; we are, therefore, of opinion, that the plaintiffs 
are entitled to recover, and the defendant will take no rule. 

Rule refused (a), 
(d) Antl see Little v. PooUy 9 B. & C. 192. 

Where a party 
suing for a 
malicious pi-o- 
secution, had 
obtained a 
copy of the 
indictment by 
virtue of the 
general 8 fiat, 
granted under 
a mis-state- 
ment as to the 
view enter- 
tained by the 
judge before 
whom the 
was tried, the 
Court refused 
to stay the 
proceedings or 
to prevent the 
plaintiff from 
using on the 
trial the copy 
so obtained. 

Semble, that 
the indictee is 
entitled, as of 
right, to a 
copy of the 
record of the 
acquittal (6). 

Browne v. Gumming and others. 

XHE plaintiff, a bankrupt, was indicted for concealing the 
sum of 24/* 15s. At the trial before Burroughs J., at the 
Bridgewater assizes, 1827, the plaintiff was acquitted; upon 
which his counsel, Bompas, Serjt., applied to the learned 
judge for a copy of the indictment. This his lordship 
refused to grant. Upon a representation made to the 
attorney-general that the learned judge had changed his 
mind, and would now grant the application if he had power 
to do so, the attorney-general (c) gave his fiat for the grant- 
ing of a copy; but upon the learned judge's stating that 
his views had been misrepresented, a rule was obtained, 
calling upon the plaintiff to shew cause why he should not 
be restrained from using such copy of the indictment. 

C F. Williams and Bompas, Serjt., now shewed cause. 
The learned judge had no power to withold from the 
plaintiff a copy of the indictment. Prasf. 3d Coke Rep. SI. 
1 Mann. & Ryl. 279, n. {a). By the Parliament Roll there 
vouched, the right of all persons to free access to records 
in which they are interested is fully recognized. The first 
restriction upon this right was made by an order of some 
of the judges at the Old Bailey, immediately after the 

{b) Et vide ante, i. 279, («). 

(c) Sir Cfiarlei WethtrelL 


Restoration. Here the learned judge thought, that under 
the seTentb reeolution he had no power to make an order 
lor a copy of the indictment. In Jordan v. Lewis {a\ the 
pliintiff offered in evidence the copy of an indictment which 
had been granted to his co-indictee only; and upon its 
bfitig objected, under the Old Bailey order, that a copy 
could not be read, Lte, C. J. 6aid, that he could not refute 
to let the plaintiff read it, and tlie Court refused to set 
aside the ▼erdict obtained by the plaintiff on this evidence. 
The same point was decided in the late case of Caddy v. 
Bari(ati;(6), where the Court refused to entertain the ques- 
tion, as to tbe alleged fraudulent manner in which the copy 
bad been obtained. It is true that Foster, J. says, that the 
statute 46 Edw, 3 relates to those records in which the 
subject may be interested, as matters of evidence upon 
questions of private right; and he cites what passed at 
Lord Preston^s trial, which however does not support the 
distinction taken. But supposing the copy to have been 
irregularly obtained, that circumstance would only furnish 
the ground for an application to the discretion of the Court. 
In Rex V. Brangan (c), the prisoner being acquitted upon 
an indictment which appeared to have beeu brought merely 
for the purposes of vexation and oppression, his counsel 
applied to the Court for a copy of the indictment, IfiUes, 
C. J. acknowledged that the prosecution bore the strongest 
marks of being unfounded and malicious, but refused the 
application, because it was not necessary that he should 
grant it; declaring, that by the laws of this realm, every 
prisoner, upon his acquittal, had an undoubted right and 
title to a copy of the record of such acquittal, for every use 
they might think fit to make of it; and that after a demand 
of such copy had been made, the proper officer might be 
punished for refusing to make it out. 



Scarlett, A. G. contrA. The defendants are entitled to 
have the rule made absolute upon a very narrow ground. 

(«) S Stra. 112?. {b) Ante, i. 275. (f) 1 Leach, C. C. 3?. 




The fiat was obtained under a misapprehension as to the 
view taken of the case by the learned judge who tried the 
cause. Upon that mistake being discovered, the plaintiff 
ought to have gone again before the attorney-general, and 
have discussed the merits of the application. The plaintiff 
has received a copy of the indictment upon a representation 
which appears at least to be founded on mistake. If, as 
contended on behalf of the plaintifi^i he has a right to have 
a copy of the indictmenti this rule will not prevent him. 

Lord Tenterden, C. J. — Upon the whole we think 
the mistake or misapprehension not to be of such a nature 
as to justify the interference of the Court. 

Rule discharged. 

Where in tres- 
pass the de- 
fendant justi- 
fies under 
mesne process, 
and the plain- 
tiff replies a 
detention after 
a bail-bond 
given, an ac- 
tual arrest 
must be prov- 
ed; proof of 
the execution 
of the bail- 
bond, coupled 
with the ad- 
mission of the 
trespass in the 
special plea, 
is not suffi- 

Reece V. Griffiths and others. 

XHIS was an action of trespass and false imprisonment 
brought against the sheriff of Herefordshire! bis under- 
sheriff, and bailiff. The defendants pleaded, first, not guilty; 
secondly, a justification under a latitat against the plaintiff. 
Replication, by way of new assignment, that the sheriff 
accepted a bail-bond from the plaintiffs, which bail-bond 
he kept in his possession until and at the time of the tres- 
passes newly assigned. The defendants pleaded not guilty 
to the new assignment 

At the trial before Faughan, B. at the last Hereford 
assizes (a), the learned judge held that the plaintiff was bound 
to produce and to prove the execution of the bail-bond; 
upon which the plaintiff called the attesting witness^ Moss, 
a sheriff's officer. Upon his cross-examination, Moss stated 
that the attorney for the now plaintiff came to him and 
desired, that if he knew of any writ against Reece be would 

(a) Counsel for the plaintiff, Tdfourd; for the defendant, €}ampbclL 



ialorm ham of iv^od be would put in bail. Upon tbe latitat 

in (|ue6tipn. coming to tbe sheriff's office^ Reece was not ^rT^ 

actuaUjarre^tedy but he executed a bail-bond. The witness ^ v, 

swore that he did not take the bail-bond absolutely^ but 

subject to ai^proyal upon inqifiring into the circumstances 

of the bail. Upon this it was contended by tbe plaintiff 

that the . replication i\ad Jl^een .piade ,Qut. The learned 

judge. w9s,«}}owf^yer^ of a different. opipiqn^ and directed, it 


^Afffntrd now mov^d to set aside. The fir^t arrest is 
9iim9^ on the r^cpr<4. Jt is also, admitted. by the execu- 
tion of the bail-bond. 

Lord Tbntebden, C.J..— It |ias jat^ly be^p d^c^ified in 
this CpMrt(a)j that .merf^ly ^ij^ring into ^.b^i^bond dpes 
qot cQi|9(i^^e ap .^rrest Qi)e ^rrest is fi^tfnitted .pfk ,the 
recQrd; t»ut uqI^q^ .the plfijntiff proyf^ two arre§^ (^) be 
V48 QQt Qn),r<^<;pvQr, apd .that.hp,|iP8 f^M in.^oin^. 

S^le refpsed (p), 

(a) Berry v. AtUmuonj gent. 6 states a second arrest after the nc- 

B.fcC. 598; S C. & P.503. And ceptance of the bail-bond. 

see Bridgeti v. Cqyn^, ante, i. (r) In this case it would appear 

2U. that t^ej^lai^^ff ai^sfhaY^fdiled 

(6) The plea confesses one arrest under the general issue, 
under the latitat. Tbe replication 

Williams v. 

Assumpsit on a promissory note for 375/., drawn by In an action 

tbe defendant, payable to the order of fVade, and by Wade ^ory nm^S" 

indorsed to the plaintiff. At the trial before Lord Tenterden, declaration 

C. J., at the sittings at Guildhpll after last Trinity term, the Sainti/before 

plaintiff', who was a pawnbroker, rested his case upon proof "« ^came the 
,. ^, iri- holder, is evi- 

ofthedefendantssiguatureofthe note aud of the indorsement, denceto inva- 
lidate the note. 

<;ab£s in the king^s bench, 

On the part of the defendant it was shewn that the note 
in question had been given in substitution for a former 
note given upon a gaming transaction. At the time the 
former note became due it was in the hands of one 
ChristUf and before the plaintiff had any thing to do with 
the substituted note, in a conversation between the plain- 
tiff and the witness, the plaintiff stated the consideration 
for the drawing of the former note. It was objected, on 
the part of the plaintiff, that this evidence was inadmissiblet 
inasmuch as the plaintiff was a stranger to the note declared 
on at the time of the supposed admission. The learned 
judge, however, received the evidence, and the defendant 
obtained a verdict, which 

Gumey now moved to set aside. The ground upon 
which the unsworn declarations of parties have been re- 
ceived in evidence to defeat an action upon a bill of exchange, 
is, that the declarations have been against the interest of 
the party making them. Here the plaintiff, at the time of 
the alleged conversation, had no interest in the transaction, 
and was under no inducement to speak with accuracy. 
No relation existed between the plaintiff and the defendant 
until this note was indorsed over. 

Lord Tenterdbn, C. J. — ^The declaration was made 
prior to the plaintiff's receiving the note; and on that 
ground I thought it admissible. 

The other Judges concurred. 

Rule refused. 


CoLLEY V. Hardy. 

In August last the defendant's goods were seized by the Where the 

sheriff of Middlesex, under a^.yb., founded on a judgment nedected his 

by confession. On the 28th of October a commission ^^y» ^^^.,, 
1 , , ... rr. • Court Will not 

of bankruptcy issued agamst the defendant. The assignees enlarge the 

gave notice of the bankruptcy to the sheriff, and claimed JJj^Vrit'^aU™ 

the goods. On the other hand, the plaintiffs had, before thoagh the 

ihe bankruptcy, repeatedly urged the officer to sell. The creStor'and 

sheriff having been unable to obtain an undertaking from the assignees 
., t^ . J , , , , . of the defend- 

either party, obtained a rule to shew cause why the time ant refuse to 

fof making his return should not be enlarged. indemnify. 

Campbell now shewed cause. The officer not having 
proceeded to sell as requested, has placed the plaintiff in a 
dangerous position^ under the 108th section of the bank* 
nipt act. The difficulty in which the sheriff was placed 
vises entirely from his own neglect of duty. The Court 
will therefore not interfere to assist him. 

Halt, in support of the rule. The sheriff requires 
nothing but the ordinary protection which the Courts give 
where both parties refuse to indemnify. The commission 
did not issue till October, but it is highly probable that an 
earlier act of bankruptcy will be set up, the validity of 
which the sheriff ought not to be drawn in to contest. 

Lord Tenterden, C. J. — There is no reason to sup- 
pose that a prior act of bankruptcy could be established* 
It was the duty of the sheriff to sell. The officer, who for 
this purpose is the sheriff, was required to sell, the plain- 
tiff having an obvious interest in an early sale, his judgment 
being founded upon a cognovit, and therefore within the 
108th section of 6 Geo. 4, c. l6. The sheriff having 
neglected his duty is not entitled to the assistance of the 

Court (a). 

Rule discharged. 

(a) Vide Noiletf v. Buck^ ante, ii. 68; S. C. 8 B. & C. 160. 


\^,.^ Wood r. Smith (a). 

«I believe the ASSUMPSIT. The declaration stated, that in consider- 
sound, but I ation the plaintiff would bu^ a mare of the defendant, the 
will not war- defendant undertook and faithfully promised the plaiotiff 
tUe vendee that the mare was sound to the best of his knowledge, 
i" Msumwh B«'«acl^> ^^^^ •t *e time of the promise th^ mar^ was 
as upon a war- unsound, as the defendant then and there well knew* At 
mare is sound ^^^ ^"^' before Lord Tenterdeti, C, J. at the sittings at 

to the best of Westminster after last Trinity term, it appeared that when . 
the vendors i -•«•,, • / •• » T «• i 

knowledge. the plamtiff sold tbe^ mare, he said, ''I believe th^ mare 'to. 

be sound, but I will not warrant her." The unsQUtwhiesjS. 

being proved, it was objected, on the part of the defendant, 

that the «otioD should have been in toi^t upon the deceit. 

The learned judge w«s of opinion :that the represehtation 

made at the lime of Side was part of the contract, and 

directed a verdict for the plaintiff, but gave the defendant 

Iruve' to imove to enter ^ nonsuit. 

Gumey now moved accordingly. The contract is m'ls- 
described in the declaration, which does not notice the 
qutflifying words, **but I will not warrant her/' This is a 
case in *wbich it w*as peculiarly proper to bring tort, and 
Dc^ assumpsit, Wiliiamsonv. Allison, {5) Dobellv, Stevens (c), 

LordTBKTBrBDEH,'e. J. — ^^No doubt the action might 
have been in tort. 

Parke, J. — The words omitted do not qualify the 

Batley, J. — The defenclant means to say I will not 
give a general warranty. 

Rule refused. 

(a) S, C. at Kibi Prias, 4 Carr. (6) 2 East, 446. 

& Payne, 45. (c) 5 D».& R.400; 3 B.&.C.<)<i3. 



SwAYNE V. Ingilby, Bart. ^"^v^^ 

Assumpsit by indorsee for not accepting a bill A plaintiff 
of exchange drawn by Ward, a miner engaged to go ^^^^^ q^ 
to Mexico by a mining company in London, upon formal proof, 
whom the bill was drawn. The plaintiff having failed lieved upon 
iu proving a presentment at the office of the drawees, at payment of 
Pinner's Hall, was nonsuited. Gurney moved in the 
beginning of this term to set aside the nonsuit on payment 
of costs^ upon an affidavit stating that before the bill 
became due the drawees had broken up their original 
establishment at Pinner's Hall, and had removed their busi- 
ness to the office of one Gregson ; and that an application 
for payment had been made at GregstnCs when the bill 
became due. A rule nisi was granted upon payment of 
costs, but it was directed not to go into the new trial paper. 

Denman and Chitty now shewed cause. The plaintiiF is 
not concluded by this nonsuit, and it is contrary to the 
practice of the Court to relieve a plaintiff from costs occa- 
sioned by his own negligence. 

Gumey, contr^. This rule being subject to the payment 
of costs, which will give the defendant the costs of the trial, 
it is better for both parties that the previous costs should 
not be incurred again. 

Lord Tenterden, C. J, — ^Tbe plaintiff must seek his 
remedy by a fresh action. It is a general rule not to grant 
a new trial upon affidavits of the witnesses as to matters of 
fact It would be dangerous to encourage such an appli- 

The other judges concurred. 

Rule discharged. 



v^N-^/ • Dickinson v. Valpy. 

To make a ASSUMPSIT. The declaration stated, that the defend- 
thii^perMuis^ ant and divers other persons, under and by the description of 
«» * ^^"^°^ '* '^^ Corawall and Devonshire Mining Company," by one 
be in fact a Rowland Wilks^ their agent in that behalf, on the 20th day 
partner, or ^f March, J 826, at &c., according to the usage and custom 
bim&elf out to of merchants, made their certain bill of exchange in writing, 
M ^pwita^'r! *^ca"ng date &c., and then and there directed the said bill 
The appro- of exchange to certain persons^ by the name, style, and de- 
shares ia a scription of" The Cornwall and Devonshire Mining Corn- 
mining asso- pany, Lombard Street, London," and thereby, two months 
ciation to a . , 
party at his after the date thereof, required the said last-mentioned 

request, the persons to pay to the order of one Mr. Thotnas Teaeue 300/. 

payment of an "^ ... 

instalment on value received^ as advised; which bill of exchange the said 

litendan^^^^^ drawees, by one John Wood, their agent in that behalf, 

the counting- afterwards, to wit, on &c., at &c., upon sight thereof, ac- 

association cepted, according to the said usage and custom, payable at 

and there iI^q house of certain persons in the said acceptance men- 

signing some ... 

deed (not pro- tioned, to wit, at Sir William Kay, Price, 8c Co., bankers, 

frii^andsub- ^on^^n; that Teague indorsed the bill to the plaintiff; 

sequent at- that the bill was duly shewn and presented for payment, 

general meet- when due, to, and at the house of, the said SirWilliam Kay, 

mgofihe Price, 8lCo., bankers, London, but that the said last-men- 

(his conduct, tioned persons did not, nor did the drawees pay, thereof 

at which he is defendant had notice, whereby defendant became liable 

not allowed to . m • 

shew) do not and promised. The second count described the defendant 

S^be a oart^ alone as drawer. The third count described the defendant 
ner:— as sole drawer, but stated the bill to be directed to the 

who has been' defendant and others. The fourth count stated, that 

induced by 

fraud to enter into a partnership, can set up thai fraud against his liability to a party 

who became a creditor, without knowing J. as a partner, qtuere. 

The directors of a mining association cannot bind the members by accepting a bill of 
exchange, unless they are authorized so to do by the deed or instrument of copartner- 
ship, by the necessity of such a power to the carrying on of the business, by the usage 
of similar establishments, or the express assent of the party sought to be char|E2ed. 
Still less can the directors bind the members by a bill drawn upon the directors hj their 
own servant, such a bill being in effect a promissory note. 


certain persons* under, and by the style* firm* and descrip* 
tioQ of " The Cornwall and Devon Mining Company/' 
drew upon the defendant, who accepted. The fifth count 
described the instrument as a promi38ory note drawn by 
tbe defendant under and by the name and description of 
'*Tbe Cornwall and Devonshire Mining Company/' by 
one Rowland Wilks, the defendant's agent in that behalf (a). 
The declaration also contained the usual money counts. 
Plea, non assumpsit. At the trial before Burroughs J., at 
the Bridgewater assizes* 1827 (6), the following facts ap^ 
peared: — Several persons used to meet at a counting-house 
iu Lombard Street* under the firm of '^ The Cornwall and 
Devonshire Mining Company*" and carried on business to 
a considerable extent. On the 6th of April* 1825* they 
received from the defendant the following letter: — 

'' 6th April* 1825. 6, Brunswick Square. 
" Gentlemen, — I shall feel obliged for 30 shares in the 
Cornwall and Devonshire Mining Company. 

(Signed) ^. J. Valpy:* 

In consequence of this letter a communication was made 
to the defendant. When persons applied for shares, they 
paid tbe money to tbe bankers for the concern* and took 
receipts. In July* 1 825* the defendant brought two bankers' 
receipts to the ofiice of 50/. each* and applied to have them 
exchanged for shares or certificates. He then paid 10/. 
more on each share, and executed a deed. The certificates 
were filled up with the defendant's name* but were never 

(a) Considenng a bill drawn by contract* it woald seem to be* in 

ft partj apon himself as a promis- point of Jaw, a note made by the 

sory note* the instrument seems to doable agency of the clerk who 

be complete as soon as it is drawn, drew the bill, and of the clerk who 

It seems, therefore* to be properly wrote the acceptance. 

described as a note made by the (6) Counsel for the plaintiff* 

agency of the clerk who drew the Wilde, Serjt.* C. F, William, and 

bill, and not as made by the agency Carter; for the defendant, Crow 

o€ the rferk who accepted it. If, der, Meretoether, Seijt., who was 

indeed, tbe acceptance were so with him* being absent at Maid« 

framed as to alter the terms of the stone. 


called for by him, or sent to him. The defendant only 

^ attended at the office or counting-house when he delivered 

'DicxrNdoN ... 

V. in the receipts and signed the deed, and at a meeting of 

^^'^' shareholders in July, 1826. At the special meeting of the 

directors of the company on the l6th of March, 18^, th^ 

following minute and resolution were entered in their books: 

^ It was reported by the mine cashier and accountant that 

a balance of 884/. fis. 2d. remained due to Captain Teagtte, 

for advances made by him to the company, as appears by 

the account submitted to the committee and approved; 

and Captain Teague stated to the committee that he desired 

to receive bills to that amount : — Resolved, that the mine 

cashier and accountant draw bills on the company for the 

amount in favour of Captain Teague, and that the secretary 

be authorised to accept the bills for the directors on behalf 

of the company, and to make them payable at Messrs. Kay, 

Price 8c Co., the London bankers of the company/' Bills, 

for one of which this action was brought, were drawn in 

pursuance of the above resolution. The bill declared upon 

was in the following form : — 

" No. £7. <£300. Redruth, March £0, 1826. 

*' Two months after date pay to the order of Mr4 Thoma$ 
Teague three hundred pounds, value received, as advised. 
'* For The Cornwall and Devonshire Mining Company, 

" Rowland WUks. 
" To The Cornwall and Devonshire Mining 
Company, Lombard Street, London. 

" Accepted, for The Cornwall and Devonshire Mining 
Company, John fVood, Secretary." 

The meeting of the 7th of July, 1826, was the first meet- 
ing of shareholders. The defendant attempted to shew, 
by the cross-examination of the plaintiff's witnesses, that 
the defendant attended this meeting merely for the purpose 
of protesting against his liability as a member of the asso- 
ciation, on account of the fraud in which the scheme had 
been originally concocted; and he proposed to go into 
evidence of such fraud. The learned judge refused to 


permit the cross-examination or to receive the evidence ^^^^- 
tendered^ unless it could be shewn that the plaintiff himself Dickinson 
was privy to the fraud. The jury having found a verdict «• 

for the plaintiff, 

Scarlett, A. G., in the following term, moved for a rule 
to shew cause why a nonsuit should not be entered, or a 
Dew trial had, upon the following grounds : — First, that 
die evidence of the object for which the defendant attended 
the meeting in July, 1826, viz. to disclaim the partnership 
as a fraud, had been improperly stopped. Secondly, that 
the learned judge had ruled, that the fraud in which the 
association naight have been concocted could not be 
;ooe into unless it could be brought home to the plaintiff. 
Thirdly, that this was not such a partnership as would 
eotitJe the parties to bind one another by the drawing of a bill 
of exchange. Fourthly, that the drawing of such a bill was 
proJiibited by the bank act (a). Fifthly, that the instrument 
declared on was not a bill of exchange, nor was it a pro- 
missory note assignable under the statute (6). A rule 
having been granted upon all these points, cause was now 
ihewn by 

C. F. Williams. It is admitted on the part of the plaintiff, 

t&at the defendant's counsel wished to cross-examine the 

plaintiff's witness as to what took place at the meeting in 

July. But that meeting was after the bill in question had 

heen drawn, in fact, after it had become due. It was shewn, 

aad not disputed, that the plaintiff was a bon& fide holder. 

The defendant knew the directors, and took receipts from 

them, thereby admitting that they constituted the execu- 

&ve of the company. [Parker J. It was proved that the 

defendant paid 50/., but it doe9 not appear that he got any 

certificates.^ 1"^^ certificates were made out, but the de- 

/eiidaot never called for them. [Lord Tenterden, C. J» It 

'^ said that the defendant signed the deed, but it is not said 

(«) Sg Sc -40 Geo. 3, c. 28, s. 15. (6) 3 & 4 Anne, c. 9. 

VOL. V. K 




what deed.] The deed was in their hands. [Bayky, J. 
There is no proof of that. Positive assertion leads to no 
result.] There is no suggestion that the defendant could 
not produce the deed. The plaintiff is not fixed with know- 
ledge of any improper proceeding either in the original con- 
coction of this mining speculation, or in the representations 
under which the defendant was induced to become a partner. 
It was not the fault of the directors that the defendant did 
not call for his certificates. The defendant finds that the 
company is in a perilous state, but he has no right, on Uiat 
ground, to look back to the motives of some of the original 
projectors. [Lord Tenterden, C.J. The name of the de- 
fendant is not held out.] There are many great concerns 
in which the names of the individual partners do not appear. 
[Bayhy^ J. But then you make out a partnership aliunde.] 
A partnership deed is not necessary, Alderson v. Clay (a). 
{^Bayley, J. There, probably, the party acted as a part" 
ner.] The defendant has recognized the respectability of 
the directors. 

FoUettj on the same side. Upon the first point, namely, 
that it was not sufficiently proved that the defendant was a 
partner, it is submitted that no greater evidence of that 
fact could be required from the plaintiff, who is a stranger, 
than was actually adduced by him to shew that he was a 
partner, and that he held himself out to the world as a 
partner. [Parker J. Holding himself out to the world as 
•a partner, is only evidence that he so held himself out to 
the plaintiff. It is merely evidence from which a jury may 
infer that credit was given to the defendant.} A jadge 
would not hesitate to direct a jury, that if the defendant so 
held himself out to the world, he so held himself out to the 
plaintiff. The evidence of. the defendant's interference was 
▼ery strong. After attending a meeting, he writes, asking 
for shares. That, it is submitted, is an act done by him 
for the purpose of becoming a member of the association. 
(a) 1 Stark. N. P. C. 406. 


He pays his money and obtains a receipt, expressing that ^^^^' 
it is paid on account of shares. On taking, that receipt to i>ickin9on 
the counting-house he became a member of the association. v* 

Then he attends a meeting and pays a further sum of money. 
How would the matter have stood if this had not been the 
case of a joint stock company ? and there was no evidence 
that it was. Suppose three persons agreeing to work a 
miaei and a fourth applies to them to join them, pays 
money in respect of his share, and attends meetings of the 
coQoem, would not such application, payment and attend- 
ance be sufficient evidence of partnership f Some members 
were there in April, on which occasion the defendant also 
attended. He left the receipts to be exchanged for other 
documents; he paid an additional sum at the countings 
house. All this would, in an ordinary case, have afforded 
ample evidence of a partnership as regarded a stranger. 
It would be impossible for him to go further, and produce 
documents establishing the partnership. No jury could 
hesitate to presume a partnership under such circumstances. 
Then it can make no difference what the object of the 
partnership is; the object here was trading in ore. Vice 
V. Lady Amon (a) does not go to the length relied on by 
the other side. In that case there was no evidence that 
the defendant had gone to the counting-house. [Baylei/y J. 
She had received her certificates, paid her deposit, and 
represented herself as a partner.] The certificates were 
not shewn to have been issued by proper authority, and 
that circumstance was relied on in Lord Tenterden's charge 
to the jury, in which he also says that it does not appear 
chat the defendant's name was registered. Actions for 
goods supplied to mines are of constant occurrence on the 
western circuit, and no evidence is ever given to fix the 
shareholders with an interest in the soil : no such evidence 
cooid be produced. The ordinary course is this: — The 
cost^book of the mine is produced, and it is shewn either 

(a) Ante, i. 113; 1 Mood. Sc M. 96; reported also as to other points 
7 B. & C. 409. 

K 2 




that the defendants attended meetings of the adventurers, 
or that their names are entered in the cost-book. If fur- 
ther evidence of interest was required, the plaintiffs mast 
in every instance fail, the adventurers never taking any 
interest by deed. [Bayley, J. There it is shewn that the 
defendants participate in the profits.] This class of cases 
was referred to merely for the purpose of answering the 
objection, that it is not shewn that the defendant had an 
interest in the soil. Then this case has been likened to 
the farming of an estate, which does not subject the parties 
to the operation of the bankrupt laws. It appears to be 
immaterial to the present question whether adventurers in 
mines are subject to the bankrupt laws or not, but it would 
rather seem that they are so. Edeti, B. L. 4. Crawshay 
V. Maule (a). [Parke, J. All the cases were considered in 
Heane v. Rogers (6), in which case it was held, that where 
a trader purchased materials for brick making, he was liable 
to the bankrupt laws.] But it is not necessary to shew 
that this defendant was liable to the bankrupt laws. 
In Cratoshay v. Mauley Lord Eldon, C. says, " It is 
said that this is only the case of tenancy in common 
of a mine, if so, I think the doctrine with respect to 
land would apply, and not the doctrine with respect 
to trading partnerships; but a very difficult question 
may arise, whether, if the parties, being originally tenants 
in common of a mine, agree to become jointly interested 
in the manufacture of its produce for the purpose of sale, 
they continue mere tenants in common of the mine; still 
more, if not only carrying the produce of their own mine 
to market, they become purchasers of other property of a 
like nature to be manufactured with their own. On such 
a case in bankruptcy it might be a question whether they 
were purchasers for the mere purpose of better bringing to 
market the produce of their own mine, or for the purpose 
also of bringing a distinct subject to market as traders/' 

(a) 1 Swanston, 513. 

{h) Ante, iv. 486; 9 B. «c C 577. 


And in Jeffreys v. Smith (a), his lordship says^ " The case 1829. 
I alluded to was one before Lord Hardwicke in 1737, and 
it probably did not occur to Lord Thurlow, when he 
eipressed his doubt as to the interference of this Court iu 
cases of trespass. Lord Hardwicke, in that case, says, 
' that a colliery is to be considered in the nature of a 
trade (b); and where persons have different interests in it, 
it is to be regarded as a partnership ; and that the difficulty 
of knowing what is to be paid for wages and the expenses 
of management, gives the Court a jurisdiction as. to the 
mesne profits which it would not assume with respect to 
otiier lands. On this ground, and on account of the pecu- 
liarity of this species of produce, the Court gives an injunc* 
tioD apinat trespass, and allows a party to maintain a suit 
for the profits which in other cases it would not do. Here 
there are twenty shares, and if each owner may employ a 
manager and a set of workmen, you destroy the subject 
altogether; it renders it impossible to carry it on. It 
appears to me, therefore, upon general principles, without 
reference to the particular circumstances of any case, that 
where persons are concerned in such an interest in lands as 
a miDing concern is, this Court will appoint a receiver, 
although they are tenants in common of it.' '* 

In Storey v. Lord tVindsor (c), it was held, that a colliery 
was a trade, and that the adventurers were therefore entitled 
to an account in equity. So in Jesus College v. Bloom {d), 
the digging of mines was said to be a sort of trade, entitling 
parties to the same remedy as in other kinds of trading. If 
necessary, therefore, this association might to a certain 
extent be considered as a trading company. [Bayley, J* 
Y'ou do not shew a participation of profits]. There were 
no profits ; but ore was raised by the persons whom the 
defendant met at the counting*house. A resolution was 

(«) J Jac. & W. 298. Sayer v. Pierre, 1 Vez. sen. 332; 

(ft) Vuie Storey v. Jytrd Windsor, Belt's Suppl 127. 
3 Atk. 630, and cases there cited; (c) 2 Atk. 630. 

(d) Ambler, 5i, 56. 


1899. entered into, authorizing the drawing of these bills. 
[Parke, J. It does not appear that the defendant saw the 
book.] If there was enough to fix him as a partner, it will 
be presumed that he had access to the book. [Parker J. 
Supposing the act of drawing this bill to be out of the legal 
scope of the authority of the directors, there must, in ordet 
to charge the defendant, be not only a subsequent know* 
ledge but a subsequent ratification.] The party has the 
opportunity of inspecting the book, and no disclaimer is 
shewn. It would be incidental to such a partnership to 
draw bills. One partner is supposed to be authorized 
to do acts necessary to the carrying on of the trade. It is 
not a necessary consequence of all partnerships, nor wou\d 
such an authority exist, when it would be contrary to the 
original agreement between the parties. [Bay ley, J. Can 
it be necessary for the association to act before all the 
money is received ?] The drawing of bills is as necessary 
in their case as in that of any other trade. [Bay ley ^ J. If 
it be put on the principle of necessity, must you not shew 
that the necessity existed ?] It is not put upon the necessity 
of drawing this particular bill. How is a stranger to know 
whether the necessity exists in the particular case or not. 
It is not necessary that the trading should be such as would 
bring the association within the operation of the bankrupt 
laws, in order to enable it to draw bills of exchange. If the 
trade can be carried on more easily with the power than 
without it, such a power will be presumed. [JBaj^Iey, 3. 
Here it appears there were to be 10,000 shareholders.] 
That circumstance does not appear to affect the question of 
authority. Perring v. Hone (a), was a much weaker case 
than the present. Though it is not mentioned in the report, 
the argument turned upon the evidence of the plaintiffs 
having got rid of their scrip. [Bayley,3. There the plain- 
tiffs affirmed their being members by selling.] Here the 
defendant was a party contributing. [Bajy/ey, J. In 

(a) 4 Bifigli. 2U. 


Ptning y. Hone the plaintiffs were parties to the original 1829. 
undertaking.] In Ellis v. Schm€eck{a), the defendants ^^^^'^ 
purchased the scrip after the company had been formed. v. 

It is stated in the marginal note» that the goods had been Valpt. 
famished after the defendants had become holders of the 
scrip; but from the case itself it appears that that state- 
ment applies only to part of the sum for which the plaintiff 
sued and recovered. [Parke, J. Have you a right to take 
advantage of the meeting in July? You could not be 
entitled to use that fact without allowing the defendant to 
expluB his conduct upon that occasion. Bayley, J. You 
did JO effect use it.] If there was sufficient evidence 
aliuodi, the Court would not grant a new trial merely on 
tkis ground (6). [Parke, J. It is impossible to say 
whether the jury would have come to the same conclusion 
if that evidence had neither been excluded nor explained.] 
If the defendant became a partner by fraud, still« being a 
partner, he was liable. Suppose bankers represent them- 
selves as solvent, when they are certainly otherwise, and by 
such fraudulent representation induce a person to join 
them, that person would still be a partner, and liable to 
any engagements which the firm might afterwards contract, 
unless notice of the fraud is brought home to the plaintiffs; 
and it is immaterial, as far as he is concerned, under what 
circtiixistances the partnership was formed. 

Scarleti, A. G. contrd. One fact has not been adverted 
to, namely, the consideration given by the plaintiff for this 
note. There being fraud in the concoction of the note, it 
lay upon him to shew from whom he took it. [Parke, J. 
That point does not appear to have been made at the trial. 
lArd Tenterden, C. J. You ought to have desired that 
point to be left to the jury if you meant to take that objec- 
tion.] I consider that it makes the point as to the fraud 
stronger, but I pass by that. In order to make the de- 
fendant liable in this action^ he must have held himself out 

(a) S Bingh. 5'i1. Tfynhamv, Tyler^ € Bingh. 561; 

(*; Vid€ S. P, ace. Doe d. Lord 4 M. & P. 377. 


136 CASES IX THE king's BENCH^ 

I8e9. &s a partner, or he must have been a partner. It was ob- 
jected under the bank acts that it was not competent to 
.-.«ww„ ^jjgg^ parties to draw a bill. [Parke, J. There was no 
Valpv. evidence of any custom of otiier companies to draw bills, 
therefore it must be left as a question of law. Lord Ten-' 
terden, C. J. I think there must be an authority to draw 
bills, but it is quite a distinct question whether the directors 
had authority to bind the company by issuing this instru- 
ment. If the execution of the deed was one mode of 
shewing that the defendant was a partner, it lay on the 
plaintiff to produce that evidence.] Without question the 
directors might bind tbemselvesi but if they can bind the 
shareholders by any bills which they may choose to draw, 
such a power would be so full of mischief, yet it was not 
left to the jury. [Lord Tenterden, C. J. My only doubt 
is whether there should be a nonsuit or a new trial.] If the 
law furnishes no proof of authority the plaintiff must be 
nonsuited, unless he produces the proof. It is a great 
deal too much to say that the directors have power to 
bind by accepting bills* It may be competent for them to 
bind shareholders for goods ordered for the mine, whether 
they are general partners or only in respect of the particu- 
lar transaction. Part-owners of ships may bind one another 
for repairs, not by accepting bills. So, joint occupiers 
of land. Greenslade v. Dower (a). In that case, though 
a partnership existed, it was held not to be such a part- 
nership as to entitle, one to bind the other by accepting 
bills. Here the partnership was limited to certain opera- 
tions ; nor was it so conducted as to render it necessaiy 
that any such power should exist. No presumption there- 
fore of authority is raised. 

Lord Tentekdbn, C.J. — Assuming that the defendant 

was shewn to be a partner, and not merely to have done 

acts in contemplation of a partnership, it was not proved 

that he was a member of a company with an authority on the 

{a) 1 M. & R. 640; 7 B. & C. 635. 


part of that company to bind him by drawing a bill. The 
plaintiff should have shewn that the defendant, by deed or 
itherwise, had authorized the directors so to bind the share- 
holders. In the absence of such evidence no authority 
could be presumed, and there was nothing to fix the de- 
fendant with the bill. The plaintiff ought to have been 
paid in money. 

Batley, J. — I am not prepared to say that sufficient was 
made out to charge the defendant as an actual partner, or as 
having held himself out as a partner ; but that would only go 
to a new trial* The learned judge has assumed that that 
was done which amounted to an actual partnership. It 
should be made out affirmatively that it was such a concern 
>u entitled the directors to bind all the members. The only 
4|'iestion for the jury would be, whether in such companies 
suih a power is in constant use, or it is necessary that there 
ahouU be sucb power. There was no evidence on either 
point which would warrant its being left to the jury to find 
whethi r such a power was necessary. No evidence was 
given o." what was done in other companies. I apprehend 
that such a power was not necessary, and that the payments 
should be made in ready money. To hold otherwise would 
be to give the directors an unlimited power to pledge the 
credit of persons who could by no possibility interfere. 

LiTTLEDALEy J. — ^Thcre must either be a nonsuit or a 
new trial. The form of the bill declared on is very un- 
uaoal. It is not a bill drawn by individuals or by persons 
carrying on a particular business. Persons taking such a 
bill had full notice that it was not an ordinary bill. It was 
therefore incumbent on them to ascertain and to prove that 
tbe parties by whom the bill was drawn had authority 
to bind the shareholders. In ordinary cases there is 
an implied authority resulting from the relation of 
partner. That is not the case in a mining company. 
The nature of the association should have been shewn. 



1899. In the case of a farm it is not competent for one 
Dickinson J^^"^ owner to bind his companion by drawing a bill of 
V* exchange. The object of such a partnership is to sell the 

produce of the farm. It is true that in the course of that 
business it may be necessary to buy many things, but that 
does not make it necessary that bills should be drawn. 
Here, if the nature of this business is in fact such as to 
render it necessary that such a bill should be drawn, it was 
for the plaintiff to shew it. A man may be secretary to 
such an association without having any power to bind the 
shareholders by drawing bills even with the sanction of the 
directors. It was not shewn that it was necessary that 
there should be a power to draw bills, still less to draw 
bills in this particular form. In order to prove that such a 
power was necessary in the present case, it was incumbent 
on the plaintiff to shew the nature of the concern carried 
on by the defendants, or by others in the same business. 
The instrument declared on is, in effect, a promissory note; 
and it would require a great deal of evidence to make out 
that the shareholders would be bound by a promissory note 
if they would be bound by a bill. If this point was reserved 
there must be a nonsuit, if not, a new trial. 

Parke, J.*-I am clearly of opinion that there must be 
a nonsuit if this point was reserved ; if not, there must be 
a new trial, upon more grounds than one. This bill not 
being accepted by the defendant personally, the plaintiff 
was bound to shew that the acceptance was given by his 
authority, or that he has ratified it, notwithstanding the 
plaintiff may be a holder for a valuable consideration. 
Here, there was no express authority, and no ratification. 
But it was contended that an implied authority arose bj 
reason of partnership; and it was said that the defendant 
held himself out as a partner, and that he was in fact a 
partner. If the defendant represented himself to the 
plaintiff as a partner, or held himself out as a partner in such 
a manner as to lead the jury to iufer that the plaintiff gave 


credit to the defendant as a partner, the defendant would 1829. 
be liable. But no such representation appears to have 
been made. Nor was there any evidence that the defend- 
ant was in fact a partner. The facts proved are all consis- 
tent with ao intention to become a partner at 'a subsequent 
period upon certain conditions, until the performance of 
which no partnership would be constituted. Supposing, 
however, that the defendant was a partner, no authority 
appears to arise out of the relation of partner in a mining 
compaoj to draw any more than in that of joint occupiers 
of land to draw bills of exchange, and certainly never to 
draw such a bill as this, which is in substance a promissory 
note. The argument of the plaintiff would go to shew that 
is a mining partnership each partner, by drawing bills and 
passing them into the hands of iudorsers, might pledge the 
liability of his co-adventurers to any amount. I offer no 
opinion upon the question whether the proposed evidence 
of fraud would have constituted a defence. In contending 
that such evidence would not affect the plaintiff without 
shewing him to be conusant of the fraud, it appears to be 
usumed that he was acting on the belief that the defendant 
was a partner. If the defendant had made a representation 
to that effect, the fraud practised against himself would be 
no answer to this action. But the question here is whether 
an actnaj partnership has been formed as between the parties, 
and whether evidence of fraud is admissible to negative the 
execution of any partnership inter se, a question of con** 
sidenble nicety. 

Rule absolute to enter a nonsuit (a). 
(•) See Bomme v. Freeth, ante, iv. 513 ; 9 B. & C. 633, S. C. 



The King v. Sir Thomas Maryon Wilson, Bart., Lord 
of the Mauor of Hampstead, and William Lyddon, 

18^9. . ^ * \m 

N^-vi^/ his Steward of the said Manor. 

The lord of a A MANDAMUS issued to the lord of the mauor of 

bound to ad- Hampstead and his steward, commanding them to admit 

init the cus- Joseph Wabnsley, the heir at law, according to the custom 

a copyholder of the manor, of Henry Flitcroft, deceased, to the imme* 

there'be'a^siu-- ^*^''^ tenancy in possession of certain estates held of the 

render to the manor (tf) by copy of court roll, of which Flitcroft had 
use of a will, 
and a devise 
by the surren- 
deror, there 
being no claim 
of admittance 
on the part of 
the devisee. 


This expression is some- 
incorrect. The copyholds 
are witliin and parcel of the 
demesnes of the manor; they are 
not held of the manor, but are 
So, although i^u^ manerium. Lands held of 

IV'S^jlT^ the manor are those lands which 
tne return to a . , - , 

mandamus) bavmg been formerly parcel of the 

that the non- manor were severed from it by 
claim of ad- subinfeudation before the passing 
mittance on ^ y^^ ^^^^^ ^f q^j^ Emptoies, in 
the part of the ^^^,. . ^^ ^ ',, 

devisee, is the ^^^ (*» ^« ^^^ ^^^ ^^^^ ^^^ 
result of a con- of a subject), or before the statute 
£)e Pnerogativft Reg^s, in 1SS4(in 
the case of a manor held of the 
crown). These sob-infeoflees be- 
came the freehold tenants of the 

trivance be- 
tween him 
and the cus- 
tomary heir to 
deprive the 

loraofthe fine lord, the barons of his curia baro- 

which would 
be payable 
upon the ad- 
mittance of 
the devisee. 

In the case 
of a devise of 
copyhold sui^ 
rendered to 
the use of the 

num. {Vide post^ 155.) Their 
lands were no longer parcel of 
tl)e manor, but were held of the 
manor, or, to speak with more 
precision, they were held of the 
lord, at of hit manor, ut de manerio. 
The services of these tenants are 
parcel of the manor, and so much 

will, the estate so, that if their services be de- 
descends uDon g^ ^j^ ^r severed from the de- 
the heir, sub- »k k i 

ject to contm- 

mesnes, the manor has no longer a 

legal existence. One of these ser- 
vices, namely, the secta ad curiam 
baronum, is so essentially parcel of 
the manor that it is said that upon 
the number of suitor-freeholders 
being reduced so low that no court 
baron can be held, the estate 
ceases to be a manor in law, and 
is only a manor in repntation. 
By this expression however, nothing 
more seems to be meant than this : 
a court baron is a necessary inci- 
dent to a manor; if, therefore, the 
power of holding a court baron be 
destroyed, the estate, though re- 
taining its manerial character in 
every other respect can no longer 
be legally designated as a manor. 
If, therefore, the lord were to re- 
lease to hb freehold tenants the 
suit of court, the manor would be 
as effectually destroyed or reduced 
to that imperfect state in which it 
receives the rather inappropriate 
name of a manor by reputation, as 
if all the freeholds had escheated, 
or as if the lord had aliened his 
seigniory over these freeholds. 
Where a manor has become an 

gency of being 

devested by the admittance of the devisee. 

No disclaimer by the devisee is therefore necessary to vest the estate in the heir. 

A copyhold may be disclaimed by parol, or by other matter in pays. 


died seised, besides the estates held of this manor to 
which ff'almsley had been already admitted, or to shew 
cause to the contrary. This writ was founded upon a sug- 
gestion, first made by affidavit upon the motion for the man- 
damas^and afterwards inserted in the writ, that Hampstead 
is an ancient manor, within (a) which are various copyhold 
tenements parcel of the said manor (a), and granted by and 
held of {b) the lord of the manor, according to the custom 
of the manor, and demised and demisable (c) by copy of 

imperfect manor, or a manor in 
repatatioDyby the destruction of all 
the suit-readeriog tenements ex- 
cept one (or perhaps two), it would 
leem that the manor would revive 
whenever the remaining freehold 
tenement was divided amongst 
several tenants holding in several- 
tv, or even as tenants in common, 
sooe each of these new tenants 
wooid owe suit at the court baron, 
snch toit not being a service arising 
oot of cHtfoHt, but a service neces- 
sarily incident to a seigniory by the 
common law. (Post, 157). The re- 
daction, therefore, of the number of 
thefireehold tenants to one (or two, 
if three be necessary to* constitute 
a court baron,) seems rather to 
create a suMpenshn than an extinc- 
tion of the manor. So, it would ap- 
pear that the manor would be sus- 
pended if the lord made a lease for 
years of the services of his freehold 
tenants, as during the term the te- 
nants would owe suit and service at 
the court of the lessee, who, not 
being lessee of the demesnes, would 
not be lord of the manor even du- 
ring the term. 

(«) The copyholds are within 
and ptrcel of the manor, suprd (a). 

(h) These words would apply to 
the lands of the freeholders or tene- 
noentanands. With reference to 
the copyholds they are incorrect. 

(c) No land can be granted by 
copy of court roll which has not 
been demitable by copy of court 
roll from the commencement of 
legal memory, which, though for- 
merly altered from time to time, 
has long remained fixed at the 
coronation of Richard I. (6 July, 
1189). If, therefore, it can be 
shewn that at any time within that 
period the power of demising has 
been suspended by the intervention 
of an estate for life or for years^ 
all subsequent copyhold grants are 
void. But it is not necessary that 
the land should have been actually 
demited by copy of court roll. 
Lands which have always remain- 
ed in the hands of the lord, or in 
the hands of his tenants at will, 
whether by free tenure, at the will 
of both parties, or by villein tenure, 
at the will of the lord only, may 
still retain their customary dimisii- 
hiUty^ or may still be demisable by 
copy of court roll. The term " al- 
ways demised and demisable by 
copy of court roll'' does not ap- 
pear to be strictly correct. For 
though the tenant is said to hold 
by copy of court roll, because, the 
copy is the evidence which he pos- 
sesses of his estate, yet the demise 
is by tlie roll itself, and is antece- 
dent to the copy. Nor does the 
granting of the copy seeixi to have 



The King 



court roll of the manor by the lord of the manor for the time 
being, according to the custom of the manor, to any peraon 
or persons willing to take the same in fee simple (a) or 
otherwise (b) at the will of the lord, according to the cus- 
tom of the manor, and in which manor during all the time 
aforesaid the lord of the manor or his steward of the manor 
for the time being, once or oftener in each year, have held, 
and still of right ought to hold, customary (c) courts of the 
manor, and have at such courts admitted and ought to 
admit such persons as have been and are entitled to be 
admitted as tenants of the customary tenements, and to 
such interests as they have required and may require^ ac- 
cording to the custom of the manor ; that Henry Flitcroft 
was in or about the year 1769 duly admitted to certain 
copyhold tenements parcel of the manor, consisting (among 

been coeval with the practice of 
entering the admittance upon the 
rolls. The tenants were called 
'' tenants by the rolls of the 
manoi^' before they acquired die 
name of tenants by copy of court 
roil. M. 49 £. 3, fo. S5, pi. 9. 

(tf) Though in point of tenure a 
copyhold is an estate in villenage, 
being held at the will of the lord, 
and not at the will of the tenant 
also, yet, if the custom warrant 
such an extension, it may in point 
of duration of intertU be held in fee 
simple. The Cornish villein te- 
nures III nativft coniientJone, de tep- 
tem annos in ieptem annoi, appear 
also to have been susceptible of an 
extension, in point of duration of 
interest, to a fee simple. These 
estates, though, like copyholds, not 
inconsistent with the personal free- 
dom of the tenant, have long since 
disappeared. The higher species 
of conventionary tenure, in liber& 
conventianef de teptem anntn in 
ieptem anno$, which still subsists, 

is likewise capable of acquirinp; a 
customary duration in fee simple. 
In copyholds, however, the exten- 
sion of the original interest in point 
of duration is noticed in the instru- 
ment of grant to which the lord is 
party; whereas in the Cornish as- 
sessionable manors, though the cus- 
tomary tenant surrenders to the 
purchaser, in fee according to the 
custom of the manor^ the surren- 
deree is admitted, by the duke's 
commissioners upon the assession 
roll, merely to the original estate 
from seven years to seven years, 
according to the custom of the 
manoTy which words seena, in 
the former place, to point to the 
septennial tenure, and in the latter, 
to the customary permanence of 
the interest. 

(b) Where the custom warrants 
a grant in fee simple, the lord may 
create any less estate. 4 Co. Rep. 
23 a; Co.Litt. 52, b.; 1 Roll. Abr. 
511, 1. 30. 

(c) Vide post, US, (a). 


Other tlHDgs) of a bouse and 46 acres of land at West End, 
in the said manor, and a house at Frognall, in the said manor, xhTking 
to hold the same to him and his heirs at the will of the lord, v. 

according to the custom of the manor ; and that Fiitcroft, 
on or about 3d April, 1826, died so seised of the said copy- 
hold tenements, and that Walmdey is the heir at law, accord* 
ing to the custom of the manor, of Flitcroft; that at a general 
customary (a) court holden for the manor, on or about the 
eighth day of January 1829, application was made to 
the steward, by and on behalf of Walmsley, to admit him, 
Wabndeyf so being heir at law, according to the custom of 
the manor, of Flitcroft, to the said copyhold tenements, as 
tenant thereof in possession, and that frequent application 
bad since been made by Walmsley to admit him to the same 
copyhold tenements as the right heir and heir at law of 
Flitcroft, according to the custom of the manor ; that the 
steward had refused to admit Walmsley as tenant in pos- 
session of the said copyhold premises by reason or pretence 
of a certain alleged surrender made by Flitcroft in his life 
time to the use of his will, and of certain life and other 
estates alleged to have been devised in and by the will of 
Flitcroft after the time of the said surrender; and that 
on the twenty-eighth day of May, in the year 1829, 
at a certain customary court then held in and for the 
manor, Walmsley had attended the said court, and had again 
requested the said steward to admit him, Walmsley^ to the 
said copyhold tenements as tenant in possession, and pro- 
duced and tendered to the steward a certain disclaimer duly 
made and executed by James Fletcher and Anna Maria 
Etcher, the only surviving devisees under the said will, 
whereby they the said James Fletcher and Anna Maria 
Fletcher disclaimed, renounced, and relinquished all right 
and title whatsoever of, in or to the said copyhold 
tenements ; yet the defendants well knowing the pre- 

(«) The proceedings in this case freeholders only, and in which the 
would take place, not in the Coart suitors are judges, but in the Cus- 
fiaroD, which is the Court of the tomary Court, at which the copy^ 



The Kino 




mises, but not regarding their duty in that behalf, had 
absolutely refused^ and still did refuse, to admit Walmsky 
to the said copyhold tenements as tenant in possession 
thereof, according ta the custom of the manor. 

To this writ the defendants returned, that at a court 
baron (a) held for the manor, 8 May, 1769, Flitcroft had been 
duly admitted as tenant to the copyhold tenements holden of 
the lord of the manor (6) and parcel of the manor, to hold 
the same to him and his heirs at the will of the lord of the 
manor, according to the custom of the manor, as in the 

holders are bound to attend, bat 
in which the steward of the manor 
IS the judge. For the sake of con- 
venience both Courts are generally 
held at the same time, as is also 
the Court Leet, where the lord pos- 
sesses that franchise; but though 
these three Courts, or any two of 
them, may, by usage, be held at the 
same time and place, and the pro- 
ceedings entered in the same book, 
they are perfectly distinct and in- 

(a) But see the preceding note. 

(6) Copyholds being part of the 
demesnes are parctl of the manor, 
and not htld oftYit manor, stiprd, 
143 (a). The tenemental lands, or 
lands held by the freeholders of the 
manor, are not, stricdy speaking, 
jMirce/of the manor, yet as the ser- 
vices of these freeholders are par- 
cel of the manor, and as the lands 
jihemselves must have been once 
part of the demesnes, and are still 
within the seigniory, such tene- 
mental lands were said (by Shard, 
J.) to be quasi parcel (par roaner 
parcel) of the manor. Fitz. Abr. 
12 Ass. 18, Auncien Demesne, 
pi. 33, which is a more full report 
than is to be found in the Year 
Book, 12 Ass. fol. 35, pi. 18. 

where this dictum is not men- 

Much confusion often arises in 
the use of the terms ** within the * 
manor," " within the fee and seig> 
niory of the manor,** and ** within 
the ambit of the manor.** The 
first of these terms applies to land 
in the possession of the lord, or of 
his leaseholders or copyholders. 
The second, to lands which, being 
formerly within the manor, were, 
before the statute of Quia Emp- 
tores or De Praerogativft Regjis, 
granted by the lord to be held of 
the grantor in fee /is of his manor. 
The term ** within the ambit of the 
manor," is applicable to land wluch, 
though surrounded by the manor, 
is neither parcel of the manor nor 
held of the manor; land which 
never was connected with the 
manor in point of tenure, or 
which, having been formerly 
within the manor, has been 
aliened from it in fee, either by 
a direct conveyance, tenendum of 
the chief lord of the fee, before or 
since the statutes, or by a subin- 
feoffment before the statutes, :iince 
followed by an alienation of the 
seigniory to a stranger, or by a re- 
lease of the seigniory to the tenant. 



said writ is mentioned; and that Flitcroft did at such Court, 
after his adoiission to the copyhold tenements as aforesaid, xu^X^ 
duly surrender the same into the hands of the lord of the v. 

maDor, by the rod, by the hands and acceptance of the 
steward of the manor, according to the custom of the 
manor, to and for such uses, intents, and purposes as he, 
JFYtVcro^, should, in and by his last will and testament in 
writing, thereof direct, declare, limit, or appoint; that 
on the Sd day of April, 1826, Flitcrqfi died so seised of the 
copyhold tenements as aforesaid, having first duly made and 
published his last will and testament in writing, duly exe- 
cuted for devising copyhold estate, whereby he devised the 
copyhold tenements to his mother for life, with remainder, 
after her decease, to the use of James Fletcher for life; 
and from and after the determination of that estate, to the 
use of trustees in trust to support and preserve. Sic. ; and 
firoffl and after his decease to his first and other sons in tail 
male, with remainder to all and every the daughter and 
daughters of J. Fletcher in tail general; and on failure; of 
issue of J. Fletcher, to the use of Anna M. Fletcher for life, 
with like limitations to her issue; and in default thereof to 
the use of M. Fletcher for life, with like limitations to her 
issue, and the ultimate remainder to the right heirs of 
Ffiicrofi; that Lyddon did, on the 15th day of June, 
18£7, make search at the Register Office for the county of 
Middlesex, and on such search did find an entry in such 
register of the memorial of an indenture of release, bear- 
ing date the 24th day of August, 1826, made between 
J. Fletcher of the first part, A. M. Fletcher of the second 
part, and Walmsley of the third part; by which release 
J. Fischer and J. M. Fletcher, for the considerations therein 
expressed, did demise, release, and for ever quit claim 
unto Walmsley, all the copyhold messuages or tenements, 
lands and other hereditaments, situate and being within 
and held of (a) the said manor of Hampstead, of or to 
which Flitcroft was seised or entitled at the time of making 
(fl) Vide supra, n. (a). 
VOL. V. L 


18S9. his thereinbefore recited mlU and also at his death, with 

,^!r^C^ ^he appurtenances and all the estate, &c« : to hold the said 
The KiHo ;\^ o , . , . , 

o. copyhold messuages, &c., thereby released^ and every part 

Wilson, thereof, to Walmsley, his heirs and assigns, for and during 
all the rights and interests by or under the said will of 
FUtcrtfi devised to or otherwise vested in J. Fletcher or 
il. M. Fletcher, or either of them ; to the end and intent 
the same rights and interests might severally merge and be 
extinguished in the estate which had descended upon 
Walfnslejf as customary heir of F/itcroft; that Lyddon 
also found on such search another entry in such register of 
the memorial of another indenture bearing date 25 August, 
16^, and made between Walmsley of the first part, A. M. 
Fletcher of the second part, and J. Fletcher of the third 
part; by which indenture, in consideration of a covenant 
entered into by J.Fletcher and il. M. Fletcher to surrender 
all their estate and interest in certain copyhold estates of 
Ftitcrqfi, and also in consideration of 2,500/. to Walmsley 
paid by J. Fletcher^ the said Walmsley, with the consent 
and approbation, and at the request of A. M. Fletcher, did 
grant, bargain, sell, alien and confirm, unto J. Fletcher and 
his heirs, all that the remainder or reversion in fee simple, 
to take effect in possession upon the several deceases of 
J. Fktcher and A. AL Fletcher, and failure of th« issue of 
the respective bodies of J. Fletcher and A. M. Fletcher of 
and in the therein described lands, tithes and hereditaments 
in Hendon, and all other the manors, rectories, advowsons, 
messuages or tenements, lands, tithes, hereditamei^ts and 
premises whatsoever of Flitcroft in Hendon, habendum 
unto the use of J. Fletcher and his heirs ; that the said 
copyhold tenements mentioned in the said indeoture of the 
24th of August, 1826, and the said copyhold tenements 
mentioned in the said indenture of the 25th of Augnst> 
1826, are the same copyhold tenements, and not other or 
different, and that they comprise the said copyhold tene- 
ments devised by the will of Flitcrofl ; that the supposed 
disclaimer by the said J. Fletcher and A, M. Fletcher bears 
date the 4th of May, 1827, and subsequently to the indeu- 


tores of 24 and 25 August, 1826, and is colourable only, 
»d was made for the purpose of depriving and defrauding xhe Kino 
the lord of the said manor of the fines which would have __. v. 
beea payable to him on the admissions of J. FleUhtr and 
A. If. Fletcher respectively to their said life estates in the 
said copyholds, according to the custom of the manor; 
that »t a general court baron {a) held for the manor on the 
8th of January, 18279 Walmsley was admitted, as the heir 
(JFUicrofl, to the immediate tenancy in possession of the 
copyhoM estate in the manor, late of Flitcroft, not surren- 
dered to the use of his will, and that Walmsley was so 
admitted by Lyddon, tlie steward of the said manor, from 
his erroneous belief that the said copyhold estate did not 
pass by the devise in the said will, because it had not been 
surrendered to the use of Fliicroft's will, and therefore 
descended to Walmsley as heir, and that Walmaley was 
admitted to the same estate upon no other ground than 
that the same had so descended to him ; that within the 
manor there now is, and from time whereof &c. hath beeut 
a certain ancient and laudable custom there used and ap« 
proved of, that is to say, that when a customary tenant 
has surrendered a customary tenement of the manor to the 
use of his will, and has afterwards devised the same to any 
person or persons for life or in tail, with remainder to any 
other person or persons for life or in tail, or in fee, such 
devisee or devisees has or have been admitted by the lord 
of the manor to the same for or according to the estate or 
interest, or respective estates or interests of such devisee 
or devisees therein. And these are the causes, 8cc. 

Longf for the prosecutor of the mandamus. Upon this 
writ and return five points are raised for the consideration 
of the Court. First, on the death of Flitcroft the estate de- 
scended to bis heir. Secondly, on the neglect of the de- 
visees to come to be admitted, and more especially after 
their disclaimer, the heir had a right to be admitted. 

(fl) AniCy 143 (fl). 


18^9. Thirdly, the deeds of 24th and 25th of August, 1826, did 
not take away the right of the heir to be admitted. Fourthly, 
the ieiniount of the fines payable to the lord io respect 
of the admission of fValmsley, cannot be gone into upon 
a return to a mandamus. Fifthly, the custom stated in 
the return does not vary the right of the heir. On all these 
grounds Walmsley is entitled to a peremptory mandamus. 
On the death of Flitcroft, the estate of which he died seised 
vested in his heir. Roe d. Jeffereys v. Hicks (a). In that 
case Joseph Jeffereys surrendered to the use of his will, and 
devised to his niece Elizabeth, who was attainted and exe- 
cuted for the murder of her uncle, and it was held that the 
estate descended upon the heir of the uncle, and that the 
niece, who was not the heir, had nothing to forfeit to the 
lord. In the case of a surrender to the use of a will, the 
estate remains in the surrenderor and his heir until the 
admittance of the devisee. Smith v. Triggs{b). A surren- 
deree cannot devise before admittance. The cases which 
shew that where there is an intermediate life estate, the 
estate does not descend, are not disputed. Here, in whom 
M'ould the estate be, if it did not descend ? In no case can 
there be any thing like' an abeyance of the copyhold. As 
soon as one person ceases to hold, another becomes tenant. 
The estate descends, but liable to be divested upon the 
admittance of the surrenderee. Secondly, if the devisee 
do not choose to take the tenancy upon himself, either the 
lord has a right to compel the heir to be admitted, or the 
heir has a right to assume the tenancy. Here there is a 
distinct disclaimer. In Townson v. Tickell (c), a disclaimer 

(a) 2 Wils. IS ; 1 Ken. 110. cordance with that given in Tovn- 

(6) 1 Stra. 487. son v. Tkkelly was reversed in the 

(c) 3 B. & A. 31, overruling House of Lords. For a full no- 

Butler and Baker*s case, 3 Co. Rep. count of the proceedings in 7a»ii^ 

25, upon the supposed authority of son v. 'HckeU^ and the peculiar 

Bonifaut v. Greenfield, Cro. £1. 80, circumstances attending that case, 

which turned upon the wording of vide ante, iv. 189, (a)< And see 

a particular act of parliament, and litt. Sect. 685; Co. Litt. S60, n. ; 

of Thomson \\ Leach, 2 Ventr. 196, Doe v. Sn^th, 6 B. & C. US; 9 

the judgment in which case, in ac- D. 6c R. 136. 

The Kino 



bj deed, by the devisee of a freehold estate, was held to be ^q29. 
sufficient to divest the estate. The present case is stronger, 
because in a copyhold the estate does not vest in the devisee 
by the will, which only operates as a designation of the Wilson. 
person entitled to be admitted under the surrender. In 
Towmofi \. Tickell, Lord Tenierden says, " the law is cer- 
tainly not so absurd as to force a man to take an estate 
against his will." Ilolroyd, J. says, '' that even a parol 
disclaimer would be suflScient," relying upon Bonifaut v. 
Greenfield (a). This will apply with still greater force to 
the case of copyholds. In the case of the devise of a free- 
bold, the devisee becomes seised upon the death of the 
devisor, by force of the Statute of Wills. A plausible argu- 
ment is raised in Tawnson v. Tickell in favour of the neces- 
sity of a disclaimer in a Court of record, but that objection 
was overruled. In Wainwright v. Elwell{b) it was held by 
Plumer, V.C. that the devisee of a copyhold surrendered 
to the use of the will of the surrenderor could not devise. 
[Bayley, J. A surrenderee cannot surrender before adniit- 
Unce, Doe d. Tofield v. ToJield(c).] Thirdly, the deeds of 
S4th and 25th of August, 1826, do not take away the right 
of the heir to be admitted. An equitable interest is assign- 
able, and it would be strange if the interest of the devisee 
of a copyhold could not be got rid of. The second deed {d) 
states a transaction which is partly in the nature of a sale 
and partly in the nature of an exchange. The lord has 
nothing to do with either of these deeds, and cannot take 
adtautage of the arrangements effected by them, whatever 
question they, may give rise to between the heir and the 
devisees in a Court of equity. The heir has given a valua- 
ble consideration for the release of the surrenderees. 

(a) Which merely decided what ance of such executorship. See 

shoold amount to a refusal of the this case stated and eiaraineil, 

office of executor, and what should an/e, iv. 190, n. 
(not divest an estate, but) prevent (/>) 1 Madd. 687. 

an estate from vesting, which was (r) 1 1 East, 246. 

made depeudant upon the accept- (</) 25 Augubt, 1826, vnte, 146. 


Fourthly^ no question as to the amount of fine can arise 
until after admittance (a). [This was conceded on the 
other side.] Fifthly, the customs set out pervade all copy- 
hold manors. [Comyn, It is not admitted that the lord 
cannot compel the devisee of the surrenderor to come in 
and be admitted tenant. Bayley, J. The custom stated is 
in effect, that the lord may compel the devisee to come in, 
and may seize quousque.^ If the devisee be not compella- 
ble to come in, the heir must come in, as the lord must 
not lose his tenant. These rights are reciprocal. 

Comyn, contrsk. It is the right and the duty of the lord 
to see that he has a proper and legal tenant admitted to the 
copyhold. All will resolve itself into a question whether 
the heir has a right to be admitted tenant in possession. 
It is submitted that he has no such right, because the 
estate has not descended to him though heir^ and he is 
only entitled upon failure of all the intermediate estates. 
He is heir at law in remainder. The lord is bound to see 
that a proper person is admitted tenant. [,Bayley, J. 
What authority is there for that proposition?] It requires 
none. [Lord Tenterden, C.3. The question is the same 
as if the surrenderor had devised away in fee.] Until the 
death of the appointees, the heir has no estate. The heir 
can have no estate until the life estate is extinct and upon 
failure of issue in tail. [Bayley, J. He does not claim 
under the remainder, but as heir of the person last seised, 
no other person appearing to claim to be admitted.] The 
lord knowing that another, person is entitled, is bound to 
hold the estate for the party entitled. It is merely co\onr- 
able and fraudulent in Walmsley to claim as heir, when he 
has a secret deed from the persons interested under the 
devise. The cases cited to shew that a party is not bound 
to take an estate against his will, do not apply. There is 
no doubt but that such party may disclaim, but it is denied 
that the devisee has a right to claim an interest, and to 
convey that interest clandestinely to the heir, for the pur- 
(«) S. P, Bucon v. Flatman, cited 4 Co. llep. 28, a. 

The King 


pose of getting rid of the liability of the devisee to he i8«0. 

admitted. [Boy/ey, J. What right has the lord but to 

have a tenant i The estate remains in the surrenderor and 

bifi heirs until the suiTenderee comes in to be admitted. Wilson. 

If the surrenderee surrender before admittance, he conveys 

00 estate of which a Court of law can take cognizance. So 

if such surrenderee devise before admittance.] The writ 

does not state that the claimant is heir at law of the estate. 

[Bayleyf J. It alleges that F/ilcroft died seised, and that 

Walmtky is heir according to the custom, upon which the 

law says that he is heir of the estate.] He is not heir at 

liir of this estate, but he is entitled under the intermediate 

devise. [Parke^ J. The estate must be taken to descend, 

UQtil the contrary be shewn.] The mere neglect of the 

teoants for life to come in does not affect the rights of these 

parties. The Court will not say that the lord shall have a 

tenant although he has no right to refuse to admit the 

proper tenant. 

Loitg, in reply, was stopped by the Court. 

LordTENTERDEN, C.J. — By the common law the estate 
is in the surrenderor and his heirs until the surrenderee 
comes in to be admitted. Here the estate descended sub- 
ject to the right of the appointees to come in and claim 
admittance. When they declare that they will not come in, 
that obstacle is removed. If the effect of the deeds were 
to shew that the devisees were taking a benefit under the 
will, and that a loss accrued to the lord by the arrange- 
ments made between these parties, the lord must proceed 
in another way. We have only to see whether the heir has 
a right to be admitted. 

Bayley, J. — The Court is bound to look to the legal 
title. The lord has a right to have a person in whom the 
legal estate is, admitted on the roll, and that person has a 
right to be admitted. The estate is in the surrenderor and 

The Kino 


1829. in bis heirs until the devisee^ ivho is the surrenderee desig- 
nated by the will, comes in. Until he comes in, the estate 
V, is in the heir, who now claims to be admitted, not in respect 

Wilson. ^f j^jg reversion, but in respect of his immediate estate. 
FlUcrofi died seised, therefore the estate descended. The 
heir may bring trespass ; which shews that the estate de« 
scends upon him. Except as against the lord, the heir 
M'ould have the whole estate in him. l^e admittance is 
for the benefit of the lord. The lord cannot seize or 
make proclamations, except for the purpose of placing 
himself in a situation to do what the mandamus requires, 
and it is only when he has so done that he will be entitled 
to the fines. My only doubt was, whether the heir could 
obtain a mandamus, because the right of possession was in 
him before. But that doubt is removed by the case of 
JBejr V. The Brewers' Company (a). 

LiTTLEDALE, J. — I am of the same opinion. It is not 
necessary to consider what fines the lord is entitled to 
receive. If this is, as has been insinuated, a scheme and 
contrivance to do that which the law does not sanction in 
defeating the claim of the lord to new or greater fines, the 
lord must have his remedy either by action or by bill in 
equity. Here the legal estate is to be considered as if it 
virere a case of ejectment. It is the same thing whether 
the surrenderor makes a will or not; and it is clear that if 
the surrenderor die without making a will, the estate de- 
scends to the heir. If the life estates created by the will be 
disclaimed, it is the same thing as if they had never b.een 
limited. In some manors the custom requires that the pre- 
sentment be made at the next Court; in others, that it«be 
presented within the year. The situation of the parties is 
the same as if the appointees had not chosen to come to 
the next Court, or at the Court at which they were entitled 
to be admitted, except that the disclaimer makes the case 
still stronger. The effect of the disclaimer is to place the 
parties in the same situation as if no devise had been made. 

(fl) 4 D. & R. 492; 3 B. & C. 172. 


Pabke, J. — I am of the same opinion. The question 
lies in the narrowest possible compass. Not a single au- 
thority has been cited to impugn the grounds upon which 
this writ was obtained. Upon the death of the surrenderor 
the estate descended to the heir> who has a right to a man- 
damus to admit him^ he taking his chance whether the 
devisee will apply to be admitted. Any dii&culty is, how- 
ever, removed by the disclaimer of the devisees ; though I 
think that without a disclaimer the heir would have been 
entitled to be admitted. If a fraud has been practised 
upon the lord, he has his remedy in another shape (a). 



The Kino 



f^y^ («) A manor is commonly said 

mm, bj the text writers to consist of 

demesnes and services. This is 

rather a statement of some of the 

incidents of a manor, than a strict 

bgal de6nition. On the other 

handy persons who are not lawyers 

fieqoently comprehend under the 

term manor, circumstances which 

hate so necessary connection with 

tbb species of esute. Thus the 

i right to wastes within the district 

/ ofer which the manor extends, is 

frequently called a manorial right ; 

l&oogh the right of the lord to such 

•rastes, where there has been no 

actoaJ possession, rests merely upon 

the presumption that they belong to 

cbe lord as the present owner of 

^ demesnes, and as the ancient 

o*Der of the tenemental lands, by 

*hich these wastes are surrounded. 

^ same presumption would arise 

io hnmr of any other owner of an 

eUeosire district enclosing wastes. 

&,the seigniory of copyholds is 

fnqoently an incident to a manor; 

but there are many manors in 

whidi this species of tenure does 

not appear to have ever existed, 

and still more in which it has been 

kM^ extinct; and though no copy- * 

holds unconnected with a manor 
exist at the present day, the custom 
of demising by the lord's rolls ap- 
pears to have formerly been com- 
mon to every lord who had de- 
mesnes which were held in vil- 
lenage. So, the right to have 
a Court-Leet is a royal franchise, 
under which the grantee holds a 
court of criminal jurisdiction in 
the king's name, over the resiants 
(residents) within a particular dis- 
trict. This privilege may be 
granted to persons who are not 
lords of manors; and where the 
grantee has a manor, the limits of 
the manor and of the leet are not 
necessarily co-extensive. So, ex- 
cept in the case where a grant of 
free warren or free chase is an- 
nexed to a manor, the lord has 
no other privilege in respect of 
gamCf than the power given by 
modem statutes of appointing a 
gamekeeper. With this, however, 
is frequently confounded the ad- 
vantage derived from the pre- 
sumption of ownership over ex- 
tensive wastes, which has already 
been shewn to have no necessary 
connection with mmima/ rights. A 
correct legal definition of a manor, 




The Krifo 



how far neeeanry 
to a 

tb« terms of which nothing can be 
added to or taken from, it would 
be difficult, if not impossible, to 
find in our text writers. An at- 
tempt to supply this apparent omis- 
sion may not be considered to be 
misplaced. A manor contitit of 
demesnes and an appendant mesne 
seigniory ovtrfreehoUerSj qualified^ 
in respect of quantity of estate^ and 
sufficient^ in point of numbers, to 
constitute a Court- Baron. 

Formerly there could be no 
manor without a mansion* bouse 
(manerium, manoir) at which the 
services were due and might be ten- 
dered and from which this peculiar 
species of estate derived its appel- 
lation (Maseres, Ubtoriae Angli- 
cans Selecta Monumenta, 256, n.). 
At the present day the demesnes 
may, and very frequently do, con- 
sist entirely of land; and there may 
be a good legal manor, although 
the mansion-house, or the spot on 
which it stood, (usually described 
as the scite (site) of the manor,) 
have been aliened from the 
manor; (and see Winter v. Love- 
day, 5 Mod. 382; Owen, SI; 
4 Inst. 268;) or it cannot he 
now shewn that any mansion ever 
existed on the land; though it 
would seem that no estate could 
ever have acquired the name of a 
manor without possessing a man- 
sion-house on the demesnes. Be- 
fore the statute of Quia emptores 
terrarum, 18 Edw. I. cap. 1 & 2, 
when seigniories might be created 
at pleasure by unlimited sub-infeu- 
dations, the existence or the non- 
existence of a seigniory at any par- 
ticular period would be an imma- 
terial circumstance in comparison 
with the lord *s mansion, by services 
to be perfonned or tendered at which 
the subtenure was distinguished. 

And see Plowd. 169; Fulb. Par. 
18 a, b; Maseres, Hist. Ang^. Sel. 
Monumenta, 255 n; Appendix 
to 3d Report of the Common Law 
Commissioners, B. 20. 

The demesnes are an integral p^"*" 
and necessary part of the manor; 
for if the lord alien all the de- 
mesnes, bis remaining estate will 
not be a manor, but a seigniory in 
gross, a species of estate verj com- 
mon in the earlier periods of our 
legal history, but now practically 
almost unknown in England, though 
still subsisting, in a somewhat simi- 
lar form, under the name of supe- 
riorities, in Scotland (a). 

The demesnes are those lands 
of which the lord is seised, whe- 
ther they are in his own occu- 
pation, or in that of his tenants at 
will, or for years. Of these the 
former have either a customary es- 
tate, as holding at the will of the 
lord, according to the custom of 
the manor, or they have a common 
law estate, holding at the will of 
both lessor and lessee. The te- 
nancy for years is, in modem times, 
usually a common law estate, 
though in the assessionable manors, 
parcel of the duchy of Cornwall, 
customary estates for years are 
still subsisting. (^Rowe v. Brenian^ 
ante, iii. 133, 143,b. 243,310,311, 
313, 314, 315, 316,318,326, 357, 
358, 362, 363; Mann. Exch. Pnict. 
2d edit. 357, n.) If the lord of 
a manor were to make a gift in 
tail or a lease for life, of all the 
demesnes, there would, during the 
continuance of the particular es- 
tate, be no demesnes within the 
manor. The services of the free- 
holders of the Court- Baron would 
not be appendant to the demesnes, 
but to the reversion of these de- 

(a) The Tnnch Jirft en Cair^ 



expectant upon the deter- 
I mination of the particalar estate. 

I Daring the continuance of this 

I state of things it would seem that 

the lord woold have, not a manor, 
bot a doable seigniory in gross, one 
io respect of the donees in tail 
or lessees for life, the other in re- 
spect of the ancient freehold te- 
Daots of the manor. And see 
Bartop ?. Tuck^ Hetl. 14; Brace- 
^iev, Coote, Plowd. 4«2, b. 
J^^"- To constitute a manor there 


biiAf. most not only be demesnes, but 
also, appendant thereto, a seigniory 
Ofer freeholders. And this must 
be a flteme seigniory (a) ; since 
DO freeholder, holding in capite, 
can, in respect of the same free- 
bold, hold of a manor; and, e 
coweno, the king cannot, jure 
(oroMj be lord of a manor (6). 
These freeholders, we have seen (c), 
constitute the curia baronom, the 
word baron having been formerly 
bynonimoQS with freeholder (c/). 
In order to determine that a parti- 
Cblar district constitutes a manor, 
it mtst be ascertained that a per- 
son seised of land within that dis- 
trict is also seised of the services of 
twoor more other freeholders of in- 
beritance within the same district, 
aod that the seisin of the land and 
the seisin of the services of the 
freebolders have,yor any thing thai 
en he tketpn to the contrary^ been 
mited ever since the statute De 
Pnerogaiivft Regis, if the land be 
holden immediately of the crown, 
or »nce the statute of Quia emp- 
tores, if the land be holden of a 

(a) 2 Inst. 501. 

{b) Eiundk'f case, 12 Co. Rep. 1 36. 

(c) Antt, 143. 

(<0 In Gennany baroDji bv tenure, 
and in later times, same of tiie titular 
biroos are qalledjrce lords, /rryfccrrrn. 




In honors or very eitensive ma« 1899. 

nors, a distinction appears to have 
been drawn between the greater 
and the lesser barons, the former 
only being acknowledged as the 
pares curi*. The We of Wight l^r.^SToV 
was granted by King Stephen to Wight, ciUcd Redvers, and was surren- 
dered by his descendant, Isabella 
de Fortibus, to King Edward I. in 
1993. During the 150 years that 
this honour was in the bands of a 
subject, the freeholders holding im- 
mediately under the lord of the 
island, owed suit and service at 
the lord's court. Those tenants 
however only were summoned who 
held to the extent of a knight's 
fee (e). Hence the Court was not 
simply Curia Baronum, but Curia 
Militum; and it still exists (/), 
(by the name of the Knighten 
Court; the suitors being those 
who hold of the king, as of his cas- 
tle of Carisbrook, (the maneriwn of 
the island) to the value of SO/, per 
annum (g). It does not appear that 
the machinery of these Courts has 
proceeded so (ar as to allow of the 
lesser barons appearing by a select 
portion of their number, as in the 
great Conrt-Baron of the realm. 

So much importance attaclied 
to the possession of a mansion- 
house, at which the services of 
tenants might be rendered, that 
a villein who had a man- 
sion upon his villenage, might 
grant portions of his vittenage 

(e) Knight's €ees were usually 
either manors or seigniories in gross, 
T. 16 £3, 7m»er Temple MS, ; M. 17 
£.3, fo. 8,pl. 10. 

(/) Now held within the borouah 
of Newport, but/or the whole island. 

(f) from the documents produced 
at the trial of the case of Mayor, ^c. 
of Newport v. Saundert, Winchester 
spring Assizes. 1832, cor. Park, J.: 
And see .Sir R. Worsley's History of 
the Isle of Wight. 



The KiNC 

Power of crown 
to create a nanor. 

to be holden of him as of his ma^ 
nerium. The estate of the grantor, 
consisting of this mansion-house 
and the ungranted portions of the 
viilenage,in demesne, and of the ser- 
vices of the granted portions of the 
villenage, was called a customary 
manor (a). See Sir Henfy NevilTs 
case, II Co. Rep. 17 ; Moore v. 
Goodgame, Cro. Jac. 397; Reg v. 
Sianton, ib. 259; Rex v. Stafferion, 
1 Bulstr. 54. 

It has been said (Morris v. SmUh, 
Cro. £1. 38, arg. ; Shower, 142, ai^.) 
that the king cannot, at this day, 
create a manor. And this is per- 
fectly true; because the king neyer 
could create a manor. If before the 
statute De Prserogativft Regis the 
king had granted land to ^., the 
grantee might have 8ub-infeo6Fed B., 
C, D:, £., and F. of parcels of the 
land, retaining the rest in his own 
hands,' or in the hands of his te- 
nants for years or at will. A. 
would then have had a manor; but 
this manor could not be said to be 
created by the crown, as the king 
could not create the sub-tenure, by 
which the manor was constituted. 
So, since the statute De Prserogati- 
to create a manor, vft Regis, if the crown grant land 
to J., and either at the time of the 
grant or subsequently, license A, to 
sub-infeoff B., C, D., E. and F., 
of parcel of the crown grant, the 
effect would be the same as before 
the statute, that statute making no 
other alteration in the law than 
imposing the necessity of obtain- 
ing a licence for sub-infeudation. 
Even in land which not being held 

(a) Another species of customary 
manor might, and may still, be created 
by a grant or a demise to a stranger of 
the seigniory of all the copyholds, or 
of all the copyholds withm a cettain 
district. 4 Co. Rep. 26, 7. 

