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REPORTS OF CASES
-ARGUED AND DETERMINED
^ht Court ot l^ing'd H^pm^,
MICHAELMAS AND HILARY TERMS, TENTH GEO. IV.
AND
EASTER TERM, ELEVENTH GEO. IV.
BY
JAMES MANNING, Esq. of Lincoln's Inn,
^ AND
ARCHER RYLAND, Esq. of Gray's Inn,
BARRISTERS AT LAW.
VOL. V.
WITH AN INDEX
AND
TABLE OF PRINCIPAL MATTERS.
LONDON :
S. SWEET, 1. CHANCERY LANE; A. MAXWELL, 82, BELL YARD;
AND V. & R. STEVENS {lau Suvem ^ Sont), 39, BELL YARD j
OiUD HootollfTft anH 9ubU((ers:
AND MILLIKEN AMD SON, GRAFTON STREET, DUBLIN.
1837.
f^nmoFTHE
LLi.':'' : ;.. .FORD JR. U!J !':::::. ii
JUL 15 1901
LONDON :
C. ROWOflTH ANO SON'S, rRINT£ltS, UI-.Lt-YAt(Z>,
TEMPLL-BAR.
JUDGES
OF THE
COURT OF KING'S BENCH,
During the period comprised in this volume.
Charles Lord Tentekden^ C. J.
Sir John Batlet, Kijft.
Sir Joseph Littledale, Knt.
Sir James Parke, Knt.
ATTORNEY-GENERAL.
Sir James Scarlett, Knt.
SOLICITOR-GENERAL.
Sir Edward Burtenshaw Sugden, KdI.
b2
LIBRARY OF THE
LELAND STANFORD, JR., UNI¥ERSITr
UW DEPARTMENT,
TABLE
OF
THE CASES REPORTED
IN THE FIFTH VOLUME.
ASPINALL, Sharp v.
B.
Bagshaw, Wilson v.
BcaleSy Brett 9.
B«lfordy Rex 9.
Bennett v. Daniel
r. Skandon
Berkeley v. Demery
Beroasconi v. Farebrother
Beswick, Worswick v.
Betfamm, Obbard v.
Bignell v. Ellis
Blackawton, Rex v.
Blake, Hammond v.
Borough 9. Moss
Boucher, Fisher 9.
Bowen v. Fox .
Brett V. Beales .
, Donlan r.
Brown p. Duncan
Browne 9. Cumming
Butcher, Power 9.
C.
Cann, Ware 9. .
Capper, Davies 9.
Cfaew Magna, Rex 9.
Cliolaielej, Cockerell 9-
Page
71
448
433
174
444
14
442
364
586
632
165
G^o
361
296
589
4
433
29
114
118
327
341
53
635
509
Page
Clay 9. Harrison . • 17
Clement, Fisher 9. • . 730
Cockerell 9. Cholmeley • 509
Colley 9. Hardy . . 123
Const, Ward 9. . . 402
Cooper, Daubeny 9. . 314
1;. Meyer . . 387
Coster, Fowler 9. . • 352
Cumming, Browne 9. .118
D,
Daniel, Bennett 9. . • 444
Daniels, Macpherson 9. .251
Dare, Plaxton 9. • . I
Daubney 9. Cooper . .314
Davies 9. Rex ... 78
Davis 9. Capper • . 53
^ Mercer 9. . . 735
Day 9. Picton . . .31
Demery, Berkeley 9. . 442
Dickinson 9. Valpy . . 126
Doe d. Christmas 9. Oliver 202
d» Evans v* Jones • 752
Grubb 9. Grubb . 666
Harris 9. Howell . 24
Jackson 9. Hiley • 706
Jones 9. Jones . 6i6
Mann r. Walters . 357
Nicholl 9. M'Kaeg 620
d. Wigan 9. Jones . 563
VI
TABLE OF CASES REPORTED.
Donlan v. Brett
Dowbiggin, Harrison v.
Drummond, Muskett 9.
DuDcaOy Brown v. •
Page
. 431
. 210
. 114
Edingale, Rex v. . • 648
Edmunds, Price «. . . 237
Ellis, Bignell v. . • 1C5
Exeter, Bishop of, v. Gully 4.57
, Rex V. • . l67
Farebrother, Bemasconi v. 364
Faatitleroj, Horsfall v. . 653
Fisher r. Boucher • . 589
' V. Clement . . 730
Fotster, Heysham r, . .277
Fowler v. Coster . • 352
Fox, Bowen v. . . 4
Furnish v. Swann • • 452
a
Gainsford v. Marshall . 45
Garry v. Sharratt . . 609
Gaussen v. Morton . .613
Goodtitle, Williams r. . 757
Graham, Newsome v, . 64
Great Bentley, Rex v. . 559
Griffiths, Reece v. . .120
Grimwood, Wood ». 551, 584,
598, 622
Grubb, Doe d. Grubb r. • 666
Gully, Bishop of Exeter v. 457
H.
Hammond t^ Blake • .361
Hanford, Moseley r. . 607
Hardy, Colley v. . . 123
Harper v. Hayton . . 305
^, Stannard v. . . 295
Harrison, Clay v. • • 1 7
— — , t7. Dowbiggin . 43 1
V.Hodgson . 391
Hawkins V. Whitten . ^ 219
Hayton, Harper r. •
Heysham v. Forster .
Hiley, Doe d. Jackson t?.
Hirst, Pease v.
Hodgkinson, Rex v. •
Hodgson, Harrison v.
Holds worth v. Hunter
Hop wood, Phillips r.
Horsfall r. Fauntleroy
Howell, Doe d, Harris v.
Hunt v. Mortimer
Hunter, Holdsworth v,
V. Leathley .
V. Wright
I.
Impey, Isaac v.
Ingilby, Swaine v.
Isaac V. Impey
Page
305
277
706
88
162
391
393
15
653
24
12
393
522
. 611
377
125
377
J.
James, Servante r.
Jefferey, Spratt v.
Jones, Doe d, Evans v.
Jones V.
• Wigan r. .
, Williams r. .
K.
Kell V. Nainby
Kensington, Robertson v. .
L.
Langriville, Rex v. •
Leathley, Hunter v. •
Lent, Mann v. •
Lewis V, Marling
M.
Macpherson v. Daniels
Main waring. Rex v. •
M'Kaeg, Doe d* Nicholl r.
M'Knight, Rex r.
Mann r. Lent •
Marling, Lewis v.
299
188
752
616
563
3
76
381
726
660
66
251
36
620
644
6ec>
66
TABLE OF CASES REPORTED.
vu
Marsball, Gainsford v. . 45
Martlealiam. Rex v. . .82
MasoQ V. Wallis . . 85
Melton, Middleton v. . fif)4
Mercer v. Davis . . 735
Metcalfe, Wise v. . . 235
Meyer, Cooper v, . . 387
Middleton t?. Melton . 264
Mortimer, Huut r. . . 12
Morton, Gaussen v. . , filS
Moseley, Hanford r. . 607
Moss» Borough v, . . 29(i
Murdock, Bickards v. .418
Muskett €7. Druminond . ^JO
N.
Nainby, Kell v. . . 76
Newsoine v. Graham . 64
Nightingale v. VVilcockson 16'9
Nuitall, Wright v. . , 454
O.
Obbard v. Betham . . 632
Oliver, Doe d. Christmas v. 20Q
Oiford Canal Company, Rex v.
J 00
P.
Pease v. Hirst .
— ^, Rex r. .
Phillips V. Hopwood
Picton, Day ».
Plaxtoo V, Dare
Power r. Butcher
Price t;. Edmunds
Pritchard, Shaw r. •
Reece
Rex v.
R.
V. Griffiths
Belford
. Blackawton .
, Chew Magna
. Edingale
. Exeter .
. Great Bentley
88
507
15
31
1
327
237
180
120
174
695
635
648
167
559
Page
Rex r. Hodgkinson . . 162
V. Langriville . . 726
V, Main waring . . 36
V. M 'Knight . . 644
V. Martlesham . . 82
V. Oxford Canal Company
100
V. Pease . . . 507
V. Roxley . . 40
V, St. Andrew the Less 639
p. St. Nicholas, Hereford 676
V. St. Paul, Exeter . 94
V. Scriveners' Company 543
V. South Killingholme 683
V. South Newton . 715
V. Southwood . .414
V. Upton Gray . 688
V, Willoughby . • 32
1;. Wilson • . 140
— — V. Wooburn . . 723
Rickards v. Murdock . 418
Robertson v. Kensington . 381
Roxley, Rex v. . . 40
S.
St. Andrew the Less, Rex t;. 639
St. Nicholas, Hereford, Rex v. 676
St. Paul, Exeter, Rex v. . 94
Scriveners* Company, Rex t;. 543
Servante v. James . . 299
. 71
. 609
. 180
. 225
Jones 9.
443
. 225
124
683
715
414
47
188
295
125
452
Sharp V. Aspinall
Sharratt, Garry v.
Shaw V. Pritchard
, Smith t;.
Shenton, Thrustout d
Smith V. Shaw .
-; ", Wood r.
South Killingholme, Rex v.
South Newton, Rex r.
Southwood, Rex v.
Spencer, Young t;.
Spratt V, JelFerey
Stannard r. Harper
Swaine v. In^iiby
Swann, Furnish v.
Vlll
TABLE OF CASES REPORTED.
T.
Page
Taylor, Tinmouth t;. . 44
Tharp, VVingfield t?. . . 745
Thomas v. Williams . . 625
Thrustout d. Jones v. Shenton
4'43
Tinmouth v. Taylor . . 44
U.
Upton Gray, Rex v, . . 688
V.
Valpy, Dickinson r. . 126
W.
Wallis, Mason v. . .85
Walters, Doe d. Mann v. 357
Ward V. Coast . . . 402
Ware w. Cann . • .341
Waring, Williams r. • . 9
Watts V. Friend . . 439
Page
Whitten, Hawkins v. .219
Wilcockson, Nightingale v. 169
Williams w. . .121
V. Goodtitle • 757
t;. Jones . . 3
, Thomas v. . 625
, Waring v. • 9
Willoughby, Rex v. . . 32
Wilson V. Bagshaw . . 448
, Rex V. . .140
Wingfield V. Tharp . . 745
Wise V, Metcalf . . 235
Wooburns, Rex t?. . . 723
Wood r. Grimwood 551, 584,
598, 622
Wood V. Smith . .124
Worswick r. Beswick . 586
Wright, Hunter t?. . .611
V. Nuttall . . 454
Young V. Spencer
47
TABLE
OF
THE CASES CITED OR REFERRED TO
IN THB FIFTH VOLUME.
A. ^'"
Abbott v. Barry . 657
Acherly v. Vernon . .766
Agar V. Morgan . • 230
Aglionby r. Towerson • 28 1
Agutter V. Wilson . . 46
Airy V. Bland . . .331
Alderson v. Clay . .130
Alexander v. Macauley . 170
Alpass V. Watkins . . I<J7
Althani's case . . • 734
Anderson v. Anderson . 569
V. Buckton . 326
1;. Cleveland . 289
Andrew v, Robinson . 334
Archbishop of Canterbury's case
468
Archer v. Bamford . . 634
Armington's case 456
Ashfond v. Thornton 504
Atkins t7. Seward . 625
Atkinson v. Hunter . .281
Attorney-General v. Bishop
of Litchfield . . 483
v. Downing 767
V. Tongue 508,
646
V. Woolhouse 508
Bacon v.
B.
Chesney
Flatman
268
150
Page
Badham v. Mee . , 573
Bailey v, Culverwell . 659
Baldwin's case . . . 753
Bampton v. Paulin . . 628
Bank of England v. Beresford 294
Bannister v, Fisher . . '""*''
Barchards v. Forrester
Barclay r. Stirling
Barker v. Bishop of London
V, Macrae
Barlow v. Bishop
V. Rhodes
Barnes v. Crow
Hedley
Barney w. Fairchild .
Barry v. Babington .
Bartlett v. Ramsden .
Bar wick v, Matthews
Basten v. Carew
Batchellor t?. Salmon
Bates V. Winstanley .
Bathe v. Taylor
Beachcroft v. Broome
Beal V, Simpson
Bedingfield v, Onslow
Beecher's case
Beete v. Bidgood
Bell V. Bell
V. Byhfie •
V. Hobson '
Benfield, q. t. v. Milner
Benjamin t). Porteous
Bensley r. Bignold •
326
331
534
483
529
296
452
766
557
750
272
196
452
61
453
742
398
345
468
51
321
584
427
261
534
584
529
115
TABLE OF CASES REFERRED TO.
Page
Benton v. Trott . . 468
Beraasconi v. Farebrother . £21
V. Lord Glengall 368
Berry v. Adamson . . J £ 1
Berthon v. Loiighman . 424
Birch V. Bishop of Litchfield 484
Birks V. Tuppett . . 7oO
Bishop of Durham's case • 24Q.
Salisbury's case 242
Salisbury v. Phillips
486
Blakemore v, Glamorganshire
Canal Company . 229
Bloxam v. Saunders
Blunt V. Neads
Board v. Parker
Bodenham v. Purchas
Boehm v. Stirling
Bonifant v. Greenfield
Borrowdale r. Hitchener
Bosanquet v, Dashwood
r. Wray
Bottomley r. Bovell .
Bourne v. Freeth
Bower v. Bower
Bowse V. Carrington
Bowyer v, Pritchard
Bradford v, Bryan
Bradley t?. Peixoto .
Bragg V. Anderson .
Branch r. Roberts .
Brazier v. Jones
Brewster v. Sewell .
Bridgett r. Coyney .
Brightwell v. Westhalley
Bromage v. Prosser .
Bromley v, Holland .
Brooke v. Enderby .
Brown V. Davies
V. Higgs
V. Pocock
Browning v. Beston •
Brownsword t;. Edwards
Brunton v. Hawkes .
Bullen V. Michel
Bullock V. Thorn
20
363
456
90
297
148
11
554
90
533
139
766
477
186
333
343
533
666
169
460
121
680
733
186
90
297
767
569
304
27
68
276
570
Burleigh v. Stott
Burn r. Markham
Burrows t;. Luscomb
Butler and Baker's case
Butts V. Bilke .
Caddy v. Barlow
Cadwallader v. Bryan
Calder v. Rutherford
Calthorpe r. Hey ton
Campbell V. Hodgson
t?. Leach .
V. Rickards
1,, Sandys
Cannon v. Bryce
r. Parke
Capper r. Desanges
Carruthers v. Lamb
r. Payne
Carstairs v, Rolliston
Carter v. Boehm
Cashman v. Reid
Castlin V, Aubert
Charles r. Marsden
Chater v. Beckett
Chippendale v. Tomlinson
Cholmley v, Cholmley
Cholmondeley r. Clinton .
Clampe v. Clampe
Claridge v. Dalton
Clayton v. Andrews .
Clayton's case •
Clements r. George •
r. Lambert
Cole
t;. Gill
t?. Green
Greene
Coles V, Banow
Collenridge v. Farqnharson
Collier V. Hicks
Collins V. Prosser
Collott V, Haigh
Constable v. Noble •
Constantia, the^ case of
Page
90
660
741
148
366
119
171
281
469
609
194
418
583
115
57«
326
231
290
428
172
628
€97
627
353
767
583
468
291
441
90
623
452
583
49
477
353
297
324
303
537
00
TABLE OF CASES REFERRED TO.
XI
Page
Cook V. Jones . . . 583
V. Leonard . . 228
r. VVherwood . . 750
Cooper t7. Elston . . 44 1
V. Thorpe . . 748
Copley V. Day . . . 433
Coppin V. Craig . , 697
V. Humand . . 75O
Corbett's case . . . 486
Countess of Northumberland's
case . . . 483
Plymouth v. Lady
Archer . .514
Court V. Martineau . . 423
Cowper t?. Langworth . 570
Cox V. Coleridge . .316
Cranley v. St, Mary, Guildford
637
Crawshay v. Maule . .132
Crisp V. BeUwood . . 436
Crosby v. Wads worth 44 1 , 56 1
Cross V. Kaye . . . 584
• Crowder v. Oldfietd . . 479
Cmmpton v. Ibbotson . 68
Cunningham v, Lawrents . 65
Curling v. Shuttleworth . 198
Cutler v. Newlin . . 268
D.
Dalbiac v. Dalbiac . . 583
Dalzellv. Mair . . 330
Dand V. Sexton • . 455
Dandridge v. Corden . 665
Davey r. Prendergrass . 290
Davie v. Mitford . . 379
Davies v. Bush . . 205
V. Thomycroft . 569
Davis V. Lewis . . 255
• 17. Russell . • 53
• t7. Vass . . 86
Day tj. Nix . . , 634
Dc Crespigny v. Wellesley 256
Deffle r. Desanges . .221
De Ganiinde r. Pigori . 332
Deverall v. Lord Bollon . J96
Dickins v. Smith
Dickson v. Evans
Digby V. Fitzherbert
Dingwall v. Dunster
Dixon V. Cooper
1;. Yates
Dobell V. Stevens
Doe V. Britain •
V. Carter
V. Clark .
V, Davy .
r. Finch .
V, Fonnereau
V, Frowd .
1;. Gully .
— ~ V. Hulme
r. Jackson
V. Jones .
V. Lawson
r. Manning
V. Martin
V. Martyn
V. Mears
?;. Parker
V. Price
V. Read .
V, Routledge
V. Scudamore
V. Selby .
V. Shipley
V. Smyth .
v. Somerville
V. Steward
V. Tofield
V. Tyler .
— — r. Vowles
V. Whittick
V. Wilkinson
Doswell V. Impey
Dover V. Maestair
Dudley t;.* Watchom
Duke of Dorset v. Sir
Wilson
Marlborough v,
Godolphin
221
479
288
529
659
124
573
344
671
767
344
27
671
186
36 1
48
195
483
486
514
206
186
671
671
281
359
487
^7
26
453
148
186
572
149
135
276
671
671
378
584
171
Thomas
. 485
Lord
J 1)6, 378
Xll
TABLE OF CASES REFERRED TO.
Page
Duncan v, Scott , . 664
Dunn t;. Shee . . 294
Durrell v. Beverley . 424
E.
Earl of Devonshire's case . 578
Falmouth v. Thomas 56 1
Rutland's case . 753
Uxbridge v. Bayley 198
Eaton r. Sanxter . . 572
Eccleston v. Clif^sham . 30 1
Edgar v. Fowler , . 3S2
Edge V. Parker . . 2W
Edgington t>. Hood . .31
Edmeads v. Newman • 657
Edmonson 9. Hawkins • 583
r. Popkin . 583
Edwards v. Kelly . . 628
Eldridge v. Knott . • 636
Elliott V. Edwards . .197
Ellis V. Schonaeck . • 135
V. Taylor • . 485
Ellison V. Dezell . • 294
Elsing V, County of Hereford 83
'^ " " . 561
. 291
. 268
. 588
441,561
. 169
. 423
. 186
. 465
10
. 376
. 376
. 376
. 294
. 368
. 548
. 356
. 376
. 743
. 352
. 2*il
. 356
Emmerson v. Heelis
English r. Darley
Evans r. Beattie
t;. Prosser
V. Roberts
Everard r. Paterson
Everett v. Desborough
Everington v. Howard
Ewer v. Moile .
Exon r. Russell
Ex parte Beadles
Beckwith
Day .
GiflFord
Herbert
Hill .
Hollingsworth
Horsley
Kite
Lane
Mavor
• Nunn
Ex parte Parry
Proudfoot
Robinson
Samboume
Schofield
Scrivener
Shadbolt
Shuttleworth
Small .
Smith .
Stone .
Tanner
Welsh .
Wetherell
Woodmason
Wride .
Fairlie v. Denton
Falder v. Hooker
Farebrother v. Worsley
Farrant v. Thompson
Fentum v. Pocock •
Ferguson t;.
Cristall •
r. Rawlinson
Fisher v» Ball .
Fitzroy v. Gwillim
Fleming v. Simpson •
Flight V. Chaplin
Floyd V. Bethell
Foster r. Frampton .
t;. Jackson
r. Stewart
Foy v. Belt
Francis v. Crysell
v. Cry well
Freeland v. Glover .
Freme v, Wright
Fuller V, Terry
G.
Gaby 9. Wilts Canal Company
Page
376
356
354
376
376
583
376
354
367
376
221
368
352
557
376
376
• 166
. 199
. 376
I. 50
• 288
• 245
. 51
. 520
. 45
. 554
• 633
. 583
. 476
. 19
468, 570
. 657
. 332
. 340
. 340
. 423
. 197
. 416
Garbutt v. Watson
228
441
TABLE OF CASES REFERRED TO.
Xlll
Page
Gardiner v. i)a?i8 . .117
Gardner v. Jessopp . *. 455
Gamett ». Ferrand . .317
Garrett v. Jul! . . . 29O
George v. Lousley . . 86
Gevers v. Mainwaring . 529
Gibson v. Hunter ' . 390
V. Minett . 166, 390
— r. Rogers . . 767
Gilman v. Wright .315
Gladstone r. Clay . . 534
Glasscock r. Morgan . 570
Glover v. Cope 200
GoBF j7. Popplewell . . 584
Goodall V. Brigham . . 574
Gooding's case . . 58
Goodrigbt t?. Cater . . 570
V. Forrester • 483
Goodtitle v. Duke of Chandos
r. Meredith
- V. Woodward
Goss V. Watlington
Gould V. Robson
Gofemors of British Plate
Glass Manufactory v.
Meredith
Graham r. Pitman
Grant r. Delacour
V. Paxton
Grave V. Dubois
Graves v. Short
Greene 1;. Cole
Greenslade v. Dower
Grills V. Mannell
Grocers' Company v. Arch-
bishop of Canterbury
Groome v. Forrester
Groves v. Buck
Giymes r. Peacocke
Guest v. Willosey
Guidon r. Robson .
Gulliver v. Wickett .
Gully V. Bishop of Exeter
Gunter v. Clayton
Guthrie v. Fisk
271
765
359
267
294
281
666
538
537
332
520
504
136
467
465
61
441
451
767
77
26
488
170
213
H.
Haddow r. Parry
Haire v. Wilson
Hale V. Small .
Halifax's case .
Hallden v. Glasscock
Harding V.Wilson
Hardy v. Ryle •
Harper v. Tahourdine
Harris v. Booker
V. Nichols
—V, Pugh
Harrison v. Courtould
Harrow School v. Alderton
Hartopp r. Hartopp
Harvey t). Ramsbottom
Haslewood v. Pope
Havelock v. Geddes
Hay don v. Myner .
Haynes i;. Hay ton
Hay ward v. Rogers .
Haywood v. Rodgers
V. Rogers
Heane v.
Page
275
734
368
282
86
450
63
455
583
486
583
294
52
495
593
461
19
477
307
423
426
423
132
205
346
Helps v. Hereford .
Henslow u. Fawcett
V. Bishop of Salisbury
520
Hewet V. Goodrick . 294
Heydon*s case . . 646
Hcyler r. Heyler . . 76(j
Higham v. Ridgway . 272
Hill V. Bishop of Exeter . 487
v. Heale • . 169
V. Manchester W^aterworks
435
657
294
437
68
691
583
609
469
20
533
117
' r. Perrott
V. Read .
: r. Smith
V. Thompson
Hillary v. Waller
Hindle r. O'Brien .
Hoare v. Graham
Hobson V. Middleton
Hodgson V, Lay
• V. Richardson
r. Temple
XIV
TABLE OF CASES REFERRED TO.
Hodscbn V. Harridge
Hodson V. Young
Holland v. Jourdine
Holloway v. Berkeley
Hoist V. Powoal
Hopkins v. Hopkins
Horsfall v. Mathef .
Houlditch V. Milne
Hovill V. Browning
Hudson V. Bankes •
Hull V. Pickersgill .
Hurd V. Fletcher
Hyde v. HiM .
I.
Idle V. Cook
Ingram v, Rouche
In re Fowler
Freer
Merryweather
Pellow .
Taylor .
Irons r. Suiallpiece
Isherwood v. Oldknow
J.
Jackson v. Garnsey
t?. Ham
V. Hobho«ec
— V. Hurlock
. t?. Pesked
— V. Warwick
J amcs V. Green
Jefferson t;. Bishop of Durham
£42
Jeffreys v. Smith
Jelfs V. Ballard
Jellis T. Mountford .
Jessor t?. Gifford •
Jesus College v. Bloom
Johnson v. Bray
r. Freeth
. V. Hudson
Page
. 7M
. 221
. 588
. 417
. 19
. 27
. 245
. 628
. 350
. 477
. 213
196, 579
. 405
. 583
. 750
. 352
. 354
. 352
. 315
. 548
. 660
200,579
. 487
. 487
. 568
. 767
51,169
. 663
. 744
Jones r. Hill
V. Verncy
133
363
354
5i
133
456
569
115
244
1<)4
Page
Jordan v. Lewis . i 19
Joy V. Warren . . ^294
Judine r. Da Cossa • 221
Justice Windham's case . 364
K.
Keene t;. Deardon • • 636
Ke^iicott V. Bogan . . 467
Kerrison v. Cooke . . 289
King t;. Gosher • • 477
Kirby v. Smith . . 425
Kitchen v. Campbell . 333
Knightley and Spencer's cajje 468
Koowie V. Harvey . . ^42
Knowles «. Palmer • ^70
Kooystra v. Lucas , . 452
Kymer v. Suweraxip . 20
333
Lady Gresham's case
195
Morrison t?. Cade
«54
Lambert v. Liddard
535
Lancaster r. Fielder
670
Lane v. Howman
264
Lang-u. Anderdon
531
Langfort v. Tiler
2\
Larke v. Kyme
469
Law r. Hod son
116
Lawrence r. Hodgson
66
Laxton v. Peat
988
Leak v. Bishop of Coventry
485
Leatbley v. Hutit^r
545
Lc Bret t;. Papilo«
587
Lee V. Levy
294
,587
V. Lingard
11
1?. Nixon
S04
Leigh V. H-unt
lyo
Lett V. Cowley
£<2
Lewis V. Cosgrave .
634
- V. Waller
^55
Lexington -w. Clarke
e97
Liardet v. Johnson
TO
Lickbarrow v. Mason
^>
Liford's case
S42
TABLE OF CASES REFERRED TO.
XV
Lightly V. Clouston
Liiidenau v. Devborougli .
Lindon v. Hooper
Little r. Poole
Llojd r. Archbowle
V. Bethell
t?. Heariicote
Loddington r. Kine
Long r. Rankin
Lord Abergavenny's case .
Northampton's case .
Radnor r.Vandebendy
T7. VVormleigkton
Loved ay's case
Lovie's case
Low V, Burrows
Lticas i;. Delacour
V. Nockells
Ljle r. Parry
Lynch v, Hamilton
Lyster t;. Dolland
Lytton V. Viscountess Falkland
765
Page
, 667
423
65
. 116
. 117
. 476
. 593
. 26
, 570
. 503
2^
568
526
504
583
666
117
468
166
430
572
M.
Maberly v. Robins . .197
M'Andrew v. Bell . . 425
Mace, q. 1. 1;. Lovett . 5H4
Maddock, q. t. v. Hanrott . 584
Maggs V. Hunt . 16
Maitland v. Goldney . 255
Maltby v. Carstairs . 290
Manning r. Lechmere . 275
Marriage i;. Lawrence . 435
Marshalsea the, case of . 169
Martin v. O'Hara . . 355
Massey v. Parker • 569
Matthews* Ex parte 117
V. Lewis . 583
Maundrell v. Mauudrell 195, 567
Mavor v, Simeon . • 332
Mawman v. Gillett . .117
Maxwell r. Jameson • 334
May field v. Wadsley 44 J , 56 1
Maynard v. Rhodes . 423
Mellifth V. Allnutt . 533
Mellisli V. Andrews
v» Richardson
Mercer v. Sparks
Metcalfe v. Parry
Middleton v. Crofts
— V. Hill
Mild may's case
Miller v. Race
Mills i;. Bennett
V. Spencer
Mole V. Smith
Monke V. Butler
Moore v. Edwards
Morgan v. Bridges
^ r. Richardson
Morrii$ v. Edgington
V. Hayward
V. Hunt
V, Jones
t;. Pugh
Monys r. Leake
Much VValtham r. Peram
Munday v. Smith
N.
Nelson i;. Chenell
V. Pixie
Newton 1). Reid
Nisbett V. Smith
Nokes's case
North v. Barker
Notley v. Buck
O.
Oifard v, Betliam
Oldiield v. Wilmore
Orme v. Crockford
«. Young
Owston r. Ogle
P.
Page V. Tulse
Palmer r. Knollis
Parker v. Biscoe
r. Staniland
Page
533
505
254
533
195
. 583
343
. 996
. 221
. 264
. 576
. 282
. 509
. 169
. 633
. 451
. 169
. 281
. 572
. 676
. 186
. 84
. 750
353
29^
66Q
294
199
243
123
662
750
623
294
302
. 321
. 570
. 767
441,561
XVI
TABLE OF CASES REFERRED TO.
Parkes v. White
Parton v. Williams .
Paterson v. Gandasequi
Patience v. Townley
Peacock v» Monk
Pemphrose v. Lord Lansdowne
765
Percival v. Cooke
V. Frampton
Page
569
334
171
495
Pereira v, Jopp
Perring Vs Hone
Petre v. Craft
Phillips i;. Hopwood
V, Pearce
. 239
. 666
. S94
. 134
. 584
. 357
. 709
. 298
. 294
. 343
. 766
. 452
. 276
392, 470
. 294
Philliskirk v. Pluckwell
Philpot V. Bryant
Pierce v. Winn
Pigot V. Walker
Plant V. James
Plaxton V, Dare
Plomer v. Ross
Pole V. Ford .
Pope V. Butt . . .750
Potter V. Potter . . 767
Pouiter V. Killingbeck • 56 1
Powel V. Milbank . .281
Powis t;. Smith • . 302
Pratt V. Hillman . . 228
Prestidge v. Woodman . 228
Price t?. Messenger . 741
Priddle and Napper's case 468
Pring r. Clarkson . 294
Pulvertoft V. Pulvertoft . 486
Purvis V. Rayer . .198
Pyeburn v. Gibson . . 455
Q.
Queen*s College v. Hallett 52
R.
Raggett V. Axniore • 288
Rankingot v. Marsh . 584
Ravee v. Farmer . . 333
Rawlins's case . • 207
Rawson r. Walker . . 609
Page
Ravi'thorn v. Arnold . 1 1
Ray V. Pung . . 195, 567
Raylance r. Hewling 44
Read v. Nash . . 628
Rees V. Marquess of Headfort
664
Regina 12. Simpson • .315
Reid V. Fryatt . • 86
Ren V. Bulkeley . . 580
Reniger t;. Fogassa • 657
Reppington v. Tarn worth
School . .461
Rex V. Ackley . . 42
V. Adiard . . 40
V. Aire and Calder Na-
vigation
V. Andrews
i;. Aythrop Rooding
V, Baker
1>. Banbury
V. Bard well
• w. Barham
V, Barker
V. Baw burgh
V* Benneworth
Berkswell
Berrington
Bishop of Llandaff
Worcester 496
. 637
-— V.
V.
V,
— r.
— V.
— t;.
— V,
— «.
— V.
4
488
179
618
562
728
561
754
97
727
178
290
480
Bitton
Blagdon
Boston
Bowness
Brangan
v. Brewers' Company
V. Burbach
V. Byker
V. Calow
V. Catesby
V, Chediston
V. Chertsey
«. Chipping Norton .
V. Clark
V, Clarke
v. Combe
1?. Commins
469
436
637
119
150
651
687
636
691
684
665
741
409
650
318
TABLE OF CASES REFERRED TO.
Rex V.
V.
V.
V,
17.
V,
Coombes
Coombs
Delamotte
Denbigh
Ditcheat
Page
572
28£
572
641
560
V. Duke of Bridgewater,
Trustees of . 108
V. Duune . . 44
V. EatingtOQ . . 34
V. Edgemont . . 685
V. Ellis . • . 6ii
17. Farady . . 509
V. Fillongly . 637, 729
X?. Gash . . .75
V. Hackoey . . 562
V.Hall . . ,318
r. Hardhorn with New-
ton ... 41
V. Hasling6eld . 286
V.Hawkins . . 313
r. Herstmonceux . 721
r. Hodgkinson . 509
V.Holland . .81
V. Holy Cross, Westgate 6 19
r. Horndoo on the Hill 178
V. Home . .81
V. Houghton-le-spring 34
V. Hubbard . . 44
V. Ingleton . . 637
• V. I?e8 . . . 744
r. Johnson . . 742
V. Justices of Essex 698
17. Somersetshire
699
■ V. Staffordshire
316
V. Yorkshire 698
V. Kelstern .718
- — V. King's Lynn . 650
V. Kingswinford . 106
- — V. Lakenheath «38, 72 1
- — V.Leake . . 282
- — V. Little . . 508
V. Liverpool • . 678
V. Lord of Manor of
Oundle . . 583
Rex V. Lower Mitton
V. Lydd .
V. Lyme Regis
V. M'Carther .
V. Macclesfield
V. M'Gill
V. Main waring
V. Manning
V. Marsh
V. Martin
V. Martley
V. Marwood
Mattishall .
— '• — V. Mayor of Liverpool 282
xvn
Page
. 100
. 685
. 171
. 171
. 717
163, 645
. 509
. 282
. 360
. 282
. 637
. 637
95
Milton
Minster
V. Mitcham
V. Myers
V. North Collingham
V. Curry
x;. Duffield .
106
720
409
742
560
178
641
177
721
V. Northweald Bassett
V. Owersby-le-Moor
V. Oxford Canal Company
107
V, Polesworlh
V. Potter Heigham
V. Preston
V. Ringstead
685
42
665
34
281
41
743
0. Rogers
» V. Rushall
V. Sainsbury
V. Si. Giles in the Fields 562
V. St. John, Glastonbury 637
V.St. Michael, Norwich 678
V, St. Nicholas, Colchester
562
V. , Leicester 83
V. , Rochester
562
V. Scammonden . 495
V. Selway . . 509
V. Shephard . . 744
V. Sheriff of Surrey . I69
V. Smith . . 577
V. Staplegrove 34, 178
XVUl
TABLE OF CASES REFERRED TO.
Rex
Page
V. Stockley Pomroy . 177
1?. Stoke . . 560
V, Stoke Damarel . 96
t;. Stone . 177, S6S, 637
i;. Sutton St. Edmund's 728
V.Thompson . .314
V. Thornham . . 727
V. Tipton . . 649
V. Toddington . 178
V. Tonbridge . 360
V. Treasurer of Surrey 742
V. Turner . 37, 363
V, Ulverton . . 42
V. Upton . . 6s7
V. Waddington . l63
17. Warkworlh . 1 78
V. Wasbbrooke • 749
Websdell . . 589
Whateley . .316
Whitchurch . 69 1
r.Wid worthy . .177
©.Williams . 171,504
V. Willoughby . 562
V. Wootton . . 562
Rich V, Clarkson . . 749
Richards v. Thomas . 666
Richardson v» Mayor of Oxford
469
Ridley's case
Ridout V. Bristow
V. Pain
Rigg r. Parsons
Right V. Cuthell
V, Hammond
Roach r. Wad ham •
Roberts v. Goff
V. Wyatt
Robertson v. French
Robinson v. Yarrow
Roe V. Hicks •
Rogers v. Dallimore
' t;. Humphreys
V. Pitcher
Romilly t;. James
Rondeau v. Wyatt
Rookeby's case
Roper V. Halifax
. 80
. 609
. 765
. 52
. 359
. 342
195, 567
. 583
. 557
. 531
. 391
• 148
. 11
. 583
. 671
. 198
. 441
. 453
515,581
Page
Ross V. Ross .
. 345
Rowe V. Bellasys
. 583
r. Brenton
. €76
V. Peirce
. 360
Russell V. Russell
. 557
44 ^rnifnif^'i
245
Rust V. Power
! 583
Ryle p. H aggie
. 276
S.
Sacheverell v. Dale
. 572
Salt V. Richards
. 519
Samon v. Pitt
. 750
Sansom v. Goode
. 443
Saunders v. Mills
. 264
Saundys v. Olife
. 452
Sayer v. Pierre
. 133
Scavage v, Talham
. 56
Scorell V. Boxall
. 561
Scott V. Gillmore
. 665
v. Nesbitt
. 583
V. Nicoll
. 583
Scrafton v. Quincey
. 196
Scurry v. Freeman
. 602
Seddon v, Tutop
. 333
Sellick v. Smith
. 230
Shaw V. Evans
. 443
Shelton r. Livins
. 561
Shepherd v. Bishop of Chester
Sheriff of Norwich r
Bradshaw
171
Shireburne r. Hitch
. 480
Short V. Lee
• 276
Silk 9. Osbom
. 353
Silver v. Bishop of Norwich 186
Silversides r. Bowley
. 30
Simpson v. Clarke
• 666
Simson t;. Ingham
. 91
V, Moss
. 509
Sir Christopher Hatton's case 573
— Edward Clere's case • 195
Skaife v. Howard . .213
Slingsby's case • • 304
Smallcombe t;. Bruges . 374
Smith V. Huson . .281
TABLE OF CASES REFERRED TO.
XIX
Page
Smith V. Johnson
. 333
V. Sandilands
• oOo
. 436
r. Smith
520,660
17. Surman .
441, 56«
V. Triggs
. 148
V. Wheeler
. 572
V. Wiltshire
. 232
Snag V. Fox
. 417
Snaith v, Mingay
. 402
Soape V. Turton
. 570
Solarte v. Melville .
. 584
Sollers V. Lawrence
. 244
Solomon r. Turner
. 633
Solomons v. Bank of England
664
r. Jenkins . 584
Spencer t;. Billing . .221
V. Hamerton . 488
Spires r. Morris . . 276
Spitta V. Woodman 533
Stead V. Heaton . . 272
Steel V. Sowerby . . 5b4
Stephens v. Stephens . 27
Slerry v. Arden . 487
Stevens t?. Eliz6e . . 373
V. Lynch . 294
Stevenson r. Snow . .612
Stockman t;. Wither . 242
StofFe V. Everett . . 569
Storey r. Lord Windsor . 133
Stothert v. Goodfellow . 267
Strathmore v. Bowes • 766
Strother v. Barr . .51
Sturcb V. Clark -741
Suckley r. Whithorn . 83
Sutton V. Clarke . .281
Swannock r. Lifford . 568
Swift t?. Roberts .710
Symons v. Blake • 432
Talbot V. Habble
Taylor v. Higgins
V. Lindon
Teed v. Elworthy
743
334
167
78
Page
Theobald v. Crichmore . 232
The Protector r. Holt . 468
Thomas v. Newton . 664
Thompson v. Shirley . 453
Thomson v. Leach . .148
Thornton v. Adams . l69
Thorpe v. Goodall • . 573
Thrale v. Bishop of London 479
'"' ^' . 442
. 342
. 354
. 294
. 297
. 356
. 628
. 441
. 148
9
. 208
. 666
. 435
. 479
. 495
. 67
. 633
. 476
Thrustout V. Shouton
Tilburgh t;. Barbat
Till V. Wilson
Tindal v. Brown
Tinson v, Francis
Todd V. Maxfield
Tomlinson r. Gill
Towers v. Osborne
Townson v. Tickell
Trecothick r. Edwin
Treviban r. Lawrence
Trinder t>. S medley
Truman t?. Walgham
Tufton t;. Temple
Tull V. Parlett
Turner t;. Winter
Tye V. G Wynne
Tysonn t?. Hylyard
U.
Underbill v. Ellicombe
402
V.
Veale r. Warner
. 750
Vernon's case
. 487
Vice V. Lady Anson
. 131
Vick V. Edwards
. 295
Violet V. Allnutt
. 534
W.
Waddington v. Bristow
. 56l
Waddington's case
. 79
Wade V, Wilson
. 601
Waggett t?. Shaw
. 623
Wainwright v. Elwell
. 149
Walker v. Gann
. 453
Wallace v. Smith
. 228
AX
TABLE OF CASES REFERRED TO.
Walsh V. Whitcomb
Walter de Cherton's case
Warre v. Miller
Warren v> Greenville
Warwick v. Bruce
Wase t;. Pretty
Watson V. Home
V, King
r- Wace
Way 9. Modigliani •
Weale v. Lower
Weatherhead v, Drewry
Webb V. Home
r. Paternoster
Page
615
378
. 533
. 271
441,561
. 417
. 405
. 616
. 367
. 535
. 207
743
169
615
228
84
461
451
172
Weller v. Toke
Westbury v, Coston
Westfaling r. Westfaling .
Whalley v. Thompson
Whishard v. Wilder
White V. Bishop of Peterbo-
rough • 486
V. Foljambe . . 195
V. Hussey . . 486
Whitehead v. Tuckett . 657
Whitfield V. Brandwood . 405
Wbitmash v. George • 267
Whitnash v. George . 267
Wilkinson V. Clay . . 334
V. Colley . 359
t;. Laudousack . 115
Pap
Willes «. Glover . . 425
Williams r. East India Company
281
— V. Germaine . l69
v. Leper . 6^7
r. Morland . 51
Williamson r. Allison . 124
V. Beekley . 467
Wilmore r. Oldfield . 7oO
Wiltshire v. Lloyd . 455
Winne r. . . 520
Withall r. Masterman . 294
Witham v. Bland . . 567
Wohlenberg v. Lageman
Wood bridge v. Spoouer
WoodrofFe v. Williams
Wood's case
Wooldridge v. Boydell
Woolnoth V. Meadows
Wright V. Agar
v. Doe
V. Wales
668
584
240
535
264
584
276
229
Wy man's case . .171
Wynne v. Lord Newborough 559
Yelland v, Fielis
Yeo t?. Leman
Young V. Munsby
570
405
238
CASES
ARGUED AND DETERMINED
COURT OF KING'S BENCH,
IH
MICHAELMAS TERM,
IM THS TENTH TEAR OF THE RBION OF OBORGB IV.
Plaxton 17. Dare, Esq. and another. 1839.
TRESPASS. Declaration stated that defendants, on 19th The maniment
August, 1828, and on divers, &c., with force and arms fjisor and^'his
broke and entered a certain stable of plaintiff, situate, &c., assigns is the
and then and there seized and took one mare and one halter for an eipired
of plaintiff, of great value, &c., and kept and detained the '®*2.®'
same for a long space of time, and until the plaintiff was leases and
forced and obliged to pay a certain sum of money, to wit, expi^^kases
fi/. l6s. in order to regain the possession of the mare and thongh can-
halter. Second count, for an asportation generally. Plea, missiblein* *
not guilty. At the trial before Gaselee, J. at the last evidence upon
Chelmsford Assizes (a) the following facts appeared: — The boundary.
mare and halter mentioned in the declaration were taken ^'^ assess-
ments to
(a) Counsel for the plaintiff, the defendants, Gurney, Brodrick, church rate
^aaftie, Sent, and Bamewail; for and ChiUy. »** evidence
upon a ques-
tion of boundary, though the parish officers do not charge themselves with the receipt
of the rate, otherwise than by crosses set against the names of the parties rated.
VOL. V. 9
CASES IN THE KING*S BENCH,
1829. under a warrant of distress issued by the two defendants^ who
were magistrates of the county of Essex, against the plaintiff,
for the non-payment of 2/. Ss., for which he was assessed
towards the relief of the poor of the parish of West Ham^ as
inhabitant and occupier of a piece of land in that parish. The
plaintiff, a farmer, residing at Ley ton, in Essex, was the occu-
pier of a farm called Canhall Farm, and other lands, partly
situate in the parishes of Wanstead and Leyton, and partly
in the parish of West Ham. The plaintiff paid the sums
at which he was rated for two closes in West Ham, bot
disputed his liability in respect of eight acres, part of Great
Ashfield, which he alleged was in the parish of Wanstead.
In proof of this the plaintiff produced a lease of the close
in question, dated 26th of November, 1646, from Richard
Boothby to Thomas Mortimer* This lease was produced
from the muniment chest of Major Colgrave, the present
owner of Ashfield, in which Ashfield is described as being
in the parish of Wanstead. On the behalf of the defend-
ants it was objected that the lease, coming from the pos*
session of Major Colgrave, who was entitled only to the
possession of the counterpart, was inadmissible ; and that
supposing this to be the proper custody, the lease, though
admissible as proof of title, could not be used upon a
question of locality, 8cc.; 1 Starkie on Evidence, S26; 1
Phillipps on Evidence, 7th edit. 250, were cited. The
learned judge received the evidence but reserved the point.
Another lease of 19th of March, 1712, from fVm. Colgrave
to James Hutton, and another of 1760, from Wm. Colgrave
to Edward Harvey, were put in. These two leases ap-
peared to be cancelled. The church rates for 1737 and
1740 were then put in, and were admitted in evidence by
the learned judge. The plaintiff then tendered a book
produced from the parish chest, purporting to be a copy
of the parish accounts, of the receipts and disbursements
from 1712 to 1746. This being objected to, Mr. Serjeant
Spankie insisted that this was a book of a public nature,
and sufficient to charge the parish officers. The learned
MICHAELMAS TERM, X GEO. IV.
judge rejected this evidence, but took a note of its being 18^9.
offered. The assessment to the poor rate for 1740 was
put in. This contained no statement that the rates therein
mentioned had been paid, otherwise than by containing
crosses set opposite to certain names in the book. The
learned judge said that he would receive the evidence, but
that unless some proof of payment were given he should
tell the jury to pay no. attention to it. A great deal of
other evidence was gone into on both sides. The jury
having found a verdict for the plaintiff,
Gurney now moved to set it aside. Neither the lease
of 1646, nor the cancelled leases of 1712 and 1760, nor
the rates, were admissible in evidence against the defend-
ants. [Baylejfy J. Is not reputation evidence of the
boundary of parishes ?]
Lord Tenterden, C. J. — This being a question where
reputation would be evidence, this lease was properly ad-
mitted. With regard to the rates, T am of opinion that
they were properly received (a). Setting a cross against the
names of the parties rated is the usual mode of denoting
that the money is received. These documents being ad-
missible, the question is reduced to a case of contradictory
evidence ; and on whichever side we may think that the
balance of evidence preponderated, there was clearly evi-
dence on both sidesy upon which the jury might form their
own conclusion.
Rule refused,
(a) Vide ante, iii. 36a
Williams v. Jones.
A DISPUTE between the parties having been settled by An award
an arbitration, a second dispute between the same parties was b^^ristercJin-
not be qoestioned on the groand.oF any statement not appearing on the face of the
award, or annexed to it.
b2
CAS£S IN THE KING S fi£NCH,
1899. referred to a secood' arbitrator, who made his award in
favour of the defendant. The day before the second award
was made the arbitrator wrote a letter to the plaintiff's
attorney, stating that he felt himself bound to make an
award in favour of the defendant on the ground that the
measure in dispute had arisen before the former reference,
and that although he thought the first arbitrator mistaken,
he considered himself concluded by the award.
Campbell now moved to set aside the second award, on
the ground that the arbitrator was mistaken in point of law,
in supposing that he was concluded by the first award. In
the late case of The Ayre and Colder NavigatioH (a), the
Court set aside the award upon matter contained in a letter
written by one of the arbitrators. [Littledale^i. That was
to shew that the award extended to matters not within the
submission.] The letter here may be considered as con-
temporaneous with the award.
LiTTLEDALB, J. — If you refer to a gentleman at the bar
you are bound by his decision, unless it appear on the
face of the award, or of some paper annexed, that the
arbitrator wishes to raise the question.
Rule refused,
(a) Ante, iv. 738.
BowEN and another v. Fox and others.
Trover will not XROVER for the certificate of registry of the ship Gra*
[irtywhh* titude(a). Plea, not guilty. At the trial before Bur^
titrate of re- ^°) ^^ declaration contained deliver the certificate of registry,
eistry of a ship also special counts for refusing to which were not proved.
IS deposited as
a security for advances, upon a refusal to deliver up such certificate without payment.
Quart, What shall be a wilful detention of a certificate of registry, authorising the
interference of a magistrate under 4 Geo. 4, c. 41, s. 85.
Qiutre, As tu the power of one part-owner of a ship to appoint a master, and to dis*
place a master appointed bj^ another part-owner.
MICHAELMAS T£RM, X GEO. IV.
roughs, J. (a) at the last Bodmin Assizes, the following facts 1899
appeared : — The plaintiffs were the principal owners of the
ship Gratitude, of which Bowen was captain, one sixty-
fourth share being held by a seaman on board of the name
of Myers. In 1823 the Gratitude being chartered to take
a cargo of German linens from Hamburgh to Vera Cruz,
in the course of her voyage was obliged to put into Rams-
gate, at which place Myers, having taken offence at the
captain, deserted the ship and went to London, where he
remained. The Gratitude proceeded on her voyage down
the Channel, and meeting with stormy weather, which oc-
casioned some damage, she put into Falmouth, where, at
the request of the defendants, they were appointed agents
to the ship by Botcen, The repairs having been done and
the Gratitude being about to sail, she sustained further
injury in the harbour, rendering more extensive repairs
necessary. Whilst these were going on, the butcher, who
had supplied the crew with meat, arrested the captain.
The defendants procured his liberation upon his depositing
with them the certificate of registry, as a security for that
and other advances made and to be made on account of
the ship. The Gratitude being again completely repaired
was removed into the outer harbour, upon which the de«
fendants became apprehensive that the captain would sail
without paying the ship's bill, though he had not taken his
crew on board, and Bowen was again arrested, and was
taken to Bodmin gaol at the distance of 35 miles. On
leaving Falmouth Bowen appointed his brother Benjamin
to be master during his absence. The defendants were
requested by Benjamin Bowen to give up the certificate to
the new master, and upon their refusal an application was
made under 4 Geo, 4, c. 41, s. 25 (&), to the Mayor of
(«) Counsel for the plaiotif&i vAo/^t^r, should detain the certifi-
Meremeiher, Serjt., Manningy and cate of registry of any ship or ves-
Coleridge ; for the defendants, sel, or hold the same for any pur-^
ITi/^, Serjt., ErMne, and Follett, pose other than the lawful use and
(b) **' And whereas it is not proper navigation of the ship or vessel for
that an J penonpunder any pretence which it was granted, be it therefore
1829.
Bow EN
V.
Fox.
CASES IN THE KINGS BENCH^
Falmouth, as a magistrate, to compel the defendants to
restore the certificate of registry, but the mayor refused to
enacted, that in case the master
of any ship or vessel, or any other
person who shall have received or
obtained, by any means or for any
purpose whatever, tlie certificate
of the registry thereof, (whether
such master or other person shall
be a part'K>wner or not,) shall wil-
fully detain and refuse to deliver
up the same to the proper officers
of his Majesty's customs for the
purposes of such ship or vessel as
occasion shall require, it maj and
shall be lawful to and for any
owner or owners of such ship or
vessel, the certificate of registry of
which shall be detained and refused
to be delivered up as aforesaid, to
make complaint on oath against
the master of the ship or vessel or
other person who shall so detain
and refuse to deliver up the same,
of such detainer and refusal, to
any justice of the peace residing
near to the place where such de-
tainer and refusal shall be in Greni
Britain or Ireland, or to any mem-
ber of the Supreme Court of Jus-
tice or any justice of the peace in
the islands of Jersey, Guernsey, or
Man, or in any colony, plantation,
island, or territory to his Majesty
belonging, in Asia, Africa, or Ame-
rica, or Malta, Gibraltar, or Heli-
goland, where such detainer and
refusal shall be in any of the
places last mentioned ; and on such
complaint the said justice or other
magistrate shall and is hereby re-
quired, by warrant under bis band
and seal, to cause such master or
other person to be brought before
him to be examined touching such
detainer and refusal, and if it shall
appear to the said justice or other
magistrate, on examination of the
master, or other person, or other-
wise, that the said certificate of
registry is not lost or mislaid, but
is wilfully detained by the said
master or other person, such mas-
ter or other person shall be thereof
convicted, and shall forfeit and
pay the sum of JOG/, and on failure
of payment thereof he shall be
committed to the common gaol>
there to remain without bail or
mainprize for such time as the said
justice or other magistrate shall in
his discretion deem proper, not
being less than three months nor
more than twelve months; and the
said justice or other magistrate
shall and he is hereby required to
certify the aforesaid detainer, re-
fusal and conviction to the person
or persons who granted such cer-
tificate of registry for such ship or
vessel, who shall, on the terms and
conditions of law being complied
with, make registry of such ship or
vessel de novo, and grant a certifi-
cate thi^reof conformably to law,
notifying on the back of such cer-
tificate the ground upon which such
ship or vessel was so registered de
novOy and if such master or other
person who shall have detained
and refused to deliver up such
certificate of registry as aforesaid,
or shall be verily believed to have
detained the same, shall have ab-
sconded, so that the said warrant
of the justice or other magistrate
cannot be executed upon him, and
proof thereof shall be made to the
satisfaction of the commissioners
of his Majesty's customs, it shall
MICHAELMAS T£RM, X GEO. IV.
interfere. Shortly afterwards, Myers was brought down frain 1829.
London to appoint another master^ to whom the defendants
delivered the certificate, under an order obtained by them
firom the mayor ; and^ the vessel sailing upon her voyage,
Bowen was immediately liberated from prison. He fol-:
lowed the vessel to Vera Cruz, and on his arrival there
found that the goods had been landed by the supercargo,
and that his ship had been sold by the intrusive captain,
from whom no information as to the grounds of this pro^-
ceediug, and no account of the produce of the sale bad ever
been obtained. Upon this state of facts it was contended
on the part of the defendants, that the original delivery of
the certificate of registry being made for a valuable consi-
deration, the defendants acquiied a lien for their advances,
and for their responsibility to the tradesmen who repaired
and victualled the ship ; that the refusal to deliver the cer-
tificate to Benjamin Botven was not evidence of a conver-
sion, and that the subsequent delivery of this instrument to
the master appointed by Myers, was justified by that ap-
pointment. On the part of the plaintiffs, it was answered
that the statute expressly provided that the certificate of
registry should never be held for any other purpose except
the navigation of the ship, and that therefore no lien could
be acquired ; and that at all events a delivery to a person
Dominated as master by Myers, who was the owner of a sixty-
fourth part, and who had no power to displace a master who
was appointed by all the part-owners, and who himself held
an eighth share of the ship, was a wrongful conversion of
the certificate, which had occasioned an utter destruction of
the plaintiffs' property. The learned Judge ruled, that
MyerSf as part-owner, had authority to appoint a master to
the ship, and that the master so appointed was entitled to
be bwfal for the said commission- ship or vessel, in like manner as is
ers to permit such ship or vessel hereinbefore provided in the case
to be registered de navoy or other- wherein the certificate of re^stry
^'vt, in their discretion, to grant a is lost or mislaid."
license for the present use of such
CASES IN THE KINg's BENCH,
have the certificate of registry. His lordship told the jury*
however^ that if they were of opinion that the defendants
had been guilty of fraud in the transaction, they should
return a verdict for the plaintiffs. A verdict was found for
the defendants, which
Merewether, Serjt. now moved to set aside. The statute
4 Geo. 4, c. 41, s. 25, prohibits, under heavy penalties,
the detention of the certificate of registry, under any pre-
tence whatsoever, for any purpose, except the use and
navigation of the vessel (a), [Lord Tenterden, C. J« Look-
ing at the language of the statute, this clause appears to be
introduced not with a view to the interest of the owners,
so as to prevent other persons from obtaining a lien. The
certificate is to be given up to the officer of the customs.]