Power of fobjcct 

immediately of the crown, falls 
within the provisions of the 
statute of Quia Emptores, there 
appears to be no other obstacle to 
the creation of a new manor than 
the necessity of obtaining the li- 
cence as well of the crown as of all 
intervening lords. Thus Lord CoAe 
says, (2 Inst. 501,) ** these general 
words iia tamen quod feoffatus te- 
neat terram illam seu tenementum 
iUud de capiiali domino feodi illius 
have a tacit exception, viz. unless 
all the lords, mediate and imme- 
diate, do assent thereunto, for 
guilibet renunciare potest benefido 
juris pro se introducti.*' (And see 
Co.Litt. 99, d.) The language of 
the Stat. De PrserogativH Regis is, 
'< nullus qui teneat de Rege in capite 
per servicium milUare poterit alie- 
nare mnQorem partem terrarutn sua- 
rum, iia quod residuum non sufficiat 
ad faciendum inde servicium^ sine 
LiCENTiA REGIS.** In tlio printed 
statutes the following words are 
added, which evidently form no part 
of the act. '< Sed hoc non consttevit 
intelligi de membris et particulis 
terrarum earundemJ* It seems also 
to be questionable whether, as the 
language of the statute De Prsro- 
gativ& Regis is '' qui tenet de Rege 
in capite per servicium militare,'* 
its provisions are not become in- 
operativeby theabolition of military 
tenures. If so, then inasmuch as 
the statute of Quia Emptores does 
not extend to lands holden in ca- 
pite, but speaks of the '< emptores 
terrarum et tenementorum dejeodis 
iiAONATUM et tdiorum dominorum, 
in prajudicium eorundem^{b) it will 
follow that a freeholder holding in 
capite may at this day, without 

(6) And see 1 Tho. Co. Litt. 527, 
n. (1.) ; 2 Tho. Co. Litt. 21 1, n. (A.) 



liceoce, make a sob-infeofihient or 
grant land in fee simple to be 
boideo of himself, as be undoubt- 
edly may do wUh tbe licence of 
the crown, under the express 
(vorisions 6f the statute De Prae* 
ropidvft Regis, if the land be 
holden in capite, or with tbe 
licence of the lords mediate and 
immediate, under the implied, or^ 
u Lord Coke calls it, tbe tiKti ex- 
ception in the statute of Quia 
Emptores, where the lands are 
bol^cn of a subject. Hdmet v. 
Etmh, U Mod. 494. The posi- 
tion of Mr. Baron Maseres (Hist* 
Angl. Sel. Mon. 256, n.) and of 
others {Morris y. Smith, Cro. £1. 
98, 39; Marsh v. Smith, 1 Leon. 
S6) that ** it has been impossible 
to create a new manor ever since 
1290,** appears, therefore, to be ex- 
pressed too generally. It is said 
indeed in an original case in 
Brooke,(Bro. Abr. Comprii, pi. 31,) 
to hare been held in 33 H. 8, that 
a man cannot create a manor by 
grantiug estates tail to hold by 
service of suit of court, because a 
etmri cannot he but by continuance 
ca^ contrarium, jrc; but a Court- 
Baron appears to be incident to 
tcnofe at common law, requiring 
ndeber grant nor prescription to 
aphold it. Rex ▼. Stafferton, 1 
Boise. 54; & C. per nomen Rex v. 
Stmntcn, Cro. Jac. 260; Brown v. 
GoUtmith, F. Moore, 870; Pell v. 
•Soners, Noy, 20; Co. Litt. 58, a. ; 
9 lost. 43; Maseres, Hist. Angl. 
Sel. Mon. 256, n.; ante, 140, (a). 
Before the statute of Quia £mp- 
tores a tenant in fee simple might 
hare created a tenure under him- 
self as laige, in point of duration, 
as his own estate; and in the case 
of an entry upon the sub-tenant 


in fee for a forfeiture before or 
since the statute, the lord is said 
to be in of his reversion. So, 
upon judgment of ouster, for non- 
performance of the services re- 
served, in a writ of Cessavit 
per biennium, F.N.B. 208, Fitz. 
Abr. 20 Edw. 2, Brief, pi. 826, 
though the statute (6 Edw, \, 
c. 4,) says nothing about revert- 
ing or reversion. So, the writ of 
escheat, which is at common law, 
is *^ qua ad ipsum reverti debet tan- 
guam escaeta sua,** F. N. B. 144. 

As the statute of Quia Emptores Power of t 
does not affect chattel interests, it teauicy duriag 
seems to be not unreasonable to ***« ''*^** *•""• 
contend that a termor may create 
a sub-tenancy equal, in duration, to 
his own term, and that, as in the 
case of a sub-tenure in fee, the sub- 
lessor has such a reversion as will 
enable him to distrain for the rent 
or other services reserved upon the 
creation of the sub-tenure. To 
entitle a lessor to distrain, . it 
is necessary that he should have 
a reversion to which the rent may 
be incident, litt. sect. 215. By 
the term reversion, is meant the 
returning of the estate to its ori- 
ginal owner. During the parti- 
cular estate upon which the rever- 
sion is expectant, the reversion is 
the • expectancy of such return; 
after that estate is determined, 
the reversion is the land itself so 
returned, Plowd. 158, b.; ib, 160. 
But to constitute a reversionary 
interest, it is not necessary that 
a particular estate be so limited 
that the land will certainly return 
to the party creating the limita- 
tion or to his representatives. It 
is sufficient if the estate may so 
return; as in the case of a sub- 
tenure in fee simple, Litt. sect. 




The Kino 

^iOf Plovrd. 159, or io fee tail» 
IiU.9ect. 18, Plowd. 159, it never 
being questioned but that a donor 
in \Ail might distrain, though the 
contingency of the failure of the 
estate tail seems at one period to 
have been considered too remote 
to entitle the heir of the donor to 
devise the reversion under a cufr* 
torn to devise fjands, SI A as. fo. 
185, pi. 3. A distinction is in* 
deed sometimes made between a 
reversion expectant upon an estate 
tail or other less estate, and the 
contingent interest of the lord in 
the case of a sub-tenure in fee by 
calling the latter <* a right of re- 
verier r hut this distinction is of 
little consequence, either being 
sufficient to support a distress. 

This principle appears to be 
equally applicable to the case of 
a term of years created by a 
party who holds fur a term, of 
the same duration in point of 
express limitation, but which it 
may possibly exceed. It is the 
common practice to limit an es-^ 
tate to A, for life, remainder to 
B. during the life of A. ; which re- 
mainder consists in the expectancy 
of the possible determination of 
^.'s estate by forfeiture or other- 
wise, during the life of A. Now 
if this be a valid limitation, so 
that on a forfeiture by A,, A.'s 
remainder shall vest in posses- 
sion, it seems difficult to say that 
if B. were afterwards to make a 
new lease for life to A., tenendum 
of £., B. would not have as good 
an estate in reversion as he had 
before in remainder. With re- 
spect to sub-tenures in fee simple 
and in fee tail no question seeoM 
to have been jaised. But as 
some doubt has been thrown upon 

the right of the sub-lessor lor yesn 
to distrain where the seooad* 
ary term is for the same period 
as the primary, it may not be im< 
proper to examine the cases in 
which this point has come before 
the Court. 

The earliest mention of this 
subject is in P. 45 £. 3, fo. 8, 
pi. 10. That was an acdon of 
debt brought by a party who had 
onljf a chattel interest, (the ward* 
sliip of an heir,) against his les- 
see, for arrears of rent. The de- 
fendant pleaded, that the rent 
would not be payable till the end 
of the term. In overruling this 
plea, Finchden^ C. J. says, " If I 
be seised of certain lands and let 
them to a man for a term of years 
rendering 40^ per annum, I may 
have an action of debt for' each 
term (a), and I may also distrain, 
but if 1 have only a term of years, 
and I let to you my estate of the 
term rendering to me certain rent, 
I believe (jeo croy) that I cannot 
distrain. Seoqu^cre; wherefore 
answer over." This i& the whole 
of the dictum as it stands in 
the Year Book; and it is thus 
abridged, or rather altered, in 
Bro. Abr. title Distress, pi. T, 
** Nota per Finch, arguendo. If 
a man has lands for years, and 
grants all his terna rendering rent, 
he cannot distrain ; but if he grant 
part, he can distrain, 45 £. S,8." 
And in his title Dett, pi. 39, after 
stating the decisioo with respect to 
the action of debt, Brooke adds, 
*' And in that case it is admitted 
(conceditur) by Finch, that if a 
man has land for years, and grants 
all the term, rendering rent, he 
cannot distrain." 

(a) Which was the point in dispute. 




Tilts dictum seems to have been 
(fast broogbt before the Cottit, in 

v.Cotvwr, SWlls.<S73. "In 

" ieplefin,tbe defendant avows on- 
^ dfir a distress for rent doe fix>m 
' the plaintiff to bim, upon an ot- 
" s^Mieiif of a lease of a term for 
*<^eirs to the plaintiff, in which 
" mipiment there is no clause of 
" distress; the aingle question is, 
'^ whether this is such a rent for 

* which a distrefts lies, there being 
" 2X> reversion in the defendant. It 
*^ WIS said for the defendant, that 
" alifaoagh rent be incident to the 
** refcrsion, yet it is not an inse- 
^panhle incident, and therefore 
" it Httj be severed from the rever- 
"lioa; and although there is no 
' dnse of distress in the assign- 

* meot of the term, yet the rent 
"mtrved thereupon may be con- 
"ndered as a rent^seck, and dis- 

* mined for by the statute 4 Geo. 
" 9, c. 98, sect. 5, and that it ap- 
** peen dearly to be the intent of 
''the parties that the plaintiff 

* dMMdd pay rent to the defendant. 
' This case was so clear, that the 
*CoQft gave judgment for the 
'pbiadfTwithout hearing his coun- 
" seL Curim : There are two ways 
" cf creating a rent ; the owner of 
** the lands either grants a rent out 
** of it; or grants the lands and re- 
^seiTcs a rent; there is no such 
** diing ss a rent-sed[, rent-eervice, 
''or reDt-charge issuing out of a 
*tefiaforyiears(ii). Bro.Dette,pl. 

* 59,drei 43 JEtf 3,4(6), per FyncA- 
"* de«,Ch. Justice, C. B. * Ifa man 
" hath a term for years, and grants 

* ill his estate of the term, ren- 
*deriag certain rent, he cannot 
** dlstnda if the rent be in arrear;* 
** This case is law, and in point ; 

f8> Qusre. 

'» Brooke cites correctly 45 K. 3, 8. 

** therefore, \\ the avowant wtU 
** recover what is owing to him 
** from the plaintiff, he most bring 
** his action upon the contract. 
<< Judgment for the plaintiff per 
** totara curiam.*' In Pmbner v. 
EdmardSf 1 Dougl. 187, n., Ed- 
SMmfon, the lessee, expressly a*- 
iigned to Wumer (the party under 
whom the plaintiff claimed) at 
the yearly rent of 26i. 2s. pmfMt 
to Edmonony and it was held 
by BulietyJ. and Wiilet, J. that the 
conveyance from £dbiioason to 
Palmer operated as an assign- 
ment, and not as an underlease. 
These two decisions appear to 
be unquestionable. A lessee mojf 
auign his term, and if the assignee 
be accepted as tenant he cannot 
reserve rent-service, though he 
may create a rent-chaige or a rent- 
seek. (Litt. sect. 217.) So, if be- 
fore the statute of Quia Emptores, 
the tenant in fee had made a 
feofiinent, tenendum (not de sr, but) 
de capUali domino feodi (a), no rent- 
service could have been reserved 
upon such feoAnent. But where a 
termor, whether lessee or assignee, 
indicates no intention to part with 
the term, and thereby determine the 
privity of estate between himself 
and the lessor, there appears to be 
neither principle nor authority to 
preclude such termor from making 
an underleax for a period com-» 
mensurete in point of computation 
with the original term. 

This appears to reconcile all the 
cases prior to 1818, including the 
decision in Poultney v. Holmes, 1 
Stra. 405, in which it was held 

(a) This coald be only where the 
entire property was aliened. Where 
a part was aliened, the alienee roust 
have held of the alienor. Hence the 
interminable mesnalities of the 1 3th 
& 14th centuries. 


The King 





that when a termor agrees that 
another shall have the premuei for 
the remainder rf the term, pacing 
the termor the same rent as was 
reserved upon the original lease, 
such an agreement must be taken 
as a lease and not as an assign- 
ment, because the reservation was 
to the lessee and not to the original 
lessor. In that case, however, it 
seems to have been inconsistently, 
and as it would appear, gratuitously, 
admitted on the part of the original 
lessee, that he could not distrain 
for want of a rever$ion. 

Thusstood tbelawtill 1818, when 
the case of Parmenter v. Webber, 
8 Taunt. 593, and 9 J. B. Moore, 
€56, was decided in the Court of 
Common Pleas. That was an ac- 
tion of replevin, in which the de- 
fendant avowed, first, for one year's 
rent, and, secondly, for half a year's 
rent; plea in bar to both avowries, 
non tenuit. It appeared that the 
avowant being lessee for years, 
under two several leases, entered 
into a written agreement with the 
plaintiff, by which the plaintiff was 
to have (not the leases, but) the 
two farms during the leases there- 
of, and to remain tenant to the 
avowant during the said leases. 
It was contended by the plaintiff, 
that the agreement operated as an 
absolute assignment of the avow- 
ant's interest in the two farms, and 
that having thus parted with the re- 
version, he could not legally dis- 
trai n (a). In gi ving j udgment, Dal" 
lot, C.J. says, ''lam of opinion that, 
" according to the legal effect of the 
** agreement, it amounts to an ab- 
'' solute assignment by the defend- 
** ant, so as to operate as a stirren- 

*'der(b) of the whole of his 
'' term under the two leases in 

" question. In v. Cooper, it 

** was expressly determined that a 
" lessee for years, who assigns his 
** tenn, cannot distrain for renr. 
" And although in this case the 
'< plaintiff has paid the defendant 
** one yearns rent, and he was to 
** remain tenant to the latter during 
" the leases, still as the defendant 
** had parted with his interest, I 
** think the plaintiff is entitled to 
'' judgment.** This was followed 
by the case of Preeee v. Carrie, 2 
Moore & P. 57. That was an 
action of replevin, in which the 
defendant made cognizance as 
bailiff to ff^hUe under a demise 
from the llth of November, 1836. 
llie plaintiff pleaded in bar, first, 
non tenuit; secondly, that by the 
supposed demise in the cognizance 
mentioned. White demised and 
granted the premises to plaintiff 
fur the residue and remainder of 
his, White% estate, term, and in- 
terest of and in the same; and that 
he, White, had not then, or at the 
time when, &c. or at any time 
during the supposed demise to the 
plaintiff, any reversionary estate, 
term, or interest of, or in, the pre- 
mises or any part thereof, expect- 
ant, or to take effect, upon, or at 
any time after, the expiration of the 
term granted to the plaintiff by the 
said supposed demise. The de- 
fendant joined issue on the first 
plea, and replied to the second, 
that by the demise in the cogni- 
zance mentioned, White did not 
demise and grant the premises to 
the plaintiff for all the residue and 
remainder of White's estate, term, 

(a) Vide poH, 161,2. 

(b) Qiuere. 


and interest of and in the same, ia White had granted all his estate to 

manner and form as the plaintiff 
had in his second plea in that be- 
half alleged : and on this issue was 
joined. At the trial it appeared 
that WhitCf being tenant for a term 
eipiring the llth of November, 
1836, by an agreement in writing, 
Md Janoaiy, 1826, agreed to 
give op possession of the farm to 
l^ plaintiff in consideration of 
kis pajing the ralue of the growing 
crops then belonging to White ; and 
ti* plaintiff was to hold the fann 
for the remainder of Whites tenn 
« the same rent that Etutwick 
Jttid; the rent to commence and 
^ payable by the plaintiff from 
^ llth of November then past; 
but it was provided, that in case 
^plaintiff should not be enabled 
to pay for the crops by the 1st of 
Miy, 1886, WhUe might retain 
die form for the remainder of the 
<«»; diatoia the llih ofSeptem- 
*w following, the plaintiff, by bill 
of sale, assigned all the growing 
crops and effects on the farm to 
White, and that afterwards, and in 
tbe course of the same day, White 
"greed verbally with the plaintiff, 
^ die presence of two wiuiesses, 
dMt he would become tenant to 
^^e from that day till the 1 1th 
of November following, at the rent 
of 970^, payable in advance im- 
mediately. The jury found that 
d>ere was a demise from WhUe to 
die plaintifl^ and secondly, that 
^<^ had parted with th« whole 
<tf his term ; and the verdict was 
entered for the plaintiff. A motion 
was made to set aside this verdict, 
00 the groond that the demise had . 
l>ceo (bund upon the 6rst issue, 
And that the plaintiff bad not, un- 
^ the second issue, proved that 

the plaintiff, and had no reversion- 
ary interest after the expiration of 
the plaintiff's term. The Court of 
Common Pleas held that the find< 
ing of the jury on both issues was 
proper, on the ground that though 
the demise to the plaintiff amounted 
to an under-leatCf yet White could 
not distrain for want of a reversion. 
And see 5 Bingh. 24, S. C. 

The result of the cases appears to 
be this— In 1371, a judge, while 
deciding in favour of the right of a 
guardian in chivalry, who had let 
his ward's lands during the whole 
pei-iod of the minority, to bring an 
action of debt for the rent toties 
quoties, as it accrued, which was 
the only question before the Court, 
expresses a doubt as to the right 
of a termor to distrain after he has 
let all his estate of the term. In an 
abridgment of this case, published 
in 1573, it is stated to have been 
admitted by that judge, that a man 
who grants all his term, rendering 
rent, cannot distrain. The doubt 
thrown out in 1371, improved into 
tLConceditur in 1573, is in 1763 
cited as a decided case no longer 
to be impugned or examined. The 
authority thus oddly obtained isap- 
plied however in 1768 to the case 
of a termor who has absolutely as- 
signed his term, and who, there- 
fore, according to every legal prin- 
ciple and analogy, would have no 
reversion of any kind, and conse- 
quently no right to distrain. But 
in 1818 and 1838 tbe doctrine is 
extended to an underlease ; where- 
by an entirely new principle has 
been introduced into. the law of 
tenure with respect to leasehold 
interests; the cases of Parmen/er 
v. Webber and Preece v. Corrie 


The King 



^OL. V, 




The Kino 



appearing to decide that a rent 
reserved upon a tenure under the 
party to whom the rent is payable, 
and which is therefore a rent-ser- 
vice (Litt. sect SI 3), may exist 
witliout a power of distress inci- 
dent thereto. The point arose 
incidentally in Burton v. Barclay^ 
7 Bingh. 745, but it became un- 
necessary to notice it in the judg- 
ment. And see Hick% v. Than' 
lingf 1 Salk. IS, less distinctly 
reported 1 Lord Raym. 99 ; Wil- 
iton V. Pilkney, 1 Ventr. 242, and 
2 Lev. 80 ; Curtwright v. Pinkney, 
1 Ventr. 272; Navcombv. Harvey , 
Carth. 161; Smith v. MapUback, 1 
T. R. 444. Should it be consi- 
dered that the analogy between a 
grant in fee, tenendum of the grant- 
or, and a grant by a termor for the 
whole duration of the term, tenen- 
dum of the grantor, cannot be main« 
tained, inasmuch as the termor is, 

or originally was, rather the Astt^ 
than the tenant of the freeholder, 
still it is conceived that the right to 
distrain for the rent reserved, may 
be supported upon another and a 
distinct ground. Where A. being 
possessed of land for a term of 90 
years, demises and leases that land 
for 80 years to B., rendering rent 
to il.,his executors, administrators, 
and assigns, it is evidently the in- 
tention of the parties, to he col- 
lected from the instrument itself, 
that il. should have the ordina^ 
remedies of a landlord for the re- 
covery of the rent reserved. If then, 
by the rules of law, the demise can 
only operate by way of assignment, 
A. cannot obtain the consideratioa 
for that assignment unless the rent 
be treated as a reni'Charge. 

See further as to the origin of 
manors Cragii Jos Feud. lib. i. tit. 
10, §2. 

Yeast is a 
victual within 
the exception 
in 50 Geo. 3, 
c. 41, (Hawk- 
ers* and Ped- 
lars' Act.) 

The King v. William Hodokinson. 

At the Quarter Sessions for the county of Derby, a 
conviction under 50 Geo. 3, c. 41, was confirmed, subject 
to the opinion of this Court on the following case: — 

The defendant, who had been for some time past in the 
habit* of purchasing yeast at Burton, and carrying the same 
about to the neighbouring towns and villages, and selling 
it for the purpose of being used in the making of bread and 
beer, took a quantity of yeast to Litchurch, in the countj 
of Derby, on the 1 4th November, 1828, and there exposed 
the same to sale in his usual way, without a hawker's 
licence. The question for the opinion of the Court is, 
whether the yeast so exposed to sale is to be considered as 
victuals within s. 23 of 50 Geo, 3, c. 41 (a). 

(a) By which it is provided and son or persons frona selling (inter 
enacted, '' That nothing in this act alia) any fish, fruit, or victuals.** 
shall extend to prohibit an^ per- 


The Kino 


N. £. Clmrkes in support of the Order of Sessions. Yeast 18S9. 
is Dot wctvals, by which mast be understood that which is 
in a state fit to be eaten ; it is merely a substance used in v. 

the preparation of victuals. Rex v. Waddmgton (a) was cited Ho^*«»»- 
below for the defendant. There^ however^ it was not neces- 
sary to consider this point. In Rex v. M*Gill{b) it was 
held, that selling tea as a hawker required a licence. [Bay' 
%,J. That was prohibited by a former statute.] The 
Court said it was a double offence. Yeast is not victuals 
iQcofflmon parlance. It is not even an ingredient in a vie- 
toal, bat merely a substance applied to cause fermentation, 
and thereby render the bread lighter. 

Fynes Clinton^ on the same side. Rex v. M'Gill is quite 
coDcJBsive. Hops would seem not to be within the 5 & 6 
Eiw,6, c. 14(c). In the case of Rex v. Waddington, how- 
ever, it was determined, on looking at the words of that act, 
that as growing com could not be treated as victuals, the 
words of the statute must be considered as shewing the 
intention of the legislature, that every thing which might in 
any shape become victuals should be included in the prohi- 
bition against forestalling. Here, the word victuals is found 
in company with fish and fruit only ; which shews that 
nothing was intended to be exempted, except that which is 
sold in a state fit to be used as food. 

Brodrick, contrd. Yeast is a victual within the meaning 
of this act ; it comes from one victual, and forms a neces- 
sary iDgredient in another. Rex v. M'Gill was a case de- 
pending upon the construction of 10 Geo. 1, c. 10, s. 14, 
and 9 Geo. 2, c. 35, s. €0. The restrictions in these sta- 
tutes upon the sale of tea, rendered it impossible that that 

(a) 1 East, 143. groiu, butter, cheese, fish, or other 

(6) 3 D. & R. 377; 2 B. & C. dead victaals whatsoever, within 

14S. the realm of England, with intent 

(c) Which prohibited the en- to sell the same again.^ Repealed 

grossing of ** anj com growing in by 13 Geo. 3, c. 71. 

the fields, or any other com or 

M 2 

The King 



1829. article sbeuld be exempted from the operation of' tbe 
Hawkers' and Pedlars* Act; nor was the exception urged. 
Beer and wine are considered as victuals by 12 Edw.4t, c. 8. 
HoDGiiNsoH. By 12 Edw. 4, c. 8, beer is expressly made a victual 
[Bayley, J. Whatever contributes to the support of life is 
a victual.] By 55 Geo, 3, c. 99, yeast is recognized as an 
ingredient in inaking bread. In 3 Inst, {a) it was adjudged 
that salt is a victual, because it not only is necessary itself 
for the food and health of man, but that it seasoneth and 
maketb wholesome beef, pork, 8cc., butter, cheese, and 
other viands. To hold that yeast is not within the excei^ 
tion, would have the effect of imposing a most inconvenient 
restriction upon the sale of an article of very general use. 

Lord Tenterden, C.J. — ^The word " victuals^' in this 
statute may fairly be understood to comprise every thing 
which constitutes an ingredient in food, and to extend, 
therefore, to this article^ which is generally, though not, 
perhaps, necessarily » used in the making of bread. 

Baylby, J. — Rex v. M*Gill was a case totally different 
from the present. It was not there agitated whether tea 
caine within the exception in the 2Sd section of the Hawk- 
ers' and Pedlars' Act. I do not think that tea would come 
within that exception, because the sale of tea, under such 
circumstances, was already illegal. The true construction 
of this section has been pointed out by kny lord. 

LiTTLEDALE, J., Concurred. 

Order of Sessions quashed. 

(fl) 195. 


BiGNELL r. Ellis. vJ^^ 

Assumpsit for money had and received. Plea, non Where ii. 
assumpsit; and issue thereon. At the trial before Garroto, ^dn^goods^ 
B. at the last spring assizes at Chelmsford (a), the follow- oi B, at a 
ing facts appeared. The plaintiff rented a farm under \q yj^ 

Colonel Struttf at 140/. per annum, and being distrained against a debt 

. . due fipom B, 

upon for half a year's rent, and being indebted to one to ^., and the 

Mfe in 93/., the following agreement was signed by 5^4^^^,^,^ 

Cobnel Strutt and the plaintiff: — C. for the 

"I hereby sell all my property, of whatsoever kind I Eeingwird 

now possess on the farm I now hold of J. W. Strutt, Esq. over to I)., 

,.,-_,-, ,. If' 1 when it should 

to the said J. H. Strutt, according to the valuation taken \^ ascertained 

before me, and written by Mr. Robert Ellis, junior, in my *S^*'?^*"'" , 

presence, amounting to the sum of 103/.; and 1 hereby to D., itis 

authorize the said J. H. Strutt to deduct 73/. as rent due r*^iT^^!f 

tor 15. to coon- 

to him on Michaelmas day next, and to pay over to Robert termand the 
JE/A's to hold till the account of Jacob Bignell and George ^JmitiUhe ' 
Solfe, of Billericay, is settled by their respective signatures,, account is 
which Robert Ellis will pay as far as the sum of 90/.; and hold the whole 
should the account between the said George Rolfe and ofsuchrwidue 
the said Jacob Bignell not amount to the said sum of 90/. 
the balance then to be paid by the said Robert Ellis to the 
said Jacob Bignell. 

Signed, J. H. Strutt. 

Jacob Bignell:' 
Before the 90/. had been paid over to Rolfe, the plain- 
tiff directed the defendant not to make such payment, but 
to pay the money to himself. This, however, the defendant 
itfused to do. The learned judge was of opinion that the 
clefendaot, as stakeholder, was entitled to hold the money 
until the account between the plaintiff and Rolfe were 
adjofted. The jury accordingly found a verdict for the 
defendant In the following Easter term, Comyn obtained 
a rule nisi for a new trial, against which 

(o) Counsel for the plaiottfT; Comyn and Chitty; fur the defendant, 


Gumey now appeared to shew cause. But the Court 
called upon 

Comyn, in support of the rule* The memorandum of 
sale is not an agreement between the plaintiff and Roffe, 
who notwithstanding that arrangement might have sued 
plaintiff next day. The money in defendant's bands is the 
money of the plaintiff, \_Parke, J. That b the point. 
The question is, whether the transaction was not io effect 
a purchase by Colonel Stnitt, at a price partly to be set 
against the rent and partly to . be paid to Rolfe. This is, 
therefore, not like the case of a party putting bis own 
money into the hands of a third person. Bayky, J. 
How does it appear that Colonel Struit would have con- 
sented to become the buyer on any other terms?] Here 
the third party does not, as in Fatrlie v. Denton (a), 
assent to the transfer. \_Parke» J. If Rolfe had uss^nted, 
there would have been no difficulty, but here Struti is a 

Baylby, J. — If the plaintiff had any control over the 
money, Rolft being no party to th^ agreement, the plain- 
tiff might have revoked the authority to pay him; but that 
is not the state of things here. The plaintiff has goods 
which were seized under a distress for rent, and enters 
into a bargain with his landlord, who is willing to buy the 
goods at a specified price upon two conditions, namely, 
that the plaintiff should pay him 73/. and should pay 90/. 
to Rolfe. The defendant is, by this agreement, constituted 
a stakeholder between the parties. It was in the option 
of Colonel Struti whether he would buy or not. What 
interest he had in protecting Rolfe, we do not know; hot 
he might not have chosen to buy without a power to 
satisfy Rolfe. The plaintiff is not at liberty now to turn 
round and refuse to allow the payment to Rolfe, which 
payment formed the consideration for Strutt's purchasing 
the goods at the price he gave for them. But coiisi- 


dering this a$ money deposited, it is not deposited by 
the plaintiff alone, but by plaintiff and Struit jointly, until 
they came to an agreement. The defendant is justified in 
retaining the money in his hands. 

LiTTLBOALE, J. — If this had been a mere power to pay 
fio/fe, it HfQuld have been revocable ; but that is not the 
state of things, though it bears some resemblance to it. It 
must be presumed that StruU would not have bought 
without this stipulation. 

Parke, J. — I am of the same opinion. I quite agree 
that if it could be established that this was the money of 
the plaintiff, he might have reinstated himself, but the 
goods were sold for money to be paid to Strutt and to 
Jioijk. The plaintiff acquires no interest in the money, 
except a contingent interest in the surplus. 

Rule discharged (a). 

(o) And see Lyte v. Farry^ Dyer, 49 ; Gibtonv, Mineti, 2 Bingh. 7 ) 
49, a.; Taylor v. Letuiaw, 9 East, 9 J. B. Moore, 31. 

The King v. The Tkeasurer of the County of the City 
of Exeter. 

(^OLERIDGE had obtained a rule calling upon the de- 
fendant to shew cause why he should not pay to the pro- dictment for 
secutorthe expenses of the prosecution of an indictment moveVby^er- 

for felony against one ElHs. A former application for the tiorari, and 
- - ••lit 1 tried at Nisi 

eipense of a former conviction had been granted. pnu^^ neither 

the Jndge at 

^, , 1 1 o« • •• ^"* ^""® ^^^ 

Lrowder now shewed cause. Six indictments were re- this Coarc has 

moved by the prisoner, one of which only was tried. At awarT^oste to 

tbe trial the learned Judge doubted whether he had any the prosecutor 

power to give the prosecutor his costs. The rule was c."64'^s.82^ ' 

granted for the costs of that prosecution only ; nothing was whether the 

indictment be 
renioTed by the prosecutor or by the prisoner. 

Where an in- 

The KiMO 


1829. said about the costs of the other five, although they are 
now included in the rule. The Court has no power to gWe 
V. the prosecutor his costs. The words of 7 Geo. 4, c. 64, 

w^'^Ex'eteb* *• ^^' ^^^* " "^^^^ ^^^ ^^"""^ before which any person shall 
be prosecuted or tried for any felony, is hereby authorized 
and empowered, at the request of the prosecutor, or of any 
other person who shall appear on recognizance or subpoena 
to prosecute or give evidence against any person accused 
of any felony, to order payment unto the prosecutor of the 
costs and expenses which such prosecutor shall incur/' &c. 
The Judge before whom the felony was tried is the person 
most competent to form a judgment as to the propriety of 
allowing costs. 

Coleridge, in support of the rule. It is now too late to 
re-agitate the question whether this Court has authority to 
award these costs. The provisions of 58 Geo. 3, c. 70, s. 4, 
difier but slightly from the subsequent enactment of 7 Geo. 4, 
c. 64, s. 22. The cases upon 7 Geo, 4 are cases of mis- 
demeanour removed by the defendant* Even when a bill 
is thrown out, it is the constant practice to apply for costs. 
[Lord Tenterden, C. J. If we have done wrong before, we 
will not amend the rule for the purpose of giving you the 
costs of the other indictments. We have since considered 
the point. Littledale, J. The act only applies to indict- 
ments tried before the Courts in which they were found.] 
This view of the statute would put it in the power of the 
prisoner to deprive the prosecutor of his costs. 

Lord Tentebden, C. J.-^If the costs of the prosecu- 
tion could be granted at all, they ought to be granted by 
the Judge who tried the prisoner. 

Littledale, J. — Even the Judge has no power where 
the case has been removed by certiorari. There is no dif- 
ference in substance between an indictment removed by 
the prisoner and an indictment removed by the prosecutor. 

Rule discharged (a). 

(a) And see Ryan & Moody *5 Crown Cases, 73. 



Nightingale v. Wilcockson. ^^-v^-^ 

Case for an escape against the SherifF of Cambridge- In declaring 

shire. The declaration^ after stating that Kirke was indebted sheriffVor^an 

to the plaintiffs below in a large sum of money, to wit, 50/., escape upon 

to recover which they had issued a capias against Kirke, \i {^ sufficienc' 

directed to the SherifF of Cambridgeshire, averred, that ^p a^^e ^^^^ 
,,,,,. ^ , ,,.«•• . thewntwas 

bjBtore the delivery of the writ to the sheriti to be executed, duly indorsed 

the said writ was duly marked and indorsed for bail for 251. i^Jj^3|}|„gllb" 

and upwards. Averment, that the writ was delivered to virtue of an 

the sheriff who arrested Kirke, and afterwards suffered him ^^^ ^^^ ^f 

to escape. To this declaration the defendant below de- record " 

marred specially ; assigning for cause that it was not alleged 

that any affidavit of the cause of action was ever made. 

Joinder in demurrer. The Court of Common Pleas (a) 

gave judgment for the plaintiff below, whereupon the 

defendant below brought his writ of error. 

Wybum, for the plaintiff in error, contended, that the 
declaration does not shew any obligation on the part of the 
sheriff to arrest Kirke, but on the contrary, shews that the 
sheriff would have been a trespasser in arresting him. Case 
of the Marshalsea (6), Hill v. Heale (c). Rex v. Sheriff of 
Surrey {(1), He also cited Morris v. Hayward{e), and 
Morgan v. Bridges (f). The language of pleadings is to be 
construed most strongly against the pleader. Jackson v. 
PeskedXg), Thornton v. Jdams{h), Webb v. Home (i). 
Secondly, the word "duly" will not supply the want of 
an allegation of those circumstances which are necessary to 
render the transaction legal. Everard v. Paterson (A;), Wil- 
liams V. Germaine (/), Brazier v. Jones (iw). 

(a) 4 fiiagh. 501 ; 1 Moor« & (g} 1 M. & S. «34. 

IViyoe, ^9. 00 5 M. & S. 38. 

* (A) 10 Co. Rep. 76. (i) 1 Bos. & Pul. 281. 

(c) 2 N. R. 202. (k) 6 Taunt. 645; 2 Marsh. 304. 

(£0 1 Marah. 75. (0 Ante, i. 394, 403; 7 B. & 

(O 6 Taunt. 569. C. 468: 

(/) 2 Stark. N. P. C. 317 ; 1 B. (w) Ante, ii. 88; 8 B. & C. 124. 
«c A. 647. 


Russell, Serjt. contri. The declaration contains a suf- 
NioHTiNGALE ^^^^^^ avcrment that the statute has been complied with. 
V. Before 12, Geo. I, c. £9^ a defendant might have been 

arrested for any sum without an affidavit. By that statute 
it is enacted (a) that no person shall be held to special bail 
upon process issuing out of the superior Courts where the 
cause of action shall not amount to 10/. or upwards (i); that 
where the cause of action shall amount to 10/. or upwards, 
affidavit shall be made and filed of such cause of action, and 
the sum or sums specified in such affidavit shall be indorsed 
on the back of such writ or process; There can be no id-* 
dorsement, therefore, except of the sum specified in the 
affidavit. The term ** duly indorsed/' here implies a com- 
pliance with the statute; nor can the averment be sup- 
ported without proof of a bailable cause of action. It was 
held in Gunter v. Cleyton (c) that in an action against a 
sheriff for an escape, the plaintiff must shew a good cause 
against the original defendant. The same point was de- 
cided in Alexander v. Macaulay {d). [Bay ley, J. That was 
a case which turned upon the sufficiency of the evidence.] 
The plaintiff was nonsuited in both these cases for not 
proving a cause of action against the original defendant. 
Since the statute the plaintiff must prove a bailable cause 
of action against the original defendant. [Liord Tenter* 
den, C. J. No doubt the plaintiff would be nonsuited 
unless he proved a bailable cause of action.] The term 
'' duly marked and indorsed for bail/' implies that an 
affidavit had been made and filed. It is not contended 
that the word '* duly'' will supply the omission of a distinct 
and independent fact. In Williams v. Germaine(e), the 
word ^* duly" could only refer to a presentment at the place 
, mentioned in the acceptance supra protest, and to a demand 
of payment from the acceptor, and could not supply the 
omission of an allegation of a presentment to the drawer, 

(a) Sect. 1. (d) 4T. R. 61J. 

(*) Sect. 2. (<) Ante, i. 394; 7 B. & C. 468. 

(0 2 Lev. 85. 


which in that case was considered to be necessary (a). In 

Eoawrd v, Paiierson (i), the word " duly" did not neces- Niohtisoalr 

Miily import that the special authority given by the sub^ v- 

mitsion to arbitration had been pursued. It is merely the 

conclusion which the party chose to draw. CUbbs, C. J. 

there says, ''In Dudley v. Watchorn the word duly had 

reference to the subsequent words accoreUng tojke custom 

snd practice of the said Court. Here the declaration does 

Dot state that the award was made in pursuance of the said 

sHtkority(Jby* In the case referred to by Gibbs, C. J. that 

of Dudley v. Watchom (c), lK>rd Elknborcugh says " Here 

the allegation is that no writ of capias ad satisfaciendum 

was duhf issued against the principal^ which refers to the 

purpose for which it is proposed to be issued^ that of 

charging the bail, and is equivalent in eifect to saying that 

BO ca. sa. was sued out in the manner required by the 

practice of the Court to charge the bail" {d ). The word 

'' duly** supplies the omission of a statement of circum-> 

stances required by law both in civil proceedings. Rex v. 

Lyme Regis (e). Patience v. Townley (/), and in. those which 

are substantially. Rex v. M*Carther (g), or formally. Rex v, 

P. Williams (h), of a criminal nature. It is not necessary 

in pleading to state facts which are implied in those which 

are suted. fVyman's Case{i), Sheriff of Norwich v. Brad- 

ekam{k),CadwaUader,r. Bryan (J). The course of prac* 

tace is for the officer not to issue bailable process without 

first seeing the affidavit. [BayUy^ J. We can only take 

notice of what the duty of the officer is. No argument can 

be foouded upon his practice. Lord Tenterden, C. J. 

The process issues from the same officer, whether it be 

bailable or serviceaMe.] It is not meant to be contended 

(a) But see ante, ii. 398 (a). (h) Ante, iii. 409; 8 B. k, C 68 1, 

(&) STaunt 645 ; 3 Marsh. 904. (0 8 Co. Rep. 81, b. 

(r) 16 But, 39. Ik) Cro. Eliz. 53. 

(<0 Ibid. (/) Cro. Car. 169. And see 

(e) 1 Doug). 79. Plow. 105 a, 149 b: Co. Utt. 

(/) 9 Snitfa, 293. 903 b; S Tbo, Co. litt. 406: 2 

ii) Peake, N. P. C. 155. Wms. Saund. 305 n, 13. 




. 1829. ^^^ ^faii' Statute is merely directory; though it appears to 
have beeo at one time so considered. Whiskard v. Wilder (jot). 
In Hill V. HeakXb) the indorsement on the vrrit is treated 
WiLcocKsoN. as a sufficient authority to the sheriff. Webb v. Heme{()t 
Cashman v. Reid (d), 1 Wms. Saund. 896. 

: Wybum, in reply. It is of great, importance that it 
should not be held that, a party may be arrested without an 
affidavit filed. [Bayley, J. The point presented. to the 
Court is, whether under such an allegation-as that /contained 
in the present declaration the plaintiff is bound to prove at 
the trial an affidavit for 25L and upwards. Lord Tenter- 
den, C. J. It must appear by the declaration in some way 
Or other that an affidavit was filed.] .The second poiut of 
plaintiff in error is> that this is not sufficiently shewn. It 
is not enough to allege a compliance with one part of the 
statute only.. The precedents of Mr. Baron W<H)d always 
state that an affidavit was made and filed. [Bayleyj J. I 
have seen precedents in which the allegation is» that the 
writ was duly indorsed. LiUledale, J.I have seen many 
precedents so framed.] The declaration does not specifi- 
cally charge the existence of a debt above 10/. [Lord 
Tenterden, C.J. The question is as to the effect of the 
averment; as to what proof, is required under it.] In 
Brazier v. Jones (e), it was held that you cannot substitute 
imprisonment under one authority for an imprisonment 
under another. In. Thornton v. Adams {/), where the de- 
fendant justified entering a warehouse for the purpose of 
taking goods which had been fraudulently and clandestinely 
carried, off the defendant's premises by his tenant. Lord 
Ellenborough says, *' I cannot say. that, the teims fraudulently 
and clandestinely, supply by necessary intendment the alle- 
gation that these goods were the goods of the tenant." 

Cur. adv, vult, 

(fl) 1 Burr. SSO. (<0 2 B. Moore, 60. 

(b) 8 N. R, 208; supra, 169. (e) jinte,u^QS; 8 B. & C. 124. 

(r) 1 Bos. & Full. 28. (/) 6 M. & S. 38. 


Batley^ J. now delivered the judgment of the Court. 1829. 

After stating the pleadings, his lordship thus proceeded : The ''^^^^^-^ 
t rji • 1-11. 1 1-1 Nightingale 

fonn of declaration which has been adopted in the present 9. 

case has prevailed extensively for more than 20 years with- Wilcockson. 
oat objection. The form is a convenient one, and we are 
of opinion that it may by law be supported. The declara- 
tion states that Kirke was indebted to fVilcockson in a large 
sum of money, to wit, 50/. This, where a sum or time, 8cc. 
is material, will be taken to be an allegation of the time, sum, 
be. though laid under a videlicet. Upon demurrer, there- 
fore, this declaration must be considered to contain a precise 
allegation that 50/. was due. The safer mode of pleading 
would have been to allege Kirke was indebted to fVilcock- 
lofi in a sum exceeding 10/., to wit, 50/* The declaration 
then proceeds to state, that for the recovery of this debt 
they issued a capias ad respondendum with an ac etiam 
against Kirke; that this writ was duly indorsed for bail for 
25/.; that, being so marked and indorsed, it was delivered to 
the sheriff to be executed. We think that this is sufficient, 
and that the writ, which is stated to have been prosecuted 
out of this Court, is to be presumed not to have been 
awarded improvidently. The presumption is, that all 
things have been done rightly, and that all steps have been 
taken which are necessary by statute or by the practice of 
the Court to the due issuing of the writ (a). The statute 
does not apply to all cases. It has been held to restrain 
pbintiffs only, and not to affect the power of the Court 
on the special application of the plaintiff. Before the 
statute the present form of declaration would have been 
free from objection; and as since the statute the affidavit is 
not required in all cases, it does not appear on the face of 
the record that this is a case to which the statute applies. 
We are, therefore, of opinion that the declaration alleges 

all that is necessary. 

Judgment affirmed. 

(#) The objections of the plaintiff mon law, but to the sufficiency of 

in error appear to have been di- the stateroentofihe process, after it 

reeled, not to the tssoing of the had issued, having been dealt,with 

pn)ce99, which remains as at com- as required by the statute. 


vjl^ The King t;. The InbabiUnto of Bblford. 

A burgess re- UPON an appeal against an order of two justices^ whereby 

afbtra^iuU*"* ^^^^^' ^^^ "^^^ of JoAn M'Queen, then a prisoner in the 

the burgesses, gaol of Berwick, and their children, were removed from 

thrrent°of ^ Berwick-upon-Tweed to Belford, in the county of Northum- 

lands held by berland, the sessions confirmed the order, subject to the 

does not"gain Opinion of this Court upon the following case: — 

a setdement The pauper, J. M., being a burgess of Berwick-upon- 
by estate. ••• • «■••»■!•■ • 

Tweed, and being then settled in Belford, came in 1807 to 

reside at Berwick-upon-Tw*eed, where he continued up to the 
date of the above order, at which time he was a prisoner in Ber- 
» wick gaol, and his wife and five children became chargeable 
to the parish of Berwick-upon-Tweed. For the last three 
years of his residence in the parish of Berwick-upon-Tweed 
the pauper enjoyed, as such burgess, certain pecuniary 
benefits arising out of the estates of the corporation lying 
in the same parish, in the manner after mentioned. The 
mayor, bailiffs, and burgesses of the borough of Berwick, 
by virtue of a charter granted 1 Jac. 1, and confirmed by 
act of parliament, hold, to the use of them and their suc- 
cessors, a large estate in land, situate in the parish of 
Berwick-upon-Tweed, which parish is co-extensive with 
the borough. This estate is chargeable in the first instance 
with the payment of salaries of officers and other corpora- 
tion expenses imposed by the charter, but has from an 
early period after the grant of the charter, and from thence 
hitherto, been distributed into three portions, and each 
portion applied to distinct purposes. The first portion 
consists of several farms, which are demised to tenants by 
the mayor, bailiffs, and burgesses, the rent being reserved 
to the mayor, bailiffs, and burgesses, or to their treasurer 
for the time being, and collected by him. This rent, toge- 
ther with the proceeds of other property, called the Town's 
Ancient Revenue, now form a separate fund, out of which 
the salaries of the officers and other corporate expenses 
authorized by the charter are defrayed. These farms are 

The King 



called *• Treasurer's Farms." The second portion is sttl>- 
dWided into several parcels, varying in quantities from an 
acre and a half to two acres and a half, and in value from v. 

£ 9/. per annum. These are called Meadows; and at 
an annual meeting of the burgesses called " a Meadow 
Guild/' are distribufed, as they become vacant by the 
death or non-residence of the last occupiers, tfmong the 
lenior resident burgesses and widows of burgesses who 
succeed to the rights of their husbands as to meadows and 
stints, though the charter has no provision in behalf of the 
uridows, the eldest resident burgess being entitled to choose 
the most valuable vacant meadow, and so in succession 
down to the junior, till the number of vacant meadows is 
exhausted. The burgesses may either occupy those mea* 
dows themselves or let them to tenants^^ reserving the rents 
to themselves. The lands forming the third portion were, 
op to the year 1761, open fields, upon which each bui^ess 
was entitled to a certain right of depasturing; but at that 
period they were inclosed, and have ever since been let in 
guild, as farms, to tenants for various terms of years, and 
are now demised by lease under the corporation seal, and 
die rent has been, since the year 1810, uniformly reserved 
to the mayor, bailiffs, and burgesses, (which is the name of 
incorporation,) their successors or assigns, or to their trea- 
surer for the time being. Previously to that period, how- 
ever, several instances occur of leases of stint land, wherein 
the reservation of the rent was made " to the mayor, 
bailiffs, and burgesses, their successors or assigns, or to 
dieir treasurer for the time being, or to the several respec- 
tive burgesses or burgesses* widows who should from time 
to time during the said term have shares in the said farm 
hold in equal portions.'' The rent of each farm is divided 
into a certain number of equal portions, generally eleven, 
but in a few instances twenty-two. At another annual 
meeting, called *' a Stint Guild," a portion is allotted upon 
a specific farm to each resident burgess or burgess's widow, 
or to as many of these as there are vacant portions. These 


1829. portions are called '' Stints/' and they, like the. meadows, 

^^HT^^T^ vary in value from 2/. to 9/. per annum, the senior bur- 
The King • • • ••! • i i i. t 

v. gesses being m like manner entitled to a preference as the 

Belford. more valuable stints become vacant, the younger burgesses 
succeeding as vacancies, by the death, removal, or promo- 
tion of their seniors, occur. The portions of the rents 
called stints are paid annually by the treasurer of the cor- 
poration to the burgesses who are entitled to them ; but, 
until the last fourteen or sixteen years, the burgesses in 
many instances received their stint money immediately from 
the farmers or lessees of the specific farms upon which 
their several stints were assigned. The burgesses in guild 
have, by their charter, a power of making bye-laws for the 
good rule and government of the corporation, and for the 
better preserving, governing, disposing, letting, and demis- 
ing of their lands. Sec. In the exercise of this right the 
burgesses assembled in guilds make bye-laws to regulate 
the enjoyment of the meadows and stints, and have pre- 
scribed the conditions of husbandry under which meadow 
and stint lands may be broken up and converted into tillage, 
and (in the case of the meadows) the terms for which they 
may be let by the individual burgesses to whom they are 
allotted. They also decide upon the title of those who 
claim to enjoy meadows and stints according to such bye- 
laws; and instances occur upon the records, of forfeitures, 
both of meadows and stints, either absolute or for limited 
perio()s, inflicted by the burgesses in guild for infraction of 
bye-laws or other gross misconduct. But unless there be 
such forfeiture, or the party either become non-resident or 
relini)uish his stint or meadow by choosing one of more 
value, he may remain in the enjoyment of riie stint or 
meadow which has at the first been allotted to him for the 
term of his life. Some burgesses are permitted to enjoy 
one stint only, others two stints, and others again one 
meadow and one stint. Those who enjoy two stints are 
said to hold one of the stints for or in lieu of a meadow. 
The pauper was for the three years next preceding this. 

order of removal, and still is, in the enjoyment of one stint 
assigned within the parish and borough of Berwick-upon- xJJ^^Kino 
Tweed, called the Burrs, and annually receives from the v. 

treasurer of the corporation, for his portion of the rent, the 
sum of 3/. 5s. 9d. He is also in the enjoyment of another 
portion assigned upon another farm, called No. 12 of the 
outfields, under the description of " stint for a meadow ;** 
his share of the rent of the last named farm being 3/. U. 9d. 
The rents of these two farms are now and during all the 
time of the pauper's sharing in them have been reserved 
to the mayor, bailiffs and burgesses, or to their treasurer, 
and these rents are received by the treasurer, and the above 
are paid to the pauper by him. The pauper is not at pre- 
sent entitled to a meadow, but he will be entitled (if he so 
long live) to claim one as soon as a vacancy occurs in 
regular rotation. The pauper, in his character of a burgess 
of the borough of Berwick-upon-Tweed, is a member of 
the assemblies of burgesses, called guilds, held under the 
provisions of the charter or otherwise, and, therefore, en-> 
titled to a vote as well in the meadow and stint as in other 

The question for the opinion of this Court is, whether 
the pauper John M' Queen was, during his residence under 
the above circumstances in the parish of Berwick-upon' 
Tweed, irremovable therefrom so as to acquire a settlement 
in die said parish. 

Ingham^ in support of the order of sessions. No land 
in the parish was held by the pauper, or in trust for him. 
Aer V. Slofne (a). An indirect interest in the land is not 
sufficient; as an annuity charged upon the land, IZex v. 
Stockkjf Pomroy (6), a right of dower before assignment. 
Rex V. Northweald Bassett (c), a distributive share before 
adasinistration granted. Rex v. lfidworthy(d), Rex v. North 

(«) 6T.iL 895. (c)4D.&R.876;SB.&C.7M. 

(*) Burr. S. C. 76«. (d) Burr. S, C. 109. 

▼OL. ▼, N 


Curry (a). Rex w. Berkswell (b), a licence to occupy. Res 
ThTKT^o ^* Horndon on the Hill{c), or a doubtful equity, JR^j v. 
V. Toddington{d}» Here the burgesses have at the most 

only a right to call upon the treasurer to account to them 
.for the rents allotted to them respectively. If the cor- 
poration were dissolved, the lands would revert to the heirs 
of the donors without regard to the individual members. 
8 Vin. Abr,{e). He was stopped by the Court. 

Alderson, contrsl. The pauper was irremovable, Rex v» 
Warkworth (f), and therefore gained a settlement. The 
burgesses have the power of determining in what manner 
the land shall be occupied. The receipt of rent is equiva- 
)ent to actual enjoyment of the land. The pauper is 
entitled to be present at the guild at which the lands are 
let. His removal would deprive him of that privilege, and 
of his undivided share of the rent. He is, therefore, irre- 
movable. XBayley, J. He has a right to vote whether 
entitled to a stint or not.] A mere claim is sufficient. Rex 
V. Siaplegraveig). [Bay ley ^ J. That was the case of a 
reversioner who went to reside on what he believed to be 
entirely his own estate ; and he could not have been removed 
until the parish officers had found the deed creating the term.] 
The pauper had not then the right which he claioied, though 
the parish officers were not prepared to disprove it. The 
decision of the Court proceeded on the ground that a 
coming to settle under such circumstances was not within 
the prohibition of the statute of Car. 2. 

. T. Greenwood, on the same side. By Magna Charta, 
disseisins are prohibited not only where a person has 

(a) Caldec. 137. Henry 8, the reversionary interest 

(&) dD.&R.9; 1B.&C.642. of the beira of the respective 

(e) 4 M. & S. 569. donors was destroyed by an act 

(cO 1 B. & A. 560. of parliament^ which vested the 

(«) 8 Vin. Abr. Corporation, fee simple in the crown. * 

H. S, pi. 9. Upon the dissolution (/) 1 M. & S. 473. 

of monasteries in the reign of {g) 2B. fie A. 527. 


afireebold but where be has a franchise of any kind (a). ^^^^* 
He is, therefore^ irremovable from such franchise (6). The jj^^ Kikg 
rule was first narrowed in Ret v. Warkworth. There, 'o- 

however, the party was merely entitled to a right of com- 
mon which he had not the means of exercising ; here he 
hu s specific rent-charge issuing out of the particular 
land. IBajfley, J. No burgess is seised in his individual 

Lord Tenterden, C. J. — I am of opinion that the 
paoper is not seised of any estate legal or equitable. The 
estate is in the corporate body ; and it is immaterial whether 
the corporation allowed the pauper to enjoy the whole or 
a certain portion of the rents, or assigned to him the rent of 
a particular estate. The pauper had -no right to enter 
upoo the land or to make over his interest to another^ 
He was entitled even to the rent only so long as the cor* 
poration pleased. 

Bat LEY, J. — Rex y. Warhworth shews that the posses- 
sion of a right of common is insufficient. Here, the pauper 
bad no estate either legal or equitable. The rent is dealt 
eat under the bye-law as the burgesses think proper. 

LiTTLBDALE, J. — ^The pauper had no right to occupy 
the land. 

Parke, J. — ^The pension was determinable at the plea-^ 
sure of the corporation. 

Order of sessions confirmed. 

(a) Cap. 29. Nallos liber homo legalejudiciumpariumsuorum vel 

disseissiatur de libero tene* per legem teme. 

nento vel lUferiatilms vel liberis {h) And see Rex v. Aythrop 

coQBoetadinibos sois nisi per "Rooding, Burr. S* C. 4f4. 

N 2 




A demise of 
tbe glebe by 
Incambent of 
a benefice with 
care of souls, 
to secure an 
annuity, is 
▼oid by 57 
Geo, Sy c. 99, 
reviving 13 
£lix. c SO. 

Shaw r. Fritchard, Clerk, and others. 

XHE following case was sent by Lord Eldon, C* for th^ 
opinion of this Court 

By indenture, bearing date the 8th of September, 1826» 
and made between the Reverend William Pritchardt 
clerk, being then and still rector of the rectory and parish 
church of Yeldham, in the county of Essex, and also vicar 
of the vicarage of Great Wakering, in the same county, 
of the first part: BeNJamin Shaw, of Kilburn Priory, in 
the county of Middlesex, Esq. of the second part: and 
William Stephens, of Bedford Kow, in the county of Midn 
diesex, gentleman, of the third part : and duly executed by 
the said William Pritchard, after recithig that the said 
William Pritchartf was rector of the said rectory and 
parish church of Great Yeldham, and in right thereof was 
seised or entitled of or to the glebe lands, together with all 
and singular the great, or predial, and small tithes, tenths, 
moduses, or customary payments in lieu of such tithes or 
tenths, rents, offerings, and oblations, and other appurte- 
nances to the same rectory or parsonage belonging or 
appertaining; and also reciting that the said William 
Pritchard was also vicar of the said vicarage of Great 
Wakering, arid in right thereof was seised or entitled of or 
to the vicarial tithes to the said vicarage belonging; and 
also reciting that the said William Pritchard, together with 
John Daniel Haslewood, clerk, rector of the rectory and 
parish church of Boughton Winchelsea, in the county of 
Kent, had contracted to sell to the said Benjamhi Shaw 
one annuity or clear yearly sum of 93/. lOs. to be paid to 
the said Benjamin Shaw, his executors, administrators, or 
assigns, during the natural life of the said William Pritchard, 
at or for the price of 750/. : And that in pursuance and 
part performance of the said agreement on the part of the 
said William Pritchard and John Daniel Haslewood^ they 
the said William Pritchard and John Daniel Haslewood 
had, by a certain bond, bearing even date with tl>€ said 


indenture, become bound unto the said Benjamin Shaw, 1829. 
his executors, administrators, and assigns, in the penal sum ^"^^^^ 
of 1500/., with a condition thereunder written for making 9. 

the same void on payment by the said William PrUekard P*»tc"a»»^ 
and John Daniel Haslewwd, or one of them, or one of their 
executors, or administrators unto the said Betgamin Shaw, 
Us executors, administrators, or assigns, yearly and every 
jear, during the natural life of the said William Pritchard, 
the said annuity of 93/. 10s. by four equal quarterly pay- 
ments on the 8tb of June and the 8th of September in 
each and every year, (the first quarterly payment to be made 
•n the 8th day of December the next ensuing,) together 
with a proportionable part of the said annuity up to the 
day of the death of the said William Pritchard, in case, he 
should happen to die on any other day than one of the said 
<|08rterly days of payment. It was by the said indenture 
witnessed, that in pursuance and performance of the said 
^reement on the part of the said William Pritchard, and in 
CDouderation of the sipd sum of 1500/. then paid by the 
Slid Benfamin Shaw to the said William Pritchard, and 
for the nominal consideration therein mentioned to have 
heen paid by the said William Stephens to the said William 
Pritchard, he the said William Pritchard did, at the re- 
quest of the said Beigamin Shaw, grant, bargain, sell and 
demise unto the said William Stephens, his executors, 
administrators and assigns, all that and those the said, 
rectory and parish church of Great Yeldham, and the si|id 
vjcarage of Great Wakerjng, in the said county of Essex; 
and all the messuages or tenements and glebe lands, tithes, 
tenths, oblations, obventions, offerings, portions, profits, 
emoluments, rights, members and appurtenants. whatsoever, 
aitnate and being within or forming part or parcel of, or 
issaiog from, the same rectory and vicarage respectively, or 
thereunto or unto any part thereof respectively belonging 
or in anywise appertaining; To have and to hold the said 
victory and vicarage, messuages or tenements, glebe 
Ituds, tithes, hereditaments, and all and singular other the 

\^ .CA9£S IN' THIS kino's BENCHi 

I98a< pfenisefi thereby granted, : bargained^ so\d and demised, or 
^]J^^' Qipressed or intended so to be, with their rights^ members,. 
v. and appurtenances, unto the said William Stephens, his 

.A,/^ \ executors, administrators, and assigps, thenceforth for aod 
during the full end and term of ninety-nine yenrs thence 
qext ensuing, if he tbe said William Pritckjtr4 should so 
long live: Yielding and paying therefore yearly and eveiy. 
year during the said term, unto the said William Pritchari 
or his assigns, the rent of a pepper corn, if lawfully de^ 
manded : Upon trust to permit the said William PriUhard. 
or hia assigns to hold and enjoy the said rectory and vicar-. 
age» and lands and premises, and to receive ^ rentSr 
issues, and profits thereof respectively, for his and their 
proper use and benefit, until the said . annuity, or some 
quarterly .payment thereof, should be in arrear by the space 
of twenty-one days next after the same should become 
payable as therein mentioned: And upon further trusty 
that in case default should at any time thereafter be made 
i» payment of tbe.ftaid annuity, or any part thereof, bj the. 
apace of twenty-one days next after the same should 
become payable as aforesaid, the said William Stephens, 
bis executors, administrators, or assigns, should enter into 
the actual possesion of all and singular the said rectory and 
vicarage, hereditaments and premises, and should, so lopg 
as the said annuity should be payable, continij^ in siich 
possession, and receive all the tithes or compositions or 
payments for or in lieu of tithes, and all other the renta^ 
issues, and profits of or belonging to the same rectory and 
yicarage, hereditaments and premises respectively, . and 
should from time to time set, let, order, or manage the 
same rectory or vicarage, hereditaments and premises^; in 
such manner as to him should seem reasonable : And upon 
trust, out of the residue of the said moneys to. pay the said 
Benjamin Shaw, his executors^ administrators, or aas^ns, 
die said annuity, or so much thereof as should not have 
been otherwise satisfied, and to pay the ultimate residue or 
surplus of the said moneys unto the said William I^ritchn. 


irdf clerk, his executors, administrators, or assigns: And it i849^. 
WIS also thereby declared, that if the said annuity, or any ^ ' 
part thereof, should at any time be in arrear by the space v. 

of forty days next after any of the days on which the same P*"<="^«>^« 
ought to have been paid as aforesaid, it should be lawful 
for the said William Stephens, his executors, administrators, 
or assigns, and he was thereby directed, if requested so to 
Jo by the said Benjamin Shaw, his executors, administra- 
tors, or assigns, by demising, leasing, mortgaging, or selling 
the said rectory and vicarage, hereditaments and premises; 
or any part thereof, for all or any part of the said term of 
ainety-iiine years, or by such other ways and means as to 
hiia or them should seem meet, to levy and raise such 
som and sums of money as would be sufficient or as he or 
they should think fit or expedient to raise, for paying and 
satisfying the said Benjamin Shaw, his executors, adminis^ 
trators, or assigns, the said annuity, or such part thereof as 
should be in arrear, and all costs, charges, and expenses 
which the said Benjamin Shaw, his executors, administra-^ 
tors, or assigns, or the said William Stephens, his executors, 
administrators, or assigns, should sustain by reason of the 
non-payment of the said annuity, on the days aforesaid, or 
otherwise in the execution of the trusts of the said inden- 
ture: And the said William Pritchard did thereby, for him-' 
self, his heirs, executors, and administrators, covenant M^itb 
the aforesaid Benjamin Shaw, his executors, adniinistrators, 
and assigns, that in case the said annuity, or any quarterly 
payment thereof, should happen to be behind or unpaid 
by the space of forty*five days next over or after any of the 
said days and times on which the same were then appointed 
to be paid as aforesaid, and the said Benjamin Shaw, his . 
executors, administrators, or assigns, should deem it expe- 
dient to sequester the said rectory and vicarage, or either 
of them, it should be lawful for the said Benjamin Shaw, 
his executors, administrators, or assigns, and the said 
WilHam Pritchard did thereby authorize and empower him 
and them to sequester the said rectory and vicarage, or 
either of them, for payment of the arrears of the said 



184 CA8£6 IN TH£ KIKO*S BI^NGH,- 

1H49. annuity* or any part thereof, and particularly to iDstruct 
counsel or civilians to act for the said Benjamin Shaw, bis 
executors, administrators and assigns, and for the said 
Paitchard. William Pritchard, and in his name, either in Courts of 
common law, civil law, or equity, or elsewhere, as occasion 
should require, to assent to and concur in ail such proceed* 
ings as might be necessary to obtain an immediate seques- 
tration of the said rectory and vicarage, or either of them, 
and that without giving notice to or advising or consulting 
with the said William Pritchard thereupon. 

The question for the opinion of the Court is, — whether 
the above demise for securing an annuity, being subsequent 
to the act of parliament passed in the 57th year of the 
reign of his late majesty Geo. 3, intituled, ** An Act to 
consolidate and amend the laws relating to spiritual persons 
holding of farms, and for enforcing the residence of spiri- 
tual 4>er8ons on their benefices, and for the support and 
maintenance of stipendiary curates in England," is valid or 

Mannings for the plaintiff, and for the defendant 67e- 
phens. It M'as the intention of the 57th Geo^ 3 to repeal 
the whole of the statute of £/u., which relates entirely to 
leases. The 57th Geo. 3, after enumerating twelve statutes, 
four of which had been passed in the reign of Elizabeth^ 
enacts, " that so much of the said several recited acts 
passed in the reign of his majesty King Henry the 8th» and 
sb much of the said acts in the reign of her majesty Queen 
Elizabeth, of the said recited acts of his majesty King 
Charles 1, as relates to spiritual persons holding of farms, 
and to leases of benefices and livings,and to buying and 
selling, and to residence of spiritual persons on their bene- 
fices, and also so much of the said recited acta of her 
majesty Queen jinne, and of the said recited act of the 
36th year of the reign of his present majesty, as relates to 
the maintenance of curates within the Church of England, 
and making provision for appointing stipends for such 
curates, and all the said several recited acts, passed in the 


reign of his present majestyi shall be, and the same are re* J85{9. 
spectively hereby repealed." Some of the statutes of EUz. 
coDttin clauses wholly unconnected with the objects falling 
within the purview of 63 Geo. 3. This explains the use 
of the words " so much/' but it was clearly not the inten- 
Uon of the legislature to leave standing any part of the 13 
Eliz. c. 20. The title of that statute describes il as " an 
Kt touching leases of benefices and other ecclesiastical 
benefices with cure.'' The first section of that statute 
runs thus: '* that the livings appointed for ecclesiastical 
ministers may not» by corrupt and indirect dealings, be 
Inosferred to other uses* be it enacted, &c.^ that no lease, 
after the 15th day of May, &c., to be made of any benefice 
(NT ecclesiastical promotion with cure, or any part thereof, 
and not being impropriated, shall endure any longer than 
while the lessor shall be ordinarily resident and serving die 
cure of such benefice, without absence above fourscore 
days ID any one year^ but that every such lease, so soon as 
it, or any part thereof, shall come to any possession or use 
above forbidden, or immediately upon such absence, shall 
cease and be void, and the incumbent so ofi^ending shall 
for the same lose one year's profit, to be distributed by 
the ordinary among the poor of the parish; and that all 
chargiogs of such benefices with cure hereafter with 
any pension or with any profit out of the same to 
be yielded or taken hereafter to be made, other than 
reots to be reserved upon leases hereafter to be made 
according to the meaniiig of this act, shall be utterly 
void." The provision in this act by which the presenjt 
demise would have been affected is evidently that con- 
tained in the former part of the first section, the words of 
which are sufficient to avoid a lease made for the purpose 
of transferring a living to other uses than the support of 
ecclesiastical ministers ; and though the words " charging 
of such benefices/' in the latter part of the section, might 
have affected such a lease as the present, if the statute had 
contained no clause directly applying to leases, it is too 


1829. much to say that leases which had been already expressly 
^'^^'^^ provided for were meant to be attacked again under the 
V. general description of chargings. At common law this 

PniTciiARD. lease would have been undoubtedly good ; and while the 
statute of IS Eliz. c;20, was in full operation, and before 
the enabling statute of 33 Geo, 3, c. 84, demises in this 
form were common. Errtngton v. Howard (ct). Doe d. 
Rogers v. Mears (i), Mouys v. Leake (c), Bromley v. Hoi' 
land (rf), Boxoyer v. Pritchard (e), fVhiie v. Bishop of Pe- 
terborough (f), Silver v. Bishop of Nortoich (g), Co. UtU 
45y a. In Doe d. Cates v. Somerville {h), and in Doe d. 
Broughton v. Gully (t), the leases being granted after the 
repealing statute of 43 Geo. 3, c. 84, and before 57 Geo. S, 
c. 99> were clearly good ; and though in those cases the 
circumstance of the demises having been made before 57- 
Geo* 3, c. 99* was mentioned by the Court, it was not in 
either of them necessary to consider whether the repeal 
of 13 Eliz. c. 20, would have been less complete under 
57 Geo. 3, c. 99, than it was under 43 Geo. 3, c. 84. The 
reference by the learned judges, therefore, to 57 Geo. 3, 
c. 99> amounts to no more than this, that the leases then 
before the Court having been granted during the conti- 
nuance of 43 Geo. S, c. 84, which undoubtedly repealed 
the statute of Eliz., they would be valid, even assuming 
that the prohibitory clauses of the statute of Eliz. were 
restored by 57 Geo. 3, c. 99. 

Supposing the second branch of the first section of 15 
Eliz. c. 20, to apply to leases, notwithstanding they have 
been already provided for by the former branch of the 
section, then the second branch would also come within 
the repealing clause of 57 Geo. 3, c. 99i in which the term 
'^ leases*' is not confined to leases described eo nomine in 

(fl) Ambler, 485. (/) 3 Swanst. 109. 

(if) Cowp. 199. (g) Ibid. 119, n. 

(c) 8 T. U. 41 1. (A) 6 B. & C. 126. 

(«0 5 Vcs. 610 ; r Ves. 3. (i) Ante, iv. 249 ; 9 B. Ac C. 344. 
^(f) il Price, 103. 


tbe repealed statutes. The 14 EKz. c. I T, is one of the 
sUtutes partially repealed, and jet that statute contains no 
profision upon which the repealing clause a? to leases can 
operate, except a clause for avoiding bonds, contracts, 
promises, and covenants for permitting parties to enjoy a 
benefice, or take the profits thereof. The repealing clause 
of 57 Geo. 3, c. 95, would therefore have no operation upon 
14 Eliz. c. 1 1, unless the leases there spoken of embraced 
all contracts for divesting the incumbent of the possession 
of the profits of the living, whatever shape they might be' 
made to assume. 

CUtty, Patteson, and Follett, appeared for several de- 
fendants, ^ho, being also incumbrancers on the living, 
were interested in upholding the demise, and shortly sup* 
ported the arguments which had been adduced for the 

' BnjSriekj for the defendant Osborne, contri^. In passing 
13£/i2, c.^0, the intention of the legislature was to protect 
the successor. The object was also to protect the incum* 
bent himself, first against leases, then against other chargings« 
Leases are avoided by non-residence, or by being so dealt 
with as to make them operate as charges; but direct 
cbarges, whether in the form of leases or in any other forra, 
provided they are not intended to enure as boni fide leases, 
ire absolutely void. This wholesome provision had beed 
inadvertently repealed by 43 Geo. 3, c. 84*. The efl^qct of 
the 57 Geo. 3, c. 99, is to restore the prohibition as to 
charges, but to cootinue the repeal of the former part of 
the 1st section of 13 JB/iz. c. 20, under which it had bcTen 
held, that an incumbent, by his own wrongful i|ct in ab- 
senting himself from his benefice, might avoid his owa 
bonft fide lease. The demise in this case is clearly in sub- 
stance not a lease, but a charge. In Doe v. Somervilte and 
Doe V. Gutly it was not doubted but that if the charges in 
the form of demises then before the Court, and which 


1829. are precisely in the same form as the present had been 
^T^'^^'^ created since the passing of 57 Geo. 3, c. 99> they would 
V. have been void» 


The following certificate was afterwards sent: — 
*' This case has been argued before us by counsel, and 
we are of opinion that the demise for securing the annuity 
in question is invalid, being in substance a charging of the 
benefice within the meaning of the 13 Eliz.c*20, which, 
as far as relates to chargings of benefices, is now in force* 

J. Baylby, 


Jas* Pabke.'* 

^. agrees to 
eiecute to B, 
an effectual 
assignment of 
the two leases 
of a house and 
shop for 4250/, 
** as he holds 
the same for 
term of S8 
years," and B. 
agrees to ac- 
cept *< a proper 
assignment of 
the Teases as 
above de- 
scribed, with- 
out requiring 
the lessor's 
title:"— Held, 
that B. was 
bound to take 
an assignment 
of two conse- 

tboush the se- 
cond was void, 
b«ng executed 
under a power 
which had not 
been pui sued. 

Spratt v. Jeffbry. 

Assumpsit. The declaration contained special counts 
for non-perforinance of the agreement mentioned below, 
for the sale of a public-house, 8cc., alleging defect of title^ 
the non-payment of a penalty of 300/., and of the expenses 
of endeavouring to obtain an assignment, and the non-retura 
of a deposit of 2O0L paid by the plaintiff under the agree- 
menty with the usual money counts* Plea, non-assumpsit* 
At the trial before Lord Tenterden, C. J. at the sittings at 
Westminster after Michaelmas term, 18£8(ii), a verdict 
was found for the plaintiff, damages 230/. (6), subject to 
the opinion of this Court upon the following case. 

On the 23d of April, 1828, the plaintiff add defendant 
entered into the following agreement (r) : — 

'' Memorandum of an agreement made this ttoenty^ihird 
day of jtpriU 1828, whereby it is witnessed, that WilUam 
Jtfftry, ofb^c. victualler, doth agree to sell unto Williaia 

(a) Counsel for the plaintiff, Sir 
X Scarlett and Jardine ; for the 
defendant, Campbell and 
. (6) The amodnt of deposit and 

expenses of inTestigating the title 
and the broker's charges. 

(c) The words in iulics are 
written, the rest printed* 


Spratt, of Shad well, the two leases and good-^will in trade of le^g. 
the house and premises now occupied by him, known by ^IT*^''^^ 
the sign of The Rockingham Arms, and shop adjoining, tr. 

Bitaate at i^c^ for the sum of 4250/. as he now holds the J^fi'eR^* 
9uae,for terms qf2S years from Midsummer next ensuing^ 
at the annual rent of 126/. and under fair and usual cove^' 
natUs, only except that the lessee is to insure and to keep the 
house as a tavern or coffee-house, to be caUed The Rockingham 
Arms: also such of his household goods, fixtures and effects 
now on the premises as he has a right to sell, at a fair 
valuation,, by &c. ; also his saleable stock in trade, not ex- 
ceeding the undermentioned quantities and value, viz. por-» 
ter, nine butts, &c. ; such stock to be valued by proper 
persons or their umpire: And the said William Spratl doth 
hereby agree to accept a proper assignment of the said leases 
and premises as above described, without requiring the lessor*s 
title; and that he will pay unto the said William Jeffery 
the said sum of 4£50/. for the same; also the amount at 
which the goods, fixtures, effects, and stock in trade shall . 
be valued as aforesaid, together with the proportionate 
value of the unexpired term in the licences (after deducting 
the sum of two hundred pounds, which has now been paid 
as a deposit,) and take possession of the said house and 
premises on or before the 5th day of May next ensuing, at 
which time, upon payment of the several sums as aforesaid, 
ilf the said William Jeffery doth agree to execute an effectual 
mgmnent of the said leases, and deliver up possession of 
sll the said premises except the shop, which is underlet at will, 
sod also the effects and stock in trade, and to assign over 
good and sufficient licences to the said William Spratt; 
also to repair or allow for the external damaged windows, 
and pay and allow for all rent, taxes, gas, and outgoings, 
op to the day of quitting possession. And it is mutually 
agreed, that all reasonable expenses of carrying this agree- 
ment into effect shall be paid in equal moieties, and that if 
either of the said parties shall not fulfil all and every part 
f>f the same, the party not fulfilling shall pay unto the other 


1829^ of them who shall be ready >nd willing to fulfil the saint 
the sum of Jive hundred pouocls hereby settled and fixed as 
liquidated damages, the deposit now paid to be forfeited 
in part of such damages, or returned in addition thereto 
|i8 the case may be/' 

. Then followed an engagement by Je^ffhy not to be con^ 
cerned in any victualling-house within half a mile {a). 

Shortly after the above agreement was executed, th^ 
plaintifl^'s attorneys received from the defendant's attorneys 
an abstract of the vendor's title to the premises in question, 
entitled 'f Abstract of the title of Mr. W. Jeffery to lease- 
bold premises, called the Rockingham Arms, in the parish 
of St* Mary, Newington, in the county of Surrey/' The 
abstract (to which either party may refer) set forth an in« 
denture dated the 2d of March, 18 IS, made between 
J^hn Carter and Samuel Brandon (therein described as 
Ibe. then trustees of the will of Thomas Brandon, deceased) 
of the firsi part, Stephen Hall, on behalf of himself and his 
infiiBt children, WilUam Smith and Mary Ann his wife, 
Thomas Fleming and Harriet his wife (which, said Mary 
Ann Smith and Harriet Flemit^ were stated in such lease 
to be the only then surviving children of the said Hummt 
Brandon, deceased, and to be with the infant children of tiia 
said Stephen Hall, by his late wife Elizabeth Hall, de« 
ceased, another of the daughters of the said Thomas Branr 
don deceased, the only devisees and legatees named in htt 
last will and testament) of the second part; and Joseph 
Denyer of the third part By this lease, John Carter and 
Samuel Brandon, with th^ consent and approbation of the 
parties thereto of the second part, demised the premises in 
question to Denyer for 25 years from the 24th June, 1812, 
at the yearly rent of 126/. After stating several mesne 
assignments the abstract shewed, that by an assignmenl 
dated 2d June, 1824, the lease and premises became vested 
in Alexander Magnus for the residue of the term. The 
abstract then set forth an indenture of lease dated the 17th 
of Jun^j 18^5, between. JoAn ^e&s/^,, therein described ^» 
(a) As to mode of computing distance, vide Leigh v. Hunt, ante, iv. 579. 




the then only continuing trustee of the estates of the said I839. 
Thomoi Brandon, deceased, of the first part, Stephen Hall, 
Thomas Fleming, George Webster and Elizabeth his wife, 
late Elizabeth Hall, spinster, Mary Ann Hall and Jane ••!^i'^^.<^^- 
Hall, of the same place, spinsters, Stephen Hall, Thomas 
Brandon Fleming and Harriet Fleming, therein described 
as parties beneficially entitled to the estates of the said 
Thomas Brandon, of the second part, and the said Alexander 
Magnus of the third part. By this indenture it was wit- 
nessed, that in consideration of 1000/. paid by Magnus to 
the parties thereto of the second part, the said John 
Webster, by the consent and direction of the parties thereto 
of the second part, demised the premises in question to 
Magnus, his executors, administrators and assigns, for 19 
years from the 24th June, 1827, at the yearly rent of 126A 
The abstract then stated a bond also dated the 17th June^ 
]8£6, from the parties of the second part to the last men^ 
tioned indenture of lease to Magnus, his executors, adminis- 
trators and assigns, in the penal sum of dOOO/. for quiet en- 
joyment of the premises against John Webster, his exe- 
cutors, administrators and assigns, themselves, and any 
claimants under them or the said Thomas Brandon, de- 
ceased. The abstract, after divers mesne assignments, then 
shewed an assignment by indenture, dated 10th June, 18£6, 
of both the above leases to the defendant, the consideration 
for which assignment was 4000/. After perusing the ah* 
stract, the plaintiff's Attorneys returned it to the defendant's 
attorneys with several queries on the title, written in the 
margin, and amongst them were inquiries whether the 
trnstees under the will of fhomas Brandon, named as the 
granting parties in the two indentures of lease of the 2d 
March, 1813, and 17th June, 1825, had power to grant 
leases upon a premium, and whether the respective direct- 
ing parties to those leases were all the parties beneficially 
interested in the demised premises. 

On the 5tli. May, the vendor's attorneys returned the 
abstract, and in answer to these inquiries referred generally 




to the will of Thomas JSrandon, and at the same time re* 
quired the plaintiff's attorneys to forward the draft assign- 
ment as soon as possible. Upon examining the will it 
appeared that Thomas Brandon devised the premises in 
question, with other property, to trustees, amongst whom 
was John Carter, one of the granting parties in the lease of 
2d March, 1813, in trust for his, the testator's, three 
daughters, Mary Ann Brandon, Elizabeth Brandon^ and 
Harriet Brandon^ in equal shares as tenants in common, 
and not as joint tenants, and for their respective executors, 
administrators and assigns, subject to a proviso that it 
should be lawful for the said trustees, or the survivors or 
survivor of them, to demise the estate devised to thetn in 
trust on building or repairing leases, or common tenants 
leases, for any term of years, so as all such leases made in 
pursuance of that his will should be made to take effect 
in possession, and not in reversion, or by way of future 
interest; and so as upon every such lease or demise there 
should be reserved, during the continuance thereof, the best 
and most improved rent that could be reasonably had or 
gotten for the same, without taking any sum or sums of 
money by way of fine or foregift. At the time when the 
indenture of lease dated 17th June, 1825, was granted, 
several children of 'Elizabeth Brandon and Harriet Bran^ 
don, mentioned in the will of Thomas Brandon, beneficially 
interested in the premises under the will, were living, and 
infants, and did not join in the lease; and some of such 
children were living and infants at the time when the above 
agreement was made between the plaintiff and the de- 
fendant, and also at the time when the cause was tried. 

On the 5th May, the day appointed by the contract for 
the completion of the purchase, the defendant was pre- 
pared to give possession of the premises, and to assign the 
leases ; and plaintiff attended on the premises with his 
broker, but his attorneys did not attend, and on the follow- 
ing day by letter to defendant's attorneys, plaintiff's attor- 
neys stated, that before they proceeded any further in the 


businesa^ or gave any answer to the question put to them 1829. 
by the defendant's solicitor that morning, requiring to be 
informed whether they meant to complete the purchase or 
not, wished to be informed whether the answers returned 
to the plaintiff's solicitor's queries on the abstract contained 
all the information intended to be furnished, and whether 
the deeds which they, the plaintiff's attorneys, required 
would be produced to them. To which letter the defend- 
ant's attorneys returned for answer that they did not feel 
themselves bound to give any further answers to the queries 
00 die abstract ; that the deeds required to be produced 
were not in their possession, and that the same related to 
the lessor's title> which the purchaser was not at liberty to 
inquire into. Oa the 12th May, the plaintiff's attorneys by 
letter informed the vendor's attorney that they had inspected 
the will of the late Thomas Brandon at Doctors' Commons, 
that it appeared that the will gave a power to the trustees 
to grant leases, so that no premium were taken for the 
granting thereof, and that the term were made to commence 
in possession, and not in reversion. They further stated 
that the title to the second lease appeared on the face of 
the abstract (connected with the information acquired by 
the inspection of the power under which it was granted) to 
be decidedly defective, a premium having been taken for 
the granting thereof, and the term being made to commence 
in reversion and not in possession. Under these circum- 
stances they informed the vendor's attorneys that it was the 
intention of their client to rescind the contract, and to re- 
quire the payment of the deposit money with interest and 
the expenses, together with 500/. agreed to be paid as 
liquidated damages. With this requisition the defendants 
refused to comply. 

All the parties interested, who were of age when the 
second lease was granted, joined therein and received the 
consideration money, a«d laid out the whole of it in bene- 
ficially improving other parts of the property devised by 
the will, of which devised property the premises in ques- 

VOL. V. o 


1829. tion are part, for which purpose money was wanted. The 
defendant, at the time of making the contract, declared to 
plaintiff and his broker, that he, defendant, would sell no 
other title than what he held, and would not sign the agree- 
ment unless the stipulation respecting the non-production 
of the lessor's title were introduced. The rent of 1262. per 
annum was not at the time of the trial of the cause the 
best and most improved rent that could reasonably be had 
or gotten for the premises. 

Jardine, for the plaintiff. This was an entire agreemeal 
for the sale of two leases. On the first lease no question 
arises; but the lease of 1825 was, in equity, absolutely void, 
being made in contravention of the power in three particu- 
lars ; J St. it does not reserve the best rent ; 2dly, it is granted 
in reversion ; and Sdly, a sum of money is taken by way of 
fine. This is not a formal defect in the execution of a 
power, in which case equity may relieve; but the lease is 
granted in direct contravention of the terms of the power, 
and is, therefore, absolutely void (a), and cannot be con- 
firmed (ft). Upon the face of the abstract also the title is 
defective. It is not shewn that Dn Webster had any inte- 
rest at all ; he is not named as a trustee in the will, nor 
does his authority to demise any where appear. The de- 
fendant asked for the deeds by which Dr. Webster was 
appointed trustee, but they were not furnished, and he had 
therefore no reasonable satisfaction that Dr. Webster bad 
any title whatever. The whole question is^ whether the 
plaintiff has contracted by the terms of his agreement to 
accept such title as tbe vendor had, whether good or bad. 
There are only two parts of the agreement upon which the 
defendant can rely as compelling the plaintiff to take the 
title whether good or bad. The Court must be satisfied 

(d) Campbell w Leach, Ambler, v. Verney, Willes, 169; Doc v. 
740 ; Sugd. Powers, 377. WatUy 7 T. R. 83. 

{b) Co.Litt. 895. And bee Jones 


(bat the purchaser explicitly contracted for such title as the 
Tendor could give, or that he had notice of the badness of 
the title before they will enforce payment of the 50001. Of 
the latter circumstance there is no evidence in the case. 
It win, however, be contended for the defendant, from 
two passages in the agreement, that the purchaser is bound 
to take such title as the vendor could give. The first of 
these is the words '' as he holds th^ same." By the con- 
text it will clearly appear, that these words were not in^ 
tended to be used in the sense which it is now attempted 
to affii to them. They were merely used as descriptive of 
the manner and circumstances of the occupation. They 
relate to the possession, and not to the title. The expres- 
sion relied on is found in that part of the agreement which 
points out those things which are to be done by the vendor. 
In the purchaser's part there are words of more limited 
extent, which would have been useless if the words in 
question were to be understood in the manner contended 
for by the defendant. If these words referred to title, the 
stipulation as to non-production of the lessor's title would 
be wholly unnecessary. With regard to the second expres- 
sion, namely, that the plaintiff was not to require the 
lessor's title, its effect is merely to exempt the vendor from 
the necessity of proving that his title is as good. In White 
V. Foljambt (a). Lord Eldon says, " Do you carry it to the 
extent that the defendant could not be permitted to shew 
you had a bad title (&) ? The plaintiff's case is quite clear 
of any difficulty. His objection is not to the lessor's title, 
but to that of the lessee. Thomas Brandon^ who created 
the power (c) under which the leases were executed, must 



(•) 11 Vcs. 33r. 

(h) Ibid, 359. 

(c) The title of an appointee is 
the same as if the estate had been 
expressly limited to him by name 
in the deed creating the power. 
18; Lady Graham\ case, F. 

Moore, S61 ; MiddUton v. Crqfti, 
2 Atk. 661 ; Koach v. Wadham, 6 
East, S89, &2 Smith, 376; Mound- 
rell V. Maundrell, 10 Vesey, 355 ; 
Ratf V. Pungy 5 B. & A. d61 ; 
Doe d. Wigan v. JoneSf 10 B. &C. 
458 ; S Johns. (American) Chan- 
cery Reports, 550. Tor some 
O «i 




be considered as the lessor. The plaintiff does not dispute 
the title of Brandon as lessor; but he says that Brandon 
did not demise. There is another objection founded upon 
a variance between the defendant's title and that which he 
contracted to sell. The agreement treats these leases as 
concurrent leases. A fair presumption upon this memo- 
randum is. that the defendant was selling the leases under 
which he held the premises. They should have been leases 
to which his possession could be attributed. The cases of 
M^hite V. Foljambe (a) and Deverell v. Lord Bolton (6) are 
extremely apposite. [Bayley, J. In White v. Foljambe it 
was said that he held the residue of a term; here the interest 
is described.] There they would be supposed to be leases 
of different parts ; Deverell v. Lord Bolton. 

Campbell, contrsl. This is a case of extreme hardship 
upon the defendant^ who had most carefully guarded him- 
self against warranting a complete title^ and declared to 
the broker that he would not sell any title but what he had. 
No bad faith can be imputed to the defendant, it being 
entirely the fault of the plaintiff that the bargain has not 
been carried into effect. To begin with the last point 
which has been made on the part of the plaintiff. No 
fraud and no misdescription are chargeable upon the de- 
fendant, and he has been at all times ready to execute an 
assignment. In White v. Foljand>e and in Deverell v. jLor J 
Bolton there was misdescription. In the former of these 
cases the interest of the vendor was described as one term 
of 50 years, whereas he held under two terms. The incum- 

purposes, however, the appoint- 
ment is treated as a distinct sub- 
stantive act. It is considered as 
a conveyance with reference to 
the provisions of 87 Eliz, c. 4, as 
to fraudulent conveyances, Duke 
of Marlborougk v. Lord Godol- 
phifiy 2 Vez. sen. 61, 65; and with 
reference to the statutes requiring 
registration, Scrafton v. Qtiincei/, 

ib. 4tS. So, the appointee is 
looked upon as a party claimiDg 
under the appointor within a co- 
venant against the acts of persons 
claiming vtuler the appoiotor; 
Hurd V. Fletcher, 1 Dougl. 43. 
And see Bartlet v. JRamscfen, 1 
Keble, 570; po$ty 200 (a). 

(a) 11 Vesey, 337. 

(6) 18 Vesey, 505. 


brances also will dispose of that case as an authority. 
Here there is an express allegation in the declaration which 
may always be adverted to^ of the existence of the two 
leases. [Bayley, J. No question is referred to us as to 
the form of the declaration ; the question is, whether this 
was a warranty of title, or merely an undertaking to assign 
what he has.] It is of the last importance that parties 
should be able to stipulate so as to avoid any questions of 
title. There are few titles in which a conveyancer will not 
discover defects. The words*" as he holds the same," 
relate to the title. The antecedent referred to is the lease. 
The words are a qualification of the vendor's engagement. 
It b said that he knew the objection to the lessor's title ; 
if 80, the case of Freme v. Wright (a) is very nearly in point. 
In that case a party who had contracted with assignees to 
purchase the interest of the bankrupt under such title as he 
lately held the same, was compelled to accept a lease which 
the lessor had no power to make. [Littledale, J. That is 
not the case here. The plaintiff does not mean to say that 
the testator had not a good title.] It is not shewn that 
Carter did not assign to WatkiiiSL It is necessary to refer 
to the title of the lessor, in order to attack the lease in 
question. That the purchaser has precluded himself from 
doing. Then it is objected that the interest is only equit- 
able. In Alpass v. Watkins {b) the Court said, that upon 
a question as to the right to a return of the deposit, they 
would only look to the legal title. It is true, that in 
Elliott V. Edwards (c) it was held, that the liability of the 
purchaser in equity was a sufficient objection; but that was 
a case of an actual incumbrance to the extent of the pur- 
chase-money, which the vendor had not paid. \Parke, J. 
Prim4 facie a party bargains for a good title in equity as 
well as at law.] The agreement was qualified to meet 
certain objections to the title of the lessor. 



(«) 4 Mndd. 364. 
(6) 8T.R. 516. 

(c) 3 B. & P. 181. And see 
Maberly v. Robins, 5 Taunt. 626 ; 
1 Marsh. 268. 


Jardine, in reply. The plaintiff bargained for a good 
derivative title. In Curling v. Shuttleworth (a) the Court 
of Common Pleas thought that the purchaser was not 
bound to proceed where even a reasonable doubt existed. 
[Bayley^ J. There must be a good title. There can be no 
middle course, Romilly v. James (6).] It is admitted that 
if the present case fell within Freme v. IVright, a difficulty 
might arise. That case, however, has since been over- 
ruled. [^Parke, J. The question is, whether this is the lease 
of the person who executed the indenture, or of the donor 
of the power. At the time the contract is entered into, the 
existence of the power is unknown. The point to be con- 
sidered is, what was the meaning of the contract at the 
time it was made.] In the Earl of Uxbridge v. Bayley (c) 
it is said, that " whenever parties have power by deed to 
do a particular act, when done under the power it is as if 
incorporated in the original deed when executed/' [ParA'e, J. 
The rule is thus laid down in Purvis v. Rayer (rf), " It is a 
general rule in equity, that if a person, generally speaking, 
offer any thing for sale^ the vendee is entitled to see that 
the vendor has it with the quali6cation and in the way in 
which he the vendee understood that he bought it."] 

Bay LEY, J. — I cannot say that I entertain any doubt in 
this case. The plaintiff has all that he bargained to have. 
He is bound to pay the purchase-money, or at least he is 
not entitled to recover back the deposit. At the time of 
the sale the defendant had two leases, under which the pur- 
chaser might occupy during the whole period of 28 years 
mentioned in the agreement, if the leases were valid; and 
if he were evicted he would have his remedy against the 
trustee upon the implied covenant contained in the word 
** demise," which is found in both leases (e). The defendant 

(«) 6 Bingh. 121. (e) That the assignee of the 

(b) GTuunt. 2C3; 1 Marsh. 592. lessee may maintain covenant on 

(c) 1 Ves. juM. by Lonl Com- the word dimisi, see the dictum 
iM9swner Ashhurst, of Bro&n, J., Dyer, 357 b. 

{d) 9 Price, 488, 518. In the present case, however, 


agrees to sell, not the Rockiugham Arms, but '' the two 
leases and good-will in trade of the house and premisesj 
for the sum of 4Q.50L, as he holds the same for the term of 
28 years." Now it is objected on the part of the plaintiff, 
that these words must be understood to mean not two con- 
secutive, but two concurrent leases; and While v. Foljambe 
and Deverell v. Ijord Bolton are referred to. But in those 
cases the language of the contract is very different; there 
one term is spoken of, whereas here, as the contract speaks 
of two leases and one rent, the leases might be either con- 
secutive or concurrent. There is, however, one clause 
ivhich shews them to be consecutive. The premises are 
described as being held at one rent. The defendant having 
bargained to sell the two leases and the good-will, &c., the 
plaintiff agrees to accept an assignment of the said leases 
and premises as above described, without requiring the 
lessor's title. The money is to be paid for an assignment 
of the leases and premises ; and this without requiring the 
lessor's title. The only fair construction of the agreement 
is, that the defendant is to sell the leases only, and that his 
title to those leases is not to be questioned. The plaintiff 
may have possession of the premises during the whole term; 
if not, he has his remedy over against the party who granted 
the lease. The plaintiff would therefore become entitled 
either to the leases or to an equivalent from the lessor. 
The true construction is, that the defendant sells and 
assigns the leases only, and that the plaintiff has precluded 
himself from questioning the plaintiff's title. 



LiTTLEDALE, J. — I have some doubts, but upon the 
vhole I think that judgment must be for the defendant. 
One objection is, that the leases are misdescribed in the 

both the lease of 1813 and that of Rep. 80,) gave no remedy against 

1895 contained covenants against 
the acts of the lessors, which qua> 
Ufied covenants, while they de- 
strojed the right of action upon the 
word dimniy (Noka's case, 4 Co. 

the lessors in respect of the im- 
perfect execution of the power. 
And see Falder v. Hooker, 2 Men v. 







agreement, which must be taken to mean that the premises 
are held for different terms in different parts of the 
premises. And this would be the construction if the words 
had stood alone. To justify that construction, the words 
should have been, not at the annual rent of 120/., but at 
several annual rents, amounting in the whole to 120/. The 
expression used in the agreement is satisfied by consecu- 
tive leases. The words " as he now holds the same/' 1 
consider to be mere words of description, meaning that the 
vendor has a lease of them for 28 years; not restricting the 
sale to the interest which the lessor has, but leaving the 
question of title to be collected from other parts of the 
instrument. The defendant was not the original lessee, 
and the plaintiff did not mean to exclude himself from the 
right of objecting to any defect in the assignments which 
connected the defendant with the original lessees. But 
taking the agreement together, it appears that the plaintiff 
was willing to accept a qualified title. The lessor's tide is 
not to be inquired into. The whole difliculty in the case 
arises upon the words ** without requiring the lessor's title." 
Then who is the lessor here? The plaintiff contends that 
Brandon, the party who created the power, must be con- 
sidered as the lessor. In many cases it is so; but in JsAer- 
%oood V. Oldknow (a) it was held, that a remainder-man 
taking after tenant for life, who had granted a lease under a 
power, was entitled, under 32 Hen, 8, c. 34, to take ad- 
vantage of a covenant made with the tenant for life and his 
assigns. Upon the whole I rather think that the construc- 
tion set up by the defendant is the true one. The pur- 
chaser can hardly be supposed to have been willing to 
accept a lease void under the power. But as nothing is 
said in the contract about the power, it may be supposed 
that the parties knew nothing about it (6). In speaking of 
the lessor's title, therefore, they would in all probability 

(a) 3 M. & S. 382. And see ante, 
195 (o); Glover v. Cope, Carthew, 
205; Skinner, 305; & 3 Lev. 326. 

{b) Qu. Whether the vendor 
could set up his own ignorance of 
tlie state of his title ? 



mean the title of the party (a) by whom the lease pur- 18^9. 

ported to be granted ; that, perhaps, is the better mode of 

construing this agreement. ^'v? 


Pabkb, J. — I do not feel much doubt on this question. 
The action is brought to recover back money paid as a 
. consideration, which has failed, and the expenses which 
the plaintiff has incurred, on the ground that the defendant 
has not made a good tide. If the defendant has performed 
aU that he undertook to perform^ the plaintiff cannot main- 
tain this action, though he may have discovered that his 
bargain is worth little or nothing. If the defendant is ready 
to deliver all that he has engaged to deliver, the plaintiff is 
not entitled to recover. All depends upon the terms of 
the agreement. It is said that the defendant agreed to 
assign two concurrent leases. The contract is not very 
dearly expressed ; but the defendant agrees to sell " the 
two leases and good-will in trade, as he holds the same, 
for the term of twenty-eight years,'' and only one rent is 
mentioned. In Purvis v. Rayer (b) it was held, that under 
a general contract for the purchase of a lease, the vendee 
it not bound to take only the instrument and the title which 
the lessee had under that instrument. This had long before 
been settled with respect to purchasers of freehold interests. 
It is, however, competent to parties to enter into a qua- 
lified contract. Here the question mainly turns upon the 
qualification introduced by the words " without requiring 
the lessor's title.'' Upon this the plaintiff says, first, that 
he is at liberty to object to the lessor's title, though the 
defendant was not bound to produce it. This would be 
very unreasonable. Then he says, that the title here spoken 
of, and which is not required to be produced, is the title of 
the donor, not the title of the party making the lease. At 
die time of entering into this agreement the parties knew 

fa) £acb lease, however, and shews that the nominal lessor was 
paiUcolarly the second, distinctly a trustee for others. 

(6) 9 Price, 488, 590. 


nothing about the power. The proviso therefore means» 
that no objection is to be taken to the title of the party 
making the lease. We have no evidence that these leases 
were under a power. That is assumed by the plaintiff. 
The leases purport to be made by the party who under 
^randofC^ will had the whole legal estate out of which the 
terms were derived. The provision respecting the mode of 
leasing, only means that the cetteux que trust shall not object 
where the leases are in the form prescribed. Upon the 
true construction of this agreement therefore every thing 
has been done which on the part of the defendant ought to 
have been done. 

Postea to the defendant. 

Doe, on the demise of CHRisTMAS^t?. Oliver and Oliver. 

Same v. Oliver, Arnold, Barton, Read, Biggs, 

Storer, and Knight. 

Devise of JtiJECTMENT for certain messuages and lands, situate 

lands to A. for jp ji,g paj-jgh of St. Margaret, in the town and borough 

life, remainder / . . 

to the children of Leicester. Plea, not guilty. At the trial before 

TheUmeof^/s D* Oj/ley, Serjt, at the Leicester Summer Assizes, 1828, 

death. B. \e(i a verdict was found for the plaintiff by consent, subject to 

who, with her ^^ opinion of this Court upon the following case : — 

husband, in Theophilus Holmes, being seised in fee of certain tenements, 

the hfeiirae of , , . f .„ ' ® / 

A., levied a by bis last Will and testament m wntnig, bearmg date 29th 

^c'^ The fine September, 1784, duly executed and attested for the purpose 

operates by of passing real estates, gave and devised as follows : — ** I 

duHnK^the^lffe &^^ ^^^ devise the messuage or tenement wherein I now 

of .^., but after dwell, with the appurtenances thereto belonging, and the 

operates upon ^^^ ^^ ^^^ ^7 household goods, plate, linen, and other house* 

the estate, [jqIj furniture of every sort and kind which shall be about 
vesting the 

right of posses- my said messuage or tenement at the time of my decease and 
sion in C. jjjgQ j^y messuage or tenement in Belgrave Gate, Leicester, 


onto my wife Christian Holmes for and during her natural ]8<29. 
life; and from and after her decease, I give and devise the 
laid messuage or tenement wherein I now dwell, with the 
appurtenances, and also my said messuages or tenements'' 
(in the said will described, being those for the recovery of 
which these actions are brought,) ** with warehouses, 
stables and other buildings, yards, gardens, and backsides 
thereto belonging, in case I shall die without issue (but not 
otherwise), unto, between and among all the children of 
my brother, the Rev. Mr. William Holmes, that shall be 
living at the time of my said wife's decease, and to their 
beirs and assigns for ever." 

The testator died, seised of the premises in question, in 
September, 1785, without issue, and without altering or 
revoking his said will. On his death his widow, who after- 
wards married Joseph Chamberlain, entered into posses- 
sion of the tenements in question, and so continued until 
the time of her death, which happened in or about Sep- 
tember, 1826. The William Holmes, mentioned in the 
will of the testator, had issue three children only, viz. JameS" 
Harriman, Ann^Mary, and Thomas^Bradgate. James* 
Harriman Holmes and Thomas-Bradgate Holmes died 
without issue in the lifetime of the testator's widow. Ann^ 
Marg Holmes married Joseph-Brooks Stephenson, and was 
the only child of William Holmes living in March, 1814, 
and at the time of the death of the testator's widow. 

On the 4th March, 1814, and during the lifetime of the 
testator's widow, by indenture duly made between the said 
J. B. Stephenson and Ann'Mary, his wife« (therein de- 
scribed as devisee named in the last will of the said Theo^ 
philus Holmes then deceased,) of the first part,</. Connor, 
Gent, of the second part, Charles Waldron of the third 
partj and Thomas Chandkss, Gent., a trustee on behalf of 
the said diaries Waldron, and also of the said J. B. Ste* 
pkenson and Ann^Mary his wife, of the fourth part ; the 
1atter,in consideration of 600/., granted to CharlesWaldron, 
his executors, administrators and assigns, for and during 


1B99. their natural lives and the life of the survivor, an annuity of 
100/. to be charged upon and issuing out of the said mes- 
suages or tenements devised by the will of TkeophUw 
Holmes; and for better securing the payment^ granted, 
bargained and sold to Thomas Chandless, his executors. See, 
all the said premises, to hold, from and immediately after 
the decease of Christian Holmes, for the term of ninety- 
nine years. And then, after reciting that the said J. B. 
Stephenson and Jnn-Mary, his wife, did, as of Hilary term 
then last, levy before the Court of C. P. at Westminster 
unto T. Chandless and his heirs, one fine sur conusance de 
droit come ceo, &c., of the said premises, by the descrip- 
tion of seven messuages, seven gardens, and one acre of 
land, with the appurtenances, in the parish of St. Margaret, 
in the town and borough of Leicester, of which fine no uses 
had as yet then been declared, it was by the said indenture 
agreed and declared that the said fine should be and enure, 
in the first place, for confirming the said yearly rent-charge 
of 100/. and, in the next place, to the use of T, Chandless, 
his executors, &c., for and during the said term of ninety- 
nine years. The said last mentioned indenture was duly 
executed by the parties, and a receipt for the consideration 
money indorsed, and a memorial of the same was duly in- 
rolled in the Court of Chancery. The fine referred to by 
the said indenture was duly levied according to the same in 
Hilary term, 54 Geo, 3, with proclamations. On the 11 th 
April, 1823, 1\ Chandless died, having made a will and 
several codicils, and appointed Sir William Long, Knt. and 
Henry Gore Chandless, executors. On the 27th January, 
1827, by indenture of that date, between the said C. Wal- 
dron of the first part, the said executors of T, Chandless of 
the second part, Newbold Kinton, one of the lessors of the 
plaintiff, of the third part, and James Christmas, one other 
of the said lessors, of the fourth part, for the consideration 
therein expressed, the said annuity was assigned to the 
said N, Kinton: and the said term of ninety-nine years, for 
securing the satoie, was assigned to the said J. Christmas. 



On the 4th June, 18£7j 1275/. became due in respect of 1829. 
the said annuity. The day of the demises laid in the de- 
claration is the I St November, 1827* 
The questions for the opinion of the Court are. 
First, whether A, M. Stephenson, who was the only 
child of William Holmes living on the 4th March, 1814, 
and at the time of the death of Christian Holmes (after- 
wards Chamberlain), took a vested or contingent remainder 
uader and by virtue of the will of Theophilus Holmes; 
Secondly, whether the fine levied by Mr. and Mrs. Stephen^ 
son worked any forfeiture of the estate of the latter, or 
transferred any interest therein. 

The case was argued at the sittings in Banc after Trinity 
term, 1827, by Preston (with whom was Denman) for the 
plaintiff, and by N. R. Clarke for the defendant. 

It was admitted, on the part of the plaintiff, that the estate 
given by Theophilus Holmes to the children of William 
Holmes was contingent during the lifetime of the testator's 
widow ; but it was contended, that the fine levied by the 
daughter of W. Holmes, though operative only by way of 
estoppel during the lifetime of the testator's widow, 
operated after her death, when the contingency happened, 
on the estate which then became vested in the daughter 
of W. Holmes. And the cases of Fick v. Edwards {a). 
Helps V. Hereford (6), and Davies v. Bush (c) were cited, 
and relied on. 

For the defendant it was contended, that the estate given 
to the daughter of W, Holmes could not be conveyed by 
tlie fine levied during the lifetime of the widow of T. 
Holmes the testator, because a contingent remainder could 
not be so conveyed; and, therefore, that the estate still 
remained vested in Mr. and Mrs. Stephenson. That the fine 
levied by them operated by way of estoppel only, and that 
of that a stranger was not entitled to take advantage. And 

(a) 3 P. Wmt. 372. (c) 1 M'Clel. & Y. 58. 

(6) 2 Bam. & Aid. 243. 

206 CASES IK THE king's BENCH, 

1839. ^^^ ^^^ '^^^ position Doe v. Mariyn (a) was cited and 
relied on. 

The Court took time to consider of their judgment, 
which was now delivered by 

Bayley^ J. — ^This case depended upon the eflfect of a 
fine levied by a person who had a contingent remainder in 
fee. The short facts were these : Ann-Mary, the wife of 
Joseph'Brooks Stephenson, was entitled to an estate in fee 
upon the contingency of her surviving Christian, the widow 
of Theophilus Holmes ; and she and her husband conveyed 
the premises to Thomas Chandless for a term of ninety-nine 
years, and levied a fine to support that conveyance. Chris- 
tian, the widow, died, leaving Mrs. Stephenson living ; so 
that the contingency, upon which the limitation of the 
estate to Mrs. Stephenson depended, happened, and this 
ejectment was brought by the assignees of the executors of 
Thomas Chandkss, in whom the term of ninety-nine years 
was vested. It was admitted in argument on the part of 
the defendant, that the fine was binding upon Mr. and Mrs. 
Stephenson, and all who claimed under them, by estoppel ; 
but it was insisted that such fine operated by way of es- 
toppel only; that it, therefore, bound only parties and 
privies, not strangers ; that the defendant, not being proved 
to come in under Mr. and Mrs. Stephenson, was to be 
deemed, not a privy, but a stranger ; and that, as to bim, 
the estate was to be considered as still remaining in Mr. 
and Mrs. Stephenson. In support of this position reliance 
was placed upon the latter part of the judgment delivered 
by me in the case of Doe d. Brune v. Marty n {a), and that 
part of the judgment certainly countenances the present 
defendant's argument. But the reasoning in that case 
proceeds upon the supposition that a fine by a contingent 
remainder-man operates by estoppel, and by estoppel only ; 
its operation by estoppel, which is indisputable, was suf- 
ficient for the purpose of that decision; whether it operated 
(a) Ante^ ii. 485 ; 8 B. & C. 497. 


by estoppel only, or whether it had a further operation, was i829. 
perfectly immaterial in that case ; and the point did not 
there require that investigation which the discussion of 
this case has rendered necessary. We have, therefore, 
given the subject that further consideration which it re" 
quired, and we are satisfied, upon the authorities, that a 
fine by a contingent^remainder-mau, though it operates by 
estoppel, does not operate by estoppel only, but has an 
ulterior operation when the contingency happens ; that 
the estate which then becomes vested feeds the estoppel ; 
and that the fine operates upon that estate, as though that 
estate had been vested in the conusors at the time the fine 
was levied. 

The first authority which it is necessary to notice is 
RawKns's case (a). There, Cartwright demised land, not 
his own, to Weston, for six years. Rawlins, who owned 
the land, demised it to Cartwright for twenty-one years ; 
and Carttoright re-demised it to Rawlins for ten years. 
It was resolved that the lease by Cartwright, when he had 
nothing in the land, was good against him by conclusion, 
and that when Rawlins re-demised to him, then was his 
interest bound by the conclusion; and that when Cart- 
wright re-demised to Rawlins, then was Rawlins concluded 
also. Rmalins, indeed, was bound as privy, because he 
came in under Cartwright; but the. purpose for which I 
cite this case is, to shew that as soon as Cartwright got 
the land, his interest in it was bound. In Wealev, L<noer{b), 
die case was thus : Thomas, a contingent-remainder-man 
in fee, demised to Grylls for five hundred years, and levied 
a fine to Grylls for five hundred years, and died. The con- 
tingency happened, and the remainder vested in the heir of 
Thomas, and whether this demise was good as against the 
heir of Thomas was the question. It was argued before 
Hek, C. J., and his opinion was, that the fine did operate 
at first by conclusion, and passed no interest, but bound 
the heir of Thomas ; that the estate, which came to the 
(tf) 4 Co. Rep. 5?. (h) Pollexf. 54. 


heir when the contingency happened, fed the estoppel ; 
and then the estate by estoppel became an estate in in- 
terest, and of the same effect as if the contingency had 
happened before the fine was levied : and he cited Rawlins's 
case, 4 Coke, 53, in which it was held, that if a man leased 
land in which he had nothing, and afterwards bought the 
land, such lease would be good against him by conclusion, 
but nothing in interest till he bought the land ; but that as 
soon as he bought the land, it would become a lease in 
interest. The case was again argued before the Lord 
Chancellor, Lord Chief Justice Hale, Wild, Ellis, and 
Windham, justices, and they all agreed that the fine at first 
enured by estoppel ; but that when the remainder came to 
the conusor's heir, he should claim in nature of a descent* 
and, therefore, should be bound by the estoppel ; and then 
the estoppel was turned into an interest, and the conusee 
had then an estate in the land. In Treviban v. Lawrence {a), 
Lord Holt cites 39 Ass. 18 (b), and speaks of an estoppel 
as creating an interest in or working upon the estate of the 
land, and as running with the land to whoever takes it. 
In rick V. Edwards (c), cited by Mr. Preston, Lord Talbot 
must have considered a fine by a contingent-remainder- 
man as having the double operation of estopping the 
conusors till the contingency happened, and then of passing 
the estate. There lands were devised to A. and B. and the 
survivor, and the heirs of such survivor, in trust to sell. 
Upon a reference to the master, he reported that they 
could not make a good title, because the fee would vest in 
neither till one died. On exceptions to the master's report. 
Lord Talbot held that a fine by the trustees would pass 
a good title to the purchaser by estoppel; for though 
the fee was in abeyance, one of the two trustees must be 
the survivor, and entitled to the future interest; couse- 
quently, his heirs claiming under him would be estopped 

(a) S Ld. Raym. 1048; 6 Mod. man brings a writ of error, and 
S58. then purchases the land, he is 

(b) Fol. 287, where it was said ousted of the error for ever, 
by Cavendish, arguendo, that if a (c) 3 P. Wins. Sri. 



by reason of the fine by the ancestor, from saying quod partes 1829. 

fatis tdkil habuerunt, though he that levied the fine had at 

tbe time no right or title to the contingent fee. On the 

following day, he cited the case of Weale v. Lower {a), 

which I have before cited. Now, whether Lord Talbot 

was right in treating the fee as being in abeyance, and the 

limitation to the survivor and his heirs as a contingent 

remainder, or not, it is evident he did so consider them ; 

and he must have had the impression that the fine would 

have operated, not by estoppel only, but by way of passing 

the estate to the purchaser, because, unless it had the 

latter operation as well as the former, it would not pass a 

good title to the purchaser. 

Mr. Fearne, in his work on Remainders, c. 6, s. 5, says, 
"We are to remember, however, that a contingent re- 
mainder may, before it vests, be passed by fine by way of 
estoppel, so as to bind the interest which shall afterwards 
accrue by the contingency ;" and after stating the facts in 
fVeale v. Lower, he says, " It was agreed that the contin- 
gent remainder descended to the conusor's heir ; and though 
the fine operated at first by conclusion only, and passed no 
interest, yet the estoppel bound the heir ; and that, upon 
the contingency, the estate by estoppel became an estate 
in interest, of the same effect as if the contingency had 
happened before the fine was levied." 

Upon these authorities, we are of opinion that the fine 
in this case had a double operation — that it bound Mr. 
and Mrs. Stephenson by estoppel or conclusion so long as 
the contingency continued ; and that when the contingency 
happened, the estate which devolved upon Mrs. Stephenson 
fed the estoppel ; the estate created by the fine, by way of 
estoppel, ceased to be an estate by estoppel only, and be- 
came an interest, and gave Mr. Chandless, and those having 
a right under him, exactly what he would have had in caqe 
tbe contingency had happened before the fine was levied. 

Judgment for the Plaintiff. 
(a) PoUexf. 54. 
vol*. T. P 


MusKETT and others. Assignees of Taylob, a Bankrupt, 
^^?\ V. Drummond, 

by the^as- XrOVER by the plaintiflfs, as assignees of Taylor, to 

signeesofJ.y recover certain goods and chattels, the stock in trade and 

IV here ihe pe- . 

titioning ere- household furniture of the bankrupt, alleged to have been 

f isne^TofB ^^^^ *"^ converted by the defendant after the bankruptcy. 
the proceed- Plea, n6t guilty ; with notice of disputing the petitioning 
wmm?Miof * ^ creditor's debt, the trading and the act of bankruptcy, 
are not evi- At the trial before Lord Tenterden, C. J., at the London 
6Geo!4,c. 16, adjourned sittings after Hilary term, 1828, a verdict was 
8. 98, of the found fof the plainiiflFs, damages 427/., subject to the 
of B. opinion of this Court upon the following case : — 

by^helord ^^^ bankrupt Taylor, for several years previous, and 
Chancellor down to the time of the issuing of the commission of bank- 
4"cri6, 8. 18, ^"P^ against him, carried on the trade and business of a 
substituting a builder, at Balham Hill, in the county of Surrey. On the 
ing creditor's Idth November, 1826, and two or three days previously, 

debt for one jj^ committed two several acts of bankruptcy. On the 

alleged in the *^ ^ 

petition to 18th November, 1826, one Samuel Rothwell issued ^ fieri 

x^'^^^'nT f^^^^ directed to the defendant, then sheriff of the county 

commission, of Surrey, commanding him to levy 440/. 4s. on the goods 

direct the ^^^ chattels of the bankrupt, under which writ the defend- 

commissioners ^^^ q^ ^j,g ^^^^ igth November, seized, and afterwards 

to inquire only , / 

as to tlie suffi- sold, the goods and chattels mentioned m the declaration. 

new^JebL^and "^^^ commission under which Taylor was adjudged bank- 
is silent as to rupt issued on the 9th December, 1826, and the plaintiffs 
cy of the old. ^^^^ afterwards duly chosen assignees, and the usual 
"y^hethera assignment was made to them on the 29th December, 
under that 1826. The commission issued on the petition of the 
section made assignees of one James Kenworthy, a bankrupt, to whom, 
lite, would prior to and at the time of his bankruptcy, Tai/lor was 
^t^fa""* indebted in the sum of 150/. and upwards. The commis- 
partj^ who . sion, adjudication, and assignments, and other proceedings 
of such order, in the bankruptcy of Kenworthy, were given in evidence, 
quare. du]y entered of record. That commission was dated 6lh 


November, 1826, and the assignment to the provisional 
assignee was on the same day, and that to the plaintiffs m'T^t 
oathe£5th November, 1826; but no other evidence M'as _ v, 
given of the petitioning creditor's debt, trading, or act of 
bankruptcy, than by the production of such proceedings. 
The present action was commenced on the 24th January, 
]8£7. The notice to dispute was given on the 17th Fe- 
broary, 18£7> An order of the Lord Chancellor was put in 
and proved, dated 25th February, 1828. The order was 
made under the statute 6 Geo. 4, c. 16, s. 1 8, (a) on the 
petition of the plaintiff Muskettf which it set forth. That 
petition stated, that the commission against Taylor had 
bsued on the petition of the assignees of Kemvorthy; that 
Taylor bad been declared a bankrupt ; that Muskett and 
the other plaintiffs in this cause had been appointed his as- 
signees ; that an action of trover having been brought, it 
bad been found, on preparing for trial, that the petitioning 
creditor's debt was not such a legal debt as would support 
a commission, and that it would be necessary, in order to 
support the commission, that there should . be another 
/>etitioDing creditor's debt substituted in the place of that 
of the assignees of Kenworlhy; that before and at the time 
of issuing the commission, the petitioner was a creditor of 
the bankrupt to the amount of 552/. ; that his debt was 
incurred subsequently to that of the assignees of Ketmorthy, 
and that he had proved that debt under the commission. 
The prayer was, that the commission might be supported 
hj, and the proceedings carried on, upon the debt of the 
petitioner, instead of that of the assignees of Kenworthy. 

(a) Which enacts, " that if after to support a com mission, (provided 

adjadication the debt or debts of such debt or debts has or have 

the petitioning creditor or creditors, been incurred not anterior to the 

or aoj of them, be found intuffi- debt or debts of the petitioning 

citni to support a commission, it creditor or creditors-,) to order the 

shall be lawful for the Lord Chan- said commission to be proceeded 

cellory Qpon the application of any in ; and it shall by such order be 

other creditor or creditors, having deemed valid." 
proved mnj debt or debts sufficient 

P 2 


The order then stated, that upon hearing the petition and 
_ the affidavits filed in support thereof read, and what was 


v. alleged by the counsel for the petitioner and the counsel 

RUMMOND. f^^ ^jjg assignees of Kenworthy, the latter appearing and 
consenting thereto, the Lord Chancellor ordered, that 
upon the commissioners named in the commission being 
satisfied that the debt proved by Muskett was incurred not 
anterior to the debt of the assignees of Kenworthy, and 
that it was an existing debt, and sufficient to support the 
commission, the commission should be proceeded in ; and 
his lordship referred it to the said commissioners to make 
the inquiry. 

The commissioners did find that MusketCs debt was an 
existing debt, and sufficient to support the commission *, 
and that it had been incurred subsequently to that of the 
assignees of Kenworthy ; also that a debt amounting to 
492/. was due to Muskett previously to, and at the time 
of the committing of, the acts of bankruptcy by Taylor, 
and the issuing of the commission against him, and is now 
due. It was objected on the part of the defendant, first, 
that the title of the assignees of Kenworthy to become 
petitioning creditors was not sufficiently proved ; and, 
secondly, that the order of the Lord Chancellor, and the 
proceedings under it, were not sufficient proof of a debt to 
sustain the present action. 

Hutchinson, for the plaintiffs. The first objection taken 
to the right of the plaintiffs to recover in this action is, 
that there is not sufficient evidence of the title of the as- 
signees of Kenworthy to be petitioning creditors. Now, 
by the 6 Geo. 4, c. 1 6, s. 92(a), where the bankrupt has 

(a) Which enacts, <' that if the United Kingdom) within twelve 

bankrupt shall not (if he was with- calendar months after the adjudi- 

in the United Kingdom at the cation, have given notice of his 

issuing of the commission) within intention to dispute the commis* 

two calendar months after the ad- sion, and have proceeded therein 

judication, or (if be was out of the with due diligence, the depositions 


Bot giveo notice to dispute tlie commission, the procedinge 
before the commissioners are made conclusive evidence of 

. , . . , . „ . . . MUSKETT 

toe matters therein contamed, m all actions at law, or suits v. 

inequity, brought by the assignees for any debt for which Dr^'mmond. 
tbe bankrupt might have sued. Here the proceedings 
uader KentDorihy*s commission were produced, and the 
debt was one for which Kenworthy might have sued, 
therefore the proceedings are sufficient evidence. [Parke, 
J. Is a commission of bankrupt an action at law, or a suit 
in equity (a), within the meaning of the statute ?] Ken- 
woHhy*s assignees might have sued Taylor: and if they 
had, Skaife v. Howard (b) is an authority to shew that the 
proceedings would have been sufficient evidence in that 
suit. [Bayley, J. No. That case only decided that the 
depositions which were made evidence by the statute 49 
Geo, S, c. 121, s. 10, were primd facie evidence of the 
facts contained in them.] Secondly, it is objected, that 
the Lord Chancellor's order, substituting Muskett as peti- 
tioning creditor instead of the assignees of Kenworthy, 
having been made after the present action was commenced, 
could not have a retrospective effect, and therefore could 
not furnish evidence of a petitioning creditor's debt suffi- 
cient to support the action. But the very object of the 
statute 6 Geo. 4, c. l6, s. 18, seems to be, by substituting 
a new petitioning creditor's debt, to render the commission 
valid ab initio, in order to prevent the just title of assignees 
from being defeated upon objections beside the merits. 
If that be so, (and if it be not so, the provisions of s. 18, 

taken before the commissioners at for which the bankrapt mi^ht 

the time of^ or previous to the ad- have sustained auy action or suit.'' 

jodicatioD, of tbe petitioning ere- (a) As an authority that a com- 

ditor*s debt or debts, and of the mission of bankrupt is not an ac- 

trsding and act or acts of bank- tion or suit, see the case of OtfM- 

nipccy, shall be condosive evidence rk ▼. Fitk, 5 D. & R. S4; SB. 

of the matters therein respectively & C. 178. 

contained, in all actions at law, {b) 4 D. & R. 37 ; S B. & C* 

or nu9 in equUy, brought by the 560. 
assignees for any debt or ('emand 



would seem to be wholly nugatory^) this commission is 
rendered valid ab initio, and all the proceedings under it are 
v.' as regular as if it had been originally sued out upon the 
Drummomd. p^titi^^n of Muskett, whose debt is now substituted for that 
of the assignees of Kenworthy* 

I^siger, contrs^, upon the second point, to which Uie 
Court desired him to confine his attention. The Lord 
Chancellor's order cannot have a retrospective operation ; 
and if not, it cannot support the present commission. The 
assignees have no right to use the order for the purpose of 
maintaining the present action ; for they had no title at the 
time when they commenced the action, and therefore can- 
not be allowed to support it by a title subsequently acquired. 
The power given to the Lord Chancellor by s. 18, is con- 
fined to the working the commission^ and does not extend 
to the carrying on actions at law or suits in equity. The 
dates in this case are not unimportant; the notice to dis- 
pute the petitioning creditor's debt is given on the 17th of 
February, 18279 and the order for substituting the new 
debt is obtained on the 25th of February, 1828, an interval 
of somewhat more than a twelvemonth. [Parke, J. It was 
held in Hull v. Pickersgill {a) that an uncertificated bank- 
rupt could not maintain an action of trespass against subse- 
quent creditors for breaking open his house and seizing his 
after-acquired property, although his assignees did not 
ratify the seizure, and were unknown to the defendants 
until after the commencement of the action.] To give thb 
order a retrospective effect would be to fix the defendant 
with the costs of an action, which the plaintiffs in the first 
instance had no right to bring, and which he might believe 
he had good grounds to defend. [Bayley, J. He might 
have applied to the Lord Chancellor.] He had no notice 
of the proceedings before the Lord Chancellor, and had no 
means of knowing of the existence of the order for substi- 
tuting a new petitioning creditor's debt until it was pro- 
(d) d J. B. Moore» 612; 1 Brod. & B. 283. 



duced at the trial. Besides, the Lord Chancellor's order 18S9. 
does not find the fact upon which alone he had jurisdiction 
to make it. It is no where found by him that the original v, 

petitiooing creditor's debt was insufficient. His order ^*^*'''^^^* 
merely recites that the petition presented to him asserted 
that fact ; and in the reference which he directs to the com- 
Dussioaers, be does not require them to examine into the 
alleged insufficiency of that debt« but merely into the suf- 
ficiency of the debt proposed to be substituted. The 
order, therefore, does not shew that the Lord Chancellor 
bad jurisdiction, within the words of s. 18, to make if, and 
is consequently bad in to to. lParke,J. There is certainly 
DO evidence that the Lord Chancellor found the original 
petitioning creditor's debt to be insufficient. Bayley, J. 
And there may be a great difference between a petition 
founded on the insufficiency of the debt, and on the mere 
difficolty of proof. The jurisdiction of the Lord Chancel- 
lor certainly seems to be confined to the former.] 

Hutchinson, in reply. The Court will presume that the 
Lord Chancellor was satisfied of the truth of the facts 
stated in the petition, before he made his order. That 
order was never appealed against, nor were any attempts ever 
made to reverse or alter it ; the present objection, therefore, 
cones too late. Unless when made, it bad a retrospective 
effect, it would be altogether inoperative. To hold it now 
inoperative would be productive of great inconvenience ; 
for the proofs of debts, the choice of assignees, the assign- 
ment to them, and all conveyances by them, would be 

thereby invalidated; and many questions would also arise 

as to the effect of the prior examinations of the bankrupt. 
The case was argued at the sittings in Banc after Easter 

temiy 18299 when the Court took time for consideration* 

Jodgment was now delivered by 

Baylet, J. — This was an action brought by the assig- 
nees of James 2'ayhr^^ bankrupt, and the defendant having 


1829. given notice to dispute^ among other things, the petitioning 
^^"^^ creditor's debt, there were two questions: one, whether 

MVSKETT ... . , 

V. there was sufficient proof of the petitioning creditor s debt, 

Drummond. ^jjg Qijjgy^ whether the plaintiffs had entitled themselves to 
resort to a debt due to Muskett, one of the assignees, to 
support the commission, under the 6 Geo. 4, c. l6, s. 18. 

The commission against Taylor was sued out by the as- 
signees of James Kenworthy, a bankrupt, and the debt to 
Kenworthy and the assignment to his assignees were duly 
proved ; but there was no evidence to support the commis- 
sion against him, except the proceedings under his com- 
mission : and whether they were sufficient evidence of the 
debt from him to his petitioning creditor, or of bis trading 
and act of bankruptcy, was the first question in this case. 
The Court intimated an opinion during the argument that 
they were not, and that opinion is confirmed by the con- 
sideration we have since been able to bestow upon the 
point. It is clear that these proceedings are not evidence 
except as far as they are made so by act of parliament, and 
it is only by the ninety-second section of the late bankrupt 
act, 6 Geo, 4,c. 16^ that they are made evidence in any case. 
The ninetieth and ninety-first sections having provided, that 
in actions by or against assignees, or in actions against 
commissioners or persons acting under their warrant, or in 
suits in equity by or against assignees, no proof shall be 
required of the petitioning creditor's debt, the trading, or 
act of bankruptcy, unless upon notice ; the ninety-second 
section enacts, that if the bankrupt shall not have given 
notice, the depositions taken before the commissioners of 
the petitioning creditor's debt, the trading^and act of bank- 
ruptcy, shall be conclusive evidence of the matters therein 
contained in all actions at law or suits in equity brought by 
the assignees for any debt or demand for which the bank- 
rupt might have sustained any action or suit. It is only, 
therefore, in actions or suits brought by his own assignees 
for a debt or demand for which he might have sued, that 
the depositions under a commission against a man are made 
evidence; and as this action was brought, not by Ken- 


«or%'s assignees^ but by Taylor* s, and for a demand for 1829. 
which Taylor alone^ not Kenworthy, could have sued, the '^■^*v*^-^ 
depositions under T'aylor's commission were within the v. 

provision, and would have been evidence, the depositions Drummond. 
under Kenworthy'a commission would not. 

The second question depends upon the 6 Geo. 4, c. 16, s. 
18, and the right of the plaintiffs to resort to it in support of 
this action. By that clause it is enacted, that if after adju- 
dication, the debt of the petitioning creditor be found insHf- 
dent to support a commission, it shall be lawful for the 
Lord Chancellor, upon the application of any other cre- 
ditor having proved any debt sufficient to support a com- 
mission, and incurred not anterior to the debt of the 
petitioning creditor, to order the said commission to be 
proceeded in, and it shall by such order be deemed valid. 
Muskett had proved a debt under the commission, that debt 
was sufficient to support the commission, and was incurred 
after the debt to Kenworthy, and he petitioned the Lord 
Chancellor for an order under this clause. The Lord 
Chancellor made an order, that upon the commissioners 
being satisfied as to Muskeit's debt in the several particulars 
which the clause specifies, the commission should be pro- 
ceeded in ; and the commissioners were satisfied. That 
petition was not produced, nor the affidavits on which it 
was grounded; but according to the recital of it in the 
Lord Chancellor's order, which was produced, it stated that 
the debt was not such a legal debt as would support a 
commission, and the prayer of it was, that the proceedings 
therem might be supported by and carried on on MusketCa 
debt instead of Kenworthy's. The Lord Chancellor's 
order says nothing as to the insufficiency of the debt; but, 
upon reading the affidavits, hearing counsel for Muskett 
and the other assignees of Taylor, and the petitioning 
creditor consenting thereto, it orders that, upon the com- 
missioners being satisfied as to the sufficiency of Muskett^s 
debt, and the time it was contracted, (as to which the 
commissioners were afterwards satisfied), the commission 


1829. should be proceeded in. It does not appear that the Lord 
''■^'^^^ Chancellor was apprised, when he made the order, of the 

MUSKETT r t • 11 t - 

V. existence of the present suit, so as to call his attentioQ to 

Dbummond. jjjg propriety of making any provision as to giving it in 
evidence in this suit. No notice of the application to the 
Lord Chancellor appears to have been given to the defend- 
ant, against whom this suit was pending, so as to give him 
an opportunity of interposing in the Court of Chancery, to 
prevent its being improperly used to his prejudice. 

It is not necessary in this case to give any opinion whe- 
ther a valid order of the Lord Chancellor, under the above 
mentioned act, would support a commission by relation in 
an action already commenced, and especially when the 
opposite party in the suit had no notice of «uch a proceed- 
ing, because we are satisfied that this order is not valid. 
The statute gives a special power to the Lord Chancellor 
to make an order of this nature only where the debt of the 
petitioning creditor '^ Ufound insufficient ;*^ but in this case, 
that insufficiency of the debt is not found as a fact by the 
jury, nor does it appear that it was so found by the Lord 
Chancellor, the order containing no adjudication by him on 
that subject. It appears to us, therefore, that the order 
was not valid. 

The Lord Chancellor's order does not import that the 
debt had been found insufficient before the petition vras 
presented to him; he pronounces nothing as to its suf- 
ficiency ; and there is no fair ground for presuming that he 
examined into its sufficiency. The petition does not pray 
that he should. The order is made upon the consent of 
Muskett and the assignees on the one hand, and the 
petitioning creditor on the other : the defendant, against 
whom it is to operate is no party to it, and does not appear 
to have known of it until it was produced against him at 
the trial; and the conduct of the plaintiffs, in relying upon 
the debt to Kenworthy at the trial, is a pretty strong ground 
for believing that the Lord Chancellor had not passed any 
judgment upon its sufficiency. Without entering, therefore. 


iDto the question bow far an order by the Lord Chancellor, 1829. 
when he pronounced upon the insufficiency of the original ^"^""^^ 
debt, or when such debt had otherwise been judicially v. 

found insufficient, would operate upon a depending suit, Dbuumond. 
espedaliy against a party who had no notice of such order, 
lod was not apprised that he would have to meet the sub- 
stituted debt, we are of opinion that the order in this case 
is iniafficient for that purpose, and that judgment of non- 
suit ought to be entered. 

Judgment of nonsuit. 

Hawkins and others, Assignees of A. Morton, Rodick, 
and C. Morton, Bankrupts, v. Written. 

Assumpsit on the money counts. Plea, non as- in an action 

•ompsit, with notice of set-off. At the trial before Hol^ l^hS^""^ 

rojfef, J., at the Northamptonshire Spring Assizes, 1827, the defendant 

tlie case wa» this :— The action was brought by the plaintiffs ^^^^^ q q^q^ 

as assignees of the bankrupts, who had carried on business ^^ c- ^M- ^^f 

as bankers at Wellingborough in Northamptonshire, to aebt due to 

recoTer a sum of 75/. the balance of an account, admitted bim from the 

bankrupt, if, 
to be due from the defendant to the bankrupts before their when he gave 

bankruptcy* It was also admitted that the defendant was b^nkJap/he 

entitled to set off a sum of 10/. for goods sold and delivered had no notice 

by bim to the bankrupts before their bankruptcy ; and the of b^kruptcy, 

oaW question in the cause was, whether he was.entitled to though he had 
«.*. i.^1 1' - notice that the 

set off a further sum of Oo/. under the followmg circum- bankrupt had 

stances. On the l6th of December, 1825, the defendant "^PP*^ Pay- 

got possession of potes of the Wellingborough bank to 
that amount, after taking some trouble to procure them. 
On the 14th of December the bankers had stopped pay- 
ment, and issued the following notice, addressed to the 
debtors and creditors of the house : — '' Messrs. Morton^ 
Rodick & Co. hereby give notice, that owing to the alarm- 
ing state of nx>ney matters in London, their agents cannot 
possibly remit them the funds which are in their hands : 


18S9. they are therefore under the painful necessity of suspending 
^"^^^^ their payments for a short time." This notice was printed by 
xf, the defendant, who was a printer and stationer at Welling- 

Whitten. borough. On the same 14th of December, the bankrupts 
ordered their bank to be closed at half past ten in the morn- 
ing, which was done accordingly. A. Morton, tlie senior 
partner, who was eighty years of age, was so much affected, 
that he became very ill, and was confined to his bed in his 
dwelling-house, which was distinct from the bank. C. 
Morton stationed one of the clerks at the dwelling-house 
of A, Morton, to inform those who might call why the bank 
was closed, and then retired to his own dwelling-house in 
Wellingborough. Rodick also retired to his dwelling-house 
in Wellingborough, but desired the clerk to inform those who 
might inquire for him, that he should be glad to see them 
there; and he went to the bank on the 15th of December. 
The bank continued closed, and many persons applied 
there for money, but none were admitted ; some received 
no answer, and others were told that they could not be 
paid. Some persons who called at A. Morton's house 
were told that he was too ill to be seen, which vi*as true, 
and that the other partners were at their own houses. 
Upon this evidence it was contended on the part of the 
plaintiffs, first, that all the partners had committed an act 
of bankruptcy on the 14th of December, by absenting them- 
selves from the bank ; and, secondly, that as the defendant 
knew when he took the notes that they had stopped pay- 
ment, he must be presumed to have also known that they 
had so committed an act of bankruptcy. For the defendant 
it was insisted, first, that there was nq evidence that the 
three partners had each committed an act of bankruptcy, 
because the elder Morton had not voluntarily absented him- 
self from the bank, but had been compelled to do so by 
illness ; and, secondly, that assuming an act of bankruptcy 
had been committed by all the partners, still as there was 
no distinct proof that the defendant knew of any act of 
bankruptcy, or of the circumstances supposed to constitute 
it, at the time when he took the notes, the mere knowledge 



ofihe insolvency of the bankers did not deprive him of his 
right of set-off. The learned judge directed the jury to 
find a verdict for the plaintiffs, but gave the defendant leave 
to move to enter a nonsuit, if the Court should be of 
opioioo that he was entitled to set off the notes. A rule 
nisi having been obtained accordingly, 

Clarke and GauUmm shewed cause. First, the three 
jMrtners all committed an act of bankruptcy on the 14th of 
December, for their closing their bank, and absenting them- 
selves from it on that day, constituted an act of bauk- 
niptcy by all, Judine v. Da Cossen (a), though the same 
act done by one only might only have been evidence of an 
act of bankruptcy by that one ; Mills v. Bennett (6). Se- 
condly, the defendant, under the circumstances of this case, 
most be presumed to have known of this act of bankruptcy, 
and is therefore deprived of his right of set-off. It is clear 
that be knew at the time when he got possession of the 
notes that the bankers were insolvent and had stopped 
payment. Under the old bankrupt acts that degree of 
knowledge would have been sufficient to bar his right of 
set-off; Hodson v. lowwg (c), Dickson v. Eoans (d), Ex parte 
Stone (e). But admitting that under the late bankrupt act 
it was necessary, in order to deprive the defendant of his 






(c) 1 N. R. 834. There, a trader, 
laTing a couoting-house in town 
aod a dweUing-hoase in the coun- 
ti7, left the former, to which he 
never retamed, taking his books 
vitb biiD, and slept at his dwelling- 
bome a few nights, when he finally 
left that also. It was held, that 
having quitted his connting-house 
witboot the oiitimit revertendi, he 
began to absent himself from that 
dajp within the meaning of the 13 
£/ii. c. 7, 8. If and thereby com- 
mitted an act of bankruptcy. That 
case does not. appear to support 

the position for which it is cited. 
See the cases of Spencer v. Billings 
3 Campb. 313, and Capper v. 
Desangesy 3 J. B. Moore, 4 ; Deffle 
V. Desanget, 8 Taunt 671, which 
appear more applicable. See also 
Bemasconi v. Farebrother, pott; 
Goto on Partnership, 268, 3d ed. 

(6) 2 M. & S. 556. And see 
Ex parte Mavor, 19 Ves. 543; 
6om on Partnership, 259, 3d ed. 

(c) E. T. 1814. Archbold's 
Bankrupt Laws, 88, cited. 

(rf) 6 T. R. 57. 

(«) 1 Glyn,&J. t91. 


right of seUoff, that he should have had notice of an act of 
Hawkins bankruptcy committed by all the bankrupts before he took 
V. ilie notes^ the facts of the case supply that notice. He 

took the notes on the l6th ; he knew that the bank was 
closed on the 14th ; he must have known that in the in- 
terval, creditors holding notes had applied at the bank for 
payment of them, and had been unable to obtain it ; he 
must have known, therefore, that all the partners were 
insolvent and had absented themselves from the bank 
before the l6th, . and had thereby committed an act of 

' AdamSf Serjt., conti*d. Unquestionably the defendant 
was aware at the time he took the notes that the bank had 
been closed and the business suspended. But that was 
an equivocal act. The notice to creditors stated that the 
bankers were obliged to suspend their payments ** for a 
short time ;*' and the defendant might reasonably believe 
that after a short time the bank would be reopened and 
its business resumed, without any act of bankruptcy having 
been committed. In. point of fact, no act of bankruptcy 
was proved to have been committed by all or any of the 
partners between the 14th and the l6th of December; it 
was impossible, therefore, that the defendant could have 
notice of any. But the late bankrupt act, 6 Geo. 4, c. l6, 
s. 50, gives the right of set-off in all cases where the party 
claiming it has no notice, at the time when the credit is 
given, of an act of bankruptcy by the bankrupt committed. 
It was incumbent upon the plaintiffs, therefore, to prove 
actual notice to the defendant of an act of bankruptcy 
committed ; a constructive notice will not satisfy the 
statute, though even that is wanting here. [Lord Ten- 
terden, C. J. If the defendant took the notes, knowing that 
the bankers had suspended their payments, intending 
thereby to get twenty shillings in the pound on his own 
debt, and so defeat the object of the bankrupt act, is not 
that a fraud upon the statute ?] There is no proof that be 



bad any such intention $ but even if there was, the law 

allows a creditor to do that which the defendant did, and „ 


that can hardly be termed a fraud upon a statute which v. 

the statute allows to be done. 

The case was argued in the course of Michaelmas term, 
1827, when the Court took time for consideration. Judg- 
ment was now delivered by 

Bayley, J. — The plaintiffs in this case were the as- 
signees of the partners in the Wellingborough bank, and 
the question for our decision depended upon the right of 
the defendant to set off certain notes of that bank, which 
he had industriously Obtained after the bank had stopped 
payment, against a debt due from him to the bank. This 
tamed upon the construction of the 6 Geo. 4, c. I6, s. 50. 
fiy that section, where there has been mutual credit given 
by the bankrupt and any other person, or where there are 
nrntual debts between the bankrupt and any other person, 
the commissioners are to state the account between them, 
and one debt or demand may be set against another, not- 
withstanding any prior act of bankruptcy committed by 
such bankrupt before the credit given to or the debt con- 
tracted by him, and what shall appear due on either side 
OD the balance of such account, and no more, is to be 
claimed or paid on either side respectively, and every 
debt or demand thereby made provable against the estate 
of the bankrupt may also be set-off in manner aforesaid 
against such estate ; provided that the person claiming the 
benefit of such set off had not, when such credit was given, 
notice of an act of bankruptcy by such bankrupt committed. 
Before this statute passed, there were three provisions for 
setting off mutual debts and credits in cases of bankruptcy; 
one by the 5 Geo. £, c. SO, s. 28, another by the 46 Geo. 
3, ۥ 135, 8. 3, and the third by the 5 Geo. 4, c. 98, 
5, 48. The first gave the right of set-off, if the credits 
were given or the debts incurred at any time before the 
person became bankrupt, without any qualification. The 


1839. second gave the rights notwithstaDding the existence of a 

„ prior act of bankruptcy, in the same manner as if there had 

9. been no prior act of bankruptcy, provided the credit were 

HiTT£N. gjyg„ (Q ^iig bankrupt two calendar months before the date 
and suing out of the commission, or provided the person 
claiming the benefit of the set-off had not, at the time of 
giving such credit, notice of any prior act of bankruptcy 
committed by such bankrupt, or that he was insolvent, or 
had stopped payment. The 5 Geo. 4, which repeals 
the 5 Geo. 2 and the 46 Geo. 3, consolidates the two 
provisions which I have mentioned in those statutes, but, 
instead of the concluding provision in the 46 Geo. S, 
excludes from the benefit of the set-off such persons only 
has had, when they gave credit to the bankrupt, notice, 
either actual or constructive, of an act of bankruptcy by 
the bankrupt committed, or that he had stopped payment; 
and the two provisions contained in the 46 Geo. 3, were 
in terms confined, as they probably would before have 
been confined in construction, to those cases in which 
there had been a prior act of bankruptcy. At the time, 
therefore, when the 6 Geo. 4, was passed, every man was 
entitled to the benefit of a set-off, if the credit between 
him and the bankrupt were given, or the debt between them 
existed, before any act of bankruptcy had been committed ; 
and he was also entitled, notwithstanding an act of bank- 
ruptcy, if the person claiming the set-off had not, when he 
gave his credit or trusted the bankrupt, notice of an act of 
bankruptcy by the bankrupt committed, or that he had 
stopped payment. The 6 Geo. 4, takes away the latter 
part of this qualification, namely, the notice that the bank- 
rupt had stopped payment, and gives the right of set-off 
in all cases where it existed before any act of bankruptcy 
committed, and gives it also where there has been a prior 
act of bankruptcy, if the party claiming the set-off had no 
notice of the act of bankruptcy. 

Notice of insolvency, therefore, or notice of having 
stopped payment, are no longer ingredienta upon this 


poiot. Notice of an act of bankruptcy is alone the cri- 
terion or dividing pointy and before this period, the de- 
fendant takes the notes he claims to set off, and thereby 
becomes a creditor of the bankrupts and makes them his 
debtors. It may be true, and we believe is, that he took 
the notes for the very purpose of making them the subject 
of his set-off, and of getting, in substance, twenty shillings 
in the pound upon them ; but as this is not prohibited by 
the statute, we cannot say that it js illegal. As the set-off, 
therefore, must be allowed, and covers the debt, the rule 
for entering a nonsuit must be made absolute. 

Rule absolute. 






Smith v. Shaw. 

Case for injury done to plaintiff's vessel. Plea not A dock act au- 

guilty, and issue thereon. At the trial before Lord IV/i- '!!!!l**^f *,^ 
^ ^ company to 

teritn, C. J. at the London adjourned sittings after Michael- make and 

mas term, 1828, a verdict was found for the plaintiff^ docks and to 

subject to the opinion of this Court upon the following appoint a 

Cise : — who should 

The plaintiff was the owner of the ship Rebecca, of 313 ^f^'^^^e*''^ '"^ 

tons, llic defendant was the treasurer of the Commercial mooring, un- 

Dock Contipany. The Rebecca, on her homeward voyage movi"g^and 

from Dant2ig, arrived in the River Thames the latter end removing of all 

o/June^ 1 827, and in the afternoon of the 28th of June in the docks, 

was made fast to the buoy belonging to the company, it *°^ should 

being the plaintiff's intention to discharge his cargo in their over the space 

dock. In the same afternoon an attempt was made by the froJiuhe*en- 

company's servants to take the vessel into dock; and in trance into the 

docks, so far 
as related to 
the transporting of vessels in and out; the company to be sued in the name of their trea- 
surer ; and every action brought against any person for any thing done in punuance of 
ike met, to be commenced within six calendar months after the fact committed. In an 
action brought against the treasurer for damage done to a vessel by means of improper 
directions given by the dock-master in transporting her into the ducks : — HM, that 
giviiig soch directions was a thing done in pursuance of the act, and that the action 
should bave been commenced within six calendar months after those directions were 

▼OL.'V. Q 






CA9» IN TH£ ii;iN0 8 BENCH. 

the course of sttcb attempt, owing to the negUgenoe ((f the 
persons employed by the company in that behalf ^ tbe iojufy 
detailed ia the declaration was sustained. More thaa «iK 
months intervened between tbe time at which tbe injvrjr 
waa sustained and the commencement of the action. 

By 50 Geo. 3, c. 207, intituled, " An act for maintaining 
and improving the docks and warebouaes called tbe Com« 
mercial Docks, and for making and maintaining other docks 
and warehouses to communicate therewith, all in tbe parish 
of St. Mary, Rotherhitfae, in the county of Surrey," the 
Commercial Dock Company was established as a joint 
stock company, and certain powers were conferred upon 
the company, which are more particularly set forth in the 
act (a). And by s. 94 it is enacted, " that if any action or 
suit shall be brought or commenced against any person or 
persons, bodies politic or corporate^ for any thing done in 
pursuance of this act, every such action or suit shall be 
brought or commenced within six calendar months after 
the fact committed, or in case there shall be a continuation 
of damages, then within two months after the doing or 

(a) By s. 68, the company were 
authorised to sue and be sued in 
the name of their treasurer for the 
time being. 

By B, 71, the dimclora of the 
compaoy were authorised to ap- 
point a dock-master, who should 
have authority to direct the moor- 
ing, unmooring, moving and re* 
moving of all vessels entering into, 
lying, or being in the docks, as to 
the time and manner of their en- 
trance into, lying in, or going out 
of the same, and their position, 
londing and disehaq^of; therein; 
and the time of opening and shut- 
ting the gates; and in case the 
owner, master, &c. having the care 
of aoy vessel, should refuse orneg* 

lect to moor, unmoor, move or re- 
move the same according to such 
direction, within two bours aRer 
notice, then it diould be Vclw(oI 
for the dopk-iQaster to mpor, &c. 
such vessel, and the charge t\iere- 
of respectively shoal d be repaid, 
together with the sam of 10/. for 
each ofbiice, by the owner or 
master of Boch vmei. 

By s. 7S, no vessel should be 
moored or anchored within the 
distance of 100 yards of the eiH 
trance of the docks, and over that 
space the dock-master should have 
control, so far as rriated to the 
transporting vessels coming in or 
going out of the docks. 


IfilCHAZLMAS TB^Mj X G«0« iV. 227 


cAuiioitting such damage sball buve c^^od, and not afteiv .18^9. 

wards '* "^^N^W 

\ By 51 Geo» S, Cp 66, tbe powers of tiie company Wfer« ^ v. 

eolaiged, and w«re extended to certaiq pr^mie^i not con^ 

frised in the former act, 3y a. 20, of the h»t act, it is 

eoac^ed^ that in case any person or persons shall at any 

tiaie or times, by or through tbe negligence, carelessness* or 

I omission of tbe company, or tbeir servants or workmen, 

laSer or susuin any damage or injury exceeding the sum 

f Qf 5if thep and in every such case the whole of the damages 

10 suffered or sustained shall and may be recovered from 

|he company or their treasurer for the time being, in any 

of his majesty's Courts at Westminster, by action of debt, 

or on the case, or by bill| plaint, or information^ together 

I with costs of suit And by s* 97 it is enacted, that all the 

I powers, provisions, penalties, forfeitures, clauses, matters 

} and things in the ^0 Geo* S, shall extend to, and be exer 

f cated, applied, used and put in force to all intents and 

purposes as to this act, and the several matters and things 

therein contained, and all the clauses, powers and provi-^ 

lioQs of tbe 50 Geo. 3 and this act shall be put io force, 

sod used and applied for carrying into execution the pur^* 

; poses of the said act and this act ; and the said act and thia 

act shall be construed together as one act, as fully and 

effectually as if all the powers and provisions^ matters and 

thmgs in the said act were repeated and re-enacted in this 

9Ct, and made part thereof. 

The question fgr the opiniou of this Court is, whedier 

I this action was commenced by the plaintiff against the 

'^ defendant in proper time. 

R. F. Richards, for the plaintiff. This action was com- 
menced in proper time. The question is, whether the injury 
complained of was a '^ thing done in pursuance of the 
statute/' 50 Geo. 3, c. 207. The injury is found to have 
arisen through negligence ; the defendant, therefore, has 
heen guilty of a nonfeasance merely, and that cannot be 



1829. considered as a thing done in pursuance' of the statute. 
Even if the directions given' by tl:e dock-master can be 
considered as a thing done by him, still the question is, 
whether that was such an act, that he might reasonably 
suppose that the statute gave him authority to do it ; be- 
cause if it were, he is within tlie protection of the statute : 
otherwise not. That is the rule of construction laid down 
in Cooke v. Leonard {a), and does not operate in favour of 
the present defendant, for there was nothing here to lead 
the dock-master to suppose that he was acting under the 
authority of the statute, inasmuch as he might have acted 
precisely the same if no such statute had ever been passed. 
Edge V. Parker (6) is in principle very like the present ease, 
for there it was held that an entry by assignees into the 
house of a third person to take the goods of the bankrupt, 
was not " any thing done in pursuance of " the bankrupt act, 
6 Geo, 4, c. 16, s. 44. In Wallace v. SmUh{c), which may 
perhaps be cited on the other side, the words of the statute 
were " in pursuance, or under colour** of the act ; which 
are much more general and comprehensive than those of 
the act in question. The cases in which questions of this 
nature have arisen upon actions against magistrates and 
constables, do not apply, because a very liberal construc- 
tion is given to clauses protecting persons of that descrip- 
tion. Pratt v. Hillman (d), and Gaby v. The Wilts Canal 
Company {e), were cases upon awards, where the Court 
was concluded by the finding of the arbitrator. Weller v. 
Toke (f) and Prestidge v. Woodman (g), were actions 

(a) 9 D. & R. 339 ; 6 B. & C. had authority from the act of par- 

351. ^ Where an act of parlia- liament to do it." FerBayle^^J.^ 

nient provides that in case of any 9 D. & R. 343. 

action brought against any person, (6) 3 M. & R. 365 ; 8 B. & C. 

for any thing done in execution or 697. 

in pursuance of the act, the de- (c) 5 East, 115. 

fendant shall be entitled to certain (d) 6 D. & R. 360 ; 4 B. 3c C. 

privileges, the true meaning », 269. 

that the act done must be in its (e) 3 M. & S. 580. 

nature such, that the person doing (/) East, 364. 

it may reasonably suppose that he ^) 3 D. & R. 43 ; 1 B. & C. 19 » 


•gainet magistrates. Parton v. Williams (a), was an action 
against a constable. Wright v. Wales (b) was an action 
against a fen-reeve. These cases shew that the protection 
has been generally considered as given only to persons who 
£11 some public situation. In this case^ the proper con- 
struction of the statute seems to he, to confine the proteo- 
tion which it gives to things done for the purpose of effec- 
tuating the principal object of the act^ namely^ the making 
and maintaining the docks. The legislature never can have 
intended to give the company, who derive a profit from 
carrying on the business of wharfingers and warehousemen, 
protection in cases where they are guilty of negligence in 
the conduct of their business. Besides, by the 51 Geo. 3, 
C.66, S.20, the company are subjected to a general liability, 
without any limitation of the time within which an action 
must be commenced. Under this clause the action seems 
clearly maintainable. 

F. Pollock, contri. The general object of the clause of 
iiffljtation was, to protect the company from all claims in 
respect of any act done by them in pursuance of the act, 
unless such claims were enforced within a reasonable time, 
namely, six months after the act done. In order to eifec- 
tnate that object, the protection ought to be extended to 
all cases where the company have acted bon& fide, sup- 
posing themselves to be within the authority of the statute, 
although they have in fact exceeded that authority ; and 
that is the principle laid down in Blakemore v. The Glamor- 
ganshirt Canal Company (c). The decision in Edge v. 
Pariter (d) does not at all affect the present case, because 
that proceeded on the ground that the assignees in seizing 
the goods acted in virtue of their ownership, and not in 
pursuance of the statute. Here, the very form of the 
record shews that the act complained of was done in pur- 

(«) 3 B. & A. 830. (e) 3 Yonnge & J. 60. 

(&) 5 Bing^. 336; 2 MoorB& ((f) 3 M. & R. 365 ; 8B.&C 
P. 613. 697. 


1829. stiance of the statute. TbedefendtiDt is irned as treasurer: 
of the company^ and it was only by virtue of the statute 
that the plaintiff was enabled to make him defendant. Tbe 
plaintiff himself, therefore^ as was said by Lord JEtfen- 
borough IB Wallace ▼• Smith (a), has recognised tbe act of 
which he complains as done under the statute. The 61 
Geo. 8 does not vary the case, because that re-enacts all 
tbe provisions of tbe former statute, and provides that tbe 
two statutes shall be construed and applied as one. StUkk 
V. Smith (6) is decisive of the present case. That was an 
action of trover brought against tbe treasurer of the West 
India Dock Company, for refusing to deliver articles depo- 
sited in tbe West India Docks. It was held by Bezt, C.J* 
at nisi prins, and afterwards by the whole Court of Com- 
mon Pleas, that the defendant was entitled to the protection 
of the dock act, which required that actions for any thing 
done in pursuance or under colour of that act should be 
brought within three months. There the company were 
^barged with a misfeasance, but so in effect they are lidre, 
tor the directions given by the dock-'master, which caused 
tbe injury, must be considered as an act done by him whilcL 
acting ib the discharge of his duty as a servant of tbe conw 
pany. Agar v» Morgan (c) also is a strong authority ia 
favour of the present defendant. That was an acten 
brought against a canal company for acts committed iia 
pursuance of an act of parliament, which provided that no 
plaintiff should recover in an action for any thing done m 
pursuance thereof, without notice to the defendants «yf 
such intended action; and it was held, that a deviation 
from the line df canal described by the act of parliaraenf^ 
did not deprive the defendants of their r^ht to notice befbvo 
action brought, on the ground that such deviation mtsui 
not an act done in pursuance of tbe act of pflrliament. The 
declaration in this case states that the defeddant's servanta 

.(a) 5 East, 115. (c) 2Pnce» 186. 

(b) 2 Carr. & Payne, 284. 

MICttAtLMA&TBflMi X OKC. IV. 231 

Imi die care ftiid tUftoagemetit of the plaintiiTs vessel by ^^^^' 
tirtne of the aet of parliamenC ; and aniens that were w, jgHiTa 
the company could not, under any circomstances^ be an- *• 

sweraUe, nor the defendant^ as their treasurer, be liable to 
be sued. 

Richards, in reply. Great incontenience, and even in- 
jostice, may follow, if the company are held to be protected 
IB a case like the present. A foreign owner might find it 
impossible to give instructions to his agent to commence 
an actian within six months. The decision in Sellick v. 
Smiih(a) cannot be supported. Its authority seems to 
have been doubted in Carruihen v. Payne {b)* 

Cur. adv.vulL 

Batley, J., now delivered judgment-^This was an 
action brought ag^ainst the treasurer of the Commercial 
Dock Company, for damage done to the plaintiff's vessel. 
The damage resulted from improper directions given by 
the dock-master of the company, upon an attempt by the 
vessel to enter the docks, within the limits in which the 
dock-master was authorised by the dock act to give direc* 
tioiu ; and the question before us was, whether the action 
was commenced in time, or whether, under the provisions 
in the statute which regulate these docks, and give the right 
to sue the company in the name of their treasurer, it ought 
not to have been commenced within six calendar months after 
the directions were given, and the injury done : and we are 
of opinion that the action was not commenced in time, but 
that it ought to have been commenced within those six 
calendar months^ The language of the provision in the 
Commercial Dock Act, 50 Geo. 3, c. 207> s. 94, is, that if 
tny action shall be brought against any person, or body poli* 
tic, for any thing done in pursuance of that act, such action 
shall be brought within six calendar months next after the 

(a) 8 Carr. & Payne, 884. (5) 5 Bingb. 270 ; 2 Hoore & P. 429. 




fact committed ; or io case there shall be a continuation of 
damages, then within two months after the doing or com- 
mitting such damages shall have ceased; and the action 
shall be laid and brought in the county where the matter 
in dispute shall arise, and not elsewhere. Now, according 
to the decisions upon similar words, a thing is to be con- 
sidered as done in purmance of the act, when the person 
who does it is acting honestly and bon& fide either in 
execution of the powers which the act gives, or in discharge 
of the duties which it imposes. Though he may errone- 
ously exceed the powers the act gives, or inadequately dis- 
charge the duties it imposes, yet if he acts bon&fide in order 
to execute such powers, or to discharge such duties, he is 
to be considered as acting in pursuance of the act, and is to 
be entitled to the protection conferred upon persons while 
so acting. This is established by Gaby v. The Wilts and 
Berks Canal Company (a), Theobald v. Crichmore (6), and 
Parton v. Williams (c) : and Smith v. Wiltshire {d) and 
Cooke V. Leonard (e) establish the same point as to- consta- 
bles and other persons acting in obedience to a magistrate's 
warrant. Indeed this position was not controverted upon 
the argument ; but the points insisted upon were, first, that 
the first of the Commercial Dock Acts, 50 Geo. 3, c. 207» 
s. 94, gave the protection in those cases only in which the 
act done was done for making and maintaining the docks, 
and did not extend to the conduct of the dock-master in 
giving directions for transporting vessels into the docks ; 
and, secondly, that the 51 Geo. 3, which gives the remedy 
by action against the company for the negligence, careless- 
ness, or omission of themselves, their servants, or workmen^ 
when the damage exceeds 5/., though it contains a clause 
which virtually re-enacts and applies to the cases within the 
latter act, the protection given by the former act, s.94, did 
not mean it to apply to actions against the company like 

(a) S M. & S. 580. 
{b) 1 B.& A.897. 
(c) 3 B. & A. 330. 

(d) 2Bro.&Bingh. 619. 

(e) 9b.&R.339; 6 B. ic C. 


the present for negligence, but meant to confine it to what 18'29. 
was done under the powers of that act, towards maintaining 
and improving the docks. Upon an attentive considera- 
tion, however, of the two dock acts, it appears to us, that 
if the second act had never passed, the protection given by 
8, 9^ of the first act would have applied to any action which 
might have been brought for the injury in question ; and 
that if this action is to be considered as founded on the 
second act, the re-enactment in the second act of what 
forms s. 94 of the first act, will also apply to it.- By 50 
Geo. 3, many powers are given for making and maintaining 
the docks, and no doubt the protection given by s. 94, 
would apply to any action which might be brought for an 
excess in the execution of those powers ; but it does not 
follow that it would be confined to them. By s. 7 1, the 
company are to appoint a dock-master^ who is to have 
power to direct the mooring, unmooring, moving and 
removing of all vessels into or being in the docks, 8cc. 
Bjf 8. 72, he is to have the control over the space of 100 
jards from the entrance into the docks, so far as relates to 
the transporting vessels coming in or going out. It was 
from impropriety in the directions which the dock-master 
gave, and from the improper exercise of this control, that 
the injury in question happened. But was not the dock- 
master actings in giving those directions and exercising that 
control, in pursuance of the act ? It was only under the 
act that he had authority to give any directions; but for the 
act, the captain and crew of the vessel might have disre- 
garded those directions. Supposing, then, that the 51 
Geo. 3 had never passed, and that the case had stood upon 
the 50 Geo. d, and that an action had been brought against 
the dock-master for the injury which his improper direc- 
tions had occasioned, would he not have been entitled to 
the prote<:tion given by s. 94 ? Would he not have been 
entitled to say, " I acted under, and therefore, in pursuance 
^ the. statute. I should never have acted but for the 
statute. The statute made it my duty to act; and if I 



234 CASta m I'fie rti^6"B AtHCti, 

1820. acted erroneously, I nm entitled to the protection the 
itatufe meant to gire to an boneat but erroneons exercise 
of ita powers*'* 

Shaw. Then, if in an action against tbe dock->maftter nnder 50 

Oeo. 3, s. 94 of that act would have applied to him, tbe 
argument which would deprite the company of tbe like 
protection when they are soed under 51 Geo. 3, fails. 
They are, under 51 Geo. 3, in at least as farourable a 
situation as the dock-master was under 50 Geo. 3, and what 
woald have been a defence for faim» will be also a defence 
for them. Wallace v. Smith {a) seems to us at least as 
strong a case as the present. There tbe ground of com* 
plaint was, that the West India Dock Company had wrong- 
fully prevented the plaintiffs, as brokers or agents, from 
landing goods from vessels in the docks, and delivering 
them to tbe owners ; and tbe question was, whether the 
99 Geo. 3, c. 69» s. 185, which required fourteen days' 
notice before any action was brought against the company 
for any thing done in pursuance or under colour of that act, 
was a bar to the action, no notice having been given; and 
after takiug time for eonsideration, tbe Court held that it 
was* The defendant's counsel immediately agreed to 
waive the advantage, and to refer the injnry complained of 
to arbitration. In deciding this cade, it is not necessary 
to go the length of Selliek v. 8mith{b), which was cited at 
the bar, rtor to say whether a mere nonfeasance would be 
an act done within the meaning of this and similar statutes ; 
a point much doubted in Blakemore v. The Olamarganskire 
Canal Company (c). In the present case, tbe statuta 
authorises the giving directions, and giving directions is 
doing an act. There must, therefore, be a nonsuit* 

Judgment of noaaint^ 

(a) 5 East, 115. (c) 3 Youngs & J. 60. 

(6) S Cftir. & Payne, 884. 