The object of the clause was to prevent any impediment to
the sailing of the ship. \,liffyfey, J. Suppose the ship
requires repairs, and the master says, I have no money, but
I will deposit the registry as a security that I can obtain it
from the owners. Here it seems to have been placed in
the hands of the defendant as a security for advances.
The question is, whether a party can be said wilfully to
detain where he has a lien.] The preamble seems to say
that he would, because he cannot hold. It supposes every
refusal wilfuU
Lord Tenterden, C. J. — It does not follow that this
action can be maintained. This action is founded on the
common law right of property, not upon the statute; but
at common law the party cannot sue for a conversion
without paying what is due. He should have pursued the
remedy given by the act. The officer of the customs should
be required to interfere* The effect might be to make the
pledge of no avail.
(a) Ante, 5, {b).
MICHAELMAS TERM, X GEO. IV. 9
Bayley, J. — It is not necessary to give any opinion ^f*^9,
whether the owners bad a right to have this certificate of j,
registry back again. o.
Fox.
LiTTLEDALE, J. and Parke, J. concurred.
Rule refused.
Williams v. Waring.
Assumpsit. The plaintiflf declared as the indorsee A memoran-
, , 1 • -iv • I - • <^Qin at the
of a promissory note, made to the plamtitf, without noticing foot of a pro-
any place of payment. Plea, non assumpsit. At the trial, P|?*®T "®^®
before Jervis, J. at the last assizes for the county of Den- particular
high, the note appeared to have the following memoran* P^*^ forms^no
dum: — ** At Messrs. B. & Co. Barbican, London.'' The part of the
whole of the note and memorandum was written by the though shewn
defendant at the same time. It was contended that this was *® be contem-
poraneous
a variance, and that the decimation should have described with the note
thi note as payable at the place mentioned in the memo- ^^^^^'
niidum. The learned judge over-ruled the objection, but
reserved the point.
Campbell now moved accordingly to enter a nonsuit. The
circumstance of the particular place not being contained
in the body of the note is immaterial, where it is shewn
that the whole was done at one and the same time. Thus
in Trecothick v. Edwin (a), it was held by Lord Ellenbo'
rough that where the place of payment is printed at the
foot of the note it formed part of the contract. That de-
ciaioo proceeded not upon any distinction between
printing and writing, but upon the evidence afforded that the
condition must have been there at the time the note was
signed. Here the fact was proved. The contract is to be
gathered from the four corners of the instrument. IParke,
(«) 1 Stark. N. P. C. 468.
10 CASES IN THE KIXG's BENCHi
1829. J. The late act (a) applies only to inland bills of ex-
.^^^'^'^^ change. Lord Tenterden, C. J. In point of practice there
V. IS a well known distinction between a place of payment in-
>RiNo. serted in the body of the note, and a place mentioned in a
memorandum at the foot of a note; in the former case it is
considered as forming part of the contract, but where the
place has been mentioned only in a memorandum at the
foot of a note, I am not aware of any inquiry as to the time
at which the memorandum was made. Parke, J. The
question is, what the party meant by it. Bayley, J. Exon v.
Russell {b) appears to me to be in point. In that case the
memorandum was on the note at the time it was signed by
the defendant, which being declared upon as payable at a
particular place, was held to be mlsdescribed.]
Lord Tenterden, C. J. — ^The distinction has been so
long acted upon, and the case cited by my brother Bayley
is so expressly in point, that I think this Court is bound to
adhere to the course which has been hitherto adopted.
Rule refused.
(a) 1 & 9 Geo, 4, c. 78. no part of the contract, contrary
(6) 4 M. & S. 605. The ground to the doctrine held by the Court
of that decision was the opinion of Common Pleas, and to the ulti-
- then held by the Court of King's mate decision of the House of
Bench, that a particular place of Lords, in Rowe v. Young, 9 Brod.
payment designated in an accept- & B. 165.
aiice or in a promissory note, formed
Bennett v, Skardon and another.
Motion to set TRESPASS, quare clausum fregit. Plea, not guilty, and
S^arefe!^ liberum tenementum. At the trial, before Tindal, C.J.
enceatnisi at the last assizes for the county of Devon, a verdict
to^bemadcT was taken for the plaintiff, subject to a reference to an
after the first arbitrator, who was to set out boundaries, &c. The arbi-
term, where trator made .his award at Plymouth, 215 miles from Loq-
tlie award was
published too late in the vacation to take the necessary proceedings before.
MICHAELMAS TERM, X GEO. IV,
don, on the 4th of November, and thereby directed a ver-
dict to be entered for the defendants. The plaintiff was
advised that the awdrd was bad in p6int of law. The ex-
amiaations being very long, it was impossible for the
plaintiff's attorney to consult his client to get ready a case
for the opinion of counsel, and to obtain that opinion before
the expiration of the first four days of the term. On the
second day of the term, 12. Bayly obtained the following
rule : —
It is ordered. That all proceedings in this cause, and
under the award made in this cause, be stayed until Friday
next; and if any rule shall within that time be made to
shew cause why the award should not be set aside, until
such rule shall be discharged, and that if such rule shall be
made absolute, then that there be a new trial in this cause.
And it is further ordered, that if no motion to set aside the
said award shall be made within the time aforesaid, the said
award do stand absolutely.
This rule was applied for upon the following cases : —
Rogers V, Dallimore (a) ; Lee v. Lingard {b)\ BorvQwclale
V. Hitchener (c) ; Rawsthorn v, Arnold (d).
11
1829.
(fl) Though ihe Court would in
general adopt the limitation of
time prescribed by 9 & 10 WUL S,
cap. 15, under an order of refer-
ence, jei when Ihey see sufficient
cause ihey will interpose their au-
thority, though the time is elapsed.
1 Marsh. 471; 6 Taunt. 111.
(ft) 1 East, 401. When a ver-
dict is taken pro form^, subject to
an award, the sum afterwards
awarded is to be treated as if it had
origjoaily been found by tlie jury,
and the plaintiff (and therefore
also the defendant, where a ver-
dict is directed by the award to be
entered in his favour) is entitled
to enter up judgment for the
amooDt, without first applying to
die Coart for leave to do so.
(c) 3 B. & P. 244. If a verdict
be taken for the plaintiff at nisi
prius, subject to an award, and the
order of reference be made a rule
of Court, the verdict may be en-
tered pursuant to the award, with-
out any application to the Court;
if in such a case the award be
made before the term, the opposite
party can impeach it only within
the first four days of the term.
(£2) 9 D. & R. 556 ; 6 B. & C. 629.
Motion to set aside an award made
under an order of nisi prius, must be
made within the time allowed for
moving for a new trial, although, per
Abbotly C. J., the Court might not
insist rigidly upon the compliance
with that rule, if any sufficient
ground were stated for indulgence.
12 CASES IN THE KlNO's BENCH,
1899.
^^'^^'^^ Hunt and another, assignees of W. D. Gilbert and
T. Gilbert, bankrupts, v. Mortimer and others.
l£A, ad- Assumpsit, for money had and received to the use of
to B. an in- ^^^ plaintiffs as assignees. At the trial before Lord Tenter-
solvent trader, rfew, C. J., at the sittings at Guildhall after last term, the
of enabling B. following facts appeared: — ^The defendants, who were
^Td^^^^tMd. i^'onmongers, had been in the habit of advancing money to
opon the terms the Gilberts^ who were opticians, for the purpose of ena-
out^ftSrp^ce *^'*°8 the latter to execute orders for the East India Com-
ofthegoods,a pany, which advances were repaid out of the money re-
by JB. to A, out ^^^^^^ ^^om the Company, whose payments were made in
of the P"ce bills at six months. In May, 1827, the bankrupts applied to
is not a fraa- ' the defendants for an advance to enable them to complete
dulent prefer- ^^ ^^^^^ received from the Company, and the money, 2,500/.,
was advance:! by the defendants upon the terms of their
being repaid out of the money to be received from the
Company. Between July and November, 1827, the Gil-
berts were arrested by several of their creditors, and one of
the defendants became bail for them in six actions. In
November, 1827, the amount of the order, being due, was
received by the defendants. The Gilberts stopped pay-
ment on the SOth November. The commission issued in
May, 1828, upon an act of bankruptcy committed in De-
cember, 1827, though T. Gilbert^ who lived in the country,
appeared to have committed an act of bankruptcy in Octo-
ber, 1827. The learned judge told the jury, that as in per-
mitting the defendants to receive the money from the East
India Company, the Gilberts appeared to have acted with
good faith, in pursuance of a previous agreement, the trans-
action did not amount to a fraudulent preference, and that
as no commission had issued within two months, the pay-
ment could not be invalidated by an act of bankruptcy of
which the defendants had no cognizance. A verdict having
been found for the defendants,
MICHAELMAS TERM, X GEO. IV. i3^
F. Pollock now moved for a new trial, on the ground ^ ^^^•
thit the transaction amounted to a fraudulent preference,
which was not protected in the manner stated to the jury.
This debt was not assigned, nor was any notice given to
the Company that the defendants had become interested iti
the payment. [Baylei/fJ. The defendants lend money
apon an express stipulation that they shall be repaid out
of the particular fund.] A party has no vested interest in
the proceeds of an adventure, in respect of which he ad-
Tances money. The Gilberts had in law a right to apply
the money due from the East India Company to any pur-
pose which they might deem expedient. [Lord TeriUrden,
C.J. The money was advanced for the very purpose of
executing the orders. Parke, J. That is, in effect, an as-
signment. Notice to the debtor is necessary only for the
purpose of taking the case out of the statute of James (a).]
By the acts of the defendants the credit of the traders was
bolstered up till the defendants had recouped themselves
by obtaining payment. The object was to enable the
traders to linger on till the defendants had got the money.
In the case of Parker v. Cox, which is now pending, a rule
was obtained on the ground that the defendant bad kept
up the credit of the bankrupt and had paid his clerks until
the money was received. [Lord Tenterden, C. J. That
case is quite different from the present. In Parker v. Cox
there was no loan of money to enable the trader to execute
the particular order.] That part of the present case, which
is meant to be assimilated to Parker v. Cox, is the defend-
ants' giving bail for the bankrupts in six actions, and there-
by keeping them above water. It should have been left to
the jury to say whether there was not an unusual interfe-
/ence by the defendants in the affairs of the bankrupts for
the purpose of putting off the evil day. That was a fraud
on the bankrupt laws. Suppose a trader borrows money or
obtains goods, and says, when the voyage is ended I will
|Miy you out of the proceeds. [Bayley, J. That is not this
case.] In the ordinary course of business the Gilberts
(«) tl Jae, 1, c. 19, s. 11; and see 0 Geo, 4, c. 10, s. 79.
14 CASES IN THE KING's BENCH,
1829. would have been bankrupts long before, but they were
^"^y^^^ kept out of prison solely by the interposition of the de-
V. fendants, whose object was to defeat the statute, knowing
Mortimer. ^j,^j jJj^ Gilberts were irrecoverably insolvent. It would
have been very different if the assistance given by the de-
fendants had been a transaction in the ordinary course of
business. Here they interfere in an unusual manner for
the purpose of effecting a particular object. l^Parke, J.
Have you any authority for saying that notice of the as-
signment of a debt is necessary, except for the purpose of
getting rid of the reputed ownership, under 6 Geo. 4, c. l6,
8. 72, following the provisions of the statute of James?^
None has been discovered. But as in the case of usury,
the law will not suffer the spirit of the statute to be evaded.
If any advantage was to be derived by the defendants from
postponing the issuing of the commission, it should have
been left to the jury whether the conduct of the defendants
had not been directed to that object, which was to post-
pone those who furnished goods to those who furnished
money.
Lord Tenterden, C. J. — I thought at the trial that it
would be carrying the law of fraudulent preference to a
greater extent than it had yet been carried to treat this
transaction as a fraudulent preference, and I am still of
opinion that we ought not so to treat it.
Bayley, J. — I cannot see any premises from which
«uch a conclusion can be drawn.
LiTTLEDALE, J. — Two things must concur to make a
fraudulent preference, contemplation of bankruptcy and a
voluntary payment. Here the money was lent for a spe-
cific purpose, to be repaid out of a particular fund. Far
from being voluntary, the payment was the subject of a
specific contract. Where a creditor has trusted in respect
to the genei^l credit of the trader, if he is paid he obtains
3£ICHA£LMAS TERM, X GEO. IV.
an advantage over those creditors who remain unpaid. In
this case the defendants obtained no advantage at all. Here,
but for the specific contract, the defendants^ knowing the
traders to be insolvent, would not have lent the money at
all; it would have remained safe in their own pockets.
Pabke, J. — There is no pretence for calling this a
iraudalent preference. When looked at, this transaction is
nothing more or less than an equitable assignment of a portion
of the particular fund, in satisfaction of money lent for the
purpose of creating that fund ; which is very different from
the payment of an antecedent debt contracted without re-
ference to such fund. If at the time of the bankruptcy the
debt from the East India Company had remained unpaid,
the bankrupt would have had no title to that portion of
the debt which had been appropriated to the defendants,
except as apparent owner under the 72d section of 6 Geo* 4,
c 16. But here the money was paid over before the act
of bankruptcy.
Rule refused.
Phillips, Assignee of Arton, v, Hopwood.
Trover. At the tnal before Lord Tenterden, C. J., at where a re-
the sittings at Westminster after last Trinity term, the case pealing statute
^ , 19 repealed,
turned upon the sufficiency of the act of bankruptcy^ The the nrst sta-
commission issued in July, 1 825. The alleged act of bank- ^ay SAch''
ruptcy was committed in March, 1825. By 5 Geo. 4, c.98y the third sta-
wfaich came into operation on the 21st of June, 1824, all feet revWeV
the prior statutes respecting bankrupts were repealed, and ab initio, and
JT^ ^ t . r^ . r.r. 1 1 not merely as
by 6 Geo. 4, c. 10, the act 5 Geo. 4, c. 98, was repealed as from that day.
from the 2d May, 1825. The learned judge was of opinion
that the act of bankruptcy was sufficient to support the
comniission^and the plaintiff obtained a verdict.
\
16
1899.
Phillips
V.
HOPWOOD.
CASES IN THE KINGS BENCH,
' «J. Williams now moved for a new trial. Upon the Ist of
May, 1825, all the bankrupt act9 antecedent to 5 Geo, 4,
c. 98, stood, by that act, absolutely repealed. [Lord Ten*
ierden, C. J. The 6 Geo. 4, c. 16, put an end to 5 Geo. 4,
c. 98, as if it bad never existed.] Maggs v. Huni (a) is di*
rectly in point. [Bay ley ^ J. Upon the 2d of May all the
former statutes were revived.] It is submitted that they
were revived only from the 2d of May, the date of the last
repealing statute, 6 Geo. 4, c. l6. During the whole of
the 1st of May the former statutes were dead, they would
not revive retrospectively. [Bayley, J. This commission
does not depend upon any thing done on the 1st of May.
If the act of bankruptcy had been between the 2d of May
and the 1 st of September, a commission might have been
sued out before the 1 st of September (6).] In BacotCs Abr.
Statutes, " From what time to have effect" (c), it is said, that
" It is the general rule that no statute is to have a retrospect
beyond the time of its commencement, for the rule and law
of parliament is, that '' nova constitutiofuturisformam debet
imponere, non prateritis.** And the same rule appears to
be deducible from the cases which are collected in 19 Vin*
Abr. Statutes, B.
Lord Tenterden. — The old statutes were in force in
March, and also in July.
Pabke, J. — ^The statutes were in force when the act of
bankruptcy was committed, and when the commission
issued.
Rule refused.
(a) 4 Bingh. 212.
(6) The day on which the pro-
visions of 6 Geo, 4, c. iOf except
as to the repeal of 5 Geo. 4, c. 98,
began to operate,
(c) 5 Bac. Abr. Statutes, (C.)
MICHAELMAS TERM, X. 0£0. IV. 17
Clay, Assignee of Malleys, a Bankrupt, v. Harrison. 18S9.
Assumpsit on two policies of insurance, each for 100/., After stoppage
on a cargo of deals, per Providence, Younge, from Peters- *" '^^""c^ges^
burgh to Hull, laying the interest in thjs bankrupt. At the to have an in-
trial, before Bayle^, J., at the York Spring Assizes, 1828, l^^^^^ '""^^
the question raised was, whether the interest was in the And a policy
btnkrupt at the time of the loss. A verdict was found for ^h^ stoppage
the plaintiff for 200/., subject to the opinion of the Court becomes
. , ,. , . , ^ « . /. ^ thereby void,
upon a special case disclosmg the followmg facts: — Un
the 20th January, 1825, Malleys, the bankrupt, ordered of
Hubbard, who had a house at London and at Petersburgh,
two cargoes of deals, to be paid for by Malleys's acceptance,
at three months from date of shipment, on receipt of in-
voice and bill of lading. In October, 1825, the deals were
shipped on board the Providence for Hull. In November,
1825, Malhys received an invoice, with a bill of lading in-
dorsed in blank, and accepted Hubbard^a draft, payable
S4th January, 1826, for 923/. 2s. 6d., amount of invoice.
In September and October, 1825, the defendant subscribed
the two policies on which the action was brought. On her
▼ojage to Hull the Providence was wrecked near Elsinore,
5th January, 1826. The cargo was saved, but was so
much damaged that Younge, the master, did not think it
worth sending out a ship for. On the 2dd January^ 1826,
Midleys first heard of the loss, and he immediately gave no-
tice to the defendant of abandonment of all his right and
interest in the vessel so far as concerned his subscription,
and requiring payment of the same, as a total loss, which
oodce the defendant refused to accept, unless he could
put bim in possession of the goods saved. Malkys was
insolvent on the 23d January, 1826, and on the following
day his acceptance was duly presented for payment, and
dishonoured., On the 4th February, 1826, Hubbard g2Lve
notice to the defendant not to pay the loss otherwise than
to die order of himself, as the person solely interested. On
▼OL, V. c
/
18 CASES IN THE KING S BENCH,
1829. the 11th February, 1826, Hubbard sent one of the bills of
lading to his agent at Elsinore. This bill of lading, which
was to order, and indorsed in blank, reached the agent on
the Sd March, 1826; whereupon he applied to the agent of
the ship, who agreed to deliver the cargo; but no further
possession was taken until Hubbard received 271/- 7s. lOd.,
the net proceeds of a sale which took place on the 22d May,
1 826. An action was brought by Hubbard against MaUejfs
in Easter term, 1826, on his acceptance, and notice of trial
was given for the first sittings in Trinity term, but the re-
cord was withdrawn. Malleys became bankrupt 23d May,
1 826. Malleys's acceptance still remains in the possession
of Hubbard, but has not been proved on Malleys^s estate.
Patteson, for the plaintiff. The plaintiff is entitled to
judgment on three grounds. First, there was a complete
total loss before the attempt to stop in transitu, and which
cannot be affected by any thing which occurred afterwards.
Secondly, there could be no stoppage in transitu, because
there was an abandonment and change of property, and be-
cause the transitus was at an end before the supposed stop-
page in transitu. Thirdly, the effect of stoppage in transitu
is not to alter the property, but merely to create a lieii^ leav-
ing an insurable interest in the bankrupt. Upon the first
point the dates are very material. The contract was to pay
by bills at three months; the loss happened on the 5th
January, 1826, nineteen days before the bill became due;
intelligence of the loss arrived on the 23d January, the
day before the bill became due. [Lord Tenterden, C. J.
I suppose no point is intended to be made as to the
form of the abandonment. The notice is, that he aban-
dons his interest in the ship, in which he had no inte-
rest.] The objection taken to the notice was, that Jtfoi-
leys was not in a situation to abandon. Mallej^s was
bound to give every facility to the underwriters to obtain
possession of the property abandoned. If any thing had
been recovered from the proceeds of the sale, the bankrupt
would have been bound to account to the defendant for the
MICHAELMAS TERM, X GEO. IV.
amount. Havelock s. Geddes{a). [Lord Tenterden, C.J.
The whole case seems to turn upon the effect of the stoppage
in transitu. Bctyleif^i. The question will be, whether the
consignee can expedite his right. There would have been
a right to stop, as against the consignee, whilst the goods
were on their way to England. Lord Ttnterdm, C. J.
Does an abandonment vest the property ? If it does, where
is the use of asking for an assignment?] Circumstances
equivalent to an indorsement of a bill of lading will prevent
the right to stop in transitu. [Bayley, J. Supposing,
after an abandonment, the goods were brought to England,
would the vendor have a right to stop them in transitu?] It
is conceived that he would not. The defendant cannot be
allowed to take advantage of his wrongful act in refusing the
abandonment which he was bound to accept. Secondly,
there could be no valid stoppage in transitu, because the
property bad been transferred. The transitus was at an
end when the goods were landed. In HolU v. Pownal{b),
it was held, that possession obtained by the consignee, be*
fore the completion of the voyage, would not divest the
right of the consignor to stop in transitu. But that nisi
prius decision has since been qualified by the late case of
Foster v. Frampton (c), in which it was held that if goods
are shipped to be delivered at a particular place, and the
consignee accepts them at an intermediate place, the tran-
situs is at an end. Here the goods insured were accepted
at an intermediate place by an abandonment to the under-
writers. IBayky, J. In this case the abandonment is not
accepted by the underwriters. The question now before
the Court is, whether the goods were on their way to a port
of destination. It does not appear whether the goods could
have been sent home by another ship or not.] Thirdly,
supposing the goods to have been stopped in transitu, the
effect of the stoppage is not to rescind the bargain, but
merely to give to the vendor a right to re-possess and hold
(«) 10 East, 565. (e) 9 D. & R. 168; 6 B. & C.
(« 1 E»p. N. P. C. 940. 107 ; « C. & P. 469.
C2
CASES IN THE KINO S BENCH,
the goods. [BayUy, J. After stoppage in transitu, the ven-
dor may bring trover against the captain, if he withhold the
goods.] That results from the vendor's qualified right of
property, from his right of possession. In Hodgson v.
Loy{a), it was laid down by Lord Kenyon that the right of
the vendor to stop in transitu only created an equitable
lien, and did not proceed on the grounds of rescinding the
contract. By the sale itself the property passes to the
buyer (6). The vendor has merely a right to retain the pro-
perty until the price is paid, and not even that, if time is
given for the payment. In Bloxam v. Sanders (c), it was
held that trover would not lie for a vendee who had not
paid for the goods, because though he had the property {d)
he had not the right of possession. The whole judgment
went upon that distinction. Com. Dig. Agreement, B. 3.
This agrees with the judgment of Buller, J. in Lickbarrow
V. Mason (e). Here, the price was to be paid by bill; but
nothing has occurred to prevent the property remaining in
Malleys. [Lord Tenterden, C. J. The vendor might stop
ia transitu before the bill became due, if in the interval the
vendee became notoriously insolvent. If the goods had re-
mained in the hands of the vendor, might he not have said,
unless you pay me I will keep the goods as my own?
Bayley, J. May not the vendor re-sell, unless the vendee
will pay the price ? And does he not abandon all claim
against the vendee by re-selling?] In Kymer v. Suwer"
cropp (f), it was held that where goods to be paid for on
delivery are stopped in transitu, the vendor may still main*
tain an action for goods bargained and sold, if he offer to
deliver them on being paid. In a late case the Court
directed an account to be taken, in order to enable the
vendor to prove for the difference. In Bloxam v. San^
(fl) 7 T. R. 445. (e) 2 T. R. 63, 5 T. R. 367;
ib) t. e. by the sale and delivery, 683; 4 Bro. P. C. 2d ed. 57.
Vide ante, ii. 566 u. (/) 1 Esp. N. P. C. 240; ante,
(r)7D.&R.396;4B.&C.941. 19.
{d) Sed vide ante, ii. 566, n.
MICHAELMAS TERM, X GEO. IV.
(ifrs(a), it was said that the contract was not rescinded by
the stoppage in transitu. [Bayley,J. There the vendor
had not any right of possesion. Lord Tenterden^ C. J.
The property passed in the first instance by the sale and
the delivery on board the ship (6), subject to being re-vested
iQ the vendor under certain circumstances, which gave him
aright to put himself in the same situation as if the con-
tract had never existed. Littledale, J. In Langfort v.
!R/er(c), Lord Holt says, " That after earnest given, the
vendor cannot sell the goods to another without a default
in the vendee ; and, therefore, if the vendee does not come
and pay and take the goods, the vendor ought to go and
request him ; and then, if he does not come and pay and
take away the goods in convenient time, the agreement is
dissolved, and he is at liberty to sell them to any other
person." So if the vendee become insolvent.] The
property is not re-vested until something be done by the
buyer.
F. Pollock, contri. The great question in this case is,
what is the effect of the stoppage in transitu. This is only
a constructive total loss. The Court will not carry that to
such an extent as to give it the effect of destroying the
right to stop in transitu. The goods remaining may be
worth more than the proof under the commission. The
second point, which is the main question in the cause, has
been argued upon a petitio principii. The distinction in
the cases referred to is, between an executed delivery, and a
stoppage in transitu, supported on the ground that the de-
livery had not been complete. Bloxam v. Sanders {d) is a
case of executed delivery; whereas a stoppage in transitu
implies that goods are still to be sent. The consignor must
stop at his own peril. In cases of executed delivery the
vendor may sue for the price in an action for goods sold
and delivered, and may take the same goods in execution.
(a) 7 D. & R. 596; 4 B. & C. (c) 1 Salk. IIS.
94J. (d) 7 D. & a. 396; 4 B. & C.
(b) Ante, ii. ^66, n. 941 ; ante, 30.
21
1839.
22
1839.
Clay
V.
Harrisoic.
CASES IN THE KINGS BENCH,
By the contract of sale nothing passes but the right
to have the goods. Until delivery the property is in the
vendor. The vendee has jus ad rem^ but not jus in re (a).
Where there has been no delivery, or where the delivery,
being defeasible, has been defeated, as here, the vendor
may, upon the expiration of a reasonable time, treat the
contract as dissolved. After taking that course he cannot
sue for the price. It is true that in Hodgson v. Loy (6),
Lord Kenyon denied that the right of the vendor to stop in
transitu proceeded on the ground of rescinding the contract.
But certainly the current of authorities is the other way.
Here it is more reasonable to consider the contract as re-
scinded, the cargo having been sold by the vendor and the
proceeds of the sale received by him. In Lett v. Cowley (c),
Gibbs, C. J., says, that after stoppage in transitu the pro-
perty is in the vendor; there is an actual re-vesting of the
property. So in the case of The Constantia (d), it is termed
a complete and effectual revendication. Whatever a bank-
rupt holds merely as trustee for others, does not pass to his
assignees (e), who, therefore, cannot sue. It is submitted
that the vendor could not prove against the estate; he
could only sue on the special contract for not accepting
and paying, &c.
Patteson, in reply. Stoppage in transitu is not per se a
rescinding of the contract of sale. It has been said that
the vendor may wait a reasonable time. Here he has made
his election by bringing his action on the bill, which he still
retains in his possession. The vendor would have had no
right to sue if the contract had been rescinded; the bill
should in that case have been immediately given up to the
bankrupt. The seller and the buyer may both be said to
have an interest in the goods after stoppage in transitu. It
is sufficient to maintain this action if the bankrupt had any
(a) Ante, ii. 506 n.
\b) Ante, 20.
(c) 7 Taunt. 109.
{d) 0 Rob. A. R. 391.
(e) Vide Carpenter v. Marnell^
3 B. & P. 40.
MICHAELMAS TERM, X GEO. IV.
interest. Lett v. Cowley {a) is very distinguishable. In the
case of the Constantia, the question was, whether there Clay
could be stoppage in transitu without actual insolvency, Harbison.
[Bayley, J. In Lett v. Cmvley, it was said that the pro-
perty re-vested by the stoppage in transitu.] All the autho-
rities shew that the property passes by the sale {b), though
it is said on the other side that nothing passes by the sale
bat the right to have the property. In no case is it
laid down in what manner the stoppage in transitu ope-
rates. It is submitted, however, that it operates merely to
re-vest the possession. In those cases in which the expres-
sion ** re-vesting the property" is found, that point was not
before the Court, By holding that the effect of the stop-
page in transitu was to re-vest the property, the vendor
would not be in a better situation than if it were consi-
dered that the possesmn only re-vested. [Lord Tenterden^
C. J. This is a very important case. Kymer v. Suwer-
cropp was a case of an executed delivery.]
Cur. adv. vult.
Lord Tentekden, C. J, delivered the judgment of the
Court. — The question in this case was, whether, at the time
of the lossj the bankrupt was interested in the goods in-
sured. This depended upon the effect of the stoppage in
transitu, viz. whether it operated to rescind the contract
and to re-vest ihei property in the vendor, or only to retain to
the vendor the right of possession and to replace him in the
same position as before he parted with the possession of
the goods. This point does not appear to have been ex-
pressly decided; but we are of opinion that in the present
case the bankrupt, after the stoppage in transitu, had
no property in the goods insured, and that the action
caooot be supported.
Judgment for the defendant,
(a) 7 Taunt. 169. (b) Sedvide ante, ii. 566, n.
24 CASES IN THE KING's BENCH,
1829.
Doe, d. William Harris, t. Elizabeth Howell and
others.
J. devises to CjECTMENT for a messuage and lands at Clifton in
mainder to C. ^^^ county of Worcester. At the trial of this cause, before
in fee, with Vaughan, Baron, at the Spring Assizes for the county of
case C. shoald Worcester, 1828, a verdict was taken for the plaintiff, sub-
die ^fore B. j^^j ^^ jjjg opinion of this Court on the following case: —
have no other Shortly before the 19th day of February, 1763, John
her deaX^to' "^^ died, seised in his demesne as^of fee of the premises,
devise as she having first duly made and published his last will and tes-
proper. C. tament in writing, executed and attested so as to pass his
*"d d*^d^* real esUte, bearing date the 29th Sept. 1762, whereby he
the lifetime of devised as follows : ** I give, devise, and bequeath unto my
^d^visin^'***^ daughter, Elizabeth Harris, all those, &c. (the premises in
given to B. is question,) To hold to her for and during the term of her
fee* to herTy'" ^'^^ » ^"^ '''^™ **"^ ^^^^^ ^®' decease, in case her husband,
wayof execu- Wm. Harris, shall survive her, then I give and devise the
during the life sc^me unto the said Wm. Harris for the term of his life,
of C, and and from and after the decease of the said Wm. Harris and
uuon the death ^ , . .^ . ^ , . ▼ .
or C. it be- £. his wife, and the survivor of them, then I give and
remSnderca- ^^^'^^® ^^^ ^*^ messuages, &c. (the premises in question,)
pable of being unto my grandson, John, the son of my said daughter £/r-
fine. ^* ^ zabeth Harris, and his heirs and assigns for ever; but in
case my said grandson shall die before my said daughter,
and she shall have no other child living at her death, then
my will is that my said daughter shall give and devise the
said premises to such person or persons as she shall think
proper." The testator, at the time of his death was a
widower : Wm. Harris and the testator's daughter, Eliza-
beth, who are named in the will, were married on the 28th
of April, 1762; John, the grandson, mentioned in the will,
was the illegitimate son of the said Elizabeth by the said
Wm. Harris, and died in April, 1763, aged about two or
three years ; Wm. Harris, the lessor of the plaintiff, is the
son and heir of the said Elizabeth and Wm. Harris, her
MICHAELMAS TERM, X GEO. IV. 25
laid husband, and was born in January, 1766; Wm. Harris, 1829.
the husband, died in the month of November, 1770, leaving
bis said wife and his said son, Wm, Harris, the lessor of
the plaintiff, him surviving. On the 27th of December,
1772, the said Elizabeth, the widow and relict of the first-
named Wm. Harris, intermarried with one Samuel Author^
nies. In Hilary term. Id Geo. 3, the said Elizabeth and
Samuel Anthomies (her second husband) duly levied a fine
with proclamations of the premises, in which fine one Ro-
bert Jones was plaintiff, and the said Elizabeth and Samuel
Anthornies and one James Payne were defendants ; Robert
Jones afterwards conveyed the premises to one Child, from
whom, by divers mesne assignments, they came into the
possession of the Earl of Coventry, whose tenants the de-
fendants in ejectment are. Elizabeth Anthomies died a
widow in May, ]819, leaving Wm, Harris, the lessor of the
plaintiff, and her then only child, her surviving. The lessor
of the plaintiff made an actual entry upon the premises
within five years next after the death of Elizabeth Jnthor^
mes and before the day of the demise laid in the declaration,
for the purpose of avoiding the fine^ and also commenced
this ejectment within one year after the making of such
entry, and duly prosecuted the same.
The questions for the opinion of the Court are, Ist.
What estate in the premises the said Elizabeth took under
the devise; and, 2dly, Whether the title of the lessor of the
plaintiff was or was not bound by the fine.
This case was first argued at the sittings after last
Easter term, by Busby for the plaintiff and Shutt for the
defendants.
A second argument was directed upon the question whe-
ther an executory devise might be converted into a contin-
gent remainder by an event happening after the death of the
devisor, viz. by the death of John, his grandson.
The case was argued upon this point by
^aiby, for the plaintiff. The question is, whether the
CASES IN THE KINGS BENCH,
fee being displaced by the death of JohUf the estate of
Wm. Harris, the grandson, became vested or contingent.
No cases have been found directly id point. John was
in existence at the time of the death of the testator,
which distinguishes the present case from Loddington
V, Kime (a). If John took a vested remainder, the
limitation over could only be by way of executory devise.
If there be a devise to A., with a vested remainder in fee
after his death to £., a further estate to C. must be by way
of executory devise by implication; there is no case to
shew that the executory devise could be converted into a
remainder by the death of the intermediate party. Dot v.
Selby (6). In giving judgment in that case, Bayletff J. put
the very case now before the Court. Gullivers.Wickett [c).
^Parke, J. He cannot have any vested estate if the child
were living at the time of the death of tenant for life, the
estate would be vested until the death of the tenant for life,
it would be contingent. Bayley, J* No doubt, Johtt took
a vested fee defeasible ; the question is as to the estate
which William took. Lord I'enierden, C. J. No doubt,
John took a vested remainder in fee.] If John took a
vested remainder, the subsequent devise cannot be altered
by his death. [Bayley^ J. If the previous fee is destroyed
does the limitation over continue an executory devise?] It
is submitted that it does, Gulliver v. Wickett. [Bayley, J.
It was not held there to be an executory devise; Lee, C. J.
says, ** The devise to Kaiherine for life, with remainder to
such child as my wife is enceinte with in fee, is a good con-
tingent remainder to a supposed child in ventre sa mere ;
and if there had been no devise to the wife for life, the
devise to the child in ventre sa mere would have been a
good executory devise." There I think he was wrong. It
was a limitation to a child defeasible (ci).] Here there is no
child, even in embryo. [Lord Tenterden, C. J. No one can
doubt that John took a vested remainder.]
{a) 1 Salk. 284, 228. (c) 1 Wils. 105.
(ft)4D.&R.608;2B.&C.926. (<0 8D.&R.718;5B.&C.86a.
MICHA£L>{AS T£RM^ X GKO. IV.
Shutt, contri. That which was originally an executory
devise may become a remainder by an event occurring after
the death of the testator ; the next question is, whether it
b 80 in this case. There are many cases to sheWi that by
the removal of the intermediate devisee, that which was at
first an executory devise may become a remainder. Ste-^
fkem V. Stephens (a). It was remarked by Mr. Fearne {b)
that in Hopkins v. Hopkins (c) it was held that the execu-
tory devise having once vested^ the subsequent limitations
thereupon became remainders* Brownsword v. EdiDardsid),
Doed. Fonnereau v. Fonnereau(e). Then the only point is
whether it became a contingent remainder; for this purpose
it will be sufficient to refer to Doe v« Scudamore (/)•
Busby, in reply« In the cases cited from Lord Talbot,
at the time of the testator's death, the first devisee died,
and the devise lapsed ; in Brownsword v. Edwards the limi-
tation was to take effect at twenty-one. The estate of Wm.
Harris, the grandson, must depend upon the estate which
John, the prior devisee, took. On the death of John, Wil--
liam, the grandson^ may be considered a3 taking a defeasi-
ble fee.
Cfif. adv0 vult,
Baylet, J., now delivered the judgment of the Court.
After stating the facts of the case, his Lordship proceeded
thus: — This case depends upon the effect of the fine
with proclamations levied by the testator's daughter and
her second husband. When that fine was levied, the only
parts of the will capable of operating were the devise to the
testator's daughter, Elizabeth, for life, and the devise over,
that in case she should have no other child living at her
death, she should give and devise the premises to such
person or persons as she should think proper. The ques-
(•) Cas. temp. Talbot, 298. (d) 2 Vez. sen. 243.
(A) Feame, C. R. 526. (e) Dougl. 470.
(c) Cbs. temp. Talb. 44 ; 1 Atk. (/) 2 B. & P. 294.
579.
CASES IN THE KINGS BENCH,
tion whether the title of the lessor of the plaintiff is barred
by the fine, depends upon the quality and character of the
power given to his mother, Elizabeth, to give and devise
the premises in case she should have no other child living
at her death. It is a maxim of law, that no limitation
shall be considered as an executory devise which may
take effect as a remainder, the law favouring the alienation
of property. Here, at the death of the testator, the limita-
tion could enure only as an executory devise, by reason of
the previous disposition of the whole fee. Upon the death
of John this reason ceased, and the premises stood limited
to Elizabeth for life, remainder to her husband, Wm. Harris,
with the power to her to give and devise the fee if she
should have no other children at her death. Upon the
death of John, therefore, the character and quality of this
limitation changed, and it became a contingent remainder,
conformably to the principle upon which executory devises
are allowed, namely, that of giving effect to the intention of
the testator. In Stephens v. Stephens the limitations over
must have been executory devises until the estate vested in
the devisee in tail, when those subsequent limitations took
effect as vested remainders. In Hopkins v. Hopkins, limi-
tations, considered as executory devises, became contingent
remainders upon the birth of the intended first taker. If an
executory devise shall become a contingent remainder after
the death of the testator by the birth of a person capable
of taking, the same change must take place by the death
of a person whose interest alone caused the limitation
to be considered as an executory devise. A limitation in a
will which could at first have operated only by way of
executory devise may, by a change of circumstances in the
lifetime of the testator, operate so as to give a vested estate
in possession, or a vested remainder, or a contingent re-
mainder, as is laid down distinctly by Mr. Preston in his
book upon Abstracts, vol. ii. page 154, and a change of
circumstances after the testator*s death may make a parti-
MICHAELMAS T£RM> X GEO. IV.
colar limitation operate at first as a remainder, and after-
wards as an executory devise, or i converso. So in
Fearue (a) it is shewn, that where a limitation which causes
subsequent limitations to operate by way of executory devise
is removed, such subsequent limitations will operate in the
same manner as they would have done had such prior limi-
tations never existed. In Gulliver v. Wickett there was a
devise for life, with a contingent remainder in fee and an
executory devise over, and it was held, that upon failure of
the contingent remainder in fee the ultimate limitation took
effect as an ordinary remainder upon the determination of
the life estate. Browtisword v. Edwards is to the same
effect. Upon these authorities we think it clear that a
change of circumstances after the death of the testator, may
convert into a remainder that which at the death of the
testator could have taken effect only by the way of execu-
tory devise ; if this be so, this case is clear ; at the time the
fine was levied the only vested estate was in Elizabeth, and
the only other interest was a contingent remainder to such
child or children as she should leave at her death, which
remainder was destroyed by the fine.
Postea to the defendant.
(a) Fearne, Coot. Rem. 6th ed. 626.
Don LAN r. Brett, Clerk.
1 HIS was an action for goods sold and delivered, money a plaintiff ar-
lent, &c., in which the defendant was held to bail for the !^*""8 ^^^ »
latter sum
sum of 575/. At the trial before Lord Tenterden, C. J., at than is legally
Westminster, at the adjourned sittings after Trinity term, ^"Sourma.
the plaintiff obtained a verdict for 82/. 9$. 6d. only. In the lice, is liable
particulars of the p1aintiff''s demand he claimed a sum of fen^t's coms
400/, as money due from the defendant to the plaintiff, as ""^®'' ^ ^^^'
per memorandum beanng date 22d of August, 1828. The
30 CASES IN THE KING's BENCH,
^99. ^ defendant obtained a rule, calling upon the plaintiff to shew
cause why he should not pay the defendant's costs of the action.
In the plaintiff's affidavit in answer to the rule it was
stated, that this 400/. was the balance remaining unpaid of the
purchase money for the next presentation to a living, which
the defendant had repeatedly promised to pay, and that he
was indebted in other sums amounting to 90/., for which
the plaintiff held receipts signed by the defendant, but not
stamped, and therefore not admissible in evidence.
Piatt now shewed cause. The facts diselosed by the
affidavits sufficiently negatived malice. In Silversides v.
Bowleg {a) it was held, that to entitle the defendant to his
costs under this statute it must be shewn that the arrest
was vexatious and malicious.
Hutchinson, contr^, was stopped by the Court.
Bayley, J. — This rule must be made absolute. There
was no ground for the arrest.
Parke, J. — As this point has been held both ways, the
best course will be to refer to the act, the words of which
are, " without reasonable or probable cause," not using the
words *' malice" or " maliciously.** If, therefore, without
reference to the question of malice, the arrest was without
reasonable or probable cause, the defendant is entitled to
his costs; and inasmuch as the 400/. was not due on a
valid contract, the arrest, quoad that sum^ was unfounded.
Rule absolute (6).
(d) 1 J. B. Mooi-e, 99. roll to evidence the defendant's
(fi) See the next case. right to the costs allowed b^ the
For the forui of the suggestion rule, see Tidd's Appendix, 4th
to be entered on the judgment edit. 396, 6th edit. 394.
MICHAELMAS TERM, X GEO. IV.
Day v. Picton.
The defendant, on the l6th of April, 1829, purchased of Where a de-
the plaintiff 70 dozens of port wine, to be paid for one half rested without
in cash on the delivery of the wine, and the other half by a reasonable or
•^ , probable
bill of exchange payable four months after such delivery, cause, and the
The cash was paid, but no bill was drawn by the plaintiff ve^"iesg7han
on the defendant for the other half. On the @3d of April the sum sworn
the defendant purchased of the plaintiff 37 dozens of pale to'costs* under
sherry at 3fis., and 33 dozens of brown sherry at 37*., to be *3 Geo. 3^
paid for one half in cash on delivery, and one half in a bill no malice be
at four months from the 1st of May. The defendant having ^^^^^ W-
made default in the payment of 64/., being the stipulated
cash payment on the sherry wine, and the plaintiff having
ascertained that the defendant was offering the wine for
sale at 265. per dozen, arrested him for 193/., being the
amount of the cash payment then due, together with the
sums for which the bills of exchange were to have beeq
drawn and accepted. At the trial the plaintiff obtained a
▼erdict only for the 64/. due in cash at the time of the action
Irrought. A rule having been obtained calling upon the
plaintiff to shew cause why the defendant should not be
allowed his costs in this cause to be taxed by the master,
pursuant to the statute of the 43d year of his late majesty
King Geo. 3, c. 46, and ordering that in the mean time pro-
ceedings should be stayed,
Gnmey and White now shewed cause. In Edgington v.
Hood{b) the defendant was arrested for 60/., and the plain-
tiff recovered 22/. only; but as there was no vexation, and
the plaintiff conceived that he had a good cause of action
for the whole amount, the Court discharged the rule.
Here, the plaintiff acted bon& fidef he stated that he
(«) See the last case. the question as to his right to re-
(fi) S Chit. Rep. 147. In that cover the whole 60/., and inclined
case the Court were of opinion to think that he ought to have had
that the plaintiff had fairly raised a verdict for that sum.
32
1829.
CASES IN THE KINO's BENCH,
thought he had a right to arrest defendant for 129/.# and
said he had reason to believe that unless he resorted to this
measure the whole debt would be lost. There is, there-
fore, no ground for imputing malice to the plaintiff, but
both malice and the absence of probable cause must concur
to entitle a defendant to the remedy provided by this sta-
tute, which is merely a summary mode of giving the party
the benefit of an action for malicious arrest.
Scarlett, A.G., and Paynct contri, were stopped by the
Court.
Bayley, J. (a). — I think this rule must be made abso-
lute. I take the rule to be, that where there is a reason-
able and probable cause an arrest may be made ; otherwise
not Now here every lawyer must have known» that at
the time that the defendant was arrested for the 193A the
plaintiff had no right to hold him to bail for that sum.
LiTTLEDALE, J. — The plaintiff may have felt, that ia
justice and equity the money was fairly due to him, but in
law it clearly was not.
Parke, J. concurred.
Rule absolute,
(o) Lord Tenierden, C.J. was absent through indisposition.
The King v. The Inhabitants of Willoughby-with-
Sloothby.
An estate in UPON an appeal against an order of two justices^
Sough vested, whereby William Stokes, his wife and children, were re-
will not confer moved from Huttoft to Willoughby-with-Sioothby, in the
parts of Lindsey, in the county of Lincoln, the Court of
quarter sessions confirmed the order, subject to the opinion
of this Court upon the following case : —
MICHAELMAS T£RM« X GEO. IV.
The pauper being settled m Willougliby^with^SIoothby,
Join Neal, by indentures of lease and release of the IQth ThTKiNG
and 20th of March, 1825, in consideration of 105/., con- v.
ley ed a parcel of land and two unfinished dwelling-houses,
aituate in Huttoft, to the use of Elizabeth Stokes for life or
widowhood, remainder to the use of the pauper in fee.
The 105/. was money which had been bequeathed by the
father of the pauper to him absolutely, the interest of
which the pauper had subsequently by his deed, in consi*
deration of natural love and affection and lOs., settled upon
bis mother for life or widowhood, the principal, after her
death, to be paid to himself. A further sum of 50/. was
expended by the pauper, after the execution of the convey*
ance, in finishing the dwelling-houses, which sum had been
bequeathed by the pauper's father to trustees in trust to
pay the interest to the widow during her life or widow-
hood, and the principal, after her decease or marriage, to
the pauper. The pauper paid the interest of the 105/. to
the trustees, and the trustees paid it over to the mother.
The pauper entered upon one of the houses and part of
the land at the time of the execution of the conveyance.
The mother let the other house and the remainder of the land
for the space of one year after the execution of the convey-
ance, at the expiration of which year the mother told the
pauper she would deliver up all the premises to him, and
that he might do as he liked with them. The pauper then
entered into possession of the other house and land, and let
it, and received the rent himself and never accounted for
it to his mother, and continued to occupy the same house
he had previously occupied until 1828, when both were sold,
aod were conveyed by a deed, to which his mother, who
remained a widow, was a party. The pauper received the
whole purchase-money, and did not account for it to his
mother. They both joined in the receipt to the purchaser.
Aldenon, in support of the order of sessions. Unless
^ pauper had an immediate interest he had no right of
VOL. V. D
34 €AS£S IN THE KING's BENCH^
1829. residence. In Rex v. Eatington (a), where A*, residing
-Jj^*^^***^ upon a cottage of his own, conveyed it by lease and release
11. to B., with a proviso that A. should live in and occupy the
WiLLouoHBY. ^.^j^3gg duriug his life, it was held, that inasmuch as the
proviso reserved to A. a life estate, B. took only a remainder,
which conferred no settlement by residence on the estate.
It is immaterial for the present purpose to inquire whether
the Court were right in putting that construction upon the
proviso. The settlement was disallowed on the ground
that the pauper took no immediate interest. The same
principle was acted upon in Rex v. Ringstead (6). The
operation of the will was inquired into for the purpose of
ascertaining whether an immediate interest passed. Theu
this is a purchase; but it does not appear that the pauper
has any interest to the amount of 30/. It is impossible to
determine the value upon the case as it is now stated.
N. R. Clarke, on the same side, referred to the cases of
Rex v. Staplegrove (c) and Rex v. Hoiightou-leSpring (d).
Fi/nes Clinton, contri. Rex v. Eatington was decided
upon another point. It was there assumed to be necessary
that the party claiming a settlement by estate should have
a right of possession. In Rex v. Slaplegrove, which was
decided afterwards, it was held that it was not necessary that
the party should have a right of possession at the time of the
residence, but that he gained the settlement being entitled
to the reversion only. [Parke, J. In that case there were
strong grounds to believe that the demise for a thousand
years was a mortgage term.] So here, the mother lets the
pauper into possession. In Rex v. Houghtothle-Spring
possession was held not to be necessary. The distinction
is, that if he is in possession as mortgagor, he is in posses^
sion by leave and licence of the mortgagee. [Bayletf, J.
In Rex V. Houghton-le-Spring the pauper had a present
(a) 4 T. R. irr. (c) 2 B. & A. 527.
(6) Anle, iv. 67; 9 B. & C. 318. {d) 1 East, 247.
MICHAELMAS T£RM» X GEO. IV. 35
estate of freehold, not what the law calls a reversion.] In ^829.
fier V. Rmgstead the point was not fully considered.
V.
Whiiekursi, on the same side. In Iter v. Houghton^e- Willouohby.
Sifmg, Lord Kenyan says, ** it seemed to nie to be a most
atraordinary {uroposition .to establish that a man might be
removed from a parish in which he had property, perhaps,
to a considerable amount, but whether more or less in such
a case is unimportant, because he has let it out, and that
if be afterwards came there again he was liable to be treated
as a vagrant. A man, though not in the actual occupation
of bis own estate, may have many reasons for wishing to
live in the neighbourhood of it. He is entitled to the pri-
vilege of superintending it, but, according to the doctrine
cootended for, he may be sent to another part of the king*
dom, if his settlement happened to be there."
Bay LEY, J.-^A man who has a remainder only has no
right to superintend. An estate in remainder expectant
upon a prior estate of freehold, is not sufficient to confer a
setdement. The party has no means of subsistence out of
the actual profits or the rents. Rex v. Houghion^le-SpriHg
only shews that if a party has a vested estate of freehold
he need net actually occupy. There is a plain line of dis-
tinction between this case and those which have been men-
tioned. The Court cannot look at the quantum of rent^
but simply at the immediate estate of freehold. Here the
son never had the present estate of freehold.
LiTTLEDALE, J., coucurred.
Parke, J. — This point was expressly decided, after a
▼ery long argument, in Rex v. Ringstead.
JLord Tenter DEN, C.J. — I concur in the opinion that
ui estate in remainder is not sufficient.
Order of Sessions confirmed.
d2
CASES IN THE KlNG^S BENCH,
The King t;. Mainwaring.
The exemption X HE defendant was convicted before a single magistrate
c!4i,s.9S,(the ^^^ ^^^ P^('^ ^f Lindsey, in the county of Lincoln, under
Hawkers' and the Statute 50 Geo. 3, c. 41, of the offence of exposing
Pedlars Act,) . . . .
in favour of goods to sale without having obtained a licence. On
the real worker appeal, the sessions confirmed the conviction, subject to
ffoods, &c., or the opinion of this Court upon the following case: —
apprenft Zochariah Boyle, on or before the 21st of October, 18«8,
and known was and still is a large china and earthenware manufacturer
w^ usuaUy' ^^ Hanley, in Staffordshire. Before the said £ 1st of Octo«
residing with ^er he consigned to Gainsborough, a market town, to his
Dim, does not . .
eitend to an own order, a quantity of china and earthenware, of which
agent or ser- ^j^^ several articles mentioned in the conviction formed a
▼ant residing
in a separate part. The said china and earthenware were conveyed by a
hou8e'"Sough carrier's boat from Hanley to Gainsborough, and the said
solely em- Zochariah Boyle was the real worker and maker of all of
nloved bv
such woilLer ^^ ^^^ ^^ ^^^ manufactured by him at Hanley aforesaid.
or maker. William Mainwaringf the defendant, was, on or before the
said 21st of October, and still is, a servant in the sole
employ of the said Zochariah Boyle ; he resided with his
wife and family at Hanley, in a separate dwelling-house,
his own freehold, being within three hundred yards of the
house and manufactory of the said Zachariah Boyle, and
never left that place except when employed elsewhere by
bis master. When at Hanley he superintended and assisted
in manufacturing, and was employed by the said Zacha-
riah Boyle to sell the before-mentioned china and earthen-
ware at Gainsborough. His salary was a fixed yearly
sum, and did not depend upon the amount of any sale which
he might effect; nor did he receive any commission or
benefit, nor was he liable to any charges or loss whatever
which might arise or be incurred in the sale, conveyance,
or otherwise, of the said china and earthenware, but ren-
dered a regular account of the same to his master, who
bore all losses and expenses, and received all the proceeds
MICHAELMAS TERM, X GEO. IV. 37
ind profits. The defendant took possession of the china 1829.
and earthenware so consigned as aforesaid, and upon its ^^•'^'^'"^
arrival at Gainsborough took a room at an inn there, and 9.
00 the day mentioned in the conviction sold part thereof by Maikwarikc.
public auction* The defendant had no hawker's licence,
and had previously been selling at Nottingham and other
places.
N. R. C/ar&e and Fynes Clinton, in support of the convic-
tion. The case depends principally on the construction of
the 23d section of 50 Geo* 3, c. 41, by which it is enacted,
" that nothing therein contained shall extend to prohibit any
person or persons from selling any printed papers licensed
by authority^ or any fish, fruit, or victuals, nor to hinder
the real worker or workers, or maker or makers of any
goods, wares, or manufactures of Great Britain, or his, her,
or their children, apprentices, or known agents or servants,
uMuaUy residing with such real workers or makers only, fi-om
carrying abroad or exposing to sale and selling by retail or
otherwise any of the said goods, wares, or manufactures of
his, her, or their own making, in any mart, market, or fair,
and in every city, borough, town corporate, and market
town." The case of The King v. Turner (a) shews that an
agent is within the act. The question for the consideration
of the Court is, whether a person who resides in his own
house, but whose principal employment is in the house of
his master, can be said to be a servant or agent residing in
his master's house. By requiring that the servant shall reside
under his master's roof, the object of the statute will have
been much better secured. If a person who forms no part
of his master's family, may be sent about the country to sell
goods in this manner, a great manufacturer may employ
hondreds of agents in disposing of his goods in this manner,
to the no small injury of the resident tradesmen, by whom
the parochial and other local burdens are borne. From
(o) 4B.&A. 510.
CASES IN THE KING's BENCH,
these the itinerant vendor is exempted, and it is no great
hardship that he should be subjected to the payment of the
sum of 41. lOs. per annum. The maker or misuinfacturer
Mainwarino. |,in,ggif jg exempted ; so are his servanto in some cases.
But the question is, whether the additional words ** usually
residing with such real workers or makers only/' are to
have any weight.