MlCrfAfiLHAS n.ViU, X oeo. iV. 236 

Wise o. Metcalfe, Executor of Metcalfe, deceased. 

Case by the plaintiff^ rector of the church of the parwh The incam- 

of Barky, in the county of Hertford, againat the defendant, ;^ \^ bound" 

eiectttor of the Ute rector, William Metcalfe, the imrne^ to keep the 

diate predeceaaor of the plaintiff, to recover the aoioaut of (jouse, build- 

tlie dilapidationa of the rectory-bouse, bama, stables and j.^^^^^ 
out-bonsea thereto belonging, of the said rectory^ and of good and 
the cbancsl of the said church, which had ariaen at die jl^MiTrastor- 
timeof the death of the said William Metcalfe. At the ing and re- 
trial before Garrow, B., at the Herts sununer assizes, id^S, when neces- 
a verdict was found for the plaintiff, damages 999i* ^Bs. Qd*^ ^^> accord- 

Sttlgect to the opinion of this Court upon the following onginal form, 
^>^P ,_^ wiuiout addi- 

tion or mo- 
The deceased^ William Metcalfe, became rector of the dem improve- 

cbarch of the parish of Barley, in 1814, and soon after- |^ o'l^t'b^und' 

wards received from the personal representative of his im^ to supply or 

,. - , , i. / f • . , maintain any 

mediate predecessor the aum of 1 I5i<, bemg the amount thing in the 

of the dilapidations of the rectory-house, out4iuildings and nature of or- 

chanceU at the death of hia said predeceasor; Mr. Metcalfe painting (un- 

continued to be rector until hia death, which happened on t^^!^e*^ 

the l6th of May, 1827, at which period the annual value of eiposed tim- 

tbe said rectory, waa 600/., out of which the sum of 46/« ^y\ and 

was payable annually for Iand*tax. .In the month of July, whitewashing^ 

1827> the plluntiff became the rector of the church of the and man ac- 

said parish, and has so continued ever sroce. The rectory<« ^-^^tkuis b^' 

house is an ancient structure, built with timber and plaa-* the successor 

tared on the outside, and has upon it the date of 1624« The ^^^^11^^' 

bams are also old, but not of equal age with the rectory^ of a deceased 
. r«i i-i . 1 . ^ . 1 « rector, the da- 

bouse. The dilapidations of the rectory-house, bams, mages are to 

stabka, oul-buildings, and of the chancel of the church, ^ ^^jj^*^^ 

aaDonoted to 890/* 169. 6d., provided the principle upon principle. 

uhicb the estimate had been made was correct. That 

principle waa, that the former incumbent, William Met* 

tatftf ought to have left the rectory-house, buildings and 

chancel io good and substantial repair ; the painting, pa^^ 

236 CASES IN THE king's BENCH, 

1899. pering and whitewashing being in proper decent condition 
for the immediate occupation and use of his successor ; 
that such repairs were to be ascertained with reference to 
the state and character of the buildings which were to be 
restored where necessary, according to their original foroii 
without addition or modern improvement. It was proved 
by the several surveyors of experience, examined on the 
part of the plaintiff, and also of the defendant, that they 
had invariably estimated the dilapidations between an in- 
cumbent of a. living and the representatives of his predeces- 
sor upon the above principle. 

If, however, the rectory-house, buildings and chancel 
were to be repaired in the same manner only as buildings 
ought to be left by an out-going lay tenant, who is bound 
by covenant to leave them in good and sufficient repair, 
order and condition, the expense of such reparations 
amounted to 310/., the painting, papering and whitewash- 
ing not being included in the last estimate. 

And if the former incumbent, William Metcalfe, was 
only bound to leave the rectory-house, buildings and chan- 
cel, wind and water tight, or in that state of reparation 
which an out-going lay tenant of premises, not obliged by 
covenant to do any repairs, ought to leave them in, then the 
expenses of repairing the rectory-house, buildings and 
chancel, amounted to 75/. lis. 

The question for the determination of the Court is, 
which of the above principles of valuation is the correct 
one; and according to their decision the damages will stand 
at 3gg/. ISs. 6d., or be reduced either to 310/., or to 
76/. 1 1*. 

Brodrick, for the plaintiff. The first principle of valua- 
tion stated in the case is the correct one, and ac(x>rding to 
that the plaintiff is entitled to retain his verdict for the full 
amount of damages given at the trial. The action for dila- 
pidations is a branch of the common law ; for it is founded 
on the custom of England, which is the common law.^ Now 


by that custom, as it will be found to be described in all the 
aocient authorities upon the subject/ the incumbent of a 
living is bound to leave the premises in the same state of 
repairs as he is bound to keep them in. In Degge{a) the 
rule is thus laid down : — '* Omnes et singuli prebendarii, 
rectores, vicarii regni AnglisB pro tempore existentes, omnes 
et singulas domos et edificia prebendaruni, rectorianim, et 
Ticarianim suarum reparare et sustentare, et ea successori- 
bus suis reparata et sustentata dimittere teneantur/' That 
language clearly shews that the premises ought to be left to 
the successor in the same state of repairs in which they 
ought to be kept by the predecessor. In Gibsort's Co- 
^{b)j there is given a legantine constitution of Cardinal 
Othobon{c), by which it is ordered that none through co- 
vetousness may neglect the house, nor suffer it to go into 
ruin or dilapidation. It is in these words : — ** Improbam 
quorundam avaritiam prosequentes, qui ciim de suis ec- 
clesiis et ecclesiasticis beneficiis multa bona suscipiant, 
dofflos ipsarum, et cstera edificia negligunt, ita ut integra 
ea non conservent et diruta non restaurent; propter quod 
ecclesiaram ipsarum statum deformitas occupat et multa 
Jocommoda subsequuntur : statuimus et praecipimus, ut 
universt clerici, suorum beneficioruni domos, et caetera edi- 
ficia, prout indiguerint reficere studeant condecenter." 
lAfndewode, in his comment upon this constitution (e/), 
particularly notices the term *' prout indiguerint/' and says, 
** necessariam refectionem importat ; non ergo loquitur hie 
de refectione preciosa* pictune Parrhasii vel Apellis, immo 
oec de aliis voluptuosis impensis.'' Still the term *' studeant*' 
implies that care is to be taken from time to time to keep 
the premises in decent and becoming repair. The word 
^ dilapidations" means the neglect of such repairs as are 
necessary to make the house habitable — habitable, that is, 

(«) D€gge*8 Parson's Counsel- (d) Lyndewode's Provinciole. 

lor, p. 138, pi. 94. Constitutio Obothokii, tit. 17. De 

(^) Gibs. Cod. Jus. Eccl, 751 . Domibus Ecclesiarum Reficiendis, 

(c) A. D. 1368; 52 Heo. 3. p. 112, £d. Oion. 


1829. with a reasonable degree of respectability and conveqitfiicfl 
•r-regard being had to the value of the bene6ce to vbicb 
the house belongs. Gibson, in the appendix to the Qh 
deje(a)f gives directions for parochial visitations, and eau** 
merates among the things to be inspected, the mai|sionw 
bouse of the rector, and other houses and buildings thereto 
belonging, all of which, he says, ought to '' be kept in good 
and suflScient repair; and particularly that the mansion op 
dwelling-house (over and above the repairs which aro 
deemed necessary) be kept in such decent manner as is 
suitable to the condition of the rector, vicar or curate/' and 
be refers to the words in the constitution of OihobotSf ** re^ 
ficere studeant condecenter." In the present case the 
rector derived an income of 600/. a year from his rectory ; 
surely then he ought to have devoted a portion of that io« 
come to the keeping the premises in repair, and in a stats 
generally, with respect to painting, papering and whitewash- 
ing, suitable for the convenient occupation of a man of that 
income. In GodolphitCs Repertorium it is said (6), that in 
the injunctions of King Edward the Sixth to all his clergy, 
it is required '^ that the proprietors, parsons, vicars and 
clerks, having churches, chapels^ or mansions, shall yearly 
bestow upon the same mansions or chancels of their 
churches, being in decay, the fifth part of their benefices, 
till they be fully repaired, and the same so repaired shall 
always keep and maintain in good estate." That the exe- 
cutors of a deceased incumbent are liable by the common 
law for dilapidations, is clear upon all the authorities (c); 
though it is not so clear in what state the premises must 
be in order to make it necessary to put them intp repair* 
The true principle, however, seems to be, that every incum- 
bent ought to leave the premises in the same state of repair 
in which be is bound to keep them, that is, in a state fit for 
the occupation of a person holding such a benefice. The 

(a) P. 1554. tit. Dilapidations ; Watson's Cler* 

(b) P. 176, ed. 1689. gyman'i Law, p. 409 ; Y^9mg v. 

(c) See Bum'9 £ccl. Law, ^ Mani^, 4 V * 4c S, 18^. 


die of Perdval v^ Cooke (a) will be relied upoq b; the other 
side. That was an action similar to the presenti upon the 
trial of which Best, C. J. expressed his opinion^ that the 
executors of a deceased incumbent are not bound to put 
the rectory*4iouse into a finished state of repair ; but are 
otJjbpund to restore what is actually in decaj, and to make 
Mich repairs as are absolutely necessary for the pre^rvation 
of the premiaes. The parties in that case deferred to the 
learned jiidge's opinion and compromised the suit> so that 
diere was no opportunity or occasion to discuss the pro* 
priety of the rule by him laid down; but it is not too much 
to observe that it is a mere nisi prius dictum, and as such 
eatitled to little weight. An authority of quite as much 
weight might be cited in an opinion given by Lord Slowell, 
when at the bar, upon this subject, which goes all the 
kngth of the arguments used in behalf of the plaintiff in 
the present case, and which has been very generally acted 
upoo by surveyors in estimating the amount of dilapida* 
tion8(A). An incumbent may be compelled, under the 



(fl) S C. & P. 460. 

(b) The following is a copy of the 
case kid before Sir William Scottj 
and of hb opinion referred to io 
the text. 


"IHere being a difference of 
opinion between tbe Rector of 
•i. in the connty of York, and the 
necutor of the late incumbent 
thereof, respecting the sense of the 
irord * dilafttdations,' and a very 
wide difierence, in consequence, 
between the estimates of the work* 
men employed by the same par- 
^; Sir William Scoii is desired 
to give the l^gal acceptation of 
the word ' dilapidations,' that is, 
irbetber it implies the same as, 
or more than, what is generally 
ondentood by the words ' com- 
plete repair/ in common tenancy; 



and if more, how far he thinks it 
extends beyond them.** 
'^ I am of opinion that ' dilapi- 
dations' go beyond what is gene* 
rally understood of * complete re- 
pairs' in common tenancy ; at 
least, beyond what I understand 
by thut expression. I understand 
by dilapidations, apd I think I am 
fully supported by the decisions of 
competent Courts in understand- 
ing so, such repairs and renewals, 
and, if I may use the won)^ reno- 
vations, if necessary, of the house 
and its appendages, as will enable 
the incumbent to enter upon and 
inhabit them at the period the law 
entitles him to take possession, or 
as soon after as may be, allowing 
reasonable time for the repairs^ 
(lc. Dilapidations, therefore, will 




ecclesiastical law, not only to repair but to rebuild; Dr. 
Wood^s case {a) ; where a bishop (Jb) was suspended for di- 
lapidationSy and the profits of his bishopric sequestered, 
until the episcopal palace was rebuilt out of them. So, the 
profits of a benefice may be sequestered by the ordinary, 
and applied in such repairs as the ecclesiastical law re- 
quiresy or the incumbent visited with ecclesiastical censures, 
even to deprivation^ if necessary (c). And the statute 57 
Geo. Sf c. 99i requires non-resident incumbents to keep 
their houses in good and sufficient repair; and provides ((/), 
that where curates are appointed by incumbents, and receive 
the entire profits of the benefice, they shall allow any sum 
not exceeding one-fourth of the profits that may have been 
expended in repairs. 

Thesiger, contrsl. It is immaterial to consider what has 

include not only all repairy merely 
substantial, but likewise some of a 
more ornamental liature. Hie 
house must be in proper condition 
as to whitewashing and paint, be- 
cause it cannot otherwise be de- 
cently inhabited. 

^ I do not mean that it is to be 
new whitewashed and painted, if 
the whitewashing and painting be 
fit for use; but if ic is not so, tlie 
eiecutor is bound to whitewash 
and paint it anew. I need not 
add, that the floors, ceilings and 
cornices, must all be in good con- 
dition, as likewise windows, 
frames, doors and locks, and every 
part of the apparatus of a decent 
habitation. When I say in a good 
condiiion, I mean that each should 
be in a sound and proper condi- 
tion fit for its respective use. Their 
being plain is no sufficient objec- 
tion against them. It would be 
endless for me to particularize the 
articles to which * dilapidations' 
applies; nor could I do it from 

mere memory, without having the 
several articles proposed to roe 
with an inquiry upon each : but I 
may lay down the general princi- 
ple to be this — that dilapidations 
are such repairs and renovations as 
are proper to make the house ha- 
bitable with decent convenience, 
respect being had to the value of 
the benefice to which the boose 

** I take this to be the strict 
principle of law apply ing to dila- 
pidations. I need not add, that in 
practice this principle ought not to 
be acted upon with a niinute and 
sordid rigour, but ought to be mo- 
derated in the adjuscment by a li- 
beral disregard of things trifling in 
their own nature and value.^ 

(a) Cited in IS Mod. 237. 

(6) Litchfield and Coventry. 

(c) See Burn's Eccl. Law, 9, 
tit. Dilapidations, and the cases 
there collected. 

(d) In section 63. 


been the prevailing custom or practice in estimating dilapi- ^^^^* 
dations hitherto ; the Court are now called upon to esta- ^j^^ 
blish a legal principle upon which such estimates shall be v. 

made in future. Of the three principles stated in the case, 
(he last is that upon which the estimate in the present instance 
ought to have been made, namely, that the incumbent is 
bound to leave the buildings belonging to his benefice in 
such a state of repair only, as an outgoing lay tenant, not 
bound by covenant to repair, ought to leave his premises 
in. Dilapidation may be almost called a synonymous 
tenn with waste. Damages are recoverable at law for di- 
'apidations upon the same principle that they are recoverable 
for permissive waste. The definition of the word given by 
the best authorities fully supports this argument. Cozre//, 
in his Dictionary, calls it *' a wasteful spending or destroy- 
ing, or the letting buildings run to ruin and decay for want 
of due reparation.*^ J^^gg^f in his Parson's Counsel lor {a),cM9 
it| '' the pulling down or destroying, in any manner, any of 
(be houses or buildings belonging to a spiritual living, or the 
chancel, or suffering them to run into ruin or decay, or wast« 
ing and destroying the woods of the church, or committing 
or suffering any wilful waste in or upon the inheritance of 
the church." (&) Blackstone, speaking of dilapidations, 
99ys{c), ** It is also said to be good cause of deprivation, if 
the bishop, parson, vicar, or other ecclesiastical person, dila-^ 
pidates the buildings, or cuts down timber growing on the 
pitrimony of the church, unless for necessary repairs;'' 

(a) P. 134. to repair the same; and it likewise 

(^) Riackstone, in his Com- extends to his committing, or suf- 

mentaries, iii. 91, calls it, ** a kind fering to be committed, any wilful 

of ecclesiastical waste, either vo- waste in or upon the glebe-woods, 

laotary by pulling down, or per- or an^ other inheritance of the 

mi^ire by suffering the chancel, church :** and he cites Ayliife's 

parsonage-house, and other build- Pnrcrgon as his authority. Cham- 

ings thereunto belonging, to de- hers, in his Cyclopaedia, calls it, 

cay." Johnson, in his Dictionary, " a wasteful destroying, or letting 

calls it, ** the incumbent's suflfcr- buildings, especially pnrsonnge- 

ing the chancel or any other edi- houses, run to ruin and decay, for 

6ces of his ecclesiastical living, to want of necessary reparation/* 

go to rain or decay, by neglecting (c) 3 Bla. Comm. 91, 18th ed. 

VOL. V. R 


18«9. and he cites I lioL Bep. 86, 1 1 Rep. 96^ and OodboU, ad9) 
as authorities. And those cases are good authorities for bis 
position. In Stockman ▼« Wither {a), the very point was 
so decided^ and there waste and dilapidation were treated 
as synonymous terms. In The Bishop ofSaliiburp^n ca»e(A) 
it was held, that if a bishop, parson, or ecclesiastical person, 
do cut down trees upon the lands, unless it be for repara- 
tions of the ecclesiastical house, or do or suffer to be done 
any dilapidations, they may be punished for the same in the 
Ecclesiastical Court, and a prohibition will not lie, and the 
same is good cause of their deprivation of their ecclesiftstieal 
livings and dignities. But yet for such waste done, tbey 
may be punished also at common law, if the ptrty will site 
there. In Lifortts case(c) it is said, if a bishop or arch- 
deacon abates or fells all the wood he has, as bishop, be 
shall be deposed as dilapidator of his house* In other 
cases, prohibition has been resorted to, as a milder mode 
of restraining ecclesiastical persons from committing dilapi* 
dation or waste ; Knowle v. Harvey {d), The Bishop of Dar' 
ham's case(e) ; though in one case the Court of Common 
Pleas held that they had not power to award a prohibition : 
Jejersony, The Bishop of Durham{f), In addition to the 
modes already noticed, of deprivation and prohibition, % third, 
namely, sequestration, seems to have been founded upon 
the constitution of Cardinal OMo60M(g), cited on the other 
side. By that bishops and archdeacons are required to ad- 
monish their clerks decently to repair the houses and buildiogB 
of their benefices ; and if they neglect for the space of two 
months, the bishop is to cause the same to be effectually 
done at the costs and charges of the clerk, out of the profits 
of the church and benefice, causing so much thereof to be 
received as may be sufficient for such reparation. Originallyp 
the amount to be sequestered was in the discretion of the 

(a) 1 Rol. Rep. 86. (e) Cited in Lifordth case, 1 1 

(6) Godbolt, 259. Rep. 49. 

(c) 11 Rep. 49. if) 1 B. & P. 105. 

(rf) 1 Rol. Rep. 335 ; 3 Biilstr. (g) A.D. 1?68,5« Hen. 3, Gibs. 

158. Cod. t5l. 


ordinary, but by injunctions in the reigns of Henry 8, EtU 1099. 

nmrd 6, and Etizabeih (a), the amouul was limited to one 

iifthi which was afterwards by the Reformatio Legum Ec« 

cleiiaiticarum reduced to one seventh. This last mode of 

repairing dilapidations in the life-time of tbe incumbent 

still prevails, and the amount usually allowed by the Ecclesi* 

aatical Court is one fifth; North v. Barker (A). It is to be 

obwrved, that all these modes of proceeding, deprivation, 

prohibition, aod sequestration, assume a species of waste 

as their foundation. Such was, and still in part is, tbe law 

respecting repairs done during the incumbency. The next 

step if to consider what provisions have been made with re- 

gsrd to dilapidations existing at the time of the resignation 

or deceue of the incumbent. The first is a canon of Ed^ 

mmd, archbishop of Canterbury, in the reign of Henry 

5, in these words : — ** Si rector alicujus ecclesise decedens 

domos ecclesiflB reliquerit dirutas vel ruinosas, de bonis 

ejai ecclesiaaticis, tanta portio deducatur quae sufficiat ad 

reparandum hsec, et ad alios defectus ecclesiae supplendos : 

semper, tamen, rationabilis consideratio sit habenda ad facul- 

tates ecclesiae, cum hsc portio fuerit deducenda" (c). Lynde* 

wodt'i gloss upon this Canon is-^on the word ^* dirutas, " 

"totaliter prostratas"— on '' ruinosas," ''de proximo vel 

verisimili casuras, *' — on ''ad reparandum," ''et intellige 

banc reparationem fieri debere, secundum indigentiam et 

qualitatem rei reparandas, ut scilicet impensae sint necessarise 

000 voluptuosaa, " — on "facultates ecclesias,*' secundum 

quarum considerationem haec reparatio est facienda ; quia 

in beneficio pinguiori requiruntur edificia magis sumptuosa, 

quam in beneficio minus pingui." This is the first autho- 

nty touching the nature of the repairs, and it is observable 

that it eipressly refers to the value of the living. At com- 

nuMi bw, probably, there always existed a remedy against 

the executor of a deceased rector, though Gibion (d) 

(a) Gibs. Cod. 753, in nocis. p. Q50, ed. Oxon. 

0) 1 Phill. Rep. 309. (d) Gibs. Cod. 753. 

(c) Ljodew. Prov. lib. iii. tit. S7, 



1839- mentions Degge as the first author who suggested the pos« 
tT"" sibility of maintaining such an action in the common law 

V. CourtSf and cites Jones v //?'// (a) as the first instance o( 

Metcalfe. ^^^^^1^ ^^ action being entertained. Degge gives the custom 
upon which the action is founded, in these words : — '' Et si 
hujusmodi prebendarii| rectores, et vicarii domos et edificia 
hujusmodij successoribus suis sic, ut praemittatur, reparata 
et sustentata, non demiserunt et deliquerunt ; sed ea irre** 
parata et dilapidata permiserunt, executores sive administra- 
tores bonorum et catallorum talium pragbendariorum, rec- 
torum, et vicariorum, post eorum mortem de bonis et catallis 
decedentium successoribus talium prcbendariorum, recto* 
rum, et vicariorum, tantam pecunia3 summam quantam pro 
necessari& reparatione et ediiicatione hujusmodi domoruni 
et edificiorum expendi aut solvi sufficiet, satisfacere tenean* 
tur *' (b). This shews the measure of damages to be re* 
covered against the executor, namely, so much only as is 
required to repair and sustain that which is out of repair 
and dilapidated, and which it is necessary should be repaired 
and sustained. Now that is the very principle of permissive 
waste. The foundation of this action is a tort, and it is an 
exception to the general rule of law, *^ Actio personalis cum 
personft moritur. " In SoUers v Lawrence (c), Wi/les, C. J. 
gives as a reason for the action being maintainable, ** be- 
cause it is not considered as a tort in the testator, but as a 
duty which he ought to have performed, and therefore his 
representatives, so far as he left assets, shall be equally liable 
as himself" (r/). But "the action is in form an action on 
the case in tort, and could not possibly be framed in as- 
sumpsit, as on a contract, for the plaintiflf must be the 
succeeding rector, who cannot be known until after the 
death of his predecessor, and of course could not contract 
with him " (e). Then as the action is founded on the breach 
of a duty cast by law upon the incumbent, it becomes ne- 

(a) 3 Lev. 268. (c) Willes, 413. 

(6) Degge's Pars. Couns. 138; (d) Id. 421. 

and see 1 Lutw. 116. (e) 1 Saund, 216, note, last ed. 


cessary to consider in wliat relation tlie incumbent stands to ^ 1829. 
the benefice. Now he is considered as having the fee, 
when it is for the benefit of the church tliat he should be so 
considered ; when otherwise, he is considered as tenant for 
life. He is in the condition of a tenant for life, with im- 
peacbment of waste, or like tenant for years, or from year 
to year, not bound by covenants. Such persons were not 
originally liable for waste at all, and though they have been 
made so liable by the Statute of Marl bridge, still that is to 
a limited extent only. It is quite clear that an outgoing lay 
tenant is not bound to do more than merely necessary re- 
pairs. In Rollers Abridgement it is said (a), ''if a tenant 
permit a chamber to be in decay for default of plastering, 
whereby the great timber becomes rotten, and the chamber 
becomes very foul and filthy, an action of waste lies," 
So, if the lessee permit the walls to be in decay for want of 
daubing, whereby the timber becomes rotten (b). Ferguson 

V. (c), Russell V. Smithies {d J, and Horsfallv. Mather (e), 

are all authorities shewing that the liability of a tenant, 
oot bound by covenant, extends to necessary repairs only. 
No case can be found expressly defining the nature and ex- 
tent of this liability in ecclesiastical persons. In North v. 
Barker (/), Sir John Nichol expressed himself of opinion 
that the executors of a deceased incumbent are not bound 
to renovate a building, even in its ancient form, much less 
in its pristine beauty, and that the thorough repair of the 
old building is not to fall on one incumbent. Assimilating 
tbe liability of an ecclesiastical person with that of a lay 
tenaoC for life or years^ the rule laid down by Best, C. J. in 
Perdval v. Cooke (g), appears by no means unreasonable. 
The statute 13 Eliz, c. 10, declares what dilapidations the 
executor of a deceased rector shall be liable to pay for. It 
recites, that persons endowed of buildings belonging to ec- 

(«) II. 816, tit. Waste, pi. 36. (e) Holt's N. P. C, 7. 

(*) Id. pi. 37. (/) 3 Phill. Rep. 307. 

(O 2 Esp. 390. ig) 3 C. & P. 460. 
(<0 1 Aii5tr. 69. 

346 CASES IN THE KlNO's fi£NCH» 

1829. clesiastical beaefices had not only suffered the same, for 
want of due reparation^ to run to decay, converting the tim- 
ber, lead, and stones to their own benefit, but had also made 
deeds of gift and other conveyances of their goods and chat- 
tels in their livestiaie, to the intent, after their death, to 
defeat and defraud their successors of such just actious and 
remedies as otherwise they might have had for the same 
against their executors of their goods by the laws ecclesi- 
astical : and then enacts, that, if any incumbent of any 
ecclesiastical living, whereunto belonged any house, &c. 
which by law he was bound to repair, should thenceforth 
make any conveyance of his goods, to the intent above men- 
tionedj his successor may have remedy in the Ecclesiastical 
Court against the person to whom such gift had been made, 
for the amendment and reparation of so much of the dilapi- 
dations and decays as hath happened by his fact or default^ 
iQ such sort as he might have had if the donees were eae- 
Ctttors of the last incumbent Thb confines the liability of 
the fraudulent donee to such dilapidations as happen by the 
fact or default of the incumbent. Now dilapidations oc- 
casioned by the hand of time, as the wear and tear of a 
house, cannot be said to happen by the feet or default of the 
incumbent ; the words of the statute iticlude so act whicli 
would not be waste in a tenant for life or for years : aottd if 
this is the measure of damages fixed by the statute to be 
paid by a fraudulent donee, it is a fair inference that the 
legislature intended to cast upon him the same burthen which 
the common law had already cast upon an incumbent who 
had been guilty of no fraud. Again, by the statute 1 7 G. 
3, c. 53, the incumbent, where there is no house, or wheiB 
the house is so ruinous and decayed that one year's prodiioe 
of the living will not suffice to repair it, may have «ai esti- 
mate made, and, with the consent of the ordinary, borrow 
money to rebuild upon mortgage of the glebe, tithes^ &c. ; 
and the statute goes on to charge the living with (he iiKMBMes 
so raised, and to direct that all sums recovered by sttit, or 
secured by composition of any former incumbent, sliall be 


applied in part of the payments under the estimate. Now, I82d. 
if the argument on behalf of the present plaintiff be correct, 
this statute can never apply, except in cases where the in- 
cumbent dies insolvent ; for if his executor is to supply and 
restore >vh«tever he leaves deficient or decayed^ the house 
never can become ruinous or decayed, because if it should 
be destroyed by lightning or prostrated by tempest, it must 
be rebuilt by the incumbent under his common law obliga- 
tion. Every incumbent is entitled to the fair use of all 
the property attached to his living, and should be allowed to 
deal with it in the same way as a prudent man having a per- 
petual interest would do. Tlie property must be in a 
gradual course of decay ; but if it be in such a state of pre- 
servation that tlie incumbent might fairly take another year's 
wear out of it, the mere circumstance of his dying in the 
course of that year ought not to throw upou his executor 
the burthen of repairing it sooner than the iucumbent him- 
self need have done; the succeeding rector will have his 
proportion of the profits, and should injustice bear his pro- 
portion of the expense. 

Cur. adv. vuH. 

BAYtEY J. now deli^rered JMlgnent. — This was an action 
for dibpidaliotts, broiigliit by the successor against tlie exe- 
cttlor of tke deeeated rector, and the question was, foy what 
rule the ^ikpidations as to the rectory-hou«e, buildings and 
rhwmrti, vere to be estimated. Tkree rules were pcoposed 
for our coaaaderataiMi. First, that the predecessor ought to 
have left die pretnises in good aiid aubstaiitiai repair, the 
peiniaig, pampering and whiteweshing being iii proper and 
dnoent conditioa for the immediate oecufMtion and use of 
his enccetsor, and tliat auch repairs were to be a«certamed 
wilk tmkmmem io the etate and dmracter of the buildings, 
which were to be restored, where neceemry, according to 
their origiMl fanny witboot nddkton or modern improve- 
ment, and the eattmnte, according to this rule, came to 
9001. lftt.&2. 


The second rule proposed was, that tliey were to be left 
as an outgoing lay tenant ouglit to leave bis buildings, where 
he is under covenant to leave them in good and sufficient 
repair, order and condition, and the estimate, by tliat rule, 
was 310/. the painting, papering and whitewashing not being 

llie third rule was, that they were to be left wind and 
water tight only, or, as the case expresses it, in such condi- 
tion as an outgoing lay tenant, not obliged by covenant to 
do any repairs, ought to leave them, and by that rule the 
estimate would be 7o/« 1 Is, 

We are not prepared to say that either of these rules is 
precisely correct, though the second approaches the most 
nearly to that which we consider as the proper rule. 

The law and custom of England, or, in other words, the 
common law, as stated in some of the earliest precedents, 
p. 12 and 13, Henry 8, Rot. 12G, C. B., and others which 
we have searched, and in 1 Lulw, 116, is as follows: — 
<' Omnes et singuli prebcndarii, rectores, vicarii, &c., pro 
tempore existentes, omnes et singulas domos et edificia pre- 
bendariorum, rectoriarum, vicariarum, &c., reparare et sus^ 
tenlare, ac ea successoribus suis reparata et sustentata 
dimittere etrelinquereteneantur, et si hujusmodi prebcndarii, 
rectores, viearii, &c., hujusmodi domos et edificia successo- 
ribus suis, ut prasmittatur, reparata et sustentata non dimi- 
serint et reliquerint, sed ea irreparata et dilapidata per^ 
miserint, eidem prebendarii, 8cc., in vitis siiis, vel eorum 
executores, sive administratores, 8cc., post eorum mortenn^ 
successoribus prebendariorum, &c., tantam pecuniae sum- 
mam, quantam pro reparatione, out necessarid re-^di/ica^ 
tione hujusmodi domorum et edi6ciorum expendi aut solvi 
sufficiet, satisfacere teneantur." An averment in terms 
nearly similar has been usually introduced into all declara-' 
tions on this subject. 

From this statement of the common law, two propositions 
may be deduced. First, that the incumbent is bound, not 
only to repair the buildings belonging to his benefice, but 
also to restore and rebuild them, if necessary. Secondly 


that he is bouud only to repair, and to sustaitiy^ and to 1B29. 
r^ildf when necessary. Both these rules are very reason- 
able, die first, because the revenues of the benefice are given 
as a provision^ not for a clergyman only, but also for a suit- 
able residence for that clergyman, and for the maintenance 
of the chancel : and if by natural decay, which, notwith- 
sUnding continual repair, must a^ last happen, the buildings 
perish, these revenues form the only fund out of which the 
means of replacing them can arise. The second rule is 
equally consistent with reason, in requiring that which is 
useful only, not that which is matter of ornament or luxury. 
It seems naturally to follow, from the first of these propo- 
sitions, that the third mode of computation proposed in the 
case cannot be the right one, because a tenant, not obliged 
by covenant to do repairs, is not bound to rebuild or re- 
place. The landlord is the person who, when the subject 
of occupation perishes, is to provide a new one, if he thinks 
fit. And if the second proposition be right, a part of the 
charges contained in the first computation must be disal- 
lowed ; for, papering, whitewashing, and such part of paint- 
ing as is not required to preserve wood from decay, by 
exposure to the external air, are rather matters of ornament 
and luxury, than of utility and necessity. 

The authorities which have been cited from the canon 
law, agree with that which we consider to be the rule of 
the common law. 

The earliest provision on this subject is the provincial 
constitution of Edmund, archbishop of Canterbury, made 
A. D. 1236, 21 Henry 3. It is in the following terms : — 
'^ Si rector alicujus ecclesiae decedens domos ecclesiae reli- 
querit dirutas vel ruinosas ; de bonis ejus ecclesiasticis 
tanta portio deducatur, quae sufficiat ad reparandum haec, et 
ad alios defectus ecclesise supplendos." That constitution, 
therefore^ directs the repairing *' domos ecclesise dirutas 
vel ruinosas.*' And Lyndewode*s commentary upon the 
word^ ** ad reparandum" is, " scilicet diruta vel ruinosa. 
Et intellige banc reparationem fieri debere secundum 
iDdigeotiam et quaiitatem rei reparandse ; ut scilicet, im^ 


laeo. pensae sint iiecessaris non volupUiosae/* Tba next autho- 
^'^^ rijty cited from the cauon law, was the following legaoUoe 
V. constitutioo of Otbobonf promulgated A. D« 1£68» 52 

Man; ffmry 3 :— '* Improbam quorundam avaritiam pro6«- 
quente^i qui cum de tui« ecclesiis et ecclesiasticis beneficiii 
multa bona auscipiaoty domo» ipsarum, et castera edificia 
negligunt» ita ut Integra e^ non cooservent, et diruta noa 
reataurent." That ia the imputation againat the ckfgy. 
The conatituUon then proceeds : — '^ atatuimas et prvcipi* 
muf ut universi ckrici auorum beoeficiorum domoii et 
eastern edificia prout indiguerint reficere atudeant cgode- 
center^ ad quod per epiacopos auos vel arcbidiacoQaa aoUi- 
cit6 mooeantur. Cancelloa etiam accieaia^ per eos qui ad 
hoc ieoeotur refici faciaot, ut superiua est eapreaauoi* Ar* 
cbiepisGopos vero et apiscopoai et alios ittferiorea praelatoa, 
domos et edificia sua aarta tecta, et io atatu auo eonserrare 
et tenere^ aub divini judicii attestatioue pradciptmoa^ «it ipsi 
ea refici faciant^ quae rafiacUooe noveriut iodigere/' 

The statute 13 Eti24ibeih^ c, 10, speaks of occleaiaaUcal 
peraoos au&riag their buiUingap for want of due reparation, 
partljr to run to ruiu aad decay, and im $ome part vtierkf io 
fall io the graaudp which, by law, they are bound to keep 
and maintain in repair ; and maizes the fmudulent donee of 
the goods of aa incumbent liable for aueh ditopidalkm as 
hath happened by his fiuct and default. If die iacttAbeni 
was bound by law to keep and maintain the dweUiiig-l»Mi«e 
in repair, any breach of liis duty an that respect would be a 
default. The statute 57 George 5, c. 99, a. 1^ enacia, 
that a uoo-resideBt spiritual person shall keep the boiiae of 
residence iu goad and sufficient repair ; and directs, dsat if 
it be out of repair, and remain so, the parson ia Io be IwUe 
to the peualOes <^ nooHfesiileiice, until it is put into goad 
and tifffide/U repair, to the aatiafactian oi the basbop^ 
Tlieie is «olJung, eilJber an the authorities eiled froan die 
canon law^ or in tlM^ acta of parliaaieat, to ^bew ihiai tlu^ 
obJigatioo of an iacumbent to repair is e(tber iJben that wkaeii 
I. have already ateted the coaiukmi law east afma Jbii% 
namely, to austaii^ 4«^io Md rebuild* when necessary. 


Upon tbe wbole, therefore, \ve are of opioion that the 

iacttmbeot was bound to maintain the parsonagei (which 

we must afsuoie upon this case to have been suitable in 

point of mty and in other respectSi to the benefice,) and 

abo die chancel, and to keep them in good and tubttantial 

lepair, rtttoring and rebuilding, when necessary, according 

to the originml form, without addition or modern improve* 

neatf but that he was not bound to supply or mainlatn 

wf tking in tho nature of ornament, to which painting, 

(onieM necessary to preserve exposed timbers from decay,) 

and whitewashings and papering belonj^; and that the 

<laauges in this case should be eetimated upon that footing. 

It wSI be found that this rule will oorrespond nearly with 

the second mode of compnlation, and probably wtii be the 

Miae as if the terms ** order and condition" are meant, as 

(hey most likely are, not to include matters of ornament 

and luxury. 

Judgment for tbe plaintiff. 




It was afterwards referred to the master to calculate tlie 
dtsM^es upon this principle, and to report for what snm 
the jadgaaent sbooM be entered ap ; and he directed it to 
be for SGgL IBs. fid, for which sum the plaintaff ultimately 
bad jwdgment. 

M'Pherson 17. Damikls* 

L/ASE for slander. The declaration stated^ that the plain- 
tiff, before the time of committing the grievances therein- 
after mentioned, and from thence had been and stiTI was a 
coach proprietor, and sold and disposed of cattle for divers 
persons for commission, and that he had never been sus- 
pected to be insolvent, or unable or nnwilKng to pay bis 
jaaA debts; that flie defendant contriving, and wickedly 
atrf naaliciottsly intending to injure tlie plaintiff, and to cause 

n*o>«d ; he mast also shew that he repeated them upon a justifiable 
that he believed them to be true. 

A defendant . 
cannot justify 
the repetition 
of slanderous 
words, by 
merely shew- 
ing that at the 
time when he 
repeated them, 
he stated that 
he had heard 
them from ano- 
ther, whom he 
occasion, and 




it to be suspected and believed by liis neighbours that the 
plaintiff was poor and in indigent and bad circumstances, 
If. and incapable of paying his just debts^ and debts to be by 

him contracted, and thereby to injure him in his trade and 
business, falsely and maliciously spoke and published, in the 
presence and hearing of divers good and worthy subjects of 
this realm, of and concerning the plaintiff, and of and con- 
cerning and relating to him in his trade or business of a 
coach proprietor, the false, scandalous, malicious and defa- 
matory words following, that is to say : — '^ His (meaning 
the said plaintiff's) horses have been seized from the coach 
(meaning the said plaintiff's coach), on the road, he (mean- 
ing the said plaintiff) has been arrested, and the bailiffs are 
in his (meaning the said plaintiff^s) house," thereby then and 
there meaning and intending that the said plaintiff was in 
bad and indigent circumstances, and incapable of paying 
his just debts. By means of the committing of which 
said grievances by the defendant, he the plaintiff was greatly 
injured in his good name, &c. ; and also, by means of the 
premises, one Morrison, who before the committing of the 
said grievances was about to send, and otherwise would have 
sent, divers, to wit, eleven head of cattle to the plaintiff, for 
the purpose of being sold and disposed of by the plaintiff' 
for Morrison, for commission and reward payable to the 
plaintiff in that behalf, to wit, on the day and year aforesaid, 
wholly refused and declined so to do, and thereby the plain- 
tiff lost and was deprived of the commission which would 
have been payable by Morrison to the plaintiff. Plea, that 
before the speaking and publishing of the several words in 
the declaration mentioned, and therein supposed to have 
been spoken and published by the said defendant, of and 
concerning the said plaintiff, and of and concerning and re- 
lating to him in his trade or business of a coach proprietor^ 
to wit, on &c., at &c., one T. W. Woor, of Swaffhatn^ in 
the county of Norfolk, spoke and published the following 
words to the defendant, of and concerning the plaintiff, aud 
of and concerning and relating to him in his trade or busi- 


iiess of a coach proprietor, that is to say : — " His (tne'aniitg 
the said plaintiiTs) horses have been seized from the coach 
(meaning the plaintiff's coach) on the road ; he has been 
arrested, and the bailiffs are in his house ;" thereby then 
and there meaning that the plaintiff was in bad and indigent 
circumstances, and incapable of paying his just debts. And 
the defendant further saith, that at the time of speaking and 
publishing the said several words in the declaration as 
therein mentioned, he the defendant also declared, in the 
presence and hearing of the same persons in whose presence 
and hearing the said words were so spoken by him the de- 
fendant, that he had heard and been told the same from and 
by the said T. W» Woor, of Swaffham, in the county of 
Norfolk; wherefore, he the defendant, at the said time 
when &c., in the said declaration mentioned, did speak and 
publish, of and concerning the plaintiff, the said several words 
in the said declaration mentioned, as he lawfully might for 
the cause aforesaid. General demurrer to the plea, and 
joinder in demurrer. 



F. Kelly, in support of the demurrer, was stopped by 
the Court. 

Plaltf in support of the plea. It is a good plea to a 
declaration for slander originally uttered by a third person, 
that the defendant mentioned the name of that person at the 
time he repeated the slander. It is said in the fourth reso- 
lution in Lord Northampton's case (a), " In a private action 
for slander of a common person, if J. S, publish that he 
hatti heard J. N. say that J. G. was a traitor or thief; in an 
action on the case, if the truth be such, he may justify. But 
if J. S. publish that he hath heard generally, without ^ 
certain author, that J. G. was a traitor or thief, there an 
action sur le case lietli against «/. S., for this, that he hath 
not given to the party grieved any cause of action against 

(a) la Rep. 134. 


1M0. any, but against himself^ who publiahed the wordsi although 
J^^^^ that hi truth he might hear them \ for otherwise this might 
1^. tend to great slander of an mnocent/ [Parke i. But this 

DAHietfl. pi^i^ Jq^^ j^^ come witbio the terms of that resolution. 
That resolution requires that the party repeating the slander 
shall give the party slandered a complete cause of action 
against the original author* That is not done here. This 
plea does not shew that the words were spoken by Waor 
under circumstances which would give the plaintiff any 
cause of action against him* It does not aver that fVoar 
spoke the words falsely and maliciously. It does not shtWj 
therefore^ that the plaintiff has any cause of action against 
TFoor.] If the words were false> it is submitted that the 
plaintiff has a cause of action against Woor ; if true> he has 
no claim to a cause of action against either party. It is 
not necessary in an action for words to allege malice ; if 
the words are actiounble. the law implies malice : Mercer 
V. Sparh (a). [Parke J. That was after verdict, and 
malice must have been proved at the trial.] In La4y iU or- 
rison v. Cade (6), the report is this : — " Action for words : 
Whereas she was a widow, and in communication with the 
Earl of Kent about her marriage. That the defendant 
said^ Askot had reported that he had had the use of her 
body (inuendo that he had had carnal copulation with her), 
ubi revera he never made any such report." ** And it 
was moved in arrest of judgmenti that the words were not 
actionable ; for the first words may have a good intend* 
ment| as a physician may have the use of her body, Scc« 
And the inuendo cannot alter the words : sed non alloon* 
tur ; for the words in themselves cannot have any reasonnble 
constructioui and they shall be taken according to the uaunl 
and common sense of them, which is very slanderous to a 
lady of such reputation t Wherefore it was adjudged for the 
plaintiff. And this judgment was afterwards affirmed in a 
writ of error." [Parke J. It is alleged there that Aekoi 

(a) Owen, 51 ; Noy, 3I»« (6) Cro. Jac. 162. 

MICHAEtllAd TEtlM^ X 0C0« IV. 256 

Mter iiNide any sdcb report, which is equiimtent to an 18^. 

illegation that the defcodant spoke the words falsely.] juip^^^^n 

Is Imf V. Walter {a), it was held thai the report of the v. 

sptecb of anotberi who never used such words^ is ac- akibls. 

tionible. [Bajfky^ J. The plea ought to confess and 

ivoid the cause of action stated in the declaration. Tlie 

charge io the declaration is^ that the defendant spoke 

irordi amounting to an unqualified assertion. The answer 

in the plea is, that Woor first spoke the words, and that 

tlis defendant afterwards repeated them, adding, that he 

had heard and been told those words from and by Woor* 

So that, according to the plea, the defendant first made 

ibe assertion as of his own knowledge and authority, and 

then qualified it by alleging that he had previously heard 

itfiom Woor. The plea, therefore, does not confess and 

atoid the cause of action stated in the declaration.] It 

clearly confesses the cause of action, by shewing that 

die defendant spoke the words charged in the declaration, 

and, it is submitted, it then avoids it, by shewing that he 

named the person from whom he heard the words. The 

principle upon which the naming of the first publisher of a 

iibel constitutes a defence is, that the defendant thereby 

negatives malice. In Dam v. Lewu (A) it was held, that 

it is no justification to an action for slander to plead that 

such an one told the slander to the defendant ( but, that if 

the person repeating the slander at the same time mentions 

die name of the person from whom he heard it, that may be 

pleaded in justification to an action brought against the 

former. The present is the very ease there put, which 

supports the fourth resolution in Lord Northampton's 

c«se(e)» which was there spoken of by Lord Kenyon without 

disapprobation. A defendant cannot justify the repeating a 

report which he knows to be falaei by shewing that he heard 

it from others, Maitland v. Goldney (ef) ; from which it 

(«) Cro. Jac. 406. (c) 1« Rep. 134. 

(^) 7 T. R. ir. (i/) a East, 408. 


would appear that if be had not known it to be false^ the 
hearing it from others would have been a justification. The 
same rule is laid down, without any qualification, in RoUts 
jibridgement (a). The decision in De Crespigny v. ffe/Zes- 
ley (b), that it is no justification for the publishing of a libel, 
that, at the time of publishing it, the name of the person 
who communicated it to the defendant was also published, 
applies only to cases of written slander. There is a mate- 
rial distinction between written and oral slander, Maitland 
V. Gold/tey (c), where it is said, '^ Quaere^ whether a defend* 
ant can, by naming the original author, justify the publish^ 
ing in writing slanderous words spoken by such other; 
especially after knowing that they were unfounded ?" There 
are many instances where an action may be maintained for 
written slander, which could not be maintained if it were 

Bay LEY, J. — I am clearly of opinion that this plea is 
bad. The declaration charges, &c. (Here his lordship 
stated the declaration as set out at the commencement of 
this case). Now, that imputes to the defendant an unqua-^ 
lified assertion ; and if he had pleaded the general issue 
only^ it would have been necessary for the plaintiff to have 
proved that the defendant in fact made such an unqualified 
assertion : and if he had failed in that proof, and had proved 
only that the defendant said that Woor had told him that the 
plaintiff had been arrested, &c., the defendant would have 
been entitled to a verdict or a nonsuit. The defendant, 
however, has pleaded specially ; it was, therefore, his duty^ 
according to the first principles of pleading, to confess the 
charge which he undertook to answer, and then to aver 
some matter amounting to an answer. The charge is, that 
the defendant made an unqualified assertion that the plain* 
tiff had been arrested^ &c. Unless the plea, therefore, 
contains an admission that the defendant spoke words bear- 

(a) P. 46. pi. 9. (b) 5 Biiigh. 392. (r) 2 East, 426. 



mg that unqualified meaning, it is bad. Now the plea does 1829. 
not admit that the defendant spoke the words in an unqua* 
lified sense ; therefore it is bad because it does not confess «. 

the charge stated in the declaration. Another objection I^anibls. 
]x>inted out by mj brother Parke is, that the plea does hot 
give the plaintiff any cause of action against Woor ; and 
that, e?en according to Lord Nort/iampton's case {a) a per- 
son, in order to justify the repetition of slander by naming 
t&e original author^ must give the party slandered a cause 
of action against the party he so names. Now this plea 
merely states that the words were spoken by Woor; it 
does not state that they were spoken falsely and mali- 
ciously. For all that appears, they may have been spoken 
kj Woor upon a justifiable occasion^ — as by way of a confi- 
dential communication to a creditor, or in a court of justice. 
Woor may upon some occasion have been examined as a 
witness, and the words may have been extracted from him 
upon cross-examination. Assuming, therefore, that the de- 
fendant might rely upon the fact of his having heard the 
words first spoken by Woor, and having named him at the 
time when he repeated them, as an answer to the action, 
atill he ought to have shewn by his plea that the words 
were spoken by Woor under circumstances which did not 
jnadfy the speaking of them. 

Upon the general question, — whether it is a good defence 
10 an action for verbal slander, to shew that the defendant 
heard it from another, and named the author at the time, — I 
101 of opinion that it is not. It has been already very pro- 
perly decided that such evidence is no defence to an action 
fof written slander (6); and I am of opinion that the rule 
ooght to be extended to cases of verbal slander. It is true 
that IB Davis v. Lewis {c)^ Lord Northampton's case{d) was 
alluded to without disapprobation by Lord Kenyon, a 

(•) 12 Co. Rep. 134 a, in the Payne, 695,) where all the authors 

Scar Chamber, foarth resolution. ties upon the subject are collected. 

(h) In De Cretpigny v. Welles- (c) 7 T.R. 17. 

/^, (5 Bii^. 392, and 2 Moore & (d) 12 Rep. 132. 

VOL. V. S 







nan of powerful mindi acute discriiniQatioD| and deep learn- 
ing. But much as I respect the memory of that noble and 
learned judge, I cannot carry my respect so far as to sur- 
render my own judgment to bis. Let us examine the terms 
of the resolutiouj and try it by the simple test of reason and 
common sense. '^ It was resolved that if A. say to B., did 
you not hear that C. is guilty of treason, &c. i this is tan- 
tamount to a scandalous publication ; and in a private action 
for slander of a common person, if J. S. publish that he hath 
heard J. N. say that J. G. was a traitor or thief; in an ac- 
tion on the case, if the truth be such, lie may justify •** Now, 
assuming that it is not there stated, as a qualified proposi- 
tion, — that a person may justify if he believes the slander to 
be true, and repeats it on a juUiJiable occasion, — but as a 
general proposition, that if be in fact heard the report from 
another, and named that other at the time he repeated the 
slander, that is in all cases a justification : I (hink that 
is a proposition which cannot be supported. I very nMtck 
doubt whether the repetition of slander is justifiable in a^y 
case, unless the party really believes it to be true. A per* 
son who repeats slander, even though he states at tbe time 
that he heard it from another, gives it a certain degree of 
credit; for the mere act of repetition imports a degree of 
belief in the truth of the slander. It seems to me, therefore, 
that a person cannot be justified in repeating slander, unless 
he really believes it to be true. But I think that is not 
enough* I think it must be repeated tq^m. a justifiable OC'- 
casion. Every publication of slanderous matter is^ prim& 
facie, a violation of the right which every person poaaeaaea 
in his character and reputation. The law^ upon grotmds of 
public policy and convenieacej allows, under certaki cir- 
cumstasces, the publication of slanderous matter, although 
it may be injurious to a particular individual. But tbe act 
being prim& facie unlawful, it properly lies upon the person 
charged with uttering slander, whether he be the origioal 
utterer or not, to shew that he uttered it upon some lawful 
occasion. Upon the whole, 1 am of opinion that a man 


cumot by law justify the repetition of slander by merely 
Muning the person who first uttered it ; he must also shew 
Aat be repeated it on a justifiable occasion, and that he 
htheeed it to be true. Upon this view of the law, the plea 
is this case is bad, and the plaintiff is entitled to judgment. 

LrTTLEDALE, J. — For the reasons stated by my brother 
Bay%, I agree that this plea is bad; and upon that part of 
the subject I do not feel it necessary to add any thing ; but 
with reference to the fourth resolution in Lord Northamp^ 
tons case (a), I think it right to make a few observations. 
That resolution has been frequently referred to during the 
hst thirty or forty years, and though never expressly over- 
ra/ed, has been generally disapproved of. The latter branch 
of it is extra-judicial, fen- it was not necessary to come to any 
resolution respecting private slander in the Star Chamber. 
It is in some degree inconsistent with the third resolution ill 
the same case, which lays down, '* that if one hear false and 
horrible rumours, either of the king, or of any of the gran- 
dees, it is not lawful for him to relate to others that he heard 
J' S, say sach false and horrible words, for if it should be 
lawful, by this means theif moy he published generally. ** 
M^ow the inconvenience there pointed out, namely, the 
general publication of slander, though differing^ in degree^ 
would follow from the repetition of slander in every case, 
whether of king, lords, or commons ; therefore the distinc- 
ioa taken in*the two resolutions seems to involve some in- 
consistency. Perhaps, however, the fourth resolution may 
be considered as not going the length of saying, in terms, 
thsii a defendant may justify the repetition of slander gene- 
rally, bat only that he may justify under certain circumstances. 
If it mast be taken as importing that a defendant may justify 
^ repetition of slander generally, by merely shewing that 
be named the original author, I am of opinion that it is not 
A brief consideration of the form of the record, and the 

(a) 12 Co. Rep. 134 a. 
S 2 












nature of the evidence proper to an action for slander^ will, 
I thinky prove this opinion well founded. The declaration^ 
which is a technical statement of the facts necessary to sup* 
port the action, alleges that the defendant falsely and mali- 
ciously uttered the slander, to the plaintiff's damage. In 
order to support that statement, there must, in general, be 
proof of malice in the defendant, of damage to the plaintiff, 
and that the words are untrue. Where, indeed, words falsely 
and maliciously spoken, as in this case, are actionable in 
themselves, the law presumes a damage ; in other cases, an 
actual damage must be proved. Such an action can only be 
answered, — where the publication of the slander is not in- 
tended to be denied, — by the defendant's refuting the charge 
of malice, or shewing that the plaintiff is not entitled to 
recover damages. The charge of malice may be refuted, 
under the plea of the general issue, by shewing that the 
words were spoken upon au occasion, or under circum- 
stances, which the law, upon the grounds of public policy, 
allows, — as in a parliamentary or judicial proceeding, or in 
giving the character of a servant. Where the truth of the 
words is relied upon as a defence to the action, the defend- 
ant must plead that matter specially ; and for this reason^ 
that the truth is an answer to the action, not because it 
negatives the charge of malice, (for slanderous matter, though 
true, may be uttered MTongfuUy and maliciously, so as to 
render the utterer liable to an indictment,) but because it 
shews that the plaintiff is not entitled to recover damages: 
for the law does not allow a man to recover damages for au 
injury to a character which he either does not possess, or 
does not deserve. Now a defendant, by shewing that, at 
the time when he published slanderous matter of a plaintiff, 
he stated that he had previously heard it from another, whom 
he named, does not negative the charge of malice, for one 
person may wrongfully and maliciously repeat that which 
another may have uttered upon a justifiable occasioa. Such 
a plea does not shew that the slander was published upon 
an occasion, or under circumstances which the law, on 



grounds of public policy, allows; nor, that the plaintiff ha«i '1839. 
j)ot sustained an injury, or is not entitled to recover damages. 
^8 much mischief may be done by the wrongful repetition "' * V/ 
of a slanderous tale, as by its original publication ; for the Daniels. 
6rst utterer may have been a person insane, or of bad cha- 
racter. Every person who repeats a slander gives it some 
additional weight and credit. A plaintiff is not the less en- 
titled to recover damages for slanderous matter published 
concerning him, because another person previously pub- 
lished it. That shews, not that the plaintiff is a man of 
such conduct or character as deprives him of the right to 
recover damages, but that he has been wronged by another 
person as well as the defendant ; and that he may, conse- 
quently, if the slander was not published by the first utterer 
upon a lawful occasion, have a good cause of action against 
that person as well as the defendant. It seems to me, there^ 
fore, that such a plea is not an answer to an action for slander, 
because it does not negative the charge of malice, and does 
not shew that the plaintiff is not entitled to recover damages. 

Parke, J. — It is not necessary, in disposing of this case, 
to decide whether the latter part of the resolution, so often 
alluded to, is good law or not ; because, assuming it to be 
good, this plea is bad, for two reasons. To be a good plea it 
JDust confess and avoid the cause of action stated in the 
declaration. This plea either does not confess^ or if it con- 
fesses, does not avoid, that cause of action. It appears from 
the case of Bellv.Bt/me{a)f that if a defendant has not 
made an assertion as his own, but has merely alleged that 
some other person had made it, it must be so averred : and 
that an averment in a declaration, that the defendant used 
slanderous words, must be taken to mean that he used them 
as bis own words, and as a substantive allegation of his own ; 
and will not be supported by proof that he used them as th^ 
words of another person. Applying the principle of that de* 
cision to the present case, if the plea be understood to confess 
that the words were spoken as those of another person, and 
(a) IS East, 554. 


Bot as a direct assertion of the defendant himself, it does 
not properly confess the charge made in the declaration ; if, 
o. on the other hand, the plea be considered as confessing the 

DAjvi£ts. words to have been used as those of the defendant himself» 
and as a substantive allegation of his own, it does not coi^ 
tain any proper avoidance of the matter so confessed : for 
if one roan makes such an assertion of slander as his own, 
it can be no answer, even admitting the latter part of the 
fourth resolution in Lord Northampton's case to be law, 
if in the same conversation he adds that another man has 
also said the same thing. Secondly, the plea is bad, because 
it does not give the plaintiff any cause of action against 
Woor, It does not allege that Woor spoke the words 
falsely and maliciously; and though malice may be implied 
of words actionable in themselves, still the defendant ought 
to have stated in his plea, (as it must have been stated in a 
declaration against IVoor,) that Woor spoke the words falsely 
and maliciously. 

But assuming that the plea was not bad for the reasons 
I have mentioned, I am clearly of opinion that the latter 
part of the fourth resolution in Lord Northampton's case is 
not law. The twelfth part of the Reports was never much 
looked up to as a book of authority. Mr. Hargrove {a) 
deems it of small authority, being not only posthumous^ but 
apparently nothing more than a collection from papers 
neither digested nor intended for the press by the writer (ft). 
Mr. Serjeant Hill, in his copy, refers to folios 18 and 19(c), 
as shewing that the twelfth part is not fit to be allowed. 
Mr. Justice Holroyd, in Lewis v. Walter (d), gives an opinion 
unfavourable to its accuracy. Besides, the language of the 
resolution itself is equivocal. It does not say, in direct 
terms, that if the defendant gives a cause of action against 
another, it will be in all cases an answer to an action for 
slander ; and if it is to be understood as importing generally 

(a) 1 1 St. Tr. 30. were printed early in the reign of 

(b) It is obserrable, that 12 James 1, in Frejich. 

Rep. was printed in 1658 in Eng- (c) Case of Non Ohtante, 
lish, whereas the previous parU ((/) 4 Bam. & Alders. 614. 

thit tbe repetition of dftiider is lawfoh provided the pm*!; 
at the time he repeats it mentions the name of the author^ M*Pheiwow 

I tUak that upon no principle can such a proposition be v, 

1 J • . ^ ,,..... Daniels. 

supported, and I see uo satisfactory distinction, m this re* 

tpecty between oral and written slander. A man's reputa* 
tion is entitled to the protection of the law against those 
slanders which it deems injurious ; and as every one who 
publishes such slander injures that reputation, he is guilty 
ofa wrongful act, and is, upon principle, liable in a civil 
action for any damage arising to another from that wrong*- 
fal act Lord Chief Justice Be$t, in De Crespigny v. Tfir/- 
ksky, says, '' because one man does an unlawful act to any 
person, another is not to be permitted to do a similar act to 
tbe same person; wrong is not to be justified, or even 
excused, by wrong "(a) : and I entirely agree with the senti- 
ment. Every repetition of slander is a wrong done, for 
which an action lies ; and the repeating of a slander cannot 
be less a wrong because the person who repeats it is not 
the same who first uttered it. The degree of injury may 
vary greatly, according to the character and condition of the 
individual who utters the slander, and the number and cha«- 
ncter of the persons in whose hearing it is uttered. Tbe 
original utterer may have been a person of bad character, 
or may have uttered it when in a state of intoxication (6). 
Slander uttered by such a person, or under such circum- 
stances, would find little credit ; but if a person of good 
character, and in a sound state of mind, were afterwards to 
repeat that slander, he would thereby not only circulate it 
more widely, but he would give it credit by his repetition 
of it, even though he stated at the time that he heard it 
from another. Every wrong to property is the subject of 
a civil action, and upon what principle can it be said that 
every wrong done to a man's reputation is not equally so i 
A wrong to property cannot be justified by shewing that 
another person has previously committed a similar wrong, 
and why should it be otherwise in the case of a wrong to 
reputation i In this case, moreover, the plaintiff alleges 
(o) 6 Bingb. 404. (fr) 12 Co. Rep. 134 a. 



V, . 


that in consequence of the words spoken by the defendant 
he sustained a special damage, by the loss of a customer, 
and non constat that any such special damage would have 
accrued from the original uttering of the words, if they had 
not been repeated by the defendant. In every point of 
view, therefore, it is clear that the plea is bad. 

Judgment for the plaintiff (a). 

(a) See Maitland v. Gcldney^ S 
East) 426 ; Woolnoth v. Meadowsy 
5 East, 463, and 8 Smith, 88; Lane 
V. Howman, 1 Price, 76; MUU v. 

Spencer, Holt, N. P. C. 583 ; Saun- 
der§ ▼. Mills, 6 Biogh. 813, and 
3 Moore & P. 580. 

A private book 
kept by a de- 
ceased collec- 
tor of taxes, 
cot as a mat- 
ter of dut^, 
but for his 
own conve- 
nience, con- 
taining entries 
by him, ac- 
the receipt of 
sums of money 
in his charac- 
ter of collec- 
tor, is admissi- 
ble evidence 
in an action 
against his 
surety, — al- 
though the 
parties who 
iiad made 
the payments 
were alive, 
and might 
have been 
called as wit- 

MiDDLETON and another v. Melton. 

Debt on bond. The declaration stated that the defend- 
ant, in the life-time of Thomas Squire^ deceased, (who was 
the collector for the Second Part of the Bishop's Liberty, 
appointed by the commissioners acting for the Second Divi- 
sion of East Brixton, in the county of Surrey, in execution of 
certain acts of parliament, passed in the 4Sd, 48th9 ^^» ^^^ 
o9th years of Geo* 3, and the 1st, 2d, and 3d years of Geo. 4, 
relating to the duties under the management of the commis- 
sioners for taxes,) on the 10th of October, 1 8£5, as surety for 
Squire, as collector of taxes, by his certain writing obligatory, 
became bound to the plaintiffs in the sum of 3226/., being 
a sum equal to the amount of the whole duty and sums of 
money (including compositions under the act of 3 Geo. 4) 
assessed, and to be collected by Squire as such collector, 
and that the bond was subject to a condition; which con- 
dition, after reciting that Squire had been appointed collec- 
tor of the rates and duties granted by the above-mentioned 
acts of parliament, and that one of the duplicates of assess- 
ment and of the abstracts of such of the said rates and 
duties as had been compounded for under the act of 
59 Geo. 3, had been delivered to Squire with warrants for 



collecdog the same, and that Squire bad been required by i829. 
the plaintiffs to give security iu pursuance of the first-men* 
tioned act of 43 Geo. 3, — was, that if Squire, and the defend- 
ant, and one Frosi, or either of them, should pay, in pur- Melton. 
suaoceof the directions of the said statutes, all such sums 
of money assessed and to be collected in the said Second 
Part of the Bishop's Liberty, by Squire as such collector; 
aod \{ Squire should duly enforce the powers of such acts 
against such as should make default, — then the bond was to 
be void, otherwise to remain in full force. Breach : that 
Squire collected large sums of money on account of the 
rates and duties granted by the said several acts of parlia- 
ment, but that Squire, Frost, and the defendant, in the life- 
time of Squire, had not paid, nor had Frost, or the defend- 
ant, since the death of Squire, paid the said sums of money 
collected by Squire, or any part thereof. Plea : that Squire 
in bis life-time paid the sums collected by him. The re- 
plication denied the payment. 

At the trial before Alexander, C. B., at the last Kingston 
assizes, the case on the part of the plaintiffs was this : — 

A duplicate assessment was delivered by the commission- 
ers for taxes to Squire, in which he occasionally made entries 
of tbe sums received from the persons assessed. From the 
entries there made, it did not appear that Squire had received 
any moneys which he had not paid over to the commissioners. 
It did appear, however, that for his own convenience he 
l^ept a private book, containing entries (which were appa- 
rently copied from the duplicate assessment) of the names 
of the persons, and of the sums in which they were respec- 
tively assessed, and that it was his usual habit to collect by 
that private book, and to mark with ticks all the sums he 
received from the several persons therein mentioned. This 
book was inspected by two persons on the day after 
Squire*s death. They stated that they found in it entries 
with ticks against them, denoting the sums received from 
tbe persons against whose names those ticks were placed, 
for which there were not corresponding entries in the du- 






plicate assessment It was proved tbat this prifate book 
bad been delivered by Sfuire*s daogliter to the defendant, 
and that the defendant had had notice to produce it The 
sums which appeared to be due from Syaire^ by the entites 
he had himself made in the private book, over and above 
what appeared by the duplicate assessment to have been 
collected by him, amounted to 996/. For some of those 
sums the plaintiffs further produced receipts given to seve- 
ral persons for taxes paid to Squire, and signed by bim. 
On the part of the defendant it was objected that the re- 
ceipts were not admissible in evidence, because the parties 
who paid the money might have been called; and that 
although entries made by Squire in any book which he, in 
the course of his duty as collector, was bound to keep, 
would be evidence against the surety, still entries made by 
him in a private book, kept for his own convenience, were 
not receivable in evidence to charge the surety. The Lord 
Chief Baron received the evidence, reserving to the defend* 
ant liberty to move to enter a nonsuit, if the Court should 
be of opinion that neither the receipts nor the entries in the 
private book were evidence; or to reduce the verdict to a 
proper proportionate amount, if they should be of opinion 
that the entries in the private book were not admissible in 
evidence, but that the receipts were. A verdict was there- 
upon found for the plaintiff, and damages were assessed 
upon the breach assigned in the declaration at 996/., the 
full amount claimed. 

In Easter term, 18£9» a rule nisi was granted, pursuant 
to the liberty reserved for that purpose, against which 

Andrews, Serjt. and Hutchinson now shewed cause. 
The entries made by Squire, the deceased collector, in his 
private book, were, in effect, declarations made by him 
against his own interest ; for by means of them he charged 
himself with the receipt of various sums of money, which 
he was liable in point of law to pay over to other persons. 
As such, the entries would clearly have been admiasible in 
evidence against Squire, the principal; and as the defendant. 


when he became his sorety, undertook that Squire should 
6ithfuily perform his^Juty, he was bound to know and must 
be presumed to have known in what manner Squire kept 
his sccountSy and to have been aware of the existence and 
coDteots of the book; and if so, the entries in that book 
were equally admissible in evidence against the defendant, 
the surety. Upon the same principle the receipts also 
were admissible in evidence against the defendant; the 
plaintiff was not bound to call as witnesses all the persons 
who had made payments to Squire. It however seems 
unnecessary to labour this point, for if the entries in the 
book were evidence, they were sufficient to entitle the 
phintiff to a verdict for the full amount of damages given 
by the jury. 






Spankie, Serjt. and Chitty, contraL First, the entries 
made by Squire in his private book, were not evidence 
against the defendant as his surety. If they had been made 
by Squire in the regular and necessary discharge of that 
duty for the faithful performance of which the defendant 
had become surety, it seems that they would have been 
evidence against the latter; Goss v. Watlington{a), Whit" 
Hash V. George {b); but that was not the case, for these 
entries were made in a private book kept by Squire for his 
own convenience only, and which he was not under any 
obligation, in the discharge of his duty as collector, to keep. 
It is true that the defendant, when he became surety, un- 
dertook that Squire should faithfully perform his duty ; but 
it was no part of that duty to keep the book in which these 
entries appeared. Squire's duty consisted in making entries 
in the public book, on the duplicate assessment, of all sums 
of money which he received as the collector; and such 
entries would clearly have been evidence against his surety; 
but where no such entries appeared in the public book, the 
presumption was that no money had been received. The 

(«) 9Bro. &Bingh. 1SS; 6 B. pernom* Whitmashv. Genge^ ante, 

Moore, 356. iii. 42. And see Stothert v. Opod- 

(b) 8 Bam.& Cressw. 556; S. C. fellow, 1 Nev.&Man.202, 204,(tf). 






entries in the public book did not shew that Squire had 
received any money which he had not paid over. Entries 
made by a principal, privately and gratuitously, for his own 
convenience, may be evidence against himself, but cannot 
be received to charge his surety. They are not the best 
evidence; and the best evidence must be adduced in order 
to charge a surety. An express admission by a principal 
is not, in his life-time, sufficient to charge a surety; Cutler 
V. New/in {a\ In Goss v. WailiNgion{b), the entries were 
held admissible upon the ground that the book in which 
they were made was a public book, and one which it was 
the duty of the principal to keep and make entries in. In 
Ifhitnash v. George {c), the entries were admitted, not 
altogether as entries made by the principal against his own 
interest, but because they were made in accounts which it 
was his duty to keep, and which the surety had contracted 
he should keep faithfully ((/). In the case of a guarantee, 
it has been held, that on a guarantee to pay for goods sold 
and delivered to a third person, the admission of such third 
person that he has received the goods, is not evidence to 
charge the guaranteeing party; the delivery of the goods 
must be proved; Evans v. Beattie{e). There seems to be 
no case in which it has been held that the mere admission of 
a principal is evidence to charge a surety even after the death 
of the principal. The book in this case was a mere copy 
of the duplicate assessment; and the only evidence to charge 
the defendant consisted of certain ticks made by Squire in 
that book. That was extremely loose and uncertain evi* 
dence, such as it would be highly dangerous to act upon. 
The ticks by no means certainly indicated that the sums to 
which they were annexed had been paid; they may have 
been made by Squire as indicating only that he expected that 
such sums would be paid; they may even have been made 

(a) MannifiG^'s Digest, Sded. 137. 

(b) 3 Bro.&Bingh. 139; 6 B. 
Mcx>re, 355. 

(c) 8 B. & C. 556 ; ante, iii. 42. 

(rf) See 2 Stark. Ev. 777. 

(e) 5 Esp. N. P. C. 26. And 
see Bacon v. Chetmy, 1 Stark. N. 
P. C. 192. 


to indicate that such sums were in arrear, and required 

Secondly, the receipts were not admissible in evidence 
against the defendant. They were not sufficiently explained 
to render them admissible as evidence at all. It did not 
appear whence they came. The parties who made the 
payments ought to have been called as witnesses to prove 
the fact. That was the best evidence; and no supposed 
inconvenience can control the rule of law which requires 
its production. Besides, the bond in this case was given 
in conformity with the provisions of an act of parliament. 
Now, if the commissioners had done their duty under that 
act, (as the surety had a right to presume they had,) no de- 
fault could have been made by Squire: for they are required 
to call the collectors before them, and to examine them upon 
oath as to the moneys collected by them. If that course 
had been pursued, no difficulty could have arisen. 





Bayley, J. — The question in this case is, whether the 
contents of a private book, kept by a collector of taxes, 
(being entries whereby he purports to acknowledge the 
receipt, in bis character of collector, of certain sums of 
money,) can be received in evidence against a surety, the 
collector having been appointed to collect the taxes men- 
tioned in the bond executed by him as principal, and by 
the defendant as surety, pursuant to the provisions of an act 
of parliament. Squire, the deceased, was the collector, 
and after his death the book in question was found by his 
daughter, and was by her delivered to the defendant. 
There was, therefore, evidence to shew that the book when 
last seen was in the defendant's possession, and he having 
failed to produce it at the trial, after notice so to do, 
secondary evidence of its contents was admissible, if the 
book itself would have been so. It was proved that Squire 
was in the habit of collecting the taxes by this private book, 
and of marking with ticks the sums which he received, and 
that these ticks were used by him to denote that he had 


1889. receiTed those snms*. There v/as also a questioB whether 
^/^^"^^^ certain receipts were admissible in evidence; but as ibc 

MiDOLETON ... . . 

V. entries in the book, if they were admissible to shew that 

JMeltok. Squire had received those sums, will be sufficient to entitle 
the plaintiff to retain the verdict for the full amoant, that 
second question will not necessarily arise. It was coo- 
tended on the part of the defendant, tliat the entries in the 
book were not receivable in evidence against him, upon 
the ground that it was a private book which it was not the 
duty of Squire in his character of collector to keep, and 
which he kept merely for private purposes ; and it was said 
that the decisions in Go$s v. WaiHftgioH {a) and WhitwnK 
V. George {b), proceeded on the ground that the entries in 
those cases were in books which it was the duty of the 
principal, by the very terms of the bond, to keep, and to 
keep faithfully. The principle laid down in those cases 
was quite sufficient to support the decisions. But as the 
book in which the entries in the present case were made, 
was one which the collector was not, as such, bound to 
keep, it becomes necessary to inquire whether the rule 
established in those cases may. not safely and properly be 
further extended; and whether the entries made in this pri- 
vate book may not be evidence against this defendant, con- 
sidering him as a stranger, and without reference to his cha- 
racter of surety, in respect of which he may be identified 
in interest with his principal: and the question then will be, 
whether such entries, made by an individual against his 
own interest, may not be evidence, against a third person, 
of the fact of the receipt of the money. Now, it is a 
general and well-established rule of evidence, that decla^ 
rations or statements of deceased persons are admissible 
where they appear to have been made against their own 
interest. Thus, an entry in a book, by which the person 
making it charges himself with the receipt of money on 
account of a third person, or acknowledges the payment of 

(a) 3 Bro. & Bingh. 1S2, and 6 B. Moore, 355. 

(b) Ante, iii. 42; 8 B. & C. 556. 


mtmy doe to himaelf, haa been held good evidence of the 

receipt or payment of such money. The case of Warren 

i»GrtamUe(ja) is an early authority upon this subject, and 

does not appear to have been considered in the case of 

Go» V. Wailington (ft). There, upon a trial at bar in 1740, 

the lessor of the plaintiff claimed under an old entail in a 

frfflilj settlement^ by which part of the estate appeared to 

be in jointure to a vridovr at the time when her son suffered 

acommoo recovery* which was in 1699; aad the defendants 

sot being able to shew a surrender of the mother's estate 

for life, it was insisted that there vras no tenant of the 

precipe for that part« and that the remainder, under which 

tbe lessor claimed, was not barred. Oa the other hand it 

was said, that at that distance of time a surrender should 

be presumed ; and to fortify this presumption, the defend* 

tot offered to produce the debt-book of Mr. Edward*^ an 

attoroey, long since deceased, in wbich there was a charge of 

S^L for suffering the recovery; two articles of which were, 

for drawing a surrender of the nM>tber's interest 20s.»and for 

engrossing two parts thereof 20f. more; and it appeared 

by the book that the bill had been paid. ** And this being 

objected to as improper evidence, the Court was of opinion 

to allow it, for it was a circumstance material upon the 

in4uiry into the reasonableness of presuming a surrender^ 

and could not be suspected to be done for this purpose; that 

if Edufards was living, he might undoubtedly be examined 

to it, and this was now the next best evidence. And it was 

accordingly read." Now tbe principle upon which that 

case was decided was, that, upon looking at the deceased 

allomey's book, it appeared that he had made a charge for 

the surrender, and acknowledged that he had been paid the 

charged (c). So it was held in the case of Stead v. 

<«) 2 Stn. 1 199; infrd, 972. and the Court said that they would 

(6) S Bro. & Bingh. 132, and 6 have presumed a surrender after 

B^ Moore, S55. such a length of time, without this 

(c) Bat this was forty years additional evidence. In Gifodiiile 

^fter tbe time of the surrender, v. The Duke of Chanehs, 9 Burr. 


1829. Healon (a), that an entry in the parish books, made by the 
, '^'^^''^^*^ officers of one township, of the receipt of a proportion of the 

MiDDLETON ^, ^ ,«. .., ,. 

V, church-rates from the officers of another township, was evi- 

Melton, dence to charge the latter with the payment of the same sums 
in future, and that the title at the head of the page, stating 
the customary proportion to be so paid, was also evidence : 
and it was there said by Ashhurst, J., that the last entry of 
the payment by the officers was clearly admissible, because 
the officers thereby charged themselves with the receipt. 
In Barry v. Bebbington (b) the right to the soil was in 
issue, and the plaintiff, who derived title under Lord Bar^ 
rymofCf offered in evidence several items contained in a 
book, in the handwriting of one Ashley, who had many 
years before been steward to Lord Barrymore, and who 
was then dead. The items were memoranda of receipts of 
money by Ashley from different persons by name, but 
whose situations were not mentioned, for trespasses com- 
mitted on the common in question, paid on account of 
Lord Barrymore. The evidence was rejected ; and a rule 
for a new trial was obtained on the authority of Warren v. 
GreenvUle{c), upon the ground that the evidence was im- 
properly rejected; and that rule was afterwards made 
absolute. And Lord Kenyan there said, '' It is clear that 
where a steward charges himself with the receipt of money, 
it shall be received in evidence before a jury, to shew that 
such sum was received by him." In Higham v. Ridg- 
way{d) it was held, that an entry made by a roan-midwife 
in his book, of having delivered a woman of a child on a 
particular day, referring to his ledger in which he had made 
a charge for his attendance, which was marked as paid, was 
evidence upon the trial of an issue as to the age of such 
child at the time of his afterwards suffering a common 

1079, Lord Mansfield says, that presume a conditional surrender, 

the Court did not rely upon the 1 Stark. Ev. Sd ed. 31S, (6). 
entry ; but he also states, from his (a) 4 T. R. 669. 

own note, that the Court said, (b) 4 T. R. 514. 

that after forty years they would, (c) 9 Str. 1199. 

without any other circumstances, (</) 10 East, 109. 


recover^^ (a). These cases establish, as a general principle^ 
that where a person makes an entry charging himself with 
the receipt of a sum of money, that entry is evidence of the 
fact of the receipt of that money against a third person. 
The question as to the receipts then becomes immaterial. 
Bat if the entries in the book are admissible in evidence, 
because the ticks annexed to them denote that the collector 
had received the money, the receipts signed by him must, 
apoD the same principle, be evidence of the fact of the 
receipt of the money by him. For these reasons I am of 
opinioQ that all the documents objected to in this case 
were properly, received in evidence, and, consequently, that 
this rule must be discharged. 





LiTTLEDALE, J. — I am of the same opinion. For some 
time I entertained considerable doubt whether entries 
made in a private book, kept by an individual for his own 
coDveoience, could be evidence against a third person. In 
Goii V. Watlington {b) the books in which the entries were, 
made by the deceased collector were public books, delivered 
to him by his predecessor in office ; and in Whitnash v. 
George (c), the book in which the entry was made was one 
which the principal was bound to keep in performance of 
the very duty for which the surety had become bound. 
The rule established by those cases is a limited one, and I 
have felt some doubts as to the propriety of extending it to 
a case like the present. If, however, a private book ought, 
for this purpose, to be regarded in the same light as a pub- 
lic book» these . entries were receivable in evidence. The 

(«) But the evidence seems to 
htve been received in that case 
principally upon the ground that 
the entiy was made, of a fact with- 
lA the peculiar knowledge of the 
V^'^Jf against bis interest; and 
LeBhnCyJ.^ seems to have found- 

ed his assent, partly at least, on 
the particular nature of the fact, 
as being matter of pedigree. 1 
Stark. £v. 319. 

(b) 3 Bro. & Bingh. 132. 

(c) 8 Bam. & Cressw. 656; 
antCt ^1* iii< 42. 


receipts, which were entries made on separate pieces of 
paper, would also be receivable upon the same principle ; 
V, because the book is nothing more than piecea of paper put 

Meltok. together. The cases referred to by my brother Bayly 
certainly establish this general principle, that where an 
individual, having peculiar means of knowing a fact, makes 
a declaration, verbal or written, of that fact, it being against 
his interest at the time, it is evidence of the fact, as between 
third persons, after his death. Those cases, however, are 
distinguishable from the present. There, the entries coa- 
stituted all that the party making them intended to do. 
Here, the party evidently intended to make further entries 
in the public book; so that his acts were incomplete. 
Still, looking to the principle established by the several 
cases which have been referred to, I think the entries made 
in this private book were receivable in evidence; and if 
they were receivable as acknowledgments of the receipt of 
money, for which the party making them would otherwise 
have a claim, it follows that the receipts themselves must 
equally be receivable upon the same principle. 

Parkb, J. — I am also of the same opinion. Secondary 
evidence of the contents of the private book was properly 
received, the defendant, who had the possession of it, not 
producing it after notice. Then the question is, whether 
the book itself, if produced, would have been receivable in 
evidence-— that is, wliether entries made in a private book, 
acknowledging that the party making them had received 
certain sums of money, are, after his death, admissible evi- 
dence against third persons, to prove the fact of the receipt 
of the money. The general rule undoubtedly is, that facts 
must be proved by testimony on oath. But there is an 
exception necessarily engrafted on that rule, within which 
the present case falls, namely, that an admission of a fact 
made by a deceased person against his own interest, is evi- 
dence of that fact as between third persons. Upon that 


ground entries made by receivers, stewards, and agents of 
varioos kinds, charging themselves with the receipt of 
money, have been held good evidence, after their death, to 
prove the fact of the receipt of such money,— without refer- 
ence to the particular character of the person making the 
entries. Thus, in Warren v, Greenville {a) the person 
making the entry was an attorney ; in Manning v. Lech-- 
mere{b), a baiiiiF; m Higluim v. Ridgway{c), a surgeon. 
In Haddow v. Parry (d), where a bill of lading had been 
signed by a master of a vessel, since deceased, for goods to 
be delivered to a consignee or his assigns, on his paying 
freight, the document was held to be evidence to shew that 
the consignee had an insurable interest in thet goods (e). 
Having then established that such admissions are evidence 
d the fects admitted, it can make no difference that the 
same facts might have been proved by other means, as, for 
mstance, by a living witness; and accordingly there are 
cases in which the admissions of deceased persons have 
been received, though the testimony of living persons might 
have been given. Thus, in Barry v. Bebbington (/), which 
wu tried in 1791> one of. the entries was of the receipt of 
a sum of money so recently before as 1 785. The fact of 
that payment, therefore, could doubtless have been proved 
by the person who paid the money, and yet it was held 
that the entry made by the deceased steward, charging 
himself with the receipt of the money, was evidence of the 





(a) 2 Str. 1129. 