Denman, Hildyard, and fVhitehurst, contri. The Court
will pause before they act upon any supposed advantage to
firise from extending the restriction. The exemption ought
to have a liberal consti'uction. If the act had contained no
specific exemption for servants, it might have been con-
tended that they were within th^ same protection with their
masters. According to all fair construction the defendant
was a servant usually residing with the maker. The word
" only" shews that the meaning of the legislature was, that
the agent should not be a person residing with any other
parties as his employers. The act imposes a penalty, and
restrains the common law right of trading wherever the
party finds it to his advantage to trade. The object of the
act being to restrain dealers from going from town to town,
the words *' usually residing with such workers or maikers"
must be understood with reference to that object, and are
satisfied if the servant resides in the same town with his
master. It is not necessary that he should reside in the
same house. In 52 Geo. 3, c. 108, it is not required that the
person vending the goods shall reside with the owner.
The object of the statute was to confine the exemption to
persons who were regularly and bon^ fide in the service of
the manufacturer, and to exclude those who were merely
constituted servants or agents for the special purpose.
Residing in a place, does not necessarily mean sleeping
there. In 2 Inst. 122, Lord Cofte says, '* If a man hath a
house within two leets he shall be taken to be conversant
where his bed is, for in that part of the house he is fnost
conversant, and here conversant shall be taken for most coh^
MICHAELMAS TERM, X GEO. IV* 39
vmafU" Lord Coke, therefore, impliedly says that a man I8i!9.
may be a resiant within two distinct leeta. So the word ^^^T^X^
. . . The KtMO
" inhabitant*' is not always used with reference to the place v,
at whicb the party sleeps, as in cases upon the Statute of Mainwariko.
Bridges* The conviction also cannot be supported. [Lord
Tenterden, C.J. The case is not before us for that purpose.]
This Court has a general authority over the proceedings in
inferior jurisdictions where the certiorari is not taken away.
[Lord Tenterden, C.J. We must decide merely upon the
point which the Court of quarter sessions have reserved
for our decision. If the Court of quarter sessions had
thought proper to put a question as to the form of the con-
viction, we should have been authorised to answer it.] It
may be contended that even if no case had been reserved
by the quarter sessions for the opinion of this Court, the
mere circumstance of having appealed took the case out of
the prohibition. But if the Court are to look only at the terms
of the special case, that itself contains no statement that the
defendant had not obtained a licence. [Lord Tenterden, C.J.
The Court of quarter sessions very properly state so much
of the case only as is necessary to raise the point upon
which they require our opinion.]
Lord Tenterden, C.J.9 after stating the language of
the 23d section/ proceeded thus : — ^The words of an instni-
ment are to be under^stood according to the subject-matter.
Here they are explained by the context. The statute speaks
of children and apprentices before it mentions the resident
servants and agents. 1 think, therefore, that it means
members of the manufacturer's family. If the construction
which has been contended for were to prevail, a manufac-
turer in London might employ as many agents as he
pleased, provided those agents lived on the eastern side of
Temple Bar.
Bavley, J. — ^The defendant had no right of appeal
uakss it be given by statute. The same clause which gives
CASES IN THE KINGS BENCH,
the appeal takes away the certiorari. The meaning of the
legislature must, therefore, be taken to be, that we are to
consider the case only with reference to the specific point
Mainwariko. ^^^^j j.^^ ^jj^ opinion of the Court A point has been
raised as to the 52 Geo. 3, c. 108, in which act children and
servants are omitted. I entirely agree with Lord Tmterden,
LiTTLEDALE, J. — I am of the same opinion. The word
resident refers to the place where the party sleeps; that is
so in all cases of settlement law. The position cited from
Lord Coke, instead of assisting the defendant, seems to be
rather the other way. In a late case (a) of an indictment
against a party for not taking upon himself the office of
constable. Lord Tenterden says, ** For all the purposes of
pecuniary charge such an occupier is an inhabitant; and
therefore he is liable to church rates, to the repairs of high-
ways, and to the repairs of bridges."
Parke, J. — ^The only question for the Court is, whether
the defendant falls within the description of servant usually
residing with the real worker or maker. Taking these
words in the sense in which they are commonly used, they
mean a person who inhabits and sleeps in his master's
house; and this construction is strengthened by the pre*
ceding words.
Order of Sessions confirmed.
(a) Rex V. Adlard^ 7 D. & R. 340, 349; 4 B. & C. 779.
The Kino v. the Inhabitants of Roxley.
vearfv^hinne* XJPON an appeal against an order of two justices, where-
from the 13th by Robert Farmen/, his wife and family, were removed
following i*2th fr<^*^ Roxley to Winterton, in the parts of Lindsey, in the
°f ^^fr""" ^^"°*y ®f Lincoln, the sessions quashed the order subject
the service b^ to the opinion of this Court upon the following case : —
a dissolution
of the contract, no settlement is gained, although the service continue 365 dajs, by
reason of its being leap-year.
What shall be a dissolution of the contract, and what merely a dispensation with the
service, is a question of fact for the Court of quarter sessions.
llICHA£LAlAS TERM, X GEO. IV. 4]
The pauper being unmarriedy and without children, was 1829.
hired before old May day, 1819« (Idth May,) to serve
James Barrett, in the appellant parish, from this old
May day to old May day, 1820, as a servant in husbandry,
at \5L wages. The pauper served Barrett in the appellant
parish until the 11th of May, 1820, when wishing to visit
his friends (fifteen miles distant) and to attend some sta-
tutes (o) on the 12th of May on the way there, and avoid
returning back to his master's, he requested his master's per*
mission to go for altogether, and they settled the pauperV
wages, and part was deducted for the time he had to serve*
The pauper slept at his master's house, m ith his permis-
sion, on the evening of the 1 1th of May, and finally left hi&
master's on the 12th (6).
N. R. Clarke, in support of the order of sessions. A
day was wanting to complete the year of service. No
settlement therefore waai gained in Winterton, Whether
the deficient day was caused by a dissolution of the con-
tract or by a dispensation with the service was a question
of fact, for the determination of which the Court of quarter
sessions was the proper tribunal. That Court has de-
cided, and there were abundant premises to warrant the
conclusion to which they have come. If the inference was
left to be drawn by the Court above, it was clearly a dis-
solution and not a dispensation. There is a concurrence
of authorities to shew that this was a dissolution. The
true criterion is to consider whether the master could still
insist upon the service. This is laid down as the test by
Lord Ellenborough in Rex v. Rushall (c). [Bayley, J.
Rex V. Hardhom with Newton {d) proceeds upon the same
distmction.]
Fifnes Clinton, on the same side, was stopped by the
Court.
(a) Fairs for the hiring of ser- (6) 1820 was leap year,
^wits; io some coanties called (c) 7 East, 471; 3 Smith, 45S.
"Mops.* (rf) 12 East, 51.
The Kino
42 CASES IN TITE RINO's BBNCH,
1829. Patteson, contrii. There was a good service for a year,
and there was a good hiring for a year. [Lord Tetiierden,
V, ^ C. J. referred to Rex v. Uherstoneia).] There it was held
RoxLEr. ^^^ service for 365 days was enough, although the hiring
was from Whitsuntide to Whitsuntide, and the servant was
discharged before the second Whitsuntide, which shews
that a service for a year of that extent is sufficient. In
Rex V. Ackley(Jb\ a service of 365 days, extending over a
leap year, was held not to confer a settlement; but there
the hiring was clearly insufficient, being from three days
after Michaelmas until Michaelmas following, in leap year.
The Court, however, seemed to think the service good.
IBayley, J. If not a good year as to the hiring, it would
not be a good year as to the service. If the servant went
^ . into the service on the 1 st of March^ and left the service
\ on the 29th of February, it would not be sufficient.] No
dissolution of the contract is actually found. The pauper
bad a right in the morning of the 12th of May to go to the
statute. [Lord Tenterden, C. J. He ceased to be a servant
on the 11th.] In The King v. Potter Heigham (c) it was
held that absence by consent of the master for one day be*
fore the end of the year would not defeat a settlement by
hiring and service. ^Parke, J. What did the sessions find
in that case?] The sessions found nothing specifically on
the question of dissolution or dispensation. [Lord 7Vfit-
terderif C. J. Here the sessions only submit to this Court
whether they lawfully may determine as they have done.]
Whitehurst, on the same side. This was not a dissolu-
tion of the contract at the time the master and servant se-
parated. In The King v. Potter Heigham, though nothing
was said as to the finding a dissolution or a dispensation^
the judgment of the Court of quarter sessions implied
that the contract had been dissolved. Here, if the case be
understood to amount to a dissolution, to take effect from
(a) 7 T.R. 564, (c) Burr. S. C. 090; 2 BoU,
(6)ST.R. 350. 316.
liilCHAELMAS TERM, X GEO. IV. 43
the 12th of May, a settlement would be completely ^^^^-
acqtiired. It was not the object of the pauper to quit on j^^ j^^^^
the ilth of May, but on the 12th. He merely wished to v.
visit his friends after the statute, instead of going back
again. [Sayley^ J. It is stated that the pauper slept at
bis master's house by his permission. No permission
would have been necessary if the contract had not been
dissolved.] The permission was introduced into the case
for tlie purpose of shewing that the pauper did not sleep
at his master's house surreptitiously. The master might
employ him on the 12th before he went to the statute.
\Parkef J. Where a bill of exchange is made payable at
so many months after date, the calculation is made by
calendar months, without reference to their length.] In
the case of lapse the half year is computed as half S65
days, without regard to calendar months.
Lord Tenterden, C. J. — Whether that which took
place between these parties amounted to a dissolution of
the contract, or merely as a dispensation with the service,
it was peculiarly proper for the Court of quarter sessions
to decide. They have considered that what passed
amounted to a dissolution. They have acted upon that
view of the case in the order which has been made, and we
could not interfere even if we thought the conclusion at
which they had arrived to be erroneous. When a leap
year occurs, a year must be understood to mean 366 days.
Bay LEY, J. — ^The statute 24 Geo. 1, c. 23, s. 2, speaks
of bissextile, or leap year, consisting of 366 days (a).
The other judges concurred.
Order of Sessions confirmed.
(a) There appears to be no more short of a complete revolation of
rattoo for designating as a year a the earth in its orbit, than a period
period of 365 days, which falls of d(>6 days, which exceeds it.
44 CASES IN XU£ king's B£NCH»
TiNMouTH v. Taylor.
A plaintiff XHE plaintiff having been taken in execution for 34/., the
in execu- * . i . . • i •
tinn for costs costs of a nonsuit, and having remained m execution
£*^*^U not ^^^^^ a y®^*'* Archholdj early in this term, obtained a rule
entitled to his calling upon the defendant to shew cause why the plaintiff
der^48^eo"3 ^^^^"'^ °^^ ^^ discharged out of custody. The application
c. 123, after was founded upon 48 Geo. 3, c. 123, which enacts, " that
having lain in ., . . . , ....
prison twelve ^" persons m execution upon any judgment obtained lu any
months. Court, &c. for any debt or damages not exceeding 20/., ex-
the statute elusive of the costs recovered by such judgment, and who
does not ap
to la'intifi^ ^^^^ ^^^^ '*^" ^" prison thereupon for the space of twelve
any case. successive calendar mouths next before the time of their
application to be discharged, may, upon application for that
purpose, in the manner therein mentioned, be forthwith
discharged out of custody as to such execution by the rule
or order of such Court."
Coltman shewed cause. The title, the preamblci and the
provisions of the statute distinctly point to defendants and
not to plaintiffs. It is true that in Roylance v. Hewling{a),
it was held that a plaintiff was entitled to his discharge
under this statute. But supposing that case to have been
rightly decided, it proceeded on the ground that the costs
were a judgment-debt. Here then the debt exceeds 20/.
He also cited Rex v. Hubbard{b\ and Rex v. Dunne (c).
Archboldf control. After the case of Roylance v. HeW'
ling, it cannot be contended that plaintiffs are not within
the purview of the act. It is clear, from the language
of the statute, that the party should not be detained in cus^
tody for the costs, whatever the amount might be, provided
there were no debt or damages exceeding 20/., exclusive
of costs.
(a) 3 M. & S. 289. (6) 10 East, 408. (c) 2 M. & S. 801.
MICHAELMAS TERM, X GEO. IV.
Batlby, J. — The langaage of the act, primft facie, ap-
plies to defendants only, and none of its provisions seem to
liave the least, reference to plaintiffs. Supposing Roy lance
T. Hewling to have been correctly decided, the costs ^ould
Jliave become a debt by the judgment exceeding 20/.
L1TTI.EDALE J. — ^The words of the statute manifestly
apply to defendants. But assuming that plaintiffs may be
included, the costs here would constitute a debt by judg-
ment exceeding 20L
Paeke J., concurred.
46
1829.
Tin MOUTH
V.
Taylor.
Rule discharged.
Gainsford v. Marshall.
The defendant, a prisoner in execution, obtained a rule
caDjog upon the plaintiff to shew cause why he should not
be discharged out of custody for non-payment of the allow-
ance of 5j. 6d» per week, under the Lords' Act (a). This
rule was obtained, upon an affidavit stating that the turnkey
had received for the defendant a half crown and a shilling
from a person sent by the plaintiff, and that upon its being
delivered to the defendant he discovered it to be a bad one,
and retuaiied it to the turnkey. The affidavit in answer stated
that the plaintiff's son tried the shilling before he sent it,
and that it was a good one, and that the person who carried
it to the turnkey delivered the same shilling which he had
received to the turnkey, who examined it, rung it, and said
it would do.
The underta-
king of the ex-
ecution credi-
tor to pay
d<. 6d, per
week to the
debtor under
the Lords' Act,
is satisfied b;
payment to
turnkey,
the
Thesiger now shewed cause. The receipt by the turnkey
was tantamount to a receipt of the money by the prisoner,
Either V. Bull {b).
(a) 39Gfo.9,c.e8; S6 G^o. 3, c. 44 ; dSGeo.3,c.5; 39Gfo.3,c.50.
{h) 5 TR. 37.
CASES IN THK KING S BENCH,
ChiUy, coutii. The Court of Common Pleas, in a very
GatnIford recent case, haa decided that the turnkey cannot bind the
V- prisoner by the acceptance 'of bad moneyi Agutter v.
Wil8on.{a)
Bayley, J. — It is a settled rule in this Court that
the turnkey is the person to receive the sixpences. If, as in
the supposed case put by Mr. Chiity,. the plaintiflf's clerk
had run away as soon a$ he had placed the money in the
hands of the turnkey, or if the turnkey had promptly, after
receiving the money, sent to say that it was bad, there
would have been no acceptance by him. Here, on the
contrary, ho complaint was made on that day that the money
was bad.
LiTTLEDALE, J. — I am of the same opinion. For this
purpose the turnkey is the agent of the prisoner, as it has
been held in this Court; and it would be very inconvenient
if it were held to be necessary that the party who brings the
money should in all cases see the prisoner.
Parke, J. — I am of the same opinion. It is not satis-
factorily made out that the money sent by the plaintiff was
bad.
Rule discharged.
(fl) 7 Taunt. 7.
MICHAELMAS TERM, X GEO. IV. 47
T. M. Young v. T. Spenceb and C. Spencer. ^^^/^^
Case by reversioner. The first count stated that the Where, in an
defendanls, being possessed of a messuage in Stowell Street, re?ereioner^*
Newcastle, as teoants to . the plaintiff, without his licence against the te-
aod against his will, pulled down part of the wall and opened for opening a
a door into Stowell Street, whereby the said messuage was ^^J^ '° a walJ,
damaged and weakened, and the plaintiff was prejudiced in consent of the
bis reversionary interest therein. The declaration also con^ [herebfda"^
tained counts in which it was alleged that the plaintiff was maging the
owner of other houses in Stowell Street, which were injured j'udicing"the'^
by tfae opening of this door. Pleji, not guilty. At the plaintiff's re-
. , ^ / tT , , , . . r , vereionary in-
tnal before i^ay/e^, J., at the spnng assizes for the town terest, the
and county of Newcastle, 1858, a verdict was, by the direc- ^^^^^ ^^^l^^
tioB of the learned Judge, entered for the plaintiff with and all actual
li. damage^, subject to the opinion of this Court upon the hous^fs d^is- ^
foUovring case : — proved, the
In March, 18^5, the defendants became tenants of the 'directed to in-
plaintiff of a house in Stowell Street, for a term of seveft V^^ whether
.the reversion-
yeara. In lB27f the defendants, without the leave and con- ary interest of
trary to the wish of the plaintiff, opened a door from the }|^as ''or hil^not
house into Stowell Street, where the plaintiff had several been injured.
other houses near to that occupied by the defendants : and ^\^^ entered
evidence was given on both sides as to the effect thereby for the plaintiff
produced on the house in which the door was made, and ou; direction or
the plaintiff's other houses situate in the same street. The; inquiry, on the
"^ . ^ ground that the
learned Judge directed the jury at all events to find a ver- defendant had
diet for the plaintiff with nominal damages, on the gr<>wnd /JJ^j^j^^^jJ^'j^j^gj.^
that the defendants had no right to open the door; and also ation, was set
desired them to say whether any actual injury was thereby
done to the house occupied by the defendants, or to the
plaiatiff*s other houses in Stowell Street, in order that the
opbion of the Court might be taken as to the other point,
if they should find that no actual injury had been done.
The jury found that the defendants did pull down the wall
aad erect the door without the leave and against the wish of
the plaintiff, but Uiat the. house occupied by them was not
48 fcASES IN THE KING*S BENCH,
1830. thereby weakened or injured in any respect^ and that no
injury was thereby occasioned to the plaintiff's other houses.
Inghamf for the plaintiff. All the rights of property
remain in the landlord, except such as the landlord chuses
to part with. In trees, the tenant has no interest, except
as to the fruit and for repairs. If mines are mentioned in
the lease, the lessee has a right to break the land in search
of them. If mines are not mentioned, the lessee has only a
right to work such mines as were open at the time of the
demise. Here the door-way in question was not necessary,
or even convenient. A tenant has no right to change the
condition of the property, except so hr as it is necessary
for the purpose of effectuating the object of the demise.
In Doe d. Pickery v. Jackson, {a), a door-way broken through
the wall of the demised premises, was held to be a continuing
breach of the covenant to repair. The interest which the
tenant takes was considered in Farrant v. Thompson (6),
where it was held, that the landlord, who had demised mill
machinery, might maintain trover against the sheriff, who
had seized it under a ii. fisi. against the tenant. In that case
Mr. Justice Bayley said, ** There the goods were parcel
.of the inheritance, and let to the tenant, to be used during
the term in a particular way, viz. in that particular place,
and he, by his own act, put an end to that qualified posses-
sion." In the case of waste, the materials belong to the
person who has the estate of inheritance. Here the act
of the defendant was wrongful. The next question is,
whether the plaintiff is entitled to retain his verdict. In
waste, if damage to a less amount than 40 pence be shewn,
judgment is entered for the defendant; and it is said that
an action on the case, in the nature of waste, cannot be
supported under such circumstances. If the reversionary
estate be prejudiced it is a present injury. There is a nia<»
terial difference between an injury to the reversion and an
injury to the property. The jury in this case have found
(a) 8 Stark. N, P. C. S03. (b) 5 B. & A. 8«6; « D, & R. i.
MICHAELMAS T£RMy X GEO. IV.
that DO damage was done to the house^ but they have not
found that no injury was done to the plaintiff's reversionary
estate. In Cole v. Green (a), an action was held to be
oiaintainable by reason of the alteration of the thing de*
mised and of the evidence thereof. This is cited merely to
shew what took place at the trial of the issue before Lord
Hale, when it was resolved, that an act which affects the
nature of the thing demised, or of the evidence thereofi is
waste, notwithstanding any amelioration of the premiseSi* " If
a lessee throws down a wall between a parlour and a cham-
ber, whereby he makes the parlour larger, it is waste, because
it cannot be intended for the benefit of the lessor ; nor is it in
the power of the lessee to alter (a transposer) the house'' (&).
Here the act done by the tenant amounts to a transposition
of the house. Where a house is granted for a long lease,
the throwing out of a door may alter the evidence and ren-
der it difficult for the reversioner to identify his property.
[Uitledale, J., Comyns's Digest (c), in citing the case from
Rolkf says, '' if it can be shewn to be an advantage to the
lessor, it may come from the other side"]. Where a com-
moner has brought an action, it has been said, that if the
action were not brought, the act complained of would be
evidence of title. Where the evidence of title is affected,
proof of actual damage is not necessary. In Serjt. Wilfianul's
note to 1 Saunders, 346 b. it is said, that wherever an act
iajores another's right, and would be evidence in future in
bvour of the wrong-doer, an action may be maintained for
the mvasion of the right, without proof of any specific
injury ((/). If acts of this kind were continued during a long
period, in the case of a long lease upon which no rent was
(a) 1 Lev. 311. of fishing was not only an infringe-
W 2 Rolle's Abr. 815, pi. 19. ineut of the plaintiff's right, but
(0 Com. Dig. Wait, D. 2. would, if overlooked, be evidence
(^Citing Patrick v. Greenwmff of right in the defendant; and re-
which was trespass for fishing in a ferring to WelU v. Watling, 2 W.
•ereralfisbery, without alleging that Black 1233; Hobwn v. Todd, 4
any fish had been caught. The T. 11. 71; Pindar v. Wadsaorlh,
Cooit of C. P. held, that the act 2 East, 154.
TOL. V. E
50
18S9.
YOCHO
SPBSrC£B«
CASES IN THE KING S BENCH,
reserved, the tenant might, at the expiration of the term,
allege that he had done a series of acts which a mere lessee
has no right to do. The heir of the reversioner might thus
lose bis estate by acts ivhich a jury might consider as occa-
sioning no actual damage.
Cresswellf contrd. Tliis is a case of great importance
and extensive consequences. It would create great alarm
if it should be decided that a tenant can make no alteration
in the state of the demised premises without subjecting
himself to an action. If it had been left to the jury, whether
any actual injury had been sustained by the reversionary
estate, they would have found that question in the negative,
but the learned Judge refused to leave that point to them%
Doe V. Jackson (a) is a very strong case, but it was not
found there that no damage was done or that the wait was
in repair. That was merely a nisi prius case, not afterwards
moved. The action was founded on the contract to repair*
It is not stated that it was properly fitted up with doors, of
that the wall was repaired ; it is, therefore, difficult to say
upon what ground the Court proceeded. In Farrant v«
Thompson (fr), the defendant had detached part of the free*
bold and had sold the materials. The plaintiff has treated
this^ first, as a question of waste; secondly, he says, the
present form of action is substituted for the writ of waste,
which was first given by the statute of M arlbridge (c) ; but
it was given against the tenant, and not against a mere
wrong-doer. Lord Coke says, where land is on lease, and a
stranger commits waste^ the landlord shall have waste
against the tenant, and the tenant shall have trespass against
him who did the waste (d). In the Year Book, 19M Hen.
6, 45 a (e), it is said (/) that if a man enter upon land let
to a tenant at will and subverts the land, the tenant at will
shall have trespass for the injury done to him, and the les<
(a) 3 Stark. N. P. C. 293; ante,
48.
(b) 5B.& A. 826; 2 D. & R.
1; ait/e, 48.
(c) 52flcn.3,c.24.
(d) 2 Inst. 146.
(c) M. 19 H, 6, fol. 45, pi. 94.
(/) By Forletcue,
Spescer.
MICHAELMAS TERM, X GEO. IV. 51
tor shall have another acil<)ii of trespass for the destruction ^829.
df his land (o). In trespass for beating servant per quod, the Young
st&rvaAt niaj maintain an action without damage, the master
hot. Btdingjitld V. Onnltm (A)> is the first case in which an
action appears to have been brought by the reversioner. The
declaration stated that the plaintiff was seised in fee of a
dose, and that the defendant stopped a rivulet, which ran
between the plaintiff's close and the close of the defendant^
thereby the plaitatiff's close was drowned {mrrmnd), and
his tree$ perished. The defendant pleaded that one S. was
|>osse^sed of the plaintiff's close by virtue of a lease from
plaintiff's fihther, and that the defendant had paid to S.^ and
thiat S. had accepted, 20s. in satisfaction of the trespass.
Updk demtif rer it was held that this was no plea, and that the
plaintiff might sue in respect of the injury done to the
reversion. In Jtssor v. Gifbrd (c), it was held, that the
reversioner might sue, if the interest would be less valuable
if the plaintiff were to sell his reversion during the term,
although the injury might possibly be Remedied before the
expiration of the term. Here it is expressly found that the
wall was not weakened by the alteration made ; therefore, it
Would hot have b^eti less valuable upon a sale ; and unless
fist property be diminbhed in value this action is not main*
taibaUe, JtictcsoVi v. Pesked (d). In that case the evidence
tX the property was altered quite as much as here. In
Stmther v. Barr (e), the question imknediately before the
Court was as to the tenancy. But in delivering his judg-
neat, Bt^, C. J., sdy), '^ in order to support an action of
this nature there must be some actual damage." Ferguson
▼. Crttotffl (/). In William v. Norland (g), Littledale, J.,
»ji, " g^erally speaking there must be a temporal loss or
Aimsge^ accruing from the wrongful Act of another, to main-
(•) *" Qnbd conceditur per totam (e) .5 Bingh. 1 53; 2 M . & P. 207.
curiam;*M. 19 H. 6, fo. 45, pL 91. (/) 5 Bingh. 305; 2 M.& P. 524.
(*) 3 Lev. 209. (g) 4 D. & R. 583, 587; 2 B.
(c)4Borr. 2141. & C 910.
(lO 1 M. & S. 234.
£2
CASES IN THE KING*S BENCH,
tail! an action on the case." Here there is no injury to the
right, nor could any adverse possession be founded upon
the act complained of. [Bay ley, J. The plaintiflf's ac-
quiescence in this act might possibly have weakened his
evidence as to the right to the other door, which was
originally the only door.] In Corny hs*s Dig. tit. fVast.
D. 2, the cases are stated in which an action of waste
may be maintained ; but no such imaginary injury as the
present is there stated. In Green v. Cole there had been
a total alteration of the demised premises ; and there it was
said that if the alteration were an improvement it might be
shewn on the other side. This proves that such an inquiry
might be entered upon. Jn The Governors of Harrow
School V. Alderton{a), it was held, that in an action of
waste, the plaintiff is not entitled to judgment where the
damages found are merely nominal ; upon the ^authority of
which case it has also been held, that the plaintiff cannot
have judgment in an action on the case in the nature of
waste, where merely nominal damages are found. Rigg v.
Parsons (6).
Ingham, in reply. The peculiar hardship attending the
judgment in the action of waste has led to the rule, that
unless the injury amount to 40 pence, the plaintiff shall
not have judgment. Queen's College v. UalleU (c). In-
jury to the title is sufficient without actual damage. If a
series of acts of this nature were done and the title went
into the market, it would be found to be less salable. If a
tenant may open a door, he may shut up a door. [Hayley,
J. In Slrother v. Barr{d) nothing was determined, except
as to the point now before the Court. But it was said that
the measure of damages would depend upon the length of
the term.]
Cur. adxK vuli.
(fl) 2 B. & P. ST. (c) U East, 489.
(b) Cited in Pindar v. Wads- (d) 5 Bingh. 136; 2 M. & P.
worth, 1 Ensl, 164. 207 ; ante, 51.
MICHAELMAS TERM, X GEO. IV.
Lord Tbntbrden^ C. J., now delivered the judg-
ment of the Court. After stating the facts of the case and
the conflicting evidence, his Lordship proceeded thus: — We
do not think that we can take upon ourselves affirmatively
to say that there was an injury to the plaintiff's right, which
would support an action. It might have been left to the
jury to say whether there was or was not an injury to the
right. Some of the old cases are not very reconcilable
to our ideas of justice. One point, however, is intelligi-
ble, namely, that if the evidence of the property be altered,
the reversioner may maintain an action. We cannot take
upon ourselves to say whether in the present case that is so
or not. That is a question for the consideration of the jury.
There must, therefore, be a new trial, unless the parties will
consent to a stet processus.
Rule absolute.
53
1829.
Davis v. Capper, Esq. (a)
Trespass against the defendant, a magistrate of the
county of Gloucester, for assaulting and imprisoning the
plaintiff, and detaining her in prison fifteen days. Plea, not
guilty; and issue thereon. At the trial before Gaselee,J.
at the Gloucestershire Summer Assizes, 1828, the case
was this : — Mary Davis, the plaintiff, had lodged in the
house of one Ann Hamerton, at Cheltenham ; and on the
5th of January, 1828, she made a deposition that she had
been robbed of various articles of property, and that some
of them had been discovered in the possession of ^nn
Hamerion. The parties appeared before a magistrate, but
the charge against Ann Hamerton was at that time dis-
missed. On the 27th of January Ann Hamerton sent for
one Russellf the superintendent of police at Cheltenham, and
informed him that she had been robbed while Maiy Davis
(«) See IXiiTtf T. Russell, 3 M. & P. 590; 3 M. Sc R. Mag. Cas. 296.
A warrant of
commitment
for re-exami-
nation for an
unreasonable
time, as for
fourteen da^s,
is wholly void ;
and trespass
lies against the
committing
magistratei
thouj^h he act-
ed without any
indirect or im-
proper motive.
fi4
1899.
CASES IN THE KINGS BENCH,
lodged with her. She produced a letter addressed to the
plaintiff at her, Ann Hamerton's, house, and bearing the
London post-mark, stating that she had reason to believe
the contents would lead to a discovery of the thief, whom
she strongly suspected to be the plaintiff. Russell opened
the letter, which was signed '^ Obadiah,*' and purported to
be written by an accomplice in the robbery residing in
London, who demanded payment of the plaintiff as the
perpetrator of the robbery, and stated that he would wait a
fortnight for her answer, jlnn Hamerion also informed
Russell that four days after the robbery a letter in the same
handwriting, and with the London post-mark, had been
delivered to the plaintiff,, who refused to shew it ; and she
concluded by requesting Russell to take the plaintiff into
custody. Russell did accordingly apprehend the plaintiff
late the same evening, detained her in prison that night,
and on the following morning carried her before the de-
fendant. The letter was tber^ produced and read, and Ann
Hamerton deposed that during the time the plaintiff lodged
with her she had lost various articles pf bed furniture and
wearing apparel, and that she had reason to suspect, i^ad
did suspect, that the plaintiff was concerned in the robbery.
Upon this information the defendant committed the plain-
tiff to the Bridewell at Northleach, under a warrant re-
quiring the gaoler to keep her in custody until the 12th of
February, and on that day to bring her up for further exa-
mination. On the 12th of February the plaintiff waa
brought up before two other magistrates for further exami-
nation, and was by them re-committed. On the l6th she
was again brought up before the defendant, who then dis-
charged her, stating that there was no evidence against her,
that he would have discharged her on the 12th if he had
been present at the examination, and that he had com-
mitted her in the first instance until the 12th under the
expectation that she would by that time have explained the
history and circumstances of the letter. No evidence was
produced on the part of the defendant, but it was contended
MICHAELMAS TERM, X GEO. IV. S5
that the action could not be maintained on two grounds : 1829.
firat, that the defendant had done nothing illegal, every
magistrate having a discretionary power to commit for
furthec enamination for such period as he thinks proper;
apd« secondly, that even if he had abused his discretionary
power, and thereby acted illegallyi case* and not trespass,
was the proper form of action. The learned judge inclined
to think that the action was not maintainable, but to save
the expense of another trial he left two questions to the
jury: first, whether the commitment was made bon&fide
for the purpose of further examination, or for the purpose
of compelling the plaintiff to state who was the writer of
the letter; and, secondly, whether they considered the time
for which the plaintiff had been committed was a reason-
able time. The jury retired, and, after an absence of
several hours, returned stating that they could not agree;
whereupon the learned judge discharged them from giving
any verdict and nonsuited the plaintiff. In Michaelmas
terqi, 1828, a rule nisi for a new trial was granted, upon
the grounds, first, that there was evidence to go to the jury
that the commitment was made for the purpose of extort-
ing a confession, and not for the purpose of further exami-
nation, and therefore was illegal ; and, secondly, that even
if the commitment was made bon& fide for the purpose of
farther examination, it was made for an unreasonable time,
and therefore was illegal. In Hilary term, IS29,
Taunton shewed cause against the rule. This nonsuit
was right, for the form of action was wrong. Assuming
that there was evidence from which it might be implied
that the defendant acted maliciously in committing the
plaiDtiff, the form of action should have been case, and not
trespasf. If the defendant had jurisdiction over the sub-
ject-matter of the complaint, and the warrant is good upon
the face of it, trespass is not maintainable; because t(ie
foundation of that action is, that the defendant had no
jurisdiction, but was a mere wrong-doer. The defendant
here clearly had jurisdiction, for a complaint was made
56
1899.
CASES IN THE KING S BENCH,
upon oath before him, and a felony charged. [Bayley, J.
The complainant only swore that she had reason to sus-
pect, and did suspect, that the plaintiff was concerned in
the felony. Such a deposition would justify the apprehen-
sion of the party, but I doubt whether it justified her com-
mittal. Besides, is fourteen days a reasonable time for
which to commit for further examination f] It may or may
not be so, according to the circumstances. Generally
speaking, the time for which a prisoner shall be committed
for further examination is a matter in the discretion of the
magistrate, and that discretion, exercised bon& fide, is con-
clusive. But even if that be not so, still, if under any cir-
cumstances the warrant can be good, it is an answer to the
action. A fortnight may be too long, but it is not neces-
sarily so. Here the letter produced before the defendant
spoke of a fortnight ; he may have considered that letter as
genuine, and believed that the writer would wait a fort-
night; and upon that ground may have committed the
plaintiff for that time for further examination. Scavage v.
Tateham (a) may be relied on for the plaintiff, but that was
a very different case from the present. There the magis-
trate detained the prisoner in custody in his own house ;
the detention was for the space of nineteen days; and it
did not appear that there had been any examination at all.
Curwood, contri, was stopped by the Court.
Bayley, J. — I am of opinion that the rule for a new
trial ought to be made absolute. Upon one question I
entertain no doubt; it is clear that a magistrate may legally
commit for further examination. But I think it equally
clear that it should have been left to the jury to say whe-
ther the commitment was made bon& fide for the purpose
of further examination, or for the purpose of inducing. the
plaintiff to make a confession. The declaration of the de-
fendant^ that he had committed the plaintiff in the first
instance until the 12th, under the expectation that she
(a) Cro. Elic 8S9.
MICHAELMAS TERM^ X GEO. IV.
would by that time state who was the writer* of the letter,
was certainly evidence to go to the jury that he did not
commit for the purpose of further examination. Upon the
otber ground, the authorities are very strong to shew that
a magistrate ought not arbitrarily to commit, even for the
purpose of further examination, for so long a period as the
defendant in this case did. The duty of magistrates in this
respect is pointed out in Hale*s Pleas of the Cro%on{a), and
is this : — ^Where a party arrested for felony is taken before
a magistrate, he must discharge, or commit, or bail him.
But prior to so doing he must, by 1 and 2 Ph. i^ M. c. 13,
and 2 and 3 PA. 4r M. c. 10 (i), (re-enacted by 7 Geo. 4,
c. 64,) take the informations upon oath of the prosecutor
and witnesses, and put them into writing. He must also
take the examination of the prisoner, not upon oath,
aod put that into writing. And because it may be un-
reasonable to take these informations or examinations pre-
aendy, or possibly it may take longer time, the prisoner
may be continued in the custody of the officer, or may
be detained in the magistrate's house, or committed to
tome near safe place of custody, till the examination can be
taken: but this must be dispatched in some convenient
time. The case of Scavage v. Tateham(c) is there referred
to. That was an action for false imprisonment in London
from the iOth to the 29th of September. The defendant
justified, that he was mayor and justice of the peace in
Pomfret, and that robbery was done there, and the plaintiff
was thereof suspected and brought before him, and there-
fore he detained him in his house during that time to exa-
mine him and one Pole, who was not apprehended, con-
cerning the robbery ; and afterwards, on the 29th of Sep-
tember, delivered him over to the new mayor; and traversed
the imprisonment in London. And upon demurrer it was
adjadged that the inducement to the traverse was not good ;
for a justice of peace cannot detain a person suspected in
prison, but during a convenient time only to examine him,
(•) Vol. I. p. 586 ; II. p. 120. (c) Cro. Eli». 889.
W Ante, iv. 4S7 (6).
67
1829.
CASES IN THE KINGS BENCH,
which the law intends to bQ three days, ^nd within that
time to take his examination and send bjpi to priion, for
he ought not to detain him as long as he pleaseth, as he
did, eighteen days. That decision, if adopted as an autho-
rity to its full extent, would shew that the law has limited
the reasonable time to three days. But I am pot disposed
to go to that length. I do notnhink it possible to fix any
specific limit. The time for which a party may reasouably
be committed for further examination must depend upon the
nature and circumstances of the case. But then these cir<»
cumstances ought to be detailed in evidence. They should
have been detailed in evidence in this case. Then, if the
question had proved a mere question of law, the judge
should have determined it ; if a mixed question of law and
fact, the judge and the jury should have determined it
in Bum's Jmtice, vol. i. p. 1009, £4tb ed. n. there is this
case (a): — Gooditig was convicted at the Ixindon Ses?
sious, in May, 1820, of assisting Davis to escape from
th^ Giltspur Street counter, where he had been in cus*
tody, charged with forgery. The case was afterwards
submitted by his majesty to the judges, in consequence
of a petition presented by Gooding, alleging that DuvU
was never in kgal custodyi and submitting that Goodiiig,
therefore, could not legally be convicted of assisting him
to escfipe. The fact was, that Davis, at the time of his
escape, was under commitment for further exaniiiuition
pply, and that no warrant, commitment, or any written
authority was ever made out by the committing magistrate,
or by any other magistrate. The only question submitted
to ihe judges was, whether a commitment for further
examination, not being in writing, was legal. The judges
were unanimously of opinion that such a commitment, if
made for a reasonable time, was legal, though not in
writing; but they stated that they considered the question,
(a) Cited by Park, J. in his Chitty^s Bum*$ Justice, %'ol. ii.
chaise to the grand jury, Mon- p. 100, n.
mouth Summer Assizes, 1823,
MICHABLMA8 TERM, X GEO. IV.
what was a reasonable time, to be a mixed question of law
and fact} and that as the facts of the case were not fully
detailed, they could form no opinion, in point of fact,
whether the time in the particular case was a reasonable
time or not; but that they presumed it must have been
profsd at the trial to be so, because otherwise the prisoner
ought to have been acquitted. That statement of the
jadges shews them to )\nvt been of opinion, that the ques-
tion whether the time, for which the party v?as committed
for further examination, wqs reasonable or not, depended
i)pon the circumstances of the case, and that the judgment
of the committing magistrate was not conclusive of that
<|tiestion. I feel myself bound to act up to that opinion in
the present ease, and to state, that the circumstances which
iaduoed this defendant to commit the plaintiff for fourteen
days not being detailed, I feel myself unable to say whether
that time was a reasonable time of commitment for further
eiamtnation or not. Upon this view of the case, upon
bath grounds, I am of opinion that justice cannot be done
widioQt a new trial being had.
dQ
1890.
Davis
Cappcb.
LrrrLBBALB, J.*-i-I also think that there ought to be a
new trial in this case, for the purpose of trying the question,
whether the plaintiff was committed by the defendant really
sad bop& fide for the purpose of further examination, or
for the purpose of forcing from her a confession regarding
the person who wrote the intercepted letter. If the com-
mitment was made for the latter purpose it is quite clear
that it was illegal. Upon the question of the discretionary
power of magistrates, as to the time for which they can
legally commit for further examination, I should require
opportunity for consideration before I came to any decision;
but it is not necessary to decide that question in the present
Paike, J. — I am also of opinion that there must be a
new trial had in this case, for the reason given by my brother
/
60 CASES IN THE KING's BENCH,
1829. LUiledale. Upon the other point I agree with my brother
Bayley» that it is a mixed question of law and fact for the
consideration of thejury^ after a detail of all the circum-
stances, whether the time of commitment for further
examination is reasonable, or not. The case of Scavage v.
Tateham (a), in whatever view regarded, seems to me to
establish that proposition; because^ though the decision
there may have proceeded on the ground that the prisoner
had been improperly detained in the magistrate's bouse
instead of being committed to prison, or that he had been
improperly delivered over to the new mayor without any
examination having taken place^ still it appears from the
report rather to have proceeded upon the ground that a
magistrate has no authority to detain a suspected person in
custody beyond a reasonable time for the purpose of his
examination : and it is clear that Lord Hale takes that view
of the decision in the part of his treatise referred to by. my
brother Bayley. So, in Gooding's case {b)» it is clear that
the judges thought the time for which the magistrate bad
detained the party in custody was not to be considered
conclusively as reasonable ; but that the reasonableness of
the time was a mixed question of law and fact, to be deter-
mined by the judge and jury. A new trial, therefore, must
be had ; which, if there be any doubt upon this point, will
give the defendant the opportunity of raising the question
upon the record.
Rule absolute for a new trial.
At the Gloucestershire Summer Assizes, 1829, the cause
was tried again before Vaughan B., upon the same evidence
as before. That learned judge left two questions to the
jury : first, whether the defendant in committing the plain-
tiff for the time mentioned in the warrant acted bon^ fide»
or was influenced by some indirect or improper motive ;
and secondly, if they thought that the commitment was
(a) Ante^ 57. (h) Ante^ 68.
MICHAELMAS TERM, X GEO. IV.
made honk fide for the purpose of further examination,
whether the time was reasonable : and his lordship expressed
his own opinion that the time was» under the circumstances,
unreasonable. The jury found that the commitment was
made bon& fide for the purpose of further examination only,
but that it was made for an unreasonable time, and returned
a verdict for the plaintiff with 10/. damages. The learned
judge gave the defendant leave to move to enter a nonsuit,
if the Court should be of opinion that trespass was not
maintainable for an unreasonable commitment made with-
oQt any indirect or improper motive. On a former day in
this term
61
1839.
Taunton moved accordingly. Had the defendant acted
wholly without jurisdiction, and shewn his want of juris-
diction upon the face of his warrant of commitment, trespass
would have been maintainable; but he had jurisdiction to
commit, and his warrant was good upon the face of it ;
therefore trespass will not lie. This distinction is taken in
the late case of Groome v. Forrester (a). Lord Hale, speak-
ing of commitment in cases of felony, says (b), *' The want
of certainty seems not to make the commitment absolutely
void, so as to subject the gaoler to a false imprisonment,
but it lies in averment to excuse the gaoler or ofiicer, that
the matter was for felony. '^ Here, the defendant having
jurisdiction to commit for a reasonable time, and the rea-
sonableness of the time being a mixed question of law
and fact, (the law having assigned no fixed limit,) it Is im-
possible to say when precisely the time became unreasonable,
and the want of jurisdiction arose. The defendant, there-
fore, at most, has fallen into an irregularity in the exercise
of his jurisdiction ; and though that may render him liable
to an action on the case, still, having had jurisdiction, he
cannot be treated as a trespasser (c). It may be doubted
whether the plaintiff would have been entitled to her dis-
(b) 5 M. & S. S14.
(*) Bale's P. C. 683.
(c) Vide Baiten v. Carew, 5 D.
& 11. 558; 3B.&C. 649.
6d CAS£6 tn THE KtVO^B fi&KeB,
1820. charge by habeas cdrpUs ; and trespass does not lie unless
Vp'"^ Ihe cothinitment be so utterly void as to entitle the party
V. committed to be discharged by habeas corpus^ although
CAPPta. |[jg converse of the proposition does not hold ; for a party
may be entitled td discharge by habeas corpus, ahd Hot
Entitled to maintain trespass for false imprisonmenti
[Baylejff J. May not a warrant of commitment be good
for part of the time, and bad for the residue P] Not ho as
to make the magistrate a trespasser; It is impossible to
draw the line. Besidea, herie tio psirt WAs bad. It Wis a
mere irregularity. [Parke, J. Gt>odivg^B case (c), shews
that a commitment for an unreasonable time is void
altogether. Lord Tenterden, C. J. Suppose a magistrate
had authority by statute to commit for one teionth, and he
committed for two, would not trespass lie against him?]
Uhdoubtedly it would, because the law having limited his
jurisdiction to a month, the commitment would bo void for
the second month, in respect of which he would be wholly
without jurisdiction. Here the magistrate had jurisdiction
to commit for a reasonable time; without ahy express limi-
tation ; and there is hothing upon the face of the warrant to
shew that the time for which he committed was unrea-
sonable.
Cn^. idtt/o. vuU.
Lord fENTERbEN, C. J. now delivered judgment. —
This was an action of trespass brought against the defendant,
a magistrate^ who had committed tliie plaintiff for k period of
fourteen diys for the purpose of further examihation. Tbe
jury fout^d thit tho commitment was made boirfl fide for
that purpose, and Without any indirect or improper motive^
but that the tithe for which it was made was unreasonable.
It wks icontetided on the part of the defendaht that the fbnii
of the action was improper, that it should have bech case
and not trespaSi). We are, however, of opinion that trespass
was the proper form of action. A special action on tbe
(a) 1 Bum's S, 1009» 94th cd. ; 2 Cbitty*s 6urn*s J. lOO, n.
M ICHAELif AS T£RM> X GEO. IV.
case canDot be maintained against a magistrate for anjrthing
done by him in that capacity, unless his conduct have been
iiiBuenced by some improper motive, and here the jury
expressly negatived such a motive. And whether we con*
aider this commitment as absolutely void from the beginning,
as being for an unreasonable time, or consider it as void only
pro tanto, that is, for so much of the time as was unreason-
ble, still an action of trespass would be maintainable;
beeausis the legal character of the act is the same, and every
continuance of the party in custody is a new imprisonment
and a new trespass. It appears to us, however, to be the
far better opinion that, in a case like this, where the time is
unreasonable, the commitment is void from the beginning (a).
The duty of a magistrate is to commit for a reasonable time,
and if he commit for an unreasonable time, he thereby
does an act Which he is not authorised by law to do. It is
clear that in Gooding's case (6) the judges thought that a com-
mitmient for an unreasonable time would be a void commit-
ment ; for the report states, that they presumed that it must
have been proved at the trial that the time was reasonable,
because otherwise the prisoner ought to have been acquitted.
That goes to the very point, that a commitment for further
examination, if it be for an unreasonable time, is, therefore^
wholly void, because the judges were of opinion that the
party so committed was not in legal custody, and, theriefore,
that another person who had aided him to escape from
prison was not guilty of any offence against the law. For
this reason, as well as for the other which I have already
stated, we are of opinion that trespass was the proper form
of tdion in this case.
Rule refused (c).
63
1829.
Davis
V.
Capper.
(a) And see Rex v. EUii^ 8 D.
k R. 173.
(^) I Buro'B J. 1009, 24th ed.;
S Chitt/s Bum's J. 100^ n.; atUtj
58.
(c) And see Hardy y, Ryk, anie^
iv. 295; 9B.&C. 603.
64 CASES IN THE KING^S BENCH,
1829. ^- ^ , ,
y^^^^m^ Newsome V. Graham and another.
Rent paid by ASSUMPSIT for money had and received. Plea, non
in'g as devisee, assumpsit ; and issue thereon. At the trial before Bayley^i,,
the amount of at the last Yorkshire Assizes, the case was this:— fT. D.
which J. IS . ,
afterwards laylor died in 1819, intestate, and without issue, possessed
M^i^ihifh^ir ^^ certain freehold estates. J. Taylor j his younger brother,
maybereco- succeeded to the estates as heir at law, excluding the
If.'ls money ^ daughter of B. Taylor, an elder brother, who was sup-
had and re- posed to have been illegitimate. J. Taylor died iu 1820,
ceived to his . . , ... i i i • • i i . ^ ,
use, B. setting having by will duly devised the estates to the defendants as
Swlwids when ^^"*^®®^- ^he plaintiff had been tenant of part of the pro-
the action is perty under W. £). Taylor and under J. Taylor, and after
thTtnaU^^ *^ the death of the latter continued to hold under the defend-
ants, and paid thcni rent for seven or eight years. It was
then discovered that R. Taylor ^ the elder brother, had been
legitimate, upon which his daughter and heiress at law
brought ejectment against the plaintiff, and obtained a ver-
dict establishing her title. She afterwards brought an
action for mesne profits against the plaintiff, and obtained
a verdict for the amount of six years' reut. The plaintiff
then brought the present action to recover that amount,
together with the costs of his defence. The present de-
fendants knew, while they were in the receipt of rent from
the plaintiff, that there were doubts respecting the illegiti-
macy of the elder brother. It was contended on the part
of the defendants that the action for money had and re-
ceived could not be maintained, because the title to the
estates might have come in question, which could not
have been tried in that form of action. The learned judge
directed the jury to find a verdict for the plaintiff, but gave
the defendants leave to move to enter a nonsuit. The jury
having found for the plaintiff,
P. Pollock, on a former day in this term, moved accord-
ingly. The title to the estates might have come in ques-
tion, therefore this action cannot be maintained ; for title to
MICHAELMAS XERM^ X G£0. IV4
hod, or to an incorporeal hereditament, cannot be tried m
» action for money had and received : Cunmngham v.
Lawrenis (a), lindon v. Hooper (6). The plaintiff claims
the money aa rent paid without consideration* The ground
of the claim is, that the trustees had no tiUe. But it was
open to them to shew that they had title, for the recovery
in ejectment is not conclusive of that question; this action
therefore might have turned upon a question of title, and
caDQOt be maintained as an action for money had and re^
ceived.
Cur. ado, vulL
66
1829.
NawsoME
Crabasi.
Lord Tentsrbbn, C. J. now delivered judgment. — We
are all clearly of opinion that the action for money had and
received is maintainable under the circumstances of this
case. They are these: — ^The plaintiff had from time to
time paid rent to the defendants for certain premises which
be held of them. It turned out at length that the defend-
ants had no title to those premises. The plaintiff was
ejected, and compelled to pay the mesne profits for the
time during which he had held of the defendants. And
this action was brought to recover back the rent which he
had paid to them. The objection was, that titl^ to land
could not be tried in an action for money had and received.
That is true; but there was no trial of title in this case. It
hid been previously ascertained that the defendants had no
title whatever to the premises; and the defendants did not,
at the trial of this cause, claim to have any title. Two
cases were cited at the bar, but they are both distinguish-
able from the present in that respect. From the short
note of the nisi prius case of Cunningham v. Lawrents{a) in
Bacon't Abridgment^ it may be inferred that the defend-
ant claimed title to the land at the very time when the
MTtion of assumpsit for the rents received was brought.
In lindon v. Hooper {b)y the right of common was in dis*
(a) 1 Bac. Abr. 7th ed. «60. (t) Cowp. 414.
VOL. v. 1'
66 CASES IN THE RIKG'S BENCH,
1829. pute at the time when the action for money had and re*
ceived was brought to recover back the money paid for the
release of the cattle; the defendant, who had distrained
the plaintiff's cattle, agreed to return the money, if the
plaintiff should make out his right, and tlie action was
brought for the express purpose of trying the right. In
the present case it did not appear that the defendants,
either at the time when the action was brought, or at the
, trial of the cause, claimed to have any title to the premises.
This, therefore, is the simple case of money paid under a
mistake as to the facts, and fails within the general rule
that money so paid may be recovered back as money had
and received by the defendants to the plaiutifi^s use.
Rule refused.
A patent is Lewis and another v. Marling.
not avoided -^
by the specifi- OASE, for infringing a patent obtained by the plaintiffs
ing as part, f^^ improved shearing machines for shearing woollen cloths.
but not as Plea, not guilty ; and issue thereon. At the trial before
a necessary m i-i t
part of the Lord Tenterde/i, C. J., at the adjourned Middlesex sittings
somethin' ^^^^^ '**® '^^^ '^^"™' ^^^ ^^^^ ^^^ this:— The plaintiffs had
which proves obtained their patent in 1818, and in their specification, to
*^A pa*tenr which a drawing was annexed, they claimed as their inven-
for a machine tion, among other things, " thirdly, the application of a
invented, and . ^ /? . • . i- . * , ,
first brought proper substance fixed on or m the cyhnder A. to brush
into use, by the surface of the cloth to be shorn ;" and " fourthly, the
the patentee, . . •"
isnotavoided described method of shearing cloth across from list to list
a^simifaT^^ ^^ ^^ ^ rotatory cutter.*' It appeared that the brush was soon
machine hav- abandoned by the plaintift's, being found useless, and that
viousry'in-'^^" they never sold any machines with it; and upon this ground
vented by it was contended that they had claimed too much, and
another, b y , . , , . , ___. ,
whom it was therefore that the patent was void. With respect to the
never brought rotatorv cutter, it appeared that a similar machine was in
into usem this * » rr
country.
Lewis
V.
MICHAELHAS TERM» X GEO. IV. 67
use in America twenty years ago, and that a specification of iB29.
it was sent to England in 181 1 and seen by several persons,
though 00 machine was ever constructed by it; that in 18 1 6
a model of a similar machine was brought to England from Marliko.
America, and seen by some few persons, though no machine
was ever constructed by it^ nor was its existence publicly
or generally known ; and that about thirty years ago a
similar machine was constructed in England, and tried by
the defendant, who did not find it answer. Upon this
evidence it was contended that the invention claimed by
the plaintiffs was not new, and therefore that the patent
was void. The Lord Chief Justice was of opinion, upon
the first point, that as the specification did not describe the
brash as a necessary part of the machine, the patent was
still good, although, upon trial, that part of the machine
bad proved useless; and, upon the second point, that as
the rotatory cutter had not been publicly or generally used
or known in England, the plaintiffs must still be considered
as the inventors within the meaning of the statute 21 Jac. 1,
c S, 8. 6, although a specification and model of it had been
bfoaght from America, and a similar machine had been
constructed in England ; but his lordship left it to the jury
to say whether a similar machine had been generally known
in England, and whether the patent of the plaintiffs had
been infringed by the defendant. The jury found a verdict
for the plaintiffs.
jP. PoUock now moved for a rule nisi for a new trial, and
renewed the objections taken at Nisi Prius. First, the patent
is void, because the specification describes as part of the
invention of the plaintiffs, the application of a brush to
brosh the surface of the cloth; whereas it was proved that
such brush was useless, and that the plaintiffs never sold a
sii^le machine with the brush attached to it. Now a patent
is void if the specification is either ambiguous or gives
directions tending to mislead the public. Turner v. Winter {a) ;
(a) I T. R. 608.
f2
68
i«e9;
Lewis
Maruvo.
CASEd IK THE king's BENCH,
and here the public would be misled, if, at the expiration of
the time for which the patent was granted, they attempted
to construct a machine according to the directions of the
.specification. It was suggested at the triai> as an answer
to this objection, that the specification does not describe
the brush as a necessary part of the machine. But this
seems to be no good answer in hw, because the defendant
is entitled to treat the case as if the patent had been ob*
tained for the brush alone; and because in every patent^
all that is claimed must be new and useful, or the patent is
void: Hill V, Thompson {a), Bruntonv^Hawkes{b\Cromp^
ton V. Ibbotson (c). Secondly, the patent was void because
part of the invention claimed, namely^ the rotatory cutter,
was proved not to be new ; at least there was strong evi-^
deuce upon that subject, and which was not left to the jury
by the lord chief justice in the manner vvarranted by former
decisions. The evidence was this: — About thirty years
ago a similar machine was constructed in England; in
1811 a specification, and in 1816 a model, of a similar
tnachine was brought to England from America, and though
ho machine was ever constructed from either, both were
seen by several persons. Now the proprietor of that spe-
cification or model could not, after having so exhibited it,
have maintained a patent for the machine ; and if he could
not, it is difficult to understand why the plaintiffs should
be in a better situation.