(() 1 Atk. 453. It was held in 
that case that old rentals, by ivhich 
bailiflb bad acknowledged the re- 
ceipt of moneys, were evidence of 
the pajment of such rents, and of 
ihit n^t to receive them, if the 
bmUff or recover were dead. 

{e) 10 East, 109. 

{€) 3 TaonL SOS. 

(e) ** But if, in such case, the 
should guard his acknow- 

ledgment by saying — 'contents 
unknown/ so that he does not 
charge himself with the receipt of 
any goods in particular, the bill of 
lading, it is said, would not be 
evidence either of the quantity of 
the goods, or of property in the 
consignee." 1 Stark. £v. 309, 2d 
ed. referring to an observation of 
Lawrence, J., 3 Taunt. 305. Tamen 
qiutre as to the latter position. 
(/) 4 T. R. 514. 

T 4 






fact of such receipt, without calling the person who paid 
it. Upon the same principle, the entries made in thi» 
case by the deceased collector were evidence of the fact 
of the receipt of the several sums of money, without 
calling the persons who paid them. In Goss v. IVatUng' 
ton (a) and Whitnazh v. George (6), the ground upon whicb 
the entries were held admissible undoubtedly was, that 
they were made in a book which it was the duty of the 
principal to keep, and for the performance of which duty 
the surety was responsible. But it seems to me that those 
decisions may be supported on the more general principle, 
that an entry made by an individual cognizant of the fact, 
and having no interest to make a false entry, whereby he 
charges himself with the receipt of money, is evidence of 
the fact of the receipt of such money. It is unnecessary 
to consider the question as to the receipts, because the 
entries in the book being admissible, they are sufficient to 
entitle the plaintiff to the full amount of damages which he 
has recovered. But I cannot help thinking that they were 
admissible ; and I doubt the propriety of that part of the 
decision in the case of Goss v. Watlington (a), by which 
the receipts of the deceased collector were held inadmis- 

Rule discharged (r). 

(a) 3 Bro. & Oiugli. 132; 6 B. 
Moore, S55. 

(6) 8 Barn. & Cressw. 550; 
ante, vol. iii. 42. 

(c) And see Bullen v. Michel, 
2 Price, 399, 413 ; Rawe v. Bren- 
ion, (fii'ih day) ante, vol. iii. 268; 
H^le V. Maggie, 1 Jacob & Walk. 

234 ; Short v. Lee, 3 Jac.& Walk. 
489 ; Doe d. Gallup v. VawUs, 1 
Udood. & Rob. 261; Spires r. 
Morris, 9 Biogh. 687, and 3 Moore 
& Scolt, 124; Flaxton v. Dare, 
ante, 1, and 10 Bam. & Crc;ssw. 
17 ; Wright v. Doe d. Taiham, 3 
Nev. & Man. 268. 




fl£Y5HAM, Esq. V. JoHN FoHSTER| the Treasurer of the 
Commissioners appointed for putting in execution a cer- 
tain Act of Parliament, passed in the Forty-fourth Year 
oftbe Reign of his late Majesty King Geo. 3, intituled, 
*^ An Act for Lighting the Streets, Lanes, and other public 
Passages and Places, within the City of Carlisle, in the 
County of Cumberland, and the Suburbs of the said 
City, for Paving the Footpaths of the Streets of the 
said City and Suburbs, and for otherwise Improving the 
said City." (a) 

The declaration stated, that a messuage, situated in a A local pRTing 

certain street, called Watergates Lane, on the south side of coramission- 

ere, at a meet- 
happen that there shall be no ad- ipS'?*'*^*"*'^ 

(a) B; this act, sect. 1, certain 
<0(DiDJ&sioners are appointed. 

By sect. 4, " The said commis- 
siooers, or any five or more of them, 
shall meet together in the Guild- 
kail of the said city, or at »uch 
other place within the said city as 
the; shall appoint for that purpose, 
00 the 26th day of June, 1804, 
between the hours of ten and twelve 
oftbe dock in the forenoon of the 
same day, and shall then proceed 
to pot this act in execution, and 
tbsH and may then, and from 
time to time afterwards, adjourn 
themselves to and meet at the 
place aforeaaid, or at any other 
convenient place within the said 
city of Carlisle, as they or any five 
ormore of them shall appoint; and 
if it shall happen that there shall 
not appear at any »uch meeting a 
sufl&csent number of the said com- 
fflissionera to act or to adjourn to 
another day, or in case the com- 
missioiiers so assembled shall omit 
Of neglect to adjourn themselves, 
er in case it shall hy any means 

. ; " " „ for that pur 
joumment made, or if there shall '^^^^ ^^ order 

be any special occasion for any footpaths to 

meeting, between the time of any be raised &c., 

meeting or any adjournment there- ^, directs 

r • .u *• .u J that the en- 

of, or at any other time, then and • • ^^^ 

in any of the said cases, any three commissioners 

or more of the said commissioners, books may be 

or their clerk, shall and may ap- '^■d in evi- 

point a meeting to be holden at ^*"^®: ;^" 
, , ... entry >" the 

the place where the last meeting |j„oj[j statine 

was appointed to have been held, that such an 
or at some other convenient place order was 
within the said city of Carlisle, or ™^^® *' * 
the suburbs thereof, as they or he ^^p,JJIfjc no- 
shall think proper, between the ^ice, does not 
hours of ten in the forenoon and prove that the 
four in the afternoon of such day |?®,®'*J°S r** 
on which such meeting shall be g"iioi^Ri. 
called, notice thereof being given \^ ^^e order, 
as hereinafter mentioned ; and It should ap- 
that at all meetings to be held in pea»* by the 
pursuance of this act, the said ejitry, or be 
'^ . „ jj r shewn auund^, 

commissioners shall pay and defray ^i^^^ notice 

their own charges and expenses.^ was given of 
By sect. 5, " Previously to any the purpae 

meeting of the said commissioners, for which the 
, , ,j . r.i_- meeting was 

to be held in pursuance of this act, r,a\\»^ 




the said street, in the parish of St. Cuthbert, Carlisle, in 
the county of Cumberland, was in the possession and oc- 
cupation of Isaac Bell, as tenant thereof to the plaintiff, 
the reversion thereof then and still belonging to plaindff, 

subseqaent to snch 6rst meeting as 
aforesaid, notice tliereof in writing, 
signed by the clerk to the said 
commissioners, of the time and 
place of every such meeting, shall 
be affixed on the Market Cross of 
the said city of Carlisle, and upon 
such other places or buildings as 
the said commissioners shall from 
time to time direct or appoint, at 
least three days before every such 

By sect. 6, " No act, order or 
proceeding of the said commission* 
ers, shall be valid, unless made or 
done at some meeting to be held 
in pursuance of tliis act.*' 

By sect. 8, " Fair and regular 
entries shall be made in a book, to 
be provided for that purpoee,of all 
the acts, orders, and proceedings 
of the said commissioners, relative 
to the execution of this act, and of 
the names of the commissioners 
who shall be present at the respec- 
tive meetings; and one or more of 
the said commissioners, who shall 
be present at such meeting, or their 
clerk, shall always subscribe bis or 
their name or names at the end of 
the proceedings of the respective 
meetings; and all such entries, be- 
ing so signed, shall be deemed ori- 
ginals, and shall be allowed to be 
read in evidence in all causes, 
suits, and actions, to u ching any 
thing done in pursuance of this act, 
and that such book shall at any of 
the meetings of the said commis- 
sioners, and ai all other reasonable 
times, be open to the inspection of 

the said commissionert, and of all 
persons rated or assessed for the 
purposes of this act.** 

By sect. 55, " The said commis- 
sioners shall and may from time 
to time, and at all times, after the 
passing of this act, direct and or- 
der the present or future pavements 
of the footpaths of such of the 
streets and lanes within the said 
city of Carlisle, aud the suburbs 
thereof, (except the footpaths within 
the abbey of the said city, and the 
precincts thereof) as the said com- 
missioners, at any meeting or meet* 
ings to be called for that purpose, 
shall think proper, to be taken up, 
nnd the said footpaths to be raised, 
lowered, altered, and repaired, or 
new paved, or to be laid with flaf: 
or paving stones, as to them shall 
seem fit; and the persons to be 
appointed by them, for the purpose 
aforeswd, shall and have hereby 
full power and authority to do 
and perform the same; and if any 
person shall at any time wilfully 
obstruct, hinder, or molest any sur- 
veyor or other officer or person 
whatsoever, employed by virtue of 
this act, in the performance or ex- 
ecution of his duty or work, every 
person so offending shall for every 
such ofience forfeit any sum not 
exceeding SO^ nor less thao SLi 
provided always, that the breadth 
of the flagged or broad pavements 
to be laid on any of the said foot- 
paths shall not exceed in any oo9 
place seven feet.** (Local and per- 
sonal acts, cap. Iviii.) 


vhicfa messuage then fronted and doth front the said street, i8^9. 
and had sod of right ought to have a door and passage from 
the groDod floor thereof into the said street. Yet defend- 
lotvell knowing Su:., but contriving and intending to injure 
plaintiff in his reversionary estate and interest of and in the 
aid messuage, whilst the same was so in the possession 
and occapation of Bell, as tenant thereof to plaintiff, and 
whilst plaintiff was so interested as aforesaid, to wit, on 28th 
Maj, J828, and on divers &c., wrongfully and unjustly, 
without the licence and against the will of plaintiff, raised, 
aod caused to be raised, a certain footpath in and upon 
tbe said street, on the south side thereof, of great breadth, 
U> wit, of &c., and before and in front of the said messuage, 
ad extending along the whole front of the same, by placing 
aod laying divers great quantities of earth &c. in and upon 
the said street, to a much greater height than the said street, 
or the soil and pavement thereof, on the south side thereof, 
before were raised, and to the height of one foot higher 
than the level of the ground floor of the said messuage or 
dwelling-bonse, and so near and so close to and against the 
mi front of the said messuage or dwelling-house, towards 
the said, street, that the aforesaid door and passage of the 
iiid messuage or dwelling-house, from the ground floor 
thereof into the said street, became and was and still is 
greatly blocked up and obstructed, so that the said tenant 
and occupier of the said messuage or dwelling-house could 
not pass through or go out of the same door and passage 
thereof into the said street, nor from thence back again into 
the said messuage or dwelling-house, in so free, easy, and 
beneficial a manner as he might and would otherwise have 
done, and still of right ought to do, but was and still is ob- 
structed, hindered and prevented, by the means aforesaid, 
from so doing. By means of which said several premises 
he the said plaintiff hath been and is greatly prejudiced, in- 
jured, and aggrieved, in his reversionary estate and interest 
of and in the said messuage or dwelling-house, with the 
appurtenances, so in the possession and occupation of the 

280 CASES IK THE king's BENCH, 

1899* said Isaac Bell, as tenaot thereof to the said plaintiff as 
aforesaid, to wit, at &c. Second count, for wrongfully 
continuing a raised footpath theretofore wrongfully placed 
and raised in the said street. Third count, as the second, 
but in respect of a house occupied by another tenant. 
Plea : not guilty. At the trial before Hullock, B., at the 
last spring assizes, the injury stated in the declaration was 
proved, and the book of proceedings kept by the commis- 
sioners, which is made evidence by the statute, being called 
for by the plaintiff's counsel, was produced by Vfilloughbyy 
the present clerk of the commissioners ; from which it ap- 
peared that on the Sd of March, 1828, an order had been 
made by them for flagging the footpath in question. Hie 
following is a copy of the entry: — " City of Carlisle, to wit. 
At a meeting of the commissioners, for putting into execu- 
tion an act of parliament intituled ^ An act for lighting 
the streets Sec.,' held by public notice at the Town-hall, on 
Monday, the Sd day of March, 1828: Ordered, that the 
footpath leading from the top of Watergates Lane be 
flagged, to join the raised pavement made, by Mr. John 
Brown, and also that the footpath be flagged from the top 
of Watergates Lane to the top of the brow. (Signed) 
James Bowstead, clerk." On the part of the plaintiff it 
was urged, on the 5th section, that the commissioners had 
no jurisdiction affecting footpaths, except at a meeting 
called for that purpose, which ought to have appeared on 
the face of the book. The learned judge was of opinion 
that the objection could not be sustained, inasmuch as the 
4th section, which requires notice, is general, — and that as 
the beading of the proceedings stated the meeting to have 
been held iy public notice, at the Town-hall, he was bound 
to presume that notice had been given in the form required 
by the act, and that if a special notice of the object of the 
meeting were necessary, he would presume that such a no- 
tice had been given. He therefore nonsuited the plaintiff, 
giving him leave to move to enter a verdict with nominal 


In Easter term last, £. H. Alderson obtained a rule nisi 
for a new trial, or for entering a verdict for the plaintiff, upon 
three grounds ; first, that the meeting at >vhich the order 
was made was not a legal meeting; secondly, that the no- 
tice for convening the meeting should have specified the 
object for which it was to be held ; thirdly, that the order 
was not for ra'ning^ but for flagging the footpath. 



Patteson shewed cause. The only question is, whether 
the order was made at a legal meeting, so as to give the 
commissioners jurisdiction, for if the act complained of was 
within the scope of their authority, no action lies for the 
consequential damage; Sutton v. Clarke {a). Governors and 
Company of the British Plate Glass Manufactory v. Mere- 
dith{b). By the 4th section, if the commissioners do not 
adjouro themselves, no subsequent meeting is to be held 
withoat notice, which must be given in the form prescribed 
by the 5tb sectiod. It was contended, that under the 55th 
sectioD, it was necessary to state in the notice that the ob- 
ject of the meeting was an alteration of the pavement ; and 
it was said that there was no proof of any notice; but it is 
snboiitted that it lay on the plaintiff to prove the negative. 
The declaration states that the defendant, contriving to in- 
jure the plaintiff, raised a footpath in the street, whereby 
the plaintiff's interest in the house was injured. The action 
is brought against the treasurer of the commissioners in 
that capacity, which mode of proceeding assumes that the 
act complained of was done by the commissioners in pur* 
mance of their authority, for if that were not so, the action 
should have been brought against the party who did the act. 
In Williams v. The East India Company (c), it was held. 

(a) 6 Taant. 29; 1 Marsh. 429. 

(4) 4 T. R. 794. 

(c) 3 East, 192. And see At- 
kiun y. Hunter, 2 Lutw. 1359; 
12 Vio. Abr. Evidence, (S. b.) 3; 
^^ionby V. Tomenon, Sir T. Rayro. 
400; Fotocl V. MUhunk, 2 W. Bla. 

851, 853, and 3 Wils. 355, 366; 
Eefv. r.Rtfgerf, SCaropb. 654; 
Smith V. Htaoit, 1 Phillimore, 387 ; 
Calder v. Rutherford, 3 Bred. & 
Bingh. 309, and 7 B. Moore, 158; 
Morris v. Hvnty 1 Chitt. R. 453 ; 
Doe d. Jame$ v. Price^ on/e,i. 683. 


18S9. that where the omitting to do a particular act would be cri- 
minal, the proof lies upon the party asserting such omission. 
[Bayley, J. Putting the oil of fitriol on board without no- 
tice, would clearly be criminal.'] So here, it would be a 
wrongful act to make the order in question, if not made 
at a legal meeting. In Williams v. The East India Com^ 
panjff Lord Ellenborough says that the rule of law is, that 
where any act is required to be done on the one part, 
so that the party neglecting it would be guilty of a crimi- 
nal neglect of duty in not having done it, the law frt- 
sumes the affirmative, and throws the burden of proving 
the contrary, — that is, in such case, of proving a negative,— 
on the other side. [ Bayley, J. A criminal neglect of duty.] 
The cases cited by Lord JEUenborough are not of so cri* 
minal a nature as the act of putting oil of vitriol on board 
without notice, which might have endangered the lives of 
every person in the ship. Monke v. Butler (a) was a suit 
for tithes in the Spiritual Court, in which the defendant 
pleaded that the plaintiff had not read the 39 articles, and 
the Court put the defendant to prove that he had not done 
it. [Bayley, J. There the rector was in possession, and 
unless the possession be shewn to be illegal, it will be pre- 
sumed to be legal.] Lord Ellenhoraugh also refers to Lord 
Halifax^ $ ca8e{b), where, upon an information against Lord 
Halifax for refusing to deliver up the rolls of the auditor of 
the Exchequer, the Court of Exchequer put the plaintiff 
upon proving the negative, viz. that he did not deliver them, 
for a person shall be presumed duly to execute bis office 
until the contrary appears; and to Rex ▼. Coombs{c)i 
where the defendant having sworn an affirmative, and an 
information having been exhibited 'against him, tbe Court 
directed that the prosecutors should first give their pro- 
bable evidence of the negative, and that the defendant 
should afterwards prove the affirmative if he could ; and to 
Gilbert's Law of Evidence ^ in which it is said(<f)y that 

(a) 1 Roll. Rep. 83. (c) Coraberb. 57. 

(h) 13 ViD. Abr. Evidence, 209, (i) Page 148. And see Rex v. 

(S. b) 3, and Bull. N. P. 298. Leake, 2 Nev. & Mann. 583. 


when the law supposes the matter contained in the issue, 1829. 
(ben the opposite party, that is, the party who contends for 
t&e contrary of what the law supposes, must be put unto 
proof of it by a negative. Here, in order to prove that 
the commissioners did this wrongful act, the plaintiff, not 
coDteot with shewing that the pavement was raised by the 
order of the commissioners, put in their books, which are 
made evidence by the 8th section, and which contained the 
order in question. This evidence, thus produced by the 
plaintiff himself, proved that proper notice had been given. 
Iq answer to the first objection, therefore, the defendant 
says, that the plaintiff was bound to prove the negative ; 
and he further says, that the evidence produced by the 
plaintiff himself did, in fact, prove that affirmative, which 
he contends the defendant was bound to establish. But 
the statute requires a general, not a special, notice. It 
does not say that the commissioners shall be convened by a 
notice specifying the object of the meeting. The person 
who drew this act was aware of the form necessary to be 
osed when a special notice was to be required ; for in the 
7th section such a notice is directed to be given, and no 
similar direction being in the 55th section, no special notice 
is required. The legislature did not mean that the notice 
under that section should mention the occasion of the 
meeting. This brings us back to the question, whether 
a general notice was given. The meeting in January broke 
vp without adjourning. A subsequent meeting was held on 
the 4th of February, at which time an adjournment took 
;>lace to the 3d of March, when the order was made. No 
person was called to prove the notice of the meeting of the 
4th of February, but it appeared by the books that the 
meeting held on the 4th of February was adjourned to the 
3d of March; that being a meeting by adjournment, it 
would be questionable whether a notice was necessary. 
The books put in by the plaintiff state, that the meeting 
was held by public notice. Bowstead, the clerk, had ab- 
sconded, so that he could not be called to prove that the 




provisions of the act had been complied with. But the books 
were evidence of all the circumstances stated in them. In 
Rex V. Martin (a) the indictment averred, that Best had been 
appointed treasurer of the parish of Greenwich, and that 
the management of the poor in Greenwich was regulated 
by a local act, which provided that notice should be given, 
in a certain manner therein specified, of a vestry to be held 
on a certain day for the election of a treasurer. To prove 
the appointment of Best, there was offered in evidence an 
entry in the vestry-book, stating that at a vestry duly held 
in pursuance of notice, Best was appointed treasurer for 
the year ensuing. Macdonald, C. B. held, that due notice 
of the holding of the vestry was proved by the recital in 
the vestry-book. That was a stronger case than the pre- 
sent, because the Greenwich local act contained no clause 
to make the books evidence. If the act complained of 
here had been done without authority, the proper person to 
be sued would have been the party who did the wrongful 
act, and not the clerk of the commissioners. The books 
being put in by the plaintiff, he must take them for better 
and worse. [Bayley, J. The act was done by a person 
employed by the commissioners. Parke, J. The commis- 
sioners are not bound to act personally in the execution of 
the orders which they make. This is therefore unlike the 
case of a sheriff, who, being bound by law to act himself, 
is responsible for the misconduct of the person whom he 
may choose to employ. Littledale, J. Since the case of 
the Governor and Company of the British Plate Glass 
Manufactory v. Meredith, actions have been brought against 
commissioners for consequential damage, as for not shoring 
up a wall.] With respect to the third objection/ the order, 
upon the face of it, imports that the footpath was to be 
raised. If, therefore, it were open to the plaintiff to take 
this point, it would not support the action. 

(a) 2 Carapb. 100. And see 
Rex V. Manning, 1 Burr. 377; 

Rex V. Mayor^ ^, of Uterpeolf 
4 Burr. 3^44, third point. 


DundaSf on the same side. The third point was not 
Ukeo at the trial. The nonsuit proceeded upon the over- 
niliog of the first two objections. With respect to the 
first pointy it was admitted that the meeting would have 
been good if notice had been duly given. Upon the se- 
cood point, the learned judge thought that it would have 
been better if a notice had been given signifying the object 
of the meeting, in order that the attention of persons in- 
terested might be drawn to it ; but he said, that whether 
the notice should have been special or not, the entry on 
the book was evidence that a proper notice had been 
giveo. Graham J the inspector, is not dead, and might 
luve been called. 



Courtenay, contr^. The plaintiff's house was injured by 
the raising of the pavement. This was not an action of 
trespass for entering and flagging the plaintiff's land, but 
case for the injury to the. reversion. The 77th section of 
the act is that under which the defendant must justify. 

The plaintiff's first point is, that by the 6th section it 
was necessary to shew that the meeting was held in pursu^ 
ance of the act. The 4th section regulates the meeting. 
The book is made evidence of what it contains, that is, of 
acts done, but it is denied that it is evidence of all that is 
there stated. But supposing the book to be evidence of 
every thing that appears on the face of it, it does not prove 
that the forms required by the act have been complied with; 
it only proves that a public notice had been given. If a 
witness had been called, and had said that a public 
notice had been given, that would have been insufficient, 
for such a notice may have been given by sending a bellman 
about the streets. Rex v. Martin is very distinguishable. 
There the entry was, " at a vestry duly holden pursuant to 

Then the order is not for the raising of the footpath, 
which is the specific injury of which the plaintiff com- 
plains. The flagging alone would have occasioned no in- 
jury. If the case had been within the act, the plaintiff 




would have had no right of action, his remedy would have 
been by appeal within six months ; but he sees an order for 
flaggings and does not suppose that any appeal was neces- 
sary. [ParktfJ. That would have been a very good argu- 
ment if the action had been brought against the party who 
did the act.] The commissioners forbade us to interfere. 
[Parke^J^ That is, certain individuals took upon them- 
selves to forbid you. That might give you a remedy as 
against them.] If the plaintiff had indicted the parties for 
what they have done, he must have shown them guilty of 
criminal negligence. But here, the plaintiff is in possession, 
and it lies upon the party who intermeddles with that pos- 
session to prove his right so to do. [Parke^ J. It does not 
appear that any person had a right to be present except 
the commissioners ; but that does not remove the plaintiff 
from his argument, because if he had had notice of the 
object of the meeting, he might have petitioned, and he 
may have been lulled into security by the entry in the book.] 

£. H, Alderson, on the same side. Public notice is 
necessary after an adjournment. Taking the whole toge- 
ther, it does not appear that due notice was given. [Bay- 
letf, J. Did you produce any evidence that notice had not 
been given ? Parke, J. In Rex v. Haslingjield{a) the rule 
is stated to be (b), " that where a person is required to do 
an act, the not doing of which would make him guilty of a 
criminal neglect of duty, it shall be intended that he has 
duly performed it, unless the contrary be shewn." Would 
it not be '' a criminal neglect of duty" to hold a meeting 
without due notice in this case, just as much as in the case 
of commissioners of inclosure in Rex v. HaslingfieldT] 

Armstrong, on the same side. Here, an act injurious 
to the plaintiff, is done under the order of the commission- 
ers. The defendant was therefore bound to shew clearly 
that the commissioners were justified in making the order. 

Cur. adv. vult» 
(a) 2 Maule & Sel. 558. {b) Ibid. 561. 


On a subsequent day the judgment of the Court was 
proDoanced by 

BayleTi J. in favour of the plaintiff, on the ground, 
tbat as the act required a special notice to be given, and 
the eutry in the book was in the form usual in the case of a 
mere common notice^ a doubt was raised whether the com- 
musiooers had done their duty by giving the proper notice, — 
Old that the defendant was therefore bound to prove that 
tbej had done so. 

Rule absolute to enter a verdict for the plaintiff. 



Price v. Isaac Edmunds. 

Assumpsit, by payee against maker of two promissory ^„'jP^"^^P^l; 

notes for 150/. each, payable at three and four months from gnve their pro- 

ibe 3rd July, 1827, tried before Park, J., at the Gloucester "o 'a'^C.'iues 

city spring assizes, 1829. The note produced purported to ^n ""^ ^fi^*:^ 

be the joint note of the defendant and Abraham Edmunds, payable by in- 

Thc defendant had siirned the note as a surety for his bro- Jtalments, the 
r« • •«• • J » » first instalment 

ther Abraham. The plamtiff havmg sued Abraham, had, to be paid on 

on 28th March, 1828, just before the assizes, accepted a Ihattif ^itlT 

cognovit from him, payable by three instalments ; 70/. on C. might have 

the twenty-eighth of April, 70/. on the twenty-eighth of jjj^lment'in 

May, and the residue on the twenty-eighth of June, with the action if 

liberty to issue execution for the whole in case of default, had been gi- 

Had no coirnovit been taken, and the plaintiff had obtained ^^"> ^*^^. 

® . power to i3sue 

a verdict in that action, he could not, according to the execution for 

practice of the Court, have issued execution until the JiebruTcase 

of default. 
A. makes default at the day: Held, that fi. is not discharged (a). 
Whether JB. would have been discharged if the first instalment had been duly paid, 
tod (be further instalmeots had thereby stood deferred to a day subsequent to that on 
whicfa final judgtaDeDt coold have been signed if no cognovit had been given, quare. 

(a) 5«2oi<l« port, 292 («). 


1829. twenty-ninth of April (a). Defaalt was made in the pay- 
ment of X}ie first instalment. 

Under the direction of the learned judge a verdict was 
found for the plaintiff, leave being reserved to move to 
enter a nonsuit. A rule nisi having been obtained. 

First point: Campbell now (&) shewed cause. This rule ought to be 

o ime given. Jigdjarged on two grounds. First, no time was in fact 
given by this cognovit. The first instalment was payable 
on the 28th of April, and if any default was then made, the 
whole would become due. Now, Easter term, 1828, having 
begun on Wednesday the 2dd of April, the plaintiff, if he 
had tried his cause at the assizes, could not have had exe- 
cution until Monday the 28th, or Tuesday the £9th of 
April ; and as the condition was not complied with, the 
parties are in the same situation as if the further extension 
of time had never been granted. [Littkdale, J. I rather 
think we must look to the time when the cognovit was 
given, without reference to what took place afterwards.} 
The condition was not performed, and therefore no time 
was given. It is perhaps unnecessary to inquire what the 
effect would have been if the first instalment had been 
Second point : paid on the 28th April. But, secondly, supposing time 
time imniate- ^^^ '^^^^ given, the nature of the contract which this de- 
^^^' fendant entered into, by signing the promissory note, was 

such as to entitle the plaintiff to give time to the other 
maker, without discharging the defendant. The ruling of 
Lord EUenborovgh, in Laxton v. Peat(c), is certainly 
against this position ; but this case has often been cited, 
and as often overruled: Ragget v. Axmore{d), Fentum v. 
Pocock (e). So, in the earlier case of Dingwall v. Dan- 
st€r(f), it was said by j4slihurst,3; and Buller,J., that 

(a) The sixth day of Easter Change, partie 1, chap. 6, No. 
term. 177, 178. 

(b) 13th December, 1899, in the {d) 4 Taunt. 730. 

Outer Court. (e) 5 Taunt. 198, and 1 Maiab. 

(c) 2 Campb. 185. And see 14. 

Pothier, Traits du Contrat de (/) 1 Dough 347. 


aotfaing but an express agreement can discharge an ac- 
ceptor; and in Kerrison v. Cooke (a), Gibb8,C.J., was of 
opioioD that the acceptor was not discharged by time given 
to the drawer, for whose accommodation the acceptance 
had been given. In Anderson v. Clef3ela7id {b). Lord 
Mamjield said, " The acceptor of a bill, or the maker of a 
Dote, slwajs remains liable." [LiUkdale, J. No time was 
given there.] But the proposition that an acceptor is 
absays liable was laid down without qualification. 



Russell, Serjt., and Busby, in support of the rule. Time 
vas clearly given. With regard to Raggett v. Jocmore, the 
rule is correctly stated on the other side, provided it be 
onderstood to refer to the rights of third persons, and not 
to tnmsactions between the surety and the party who gives 
the time. It is not necessary here to decide whether an 
acceptor of an accommodation bill is to be considered as 
a mere surety, as in Laxton v. Peat{c\ and in Collott v. 
Ha^h ((/), which is to the same purpose. Fenton v. Po^ 
cock, if attentively considered, is in favour of the defendant. 
[By ley y J. Does not the maker of a note, by signing the 
Histroment, make himself absolutely liable at all events? 
If you had wished that the defendant should be merely a 
surety, you should have made the defendant payee of the 
iiote, and his liability would have been only a collateral 
liability upon his indorsement Parke, J. Have you any 
case where the party was allowed to shew that he stands 
m a different position from that in which he would appear 
to be on the face of the bill ? Here, you are seeking to 
shew that the contract expressed in the note is not the 
real contract between the parties.] If a bill or note be 
made payable at a certain day, you are not allowed to say 
that there was an agreement between the parties that the 
bills shouki be renewed, but you may shew, as between the 

(a) 3 Cunpb. 362. 
(i) 13 East, 430, n. 
VOL. V. 

(c) SuprH, 288, (c). 

(d) 3 Campb. S81. 







immediate parties, that no value was received, thoagh the 
bill is expressed to be drawn for value. In the case of a 
bond, it is competent to a co-obligor to shew that the 
plaintiff was merely a surety. [Bayley, J. The contrary 
was held in Davey v. Prendergrass (cr). LiUledale, J. In 
Rees V. Berrington (b), it was held that the surety was eati- 
tled to relief; but that was in equity.] Garrett v. Jull(c) 
shews that the Court may look to see who is the principal 
and who the surety. [^Bayley^ J. That case goes no fur< 
ther than this, — that if you receive from the principal a 
smaller sum in lieu of the whole, you cannot sue the surety 
for the residue, as he might be entitled to say*-I have aright 
to be put in a situation to sue my principal. So, if you sue 
one of two partners, and discharge the partus whom you 
sue.] It must be admitted that if the Court think that the 
effect of the agreement now set up is to alter the written 
contract, the defence cannot be supported. [Boylry, J. 
Suppose a joint liability to exist, as in the case of two part- 
oers, one of whom obtains time,— >will the other partner be 
discharged ? Parke, J. Shewing the party to be a surety 
does not shew that he is discharged from the contract by 
which he engaged as a principal.] The cases as to the dis- 
charge of sureties are collected in a note to Maltby ▼. 
Carstairs {d), Laxion v. Peat (e) is still law. In Ragget 
¥• Axmore, it was not made out in evidence that the bill 
was accepted as an accommodation bill. The cases there- 
fore are not parallel in two respects: first, the plaintiff 
there, when he took the bill, was not aware that it was an 
accommodation bill. Indeed, it did not there appear that 
the defendant knew it at any time. So, in Fenttm v. Po' 
cock, the defendant did not know that it was an accoramo- 
dation bill. In Carstairs v. RoUiston {/), Gibbs, C. J., 
flays that he would give no opinion upon this point This 

(a) 5 B.& A. 187; 9 Chit. 336. 

(b) 9 Vesey^ jun. 540. 

(c) B. R., M. e2 Geo. 3, Se!w. 
N. P. 7th cd. 377. 

{d) Ante, vol. u 568(a). 
(0 Supnl,a88(c), S89(c). 
(/) 5 Taunt. 55t; 1 Marsh. 



WIS after the decision of the cases of Ragget v. Axmort 
aod Fenion v. JPocock, The point may be considered as res 
iDlegre. [Bayleyj 3. Might not a party be continually sur* 
prised by evidence to shew that the defendant was merely 
a surety, and that he had notice of that fact, although in 
realily no such suretyship ever existed ?] A party may be 
surprised vrith false evidence in any case. After the giving 
of this cognovit, the plaintiff could not have received the 
debt from the surety without a breach of the contract, for 
iodolgence entered into with the principal. \^Bayley, J. 
Suppose the surety willing to pay, his right so to do would 
oot be superseded.] It would be a fraud upon the prin- 
eipal. [Parke, J. It is entirely a new case.] Every ac- 
ceptince purports to be an acceptance for value. No 
person ever thought of accepting a bill, expressing in 
such acceptance that it was for the accommodation of the 
drawer: — Yet, in an action by an indorsee against the 
drawer, it is competent to the former to excuse himself 
from presentment for payment and notice of dishonour, by 
sbewiog that the bill was accepted for the accommodation 
of die payee. Again, an accommodation acceptor may sue 
the drawer for any damage he may have sustained by rea- 
son of the bill's not having been taken up, when it became 
doe, by the drawer. English v. Darley(a), Claridge v. 

Cur. adv. vult. 

Batley, J., now (c) delivered the judgment of the 
Court. — ^The first question in this case is, whether the de- 
fendant is at liberty to shew that he was only a surety. If 
l>e is at liberty to do this, then he contends that time was 
given to the principal, and that he is thereby wholly dis- 
charged. The first question, namely, whether the defend- 
wt ia at liberty to deviate from the form of the instrument 

(«) 2 Bos. & Pull. 62. (c) 15th Decembor, 1839, in the 

W 4 Maole & Selw. 226. Outer Court. 







which he has signed, would render it necessary to decide 
upon the conflicting cases of Laxton v. Peat^ Garrett v. 
Ju/l, &c. I reserve to myself full power of considering 
that point when it shall become necessary. But we are all 
of opinion that the foundation here fails. It is said that 
time was given to the principal by the cognovit, the terms 
of which were to pay 70/. on the ^8th of April, with a pro- 
viso for giving further time for the payment of the remain- 
der of the debt, if the 70/. were paid on that day. Time 
therefore was given, at all events, until the 28th April. 
Whether any further time should be given depended upon 
the contingency of the payment of 70/. on that day. The 
first instalment was not paid. The bargain was, to surcease 
until the 28th of April. Then we are to consider what was 
the fair intent of that bargain. The principal debtor bad a 
right to keep the plaintiff* out of his money until the 29th 
or the 30th of April. He had pleaded the general issue; 
the effiect of which was to prevent the plaintiff obtaining 
finaf judgment until the fifth day of the folio wii^g term. 
This question has frequently arisen as between principal and 
bail, though not in the form in which it was here presented 
to the Court. Here is a defendant, who has a right to 
postpone {a) the payment till a certain day ; but he says he 

Diatinction be- 
tween time 
given to the 
principal debt- 
or, in cases 
where the surety 
is immediately 
liable, and time 
given in cases 
where the liabi- 
lity of the sure- 
ty does not 
arise until the 
expiration of 
jucb time. 

(a) Where the time given to a 
defendant, by cognovit or otherwise, 
does not extend beyond the period 
at which final judgment could have 
been signed in case no time bad 
been given, neither the position of 
the bail (whose liability cannot 
attach until final judgment has 
been signed and a ca. sa. issued,) 
with respect to the plaintiff, nor 
that of the defendant cowards the 
bail, is in the slightest degree 
altered or affected. Whether a 
cognovit be given or not, the 
plaintiff cannot^ by attackiog the 
bail, set the bail in motion against 

the defendant. The case would 
be the same with respect to aoy 
other surety, whou liabUUtf did 
not attach before the day on wkk^ 
by the terms of the cognovit, tkt 
plaintiff would be at liberty to pro- 
ceed against the defendant. But 
where the default for which the 
surety is answerable is complete 
at the time the cognovit is taken, 
or at any time before the daj to 
which the payment is postponed, 
the position of the surety with re- 
spect to the plaintiff, and of the 
defendant towards the surety, ap- 
pears to be altered in the very 

^sk f 


•. T. 


|>. • 



will withdraw bis plea if the plaintiff will not put him in a 
wone situation, but will give him till the 28th of April; 
He bad a right to indulgence up to that time. It was 
oolj that which the defendant had a right to insist upon ; a 
benefit which be possessed and had a right to keep. It was 
therefore not a giving of time to the principal. 

LiTTLEDALE, J. — I am of Opinion that this was not 
ibat sort of giving of time which will discharge the defend- 
ant. If, when the note became due, the bolder had en- 
tered into an absolute engagement to give six or twelve 
months, the case would have been very different. Here, 
an action is brought, and there is a proposal of a cognovit. 
If the time specified in the cognovit for the payment of the 
money is earlier or the same as that on which the payment 
woald have otherwise been enforced, it is all right ; for 
why should the creditor be put to the expense of trial and 
execution, when he can obtain the same objects without. 
Here, the principal had shewn his intention of taking that 



poiDt which forms the ground of 
the discharge of the latter, viz. 
that if the surety were not dis- 
diarged, it would be competent 
to the plaintiff to enforce imme- 
£ate payment from the surety, 
who would have his remedy over 
Bgaiosc the defendant before the 
fogmmit became due, in violation 
of the terms of that cognovit. <* If 
a bolder e^ter into an agreement 
with a prior indorser, in the mom- 
ioft not to sue him for a certain 
period of tiQie, and then obliges a 
subsequent indorsee, in the even- 
ing, to pay the debt, the latter 
must (may) iromediateijr resort to 
the very person for payment, to 
whom the holder has pledged his 
iaith that he shall not be sued.** 
Per Lord Eldon, C. J., in Eng/isA 
T. Barley, 2 Bos. & Pull. 62. 

In the principal case, if the cog- 
novit given by Abraham Edmunds 
did not discharge bis brother 
Isaac, it would have been compe- 
tent to Pricey the plaintiff, to ar- 
rest Isaac the hour after the cog- 
novit was given; and if Isaac paid 
the money, (which it would be bis 
duty and interest to do,) it would 
have been competent to him to 
arrest Abraham by return of the 
mail from London ; and Abraham, 
who had waived his defence to 
the action in order to purchase his 
liberty till the 28th April, would 
find himself in custody on the 30th 
March, — precisely as if no cogno- 
vit had been given, and no indulg- 
ence had been stipulated for as 
the price of his submission in the 




time which the forms of the law would have allowed him 
to take, whether the plaintiff had assented or not Here 
time was not given, because the condition was not com* 
plied with. Though this is not precisely the s^me as the 
case of bail, we ought not to enter into nice distinctioDS. 
Bail are not discharged if the same time is given which the 
principal would otherwise have been entitled to. 

Whether, upon an instrument in this form, thie defendant 
could set up such a defence, is a question of more difficulty 
and of great importance. Upon this point there is a dif- 
ference of opinion upon the bench. 

Parke, J. — I concur in thinking that the defendant is 
not discharged, because no time was given. Bail would 
not be discharged under such circumstances. 

Upon the other point there is a difference of opinion in 
the Court. I have already intimated a strong opinion 
upon it I think Fenton v. Pocock very good law. 

Rule discharged (a). 

(a) And tee Bank rf Irdand r, 
Bererfordy 6 Dow, 854; Dunn v. 
She, Holt, N. P. C. 399; EUiMon 
V. DtxeU, Selw. N. P. 7ch ed; 
355; EngUih v. Barley^ % Bos. 
& Pull. 61, 3 Esp. N. P. C. 49, 
and Bayley on Bills, 159; Ex 
parte Gifford, 6 Ves. 807 ; Gould 
V. Robion, 8 East, 576 ; Harriton 
V. Courtauid, 3 Barn. & Adol. 36; 
Hewet V. Goodrich, 8 Carr. & 
Payne, 468; HUl v. Read, DowL 
k %1. N. P. C. 26; Jay ▼. War- 
ren, 1 Carr. & Pajne, 532; Lee 

V. Levy, 6 DowL <& RyL 475, 4 
Barn. & Cressw. 390, 1 Carr. & 
Payne, 553, 675 ; NtMbei v. SmUk, 
S Brown, C. C. 570; Orme t. 
Young, Holt, N. P. C. 84; PAii- 
pot V. Bryant, 4 Bingh. 717, 1 
Moore & Payne, 754, 3 Carr. h 
Pajrne. 346 ; PUe v. Ford^ S Chit. 
Rep. 125; Pring ▼. Clarksan, 3 
Dowl. & R^rl. 78, and 1 Bam. & 
Cressw. 14; 7^»£lri/ ▼. Brown, 1 
T. R. 167 ; Withali ▼. Masierman, 
9 Campb. 179 ; Sievens ▼. I^nch, 
ibid. 333, and 12 East, 38. 


Stannard 17. Harper. 

tiSE. The second count charged the defendant with Slanderous 

kiviflg slaudered the plaintiff by defamatory words, ad- ]^s"^d^'J2d "^ 

dressed by the defendant to the plaintiff in the second to the plaintiff 

persoo. At the trial before Vaughan, B., at the Suffolk i^ion.Tr"* 

spring Maizes, 1829, the words proved were words defama- "<>* supported 
,..,.._ , . , . .11 1 ^y evidence of 

10701 the plaintiff, used m his presence, but addressed to words spoken 

one J. S.,and in which the plaintiff was spoken of in the g^.^'"* '^J^® 

tiird person. A Terdicl was found for the plaintiff, the though so 

leinied judge giving leave to the defendant to move for p?^|^*"ce^ **" 

kive to enter a nonsuit* jP. Kelly having accordingly ob- 


Storhf Serjt., now shewed cause. As the plaintiff was 
ptwii when the defamatory charge was made, the change 
^pmon does not vary the sense. There can be no sub- 
•Untial difference between saying to A. — " You are a 
^ef/*and saying to B. of A., in the presence and hearing 
ofJ."" He 11 a thief/' 

Pabke, J. — ^The rule is, that you must prove the pre' 
^ words laid in the declaration ; not indeed all the 
vords which are charged, but so much of them as will 
constitute a sufficient cause of action. 

liiTTLEDALB, J. — No distinction can be made as to 
vlttther the party, of whom the words are spoken, is pre* 
Kntor absent. It would be introducing quite a new rule. 

Batley, J., concurred. 

Rule absolute (<f)« 

(•) Contii per Lord Hmrdwkkef have sUted the law of defamatioB 

CJ^ at nisi prias, in NeUon v. in the manner in which be is 

IHne, Cas. temp. Hardw. 305. there represented to have done. 

B«t it Mens to be impossible to And see Cro. £1. 645, 857 ; 3 

bctieve that the learned judge can Mod. 72 ; 8 Salk. 601 . 


Borough v. Moss, Gent.| one &c. 

A debt doe ASSUMPSIT on a promissory note, bearing date I3tb 
sola, cannot February, 1826, whereby the defendant promised lo pay 

be set oflf jQj^n Fearne, by the name of Rachael Feame, or order, 
against a note ,.,. - t e • ju 

given to the \50L, With mterest, at nme months after notice, and by 

rii^Vff thT*^ ^^^^ jFeame indorsed to the plaintiff. Plea: non assump- 
husband elect sit. At the trial before Burrough, J., at the last Derby 
SJ)te'*M his^se- «P"ng assizes, the following facts appeared: 
▼eral property. Rachael Harrison^ the holder of a promissory note for 
sues upon it in 200/., made by one Birchj having married Feamey Feame 

bis own name, requested the defendant to enforce payment from Birch, 

Or indorses -.., , ^ , . , V. 

it over to a The defendant, as an inducement to Feame not to sue 

*5uiS*U?°* ^*''^*' ^^^ ^*' ^^^ client, paid Feame 50/., and made and 
immaterial delivered to Feame the note in question for 150/. 
joinVin the ^^ April, 1826. Feame gave notice to the defendant to 

indorsement, p^j off the note at the end of nine months, 
debt could January, 1827. The defendant paid 50/. with the interest 

have been set then due. 

off man action ... 

brought on the March, 1827. Feame and his wife indorsed the note to 

busband'and ^^® plaintiff, who paid Feame the amount then remaining 

wife, qyare, due for principal and interest. 

of an over-due ^^^ defendant gave evidence of two professional bills, 

bill or note, is one for 51/., due to him from Rachael Harrison, dum sola, 
affected by all , , ^ «. i. t^ i • i^. 

equities at- aud another for 28/. from Feame himself. 

taching to the rpjjg learned judge was of opinion that these sums could 

bill or note ; . 

but not by a not be set off, and directed the jury to find a verdict for the 

^^l have^ plaintiff for 100/. and interest ; but gave the defendant leave 

been available to move to reduce the verdict, if the Court should be of 

ij^rser.* opinion that either of the bills of costs ought to have been 

allowed. A rule nisi having been obtained, 

Balguy now showed cause. This note operates, b point 
of law, as if it had been made payable to Feame only, and 
his wife had not been noticed; Barlow v. Bishop {a), BufL 

(o) 1 East, 432. 


M P. 1799 Boehm v. Stirling (fl). At the time when this 
note was indorsed, there was nothing upon the face of it 
denotbg that it had been reduced, either by payment or by 
let-off, beyond the sum of .50/., which the defendant had 
ptid in January, 1827* 

^'. JL Clarke, on the same side. There is no case in 
iriiich it has been held that the indorsee of a bill or note 
takes it subject to any right of set-off' which may have ex- 
isted against the indorser; Charles v. Marsden{b). In 
Broivn v. Davies (c), the note had been paid ; Boehm y» 
&tr/tRg is to be taken with reference to a question of 
fraud; Tinson ▼. Francis {d), was the case of an accommO' 
dation note. In all the cases in which this defence has pre^ 
vailed, there has been something to affect the note itself. 
The latest case is Colknridge v. Farquharson (e). In that 
case, a bill was indorsed over by a party with whom it had 
been deposited merely as a security, and the only point de- 
cided was, that the books of the indorser were inadmissible 
to shew the state of the accounts between him and the 
party by whom the bill had been deposited. The question 
there raised was, not as to the point of law, but as to the 
mode of proof. The objection would apply to notes payable 
on demand. [JBayley, J. No, it would be laches to keep a 
banker's cheque.] No notice of set-off was given. [LtV- 
tltdale, J. That only applies to actions between the parties.] 
Coppin V. Craig (/) shews that such a set-off may be pleaded. 
[Uttledakf J. It may be pleaded, but it would be admis- 
sible in evidence under the general issue.] Secondly, if the 
defendant is to be placed in the same situation as if he had 
pleaded a set-off, he ought to have given some notice of hia 
intention to set up these cross demands, and not to have 
taken the plaintiff by surprise. 

(«) 7 T. R. 42S. (d) 1 Campb. 19. 

(4) 1 TauDL 2^4. («) 1 Stark. N. P. C. 259. 

(c) 3 T. R. 80. (/) 7 Taunt. 243; 2 Marsh. 501. 



1899. AdamSf Serjt. contri. The statutes of set-oflf may always 

be evaded by the holder of a note, if by indorsing it over, 
""vr^" after it has become due, a right of action can be transferred 
Moss. iQ iii^ indorsee discharged of the set-off. Husband and 
wife may sue jointly on a note given to the wife duriog 
coverture, Philliskirk v. Pluckwell (a), and if the husband 
had died first the right of action would have survived to her, 
and the debt due from her before marriage might have been 
set off* And if Fearne had sued in his own name, either 
during the coverture or after his wife's death, the debt due 
from him might have been set off. If Ftame had brought an 
action in the joint names during the coverture, the debt due 
from her before coverture might have been aet off, and also 
the debt due from him, inasmuch as the money recovered 
in such joint action would enure to the benefit of the 

Baylby, J. — I am of opinion that the defendant has no 
right of setoff in respect of the 5 1 /. The note being made 
payable to the wife, it was optional with the busband to 
treat it as jomt property or as his own exclusively. If be 
had elected to treat this note as their joint property, a sett- 
off in respect of the 5lL, due from her before coverture, 
might perhapa have been let in; but by indorsing the note 
over, he has elected to treat it as his several property, and 
die bill of costs due from the wife before coverture cannot 
be set off. With respect to the 28/., I wish to consider the 
case further. 

LiTTLBDALE, J. — If Ftamt had brought an action on 
the note in his ovni name only, no debt could have been set 
off except that due from Fearne himself. And if a joint 
action had been brought, I do not think it olear that the 
51/. could have been set off. 

{a) 9 Maule & Selw. 393. 


Pabke, J. — ^Ao agreement, %q which the holder is a i8f29. 
partj, affecting the note, creates an equity which attaches 
itself to the note, and is binding upon any person who takes it 
after it is over-due. It does not however follow that a right 
of le^^ would also be available against such an indorsee. 
If aoj set-off can be claimed, it can only be hi respect of 
tbe 28/., the husband having 4:learly elected to treat the note 
as being his own, and not the joint property of himself and 

On a subsequent day, Bayley, J. saic^ that upon dis* 
OisaiDg the pobt as to the 28/., with Lord Teaierden and 
tbe two other judges, they were all of opinion that the in- 
dorsee of an over-due bill of exchange or promissory note, 
was affected by such equities only as attached on the bill or 
note itself, and not by claims in respect of collateral cir- 

Cttmstances (a). 

Rule discharged. 

(a) QHiere, if tbe indorsee had notice of tbe matter of set-off. 

Sertante and others v. James. 

Covenant. The first coi^t stated, that by articles a covenant 

of agreement, made 30th August, 1815, between defendant q^^^J®/^^" 

ol tbe one part, and Elizabeth Servante, £. James, M. Ste- sbip, and tbeir. 

phens, T.Brilton, and J.BuU, the plaintiflfe, W. Bakery^^^f^^ 

71 Read, R. Russell, and W. Slocombe, since deceased, of ecuton &c., 

tbe other part, after reciting that the defendant was com- ^ i^rue^ibr^' 

mander of the Lady Hobart, employed in the service of the ^jj? hire of tbe 

Postmaster-General, and that the plaintiffs and fV.B., T.R., of goods and 

A. K,, and fV. S., were owners of the vessel in the shares ^?^ compensa- 

. , tion for tbe 

set opposite their names, the defendant, for hamself, his use of tbe 

sbtp's tackle 
&c, to tbe covenantees, tbeir and every of their several and respective executors &c.^ 
at a certain banking-house, in such parts and proportions as were set against their 
several and respective names, is a several covenant, and cannnot t>e sued upon by tbr 






executors See, covenanted with the several other persons, 
who should execute the articles, and their several and re- 
spective executors &c.» that during so long time as the 
vessel should be so employed, and he should continue to be 
commander thereof, he the defendant would pay unto the 
owners of the vessel| and to their and every of their several 
and respective executorsi administrators and assigns, the 
yearly sum of 480/., or such other sum as should be allowed 
to the owners of the vessel by the Postmaster-General for 
the time being, for the hire of the vessel, to commence 
from 25th August then instant, and to be paid to them at 
See., and In such parts and proportions as were set against 
their several and respective names, and would pay half- 
yearly, at 8cc., unto the owners, and to their several and 
respective executors &c., one-third part of the freight of all 
coin 8cc., for which freight should be paid, as should be 
conveyed in the vessel, during so long time as she should 
be so employed, and he should continue commander. And 
it was thereby mutually covenanted by and between the 
parties thereto, that when the vessel should be discharged 
from such service, or the defendant should die, give up, or 
quit the vessel, the cables &c. should be appraised by two 
sets of tradesmen, one set to be chosen by and on the be- 
half of the defendant, his executors &c., and the other by 
and on the behalf of the owners, their executors &c., and 
the difference of value between such appraisement and the 
original cost of such cables 8cc., or the cost of the like 
articles, if to be purchased new at the time of such appraise- 
ment, should be made good to the owners, their executors 
&c., according to their shares and proportions aforesaid, by 
the defendant, his executors &c., which difference the de- 
fendant thereby covenanted to make good and pay accord- 
ingly, immediately after such appraisement. Averment: 
that the plaintiffs and the deceased subscribed their names 
and affixed their seals to the articles in manner following; 
that is to say, R. J., H. S., W. B., T. B., T. R., R R.^ 


ukI J. B.f as respectively being each the owner of one 1899. 
liiteentb share of the vessel, the said W, S. as the owner 
of two siiteenth shares, and the said E. S. as the owner of 
six siiteeoth shares ; that the vessel continued to be em- 
ployed in such service from 25th August, 1813, to 8th 
October, 1828, during which time the defendant continued 
to be commander ; that the Postmaster-General, during all 
that time, allowed 480/. for hire &c/ 

Second count, for non-payment of a penalty of 1000/. 
vpon non^performance of the same covenant Breaches 
vere assigned in non-payment of the money allowed for 
liire of the vessel, of one-third part of the money paid for 
freight of coin &c., and of the difference between ttie valu- 
ation of the cables &c., when defendant gave up the com- 
maod, and the original cost. 

General demurrer, — and joinder. 

Campbellf in support of the demurrer. The plaintiffs D«c- ^ i- 
baTe declared jointly upon alleged breaches of three cove- 
nants; but as by the terms of the articles all moneys now 
sought to be recovered are made payable to each of the ship- 
owners who should execute the articles, no such joint action 
can be maintained. The question who are to be plaintiffs 
in an action of covenant, must be determined by the nature 
of the interest of the parties suing. The cases are collected 
with great care by Seijt. Williams, in his note to Eccleston v. 
Clip$ham{a). It is immaterial whether the language of the 
covenant is joint or several. It is true, that in the case of 
t several action against one of two joint covenantors, the 
omission of the other covenantor can only be taken advan- 
tage of by plea in abatement; but in the case of covenantees 
suing, there is no option; the form of the action must 
pursue the legal interest in the subject-matter of the cove- 
nant. If the action may be brought by three, it cannot be 
maintained by one. Here, a separate action might have 
been maintained by each ship-owner. It was originally 

(<i) 1 Wms. Saund. 154, note (1). 




contemplated, that all the owners might possibly not eie» 
cute the articles. The defendant therefore covenants to 
pay them in such parts and proportions as are set against tfteir 
several and respective names. Suppose all the ship-owners 
to be paid except one, it is clear that such unpaid owner 
would have a separate and distinct interest. The right 
accrues to each owner, according to his share in the vessel* 
The covenant is with their respective executors^ administro' 
tors and assigns, whereas if the right of action is joint, it 
would survive, and the executors and administrators of ihe 
deceased covenantees would take nothing. The plaintiffs 
must contend, that if all had been paid except one, and that 
one had died, his executors could.not sue. Owston v. Ogk{a} 
is directly in point, and differs no otherwise from the present 
case than in this, that the contract there was not under seal. 
But that circumstance is immaterial with reference to the 
present question. The law as to joinder of parties is the 
same in assumpsit as in covenant. That was an action for 
not accounting and dividing the net profits. Lord EHen- 
borough says, ** each of the adventurers was to derive from 
the ship's husband the account of the ship's proceedings; 
what had been disbursed, and what she had earned ; in order 
that he might have the means of ascertaining the amount 
of his own share. Is it not then reasonable that the cove- 
nant to account should be several ?** [Bay ley, J. In Owston 
V. Ogle it was held, that the action might be several. In 
Ponds V. Smith (6), Abbott, C. J., in delivering the judg- 
ment of the Court, said, '* I take it to be quite settled, that 
where there is a joint lease by two tenants in common, 
reserving an entire rent, the two may join in an action 
brought to recover the same; but that if there be a sepa- 
rate reservation to each, there must be separate actions (c). 

(a) 13 Easty 538. in 1 Dowl. & Ryl. 491, the wor^s 

(b) 5 Bam. & Alders. 850, and are given thus: ** I take it lobe 
1 Dowl. & Ryl. 490. quite settled, that where there is a 

(r) 5 Bam. Bt Alders. 85 h Bat joint lease by tenants in common, 


/Mf, J. The question is here upon the construction of 
this particular covenant. Littledale, J. In Collins v. Proth 
ur{a) the Court held, that under the words ** for which 
paymeDt we bind ourselves, and each of us for himself, for 
the whole and entire sum of 10/. each" the parties were 
lisUe separately, but not jointly.'] 



£, H, Jlderson, contrd. In this case the interest in the 
coveaant is joint. The defendant does not covenant to 
pay separately to each, but to pay the whole into a bank, 
on the joint account of the covenantees. [Parke, J. In 
order to comply with the covenant, must not the defendant 
psj the money into the bank to the credit of the respective 
owners, according to their respective shares and interests ?] 
It would be a breach of covenant if the portion of Jl. were 
paid in without the portion of B. The interest in the cove- 
nant is joint. Then the question arises, whether it is not 
optional here to sne jointly or severally. There is nothing 
in Owston v. Ogle to shew that a joint action would not 
have lain. 

Bayley, J. — To make this a joint covenant, it would 
be necessary to strike out the words " according to their 
respective shares and proportions." The defendant might 
pay one share in at one time, and another at another, spe- 
cifically to the use of a particular owner. If the defendant 
paid one man in full, the remedy as to the residue would 
be to be enforced by the parties who had not been paid. 
Each sustains a separate and independent injury. By the 
terms of the covenant, the defendant is not to pay the whole 
to the surviving covenantees. 

reserfing a joint and undivided 
reoc, they may both join in an 
action for the renty^Hmd the same 
frndpie teems to govern where the 

letae is joint and the rent is reserved 

(a) 3 Dowl. & Ryl. 112, and 1 
Barn. & Cressw. 68S. 

304 <:as£S in TflE king's bench, 

1829. LiTTLBDALEy J. — ^Though the Covenant purports to be 

with the ship-owners jointly, its legal operation must ensue 
the nature of the interest. The rule is correctly laid down 
in Eccleston ▼• Clipsham (a), and the notes — in which the 
cases are collected. Supposing one of the covenantees, 
who had been paid his sixteenth share, had survived the 
rest, could it have been contended that he would be the 
person to sue for the share due to the representatives of the 
deceased covenantees ? 

Parke, J. — It was settled in Slingsby^s case (6), that 
*' where it appears that every one of the covenantees hath or 
is to have a several interest or estate there, when the cove- 
nant is made with the covenantees et cum quolibet eorum, 
these words, cum quolibet eorum, make the covenant 
several in respect of their several interests (c)" Here, the 
interest was clearly several. The money ought to have 
been paid in to the separate credit of each part-owner (d). 
If it had been paid to one joint account at the banker's, 
it could not have been drawn out without the concurrence 
of all the parties. This inconvenience it was probably the 
object of these articles to avoid. 

Judgment for the defendant (e). 

(a) 1 Saund. 154, and note (1), words ^ et cum qaolibet eorum" 
in the fourth and fifth, and note (a) appears to be immaterial; vide 
in the fifth edition. Etvidetupri, note(c) to 1 Wms. Sauod. (fifth 
301. edition) 155. 

(b) 5 Co. Rep. 18 b. (J) Vide 1 Nev. & Mann. 594, 

(c) But as tlie right of one or of note (a). 
ieveral parties to bring an action (e) And see Jtatice Windham's 
of covenant, must in all cases en- case, 5 Co. Rep. 7 b.; Broamii^ 
sue the nature of the estate or v. BeitoH, Plowd. 140 b.; Lee y. 
interest of the covenantees, the Nixon, 3 Nev. & Mann. 441. 
insertion or the omission of the 



Harper v. Hayton, Esq. 

Assumpsit for money had and received against the late 
sheriff of the county of Hereford. At the trial before 
Park, J,, at the Hereford Spring Assizes, 1829| the fol- 
lowing facts appeared : 

The plaintiff having entered into a recognizance in 40/. 
coDditioned for her appearance at the quarter sessions, and 
having made defaulti the recognizance was forfeited and es- 
treated. A copy of the estreat roll, including the estreat 
of the plaintiff's recognizance^ being sent to the defendant, 
as sheriff^ with the writ of distringas, fieri facias, and 
capias, as required by the second section {a) of 3 Geo. 4, 

{a) Which enacts ** that all fines, 
issues, an]erciaments,yor/et7ec^ re- 
ctgnizancet, sum or sums of money 
pnd or to be paid in lieu or satis- 
/action of them or any of them, 
(sare and except the same shall by 
nrcoe of any act or acts of (Mr- 
Hament made or to be made, be 
otherwise directed to be levied, 
recovered, appropriated or dis- 
posed of,) which already are or 
Kereafter shall be set, imposed, 
k>sf, or forfeited, by or before any 
jasdce or jostTces of the peace in 
that part of the United Kingdom 
called JBogland, shall be and are 
hereby required to be certified by 
the justice or justices of the peace 
by or before whom any such fines, 
isniea^ amerciaments, forfeited re- 
cognismstceM^ sum or sums of money 
fid or to be paid in lieu orsatisfac- 
tioo of them or any of them, shall 
be see, imposed, lost, or forfeited, to 
the cierfc ef the peace of the 
coanty, or town clerk of the city, 
borough* or place, in writing, con- 
taining the names and residences, 
trade, profession, or calling of the 

VOL, V. X 

parties, the amount of the sum 
forfeited by each respectively, and 
the cause of such forfeiture, signed 
Dv such justice or justices of the 
peace, on or before the ensuing- 
general or quarter sessions of such 
county, city, borough, or place re* 
spectively; and such clerk of the 
peace or town clerk shall copy on* 
a roll such fines, issues, amer- 
ciaments, forfeited recognizanceSy' 
sum or sums of money paid or to 
he paid in lieu or satisfaction of 
them or any of them, together 
with all fines, issues, amerciaments, 
forfeited recognizances, sum or 
sums of money paid or to be paid 
in lieu or satisfaction of them or 
any of them, imposed or forfeited 
at such Court of General or Quai> 
ter Sessions; and shall within such 
time as shall be fixed and deter- 
mined by such Court, not exceed- 
ing twenty days, after the adjourn- 
ment of such Court, send a copy 
of such roll with a writ of distrin- 
gas and capias or fieri facias and 
capias, according to the form and 
efiect in the schedule marked (A.) 


Where upon a 
forfeited at 
quarter ses- 
sions, the she- 
riff has levied 
part of the pe- 
nalty, and has 
the defendant 
in execution 
for the residue, 
the sessions 
have jurisdic- 
tion over the 
whole repogni- 
zance, and if 
the sheriff has 
notice that 
they have dis- 
charged the de- 
fendant wholly 
before the 
money levied 
had been paid 
over to the 
treasury, an 
action for mo- 
ney had and 
received lies 
against the 
sheriff for the 

any notice of 
the order, or 
any demand of 
repayment is 





c. 46 (6)9 the defendant levied to the amount of 1/. 8i. Id., 
and took the plaintiff in execution for the residue. She was 
afterwards discharged from her recognizance by the Court of 
Quarter Sessions, under the sixth section (c) of the act. 
The defendant had not, previously to the discharge of the 
plaintiff, passed his accounts at the Exchequer, but he had 
returned the I/. 85. Td. 99 levied under the estreat and writ. 
The learned judge, upon being pressed with the authority 

annexed to this act, to the sberi£f 
of such county, or the sheriff, 
hailifl^ or officer of such city, bo- 
rough, or place having eiiecution or 
process therein respectively, as 
the case may be, which shall be 
the authority to such sheriff of 
such county, or the sheriff, bailiff, 
or officer, as the case majr be, for 
proceeding to the immediate levy- 
ing and recovering of such fines, &c. 
CIO the goods and chattels of such 
several persons, or for taking into 
custody the bodies of such persons, 
in case sufficient goods and chat- 
tels shall not be found whereon 
distress can be made for recovery 
thereof; and every person so taken 
shall be lodged in the common gaol 
until the next general or quarter 
sessions of the peace, there to abide 
the judgment of the taid Court, ^ 

(b) Amended by 4 G. 4, 0. 97. 

(c) Which enacts ^that the 
Court of General or Quarter Ses- 
sions, before whom any person so 
committed to gaol or bound to 
appear shall be brought, is hereby 
authorized and required to inquire 
into the ctrcumstniices of the case, 
and shall, at its discretion* be em- 
powered to order the discharge of 
the whole of the forfeUed recogni- 
zance, ftr turn of money paid or to 
be paid in lieu or satisfaction 
thereof or any part thereof; and 

such order shall be made in the 
form or efiect of the schedule 
marked (C.) to this act annexed, 
aod shall be signed by the clerk of 
the peace, which said order shall 
be a discharge to such* sheriff, 
bailiff, or officer, on the passing of 
his accounts at the Exchequer, or 
before any auditor or other proper 
officer duly authorized to pass the 
same; and in all cases where the 
party shall have been lodged in 
the common gaol by such sheriff, 
&c. the justices of the peace so 
assembled are hereby empowered 
either to remand such party to the 
custody of the sherifl^ &c., or, upon 
the release of such party firom the 
whole of such forfeited rccogni* 
zanoes, to order such party to be 
discharged from custody; and 
such order shall be a full and suf- 
ficient discharge to the said sheriff, 
&c. on passing of his accoonts at 
the Exchequer, or before any au- 
ditor or other proper officer dul; 
authoriaed to pass the same; and 
it shall and may be lawful to and 
for the said Court of Geoeral or 
Quarter Sessions to award such 
costs, charges and expenses, to be 
paid by either party ts^ the other, 
as to the said Court shall seen 
just and reasonable. '^ 

^ Sie in the act, though the sheriff 
it not neatioiied before. 


of Haynes v. Hayton (a), was of opinion that the Court of 
Quarter Sessions had no authority over the recognizance^ 


(a) This was aa action of as- 
iom]Mit for money had and received, 
bimght against the present de- 
fendant to recover back a payment 
made to him, as sheriff of the 
ooimty of Hereford, on accouot of 
tvo foifeited recognizances of 40/. 
each. At the trial before BouLn- 
fui, Serjt at the Hereford Spring 
Anizes^ 1827» it appeared that an 
indictnient for a forcible entry bad 
been found against the plaintiff and 
his wife at the Easter sessions, 
1824; that the plaintiff entered 
into the recognizances in question 
bt the ttppetnnce of himself and 
wife respectively; that the indict- 
Bient was immediately removed 
hj eertioran, at the instance of the 
indictcc B; that at the July sessions 
1824^ the recognizances were es- 
tieated; that at the Spring assizes, 
1825, the indictees were acquitted; 
tiiat on the 25th August, the derk 
«f die peace prepared and sent to the 
dieriff a writ containing a copy of 
(inter aHa) the two recognizances 
sf the ]Jainti£^ together with a writ 
sf distringas, fieri ftcias, and ca- 
|iss; that the defendant having 
idled the pbiintiff's goods imder 
•ndi writ for the 80/., and having 
icftaed to take securities, the plain- 
tiff paid the amount to the defend- 
>Bt in redemption of his goods, 
vhidi were thereupon restored to 
him; that the defendant returned 
theatreatraU and the writattbefol- 
Waing Michaelmas sessions; when 
tiist Court, upon the application of 
Aeplamtiff, made an order miti- 
fitiog each recognizance to 13f . 4c/., 
nd requiring the derk 6f the peace 
*B make out the necessary orders 

for discharging the sheriff on pass* 
ing his account from the residue; 
that the clerk of the peace duly 
transmitted the orders of sessions 
to the defendant; that the defend- 
ant had, on passing his accounts at 
the Exchequer, been discharged 
from the amount of the recogni- 
zances, except the two sums of 
13f. 4d, ; and that the defendant 
had Bubsequentiy promised to re- 
pay the residue to the plaintiff on 
being allowed to retain his pound- 

It was contended by ToMniom, 
fbr the defendant, that from the 
language of the enacting part of 
the statute, and the form of the 
writ, the sessions had power to 
order the recognizances to be dis^ 
chaiged only where the party was 
in custody or had given security, 
and not where execution had been 
executed on his goods, upon which 
the money levied belonged to 
the crown, and must be paid as 
directed in the act. The learned 
judge, however, being of opinion 
that the amount received by the 
defendant was "a sum of money 
paid in satisfaction of a forfeited 
recognizance," and that the se^^ 
sions had authority to make the 
order, directed a verdict for the 
plaintiff, recommending that the 
• poundage should be deducted, in 
order to avoid a motion for a new 
trial. A verdict was accordingly 
taken for 74/. 15f . 8</. 

A rule nisi having been obtained 
by Taunton for a new trial, cause 
was shewn by MatUe and WkUcoa^^ 
who again niged, that under thei 
discretionary power given to tlie 




Where upon a 
forfeited at ses- 
sions, the de- 
faulter has paid 
the penalty to 
the sherilf, in 
order to prevent 
a sale of bis 
goods taken in 
execution, the 
sessions have no 
power of miti- 
gating the pe- 
nalty, under 
S Geo, A, c. 46, 
s. 6. 





and nonsuited the plaintiff, 
was obtained by Maule for a 

justices at sessions by section 6, 
not only over the forfeited recogni* 
zance, but over money fKtutf or to 
be paid in satisfaction thereof, the 
Court of Quarter Sessions had, not- 
withstanding the payment, autho- 
rity to mitigate the recc^izances. 
They also urged, that supposing the 
quarter sessions had executed their 
authority, the defendant, by retain- 
ing the 74/. 15c. Bd. from the 
crown, and expressly promising the 
plaintiff to return that sum to him, 
liad admitted that he held it for the 
plaintiff's use. 

On the part of the defendant it 
was contended by W. E. Taunton, 
that the authority of the sessions 
was confined to two cases: viz. 
where the defendant was actually 
in custody, or where he had given 
the security required by sect. 5. 

The Court [HayUy, J., Little- 
iaU, J^ and Parke^ J.,) having 
taken time for consideration of their 

Bay ley f J., after stating the tacts 
of the case, proceeded as follows : — 
It has been insisted that the plain- 
tiff was entitled to recover; first, on 
the statute,— secondly, on the un- 
der«heriff's promise, — and thirdly, 
on tiie ground that the sheriff 
took credit in the Exchequer for 
tiie two sums of 39/. 6s. 8(/., and 
39/. 6j. Bd. As to the latter 
ground, it appears to us, that if the 
sessions had no authority to make 
l!he order in question, that order is 
wholly void, and the sheriff's omis* 
aion to- insert these sums in his 
accounU delivered into the Exche- 
qu8T does noj. alter the case ; for he 

In last Easter term a rule nisi 
new trial ; against which 

is still accountable there; and if 
that be so, there was no comidera- 
thn for his promise to pay the 
plaintiff, and it becomes nudoni 
pactum. The question depends 
upon this, whether the 3 G. 4, c. 
46, s. 6, authorizes the sessions to 
discharge the recognizance in ail 
cases, or in those cases only where 
the party has been committed to 
gaol or become bound in sureties to 
appear at the sessions. If a gene- 
ral jurisdiction is given to the ses- 
sions, then the plaintiff is right; 
otherwise he is wrong. It was ad- 
mitted by the plaintiflTs counsel, 
that the sessions had no other ju- 
risdiction than that given by the 
3 G. 4, c. 46. By section 2 of 
that act, it is enacted, '' that all fines, 
forfeited recognizances, sum or 
sums of money paid, or to be paid 
in lieu or satidaction of them, shall 
be certified by the justices of the 
peace, by or before whom such 
fines, forfeited recognizances, &c., 
ihall be imposed or forfeited, to 
the clerk of the peace; and that 
such clerk of the peace shall copy 
on a roll such fines, forfeited recog- 
nizances, &c. and send a copy of 
such roll, with a writ of distringas 
and capias, or fieri fecias and ca- 
pias, to the sheriff, which shall be 
the authority to such sheriff for 
proceeding to the immediate levy- 
ing of such fines, forfeited recogni- 
zances, &c. on the goods and chat- 
tels of such several persona, or for 
taking into custody the bodies of 
such persons, in case auifident 
goods and chattels shall not be 
finind." Then section 5, (which is 
very inaccurately worded,) protide* 


TaufitoM, now shewed cause. The plaintiff must reco- 
ver by force of his own title. It is no matter whether the 



"that if any person on whose 
goods and chattels suchsherifl' shall 
be authorized to levy any such 
Wwted recognizance, or sum of 
nooe? to be paid in lieu or satia- 
fcction thereof, shall give security 
to the sheriff for his appearance at 
the next general or quarter sessions, 
there to abide the decision of the 
Coor^ and also to pty such for- 
feited recognizance, or sum of 
money, &c. together with all ex- 
peotes, as shall be ordered and 
adjudged by the court, it sluUl be 
Isvibl for such sheriff to discharge 
>i^ person, so giving such secu- 
rity, out of custody; provided also, 
that in case such party so giving 
nch security shall not appear in 
pumiance of his undertaking, it 
ihsO be lawful to the Court to issue 
a writ of distringas and capias, or 
fieri fadas and capias, against the 
nrety or sureties of the person so 
boond as aforesaid." I think that 
dsnae does not extend to cases 
wbere the party pays the money, or 
where the sheriff /Itvief on the goods, 
hot is confined to cases where the 
iheriff has taken ike body. Then 
comes section 6, under which alone 
the plaintiff bad power to apply to 
the sessions, and they had jurisdic- 
tioo. That section enacts, ''that the 
Court of Quarter Sessions, before 
whom any person committed to 
gaol or bound to appear shall he 
hrought, is authorized and required 
to inquire into the circumstances of 
the case, and shall, at its discretion, 
be empowered to order the dis- 
charge of the whole of the forfeited 
recognizance, or sum of money 
paid in lieu or satisfaction thereof, 

or any part thereof; which order 
shall be a dischai^ to the sheriff, 
&c. on the passing of his accounts 
at the Exchequer.*' The power 
given to the sessions to order this 
discharge of a forfeited recogni- 
z^ce is, therefore, confined to 
cases in which a party brought be- 
fore the sessions has been com- 
mitted to gaol or been bound to 
appear. If it had been intended 
to give the sessions a general dis- 
cretion in all cases, it is impossible 
to suppose that this language would 
have been used. By the second 
section, the plaintiff might be com- 
mitted to gaol. By the fifth sec- 
tion, he might be hound to appear 
at the next quarter sessions; but 
in this case the party was nei- 
ther committed to gaol nor bound 
to appear at the next sessions. He 
paid the money. Therefore, it 
seems to us, that as the authority 
of the sessions was limited to those 
cases only, they had no power to 
make the order in question. The 
4 G. 4, c. 37, s. 3, (which is a 
legislative exposition of the former 
statute,) enacts, **that where » 
party subject to any fine, forfeited 
recognizance, &c. shall reside or 
shall have removed from or out of 
the jurisdiction of • the sheriff in 
which such fine, &c. shall have 
been incurred, &c. it shaU belawfiil 
for such sheriff to issue his war* 
rant, together with a copy of the 
writ, directed to the sheriff acting 
for the county or plaoe in which 
such person shall then reside or be^ 
or in which any goods or chattels 
shall be found, requiring such she- 
riff to execute such writ \ and th^ 


sberiflF wrongfully retained the money, unless he also wrong- 
fully received it, or retained it to his own use. In Haines 
V. HaytoHy the plaintiff was not committed and did not 
give the security. Here, the plaintiff did not pay the 
whole : 1/. 85. Id. only was paid instead of £0/., and the party 
was committed for non-payment of the residue. 

It is submitted that though the magistrates had jurisdic- 
tion, it was a limited jurisdiction, and they had no power to 
order the discharge of the plaintiff from the whole recogni- 
zance. As soon as the 1/. 85. Id. was paid, it was money 
had and received to the use of the crown, and ought to be 
paid over to the treasury. It was not competent to the ma< 
gistratea to arre^ the money and prevent its reaching the 
treasury. The magistrates having exceeded their authority 
in ordering a general discharge, their order, according to 
Haynes v. Hayton, was void. But supposing the Court of 
Quarter Sessions had power to discharge the plaintiff from 
the whole of the recognizance, even then the case does not 
become the same as if no recognizance had ever been exe* 
cuted, and no levy made. If so, the imprisonment would 
be a wrongful act, for which there is no justification. 

The sheriff must, at all events, withhold the money, sub- 
j)sct to the direction of the treasury. The course for the 
plaintiff to take should be either to present a memorial or a 
petition to the king. If this action is maintainable, the 

Raid sheriff, &c. within thirty days have received the same. " Ifthesbe- 

after the receipt of the warrant, is riff is to make that return, it shews 

required to return to the sheriff that the party had no power to go 

from whom he shaU have received to the sessions unless such secuii^ 

ihe same, what he shall have done were given; and as the sessions 

in the execution of such process, have power to award costs under 

and whether the party $hall have the fifth section of the 3 G. 4, c. 

ghen good and tufficient iecurity 4<S, that power would he nugatory 

to appeal at the enming general or unless the security were given. 

quarter sessions to he held for the Upon the whole we are of opinicA 

county from which the writ issued ; that the sessions had no power orer 

and in case a levy shall have heen the recognizance. The rule for a 

made, to pay over all monies re* new trial must therefiore be made 

oelved in pursnance of the warrant absolute, 
to the sheriff ftom whom he shall Rule abaohite. . 

Mauk, contra. Tbe justices bad jurisdiction to make 
^^^ the order for discharging the plaintiff from the recogni* 
zasce, and money had and received is the proper remedy. 
[Parke^J. The justices have an absolute discretion. It 
was competent to them to bate ordered the money to re*- 
nain in tbe hands of the sheriff to the U9e of tbe croitn.] 
The liability of the sheriff to the trown arises from the 
estreat, and that being doubtful, it stands as if no forfeiture 
had been incurred and no estreat made. Here be was 
stopped by tbe Court* 

Batlby, J., after adverting to the provisions of 3 Geo. 
^t c. 46, sect. ^, 5, and 6, proceeded as follows: — In 
Hoyuft V. Hayton the Court decided, that^ except in the 
two cases of commitment and security^ the justices at 
lessions bad no jurisdiction. The authority given is not a 
general but a limited authority. In this case tbe party has 
been committed. The sessions had, therefore, no donbt, 
^me jurisdiction. We must go on further and see whether 
soy limitation is imposed. It is quite clear that the justices 
were enUtled to take something into their consideration. 
It would be singular if the party were bound to seek his 



ing^l plaintiff might have sued tbe sheriff tbe very moment that 1829. 
/fj^ tie recognizance was discharged. [Bay ley, J, Must not 
gi the sheriff be served with an order? The sheriff cannot 
p3| ^ be accountable to the plaintiff until be has bad notice of 
1,^^,^ the discharge from the recognizance. That point, however, 

does not arise here ; tbe sheriff is not answerable to the 
^^ aown if the recognizance is discluirged by a competent 
^,jr' suthority.] There is no proof of notice oh the sheriff. 
^^, [Baykf,J. In this case the sheriff m6st have bad notice.] 
^^ It is not shewn that the defendant was authorised by 
.^.,; the treasury to return tbe money to the plaintiff; or that 
^|.j, be was actually discharged from the estreat. {Bayley^J. 

The statute does that. Parke, J. After tbe order, the sheriff 

ns Dot answerable to tbe crown.] 




discharge partly at the sessions and partly at the treasury; 
the statute uses the words *' paid or to be paid.*' They 
may therefore discharge money paid. But they have juris- 
diction over the whole matter. If the sheriff continued to be 
accountable to the treasury, he would clearly not be bound 
to pay the plaintiff. But the act says '^ that the Court of 
Quarter Sessions shall at its discretion be empowered to 
order the whole of the forfeited recognizance, or sum of 
money paid or to be paid in lieu or satisfaction thereof, or any 
part thereof, and such order shall be in the form or to the 
effect of the schedule marked (C.) to this act annexed." Then 
the order framed according to the form giveu by the act 
distinctly says that he is to be discharged as to the whole. 
Then the recognizance being out of the way the sheriff is 
not accountable to the treasury, but to the party. No tender 
having been pleaded, it is immaterial to consider whether 
the defendant was authorized to make a tender. 

LiTTLEDALEy J. — There does not seem to be any good 
reason why there should not be jurisdiction where the 
money has been paid. Here, however, the party is brought 
before the sessions, and therefore that Court has jurisdic- 
tion. The sessions are authorized not only to discharge 
the whole recognizance, but by express words that Court 
has jurisdiction over any part paid or not paid. The ques- 
tion is, whether the defendant is to pay to the treasury or 
to the plaintiff, the defendant having levied part of the 
money, and taken the party in execution for the remainder. 
The sheriff having levied part, would not make his payments 
into the Exchequer by piecemeal, but would wait to see 
what was done as to the residue (a). The sessions might 
not have discharged the plaintiff, who then would have been 
bound to pay the remainder. Here, the sheriff is forbidden 
to pay into the treasury. 

(a) But if the sheriff had to pass ration of the defendant, he woold 
bia accounts before any further be bound to account for so much tf 
sum was obtained by the incarcc- he had received. 


Pkymeut was demanded of the sheriflf, though I doubt 
\ili€ther any demand was necessary. It was the duty of the 
defendant to know what was doing at the sessions; knowing . 
that an order might be made, it was the defendant's duty to 
ascertain whether any order teas made. 