Lord Tenterden, C.J. — I am of opinion that we ought
not to grant a rule to disturb the verdict in this case. With
respect to the first objection, it does not appear^ upon
adverting to the specification, that the patentees described
the brush as a necessary part of the machine, although they
claimed it as an invention. Before they applied for the
patent they had constructed a machine, of which the brush
formed a part, but before they made any utachines for sale
(a) 2 Moore, 424; 8 Taunt. 375.
(b) 4B.&A. 541.
(r) 1 Danson and Lioyd, 33.
.MICHA£UfA$ TERM, X GEO. IV. 6^
they difcotered the brush to he unnecessary^ and abandoned I89d.
it I 9gree that if a patentee insert in his specification, as
Lewis
Marumo.
a accessary ingredient in the patent article, any thing which v,
proves not to be necessary, or even useful, and thereby
misleads the public, his patent may be void; but I think it
would be too much to say that this patent is void, because
the plaintiffs claim to be the inventors of a particular part
of the machine, not described in their specification as ne-
cessary, and which turns out not to be useful. Several of
the cases already decided have borne with sufficient rigour
upoD patentees, but no case hs|s yet gone the length of
decidiog that aiich a claim renders the patent void, and I,
for oi9e> nm not disposed to create such a precedent. The
pther ground of thisi motion was an alleged misdirection oi^
mj p^rt to the jury. With a view to impugn the novelty
ef the invention, evidence was given that a machine similar
to that of tbe plaintiffs had been previously constructed ii^
Englaadi but that it had not been approved of, ^nd never
came into use. Another piece of evidence was, that a model
bad been brought to England from America, and exhibited
to some few persons, but that no machine had ever been
nade from it. It was further proved, that a specification
had been brought to England from America, and shewn to
several persons, but that no machine was ever made from
it. So that upon the result of all the evidence it appeared,
that until the plaintiffs obtained the patent for their machine,
W) similar machine had been publicly known or used in
this country. I told the jury, that if it had been proved
that the plaintiffs had seen the former model or specifica**
tion, that might have been an answer to*their claim to the in-f
veotion, but that there was no evidence of that kind; and I
left it to them to say whether a machine similar to that of
the pbuntiffs had been in public use and operation before
the patent was granted. They found that there had not i
«id I think there is no reason to find fault with their,
verdict.
70 CASES IN THE KINO's BENCH,
1889. Bayley^ J. — I am of the same opinion. In order to
support a patent, the specification must make a full and
fair disclosure to the public of all that is known to the
patentee respecting his invention; the object being, that
ultimately the public shall have the benefit of the disco-
very (a). If, therefore, the patentee represent several
things as competent to produce a specific effect, when only
one will answer, that is bad; or if he suppress any thing
which he knows will answer, that is bad also. It is ob-
jected in this case that the plaintiffs described the appli-
cation of a brush as a part of their invention. But at the
time when the specification was made a brush was used ;
and there is no reason to doubt that the plaintiffs at that
time thought it necessary ; therefore that objection fails.
As to the specification and model sent over from America,
if it had been proved that the plaintiffs had seen them, or
either of them, they could not afterwards have claimed the
discovery. But if I discover a particular thing for myself,
it is no objection to my claim to a patent that another has
made the same discovery, provided I am the first to intro*
duce it to public notice and adoption. Here, there was no
ground to doubt that the plaintiffs were the inventors, if
liot the first inventors, of the machine, and that they were
the first persons who introduced it to public notice.
> Pabke, J. — I am also of the same opinion. The ob-
jection to the patent, as explained by the specification, is,
that it is for several things, one of which was then sup«
posed to be useful, and is now found to be not so. Now
although it has been decided that all the parts of an inven-
tion for which a patent has been granted must be new, it
has never been decided that they must all continue to . be
useful. The law has not yet gone to that extent, nor do I
think it desirable that it should. The prerogative of the
crown as to granting patents was restrained by the statute
(a) JUardet v. Johntan, Bull. N. P. 76, b.; Godson on Patents, 121.
1(1CHA£LHAS TERM, X 0£0. IV.
SI Jac. \, c. 3» s. 6, '' to the true and first inventors of
manufactures, which others at the time of granting the
patent shall not use." The condition, therefore, is, that
the thing shall be new, not that it shall be useful; and
though the question of utility has been sometimes left to
the jury, it appears to me that the condition imposed by
the statute is complied with, if the subject-matter of the
patent be proved to be new. There was nothing in this
case to shew that the plaintiffs were not the first inventors
of this machine, at least in England ; and its having been
previously invented in America, does not affect the ques*
tion. It is a further part of the condition of the statute,
that the manufacture shall not have been used by others ;
which^ it is said, has not been complied with in the present
case. But there was no evidence of the user of this machine
ID England before the plaintiffs obtained their patent ; and
there b no authority for saying that a patentee is to lose
the benefit of bis invention because it has been also invented
bjf another, unless that other has also brought it into public
use. For these reasons I am of opinion that neither of the
objections urged against this patent ought to prevail, and
that the plaintiffs are entitled to retain the verdict which
has been found in their favour.
Rule refused (tf).
(a) LiUUdale, J^ was in the Bail Court.
Sharp v. Aspinall and Parker.
OECLARATION in trespass. The first count stated The proceed-
that defendants, being justices of the county of York, j,"^"P?„Voni
unlawfully issued their warrant to the constable of Slaid- member of a
bum, authorizing him to levy the sum of 75. 6d. by distress ^^^ J^^^ ^g
and tale of the goods, chattels and moneys, of a certain Oeo, 3, c. i!25,
8. 3, must be
all before two justices resident in the county in which the society is held.
Sbakp
V.
i2 CASES IN THE KING*S BENCH,
1829. friendly society called The Humane Charitable Fraternity,
held at Slaidburn in the West Riding of the county of
York| and in default of such distress being found, then to
AspiNALL. i^yy iii^ said sum of 7^. 6d, by distress and sale of the
goods, &c. of plaintiff, therein described as an officer of
the said society; under which warrant defendants with
force and arms broke and entered the house of plaintiff in
the said county, and took away a writing desk of plaintiff
of the value of 10/. and sold it, although defendants had no
jurisdiction over the subject-matter of the complaint on
which the warrant was grounded, and had no right to issue
the warrant. Second count for breaking and entering
plaintiff's house, and taking away his goods. Third count
for taking away plaintiff's goods. Pleas : first, not guilty.
Secondly, that before and at and after the said time when
&c., one A, was a member of the said friendly society,
held Sec, called Sec., the rules, orders, and regulations
. whereof had been and were, before &c., duly exhibited,
confirmed and filed at the general quarter sessions of the
peace in and for the said West Hiding, according to the
provisions of the statute 33 Geo. 3 ; and the said ^. so
being such member &c., did before &c., complain to
defendant Parker, being then and there a justice of the
peace for the said west riding, and residing within the same,
and also a justice of the peace for the county palatine of
Lancaster, the said county palatine adjoining the said West
Riding, of relief having been refused to him the said A, by
the said society, to which he was lawfully entitled ; that a
summons was issued to plaintiff as steward of the said
society; that defendant Parker being such justice as afore-
said, and defendant Aspinall being a justice of the peace
for the said West Riding, and also for the said county pala-
tine, and residing in the said county palatine, near to iS.,
attended at the time and place mentioned in the summons \
that plaintiff made default; whereupon service of the
notice was proved on oath, and defendants proceeded to
hear the complaint, and made an order that the said sum of
Sbakp
MICHAELMAS TERK, X GEO. IV. 73
7f. &/. should be paid to A* ; and because plaintiff refused )829;
to pay« defendants issued their warranty &c. Replication,
de iDJuri& sufty 8cc. i\t the trial before J3^/ey, J. at the Z.
lut York assizes, the facts were proved as stated on the Aspihali.
record. It was contended on the part of the plaintiff that
tbedefendantSf not being both resident in the West Ridings
kad no jurisdiction to make the order upon which the
warrant was founded, inasmuch as the statute 49 Geo. 3,
c. 1^, s. ly confined the power of making such orders to
two justices '* residing within the county, riding, division,
kc., within which such society shall be held.'' On the
part of the defendants it was contended, that the clause of
the statute referred to was only directory, and that the
order being made by two justices of the West Riding, though
not both of them resident within it, was good, inasmuch as
the statute 28 Geo. 3, c. 49, empowered justices to act for
soy two adjoining counties, provided they were personally
resident within one of them. The learned judge was of
opinion that the defendants had no jurisdiction to make
the order, and directed the jury to find a verdict for the
plaintiff, but gave the defendants leave to move to enter a
nonsuit
Vfightman now moved accordingly. It was assumed at
the trial that the order in question was made under the
authority of the Jir$t section of the 49 Geo. 3, c. 125, and
the objection was founded upon that assumption. Now that
was a mistake, for the whole of the proceedings were taken
under the third section of that statute, which, as regards
the present question, is essentially different from the first*
The powers given by the first section are, no doubt,
confined to justices residing within the county in which the
society is held ; for the words ''such justices" in the latter
parts of thdt section can only refer to the justices there
first mentioned, namely, resident justices; and if the pro-<
ceedings had been taken under that section, it may be
74 CASES IN THE KlNo's BENCH,
1899. admitted that the objection would have been fatal, notwith-
standing the statute £8 Geo, 3, c. 49* But the subject-
matter of these proceedings was relief, a word not to be
found in the first section, and the whole scope and object
of the two sections differ; for the first empoM^ers justices to
enforce the obedience of the members to the rules of the
society, and the third empowers them to give relief to the
members of the society against the misconduct of the
officers. The third section begins by enacting that "if
complaint shall be made to two such justices by a member of
relief having been refused, it shall be lawful for the mid
two justices residing within the county in which the society
shall he held, and such justices are thereby required, to
summon the officer against whom complaint shall be made,
and, upon his appearance,. &c.| such justices shall proceed,"
&c. Now the words ''such justices'' in the beginning of
this section cannot be taken to refer to the justices men-
tioned in the first section, because there is an intervening
section, the second, which contains a long recital of two
prior statutes, introduces a new set of enactments wholly
independent of the first section, and twice mentions
"justices,'' generally, without any definite description.
Then, taking the words '^ such justices" in the third section
to refer to the last antecedent justices, namely, those
mentioned in the second section, which is the proper rule
of construction, the complaint of relief being refused may be
made to a;?y justices, who would have jurisdiction wherever
resident; and the subsequent words in the third section,
respecting residence, must be considered as directory only,
and not restrictive. Ai all events those words, even if
considered as restrictive, can apply only to the granting of
the summons; and as the summons in this case was granted
by the resident justice, the proceedings will still be valid
by the 3 Geo. 4, c. 23, s. 2, which provides, *' that in all
cases where two justices are authorized and required to
bear and determine any complaint, one justice .shall be
AirCHAELMAS TERM, X GEO. IV.
competent to receive the original information or complaint,
and to issue the summons or warrant requiring the parties
to appear before two justices; and after examination upon
oath into the merits of the complaint, and the adjudication
thereupon by any such two justices being made, all
subsequent proceedings to enforce obedience thereto may
be enforced by either of the said justices, or any other
justice for the same county/'
75
1899.
Lord Tenterden, C. J. —I entertain no doubt upon
this case; the point is perfectly clear. The proceeding is
under the third section of the statute 49 Geo. 2, c. 125.
The early part of that section provides, that if complaint
shall be made of relief being refused, two justices residing
withiii the county in which the society is held, shall summon
the part^ complained against; and the latter part directs all
the subsequent proceedings to be taken before such justices.
The word such can only mean resident; if the first proceed-
ing is to be before two resident justices, the order must
be made by them also. The direction of the learned
judge, therefore, was perfectly correct, and no rule can be
granted*
The other Judges concurred.
(a) A friendly Society, whose
rules hare l>een allowed by the ma-
l^stntes and registered in London,
afterwards bold their meetings in
Middlesex. Tlie magistrates of
Middlesex have jurisdiction to de-
^<le DpoQ complaints made by
Rule refused (a)
members of the society. So held
upon an indictment for disobe-
dience to an order of two justices
of Middlesex. Res v. Ga«A, 1
Stark. N. P. C. 441 ; Mann. N. P.
Digest, 8d ed. S09.
76 CASES IN THE KING's BENCH,
1829. Christopher Kell, Gent, one, &c, v. Nainby.
An attorney ASSUMPSIT on an attorney's bilk At the trial before
busmess under Gaselee, J., at the last Sussex assizes, the case was this:—
the firm of *«K. fhe business, in respect of which the action was brought,
son not being was done by the plaintiff for the defendant in the years
in fact his i8«7and 1828. William Kell, the plaintiff's son, who
partner, may ^ "^
sue alone for proved the business done, stated, upon cross-examination,
his bill for pro- ^^^^ ^^ ^*® "^^ *" partnership with his father, but acted as
fessional busi- his clerk, and received a salary. But he admitted that " Kell
and Son** was on the door of his father's oflBce, and ihat
letters relating to the business had passed between the
parties addressed and signed, respectively, '' Kell and Son."
It was thereupon contended that the son ought to have
been made a co-plaintiff with his father. The learned
judge told the jury, that if the action had been brought by
the defendant against the plaintiff and his son jointly, either
for a debt or for negligence, the evidence would have been
auiRcicnt to charge the son, because he had permitted him-
self to be held out to the world as a partner with his father.
But as the action was brought by the plaintiff as a creditor
of the defendant, it was perfectly immaterial to the debtor
that the son had been held out to the world as a partner, if
in fact he was not so, and had no claim upou the defendant.
The son had sworn that he was not a partner Mvith his
father at the time the business was done, and if they be-
lieved his evidence, the plaintiff was entitled to a verdict.
The jury found a verdict for the plaintiff.
Piatt now moved for a new trial. The question that
should have been left to the jury was, not whether they be*
lieved the statement of the son that he was not a partner
with the plaintiff, but whether they believed, upon the
whole evidence, that the plaintiff and his son were jointly
employed by the defendant. The evidence was very strong
to shew a joint employment of the father and son. It
might be true that they were not, strictly speaking, partners.
MICHAELMAS TERM« X GEO. IV*
lod yet they might be jointly employed by the defeDclant;
and if they were so, no private arrangement made between
themselves could alter the nature and effect of that em-
ployment. That employment formed the contract between
the parties, and the son was as much a party to it as the
father: the fact that they were not jointly interested in the
profits made no difference, if they were jointly employed
to do the business. The defendant addressed letters to
the two as partners ; he received letters representing them
u partners ; he never had any reason to doubt that they
were partners. It is clear that the two would have been
jointly liable to the defendant in an action for negligence,
and that shews that the employment must have been joint.
This case is not like that of partners in a mercantile esta-
blishment.
Lord Tbntebden, C. J.— I think the question left to
the jury was the right one, and that if they believed the
son, the plaintiff was entitled to a verdict. If the son
spoke truth, there was no partnership between him and the
plaintiff. The son, by permitting himself to be represented
as a partner with his father, may have rendered himself
jointly liable with his father in an action for negligence ;
but it by no means follows from thence that he was bound
to sue jointly with his father, when he claimed no interest
as a partner, and declared that in fact he was not one.
LiTTLEDALE, J., Concurred.
PabkE) J. — The person with whom a contract is actually
made, may sue upon it without joining others with whom
it is apparently made. They may be liable, as partners, to
dl the responsibility attached to persons holding themselves
out in that character (a) ; but they are not bound to join in
an action from which they seek no benefit, and from which
they declare that they are not entitled to receive «ny.
(«) S. P. Guidon v. Eofaon, 2 Cnmpb. N. P. C. 30^
78 CASES IN THE KING's BENCH/
1829. There was no evidence in this case to shew that the son
was actually employed by the defendant* The son proved
that he was not an actual partner; and although he may
have appeared to the defendant to be a partner^ unless he
was a party to the contract for a breach of which the action
was brought, he was not bound to join in that action (a).
There was no evidence to shew that he was a party to that
contract.
Rule refused (A).
(a) Ace. Teed v. Elworihy, 14 (b) See Goa> <m Partnership,
East, S34. 125^130, 3d ed.
Davies and others t?. The King (in error).
An indictment 1 HIS was an indictment for poaching. The first three
!j.and"ot£, ^^"^^* ^^""^ founded on the statute 57 Geo. 3, c. 90, which
on, &c. at,&c. proved to have been repealed before the alleged offence
of three toge- ^^^ committed; they were, therefore, abandoned. The
ther, did by fourth count, the only one now relied on, stated, " that
night unlaw- t^. , . \«ir j
fully enter di- Davtes and others, (nannng them,) with force and arms, on
and were ^'a«» the 17th day of December, in the year aforesaid, at the
and therein the parish of Whitegate, in the county of Chester, being to the
armed wfth number of three or more persons together, did, by night,
guns, for the unlawfully enter divers closes and inclosed lands there
stroking game, situate, and being in the occupation of the said JS. C, and
does not suffi- ^g,.g ^jj^^ g,jj there in the said closes and lands, armed
ciently allege «. •
that the de- With guns and other offensive weapons, for the purpose of
l^nMi'm^ihe ^^^^ ^^^ *^^'^® taking and destroying game, against the
closes, armed, form of the statute." At the trial before Jervis, J., at the
of destroyi^ ^^^^ Spring Assizes for Chester, the defendants were con-
game, victed upon this count, and sentenced to fourteen years'
transportation. A writ of error was afterwards brought,
which now came on for argument.
«7. Jervis, for the plaintiffs in error. The fourth count
is bad in various particulars. The offence charged being
MICHAELMAS TERM, X GEO. lV« 79
one created by statute, all the particular circumstances 18^9.
giveD to define the offence should be distinctly stated, and
the case should be brought within the statute by express
words: 2Ha/e,P.C.170; StaundJ. 139, h.\ Foster,C.L.423.
The 9 Geo, 4, c. 69f s. 9* describes the offence as being,
aoy persons to the number of three or more together by
night unlawfully entering or being on any land^ open or
iDclosed, for the purpose of taking or destroying game, any
of such persons being armed; aud s, 12 declares^ that for
the purposes of that act the night shall be considered to
commence at the expiration of the first hour after sunset,
and to conclude at the beginning of the last hour before
sunrise. Therefore, first, it should have been stated at
what hour between sunset and sunrise the defendants were
in the closes, in order to shew clearly that they were there
by night within the meaning of the act of parliament. That
was the ancient rule with respect to indictments for bur-
glary, although it may have been somewhat deviated from
in modem practice. In 2 Hale, 179» it is said, " Where
the time of the day is material to ascertain the nature of
the offence, it must be expressed in the indictment; as, in
an indictment for burglary, it ought to say, ' tali die, circa
horam decimam in nocte ejusdem diei, felonic6 et burglari*
ter fregit;' but, according to some opinions, ' burglariter'
carries a sufficient expression that it was done in the
night.'' And in Waddingions case {a) it was held that in an
indictment for burglary, either at common law or upon 12
Ann, St. I, c. 7, (repealed, but re-enacted by 7 & 8 Geo. 4, c.
29), it was necessary to lay the crime to have been committed
in the night, and at about such and such an hour, though the
evidence need not strictly correspond with the latter allega-
tion; but that an indictment making no mention of the
hour would be insufficient for burglary, though it would
hold for the larceny. Secondly, there is no allegation that
the defendants were unlawfully in the closes for the pur-
pose of destroying game, it is only stated that they unlaw-
(fl) 2 East, P. C. 513.
80 CASES JK THE KING's BENCH,
18S9. fully entered the closes. The intent is not coapled with
their unlawfully being there. The entry might be unlaw-
ful from the means by which it was effected, and jet
the defendants, when there* might be in the pursuit of some
lawful occupation. Thirdly, it is not alleged that the de-
fendants were in the closes together to the number of
three: it is merely stated that they entered the closes
together to the number of three. In this the main object
of the statute, namely, to prevent preconcerted resistance
to apprehension* is lost sight of. Here no unity of purpose
is alleged ; the statement is consistent with the supposition
that the defendants entered together, and separated before
the intent charged was contemplated by either of them.
Fourthly, there is no description of the closes; the defend-
ants are merely charged with having entered '' divers closes
and inclosed lands.'' That is not a sufficient averment;
the indictment ought in some way or other to particularise
the place, because the defendant is entitled to know to what
specific place the evidence is to be directed : Ridley^s
case (a). Lastly, the allegation, that the defendants were
armed, is mbplaced. The ofience described in the statute
is, the being in the close with intent to destroy game, being
armed ; the offence described in the indictment is, the being
in the close, armed, with intent to destroy game : in tliis
respect the indictment follows neither the letter nor die
spirit of the statute, and is bad accordingly.
Cottiftgham, contrs^. The fourth count is good. [Lord
I'enierden, C. J. Can you support this count in respect
of the allegation that the offence was committed by night?
Does the averment that the defendants were then and there
in the said closes, necessarily imply that they were there
by night? Does it imply any more than that they were
there on the day and place aforesaid? If it mean the
latter only, the count is clearly bad.] The averment tliat
the defendants were then and there in the closes, folIoM'S
(a) R.&R.C. C.515.
£>AVI£S
MICHAELMAS TERM, X GEO. IV. 81
immediately the averment that they entered the closes by 1899.
night. The entry by night is the last antecedent, and to
that the words " then and there" must be taken to refer» ^ v!
and so taken, there is, in effect, an allegation that the de- ^**® ^i^o.
fendants were in the closes by night. The description of
the offence in this count is sufficient according to the rule
laid down by De Grey, C. J., in Rex v. Home (a), and
Lord Kenyon, C. J., in Rex v. Holland (6). The former
sajs, " The charge must contain such a description of the
crime, that the defendant may know what crime it is which
he is called upon to answer, that the jury may appear to
be warranted in their conclusion of guilty or not guilty
upoa the premises delivered to them, and that the Court
maj see such a definite crime that they may apply the
ponishment which the law prescribes :" and the latter, " It
is argued that three things ought to concur in every crimi-
nal proceeding ; first, that the party accused may be ap-
prised of the charge he is to defend ; secondly, that the
Court may know what judgment is to be pronounced
according to law; and thirdly, that posterity may know
what law is to be derived from the record. These are
general propositions to which I assent." The count now
in question should be read as one sentence, and then it
clearly chaises that the defendants committed an offence
by eotering and being by night in certain closes, armed,
with intent to destroy game ; and that is the offence de-
scribed by the statute.
Lord Tehterden, C. J. — It seems to me that the ob-
jection to which I directed Mr. CoUiugham's attention
cannot be got over. The count states that the defendants
" did by night unlawfully enter divers closes, and were
then and there in the said closes," &c. It does not state
that they '' by night did unlawfully enter, and were," &c.
If it had done so — if the wprds"by night" had been placed
at the beginning of the sentence — they might have go-
(«) Cowper, 633. (6) 5 T. R. 607.
VOL. v. G
82
1889.
CASES IN THE KINGS BENCH,
verned the whole sentence. Or, if they had been placed at
the end of the sentence, they might have referred to the
whole sentence. But here they are placed in the middle
of the sentence ; are applied to a particular branch of it ;
and cannot, therefore, be extended to that which follows.
The sentence contains two distinct branches. The firet
states that the defendants by night entered into the closes,
but does not state that they entered being armed, or for
the purpose of destroying game. The second states that
they were in the closes, armed, for the purpose of destroy-
ing game, but does not state that they were there by night.
These two branches of the sentence being distinct, there-
fore, and neither of them stating all that is necessary to
constitute the offence described in the statute, the count is
bad. Upon this ground, without entering into the other
objections that have been raised, I am of opinion that the
indictment in this case cannot be supported, and that the
judgment must be reversed.
The other judges concurred.
Judgment reversed.
A single wo-
man, set-
tled in J.,
WAS removed
from B, to C.
The order of
removal was
quashed on
appeal, but
she had been
previously
delivered of
a bastard child
in C.:— Held,
that the child
was not settled
in ji.
The King v. The Inhabitants of Martlesham.
On appeal against an order of justices for the removal of
Henry Athrol, otherwise Walford, from the parish of Play-
ford to the parish of Martlesham, both in the county of
Suffolk, the sessions confirmed the order, subject to the
opinion of this Court upon the following case : —
Sarah Athrol, single woman, being pregnant, was re*
moved by an order of justices from Playford to Stutton.
Before the sessions, she was delivered at Stutton of the
pauper, a bastard. At the sessions, Stutton appealed, and
the justices quashed the order. It was admitted on the
present appeal, that the mother, at the time of the bastard's
birth, belonged to the parish of Martlesham.
MICHAELMAS TERM, X GEO. IV.
Scarlett, A. G. and T* Clarkson, in support of the order
of sessions. Under the peculiar circumstances of this case, ^. y.
the pauper, though born illegitimate in the pariah of Stutton, v.
was not settled there, but in the parish of Martlesham, the ^J^tlesham.
place of his mother's settlement. It is a general rule, no
dottbt, that a bastard, being nuUius filius, cannot take a set-
tlement by parentage, and is settled where born \ but the
present case seems to form an exception to it* It is the
very case put by Bayley^ J. in Rex v. St. Nicholas, LeiceS'
ter{a), where he said, *' If the mother of a bastard child is
laid under constraint, and removed to a place against her
will, and is there delivered, the law says that the child shall
not be considered as settled in that place; because the
mother was not there in the character of a free agent. The
legislature presumes in such a case, that if she had been
left to herself she would have remained' in the parish in
which she was settled, and, consequently, that the burthea
ought to fall in the place in which it would have fallen in
the ordinary course of events but for her removal (6)."
Here the mother was under constraint. She was settled
at Martlesham, but was wrongfully removed to Stutton;
therefore, she must be considered as having been resident
at Mardesham at the time when the child was born. In
any view of the case it is more reasonable to consider her,
in construction of law, as residing in Martlesham, her own
parish, than in Play ford. At common law, if an illegiti-
mate child is born while tlie mother is in the custody of the
law, as where she is in the house of correction, Suckley v.
Whithorn (c), or in the county gaol. Eking v. The County of
Hereford (d), it follows the settlement of the mother.
Here, if the mother had been convicted of an offence in
Plajford, and committed to a gaol in Stutton, the child
would have been settled in Martlesham, the place of the
mother's settlement, because her residence in Stutton, being
(«) 4 D. & R. 463 ; 3 B. & C. (c) 2 Bott, S; S Bulstr. 358.
889. (<0 9 Bott, 4.
{h) 4 D. & a. 467.
g2
84 CASES IN THE KING's BENCH,
18^9. constrained, would have been deemed in law a residence in
JI^^'C^ Martlesham : and the mother's removal to Stiitton had the
The King ^ ^ . , , , . •
17. same effect, for it was made by an order of magistrates over
Maetlesham. ^j,Qnj (1,^ parish of Playford had no control, and who sent
the mother to that place in which she then appeared to
them to be legally settled. The cases of Much Walt ham
V. Peram{a) and Westbury v. Cost on {b) do not affect the
present question, because they only decide that if a woman
be delivered of an illegitimate child pending an order of
removal which is afterwards quashed, the child is not settled
in the parish in which it was born ; they do not decide that
the child is settled in the parish from which the mother
was removed, if that parish is not the place of her settle-
ment. In the first of those cases the mother's settlement
was in Much Waltham ; in the other, it does not appear
from the report whether the mother's settlement was in
Westbury or not.
W. E, Taunton, contrd. If the parish officers of Play-
ford had used due diligence they might have discovered that
the mother's settlement was in Martlesham, and have re-
moved her thither before the birth of the child ; instead of
which they wrongfully removed her to Stutton, where she
continued until the child was bom and the appeal deter-
mined. The mother's residence in Stutton therefore, being
the consequence of a wrongful removal, must, by construc-
tion of law, be considered as a residence in Playford, and
the child must be considered as having been born in Play-
ford, and, consequently, as settled there. At all events the
removal of the pauper to Martlesham is illegal, for he is
clearly not settled there, because being illegitimate he cannot
derive any settlement from his mother.
Lord Tenterden, C. J. — It is sufficient for present
purposes to say that the removal to Martlesham cannot be
supported. A bastard cannot acquire a settlement by parent-
(a) 9 Salk. 474. (b) S Salk. 532.
MICHA£LMAS TKRM, X GEO. IV. 86
age, therefore the pauper was not legally settled in Martle- 1829.
sham. The order of sessions must be quashed. ^, ^
V,
The other judges concurred. Mahtlesham.
Order of Sessions quashed.
Mason v, Wallis.
This was a rule nisi for an attachment for not performing When a cause
an award. It appeared that by a judge's order dated igth a judge's or-
JuDC, 1B22. all matters in difference in the cause were re- der, empower-
logthe arbitra-
ferred to an arbitrator, so as he should make his award in tor to enlarge
writing on or before the 1st day of July then next, or on or ghLfapp^t^
before such further or ulterior day as he should appoint in ond a judge
writing under hia hand, to be indorsed on that order, and ^n eolane^
tht Cotirt of King's Bench or a judge thereof should order* "^?* hy the
All the costs were to abide the event of the award. The aloDeisirregu-
arbitrator, by indorsement on the order dated 29th June, ^"* *?*^ *"?
' -^ . . ' aivardmaae
1822, enlarged the time until the 6th November then next, after such en*
Bj a second indorsement dated 6th November, 1822, he J^^^™®"'**
further enlarged the time until the 23d January then next.
By a third indorsement dated 2Sd January, 1823, he fur-
ther enlarged the time until the l6th April then next. The
last meeting before the arbitrator was on the 7th April,
1823. By a fourth indorsement dated l6th April, 1823,
he further enlarged the time until the 1st June then next.
No judge's order was obtained in respect of any of these
enlargements. The arbitrator made his award on the3J8t
May, 1823, ordering the defendant to pay the plaintiff 11/.
6s. 7d, in full satisfaction of all demands. The award recited
the order of reference, but did not recite any of the enlarge-
ments. The plaintiff proceeded to make the judge's order
a rule of Court, and the several indorsements were made
part of the rule. The plaintiff then taxed his costs, and
demanded of the defendant the sum awarded, and the taxed
costs ; and payment being refused, he obtained this rule for
Vk attachment.
86 CASES IN THE KING's BENCH,
1829. Barstow shewed cause. The award was not made id
due time, for the enlargements of the time were not made
in the mode prescribed by the order of reference. By the
terms of that order the arbitrator was to make his award
within a certain limited time, or such further time as he
should appoint in writing, and the Court or a judge thereof
should order. Two things, therefore, were necessary to
the validity of any enlargement of the time, first, the arbi-
trator's appointment, and secondly, a judge's order; and
one of these being wanting, the award is a nullity. In Rdd
V. Fryatt (a), where the terms of the order of reference were
the same as here, it was held that the time was duly en-
larged by the arbitrator's indorsing on the order, on the day
preceding the expiration of the original time, that he re-
quired further time, although the judge's order granting
further time was not obtained until a subsequent day. But
there a judge's order was obtained before the award was
made, and it was assumed that without such an order the
award would have been bad ; here no judge's order was
ever obtained. Lawrence v. Hodgson {b) will be relied on
by the other side, where it was held, that an objection that
the time for making an award has not been duly enlarged,
is waived by the proceeding in the reference, with a knoto^
ledge of that fact But here there is nothing to shew that
the defendant knew of the irregularity in making the en-
largements, and besides, there was one enlargement made
after all the meetings before the arbitrator had taken place.
This last fact is sufficient to shew that at the time when
the award was made the arbitrator had no authority:
George v. Lousley {c), Davis v. Vass{d), Wohlenberg v.
Lageman (e), Hallden v. Glasscock (f), and Dickins v.
Smith (g).
(a) 1 M. & S. 1. And see Good (e) 6 Taunt. 951.
V. WUks, 2 Tidd, 881. (/) 8 D. & R. 151 ; 5 B. & C.
(6) 1 Y. & J. 16. 390.
(c) 8 East, IS. (^) 8 D. fit R. 285; SB. fie C.
(</) 15 East, 97. 528.
/
MICHAELMAS TERM, X GEO. IV. 87
Hutchinson, contrd. The defendant is estopped from 18^9.
teking this objection, because his attendance before the
arbitrator after the time had been enlarged, amounted to an
admission that the enlargements were duly made, and that
the arbitrator had authority to act after an enlargement
made by himself alone; Lawrence v. Hodgson {a). The
rule of Court embodies all the enlargements, therefore the
Court will presume that when that rule was granted proper
evidence of the enlargements having been duly made was
laid before them, for the defendant has not sworn that no
judge's order was made. Against such an objection as
this the Court will presume every thing, and at least will
presume that the order of reference was not made a rule of
Court without sufficient evidence of proper enlargement ;
Dickmsv.Smiih(,b).
Batley, J. (c). — I think the objection is fatal, and that
the defendant is not estopped from taking it. Assuming
that he waived the objection by attending before the arbi-
trator, still that waiver would extend only to prior enlarge-
ments, and there was one enlargement here after all the
attendances were over. The arbitrator, therefore, had no
authority at the time when he made the award. We cannot
presume that judge's orders for enlargement were obtained
merely because the order of reference was made a rule of
Court. Indeed, the presumption is the other way, for if
such orders had been produced, the rule would have been
drawn up '' on reading'' those orders as well as the arbi-
trator's indorsements.
LiTTLEDALE, J. and Parke, J. concurred.
Rule discharged.
(«) 1 Y. & J. J 6. (c) Lord Tenterdeny C. J. was
(6) 8 D. & R. 285 ; 6 B. & C. absent from indisposition.
52H.
88 CAS£S IN THE KING's BENCH,
y,^^^^ Pease and others^ surviving Partners, v. Hirst and others.
A.fgtLve his ASSUMPSIT on a promissory note, dated 6th January,
bankers, as a 1817, whereby defendants jointly and severally promised to
advances, a pay on demand to plaintiffs and R. Harrison, or order, 300/.,
liraiid^B.^*^^ with interest. Pleas, non assumpsit, and the Statute of
jointly and Limitations. At the trial before Bai/ley, J., at the York-
promised to ^^^^^ summer assizes, 1828, the case was this: — In January,
pay on demand 1817, the plaintiffs and JR. Harrison, since deceased, car-
lo the bankers . tt , m.
or order 300/., ned on busmess m partnership as bankers at Hull. 1 he
Th*^b°^k^^^ defendant Hirst had for some years kept an account with
credited A. them as his bankers, and at that time, for the purpose of
amount^f the obtaining credit with them, he prevailed upon the other
note, and defendants to join him in making the note in question. The
yearly with ^^^^ ^^^ delivered to the bankers, who thereupon credited
interest. Up- fji^st for 300/., and debited him yearly with interest on
on a change » ^t .. 1 . • •«•
in the firm that amount. In November, J 820, two of the plaintitis
of the bankers rgji^ed from the partnership, when a balance was struck
the note umn- ^ '^'
dorsed, was, between the old firm and the new, and Hirst^s account was
count trans" transferred in the books from the old firm to the new. The
ferred to the note was at the same time delivered to the new firm, but
one time -4. was not indorsed to them. In December, 1821, Harrison
had a balance died, and the account was again transferred to the new firm
in the bankers* . / ** . , . •
hands exceed* as before. The surviving partners continued in the business
L^the^^ote ""' ^^^" *^ ^^^ ^™^ "^^^^ ^^^ ^^'^^" ^^* brought, but in the
A. paid inte- interval two new partners were admitted, upon whose ad-
note^vearly to mission Hirst^s account was again transferred, as on former
thenewnswell occasions. At one period the balance of accounts was ia
Held, first, Hirst's favour to the amount of nearly 700/., but that did
that the note, ^^^ appear to have been a cash balance. Hirst was debited
bemg a con- ' *^
tinning secu-
rity, might be enforced, notwithstanding the change in the banking firm.
Secondly, that the note not having been indorsed, the original payees (or the sarvi-
▼ors of them) were the proper persons to sue upon it.
Thirdly, that the note was not discharged by AJs having at one time in the bankers'
hands a balance exceeding its amount.
Fourthly, that payment, within six years, of interest on the note by A. took the
note out of the Statute of Limitations as to B.
MICHAELMAS TERM, X GEO. IV. 89
with interest upon the note by all the diiferent firms down 1829.
to the year 18244 and he regularly allowed the same in his
account. It was contended on the part of the other de-
fendants, first, that they being merely sureties for Hirst,
their liability had shifted with every change of the firm, and
that they were now liable only to the persons constituting
the last new firm, and not to the plaintiffs who constituted
the original firm, which had long ceased to exist: and
secondly, that as between the plaintiffs and those defendants
as sureties, there was no payment of interest within six
jears to take the case out of the statute of limitations, such
payment having within that time been made, not to the
plaintiffs who were the original payees, but to the different
persons constituting the firm at the time of such payment.
The learned judge overruled the objections, but reserved
the points, and the plaintiffs had a verdict, with liberty for
the defendants to move to enter a nonsuit. A rule nisi
having been afterwards obtained accordingly,
Scarkii, A. G., now shewed cause. First, the defend-
ants are liable to the present plaintiffs. The plaintiffs are
the surviving payees of the note, they have the legal interest
in the note, and are the persons entitled to sue upon it.
The fact that Hirst had at one time in the hands of the
bankers a balance exceeding the amount of the note, did
not operate as a discharge of the note. It did not appear
that that was a cash balance; but assuming that it was, the
bankers were not bound in law to apply it in discharge of
the note, and in fact they never did so. Nor was it intended
that they should do so; the evident intention of all parties
was, that the note should remain in the hands of the bankers
as a subsisting security for all advances which they should
from time to time make to Hirst. If Hirst had intended
that balance to have been applied in discharge of the note,
he would have specifically appropriated it to that purpose;
and, in the absence of any specific appropriation, the
bankers were entitled to apply the balance to a different
CASES IN THE KINGS BENCH,
purpose : Bosanquet v. Wray (a), Brooke v. Endtrhy (6).
Secondly, the payment of interest upon the note was suf-
ficient to take the case out of the Statute of Limitations.
To this objection the late case of Burleigh v. Stott (c) is a
complete answer; for it was there held, that a payment
of interest by il. on the joint and several note of A. and B.,
is evidence of a promise by B*, and takes the note out of
the Statute of Limitations, though JB. was a mere sure^,
and the payment was made without bis knowledge.
F. Pollock, contrsi. The note was dated in January*
1817> and was given to the persons who then constituted
the banking firm. When that firm ceased to exist, the
liability of the maker to the original payees ceased also, and
the note became the property of the successive firms to
whom it was from time to time transferred. It was so
treated both by the bankers and by Hirst* The property
in the note, therefore, is in the persons constituting the
present firm, and they are the only persons entitled to sue
upon it. Three of the defendants are mere sureties, and
all that they did was to agree, in January, 1817f to gua-
rantee to certain persons then constituting the banking
firm, the payment of 300/. advanced by that firm to Hirsi.
[Bayley, J. They do not appear on the face of the note to
be sureties.] They were such in fact, and the form of the
note cannot vary the nature of the contract* The note is
payable on demand, which in a case like this ia the same
as if it had been payable one day after date. The sureties
could not mean, by signing a note payable instanter, to
take upon themselves a responsibility extending over a period
of ten or twelve years ; and at any rate the bankers were
bound, in favour of the sureties, to apply the first available
balance in their hands belonging to Hirst in discharge of
the note : ClaytorCb case (d), Bodenham v. Purchas (e),
(a) 6 Taunt. 597 ; 2 Marsh. 31 9. (c) Ante, ii. 93 ; 8 B. & C. 36.
(6) 4 Moore, 501 ; 2 Brod. & \d) 1 Meriv. 692.
Bingh.70. (e) 3 B. fir A. 39.
MICHAELMAS TERM, X GEO. IV. 91
Simson v. Ingham (a). With respect to the Statute of i829.
limitations, the evidence furnished no answer to that plea.
As against the plaintiffs the statute must be taken to run
from the date of the note« it being payable instanter; and
payment of interest by Hirst within the last six years to
other persons, is no acknowledgment of a debt due to the
plainti£& from the three defendants, who are mere sureties.
The payments of interest by Hirst were made generally on
account of his fluctuating debt owing to the bankers, and
were made, not to the plaintiff's, but to the persons who
from time to time constituted the banking firm.
Bayley, J. (ft). — I am of opinion that the verdict found
for the plaintiff? is right,, and ought not to be disturbed.
The action is brought upon a promissory note, and the first
objection is, that three of the four defendants having joined
in that note as sureties, to a banking firm then consisting
of the plaintiffs and one Harrison since deceased, their
liability has ceased by the subsequent change in the firm.
Assuming that those defendants are. mere sureties, the
question still remains whether they have restricted their
liabiiity to a limited time and to particular parties. A
swety, party to a bond or note, may confine his responsi-
bility to a particular period and particular persons; but a
surety bond or note may be so framed as to comprehend
ao unlimited time, and future as well as present parties.
In the present case no restriction either as to time or parties
is apparent upon the face of the note* None of the makers
have placed themselves in the place of sureties ; on the
contrary^ the form of the note shews them all to be prin-
cipals, and not to have confined their liability to the then
existing firm, for the note is made payable to the plaintiffs,
or order. This shews clearly that the note was intended
by all parties to subsist from time to time as an available
security to such persons as should constitute the firm, and
(«) 5 D. & R. S49; 3 B. & C. 65.
(^) Lord Tenterdetif C. J., was absent, from indisposition.
92 CASES IN THE KING's BENCH,
1829. supplies an answer to this objection. The next objection
is« that the note was discharged by a balance belonging to
Hirst, which at one time came into the hands of the
bankers, because^ it is argued, the plaintiffs are bound to
consider the debt owing upon the note as liquidated by
that balance. Now it does not appear that that was a cash
balance ; but if it had been, the bankers would not have
been bound to apply it in discharge of the note, because
Hirsi never specifically appropriated it to that purpose.
Besides, it would have been directly contrary to the inten-
tion with which the note was given, that it should be dis-
charged by the first money belonging to Hirst which came
to the hands of the bankers, for the object was, that Hirst
should from time to time have advances from the bankers,
and that the bankers should hold the note as a subsisting
security for those advances. If the parties who were in
substance, though not in form, sureties, had called upon
the bankers to apply that balance in discharge of the note,
they would, perhaps, have been bound so to apply it;
but no such call was ever made. A third ground of objec-
tion is, that the action is not maintainable by the present
plaintiffs. It was in evidence that several changes in the
firm took place, and that upon each change the note was
transferred in account from the old firm to the new, and
that Hirst from time to time paid interest to the successive
firms, as upon a debt owing to the persons successively
constituting the firm. It is argued that the property in the
note, both in point of law and by the understanding of all
parties, had passed to the last new firm, and that the
persons constituting that firm were the only persons entitled
tp sue. It seems to me, however, that the action was
properly brought in the names of the partners to whom the
note was given. They were the original payees; the legal
interest in the note originally vested in them; and it was
never divested out of them. The note was made payable
to them or order, and if they had indorsed it to the new
firms, the argument on this point would have been good.
MICHAELMAS TERM, X GEO. IV.
and the action must have been brought in the names of the
indorsees; but not having been so indorsed, the action
could only be brought in the names of the original payees,
for the benefit of the parties interested. The last objection
is founded upon the plea of the Statute of Limitations, in
respect of which it is said, that as to the three defendants^
who are mere sureties, there was no acknowledgment of
the debt within six years. But it was proved that interest
upon the debt had been paid within that time by one of
the four persons jointly liable; and it is clear upon the
authority of the case cited for the plaintiffs (a), and other
cases, that that payment operates as an acknowledgment of
the debt by all the parties, and takes the case out of the
statute as to all. Upon these grounds I am of opinion
-that the verdict found for the plaintiffs is right, and that
the role for entering a nonsuit ought to be discharged.
LiTTLEDALE, J. — I am entirely of the same opinion.
It is clear that payment of interest by Hirsi, one of the
jcMQt promissors, takes the case out of the Statute of Limi-
tations as to all. All the defendants, therefore, are liable;
and thej are liable to the present plaintiffs. The firm,
indeed, was changed from time to time, and the securities
beloogiog to the old firm were transferred to the new; but
still the persons entitled to the legal interest in those secu-
rities miist sue upon them, and those persons, as regards
the note in question, are the plaintiffs. Suppose a bond
instead of a note had been given, as a security for advances,
to the firm as originally composed, as well as to any persons
who might afterwards be added to it ; the proper persons
to sue would be the surviving obligees. It is insisted that
the note must be considered as discharged, by the circum-
stance of the bankers having at one time struck a balance
which was in favour of Hirst, Now it was plainly not the
intention of the parties to consider the note as satisfied as
(«) Burleigh v. Stott, anle, ii. 93; 8 B. & C. S6. And see the cases
there cited.
94
iee9.
CASES IN THE K^ING S BENCH,
80on as there should be a balance of equal amount in the
hands of the bankers; the intention was, that the note
should be a continuing security for advances to be made
from time to time. It is made payable on demand, and to
order. There was, therefore, no legal obligation on the
bankers to appropriate that balance to the discharge of the
note; and there having been no appropriation by the debtor,
I think the debt cannot be considered as discharged.
Rule discharged (a),
(a) Parke, J., having been of counsel in the cause, delivered no opinion.
An indenture
of apprentice-
ship to which
pansh officers
are parties, is
valid if allowed
by two justices
under their
hands only,
though ex-
pense be incur-
red, but not
clandettvnely,
by the parish
funds, under
56 Geo, 3,
0.139, ss. 1
to 10.
S. 11 of that
act, which
requires an
allowance by
two justices
under their
hands and
seals, applies
only to cases
where expense
is incurred by
the parish
funds, the pa-
rish officers not
The King v. The Inhabitants of St. Paul, Exeteb. '
Two justices, by their order, removed Jane Bishop, single
woman, from the parish of St. Paul, in the city and county
of Exeter, to the parish of Tedbum St. Mary, in the county
of Devon ; and the sessions, on appeal, quashed the order^
subject to the opinion of this Court upon the following
case : —
The pauper, Jane Bishop, was, in the year 1818, bound
an apprentice by the parish officers of Tedburn St. Mary to
one H. Belworthy. The indenture by which she was bouud
was made in pursuance of a previous order of two justices,
to which reference was made by its date, and was duly eze«
cuted by the said parish officers and by the master, ^n
allowance of the same was written at the foot thereof, which
was signed by two justices, but was not under seal. On
occasion of this binding an expense of \7s, was incurred
by the public parochial funds of the parish of St. Mary,
namely, 75. as the costs of preparing the indenture, and
10s. which were given to the master with the pauper. Xhe
pauper resided in the parish of St. Mary under this inden-
ture for about four years,
being parties to the indenture.
MICHAELMAS TERM, X GEO. IV.
Cratoder, in support of the order of sessions. The in-
denture of apprenticeship in this case was one by reason of j^^ ^^o
which expense was incurred by the public parochial funds, J.
and which ought to have been approved of by two justices Exeter.'
tmder their hands and seals, within the express words of
the statute 56 Geo. 3, c. 139i s. 11. Its approval by two
justices was not under their seals, for which defect the
sessions quashed the order of removal, as they were bound
to do. The section referred to recites, that the salutary
provisions enacted by the 43d of Elizabeth were frequently
evtded in the binding out of poor children, and the premium
of apprenticeship, or a part thereof, was clandestinely pro-
vided by parish officers, who were thus enabled to bind
out such poor children, without the sanction of justices;
and enacts, ** that no indenture of apprenticeship, by reason
of which any expense whatever shall at any time be incur-
red by the public parochial funds, shall be valid and eifec-
tual, unless approved of by two justices, under their hands
snd seals, according to the provisions of the said act (43
EHzabeth) and of this act." The words of the enactment
are undoubtedly more extensive in their import than those
of the recital, and they were considered to be so, and full
operation was given to them, by Bay ley, J. in Rex v. Mat-
tishall (a). It is true that the first ten sections of this sta-
tute apply to parish indentures, and require only that the
allowance of those indentures shall be signed by two justices.
But that cannot restrain the operation of additional words
in the eleventh section, and that in express terms requires
that every indenture by reason of which expense is incurred
by the public parochial funds, shall be allowed by two jus-
tices under their hands and seals. The object of the eleventh
section was to place ail parish bindings under the superin-
tendence and direction of two justices. There is nothing
contradictory between that and any of the preceding
dauses ; the one is cumulative upon, not inconsistent with
the others. But independently of this, the words of the
(a) Ante, iii. 386; 8B.&C.735.
96
1829.
The Kino
St. PAU^
Exeter.
CASES IN THE KINO S BENCH,
eleventh section are plain, express and positive^ and cannot
be restricted in their fair operation^ Rex v. Stoke Da--
marel{a); where it was held that an indenture, in respect
of which expense was incurred by the parish, must be al-
lowed by two justices under their hands and seals, though
the parish officers were not parties to it: and where Bay-
ley, J., speaking of this section, said, " I do not know how
to get over the words of this clause of the act of parlia-
ment; they are plain and unequivocal: and I shrink from
adopting a rule of construction with respect to them, which
would have the effect of deciding that the legislature did
not mean that which they have expressed" (6). IParke, J.
In that case the binding was one clearly within the recital
of the eleventh section ; Rex v. Maitishall (c) only shews
that the enactment extends to cases ejusdem generis with
those mentioned in the recital : in the latter case the parish
officers did not provide part of the premium, but furnished
money to purchase clothes for the apprentice.] Cases may
come within the enactment which are not mentioned in the
recital : the argument on the other side must be that the
enactment is controlled and limited by the recital.
Coleridge^ contr^. The cases which have been cited do
not apply to the present, because there the parish officers
were not parties to the indenture, here they are. This is
a parish indenture, and the question is, whether such an
indenture must be allowed under seal by 56 Geo. 3, c, 139>
s. 1 1 ; a question certainly not decided in either of the cases
referred to. The mischief intended to be remedied by that
statute was the improper apprenticing of poor children, and
the remedy suggested is the securing in all cases the con-
trol of two justices. The mischief extended to two cla.sse8
of apprentices, first, parish apprentices, or children entirely
and exclusively bound out by parish officers ; and, secondly^
apprentices really bound out, wholly or in part, by parish
(a) Ante, i. 458; 7 B. & C. 563. (c) Ante, iii. S86 ; 8 B. & C. 73S.
{b) Ante,'i. 466,
The KiMG
MICHAELMAS T£KM» X GEO. IV.
officers, but tiaminally by their parents or themselves, so as
to evade the provisions of the statute of' Elizabeth. To the
first of these classes the first ten sections of the present v,
statute apply; to the second, the eleventh section. The Exeter!'
first and second sections direct in what manner parish ap*
prentices shall be bound, and one of the directions is that
the allowance of the indenture shall be signed by two jus-
tices. The fifth section provides that no settlement shall
be gained, unless the allowance of the indenture shall be
signed as before directed. The sixth section imposes a
penalty on the parish officers and the master, whenever a
parish apprentice is bound without the allowance before
directed. Looking at these two sections together, it is
obvious that the same default is made the ground of avoid-
ing the settlement on the one hand, and imposing the
penalty on the other^ namely, the binding the apprentice
without an allowance signed by two justices. But looking
at the fifth section alone the inference clearly is, that where
the directions there referred to are complied with, a settle-
ment will be gained, that is, where the allowance is signed,
and signed, only, by two justices. [Bayley, J. In this case
expense has been incurred by the parish ; does not that
bring it within the operation of the eleventh section?] It
is submitted that it does not, because this is strictly a parish
binding, to which that section does not apply. In Rex vj
Bawburgh(a), which was the case of a parish binding, and
where the indenture was held to be invalid under the first
and fifth sections of the statute, Bayley, J. is reported to
have said, " I doubt whether the eleventh section applies
to such a case as the present, or whether it applies only to
such cases where the binding is by the parents, and not by
the overseers" (6). Indeed that section seems to have been
introduced for the very purpose of meeting those cases in
which the parish officers are not the parties binding; and here
they are the parties binding. [Litiledale, J. Still there has
been expense incurred by the parochial funds.] But not
(fl) 3 D. & R. 338; 2 B. & C. 222. (ft) 3 B. & C. 225.
VOL. V. H
98 CA8ES IN THE KINg's BENCH,
18^9. clandestinely^ The recital q{ the eleventh section speaks of
J^I^^J^^^ *-' premiums clandestinely provided by parish o65cers." The
^. enactn^ent speaks of '* expense incurred by the public pare*
•^. Paul, ^j|,ij|| funds." Construing both together, and at least the
recital is td be considered as the key for the proper con-
struction of the enactment, the latter must be taken to
mean " ei^pense clandestinely incurred." Now the sessions
have not found that the money was advanced clandestinely
in this case, and the Court will not presume fraud.
The case was argued at the sittings in Banc after the
last term, when the Court took time for consideration^
Judgment was now delivered by
Bayley, J., who, after recapitulating the £scts of the
case, proceeded to the following effect : — It was insisted
that the fact of expense having been incurred by tfae public
parochial funds brought the case within the operation of
the eleventh section of the statute, the 56 Geo, 3, c. 139*
Undoubtedly, if that section extends to cases where the
binding appears, upon the face of the indenture, to be by
the parish officers, the indentui^ now in question would be
void for want of the seals of the justices. If, on the other
hand, it applies only to cases where, the parish officers are
not parties to the indenture, but where some part of the
expense attendant upon the binding is paid out of the
public parochial funds, the converse would be the result.
After a careful consideration of the statute, and conferring
with my Lord Tenierden, vfho concurs in the judgment I
am about to pronounce, we are of opinion that the first ten
sections are confined to cases where the parish officers are
parties to the indenture of apprenticeship, and that the
eleventh section is confined to cases where the parish
officers are not parties to the indenture, but where expense
is incurred by the public parochial funds. That this ia the
true meaning of the eleventh section appears to us* to be
evident from the use of the word '* clandestinely" in the
preamble of that section. The mischief recited in that
MKHAZLAAS term, X GEO. 1 VX 99
preamble is, that the premium of apprenticeship, or a part ^S^-
thereof, was clandestinely provided by parish officers, who r^^ ^iiYiG
were thus enabled to bind out poor children without the ' v. ^
sancdon of justices; and, for remedying that mischief, the ExbterT
enacting part of the clause provides, that no indenture, by
reason of which any expense shall be incurred by the public
parochial funds, shall be valid, unless approved of by twp
justices under their hands and seals. The first ten sections,
which evidently apply only to bindings by parish officers,
require diat the indenture shall be approved of by two
JQStices, under their hands only* Parish officers cannot be
said to provide the premium clandestinely where they are
parties to the indenture; therefore, the eleventh section
can apply only to cases where they are not parties to the
indenture, but where they do provide the premium, or i
some portion of it. In this case the parish officers were
parties to the indenture, which, therefore, is one regulated
by tfae first ten sections of the statute ; and the allowance
of it being signed, though not sealed, by two justices, it is
a vafa'd indenture, and the pauper gained a settlement by
service under it in the parish of Saint Mary. The order
o/ sessions must consequently be quashed.