Parke^J. — lam of the same opinion. The plaintiff 
was brought before the sessions, and that Court had juris- 
diction to discharge in whole or in part. The defendant 
was originally bound to account to the Court for the sum 
which he had levied. But from this he was discharged by 
the order. It is not necessary to say whether any notice or 
demand was necessary. 

Rule absolute (a). 

(«) Since the pasdng of 3 G. 4, 
c. 46, the Court of Exchequer has 
ceased to have jurisdiction under 
4 G, 3, c. 10, or the standing writ 
of privy seal, (whereby the barons 
«e empowered to discharge, miti- 
gste, or compound forfeitures or 
penalties estreated into the Exche- 
quer from other courts,) over re- 
cognisances forfeited at quarter ses- 
BODi, whereof the yearly duplicate 
or certificate required by 3 G. 4, 
c 46, s. 14, has been delivered 
into that Court. Therefore, where 
• recognizance for appearing and 
pfeferring an indictment at sessions 
had been forfeited and certified into 
file Court of Quarter Sessions, and 
the forfeiture had been levied by 
the sheriff, the Court of Exche- 
quer Held, that they were not au- 
tiiorized to order the discharge of 
the Rcog;ni2ance, although the jus- 
tice of peace, before whom the re- 
cosoiance had been taken, had 
notcompfied wiUi the fourth sec- 
tim of the statute, by giving the 
y^ bound, notice of the time and 

place at which the sessions were 
holden, and although the party 
had unsuccessfully applied for re- 
lief at the ensuing sessions. Rex v. 
Hawkinty Macleland & Younge, 

An indictment for an assault had 
been traversed by the indictee, who 
with two sureties entered into a 
recognizance conditioned for his 
appearing, entering, and trying the 
traverses at the next sessions. The 
traverser gave the prosecutor no 
notice of trial before the next ses- 
sions, but moved there to respite 
the recognizances to the following 
sessions. The application was re- 
fused, and the recognizances were 
ordered to be estreated. A dis- 
tringas, fieri facias, and capias issued 
against the traverser and his sure- 
ties. On motion to bring in recog- 
nizances, estreats, and warrants 
into the Court of Exchequer, it was 
held, that inasmuch as the estreats 
were not returned into the Exche- 
quer, that Court had no jurisdic- 
tion, and that relief could be granted 




by the quarter teadons only. Rex 
y. Thompwn, 3 Tyrwh. 33. 

But where forfeited recognizances 
have in fact heen estreated into the 
Exchequer, that Court is not ousted 
of its jurisdiction by 3 G. 4, c. 46, 
or by 4 G. 4, c. 37, and such re- 

cognizances may be discharged or 
compounded by that Court aococd- 
ing to the circumstances of the 
particular case. PelloWf in re, 
13 Price, 299, S, C, per nomen Pel- 
lem, Ex parte, MadeUmd, Ul. 

Daubney^ Gent, one &c. v. Cooper and others. 

A conviction TRESPASS. Tbe declaration stated tbat the defendaoU 
tra^eT, ^poiT assaulted and beat the plaintiff, and forced him out of a 

aninforniaiion room called the Justice Room, in a certain inn called the 

under the • wt m.r t t* • • • 

game laws, is White Hart, at Market Raisin, in the county of Lincoln, 

ceedln^^at"^ '" which room the defendants, as justices &c., assigned 8u:., 
which all the were then holding a court of petty sessions, whereby the 
for whoro?here plaintiff was prevented from exercising, following and trans- 
is room, and acting his lawful and necessary business as an attorney ia 
there rests no ^he said room. Plea : not guilty. At the trial before 

special ground ^^^ Q^ J ^t the last Spring assizes for the county of 

for exclusion, ' . 

have a right to Lincoln, the following facts appeared: 

be present. ^^ information, under 5 Ann, c. 14, was laid against 

James Preston, for using a gun to kill game, not being qua- 
lified. Preston requested the plaintiff, who is an attorney, 
to appear for him upon the information. Upon the plain- 
tiff's presenting himself accordingly, at the petty sessions, 
he was informed by the magistrates that it was their rule 
not to admit attorneys, and that therefore he would not be 
allowed to appear for Preston. The plaintiff withdrew, 
but no conviction took place. Another information was 
afterwards laid against Preston^ upon a similar charge, for 
an offence alleged to have been committed on the Sd Janu* 
ary, 1828, On 14th February, Preston was summoned to 
appear on this information on the 18th. Preston again 
employed the plaintiff to appear for him, and did not him- 
self attend tbe sessions. The plaintiff again presented 
himself at the justice room, at Market Raisin, at the time 


lod place oq which the sumoions was retaniable. The 1889. 
defendant. Cooper, who was one of the magistrates present, 
being infonned that the plaintiff attended on behalf of 
PreUott, told him that the magistrates had resolved not to 
aHow an attorney to appear for parties summoned before 
them, and desired him to leave the room. The plaintiff 
insisting upon his right as an attorney, to appear for PreS" 
Urn, opoo the information, refused to leave the room ; upon 
vhich Cooper directed the constable to remove him, which 
ns accordingly done. It was urged on the part of the 
defendants, that the plaintiff bad no right to insist upon 
attending before the magistrates as an attorney for the de- 
fendant in the information; that this was a sufficient justi- 
icition for the defendants, — who were proved to be magis-' 
Iratea, — upon the general issue, under 7 Jac. 1, c. 5. A ver*' 
diet was entered by consent, for U. damages, against all 
tbe defendants, leave being reserved to them to move to 
enter a nonsuit. A rule nisi having been obtained accord-* 
inglj, in Easter term, 

Demnan now shewed cause. The question to be con- Dec. 15, 1829* 
iidered is, whether, upon the evidence given at the trial, 
the learned judge ought to have nonsuited tbe plaintiff. 
I am not disposed to inquire whether the objection could 
be raised on the general issue. [Bayletf, J. Were they 
attending at tbe Petiy Sessiom?"] Tbey were. An attor- 
ney has generally a right to be present during the proceed- 
ins^ against his client (a), Gilman v. Wright (A). In The 
Quern V. Simp$on{c)t whch was a case of deer-stealing, it 
vas held that a party duly summoned might be convicted 
in his absence. As in the case of deer-stealing, Preslon was 

(«) March, 141, pi. S14, where ron for refusing to suffer a defend- 

the Cooit said, " that an attorney ant to put in any otheratcorney than 

at common law is an attorney in one of the attorneys of that Court, 
em; inferior Court, and therefore (6) 1 Ventris, 1 1 ; 3 Keble, 477; 

ooglit not to be refused," and emit' 1 Siderf. 410. 
mitUi the steward of a Court Ba- (c) 10 Mod. 344; 1 Stra. 44. 




not bound to appear in person (a). [Liitledale^J. The mv* 
gistrates had authority to issue the usual summons.] llie 
magistrates may convict in the absence of the party charged; 
it is a privilege belonging to the attorneys of the superior 
courts to be entitled to practise in any inferior court. 

The Statute Westm. 2, c. 10, was cited at the trial as an 
authority for the defendants, but it appears on the contrary 
to establish the plaintiff's right to appear for his client. 
In jRex V. A. B. and C. £)., Justices of Staffordshire {b). 
Bay ley, J. is reported to have said, ** an attorney in all 
events has no right to appear." Rex v. A. jB. and C. D., 
Justices of Staffordshire^ was cited in the argument of 
Cox V. Coleridge (c); but in the latter case Bay ley, J. dis- 
claimed being bound by the obiter dictum which he is re- 
ported to have used on the former occasion. The decision 
in Cox v. Coleridge proceeded on the ground that what 
had taken place before the magistrates, was merely a preli- 
minary inquiry (<i). The decision proceeded entirely upon 
that ground. The Court pointed out the inconvenience 
which would result from giving publicity to such previous 
inquiry. [Bay ley, J. I believe that in that case a distinc- 
tion was taken between a preliminary inquiry and an 
inquiry upon which there may be a conviction.'] Lord 
Tenterden there says {e), " This being only a preliminary 
inquiry, and not a trialy makes, in my mind, all the diffe- 
rence.*' The question here is, whether the proceeding 
before these defendants was not a trial, and whether 

(fl) Vide Rex v. Hall, 6 Dowl. 
& Ryl. 843; Rex y. Commins, 8 
Dowl. & Ryl. 344. 

{b) 1 Chit. Rep. 219. And see 
the notes to that case. 

(c) 1 B. & C.37, 2 D. & R. 86. 

Id) But see Rex v. Whately, 
ante, iv. 437 n., 438 n., and the 
observations there made upon the 
eircumstance, that in Cor v. Cole^ 
ridge, the attention of the Court 
does not appear to have been 

drawn to the cases in which it has 
been held, that if a witness eza- 
mined under 1 & 9 P. 4^ Af. c. 13, 
and 2 & 3 P. 4-. Af. c. 10, die 
before the trial of the felony, bis 
examination may be received iu 
evidence against the prisoner, he- 
caute the prisoner had an opportu- 
nity of cross-eiamining him. And 
see Hale, P. C. 262, «63 ; Sir Tbo. 
Jones, 53; Kelynge, 18. 
(e) t Bam. & Cress%v. 50. 


k was necessary, for the purposes of justice, that the 
defendants should have such professional assistance as he 
deemed it expedient to engage and employ. Was the 
plaiotiff lawfully present i He might be there for several 
lawful purposes; one such purpose might be to state an 
acute for the non-appearance of his client upon the sum- 
mons. He might plead guilty, and pay the amount of the 
penalty instanter, for the purpose of avoiding an execution; 
be might plead not guilty^ and examine witnesses to esta-' 
Ush a lawful defence. Much injustice might be done, if 
tbe party were liable to be convicted without being heard 
through the person whom he had employed to appear for 
kim. It is said that as the party was not present, he had 
10 right to appear by attorney, even assuming that if he 
bad himself attended, he might have had his attorney by his 
tide. Upon further consideration, the circumstance of the 
absence of the party charged, will be found to strengthen 
the argument in favour of the right of his attorney to appear. 
He can never be in a worse situation, as to the right of 
being represented, by not being able to attend in person* 
[ParkeyJ. There is a third question not touched upon, 
namely, whether the plaintiff was entitled to be present as* 
one of the king's subjects.] In Garnett v. Ferrand (a), 
which was the case of the coroner, that defence was pleaded 
specially. [Bay ley j J. The coroner's court is a court of 
preliminary inquiry {b),] In this case, the nature of the in- 
quiry which was going on at the sessions, was not perhaps 
much considered. The justices were judges of record, 
sitting in judgment upon the question, whether the then 
defendant had incurred a forfeiture or not, — and their judg- 
ment was not traversable. 



Fynes Clinton, on the same side. Cox v. Coleridge is an 

(a) 6 Bam. & Cressw. 611, and 
9 Dowl. & Ryl. 657. 

(h) The decision however pro- 
ceeded on the s^round that no ac- 

tion lies against a judge of a court > 
of record, for an act done in his 
judicial ctLpfkchy, In the present 
case that poini was not raised. 





autborifj for the plaintiff. IParke, J. The decision in 
Cox V. Coleridge turoed upon its being a case of prelimi- 
nary inquiry. The other point was not decided either one 
way or the other.] The first point to be considered is, 
whether a party brought before magistrates, upon a charge 
in a case in which the magistrates have power to convict, 
is entitled to professional assistance ; the second point is, 
whether, when the party charged is absetH, it is competent 
to him to depute another person to appear for him. The 
cases which have been cited appear to leave no doubt upon 
that point. Under 5 Jnn. c. 14, the party may, upon 
proof of service of the summons, be convicted, though he 
do not appear (a). Suppose the case of a person duly sum- 
moned and unable to attend, it would be a great hardship 
and injustice to exclude the defence which his attorney was 
ready to make for him. The mode in which attorneys were 
formerly appointed, rests in much obscurity; 2 Inst. 376* 
IParke, J. Are there any statutes authorizing the appoint- 
ment of attorneys in all sorts of actions i Bayley^ J. A 
deaf and dumb person may appoint an attorney in all ac- 
tions.] There are many cases at common law in which a 
man may appoint an attorney to appear for him ; F. N. B. 
156. This, however, appears to be mere matter of anti- 
quarian research. The general inference of law is, that in 
all inferior coiu-ts the attorneys of the superior courts are 
entitled to appear. In most courts of requests acts, a 
clause is introduced to exclude attorneys* The object of 
this clause is to avoid expensive costs. The exclusion may 
be considered as a legislative recognition of the rights 
[Parke, J. That does not follow. The attendance before 
courts of requests, which the legislature thought it right to 
prevent, may, in the absence of such a legislative power, 
have been matter of right or matter of favour only. Such 
an enactment may have been necessary for the purpose of 
excluding an admission of the attorney by favour. It can 

(a) The Queen ▼. Simpion, 10 
Mod. 345; Res v. Hmii, 6 Dowl. 

& Ayl. 84; Rex v. Cmmmh 8 
Dowl. k Ryl. 344. 


hardly be said that the petty sessions were not a rotfit.] 
The petty sessions did not exist at the time when this statute 
passed. The lirst acts empowering to convict by summary 
jurisdiction, passed in the reign of Charles 2. \^Bayley, J. 
The statute of Anne does not require that the conviction 
should take place at the petty sessions.] Every magistrate 
acting under that statute is a judge, and the room in which 
he sits is a court. It cannot be contended that a man may 
be coKcicted of a misdemeanor iu private* The power 
entrusted to the magistrates by the statute, is in derogation 
of the common law, and at variance with all the princi- 
ples of that law. This makes it the more necessary to 
adhere to rules of the common law in every particular not 
expressly taken away; more especially when it is considered. 
that under some of these statutes the magistrates have 
power, upon conviction, to inflict two years* imprisonment. 
[Byky, J. The Court cannot look into the question of 
more or less jurisdiction.] A party summoned to appear 
before magistrates on such a charge, ought to have the 
nine means of defending himself as in any other Court. 
The question is, whether, when called upon to make his 
defence, a party charged with such an offence is not entitled 
to professional assistance. [Parke, J. And to see what is 
proved against him.] In cases of misdemeanor, the de- 
fendant may be convicted without being present. The 
defence may be conducted by counsel, or where no counsel 
is employed^ by an attorney, not qui attorney, but as an 
advocate, as in criminal proceedings there is no attorney on 
the record, [ficry/ey, J. How would you draw up the con- 
viction ?] The conviction might set out the fact specially, 
or state the appearance of the defendant generally. In the 
crown office it is not necessary that any appearance should 
be entered; the attorney merely goes to the crown oflice 
and enters the defendant's plea. There is no statute en- 
abling such defendant to appear by attorney. As far as 
appears by the record in the crown office, the defendant 
nay have been in Court the whole time. The plaintiff may 




1889J have come for the purpose of stating his client*s inability/ 
by reason of sickness, to attend. By this statute, if the 
money is not paid immediately, the justices are to imprison 
CoopBn. ^|jg defendant for three months, and they have no power to 
relieve against such imprisonment, although the money be 
paid on the very next day. It appears from GlanviiU, that 
at common law the defendant in a real action might send 
4xnif person to excuse his non-attendance {a). In Cox v. 
Cokridge{b)j Abbott, C.J. says, *'The nature of the pro- 
ceedings also shews that this cannot be demanded properly 
as a right. What is it? It is only a pre/tmi/iary inquiry^ — 
whether there is sufficient ground to commit the prisoner 
for trial." Holroyd, J. says(c), ** A magistrate, in cases like 
the present, does not act as a court of justice. He is only 
an officer deputed by the law to enter into a preliminary 
inquiry" Best, J. 8ays(d), *' So far was this examination 
(under 2 & 3 Phil. 4r Mary, c. 10,) from being a judicial 
inquiry, which means an inquiry in order to decide on the 
guilt or innocence of the prisoner, &c/' Here, the proceed- 
ing was an inquiry to decide on the guilt or innocence of the 
party. Even where the evidence is set out upon the face 
of the conviction, it is not competent to the party convicted 
to raise any question as to the character or the credibility 
of the witnesses. The justices perform the functions of a 
jury, but their decisions are not, like those of a jury, subject 
to revision. In modern acts of parliament, a summary 
form of conviction is commonly given, which by excluding 
all mention of the evidence upon which the justices pro- 
ceed, renders the correction of any improper decision still 
more difficult; and when the grossest errors in law are 
committed, it is almost impossible to set the matter right. 
Garnett v. Ferrand{e) decided nothing more than this,— 
that a coroner being a judge of an ancient court of record, 

(a) And see Com. Dig. Exoine, (d) Ibid. 53, r*4. 

(B. 4.) (e) 9 Dowl. & Ryl. 657, aud 6 

(6) 1 Bam. & Cressw. 49, 50. Barn. & Cressw. Oil. 
(f> Ibid. 51, 52. 


00 action lies against him for an act done in his judicial 
capacity. Assuming that his conduct has been as corrupt 
as po!»8ibIe, no action lies, — the remedy, or rather the punish- 
ment, must be by a criminal prosecution. Ganiett v. Fer^ 
rW is in effect an authority for the plaintiff, as shewing 
that this defendant had no power to exclude him. It was 
coDleuded there that the coroner's court was a court in 
which Bideodand might be forfeited; but the answer given(£r) 
is conclusive, namely, that the inquest is traversable in every 
particular. [Farke, J. I do not consider that the Court 
decided that. The judgment of the Court in Garnett v.' 
Ferrand proceeded on the ground, that the judge of a Court 
of record must be invested with a discretionary power, and 
that the exercise of his discretion cannot be made the sub- 
ject of inquiry in an action of trespass,] 

Adams, Serjt., in support of the rule. It may be matter 
of regret that the question intended to be raised by th/e 
parties cannot properly be raised in this action. It is a 
question which has created a great deal of agitation in the 
country, but the point cannot be decided upon this motion. 
If any doubt existed as to the conduct of the plaintiff, the 
case might go to a new trial. IBayteif, J. Upon the evi- 
dence, there is no ground for saying that the plaintiff mis- 
conducted himself] The question is, whether a party can, 
without any cause being assigned, appear before justices by 
attorney. At common law, every man was bound to appear 
in person, and not by attorney; Beecher's case (A), 2 Inst. 
249, 377, 378; F. N. B, 25; Page v. Tnlse(c), Tidd, 
9% n.(c2). By 6 Geo, £, c. 27, s. 2, any person admitted an 
attorney in any of his majesty's Courts of record at West- 
minster, is made capable of being admitted to practise as 
an attorney in any inferior court of record^ " provided such 
person be in all other respects capable and quali6ed to be 
admitted an attorney, according to the usage and custom of 

(a) 6 Barn. & Cressw. 616. 
W 8Co. Rep. 68. 
▼OL. V. 

(c) S Mod. 83. 

(d) 9tb edition. 






such inferior court" This enactment is extremely im- 
portant^ as regulating the admission of attorneys in inferior 
courts. They are to be Courts of record ; but the pettj 
sessions is not a Court of record. An attoniey can only be 
appointed by matter of record. [Parke, J. What do you 
say to the court-baron?] Even in criminal proceedings an 
attorney may be appointed in all cases below treason and 
felony^ but this is by the indulgence of the Court; Bac, 
Abr, tit. Attorney^ B. [Clinton* That is because the in- 
dictee is under recognizance to appear in person."] Here, 
the public has no security for the appearance of the party 
charged, which makes this case stronger than where a recog- 
nizance has been entered into. This is a much graver 
offence than many cases of misdemeanor; yet in cases of 
misdemeanor, the indictee must appear in persou, unless 
he is out upon bail. Here, no bail is given. [Bayley, J. 
Suppose you convict the party, what can you do? In 
cases of misdemeanor the defendant, upon conviction, is 
liable to immediate imprisonment.] It is submitted that 
the distinction cannot be taken between cases in which the 
proceeding is against the person, and where it is against 
the goods. Upon conviction for a misdemeanor in dis- 
turbing a meeting-house, there is no power whatever to 
proceed against the person ; the sentence is limited to the 
imposition of a penaltyof 20/. (a). It is true that in the pre- 
sent case the conviction is final. But that circumstance can- 
not form a ground of distinction. This is the only case in 
which a case may be brought directly into this Court, with- 
out going through the sessions. [Bayley, J. Now sup- 
posing there had been a right to appeaPto the sessions in 
this case, how would the party have known whether he 
had any ground for appealing ?] The evidence is set out, 
and appears upon the face of the conviction. [Parht, J. 
Suppose the party could not write, and that he wished to 
indict witnesses who had given false evidence against him? 
Bayley, J. If the party charged is not bound to attend 
personally f why should he not be allowed to appear by an 
(a) Toleration Act, \ W. ^ M, sess. 1, c. 18, s. 18. 


attorney f] It is not contended that this is not a public 
court [Parke, J. There are two statutes of Elizabeth 
atttboriziDg the appearance of defendants by attorney to 
answer informations on penal statutes (c/). The defend- 
ants seem to have considered, that if the party charged was 
Bot entitled to appoint an attorney, they had a right to turn 
the plaintiff out of the justice-room. Does that follow ?] 

Gintlburfi, Serjt. on the same side. The first point to 
be decided is^ whether a party summoned to appear before 
magistrates is entitled to attend accompanied by an attor- 
^J' The next point is, whether, supposing him to be 
eotided to the assistance of an attorney, when he is himself 
present, he can refuse to appear in person, and send an. 
attorney in his stead. In Hex v. Justices of Siaffordshire{b), 
this Court held that an attorney has no right to be present 
OB the hearing of an information of$ the game laws* But it 
^ said that the rule laid down in Cox v. Coleridge, and in 
Ferraml v. Garnett, applies only to cases of preliminary 
inquiry. The reasoning of the judges in those cases is not 
confined to that narrow point Lord Tenterden\ judgment 
in particular proceeds upon general principles. Though 
the act here complained of was done at petty sessions, it 

(a) By 29 Elix. c. 5, s. 91, after 
reciting that ** divers her majesty's 
kmog sabjects, • dwelling in the 
itnoce parts of this realm, are 
many times maliciously troubled, 
QpoD informations and suits exhi- 
bited in the Courts of K. B., C. P. 
snd Eicbeqaer, upon penal sta- 
Co(es,and are drawn up upon pro- 
cess out of the counties where they 
dwell, and desire to attend and put 
ia bul, to their great trouble and 
ondoiDg^'' it is provided and en- 
acted, « that if any person or per- 
Mos shall be sued or informed 
>g^Dsty opoo any penal law, in 
aoj of the several Courts of K. B., 

C. P., or Exchequer, where such 
person or persons are bailable by 
law, or where by leave or favour of 
the Court such person or persons, 
so to be impleaded or sued, shall 
and may, at the day and time con- 
tained in the first process served 
for his appearance, appear by at* 
torney of the same Court where the 
process is returnable, to answer 
and defend the same, and not be 
urged to personal appearance, or 
to put in bail for the answering 
such suit." By 31 FMm, c. 10, 
s. so, this indulgence is limited to 
natural-bom subjects and denizens. 
(b) Supri,S16. 





Y 2 





ivas not done by them as sitting in petty sessions* Thtf 
question therefore is simply whether, when parties are 
summoned to appear before a justice of the peace, any 
person may come in and say that he is sent by the party 
summoned to appear in his stead. [Bayley^ J. At present, 
I am disposed to think that this was a court at which every 
person had a right to be present* It is very desirable that 
the public should see what is passing in Courts of Justice. 
Parkej J. Especially where the same person is performing 
the functions of judge and jury.] 

Cur. adv. vult. 

On a subsequent day, the judgment of the Court was 
delivered to the following effect, by 

Bayley, J. — ^The Court has already intimated an opi- 
uion upon the right of the public to attend upon the hear- 
ing of an information before magistrates, under a penal 
statute, and after having had an opportunity of giving far- 
ther consideration to the subject, and of conferring with 
Lord Tenterden, we adhere to the opinion which in the 
course of the argument we threw out. One of the ques- 
tions which the parties were desirous of agitating was— 
whether, upon a summary conviction under the game laws, 
the party informed against had a right to appear by attorney. 
In this case the party himself was not present, but he in- 
sisted upon a right to appear by his attorney. We do not 
think it at all necessary to give any opinion upon that point. 
Whether it may be matter of right, whether it may be mat- 
ter of indulgence or not, or whether the magistrates have or 
have not a right to exercise a discretion upon that subject, 
are questions upon which we say nothing (a). The ground 
upon which our opinion is formed in the present case is, 
that the magistrates were proceeding in a case of summary 
conviction, and therefore exercising a judicial authority, 
constituting a court of justice for that purpose; and we 
are of opinion that it is one of the essential qualities of a 

(a) Vide CoOkr v. Hicks, 2 Bam. & AdoU 663. 


court of justice, that its proceedings should be public/ and 1899. 
that all parties who are desirous of hearing what is going 
on have a right to be present, provided there be sufficient 
room for them, that no interruption is offered to the pro- 
ceedings, and that no specific reason exists for their exclu- 
sion. Here, the defendant Cooper, and without any offence 
given by the plaintiff, ordered him to be turned out of the 
room. The plaintiff had come into the room as the friend 
of Preston, the party charged, but was entitled to be there 
as one of the public. As the friend of Preston, he might 
be desirous of knowing by what witnesses and by what 
evidence the information was supported; and it might be 
of great importance to Preston, with a view of ulterior pro- 
ceedingSy if the witnesses misconducted themselves and 
stated what was not true. Preston should have the oppor- 
tunity of knowing what had been proved against him, and 
of calling the witnesses to account for that misconduct. 
Tbe point which we decide is, that the magistrates, in the 
exercise of their duty, in summarily convicting, are a species 
of court, and exercise a judicial function, and that on this 
ground their proceedings ought not to be private, but pub- 
lic; and that therefore the removal of the plaintiff was not 
warranted. Cooper being the only defendant who inter- 
fered in turning the plaintiff out of the room, in which trans- 
action the other defendants took no part, the verdict ought 
to stand against Cooper only; and a verdict ought to be 
entered in favour of the other two defendants. 

Postea to the plaintiff (a). 

(•) The verdict in thif case be- been obtained on behalf of the ^" tretpass for 

ing onder 40t., nnd ihc learned plaintiff, calling upon the Master pfiinliff o^t ©f 

jtidi^e befort* whom this cause was to review his taxation, ■ mom per 

tried not having certified under Adnmt, Serjt., in shewing canse, <J""<* '"* TJ* 

ttk 23 Car. 2, c. 9, s. 136. the relied u|K>n the 29 & 93 Car. 9, J.^^J'^i^ j,™" 

faster refused to allow ihe plain- c. 9, s. 136, which enacts, '' that in boftineM of an 

tiffany further costs than U., that all actions of trespass, assault and f"*JJT[J ^^\^ 

l^eing the amount of the danuiges battery, and other personal ac- iiffobMiina^Ter- 

foand bt the jorv. A rule bavins tions, wbereia the judge at the diet for lets 

^ ^ than 401. be is 

not entitled to full costs without a judge's certificate, under t9 & f5 Cor. 2, c. 9» s. 136L 




trial of the cause shall not find 
and certify under his hand, on the 
back of the record, that an assault 
and battery was sufficiently proved 
by the plaintiff against the defend- 
ant, or that the freehold or title of 
the land mentioned in the plain- 
tiff's declaration was chiefly in 
question, the plaintiff in such ac- 
tion, in case the jury shall find the 
damages to be under the value of 
40s., shall not recover or obtain 
more costs of suit than the da- 
mages so found shall amount to; 
and if any more costs in any such 
acuon shall be awarded, the judg- 
ment shall be void, and the de- 
fendant is hereby acquitted of and 
from the same, and may have his 
action against the plaintiff for such 
vexatious suit, and recover his 
damages and costs of such his suit, 
in any of the said Courts of record." 
Denman and Clinton^ contr^ 
The plaintiff is entitled to full costs. 
The action was brought not for the 
assault and battery only, but also 
for preventing the plaintiff from 
exercising his profession. [Bay- 
lefff J. That is only laid as a con- 
seguential damage.] Where the 
consequential damage would of it- 
self support an action, the plaintiff 
is entitled to full costs without any 
certificate. In Anderton ▼. Buck- 
ton, 1 Stra. 19?, which was an 
action of trespass, for entering with 
diseased cattle upon the plaintiff's 
land, whereby his cattle were in- 
fected, upon not guilty pleaded, a 
verdict was found for the plaintiff, 
damages SOf., and it was said by 
the Court, "The true distinction 
is, where the matter all^d by 
way of aggravation, will entitle the 
party to a dittinct uititfactum^ he 
is entitled to fuU costs.'' In Car- 

ruthert v. Lamb, Barnes, 120, 
which was trespass for an assault 
and tearing the plaintiff's clothes, 
it was held that the plaintiff was 
entitled to full costs, although the 
damages were under 40t. • 

Lord TenUrden, C. J.— In Car- 
ruthert v. Lamh^ the tearing of the 
clothes was laid as a distinct tres- 
pass, and not as an aggravation of 
the assault. I certainly was not 
aware of the case of Anderson v. 
Bucktofiy nor can I consider it as 
good law. It has never been acted 
upon or referred to in modefv 
books of practice. (But see Hall. 
Costs, 2d ed. 7 1 .) There is hardly 
any action of trespass without a 
per quod the plaintiff was put to 
expense, Ice. &c. The general 
opinion has been, that if the con- 
sequential damage is laid as an 
aggravation of the trespass, and 
the verdict is under 40s., the plain- 
tiff can recover no more costs thaa 
damages, and in that opinion I 
fully concur. 

Bayley, J.— Where less dian 
40f. damages are found in actions 
for slander with special damages, 
and the words are actionable in 
themselves, and the damages are 
less than 4O5., the plaintiff cannot 
recover more costs than damages, 
but if the words are actionable 
only in respect of the special da- 
mage, the plaintiff is entitied to 
full costs. So in an action for a 
trespass accompanied with special 
damage, if the verdict be under 
40«. the costs cannot exceed the 
amount of the damages found by 
the verdict. 

IMikdaUj J. concurred, and re- 
ferrtsd to Bannuter v. Yuker, \ 
Taunt. 357. 

Rule discharged. 



Power and another. Assignees of Fulton, v. Butcher ^^^s/'m^ 
and Capet. 

Assumpsit, upon an indebitatus to Fulion before By the custom 
his bankruptcy for work and labour, in making out policies premiums of 

of insurance and effecting insurances, — for money paid for ^"'"fance are 

® . . matters of ac- 

premiums, — and for money due to Fulton in respect of his count between 

having underwritten and procured to be underwrit tea divers [gr and^the"" 

policies of insurance for the defendants. The declaration broker, and 

ilso contained counts for premiums paid fdr insurances, broker and the 

for work and labour, for money paid, for money had and assured, with- 

out any privity 
received, and upon an account stated with Fulion before between the 

his bankruptcy. wsurtjd and 

■^ •' .^ the underwn- 

Both the defendants pleaded the general issue. ter. The bro- 

Bu/cAer (a) pleaded further, that in Easter term, 1827, the fore^a^cUi^ 

phindffs impleaded him on the same causes of action; that upon the as- 

in Trinity term, 1827, he pleaded the general issue in that amount of the 

action: that in the same term he obtained a rule to pay 5/. 15s. P"*™"™ as 

loto Court; that this sum was accordmgly paid mto Court; policy is eflfect- 

that under that rule the plaintiffs* cosU were taxed at h^i ^^^^d^^^he® 

8/1 OS. &/.; that the plaintiffs agreed with Butcher to take underwriter or 

the 5/. 15s. out of Court under the rule; that Butcher paid J^heihwfhe 

the 8/. 5$. 6J. costs to the plaintiffs, who accepted and re- underwriter 

cehed of Butcher the 51. 15s. and 8/. 5s. 6d. costs, in satis- policy ,^con* 

faction and discharge of the causes of action mentioned in the ^^^^ the pre- 

o ^ -^ mmm to be 

declaration in that cause. Averment : that the causes of paid ; or has 

action are the same, and that the money now sought to be **^®° r^% ^?' 
' ^ •' ^ ® venant of the 

recovered might have been recovered in the former action, broker to pay 
Replication: that the plaintiffs did not agree to take *^'in assump- 

sit, the de- 
(c) It would seem that both the action Butcher was the only party fendant pays 
tldeodants might have joined in sued, the cause of action would be money into 
this pica; for though in the former discbaiiged, if at all, against both, Court, and the 

to take the iDoney and his costs. The costs are taxed, and paid by the defendant and 
nioeiredby the plaintilf. The plaintiff, altering his mind, does not take the money out of 
Court, aad offers to return the costs, which the defendant refuses to take. The plaintiff 
<iiKootinoes the action, and the costs of the discontinuance are taxed and paid to the 
defendant. These facts will not support a plea in another action for the same demand, 
alleging that the plaintiff received tne money paid into Court, and the costs, in full dis- 
cha^e of the cause of action. 




, Butcher 
and Capet. 


the said 5/. 15s. out of Court under the rule, and did 
not accept and receive the 5L 15s. with the costs io 
satisfaction and discharge of the causes of action mentioned 
in the said declaration. At the trial before Lord Ttiiterden, 
C. J.y at the sittings at Guildhall after Michaelmas term, 
1828, a verdict was taken for the plaintifls, subject to the 
opinion of this Court upon the following case: — 

Fulton, an insurance-broker, carrying on business at 
Lloyd's coffee-house, was employed by the defendants to 
effect, and did effect for them, policies of insurance, at the 
premiums mentioned in the following account: — 

October 22, 1825, losiiniice 

November 2, 
November 14, 


£. «. 

£. 1. 


Huotcliffe at 

12 .. 




2 5.. 
12 .. 

13 10 

Jalius Cesar 





I 5 


St. Lawrence 

1 10 .. 

4 10 


Fame . 

1 10 .. 

7 10 

The policies, which are under the seals of two directors 
of, and were effected by Fulton with, the Indemnity Mutual 
Marine Assurance Company, recited that Fulton, upon his 
representing that he was interested in, or duly authorized as 
owner, agent, or otherwise, to make assurance upon, the 
vessels mentioned in each policy, and desirous of making 
such assurance, had covenanted with the Company to pa; 
them the premiums. The names of the defendants do not 
appear in the policies. . Fulton, who was a member of the 
Company, paid the Company I/. 5s. and 4/. 10s. in respect 
of the policies of 100/. on the Fame and of 300/. on the St. 
Lawrence, but has not paid any of the other premiums. 
The defendants never were members of the Company. 

The commission in respect of the policies amounts to 
31/. Is., which Fulton would have been entitled to deduct 
and retain from the premiums. 

In 1826, the plaintiffs being ignorant of the joint liabi- 
lity of Capets commenced an action for the amount of the 
premiums against Butcher alone. 

Trinity term, 1826, Butcher pleaded the general issue. 

find Capct. 


Ist June, 1826, Butcher paid 51. Ids., the amount of the i82P. 
premiums of the Fame and of the St. Lawrence, into Court, ^^^>^^^^ 
nodcr the recent rule. The plaintiffs' costs, up to the time ^^^" 
of paying the money into Court, were taxed at 8/. as. 6d. Butchek 

2d June, 1826, the plaintiffs received their taxed costs 
aforesaid, but the money paid into Court was not, though 
it might at any time afterwards have been, taken out of 
Court by the plaintiffs. 

Sd January, 1828, the plaintiffs' attorneys gave notice to 
Bellf {Butcher* s attorney,) that he would not take the sum 
of 5/. 15s. out of Court, but that he should take out a rule 
to discontinue on payment of costs ; and at the same time 
left at Belfs office 8/. 5$. 6d., which had been received as 
before mentioned, as the costs incurred by the plaintiffs up 
to the time of paying money into Court, but which Bell 
refused to accept as a repayment of the said costs* 

Ist February, 1828, a rule was taken out by the plaintiffs 
to discontinue the action against Butcher on payment of 
costs. A copy of this rule was served on Bell with three 
appointments to tax; Betl not attending these appointments^ 
the master marked the costs of such defaults at 3s. 4d. 

2d February, 1828, the plaintiffs' attorneys received from 
Bell the following note: — 

''Gentlemen, — Mr. Bell will feel obliged by your letting 
the appointment to tax tliese costs stand over till after the 
term, he being very busy now." 

To this proposal the plaintiffs' attorneys assented, and in 
May following Bell delivered to the plaintiffs' attorneys a 
bill of costs from the beginning of the action, as upon a 
rule to discontinue. This bill amounted to 18/. 12^. 4d. 
From this l6s. Bd. was deducted on taxation, which taxation 
Bell attended, and the balance was on the ISth May paid 
to Bell by the plaintiffs* attorneys. 

The Company knew soon after the bankruptcy of Fulton^ 
diat the policies had been effected by him on behalf of the 
defendants, and proposed that the defendants should pay 
the premiums remaining due. 




and Capet. 


The question for the opinion of the Court is, whether' 
the plaintiffs arc entitled to recover the whole or any pari 
of the 621/. I0s.(a) 

R. F. Richards, for the plaintiffs. In this case two 
questions arise : £rsty whether the plaintiffs would be entU 
tied to recover, supposing the former action had not beetf 
brought: and if so, secondly, whether the proceedings id 
the action against Butcher are a bar to the present action 

This action is brought in form by the assignees of aii^ 
insurance-broker, but in substance it is the same as if \h& 
broker himself were the litigating party. An insurance- 
broker may sue the assured for the amount of the pre* 
miums, although he may not have paid those premiums to j 
the underwriter, according to the practice at LloycFs. The i 
present case, however, differs from the common form. 
Here the contract is under seal, and contains no direct ac- 
knowledgment of the payment of the premiums, but a 
covenant is taken from the broker that he will pay the pre- 
miums. In Dalzell v. Mair{b) it was held, that in an 
action by the assured against an underwriter for a ritum of 
the premium, the policy, whereby the underwriters confessed 
themselves paid the consideration due unto them for that 
assurance by the assured, was conclusive evidence of the 
receipt of the premium by the defendant. That case, it 
must be admitted, differs from the present, as there can be 
no estoppel here arising out of conclusive evidence of pay- 
ment Lord Ellenboroughy however, in giving judgment, 
says, '' it is well known that there are running accounts 
kept between the insurance-broker and the underwriter; 

(a) At the conclusion of the 
case it was stated that it had been 
agreed '^ that the Court should be 
at liberty to draw aay conclosion 
from the facts stated, which a jury 
ought to have drawn/' The Court 
always has this power upon a spe- 
cial cote, though it is otherwise upon 

a special verdict. But the Court 
has, of late, frequently said that 
conclusions of fact ought to be 
stated in special cases, and that 
they ought not to be called upos 
to decide both on the law and tb« 
(6) 1 Campb. 532. 



and Lord Kenyon held that the former^ before paying the 
premiams to the latter, might maintain an action against 
the assured to recover the amount of them as for money v. 

paid:' In Airyv. Bland {a). Lord Mansfield MovieA the ^JJcrpw. 
assignees of a broker to recover premiums which the latter 
bad not paid. The opinion of Lord Ellenborough in Da/- 
zell V. Mair, and that of Lord Mansfield hi Airy v. Bland, 
are decisive to shew that if no covenant had been taken in 
diis case, the defendants would have been liable to pay the 
premiums to the bankrupt. It is evident how the differ- 
ence arises between the case of premiums of insurance and 
other cases where no action for money paid will lie without 
proof of actual payment. It will be said that the differ- 
ence arises from the recital of the payment contained in 
the policy, but in an action against the assured they would 
not be bound by the acknowledgment made by the under- 
writer. The true ground of distinction is this, that the 
insurance-broker is the agent of both parties; in respect of 
the premium he is the agent of the underwriter. In Minett 
and another, assignees of Barchardv. Forrester {b). Sir James 
Man^U in delivering the judgment of the Court, says, 
" The broker is agent for the assured, and also for the un- 
derwriter; he is agent for the assured, first, in effecting the 
policy, and in every thing that is done in consequence of it; 
then he is agent for the underwriter as to the premium, but 
for nothmg else; and he is supposed to receive the premium 
from the insured for the benefit of the underwriter, but 
the whole account with respect to the premium after the 
insurance is effected, remains a clear and distinct account 
between the underwriter and broker. Exclusive of fraud 
and other similar circumstances, there is an end of every 
thing with respect to the premium, I mean between the in- 
surer and the insured. The insurer, with respect to the 
insured, is supposed to have received the premium; the 
broker in fact gives the underwriter credit for it in his books^ 
and the underwriter debits the broker for the amount of 

(a) Mareb« Insurance, 309. (6) 4 TaunL 541 n. 




1899. the premium in his books, and there is a running account 
between them.'' If the Court should hold that the practice at 
LloytTs, in the cases cited, ought to be discontinued, a diiB- 
BuTCHER culty would arise to the underwriter in obtaining payment! 
In De Gamifide v. Pigou (a), it was held, that an under- 
ift'riter sued by the assured for a loss, could not set oflf the 
amount of the premium, although such premium had never 
been paid. In Grove v. Dubois, Buller, J., said that it 
made no difference, whether at the time of the policy the 
underwriter knew the principal or not, and that he gave 
credit only to the broker. In Edgar and another, assignees 
of Earden v. Fowler, it is considered as acknowledged law, 
that the underwriter may sue the broker. It follows that 
the assured cannot be sued by the underwriter, but must 
be liable to the broker. This is much stronger than the 
ordinary and common case. Ordinarily the underwriter 
cannot be sued, because credit is given him by the broker- 
that is merely an inference. 

Here, the underwriters have taken a covenant under seal 
They not only give credit to the broker, but they obtain from 
him a security of a higher nature. This is much stronger 
than the ordinary case, for this reason, that Fulton was a 
member of the Company. [Baykif, J* It does not appear 
that a member was, by the rules of the society, entitled to 
(effect insurances upon property not being his own.] Such 
insurances were allowed to be made. Foy v. Btlliff), ^ 
Mavor v. Simeon (c), will perhaps be relied on by the de- 
fendant ; but those cases were decided on the ground of 
fraud. [Parke, J. The case might be put thus: — The 
broker has done more than is usually done, he has given the 
defendants the full benefit of the insurance, he has per- 
formed a service, in the course of which he has entered into 
a covenant and discharged the assured from their lialNlily to 
pay the premium to the underwriters, and they are in the 
«ame situation as if the premiums were actually paid.] The 
broker never has paid and never can pay, and the assured 

(a) 4 Taunt. 246. (5) 3 Taunt. 498. (c) Ibid. 497. 


would ride off without any payment. [Littledale, J. The: 
particulars contain no specific claim for the 3\L iOs.] The. 


31/. \0s, is contained in the premium, and would be a de<- v, 

duclion to be made by the underwriters out of the pre-* - ^od'cAPET, 
niums in favour of the broker or his assignees. 

If. It is contended that what took place in the former 
action was a bar to any further proceedings. If the money 
bad been paid and nothing further had been done, the 
former action might have been a bar. The payment, how** 
ever, has been long since waived. That took place in June^ 
J827. In January, 1828, the rule to discontinue waa 
served. If the defendants had meant to insist that the 
previotts payment had put an end to the action, they should 
lave repudiated the rule to discontinue. They should 
not have acquiesced in it, and taxed and received their costs. 
So far from repudiating the rule to discontinue, they write 
in February to request a postponement of the taxation. It 
does not stop there. Beil attends the taxation. But if the* 
money had even been taken out of Court by the plaintiffs, 
tbe subsequent proceedings would have set the matter at 
'•fge- [Parke, J. That should have been replied,] The 
whole matter was in fieri. Nothing was taken iu sati^ae^ 
tiott of the former debt. A former judgment is no bar 
where the plaintiff sues upon two causes of action and re- 
covers upon one only; Seddon v. Tutop (a). It is otherwise if 
the demand is one and the same in both actions. [ParAe, J. 
Does not your replication admit that the causes of action 
are the same ?] 

Broderick, contri. The principle is not disputed, that 
an action cannot be maintained for money paid where no 
money has been paid; but it is said that though this is so 
in general, it is not so here. It has however been held, that 

(«) 6 T. R. 607, and 1 Esp. Campbell, 3 Wils. 304, and 2 W. 

N.P. C.401. And see M. 11 R. Bla. 897; Bradford v. Bryan^ 

S,Firi.Abr./</. Trespass, pi. 207; Willes, 268, and 7 Mod. 349;^ 

Xdcdav. Barnard, Cro. Car. 35; Ravee r. Farmer, 4 T. E. 146; 

Winch, Eot. 62, ^9; Kitchen v. Smith v. Johnson, 15 East, 213. 


1829. an agreement to pay is not sufficient to support such an 
^"T^"^^ action. In Taylor v. Higgins (a), a note had been received 
V. in payment and satisfaction. [^Bayky, J. Does it appear 

Butcher ^i^^^ ^\^^ Court considered that the principal was discharged 1] 
Maxwell V. Jameson {b). Where an agent intervenes, he 
always acts for both parties. The intervention of an agent 
is therefore not the true ground upon which the assured is 
discharged from his liability to pay the premium to the 
underwriter^ in the case of an ordinary policy. The true 
ground of his discharge is the estoppel arising out of the 
receipt. IParke, J. Here, the underwriter insures in con- 
sideration of a covenant f and not in consideration of money,] 
He case of an ordinary policy is an exception from the 
general rule, which does not apply here* It is not pre- 
tended that in this case there wi6 a running account be- 
tween the broker and the underwriters. Airy v. Bland 
does not go the length which has been contended. Jn^ 
drewv. Itobinson(c). {^Bayley,J. It is material to con- 
sider whether the underwriters could have called upon the 
defendants for payment of the premium.] They were not 
estopped by what had taken place between them and the 
broker. In Peterson v. Gandasequi (d) it was held, that if 
at the time of a contract made by an agent, the principal is 
unknown, the other party may, as soon as the principal is 
discovered, sue either the principal or the agent — at his elec- 
tion. Here, the underwriters made their demand upon the 
assured, as soon as they were known. But supposing that 
the underwriters could not recover against the defendants, it 
does not follow that the assignees of a broker are entitled 
to recover in the present state of things. The assignees 
of the broker may pay the premiums to the underwriter and 
then sue the assured. The plaintiffs are.proceeding against 
the defendants for money paid, and not for work and labour 
done by the bankrupt. The commission of 31/. lOs. is 
payable by the Company. Between the Company and the 

(a) 3 East, 169. Wilkinson v. Clay, 6 Taont. 110, 

lb) 3 Barn. & Alders. 51. and 4 Campb. 171. 

(c) 3 Campb. 199. And see (d) 15 East, 62. 


bankrupt it is a partnership transaction. {^Parke, J. Al-> 
though the bankrupt be a partner, yet if he enters into a 
covenant with his partners he may be sued upon such 
covenant, l^he broker says to the assured, *' I have got 
the policy underwritten, which is as valuable as if the pre- 
mium had been actually paid."] Where no money passes 
for effecting a policy, it is difficult to say how much the 
broker is entitled to receive. 

The issue raised by the replication is found for the defend- 
ut [Bayley, J. The 5L 1 5s, was never received by the 
plaintiffs. There was no entry on the record to shew that 
the suit was put an end to.] The taxation of costs is as 
between these parties tantamount to an actual receipt and 
acceptance of the money. If the plaintiffs relied upon 
any thing which took place afterwards, they should have 
replied such matter specially. The officer signs the receipt, 
and after the taxation of the costs he becomes, in respect 
of the money paid in, the agent and banker of the plaintiffs, 
who are therefore in the sanae situation as if the money 
were in their own possession. 





and Capet. 

Bickards, io reply. It is said that the discharge of the 
assured from the premium in the ordinary case arises from 
the language of the receipt. [Parke, J. And the account 
between the broker and the underwriter.] No such estop- 
pel can arise where the action is not against the underwriter. 
[UttledaUfJ, Could not a count have been framed to meet 
the bets of this case ?] 

Bayley, J. — I am of opinion that the plaintiffs are en- 
titled to recover the whole sum claimed in this action, 
which is brought by the assignees of Fulton, an insurance- 
broker, for work and labour, and premiums, against ship- 
owners^ by whom FuUon was employed to effect certain 
policies with a company of which he was a member. Ge- 
nerally speaking, according to the course of business, the 
assured does not himself pay the premiums immediately to 
the broker, nor the broker to the underwriter, but it is con* 





Butch EB 

and Capet. 


sidered as if they were paid instanter. The underwriter 
looks for payment to the broker, not to the assured, of 
whom he often knows nothing. The broker is the parly 
who, as principal, is to receive of the assured, and pay to 
the underwriter. The policy in the present case departs 
from the ordinary form. The policy is by deed, and by it 
the underwriters take the broker's covenant to pay the pre- 
miums. This action is brought on the ground that the 
broker was entitled to call upon the assured for payment 
of the premiums. If the assured are not liable to be 
called upon by the underwriters, the failure of the broker 
could not destroy the right to call on the assured. It 
seems impossible to say that the underwriter has any claim 
on the assured. In ordinary cases the underwriters would 
not have any claim, because, by the form of the policy, 
they would have confessed that the premiums had been 
paid. No promise can be raised by implication where the 
parties have entered into jii\ express contract. Here (a)i 
there is an express covenant. The assured has the same 
benefit as if money had been advanced by the broker on 
his account. If the defendants cannot be called upon to 
pay the underwriters ; they ought to pay some one. The 
broker, if he has assets, is liable to the underwriter for the 
full amount of such premiums, and his estate is now liable 
for the full amount of such premiums. A difficulty arises 
upon the form of the action, whether it is rightly brought or 
misconceived. This cannot be treated as money paid. 
Though the assured are no longer liable to the under- 
writers, yet in point of fact the premiums have not been 
paid to the underwriters. A case has been put by Mr. 
Richards, where notes were considered as money. Here 
nothing is paid, but security is given. If the 6£l/. had 
beeu paid, the broker would have been entitled to deduct 
31/. Is. This 3i/. \s. would be considered as compensa- 
tion for the broker^s trouble. The count for work and la- 
bour clearly covers this part of the demand. With respect 

(0) No promise however was here ^ho were partk* to the txpreu 
fought to be implied between those contract. 


to the grounds on which the plaintiffs are entitled to the 
residue. In the latter part of the first count, the words 
" Qoderwritten and subscribed'' may be rejected, and if 
enough remains, the plaintiffs may recover upon the words 
" cause and procure to be underwritten." The plaintiffs 
are not bound to prove the entire count. These latter 
words seem fairly and exactly to meet this case. 

Upon the special plea, the affirmative lies on the defend- 
iDts. In that plea it is alleged, that not only the 8/. 5s. 6d. 
bot also the 5L [5s. were accepted and received by the 
plaintiff. In fact the 51, \5s. remained in court. There 
may be cases in which the money brought into Court 
would be at the risk of the plaintiff, in case he refused to 
take it out after receiving the costs. But the payment into 
Court is not of necessity payment to the plaintiff. If the 
plaintiffs abandon the claim and discontinue the action 
they are at liberty to do so. I do not think that the 
money paid into Court was effectually received by the re- 
ceipt of the taxed costs. 

LiTTLEDALE, J. — The first point is, whether the plain^ 
tiffs have launched themselves, and have made out a case 
to recover any thing. The term " insurance" in the parti- 
culars of demand may mean any thing to which the broker 
was entitled by reason of his having effected these policies. 
The 3l/. Is. commission, I think, may be recovered, inas-* 
much as the broker was entitled to retain it out of the pre- 
miums which he had covenanted to pay. In the common 
form of a policy the broker is entitled to recover against 
the assured by usage, otherwise it would be difficult to say 
that the principle was well founded. Here, instead of 
being liable to pay over the premiums to the underwriters, 
as matters of account, the broker has bound himself by cch 
venant to pay those premiums to the underwriters. If the 
premiums had been actually paid, the assured would have 
been bound to repay the amount. Here, they are not ac- 
tually paid, but by the usage they are to be considered as 

vou V. z 


18«9. ff^id; and I think the pltii»Uffs might have dedared m 
'^"'^^ upon a apecial undeitaking lo indennify Fulton againit htt 
y, covenant. I have no doubt whatever ihaC if a «pecifti 

•Ifd'crpCT ^^^^' aUtiug the form of the policy; and that Fultou bid 
covenanted at the request of the astnred, and a promise to 
pay the broker before actual payment by him to the undeN 
writers, would have been anpported by the usage. I wiU 
not| however* say that the count in the present action is 
bad, as my learned brothers are against me. In the first 
count, the claim for work and labour ia confioed to com* 
mission, aad for divers sums of money before that time ad- 
vanced and paid by Fulion for the defendanta, at their re- 
quest, to divers persona, as and for certain prenunms and 
rewards for underwriting and subscribing the said policies. 
Then comes the part upon which the plaintiffa are said to 
be entitled to recover, " and for divers sums of money due 
and payable to FuUou, for and in respect of Fukon's having 
before then underwritten and subscribed, and caused and 
procured to be underwritten and subscribed, divers policies 
of insurance for the defendants at their request*' That 
part of the count cannot be separated, because it has no 
meaning apart from the rest. It appears to me that tke 
words '* divers premiums" can apply only to policies un- 
derwritten 6y the j»Aitit<s^^ which are out of the ca»e. The 
amount may in some sense be said to be due to Fulton, 
but it is not a direct debt due from the defendants to Ful^ 
tan. If this objection prevailed, the assignees wouU have 
to bring another action. 

There would have been e\idence to go to a jusy that 
the plaintiffs chose to leave the money m Court, aad thit 
is the same thing as if they bad actually received the mooej. 
Afterwards the plaintiffs take out a rule to discontifitie 
on payment of costs; — the costs are taxed aad paid; — the 
defendant jBn/cAcr assents to the discoatiauaoce. It is said 
that the plaintiffs ought to have replied the wmver. It 
seems to me that that was unnecessary. If the fact had 
been that the two sums had been accepted and received ia 


Ml salisfaetioii, and the phihtiffs had afterwards didtdfi- iQ^t^^ 

faadi the action, it frould have been iiecessarjf to rteply ^'^^^'^ 

the vaiveh Here, the acquiescence in the discontinuance ^'^^ 

is no otherwise material than as fonniiig some evidence ^utcher 
tfat the p?atrttiff^ nevftr intended to take the tlidney in full 

Parke, J. — I am of opinion that the aiitioli t!annot be 
mtontaiiied fot money paid. Without proof of payisienti 
Of of tfiflt wtHtb lis Equivalent to paymeflt, tto actioti fof 
nosey puti tkn be tHaiAtained 5 Taylor v. Higginh{a\ Mtix- 
^11 V. Jameson (A). In the case of art ordinary policy, it h^i 
^ i^ld th^t an action for money paid lies, bnt that t^M 
opw f*ro grdfttrds, whicfa do not occur id the present case. 
First, the receipt as for money paid, — and, secondly, the 
ptssing the amount in account, the effect of which may be 
to entitle the broker to treat the amount of the premiums as 
money paid by him to the underwriter, and re-lent to him* 
Iq the ordinary case, the claim for ntoney paid rests on the 
fonn of the policy, (which contains an ackhotvled^inetft 
of the (>ayment of the premium,) — and on the accodht 
betweeo the broker and (he underwriter. Neither that form 
>or the aeooarnt are t6 k^ found in the |[>resent case. The 
plaintift could no doubt recovfer 31/. Is. for work and la- 
hour. The plaintiffs claim in respect of divers policies of 
nuoraoce which Fulton bad cati«ed and procured to be 
QDderwritten and subscribed. He has caused them to be 
underwritten and subscribed in as beneficial a manner for 
the defendants, as if the premiums had been actually paid 
to the underwriters. The declaration would, perhaps, 
hare been better in a diffierent shape. If it had contained 
^ special count, such count would have been on the im- 
pbed undertaking to indemnify the broker against his co- 
venant; if an indebitatus count had been framed to meet 

(«) 3 East, 169 ; et vide suprd, (6) 2 Barn. & Alders. 51 ; suprd, 
^' 334. 





the circumstances of the case^ it would have been a count 
for work and labour bestowed by the bankrupt in effecting 
the policies. The objection only amounts to an imper- 
fection in the description. 

The plea is, in substance, a plea of payment and accept- 
ance in satisfaction (a). If the payment of the money into 
Court operated of itself as a discharge, the defence should 
have been so pleaded. Under the present plea, the de- 
fendant has undertaken to shew that the plaintiffs actu&l\]f 
received the money. If the defence of a discharge by pay- 
ment of the money into Court, is to be considered as 
having been given in evidence by the defendants under the 
plea of the general issue, non a8sumpsit(&), what took 
place after the alleged payment would amount to a com- 
plete waiver of such a defence. 

Postea to the plaintiffs. 

(a) And see Francit v. CryweU, 

5 Barn. & Alders. 886; S. C by 
its proper title of Francis v. Cry 
idly 1 Dowl. & Ryl. 546. 

(b) Payment made and accepted 
in satisfaction, whether made by 
one or by all of several promisors, 
might, previously to the Rules of 
H. T. 4 W. 4, (which see 3 Nev. 

6 Mann. 7,) have been given in 
evidence under die general issue, 

non assumpsit After those rules 
had come into operation, sacb 
a defence must have been pleaded 
specially. It would not, however, 
have been necessary to confine the 
defence, as was done here, to the 
exoneration of the party nuking 
the payment, as the acceptance in 
satis&ction would dischar^ the 
cause of action as against all tbe 




nr THE 






In the coarse of last Vacation the Honourable Sir James 
Burrough, Knt« resigned his office of one of the Justices of 
ibe Common Pleas (a). 

Id the course of this term he was succeeded by Mr. 
Serjt Bosanquet, who took his seat on the bench on the 
3d of February, and afterwards received the honour of 

(a) To which be had been appointed in Easter term, 1816. 

WabE V. CaNN. 1830. 

•By an order of Sir L. Shadwell, V. C.« a case was stated A, devises 

for the opinion of this Court upon the construction of the his heirs but 

foUowing devise in the will of one William Reynell: ^ All in case B. dies 

the rest, residue, and remainder of my personal estate and then to C. and 

laads in South-Tawton and in Sampford-Courtenay, I ^^ heira, or in 

. . case B, ofiers 

give unto Richard Ware, and to his heirs for ever; but to mortgage or 

levy a &e, or 
nSttz recovery,upon the whole or any part thereof, then to goto C.and his heirs — B, and 
^ ue strangers in blood. The fee vests in B., and the executory devise to C. is void. 


1830. ^° c^s^ Richard War^ dies i)irit||ou| }^em, then to John 
Powlesland and bis heirs ; or if in case Richard Ware 
offers to mortgage or suffer a fine or recovery upon the 
whole or any part thereof, then to go to the said John 
Powlesland and his heirs." Powlesland was a stranger in 
blood to Ware. 

The queatioos «t9ted for th^ opii^ion of this Court 
were — 

First : What estate and interest Ware took. 

Secondly, Whether, if Ware conveyed a part of the de- 
vised lands to a purchaser in fee, the purchaser's title could 
be affected by IVare's afterwards mortgaging the residue, or 
levying a fine, or suffering a recovery thereof. 

Thirdly. Whether, if Ware conveyed the whole of the 
devised lands to a purchaser in fee, the purchaser would 
have a good title to the fee against all persons claiming 
under the will (a). 

ff. Rogers for the plaintiff. Two principal questions 
are raised, — the first is, whether Ware took an estate tail 
or a fee. This is disposed of by the fact stated^tbat 
Powlesland, to whom an estate is limited after a devise to 
Ware apd lys heirs, was a stranger in blood to Ware. 
[Parke, J.. That point was abandoned in the Court of 
Chancery.] If that point was abandoned, it \yill still be 
necessary to send a special certificate stating such aban- 
donment. Right V. Hamond (A). The point is rendered so 
clear, that in Tilburgh v. Basbut (c), the Court would not 
allow it to be argued. 

The second point is one of greater importance. The 
estate is.giveu oyer not^upo^. s^iooatv>9^ b^ut if Ui&teu^l 
offkrs to. moitagage,, 8^c. It i^ ^ ckar e^taWsbe^ pnncipl^) 

(ft) Lord Tdfa^ewioi,, C. J^, pJh case s^t by. th« VU>q. Ch#mcellor 

served, th^t the 2d ai^d 3d q^ues- should have slated U^e facts oat 

dons were not properly raised, — of which those questions arose, 

that it was irregular to propound (6) 1- Stra« 4S9. 

specuktUve questions for th^ opi- (c) % Ve^ sen. 89. 
Hipp of the Cour^ — and that, the 


tbi thmigb a restriction upon mi act may he good, jet a 
nitrictkNi apoR aa offer to do soinethiiig, u too vagae; 
Aflcordtiig to the oM eases, tbia is bd4 an iasuaUe fact; 
Pinxf V. Win (a)* In that ease* the devise over was 
difected by the will to take effect, is case the devisee 
ii tail sbottW " go about or attenpt to alien or sell the 
stid nwssaages^ &c. ;" and it was held that a feoffment by 
tbe devisee in tail did not onke his estate void. The 
(Unctioa as to the validity of conditions prohibiting 
attempts to do an act, and of those which prohibit the act 
it»lf,is clearly hid down in Miidmay*»cmBe (^). In Brad- 
kfi.PdxolQic), the words of the Condition were very 
simibr to tbe present, bat the Master ol the RoQs held 
tint the coadition was of no effect (d)* Tliere is no case 
wkere a condition restmining a right6il alienation has 
beta sustaioed. Bat an alienation by an infant may be 
restrained ; so, a fine by tenant in tail* because it is a 
wroogful conveyance, which not only destroys the estate 
ttil, bat also devests the reversion and the remainder, if 
aiij(f). [BayleyJ. Tenant in tail cannot be restrained 
boa aoffering a recovery.] Becanse that is a rightful eon- 
vejaoce. In the present case, the restriction against levy- 
ing a fine is void, because that is a lawful conveyance for 
tcsim in fee Mmple. Upon tbe grant of a oMUor in fee, 
the gnuitee cannot be restrained from making grants of 
copyhoUs. [Bayky J. A copyholder has a right vested 
ii kirn.] The condition wooU be void though it merely re- 



(a) 1 Vcntr. 321, and 3 Keble, 
787. PoOerfen has reported the 
cne Bore folly, and has stated bis 
own aijomeot at length; but he 
kasDot given the judgment of the 
CoQit. Poll. Rep. 435. 

(^6Co. Rep. 40. 

(0 S Vesey, jno. 324. 

(if) In Brodley v. Peixoto, the 
vords were "I will and roost 
^cdj ordain, that if my wife o^ 
uj oDe of roy children shall at- 

tempt to dispose of all or any part 
of the bank stock, such an attempt 
shaH exclude them, him, or her 
from any benefit in this will, and 
shall forfeit the whole of thei 
share, &C.'' Nothing turned in 
that case upon the distinction be- 
tween the act and the attempt, 

(«) As to the effect of fines and 
recoveries in devesting estates, see 
tbe notes to Doe d. Cooper v. Finch, 
1 Nev. & Mann. 130. 


strained the lord from regranting after the escheat of a 
copyhold. Littleton says, sec. 360, '^ If a feoffment he 
made upon such condition, — that the feoffee shall not alieo 
the land to any one, this condition is void, because, when 
a man is infeoffed of lands or tenements, he has power by 
law to alien them to any person." And, s. 36l, '' But if 
the condition be such, — that the feoffee shall not alien to 
such a one, naming him, or to any of the heirs or issue of 
such a one, &c., which conditions do not take away all the 
feoffee's power of alienation, such condition is good." Also, 
s. 362| " If tenements be given in tail upon such condition, 
— that the tenant in tail and his heirs shall not alien in fee, 
or in tail, or for the term of any other life except their own, 
such condition is good." Upon which Lord Coke says, 
** And therefore, if a gift in tail be made upon condition that 
the donee, &c. shall not alien, the condition is good to some 
intents and void to some ; for, as to all those alienations 
which amount to any discontinuance of the estate tail, or 
are against the statute of Westminster 2 (a), the condition 
is good without question, but as to a common recovery, 
the condition is void, because this is no discontinuance, but 
a bar, and this common recovery is not restrained by the 
said statute, and therefore such a condition is repugnant 
to the estate tail.'' Here, the devisee is restrained from 
mortgaging, levying a fine, or suffering a recovery, all 
which are lawful conveyances for tenant in fee simple. 
A condition requiring the tenant in tail not to leat>e for bis 
own life is void, Sheppard's Touchstone, 133. In Doe d. 
Mitchinson v. Carter (Jb\ Lord Kenyon, in giving the judg- 
ment of the Court, says, '' A grantor, when he conveys an 
estate in fee, cannot annex a condition to his grant — not to 
alien; nor, when he conveys an estate tail— a condition not 
to bar the entail. Such restrictions are imposed to pre- 
vent perpetuities." The same rule was laid down and 
acted upon by Grant, M. R., in Bradley v. Peixoto (c) ; 

(<i) IS Edw. I, r. 1, (the statute (6) 8 T. R. 57. 
tie donU.) (c) 3 Vcsey, jun. 324. 


Ems v. Ross (a), is another authority to the same effect 
{Here he was stopped by the Court.] 

Preston, contri^. The first pointy namely, as to the 
quantity of estate which passed to Ware by the devise, is 
quite settled : it is too clear to be disputed. But there is 
a shorter answer. This is not a condition^ but a condi- 
tional limitation, an executory devise. [Bayhyt J. Who is 
the executory devisee f] The person who would take the 
remainder, supposing the estate limited to Ware had been 
an estate tail. It may be doubted whether Littleton has 
act stated the rule too broadly. A restraint is not void, if 
imposed for a reasonable time or the life of the party. It 
is conceded, that a man may annex a restraint upon alie- 
nation to a particular estate. The condition cannot be 
considered as repugnant to the estate conveyed, except in 
the case of an estate tail or an estate in fee. The real 
ground upon which conditions prohibiting attempts at 
alienation are void, is, that where you cannot restrain the 
alienation itself, you cannot restrain the attempt, and 
thereby produce the same effect in defeating the aliena- 
tion. Bradley v. Peixoto and Ross v. Ross cannot govern the 
present case, because those were cases of personal estate, 
which is governed by the civil law, Beachcroft v. Broome {b). 
Eveiy testator who has devised a fee may affix a qualifica* 
tion,(the benefit of which he may reserve to his heirs, or give 
to strangers,) by way of executory devise. The king may- 
impose a restriction upon his grants, prohibiting alienation 
generally, even at the present day, Com. Dig. Condition, (D.) 
His power of imposing such a restriction is derived, not from 
his prerogative, but from his interest in the estate. Here^ 
there are two limitations, one of which is admitted to be 
void; the second is good as an executory devise. The 
testator might have good reason for restraining his devisee 
from executing a mortgage. He might say, I will not give 

(c) 1 Jac. & Walk. 164. {b) 4 T. R. 441. 


my estate ta a oian who would be aiicb a fool as ta iiiort« 
gage it. Then there is 90I aa abaolule restraint upon an 
alienation. It is open to the party to convey by feoffment, 
or by lease aad release. If the testator had said that the 
estate should go over upon the party's goiag to ibe top 
of St. PauFsy sucb a limitation would have been good. 

The next question is» whether the mere ofkr ta morlg^e. 
is open to the objection which lias unexpectedly been 
taken. It is said| tliat an attempt cannot be put in issue. 
That may have been law in the reign of Elizabeth, but 
cannot be so in that of George th« Fourth. What is said 
in Mildmays case must be takea cwn grano seUis, and with 
reference to the restriction then, under the consideratioa 
of the Courts What is an offer is matter of evidence 
for a jury. If a man actually mortgage, it cannot be 
doubted but that he has offered to mortgage. If a bribe 
ts offered tq a voter, tlie crime is compkte, although the 
bcibe be not accepted (a). Ware took an estate in fee, 
subject to an eaecutory devise, — and that devise over is 
lawful, reasonable, and, depending upon a fact, capable of 

Rogers 'm reply. A man cannot convey property and 
withhold the itucidtnis to that property. An act which 
cannot be restraiaed by condition cannot be restrained by 
aift executory devise over,, where the conditian would be 
contrary to law, Shepp. Touchsi, 133, In one of the cases 
referred to by Lord Coke, in the margin of Co, Li/^ 
namely, IS If. 7, 23 (fi\ tbe Court would not bear it argued 

(a) Vide tamsn Heruloa v, Faw- if the donee, or any of the heirs of 

eeiif 4 Ner. & Mann. 585. his body, shoold alien in fee, or 

(6) P. 13 H. 7, fo. 82, 25, pL in fee tail, or for term of lifii, «• 

9. That was a case of formedon should grant in any other maoner 

in the remainder, in which the a greater estate than they bad, 

tenant pleaded that his ancestor then the donor and hts heirs might 

was seised and gave the manor in relator ; and that eocb a person, 

tail, remainder to the right heirs issue in tail, being sdsed by force 

of the donee, upon condition that of the entail,, dieoooiiaued tbe 


that such a restraint could be annexed to aa estate in fee 
mfi%. Lord Coke also cites 21 H. 7, 11(a)* and 91 
H.6{b), Shepp. Touchst. 129, ISl. 

against law» it seeco3 to be void 
altogether. Wherefore, &c.*' Kcble^ 
conlri. *'It seems to roe that one 
may make a condition with a fcoflfee 
in fee 9iniple that he shall not alien." 
Here Brian J. interrupted him, say- 
ing — ^Xhat they would not hear 
him argue to this purpose (a cest 
conceit) f ** because it is merely con- 
trary to our common erudition, 
and is now become in a mcuiner 
a principle; for by this means 
we should disturb (transpoier) all 
our ancient precedents. Where- 
fore say no more of this point.'' 

(a) H. 21 H. 7, fo, 11, pi. 12. 
That was a case in the Common 
Pleas to this effect. A man seised 
in fee made a gift in tail, upon 
condition that if the donee died 
without issue, or if he or his issue 
aliened in fee, then his estate 
should ceasei and the land should 
remain to a stranger. Tbe donee 
aliened in fee, had issue« and died. 
And the question was, whether 
he in tj^ remainder might enter 
or not. Kingtmil — In tbe firsic 
place* when has land whereof 
he wishes to create a particular 
estate, he may make it. conditional. 
As if I give land in tail, — u^a 
condition that neither the donee npj 
his heirs shall alien in fee>.— ^a 
condition is good; for,.if he aliens 
in fee, he does wrong to me who 
am in the reversion : so that this 
condition is good, to restrain him 
ftom doing an act contrary to 
law. And if I make a lease 
for teim of life, apon con<i^tion 
that he shall not alien over his 

to a stmnger in tail, re- 
mainder to the ancestor of the 
demaodant in fee, and because 
this discontinuance was against 
the condition, he, as heir, entered, 
lasqpporting a demurrer to this 
plo. Rede says,—" The condition 
B contraiy to the estate, because 
te donee is tenant not only of 
tk esute tail, but also of the fee 
siipple. For where there is a 
feoffinent in fee upon condition 
that the feoffee shall not alien, 
thf QooditioQ is void, because it 
is ©crely contrary to the estate ; 
for the condition, goes in de- 
feasance of all his estate. Where- 
fon it should be taken as void 
io respect of the remainder in fee, 
bat being void in part it is void 
in all; and suppose that I make 
a lease for a term of life, upon 
coodiiion that if I grant the re- 
▼enioo, the tenant shall have fee, 
I say that this condition is void, 
be^iW by the grant of the revei^ 
sioo, a third person has a rightful 
iflCtrest before the condition caa 
take ellecc So. here, by the grant 
of toe remainder of the fee simple 
Mf tbe donee hijopsell^ by rea^oA 
of tbe interest which be had ia the 
fee sinipJie> tbe condition, annexed 
to the estate tail cannot take 
cSect, becaase i( goes in destruc- 
tioB of both. And ijt is clear 
tbat this fee. simple can lawAiUy 
he aliened, ootwitbstanding such 
CQocfitioQ, faiecaMse it; is contcaiy 
to.iheeKate of fee simple. Aad^^ 
tktifetqne, becaase tbe condition 
is io pait contnuious, and in pait 







estate, the condition is good^for 
I may make such condition as I 
like, with every one who will take 
such an estate from me. And 
therefore it seems to me, that if 
I infeoff one, upon condition that 
he shall not alien to any one, the 
condition is good. And if I make 
lease for term of life, upon con- 
dition that if he die the land shall 
remain to J. S., this remainder 
does not take effect by the condi- 
tion but by the livery. And the 
law is the same of a gift in tail, 
upon condition that if the donee 
die without issue the land shall 
remain over. But the case at the 
bar is, that if the donee alien in 
fee, then his estate shall cease, 
and the land shall remain to a 
stranger; so that here the re- 
mainder can only take effect upon 
the condition. Then it is to be 
seen whether this condition be 
good, and it seems to me that it 
is not, for the condition is in itself 
repugnant; for when the donee 
has made feoffment in fee, then 
the feoffee has a fee in him, and 
the land cannot remun over when 
another has a fee therein in pos- 
session. And therefore the con- 
dition is in itself impertinent and 
repugnant. As in this case: I 
make a lease for term of life, re- 
mainder over, and there was a 
condition that if the 6rst lessee 
pays to me a certain sum, &c., 
J. S. shall have the land in fee 
immediately after the death of 
the first lessee ; I say that this is 
void and repugnant in itself, for 
there is a mesne estate which can- 
not be defeated by the condition 
which comes afterwards; for it 
cannot be that he shall have the 
remainder for the term of his life, 

and that the other shall have the 
land immediately after the death 
of the first tenant. So here, by the 
feoffment, the feoffee has fee sim- 
ple, during which the remainder 
cannot so take effect, for another 
has a mesne interest ; and a stran- 
ger cannot enter in this manner. 
And the common case proves this ; 
if I make a lease for term of life, 
reserving a rent to a stranger, the 
reservation is void, because he 
was a stranger to the lease. The 
law is the same, if I say that for 
non-payment a stranger shall 
enter ; the entry is void. So here, 
notwithstanding that such entry 
might be reserved to the donor, 
still to a stranger it cannot be 
reserved ; and if the donor enter, 
he cannot give the land to a 
stranger by this entry. And thus 
it seems to me, that in no way 
can this remainder take effect; for 
there is a case in our books which 
proves this case. In quid juris 
clamat against a tenant for term 
of years, he said that the lessor 
leased to him upon condition that 
if he granted over his remiunder, 
the tenant should have for the 
term of his life — and thus he 
claims for term of his life ; and it 
was adjudged, that because this 
condition was repugnant in itself, 
he should only have for term of 
years, for when the reversion of 
the freehold was granted, then 
the lessee could not by the con- 
dition have freehold, for this was 
in the grantee of the reversion by 
the fine. So here. Frowiche — It 
seems to me, that he shall not 
have this remainder in this form, 
and still the condition is good, for 
the condition is, that if he die 
without issue or aliea in fee, the 



estate shall cease; so this re- 
mainder is dependeot upon both 
the one condition and the other, 
and therefore if any words in the 
deed can make the condition and 
the reinaioder dependent thereon 
to be good, still that condiUon is 
good, and the condition is in the 
disjunctive; and for one part it 
is good, that is to say, if he die 
without issae, and although it be 
Toid for the other, yet the con- 
dition is good But 1 think that 
no one by such a condition can 
grant any action or entry to a 
stranger, but only a chose in pos- 
session. As of a lease for term of 
life, remainder after the death of 
the tenant for term of life to 
another in fee, there he has the 
remainder in possession ; but if 
I make a lease, rendering a certain 
rent to a stranger, the reservation 
of rent is void, because he cannot 
have the rent unless he enter and 
distrains for it, and I cannot ^ve 
distress to one who is a stranger 
to the lease. The case here is, 
the g^ft was in tail upon condition 
that if he discontinued in fee, hia 
estate should cease; and I have 
taken it, that an estate of ioherit- 
snce cannot cease by force of the 
condition broken only, but there 
most be an entry together with 
this. But of a particular estate, 
ss for term of life, the law is other- 
vise. And the reason is, that 
such estate may cease and be de- 
tenuioed by par^l as well as by 
wrrender, and therefore it may be 
detennined by the words of the 
condition in the same manner, for 
heto€k this at first with the con- 
dition, which is understood to be 
to agreement that he shall sur- 
fcoderhis estate if the condition 

be not performed. So that such 
a condition for the taking of the 
estate countervails a surrender for 
the non-performance of the con- 
dition. As if I make lease for 
term of life, or of years, upon con- 
dition that if I pay him 20^ on 
such a day, his estate shall cease. 
Now, by the performance of the 
condition, the estate determines 
without any other entry; but of 
an estate of inheritance, the law 
is otherwise, for this cannot be de« 
termined by naked words; nor 
can it pass by such means, but by 
livery. And therefore if I make 
feoffment upon condition that if 
I pay certain money upon a cer- 
tain day the estate shall cease, 
and I pay the money, still the 
estate is not determined until I 
have entered. The difference is 
apparent. But if I make lease for 
term of years, upon condition that 
if I alien the reversion in fee, he 
shall have for term of life, the 
condition is good. And the cause 
is, that the fee remains in me who 
made the condition; and when 
the fee remains in me I may con- 
didon it in such manner as I like. 
And I will not agree with the case 
which Kingsmil has put, —of quid 
juris clamat,^{oT when the fee re- 
mains in the lessor, he may bind 
this >yith condition in whatever 
manner he wills. And if I make 
lease for term of years, upon con- 
dition that if I enter upon him 
he shall have for term of life, the 
condition is good; for thereby I 
have restrained myself firom com- 
mitting a tort; for if I do so, I 
have bound my land with the con- 
dition, which is good ; but, on the 
other hand, I cannot diminish the 
interest of a stranger by my con- 





rfitlooi WheM nothing Vftuiaiiied in 
me^ but all in di« strkajget. And 
Vark m>w in chji ctMi here the ctmdi- 
Q^* tion is, thiit if he aliened in fee, 

it sbCNjld remain, kt. But if he 
doee alieni the alienee will have 
the fee. Ilien *ben the alienee 
has thelee^ thie hm^ eannot re- 
main by Che oendition, for it is 
Mpagnabt that the alienadon 
sboaM be made^ and tiial y^ the 
remainder tboatd take eflfeet, and 
that for the catHe aforesaid. And 
for other eanse it seems void, for 
the rase is, that his estate shall 
cease faid the land remain, and a 
remainder cannot be without a 
precedent estate. Then when 
the estate upon which the re- 
mainder fthoald cease is deteN 
mined, the remainder cannot take 
effect, for it must be taken upon 
some estate. And for this cause, 
it seems, that the condition is as 
to this point Toid." The reporter 
adds, ** Note and qa. — for Vavisor 
was of the seme opinion.** 

(*) H. 21 H. 6, fo. 33, pL 21. 
"Note, that this question was 
moved among the justices — New- 
ton being absent. A lease is made 
for a term of years, upon condition 
that the lessee shall not grant over 
his estate. A nd whether that condi- 
tion be void or not was the ques- 
tion. Faiton, — The condition 
seems clearly void, for in making 
the lease is included that the lessee 
may grant over his estate ; for sup« 
pose that a feoffment be made in 
foe simple, upon condition that 
the feoffee shall not do waste, the 
condition is void, because it is in- 
cluded in the feoffment that he 
may do waste; so that it is but 
eppatkmm in offjetio. Ytlverton, — 
In year case, when a feoffment i» 

made in foe, upon coiidition that 
he shall not do waste, or that he 
shall not alien, t admit that the 
condition is void, because, at the 
time of the feoffment the fee and 
(he right pass out of the person of 
the feoffor, so that he has no right 
reserved in him, and thus the con- 
dition by him reserved is void; 
but, in the case now moved, the 
freehold and the fee do not pass 
out of the person of the lessor, so 
that he may well reserve this con- 
dition, &c. Paiton, — Suppose a 
lease be made for term of lifei 
upon such condition that he shall 
not commit waste, I say that this 
condition is void, and yet a rever- 
sion in fee simple still remains in 
Ae lessor; and I say that in sudi 
a case the condition is void, but 
this is not on account of the da- 
mage which may arise, but for 
the inconvenience (inconsistency). 
AiftA.— Suppose that one gives 
land in tail, upon condition that 
the donee shall not discontinue 
tfte entail. Is this condition void ? 
I think not-^for Thitning^ vrho 
was chief justice, here gave his 
land to his eldest son, upon such 
condition that if he aliened, &c. it 
shouhd remain to his younger son, 
and thus he made the remainder 
to two or three over. Astke, — I 
think that such a gift in tail, with 
the condition, is good and effec- 
tual; for Thiming made such a 
devise by the advice of the justices 
of his time, &c. Patton. — ^No, 
truly— and this I know, that it was 
done by the assent of such justices, 
but he said, that he would have 
the gift openly notified in the 
Common Pleas; and Hank, said 
that he might well do it, and 
laughed, and said that tSie whole 


The neat point is» that the cffer is net bsutbte. la Pierce 
V. Win, after an elaborate argument, it was decided that 
sach a condicion was void, both for uncertainty and because 
it was not issuable^ It was urged by Pottexfm, who has 
sported his own argument at great length, that the condi- 
tio Dot to attempt or offer to alien, operated as a restriction 
upon the act of alienation itself; but the Court thought ' 
that tliey must look at the express words of the will, and 
that they had no power to frame a different condition. In 
Beechcroji v. Broome the facts of the case did not call for 
any decision upon the point now before the Court. That 
case was not pnt npon the point, that an alienation by a 
lawful act would necessarily pass the estate to the pur- 
chaser. The true distinction is, that a condition to restrain 
legal acts is void — illegal, good. No restriction can be 
imposed upon any particular mode of alienation, unless 
that mode be illegal. Then, as here the first devise passes 
an estate in fee, the condition is ¥<^id. [Buyley, J* Sup- 
pose an estate tail granted to A., with a proviso that if A. 
should attempt to alien, the land shonid go over.] Upon the 
authority of Mildmay*s case> this condition would be void. 

Cur. udv. TuU. 

The following certificate was sent to the Vice-Chan- 

This case has been argued before us by counsel. We 
are of opinion — First : That Ware took an estate in fee 

condition was void, and so it 
Mems to me. And note, that in 
Assize 24, pi. 8, there was found 
»di a fph in Xajil, upon sik^ eon* 
<htiQD as is meotiooed by FuUh, 
aad Atcue ; and there the coodi- 
tioB was held good by all the 
Court; but it was said, that with 
tttpect toyi;« strnpicy the contrary 
» Ukw. And note, that this was 

after averment; and also note, 
that such gift in tail was made 
with great deliberation upon the 
cooclu8k)n of an accord between 
Lord Fkz-Uugk and the Loiti 

The reporter adds, « Vide 13 H. 
4, which accords with what PaMon 
has said, in a writ de eftctione 
Jirma, fee." 




in the devised lands, under the will, with an executor; 
devise over, to take effect upon conditions which are void 
in law. Secondly: That if Ware conveyed a part of the 
devised lands to a purchaser in fee, the title of the pu^ 
-chaser would not be affected by Ware's afterwards mort- 
gaging or levying a fine, or suffering a recovery of, the 
residue. Thirdly: That if Ware conveyed the whole 
estate to a purchaser in fee, such purchaser would have a 
good title to the fee against all persons claiming under the 


J. Bayley. 


J. Parke. 

Where a 
trader, afler 
liaviQg obtain- 
ed his certifi- 
cate under 
three commis- 
sions of bank- 
rupt, under 
none of which 
auy dividend 
had been paid, 
was arrested 
for a debt con- 
tracted be- 
tween the 
second certifi- 
cate and the 
third bank- 
ruptcy, the 
Court refused 
to discharge 
him out of 
custody on 
filing common 

And such 
third commis- 
sion was said 
to be a nul- 
lity (c). 

Fowler v. Coster. 

A Commission of bankrupt issued against the defendant in 
1814^ under which be obtained his certificate; a second 
commission issued in 1826, under which he also obtained his 
<;ertificate; and in 1829 a third commission(a) issued, under 
which he also obtained his certificate. The defendant 
being arrested upon mesne process for a debt which had 
accrued in 1828, Piatt in last Michaelmas term obtained 
a rule under 6 Geo, 4, c. 16, s. 126(6), calling upon the 
plaintiff to shew cause why the defendant should not be 
discharged out of custody on filing common bail. By the 
plaintiff's affidavits in answer, it appeared that no dividend 
had been paid under any of these commissions. 

Corny n shewed cause in the same term. The plainuff is 

(a) Since superseded, Ex parte 
LanCf in re Fowler, Mont. 12. 

(6) Which enacto, ^ That any 
bankrupt who shall, after hb cer- 
tificate shall have been allowed, 
be arrested, (or have any action 

brought against him,) for any debt, 
claim, or demand hereby made 
provable under the oommissioa 
against such bankrupt, shall be dis* 
charged upon filing common bail.'' 

(e) Vide lumai Ex pairte WM, U re Merrtftoeaiher, Mont. 276, rviifrd. 


not barred of his common law remedy by action. Both 
the last commissions issued since the present bankrupt act 
came into operation. The debt is not provable under the 
second bankruptcy, inasmuch as it had not accrued at the 
tiine when the second commission issued. The plaintiff 
could not prove under the third bankruptcy, because the 
third commission was a nullity, on the ground that as 15s. 
in the pound had not been paid under the second^ the after- 
acquired property (a) of the bankrupt vested in the assignees 
uoder that commission by 6 Geo. 4, c. l6, s. 127(b), and 



(c) A right of action accruing 
to the bankrupt against his assig- 
nees, by virtue of an express con- 
tnct with them, (CoUs v. harrow, 
4TaaDt 754 ; Chippendale v.Tom- 
linom, Cooke's B. L. 6tb ed. 446 ; 
5itt V. (hb(fm, 1 Esp. N. P. C. 
J 40;) would not, however, vest 
in those assignees. 

So, if the bankrupt, with the 
consent of his assignees and cre- 
ators, trade for his own benefit, it 
woold be a fraud upon subsequent 
creditors to seize the property with 
which they bad entrusted him, 
spon the fiiith of such assent, and 
distribute it amongst the old ere* 

Aootherspecies of property which 
covld not vest in the assignees 
nnder a precedent commission, but 
which might be rendered available 
to creditors under a new commis- 
BOO, would be goods which, sub- 
lequently to the awarding of such 
pneedent commission, are in the 
possesnoQ of the trader, by con«» 
sent of the true owner (such owners 
not being the former assignees, 
^«&MiT. CkerreUj 7 Bingh. 663, 
s&d 5 Moore fc Payne, 680.) Such 
Swds could not vest in the ex- 
i<tiog assignees under 6 Geo. 4, 

c. 16, s. 197, as part of the fu- 
ture estate of the bankrupt — since 
the bankrupt himself would have 
no estate or interest therein — and 
yet the possession of these goods 
may have been the sole cause of 
the credit given. 

So, if the bankrupt, having paid 
lOi. in the pound, received 500/. 
from the estate as his albwanct 
under 6 Geo. 4, c. 16, s. 128, such 
allowance could not be seized for 
the benefit of the former creditors; 
but there seems to be no reason 
why this money should not be 
made available towards satisfying 
debts contracted in the course of a 
tubtequent trading. 

(6) By which it is enacted, 
" That if any person who shall 
have been so discharged by such 
certificate as aforesaid, or who 
shall have compounded with his 
creditors, or who shall have been 
discharged by any insolvent act, 
shall be or become bankrupt, and 
have obtained or shall hereafter 
obtain, such certificate as aforesaid, 
unless his estate shall produce 
(after all charges) suflScient to pay 
every creditor under the commis- 
sion fifteen shillings in the pound, 
such certificate shall only protect 

VOL. V. 

A A 


•consequently the bankrupt could have acquired no property 
upon which a third commission could operate. Till v. 
Wilson (a) and cases there cited (5), Robinson, Ex parte, (m 
the matter of Freer (c). [Litiledale,J. A commission msy 
be taken out against an insolvent debtor whose effects are 
vested in the assignee (<f).] 

Gurney, contri. The third commission may have been 
snpersedable, but it was not absolutely void. In Robinsonj 
'Ex parte, the Court was merely unwilling to expose the 
parties to the risk of being turned round for want of a suf- 
ficient petitioning creditor's debt, where the doubt might be 
removed by substituting the name of the petitioner RoMn" 
son. To hold that the third commission was an absolute 
nullity, would render all acts of the commissioners and assig- 
nees void. [Parke, J, Under the old acts, after-acquired 
property is not vested in the assignees, but is made liable 
to judgments. Bayley, J. The defendant has obtained bis 
certificate, but it is obtained under a commission under 
which the plaintiff could not have proved.] 

Piatt on the same side* Till v. Wilson is the case that 

bis per<of» from arrest and im* who, under a second commission, 

prisonment, but his future eitoto has not paid ]5«. in the pound, 

and effects, (except his tools of cannot be a petitioning creditWy 

trade and necessary household his propertjf being vested io tbe 

furniture, and the wearing apparel assignee ander the second oomtus* 

of himself, his wife and children), sion. This would not, howe?er, 

shall vest in the assignees under prerenc such bankrapt (inom suing 

the sfdd commission, who shall be out a commission of bankrupt a- 

antitled to seize the same in like gainst an assignee under the second 

manner as they might have seiaed commission, who had since be- 

property of which such a bank- come indebted to tbe bankrapt bj 

rupt was possessed at the issuing eapress contract. F«fe wtprij 

the commission.'' 358 n. 

. (4) wiM<(?»i.580; 7B»fcC.684. (d) As to which, see Jcl/tf t. 

(() Tliese cases are all noticed MotiiUfitrd, 4 B.& A. 356; Skd- 

in the judgment, pof^, 356. ileworth, Ev parte, 2 CAyn k 

, (c) Montague & M'Arthur, 44, Jameson, 68. 
where it was he]d> that a bankrupt 


fi«sMB mo8l Strongly against the defendant. In that case^ 
however, no certificate had been obtained under the first 
eonunission before the second commission issued. A writ 
of extent (a) may issue against the lands, goods, and person, 
akbough the extendee has neither lands nor goods. If the 
baakrupt had secreted goods under the third commission 
he would have been guilty of felony, and would have been 
estopped from saying that the third commission was void, 
sod not merely voidable, if such commission had not been 
ID fact abandoned. [Day ley, J. The submitting to the 
secood commission raises a presumption. Parke, J. It is a 
•trong argument for the defendant that the certificate is 
Dide conclusive evidence of the trading, Slc If the cer- 
tificate cannot be avoided by shewing that there was no 
tiading, &c. why should it be avoided by shewing a prior 
coounissioo ?] 

Cur. adv. vulU 

In this term. Lord Tenierden, C. J. after stating the facts 
and the arguments, delivefed the judgment of the Court. 
We are of opinion that the 126th section of 6 Geo, 4, c. l6, 
Bttkes the certificate conclusive evidence only of theyoc^ of 
the trading* act of bankruptcy, commission, and other pro- 
ceedings, leaving untouched the vahdky and gff^ect of those 
proceedings, and the manner in which they may be ques- 
tiooed. Iq Martin v. OHara (6) it was held by Lord 
Man^iekif that an uncertificated bankrupt is incapable 
of trading or contracting for his own benefit: that all 
the property which he acquires belongs to his creditors, 

(a) The Court of Eicheqner, in legal impowhiliiy of the tnider> 

ivuding the writ of capias extendi having any property upon which the 

/mi, has tio jndicial knowledge eomtaisBion criuld operate. T6 

that the extendee has no goods or make the analogy from the writ of 

laiHhyStiU less that he will have extent applicahle to this view of the 

DODe before the retnin of the writ, case, that writ should be supposed 

Tlie dedsioo in Till y. Wilton, to issueagainsta party under a &^/ 

(«/«, vol. i. 580, and r Bam. St impauibUUy of possessing properly. 

Cfosw. 684,) proceeds upon the (6) Cowper, 893. 



1850. and that as he cannot trade for himself he cannot be thtf 
object of a second commission ; and it was said by Bulkr.i* 
to be perfectly clear, that a second commission cannot be 
taken out against an uncertificated bankrupt. Lord Hard^ 
wicke, in Proudfooty Exparte{a), and Lord Loughborough/m 
Nunn, Ex parte (b), have stated that a second commission 
before the trader has obtained a certificate under the first, 
is void at law. The same opinion has been expressed by 
Lc^d Eldon on several occasions (c). In HoUingsworih, 
Ex parte {d). Lord Thurlow appears to have entertained 
a different opinion; and in Butts v. Bilke (e), Thomson, 
C. B. doubted, and the Court of Exchequer desired that 
the question might be stated in a special verdict. In the 
very recent case of Till v. Wilson (f), this Court, however, 
decided that a second commission issued before a certificate 
had been obtained under the first, was absolutely void at 
law ; and from that decision we see no reason to depart. 
We consider that it is fully settled by the above authorities 
that the great seal has no power to award a commission for 
the purpose of distributing effects already vested in as- 
signees under a prior commission, and that a commission 
so awarded is void. A third commission, where 1 5s, in the 
pound has not been paid, appears to us to be equally void. 
The 6 Geo, 4, c. 16, s. 127, differs from 5 Geo.% c. dO,s.5» 
which directs that the future effects of the bankrupt shall 
remain liable to creditors, that is, to individual creditors. 
This, according to Hovill v. Browning {g) and Todd v. Max- 
Jield{h) did not prevent such future effects from vesting in 
the assignees under a subsequent commission. But by the 
present act, the property is expressly vested in the assignees 
under the former commission, who are therefore entitled to 
all the effects of the bankrupt ; so that there is nothing upon 

(a) 1 Atk. 951. (e) 4 Price, S40. 

(6) 1 Rose, 3««. if) Ante, 285(6). 

(c) 15 Vc8. 114, 543; 16 Ves. (g) 7 East, 154. 

«36,478;lRose,13tf,^85;2Ro9e, (A) 5 Dowl. & Ryl. 258; 5 

159, 17S. Bam. & Cressw. 932. 

ift) Cooke B. L. 10. 


irfcich a subsequeot commission can operate (a). In this 1830. 
respect the present case is brought precisely within the 
proper ground of the decision in Martin v. G'Hara. We 
caoDot think that, for the purpose of enabling a party to 
obtain his discharge, we are bound to give effect in a Court 
of Law to a commission which for any other purpose is 
wholly ineffectual. Frequent discharges under the bank- 
rupt laws are injurious to the honest tradesman. Under a 
second commission, therefore, \5s. in the pound is required 
to be paid before the bankrupt is enabled to trade again. 
We must follow the spirit of that enactment, by deciding 
against the validity of a third commission where no such 
pajment has been made. The consideration of the bank- 
rupt's discharge is the giving his property up to his cre- 
ditors. Here, the defendant had nothing to give up — and 
kafiog nothing,' he, in some sort, committed a fraud upon 
every person from whom he obtained credit. 

Rule discharged (A). 

(«) Std vide ante, 353 (a). 

W Aod fee Phillips v. Hopwood, ante, 15; 1 Bam. & Adol. 619. 

Doe d. Mann v. Walters. 

Ejectment for lands in the parish of Mawgan iq An agent to 
Mcneage, in the county of Cornwall. At the trial before has no implied 

BttTrough,J. at the Bodmin Assizes (c), 1829, the following n?«hority to 
r _ ** give notice to 

lacts appeared : — quit. 

The lands in question were part of the glebe of the , Wherenotice 
^ ^ ^ o to quit 1ft given 

parish of Mawgan in Meneage, and had been demised by byana|;ent,the 
tic lessor of the plaintiif^ who was the rector of the parish^ sucbaijentmust 

to the defendant from year to year. The lessor of the he complete a 

half year be- 
(c) Coanael for the plaintiflfy Wilde, Segt. and Coleridge ; for the fore the expi- 
^efakdaoty FoUeii, ration of the 

notice, or at 
M«t before the day of the demise laid in a declaration in ejectment^ brought in re- 
1*«t of such nouce. 


plaintiff being non-resident^ the defendant's rent was ptid 
from time to time into a banking-house in the neighboaring 
town of Helston, upon the following receipts : — 

'' Union Bank, Hebton,25th January, 1823. 

*' Received of Mr. Joseph Walters, twenty-five pounds 
to account of Rev. Horace Matm. 

" For Grylb * Trevenem, 
£25. ^ John Kendall, junior.*' 

" Union Bank, Helston, 10th January, 1824. 

" Received of Rev. Horace Mann, seventy-five pounds 
to account. 
25 rent. " For Grylls Sf Trevenem, 

50 cattle, corn, &c . ** R. Edmonds, junior.*^ 


The receipts for the two following years were in the 
same form as that of 25th January, 1823. On the 22d 
June, 1 827, the following notice was served on the defend- 
ant's wife at his dwelling-house : — 

'* Mr. Joseph Walters, 

^^ I do hereby, as the agent for and on the behalf 
of the Rev. Horace Mann, your landlord, give you notice 
to quit and deliver up, on the twenty-fifth day of December 
next, the possession of the dwelling-house, farm lands, and 
premises, with the appurtenances, which you now bold of 
the said Horace Mann, situate in the parish of Mawgan in 
Meneage, in the county of Cornwall, or at the end of the 
current year of your tenancy, which shall expire next after 
the end of one half-year from the time of your being served 
with this notice. Dated the 22d day of June, 1827. 
" Yours, 8ic. H. M. Grylis, 

" Agent for the said Horace Mann*' 


H. M, Grylb was an attorney residing at Helston^ and 1830. 
was also a parser ip the Helston bank. It was contended ^^^ 
for the defendant, that the notice was void for want of d. 

authority. The learned judge was however of opinion that ^ 

H, M, Grylh, as a receiver, had authority to determine the Waltsm. 
tenancy, inasmuch as it had been repeatedly held that a 
rtceiver has such an authority (a) ; and the jury, under his 
lordsbip a direction, returned a verdict for the plaintiff. 

Id Michaelmas term, 1829> Folleii obtained a rule nisi 
/or a new trial ; against which, 

Coleridge now shewed cause. It will not be necessary 
to rely upon the cases in which a receiver appointed by the 
Court of Chancery, has been held to be an agent sufficiently 
authorized to give a notice to quit. In Goodtitle d. King v. 
Wooiward{b), where the notice was signed by an agent, and 
purported to be given by him as agent for all the lessors of 
the plaintiff, (who were trustees for the repair of a highway «) 
it appeared that at the time that the notice was served,, the 
Mtbority to the agent had been signed by part only of the 
trustees, and that the rest had signed it subsequently ; and 
it was held that the subsequent recognition gave effect to 
the authority. So here, the bringing of this action is a 
fufficient recognition of the authority of the agent. The 
distinction is between a recognition of the notice, which 
would not be sufficient, inasmuch as the lessee must receive 
inch a notice as he can act upon at the time, and a recog« 
aitioQ of the agency, which is sufficient upon the principle 
adopted in Goodtitle v. Woodward — omnis ratihabitio retro* 
traUtur et mandato aquiparatur. In Right v. Cuthell{c) 
ikt notice was insufficient, because by the terms of the 
lease it waa required to be given in a particular form. 

(•) Tdt WiOdmon ▼. CoUey, (c) 5 East, 491; 5. C. differently 

S Ban, $694; Doe d. Marsack v. reported as to the proviso in the 

lUid; IS Bast, 57 ; H^nne v. Lord lease, 9 Smith, 83, 84 n. ; 5. C. 6 

JStBienmgK 1 Ves. jan. 165. Esp. N. P.C. 149. 

(i) 3 Bam.& Alders. 689. 


1830. Here, the notice upon the face of it, appears to be good, 
and the only question is as to the agency, which is suf- 
ficiently ratified here by the adoption of the act in bringing 
the ejectment. Rotoe d. Dean and Chapter of Rochester v. 

Pierce {a). 

Follett contr^. In Goodtitk v. Woodward, the notice 
was read to the tenant and not objected to by him. Here, 
the service was on the wife. The defendant could not have 
safely acted upon this notice. Nor was there, indeedi any 
evidence that the lessor of the plaintiff had authorized the 
bringing of iht present action. 

Bayley, J. — ^There must be a new trial. The autho- 
rity to give the notice to quit is a question for the jury. I 
at present give no opinion whether Goodtitle v. Woodward 
was rightly decided or not; but supposing that case to have 
been rightly decided, it does not make out the plaintiff's 
proposition, as no recognition of the agency before the daj 
of the demise laid in the declaration is shewn, which at all 
events is essential. 

LiTTLEDALE, J. — ^There must be a new trial. Upon 
this evidence, if I had been on the jury I should have 
found for the defendant. There was no proof of authority. 
The supposed recognition is clearly insufficient here. But 
my present impression is, that the notice to quit would be 
invalid unless it were ratified full six months before the 
day on which the notice would expire. 

'Parke, J. — I am not prepared to say that if the notice 
had been delivered personally to the defendant, and he had 
assented to the statement of Grylls^s being agent; the notice 
would not have been sufficient ; but it appears to me that 
there is no proof that the lessor of the plaintiff delegated 
any general authority to Grylls* 

{a) 2 Campb. 06. 


A persoo entrusted by the landlord to receive rents has isso. 
DO power to give notice to quit. ^^^"^"^^^ 

Rule absolute (a). <r. 

(«) See the cases collected and exanuDed in Doe d. EUioU v. HuUne, ^* 

Ha*mmond v. Blake. 

Debt upon 6 Geo. 4, c. 125 (A), for a penally incurred 
by the defendant for acting, himself, as pilot of a vessel of 
which be was master, and of which a duly licensed pilot 
had offered to take charge. Plea : nil debet. 

At the trial before Lord Tenterden, C.J. at the sittings at 
Guildhall after last Michaelmas term, a witness proved that he 
oflfered bis services to the defendant, who knew that he was a 
pilot, and refused to employ him, and continued to pilot the 
vessel himself, though navigating within the limits where 
he was bound to take a pilot, if one duly qualified should 
tender himself. It was not proved that the witness prth- 
duced his licence, and no question was asked about it. 

The master of 
a vessel does 
not incur the 
penalties im- 
posed by 
6 Geo, 4, c. 
126, B. 58, for 
refusing to 
take a pilot on 
it distinctly 
appear that the 
pilot at the 
time ofoffering 
his services 
produced hit 

(h) By which it is enacted (sec- 
tioo 58) " that every roaster of any ' 
sliip or vessel, 'who shall act him- 
9tif at a pilot f or who shall em- 
ploji or continue employed, as a 
pilot, any unlicensed person or 
»nj licensed person acting out of 
the limits for which he is qualified, 
or beyond the extent of his quali- 
fication — after any pilot licensed 
tad qualified to act as such, within 
the limits in vrhich such ship or 
vessel shall then actually be, shall 
have offered to take charge of such 
ship or Tessely or have made a 
signal for that purpose, shall for- 
feit for every such ofience double 
^ amount of the sum which 
would have been legally demand- 

able for the pilotage of such ship 
or vessel ; and shall likewise for- 
feit for every such offence an ad- 
ditional penalty of £d for every 
fifty tons burthen of such ship or 
vessel, if the corporation of Tri- 
nity House, of DeptfordStrondy 
as to cases in which pilots licensed 
by or under the said corporation 
shall be concerned, or the said 
lord warden for the time being, or 
his lieutenant for the time being, 
as to cases in which the cinque 
port pilots shall be concerned, 
shall think it proper that the per- 
son prosecuting should be at li- 
berty to proceed for the recovery 
of such additional penalty, and 
certify the same in writing/' 



18S(K For the defendaDt it was contended, that it was necessary 
to prove that the licence had been produced by the pilot, 
on the ground that a penalty is imposed by 6 Geo. 4, c. 125, 

Blaxs. 9. 66 ^£|)^ Qn pilots acting in that capacity without producing 
their licence. Lord Tenterden, C. J. adopted this con- 
struction of the statute and directed a nonsuit, which 

Scarlett, A. G. now moved to set aside, and contended 
that the production of the licence was unnecessary. The 
defendant thought fit to pilot the vessel after he had re* 
ceived an offer of the witness's assistance. It was proved 
that the defendant knew that the witness was a pilot The 
provisions of the sections 58 and 66 are separate and dis- 
tinct. If the defendant had demanded to see the licence 
under a doubt of the witness being a pilot, it might have 
been an excuse. But if he does not chuse to ask for it, the 
case must be decided according to the real fact. Where a 
provision is accompanied with a qualification in the same 
clause, the plaintiff is bound to negative the qualification. 
But if the clauses be distinct, the qualification is matter of 
defence to be proved on the part of the defendant. This 
may be illustrated by a reference to the game laws. In a 
declaration you must negative the exception, because it is 

(a) Which enacts, ^ that no be desirous of employiDg him as a 

person shall take charge of any pilot, or to whom he shall offer his 

ship or vessel, or in any manner services, on pain of forfeiting a 

act as a pilot, or receive any com- sum not exceeding 30/. nor less 

pensation for acting as a pilot, un- than 10/. for the first offence; and 

til his licence shall have been re- for the second or any subsequent 

gistered by the principal officers offence, a sum not exceeding 5QL 

•f the custom-house of the place nor less than 30/., and upon lor- 

at or nearest to vhich such pilot ther pain as to any person U- 

shall reside, (wliich officers are censed as aforesaid, of forfeiting 

hereby required to register the his licence or being suspended 

same without fee or reward), nor from acting as a pilot by and at 

without having his licence at the the discretion of the corporation 

time of his so acting in his per* or other authority from whidk 

sonal custody, and producing the such pik>t's licence was derivsd, 

same to the master of any ship or either for the first, second, or any 

vessel, or other person who dull sabsequtnt offence." 


coDtaiDed in the same clause (a). If it had been meant that 1830. 
the master should not be liable unlesa the pilot produced 
his licence, it would have been easy to have said so. 

Lord Tenter DEN, C. J. — ^We cannot say that a master 
is liable to a penalty for refusing to allow the pilot to do 
an act which would have rendered the latter liable to a 

Batley, J. — Though the 58th section contains no pro- 
I'ision for the production of the licence, the 70th section 
provides that no person shall take charge of a ship without 
producing his licence. 

LiTTLEDALE, J. — The Subsequent section contains a 
prohibition restraining all persons from acting as pilots 
without producing their licence. 

Parke, J. — Upon the evidence it must be taken that 
the licence was not produced. This is required by the act 
to be done before the pilot can take charge of the vessel. 
It is of great consequence that the master should have the 
means of knowing whether the person to whose care the 
ship is to be trusted is duly qualified. 

Tbe 66th section containing no provision requiring a de- 
mand of the production of the licence; the pilot must pro- 
duce it, whether demanded or not. 

Rule refused. 

U) But io a declaration for pe- evidence. Jelfs v. Ballard, 1 Bos. 

oalties (broSeoces against the game & Pol. 468, 469. 
lawB a general averment of want As to the course pursued with 

ofqualiScatioo is sufficient, without respect to negativing qoalification 

specially negativing the particular in cases of summary conviction 

^wKBcations mentioned in 32 St before justices, see Rat v. Stone, 
J«3 Car. 2, c. 35, Bhet v. NeedSf . 1 East, 639, 649; Ret v. Tyrner, 

3 Conyiis, Kep. 524. 5 Manle & Selw. 806; Rex v. 

Nor is it incumbent on the plain- Marsh, 4 Dowl. & Ryl. 360, and 

^towfsktart the qualiiications in 3 Bara. & Cressw. 717. 



s^^?^ Beknasconi and others v, Farebrother» Winchesteh, 

and Wilton. 

A trader does 1 HIS was an action of trespass, for breaking and entering 

not commit an . , . ^ . V . .«- , • • • 

act of bank- the house and lands of the plamtinB, and seizing and carry- 

7g7o r'c ''' '"8 "^"^ ^^^^^ Soo^s and chattels. 

16, sect. 3, by Plea by Farebrother and Winchester, first, not guilty, 
STunlCTshT secondly, a justification as sheriff of Middlesex, under a 
absent him- fieri facias against J. II. Chambers the elder, at the suil of | 
place at which ^^^ defendant Wilton^ under which they entered the dwel- 
1 '*'?S'^' '" ling-house in which &c., the door being open, in order to 
course of his seize the goods of A. H. Chambers the elder then being 

life and busi- therein, and did seize and carry them away. Replication: 

ness, ne ex* 

pected to be de injuria su& propria, absque tali caus&. i 

whShehas The defendant Wilton pleaded, first, not guilty; and 

appointed to secondly, that in Easter term, 8 Geo. 4., he obtained judg- 

lar creditors, ment against A, H. Chambers the elder, for 1828/. debt, 

A comrais- ^^^ 7/^ costs, whereupon he issued a fieri facias directed 
sionofbank- . "^ . 

rapt, describ- to the sheriff of Middlesex, which writ was delivered to 

Ls*«^ban^kere^* ***® defendants Farebrother and Winchester, then being 

being traders such sheriff, to be executed ; and that he, the defendant 

the^romion ^H^on, as the servant of the defendants Farebrother and 

of the suitute Winchester^ and by their command, entered the said dwel- 

tituled, &c." ling-bouse in which, 8cc., the door being open, and seized 

is good, ^uj carried away certain soods of A. H. Chambers the 

though they -^ ... 

had ceased to elder, then being therein. Replication, de injuria sua,&c 

b^fore^hat ^^ ^^^ *"** **®'^°''® ^^^^ Tenterden, C. J., at the ad- 

statute passed, journed Middlesex sittings after Hilary term 1829* the ^^^ 
for the word . . 

'•bankers "is was this :— 

descriptive of The goods in respect of which the action was brought 
only, and bad been the property of A* H. Chambers the elder, wba 
!!*f d**"^"ig a bad carried on business as a banker in partnership with his 
sufficient alle- son, A. H. Chambers the younger, until the year 1824, 
Sey°were,'as ^^^^ ^^^y 'topped payment. In November 1825 a com- 
snch, liable to 
the bankrupt laws. 

Such a commission may be supported by evidence of any species of trading carried 
on by the bankrupu after the passing of the statute. 


loission of bankrupt issued against them, under which the 18S0. 
present plaintiffs were chosen assignees, and in February r^^^^^^^^ 
1826 an assignment was executed to them :. but they did and others 
Dot declare in the present action as assignees of the bank- v ^' h 
rupts((i}. Subsequently to this assignment, the defendant andothersi 
Wilton had brought an action against A. H. Chambers Xhe 
elder, for an alleged debt of 1828/., in which action judg- 
ment was suffered to go by default, and a writ of fieri 
facias afterwards issued, under which the defendants Fare^ 
brother and Winchester, then being Sheriff of Middlesex^ 
seized the goods now in dispute. The commission, which 
was produced on the part of the plaintiffs, described the 
bankrupts as *^ bankers, being traders, according to the pro- 
visions of the act, 6 Geo. 4, intituled/' &c., upon which it 
was objected on the part of the defendants, that the Bank- 
rupt Act not having passed till 1825, and the bankrupts 
baTJng ceased to trade as bankers in 1 824, they had never 
traded as such since the act came into operation ; that it 
was necessary to shew a trading, such as that described in 
the commission, carried on since the passing of the act ; 

(ff) See the case, entitled Ber^ though they act as trustees for the 

MieoM atui others v. Farebrotker general creditors. Chambert be' 

ud Wincketter, Sheriflf of Middle- came a bankrupt in 1825, and the 

sex, and Henry Wilton, 7 Barn. plaintiffs were chosen assignees 

h Cress. 379, where a motion to immediatelj^ afterwards. Tliey 

stay the proceedings in thU action have been in possession of the 

ttotil the sheriff was indemnified, farm and stock ever since; they 

was refused, on that very ground. have renewed part of the stock. 

Lord Tenterden, C. J., there said, and have brought in fresh stock of 

"Ifwe were to stay this action of their own. After such a posses- 

tJespsss, we should take from the sion, the sheriff is to be deemed 

piaiDtiffit that ordinary protection prim& facie a trespasser if he 

to which they are by law entitled, levies upon it. He may, perhaps, 

In the first place, the plaintiffs do be able to defend himself in the 

notbriog this action in the charac- present action, by shewing that 

ter of assignees, but upon their the commission against Chambers 

owQ possession. If they had sued is invalid, but even such a case 

as assignees affirming the commis- would only protect him as to the 

sioojic would have opened another seizure of stock which had pre- 

consideration. They claim the viously belonged to Chambers^* 
property legally as their own, 


and that for want of such evidence the present commiuioB 
^^^y^ could not be supported. It was answered^ that it was uii* 
^d others necessary for the commission to describe the trading at all; 
Farebrotheb ^^^^ ^^® general term " traders " used in this comniissioo 
and others, was sufficient, and that the word '* bankers " might be taken 
as a description, not of the trade, but of the persons of the 
bankrupts; and that evidence of a subsequent and different 
trading, which it was proposed to give, would support the 
commission. Lord Tenierdeng C J. was of that opioion, 
and received the additional evidence, from which it ap* 
peared that the bankrupts, since the passing of the act, had 
carried on business, in conjunction with one White, as 
pozzolana manufacturers. An act of bankruptcy by Cham* 
bers the elder was clearly proved, and not, indeed, disputed. 
To prove an act of bankruptcy by Chambers the younger^ 
which was alleged to be by abunting himself from bis 
usual place of abode^ with intent to delay his creditors, the 
following facts were given in evidence. After Messrs. 
Chambers had stopped payment as bankers, a committee of 
their creditors was appointed to wind up the affiairs of the 
concern, which committee hired a house for that purpose in 
South-Molton Street, where they met and carried on the in- 
vestigation of the accounts. A letter of licence was granted 
to Messrs. Chambers to protect them from arrest, and they 
undertook to attend the committee in South-Molton Streeti 
and to assist them in winding up the affairs, whenever thej 
should be required so to do. The committee continued 
their investigation up to the 9th of November 1825, and 
up to that time Chambers the youi^er did attend them 
whenever he was required to do so. Upon that day the 
committee was dissolved, and the letter of licence revoked, 
and Chambers the younger was never afterwards seen in 
South-Molton Street. Between that day and the 19th of 
November, a sheriff ^s officer, who had a writ against him, 
frequently searched for him there, but always unsuccess- 
fully ; and it was afterwards discovered that, during thst 
interval, he was residing in a house in North Cresceat, 

HILARY T£RM> X 0£0. IV. 367 

Tottenimiii-Court Rosd, which be had occupied for two 1830. 

jcars. It was contended on the part of the defendants^ that S^^^^^^ 

this was not aufBcient evidence of an act of bankruptcy bj and otben 

Chambers the jounger ; but Lord Tenterden was of opinion p-^^BBaoTHE* 

that there was some evidencey though slight^ of an ab^ andotben. 

anting himself, and that it ought to be left to the jury. It 

was further contended, that Chambers the elder, having stfi- 

mtted to the commission and received the benefit of it, 

was estopped from disputing its validity in a Court of 

Law {a) ; and that Wilton had acted in colUisioa with him 

in obtaining his judgment, end was therefore estopped in 

like manner. Lord Tenterden was of opinion, that even if 

Wihon had acted collusively, (which was a qaestson for the 

jory), and was thereby estopped> the other defendants 

dearly were not; and left the case accordingly to the jury, 

who found a verdict for the plaintifKu In Easter term 

18^9, Gumejf obtained a rule nifi for a new triaU on the 

ground of the invalidity of the commission, and of the in* 

efficiency of the evidence of an act of bankruptcy by 

Chambers the younger. Lord Tentetdin referred to Small, 

Ei parte (b). 

Scarlett, A. G., F. Pollock, and Hutchinson shewed 
cause. First, the description of the bankrupts in the com* 
mission was sufficienti and the plaiotiffs were properly al- 
lowed to give evidence of a trading by them as pozsoiana(c) 
manufacturers. The commission described them as *^ bank- 
ers, being traders within the meaning of the statute 
t> Geo. 4, c. 16." The secofkl section of that statute con* 
tains an enumeration of the persons who shall be deemed 
traders liable to become bankrupt, and it was sufficient to 
shew that Messrs. Chambers came within the description of 
one or other of those persons. The word '' bankers " is 
descriptive, not of the trade, but of the person, and may be 
either treated as mere addition^ or rejected altogether as 

(a) See Watton t. Yf ace, 7 Dowl. cited. 
k Rjl. eSS; 5 Barn. & Cress. (6) 2 Wils. Chancery Cases, 85. 

15S, — end the authorities there (r) A sort of cement. 


1830. surplusage; and then the bankrupts will stand described 
„ ^'^^'^^ simply as *' traders/' which is quite sufficient. If they had 

BERNASCONf ,'^, ., , , .. ,, ....r 

and others heen described as '' traders, being bankers, instead of 
^* *• bankers, beinir traders," there micht have been some 


and others, ground for the objection. In Hale v Smali (a), a commis- 
sion of bankrupt was issued against a trader, describing 
him as *' a dealer in cattle, and seeking his trade of living 
by buying and selling/' without the words ''dealer and 
chapman/' At the trial of an action of trespass brought 
by him against his assignees, evidence was received of a 
dealing in hops, and a verdict was found for the defendants. 
That verdict was afterwards set aside, and a new trial 
granted, not upon the ground that the evidence was inad- 
missible, but that it might have operated as a surprise upon 
the plaintiff. On the second trial the same evidence was 
again received, after objection, and was held to have been 
properly received, as the words '' dealer in cattle " were 
descriptive of the person only ; and the general statement 
that the bankrupt got his living by " buying and selling," 
was sufficient to let in evidence of any trading whatever. 
Upon the same principle the language of the commission 
here, '' being traders according to the provisions of the 
statute," forms a sufficiently general statement to render 
evidence of any species of trading admissible (6). In £i 
parte Herbert (c) the bankrupt was described as ''a water- 
man, dealer and chapman," and Lord JEldon, C. held, that 
the general allegation which followed, of '* seeking a living 
by buying and selling/' was sufficient to render the com- 
mission valid. In Smith v. SandilaMds{d)t where the bank- 
rupt was described as *' money scrivener" o///y, it was held, 
by Holroyd,J.f that the plaintiff, in an action to try the 
validity of the commission, was not precluded by that 
limited description from proving any species of trading. 

(a) 4 B. Moore, 415; 9 Brod. (c) 9 Ves. & B. 399; 9 Rose, 

& Bingh. 25. Reported also in 8 248. 
Taunt. 730 ; 3 B. Moore, 58. (rf) Cow's N. P. C. 171. And 

(6) Vide Bemasconi v. Lard see Tanner, ex parie^ 1 Mont, k 

Clengall, nntty vol. i. p.S27,n.(&). Bligh, 391. 


In Bemasconi v. Lord Glengall(a), where the commission 18S0. 
stated that A. and JB., bankers, being traders according to Bebvascoki 
the provisions of the 6 Geo. 4, c. l6, some time since nad others 
became bankrupt, within the intent and meaning of that Fj^bebrothbb 
statute, it was held that it was sufficiently alleged that the and others, 
bankrupts had traded, and had committed an act of bank- 
ruptcy, since the passing, and within the operation of that 
statute. And Lord Tenterden, C. J./ in the course of his 
judgment, said, '' The use of the word ' bankers ' only ih 
this commission, without the words 'dealers and chapmen/ 
upon which an objection has been founded, presents in 
reality no difficulty at all ; because that word is descriptive, 
not of the tr<ide of the bankrupts, but of their persons only. 
The commission is awarded against them as ' being traders 
according to the provisions of the statute/ which is a per- 
fectly sufficient allegation of their being traders."(^) That 
seems decisive of the present case upon the first point. 
[Parke, J. Might not a commission of bankrupt issue 
against J. B. without^any description ?] 

Then, secondly, there was evidence to go to the jury of 
an act of bankruptcy having been committed by Chambers 
the jounger, by absenting himself from the house in South- 
Molton Street, and the jury having been satisfied with that 
evidence, the verdict ought not to be disturbed on that 
point. It was clear thzi Chambers the younger did absent 
himself from the house in South-Molton Street, and it was 
for the jury to say with what intent he did so. 

Gurney, on the following day, in support of the rule. 
The Court ought not to be called upon to make good the 
blunders of the parties. In Smith v. Sandilands (c) the 
parties had omitted to draw the legal .result. In Bemasconi 
v. Lord Gler^aU(d) this objection, was not taken, and the 
Court was therefore not called upon to decide the point. 

(a) Jnte, vol. i. p. 326. (c) Suprd, 368. 

(6)r6irf.830. (d) AnU/u S26. 

VOL. V. B B 


18S0. In Hak v. Small (a) the party was described as seeking his 
^^^^"^^^ living by buying and selling. Here« the manufactaring of 
and others cement would have been a particular instance of such 
^- trading. \Bayley, J. You do not notice the ChanceUor's 

and othen. order of 18X6, which directs that no commission shall be 
issued in which the bankrupt is described only as ''/crrmer, 
grazier, drover ^ or underwriter** {p\ and that, where no other 
description is given in the bond and affidavit, the words 
'' dealer and chapman" should be added in the petition sod 
commission.] That order does not apply since the late 
act. \^Bayley, J. The object of that order was to obviate 
objections on the ground of the non-appearance of the 
liability of the party to the bankrupt laws, and the conse- 
quent jurisdiction of the Chancellor to issue a commission. 
The only use of referring to it now is to shew that the 
Chancellor thought a specific order necessaiy.] 

Campbell, on the same side. As to the tradipg as poz- 
zolana manufacturers, the understanding of the profession 
has been, that in all cases where a different trading from 
that set out in the commission has been admitted to be set 
np, the commission has had the words dealer and chapman, 
or the party has been described as carrying on one of the 
trades mentioned in the act. This was the case in Herbert, 
Ex parte {c), and Hale v. Smalt. In each of those cases, 
the description of '* persons using trade of merchandize" 
occurs. To shew the general understanding of the pro- 
fession upon this point, Mr. Eden*s book(d), though not an 
authority, may be adverted to. In the case referred to bj the 
L#rd Chancellor, in Small Exparie{e), evidence of a trading 
of a different description from that mentioned in the com- 
mission was admitted under the general words ; because it 

(a) 8 Brod. & Bingh. 85, and 4 at that time brii«r the parties who 
R Moore 415, after a lecond trial, eiercised then, wiriim the ope- 
overruling S, C, upon a former ration of the bankrupt laws, 
trial, 8 Taunt. 730, and 3 B. (c) Sujtrd, 368, w/ri, 3T2. 
Moore, 58. (rf) Eden, B. JL first ed. 53. 

(b) Which occapations did not (e) Stqnri, 367. 

HILART T£RM, X 0£0. IV. 371 

was necessary for the plaintiff, vfho, by bringing an action 1830. 
complaining of a commission^ admitted that he was the per* n^^^*^^*^^ 
son against whom it issued, to shew, not merely that the and others 
commission was supersedable, but that it was absolutely » ^' 
void at law. As to the suggestion thrown out yesterday and others, 
by Parke, J. as to whether any trading at all was necessary 
to be stated, and whether a commission might not issue 
simply against A^ B,^ — it is to be considered that the power 
^veo by the commission" is enormous, extending tb the 
body, lands, 8lc. of the party : — In the exercise of such 
a power, it is necessary that the jurisdiction should be 
shewn. This is very analogous to the case of warrants 
granted by magistrates, in which it is necessary that it 
should appear upon the face of the instrument that the 
magistrate is acting within his jurisdiction, and that the 
party has been charged with an offience witliin his cogni- 
zance. In an award, the authority of the arbitrator need 
not perhaps be recited (a), — not so here. It is sub- 
mitted that it would not be enough to say ** being a 
trader." The second section enumerates the trades which 
subject and which do not subject the party to the opera- 
tion of the bankrupt laws. Both classes may be con« 
sidered to be traders, but the commission should shew that 
the party comes within the first division. It should state 
precise facts, or at least allege that the party was a dealer 
UKi chapman. Then the Court cannot strike out the word 
" bankers". The words '• bankers being traders" must 
mean traders as bankers. It would have been different, if, 
instead of "bankers/' the word "esquires'* or ''gentlemen'' 
had been used. Suppose the commission had stated that 
the Chancellor had been informed that Chambers had com- 
mitted an act of bankruptcy by publishing a declaration of 
insolvency in the London Gazette, such a commission could 
not have been supported by proof of any other act of 
bankruptcy. [^Parke, J. The commission does not state 
the petitioning creditor's debt, nor does it state the nature 

(«) The parties maat take notice of the terms of their own sobnussioa. 


of the act of bankruptcy.] It states that the party has 

become bankrupt; but it is submitted that the commission 
and others would be good« if instead of reciting that the party had 

^- become bankrupt, it had said '* provided he has committed 

and others, an act of bankruptcy, &.c/' A decision in favour of the 
present commission would lead to great looseness of de* 
scription. Before the Vice-Chancellor the point respecting 
the manufacture of pozzolana never arose, nor did it arise 
in Bernasconi v. Lord GkngalL \Scarleltt A. G. The 
trading as pozzolana- manufacturers was before the Chan- 
cellor.] The case went before the Chancellor upon the 
second point, — whether thp act of bankruptcy was sufficient. 
No act of young Chambers after the alleged act of bank- 
ruptcy can be given in evidence to support this commission. 
It might be said that Wilton is affected by the act of the 
elder Chambers in surrendering to the commission. It 
was necessary to prove an act of bankruptcy between 
the 1st of September and the 19th of November. The 
sheriff's officer proved a going to South-Molton Street, and 
that young Chambers was not found there, but there was 
no occasion for his being there after the committee for 
l^rinding up the affairs had ceased to act. {_Bayky, J- 
There was an accumulation of letters in South-Molton 
Street.] It must be a place from which he absents him- 
self. Where a trader breaks an appointment to meet a 
party at a particular spot, that is an absenting himself; but 
the usual case of absenting proved, is an absenting from the 
dwelling-house. Young C/uimbers*8 dwelling-house was 
in North Crescent, where no one went to inquire after 
him. There was no reason to suppose that he might not 
have been found there at any hour. The not going from his 
dwelling-house to South-Molton Street, where he had no 
business to transact, was not an absenting himself. Chant' 
bers had carried on business in Bemers Street. In 18^4 
Chambers ceased to carry on the business, and it was con- 
ducted under inspectors, who employed other bankers. 
This is not like the case which has been referred to of a 

' HILARY T£RM, X GEO. IV. 373 

limber-merchant winding up his business. The office in isso. 

South-Molton Street was taken by tht trustees. Young J^^"^^^ 
y„ . 1 1 i. • • ..... Bernasconi 

tnamben attended from time to time to assist m winding and others 

up the concern until the deed was executed, after which ^ ^' 

• 1 1 . -TT Farebrother 

te would have been an intruder and trespasser there. He and others. 

had no licence to go to South-Molton Street after the 9th 

of November. If a person changes his chambers in the 

Temple he would send for letters to his former residence, 

but it would be verj hard to say that he committed an act 

of bankruptcy in not going there. [Scarlett, A. G. The 

Cbaocellor has given judgment upon this very pointy as ap* 

pears fi-om the short-hand-writer's note. Lord Tenterden, 

C.J. It does not come to us properly accredited.] 

F. Kelly, on the same side. By the 8dd section of tho 
late statute^ the issuing of a commission is made notice to 
all the world for several purposes. Many questions in- 
volving property to a great extent have been decided upon 
this clause^ or upon similar provisions in former statutes. 
This might work great injustice ; for how can persons take 
notice, that the commission issued in the present form was 
in reality a commission not against Chambers and Co. the 
bankers, but against fVhite and Co. the pozzolana-manu- 
facturers? A commission might thus have the effect of 
directing the attention of the public to quite different per- 
sons from those against whom it was really taken out (a). 
In Herbert, Ex parte, the allegation of " seeking his living 
hj buying and selling" was the statement of a particular 
node of trading pointed out by the act. That is a matter 
of fact. Here, if the trading can be made out at M, it 
most be a conclusion of law. 

The alleged act of bankruptcy is open to this observa- 
tion—that the motive of the absence of young Chambers 
from the office in South-Molton Street is explained by the 
clause in the deed. He had nothing to do there but to 
come when he was required by the trustees. After the re- 
location of the letter of licence he had no business there, 
(a) Vide Sievem v. EUzie, 3 Campb. 956. 


1880. IBayky, J. He went for the letters. Lord Tenterden, C.J. 

^ ^'-^^'^ He leaves his books and papers there.] There was no cove- 

Bebkasconz , ,,.,., ,^, , J 

and others n&ot by young Chambers, as by old Chambers, to attend. 

c ^* The difference between the effect of the acts of old Cham- 


and others, bers and young Chambers was not pointed out to the jury* 
The learned judge told them that although any thing accom- 
panying the act of bankruptcy would be evidence against 
all the world, and that the conduct of the parties since (be 
commission, as the claim of protection by young Chambers 
immediately after the bankruptcy, might be taken into con- 
sideration^ yet what he said after the time of the supposed 
act of bankruptcy is not evidence for the defendants (a)» 

Scarlett, A. G. It is an important question whether a 
bankrupt^ by contracting new debts, shall enable creditors 
to dispute a commission which the bankrupt himself could 
not have disputed. 

Cur. adv. vult. 

Lord Tentbrden, C. J. afterwards delivered the judg* 
ment of the Court. After stating the objection to the form 
of the commission, his Lordship said '' We think that the 
word " bankers" as there used, may be considered as a 
description of the person ; that it is not necessary that the 
particular species of trading should be set forth ; and that 
the commission would have been good, if *' esquires" or 
" gentlemen" had been substituted for *' bankers.'* This 
objection therefore fails. 

The second ground of the application for a new trial is, 
that no such evidence was given of an act of bankruptcy 
committed by Chambers, junior, as ought to have been left 
to a jury. The plaintiff's answer to this objection at the 
trial waS| that the connection between Wilton and Chambers 
senior was such as to preclude Wilton from disputing the 
commission as against Chambers, senior ; and that be was 
therefore equally estopped from disputing the commission 

(a) Vide Smallcambe ▼. Bruges, M'Oel. 45, more ftiUy repotted 
13 Price, 1S6. 


IS tgtiast Chambers, junior. We think tbat however this 1830. 
fflay be with respect to fVillon, the other defendants, who ^ 
are not bound by any such estoppel^ have a right to require and otben 
(he plaintiffs to establish a valid commission, by shewing FAj^xBrnoraEa 
acts of bankruptcy committed by both. If Chambers, and others, 
junior, committed an act of bankruptcy, it must have been 
bj absenting himself; but this has been hitherto confined 
to the case of a party absenting himself from his regular 
place of business, at which a man would be expected to be 
found, or from one or more particular creditors ; for in- 
stancei the Royal Exchange^ where he expected to meet 
the persons to whom he was indebted ; going behind the 
Kenesat the theatre to avoid them; and so on. Now 
there was, at the time at which this act of bankruptcy is 
supposed to have been committed, really no place of busi* 
oess, properly so called, to which the younger Chambers 
could have occasion to resort. The business of the bank- 
ing-bouse had, for a considerable time before, been placed 
under the management and control of a committee ; and 
10 long as the committee continued to act, so long the 
7onnger Chambers attended upon them at their meetings 
whenever they wanted him. The committee, under a 
clause in the deed, put an end to the trust, and revoked 
the deed; the consequence of which certainly was, that 
the books and all the concern would return and devolve 
>gain upon the two Chamberses, But it does not appear 
that there was any business for either of them to transact 
at this place in South-Molton Street. It is true, their 
names were over the door, but there does not appear to 
hare been any thing they could have done, or had occasion 
to do, by attending at that house. Inquiries were made 
for the younger Chambers there, and it appears that no 
person there could say where he was. Inquiries were also 
made for bioi at his father's, but there no information could 
be obtained respecting him. There is no proof, however, 
that he directed any person to either of those places, but 
that they inquired there in consequence of not being aware 


1830. what .was his place of abode. . It appears that, after somet 

^•^^^'^^^ time^ a person came to the house in South-MoUon Street, 

and others ^^d fetched away such letters as had in the interval been 

^' left there for Chambers and Son; but what was his autho- 


and otbera. rity for so doing. does not appear, nor whether it was at all 
under the direction of the younger Chambers. It further 
appears^ that long before the time at which he is supposed 
to have committed an act of bankruptcy by absenting faim- 
selfy he had a house in one of the Crescents in the neigh- 
bourhood of Tottenham-Court Road. He had been re- 
peatedly seen in that house for some period previously to 
that. One sheriff's officer had known where to find him, 
and had arrested him there some time before; and other 
sheriff's officers, in whose hands writs were placed (for 
there were many writs out against both the father and the 
son), not being aware that he lived at that place, knew not 
where to look for him ; and it appears further, that as sood 
as the commission issued he made bis appearance, and 
took the benefit of it. Still we cannot allow the verdict to 
stand, if this evidence was not sufficient to justify the 
jury in coming to the conclusion that this party had com- 
mitted an .act of bankruptcy, within the meaning of the 
statute ; and he not having absented himself, as far as we 
can judge from the evidence, from any place in which, in 
the ordinary course of his life and business, he would be 
expected to be present, namely, his place of abode, or any 
place in which he had business to transact, we tbiuk that 
the second objection ought to prevail, and that upon that 
objection, and that alone, there ought to be a new trial. 

Rule absolute for a new trial (a). 

(a) And see Woodmason, Ex Ex parte, «6u/. 995; Bemdlesy Ex 

parte, 1 Cox, 308; Stevens v. parte, ibid, 943; Hortlejj Ex 

Elizce, 3 Campb. 956, and 1 parte, 9 Madd. 11; Day, Ex 

Rose, 360; Schofield, Ex parte^ parte, Mont. & Mac. 208; SM- 

2 Rose, 946; Beckwitk, Ex parte, bolt, Ex parte, MonL 89; Sam- 

1 Giyn & Jameson, 20; Smith, bourne, Ex parte, 2 Deacon & 

Ex parte, ibid, 956 ; H^ride, Ex Chitt. 22 ; Farebrother v. ITors- 

parte, 9 Olyn & Jam. 99 ; Parri/, ley, 1 Crompcon & Jervis, 549. 


Isaac V. Impey and others. 

Trespass, for false impriaoDment: Plea, not guilty, and Commission- 

issue thereon. At the trial before Lord Tenterden, C. J. at ^^^^ ^^y^ ^^ 

tbe London adjourned sittings after the last term, the case authomy to 

. . commit au 

wu this : — ^The defendants were commissioners under a examinant for 

commission of bankrupt, issued on the 13th of June, 1827i ^f(»>ng>upon 

• rcc|uc9tj to 

against one Samuel Owen. The plaintiff had been sum- read an entry 

mooed before the defendants, as a person capable of giving *" ^ exami* 

iDformation concerning the person, trade, dealing,. and estate nant being 

of the bankrupt. It appeared by the defendants' warrant j^the com- 

of commitment that the plaintiff had been examined several missionen to 
, - , . , ... "^^^ an entry 

tunes before them, m order to ascertain whether certam in a ledger, 

securities were affected with usury. At the last meetine an^^^^iog 

•^ . ^ to do so, was 

he had been examined touching certain sums of money bjr them corn- 
entered in his books of account, amounting together to "fu^jnJ ^ 
9000/., which was, as he had stated, composed of two sums, answer a^ 
the proceeds of Russian stock, the property of a Mr. Leon. ^dd,*^hatthe 

Tie examination then proceeded as follows : — request to read 

was neither in 
^ Q. Does the account headed " Russian Stock '' in ledger form nor sub- 

G., p. 101, contain an account of all the purchases and *^"^Vat"the 
sales of Russian stock, for Mr. Leon's account, made by commitment 
fou? was illegal; 

^ "" and that an 

A. Yes, it does ; — as well as of those purchased by action of tres- 

Mr. Leon himself. thTc^f^ 

Q. Do you mean to state, that in such account there are sio"^" ^^^ ^^ 

entries of Russian stock purchased and sold — or purchased was maintun- 

or sold, — by Mr. Leon. himself, on his own account? ***^®* 

A. Yes ; — both bought and sold by Mr, Leon himself. 

Q. Refer to ledger G. and to the account in it headed, 
''Russian Stock." 

A, I have now referred to it. 

Q. You are now requested to read all the entries in that 

A. Acting under the advice of my counsel, I demur to 
answer the question, inasmuch as the matters in that account 



laao. are not relatiDg to the bankrupt, Owen. It is, therefore, I 
submit, with the advice of my counsel, that I am not bound 
to read the entry ; and I request the commissioners to allow 
d^^hl ^^ ^^ consult my counsel on the propriety of the question 
put, so that I may give a proper and legal answer to it. 
But in case the commissioners refuse, I request that my 
counsel may be allowed to enter, for me, such proper pro- 
test as he may see necessary. When I say that 1 demur to 
answer the question, I mean to say, that I refuse to comply 
with the request to read the entries contained in the account 
alluded to." 

The warrant then concluded in these terms :— 

** Which last question the witness having so refused to 
answer, these are, therefore, &c. him to keep without bail 
&c., until such time as he shall submit himself to us, the 
said commissioners, and full answer make, to our satisfaction, 
to the said question" 

Lord Tenterden was of opinion, that the request to the 
plaintiff to read the entries was not a question either in 
form or substance, and, therefore, that the warrant, which 
purported to commit the plaintiff for not answering a legal 
question, and to require his detention until such supposed 
question should be answered, was illegal. 

The jury having found a verdict for the plaintiff, with 
250/. damages, 

JP. Pollock now moved for a new trial. First, this action 
is not maintainable at all against these defendants. It was 
decided by this Court, in the case of Doswell v. Impey (a), 
that trespass will not lie against commissioners of bankrupt 
for committing a witness to prison for not satisfiactorily 
answering questions put to him while under examination, 
even though the questions may appear to the Court to have 
been satisfactorily answered. [Lord Tenterden, C. J. The 
objection here is, that the plaintiff was committed for not 

(a) S D.& R. S50; 1 B. &C. 163. 


answerkig a question^ when^ in fact, no question was asked 
of him.] It is submitted that the commissioners did, in 
sabstance, ask the plaintiff a question, when they desired 
liffl to read the entries in a particular account. The ex- 
pression of that desire must have given the plaintiff to 
onderstaDd that the commissioners required information re- 
specting that account ; and the mode in which that infor- 
mation was sought for, though not strictly in the form of a 
question, was really one in substance* It is clear that the 
plaintiff so understood the language of the commissioners^ 
for be says expressly, '' I demur to answer the question." 
[Bayky, J. He explains that by adding, " When I say that 
I demur to answer the question, I meun, that I refuse to 
comply with the request to read the entry." The com- 
missioners had done no more than request the plaintiff to 
read an entry, which they might equally well have read 
themselves (a).] The language of the warrant, namely, that 
the witness refused to answer a question, is satisfied^ if it 
appears that the mind of the witness was informed that the 
commissioners required information, and he withheld it. 
Here, the plaintiff must have known that the commissioners 
did not want him to read the entry, but to give them an ex- 
planation of its contents. The refusal to comply with that 
request, was a refusal to give the commissioners the infor- 
mation they required, namely, an explanation of the entries 
in the account. In Davie v. Mitfordip) a bankrupt who 
had been committed for not producing a balance-sheet, was 
heM to have been properly committed. Although his was 
not, in strictness, a commitment for not answering a question^ 
that case is analogous to the present, and seems to justify 
the application which is now made. 






and ochen. 

Lord Tbkterden, C. J. — ^The authority of commissi- 
oners of bankrupt to commit persons summoned before 

(a) The examinaot woald rather 
^)pear to have been directed to 
vMd the entries to himself as pre- 

paratory to farther qaestions being 
pnt with respect to such entries. 
(b) > Bam. & Alders. 356. 




them to give evidence touching a bankrupt's estate^dependf 
entirely upon the Bankrupt Ac t^ 6 Geo. 4^ c. l6; and to that 
we must look for the purpose of seeing m what cases they 
are authorized to commit. Now, the onlj two cases in 
which that statute authorizes them to commit witnesses are, 
firsty for a refusal to answer lawful questions respecting the 
bankrupt's estate; and, secondly, for a refusal to produce 
books or other documents (a). It is impossible to say that 
the plaintiff in this case came within either of those pre- 
dicaments ; he did not refuse to answer any question ; he 
did not refuse to produce any book or document. All that 
he did was, to refuse to reaid an entry in an account which 
he had produced, and which the defendants might have read 
for themselves (6). The Bankrupt Act does not give the 
commissioners power to compel a witness summoned before 
them to read documents; much less does it give them 
power to commit such a witness for refusing to read an 
entry from a document which he has produced before them. 
It seems to me that no man of plain common sense can 
contend that requesting a person to read an entry in an ac- 
count, is asking him a question. 

Ba YLEY, J. — If the plaintiff, iafter notice, had refused to 
produce his ledger, and had thereby prevented the commis- 
sioners from reading the entries, they might have cooimitted 
him, and he would not have been entitled to his discharge 
until he had produced it. The warrant of commitment 
states that the plaintiff was committed for refusing to answer 
a question f the examination, on the contrary, shews that 
the commissioners requested him to read certain entries in 
a book, and that he refused to do so. It is quite impos- 
sible to say that the requesting the plaintiff to read those 
entries was, either in form or substance, putting a question 
to him ; and if so, the commitment was clearly illegal, — for 
he has been committed for refusing to answer a question 
which was never asked him. 

(fl) Vide section S4. (b) Vide tupri, 379 (a). 


LiTTLBDALE, J. and Parke, J concurred. 

Rule refused (a). 

(a) See Ex parte ItaaCy in re illegal. That Coart discharged 
OiKx, a bankrupt, 3 Y. & J. 38, the applicant out of cutody, hold- 
«hich was an application to the ing, that cqpimissioners of bank- 
Court of Exchequer to discharge nipt ha^ no authority to commit 
the plaintiff in the principal case a witness for refusing to read an 
Ml of cnstody, upon the ground entry in a book; and holding also,. 
rl»t bis commitment, (the same that refusing to read an entry was 
stated in the principal case,) was not refusing to answer a quesUoo. 

Robertson v. Kensington and another. 

1 ROVER^ for coffee-warrants. Plea : not guilty ; and The right 
issue thereon. At the trial, before Lord Tenterden, C. J., unjer^e G* 4 

It the London adjourned sittings after Michaelmas term c. 94, s. 5, to 
lo^i/^ 1 1 • pledge the 

1828, the case was this : — ^ds of his 

The plaintiff was a merchant at Pertb^ where he carried pnnt^ipalf d«- 

on business jointly with the firm of Young, Ross &. Co., in the question 

which he was a partner, and also separately on his own ac- thlTface'o*^^ 

county and was in the habit of consigning to Fennell & Son, whoU account 

commission-agents in London, various goods for sale on thel>rfncipar' 

commission, some belonging to his firm jointly, and others! » indebted to 

belonging to himself separately. The goods, when re- a factor, 

ceived by Fennell & Son, were, at the plaintiff's desire, ^7 ^^V^. °^, 
.... . . his pnncipal, 

distinguished by them by marks in their accounts-sales, the kept separate 

accounts of 
sajles, m some of which the principal was solely, and in others but partly, interested ; 
bat be regularly posted all tlie items of both those accounts into one general account. 
The factor pledged goods consigned to him on the joint account, for the purpose of 
neeciog a draft drawn on him by his principal against that account At the time of 
the pledge, the factor, upon the general account, was indebted to his principal in a 
larger sum than the amount of the draft; but upon the separate account, against 
which the draft was drawn, and to which the goods pledged belonged, the principal 
was indebted to his factor. Held, that the factor had no right to pledge, and that the 
pkdgee could not retain the goods against the principal. 

Where, in such a case, the principal for some time after notice of the pledge, for- 
bore to make any demand upon the pledgee: — Held, that such forbearance was not an 
ioqaiesoence in the pledge,— and that in the absence of any evidence to shew that the 
dfect of such forbearance had been to alter the situation of the pledgee for the worse, 
or that of the principal for the better, the right of the principal against the pledgee 
remained entire. 



1830. goods beloDging to the firm being carried to an account 

called the H. JR. account, and those belonging to the 

plaintiff to one called the H. F. account. Both, however, 

Kensington ^ere posted up into one general account with the plaintiff, 
and another, n *f o *-. i i i- . , .• 

Fennell& Son had no direct correspondence or dealing 

with any other of the firm of Young, Ross & Co. In 1826 
Fennell & Son received a consignment of coffee on the 
joint, or H» K., account, for which they procured the 
delivery-warrants, the subject of the action, in the usual 
course. Shortly afterwards they received a letter from the 
plaintiff, in which he said, ''To reimburse Mr. Hunter for 
some payments, I have this post sent him my draft on you 
at three months for 1278/. 105., on account of the if. R. 
account; which please honour: if you are not in funds 
when it becomes due, it can be renewed.'' The bill there 
mentioned was accepted by Fennell & Son, and became due 
on the first of May, when they, not being in funds, applied 
to the defendants, who were brokers in London, for an ad- 
vance of money to meet the bill, offering to deposit with 
them as a security the coffee-warrants in question. The 
defendants thereupon gave their acceptance for IdOO/. to 
Fennell & Son, who got it discounted, and with the pro- 
ceeds paid the bill due to Hunter; and Fennell fl Son de- 
livered to the defendants the coffee-warrants in question. 
The defendants were informed that the advance was wanted 
to take up the plaintiff's bill, and it was stated to them by one 
of the FennelU, that it would be a great injury to tbem if 
that bill was not taken up. At this time Fennell & Son 
were indebted to the plaintiff on the whole account, in 
1500/. ; but if the two accounts were separated, there was, 
npon the H» JR. account, a small balance due from the 
plaintiff to them. Fennell & Son afterwards became bank- 
rupts, and in September 1827| they, for the first time, in- 
formed the plaintiff of their having pledged the ^varmnts 
with the defendants. The plaintiff then desired that no 
demand should be made on the defendants for the warrants 
until he had settled accounts with the FennelU i and no 
such demand was in fact made till the end of October 


1887; and then oo offer was made by the plaintiff to isso. 

satisfy aoy supposed lien of the defendants. In April 

1824 the plaintiff had written to Fennell & Son, saying, 

"For the account of the H. R. I inclose the following, per Keksinoton 

and aDother. 
Alfred, iu:. I inclose two bills of lading for a different 

iccouDt, say H. F., and these you will keep entirely sepa- 

rate and apart, taking my instructions and holding the 

proceeds at my disposal." In point of fact, the accounts of 

sales had been kept distinct before the receipt of this letter, 

and DO alteration was made afterwards in the mode of 

posting the accoants, the whole being brought into one 

general account with the plaintiff as before. 

It was contended on the part of the defendants, first, 

tkat as the goods consigned to Fennell & Son belonged to 

two aets of persons, whose distinct interests in them were 

known to the consignees, who were expressly required, by 

the plaintiff himself, to keep separate and distinct accounts 

for each, they, as factors, had a right to do so, and to insist 

OB their lien for the balance due to them on the account to 

which the coffee belonged at the time of the pledges, (which 

was Ike H. R» account), and, consequently, that the de- 

feodants were entitled, under statute 6 Geo. 4, c. 94, s. 5 {a), 

to Hi up that lien as a defence to the action ; secondly, 

that the plaintiff was by his own conduct estopped from 

<^jing the right of the defendants to set up such lien, be- 

caase by neglecting to demand the warrants as soon as he 

knew of the pledge, he had in effect assented to and 

airmed it ; that, at any rate, his demand came too late, for 

that he had no right to lie by for a period during which the 

(fl) Which enacts, 'Hhat it shall said goods, &c., than was posses- 

^ lawful to and for any person to sessed or coold have been enforced 

vcepc and take any goods, &c., hy the said factor or agent at the 

in deposit or pledge from any fac- time of such deposit or pledge; 

toror agent, notwithstanding such but that such person shall and 

posoQ shall have notice that the may acquire, possess, and enforce 

posoo jnakiog snch deposit or such right, title, or interest, as was 

pledge is a factor or agent; but possessed and might hate been 

^ in that case snch peison shall enforced by such factor or agent, 

icqiore no farther or other right, at the time of such deposit or 

<>t^ or inCerest ib, upon, or to the pledge.*' 





aud another. 


situation of the parties, either way* might have been mt» 
teriallj altered. 

Lord Tenterden, C. J., was of opinion, — first, that as the 
dealings of Fennell & Son were with the plaintiff alone, as 
it was for his use only that the goods were distinguished by 
separate accounts, (apparently for convenience,) which were 
all, as between the factors and the plaintiff, brought into 
one general account, upon which they were indebted to the 
plaintiff, the plaintiff had as against them, and, therefore, 
as against the defendants, the legal title to the whole; and 
that the defendants had no right to insist upon a lien as to 
a particular portion of them ; — secondly, that the mere neg- 
lect of the plaintiff to demand the warrants for some time 
after he was informed of the pledge, could not be taken as 
an assent to or affirmance of the pledge, — at least without 
evidence to shew that the situation of the defendants had 
been made worse, or that of the plaintiff better, by means 
of the delay : and no evidence of that sort being given on 
the part of the defendants, the jury, under his Lordship's 
direction, found a verdict for the plaintiff. A rule nisi for 
a new trial having been obtained in the following term 
upon both points, 

Scarlett, A. G., and Campbell, now shewed cause. It is 
clear that the statute (a) gave the defendants no authority 
to hold the warrants against the plaintiff, unless Fennell & 
Son, the factors, who pledged them, had themselves a lien 
upon them against the plaintiff, at the time of the pUdge. 
Now Fennell & Son had no lien at the time of the pledge. 
It was in evidence that at that time Fennell & Son were in- 
debted to the plaintiff, upon the whole account between 
them, in a larger sum than that for which the warrants were 
pledged. By what right can the defendants assume to dis- 
sect that account, distributing some of the goods toff, i!., 
and others to H, F,, merely to snit their own purpose in 
saying, '' these warrants belonged to H. R. f*" As against 
(a) 6 Geo. 4, c. 94, s. 5. See the preceding note. 



ttnntU & Son, and, consequently, as against the defendants, 1830. 

who can stand only upon the rights of Fetmell & Son, all 

the goods were the property of the plaintiff| by whom, ex- v. 

dusifcly, Fennell & Son were employed ; though it might fnTano^heJ! 

be necessary, for his own convenience, that he should 

direct his agents to distinguish the several accounts. If the 

warrants had remained in the possession of Fennell & Son, 

the plaintiff might have sued them for them in his own name 

only, and they would have had no answer to the action. 

Then it is said that the plaintiff has acquiesced in the 
pledge, and cannot now dispute its legality. There is 
no evidence to support such a proposition. All that the 
plaintiff did, was to delay demanding the warrants from the 
defendants, until he had, by an investigation of the accounts 
between himself and Fennell & Son, ascertained whether 
the latter had any lien upon the warrants, which could by 
means of the pledge have passed to the defendants ; and 
having satisfied himself tliat no such lien existed, he made 
a demand of his property, and upon a refusal brought the 
present action. It is impossible to hold that this amounted 
to an acquiescence in the pledge, and therefore, upon both 
the points made at the trial, the plaintiff is entitled to 
retain the verdict. 

Denman and Hibbert, contri. It is admitted on the 
other side that the accounts were kept distinct by the ex- 
press direction of the plaintiff himself; therefore it cannot 
be nrged as an argument in his favour, that those accounts 
were afterwards posted into one general account. He had 
always the means of ascertaining at once what was the 
exact state of each account, though both might be transmitted 
to him upon one sheet of paper. The subsequent reduc- 
tion of the two accounts into one general account, cannot 
alter the legal character of the original arrangement. The 
plaintiff had the benefit of the 1300/. advanced by the de- 
fendants upon the warrants ; and his bill, to provide for 
which that money was so advanced, was drawn specifically 

▼ou V. CO 




and another. 


ttgahiBt the M. R. irccounty to which tfafe goods repre^ 
seated by the warrants belonged ; and, bat for the m6\tq 
procured by means of the pledge, the plaintiff must have 
paid that btl) himself. [Lord Tenterden, C. J. The F^nnelh 
clearly considered that they wete borrowing the money for 
their own accommodation, for they said at the time, that it 
would be a great injury to them (a) if the bill was not paid.] 
The Fennelk had once a lien as against the plaintiff upon 
the H. R. account, and nothing having been done to satisfy 
or destroy that lien, it passed to the defendants by opera- 
tion of the statute. As to the affirmance of the pledge, 
the plaintiff, by not interfering after he knew of the pledge, 
must be taken to have acquiesced in it. Whether the situa- 
tion of either party was improved or otherwise, is not the 
question ; the plaintiff had no right, by his silence, to lead 
the defendants to suppose that he acquiesced in the pledge; 
and having done so, he must not now be allowed to evade 
the consequences of his own neglect. 

Lord Tenterden, C. J. — I am of opinion that the 
plaintiff is entitled to retain the verdict in this case. All 
the goods that came to the hands of Ftnnell & Son, came 
to them directly from the plaintiff. He was the only per- 
son with whom they had any correspondence or dealing 
with relation to the goods, or with whom they kept any 
account. At his desire they made a distinction as to par- 
ticular goods coming by particular ships. That was done 
in order that he might know how to charge or give credit 
to other persons jointly interested with him in those goods; 
but they also kept one general account with him ; they 
made him debtor and creditor for every item, whether the 
goods came by one ship or another ; in short, he was the 
only person with whom they dealt Such being the rela- 
tive situation of these parties^ it is perfectly clear that fen- 
fiell & Son could have no right to separate the account, for 

(a) The injury to the FenmdU 
would have been the disclosure of 
their insolvency, — to the plaintiff 
the liability to take up his dis- 

hoooured draft, — finom which he 
was redeemed by the advance 
made by the doleiidaiits oo the i 

HUJiKT TERM, X QEp. IV* 387 

the pttrpof e of giving themselves a lien od a particular part issQ. 
of it; but that, as between tbem and the plaintiff, they ^'^^^^ 
codM look only to the whole account, and that if, upon the 9. 

bee of that, they appeared indebted to the plaintiff, they Kbotihoton 
bid DO lien, and consequently could transfer none to the 
persons to whom they professed to make the pledge. 

But it has been urged on the part of the defendants, that 
the plaintiff, by forbearing to give notice that the goods 
were his as soon as he heard of the pledge, acquiesced in 
and affirmed it. The doctrine that a mere nonfeasance can 
operate as an act of confirmation, unless it be followed by 
cerlun consequences, I cannot concur in* If it had ap* 
peared in this case that the consequence of the plaintiff's 
forbearing to give notice had been an alteration in the de- 
faidants' situation for the worse, or even in his own for the 
better, there might have been ground for the argument; 
but nothing at all of that sort appeared upon the evidence* 
That being so, it seems to me that there is no ground for 
contending that the plaintiff by his forbearance acquiesced 
io the pledge. 

He present rule, therefore, must be discharged. 

Batlby, J. and Iattlkdalb, J, concurred. 

Rule discharged (a), 
(a) Parke, J. was gone to chambers. 

Cooper v. J. Meyer and W. B. Meyer. 

Assumpsit, by the plaintiff as indorsee, against the By acceptina 
defendants as acceptors, of three bills of exchange, one of ^^/^^^ 

which purported to be drawn by Edmund Woodman, pay- er*B order, 

drawn and 
todoned in a fictitious name, the drawee undertakes to poy to the signature of the 
fine persoo as indorser, who signed as drawer. 

The indoraee of such a bill suing the acceptor, may, by comparison of the signatures^ 
iWw that the diawing and the indorsement are in the same hand-writing. 

c c £ 


able to his order, indorsed by him to John Darby & Co., 
and by them to the plaintiff; the others purported to be 
drawn by Henry Vllock & Co., payable to their order, in- 
dorsed by them to Johi Darby & Co., and by them to the 
plaintiff. Plea : non assumpsit, and issue thereon. At the 
trial before Lord Tenterden, C. J., at the London adjourned 
sittings after Michaelmas term, 1823, the case was this:— 
John Darby was a tradesman, carrying on business under 
the firm of John Darby & Co. The defendants were in 
partnership as American merchants. The bills in questioa 
were, in point of fact, drawn by Darby. There was no 
person in trade of the name of Edmund Woodman. There 
was a person of that name, a relation of Darby^ but be, 
being examined on the trial, stated that he had never autho- 
rized Darby to use his name. There was no firm of Hinry 
UllockSi Co,; there was a firm of Ullock, Lancaster & Co., 
but a member of that firm being examined, stated that 
Darby never had authority to use their names. The bills 
thus drawn by Darby, were accepted by J. Meyer, one of 
the defendants, in the name of the firm, for the accommo- 
dation of Darby. Being accepted. Darby indorsed them: 
the bill payable to the supposed Edmund Woodman he first 
indorsed in that name, and afterwards in the names of 
John Darby & Co.; the bills payable to the supposed 
Henry Vllock 8l Co. he first indorsed in those names, and 
afterwards in the names of John Darby 8l Co. Tbe bills 
thus indorsed were taken to a person named Green, a re- 
lation of the plaintiff, and were by him discounted for, and 
with the money of, the plaintiff. The defendant J. Meyer 
afterwards admitted to Green, in the presence of Darby, 
that neither he nor his firm ever had any dealings with the 
supposed drawers of the bills, and that he did not know of 
such a firm as Henry Vllock & Co. When this admission 
was made, the other defendant was abroad. A witness, called 
for the defendants, stated that he did not believe that the' 
drawers* and indorsers* names were written by Darby. Ooi 
cross-examination, he was asked, whether he believed thel 
bills to have been signed and indorsed by the saaie person. 

HILARY T£RH, X Q£0. IV. 389 

This was objected to as a comparisoo of hand-writing (a), i^^* 
but Lord Tenterden allowed the question to be put, and the 
witness answered it in the affirmative. His lordship then 
(old the jury, that as there was no proof of the existence of 
such persons as Woodman and Ullock & Co.« in whose 
names the bills were drawn, it was sufficient^ as against the 
acceptors, to prove the indorsement to be in the same hand- 
writing as the drawing, which had been done; but he de- 
sired them to say, whether, upon the evidence before them, 
tbej believed the bills to have been drawn and indorsed by 
Darbif. The jury said they did, and found a verdict for 
the plaintiff. In Hilary term, 1829^ a rule nisi for a new 
trial was obtained, on the ground, first, that the question 
objected to at the trial should not have been allowed to be 
put; and secondly, that the case was not correctly left to 
the jury, inasmuch as it was competent for the defendants, 
as the acceptors, to dispute the regularity of the indorse^ 
nunU, although they admitted the bills to be regularly 
draum^ and although the bills appeared to be drawn and 
indorsed in the same hand-writing. 

Scarlett, A. G. and Campbell, now shewed cause. It 
must undoubtedly be admitted as a general principle, that 
a mere comparison of hand-w*riting cannot be allowed as 
evidence of a particular written document ; but this is a 
very peculiar case, and must be considered as excepted out 
of the general rule. But the question objected to in this 
case, was not strictly a comparison of hand-writing. - The 
bills were evidently drawn in fictitious names, and the ques- 
tion asked of the witness was, not whether the bills were 
indorsed by one person or by another, but whether they 
were drawn and indorsed by the same person. That ques- 
tion seems unobjectionable; and the question left to the 
jury was equally so, for they were only asked whether they 
believed the bills to have been drawn and indorsed by 
Darby; and there certainly was ample proof to justify them 

(fl) Vide 2 Stark. Evid. 9d cd. 374, 6; 1 Phill. Ev. 7th ed. 490, S.- 


1830. in finding that they were so. Under the circumstances of 
this case^ it was not competent for the defendants, as ac* 
ceptors of the bills, to dispute the validity of the indorse- 
ments. If a bill is drawn in favour of a fictitious payee, 
and that circumstance is known to the acceptor as well at 
the drawer, and the name of such payee is indorsed on the 
bill, an innocent indorsee, for a valuable consideration, may 
recover upon it against the acceptor; Gibson v. Minet{a), 
Gibson v. Hunter (6). So here, the defendants, by accept- 
ing the bills so drawn, recognized the authority of Darby 
to draw them in fictitious names, and also gave him autho- 
rity, as against themselves, to indorse them in those names. 
Besides, here there was the admission of one of the defend* 
ants, (which was equally binding on both,) that he had 
accepted on the credit and for the benefit of Darby, and 
that he knew there were no such persons as the supposed 

Gumey and F. Pollock, contrA. The bills were accepted 
by one of the defendants in the name of the firm in which 
they were partners ; but they were drawn in fictitious names, 
and were in fact forgeries; and one partner cannot bind 
another by his acceptance of a bill which is a foi^geiy* 
Neither ought the admission made by one of the defend- 
ants to be held binding upon the other, who was not pre- 
sent when it was made, but out of the country, and entirely 
ignorant of the transaction. The admission itself amounts 
to very little; it only shews that at that time the defendant 
J. Meyer knew of no such persons as the drawers, which 
is not inconsistent with the fact of his believing, at the lime 
of the acceptance, that such persons existed. Although the 
defendant J. Meyer has by his acceptance precluded him- 
self from disputing that the bills were duly drawn, it was 
still competent for him to dispute that they were duly in- 
dorsed; for the acceptance of a bill of exchange admits 

(a) 1 H. Bla. 569; 3 T. R. 481; (b) 2 H. Bla. 888; 6 Bro. P. C. 

2 Browo, P. C. 60, Sd edition. 395, 2d edition. 


merdy the drawing, but not the indorsement of the drawer; 18S0. 
Rdimon v. Yarrow {a)i where it was held, in an action by c" 
the indorsee against the acceptor of a bill, drawn and in- v. 

dorsed by procuration, that the indorsement by procuration MEYEa, 
not being proved, the plaintiff was not entitled to recover. 
That is an authority to shew that the indorsements in this 
case should have been proved in the regular way. The 
eyidence that the drawings and indorsements were in the 
same hand-writing should clearly not have been admitted. 
If it were admissible in this case, it would be equally admis- 
sible in all others; for the acceptor is always precluded from 
disputing the hand-writing of the drawer. 