Order of Sessions quashed.
h2
100 CASES IN THE KING's BENCH,
^'^^'^ The King v. The Oxford Canal Company.
ciniuct^S? ^^ * ""^^ ™*^^ ^^^ ^^^ relief of the poor of the parish of
proprietors Foleshill, in the county of the city of Coventry, the Oxford
ed to uke a Canal Company were rated for their messuages, buildings,
mileap ton- stop-land, towing-path, and that part of the canal lying
and other within the said parish^ and for the tolls, duties, and ton-
p>ods, except- u^ges arising therefrom, estimated as of the annual value
two miles, in of 9,0001., at 100/. On appeal, the sessions confirmed the
whidb the pro- ^^^' subject to the opinion of this Court upon the follow-
prietorsofthe ing case: —
Canal were ^J ^ G^o. 3, c. 70, the appellants were empowered to
authorised to make and maintain a navigable canal from the Coventry
take all dues ...
payable under Canal Navigation to the city of Oxford. The appellants
uhat act "J^* are the owners and occupiers of the canal which has been
from the made by virtue of this act. The length of the canal is as
Oxford Canal ^ n
^ithinthose follows:—
two miles. From the northern extremity at Longford, where it joins
act the pro- ^^^ Coventry Canal, to Braunston, the point of union with
W^^^c^ ^\ ^^^ Grand Junction Canal, is thirty-four miles seven eighths,
were authoris- From Braunston to Napton, the point of union with the
di^pa^aWe Warwick and Napton Canal, is seven miles,
under the From Napton to Oxford, the southern extremity, is forty-
Caned act, ^^^^ miles one eighth; and the total length of the Oxford
for all goods, Canal is ninety-one miles,
except coals,
carried upon
the Oxford Canal, and afterwards upon the Coventry Canal, within three miles and a
half of the point of junction of the two canals. That point of junction was in parish
F., which contained one mile nine hundred and sixt^-tnree yards of the Oxford Canal,
part of the two miles before mentioned, and two miles and a quarter of the Corentiy
Canal, part of tfae three miles and a half before mentioned.
By the Grand Junction Canal act, reciting that that canal might be injurious to the
proprietors of the Oxford Canal, and that compensation should be made to them for
such injury, they were authorised to take 2<. 9d, per ton for all coals passing from the
Oxford Canal into the Grand Junction Canal, without regard to tlie distance they
might pass on the Oxford Canal; and 4s. Ad. per ton for all other goods passing from
any canal into the Oxford Canal, and from thence into the Grand Junction Canal, or
vice yersft, without regard to the distance they might pass on the Oxford Canal:—
Held, that the proprietors of the Oxford Canal were ratable in parish F. for all the
dues received by them, in the proportion in which they were severall^y earned in that
parish, but that, in 6xing the rate, all the expenses incurred in maintaining the part of
the canal situate in that parish must be first deducted from the total amount of dues
received.
H^ICRAELMAS TERM, X GEO. IV. 101
B; the said Oxford Canal act the company are empow- 1829.
ered to levy a mile tonnage for coals and other merchandises xh K no
carried upon this canal, which they levy accordingly, except^ v.
xng only that they are not to take a tonnage upon coals for a Cana^l^
distance of' two miles, measured from Longford towards Compast.
Braunstofi, respecting which it is enacted as follows : —
" Provided nevertheless, and be it further enacted, that it
diall be lawful for the company of proprietors of the
Coventry Canal Navigation, their successors and assigns,
iirom time to time and at all times hereafter, to take and
receive all the rates and duties payable by virtue of this
act for all coals that shall be carried or conveyed from any
part or parts of the said intended cut or canal, within two
miles from the junction thereof with the Coventry Canal at
Longford aforesaid; which said rates and duties so to be
collected and received, shall be and are hereby vested in
the said company of proprietors, their successors and
assigns, and shall and may be collected and levied by them
in such manner, and with such and the like remedies and
[x>wers for collecting and levying thereof, as any rates or
duties granted by this act can or may be collected or levied,
and the same, when received, shall be applied and disposed
of to and for the same uses, intents and purposes, as the
several rates and duties granted by an act of 8 Geo. 3, enti-
tled, 'An Act for making and maintaining a Navigable
Canal from the City of Coventry, to communicate upon
Tradley Heath, in the County of Stafford, with a Canal
now making between the Rivers Trent and Mersey,' are
thereby directed to be applied and disposed of, and to no
other use or purpose whatsoever; and that it shall be
lawfttl for the said company of proprietors of the navigation
intended to be made by virtue of this act, to take all the
rates and duties payable by the said recited act, for all
goods, wares and merchandises, except coals, which shall
be navigated, carried or conveyed upon any part or parts of
the said canal intended to be made by virtue of this act,
and afterwards upon the said Coventry Canal, within three
IIQ2 CASES IK THE KIXG's B£MCH»
18S9. .JDiles and a half of the junction of the two canals at Long
TheKiira ^^^* towards Coventry; which said last-mentioned rates
V. .and duties so to be collected and received, shall be and are
Canal^ hereby vested in the said company of proprietors of the
CovPAWY. Oxford Canal Navigation, their successors and assigns,
and shall and may be collected and levied by them in sach
manner, and with the like remedies and powers for collect-
ing and levying thereof, as any of the rates and duties
directed to be paid by the said recited act can or may be
collected and levied, and the same, when received, shall be
applied and disposed of to and for the several uses, intei^
and purposes, as the several duties granted by this act are
directed to be applied and disposed of, and to and for no
other use or purpose whatsoever; any thing contained in
the said recited act or this act to the contrary notwith-
standing/'
The said recited act of 8 Geo. 3, imposes a mile tonnage
pn coals and all other merchandises passing along the
Coventry Canal.
The point of junction of the Oxford and Coventry Canals
is in the respondent parish, which parish contains one mile
nine hundred and sixty-three yards of the Oxford Canal,
being part of the two miles above mentioned, and also two
miles and a quarter of the Coventry Canal, being part of
the three miles and a half above mentioned. The com-
pany of proprietors of the Oxford Canal are neither owners
nor occupiers of any part of the Coventry Catial.
The Oxford Canal Company are further entitled to certain
compensation tonnages, by virtue of the Grand Junction
Canal act/ 33 Geo. 3, c. 80, which enacts as follows : —
** And whereas it being apprehended that the making of
the said intended canal will be injurious to the compamy of
proprietors of the Oxford Canal Navigation; it ia agreed
that the compensation hereinafter mentioned shall be made
to them as an indemnification against such itguty : Be it
therefore enacted, that instead of the tolls, rates and duties
which would have been payable to the company of proprte-»
MICHAELMAS T£RM^ X G£0. IV. 108
tors of the tmid Oxford Canal Navigation, by virtue of I8i9.
certun acta of 9« \5, and 26 Geo. 3, for making and main- .^iT^^T^
^ The Kino
Umuig the aaid Oxford Canal Navigation, or any of them, v.
for or in respect of the coals, goods, and other things here- c^al
iotfter mentioned and made chargeable with certain rates Compast.
to the company of proprietors of the said Oxford Canal
Nav^atiott^ in case no alteration had by this act been made
IB the tbUs, rates and doties payable to them, it shall be
lawful for the company of proprietors of the said Oxford
Caaal Navigation to take for their own proper use and
behoof the respective rates hereinafter mentioned ; that is
l9 say» for ail coats that shall pass from the said Oxford
Canal into or upon the said intended canal, the snm of
2$. 9d. a ton, and so in proportion for a less quantity than
a ton, without any regard to the distance the same shall
pias on the said Oxford Canal ; and for all other goods,
wares, merchandises and things which shall pass from any
navigable canal into or upon the said Oxford Canal, and
from thence into or upon the said intended canal, or from
the said intended canal into or upon the said Oxford Canal,
aod from thence into or upon any other navigable canal,
except lime and limestone, and also except all such articles
and things as are at present exempt from the payment of
any tolls, rates or duties to the company of proprietors of
the said Oxford Canal Navigation, the sum of 4s. 4d. a ton,
and so in proportion for a less quantity than a ton, without
any regard to the distance the same shall pass upon the
said Oxford Canal."
The Oxford Canal Company are further entitled to tolls,
by the folbwii^ clauses of the Warwick and Napton Canal
act, 34 Geo* 5, c. 38 : — " And whereas the making the said
intended canal may be injurious to the company of pro-
prietors of the Oxford Canal Navigation, unless provision
be made for preventing any such injury : Be it therefore
enacted, that it shall be lawful for the company of proprie-
tors of the said Oxford Canal Navigation to ask, demand,
take and receive, to and for their own proper use, over and
The Kino
V.
Oxford
Canal
COMPANT.
CASES IN THE KINGS BENCH/
above all the rates of tonnage or duties which they are or
shall be entitled to for or in respect of any coals, goods
and merchandises, or other things navigated or passing in
or upon any part of the said O&ford Canal, by virtue of any
acts of parliament now in force, except as hereinafter is
excepted, the rates or duties hereinafter mentioned; that
is to say, for all coals which shall be navigated out of the
said intended canal into the said Oxford Canal, the sum of
2s. 9d, a ton, and so in proportion for a less quantity than
a ton; for all goods, wares, merchandises and things (except
lime and limestone and manure) which shall be navigated
out of the said intended canal into the said Oxford Canal,
or out of the said Oxford Canal into the said intended canal,
(except such as shall be bon& fide navigated from the
Coventry Canal,) or from any intermediate place between
the said Coventry Canal and the said intended canal, into
the said intended canal, the sum of 4s. 4d. a ton, and so in
proportion for a less quantity than a ton."
. The Oxford Canal Company are rated in the parish of
Foleshill in the aforesaid sum of 2000/., in manner follow-
ing:—
£. i.d.
1. For tlie mile tonnage payable to the Oxford Canal Com-
pany for merchandises (not being coals) passing along the
Oxford Canal, in the parish of Foleshill, for as far as such
merchandises pass in that parish 450 0 0
2. For the mile tonnage payable to the Oxford Canal Com-
pany in respect of tolls collected on the Coventry Canal,
in the proportion of one mile nine hundred and sixty-
three yards to two miles 6000
3. For such a proportion of the compensation tonnage pay-
able to the Oxford Canal Company under the Grand
Junction Canal act, for merchandises (not being coals)
. passing from the Coventry Canal along the Oxford Canal
into the Grand Junction Canal, and vice versd, and con-
sequently through the parish of Foleshill, as one mile nine
hundred and sixty-three yards bears to thirty-four miles
and seven eighths 900 0 O
Carried forward .... 1410 0 O
The KiHG
V.
MICHAELMAS T£RM^ X GEO. IV.
Brought forward . .. . £1410 0 0
4. For the same proportioD of the compensation tonnage for
coals passing along the same portion of the Oxford Canal
from the Coventry Canal into the Grand Junction Canal, 1090 0 0 Oxford
Canal
2500 0 0 COMPAMY.
From this sum of 2500/. a deductiob of 20/. per cent, has
been made, as the reasonable profit of a supposed lessee, 500 0 0
£2000 0 0
Wbich leaves the sum of £000/. as the supposed rental of
the above-mentioned tolls, and upon which the rate has
been made. The mile tonnage payable to the Coventry
Canal Company, for coals passing along the Oxford Canal,
in the parish of Foleshill, is 350/. The parochial rates on
landed property in Foleshill, payable by the occupiers, are
all shillings in the pound on the amount of their actual
rents. The sum which the Oxford Canal Company receive
vpon all their compensation tonnages, taken in the propor-
tion of one mile nine hundred and sixty-three yards to
ninetjH>ne miles, is 1000/.; the expense of collecting the
tolls for which the company are assessed is 6/. per cent.
The annual repairs of the canal in the parish of Foleshill
amount to 20L The annual repairs of the whole canal
amount to 4000/. The expense of works, (such works not
heing situated at Foleshill,) by which that part of the canal
which lies in the parish of Foleshill is supplied with water,
amounts to 100/. The works by which that part of the
canal which lies in the parish of Foleshill is supplied with
water, supply the canal for a distance of forty miles. The
total amount of the tolls collected on the canal is 50,000/.
The tolls payable throughout the said distance of forty
miles, estimated on the principle of the assessment in the
parish of Foleshill, amount to 95,000/. The questions for
the consideration of this Court are.
First, For what tolls, and for what proportions of such
tolls, are the Oxford Canal Company ratable in the respon-
dent parish ?
Secondly, To what deduction are the Company entitled.
106
lSft9.
The KiMG
Oxford
Caital
(kMfPAHY.
CAS£S IN THE KING S BENCH,
to place them on an equal footing with the other occupiers
of land in the same parish ?
The rate is to be amended accordingly.
Amos, in support of the rate, and of the order of sessions.
First, the Oxford Canal Company are ratable ** for the mUe
tonnage payable to them for merchandises (not being coals)
passing along the Oxford Canal, in the parish of Foleshill,
forjas far as such merchandises pass in that parish.'' This
is clear upon the principle laid down in Res v. Milion (a),
and. recognised in subsequent cases (6), aamely, tkitf eveiy
piuriah through which a canal pattes is entitled to reeetve
from th^ canal company, oat ot Am general fiind arising
from the tolls, a sum proportionate to that whick the land
used by the company in that parish produces. Secondly,
the Oxford Canal Company are ratable ** for the mile too^
nage payable to them in respect of tolls collected on the
Coventry Canal, in the proportion of one mile nine hundred
and sixty-three yards to two miles." The Oxford Canal
^ct vests in the Oxford Canal Company certain tolls
earned on the Coventry Canal in respect of all mercfaan*
diaea. (except coals) for the distance of three miles and
a half on the Coventry Canal. The same act vests in the
Coventry Canal Company the tolls for coals passing on the
Oxford Canal for a di&tance of two miles measured from
Longford, the point of junction, towards Braunston. In
effect, the Oxford Canal Company give to the Coventry
Canal Company two miles of their canal, part of which is
in the parish of Foleshill, and receive from them the tolls
earned on three miles and a half of the Coventry Canal.
But the profit is produced by the two miles of the Oxford
Canal, part of which is in the parish of Foleshill, and is,
consequently, ratable in that parish. Thirdly, the Oxford
Canal Company are ratable *' for such a proportion of the
(fl)-3B.&A. 112.
(b) See Rex t. Kingmmford,
ante, i. 80; 7 B. & C. 336; ReJi v.
Lower MUion, ante, iv. 711 ; 9 B.
& C. 810; and the various autlKH
riti^ thereili referred to.
The Kma
HICHA£LMA8 TERM, X GEO. IV. 107
compensation tonnage payable to them uoder the Grand 18S9.
JuQctioa Canal Act, for merchandises (not being coals)
passing from the Cov^itry Canal along the Oxfiird Canal Jf
ifito the Grand Junction Canal, and vice versft, and conse- q'^^^
quendy through the pariah of Foleshill, as one mile nine Couvaxys
kandred and aixty*three yards bears to thirty-four miles and
seven-eigktha.'' It is presumed that this proposition will
not be disputed, for it is founded upon the decision of this
Court in Rex v. Tile Oxford Canal Company {a), which is
expressly in point* Upon the. same principle it will follow
that, fourthly, the Oxford Canal Company are ratable ''for
die same proportion of the compensation tonnage for coab
pissing along the same portion of the Oxford Canal from
the Coventry Canal into the Grand Junction Canal."
There can be no distinction between the compensation
tonnage for coals and that given for other merchandises ;
or, if there is, it lies upon the other side to shew it : be^
cause, according to the decision in Rex v. The Oxford
Canal Company, the compensation tonnage in this case is
divisible among the parishes used by the Grand Junction
Canal Company in earning that tonnage. The Grand
Junction Canal Company, upon the supposition that they
might have occasion to use the Oxford Canal, gave the
Oxford Canal Company a compensation for that use in the
shape of a toll of 2s. 9d, on coals, and 4s, 4d. on other
merchandises* That supposition has been realized, the
Grand Junction Canal Company have used that part of the
Oxford Canal which lies in the parish of FoleshiU, for the
passage of coals out of the Coventry Canal from Longford
to Braunston. It follows that the Oxford Canal Company
are ratable for such proportion as their land lying in the
parish of FoleshiU bears to the entire distance. The ques-
lion of ratability being thus disposed o^ the only remaining
question is, what deductions from the gross amount of the
toUa are to be made in favour of the Oxford Canal Comr
pany. The principle upon which that question must be
(») 0 D. & R; 06r 4 B. & C. 74.
108 CAS£S IN THE KING's BENCU,
1829. decided^ is this, that the rent is the criterion of the value of
f^^^^^^^ the occupation of the land ; Rex v. The Trustees of the
V. Duke o/Bridgewaier{a). It was there decided, that the
Canal* Proprietors of a canal were ratable in respect of their occu-
CoMPANir. pation of land, upon the sum for which the land would let,
and not upon the net produce of the land. Here, infixing
the rate, a deduction of 20/. per cent, has been made, " as
the reasonable profit of a supposed lessee,'^ and the residue
of the tolls has been rated as the amount of annual rent
which a tenant would pay. \_Parke, J. The poor rate
certainly ought to be deducted, for if a tenant pays the
poor rate be will pay so much less rent to his landlord*]
Upon that principle, undoubtedly, it does seem just that
the poor rate should be deducted.
Hill, contri. It is not intended to dispute the ratability
of the Oxford Canal Company, so far as respects the first
three items mentioned in the rate; but it is confidently
submitted that they are not ratable in respect of the com-
pensation tonnage for coals mentioned in the fourth item.
The term " compensation tonnage'* implies that such ton-
nage was given in lieu of something given up. But the
Oxford Canal Company gave up nothing for which they
were ratable; therefore, they are not ratable for the com-
pensation. The Coventry Canal was in work before the
Oxford Canal was made. The Oxford Canal Company
take the tonnage mentioned in the third item of the rate.
The Coventry Canal Company take a tonnage for coals on
a certain part of the Oxford Canal, covering the whole of
the parish of Foleshill. Therefore, when the Grand Junc-
tion Canal Act was passed, the Oxford Canal Company
had no tonnage for coals passing through the parish of
Foleshill. IParke, J. Surely under the act of 33 Geo. 3,
the canal in Foleshill may be used for the purpose of carry-
ing coals.] Not so as to afford a profit to the Oxford
(«) AfUe, iv. 143; 9 B. & C. 68.
MICHAELMAS TERM, X GEO. IV. 109
Canal Company, and^ therefore, not so as to render them i829.
ratable. T Parke. J. They received the compensation ton- ^"^^-^^^
> ^ .^ . . u . . 1^ The Kino
nage as an mderonincation agamst the injury they were v,
supposed likely to sustain by means of the formation of the Oxford
Grand Junction Canal.] The Coventry Canal Company Company.
bave still what they originally had, the mileage tonnage
upon coals passing through the parish of Foleshill. If
that which has been called compensation tonnage is to be
considered as an indemnification against the general injury
to the Oxford Canal, it ought to have been given in the
proportion which the length of that part of the canal that
is 10 the parish of Foleshill bears, not to the length of that
portion of the canal which lies between the parish where it
joins the Coventry Canal and Braunston, but to the whole
line of the canal. When the Grand Junction Canal Act
passed^ the mileage was Id. per ton for coals^ and \j^d,
for other goods. The compensation tonnage of 2^.9^. and
4m. 4d. was evidently computed with reference to the Id.
and IJcf. per mile. The mileage for coals at Id. for S4|
miles would be Qs. 10^. But the Coventry Canal Com-
pany was then entitled to the mileage over 2 miles. De-
ducting then ^d. from the £«. lO^d., and giving the party
to be indemnified the benefit of the fraction of (he compen-
sation tonnage for coals would be reasonably fixed at2«.9d.
The compensation tonnage therefore proceeds upon the
principle that the Oxford Canal Company had no tonnage
over these two miles ; and the legislature has not made the
public pay double tonnage in the parish of Foleshill, which
it would bave done if the portion of the canal which is in
that parish bad been considered the meritorious cause of
earning a portion of the compensation tonnage. Coals
now pay and always did pay to the Coventry Canal Com-
pany mileage for that part of the canal which is in Foleshill,
and if the 2s. 9d. a ton relates to that portion of the canal^
coals would in Foleshill pay double tonnage In order to
make a canal ratable, there must be not only a user of it in
the parish, but a profitable user. Here, there was no pro-
CASES IN TH£ KINGS BENCH,;
fitaUe user of the canal by the Oxford Canal Company ill
xJJ^'k^o respect of the carriage of coals in the parish of FoleshiU.
V. The only remaining question is, what deductions ought to
Canal ^^ made; in other words^ what proportion of the total
Company, amount of tolls received ought to be considered as consti-*-
luting the sum for which that part of the canal which lies
within the parish of Foleshill would let to a tenant. As
there has never in fact been any tenant, but the canal has
remained in the hands of the proprietors, who have col-*
lected the tolls themselves, it 'is not very easy to ascertain
that amount with precision. It is, however, admitted, sup-
posing the canal to be let, that the tenant ought to have a
profit of 20/. per cent. That must be taken to mean a net
profits a profit resulting after deducting all payments made
in respect of the canal: therefore, the poor rate, the ex*
pense of collecting the tolls, and the expense of annual
repairs, ought to be deducted from the total amount of
tolls received. Now the annual repairs of that part of the
canal which lies in the. parish of Foleshill amount to 20/. ;
and the annual repairs of the whole line of the canal
amount to 4000/.: there may be a question, therefore,
whether the sum to be deducted should be such a propor<«
tion of the total amount of repairs as the length of canal in
the parish of Foleshill bears to the whole line of the canal,
or only the amount of repairs incurred in that part of the
canal which lies in the parish of Foleshill. {^Bayletf, J. I
feel no doubt upon that question. The rate must be in
proportion to the value of the land in the parish where the
rate is made ; therefore all expenses incurred in repairing
that part of the canal in that parish must be deducted.]
The expense of supplying water for the canal must also
be deducted. It is analogous to the expense of supplying
manure for the cultivation of land. The real value of land
is its value after deducting the expenses of cultivation*
Without a supply of water the canal could never produce
9ny profit at all. [Bayley, J. No doubt there must be a
deduction in that respect. The sessions must compute the.
MICHAELMAS TERM, X GEO. IV. Ill
({ttanlum. We can only lay down the principle. We never 1699.
compute the quantum, except where the sessions tells us rpTTR^^
the principle upon which they have calculated the quan<^ o.
tttiD, and their calculation is evidently erroneous.] The Can^al
case finds that the works by which that part of the canal Company.
which lies in the parish of Foleshill is supplied with water»
supply the canal for forty miles. The true principle, there*
fore, will be to fis the quantum in the proportion which the
part of the canal situate in the parish of Foleshill bears to
forty miles.
BilYLBY, J., after conferring with the other judges. — The
principle which we lay down is this: — ^The sessions must
laake. an allowance for the proper proportion of the expense
of supplying water; and they must make allowance for the
poor rate, the expense of annual repairs^ and the expense
of collecting the tolls. The only, question for our consi-
deration is, whetlier any part of the compensation tonnage
can be regarded as having been earned in the parish of
Foleshill. With reference to that question we shall take
time to consider of our judgment.
Cur. adv. vuli. .
BayleYi J. — The several questions which were argued
on both sides, in this case, were disposed of in the course
of the argument, except that arising upon the fourth item
of charge on the company mentioned in the special case.
It was contended that the company were not ratable in
respect of a proportion of the compensaUon tonnage for
coik passing along the portion of the Oxford Canal lying
IB the parish of Foleshill, from the Coventry Canal into
the Grand Junction Canal, because it was said that the
tonnage on coals was a compensation to the company for
tbe injury done by the construction of the Grand Junction
Canal, pursuant to the S3 Geo. 3, c. 80, to their former coal
tonnage; and that as the company had, before the4>assing
CASES IK THE KfNG*S BENCH,
of that act« no coal tonnage in the parish of Foleshili^ no
The Kino P®*^* ^^ ^^^ compensation tonnage could be considered as
V. earned in that parish. It was further urged that the new
Canal tonnage dues were given by that act instead of the old dues,
Company. ^^^ must be considered as standing, with respect to their
ratability, in the same situation. Upon reference, however,
to the Grand Junction Canal Act, it would seem that the
new coal tonnage is not given as a compensation for the
injury done to the company, in respect of the old coal ton-
nage, specificallj/. The recital shews that it was given
because it was apprehended that the intended canal would
be injurious to the Oxford Canal generally, and that certain
compensations ought to be made for that general injuiy;
and the legislature thought that an indemnification would
be given by certain new dues upon coals and other goods
carried to or from the intended canal by means of the
Oxford Canal, without regard to the distance they might
be carried on the latter. And these new dues do not
appear to be in addition to the old dues, but the public are
to pay one class of dues only ; and this seems to be the
meaning of the introductory words of the clause, making
them payable instead of the former tolls. The Grand
Junction Canal would probably benefit the Oxford Canal
in that part of it which formed the line of communication
between that and the Coventi7 Canal, namely, from Long-
ford to Braunston, and it would probably be in other parts
where they to a certain degree were parallel, namely, from
Napton to Oxford, that the injury would occur: and the
intention probably was to recompence the injury in one
part by compensation in another.
The question, however, is, not for what injury the right
to receive the new tonnage dues is given as a compensation ;
or, in other words, for what reason the legislature have
given that right to the Oxford Canal Company ; but, what
is the legal liability of the company in respect of these
dues, when received by them, to contribute to the poor
rate. The Company are. ratable in each parish for the net
M1CHA£LMAS TEKM, It GEO. IV.
annHal profit of the portion of the canal lying in that parish ;
in other words, for what the canal earns in each parish;
and the tonnage daes are paid by the owners of goods^br
pasmg along the canal', and are received by the company
/or the tite of the canals though the reason of their being
enabled by the legislature to receive them was, that their
canal was likely to be injured by the new navigation. It
was upon this ground that these dues were received for the
ase of the canal, and were -earned by the canal, that the
company were held ratable in respect of them in Rex v.
The Oxford Canal Company (a). For the passage of coals,
therefore, along the part of the canal lying in tbe parish of
Foieshill, some portion of the new dues is received by the
company, and in respect of that portion the rate is proper.
It is true that the consequence of this will be, that for
coals passing along that part of the canal lying within two
miles from the junction with the Coventry Canal, the com-
pany will receive more dues, and therefore be ratable for
more, than for those passing along other parts of the canal;
because they will receive for such coals the proportion of
compensation dues above mentioned directly, and indirectly
a part of the tonnage dues on other goods on the first three
miles and a quarter of the Coventry Canal, for which it is
admitted by their counsel that they were properly rated
in the rate in question. But this consequence can make
no difference in the construction of the act of parliament,
which makes the dues payable by tbe public to the com-
fany for passing along their canal, so that those dues consti-
tute a part of the profits of that portion of the canal along
which they pass.
The canal earns no part of the original tonnage upon
coals carried along the two miles in the parish of Foieshill
into the Coventry Canal, because it receives its equivalent
by means of the tonnage upon other goods for the first
Arte miles and a half upon the Coventry Canal ; but those
113
1829.
The King
OXFORP
Canal
Com PA NX,.
vol.. V.
(a) 6D. &R.86; 4B.&C. 74.
I
114
1829.
The King
Oxford
Caval
Company.
CASES IN THE KING S BENCH/
two miles contribute to earn the compensation tonnage^ and
for that there is no equivalent.
. The rate is therefore to be confirmed in this respect;
but the case must be referred back to the sessions to make
the several deductions to which the company were held.
upon the argument, to be entitled.
Rule accordingly.
The breach of
inere revenue
regulations,
which tend to
insure the due
Sayment of
uties imposed
upon the ma-
nufacture of
an exciseable
article, does
not render the
tmde itself ille-
gal, so as to in-
capacitate the
manufacturer
from recover-
ing the price
of such article,
or from suing
upon a gua-
rantee given
for the due
payment
thereof.
Brown and others v, C. Duncan.
Assumpsit on the following guarantee given by the
defendant to the plaintiffs, Messrs Brown & Co. : —
" 7 January, 1826. Messrs. Brown & Co. I hereby
undertake to guarantee the due payment of all sums of
money which Mr. Alexander Glennie may become indebted
to you as your agent in the sale of malt whiskey, and for
which Mr. Glennie shall not duly account for or pay and
discharge. Peter Duncan**
At the trial before Lord Tenterden, C. J. at the sittings
at Guildhall after last Trinity term, it was proved, that
after the guarantee Glennie became indebted to the plaintiffs
within the terms of the guarantee in 2300/. On the part
of the defendant it was shewn, that Clerk, one of the plain-
tiffs, carried on business at Aberdeen as a retailer of
spirits, within two miles of the plaintiffs' distillery, and
that his name was not inserted in the licences taken out
for the distillery under 6 Geo. 4, c. 81, sect. 7 (a). It was
contended, that these circumstances rendered the joint
trading of the five plaintiffs illegal under that statute and
(fl) " That in every licence lo be
taken out, under or by authority of
this act, shall be contained and
set forth the purpose, trade, or bu-
siness, for which such licence is
l^nted, and the true name and
place of abode of the person or
persons taking out the same, and
the true date or time of granHof;
such licence, and (except in the
case of auctioneers) the place at
which the trade or business for
which such licence is granted shall
be carried on."
MICHAELMAS TERM, X GEO. IV.
under 4 Geo. 4, c.94, sect. IS 1 (a), and sect.. 132(6), aiid that
the plaintiffs were thereby disqualified from suing for the
price of ^irits distilled by them, and from enforcing a
guarantee given in respect of sales of such spirits. The
learned judge directed a verdict for the plaintiffs, giving
leave for the defendant to move to enter a nonsuit.
116
1829.
F. Pollock now moved accordingly. Clerk could not be
entitled to 8ue« even if the omission of his name in the
licences had arisen merely from negligence; but here the
omission of Clerk*s name in the licence was for a fraudulent
purpose; and the Court will not extend the same indu!^
gence to fraud as to errors. If Clerk had been let in as a
partner without the knowledge of the defendant, the dcr
fendant would have contracted no liability to him. He
would have a right to say, I was dealing with Brown 8c Co.,
not as they chuse to arrange amongst themselves, but as
they give out to the world. [Lord lenUrden, C,J, In
Johnson V. Hudson (c), it was held that the mere breach of
a revenue regulation, protected by a penalty, was no answer
to an action.] In Cannon v. Brt^ce ((2), 'the distinction
between malum prohibitum and malum in Se was expressly
overruled. In Bensley v. Bignold (e), a printer, who had
(a) ** That ifany distiller licensed
wider this act shall at any time,
doriiig the continuance of sach
Koeooe, be directly or indirectly
oonceroed or interested in the sale
of any spirituous liquors whatever
by retail, or in carrying on the
bosineas or trade of a retailer of
any spirituous liquors whatever,
wtAh ^stiller, in each and every
such case, shall foHeit the sum of
aoo/L"
(6) ** That no distiller licensed
ander this act shall b« directly or
indireclly concerned or interested
in carrying on the trade of a whole-
sale dealer in spirits, or be con-
cerned in trade with any whole*
sale dealer in spirits at any place
within the distance of two miles
from the distillery of such distiller;
and if any such distiller shall be
directly or indirectly concerned or
interested in the trade or business
of a dealer in spirits at any place
vrithin such distance of such dis-
tillery, then, and in every such
case, such distiller shall forfeit the
sumofSOOr*
(c) 11 East, 180.
(rf) 3 B. & A. 179.
\e) 5 B, & A. 335*
I 2
116 GASES IN THE KINO's BENCH,
1889. not affixed his name, was not permitted to recover for his
labour and materials. [Parke, J. Your argument goes to
shew that the plaintiffs cannot sue for any purpose.] It
was so held, in Bensley v. BignoM. [Lord Tenierden, C.J.
There the act of printing was illegal. Here the distilling
was illegal, but not the sale.] The goods might have been
seized in transitu if it had been known that five persons
were interested in the distillery. If Caiman v. Sryce and
Bensley v. Bignold are law, this action cannot be supported.
In Cannon v. Bryce it was held that the plaintiff couM not
recover, because he knew that the money which he lent
was intended to be applied in paying stock-jobbing diffe-
rences, which the law had said should not be paid. la
that case, it was said by one of the judges, that the only
way to make parties obey the law is to make it their interest
not to violate it. In Law v. Hodson (a), a brick-maket
was not allowed to recover the price of bricks sold, because
they were not of the statutable size. [Parke, J. Here the
provision is not for the protection of purchasers, -as in the
case of brick-making.] The 4 Geo. 4, c. 94, 8. 131, ini-
poses a penalty on a licensed distiller carrying on the trade
of a retailer. A party is not at liberty to pay the penalty
and do the act. The IS^d sect, is however clear of any
difficulty, that section expressly prohibiting distillers from
being concerned or interested in the trade of a wholesale
dealer in spirits within two miles distance from the distil*
lery. The 6 Geo. 4, c. 81, s. 7, requires the time, name
and place of abode of the distiller to be mentioned in the
licence, the name having been required by the previous
statute 4 Geo, 4, c. 94, s. 7* After an experience of
two years, the legislature found that requiring the name
only was not sufficient. These spirits were seizable any
where. They might have been followed to the Port of
London. [Lord Tenterden, C. J. Is there any clause to
that effect, or is that merely your own inference ?] It is
understood that they are clearly seizable. [Lord Tenier-
(a) 11 East, 300. And see WUkinsm v. Loudonsackj 3 M. Sc S. 117.
MlCilA£Ll<A$ TERM, X GEO. IV.
^,C. J. You object that the dormant partner could not
m.] That might be contended, but it is unnecessary to
go 50 far. A dormant partner need not be joined as a co-
pluQtiS^ Lloyd v. Archbowh (a). Clerk bad no property in
tbeae goods. By reason of the illegality of the transaction,
he could not huve fUed a bill against his partners to account
for the profits of the trade.
Cur. adv. vult.
117
16f9.
Bbowk
V.
Duncan.
LordTENTERDENy C. J. uow delivered the judgment
of the Court, after stating the facts of the case and refer-
ring to the statutes. It was contended at the trial, that
Clerk having acted in violation of these statutes, it was
iacompetent to him to sue for the price of the spirits
ill^;ally distilled, and that, therefore, the present defendant,
who has guaranteed the price, could not be sued. But we
thiofc that this objection cannot be supported. The acts in
qoestion contain no clause preventing the carrying on of the
trade of a distiller by persons who have not complied with
the regulations prescribed for the security of the revenue.
Hodgson V. Yemple(J>) was a very sfrong case. The goods
were sold with a knowledge on the part of the vendor that
the vendee filled the incompatible characters of rectifier and
retailer, aiid they were delivered at a place where the
vendee carried on business, not in his own name, but in
the name of another person, which was contended to be a
clear violation of the law. In Johnson v. Hudson (c), the
vendors recovered the price of tobacco which they had sold
without being licensed, on the ground that this was not a
fraiid upon the revenue, but merely the breach of a fiscal
regatation, protected by a specific penalty. The present
(«) 9 Taont. 324. And see
Mma v. Giikti, lb. SS5, n.;
Xiuw V. Delacmtr^ 1 M. & S. 249;
Msttkeam, ex parte, 3 Ves. & B.
125; Gardiner v. DavU, 2 C. & P.
^9. It appearB tp be in the option
of the plaintifis to sue with or
without joining the dormant part-
ner. Skinner and others v. Siockt,
4B.& A.437.
(b) 5 Taunt. 181.
(c) li East, 180.
118
1829.
BfiOWN
V,
DUKCAV.
CAS£S IN THE king's BENCH/
case is very different from those which turn upon acts of
parliament having for their object the protection of the
public, as the acts against stock-jobbing, and those against
usury, or against the fraudulent making of bricks below a
certain size; we are, therefore, of opinion, that the plaintiffs
are entitled to recover, and the defendant will take no rule.
Rule refused (a),
(d) Antl see Little v. PooUy 9 B. & C. 192.
Where a party
suing for a
malicious pi-o-
secution, had
obtained a
copy of the
indictment by
virtue of the
attorney-
general 8 fiat,
granted under
a mis-state-
ment as to the
view enter-
tained by the
judge before
whom the
indictment
was tried, the
Court refused
to stay the
proceedings or
to prevent the
plaintiff from
using on the
trial the copy
so obtained.
Semble, that
the indictee is
entitled, as of
right, to a
copy of the
record of the
acquittal (6).
Browne v. Gumming and others.
XHE plaintiff, a bankrupt, was indicted for concealing the
sum of 24/* 15s. At the trial before Burroughs J., at the
Bridgewater assizes, 1827, the plaintiff was acquitted; upon
which his counsel, Bompas, Serjt., applied to the learned
judge for a copy of the indictment. This his lordship
refused to grant. Upon a representation made to the
attorney-general that the learned judge had changed his
mind, and would now grant the application if he had power
to do so, the attorney-general (c) gave his fiat for the grant-
ing of a copy; but upon the learned judge's stating that
his views had been misrepresented, a rule was obtained,
calling upon the plaintiff to shew cause why he should not
be restrained from using such copy of the indictment.
C F. Williams and Bompas, Serjt., now shewed cause.
The learned judge had no power to withold from the
plaintiff a copy of the indictment. Prasf. 3d Coke Rep. SI.
1 Mann. & Ryl. 279, n. {a). By the Parliament Roll there
vouched, the right of all persons to free access to records
in which they are interested is fully recognized. The first
restriction upon this right was made by an order of some
of the judges at the Old Bailey, immediately after the
{b) Et vide ante, i. 279, («).
(c) Sir Cfiarlei WethtrelL
MICHAELMAS TERM, X GEO. IV.
Restoration. Here the learned judge thought, that under
the seTentb reeolution he had no power to make an order
lor a copy of the indictment. In Jordan v. Lewis {a\ the
pliintiff offered in evidence the copy of an indictment which
had been granted to his co-indictee only; and upon its
bfitig objected, under the Old Bailey order, that a copy
could not be read, Lte, C. J. 6aid, that he could not refute
to let the plaintiff read it, and tlie Court refused to set
aside the ▼erdict obtained by the plaintiff on this evidence.
The same point was decided in the late case of Caddy v.
Bari(ati;(6), where the Court refused to entertain the ques-
tion, as to tbe alleged fraudulent manner in which the copy
bad been obtained. It is true that Foster, J. says, that the
statute 46 Edw, 3 relates to those records in which the
subject may be interested, as matters of evidence upon
questions of private right; and he cites what passed at
Lord Preston^s trial, which however does not support the
distinction taken. But supposing the copy to have been
irregularly obtained, that circumstance would only furnish
the ground for an application to the discretion of the Court.
In Rex V. Brangan (c), the prisoner being acquitted upon
an indictment which appeared to have beeu brought merely
for the purposes of vexation and oppression, his counsel
applied to the Court for a copy of the indictment, IfiUes,
C. J. acknowledged that the prosecution bore the strongest
marks of being unfounded and malicious, but refused the
application, because it was not necessary that he should
grant it; declaring, that by the laws of this realm, every
prisoner, upon his acquittal, had an undoubted right and
title to a copy of the record of such acquittal, for every use
they might think fit to make of it; and that after a demand
of such copy had been made, the proper officer might be
punished for refusing to make it out.
119
1899.
Scarlett, A. G. contrA. The defendants are entitled to
have the rule made absolute upon a very narrow ground.
(«) S Stra. 112?. {b) Ante, i. 275. (f) 1 Leach, C. C. 3?.
120
1829.
CASES IN THE KING S BENCH,
The fiat was obtained under a misapprehension as to the
view taken of the case by the learned judge who tried the
cause. Upon that mistake being discovered, the plaintiff
ought to have gone again before the attorney-general, and
have discussed the merits of the application. The plaintiff
has received a copy of the indictment upon a representation
which appears at least to be founded on mistake. If, as
contended on behalf of the plaintifi^i he has a right to have
a copy of the indictmenti this rule will not prevent him.
Lord Tenterden, C. J. — Upon the whole we think
the mistake or misapprehension not to be of such a nature
as to justify the interference of the Court.
Rule discharged.
Where in tres-
pass the de-
fendant justi-
fies under
mesne process,
and the plain-
tiff replies a
detention after
a bail-bond
given, an ac-
tual arrest
must be prov-
ed; proof of
the execution
of the bail-
bond, coupled
with the ad-
mission of the
trespass in the
special plea,
is not suffi-
cient.
Reece V. Griffiths and others.
XHIS was an action of trespass and false imprisonment
brought against the sheriff of Herefordshire! bis under-
sheriff, and bailiff. The defendants pleaded, first, not guilty;
secondly, a justification under a latitat against the plaintiff.
Replication, by way of new assignment, that the sheriff
accepted a bail-bond from the plaintiffs, which bail-bond
he kept in his possession until and at the time of the tres-
passes newly assigned. The defendants pleaded not guilty
to the new assignment
At the trial before Faughan, B. at the last Hereford
assizes (a), the learned judge held that the plaintiff was bound
to produce and to prove the execution of the bail-bond;
upon which the plaintiff called the attesting witness^ Moss,
a sheriff's officer. Upon his cross-examination, Moss stated
that the attorney for the now plaintiff came to him and
desired, that if he knew of any writ against Reece be would
(a) Counsel for the plaintiff, Tdfourd; for the defendant, €}ampbclL
Griffiths.
MICHA£Z.]tfAS TERM, X GEO. XV«
ialorm ham of iv^od be would put in bail. Upon tbe latitat
in (|ue6tipn. coming to tbe sheriff's office^ Reece was not ^rT^
actuaUjarre^tedy but he executed a bail-bond. The witness ^ v,
swore that he did not take the bail-bond absolutely^ but
subject to ai^proyal upon inqifiring into the circumstances
of the bail. Upon this it was contended by tbe plaintiff
that the . replication i\ad Jl^een .piade ,Qut. The learned
judge. w9s,«}}owf^yer^ of a different. opipiqn^ and directed, it
i)9DiQit,.w||ioh
^Afffntrd now mov^d to set aside. The fir^t arrest is
9iim9^ on the r^cpr<4. Jt is also, admitted. by the execu-
tion of the bail-bond.
Lord Tbntebden, C.J..— It |ias jat^ly be^p d^c^ified in
this CpMrt(a)j that .merf^ly ^ij^ring into ^.b^i^bond dpes
qot cQi|9(i^^e ap .^rrest Qi)e ^rrest is fi^tfnitted .pfk ,the
recQrd; t»ut uqI^q^ .the plfijntiff proyf^ two arre§^ (^) be
V48 QQt Qn)illed.to,r<^<;pvQr, apd .that.hp,|iP8 f^M in.^oin^.
S^le refpsed (p),
(a) Berry v. AtUmuonj gent. 6 states a second arrest after the nc-
B.fcC. 598; S C. & P.503. And ceptance of the bail-bond.
see Bridgeti v. Cqyn^, ante, i. (r) In this case it would appear
2U. that t^ej^lai^^ff ai^sfhaY^fdiled
(6) The plea confesses one arrest under the general issue,
under the latitat. Tbe replication
Williams v.
Assumpsit on a promissory note for 375/., drawn by In an action
tbe defendant, payable to the order of fVade, and by Wade ^ory nm^S"
indorsed to the plaintiff. At the trial before Lord Tenterden, declaration
C. J., at the sittings at Guildhpll after last Trinity term, the Sainti/before
plaintiff', who was a pawnbroker, rested his case upon proof "« ^came the
,. ^, iri- holder, is evi-
ofthedefendantssiguatureofthe note aud of the indorsement, denceto inva-
lidate the note.
<;ab£s in the king^s bench,
On the part of the defendant it was shewn that the note
in question had been given in substitution for a former
note given upon a gaming transaction. At the time the
former note became due it was in the hands of one
ChristUf and before the plaintiff had any thing to do with
the substituted note, in a conversation between the plain-
tiff and the witness, the plaintiff stated the consideration
for the drawing of the former note. It was objected, on
the part of the plaintiff, that this evidence was inadmissiblet
inasmuch as the plaintiff was a stranger to the note declared
on at the time of the supposed admission. The learned
judge, however, received the evidence, and the defendant
obtained a verdict, which
Gumey now moved to set aside. The ground upon
which the unsworn declarations of parties have been re-
ceived in evidence to defeat an action upon a bill of exchange,
is, that the declarations have been against the interest of
the party making them. Here the plaintiff, at the time of
the alleged conversation, had no interest in the transaction,
and was under no inducement to speak with accuracy.
No relation existed between the plaintiff and the defendant
until this note was indorsed over.
Lord Tenterdbn, C. J. — ^The declaration was made
prior to the plaintiff's receiving the note; and on that
ground I thought it admissible.
The other Judges concurred.
Rule refused.
MICHAELMAS TERM, X GEO. IV.
CoLLEY V. Hardy.
In August last the defendant's goods were seized by the Where the
sheriff of Middlesex, under a^.yb., founded on a judgment nedected his
by confession. On the 28th of October a commission ^^y» ^^^.,,
1 , , ... rr. • Court Will not
of bankruptcy issued agamst the defendant. The assignees enlarge the
gave notice of the bankruptcy to the sheriff, and claimed JJj^Vrit'^aU™
the goods. On the other hand, the plaintiffs had, before thoagh the
ihe bankruptcy, repeatedly urged the officer to sell. The creStor'and
sheriff having been unable to obtain an undertaking from the assignees
., t^ . J , , , , . of the defend-
either party, obtained a rule to shew cause why the time ant refuse to
fof making his return should not be enlarged. indemnify.
Campbell now shewed cause. The officer not having
proceeded to sell as requested, has placed the plaintiff in a
dangerous position^ under the 108th section of the bank*
nipt act. The difficulty in which the sheriff was placed
vises entirely from his own neglect of duty. The Court
will therefore not interfere to assist him.
Halt, in support of the rule. The sheriff requires
nothing but the ordinary protection which the Courts give
where both parties refuse to indemnify. The commission
did not issue till October, but it is highly probable that an
earlier act of bankruptcy will be set up, the validity of
which the sheriff ought not to be drawn in to contest.
Lord Tenterden, C. J. — There is no reason to sup-
pose that a prior act of bankruptcy could be established*
It was the duty of the sheriff to sell. The officer, who for
this purpose is the sheriff, was required to sell, the plain-
tiff having an obvious interest in an early sale, his judgment
being founded upon a cognovit, and therefore within the
108th section of 6 Geo. 4, c. l6. The sheriff having
neglected his duty is not entitled to the assistance of the
Court (a).
Rule discharged.
(a) Vide Noiletf v. Buck^ ante, ii. 68; S. C. 8 B. & C. 160.
134 CAS£S IN THE KIN&*8 BENCH,
\^,.^ Wood r. Smith (a).
«I believe the ASSUMPSIT. The declaration stated, that in consider-
sound, but I ation the plaintiff would bu^ a mare of the defendant, the
will not war- defendant undertook and faithfully promised the plaiotiff
tUe vendee that the mare was sound to the best of his knowledge,
i" Msumwh B«'«acl^> ^^^^ •t *e time of the promise th^ mar^ was
as upon a war- unsound, as the defendant then and there well knew* At
mare is sound ^^^ ^"^' before Lord Tenterdeti, C, J. at the sittings at
to the best of Westminster after last Trinity term, it appeared that when .
the vendors i -•«•,, • / •• » T «• i
knowledge. the plamtiff sold tbe^ mare, he said, ''I believe th^ mare 'to.
be sound, but I will not warrant her." The unsQUtwhiesjS.
being proved, it was objected, on the part of the defendant,
that the «otioD should have been in toi^t upon the deceit.
The learned judge w«s of opinion :that the represehtation
made at the lime of Side was part of the contract, and
directed a verdict for the plaintiff, but gave the defendant
Iruve' to imove to enter ^ nonsuit.
Gumey now moved accordingly. The contract is m'ls-
described in the declaration, which does not notice the
qutflifying words, **but I will not warrant her/' This is a
case in *wbich it w*as peculiarly proper to bring tort, and
Dc^ assumpsit, Wiliiamsonv. Allison, {5) Dobellv, Stevens (c),
LordTBKTBrBDEH,'e. J. — ^^No doubt the action might
have been in tort.
Parke, J. — The words omitted do not qualify the
contract.
Batley, J. — The defenclant means to say I will not
give a general warranty.
Rule refused.
(a) S, C. at Kibi Prias, 4 Carr. (6) 2 East, 446.
& Payne, 45. (c) 5 D».& R.400; 3 B.&.C.<)<i3.
MICHAELMAS TKRM, X GEO. 1\^. 126
1829.
SwAYNE V. Ingilby, Bart. ^"^v^^
Assumpsit by indorsee for not accepting a bill A plaintiff
of exchange drawn by Ward, a miner engaged to go ^^^^^ q^
to Mexico by a mining company in London, upon formal proof,
whom the bill was drawn. The plaintiff having failed lieved upon
iu proving a presentment at the office of the drawees, at payment of
Pinner's Hall, was nonsuited. Gurney moved in the
beginning of this term to set aside the nonsuit on payment
of costs^ upon an affidavit stating that before the bill
became due the drawees had broken up their original
establishment at Pinner's Hall, and had removed their busi-
ness to the office of one Gregson ; and that an application
for payment had been made at GregstnCs when the bill
became due. A rule nisi was granted upon payment of
costs, but it was directed not to go into the new trial paper.
Denman and Chitty now shewed cause. The plaintiiF is
not concluded by this nonsuit, and it is contrary to the
practice of the Court to relieve a plaintiff from costs occa-
sioned by his own negligence.
Gumey, contr^. This rule being subject to the payment
of costs, which will give the defendant the costs of the trial,
it is better for both parties that the previous costs should
not be incurred again.
Lord Tenterden, C. J, — ^Tbe plaintiff must seek his
remedy by a fresh action. It is a general rule not to grant
a new trial upon affidavits of the witnesses as to matters of
fact It would be dangerous to encourage such an appli-
cation.
The other judges concurred.
Rule discharged.
126 CASES IN THE KINO's BENCH, .
1829.
v^N-^/ • Dickinson v. Valpy.
To make a ASSUMPSIT. The declaration stated, that the defend-
thii^perMuis^ ant and divers other persons, under and by the description of
«» * ^^"^°^ '* '^^ Corawall and Devonshire Mining Company," by one
be in fact a Rowland Wilks^ their agent in that behalf, on the 20th day
partner, or ^f March, J 826, at &c., according to the usage and custom
bim&elf out to of merchants, made their certain bill of exchange in writing,
M ^pwita^'r! *^ca"ng date &c., and then and there directed the said bill
The appro- of exchange to certain persons^ by the name, style, and de-
shares ia a scription of" The Cornwall and Devonshire Mining Corn-
mining asso- pany, Lombard Street, London," and thereby, two months
ciation to a . ,
party at his after the date thereof, required the said last-mentioned
request, the persons to pay to the order of one Mr. Thotnas Teaeue 300/.
payment of an "^ ...
instalment on value received^ as advised; which bill of exchange the said
litendan^^^^^ drawees, by one John Wood, their agent in that behalf,
the counting- afterwards, to wit, on &c., at &c., upon sight thereof, ac-
association cepted, according to the said usage and custom, payable at
and there iI^q house of certain persons in the said acceptance men-
signing some ...
deed (not pro- tioned, to wit, at Sir William Kay, Price, 8c Co., bankers,
frii^andsub- ^on^^n; that Teague indorsed the bill to the plaintiff;
sequent at- that the bill was duly shewn and presented for payment,
general meet- when due, to, and at the house of, the said SirWilliam Kay,
mgofihe Price, 8lCo., bankers, London, but that the said last-men-
(his conduct, tioned persons did not, nor did the drawees pay, thereof
at which he is defendant had notice, whereby defendant became liable
not allowed to . m •
shew) do not and promised. The second count described the defendant
S^be a oart^ alone as drawer. The third count described the defendant
ner:— as sole drawer, but stated the bill to be directed to the
who has been' defendant and others. The fourth count stated, that
induced by
fraud to enter into a partnership, can set up thai fraud against his liability to a party
who became a creditor, without knowing J. as a partner, qtuere.
The directors of a mining association cannot bind the members by accepting a bill of
exchange, unless they are authorized so to do by the deed or instrument of copartner-
ship, by the necessity of such a power to the carrying on of the business, by the usage
of similar establishments, or the express assent of the party sought to be char|E2ed.
Still less can the directors bind the members by a bill drawn upon the directors hj their
own servant, such a bill being in effect a promissory note.
MICHAELMAS TERM, X GEO, IV.
certain persons* under, and by the style* firm* and descrip*
tioQ of " The Cornwall and Devon Mining Company/'
drew upon the defendant, who accepted. The fifth count
described the instrument as a promi38ory note drawn by
tbe defendant under and by the name and description of
'*Tbe Cornwall and Devonshire Mining Company/' by
one Rowland Wilks, the defendant's agent in that behalf (a).
The declaration also contained the usual money counts.
Plea, non assumpsit. At the trial before Burroughs J., at
the Bridgewater assizes* 1827 (6), the following facts ap^
peared: — Several persons used to meet at a counting-house
iu Lombard Street* under the firm of '^ The Cornwall and
Devonshire Mining Company*" and carried on business to
a considerable extent. On the 6th of April* 1825* they
received from the defendant the following letter: —
'' 6th April* 1825. 6, Brunswick Square.
" Gentlemen, — I shall feel obliged for 30 shares in the
Cornwall and Devonshire Mining Company.
(Signed) ^. J. Valpy:*
In consequence of this letter a communication was made
to the defendant. When persons applied for shares, they
paid tbe money to tbe bankers for the concern* and took
receipts. In July* 1 825* the defendant brought two bankers'
receipts to the ofiice of 50/. each* and applied to have them
exchanged for shares or certificates. He then paid 10/.
more on each share, and executed a deed. The certificates
were filled up with the defendant's name* but were never
(a) Considenng a bill drawn by contract* it woald seem to be* in
ft partj apon himself as a promis- point of Jaw, a note made by the
sory note* the instrument seems to doable agency of the clerk who
be complete as soon as it is drawn, drew the bill, and of the clerk who
It seems, therefore* to be properly wrote the acceptance.
described as a note made by the (6) Counsel for the plaintiff*
agency of the clerk who drew the Wilde, Serjt.* C. F, William, and
bill, and not as made by the agency Carter; for the defendant, Crow
o€ the rferk who accepted it. If, der, Meretoether, Seijt., who was
indeed, tbe acceptance were so with him* being absent at Maid«
framed as to alter the terms of the stone.
CASES IN THE KINGS BENCH,
called for by him, or sent to him. The defendant only
^ attended at the office or counting-house when he delivered
'DicxrNdoN ...
V. in the receipts and signed the deed, and at a meeting of
^^'^' shareholders in July, 1826. At the special meeting of the
directors of the company on the l6th of March, 18^, th^
following minute and resolution were entered in their books:
^ It was reported by the mine cashier and accountant that
a balance of 884/. fis. 2d. remained due to Captain Teagtte,
for advances made by him to the company, as appears by
the account submitted to the committee and approved;
and Captain Teague stated to the committee that he desired
to receive bills to that amount : — Resolved, that the mine
cashier and accountant draw bills on the company for the
amount in favour of Captain Teague, and that the secretary
be authorised to accept the bills for the directors on behalf
of the company, and to make them payable at Messrs. Kay,
Price 8c Co., the London bankers of the company/' Bills,
for one of which this action was brought, were drawn in
pursuance of the above resolution. The bill declared upon
was in the following form : —
" No. £7. <£300. Redruth, March £0, 1826.