Lord TsNTEBDEN, C. J. — I am of opiniop that both the 
defendants are bound by these acceptances, for the know- 
ledge and the act of one of them must, in such a transaction* 
be taken to have been the knowledge and the act of both* 
Now it is dear that the defendant John Meyer knew that 
be was accepting on the credit and for the benefit of Darby f 
aad the jury have found as a fact that the bills were both 
drawn aod indorsed by Darby, The acceptor of a bill is 
bound, and must therefore be presumi^d, to kuow the hand- 
writing of the drawer, aad is consequently precluded from 
disputing it. But it is said that he may, nevertheless, dispute 
the indoraement. Where the drawer is a real person, he 
may do so; but where there is in reality no such person as 
the drawer, I think the fair and proper construction of the 
acceptor'a undertaking is, that he will pay to the signature, 
as indorser, of the same person who signed as drawer. 
For these reasons I am of opinion that the verdict in this 
case was right, and that the rule for a new trial ought to be 

Batlet^ J. — The defendants ought not to have accepted 
the bills without ascertaining whether or not there were 
sach persons as the supposed drawers, and if they chose to 

(a) 1 B. Moore, 150; 7 Taunt. 455. 


accept without making that inquiry, I think they must be: 
considered as undertaking to pay to the signature of the 
person who actually drew the bills. 

Parke, J. (a) concurred. 

Rule discharged. 

(a) LUtledaUt J. was gone to chambers. 

Harrison v. Hodgson. 

Under pard- X HIS was an action of trespass for an assault and false 
»tances*'onr" '"nprisonment, to which the defendant pleaded, first, not 
man may be guilty; and secondly, that the plaintiff had first committed 
laying hands ^° assault upon him, whereupon he gave the plaintiff into 
upon another, tijg custody of a peace-officer, who was present. The 
for the purpose , . .-« i« i • • • i i i 

of serving him plaintiff replied, that he was employed to serve the de- 

with process, fendam ^jth process, and in order to do so, necessarily laid 
hands on him, which was the same assault mentioned in 
the second plea. The defendant rejoined that the plaintiff 
had used more violence than was necessary; and there- 
upon issue was joined. At the trial beford Lord Tenter- 
den, C. J.« at the adjourned Middlesex sittings after the 
last term, a verdict having been found for the plaintiff, 

J. Williams now moved in arrest of judgment(&), con- 
tending that the replication was bad, inasmuch as it could 
not have been necessary for the plaintiff to lay hands on 
the defendant for the purpose of serving him with process; 
and that, at all events, if any special circumstances bad 
existed which did render that necessary, those special cir- 

(b) Qucrty whether the objec- $hent 9 Vide Anon, March, 78, 

tion, if valid, would not have been pi. 125 ; Plomer v. Rou^ 5 Taant. 

ground for awarding a repleader, S86, and 1 Marshall, 95; Com. 

rather than for arresiing ihejudg- Dig. Pleader, (R) J8. 


cumstaQces nbould have been fully set forth in the replica^ 

Lord Tenterden, C. J.— The defendant, by rejohiiog 
excessi has admitted, that if, in any supposable case, it can 
be necessary to touch a party in order to serve him with 
processi it was necessary in this case ; and I am not pre- 
pared to say that it may not, under particular circum- 
stances, be necessary and lawful to do so. There seems 
to me, therefore, no ground for arresting the judgment. 






The other Judges concurred 

Rule refused (a), 
(a) Vide ante, vol. i. S15 (a). 

HoLDswoETH V. James Hunter the younger. 

Assumpsit by the plaintiff as indorsee, against the A set of foreign 
J r . r /.•-•.. ^ , bills, drawn 

defendant as acceptor of two foreign bills of exchange, one abroad, was 

for 5000/., the other for 4399/. \9s. Id., drawn by M'Ken^ dTral^ ^who 
de and Co. in the following form : — was also the 


Calcutta, leth July, 1825. 

!)avee,) the de- 
ei ■ 

fendaiit, who 

''At six months after sight pay this our first of ex- parts, and in- 

cfaange, (second and third not paid,) to the order of dorsed one to 

Messrs. William Hunter and Co, the sum of five thousand value, prior to 

pounds sterling, value in account per advice. othlerhad^^ 

" T. M. M^Kenxie and Co. indorsed by 

^'To Messrs. James Hunter, Jun. and Co., London.'' ^^ y^\^ father 

. . * • . conditionally, 

Flea: non assumpsit; — and issue thereon. At the trial bat who had 

before Lord Tenterden, C. J., at the London adjourned sit- "n'^J^Iy')^^^^^^ 

tings after Michaelmas term, 1828, the following appeared but gave it tip 
^ i_ <^i. • • 1 r -^ • ^i_ on the substi- 

to be the principal facts m the case:— tu,;^„ of other 

The bills in question were drawn by M*Kenzie and Co. securities:— . 
^ "^ Held, that the 

plaintiff was entitled to recover, and that the bill did not require a stamp; held, also, by 
Lord Tenterden, C. J., and Parke^ J.— dubitante Littledale, J. — that \t would have 
been the same if the first part had been indorsed and delivered unconditionally^ 


1830. at Calcutta. In December, 1895, the defendant, Jamt$ 
jS"^^^^"^^ HurUer, who carried on business in London under the firm 
9 of James Hunler/}\xn. & Co., and was also a partner in the 

HuMTER. firm of William Hunter 8c Co., who carried on business in 
Glasgow, received the second parts of these bills, which he 
accepted and indorsed to his father, to whom the firm of 
William Hunter & Co. were largely indebted. In Ja« 
nuary, 1826, the defendant received the other parts of the 
bills, which he also accepted, and indorsed the first parts 
to one Fennell, who indorsed them to the plaintiff for 
value. The acceptances were ante-dated 14th November, 
1825. At the time of the actual acceptance and indorse- 
ment of these last-mentioned parts, the parts first accepted 
were in the hands of the defendant's father; but other bills 
were afterwards substituted for them, and they were given 
up to the defendant. Upon these facts it was contended 
by Scarlett, A. G., on the part of the defendant, that the 
plaintiff could not recover, upon two grounds : — First, that 
the party who first obtained the acceptance of any one part 
of a set of bills, was entitled to the whole of them, all the 
parts of a set constituting, in fact, only one perfect bill; 
and, consequently, that the plaintiff had no right to those 
parts upon which the action was brought; and in support 
of this proposition he cited a case of Pereira v. Jopp and 
another (fl): — Secondly, that if, on the other band, the de- 

(a) Tried at Gaildball, before which appeared to be ihe second 

Lord Kenym, in 1793, bat not re- of a set of bilk drawn in favoor of 

ported. The case, as stated by Maa, dated the 5th of December, 

Scarlett, A. G., from a note taken 1799, and which was indorsed u 

by himself at the trial, appeared stated in the declaration. It was 

to be this: — proved, that on the 2 1st of Octo- 

** The plaintiff declared in tro- ber, 1793, more than ten months 
ver for a bill of exchange for after the date of the bill, it wu 
iOOO/.y drawn by certain persons presented to the defendants for 
in Jamaica upon the defendants, acceptance, and that they, apon a 
in favour of one Mm, and by him subsequent demand, refused to re- 
indorsed to the plaintiff. Notice turn it. It was then proved, on 
had been given by the plaintiff to the part of the defendants, that 
tha defendant to produce the bill, one Lieven had absconded in Sep 


feDdant was to be held boand by his acceptance of the 
second part, and consequently was estopped from saying 


tember^l792; that after he. had 
abscooded, the plaintiff purchased 
a debt doe from LUven to Hunter 
fc Co. ibr ten shiUings in the 
ponnd, and obtained the necessary 
power for attaching certain pro- 
perty of Lieven\ then in Jamaica^ 
b the bands of MaU; that before 
tbe attachments were laid against 
Mait in Jamaica, namely, on the 
5th December, 1792, Mais had 
transinitted the first of the sec of 
bdls of which the second was now 
sought to be recovered, indorsed 
loLieven; that in consequence of 
heven's absconding, the letter in- 
doiing such first bill did not 
reach other bis hands or those of 
his assignees, he having been 
made a bankrupt, until the 8th of 
Nof ember, 1793; that in the 
BMsntime the fdaintlff having 
heard of the transaction respecting 
the first bill of the set, and that it 
bad not come to hand, sent out to 
Januuca, and prevailed upon 
JUftf, on receiving an indemnity, 
to indorse and transmit to him 
the second bill of the set, which 
anived on the Slst of October, 
179S, and was, when presented to 
the defendants, retained by them, 
in consequence of a notice given 
to them by the assignees of Lie- 
veaofthc circumstances; and that 
a few days afterwards, the letter 
containing the first bill of the set 
indorsed to Ueven, was disco- 
vered. This bill the defendants 
prodoced, and it appeared to be 
the first of that set of bills of 
which the plaintiff claimed the 
second. Upon this evidence Lord 
J^cmfon was of opinion that the 

defendants were entitled to a ver- 
dict, because the sum which the 
bill represented had never been 
attached in the hands of Mais, he 
having indorsed and transmitted 
the first bill to Lieven before the 
attachment could operate; conse- 
quently the property represented 
by that bill, and in the hands of 
the defendants as the drawers, was 
vested in Lieven or his assignees, 
and Mais, the indorsee, could not 
divest that property by indorsing 
the second bill to the plaintiff; 
the plaintiff, therefore, had no title 
to the money which these bills re> 

Minga^f who was of counsel for 
the plaintiff, then submitted, that 
if the plaintiff was not entitled to 
the 1000/., the sum expressed 
npon the bill, he was at least enti- 
tled to the piece of paper which 
he had left in the possession of 
the defendants, and which they 
had refused to deliver up. But 
this Lord Kenyon denied, and 
cited a case of Miller v. Hace, 
tried before Lord Mamfiddy in 
which this very point was con- 
tested in an action of trover for a 
promissory note; and in which 
Lord Mansfield said, he could not 
bring himself to think for a mo- 
ment that the man who had no 
title to the value of a bill or note, 
could recover in an action of tro- 
ver for the paper merely, which 
was of no value whatever. Upon 
this, Lord Kenyan continued, Sir 
Richard Lloyd put this case to 
Lord Mansfield, whether if, instead 
of a piece of paper, a diamond ring 
had been given for a promissory 








1630. that all the parts constituted only one bill, it must follow 
that such second part must be treated as altogether a se- 
parate bill, drawn, as well as accepted, in England, and 
HuMTBR. therefore requiring a stamp; and that as the bills in ques- 
tion were not stamped, they were invalid. For the plain- 
tiff it was answered, by i**. Pollock, that it was a question 
to be left to the jury, whether there had ever been, in fact, 
a perfect unconditional assignment to the defendant's father 
of the parts first accepted, or whether they bad merely 
been deposited with him until other bills could be substi- 
tuted ; because, in the latter case, as soon as those parts 
Mere restored to the acceptor, the right of the father 
ceased, and could not be set up in answer to this action. 
Lord Tenter den, C. J., concurring, left that question to the 
jury, directing them to find for the plaintiff if they were of 
opinion that the parts of the bills first accepted were depo- 
sited with the defendant's father only as securities till 
other bills could be substituted. The jury were of that 
opinion, and found a verdict for the plaintiff. In Hilary 
term, 1829, a rule nisi for a new trial was obtained, upon 

note, the pereon who possessed stolen out of the mail, in the night 

the ring, though without title to the of the 11th of December, llbG, 

value it represented, might not and on the 12th came to the 

bring trover for it? To this Lord hands of the plaintiff for a fbll 

Mansfield replied, that the case and valuable consideration, in the 

was very ingenious, and that he usual course of his busiuess, and 

might not, perhaps, without some without any knowledge that it 

consideration, be able to answer had been taken out of the mail; 

it satisfiictorily; but yet it did not he afterwards presented it at the 

shake his opinion that the plaintiff bank for payment, and the de* 

ought not to recover for the piece fendant, being one of the clerks, 

of paper under the circumstances stopped it; upon which an iccioo 

of the case before him. Mingay of trover was brought; and upon 

then elected to be nonsuited." a case reserved upon the point, 

The case of Miller v. Race, as whether the plaintiff had a saffi- 

reported in 1 Burr. 459, does not cient property in the note to eo- 

seem very well to answer the de- tide him to recover, the Court 

scription above stated to have were dear in opinion that he bad, 

been given of it by Lord Kenyan, and that the action was well 

There, a bank note, payable to brought. 
William Finney or bearer, was 


the grounds urged at the trial, and also upon the ground 18S0. 

that the point ought not to have been left to the jury as a ^^,^^^5^^^,^^^ 

question of fact. Against that rule, v. 


F, Pollock and Patltson now shewed cause. The case 
of Pereira v. Jopp, which was cited at the trial, and will 
now be relied upon by the other side, has no analogy to 
the present case. In that case, the first part of the bill had 
passed to an indorsee for value; and the acceptor was al- 
lowed, on the indemnity of that indorsee, to resist the pay- 
ment of the second, because he was considered to have ac- 
cepted it for the benefit of such indorsee; therefore that 
action, though defended by the acceptor, was substantially 
an action between the holders of the two parts of the bill. 
It is material to observe, also, that in that case but one 
part was accepted, and that no intention was expressed or 
evinced by the acceptor to make himself liable upon more 
than one. Here, the defendant has accepted both parts of 
the bill; and he is defending the action, not on the bon& 
fide title of a holder for value of one of them, but on the 
ground that he has fraudulently deposited one part with 
his father, with a power of redeeming it, having, in fact, 
redeemed it. He cannot be allowed to set up his own 
fraudulent act to defeat his own acceptance. Besides, the 
jury have found that the bill was deposited only till the de- 
fendant should redeem it, and substitute other securities 
for it, and not for the purpose of payment to the father. 
The defendant has, in fact, been charged only once, for the 
other parts of the bill have never been paid. Whether the 
drawer, if sued, could set up this defence is not the pre- 
sent question ; it is enough that the acceptor cannot, for he, 
by his acceptance, has estopped himself from doing so. 

Secondly, there is no weight in the objection respecting 
the stamp* A bill drawn in Calcutta, for acceptance in 
England, does not require any stamp. In order, therefore, 
to make a stamp necessary in this case, the bill must be 
considered as one made entirely in England. But it can- 


1880. not be 80 considered, without making the defendant gniit; 
of forgery, and he cannot be allowed to set up his own 
guilt as a defence to the action, 

Scarlett, A. G., and Campbell, contri. It is a principle 
recognized in the case of Pereira v. Jopp, that all the se- 
veral parts of a foreign bill constitute togeUier but one bill, 
and that the party who first acquires title to any one part 
has also a right of property in the other parts« In this 
case, one part of each bill was indorsed by the defendant 
to his father, for a valuable consideration; and though it 
was left to the jury, as a question of fact, whether they 
were so indorsed in order that the father might sue upon 
them, or only that he might hold them until other securities 
should have been substituted, Uiere was no evidence before 
the jury of any agreement having been made one way or the 
other. In point of fact those parts remained in the father's 
hands, and he had the legal right to them at the time when 
the other parts were indorsed to the plaintiff. The pro- 
perty, therefore, in both was in the father, and it is unma- 
tarial that he afterwards exchanged the parts in his posses- 
sion for oUier securities. The only way in which the 
plaintiff can get over this difficulty, or set up any right at 
all, is, by treating the two parts of the set of bills as sepa- 
rate and distinct bills, and even by doing that, he falls into 
an equal difficulty, though of a different kind. If the parts 
uow sued upon are treated as separate and distinct bills, 
they must also be treated as bills manufactured entirely by 
the defendant in this country, not as forgeries upon the 
drawers in Calcutta, for it is not necessary to go that 
length, but. as drawn in England in a fictitious name; uid 
if so, they cannot be sued upon for want of a stamp. The 
case will then come within the princif^e of the decision in 
Bathe v. Taylor{a), where it was hdd, that a bill drawn on 
die l8t of August, at two months, by A» on jB., payable to 

(a) 15 East, 413. 



tte order of the drawer, aiMi aeoepted and re-delif ered by isdo. 
S. as a security for a debt, and kept by ji. for twenty 
days, coQld not be altered in its legal effect, by bringing 
forward the date twenty days, without a new stamp, HtynTEii. 
though with the consent of the acceptor, and before in~ 
dorsement and delivery to a third person. 

Lord Tentebden, C. J. — ^The verdict of the jary, after 
my direction to them, must be taken to find as a fact, that 
the delivery of the first parts of the bills by the defendant 
to his fiither was not an absolute delivery, but conditional 
only, that the father would re-deliver them upon receiving 
other securities ; and in my opinion that finding was well 
justified by the facts of the case. Those parts, there- 
fore, which were the first accepted were not in fact paid, 
»d cannot be considered as having constructively been 
ptid, for tbey were redeemed by the substitution of other 
secarities. What was diere then %o prevent the defendant 
from potting into circulation other parts of the bills? In 
that view of the case it seems to me quite clear that the 
plaintiff is entitled to recover; but I am inclined to go fur- 
ther, and to say that the plaintiff would have been entitled 
to recover, even if the delivery to the father had been ab- 
solate and unconditional. Suppose this case:— Two parts 
of a foreign bill come to the hands of the party who is at 
ODce drawee and payee. He accepts both, and indorses, 
first, one part to A., and afterwards the other part to B, 
In a question between ihem, as to the right of property in 
the bills, A. might be entitled to both; but here the ques- 
tion is, whether the acceptor and indorser of both parts 
shall be allowed to defend himself against the holder of 
one party on account of the previous circulation of the 
oAer. I am not aware of any principle of law upon which 
such a defence can be supported. But then it is con- 
tended that these bills must, by construction of law, be 
considered as drawn in England, and therefore liable to the 
stamp duty. To hold that, would be to place the law in 
direct opposition to the fact, for we know that the bills 


1830. were actuallj drawn io Calcutta; aod I thiok we ought not 
^^'"''^'^'^ to strain the stamp act to favour such an objection as thii. 


V. If the bills .had been actually drawn in England, though 

Hunter. purporting to be drawn in Calcutta, the case would have 
been different. I think this rule must be discharged. 

Baylby, J. — There can be no doubt on which side the 
justice in this case lies, and I think there is no real dif- 
ficulty in point of law to. prevent our carrying that justice 
into effect Where a bill is drawn in sets, the party claim- 
ing as holder ought to have all the parts, for the paymeot 
of any one part to another person may defeat him. In this 
case there were three parts, and it happened, from the cir- 
cumstance of the same person being a partner in two 
firms, and at once the drawee and payee of the bills, that 
all the parts came into his hands, and he had the opportu- 
nity of dealing with them in these several characters. Of 
that opportunity he availed himself; for he accepted two of 
the parts, and the plaintiff claims as indorsee of one of 
them. The other was indorsed by the defendant to his 
father, and that indorsement had priority in point of time; 
and if it had been followed by an absolute and uncondi- 
tional transfer of the bill, and payment had been actually 
made to the father, there might have been a difficulty in 
« the case which does not now exist, — for the jury have 

found, and I think properly, that the indorsement and deli- 
very to the defendant's father were conditional only; and as 
he did not insist upon payment to himself, but returned 
the bill to the defendant, upon receiving other security, the 
subsequent indorsement to the plaintiff is clearly available. 
The defendant, by his acceptance, undertook to pay that 
. first of exchange, the second and third not being paid; they 
have not been paid, nor is there any person that has a valid 
claim upon them; it follows that the plaintiff is entitled to 
recover on the first. 

LiTTLEDALE, J. — I coucur in the opinion that the plain- 
.tiff is entitled to recover. In the. first place, T think that a 


stamp was not necessary for these bills. They were bon& 1830. 
iidedrairn in Calcutta as foreign i>ills: they were intended ' ^ 


to be treated as such, and what was done by the defendant v, 

in England cannot make them otherwise. Even if they are "unter, 
to be considered as binding upon the defendant by estop- 
pel, 88 separate bills^ they still cannot be treated as drawn 
in England. I feel, however, some difficulty in putting the 
case on this ground, for I doubt whether the doctrine of 
titoppel czn be properly imported into a transaction taking 
effect according to the usage and custom of merchants. 
The three parts of each bill originally formed but one bill, 
and I do not see how the defendant could convert one bill 
ioto two or three. Still, upon the other ground, I think 
tbe plaintiff is entitled to retain the verdict. The defend-* 
ant has accepted and indorsed two parts. He cannot be 
iield liable upon both of them; but he must be liable upon 
one or the other. If the part first indorsed had been de- 
livered unconditionally to the father, and the amount paid 
to bio], the defendant would not have been liable upon the 
part subsequently indorsed to the plaintiff. But as the de- 
lirefy to the father was conditional, and he afterwards 
vaived his claim and gave up the bills, the indorsement of 
the other part to the plaintiff is binding. 

Parke, J. — I have no difficulty in concurring with the 
rtil of the Court, that the plaintiff is entitled to recover. 
The action was brought upon two foreign bills accepted 
by die defendant, and the defence was, that he had before 
accepted another part of each bill, and indorsed it away for 
valae. Assuming that to be so, (and I, for one, am of opinion 
that it was so,) I still think that, although the defendant 
had no power, after so doing, to create a fresh -liability in 
tbe drawer, he might create a fresh liability in himself, and 
that he is estopped from disputing the regularity of his 
own acceptance. I cannot agree that the doctrine of es-> 
«oppel is inapplicable to bills ; for the general rulie is, that 
the acceptor of a bill is estopped from disputing that the 

FOL. V. D D 



bill was regularly drawn. The simple question then it, 
whether there is any provision in the Stamp Act« 55 Geo. 
V. 3, c. 184, under which these bills are liable to stamp duty. 

nuNTER. Now they were clearly not liable as foreign bills, for they 
were not '' drawn in, but payable out of, Great Britain;" 
nor were they liable as inland bills, for they were bon& fide 
drawn out of Great Britain. Snaith v. Mingay{a) seemi 
in point, where Le Blancj J., said, *' Whether this was s 
perfect bill in Ireland, is not so much the question as whe- 
ther it was a bill drawn in England/' So here, the ques* 
tion is, whether these bills were drawn in England; they 
clearly were not; and I agree that we ought not to eitend 
Che provisions of the Stamp Act to meet such a case, and 
favour such a defence as this. 

Rule discharged. 

{a) 1 M. ^ S. 87. There, a bill negociated. It was held, tbat thU 

9vas drawn in Ireland, and blanks was to be considered as a bill of 

lefl for the date, sum, time when exchange from the time of signing 

payable, and the name of the and indorsing it io Ireland, and 

' drawee, and transmitted to £ng- that an English stamp was «ot oe- 

j land, where it was completed and cessary. 

Waeo v. Co^st. 

of a hous?*' I^EBT for 31/. 5s. for five quarters^ rent of a messuage 
which, in con- fcc, demised by the plaintiff to Jefferson by indenture 29th 
jSm"p2d^ September, 1799, and for 15/. {a) due from the defendant 
to the lessor, to the plaintiff on the 55th March, 18«8, for two yearly 
and a cove- *r*i,r^- ... •• /> 

nant to repair payments of 71, \0s. issuing out of the said messuage &c, 

and finish, had piea : nil debet. At the trial before Lord Tenterden, C. J., 
been oemised 

lISiifunt'ingTr (fl)Thatcfc6^istheproperformof demand, see UnderhiU v. EUi^ 
less than the '^^^^ '" respect of the part of the comber Madeland & Younge, 452. 
annual valae, 

redeems the land-tax thereon, under S8 Geo. 3, c. 5. A> is entitled to an anaaal pay- 
ment from B, in respect of the difference between the rent and the annual value, vif. 
an annual payment bearing the same proportion to the whole land-tax redeemed, wbidi 
the difference between the rent and the annual value bears to the annual valae. 

BILAmr TEBH, X OSO. IT. 403 

al the littiogs at Westminster, in December, 18fi8| the laso. 

phiotiff was nonsuited, with leave to move to enter a ver* ^' 

dkt Oo the motion being made, it was agreed that the v. 

6cts should be stated in a special case, which case was Co**** 
to the affect following:— 

The plaintiff being seised in fee of a messuage &c., by 
iodenture made on the 29th September, 1799, between 
the phiotiff and Jeffenon, the plaintiff, in consideration of 
Ml. paid by Jeffenon, and of the other charges wUcb 
J^enon would be at in repairing and finishing the pre* 
niset, demised the same to Jejfenon, habendum for 09 years, 
tt the yearly rent of 25/. ; and Jefferson thereby covenanted 
vith the plaintiff and bis heirs, that Je/ferion, his executors* 
ftc. would pay to the plaintiff and his heirs the said rent 
of UL The indenture contained the usual covenants to 
repair, and to deliver up in repair; but no covenant, con- 
dition, or stipulation respecting taxes or rates of any de* 
Kfiption. At the date of the lease the premises were 
metied to the land-tax in 10/. being two shillings in the 
pound apon an estimated annual value of 100/. In I8OO4 
the Isod-tax valuation was reduced to 90/.; this valuation 
continued at the time of the redemption of the land-tax 
thereon, at which time the assessment was ?/• lOi., being 
1<« BcL in the pound. 

ilst February, 1800, by deed poll duly registered, the 
cpamissionera appointed under 42 Geo. 3, c. 116^^ for the 
citj and liberties of Westminster, certified that they ha4 
Mtttneted with the plaintiff for the redemption by him for 
W5/« tbee per cent, consols of 7/. lOi. land-tax, being the 
hnd-tax charged upon the premises, which premises were 
nted in the assessment for 1803 as follows: — 

** Geot^e Ward, esq. proprietor — Received, Joseph Jef* 
firm, occupier, 71. 10s." 

The 275/. consols were duly transferred. 

In 1819-22-23, Jefferson paid the plaintiff 7/. lOf. in 
^tion to his rent. Jejfferson dying in 1824, his personal 
^presentatives continued to pay the iL IO5. until die sale 



1830. of the term by them to the defendants in May, 18S6. The 
rack rent value of the premises in 1799 was 120/., and they 
are not now of greater value, if any thing be payable by 
the defendant in respect of the redemption of the land-tax* 
Two years of such payment were in arrear on the 25th 
Marcb, 1B28. 

Patteson for the plaintiiF. By the first land-tax act, 
4 TT. 4r M. c. }, after reciting (sect. 5,) that many of the 
manors, messuages, lands, tenements, and premises in* 
tended by that act to be charged with a pound rate* stood 
incumbered with or were subject and liable to the pay- 
ment of several rent charges or annuities issuing out of 
the same, or to the payment of divers fee-farm-rents, rents- 
service, or other rents thereupon reserved or charged, by 
reason whereof the true owners of such manors &c., did 
not in truth receive to their own use the true yearly value 
6f the same, for which nevertheless they were by that act 
charged to pay the full pound rate of fqur shillings for 
every twenty shillings of the true yearly value; it was en- 
acted (sect. 6), that it should be lawful for the landlords 
and owners of such manors 8cc. as were charged with the 
pound rate aforesaid, to abate and deduct, and to retain 
and keep in their hands four shillings in the pound for 
every fee-farm-rent or other annual rent or payment charged 
Upon or issuing out of the premises or any part thereof, or 
thereupon reserved; and all and every person and persons 
Entitled to such rents and annual payments were thereby 
required to allow such deductions and payments upon the 
receipt of the residue of such moneys as should be due 
and payable to them, for such rents or annual payments 
yeserved or charged as aforesaid. Thus each party inter- 
ested was to bear the tax in proportion to bis interest. 
The last annual land-tax act, 38 Geo. S, c. 5, shews that 
the landlord is to pay only in respect of that sum which he 
actually received. The first land-tax-redemption act (a) 

(a) 38 Geo. 3, c. 60. 


gives to landlords the option of extinguishing thd tax^ or 
continuing it as a charge on the land. By 42 Geo. S, c. 
1 16, no such option is given, but the plaintiff is entitled to 
recofer under sec. 123(a) of that act. Where premises 
ire improved, the landlord is liable only for so much of the 
land-tax as would have been payable in the state in which 
the premises were demised. Yeo v. Leman{b), Hyde v. 
flt//(c), Whitfield V. Brandwood{d), Watson v. Home {e). 
The 520/. consideration is to be considered, not as rent 
paid in anticipation, but as the purchase-money of an 
interest of which the purchaser becomes the owner, and in 
respect of which he is liable to be assessed as the party 
beneficially interested. Before this land-tax was redeemed, 
the tenant was entitled to deduct from the rent such part 



(a) By which it is enacted " that 
wbere any person having any estate 
or interest, otiier than an estate of 
mfaeritance, in any lands &c., shall 
ndeem the land-tax charged there-' 
00 out of their own absolute pro- 
perty, such manors, messuages, &c. 
duD be and become chargeable for 
tile benefit of inch persons, their 
execntoTs, &c. with the amount of 
the three per cent Bank annuities 
vliich shall have been transferred, 
or with tiie amount of the moneys 
psid as the consideration for the 
ndemption of such land-tax, as 
the case may be, and with the pay- 
ioeot o{ a yearly sum or sums of 
anoey by way of interest thereon, 
e^Qsl in amount to the land-tax 
redeemed. Provided always, that 
BO penon or persons in remainder, 
revoiioD or expectancy, or having 
aoy future interest in such manors, 
iBessoageiy Sec, who shall after- 
wards, in order of such succession; 
eoBie into the actual possession, or 
be beneficiaUy entitled to the rent 
and profits of any such manorSi 

messuages, lands, tenements, or 
hereditaments, shall be liable to 
the payment of any yearly sum or 
sums of money by way of interest 
as aforesaid, save only for the time 
they shall respectively come into 
possession or be beneficially enti- 
tled as aforesaid: Provided also', 
that where the land-tax charged on 
any manors, messuages, &c. shall 
be redeemed by any persons having 
any estate or interest in remainder, 
reversion, or expectancy; such 
persons in remainder, reversion, or 
expectancy, shall in the meantime, 
until their respective estates and 
interests vest in possession by rea- 
son of the determination of the 
preceding estate, be entitled to 
have a yearly sum issuing out of 
such manors, messuages, &c. equal 
in amount to the land-tax so re- 

(6)2Stra.ll91, S.C. lVVil8.21. 

(0 3 T. R. 377. 

(<i) 2 Stark. N. P. C. 440. 

(e) ^nte, vol. i. 191 ; 5.C. 7Bami 
& Cress. 285. 



laso. only of the laod'tax as bore the aame pfoporlieii to 
the residtte of such land-tax, as %5L, the rent resened, 
bears la 100/., or 90/., the amount at which the premises 

^^^^^' weiv valued. The landlord is not bound to pay kod-tti 
i» fespeet of the premiani. By 42 Gea» S, c Il6» s. 10 
and ]9> A tenant for a term of years, granted on a fine or 
premkmv is treated as a person interested in the redeap* 
tion of the land-tax, which he could not be if he were not 
Ike party Kable to /Niy sueh portion of the tax. 

FMM contriL Before the redemptiott of the hnd^tax 
|ha tenant was not bouad le pay any part of this assess* 
■e nl, and no new liability can be thrown upoA Uia kj the 
hoMllerd's ehoossng lo redeem. The foffmer part ef sec- 
tion 123 (a) of 42 Geo* S, c. 1 16, applies to redemption bj 
tenants of particular estates, and the latter part of the sec- 
tion applies to persons in remainder, reversion, or ezpec- 
tmcy, and not to persons in the actual possession or imme- 
diate receipt of the rents and profits, otherwise the wAofe 
burthen would be thrown on the tenant, whether a fine 
were paid or not. If the plaintiff is entitled to any thing 
under this statute he is entitled to the whole assessments 
which would be absurd. [Parke, J. The land-tax can be 
considered as redeemed by the plaintiff in his character of 
veftrsioner in respect of that part of the assessment onlj 
which the defendant might have redeemed under 42 Geo, 
S^ c. 1 16, s. 123.] The fine was not paid in respect of 
a particular and distinct portion of the property. Neither 
the 123d nor 12dth section applies to a redemption by a 
party entitled to receive rent. By 4 IF*. ^ M. c. 1, s. 4(6), 

(a) Suprd, 405 n. of Berwick upon Tweed, or within 

lb) Which enacts ''that all ma- any of the counties, dfjea, bo- 

Qon, messuages, &c., quanies, &c. loughs, towns, divisional ndingi^ 

and all hereditaments of what nar hundreds, lathes, wapentakm, 

ture or kind soever they be, situate, parishes, and places AereoC 

lying, and beings happening or aris- well within aoeient dememe and 
ing within die kingdom of Eng- other liberties andprivOi^^^ilaoea 
landy dominion of Walei^ ortown as without^ ■'Y^Hmrisrnhiiahj 


the land-tax was laid on the owner. The tenant is not 
chvgeBbk, except where the value has been increased after 
tki granting of the kaies, and the assessment has been 
made upon a value exceeding the value of the premises of 
the laudbrd. In the cases cited such improvement had 
been made. Here no such improvement appears. 

Cur. adv. vuU. 

Oo (lie following day the judges delivered their opinion 



Baylet, J. — There are two questions in this case; first, 
io what condition did the lessee stand in respect of the land- 
tu assessed on these premises, when the lease was exe- 
cttted? Secondly, whether, supposing tlie lessee to have 
been then liable to pay any part of the assessment, the 
plaintiff, after having redeemed the whole, has a right to 
sue for such proportion as the lessee was previously liable 
to pay. 

dmgeiifermie year only, and no 
^ger, with the sum of four ahil- 
Bngs for every twenty sliillings of 
die foil yearly value, and so in 
pnportkm for any greater or leaser 
rahe; and all and every person and 
pencils, bodies politic and corpo- 
rate, guilds, miateries, fraternities, 
od brotherhoods, (whether corpo- 
rate or not corporate) hamng or 
folding any manors, messuages, &c. 
liuiO yield and pay unto Their Ma- 
j^es die sum of four shillings by 
cveiy twfntf dullings by the year, 
which the said manors, messuages, 
^c. are now worth to be leased, 
7 the same were truly and bon& 
Me leased or demised at a rack 
ittt, and aooordmg to the fall true 
7»iiy value thereof without any 
i^eipect had to the present rents 
i^Mted fhr flie nme, if such rents 
^ hem leaenrtd upon such 

leases or estates made, for whidi 
any fine or income hath been paid 
or secured, or have been lessened, 
or abated upon consideration of 
money laid out, or to be laid out in 
improvements, and witiiout any re- 
spect had to any former rates or 
taxes thereupon imposed, or mak- 
ing any abatement in respect to 
reparations, taxes, parish duties, or 
anyotherchaiges whatsoever; which 
said sum of (four and twenty shil- 
lings for the yearly profits of every 
100/. value of all personal eafatss 
as aforesaid, and) four shillinga for 
every twenty shillings by the year 
of the said true yearly value of all 
other the premises, shall be assessed, 
levied and collected in manner 
hereinafter mentioned, and shall be 
paid into the Receipt of, &c. by quar- 
terly payments, the fint payment 
thereof ftc." 


1880. I. The situation of the lessee before the redemption, de- 

pends upon the land-tax act in operation at the time when 
the land-tax redemption act passed, viz. 3S Geo. S, c. 5, 
which provides that all lands, and all persons having or 
Si'tuaiion'of ^^'^'"g lands, shall be charged, with as much equality as 
lessee before possible, with a pound-rate. It was suggested by Mr. 
iand™ax!^" ^ Follett that the tax was imposed on the landlord. There 
are no words imposing it on the landlord, but on lands and 
on persons having and holding such lands. These words 
would apply to persons receiving rents, and I think the 
right construction would be, that if, instead of being entitled 
to the whole, one person is entitled to a limited extent only, 
and another to the residue, (and the words are sufficiently 
accommodating,) to bring in both. Immediately after this 
lease was granted the lessee had land of the annual value 
of \2i)L on paying ^5L And it might be said that the 
landlord was the person '^ having and holding," as to €5/., 
and the tenant as to the residue. The 4 TV. ^- 31. c. 1, imposed 
the burthen on the land ; and persons ** having and holding'* 
are directed to pay. The law would be the same if the 
lease had been made whilst that act was in operation, 
at the rent of a peppercorn. Mr. FoUelt says, that, to a 
certain extent, the landlord is liable : that is not so, the 
land has to pay, and the party who pays must have the 
rents and profits to pay it with. If, when there is a nominal 
rent, the tenant is to provide the fund, the argument mnst 
equally hold where the rent, though not nominal, is below 
the real value. It is only a question of degree. Here, 
justice would require that the landlord should pay in the 
proportion of ^5 to 05. This does not, however, stand on 
these words alone ; it is clearly explained by SS Geo. 3, 
c. 5, s. n, by which the several tenants of all houses, lands, 
&c., rated by virtue of that act, are to pay such sum as 
shall be rated thereon, and to deduct out of the rent so 
much of the said rate as the landlord ought io pay, and 
the landlords, mediate and immediate, are to allow such de^ 
duction upon payment of the residue of their respective 


rents. The tenants of the land are required and authorized ^gso. 

to do two things, — required to pay, and authorized to de- 
duct (a). The deduction should be, not of the whole, but y^ 
of 80 much as the landlord, in respect of the rent, ought to Cowst. 
bear upon receipt of the residue of the rents — put the case 
of lord, mesne, and tenant — the lord receiving ^0/. rent, the 
mesne 40/., and the tenant '' having and holding" land of 
(he annual value of 100/., each would have to pay in pro- 
portion to his interest. So no doubt, on the execution of 
this lease, Jefferson was liable to contribute in respect of 
95/. and Ward only in respect of £5/. 
II. This principle being established, no difficulty re« Second point: 

mains, provided the statute under which the plaintiff re- Remedy of re- 
... . . deeming 

deemed contains sufficient words to support this action, lessor. 

It seems to me that the plaintiff is entitled under 42 Geo* 3, 
c. 1J6, s. 123 (6) ; but that, under that enactment, he cannot 
claim more than a proportion. The plaintiff having carved 
out this interest cannot complain of this payment, because 
it was made for his benefit : the words of the section are, 
'* that where the land-tax charged on any manors, mes- 
suages, 8cc. shall be redeemed by any person having any 
estate or interest in remainder, reversion, or expectancy, 
soch person in remainder 8cc. shall in the meantime, until 
his estate and interest vest in possession, by reason of the 
determination of the preceding estate, be entitled to have a 
yearly sum issuing out of such manors, messuages, &Cj 
equal in amount to the land-tax so redeemed,'' No 
doubt the plaintiff, when he redeemed this land-tax, was a 
penon " in reversion'* (c). The difficulty pressed upon our 
consideration was, that the plaintiff would be entitled to a 
sum equal in amount to the land-tax redeemed ; but he is 
himself made liable to the payment of part, and therefore 
could not claim from the tenant repayment of that part. 

(a) And see Bex v. Mitcham, v. Clarkcj 4 Nev. & Mann. 671. 

Caldec. 276; 3 Bum, 194, 24th (b) Vide iuprit, ^5 n. 

edition. Andes to the power of dis- (c) Sed vide suprd, 406, per 

tKttgirenby this section, see Jkir ParkCfJ. 



1^. Looking at tke substance of At transaction, tke tedemption 
bas €xlingHi»hed that portion of the land-tax which the 
party redaeming wouU have had to pay, and injustice tbe 
.9^"- land-tax should be considered as redeemed as far as the 
landlord was liable^ and as subsi$iing as far as the tenant was 
liable, and the landlord should receive from the tenant a 
sum equal in amount to thai portion of the land-tax from 
which the tenant was liberated by the purchase. I think, 
tkereforei that the plaintiff is entitled to 10/., that sum being 
two-thirds of the whole assessment. This is exacdy ia 
conformity with the cases of Yeo v. Leman{a) and Hyde ▼. 
HiU{b\ though in those cases the assestment to the land- 
tax was increased. The language used by the judges in 
those cases shews that the landlord was considered as liable 
to bear the tax only in proportion to the rent which he re- 

LiTTLEDALE, J. — ^The first question is, wljether this is 
a landlord's tax or a tenant's tax. It has generally beea 
considered as a landlord's tax ; it is, however, incorrect to 
consider it wholly so. By 4 W.Sf M.c. I, s. 13, *^ the seve- 
ral and respective tenants of all and every of the manors, 
messuages, &c. which, by virtue of this act, shall be charge- 
able with any pound-rates as aforesaid, are hereby required 
and authorized to pay such sum or sums of money as shall 
be rated upon such manors, messuages, &c., and to deduct 
out of their rents so much of the said rates as in respect of 
the said rents payable for such manors, messuages, &c. the 
hindlord should and ought to bear." There is uo material 
difference between 4 W. Sf M. c. I, and 38 Geo. 3, c. 5. 
The words ** having and holding" are applicable to all es- 
tates whatever, from a fee-simple to a lease for a year. 
The tenant is thereby authorized and required^ that is, he is 
authorized to deduct the proportion which the landlord 
ought to pay in respect of the rent It seems to be a legis- 
lative enactment that the tenant is to pay^ though not di- 

(d) SHprd, 4b5. (b) Ibid. 


fifllfy. It is a bodlord'a tax only jb raspect. of tlie rent 
wUch the lamBord has to receive. Any other coostmction 
woaid laake the enactmeDt lureasoiiable. There might be 
10/. to pay, and only 5l. to reeeite; so, if the amoont ot 
the tn it increased by inproTenieDt of the ^ne^ WnJUom 
T. JiMNe(a), WkUJieli y. Bramdwood{b). The 49 Geo^ S, 
c ll6w s^ 10, directs^ ^' thit il AaU be hnrfnl for aH other 
pcnons faafiDg any estate or interest in any sunors, nea- 
s, ko., wbareoD any land-tax shall be .churged^ except 
at rach-rent for any term of years^ ei froaa year to 
year, or at will, to contract and agree for the redemption of 
mch hnd-tax, or any part thereof." By the 19dd sen.(c) 
of tint stnlvie (upon which il is said that the plmatiff is ear 
btlsd to recoTer)» it is provided " that where 
chsiged on any manors^ aMssnages, 8ic. shall be redeemed 
by aay person having any estate or interest in remainderi 
Mversion^ or expectancy hereon, such person shall in the 
B, until his estate and interest vest in possession, be 
to receive a yearly sum issuing out of such manors, 
s, kc. eq)ttal in amount to the land-tax so re- 
deemed.'' I entertain, however, considerable doubt whether 
the plaintiff iaUs within the 12Sd section, and can be consi- 
dirsd aa a rweraiontr {d). It seems to me rather to apply 
la those who have merely future interests. A distinction 
i» amde betvseen persons being entitled to rents and persons 
having » reirersion : it would rather appear to me that a 
person being in the beneficial enjoyment of the proper^ 
is not a reversioner within the meaning of this section^ 
This does not signify much, because it may be considered 
as a general purchase of the land-tax by the plaintiff beyond 
his own pn>portion ; it would MI within the equity of the 
I24th section (e), and die plaintiff would be entidisd to Ae 
remedies of a landlord on a leate. 

(o) Suprt, 40S. (a) Which enacts <' that the i«* 

(6) Ibid. lipective purefaasenr of such kncl- 

(c) 9kpri,4Q$n, tBt, and their heirs, Miccesaora, 

(^ Sedvidem^^ 400. and aangtn, sball^ fiom soch pe^ 


The next question is, whether the action is brought 

against the proper defendant. This is a point not made in 

the argument ; it appears to me that the action ought to be 

brought against the person in possession of the land. At 
Third point: . " . . , 

Whether pro- common law a party may recover upon a lease setting out 

per defendant, the special circumstances of the reservation. So here, the 

plaintiflf might have made his statement according to the 

special circumstances of the case. Jefferson was not liable 

to pay as lessee, but as occupier of the land. [Bay%, J. 

The defendant is in possession.] If so, that objection fails. 

tint point. Parkb, J. — The first question is, what was the relative 

situation of the parties at the time of the redemption of tbiB 
land-tax. The act then and still in force, 38 Geo. 3, c. 5, 
8. 4, directs that certain sums shall be raised amounting 
together to a fixed sum, and that towards the raising that 
sum, all manors, lands, and annuities, yearly profits, apd 
other real property, and all persons having and holding the 
same, shall, in respect thereof, be charged, with as much 
equality and indifference as possible, by a pound-rate. 
The 17th section authorizes a distress, and directs that the 
tenants of houses, lands, &c. rated shall pay such sums as 
shall be rated, and shall deduct out of the rent so much of the 
said rate as, in respect of the said rents of any such houses, 
lands, Sec. the landlord should and ought to pay and bear, 
but there is no provision that the whole shall be deducted. 
Looking at these clauses, the object of the legislature seems 
to have been that each party should pay according to his 
interests Whether a lessee is to be considered as a pro- 

rtod of exoneration, be entitled to her, or them, free of all chai^i 

demand, have, and receive, for and deductions whatever, to be i»- 

their, his, or her own use for ever, soing and payable out of the ma* 

and shall, by virtue of this act/ be nors, messuages, lands, tenements, 

adjudged, deemed, and taken to or hereditaments, vrhereoii the 

be in the actual seisin and posses- land-tax so purchased was cborg* 

sion of a yearly rent or sum as a ed, on the same days as'sach land- 

feerfarm rent, equal in amount to tax was pajpaUe at the time of the 

the land-tax so purchased by him, puicbase thereof! 


HILARY ^»M, X <5E0. IV. 41* 

prietor subject to the payment of rent uDder section SX^)i 1830, 

or as a tenant under section 17(6), all that the. lessor is 
ultimately to pay is such a proportion as the rent received 9. 

by bim bears to the entire annual value of the premises. Const, 
It 18 immaterial for what reason he ceased to have a title to 
a certain portion of rent* But it could not be contended 
that be continued to be chargeable with the whole of 
the land-tax. Supposing that the lessor assigns part of the 
rent to a stranger, it can make no difference whether he bb- 
signs the rent to a stranger or discharges the tenant. Nor 
can it be material for what consideration he gives up the 
rent, whether money is paid down, or money is to be ex^* 
pended in improvements. None of the cases cited appear 
to be in point, except that from Siarkie (c). The dicta in 
Hydev, Hill{d) are in favour of this construction of the 
act, and it is most reasonable that the lessor should pay 
such proportion only of the tax as the rent which he re- 
ceives bears to the total annual value. The amount of the 
annual value is in this case conclusively fixed by the form 
of the declaration. 

II. What was the effect of the redemption of the tax Second point: 
by the plaintiff? The act of 42 Geo. 3, c. II6, is compli- f^^^^^^ 
cated, and not clear, but the plaintiff is clearly entitled 
either as a reversioner or as a stranger. The 123d sec- 
tion (e) admits of this construction, in my judgment, and 
was, I thinks intended to meet this case. No power is 
given to the person who is seised in fee, because upon the 
redemption of the land-tax he only exonerates himself. To 
a certain extent the plaintiff here exonerates himself; as 
to the other part he exonerates the defendant. He has a 
right, therefore, to have, as against the defendant, a rent- 
charge equal in amount to the lessee's proportion of the 
land-tax redeemed. The defendant must be considered to 

(«) Suprd, 408. suprit, 405. 

(*) IWd. (d) 3T. R-377. 

(c) WkUfield v. Brandwood, (e) SuprH, 405 n. 


be in poMeiiioo^ he being the leisee, and no olber penon 
being steted to be in possesiion. 

Postea to the plaintiff (n). 

(ii) AadieoBrYMttwyT. Wright, 
e J>Qfi§ji. 694 i Stubb$ V. Panom, 3 
Bvfi, & Aid. 516; Watson v.Ai- 
kbUf ibid. 647; Spragg v. Ham' 
mmd, t Biod. k Bingb. 69, iind 4 
B.Moore^ 431; Dmotom t. Xia- 
fon, 5 Barn. & Aid. 591, and 1 
Dowl. & R^l. 117; Sparket, Ex 
parte, Maolel. 518; Bennett ▼. 
Wmm€lh ealc^ >• 644^ 7 Bam. fc 

Crw. 087, ani 3 Car. Ik Pb/at, 
96; tTamer v. Potchett, 3 Bern. 
&AdoU9Sl; AmJUld w. WkUt, 
Ryan & Mood. 946. 

See ako Jlw V. JltfdkoMb 1 
Doug). S26 o., and Caldecott, 976 : 
In re St, Lamrence, YTtn/pn, Cald. 
379; Rex w, Folkestone, 3 T. R. 
1 Ne?. k Maim, 731. 

ii. and B., 
joint tenants 
of aeopjhold, 
maka paitition 
by paral with- 
out tbe assent 
of the lord, 
and afterwards 
occupy in 
A. surrenders 
to C. by gene- 
ral words. — 
C. is not enti- 
tled to be ad- 
mitted to the 
parcels occu- 
pied bv A, in 

The King v. Thomas Southwood, Esq. Lord of the 
Manor of Taunton-Deane {b). 

A Customary estate (c), parcel of the manor of Taun- 
ton-Deane {(i), in the county of Somerset^ was aurren- 
dered to the use of Richard Staple and I'hamas ValetUine 
Stapki their heirs and assigns for even according to tbe 
cuftom of the manor. Richard Staple paid more than 
one half of the purchase-money. This estate waa pw« 
^fiased by the Staples in pursuance of a parol agreeoient 
between tbem» that Thomae V. Staple should have aucli part 
as was situated on one side of tbe river (which intersected 
the estate,) and lay contiguous to his own lapds, Richard 

(b) This case was aigoed in 
Trinity term, 1827. 

(e) The properly was dasoribed 
in tha a^svits on whidi the role 
was obtained as a customary free' 
hold; but it was admitted that 
this estate, e?en if properly so 
designated, beloQged to that class 
of customary freeholds which are 

within and parcel of the manor, 
and of which the frmehoid is in 
tha lord. See the disUactifm b^ 
tweea this spades of teoMW and 
freehold in ancient demesney Man- 
ning's Exch. Praot ed ad. 369, 
360, 361. 

(d)A3 to die pacnliar tonitras 
in this manor, tfide ibitL 364 n. (r). 


aiLABr T1MX, X 6S0. XV. 415^ 

StapU taking tbe oilier part of the estate, which wa« more l^M* 
than ooe half thereof, and which lay contiguous to his TVeKiHo 
own lands. The respective parts were accordingly entered ^ v« 
upon, and occupied and enjoyed in severalty. Rkhard 
Staple occupied his part of the estate until his death, and 
eiercised acts of ownership on the same as the sole pro- 
prietor thereof. The rates and tases were divided between 
tbe purchasers according to the parts of the estate which 
they so respectively occupied and enjoyed. 

la this state of things Richard Staple made a dormant 
ffarrender(a) of ail his messuages, &c. within the manor, to 
the use and behoof of Lee, his heirs and assigns for ever, 
aeoofding to the custom of the said manor; to be holden 
spon condition that Lee, bis heirs or assigns, should pay 
til bequests contained in the last will and testament of the 
said Richard Staple, which on the part and behalf of Zee, 
his heirs or assigns, out of, for, or in respect of the pre«n 
mises therein mentioned, were to be paid, performed, ful- 
fifled, and executed; and upon a further condition that 
if Richard Staple should happen to die before Lady-day, 
18%, and should not in the meantime dispose of or sur- 
render the premises, or revoke that surrender, then such 
last-mentioned surrender was to be and remain in full force 
and virtue. After the dormant surrender, Richard Staple 
omde bis will, and thereby gave all his messuages and par- 
! oeb of the manor, 8cc. to certain trustees^ their heirs, 8lc. 
\ apos certain trusts therein mentioned. 

(«) A itomumt surrender in this self the present possessioq and in«> 
is s sorreoder made ^* for terest of the lands so surrendered. 

the purpose of settling his land In every of which surrendefs there 

opoo aoy person or persons whom must be a condition inserted, by 

the snrreoderor intends to make which a power is reserved to the 

bfs heir or heirs, or, to charge the surrenderor to revoke, frustrate, 

with may sum or sums of and make void tbe same surrender 

y, or, for the performance of within the space of seven or eight 

b» last will and testament — such years, according to the custom of 

surreoders to be published and the manor/' — Ancient Customs 

take efiect after the death of the of the Manor of Taunton-Deane, 

saocnderor, be leaving in him- (Taunton, IBSl,) 9th Custom. 

Tfie KiKO 



I8d0. Within the time limited by the custom for "making en- 

tries" or being admitted tenant to the lord, Lee applied to 
W. Kinglake, gent*. Clerk of the Castle of TauntoD| and 
SortHWooD. steward or agent of Thomas Southwood, esq., lord of the 
said manor, and requested Kingtake to allow him to make 
the psual Entries (a) in respect of a certain messuage, &c. 
which had been so occupied and enjoyed by Richard Slapk 
in severally » and also to admit him tenant to the same pur- 
suant to such dormant surrender. Kinglake refusing so to 
do, a notice (b) was addressed to Southtvood and Kinglake, 
and served on Kinglake, stating the surrender. Lee 
afterwards attended at the law-day court, (or court-'leet(c),) 
of the manor, in order to make the usual Entry or Entries, 
and gave notice of his being there for that purpose; but 
neither Kinglake nor the lord^ who was then present, 
would then or at any tin^e since make or allow such Entries 
to be made^ or admit Lee as such tenant. 

Bayly obtained a rule calling upon the lord and steward 
to shew cause why a writ of mandamus should not issue^ 
commanding them or one of them to admit Lee tenant to 
the said customary lands; against which. 

Manning shewed cause. Copyholders cannot make 
partition without the licence of the lord. Fuller v, Terry (d)] 
apd even if copyholders could make a valid partition, to 

(a) An to which, vide pott, session of the said Rkhard SiapU 

(6)'' I, the undersigned Richard at the time of his death, and partt 

Xee, the dormant surrenderee of an estate lately belonging to 

-named in the dormant surrender John Dyer, situated in the sud 

of Richard Staple, late of Corfe, parish of Corfe, and parcels of the 
in the county of Somerset, yeo- . manor of Taunton-Deane, and 

roan, deceased, do hereby, as such also to admit wc tenant of the 

dormant surrenderee, request and same, pursuant to such dormant 

' require you immediately to allow surrender. [Here follow the par^ 

mo to make the usual Entries in eels.] Dated the 93d April, 18^. 
respect of the undermentioned (Signed) Richard Lee.^ 

messuage or site of a house, closes (c) Vide ante, 143 n. 
of innd, and hereditaments, which {d) Hai^gr. Co. Dtt. 59 a, noie 

belonged to and were in the po8« 395. 

The Kino 


endare whilst the existing grant continued, it would be un- 1830. 
reasonable to require the lord to make re-grants in seve- 
ralty, as the lord would thereby lessen his remedy for his *"" i? 
rent. At present every part of the copyhold is liable for the Southwood. 
whole rent; whereas after a severance assented to by the 
lordf he could distrain only pro particul^ ill^. Besides 
whicb^ if this mandamus were to issue, by whom is the rent 
to be apportioned between Lee and the surviving brother? 
It is not disputed that the effect of the dormant surrender 
was to sever the joint- tenancy, and create a tenancy in 
common; and the lord has always been ready to admit Lee 
to an undivided moiety of the whole tenement. The notice 
confounds the legal severance of the joint-tenancy by the 
dormant surrender, and the actual severance of the parcels 
by an occupation in severalty of distinct parts of the cus- 
tomary lands. 

Bayly, in support of his rule, cited Snag v. Fox (a), iu 
which a copyholder aliened part of his copyhold to one 
and part to another, and retained part in his own hands, 
and no question was made as to the right of the copy- 
bolder 80 to deal with his estate ; and the only doubt was, 
whether the lord was entitled to more than one heriot {b). 
[Bey ley, J. There the lord assented to the alienation.] 
He also referred to Wase v. Pretty (c). 

Lord Tenterden, C.J. — Two persons are joint te- 
nants of the copyhold. They occupy in severalty, but 
tfaeir esiaie is joint. One of the joint-tenants surrenders to 
the lord by words capable of passing the whole. That 

(«) Palm. 343 ;&C.S Roll. Abr. heriot; HoUoway v. Berkeley, 9 

514; SO Vjn. Abr. ^43. Dowl. & Ryl. 83, and 6 Barn. 

{b) Where the lord has become & Cress. 2 ; unless during the se- 
eotitled to several heriots by the ferancethe lord has, by perception 
sererance of a heriotable tene- of the several heriots from the re* 
laent, and the different parts of spective tenants, obtained actual 
the severed tenement are after- seitin of such new heriots. Man- 
wards re-united in the same tenant, ning's Exch. Prac. 2d ed. 341. 
ibe lord is only entitled to one (c) Winch, Rep. 3; Hetley,150. 

VOL. V. E E 

Mvers th« joint-tenaney* The suironder can only Dpente 

_, _, upon that which the party has, and can pass. . 

The KiHd 

SocTHwooD. B^YLfiY and HoLROYD, Js., concuwcd. 

LiTTLEDALE, J. — ^Thc Only course which Lee cati ado^t 
seems to be to procure the surviving tenant in common to 
join in a surrender of the whole, and then to apply to the 
lord to grant out the parcels in severalty. 

Rule discharged. 

Mumnng applied for the costs of the motion, which the 
Court refused^ on the ground that it did not appear by afii- 
davit, that when Lte applied to be admitted in aevcralC) 
any oifer was made to admit him to an undivided tnoiety. 

RiCKARDS t). MuRDOCK aud another. 
A. at Sydney, XHIS was an action of covenant, upon a policy of indar- 
JB.'^l^t L^ndolT *^"^® ^" g^^^® ^y ^^^ ^ Cumberland, at and from Sydney 
by the ship C, to London, effected by the plaintiff as agent for one Camp- 
next ship ^^^A ^nd f<>r his benefit, with the Mutual Marine Insurance 

writes to him, Company, of which the defendants were directors. The 
directing mm, , •, r i mL 

if the letter claim was for a total loss by perils of the seas. There 

the C* to^ wntt ^^^^ several special pleas, but the questions in the cause 

thirty days, in arose upon two only, the fifth and the seventh. The fifth 

every chantTe P'^* Stated, that before the making of the pcJicy, to wit, 

for her arrival, on the 28lh May, 1827, Campbell sent from Sydney to one 

and then to "^ ... 

insure the goods. £. receives the letter, and after waiting thirty^ix days, insures the 
goods, telling the underwriter when the C. sailed and where the letter was written, but 
not telling him when he received the letter. The C. never arrives. This is a materUI 
concealment, and avoids the policy. 

In an action on the policy, under such circumstances, the om'nion of undervrriters as to 
the materiality of the matter concealed, was held to be admissible evidence (a). 

(a) Coatri Camj^tll t. Bichirdt, 2 Ney. & Mann. 543. 

HiLAilT TERM, X 0£0. IV. 419 

Ibrm^X Londoo a letter, containing tbe order for effecting 1830. 

the policy, by another ship called the Atutralia^ which had ^^^^^ 

sailed from Sydney a long time, to wit, more than a month «. 

after tlie Cumberland had sailed from thence on her voyage ^*'**^tk^, 

meatioDed in the policy ; that Campbell thereby instructed 

Harris to deliver the said letter to one Emmett, who had 

before then sailed from Sydney to London on board tbe 

Cumberlafidf in case Emmeit should have arrived in England 

viieD Harris should receive the said letter ^ but if Emmett 

Wiould Bot have then arrived, Campbell thereby instructed 

Harris to retain the said letter in his possession for the 

i^ce of thirty days after be should receive it, and at tbe 

«ipiration of that time to deliver the same to the plaintiff, 

^ Campbell^ having in the said letter intimated that he had 

directed Harris not to deliver the same to the plaintiff, 

until the exf^iration of thirty days after the arrival of the 

Australia in London, in order to give every chance for 

Enmeii's arrival in England before the said letter should be 

delivered to the plaintiff, (he, Campbell, thereby meaning, 

tiiat ttoiess Emmett did arrive in England before the expi- 

ntion of thirty days after tbe arrival of the Australia m 

Loadoo, be, Campbell, bad little hope that the Cumberlaud 

would arrive in safety at LoadcMi with Emmett on board ;) 

that the said letter was dated at Sydney on the 2Bth May, 

1827, and stated that the Cumberland sailed on her voyage 

ODthe e.5th April, 1827; that before tbe making of the 

poBcy^ to wit, on (he 8tb October, 1827, the Australia did 

VHTe at London from Sydney with the said letter, and that 

Harris did receive and detain the said letter in his posses- 

noB for tbirtf days and more after tbe receipt thereof, and 

at the expiration of (hat time did deliver the same to the 

pUatiff, who thereupon caused tbe policy to be effected ; 

dnt tbe plaioliff did not disclose, aor was it disclosed to the 

^fandsnls or tbe said company, before or at tbe time of 

nalui^ tine policy, tdbat the said letter came by (he Australia, 

or that tbe Australia bad sailed from Sydney so lo^g or at 

*B after tbe Cumberland, or that Campbell bad so requested 

E E 2 


the said letter containiDg the said order to be so detained 
by Harris, or that the same had been so detained by bim, 
V. or that Campbell had so intimated in his said letter the pur- 

oDd another. P<>8e for which he so directed the said letter to be so de- 
tained by Harris, or that Campbell had so intimated that be 
had little hope of the safe arrival of the Cumberland at 
London with Emmetl on board, in case she did not arrive 
within the space of thirty days of the arrival there of the 
Australia ; that the several matters and things so concealed 
from the defendants and the said company at the time of 
making the policy, and not disclosed, materially affected and 
increased the risks, touching which the funds of the said 
company were by the policy intended to be made liable; 
and which matters and things, if the same had been ilis- 
closed, would have materially affected and increased the 
premium or consideration for the said insurance. The 
seventh plea stated, that the plaintiff, before and at the time 
of making the policy, concealed from the defendants and 
the said company divers facts and matters which, at the 
time of making the policy, materially affected and increased 
the risks, touching which the funds of the said company 
were intended to be made liable, and were thereby made 
liable ; and which facts and matters^ if disclosed, would 
have materially affected and increased the premium or con- 
sideration for the said insurances. Replication : to the fifth 
plea, de injuria su&, 8cc. : to the seventh, that the plaintiff 
did not, before or at the time of making the policy, conceal 
from the defendants and the said company any fiicts or 
matters which, at the time of making the policy, materially 
' affected or increased the said risks ; or which, if disclosed, 
' would have materially affected or increased the premium or 
' consideration for the said insurance. At the trial before 
' Lord Tenterden, C. J. at the London adjourned sittings 
after Hilary term, 1829(a), the following facts appeared:— 
Mr. Robert Campbell was a merchant at Sydney, and the 
person interested in the policy in question. He had been 

(a) Vide 1 Dans. & Lloyd, 221, and I LI. & W. IS«. 


for some years a correspondent of the firm of Rtckards, 
Mackintosh, & Co., in which the plaintiff was a partner. 
In April, ]827> he shipped on board the Cumberland, then 
about to sai] from Sydney for London, vi& Hobart-Town, a 
lai]ge quantity of seal skins, (the goods insured by the policy 
in question,) under the care of a Mr. Emmett, who was 
going as a passenger in that vessel. 

The Cumberland, with Emmett and the skins on board, 
sailed from Sydney on the 27th of April, 18«7, and upon 
hearing of her safe arrival at Hobart-Town^ Campbell wrote 
and forwarded the following letter: — 

" Sydney, New-South-Wales, 28th May, 1827. 

" In case of the non-arrival of Mr. Emmett per ship 
Cumberland, you will herewith receive the seconds of ten 
sets of treasury bills, amounting to SOOO/., and the second 
of exchange, Elizabeth von Bibra on Henry Powell, for 
BO/.y making 3080/. ; which amount I will thank you to in- 
vest agreeably to the accompanying instructions. 

" I will also thank you to effect insurances, at market 
price, on forty-nine casks, containing 4175 New-Zlealaud 
far seal skins, shipped to the consignment of Mr. Emmett per 
Cumberland, or, in case of death, to your house ; for which 
IHirpose I inclose you the bill of lading. The Cumberland 
left Port-Jackson for London, vi4 Hobart-Town, on the 
25tfi of April, 1827, and by letters received from Mr. 
Emmett, was at Hobart-Town on the 10th of May, 1827, 
and was expected to sail from thence in ten or fourteen 
days from that date. 

" Insurance to be effected on the goods shipped to my 
consignment, and the freight payable in New-South-Wales. 
I wish the goods to be shipped by two or three oppor- 
tunities, and, if practicable, by vessels coming direct to 

** To give every chance to Mr. EmmetVs arrival in Eng- 
biKl, I have directed my friend Mr. Harris not to de- 
liver this until thirty days after the arrival of the Australia 
in London ; and should Mr. Emmett arrive after you have 




and another. 




and another. 

CASES IN TttE kino's BENCH, 

fulfilled these instructions, you will communicate to him 
what you hate done, it having been mutually agreed upon, 
previously to his leaving New-South-Wales, that in case of 
any accident to him you should be appointed agent of this 

This letter was inclosed in an envelope, which bore the 
following address : — 

" This letter is to be delivered by Mr. Harris to Mr. 
Emmett, if he has arrived, and if not, to be retained in Mr. 
Harris's possession thirty days from the date he receives it, 
and then to be delivered to Messrs. Richards^ Mackintosh, 
8c Co., London." 

This letter was forwarded by the ship Australia, which 
sailed from Sydney on the 2d of June, I827> and arrived io 
London on the 6th of October, ISd?^ and was delivered ia 
London on the Bth of October, i827y to Mr. Harris^ who 
retained it in his possession thirty-six days ; at the end of 
which time, namely, on the 13th of November, 1827, no 
news having been received either of the ship Cumberland 
or of Mr. Emmett, he, Harris, handed over the letter to 
Messrs. Richards, Mackintosh, 8c Co. 

Messrs. Richards, Mackintosh, & Co., on the same day 
that they received the letter, delivered it to their clerk, Mr. 
Towers, for the purpose of hk effecting the insurance 
therein ordered. Towers first went to Lloyd* s, where be 
was asked a premium of 70s. per cent. He then went to 
tihe office of the Mutual Marine Insurance Corapavy, where 
he saw the managing clerk, a Mr. Ellis, to whom be read 
the second paragraph of the letter, and no more; but he 
stated the date of the letter and the place from whence it 
was written ; and no further particulars being inquired into 
by Mr. Ellis, Towers and he agreed upon a premiuiD of 
60s» per cent., and the policy was effected on those terms. 
Tbe Cumberland was never afterwards heard of, and was 
presumed to have foundered at sea. Two vessels that had 
saikd from Sydney after the Australia, arrived in EagiaDd 
two or three days before the policy was effected, aod their 


Hii^av TERM, X Of o, IV, 4^3 

anivsil was annouiic^d in X'/oyfiTs Uft ^ Ul9 HK^rning of tb^ 1830. 

(iaj when the policy was eifect^d^ Several Maderwriter-i, 

who were called as witnesses on the part of the defendants, v. 

stated, that in their opinion the whole of the letter ought aJd^nuaih^r. 

to have been read to Mr. JEJln, af^d that the pi^fft omitted 

was material. This evidence was; objected to, but wa9 

admitted by the Lord Chief Justice, who left the question 

of materiality to the jury. The aame witnesses stated upon 

cross-eiamiiiatioii, that if on^ underwriter refuses a risk, 

that circumstance is never communicated by the broker to 

9,uy otiier underwriter to whom the risk is afterwards of- 

fered. The jury having found a> verdict for the defendants^ 

Scarlett, A. G., in Ei^ster term^ ] S2Q, obtained a rule 
nisi for a new trial, on two grounds ; first, that evidence of 
tbe opinion of the underwriters ought not to have been ad* 
naitted ; and, secondly, that the part of the letter which had 
not been read could not properly be deemed material, inas* 
mueb as it did not relate to any facts, but only to the 
apprehensions of the writer, and that the party effecting an 
iosurance was not bound to communicate any thing but 
facts, unless questioned by the underwriter: Haywood (or 
Eaystard) v. Rodgers (o), and Freetand v. Glover (6). 

F. Pollock and Tomlinson shewed cause. First, evi« 
d^ce of the opinion of the underwriters was properly 
admitted in this case, for the purpose of shewing that the 
Blatter withheld from the insurers was material, and ought 
to have been communicated. It was decided in Lindenau 
V. Desborough{c\ that it is tbe duty of a party effecting an 
insurance on life or property, to communicate to the under- 
writer all tbe material facts within bis knowledge, touching 

(a) 4 East, 590; 1 Smith, 289. vol. iii, 45. And 8«e the note ante 

(&) 7 East, 457; 3 Smith, 424; iii, 47(fl), in which are cited 

6 Esp. N . P. C 14. And see Ctmrt Maynard v. Rhodez, 5 Dowl. & Ryl. 

▼. MorfiaeoifyS Dougl. 161. S66, and Everett v. Detbaroughf 

(c) 8 Barn. & Cress. 586; ante, 5 Bingh. 503, 4 Moore & P. 100. 





and another. 


the subject-matter of the insurance^ M^hether he believes 
such facts to be material^ or not ; and that it is a question 
for the jury whether any particular fact was or was .not 
material. Upon that question the judgment of the jury 
must be aided and guided by evidence ; and the opinion of 
persons conversant with the subject-matter of the inquiry, 
is efficient and proper evidence for that purpose. In Ber- 
thon V. Loughman (a), where the defence was, that material 
information, as to the time when a ship sailed, had been 
withheld from the underwriter, Holroyd, J. held that a wit- 
ness, conversant with the subject of insurance, might give 
his opinion, as a matter of judgment, whether particular 
facts, if disclosed, would have made a difference in the 
amount of the premium. In Durrell v. Bederley {b), Gibhs, 
C. J. said (c), ** It is the province of the jury, not of indi- 
vidual underwriters, to decide what facts ought to be com- 
municated," and he received the evidence of underwriters 
with hesitation ; but the question there asked was, — not 
whether the matter in dispute was material, — but whether 
the witnesses would have accepted the risk. 

Secondly, the part of the letter not read was material, 
and ought, therefore, to have been communicated. Hay- 
ward V. Rogers (d), and Freeland v. Glover (e), — the cases 
cited when this rule was obtained, — are very different from 
the present case. In the former of those it was held, that 
a letter stating that the ship insured had been surveyed on 
account of her bad character, need not be communicated ; 
but the ground of that decision was, that the assured always 
impliedly warrants the ship insured to be seaworthy. In 
the latter, two letters had been received by the assured re- 
specting the state of the ship, and the second only was 
communicated to the underwriter; but as that expressly 
referred to the first, so that the underwriter knew that 
further information had been received, and might have 

(a) 2 Stark. N. P. C 258. 

(b) Holt, N. P. C. 283. 
(f ) Ibid. 286. 

(rf) 4 East, 590; 1 Smith, S8P. 
(e) 7 East, 437 ; 3 Smith, 424; 
6 Esp. N. P. C. 14. 



called for it, it was held that bis omitting to do so was an 
answer to the objection. Jin the present case the insurer 
had no means of knowing that the plaintiff had received any v. 

information respecting the Cumberland beyond that which ^j^^j^^^'r 
was read to him ; nor could he know that the letter was not 
brought by one of the two vessels which arrived imme- 
diately before the policy was effected : but the plaintiff was 
aware of both those facts, and therefore the whole of the 
letter ought to have been read, and the fact that the letter 
came by a vessel which sailed after the Cumberland, and 
arrived a month before the policy was effected, ought to 
have been distinctly communicated. In Kirby v. Smith (a), 
where a ship had sailed from Elsineur, on her voyage home, 
six hours before the owner, who followed in another vessel 
on the same day, and who, having met with rough weather in 
his passage, arrived first, and then caused an insurance to be 
eflfected on his own ship, it was held, that these circum- 
stances were material to be. communicated to the under- 
writer, and that it was not sufficient to state merely that the 
ship msured was '^all well at Elsineur on the 26th. of July," 
the day of her sailing. In Willes v. Glover {b), the plaintiff, 
the consignee of goods, received a letter from the consignor, 
dated SOth November, stating, *^ I think the captain wUl 
sail to-morrow; but should he not be arrived in your port, 
you will be so good as to make the insurance as low as you 
possibly can for my account :" — This letter arrived on the 
12th December, and on the following day the plaintiff ef- 
fected the insurance, without communicating the letter; and 
it was held that this was a material concealment. In 
M'Andrew v. Bell{c) the insurance was on a ship from 
Lisbon to London : — On the 24th of November the plaintiff 
ia London received a letter from Lisbon, dated the 8th, 
informing him that the ship would sail on that day :^On 
the 2d of December, and after the arrival of another ship 
which sailed at the same time, the plamtiff effected the in- 

(a) 1 Barn. & Alders. 672. (6) I N. R. H. (f) 1 Esp. N. P. C. 373. 


1890. 8iiraiiee» but wiihoiMi coDnnimicfttin^ to the underwriter the 

J^*""^^^^ letter that he bad receivedl. Lord Kawon held that this 

V. was a material cancealaieiit, a»d obeerved, that " rt ap- 

a^^t^Ir P^^r^^ ^^^^ ^^^ pkaintiff did not intend to inaure Hotol he 

believed hef to be a misemg shipv^-a» he did not effect the 

policy for ten da^rs after the letter arrived, and not until 

another ship wUcb had saikad at the same time with hi* 

own had arrived in safety." That case is not, in substance 

or in principle, distinguishable from tlie- present; for it is 

clear that Campbell did not intend to have the insurance 

upon the Cumberlcmd effieeted, unii), in bis c^imoBi aU 

hope of her safe arrival would have ceased. 

ScarkU, A. 6«, Campbtll, and Maule, contri. All the 
facts which it was necessary for the fair protection of the 
underwriter that he should know, were communicated to 
him at the time when this policy was effected ; it was not 
necessary that he should be informed of mere matters of 
opftiriVvf. It is not pretended that wf fraud was practised; 
and therefore the case last cited has no bearing upon the 
present. It is not even pretended that the Cumberland 
was in fact a missing ship when she was underwritten, but 
only that Campbell the owner must have thought her to be 
so, and that his opimon on that point ought to have been 
communicated to the underwriters. There is no authority 
for that argument. The underwriter is always presunsed 
to know the general nature and ordinary duration of the 
voyage for which he insures ; and he is entitled to be in- 
formed, where the means of such information exist, of the 
time when the ship sailed, or was expected to Mail^ and of 
all other facts which would in any degree vary the general 
character of the risk. Beyond this the assured is not 
bound to volunteer information, and if the underwriter 
wishes for further infoirmatioB, it is bis duty to ask for it. 
This distinctiou is stroqgly pointed out by Lord EUtU" 
borough in Haywood v. Rodger${a). The defendants in 

{a) 4 East, 590; Hayward v. Rodgert, 1 Smith, $89. 

HILARY T£Rlf, X GEO. IV. 427 

this case had as good means of fbrroing ao opinion a& to issa 
the probability of the safe arrival of the Cumberland, as ^"^vW 
the owner had ; and the opinion either of the one or the 9, 

other could not by possibility vary the real nature of the ^^"''^^ 
risk. It seems admitted that if the letter had arrived only 
a day or two before the policy was effected, it would not 
have been necessary to mention it. The material fact 
opoB which the calculation of the underwriter always 
depends, is the date of the ship's sailing; and that waa 
truly communicated in the present case. The argument 
OD the other aide must go this length — that a party about 
to iasure is bound to communicate to the underwriter all 
the fears which he himself entertains. Suppose CamjAeU 
himself bad been in England ; had received information of 
the Cumberland having sailed from Sydney on a particular 
day; bad neglected to insure her for thirty days; had then 
become alarmed, and employed an agent to effect an in- 
surance, stating to him the alarm he felt — would the agent 
have been bound to state that circumstance to the under- 
writer? If so, a policy may be good or bad according to 
the strength or weakness of the nerves of the ship-owner, 
or according to his habit of expressing or concealing the 
anxiety or alarm he feels about the safety of his property. 
The opinion of an underwriter as to the probable safety of 
a ship upon a particular voyage, roust be at least as import** 
aat as that of the owner; and yet it was in evidence in 
this cause, that where oae, underwriter refuses a risk, that 
circumstance is never mentioned to any other underwriter 
to whom the same risk is afterwards offered. In Bell v. 
Bell (a), the assured upon a policy from Riga to London 
had received a letter from their correspondents at Riga, 
stating that the papers of all vessels arriving in that port 
had been ordered to be sent to Petersburgh, and that the 
order had produced a great sensation, on account of the 
detention occasioned by it, and expressing considerable 
apprehension for the safety of the ship. This letter was 

(a) 3 Caropb. 479. And see 3 Dougl. 41. 






and another. 


not shewn to the underwriter when the policy was effected, 
but he was informed by the broker that the ship's papers 
had been sent to Petersburgh. It was contended that this 
was a material concealment, which rendered the policy 
void, but Lord Ellenborough ruled otherwise, and said, 
'• The assured are only bound to communicate yac/«. The 
broker did communicate the fact of the ship's papers being 
sent to Petersburgh for examination. He was not bound 
to communicate the sensations and apprehensions which 
that fact produced at Riga;" and this ruling was after- 
wards supported by the whole Court. Carter v. Boehm {a) 
had previously decided that the apprehensions or opinions 
of a party insuring need not be stated, and that case is also 
a strong authority to shew that the opinions of the under- 
writers upon the materiality of the matter not communi- 
cated, ought not to have been received in evidence in this 
case. There, the broker who effected the insurance was 
allowed to state at the trial that, '^ in his opinion certain 
letters ought to have been shewn, or their contents dis- 
closed, and that if they had, the policy would not have 
been underwritten {b) :*' — After argument upon a motion 
for a new trial, Lord Mansfield, referring to this evidence, 
said(c), '' We all think the jury ought not to pay the least 
regard to it. It is mere opinion, which is not evidence. 
It is opinion after an event. It is opinion without the 
least foundation from any previous precedent or usage. It 
is an opinion which, if rightly formed, could only be drawn 
from the same premises from which the Courts and jury 
were to determine the cause, and therefore it is improper 
and irrelevant in the mouth of a witness." And the judg- 
ment of Gibbs, C. J., in Durrell v. Bederley (d), is to the 
same effect. He there said, '' I am of opinion that the 
evidence of the underwriters, who were called to give their 
opinion of the materiality of the rumours, and of the effect 
they would have had upon the premium, is not admissible 

(fl) 3 Burr. 1905. 
(b) Ibid. 1914. 

(c) Ibid. 1918. 

(d) Holt, N. P. C. 283. 


evidence. It 18 the province of the jury, not of individual 1830. 
underwriters, to decide what facts ought to be communi- J^"^^"^^^ 

n«*^J T* • • - . ^ RlCKAUBS 

caiea. it is not a question of science, on which scientific v. 

men will mostly think alike, but a question of opinion ^SSer. 
liable to be governed by fancy, and in which the diversity 
might be endless. Such evidence leads to nothing satisfac- 
tory, and ought on that ground to be rejected." Lindenau 
y. Desborough (a) cannot be regarded as a conflicting au- 
thority; for there the opinions given did relate to a question 
of science. 

Cur. adv, vult. 

Judgment was now delivered by 

Lord Tentehden, C. J. — This was an action on a po- 
licy of insurance on goods by the ship Cumberland, at and 
from Sydney to London. A verdict having been found for 
the defendants, a rule nisi for a new trial was granted; and 
on the argument, the main question was, whether a certain 
letter, which had been received by the piaintiflf, was material 
and ought to have been communicated to the defendants. 
One part of it, stating the time when the Cumberland sailed 
from Sydney, and when she was ei^pected to sail from Ho- 
bart-Town, was stated, but the residue was not. The part 
which was not stated contained this expression: — " To give 
every chance for Mr. Emmetfs arrival in England, I have 
directed my friend, Mr. Harris, not to deliver this until thirty 
days after the arrival of the Australia in London.^' The Aus-- 
tralia did arrive, the thirty days elapsed, and Mr. Emmett, 
who was on board the Cumberland, did not arrive; and in 
tbe meantime two other vessels that sailed from Sydney 
after the Australia, had arrived. The question was, whe- 
ther this part of the letter was material, as altering the risk 
and the premium that the assured would have to pay. It 
was contended, for the plaintiff, that this fact of the letter 
having arrived so long before the insurance was effected. 

(a) 8 B. & C. 586; 3 M. & R. 45. 


was not of siicii a nature as tfaat, if it had be«n commum- 
catedy it M^oald have affected the risk; that» at ail events, it 
V. would only go to affect the araount of the premium. But, 

^^^''^^ in our opinion, nothing can affect the amount of the pre- 
mium, without also affecting the risk. That was the wiy 
in which the point was put in Lynch v. Handlton{a)y where 
Man^dd, C. J., said, ** A person insuring is bound to 
communicate every intelligence he has, that may affect the 
iMind of the underwriter in two ways — first, as to the point 
whether he will insure at all; and secondly, as to the point 
at what premium he will insure." At the trial of this cause 
some witnesses stated that they thought that the letter 
was material and ought to have been communicated* It has 
been contended that no such evidence ought to have been 
received. I know not how the materiality of any matter is 
to be ascertained but by the evidence of persons conversant 
with the subject-matter of the inquiry. If such evidence is 
rejected, the Court and jury must decide the point according 
to their own judgment, unassisted by that of others. If they 
are to decide, all the Court agree in thinking that the letter 
was material and ought to have been communicated, and 
tliat a jury would have been bound to come to that conclu- 
sion. The case is somewhat peculiar. The abtp was at 
Hobart-Town. The owner, who was a resident at Sydney, 
and who must be taken to have known the character of the 
ship, wrote to his agent here by another vessel sailing from 
that place at about the same time that the Cumheriand was 
expected to sail from Hobart-Town, and directed him, after 
the receipt of the letter, to give his ship every chance of 
arriving before he effected the insurance. If the fact that