*' Two months after date pay to the order of Mr4 Thoma$
Teague three hundred pounds, value received, as advised.
'* For The Cornwall and Devonshire Mining Company,
" Rowland WUks.
" To The Cornwall and Devonshire Mining
Company, Lombard Street, London.
" Accepted, for The Cornwall and Devonshire Mining
Company, John fVood, Secretary."
The meeting of the 7th of July, 1826, was the first meet-
ing of shareholders. The defendant attempted to shew,
by the cross-examination of the plaintiff's witnesses, that
the defendant attended this meeting merely for the purpose
of protesting against his liability as a member of the asso-
ciation, on account of the fraud in which the scheme had
been originally concocted; and he proposed to go into
evidence of such fraud. The learned judge refused to
MICHAELMAS TERM, X GEO. IV. 129
permit the cross-examination or to receive the evidence ^^^^-
tendered^ unless it could be shewn that the plaintiff himself Dickinson
was privy to the fraud. The jury having found a verdict «•
for the plaintiff,
Scarlett, A. G., in the following term, moved for a rule
to shew cause why a nonsuit should not be entered, or a
Dew trial had, upon the following grounds : — First, that
die evidence of the object for which the defendant attended
the meeting in July, 1826, viz. to disclaim the partnership
as a fraud, had been improperly stopped. Secondly, that
the learned judge had ruled, that the fraud in which the
association naight have been concocted could not be
;ooe into unless it could be brought home to the plaintiff.
Thirdly, that this was not such a partnership as would
eotitJe the parties to bind one another by the drawing of a bill
of exchange. Fourthly, that the drawing of such a bill was
proJiibited by the bank act (a). Fifthly, that the instrument
declared on was not a bill of exchange, nor was it a pro-
missory note assignable under the statute (6). A rule
having been granted upon all these points, cause was now
ihewn by
C. F. Williams. It is admitted on the part of the plaintiff,
t&at the defendant's counsel wished to cross-examine the
plaintiff's witness as to what took place at the meeting in
July. But that meeting was after the bill in question had
heen drawn, in fact, after it had become due. It was shewn,
aad not disputed, that the plaintiff was a bon& fide holder.
The defendant knew the directors, and took receipts from
them, thereby admitting that they constituted the execu-
&ve of the company. [Parker J. It was proved that the
defendant paid 50/., but it doe9 not appear that he got any
certificates.^ 1"^^ certificates were made out, but the de-
/eiidaot never called for them. [Lord Tenterden, C. J» It
'^ said that the defendant signed the deed, but it is not said
(«) Sg Sc -40 Geo. 3, c. 28, s. 15. (6) 3 & 4 Anne, c. 9.
VOL. V. K
130
1899.
CASES IN THE KING S BENCH,
what deed.] The deed was in their hands. [Bayky, J.
There is no proof of that. Positive assertion leads to no
result.] There is no suggestion that the defendant could
not produce the deed. The plaintiff is not fixed with know-
ledge of any improper proceeding either in the original con-
coction of this mining speculation, or in the representations
under which the defendant was induced to become a partner.
It was not the fault of the directors that the defendant did
not call for his certificates. The defendant finds that the
company is in a perilous state, but he has no right, on Uiat
ground, to look back to the motives of some of the original
projectors. [Lord Tenterden, C.J. The name of the de-
fendant is not held out.] There are many great concerns
in which the names of the individual partners do not appear.
[Bayhy^ J. But then you make out a partnership aliunde.]
A partnership deed is not necessary, Alderson v. Clay (a).
{^Bayley, J. There, probably, the party acted as a part"
ner.] The defendant has recognized the respectability of
the directors.
FoUettj on the same side. Upon the first point, namely,
that it was not sufficiently proved that the defendant was a
partner, it is submitted that no greater evidence of that
fact could be required from the plaintiff, who is a stranger,
than was actually adduced by him to shew that he was a
partner, and that he held himself out to the world as a
partner. [Parker J. Holding himself out to the world as
•a partner, is only evidence that he so held himself out to
the plaintiff. It is merely evidence from which a jury may
infer that credit was given to the defendant.} A jadge
would not hesitate to direct a jury, that if the defendant so
held himself out to the world, he so held himself out to the
plaintiff. The evidence of. the defendant's interference was
▼ery strong. After attending a meeting, he writes, asking
for shares. That, it is submitted, is an act done by him
for the purpose of becoming a member of the association.
(a) 1 Stark. N. P. C. 406.
MICHAELMAS T£RM| X GEO. IV. 131
He pays his money and obtains a receipt, expressing that ^^^^'
it is paid on account of shares. On taking, that receipt to i>ickin9on
the counting-house he became a member of the association. v*
Then he attends a meeting and pays a further sum of money.
How would the matter have stood if this had not been the
case of a joint stock company ? and there was no evidence
that it was. Suppose three persons agreeing to work a
miaei and a fourth applies to them to join them, pays
money in respect of his share, and attends meetings of the
coQoem, would not such application, payment and attend-
ance be sufficient evidence of partnership f Some members
were there in April, on which occasion the defendant also
attended. He left the receipts to be exchanged for other
documents; he paid an additional sum at the countings
house. All this would, in an ordinary case, have afforded
ample evidence of a partnership as regarded a stranger.
It would be impossible for him to go further, and produce
documents establishing the partnership. No jury could
hesitate to presume a partnership under such circumstances.
Then it can make no difference what the object of the
partnership is; the object here was trading in ore. Vice
V. Lady Amon (a) does not go to the length relied on by
the other side. In that case there was no evidence that
the defendant had gone to the counting-house. [Baylei/y J.
She had received her certificates, paid her deposit, and
represented herself as a partner.] The certificates were
not shewn to have been issued by proper authority, and
that circumstance was relied on in Lord Tenterden's charge
to the jury, in which he also says that it does not appear
chat the defendant's name was registered. Actions for
goods supplied to mines are of constant occurrence on the
western circuit, and no evidence is ever given to fix the
shareholders with an interest in the soil : no such evidence
cooid be produced. The ordinary course is this: — The
cost^book of the mine is produced, and it is shewn either
(a) Ante, i. 113; 1 Mood. Sc M. 96; reported also as to other points
7 B. & C. 409.
K 2
132
1839'.
CASES tVr THE KINgV B£KCH,
that the defendants attended meetings of the adventurers,
or that their names are entered in the cost-book. If fur-
ther evidence of interest was required, the plaintiffs mast
in every instance fail, the adventurers never taking any
interest by deed. [Bayley, J. There it is shewn that the
defendants participate in the profits.] This class of cases
was referred to merely for the purpose of answering the
objection, that it is not shewn that the defendant had an
interest in the soil. Then this case has been likened to
the farming of an estate, which does not subject the parties
to the operation of the bankrupt laws. It appears to be
immaterial to the present question whether adventurers in
mines are subject to the bankrupt laws or not, but it would
rather seem that they are so. Edeti, B. L. 4. Crawshay
V. Maule (a). [Parke, J. All the cases were considered in
Heane v. Rogers (6), in which case it was held, that where
a trader purchased materials for brick making, he was liable
to the bankrupt laws.] But it is not necessary to shew
that this defendant was liable to the bankrupt laws.
In Cratoshay v. Mauley Lord Eldon, C. says, " It is
said that this is only the case of tenancy in common
of a mine, if so, I think the doctrine with respect to
land would apply, and not the doctrine with respect
to trading partnerships; but a very difficult question
may arise, whether, if the parties, being originally tenants
in common of a mine, agree to become jointly interested
in the manufacture of its produce for the purpose of sale,
they continue mere tenants in common of the mine; still
more, if not only carrying the produce of their own mine
to market, they become purchasers of other property of a
like nature to be manufactured with their own. On such
a case in bankruptcy it might be a question whether they
were purchasers for the mere purpose of better bringing to
market the produce of their own mine, or for the purpose
also of bringing a distinct subject to market as traders/'
(a) 1 Swanston, 513.
{h) Ante, iv. 486; 9 B. «c C 577.
MICHAELMAS TERM, X GEO. IV. l33
And in Jeffreys v. Smith (a), his lordship says^ " The case 1829.
I alluded to was one before Lord Hardwicke in 1737, and
it probably did not occur to Lord Thurlow, when he
eipressed his doubt as to the interference of this Court iu
cases of trespass. Lord Hardwicke, in that case, says,
' that a colliery is to be considered in the nature of a
trade (b); and where persons have different interests in it,
it is to be regarded as a partnership ; and that the difficulty
of knowing what is to be paid for wages and the expenses
of management, gives the Court a jurisdiction as. to the
mesne profits which it would not assume with respect to
otiier lands. On this ground, and on account of the pecu-
liarity of this species of produce, the Court gives an injunc*
tioD apinat trespass, and allows a party to maintain a suit
for the profits which in other cases it would not do. Here
there are twenty shares, and if each owner may employ a
manager and a set of workmen, you destroy the subject
altogether; it renders it impossible to carry it on. It
appears to me, therefore, upon general principles, without
reference to the particular circumstances of any case, that
where persons are concerned in such an interest in lands as
a miDing concern is, this Court will appoint a receiver,
although they are tenants in common of it.' '*
In Storey v. Lord tVindsor (c), it was held, that a colliery
was a trade, and that the adventurers were therefore entitled
to an account in equity. So in Jesus College v. Bloom {d),
the digging of mines was said to be a sort of trade, entitling
parties to the same remedy as in other kinds of trading. If
necessary, therefore, this association might to a certain
extent be considered as a trading company. [Bayley, J*
Y'ou do not shew a participation of profits]. There were
no profits ; but ore was raised by the persons whom the
defendant met at the counting*house. A resolution was
(«) J Jac. & W. 298. Sayer v. Pierre, 1 Vez. sen. 332;
(ft) Vuie Storey v. Jytrd Windsor, Belt's Suppl 127.
3 Atk. 630, and cases there cited; (c) 2 Atk. 630.
(d) Ambler, 5i, 56.
134 CASES IN THE KINg's BENCH/
1899. entered into, authorizing the drawing of these bills.
[Parke, J. It does not appear that the defendant saw the
book.] If there was enough to fix him as a partner, it will
be presumed that he had access to the book. [Parker J.
Supposing the act of drawing this bill to be out of the legal
scope of the authority of the directors, there must, in ordet
to charge the defendant, be not only a subsequent know*
ledge but a subsequent ratification.] The party has the
opportunity of inspecting the book, and no disclaimer is
shewn. It would be incidental to such a partnership to
draw bills. One partner is supposed to be authorized
to do acts necessary to the carrying on of the trade. It is
not a necessary consequence of all partnerships, nor wou\d
such an authority exist, when it would be contrary to the
original agreement between the parties. [Bay ley, J. Can
it be necessary for the association to act before all the
money is received ?] The drawing of bills is as necessary
in their case as in that of any other trade. [Bay ley ^ J. If
it be put on the principle of necessity, must you not shew
that the necessity existed ?] It is not put upon the necessity
of drawing this particular bill. How is a stranger to know
whether the necessity exists in the particular case or not.
It is not necessary that the trading should be such as would
bring the association within the operation of the bankrupt
laws, in order to enable it to draw bills of exchange. If the
trade can be carried on more easily with the power than
without it, such a power will be presumed. [JBaj^Iey, 3.
Here it appears there were to be 10,000 shareholders.]
That circumstance does not appear to affect the question of
authority. Perring v. Hone (a), was a much weaker case
than the present. Though it is not mentioned in the report,
the argument turned upon the evidence of the plaintiffs
having got rid of their scrip. [Bayley,3. There the plain-
tiffs affirmed their being members by selling.] Here the
defendant was a party contributing. [Bajy/ey, J. In
(a) 4 Bifigli. 2U.
MICHAELMAS T£R3I« X GEO. IV. 135
Ptning y. Hone the plaintiffs were parties to the original 1829.
undertaking.] In Ellis v. Schm€eck{a), the defendants ^^^^'^
purchased the scrip after the company had been formed. v.
It is stated in the marginal note» that the goods had been Valpt.
famished after the defendants had become holders of the
scrip; but from the case itself it appears that that state-
ment applies only to part of the sum for which the plaintiff
sued and recovered. [Parke, J. Have you a right to take
advantage of the meeting in July? You could not be
entitled to use that fact without allowing the defendant to
expluB his conduct upon that occasion. Bayley, J. You
did JO effect use it.] If there was sufficient evidence
aliuodi, the Court would not grant a new trial merely on
tkis ground (6). [Parke, J. It is impossible to say
whether the jury would have come to the same conclusion
if that evidence had neither been excluded nor explained.]
If the defendant became a partner by fraud, still« being a
partner, he was liable. Suppose bankers represent them-
selves as solvent, when they are certainly otherwise, and by
such fraudulent representation induce a person to join
them, that person would still be a partner, and liable to
any engagements which the firm might afterwards contract,
unless notice of the fraud is brought home to the plaintiffs;
and it is immaterial, as far as he is concerned, under what
circtiixistances the partnership was formed.
Scarleti, A. G. contrd. One fact has not been adverted
to, namely, the consideration given by the plaintiff for this
note. There being fraud in the concoction of the note, it
lay upon him to shew from whom he took it. [Parke, J.
That point does not appear to have been made at the trial.
lArd Tenterden, C. J. You ought to have desired that
point to be left to the jury if you meant to take that objec-
tion.] I consider that it makes the point as to the fraud
stronger, but I pass by that. In order to make the de-
fendant liable in this action^ he must have held himself out
(a) S Bingh. 5'i1. Tfynhamv, Tyler^ € Bingh. 561;
(*; Vid€ S. P, ace. Doe d. Lord 4 M. & P. 377.
Dickinson
136 CASES IX THE king's BENCH^
I8e9. &s a partner, or he must have been a partner. It was ob-
jected under the bank acts that it was not competent to
.-.«ww„ ^jjgg^ parties to draw a bill. [Parke, J. There was no
Valpv. evidence of any custom of otiier companies to draw bills,
therefore it must be left as a question of law. Lord Ten-'
terden, C. J. I think there must be an authority to draw
bills, but it is quite a distinct question whether the directors
had authority to bind the company by issuing this instru-
ment. If the execution of the deed was one mode of
shewing that the defendant was a partner, it lay on the
plaintiff to produce that evidence.] Without question the
directors might bind tbemselvesi but if they can bind the
shareholders by any bills which they may choose to draw,
such a power would be so full of mischief, yet it was not
left to the jury. [Lord Tenterden, C. J. My only doubt
is whether there should be a nonsuit or a new trial.] If the
law furnishes no proof of authority the plaintiff must be
nonsuited, unless he produces the proof. It is a great
deal too much to say that the directors have power to
bind by accepting bills* It may be competent for them to
bind shareholders for goods ordered for the mine, whether
they are general partners or only in respect of the particu-
lar transaction. Part-owners of ships may bind one another
for repairs, not by accepting bills. So, joint occupiers
of land. Greenslade v. Dower (a). In that case, though
a partnership existed, it was held not to be such a part-
nership as to entitle, one to bind the other by accepting
bills. Here the partnership was limited to certain opera-
tions ; nor was it so conducted as to render it necessaiy
that any such power should exist. No presumption there-
fore of authority is raised.
Lord Tentekdbn, C.J. — Assuming that the defendant
was shewn to be a partner, and not merely to have done
acts in contemplation of a partnership, it was not proved
that he was a member of a company with an authority on the
{a) 1 M. & R. 640; 7 B. & C. 635.
MICHAELMAS TERM, X GEO. IV.
part of that company to bind him by drawing a bill. The
plaintiff should have shewn that the defendant, by deed or
itherwise, had authorized the directors so to bind the share-
holders. In the absence of such evidence no authority
could be presumed, and there was nothing to fix the de-
fendant with the bill. The plaintiff ought to have been
paid in money.
Batley, J. — I am not prepared to say that sufficient was
made out to charge the defendant as an actual partner, or as
having held himself out as a partner ; but that would only go
to a new trial* The learned judge has assumed that that
was done which amounted to an actual partnership. It
should be made out affirmatively that it was such a concern
>u entitled the directors to bind all the members. The only
4|'iestion for the jury would be, whether in such companies
suih a power is in constant use, or it is necessary that there
ahouU be sucb power. There was no evidence on either
point which would warrant its being left to the jury to find
whethi r such a power was necessary. No evidence was
given o." what was done in other companies. I apprehend
that such a power was not necessary, and that the payments
should be made in ready money. To hold otherwise would
be to give the directors an unlimited power to pledge the
credit of persons who could by no possibility interfere.
LiTTLEDALEy J. — ^Thcre must either be a nonsuit or a
new trial. The form of the bill declared on is very un-
uaoal. It is not a bill drawn by individuals or by persons
carrying on a particular business. Persons taking such a
bill had full notice that it was not an ordinary bill. It was
therefore incumbent on them to ascertain and to prove that
tbe parties by whom the bill was drawn had authority
to bind the shareholders. In ordinary cases there is
an implied authority resulting from the relation of
partner. That is not the case in a mining company.
The nature of the association should have been shewn.
Valpt.
138 CASES IN THE KING's BENCH,
1899. In the case of a farm it is not competent for one
Dickinson J^^"^ owner to bind his companion by drawing a bill of
V* exchange. The object of such a partnership is to sell the
produce of the farm. It is true that in the course of that
business it may be necessary to buy many things, but that
does not make it necessary that bills should be drawn.
Here, if the nature of this business is in fact such as to
render it necessary that such a bill should be drawn, it was
for the plaintiff to shew it. A man may be secretary to
such an association without having any power to bind the
shareholders by drawing bills even with the sanction of the
directors. It was not shewn that it was necessary that
there should be a power to draw bills, still less to draw
bills in this particular form. In order to prove that such a
power was necessary in the present case, it was incumbent
on the plaintiff to shew the nature of the concern carried
on by the defendants, or by others in the same business.
The instrument declared on is, in effect, a promissory note;
and it would require a great deal of evidence to make out
that the shareholders would be bound by a promissory note
if they would be bound by a bill. If this point was reserved
there must be a nonsuit, if not, a new trial.
Parke, J.*-I am clearly of opinion that there must be
a nonsuit if this point was reserved ; if not, there must be
a new trial, upon more grounds than one. This bill not
being accepted by the defendant personally, the plaintiff
was bound to shew that the acceptance was given by his
authority, or that he has ratified it, notwithstanding the
plaintiff may be a holder for a valuable consideration.
Here, there was no express authority, and no ratification.
But it was contended that an implied authority arose bj
reason of partnership; and it was said that the defendant
held himself out as a partner, and that he was in fact a
partner. If the defendant represented himself to the
plaintiff as a partner, or held himself out as a partner in such
a manner as to lead the jury to iufer that the plaintiff gave
MICHAELMAS T£RM» X GEO. IV. 139
credit to the defendant as a partner, the defendant would 1829.
be liable. But no such representation appears to have
been made. Nor was there any evidence that the defend-
ant was in fact a partner. The facts proved are all consis-
tent with ao intention to become a partner at 'a subsequent
period upon certain conditions, until the performance of
which no partnership would be constituted. Supposing,
however, that the defendant was a partner, no authority
appears to arise out of the relation of partner in a mining
compaoj to draw any more than in that of joint occupiers
of land to draw bills of exchange, and certainly never to
draw such a bill as this, which is in substance a promissory
note. The argument of the plaintiff would go to shew that
is a mining partnership each partner, by drawing bills and
passing them into the hands of iudorsers, might pledge the
liability of his co-adventurers to any amount. I offer no
opinion upon the question whether the proposed evidence
of fraud would have constituted a defence. In contending
that such evidence would not affect the plaintiff without
shewing him to be conusant of the fraud, it appears to be
usumed that he was acting on the belief that the defendant
was a partner. If the defendant had made a representation
to that effect, the fraud practised against himself would be
no answer to this action. But the question here is whether
an actnaj partnership has been formed as between the parties,
and whether evidence of fraud is admissible to negative the
execution of any partnership inter se, a question of con**
sidenble nicety.
Rule absolute to enter a nonsuit (a).
(•) See Bomme v. Freeth, ante, iv. 513 ; 9 B. & C. 633, S. C.
140
CAS£S IN THE KING S BKNCH»
The King v. Sir Thomas Maryon Wilson, Bart., Lord
of the Mauor of Hampstead, and William Lyddon,
18^9. . ^ * \m
N^-vi^/ his Steward of the said Manor.
The lord of a A MANDAMUS issued to the lord of the mauor of
bound to ad- Hampstead and his steward, commanding them to admit
init the cus- Joseph Wabnsley, the heir at law, according to the custom
a copyholder of the manor, of Henry Flitcroft, deceased, to the imme*
there'be'a^siu-- ^*^''^ tenancy in possession of certain estates held of the
render to the manor (tf) by copy of court roll, of which Flitcroft had
use of a will,
and a devise
by the surren-
deror, there
being no claim
of admittance
on the part of
the devisee.
what
This expression is some-
incorrect. The copyholds
are witliin and parcel of the
demesnes of the manor; they are
not held of the manor, but are
So, although i^u^ manerium. Lands held of
IV'S^jlT^ the manor are those lands which
tne return to a . , - ,
mandamus) bavmg been formerly parcel of the
that the non- manor were severed from it by
claim of ad- subinfeudation before the passing
mittance on ^ y^^ ^^^^^ ^f q^j^ Emptoies, in
the part of the ^^^,. . ^^ ^ ',,
devisee, is the ^^^ (*» ^« ^^^ ^^^ ^^^^ ^^^
result of a con- of a subject), or before the statute
£)e Pnerogativft Reg^s, in 1SS4(in
the case of a manor held of the
crown). These sob-infeoflees be-
came the freehold tenants of the
trivance be-
tween him
and the cus-
tomary heir to
deprive the
loraofthe fine lord, the barons of his curia baro-
which would
be payable
upon the ad-
mittance of
the devisee.
In the case
of a devise of
copyhold sui^
rendered to
the use of the
num. {Vide post^ 155.) Their
lands were no longer parcel of
tl)e manor, but were held of the
manor, or, to speak with more
precision, they were held of the
lord, at of hit manor, ut de manerio.
The services of these tenants are
parcel of the manor, and so much
will, the estate so, that if their services be de-
descends uDon g^ ^j^ ^r severed from the de-
the heir, sub- »k k i
ject to contm-
mesnes, the manor has no longer a
legal existence. One of these ser-
vices, namely, the secta ad curiam
baronum, is so essentially parcel of
the manor that it is said that upon
the number of suitor-freeholders
being reduced so low that no court
baron can be held, the estate
ceases to be a manor in law, and
is only a manor in repntation.
By this expression however, nothing
more seems to be meant than this :
a court baron is a necessary inci-
dent to a manor; if, therefore, the
power of holding a court baron be
destroyed, the estate, though re-
taining its manerial character in
every other respect can no longer
be legally designated as a manor.
If, therefore, the lord were to re-
lease to hb freehold tenants the
suit of court, the manor would be
as effectually destroyed or reduced
to that imperfect state in which it
receives the rather inappropriate
name of a manor by reputation, as
if all the freeholds had escheated,
or as if the lord had aliened his
seigniory over these freeholds.
Where a manor has become an
gency of being
devested by the admittance of the devisee.
No disclaimer by the devisee is therefore necessary to vest the estate in the heir.
A copyhold may be disclaimed by parol, or by other matter in pays.
MICHAELMAS TERM, X GEO. IV.
died seised, besides the estates held of this manor to
which ff'almsley had been already admitted, or to shew
cause to the contrary. This writ was founded upon a sug-
gestion, first made by affidavit upon the motion for the man-
damas^and afterwards inserted in the writ, that Hampstead
is an ancient manor, within (a) which are various copyhold
tenements parcel of the said manor (a), and granted by and
held of {b) the lord of the manor, according to the custom
of the manor, and demised and demisable (c) by copy of
imperfect manor, or a manor in
repatatioDyby the destruction of all
the suit-readeriog tenements ex-
cept one (or perhaps two), it would
leem that the manor would revive
whenever the remaining freehold
tenement was divided amongst
several tenants holding in several-
tv, or even as tenants in common,
sooe each of these new tenants
wooid owe suit at the court baron,
snch toit not being a service arising
oot of cHtfoHt, but a service neces-
sarily incident to a seigniory by the
common law. (Post, 157). The re-
daction, therefore, of the number of
thefireehold tenants to one (or two,
if three be necessary to* constitute
a court baron,) seems rather to
create a suMpenshn than an extinc-
tion of the manor. So, it would ap-
pear that the manor would be sus-
pended if the lord made a lease for
years of the services of his freehold
tenants, as during the term the te-
nants would owe suit and service at
the court of the lessee, who, not
being lessee of the demesnes, would
not be lord of the manor even du-
ring the term.
(«) The copyholds are within
and ptrcel of the manor, suprd (a).
(h) These words would apply to
the lands of the freeholders or tene-
noentanands. With reference to
the copyholds they are incorrect.
(c) No land can be granted by
copy of court roll which has not
been demitable by copy of court
roll from the commencement of
legal memory, which, though for-
merly altered from time to time,
has long remained fixed at the
coronation of Richard I. (6 July,
1189). If, therefore, it can be
shewn that at any time within that
period the power of demising has
been suspended by the intervention
of an estate for life or for years^
all subsequent copyhold grants are
void. But it is not necessary that
the land should have been actually
demited by copy of court roll.
Lands which have always remain-
ed in the hands of the lord, or in
the hands of his tenants at will,
whether by free tenure, at the will
of both parties, or by villein tenure,
at the will of the lord only, may
still retain their customary dimisii-
hiUty^ or may still be demisable by
copy of court roll. The term " al-
ways demised and demisable by
copy of court roll'' does not ap-
pear to be strictly correct. For
though the tenant is said to hold
by copy of court roll, because, the
copy is the evidence which he pos-
sesses of his estate, yet the demise
is by tlie roll itself, and is antece-
dent to the copy. Nor does the
granting of the copy seeixi to have
142
1899.
The King
V,
WiLtOV.
CAS£S IN THE KINGS BENCH,
court roll of the manor by the lord of the manor for the time
being, according to the custom of the manor, to any peraon
or persons willing to take the same in fee simple (a) or
otherwise (b) at the will of the lord, according to the cus-
tom of the manor, and in which manor during all the time
aforesaid the lord of the manor or his steward of the manor
for the time being, once or oftener in each year, have held,
and still of right ought to hold, customary (c) courts of the
manor, and have at such courts admitted and ought to
admit such persons as have been and are entitled to be
admitted as tenants of the customary tenements, and to
such interests as they have required and may require^ ac-
cording to the custom of the manor ; that Henry Flitcroft
was in or about the year 1769 duly admitted to certain
copyhold tenements parcel of the manor, consisting (among
been coeval with the practice of
entering the admittance upon the
rolls. The tenants were called
'' tenants by the rolls of the
manoi^' before they acquired die
name of tenants by copy of court
roil. M. 49 £. 3, fo. S5, pi. 9.
(tf) Though in point of tenure a
copyhold is an estate in villenage,
being held at the will of the lord,
and not at the will of the tenant
also, yet, if the custom warrant
such an extension, it may in point
of duration of intertU be held in fee
simple. The Cornish villein te-
nures III nativft coniientJone, de tep-
tem annos in ieptem annoi, appear
also to have been susceptible of an
extension, in point of duration of
interest, to a fee simple. These
estates, though, like copyholds, not
inconsistent with the personal free-
dom of the tenant, have long since
disappeared. The higher species
of conventionary tenure, in liber&
conventianef de teptem anntn in
ieptem anno$, which still subsists,
is likewise capable of acquirinp; a
customary duration in fee simple.
In copyholds, however, the exten-
sion of the original interest in point
of duration is noticed in the instru-
ment of grant to which the lord is
party; whereas in the Cornish as-
sessionable manors, though the cus-
tomary tenant surrenders to the
purchaser, in fee according to the
custom of the manor^ the surren-
deree is admitted, by the duke's
commissioners upon the assession
roll, merely to the original estate
from seven years to seven years,
according to the custom of the
manoTy which words seena, in
the former place, to point to the
septennial tenure, and in the latter,
to the customary permanence of
the interest.
(b) Where the custom warrants
a grant in fee simple, the lord may
create any less estate. 4 Co. Rep.
23 a; Co.Litt. 52, b.; 1 Roll. Abr.
511, 1. 30.
(c) Vide post, US, (a).
Wilson.
MICHAELMAS TERM, X GEO. IV.
Other tlHDgs) of a bouse and 46 acres of land at West End,
in the said manor, and a house at Frognall, in the said manor, xhTking
to hold the same to him and his heirs at the will of the lord, v.
according to the custom of the manor ; and that Fiitcroft,
on or about 3d April, 1826, died so seised of the said copy-
hold tenements, and that Walmdey is the heir at law, accord*
ing to the custom of the manor, of Flitcroft; that at a general
customary (a) court holden for the manor, on or about the
eighth day of January 1829, application was made to
the steward, by and on behalf of Walmsley, to admit him,
Wabndeyf so being heir at law, according to the custom of
the manor, of Flitcroft, to the said copyhold tenements, as
tenant thereof in possession, and that frequent application
bad since been made by Walmsley to admit him to the same
copyhold tenements as the right heir and heir at law of
Flitcroft, according to the custom of the manor ; that the
steward had refused to admit Walmsley as tenant in pos-
session of the said copyhold premises by reason or pretence
of a certain alleged surrender made by Flitcroft in his life
time to the use of his will, and of certain life and other
estates alleged to have been devised in and by the will of
Flitcroft after the time of the said surrender; and that
on the twenty-eighth day of May, in the year 1829,
at a certain customary court then held in and for the
manor, Walmsley had attended the said court, and had again
requested the said steward to admit him, Walmsley^ to the
said copyhold tenements as tenant in possession, and pro-
duced and tendered to the steward a certain disclaimer duly
made and executed by James Fletcher and Anna Maria
Etcher, the only surviving devisees under the said will,
whereby they the said James Fletcher and Anna Maria
Fletcher disclaimed, renounced, and relinquished all right
and title whatsoever of, in or to the said copyhold
tenements ; yet the defendants well knowing the pre-
(«) The proceedings in this case freeholders only, and in which the
would take place, not in the Coart suitors are judges, but in the Cus-
fiaroD, which is the Court of the tomary Court, at which the copy^
144
J82g.
The Kino
V,
Wilson.
CASES IK THE KINGS B£NCH|
mises, but not regarding their duty in that behalf, had
absolutely refused^ and still did refuse, to admit Walmsky
to the said copyhold tenements as tenant in possession
thereof, according ta the custom of the manor.
To this writ the defendants returned, that at a court
baron (a) held for the manor, 8 May, 1769, Flitcroft had been
duly admitted as tenant to the copyhold tenements holden of
the lord of the manor (6) and parcel of the manor, to hold
the same to him and his heirs at the will of the lord of the
manor, according to the custom of the manor, as in the
holders are bound to attend, bat
in which the steward of the manor
IS the judge. For the sake of con-
venience both Courts are generally
held at the same time, as is also
the Court Leet, where the lord pos-
sesses that franchise; but though
these three Courts, or any two of
them, may, by usage, be held at the
same time and place, and the pro-
ceedings entered in the same book,
they are perfectly distinct and in-
dependent.
(a) But see the preceding note.
(6) Copyholds being part of the
demesnes are parctl of the manor,
and not htld oftYit manor, stiprd,
143 (a). The tenemental lands, or
lands held by the freeholders of the
manor, are not, stricdy speaking,
jMirce/of the manor, yet as the ser-
vices of these freeholders are par-
cel of the manor, and as the lands
jihemselves must have been once
part of the demesnes, and are still
within the seigniory, such tene-
mental lands were said (by Shard,
J.) to be quasi parcel (par roaner
parcel) of the manor. Fitz. Abr.
12 Ass. 18, Auncien Demesne,
pi. 33, which is a more full report
than is to be found in the Year
Book, 12 Ass. fol. 35, pi. 18.
where this dictum is not men-
tioned.
Much confusion often arises in
the use of the terms ** within the *
manor," " within the fee and seig>
niory of the manor,** and ** within
the ambit of the manor.** The
first of these terms applies to land
in the possession of the lord, or of
his leaseholders or copyholders.
The second, to lands which, being
formerly within the manor, were,
before the statute of Quia Emp-
tores or De Praerogativft Regjis,
granted by the lord to be held of
the grantor in fee /is of his manor.
The term ** within the ambit of the
manor," is applicable to land wluch,
though surrounded by the manor,
is neither parcel of the manor nor
held of the manor; land which
never was connected with the
manor in point of tenure, or
which, having been formerly
within the manor, has been
aliened from it in fee, either by
a direct conveyance, tenendum of
the chief lord of the fee, before or
since the statutes, or by a subin-
feoffment before the statutes, :iince
followed by an alienation of the
seigniory to a stranger, or by a re-
lease of the seigniory to the tenant.
WlLSOV.
MICHAELMAS TERM, X GEO. IV.
said writ is mentioned; and that Flitcroft did at such Court,
after his adoiission to the copyhold tenements as aforesaid, xu^X^
duly surrender the same into the hands of the lord of the v.
maDor, by the rod, by the hands and acceptance of the
steward of the manor, according to the custom of the
manor, to and for such uses, intents, and purposes as he,
JFYtVcro^, should, in and by his last will and testament in
writing, thereof direct, declare, limit, or appoint; that
on the Sd day of April, 1826, Flitcrqfi died so seised of the
copyhold tenements as aforesaid, having first duly made and
published his last will and testament in writing, duly exe-
cuted for devising copyhold estate, whereby he devised the
copyhold tenements to his mother for life, with remainder,
after her decease, to the use of James Fletcher for life;
and from and after the determination of that estate, to the
use of trustees in trust to support and preserve. Sic. ; and
firoffl and after his decease to his first and other sons in tail
male, with remainder to all and every the daughter and
daughters of J. Fletcher in tail general; and on failure; of
issue of J. Fletcher, to the use of Anna M. Fletcher for life,
with like limitations to her issue; and in default thereof to
the use of M. Fletcher for life, with like limitations to her
issue, and the ultimate remainder to the right heirs of
Ffiicrofi; that Lyddon did, on the 15th day of June,
18£7, make search at the Register Office for the county of
Middlesex, and on such search did find an entry in such
register of the memorial of an indenture of release, bear-
ing date the 24th day of August, 1826, made between
J. Fletcher of the first part, A. M. Fletcher of the second
part, and Walmsley of the third part; by which release
J. Fischer and J. M. Fletcher, for the considerations therein
expressed, did demise, release, and for ever quit claim
unto Walmsley, all the copyhold messuages or tenements,
lands and other hereditaments, situate and being within
and held of (a) the said manor of Hampstead, of or to
which Flitcroft was seised or entitled at the time of making
(fl) Vide supra, n. (a).
VOL. V. L
146 CASES IN TH£ KINO's B£NCH,
18S9. his thereinbefore recited mlU and also at his death, with
,^!r^C^ ^he appurtenances and all the estate, &c« : to hold the said
The KiHo ;\^ o , . , . ,
o. copyhold messuages, &c., thereby released^ and every part
Wilson, thereof, to Walmsley, his heirs and assigns, for and during
all the rights and interests by or under the said will of
FUtcrtfi devised to or otherwise vested in J. Fletcher or
il. M. Fletcher, or either of them ; to the end and intent
the same rights and interests might severally merge and be
extinguished in the estate which had descended upon
Walfnslejf as customary heir of F/itcroft; that Lyddon
also found on such search another entry in such register of
the memorial of another indenture bearing date 25 August,
16^, and made between Walmsley of the first part, A. M.
Fletcher of the second part, and J. Fletcher of the third
part; by which indenture, in consideration of a covenant
entered into by J.Fletcher and il. M. Fletcher to surrender
all their estate and interest in certain copyhold estates of
Ftitcrqfi, and also in consideration of 2,500/. to Walmsley
paid by J. Fletcher^ the said Walmsley, with the consent
and approbation, and at the request of A. M. Fletcher, did
grant, bargain, sell, alien and confirm, unto J. Fletcher and
his heirs, all that the remainder or reversion in fee simple,
to take effect in possession upon the several deceases of
J. Fktcher and A. AL Fletcher, and failure of th« issue of
the respective bodies of J. Fletcher and A. M. Fletcher of
and in the therein described lands, tithes and hereditaments
in Hendon, and all other the manors, rectories, advowsons,
messuages or tenements, lands, tithes, hereditamei^ts and
premises whatsoever of Flitcroft in Hendon, habendum
unto the use of J. Fletcher and his heirs ; that the said
copyhold tenements mentioned in the said indeoture of the
24th of August, 1826, and the said copyhold tenements
mentioned in the said indenture of the 25th of Augnst>
1826, are the same copyhold tenements, and not other or
different, and that they comprise the said copyhold tene-
ments devised by the will of Flitcrofl ; that the supposed
disclaimer by the said J. Fletcher and A, M. Fletcher bears
date the 4th of May, 1827, and subsequently to the indeu-
Wilson.
MICHAELMAS TERM, X GEO. IV.
tores of 24 and 25 August, 1826, and is colourable only,
»d was made for the purpose of depriving and defrauding xhe Kino
the lord of the said manor of the fines which would have __. v.
beea payable to him on the admissions of J. FleUhtr and
A. If. Fletcher respectively to their said life estates in the
said copyholds, according to the custom of the manor;
that »t a general court baron {a) held for the manor on the
8th of January, 18279 Walmsley was admitted, as the heir
(JFUicrofl, to the immediate tenancy in possession of the
copyhoM estate in the manor, late of Flitcroft, not surren-
dered to the use of his will, and that Walmsley was so
admitted by Lyddon, tlie steward of the said manor, from
his erroneous belief that the said copyhold estate did not
pass by the devise in the said will, because it had not been
surrendered to the use of Fliicroft's will, and therefore
descended to Walmsley as heir, and that Walmaley was
admitted to the same estate upon no other ground than
that the same had so descended to him ; that within the
manor there now is, and from time whereof &c. hath beeut
a certain ancient and laudable custom there used and ap«
proved of, that is to say, that when a customary tenant
has surrendered a customary tenement of the manor to the
use of his will, and has afterwards devised the same to any
person or persons for life or in tail, with remainder to any
other person or persons for life or in tail, or in fee, such
devisee or devisees has or have been admitted by the lord
of the manor to the same for or according to the estate or
interest, or respective estates or interests of such devisee
or devisees therein. And these are the causes, 8cc.
Longf for the prosecutor of the mandamus. Upon this
writ and return five points are raised for the consideration
of the Court. First, on the death of Flitcroft the estate de-
scended to bis heir. Secondly, on the neglect of the de-
visees to come to be admitted, and more especially after
their disclaimer, the heir had a right to be admitted.
(fl) AniCy 143 (fl).
l2
148 CASES IN THE KlNO's BENCH,
18^9. Thirdly, the deeds of 24th and 25th of August, 1826, did
not take away the right of the heir to be admitted. Fourthly,
the ieiniount of the fines payable to the lord io respect
of the admission of fValmsley, cannot be gone into upon
a return to a mandamus. Fifthly, the custom stated in
the return does not vary the right of the heir. On all these
grounds Walmsley is entitled to a peremptory mandamus.
On the death of Flitcroft, the estate of which he died seised
vested in his heir. Roe d. Jeffereys v. Hicks (a). In that
case Joseph Jeffereys surrendered to the use of his will, and
devised to his niece Elizabeth, who was attainted and exe-
cuted for the murder of her uncle, and it was held that the
estate descended upon the heir of the uncle, and that the
niece, who was not the heir, had nothing to forfeit to the
lord. In the case of a surrender to the use of a will, the
estate remains in the surrenderor and his heir until the
admittance of the devisee. Smith v. Triggs{b). A surren-
deree cannot devise before admittance. The cases which
shew that where there is an intermediate life estate, the
estate does not descend, are not disputed. Here, in whom
M'ould the estate be, if it did not descend ? In no case can
there be any thing like' an abeyance of the copyhold. As
soon as one person ceases to hold, another becomes tenant.
The estate descends, but liable to be divested upon the
admittance of the surrenderee. Secondly, if the devisee
do not choose to take the tenancy upon himself, either the
lord has a right to compel the heir to be admitted, or the
heir has a right to assume the tenancy. Here there is a
distinct disclaimer. In Townson v. Tickell (c), a disclaimer
(a) 2 Wils. IS ; 1 Ken. 110. cordance with that given in Tovn-
(6) 1 Stra. 487. son v. Tkkelly was reversed in the
(c) 3 B. & A. 31, overruling House of Lords. For a full no-
Butler and Baker*s case, 3 Co. Rep. count of the proceedings in 7a»ii^
25, upon the supposed authority of son v. 'HckeU^ and the peculiar
Bonifaut v. Greenfield, Cro. £1. 80, circumstances attending that case,
which turned upon the wording of vide ante, iv. 189, (a)< And see
a particular act of parliament, and litt. Sect. 685; Co. Litt. S60, n. ;
of Thomson \\ Leach, 2 Ventr. 196, Doe v. Sn^th, 6 B. & C. US; 9
the judgment in which case, in ac- D. 6c R. 136.
The Kino
V.
MICHAELMAS TERM, X GEO. IV. 149
bj deed, by the devisee of a freehold estate, was held to be ^q29.
sufficient to divest the estate. The present case is stronger,
because in a copyhold the estate does not vest in the devisee
by the will, which only operates as a designation of the Wilson.
person entitled to be admitted under the surrender. In
Towmofi \. Tickell, Lord Tenierden says, " the law is cer-
tainly not so absurd as to force a man to take an estate
against his will." Ilolroyd, J. says, '' that even a parol
disclaimer would be suflScient," relying upon Bonifaut v.
Greenfield (a). This will apply with still greater force to
the case of copyholds. In the case of the devise of a free-
bold, the devisee becomes seised upon the death of the
devisor, by force of the Statute of Wills. A plausible argu-
ment is raised in Tawnson v. Tickell in favour of the neces-
sity of a disclaimer in a Court of record, but that objection
was overruled. In Wainwright v. Elwell{b) it was held by
Plumer, V.C. that the devisee of a copyhold surrendered
to the use of the will of the surrenderor could not devise.
[Bayley, J. A surrenderee cannot surrender before adniit-
Unce, Doe d. Tofield v. ToJield(c).] Thirdly, the deeds of
S4th and 25th of August, 1826, do not take away the right
of the heir to be admitted. An equitable interest is assign-
able, and it would be strange if the interest of the devisee
of a copyhold could not be got rid of. The second deed {d)
states a transaction which is partly in the nature of a sale
and partly in the nature of an exchange. The lord has
nothing to do with either of these deeds, and cannot take
adtautage of the arrangements effected by them, whatever
question they, may give rise to between the heir and the
devisees in a Court of equity. The heir has given a valua-
ble consideration for the release of the surrenderees.
(a) Which merely decided what ance of such executorship. See
shoold amount to a refusal of the this case stated and eiaraineil,
office of executor, and what should an/e, iv. 190, n.
(not divest an estate, but) prevent (/>) 1 Madd. 687.
an estate from vesting, which was (r) 1 1 East, 246.
made depeudant upon the accept- (</) 25 Augubt, 1826, vnte, 146.
CASES IN THE KING S BENCH,
Fourthly^ no question as to the amount of fine can arise
until after admittance (a). [This was conceded on the
other side.] Fifthly, the customs set out pervade all copy-
hold manors. [Comyn, It is not admitted that the lord
cannot compel the devisee of the surrenderor to come in
and be admitted tenant. Bayley, J. The custom stated is
in effect, that the lord may compel the devisee to come in,
and may seize quousque.^ If the devisee be not compella-
ble to come in, the heir must come in, as the lord must
not lose his tenant. These rights are reciprocal.
Comyn, contrsk. It is the right and the duty of the lord
to see that he has a proper and legal tenant admitted to the
copyhold. All will resolve itself into a question whether
the heir has a right to be admitted tenant in possession.
It is submitted that he has no such right, because the
estate has not descended to him though heir^ and he is
only entitled upon failure of all the intermediate estates.
He is heir at law in remainder. The lord is bound to see
that a proper person is admitted tenant. [,Bayley, J.
What authority is there for that proposition?] It requires
none. [Lord Tenterden, C.3. The question is the same
as if the surrenderor had devised away in fee.] Until the
death of the appointees, the heir has no estate. The heir
can have no estate until the life estate is extinct and upon
failure of issue in tail. [Bayley, J. He does not claim
under the remainder, but as heir of the person last seised,
no other person appearing to claim to be admitted.] The
lord knowing that another, person is entitled, is bound to
hold the estate for the party entitled. It is merely co\onr-
able and fraudulent in Walmsley to claim as heir, when he
has a secret deed from the persons interested under the
devise. The cases cited to shew that a party is not bound
to take an estate against his will, do not apply. There is
no doubt but that such party may disclaim, but it is denied
that the devisee has a right to claim an interest, and to
convey that interest clandestinely to the heir, for the pur-
(«) S. P, Bucon v. Flatman, cited 4 Co. llep. 28, a.
The King
]UICHA£LMAS TERM, X GEO. IV. 151
pose of getting rid of the liability of the devisee to he i8«0.
admitted. [Boy/ey, J. What right has the lord but to
have a tenant i The estate remains in the surrenderor and
bifi heirs until the suiTenderee comes in to be admitted. Wilson.
If the surrenderee surrender before admittance, he conveys
00 estate of which a Court of law can take cognizance. So
if such surrenderee devise before admittance.] The writ
does not state that the claimant is heir at law of the estate.
[Bayleyf J. It alleges that F/ilcroft died seised, and that
Walmtky is heir according to the custom, upon which the
law says that he is heir of the estate.] He is not heir at
liir of this estate, but he is entitled under the intermediate
devise. [Parke^ J. The estate must be taken to descend,
UQtil the contrary be shewn.] The mere neglect of the
teoants for life to come in does not affect the rights of these
parties. The Court will not say that the lord shall have a
tenant although he has no right to refuse to admit the
proper tenant.
Loitg, in reply, was stopped by the Court.
LordTENTERDEN, C.J. — By the common law the estate
is in the surrenderor and his heirs until the surrenderee
comes in to be admitted. Here the estate descended sub-
ject to the right of the appointees to come in and claim
admittance. When they declare that they will not come in,
that obstacle is removed. If the effect of the deeds were
to shew that the devisees were taking a benefit under the
will, and that a loss accrued to the lord by the arrange-
ments made between these parties, the lord must proceed
in another way. We have only to see whether the heir has
a right to be admitted.
Bayley, J. — The Court is bound to look to the legal
title. The lord has a right to have a person in whom the
legal estate is, admitted on the roll, and that person has a
right to be admitted. The estate is in the surrenderor and
The Kino
152 GASES IN THE KlNC's BENCH,
1829. in bis heirs until the devisee^ ivho is the surrenderee desig-
nated by the will, comes in. Until he comes in, the estate
V, is in the heir, who now claims to be admitted, not in respect
Wilson. ^f j^jg reversion, but in respect of his immediate estate.
FlUcrofi died seised, therefore the estate descended. The
heir may bring trespass ; which shews that the estate de«
scends upon him. Except as against the lord, the heir
M'ould have the whole estate in him. l^e admittance is
for the benefit of the lord. The lord cannot seize or
make proclamations, except for the purpose of placing
himself in a situation to do what the mandamus requires,
and it is only when he has so done that he will be entitled
to the fines. My only doubt was, whether the heir could
obtain a mandamus, because the right of possession was in
him before. But that doubt is removed by the case of
JBejr V. The Brewers' Company (a).
LiTTLEDALE, J. — I am of the same opinion. It is not
necessary to consider what fines the lord is entitled to
receive. If this is, as has been insinuated, a scheme and
contrivance to do that which the law does not sanction in
defeating the claim of the lord to new or greater fines, the
lord must have his remedy either by action or by bill in
equity. Here the legal estate is to be considered as if it
virere a case of ejectment. It is the same thing whether
the surrenderor makes a will or not; and it is clear that if
the surrenderor die without making a will, the estate de-
scends to the heir. If the life estates created by the will be
disclaimed, it is the same thing as if they had never b.een
limited. In some manors the custom requires that the pre-
sentment be made at the next Court; in others, that it«be
presented within the year. The situation of the parties is
the same as if the appointees had not chosen to come to
the next Court, or at the Court at which they were entitled
to be admitted, except that the disclaimer makes the case
still stronger. The effect of the disclaimer is to place the
parties in the same situation as if no devise had been made.
(fl) 4 D. & R. 492; 3 B. & C. 172.
MICHAELMAS TERM, X GEO. IV.
Pabke, J. — I am of the same opinion. The question
lies in the narrowest possible compass. Not a single au-
thority has been cited to impugn the grounds upon which
this writ was obtained. Upon the death of the surrenderor
the estate descended to the heir> who has a right to a man-
damus to admit him^ he taking his chance whether the
devisee will apply to be admitted. Any dii&culty is, how-
ever, removed by the disclaimer of the devisees ; though I
think that without a disclaimer the heir would have been
entitled to be admitted. If a fraud has been practised
upon the lord, he has his remedy in another shape (a).
153
1829.
The Kino
V.
Wilson.
f^y^ («) A manor is commonly said
mm, bj the text writers to consist of
demesnes and services. This is
rather a statement of some of the
incidents of a manor, than a strict
bgal de6nition. On the other
handy persons who are not lawyers
fieqoently comprehend under the
term manor, circumstances which
hate so necessary connection with
tbb species of esute. Thus the
i right to wastes within the district
/ ofer which the manor extends, is
frequently called a manorial right ;
l&oogh the right of the lord to such
•rastes, where there has been no
actoaJ possession, rests merely upon
the presumption that they belong to
cbe lord as the present owner of
^ demesnes, and as the ancient
o*Der of the tenemental lands, by
*hich these wastes are surrounded.
^ same presumption would arise
io hnmr of any other owner of an
eUeosire district enclosing wastes.
&,the seigniory of copyholds is
fnqoently an incident to a manor;
but there are many manors in
whidi this species of tenure does
not appear to have ever existed,
and still more in which it has been
kM^ extinct; and though no copy- *
holds unconnected with a manor
exist at the present day, the custom
of demising by the lord's rolls ap-
pears to have formerly been com-
mon to every lord who had de-
mesnes which were held in vil-
lenage. So, the right to have
a Court-Leet is a royal franchise,
under which the grantee holds a
court of criminal jurisdiction in
the king's name, over the resiants
(residents) within a particular dis-
trict. This privilege may be
granted to persons who are not
lords of manors; and where the
grantee has a manor, the limits of
the manor and of the leet are not
necessarily co-extensive. So, ex-
cept in the case where a grant of
free warren or free chase is an-
nexed to a manor, the lord has
no other privilege in respect of
gamCf than the power given by
modem statutes of appointing a
gamekeeper. With this, however,
is frequently confounded the ad-
vantage derived from the pre-
sumption of ownership over ex-
tensive wastes, which has already
been shewn to have no necessary
connection with mmima/ rights. A
correct legal definition of a manor,
154
CASES IN THE KINGS B£NCH,
1829.
The Krifo
V,
Wilson.
Mnotloii-hoiiM,
how far neeeanry
to a
tb« terms of which nothing can be
added to or taken from, it would
be difficult, if not impossible, to
find in our text writers. An at-
tempt to supply this apparent omis-
sion may not be considered to be
misplaced. A manor contitit of
demesnes and an appendant mesne
seigniory ovtrfreehoUerSj qualified^
in respect of quantity of estate^ and
sufficient^ in point of numbers, to
constitute a Court- Baron.
Formerly there could be no
manor without a mansion* bouse
(manerium, manoir) at which the
services were due and might be ten-
dered and from which this peculiar
species of estate derived its appel-
lation (Maseres, Ubtoriae Angli-
cans Selecta Monumenta, 256, n.).
At the present day the demesnes
may, and very frequently do, con-
sist entirely of land; and there may
be a good legal manor, although
the mansion-house, or the spot on
which it stood, (usually described
as the scite (site) of the manor,)
have been aliened from the
manor; (and see Winter v. Love-
day, 5 Mod. 382; Owen, SI;
4 Inst. 268;) or it cannot he
now shewn that any mansion ever
existed on the land; though it
would seem that no estate could
ever have acquired the name of a
manor without possessing a man-
sion-house on the demesnes. Be-
fore the statute of Quia emptores
terrarum, 18 Edw. I. cap. 1 & 2,
when seigniories might be created
at pleasure by unlimited sub-infeu-
dations, the existence or the non-
existence of a seigniory at any par-
ticular period would be an imma-
terial circumstance in comparison
with the lord *s mansion, by services
to be perfonned or tendered at which
the subtenure was distinguished.
And see Plowd. 169; Fulb. Par.
18 a, b; Maseres, Hist. Ang^. Sel.
Monumenta, 255 n; Appendix
to 3d Report of the Common Law
Commissioners, B. 20.
The demesnes are an integral p^"*"
and necessary part of the manor;
for if the lord alien all the de-
mesnes, bis remaining estate will
not be a manor, but a seigniory in
gross, a species of estate verj com-
mon in the earlier periods of our
legal history, but now practically
almost unknown in England, though
still subsisting, in a somewhat simi-
lar form, under the name of supe-
riorities, in Scotland (a).
The demesnes are those lands
of which the lord is seised, whe-
ther they are in his own occu-
pation, or in that of his tenants at
will, or for years. Of these the
former have either a customary es-
tate, as holding at the will of the
lord, according to the custom of
the manor, or they have a common
law estate, holding at the will of
both lessor and lessee. The te-
nancy for years is, in modem times,
usually a common law estate,
though in the assessionable manors,
parcel of the duchy of Cornwall,
customary estates for years are
still subsisting. (^Rowe v. Brenian^
ante, iii. 133, 143,b. 243,310,311,
313, 314, 315, 316,318,326, 357,
358, 362, 363; Mann. Exch. Pnict.
2d edit. 357, n.) If the lord of
a manor were to make a gift in
tail or a lease for life, of all the
demesnes, there would, during the
continuance of the particular es-
tate, be no demesnes within the
manor. The services of the free-
holders of the Court- Baron would
not be appendant to the demesnes,
but to the reversion of these de-
(a) The Tnnch Jirft en Cair^
UICHAELMAS TERM, X GEO. IV.
155
expectant upon the deter-
I mination of the particalar estate.
I Daring the continuance of this
I state of things it would seem that
the lord woold have, not a manor,
bot a doable seigniory in gross, one
io respect of the donees in tail
or lessees for life, the other in re-
spect of the ancient freehold te-
Daots of the manor. And see
Bartop ?. Tuck^ Hetl. 14; Brace-
^iev, Coote, Plowd. 4«2, b.
J^^"- To constitute a manor there
■tosarj
biiAf. most not only be demesnes, but
also, appendant thereto, a seigniory
Ofer freeholders. And this must
be a flteme seigniory (a) ; since
DO freeholder, holding in capite,
can, in respect of the same free-
bold, hold of a manor; and, e
coweno, the king cannot, jure
(oroMj be lord of a manor (6).
These freeholders, we have seen (c),
constitute the curia baronom, the
word baron having been formerly
bynonimoQS with freeholder (c/).
In order to determine that a parti-
Cblar district constitutes a manor,
it mtst be ascertained that a per-
son seised of land within that dis-
trict is also seised of the services of
twoor more other freeholders of in-
beritance within the same district,
aod that the seisin of the land and
the seisin of the services of the
freebolders have,yor any thing thai
en he tketpn to the contrary^ been
mited ever since the statute De
Pnerogaiivft Regis, if the land be
holden immediately of the crown,
or »nce the statute of Quia emp-
tores, if the land be holden of a
subject.
(a) 2 Inst. 501.
{b) Eiundk'f case, 12 Co. Rep. 1 36.
(c) Antt, 143.
(<0 In Gennany baroDji bv tenure,
and in later times, same of tiie titular
biroos are qalledjrce lords, /rryfccrrrn.
TheKrMG
V.
Wilson.
In honors or very eitensive ma« 1899.
nors, a distinction appears to have
been drawn between the greater
and the lesser barons, the former
only being acknowledged as the
pares curi*. The We of Wight l^r.^SToV
was granted by King Stephen to Wight, ciUcd
W.de Redvers, and was surren-
dered by his descendant, Isabella
de Fortibus, to King Edward I. in
1993. During the 150 years that
this honour was in the bands of a
subject, the freeholders holding im-
mediately under the lord of the
island, owed suit and service at
the lord's court. Those tenants
however only were summoned who
held to the extent of a knight's
fee (e). Hence the Court was not
simply Curia Baronum, but Curia
Militum; and it still exists (/),
(by the name of the Knighten
Court; the suitors being those
who hold of the king, as of his cas-
tle of Carisbrook, (the maneriwn of
the island) to the value of SO/, per
annum (g). It does not appear that
the machinery of these Courts has
proceeded so (ar as to allow of the
lesser barons appearing by a select
portion of their number, as in the
great Conrt-Baron of the realm.
So much importance attaclied
to the possession of a mansion-
house, at which the services of
tenants might be rendered, that
a villein who had a man-
sion upon his villenage, might
grant portions of his vittenage
(e) Knight's €ees were usually
either manors or seigniories in gross,
T. 16 £3, 7m»er Temple MS, ; M. 17
£.3, fo. 8,pl. 10.
(/) Now held within the borouah
of Newport, but/or the whole island.
(f) from the documents produced
at the trial of the case of Mayor, ^c.
of Newport v. Saundert, Winchester
spring Assizes. 1832, cor. Park, J.:
And see .Sir R. Worsley's History of
the Isle of Wight.
156
CASES IN THE KING S BENCH,
1829.
The KiNC
Wilson.
Power of crown
to create a nanor.
to be holden of him as of his ma^
nerium. The estate of the grantor,
consisting of this mansion-house
and the ungranted portions of the
viilenage,in demesne, and of the ser-
vices of the granted portions of the
villenage, was called a customary
manor (a). See Sir Henfy NevilTs
case, II Co. Rep. 17 ; Moore v.
Goodgame, Cro. Jac. 397; Reg v.
Sianton, ib. 259; Rex v. Stafferion,
1 Bulstr. 54.
It has been said (Morris v. SmUh,
Cro. £1. 38, arg. ; Shower, 142, ai^.)
that the king cannot, at this day,
create a manor. And this is per-
fectly true; because the king neyer
could create a manor. If before the
statute De Prserogativft Regis the
king had granted land to ^., the
grantee might have 8ub-infeo6Fed B.,
C, D:, £., and F. of parcels of the
land, retaining the rest in his own
hands,' or in the hands of his te-
nants for years or at will. A.
would then have had a manor; but
this manor could not be said to be
created by the crown, as the king
could not create the sub-tenure, by
which the manor was constituted.
So, since the statute De Prserogati-
to create a manor, vft Regis, if the crown grant land
to J., and either at the time of the
grant or subsequently, license A, to
sub-infeoff B., C, D., E. and F.,
of parcel of the crown grant, the
effect would be the same as before
the statute, that statute making no
other alteration in the law than
imposing the necessity of obtain-
ing a licence for sub-infeudation.
Even in land which not being held
(a) Another species of customary
manor might, and may still, be created
by a grant or a demise to a stranger of
the seigniory of all the copyholds, or
of all the copyholds withm a cettain
district. 4 Co. Rep. 26, 7.
Power of fobjcct
immediately of the crown, falls
within the provisions of the
statute of Quia Emptores, there
appears to be no other obstacle to
the creation of a new manor than
the necessity of obtaining the li-
cence as well of the crown as of all
intervening lords. Thus Lord CoAe
says, (2 Inst. 501,) ** these general
words iia tamen quod feoffatus te-
neat terram illam seu tenementum
iUud de capiiali domino feodi illius
have a tacit exception, viz. unless
all the lords, mediate and imme-
diate, do assent thereunto, for
guilibet renunciare potest benefido
juris pro se introducti.*' (And see
Co.Litt. 99, d.) The language of
the Stat. De PrserogativH Regis is,
'< nullus qui teneat de Rege in capite
per servicium milUare poterit alie-
nare mnQorem partem terrarutn sua-
rum, iia quod residuum non sufficiat
ad faciendum inde servicium^ sine
LiCENTiA REGIS.** In tlio printed
statutes the following words are
added, which evidently form no part
of the act. '< Sed hoc non consttevit
intelligi de membris et particulis
terrarum earundemJ* It seems also
to be questionable whether, as the
language of the statute De Prsro-
gativ& Regis is '' qui tenet de Rege
in capite per servicium militare,'*
its provisions are not become in-
operativeby theabolition of military
tenures. If so, then inasmuch as
the statute of Quia Emptores does
not extend to lands holden in ca-
pite, but speaks of the '< emptores
terrarum et tenementorum dejeodis
iiAONATUM et tdiorum dominorum,
in prajudicium eorundem^{b) it will
follow that a freeholder holding in
capite may at this day, without
(6) And see 1 Tho. Co. Litt. 527,
n. (1.) ; 2 Tho. Co. Litt. 21 1, n. (A.)
MICHAELMAS TERM, X GEO. IV.
157
liceoce, make a sob-infeofihient or
grant land in fee simple to be
boideo of himself, as be undoubt-
edly may do wUh tbe licence of
the crown, under the express
(vorisions 6f the statute De Prae*
ropidvft Regis, if the land be
holden in capite, or with tbe
licence of the lords mediate and
immediate, under the implied, or^
u Lord Coke calls it, tbe tiKti ex-
ception in the statute of Quia
Emptores, where the lands are
bol^cn of a subject. Hdmet v.
Etmh, U Mod. 494. The posi-
tion of Mr. Baron Maseres (Hist*
Angl. Sel. Mon. 256, n.) and of
others {Morris y. Smith, Cro. £1.
98, 39; Marsh v. Smith, 1 Leon.
S6) that ** it has been impossible
to create a new manor ever since
1290,** appears, therefore, to be ex-
pressed too generally. It is said
indeed in an original case in
Brooke,(Bro. Abr. Comprii, pi. 31,)
to hare been held in 33 H. 8, that
a man cannot create a manor by
grantiug estates tail to hold by
service of suit of court, because a
etmri cannot he but by continuance
ca^ contrarium, jrc; but a Court-
Baron appears to be incident to
tcnofe at common law, requiring
ndeber grant nor prescription to
aphold it. Rex ▼. Stafferton, 1
Boise. 54; & C. per nomen Rex v.
Stmntcn, Cro. Jac. 260; Brown v.
GoUtmith, F. Moore, 870; Pell v.
•Soners, Noy, 20; Co. Litt. 58, a. ;
9 lost. 43; Maseres, Hist. Angl.
Sel. Mon. 256, n.; ante, 140, (a).
Before the statute of Quia £mp-
tores a tenant in fee simple might
hare created a tenure under him-
self as laige, in point of duration,
as his own estate; and in the case
of an entry upon the sub-tenant
1829.
in fee for a forfeiture before or
since the statute, the lord is said
to be in of his reversion. So,
upon judgment of ouster, for non-
performance of the services re-
served, in a writ of Cessavit
per biennium, F.N.B. 208, Fitz.
Abr. 20 Edw. 2, Brief, pi. 826,
though the statute (6 Edw, \,
c. 4,) says nothing about revert-
ing or reversion. So, the writ of
escheat, which is at common law,
is *^ qua ad ipsum reverti debet tan-
guam escaeta sua,** F. N. B. 144.
As the statute of Quia Emptores Power of t
does not affect chattel interests, it teauicy duriag
seems to be not unreasonable to ***« ''*^** *•""•
contend that a termor may create
a sub-tenancy equal, in duration, to
his own term, and that, as in the
case of a sub-tenure in fee, the sub-
lessor has such a reversion as will
enable him to distrain for the rent
or other services reserved upon the
creation of the sub-tenure. To
entitle a lessor to distrain, . it
is necessary that he should have
a reversion to which the rent may
be incident, litt. sect. 215. By
the term reversion, is meant the
returning of the estate to its ori-
ginal owner. During the parti-
cular estate upon which the rever-
sion is expectant, the reversion is
the • expectancy of such return;
after that estate is determined,
the reversion is the land itself so
returned, Plowd. 158, b.; ib, 160.
But to constitute a reversionary
interest, it is not necessary that
a particular estate be so limited
that the land will certainly return
to the party creating the limita-
tion or to his representatives. It
is sufficient if the estate may so
return; as in the case of a sub-
tenure in fee simple, Litt. sect.
168
CASES IX TH£ KINGS BENCH,
18^.
The Kino
Wilson.
^iOf Plovrd. 159, or io fee tail»
IiU.9ect. 18, Plowd. 159, it never
being questioned but that a donor
in \Ail might distrain, though the
contingency of the failure of the
estate tail seems at one period to
have been considered too remote
to entitle the heir of the donor to
devise the reversion under a cufr*
torn to devise fjands, SI A as. fo.
185, pi. 3. A distinction is in*
deed sometimes made between a
reversion expectant upon an estate
tail or other less estate, and the
contingent interest of the lord in
the case of a sub-tenure in fee by
calling the latter <* a right of re-
verier r hut this distinction is of
little consequence, either being
sufficient to support a distress.
This principle appears to be
equally applicable to the case of
a term of years created by a
party who holds fur a term, of
the same duration in point of
express limitation, but which it
may possibly exceed. It is the
common practice to limit an es-^
tate to A, for life, remainder to
B. during the life of A. ; which re-
mainder consists in the expectancy
of the possible determination of
^.'s estate by forfeiture or other-
wise, during the life of A. Now
if this be a valid limitation, so
that on a forfeiture by A,, A.'s
remainder shall vest in posses-
sion, it seems difficult to say that
if B. were afterwards to make a
new lease for life to A., tenendum
of £., B. would not have as good
an estate in reversion as he had
before in remainder. With re-
spect to sub-tenures in fee simple
and in fee tail no question seeoM
to have been jaised. But as
some doubt has been thrown upon
the right of the sub-lessor lor yesn
to distrain where the seooad*
ary term is for the same period
as the primary, it may not be im<
proper to examine the cases in
which this point has come before
the Court.
The earliest mention of this
subject is in P. 45 £. 3, fo. 8,
pi. 10. That was an acdon of
debt brought by a party who had
onljf a chattel interest, (the ward*
sliip of an heir,) against his les-
see, for arrears of rent. The de-
fendant pleaded, that the rent
would not be payable till the end
of the term. In overruling this
plea, Finchden^ C. J. says, " If I
be seised of certain lands and let
them to a man for a term of years
rendering 40^ per annum, I may
have an action of debt for' each
term (a), and I may also distrain,
but if 1 have only a term of years,
and I let to you my estate of the
term rendering to me certain rent,
I believe (jeo croy) that I cannot
distrain. Seoqu^cre; wherefore
answer over." This i& the whole
of the dictum as it stands in
the Year Book; and it is thus
abridged, or rather altered, in
Bro. Abr. title Distress, pi. T,
** Nota per Finch, arguendo. If
a man has lands for years, and
grants all his terna rendering rent,
he cannot distrain ; but if he grant
part, he can distrain, 45 £. S,8."
And in his title Dett, pi. 39, after
stating the decisioo with respect to
the action of debt, Brooke adds,
*' And in that case it is admitted
(conceditur) by Finch, that if a
man has land for years, and grants
all the term, rendering rent, he
cannot distrain."
(a) Which was the point in dispute.
'^i
MICHAELMAS TERM, X GEO. IV.
169
Tilts dictum seems to have been
(fast broogbt before the Cottit, in
v.Cotvwr, SWlls.<S73. "In
" ieplefin,tbe defendant avows on-
^ dfir a distress for rent doe fix>m
' the plaintiff to bim, upon an ot-
" s^Mieiif of a lease of a term for
*<^eirs to the plaintiff, in which
" mipiment there is no clause of
" distress; the aingle question is,
'^ whether this is such a rent for
* which a distrefts lies, there being
" 2X> reversion in the defendant. It
*^ WIS said for the defendant, that
" alifaoagh rent be incident to the
** refcrsion, yet it is not an inse-
^panhle incident, and therefore
" it Httj be severed from the rever-
"lioa; and although there is no
' dnse of distress in the assign-
* meot of the term, yet the rent
"mtrved thereupon may be con-
"ndered as a rent^seck, and dis-
* mined for by the statute 4 Geo.
" 9, c. 98, sect. 5, and that it ap-
** peen dearly to be the intent of
''the parties that the plaintiff
* dMMdd pay rent to the defendant.
' This case was so clear, that the
*CoQft gave judgment for the
'pbiadfTwithout hearing his coun-
" seL Curim : There are two ways
" cf creating a rent ; the owner of
** the lands either grants a rent out
** of it; or grants the lands and re-
^seiTcs a rent; there is no such
** diing ss a rent-sed[, rent-eervice,
''or reDt-charge issuing out of a
*tefiaforyiears(ii). Bro.Dette,pl.
* 59,drei 43 JEtf 3,4(6), per FyncA-
"* de«,Ch. Justice, C. B. * Ifa man
" hath a term for years, and grants
* ill his estate of the term, ren-
*deriag certain rent, he cannot
** dlstnda if the rent be in arrear;*
** This case is law, and in point ;
f8> Qusre.
'» Brooke cites correctly 45 K. 3, 8.
** therefore, \\ the avowant wtU
** recover what is owing to him
** from the plaintiff, he most bring
** his action upon the contract.
<< Judgment for the plaintiff per
** totara curiam.*' In Pmbner v.
EdmardSf 1 Dougl. 187, n., Ed-
SMmfon, the lessee, expressly a*-
iigned to Wumer (the party under
whom the plaintiff claimed) at
the yearly rent of 26i. 2s. pmfMt
to Edmonony and it was held
by BulietyJ. and Wiilet, J. that the
conveyance from £dbiioason to
Palmer operated as an assign-
ment, and not as an underlease.
These two decisions appear to
be unquestionable. A lessee mojf
auign his term, and if the assignee
be accepted as tenant he cannot
reserve rent-service, though he
may create a rent-chaige or a rent-
seek. (Litt. sect. 217.) So, if be-
fore the statute of Quia Emptores,
the tenant in fee had made a
feofiinent, tenendum (not de sr, but)
de capUali domino feodi (a), no rent-
service could have been reserved
upon such feoAnent. But where a
termor, whether lessee or assignee,
indicates no intention to part with
the term, and thereby determine the
privity of estate between himself
and the lessor, there appears to be
neither principle nor authority to
preclude such termor from making
an underleax for a period com-»
mensurete in point of computation
with the original term.
This appears to reconcile all the
cases prior to 1818, including the
decision in Poultney v. Holmes, 1
Stra. 405, in which it was held
(a) This coald be only where the
entire property was aliened. Where
a part was aliened, the alienee roust
have held of the alienor. Hence the
interminable mesnalities of the 1 3th
& 14th centuries.
18<9.
The King
V,
WiLSOJI.
160
CASES IN THE KING S BENCH,
1899.
that when a termor agrees that
another shall have the premuei for
the remainder rf the term, pacing
the termor the same rent as was
reserved upon the original lease,
such an agreement must be taken
as a lease and not as an assign-
ment, because the reservation was
to the lessee and not to the original
lessor. In that case, however, it
seems to have been inconsistently,
and as it would appear, gratuitously,
admitted on the part of the original
lessee, that he could not distrain
for want of a rever$ion.
Thusstood tbelawtill 1818, when
the case of Parmenter v. Webber,
8 Taunt. 593, and 9 J. B. Moore,
€56, was decided in the Court of
Common Pleas. That was an ac-
tion of replevin, in which the de-
fendant avowed, first, for one year's
rent, and, secondly, for half a year's
rent; plea in bar to both avowries,
non tenuit. It appeared that the
avowant being lessee for years,
under two several leases, entered
into a written agreement with the
plaintiff, by which the plaintiff was
to have (not the leases, but) the
two farms during the leases there-
of, and to remain tenant to the
avowant during the said leases.
It was contended by the plaintiff,
that the agreement operated as an
absolute assignment of the avow-
ant's interest in the two farms, and
that having thus parted with the re-
version, he could not legally dis-
trai n (a). In gi ving j udgment, Dal"
lot, C.J. says, ''lam of opinion that,
" according to the legal effect of the
** agreement, it amounts to an ab-
'' solute assignment by the defend-
** ant, so as to operate as a stirren-
*'der(b) of the whole of his
'' term under the two leases in
" question. In v. Cooper, it
** was expressly determined that a
" lessee for years, who assigns his
** tenn, cannot distrain for renr.
" And although in this case the
'< plaintiff has paid the defendant
** one yearns rent, and he was to
** remain tenant to the latter during
" the leases, still as the defendant
** had parted with his interest, I
** think the plaintiff is entitled to
'' judgment.** This was followed
by the case of Preeee v. Carrie, 2
Moore & P. 57. That was an
action of replevin, in which the
defendant made cognizance as
bailiff to ff^hUe under a demise
from the llth of November, 1836.
llie plaintiff pleaded in bar, first,
non tenuit; secondly, that by the
supposed demise in the cognizance
mentioned. White demised and
granted the premises to plaintiff
fur the residue and remainder of
his, White% estate, term, and in-
terest of and in the same; and that
he, White, had not then, or at the
time when, &c. or at any time
during the supposed demise to the
plaintiff, any reversionary estate,
term, or interest of, or in, the pre-
mises or any part thereof, expect-
ant, or to take effect, upon, or at
any time after, the expiration of the
term granted to the plaintiff by the
said supposed demise. The de-
fendant joined issue on the first
plea, and replied to the second,
that by the demise in the cogni-
zance mentioned, White did not
demise and grant the premises to
the plaintiff for all the residue and
remainder of White's estate, term,
(a) Vide poH, 161,2.
(b) Qiuere.
MICHAELMAS TERM, X GEO. IV.
and interest of and in the same, ia White had granted all his estate to
manner and form as the plaintiff
had in his second plea in that be-
half alleged : and on this issue was
joined. At the trial it appeared
that WhitCf being tenant for a term
eipiring the llth of November,
1836, by an agreement in writing,
Md Janoaiy, 1826, agreed to
give op possession of the farm to
l^ plaintiff in consideration of
kis pajing the ralue of the growing
crops then belonging to White ; and
ti* plaintiff was to hold the fann
for the remainder of Whites tenn
« the same rent that Etutwick
Jttid; the rent to commence and
^ payable by the plaintiff from
^ llth of November then past;
but it was provided, that in case
^plaintiff should not be enabled
to pay for the crops by the 1st of
Miy, 1886, WhUe might retain
die form for the remainder of the
<«»; diatoia the llih ofSeptem-
*w following, the plaintiff, by bill
of sale, assigned all the growing
crops and effects on the farm to
White, and that afterwards, and in
tbe course of the same day, White
"greed verbally with the plaintiff,
^ die presence of two wiuiesses,
dMt he would become tenant to
^^e from that day till the 1 1th
of November following, at the rent
of 970^, payable in advance im-
mediately. The jury found that
d>ere was a demise from WhUe to
die plaintifl^ and secondly, that
^<^ had parted with th« whole
<tf his term ; and the verdict was
entered for the plaintiff. A motion
was made to set aside this verdict,
00 the groond that the demise had .
l>ceo (bund upon the 6rst issue,
And that the plaintiff bad not, un-
^ the second issue, proved that
the plaintiff, and had no reversion-
ary interest after the expiration of
the plaintiff's term. The Court of
Common Pleas held that the find<
ing of the jury on both issues was
proper, on the ground that though
the demise to the plaintiff amounted
to an under-leatCf yet White could
not distrain for want of a reversion.
And see 5 Bingh. 24, S. C.
The result of the cases appears to
be this— In 1371, a judge, while
deciding in favour of the right of a
guardian in chivalry, who had let
his ward's lands during the whole
pei-iod of the minority, to bring an
action of debt for the rent toties
quoties, as it accrued, which was
the only question before the Court,
expresses a doubt as to the right
of a termor to distrain after he has
let all his estate of the term. In an
abridgment of this case, published
in 1573, it is stated to have been
admitted by that judge, that a man
who grants all his term, rendering
rent, cannot distrain. The doubt
thrown out in 1371, improved into
tLConceditur in 1573, is in 1763
cited as a decided case no longer
to be impugned or examined. The
authority thus oddly obtained isap-
plied however in 1768 to the case
of a termor who has absolutely as-
signed his term, and who, there-
fore, according to every legal prin-
ciple and analogy, would have no
reversion of any kind, and conse-
quently no right to distrain. But
in 1818 and 1838 tbe doctrine is
extended to an underlease ; where-
by an entirely new principle has
been introduced into. the law of
tenure with respect to leasehold
interests; the cases of Parmen/er
v. Webber and Preece v. Corrie
161
1829.
The King
V.
Wilson.
^OL. V,
162
CASES IN THE KINGS BENCH,
1839.
The Kino
V.
Wilson.
appearing to decide that a rent
reserved upon a tenure under the
party to whom the rent is payable,
and which is therefore a rent-ser-
vice (Litt. sect SI 3), may exist
witliout a power of distress inci-
dent thereto. The point arose
incidentally in Burton v. Barclay^
7 Bingh. 745, but it became un-
necessary to notice it in the judg-
ment. And see Hick% v. Than'
lingf 1 Salk. IS, less distinctly
reported 1 Lord Raym. 99 ; Wil-
iton V. Pilkney, 1 Ventr. 242, and
2 Lev. 80 ; Curtwright v. Pinkney,
1 Ventr. 272; Navcombv. Harvey ,
Carth. 161; Smith v. MapUback, 1
T. R. 444. Should it be consi-
dered that the analogy between a
grant in fee, tenendum of the grant-
or, and a grant by a termor for the
whole duration of the term, tenen-
dum of the grantor, cannot be main«
tained, inasmuch as the termor is,
or originally was, rather the Astt^
than the tenant of the freeholder,
still it is conceived that the right to
distrain for the rent reserved, may
be supported upon another and a
distinct ground. Where A. being
possessed of land for a term of 90
years, demises and leases that land
for 80 years to B., rendering rent
to il.,his executors, administrators,
and assigns, it is evidently the in-
tention of the parties, to he col-
lected from the instrument itself,
that il. should have the ordina^
remedies of a landlord for the re-
covery of the rent reserved. If then,
by the rules of law, the demise can
only operate by way of assignment,
A. cannot obtain the consideratioa
for that assignment unless the rent
be treated as a reni'Charge.
See further as to the origin of
manors Cragii Jos Feud. lib. i. tit.
10, §2.
Yeast is a
victual within
the exception
in 50 Geo. 3,
c. 41, (Hawk-
ers* and Ped-
lars' Act.)
The King v. William Hodokinson.
At the Quarter Sessions for the county of Derby, a
conviction under 50 Geo. 3, c. 41, was confirmed, subject
to the opinion of this Court on the following case: —
The defendant, who had been for some time past in the
habit* of purchasing yeast at Burton, and carrying the same
about to the neighbouring towns and villages, and selling
it for the purpose of being used in the making of bread and
beer, took a quantity of yeast to Litchurch, in the countj
of Derby, on the 1 4th November, 1828, and there exposed
the same to sale in his usual way, without a hawker's
licence. The question for the opinion of the Court is,
whether the yeast so exposed to sale is to be considered as
victuals within s. 23 of 50 Geo, 3, c. 41 (a).
(a) By which it is provided and son or persons frona selling (inter
enacted, '' That nothing in this act alia) any fish, fruit, or victuals.**
shall extend to prohibit an^ per-
T
The Kino
MICHAELif AS TERM, X GEO. IV. 163
N. £. Clmrkes in support of the Order of Sessions. Yeast 18S9.
is Dot wctvals, by which mast be understood that which is
in a state fit to be eaten ; it is merely a substance used in v.
the preparation of victuals. Rex v. Waddmgton (a) was cited Ho^*«»»-
below for the defendant. There^ however^ it was not neces-
sary to consider this point. In Rex v. M*Gill{b) it was
held, that selling tea as a hawker required a licence. [Bay'
%,J. That was prohibited by a former statute.] The
Court said it was a double offence. Yeast is not victuals
iQcofflmon parlance. It is not even an ingredient in a vie-
toal, bat merely a substance applied to cause fermentation,
and thereby render the bread lighter.
Fynes Clinton^ on the same side. Rex v. M'Gill is quite
coDcJBsive. Hops would seem not to be within the 5 & 6
Eiw,6, c. 14(c). In the case of Rex v. Waddington, how-
ever, it was determined, on looking at the words of that act,
that as growing com could not be treated as victuals, the
words of the statute must be considered as shewing the
intention of the legislature, that every thing which might in
any shape become victuals should be included in the prohi-
bition against forestalling. Here, the word victuals is found
in company with fish and fruit only ; which shews that
nothing was intended to be exempted, except that which is
sold in a state fit to be used as food.
Brodrick, contrd. Yeast is a victual within the meaning
of this act ; it comes from one victual, and forms a neces-
sary iDgredient in another. Rex v. M'Gill was a case de-
pending upon the construction of 10 Geo. 1, c. 10, s. 14,
and 9 Geo. 2, c. 35, s. €0. The restrictions in these sta-
tutes upon the sale of tea, rendered it impossible that that
(a) 1 East, 143. groiu, butter, cheese, fish, or other
(6) 3 D. & R. 377; 2 B. & C. dead victaals whatsoever, within
14S. the realm of England, with intent
(c) Which prohibited the en- to sell the same again.^ Repealed
grossing of ** anj com growing in by 13 Geo. 3, c. 71.
the fields, or any other com or
M 2
The King
V.
164 CASES IN THE KING's BENCH,
1829. article sbeuld be exempted from the operation of' tbe
Hawkers' and Pedlars* Act; nor was the exception urged.
Beer and wine are considered as victuals by 12 Edw.4t, c. 8.
HoDGiiNsoH. By 12 Edw. 4, c. 8, beer is expressly made a victual
[Bayley, J. Whatever contributes to the support of life is
a victual.] By 55 Geo, 3, c. 99, yeast is recognized as an
ingredient in inaking bread. In 3 Inst, {a) it was adjudged
that salt is a victual, because it not only is necessary itself
for the food and health of man, but that it seasoneth and
maketb wholesome beef, pork, 8cc., butter, cheese, and
other viands. To hold that yeast is not within the excei^
tion, would have the effect of imposing a most inconvenient
restriction upon the sale of an article of very general use.
Lord Tenterden, C.J. — ^The word " victuals^' in this
statute may fairly be understood to comprise every thing
which constitutes an ingredient in food, and to extend,
therefore, to this article^ which is generally, though not,
perhaps, necessarily » used in the making of bread.
Baylby, J. — Rex v. M*Gill was a case totally different
from the present. It was not there agitated whether tea
caine within the exception in the 2Sd section of the Hawk-
ers' and Pedlars' Act. I do not think that tea would come
within that exception, because the sale of tea, under such
circumstances, was already illegal. The true construction
of this section has been pointed out by kny lord.
LiTTLEDALE, J., Concurred.
Order of Sessions quashed.
(fl) 195.
MICHAELBIAS TERM, X GEO. IV. 165
BiGNELL r. Ellis. vJ^^
Assumpsit for money had and received. Plea, non Where ii.
assumpsit; and issue thereon. At the trial before Garroto, ^dn^goods^
B. at the last spring assizes at Chelmsford (a), the follow- oi B, at a
ing facts appeared. The plaintiff rented a farm under \q yj^
Colonel Struttf at 140/. per annum, and being distrained against a debt
. . due fipom B,
upon for half a year's rent, and being indebted to one to ^., and the
Mfe in 93/., the following agreement was signed by 5^4^^^,^,^
Cobnel Strutt and the plaintiff: — C. for the
"I hereby sell all my property, of whatsoever kind I Eeingwird
now possess on the farm I now hold of J. W. Strutt, Esq. over to I).,
,.,-_,-, ,. If' 1 when it should
to the said J. H. Strutt, according to the valuation taken \^ ascertained
before me, and written by Mr. Robert Ellis, junior, in my *S^*'?^*"'" ,
presence, amounting to the sum of 103/.; and 1 hereby to D., itis
authorize the said J. H. Strutt to deduct 73/. as rent due r*^iT^^!f
tor 15. to coon-
to him on Michaelmas day next, and to pay over to Robert termand the
JE/A's to hold till the account of Jacob Bignell and George ^JmitiUhe '
Solfe, of Billericay, is settled by their respective signatures,, account is
which Robert Ellis will pay as far as the sum of 90/.; and hold the whole
should the account between the said George Rolfe and ofsuchrwidue
the said Jacob Bignell not amount to the said sum of 90/.
the balance then to be paid by the said Robert Ellis to the
said Jacob Bignell.
Signed, J. H. Strutt.
Jacob Bignell:'
Before the 90/. had been paid over to Rolfe, the plain-
tiff directed the defendant not to make such payment, but
to pay the money to himself. This, however, the defendant
itfused to do. The learned judge was of opinion that the
clefendaot, as stakeholder, was entitled to hold the money
until the account between the plaintiff and Rolfe were
adjofted. The jury accordingly found a verdict for the
defendant In the following Easter term, Comyn obtained
a rule nisi for a new trial, against which
(o) Counsel for the plaiottfT; Comyn and Chitty; fur the defendant,
CASES IN THE KINGS BENCH,
Gumey now appeared to shew cause. But the Court
called upon
Comyn, in support of the rule* The memorandum of
sale is not an agreement between the plaintiff and Roffe,
who notwithstanding that arrangement might have sued
plaintiff next day. The money in defendant's bands is the
money of the plaintiff, \_Parke, J. That b the point.
The question is, whether the transaction was not io effect
a purchase by Colonel Stnitt, at a price partly to be set
against the rent and partly to . be paid to Rolfe. This is,
therefore, not like the case of a party putting bis own
money into the hands of a third person. Bayky, J.
How does it appear that Colonel Struit would have con-
sented to become the buyer on any other terms?] Here
the third party does not, as in Fatrlie v. Denton (a),
assent to the transfer. \_Parke» J. If Rolfe had uss^nted,
there would have been no difficulty, but here Struti is a
party.]
Baylby, J. — If the plaintiff had any control over the
money, Rolft being no party to th^ agreement, the plain-
tiff might have revoked the authority to pay him; but that
is not the state of things here. The plaintiff has goods
which were seized under a distress for rent, and enters
into a bargain with his landlord, who is willing to buy the
goods at a specified price upon two conditions, namely,
that the plaintiff should pay him 73/. and should pay 90/.
to Rolfe. The defendant is, by this agreement, constituted
a stakeholder between the parties. It was in the option
of Colonel Struti whether he would buy or not. What
interest he had in protecting Rolfe, we do not know; hot
he might not have chosen to buy without a power to
satisfy Rolfe. The plaintiff is not at liberty now to turn
round and refuse to allow the payment to Rolfe, which
payment formed the consideration for Strutt's purchasing
the goods at the price he gave for them. But coiisi-
MICHAELMAS TERM, X GEO. IVv
dering this a$ money deposited, it is not deposited by
the plaintiff alone, but by plaintiff and Struit jointly, until
they came to an agreement. The defendant is justified in
retaining the money in his hands.
LiTTLBOALE, J. — If this had been a mere power to pay
fio/fe, it HfQuld have been revocable ; but that is not the
state of things, though it bears some resemblance to it. It
must be presumed that StruU would not have bought
without this stipulation.
Parke, J. — I am of the same opinion. I quite agree
that if it could be established that this was the money of
the plaintiff, he might have reinstated himself, but the
goods were sold for money to be paid to Strutt and to
Jioijk. The plaintiff acquires no interest in the money,
except a contingent interest in the surplus.
Rule discharged (a).
(o) And see Lyte v. Farry^ Dyer, 49 ; Gibtonv, Mineti, 2 Bingh. 7 )
49, a.; Taylor v. Letuiaw, 9 East, 9 J. B. Moore, 31.
The King v. The Tkeasurer of the County of the City
of Exeter.
(^OLERIDGE had obtained a rule calling upon the de-
fendant to shew cause why he should not pay to the pro- dictment for
secutorthe expenses of the prosecution of an indictment moveVby^er-
for felony against one ElHs. A former application for the tiorari, and
- - ••lit 1 tried at Nisi
eipense of a former conviction had been granted. pnu^^ neither
the Jndge at
^, , 1 1 o« • •• ^"* ^""® ^^^
Lrowder now shewed cause. Six indictments were re- this Coarc has
moved by the prisoner, one of which only was tried. At awarT^oste to
tbe trial the learned Judge doubted whether he had any the prosecutor
power to give the prosecutor his costs. The rule was c."64'^s.82^ '
granted for the costs of that prosecution only ; nothing was whether the
indictment be
renioTed by the prosecutor or by the prisoner.
Where an in-
The KiMO
168 CASES IN THE KINOS BENCH,
1829. said about the costs of the other five, although they are
now included in the rule. The Court has no power to gWe
V. the prosecutor his costs. The words of 7 Geo. 4, c. 64,
w^'^Ex'eteb* *• ^^' ^^^* " "^^^^ ^^^ ^^"""^ before which any person shall
be prosecuted or tried for any felony, is hereby authorized
and empowered, at the request of the prosecutor, or of any
other person who shall appear on recognizance or subpoena
to prosecute or give evidence against any person accused
of any felony, to order payment unto the prosecutor of the
costs and expenses which such prosecutor shall incur/' &c.
The Judge before whom the felony was tried is the person
most competent to form a judgment as to the propriety of
allowing costs.
Coleridge, in support of the rule. It is now too late to
re-agitate the question whether this Court has authority to
award these costs. The provisions of 58 Geo. 3, c. 70, s. 4,
difier but slightly from the subsequent enactment of 7 Geo. 4,
c. 64, s. 22. The cases upon 7 Geo, 4 are cases of mis-
demeanour removed by the defendant* Even when a bill
is thrown out, it is the constant practice to apply for costs.
[Lord Tenterden, C. J. If we have done wrong before, we
will not amend the rule for the purpose of giving you the
costs of the other indictments. We have since considered
the point. Littledale, J. The act only applies to indict-
ments tried before the Courts in which they were found.]
This view of the statute would put it in the power of the
prisoner to deprive the prosecutor of his costs.
Lord Tentebden, C. J.-^If the costs of the prosecu-
tion could be granted at all, they ought to be granted by
the Judge who tried the prisoner.
Littledale, J. — Even the Judge has no power where
the case has been removed by certiorari. There is no dif-
ference in substance between an indictment removed by
the prisoner and an indictment removed by the prosecutor.
Rule discharged (a).
(a) And see Ryan & Moody *5 Crown Cases, 73.
MICHAELMAS TERM, X GEO. IV. 169
1829.
Nightingale v. Wilcockson. ^^-v^-^
Case for an escape against the SherifF of Cambridge- In declaring
shire. The declaration^ after stating that Kirke was indebted sheriffVor^an
to the plaintiffs below in a large sum of money, to wit, 50/., escape upon
to recover which they had issued a capias against Kirke, \i {^ sufficienc'
directed to the SherifF of Cambridgeshire, averred, that ^p a^^e ^^^^
,,,,,. ^ , ,,.«•• . thewntwas
bjBtore the delivery of the writ to the sheriti to be executed, duly indorsed
the said writ was duly marked and indorsed for bail for 251. i^Jj^3|}|„gllb"
and upwards. Averment, that the writ was delivered to virtue of an
the sheriff who arrested Kirke, and afterwards suffered him ^^^ ^^^ ^f
to escape. To this declaration the defendant below de- record "
marred specially ; assigning for cause that it was not alleged
that any affidavit of the cause of action was ever made.
Joinder in demurrer. The Court of Common Pleas (a)
gave judgment for the plaintiff below, whereupon the
defendant below brought his writ of error.
Wybum, for the plaintiff in error, contended, that the
declaration does not shew any obligation on the part of the
sheriff to arrest Kirke, but on the contrary, shews that the
sheriff would have been a trespasser in arresting him. Case
of the Marshalsea (6), Hill v. Heale (c). Rex v. Sheriff of
Surrey {(1), He also cited Morris v. Hayward{e), and
Morgan v. Bridges (f). The language of pleadings is to be
construed most strongly against the pleader. Jackson v.
PeskedXg), Thornton v. Jdams{h), Webb v. Home (i).
Secondly, the word "duly" will not supply the want of
an allegation of those circumstances which are necessary to
render the transaction legal. Everard v. Paterson (A;), Wil-
liams V. Germaine (/), Brazier v. Jones (iw).
(a) 4 fiiagh. 501 ; 1 Moor« & (g} 1 M. & S. «34.
IViyoe, ^9. 00 5 M. & S. 38.
* (A) 10 Co. Rep. 76. (i) 1 Bos. & Pul. 281.
(c) 2 N. R. 202. (k) 6 Taunt. 645; 2 Marsh. 304.
(£0 1 Marah. 75. (0 Ante, i. 394, 403; 7 B. &
(O 6 Taunt. 569. C. 468:
(/) 2 Stark. N. P. C. 317 ; 1 B. (w) Ante, ii. 88; 8 B. & C. 124.
«c A. 647.
WltCOCKSON.
CAS£S IN THE KING S BJCNCU,
Russell, Serjt. contri. The declaration contains a suf-
NioHTiNGALE ^^^^^^ avcrment that the statute has been complied with.
V. Before 12, Geo. I, c. £9^ a defendant might have been
arrested for any sum without an affidavit. By that statute
it is enacted (a) that no person shall be held to special bail
upon process issuing out of the superior Courts where the
cause of action shall not amount to 10/. or upwards (i); that
where the cause of action shall amount to 10/. or upwards,
affidavit shall be made and filed of such cause of action, and
the sum or sums specified in such affidavit shall be indorsed
on the back of such writ or process; There can be no id-*
dorsement, therefore, except of the sum specified in the
affidavit. The term ** duly indorsed/' here implies a com-
pliance with the statute; nor can the averment be sup-
ported without proof of a bailable cause of action. It was
held in Gunter v. Cleyton (c) that in an action against a
sheriff for an escape, the plaintiff must shew a good cause
against the original defendant. The same point was de-
cided in Alexander v. Macaulay {d). [Bay ley, J. That was
a case which turned upon the sufficiency of the evidence.]
The plaintiff was nonsuited in both these cases for not
proving a cause of action against the original defendant.
Since the statute the plaintiff must prove a bailable cause
of action against the original defendant. [Liord Tenter*
den, C. J. No doubt the plaintiff would be nonsuited
unless he proved a bailable cause of action.] The term
'' duly marked and indorsed for bail/' implies that an
affidavit had been made and filed. It is not contended
that the word '* duly'' will supply the omission of a distinct
and independent fact. In Williams v. Germaine(e), the
word ^* duly" could only refer to a presentment at the place
, mentioned in the acceptance supra protest, and to a demand
of payment from the acceptor, and could not supply the
omission of an allegation of a presentment to the drawer,
(a) Sect. 1. (d) 4T. R. 61J.
(*) Sect. 2. (<) Ante, i. 394; 7 B. & C. 468.
(0 2 Lev. 85.
UICHAELMAS TERM, X GEO. IV.
which in that case was considered to be necessary (a). In
Eoawrd v, Paiierson (i), the word " duly" did not neces- Niohtisoalr
Miily import that the special authority given by the sub^ v-
mitsion to arbitration had been pursued. It is merely the
conclusion which the party chose to draw. CUbbs, C. J.
there says, ''In Dudley v. Watchorn the word duly had
reference to the subsequent words accoreUng tojke custom
snd practice of the said Court. Here the declaration does
Dot state that the award was made in pursuance of the said
sHtkority(Jby* In the case referred to by Gibbs, C. J. that
of Dudley v. Watchom (c), lK>rd Elknborcugh says " Here
the allegation is that no writ of capias ad satisfaciendum
was duhf issued against the principal^ which refers to the
purpose for which it is proposed to be issued^ that of
charging the bail, and is equivalent in eifect to saying that
BO ca. sa. was sued out in the manner required by the
practice of the Court to charge the bail" {d ). The word
'' duly** supplies the omission of a statement of circum->
stances required by law both in civil proceedings. Rex v.
Lyme Regis (e). Patience v. Townley (/), and in. those which
are substantially. Rex v. M*Carther (g), or formally. Rex v,
P. Williams (h), of a criminal nature. It is not necessary
in pleading to state facts which are implied in those which
are suted. fVyman's Case{i), Sheriff of Norwich v. Brad-
ekam{k),CadwaUader,r. Bryan (J). The course of prac*
tace is for the officer not to issue bailable process without
first seeing the affidavit. [BayUy^ J. We can only take
notice of what the duty of the officer is. No argument can
be foouded upon his practice. Lord Tenterden, C. J.
The process issues from the same officer, whether it be
bailable or serviceaMe.] It is not meant to be contended
(a) But see ante, ii. 398 (a). (h) Ante, iii. 409; 8 B. k, C 68 1,
(&) STaunt 645 ; 3 Marsh. 904. (0 8 Co. Rep. 81, b.
(r) 16 But, 39. Ik) Cro. Eliz. 53.
(<0 Ibid. (/) Cro. Car. 169. And see
(e) 1 Doug). 79. Plow. 105 a, 149 b: Co. Utt.
(/) 9 Snitfa, 293. 903 b; S Tbo, Co. litt. 406: 2
ii) Peake, N. P. C. 155. Wms. Saund. 305 n, 13.
Nightingale
V.
172 CASES IN THE KING*S BENCH,
. 1829. ^^^ ^faii' Statute is merely directory; though it appears to
have beeo at one time so considered. Whiskard v. Wilder (jot).
In Hill V. HeakXb) the indorsement on the vrrit is treated
WiLcocKsoN. as a sufficient authority to the sheriff. Webb v. Heme{()t
Cashman v. Reid (d), 1 Wms. Saund. 896.
: Wybum, in reply. It is of great, importance that it
should not be held that, a party may be arrested without an
affidavit filed. [Bayley, J. The point presented. to the
Court is, whether under such an allegation-as that /contained
in the present declaration the plaintiff is bound to prove at
the trial an affidavit for 25L and upwards. Lord Tenter-
den, C. J. It must appear by the declaration in some way
Or other that an affidavit was filed.] .The second poiut of
plaintiff in error is> that this is not sufficiently shewn. It
is not enough to allege a compliance with one part of the
statute only.. The precedents of Mr. Baron W<H)d always
state that an affidavit was made and filed. [Bayleyj J. I
have seen precedents in which the allegation is» that the
writ was duly indorsed. LiUledale, J.I have seen many
precedents so framed.] The declaration does not specifi-
cally charge the existence of a debt above 10/. [Lord
Tenterden, C.J. The question is as to the effect of the
averment; as to what proof, is required under it.] In
Brazier v. Jones (e), it was held that you cannot substitute
imprisonment under one authority for an imprisonment
under another. In. Thornton v. Adams {/), where the de-
fendant justified entering a warehouse for the purpose of
taking goods which had been fraudulently and clandestinely
carried, off the defendant's premises by his tenant. Lord
Ellenborough says, *' I cannot say. that, the teims fraudulently
and clandestinely, supply by necessary intendment the alle-
gation that these goods were the goods of the tenant."
Cur. adv, vult,
(fl) 1 Burr. SSO. (<0 2 B. Moore, 60.
(b) 8 N. R, 208; supra, 169. (e) jinte,u^QS; 8 B. & C. 124.
(r) 1 Bos. & Full. 28. (/) 6 M. & S. 38.
MICHAELMAS TERM^ X GEO. IV. 173
Batley^ J. now delivered the judgment of the Court. 1829.
After stating the pleadings, his lordship thus proceeded : The ''^^^^^-^
t rji • 1-11. 1 1-1 Nightingale
fonn of declaration which has been adopted in the present 9.
case has prevailed extensively for more than 20 years with- Wilcockson.
oat objection. The form is a convenient one, and we are
of opinion that it may by law be supported. The declara-
tion states that Kirke was indebted to fVilcockson in a large
sum of money, to wit, 50/. This, where a sum or time, 8cc.
is material, will be taken to be an allegation of the time, sum,
be. though laid under a videlicet. Upon demurrer, there-
fore, this declaration must be considered to contain a precise
allegation that 50/. was due. The safer mode of pleading
would have been to allege Kirke was indebted to fVilcock-
lofi in a sum exceeding 10/., to wit, 50/* The declaration
then proceeds to state, that for the recovery of this debt
they issued a capias ad respondendum with an ac etiam
against Kirke; that this writ was duly indorsed for bail for
25/.; that, being so marked and indorsed, it was delivered to
the sheriff to be executed. We think that this is sufficient,
and that the writ, which is stated to have been prosecuted
out of this Court, is to be presumed not to have been
awarded improvidently. The presumption is, that all
things have been done rightly, and that all steps have been
taken which are necessary by statute or by the practice of
the Court to the due issuing of the writ (a). The statute
does not apply to all cases. It has been held to restrain
pbintiffs only, and not to affect the power of the Court
on the special application of the plaintiff. Before the
statute the present form of declaration would have been
free from objection; and as since the statute the affidavit is
not required in all cases, it does not appear on the face of
the record that this is a case to which the statute applies.
We are, therefore, of opinion that the declaration alleges
all that is necessary.
Judgment affirmed.
(#) The objections of the plaintiff mon law, but to the sufficiency of
in error appear to have been di- the stateroentofihe process, after it
reeled, not to the tssoing of the had issued, having been dealt,with
pn)ce99, which remains as at com- as required by the statute.
174 CASES IS THE KINO *S B£NCH,
vjl^ The King t;. The InbabiUnto of Bblford.
A burgess re- UPON an appeal against an order of two justices^ whereby
afbtra^iuU*"* ^^^^^' ^^^ "^^^ of JoAn M'Queen, then a prisoner in the
the burgesses, gaol of Berwick, and their children, were removed from
thrrent°of ^ Berwick-upon-Tweed to Belford, in the county of Northum-
lands held by berland, the sessions confirmed the order, subject to the
does not"gain Opinion of this Court upon the following case: —
a setdement The pauper, J. M., being a burgess of Berwick-upon-
by estate. ••• • «■••»■!•■ •
Tweed, and being then settled in Belford, came in 1807 to
reside at Berwick-upon-Tw*eed, where he continued up to the
date of the above order, at which time he was a prisoner in Ber-
» wick gaol, and his wife and five children became chargeable
to the parish of Berwick-upon-Tweed. For the last three
years of his residence in the parish of Berwick-upon-Tweed
the pauper enjoyed, as such burgess, certain pecuniary
benefits arising out of the estates of the corporation lying
in the same parish, in the manner after mentioned. The
mayor, bailiffs, and burgesses of the borough of Berwick,
by virtue of a charter granted 1 Jac. 1, and confirmed by
act of parliament, hold, to the use of them and their suc-
cessors, a large estate in land, situate in the parish of
Berwick-upon-Tweed, which parish is co-extensive with
the borough. This estate is chargeable in the first instance
with the payment of salaries of officers and other corpora-
tion expenses imposed by the charter, but has from an
early period after the grant of the charter, and from thence
hitherto, been distributed into three portions, and each
portion applied to distinct purposes. The first portion
consists of several farms, which are demised to tenants by
the mayor, bailiffs, and burgesses, the rent being reserved
to the mayor, bailiffs, and burgesses, or to their treasurer
for the time being, and collected by him. This rent, toge-
ther with the proceeds of other property, called the Town's
Ancient Revenue, now form a separate fund, out of which
the salaries of the officers and other corporate expenses
authorized by the charter are defrayed. These farms are
The King
Bblford.
MTCHAELMAd T£tlM» It GEO. IV.
called *• Treasurer's Farms." The second portion is sttl>-
dWided into several parcels, varying in quantities from an
acre and a half to two acres and a half, and in value from v.
£l.to 9/. per annum. These are called Meadows; and at
an annual meeting of the burgesses called " a Meadow
Guild/' are distribufed, as they become vacant by the
death or non-residence of the last occupiers, tfmong the
lenior resident burgesses and widows of burgesses who
succeed to the rights of their husbands as to meadows and
stints, though the charter has no provision in behalf of the
uridows, the eldest resident burgess being entitled to choose
the most valuable vacant meadow, and so in succession
down to the junior, till the number of vacant meadows is
exhausted. The burgesses may either occupy those mea*
dows themselves or let them to tenants^^ reserving the rents
to themselves. The lands forming the third portion were,
op to the year 1761, open fields, upon which each bui^ess
was entitled to a certain right of depasturing; but at that
period they were inclosed, and have ever since been let in
guild, as farms, to tenants for various terms of years, and
are now demised by lease under the corporation seal, and
die rent has been, since the year 1810, uniformly reserved
to the mayor, bailiffs, and burgesses, (which is the name of
incorporation,) their successors or assigns, or to their trea-
surer for the time being. Previously to that period, how-
ever, several instances occur of leases of stint land, wherein
the reservation of the rent was made " to the mayor,
bailiffs, and burgesses, their successors or assigns, or to
dieir treasurer for the time being, or to the several respec-
tive burgesses or burgesses* widows who should from time
to time during the said term have shares in the said farm
hold in equal portions.'' The rent of each farm is divided
into a certain number of equal portions, generally eleven,
but in a few instances twenty-two. At another annual
meeting, called *' a Stint Guild," a portion is allotted upon
a specific farm to each resident burgess or burgess's widow,
or to as many of these as there are vacant portions. These
170 CASES IN THE KING's BENCH,
1829. portions are called '' Stints/' and they, like the. meadows,
^^HT^^T^ vary in value from 2/. to 9/. per annum, the senior bur-
The King • • • ••! • i i i. t
v. gesses being m like manner entitled to a preference as the
Belford. more valuable stints become vacant, the younger burgesses
succeeding as vacancies, by the death, removal, or promo-
tion of their seniors, occur. The portions of the rents
called stints are paid annually by the treasurer of the cor-
poration to the burgesses who are entitled to them ; but,
until the last fourteen or sixteen years, the burgesses in
many instances received their stint money immediately from
the farmers or lessees of the specific farms upon which
their several stints were assigned. The burgesses in guild
have, by their charter, a power of making bye-laws for the
good rule and government of the corporation, and for the
better preserving, governing, disposing, letting, and demis-
ing of their lands. Sec. In the exercise of this right the
burgesses assembled in guilds make bye-laws to regulate
the enjoyment of the meadows and stints, and have pre-
scribed the conditions of husbandry under which meadow
and stint lands may be broken up and converted into tillage,
and (in the case of the meadows) the terms for which they
may be let by the individual burgesses to whom they are
allotted. They also decide upon the title of those who
claim to enjoy meadows and stints according to such bye-
laws; and instances occur upon the records, of forfeitures,
both of meadows and stints, either absolute or for limited
perio()s, inflicted by the burgesses in guild for infraction of
bye-laws or other gross misconduct. But unless there be
such forfeiture, or the party either become non-resident or
relini)uish his stint or meadow by choosing one of more
value, he may remain in the enjoyment of riie stint or
meadow which has at the first been allotted to him for the
term of his life. Some burgesses are permitted to enjoy
one stint only, others two stints, and others again one
meadow and one stint. Those who enjoy two stints are
said to hold one of the stints for or in lieu of a meadow.
The pauper was for the three years next preceding this.
MfCUAELMAS TERM, X GEO. IV.
order of removal, and still is, in the enjoyment of one stint
assigned within the parish and borough of Berwick-upon- xJJ^^Kino
Tweed, called the Burrs, and annually receives from the v.
treasurer of the corporation, for his portion of the rent, the
sum of 3/. 5s. 9d. He is also in the enjoyment of another
portion assigned upon another farm, called No. 12 of the
outfields, under the description of " stint for a meadow ;**
his share of the rent of the last named farm being 3/. U. 9d.
The rents of these two farms are now and during all the
time of the pauper's sharing in them have been reserved
to the mayor, bailiffs and burgesses, or to their treasurer,
and these rents are received by the treasurer, and the above
are paid to the pauper by him. The pauper is not at pre-
sent entitled to a meadow, but he will be entitled (if he so
long live) to claim one as soon as a vacancy occurs in
regular rotation. The pauper, in his character of a burgess
of the borough of Berwick-upon-Tweed, is a member of
the assemblies of burgesses, called guilds, held under the
provisions of the charter or otherwise, and, therefore, en->
titled to a vote as well in the meadow and stint as in other
guilds.
The question for the opinion of this Court is, whether
the pauper John M' Queen was, during his residence under
the above circumstances in the parish of Berwick-upon'
Tweed, irremovable therefrom so as to acquire a settlement
in die said parish.
Ingham^ in support of the order of sessions. No land
in the parish was held by the pauper, or in trust for him.
Aer V. Slofne (a). An indirect interest in the land is not
sufficient; as an annuity charged upon the land, IZex v.
Stockkjf Pomroy (6), a right of dower before assignment.
Rex V. Northweald Bassett (c), a distributive share before
adasinistration granted. Rex v. lfidworthy(d), Rex v. North
(«) 6T.iL 895. (c)4D.&R.876;SB.&C.7M.
(*) Burr. S. C. 76«. (d) Burr. S, C. 109.
▼OL. ▼, N
fiCLFORD.
CASES IN THE KING's BENCH,
Curry (a). Rex w. Berkswell (b), a licence to occupy. Res
ThTKT^o ^* Horndon on the Hill{c), or a doubtful equity, JR^j v.
V. Toddington{d}» Here the burgesses have at the most
only a right to call upon the treasurer to account to them
.for the rents allotted to them respectively. If the cor-
poration were dissolved, the lands would revert to the heirs
of the donors without regard to the individual members.
8 Vin. Abr,{e). He was stopped by the Court.
Alderson, contrsl. The pauper was irremovable, Rex v»
Warkworth (f), and therefore gained a settlement. The
burgesses have the power of determining in what manner
the land shall be occupied. The receipt of rent is equiva-
)ent to actual enjoyment of the land. The pauper is
entitled to be present at the guild at which the lands are
let. His removal would deprive him of that privilege, and
of his undivided share of the rent. He is, therefore, irre-
movable. XBayley, J. He has a right to vote whether
entitled to a stint or not.] A mere claim is sufficient. Rex
V. Siaplegraveig). [Bay ley ^ J. That was the case of a
reversioner who went to reside on what he believed to be
entirely his own estate ; and he could not have been removed
until the parish officers had found the deed creating the term.]
The pauper had not then the right which he claioied, though
the parish officers were not prepared to disprove it. The
decision of the Court proceeded on the ground that a
coming to settle under such circumstances was not within
the prohibition of the statute of Car. 2.
. T. Greenwood, on the same side. By Magna Charta,
disseisins are prohibited not only where a person has
(a) Caldec. 137. Henry 8, the reversionary interest
(&) dD.&R.9; 1B.&C.642. of the beira of the respective
(e) 4 M. & S. 569. donors was destroyed by an act
(cO 1 B. & A. 560. of parliament^ which vested the
(«) 8 Vin. Abr. Corporation, fee simple in the crown. *
H. S, pi. 9. Upon the dissolution (/) 1 M. & S. 473.
of monasteries in the reign of {g) 2B. fie A. 527.
HICHAELMAS TERM, X GEO. IV. 17^
afireebold but where be has a franchise of any kind (a). ^^^^*
He is, therefore^ irremovable from such franchise (6). The jj^^ Kikg
rule was first narrowed in Ret v. Warkworth. There, 'o-
however, the party was merely entitled to a right of com-
mon which he had not the means of exercising ; here he
hu s specific rent-charge issuing out of the particular
land. IBajfley, J. No burgess is seised in his individual
capacity.]
Lord Tenterden, C. J. — I am of opinion that the
paoper is not seised of any estate legal or equitable. The
estate is in the corporate body ; and it is immaterial whether
the corporation allowed the pauper to enjoy the whole or
a certain portion of the rents, or assigned to him the rent of
a particular estate. The pauper had -no right to enter
upoo the land or to make over his interest to another^
He was entitled even to the rent only so long as the cor*
poration pleased.
Bat LEY, J. — Rex y. Warhworth shews that the posses-
sion of a right of common is insufficient. Here, the pauper
bad no estate either legal or equitable. The rent is dealt
eat under the bye-law as the burgesses think proper.
LiTTLBDALE, J. — ^The pauper had no right to occupy
the land.
Parke, J. — ^The pension was determinable at the plea-^
sure of the corporation.
Order of sessions confirmed.
(a) Cap. 29. Nallos liber homo legalejudiciumpariumsuorum vel
disseissiatur de libero tene* per legem teme.
nento vel lUferiatilms vel liberis {h) And see Rex v. Aythrop
coQBoetadinibos sois nisi per "Rooding, Burr. S* C. 4f4.
N 2
\60
CASES IN THE KINGS BENCH/
1899.
A demise of
tbe glebe by
Incambent of
a benefice with
care of souls,
to secure an
annuity, is
▼oid by 57
Geo, Sy c. 99,
reviving 13
£lix. c SO.
Shaw r. Fritchard, Clerk, and others.
XHE following case was sent by Lord Eldon, C* for th^
opinion of this Court
By indenture, bearing date the 8th of September, 1826»
and made between the Reverend William Pritchardt
clerk, being then and still rector of the rectory and parish
church of Yeldham, in the county of Essex, and also vicar
of the vicarage of Great Wakering, in the same county,
of the first part: BeNJamin Shaw, of Kilburn Priory, in
the county of Middlesex, Esq. of the second part: and
William Stephens, of Bedford Kow, in the county of Midn
diesex, gentleman, of the third part : and duly executed by
the said William Pritchard, after recithig that the said
William Pritchartf was rector of the said rectory and
parish church of Great Yeldham, and in right thereof was
seised or entitled of or to the glebe lands, together with all
and singular the great, or predial, and small tithes, tenths,
moduses, or customary payments in lieu of such tithes or
tenths, rents, offerings, and oblations, and other appurte-
nances to the same rectory or parsonage belonging or
appertaining; and also reciting that the said William
Pritchard was also vicar of the said vicarage of Great
Wakering, arid in right thereof was seised or entitled of or
to the vicarial tithes to the said vicarage belonging; and
also reciting that the said William Pritchard, together with
John Daniel Haslewood, clerk, rector of the rectory and
parish church of Boughton Winchelsea, in the county of
Kent, had contracted to sell to the said Benjamhi Shaw
one annuity or clear yearly sum of 93/. lOs. to be paid to
the said Benjamin Shaw, his executors, administrators, or
assigns, during the natural life of the said William Pritchard,
at or for the price of 750/. : And that in pursuance and
part performance of the said agreement on the part of the
said William Pritchard and John Daniel Haslewood^ they
the said William Pritchard and John Daniel Haslewood
had, by a certain bond, bearing even date with tl>€ said
MICHAELMAS T£RM, X GEO. IV. 18L
indenture, become bound unto the said Benjamin Shaw, 1829.
his executors, administrators, and assigns, in the penal sum ^"^^^^
of 1500/., with a condition thereunder written for making 9.
the same void on payment by the said William PrUekard P*»tc"a»»^
and John Daniel Haslewwd, or one of them, or one of their
executors, or administrators unto the said Betgamin Shaw,
Us executors, administrators, or assigns, yearly and every
jear, during the natural life of the said William Pritchard,
the said annuity of 93/. 10s. by four equal quarterly pay-
ments on the 8tb of June and the 8th of September in
each and every year, (the first quarterly payment to be made
•n the 8th day of December the next ensuing,) together
with a proportionable part of the said annuity up to the
day of the death of the said William Pritchard, in case, he
should happen to die on any other day than one of the said
<|08rterly days of payment. It was by the said indenture
witnessed, that in pursuance and performance of the said
^reement on the part of the said William Pritchard, and in
CDouderation of the sipd sum of 1500/. then paid by the
Slid Benfamin Shaw to the said William Pritchard, and
for the nominal consideration therein mentioned to have
heen paid by the said William Stephens to the said William
Pritchard, he the said William Pritchard did, at the re-
quest of the said Beigamin Shaw, grant, bargain, sell and
demise unto the said William Stephens, his executors,
administrators and assigns, all that and those the said,
rectory and parish church of Great Yeldham, and the si|id
vjcarage of Great Wakerjng, in the said county of Essex;
and all the messuages or tenements and glebe lands, tithes,
tenths, oblations, obventions, offerings, portions, profits,
emoluments, rights, members and appurtenants. whatsoever,
aitnate and being within or forming part or parcel of, or
issaiog from, the same rectory and vicarage respectively, or
thereunto or unto any part thereof respectively belonging
or in anywise appertaining; To have and to hold the said
victory and vicarage, messuages or tenements, glebe
Ituds, tithes, hereditaments, and all and singular other the
\^ .CA9£S IN' THIS kino's BENCHi
I98a< pfenisefi thereby granted, : bargained^ so\d and demised, or
^]J^^' Qipressed or intended so to be, with their rights^ members,.
v. and appurtenances, unto the said William Stephens, his
.A,/^ \ executors, administrators, and assigps, thenceforth for aod
during the full end and term of ninety-nine yenrs thence
qext ensuing, if he tbe said William Pritckjtr4 should so
long live: Yielding and paying therefore yearly and eveiy.
year during the said term, unto the said William Pritchari
or his assigns, the rent of a pepper corn, if lawfully de^
manded : Upon trust to permit the said William PriUhard.
or hia assigns to hold and enjoy the said rectory and vicar-.
age» and lands and premises, and to receive ^ rentSr
issues, and profits thereof respectively, for his and their
proper use and benefit, until the said . annuity, or some
quarterly .payment thereof, should be in arrear by the space
of twenty-one days next after the same should become
payable as therein mentioned: And upon further trusty
that in case default should at any time thereafter be made
i» payment of tbe.ftaid annuity, or any part thereof, bj the.
apace of twenty-one days next after the same should
become payable as aforesaid, the said William Stephens,
bis executors, administrators, or assigns, should enter into
the actual possesion of all and singular the said rectory and
vicarage, hereditaments and premises, and should, so lopg
as the said annuity should be payable, continij^ in siich
possession, and receive all the tithes or compositions or
payments for or in lieu of tithes, and all other the renta^
issues, and profits of or belonging to the same rectory and
yicarage, hereditaments and premises respectively, . and
should from time to time set, let, order, or manage the
same rectory or vicarage, hereditaments and premises^; in
such manner as to him should seem reasonable : And upon
trust, out of the residue of the said moneys to. pay the said
Benjamin Shaw, his executors^ administrators, or aas^ns,
die said annuity, or so much thereof as should not have
been otherwise satisfied, and to pay the ultimate residue or
surplus of the said moneys unto the said William I^ritchn.
MICHAELMAS TERM, X GEO. IV. 1%^
irdf clerk, his executors, administrators, or assigns: And it i849^.
WIS also thereby declared, that if the said annuity, or any ^ '
part thereof, should at any time be in arrear by the space v.
of forty days next after any of the days on which the same P*"<="^«>^«
ought to have been paid as aforesaid, it should be lawful
for the said William Stephens, his executors, administrators,
or assigns, and he was thereby directed, if requested so to
Jo by the said Benjamin Shaw, his executors, administra-
tors, or assigns, by demising, leasing, mortgaging, or selling
the said rectory and vicarage, hereditaments and premises;
or any part thereof, for all or any part of the said term of
ainety-iiine years, or by such other ways and means as to
hiia or them should seem meet, to levy and raise such
som and sums of money as would be sufficient or as he or
they should think fit or expedient to raise, for paying and
satisfying the said Benjamin Shaw, his executors, adminis^
trators, or assigns, the said annuity, or such part thereof as
should be in arrear, and all costs, charges, and expenses
which the said Benjamin Shaw, his executors, administra-^
tors, or assigns, or the said William Stephens, his executors,
administrators, or assigns, should sustain by reason of the
non-payment of the said annuity, on the days aforesaid, or
otherwise in the execution of the trusts of the said inden-
ture: And the said William Pritchard did thereby, for him-'
self, his heirs, executors, and administrators, covenant M^itb
the aforesaid Benjamin Shaw, his executors, adniinistrators,
and assigns, that in case the said annuity, or any quarterly
payment thereof, should happen to be behind or unpaid
by the space of forty*five days next over or after any of the
said days and times on which the same were then appointed
to be paid as aforesaid, and the said Benjamin Shaw, his .
executors, administrators, or assigns, should deem it expe-
dient to sequester the said rectory and vicarage, or either
of them, it should be lawful for the said Benjamin Shaw,
his executors, administrators, or assigns, and the said
WilHam Pritchard did thereby authorize and empower him
and them to sequester the said rectory and vicarage, or
either of them, for payment of the arrears of the said
Shaw
V.
184 CA8£6 IN TH£ KIKO*S BI^NGH,-
1H49. annuity* or any part thereof, and particularly to iDstruct
counsel or civilians to act for the said Benjamin Shaw, bis
executors, administrators and assigns, and for the said
Paitchard. William Pritchard, and in his name, either in Courts of
common law, civil law, or equity, or elsewhere, as occasion
should require, to assent to and concur in ail such proceed*
ings as might be necessary to obtain an immediate seques-
tration of the said rectory and vicarage, or either of them,
and that without giving notice to or advising or consulting
with the said William Pritchard thereupon.
The question for the opinion of the Court is, — whether
the above demise for securing an annuity, being subsequent
to the act of parliament passed in the 57th year of the
reign of his late majesty Geo. 3, intituled, ** An Act to
consolidate and amend the laws relating to spiritual persons
holding of farms, and for enforcing the residence of spiri-
tual 4>er8ons on their benefices, and for the support and
maintenance of stipendiary curates in England," is valid or
not.
Mannings for the plaintiff, and for the defendant 67e-
phens. It M'as the intention of the 57th Geo^ 3 to repeal
the whole of the statute of £/u., which relates entirely to
leases. The 57th Geo. 3, after enumerating twelve statutes,
four of which had been passed in the reign of Elizabeth^
enacts, " that so much of the said several recited acts
passed in the reign of his majesty King Henry the 8th» and
sb much of the said acts in the reign of her majesty Queen
Elizabeth, of the said recited acts of his majesty King
Charles 1, as relates to spiritual persons holding of farms,
and to leases of benefices and livings,and to buying and
selling, and to residence of spiritual persons on their bene-
fices, and also so much of the said recited acta of her
majesty Queen jinne, and of the said recited act of the
36th year of the reign of his present majesty, as relates to
the maintenance of curates within the Church of England,
and making provision for appointing stipends for such
curates, and all the said several recited acts, passed in the
MICHAELMAS T£HM, X GEO. IV. 195
reign of his present majestyi shall be, and the same are re* J85{9.
spectively hereby repealed." Some of the statutes of EUz.
coDttin clauses wholly unconnected with the objects falling
within the purview of 63 Geo. 3. This explains the use
of the words " so much/' but it was clearly not the inten-
Uon of the legislature to leave standing any part of the 13
Eliz. c. 20. The title of that statute describes il as " an
Kt touching leases of benefices and other ecclesiastical
benefices with cure.'' The first section of that statute
runs thus: '* that the livings appointed for ecclesiastical
ministers may not» by corrupt and indirect dealings, be
Inosferred to other uses* be it enacted, &c.^ that no lease,
after the 15th day of May, &c., to be made of any benefice
(NT ecclesiastical promotion with cure, or any part thereof,
and not being impropriated, shall endure any longer than
while the lessor shall be ordinarily resident and serving die
cure of such benefice, without absence above fourscore
days ID any one year^ but that every such lease, so soon as
it, or any part thereof, shall come to any possession or use
above forbidden, or immediately upon such absence, shall
cease and be void, and the incumbent so ofi^ending shall
for the same lose one year's profit, to be distributed by
the ordinary among the poor of the parish; and that all
chargiogs of such benefices with cure hereafter with
any pension or with any profit out of the same to
be yielded or taken hereafter to be made, other than
reots to be reserved upon leases hereafter to be made
according to the meaniiig of this act, shall be utterly
void." The provision in this act by which the presenjt
demise would have been affected is evidently that con-
tained in the former part of the first section, the words of
which are sufficient to avoid a lease made for the purpose
of transferring a living to other uses than the support of
ecclesiastical ministers ; and though the words " charging
of such benefices/' in the latter part of the section, might
have affected such a lease as the present, if the statute had
contained no clause directly applying to leases, it is too
F8&' CASES IN THE KING's B£NCH| '
1829. much to say that leases which had been already expressly
^'^^'^^ provided for were meant to be attacked again under the
V. general description of chargings. At common law this
PniTciiARD. lease would have been undoubtedly good ; and while the
statute of IS Eliz. c;20, was in full operation, and before
the enabling statute of 33 Geo, 3, c. 84, demises in this
form were common. Errtngton v. Howard (ct). Doe d.
Rogers v. Mears (i), Mouys v. Leake (c), Bromley v. Hoi'
land (rf), Boxoyer v. Pritchard (e), fVhiie v. Bishop of Pe-
terborough (f), Silver v. Bishop of Nortoich (g), Co. UtU
45y a. In Doe d. Cates v. Somerville {h), and in Doe d.
Broughton v. Gully (t), the leases being granted after the
repealing statute of 43 Geo. 3, c. 84, and before 57 Geo. S,
c. 99> were clearly good ; and though in those cases the
circumstance of the demises having been made before 57-
Geo* 3, c. 99* was mentioned by the Court, it was not in
either of them necessary to consider whether the repeal
of 13 Eliz. c. 20, would have been less complete under
57 Geo. 3, c. 99, than it was under 43 Geo. 3, c. 84. The
reference by the learned judges, therefore, to 57 Geo. 3,
c. 99> amounts to no more than this, that the leases then
before the Court having been granted during the conti-
nuance of 43 Geo. S, c. 84, which undoubtedly repealed
the statute of Eliz., they would be valid, even assuming
that the prohibitory clauses of the statute of Eliz. were
restored by 57 Geo. 3, c. 99.
Supposing the second branch of the first section of 15
Eliz. c. 20, to apply to leases, notwithstanding they have
been already provided for by the former branch of the
section, then the second branch would also come within
the repealing clause of 57 Geo. 3, c. 99i in which the term
'^ leases*' is not confined to leases described eo nomine in
(fl) Ambler, 485. (/) 3 Swanst. 109.
(if) Cowp. 199. (g) Ibid. 119, n.
(c) 8 T. U. 41 1. (A) 6 B. & C. 126.
(«0 5 Vcs. 610 ; r Ves. 3. (i) Ante, iv. 249 ; 9 B. Ac C. 344.
^(f) il Price, 103.
HflCHAELMAB TERM, X GEO. IV.
tbe repealed statutes. The 14 EKz. c. I T, is one of the
sUtutes partially repealed, and jet that statute contains no
profision upon which the repealing clause a? to leases can
operate, except a clause for avoiding bonds, contracts,
promises, and covenants for permitting parties to enjoy a
benefice, or take the profits thereof. The repealing clause
of 57 Geo. 3, c. 95, would therefore have no operation upon
14 Eliz. c. 1 1, unless the leases there spoken of embraced
all contracts for divesting the incumbent of the possession
of the profits of the living, whatever shape they might be'
made to assume.
CUtty, Patteson, and Follett, appeared for several de-
fendants, ^ho, being also incumbrancers on the living,
were interested in upholding the demise, and shortly sup*
ported the arguments which had been adduced for the
plaintiff.
' BnjSriekj for the defendant Osborne, contri^. In passing
13£/i2, c.^0, the intention of the legislature was to protect
the successor. The object was also to protect the incum*
bent himself, first against leases, then against other chargings«
Leases are avoided by non-residence, or by being so dealt
with as to make them operate as charges; but direct
cbarges, whether in the form of leases or in any other forra,
provided they are not intended to enure as boni fide leases,
ire absolutely void. This wholesome provision had beed
inadvertently repealed by 43 Geo. 3, c. 84*. The efl^qct of
the 57 Geo. 3, c. 99, is to restore the prohibition as to
charges, but to cootinue the repeal of the former part of
the 1st section of 13 JB/iz. c. 20, under which it had bcTen
held, that an incumbent, by his own wrongful i|ct in ab-
senting himself from his benefice, might avoid his owa
bonft fide lease. The demise in this case is clearly in sub-
stance not a lease, but a charge. In Doe v. Somervilte and
Doe V. Gutly it was not doubted but that if the charges in
the form of demises then before the Court, and which
188 CASES IN THE KING's BENCH/
1829. are precisely in the same form as the present had been
^T^'^^'^ created since the passing of 57 Geo. 3, c. 99> they would
V. have been void»
PRITCUikBD.
The following certificate was afterwards sent: —
*' This case has been argued before us by counsel, and
we are of opinion that the demise for securing the annuity
in question is invalid, being in substance a charging of the
benefice within the meaning of the 13 Eliz.c*20, which,
as far as relates to chargings of benefices, is now in force*
J. Baylby,
J* LlTTLEDALEy
Jas* Pabke.'*
^. agrees to
eiecute to B,
an effectual
assignment of
the two leases
of a house and
shop for 4250/,
** as he holds
the same for
term of S8
years," and B.
agrees to ac-
cept *< a proper
assignment of
the Teases as
above de-
scribed, with-
out requiring
the lessor's
title:"— Held,
that B. was
bound to take
an assignment
of two conse-
cuuve
tboush the se-
cond was void,
b«ng executed
under a power
which had not
been pui sued.
Spratt v. Jeffbry.
Assumpsit. The declaration contained special counts
for non-perforinance of the agreement mentioned below,
for the sale of a public-house, 8cc., alleging defect of title^
the non-payment of a penalty of 300/., and of the expenses
of endeavouring to obtain an assignment, and the non-retura
of a deposit of 2O0L paid by the plaintiff under the agree-
menty with the usual money counts* Plea, non-assumpsit*
At the trial before Lord Tenterden, C. J. at the sittings at
Westminster after Michaelmas term, 18£8(ii), a verdict
was found for the plaintiff, damages 230/. (6), subject to
the opinion of this Court upon the following case.
On the 23d of April, 1828, the plaintiff add defendant
entered into the following agreement (r) : —
'' Memorandum of an agreement made this ttoenty^ihird
day of jtpriU 1828, whereby it is witnessed, that WilUam
Jtfftry, ofb^c. victualler, doth agree to sell unto Williaia
(a) Counsel for the plaintiff, Sir
X Scarlett and Jardine ; for the
defendant, Campbell and
. (6) The amodnt of deposit and
expenses of inTestigating the title
and the broker's charges.
(c) The words in iulics are
written, the rest printed*
MICHAELMAS TERM, X GEO. tV. 189
Spratt, of Shad well, the two leases and good-^will in trade of le^g.
the house and premises now occupied by him, known by ^IT*^''^^
the sign of The Rockingham Arms, and shop adjoining, tr.
Bitaate at i^c^ for the sum of 4250/. as he now holds the J^fi'eR^*
9uae,for terms qf2S years from Midsummer next ensuing^
at the annual rent of 126/. and under fair and usual cove^'
natUs, only except that the lessee is to insure and to keep the
house as a tavern or coffee-house, to be caUed The Rockingham
Arms: also such of his household goods, fixtures and effects
now on the premises as he has a right to sell, at a fair
valuation,, by &c. ; also his saleable stock in trade, not ex-
ceeding the undermentioned quantities and value, viz. por-»
ter, nine butts, &c. ; such stock to be valued by proper
persons or their umpire: And the said William Spratl doth
hereby agree to accept a proper assignment of the said leases
and premises as above described, without requiring the lessor*s
title; and that he will pay unto the said William Jeffery
the said sum of 4£50/. for the same; also the amount at
which the goods, fixtures, effects, and stock in trade shall .
be valued as aforesaid, together with the proportionate
value of the unexpired term in the licences (after deducting
the sum of two hundred pounds, which has now been paid
as a deposit,) and take possession of the said house and
premises on or before the 5th day of May next ensuing, at
which time, upon payment of the several sums as aforesaid,
ilf the said William Jeffery doth agree to execute an effectual
mgmnent of the said leases, and deliver up possession of
sll the said premises except the shop, which is underlet at will,
sod also the effects and stock in trade, and to assign over
good and sufficient licences to the said William Spratt;
also to repair or allow for the external damaged windows,
and pay and allow for all rent, taxes, gas, and outgoings,
op to the day of quitting possession. And it is mutually
agreed, that all reasonable expenses of carrying this agree-
ment into effect shall be paid in equal moieties, and that if
either of the said parties shall not fulfil all and every part
f>f the same, the party not fulfilling shall pay unto the other
i90 CASES IN THE KINGA BENCH, ^
1829^ of them who shall be ready >nd willing to fulfil the saint
the sum of Jive hundred pouocls hereby settled and fixed as
liquidated damages, the deposit now paid to be forfeited
in part of such damages, or returned in addition thereto
|i8 the case may be/'
. Then followed an engagement by Je^ffhy not to be con^
cerned in any victualling-house within half a mile {a).
Shortly after the above agreement was executed, th^
plaintifl^'s attorneys received from the defendant's attorneys
an abstract of the vendor's title to the premises in question,
entitled 'f Abstract of the title of Mr. W. Jeffery to lease-
bold premises, called the Rockingham Arms, in the parish
of St* Mary, Newington, in the county of Surrey/' The
abstract (to which either party may refer) set forth an in«
denture dated the 2d of March, 18 IS, made between
J^hn Carter and Samuel Brandon (therein described as
Ibe. then trustees of the will of Thomas Brandon, deceased)
of the firsi part, Stephen Hall, on behalf of himself and his
infiiBt children, WilUam Smith and Mary Ann his wife,
Thomas Fleming and Harriet his wife (which, said Mary
Ann Smith and Harriet Flemit^ were stated in such lease
to be the only then surviving children of the said Hummt
Brandon, deceased, and to be with the infant children of tiia
said Stephen Hall, by his late wife Elizabeth Hall, de«
ceased, another of the daughters of the said Thomas Branr
don deceased, the only devisees and legatees named in htt
last will and testament) of the second part; and Joseph
Denyer of the third part By this lease, John Carter and
Samuel Brandon, with th^ consent and approbation of the
parties thereto of the second part, demised the premises in
question to Denyer for 25 years from the 24th June, 1812,
at the yearly rent of 126/. After stating several mesne
assignments the abstract shewed, that by an assignmenl
dated 2d June, 1824, the lease and premises became vested
in Alexander Magnus for the residue of the term. The
abstract then set forth an indenture of lease dated the 17th
of Jun^j 18^5, between. JoAn ^e&s/^,, therein described ^»
(a) As to mode of computing distance, vide Leigh v. Hunt, ante, iv. 579.
Spratt
V.
MICHAELMAS T£RI^ X GEO. IV. 191
the then only continuing trustee of the estates of the said I839.
Thomoi Brandon, deceased, of the first part, Stephen Hall,
Thomas Fleming, George Webster and Elizabeth his wife,
late Elizabeth Hall, spinster, Mary Ann Hall and Jane ••!^i'^^.<^^-
Hall, of the same place, spinsters, Stephen Hall, Thomas
Brandon Fleming and Harriet Fleming, therein described
as parties beneficially entitled to the estates of the said
Thomas Brandon, of the second part, and the said Alexander
Magnus of the third part. By this indenture it was wit-
nessed, that in consideration of 1000/. paid by Magnus to
the parties thereto of the second part, the said John
Webster, by the consent and direction of the parties thereto
of the second part, demised the premises in question to
Magnus, his executors, administrators and assigns, for 19
years from the 24th June, 1827, at the yearly rent of 126A
The abstract then stated a bond also dated the 17th June^
]8£6, from the parties of the second part to the last men^
tioned indenture of lease to Magnus, his executors, adminis-
trators and assigns, in the penal sum of dOOO/. for quiet en-
joyment of the premises against John Webster, his exe-
cutors, administrators and assigns, themselves, and any
claimants under them or the said Thomas Brandon, de-
ceased. The abstract, after divers mesne assignments, then
shewed an assignment by indenture, dated 10th June, 18£6,
of both the above leases to the defendant, the consideration
for which assignment was 4000/. After perusing the ah*
stract, the plaintiff's Attorneys returned it to the defendant's
attorneys with several queries on the title, written in the
margin, and amongst them were inquiries whether the
trnstees under the will of fhomas Brandon, named as the
granting parties in the two indentures of lease of the 2d
March, 1813, and 17th June, 1825, had power to grant
leases upon a premium, and whether the respective direct-
ing parties to those leases were all the parties beneficially
interested in the demised premises.
On the 5tli. May, the vendor's attorneys returned the
abstract, and in answer to these inquiries referred generally
id2
1830.
CASES IN THE KINGS BENCH,
to the will of Thomas JSrandon, and at the same time re*
quired the plaintiff's attorneys to forward the draft assign-
ment as soon as possible. Upon examining the will it
appeared that Thomas Brandon devised the premises in
question, with other property, to trustees, amongst whom
was John Carter, one of the granting parties in the lease of
2d March, 1813, in trust for his, the testator's, three
daughters, Mary Ann Brandon, Elizabeth Brandon^ and
Harriet Brandon^ in equal shares as tenants in common,
and not as joint tenants, and for their respective executors,
administrators and assigns, subject to a proviso that it
should be lawful for the said trustees, or the survivors or
survivor of them, to demise the estate devised to thetn in
trust on building or repairing leases, or common tenants
leases, for any term of years, so as all such leases made in
pursuance of that his will should be made to take effect
in possession, and not in reversion, or by way of future
interest; and so as upon every such lease or demise there
should be reserved, during the continuance thereof, the best
and most improved rent that could be reasonably had or
gotten for the same, without taking any sum or sums of
money by way of fine or foregift. At the time when the
indenture of lease dated 17th June, 1825, was granted,
several children of 'Elizabeth Brandon and Harriet Bran^
don, mentioned in the will of Thomas Brandon, beneficially
interested in the premises under the will, were living, and
infants, and did not join in the lease; and some of such
children were living and infants at the time when the above
agreement was made between the plaintiff and the de-
fendant, and also at the time when the cause was tried.
On the 5th May, the day appointed by the contract for
the completion of the purchase, the defendant was pre-
pared to give possession of the premises, and to assign the
leases ; and plaintiff attended on the premises with his
broker, but his attorneys did not attend, and on the follow-
ing day by letter to defendant's attorneys, plaintiff's attor-
neys stated, that before they proceeded any further in the
MICHAELMAS TERM, X GEO. IV. 193
businesa^ or gave any answer to the question put to them 1829.
by the defendant's solicitor that morning, requiring to be
informed whether they meant to complete the purchase or
not, wished to be informed whether the answers returned
to the plaintiff's solicitor's queries on the abstract contained
all the information intended to be furnished, and whether
the deeds which they, the plaintiff's attorneys, required
would be produced to them. To which letter the defend-
ant's attorneys returned for answer that they did not feel
themselves bound to give any further answers to the queries
00 die abstract ; that the deeds required to be produced
were not in their possession, and that the same related to
the lessor's title> which the purchaser was not at liberty to
inquire into. Oa the 12th May, the plaintiff's attorneys by
letter informed the vendor's attorney that they had inspected
the will of the late Thomas Brandon at Doctors' Commons,
that it appeared that the will gave a power to the trustees
to grant leases, so that no premium were taken for the
granting thereof, and that the term were made to commence
in possession, and not in reversion. They further stated
that the title to the second lease appeared on the face of
the abstract (connected with the information acquired by
the inspection of the power under which it was granted) to
be decidedly defective, a premium having been taken for
the granting thereof, and the term being made to commence
in reversion and not in possession. Under these circum-
stances they informed the vendor's attorneys that it was the
intention of their client to rescind the contract, and to re-
quire the payment of the deposit money with interest and
the expenses, together with 500/. agreed to be paid as
liquidated damages. With this requisition the defendants
refused to comply.
All the parties interested, who were of age when the
second lease was granted, joined therein and received the
consideration money, a«d laid out the whole of it in bene-
ficially improving other parts of the property devised by
the will, of which devised property the premises in ques-
VOL. V. o
194 CASES IN THE KING's BENCH,
1829. tion are part, for which purpose money was wanted. The
defendant, at the time of making the contract, declared to
plaintiff and his broker, that he, defendant, would sell no
other title than what he held, and would not sign the agree-
ment unless the stipulation respecting the non-production
of the lessor's title were introduced. The rent of 1262. per
annum was not at the time of the trial of the cause the
best and most improved rent that could reasonably be had
or gotten for the premises.
Jardine, for the plaintiff. This was an entire agreemeal
for the sale of two leases. On the first lease no question
arises; but the lease of 1825 was, in equity, absolutely void,
being made in contravention of the power in three particu-
lars ; J St. it does not reserve the best rent ; 2dly, it is granted
in reversion ; and Sdly, a sum of money is taken by way of
fine. This is not a formal defect in the execution of a
power, in which case equity may relieve; but the lease is
granted in direct contravention of the terms of the power,
and is, therefore, absolutely void (a), and cannot be con-
firmed (ft). Upon the face of the abstract also the title is
defective. It is not shewn that Dn Webster had any inte-
rest at all ; he is not named as a trustee in the will, nor
does his authority to demise any where appear. The de-
fendant asked for the deeds by which Dr. Webster was
appointed trustee, but they were not furnished, and he had
therefore no reasonable satisfaction that Dr. Webster bad
any title whatever. The whole question is^ whether the
plaintiff has contracted by the terms of his agreement to
accept such title as tbe vendor had, whether good or bad.
There are only two parts of the agreement upon which the
defendant can rely as compelling the plaintiff to take the
title whether good or bad. The Court must be satisfied
(d) Campbell w Leach, Ambler, v. Verney, Willes, 169; Doc v.
740 ; Sugd. Powers, 377. WatUy 7 T. R. 83.
{b) Co.Litt. 895. And bee Jones
MICHAELMAS TERM, X GEO. IV.
(bat the purchaser explicitly contracted for such title as the
Tendor could give, or that he had notice of the badness of
the title before they will enforce payment of the 50001. Of
the latter circumstance there is no evidence in the case.
It win, however, be contended for the defendant, from
two passages in the agreement, that the purchaser is bound
to take such title as the vendor could give. The first of
these is the words '' as he holds th^ same." By the con-
text it will clearly appear, that these words were not in^
tended to be used in the sense which it is now attempted
to affii to them. They were merely used as descriptive of
the manner and circumstances of the occupation. They
relate to the possession, and not to the title. The expres-
sion relied on is found in that part of the agreement which
points out those things which are to be done by the vendor.
In the purchaser's part there are words of more limited
extent, which would have been useless if the words in
question were to be understood in the manner contended
for by the defendant. If these words referred to title, the
stipulation as to non-production of the lessor's title would
be wholly unnecessary. With regard to the second expres-
sion, namely, that the plaintiff was not to require the
lessor's title, its effect is merely to exempt the vendor from
the necessity of proving that his title is as good. In White
V. Foljambt (a). Lord Eldon says, " Do you carry it to the
extent that the defendant could not be permitted to shew
you had a bad title (&) ? The plaintiff's case is quite clear
of any difficulty. His objection is not to the lessor's title,
but to that of the lessee. Thomas Brandon^ who created
the power (c) under which the leases were executed, must
195
1829.
(•) 11 Vcs. 33r.
(h) Ibid, 359.
(c) The title of an appointee is
the same as if the estate had been
expressly limited to him by name
in the deed creating the power.
SlrBdmfardCiere*$casey6Co.Bjep.
18; Lady Graham\ case, F.
Moore, S61 ; MiddUton v. Crqfti,
2 Atk. 661 ; Koach v. Wadham, 6
East, S89, &2 Smith, 376; Mound-
rell V. Maundrell, 10 Vesey, 355 ;
Ratf V. Pungy 5 B. & A. d61 ;
Doe d. Wigan v. JoneSf 10 B. &C.
458 ; S Johns. (American) Chan-
cery Reports, 550. Tor some
O «i
196
1829.
CASES IN THE KINGS BENCH,
be considered as the lessor. The plaintiff does not dispute
the title of Brandon as lessor; but he says that Brandon
did not demise. There is another objection founded upon
a variance between the defendant's title and that which he
contracted to sell. The agreement treats these leases as
concurrent leases. A fair presumption upon this memo-
randum is. that the defendant was selling the leases under
which he held the premises. They should have been leases
to which his possession could be attributed. The cases of
M^hite V. Foljambe (a) and Deverell v. Lord Bolton (6) are
extremely apposite. [Bayley, J. In White v. Foljambe it
was said that he held the residue of a term; here the interest
is described.] There they would be supposed to be leases
of different parts ; Deverell v. Lord Bolton.
Campbell, contrsl. This is a case of extreme hardship
upon the defendant^ who had most carefully guarded him-
self against warranting a complete title^ and declared to
the broker that he would not sell any title but what he had.
No bad faith can be imputed to the defendant, it being
entirely the fault of the plaintiff that the bargain has not
been carried into effect. To begin with the last point
which has been made on the part of the plaintiff. No
fraud and no misdescription are chargeable upon the de-
fendant, and he has been at all times ready to execute an
assignment. In White v. Foljand>e and in Deverell v. jLor J
Bolton there was misdescription. In the former of these
cases the interest of the vendor was described as one term
of 50 years, whereas he held under two terms. The incum-
purposes, however, the appoint-
ment is treated as a distinct sub-
stantive act. It is considered as
a conveyance with reference to
the provisions of 87 Eliz, c. 4, as
to fraudulent conveyances, Duke
of Marlborougk v. Lord Godol-
phifiy 2 Vez. sen. 61, 65; and with
reference to the statutes requiring
registration, Scrafton v. Qtiincei/,
ib. 4tS. So, the appointee is
looked upon as a party claimiDg
under the appointor within a co-
venant against the acts of persons
claiming vtuler the appoiotor;
Hurd V. Fletcher, 1 Dougl. 43.
And see Bartlet v. JRamscfen, 1
Keble, 570; po$ty 200 (a).
(a) 11 Vesey, 337.
(6) 18 Vesey, 505.
MICHAELMAS TERM, X «EO. IV.
brances also will dispose of that case as an authority.
Here there is an express allegation in the declaration which
may always be adverted to^ of the existence of the two
leases. [Bayley, J. No question is referred to us as to
the form of the declaration ; the question is, whether this
was a warranty of title, or merely an undertaking to assign
what he has.] It is of the last importance that parties
should be able to stipulate so as to avoid any questions of
title. There are few titles in which a conveyancer will not
discover defects. The words*" as he holds the same,"
relate to the title. The antecedent referred to is the lease.
The words are a qualification of the vendor's engagement.
It b said that he knew the objection to the lessor's title ;
if 80, the case of Freme v. Wright (a) is very nearly in point.
In that case a party who had contracted with assignees to
purchase the interest of the bankrupt under such title as he
lately held the same, was compelled to accept a lease which
the lessor had no power to make. [Littledale, J. That is
not the case here. The plaintiff does not mean to say that
the testator had not a good title.] It is not shewn that
Carter did not assign to WatkiiiSL It is necessary to refer
to the title of the lessor, in order to attack the lease in
question. That the purchaser has precluded himself from
doing. Then it is objected that the interest is only equit-
able. In Alpass v. Watkins {b) the Court said, that upon
a question as to the right to a return of the deposit, they
would only look to the legal title. It is true, that in
Elliott V. Edwards (c) it was held, that the liability of the
purchaser in equity was a sufficient objection; but that was
a case of an actual incumbrance to the extent of the pur-
chase-money, which the vendor had not paid. \Parke, J.
Prim4 facie a party bargains for a good title in equity as
well as at law.] The agreement was qualified to meet
certain objections to the title of the lessor.
157
1829.
(«) 4 Mndd. 364.
(6) 8T.R. 516.
(c) 3 B. & P. 181. And see
Maberly v. Robins, 5 Taunt. 626 ;
1 Marsh. 268.
CASES IN THE KING S BENCH,
Jardine, in reply. The plaintiff bargained for a good
derivative title. In Curling v. Shuttleworth (a) the Court
of Common Pleas thought that the purchaser was not
bound to proceed where even a reasonable doubt existed.
[Bayley^ J. There must be a good title. There can be no
middle course, Romilly v. James (6).] It is admitted that
if the present case fell within Freme v. IVright, a difficulty
might arise. That case, however, has since been over-
ruled. [^Parke, J. The question is, whether this is the lease
of the person who executed the indenture, or of the donor
of the power. At the time the contract is entered into, the
existence of the power is unknown. The point to be con-
sidered is, what was the meaning of the contract at the
time it was made.] In the Earl of Uxbridge v. Bayley (c)
it is said, that " whenever parties have power by deed to
do a particular act, when done under the power it is as if
incorporated in the original deed when executed/' [ParA'e, J.
The rule is thus laid down in Purvis v. Rayer (rf), " It is a
general rule in equity, that if a person, generally speaking,
offer any thing for sale^ the vendee is entitled to see that
the vendor has it with the quali6cation and in the way in
which he the vendee understood that he bought it."]
Bay LEY, J. — I cannot say that I entertain any doubt in
this case. The plaintiff has all that he bargained to have.
He is bound to pay the purchase-money, or at least he is
not entitled to recover back the deposit. At the time of
the sale the defendant had two leases, under which the pur-
chaser might occupy during the whole period of 28 years
mentioned in the agreement, if the leases were valid; and
if he were evicted he would have his remedy against the
trustee upon the implied covenant contained in the word
** demise," which is found in both leases (e). The defendant
(«) 6 Bingh. 121. (e) That the assignee of the
(b) GTuunt. 2C3; 1 Marsh. 592. lessee may maintain covenant on
(c) 1 Ves. juM. by Lonl Com- the word dimisi, see the dictum
iM9swner Ashhurst, of Bro&n, J., Dyer, 357 b.
{d) 9 Price, 488, 518. In the present case, however,
MICHAELMAS TERM, X GEO. IV.
agrees to sell, not the Rockiugham Arms, but '' the two
leases and good-will in trade of the house and premisesj
for the sum of 4Q.50L, as he holds the same for the term of
28 years." Now it is objected on the part of the plaintiff,
that these words must be understood to mean not two con-
secutive, but two concurrent leases; and While v. Foljambe
and Deverell v. Ijord Bolton are referred to. But in those
cases the language of the contract is very different; there
one term is spoken of, whereas here, as the contract speaks
of two leases and one rent, the leases might be either con-
secutive or concurrent. There is, however, one clause
ivhich shews them to be consecutive. The premises are
described as being held at one rent. The defendant having
bargained to sell the two leases and the good-will, &c., the
plaintiff agrees to accept an assignment of the said leases
and premises as above described, without requiring the
lessor's title. The money is to be paid for an assignment
of the leases and premises ; and this without requiring the
lessor's title. The only fair construction of the agreement
is, that the defendant is to sell the leases only, and that his
title to those leases is not to be questioned. The plaintiff
may have possession of the premises during the whole term;
if not, he has his remedy over against the party who granted
the lease. The plaintiff would therefore become entitled
either to the leases or to an equivalent from the lessor.
The true construction is, that the defendant sells and
assigns the leases only, and that the plaintiff has precluded
himself from questioning the plaintiff's title.
199
1829.
LiTTLEDALE, J. — I have some doubts, but upon the
vhole I think that judgment must be for the defendant.
One objection is, that the leases are misdescribed in the
both the lease of 1813 and that of Rep. 80,) gave no remedy against
1895 contained covenants against
the acts of the lessors, which qua>
Ufied covenants, while they de-
strojed the right of action upon the
word dimniy (Noka's case, 4 Co.
the lessors in respect of the im-
perfect execution of the power.
And see Falder v. Hooker, 2 Men v.
427.
200
1899.
Spratt
V.
Jefvery.
CASES IN THE KING S BENCH,
agreement, which must be taken to mean that the premises
are held for different terms in different parts of the
premises. And this would be the construction if the words
had stood alone. To justify that construction, the words
should have been, not at the annual rent of 120/., but at
several annual rents, amounting in the whole to 120/. The
expression used in the agreement is satisfied by consecu-
tive leases. The words " as he now holds the same/' 1
consider to be mere words of description, meaning that the
vendor has a lease of them for 28 years; not restricting the
sale to the interest which the lessor has, but leaving the
question of title to be collected from other parts of the
instrument. The defendant was not the original lessee,
and the plaintiff did not mean to exclude himself from the
right of objecting to any defect in the assignments which
connected the defendant with the original lessees. But
taking the agreement together, it appears that the plaintiff
was willing to accept a qualified title. The lessor's tide is
not to be inquired into. The whole difliculty in the case
arises upon the words ** without requiring the lessor's title."
Then who is the lessor here? The plaintiff contends that
Brandon, the party who created the power, must be con-
sidered as the lessor. In many cases it is so; but in JsAer-
%oood V. Oldknow (a) it was held, that a remainder-man
taking after tenant for life, who had granted a lease under a
power, was entitled, under 32 Hen, 8, c. 34, to take ad-
vantage of a covenant made with the tenant for life and his
assigns. Upon the whole I rather think that the construc-
tion set up by the defendant is the true one. The pur-
chaser can hardly be supposed to have been willing to
accept a lease void under the power. But as nothing is
said in the contract about the power, it may be supposed
that the parties knew nothing about it (6). In speaking of
the lessor's title, therefore, they would in all probability
(a) 3 M. & S. 382. And see ante,
195 (o); Glover v. Cope, Carthew,
205; Skinner, 305; & 3 Lev. 326.
{b) Qu. Whether the vendor
could set up his own ignorance of
tlie state of his title ?
Spratt
MICHAELMAS TERM, X GEO. IV. 201
mean the title of the party (a) by whom the lease pur- 18^9.
ported to be granted ; that, perhaps, is the better mode of
construing this agreement. ^'v?
Jeffert.
Pabkb, J. — I do not feel much doubt on this question.
The action is brought to recover back money paid as a
. consideration, which has failed, and the expenses which
the plaintiff has incurred, on the ground that the defendant
has not made a good tide. If the defendant has performed
aU that he undertook to perform^ the plaintiff cannot main-
tain this action, though he may have discovered that his
bargain is worth little or nothing. If the defendant is ready
to deliver all that he has engaged to deliver, the plaintiff is
not entitled to recover. All depends upon the terms of
the agreement. It is said that the defendant agreed to
assign two concurrent leases. The contract is not very
dearly expressed ; but the defendant agrees to sell " the
two leases and good-will in trade, as he holds the same,
for the term of twenty-eight years,'' and only one rent is
mentioned. In Purvis v. Rayer (b) it was held, that under
a general contract for the purchase of a lease, the vendee
it not bound to take only the instrument and the title which
the lessee had under that instrument. This had long before
been settled with respect to purchasers of freehold interests.
It is, however, competent to parties to enter into a qua-
lified contract. Here the question mainly turns upon the
qualification introduced by the words " without requiring
the lessor's title.'' Upon this the plaintiff says, first, that
he is at liberty to object to the lessor's title, though the
defendant was not bound to produce it. This would be
very unreasonable. Then he says, that the title here spoken
of, and which is not required to be produced, is the title of
the donor, not the title of the party making the lease. At
die time of entering into this agreement the parties knew
fa) £acb lease, however, and shews that the nominal lessor was
paiUcolarly the second, distinctly a trustee for others.
(6) 9 Price, 488, 590.
CASES IN THE KINGS BENCH,
nothing about the power. The proviso therefore means»
that no objection is to be taken to the title of the party
making the lease. We have no evidence that these leases
were under a power. That is assumed by the plaintiff.
The leases purport to be made by the party who under
^randofC^ will had the whole legal estate out of which the
terms were derived. The provision respecting the mode of
leasing, only means that the cetteux que trust shall not object
where the leases are in the form prescribed. Upon the
true construction of this agreement therefore every thing
has been done which on the part of the defendant ought to
have been done.
Postea to the defendant.
Doe, on the demise of CHRisTMAS^t?. Oliver and Oliver.
Same v. Oliver, Arnold, Barton, Read, Biggs,
Storer, and Knight.
Devise of JtiJECTMENT for certain messuages and lands, situate
lands to A. for jp ji,g paj-jgh of St. Margaret, in the town and borough
life, remainder / . .
to the children of Leicester. Plea, not guilty. At the trial before
TheUmeof^/s D* Oj/ley, Serjt, at the Leicester Summer Assizes, 1828,
death. B. \e(i a verdict was found for the plaintiff by consent, subject to
who, with her ^^ opinion of this Court upon the following case : —
husband, in Theophilus Holmes, being seised in fee of certain tenements,
the hfeiirae of , , . f .„ ' ® /
A., levied a by bis last Will and testament m wntnig, bearmg date 29th
^c'^ The fine September, 1784, duly executed and attested for the purpose
operates by of passing real estates, gave and devised as follows : — ** I
duHnK^the^lffe &^^ ^^^ devise the messuage or tenement wherein I now
of .^., but after dwell, with the appurtenances thereto belonging, and the
operates upon ^^^ ^^ ^^^ ^7 household goods, plate, linen, and other house*
the estate, [jqIj furniture of every sort and kind which shall be about
vesting the
right of posses- my said messuage or tenement at the time of my decease and
sion in C. jjjgQ j^y messuage or tenement in Belgrave Gate, Leicester,
MICHAELMAS TERM, X GEO. IV. 203
onto my wife Christian Holmes for and during her natural ]8<29.
life; and from and after her decease, I give and devise the
laid messuage or tenement wherein I now dwell, with the
appurtenances, and also my said messuages or tenements''
(in the said will described, being those for the recovery of
which these actions are brought,) ** with warehouses,
stables and other buildings, yards, gardens, and backsides
thereto belonging, in case I shall die without issue (but not
otherwise), unto, between and among all the children of
my brother, the Rev. Mr. William Holmes, that shall be
living at the time of my said wife's decease, and to their
beirs and assigns for ever."
The testator died, seised of the premises in question, in
September, 1785, without issue, and without altering or
revoking his said will. On his death his widow, who after-
wards married Joseph Chamberlain, entered into posses-
sion of the tenements in question, and so continued until
the time of her death, which happened in or about Sep-
tember, 1826. The William Holmes, mentioned in the
will of the testator, had issue three children only, viz. JameS"
Harriman, Ann^Mary, and Thomas^Bradgate. James*
Harriman Holmes and Thomas-Bradgate Holmes died
without issue in the lifetime of the testator's widow. Ann^
Marg Holmes married Joseph-Brooks Stephenson, and was
the only child of William Holmes living in March, 1814,
and at the time of the death of the testator's widow.
On the 4th March, 1814, and during the lifetime of the
testator's widow, by indenture duly made between the said
J. B. Stephenson and Ann'Mary, his wife« (therein de-
scribed as devisee named in the last will of the said Theo^
philus Holmes then deceased,) of the first part,</. Connor,
Gent, of the second part, Charles Waldron of the third
partj and Thomas Chandkss, Gent., a trustee on behalf of
the said diaries Waldron, and also of the said J. B. Ste*
pkenson and Ann^Mary his wife, of the fourth part ; the
1atter,in consideration of 600/., granted to CharlesWaldron,
his executors, administrators and assigns, for and during
204 CASES IN THE KING's BENCH,
1B99. their natural lives and the life of the survivor, an annuity of
100/. to be charged upon and issuing out of the said mes-
suages or tenements devised by the will of TkeophUw
Holmes; and for better securing the payment^ granted,
bargained and sold to Thomas Chandless, his executors. See,
all the said premises, to hold, from and immediately after
the decease of Christian Holmes, for the term of ninety-
nine years. And then, after reciting that the said J. B.
Stephenson and Jnn-Mary, his wife, did, as of Hilary term
then last, levy before the Court of C. P. at Westminster
unto T. Chandless and his heirs, one fine sur conusance de
droit come ceo, &c., of the said premises, by the descrip-
tion of seven messuages, seven gardens, and one acre of
land, with the appurtenances, in the parish of St. Margaret,
in the town and borough of Leicester, of which fine no uses
had as yet then been declared, it was by the said indenture
agreed and declared that the said fine should be and enure,
in the first place, for confirming the said yearly rent-charge
of 100/. and, in the next place, to the use of T, Chandless,
his executors, &c., for and during the said term of ninety-
nine years. The said last mentioned indenture was duly
executed by the parties, and a receipt for the consideration
money indorsed, and a memorial of the same was duly in-
rolled in the Court of Chancery. The fine referred to by
the said indenture was duly levied according to the same in
Hilary term, 54 Geo, 3, with proclamations. On the 11 th
April, 1823, 1\ Chandless died, having made a will and
several codicils, and appointed Sir William Long, Knt. and
Henry Gore Chandless, executors. On the 27th January,
1827, by indenture of that date, between the said C. Wal-
dron of the first part, the said executors of T, Chandless of
the second part, Newbold Kinton, one of the lessors of the
plaintiff, of the third part, and James Christmas, one other
of the said lessors, of the fourth part, for the consideration
therein expressed, the said annuity was assigned to the
said N, Kinton: and the said term of ninety-nine years, for
securing the satoie, was assigned to the said J. Christmas.
f
MICHAELMAS TERM, X GEO. IV. 205
On the 4th June, 18£7j 1275/. became due in respect of 1829.
the said annuity. The day of the demises laid in the de-
claration is the I St November, 1827*
The questions for the opinion of the Court are.
First, whether A, M. Stephenson, who was the only
child of William Holmes living on the 4th March, 1814,
and at the time of the death of Christian Holmes (after-
wards Chamberlain), took a vested or contingent remainder
uader and by virtue of the will of Theophilus Holmes;
Secondly, whether the fine levied by Mr. and Mrs. Stephen^
son worked any forfeiture of the estate of the latter, or
transferred any interest therein.
The case was argued at the sittings in Banc after Trinity
term, 1827, by Preston (with whom was Denman) for the
plaintiff, and by N. R. Clarke for the defendant.
It was admitted, on the part of the plaintiff, that the estate
given by Theophilus Holmes to the children of William
Holmes was contingent during the lifetime of the testator's
widow ; but it was contended, that the fine levied by the
daughter of W. Holmes, though operative only by way of
estoppel during the lifetime of the testator's widow,
operated after her death, when the contingency happened,
on the estate which then became vested in the daughter
of W. Holmes. And the cases of Fick v. Edwards {a).
Helps V. Hereford (6), and Davies v. Bush (c) were cited,
and relied on.
For the defendant it was contended, that the estate given
to the daughter of W, Holmes could not be conveyed by
tlie fine levied during the lifetime of the widow of T.
Holmes the testator, because a contingent remainder could
not be so conveyed; and, therefore, that the estate still
remained vested in Mr. and Mrs. Stephenson. That the fine
levied by them operated by way of estoppel only, and that
of that a stranger was not entitled to take advantage. And
(a) 3 P. Wmt. 372. (c) 1 M'Clel. & Y. 58.
(6) 2 Bam. & Aid. 243.
206 CASES IK THE king's BENCH,
1839. ^^^ ^^^ '^^^ position Doe v. Mariyn (a) was cited and
relied on.
The Court took time to consider of their judgment,
which was now delivered by
Bayley^ J. — ^This case depended upon the eflfect of a
fine levied by a person who had a contingent remainder in
fee. The short facts were these : Ann-Mary, the wife of
Joseph'Brooks Stephenson, was entitled to an estate in fee
upon the contingency of her surviving Christian, the widow
of Theophilus Holmes ; and she and her husband conveyed
the premises to Thomas Chandless for a term of ninety-nine
years, and levied a fine to support that conveyance. Chris-
tian, the widow, died, leaving Mrs. Stephenson living ; so
that the contingency, upon which the limitation of the
estate to Mrs. Stephenson depended, happened, and this
ejectment was brought by the assignees of the executors of
Thomas Chandkss, in whom the term of ninety-nine years
was vested. It was admitted in argument on the part of
the defendant, that the fine was binding upon Mr. and Mrs.
Stephenson, and all who claimed under them, by estoppel ;
but it was insisted that such fine operated by way of es-
toppel only; that it, therefore, bound only parties and
privies, not strangers ; that the defendant, not being proved
to come in under Mr. and Mrs. Stephenson, was to be
deemed, not a privy, but a stranger ; and that, as to bim,
the estate was to be considered as still remaining in Mr.
and Mrs. Stephenson. In support of this position reliance
was placed upon the latter part of the judgment delivered
by me in the case of Doe d. Brune v. Marty n {a), and that
part of the judgment certainly countenances the present
defendant's argument. But the reasoning in that case
proceeds upon the supposition that a fine by a contingent
remainder-man operates by estoppel, and by estoppel only ;
its operation by estoppel, which is indisputable, was suf-
ficient for the purpose of that decision; whether it operated
(a) Ante^ ii. 485 ; 8 B. & C. 497.
MICHAELMAS TERM, X GEO. IV. 207
by estoppel only, or whether it had a further operation, was i829.
perfectly immaterial in that case ; and the point did not
there require that investigation which the discussion of
this case has rendered necessary. We have, therefore,
given the subject that further consideration which it re"
quired, and we are satisfied, upon the authorities, that a
fine by a contingent^remainder-mau, though it operates by
estoppel, does not operate by estoppel only, but has an
ulterior operation when the contingency happens ; that
the estate which then becomes vested feeds the estoppel ;
and that the fine operates upon that estate, as though that
estate had been vested in the conusors at the time the fine
was levied.
The first authority which it is necessary to notice is
RawKns's case (a). There, Cartwright demised land, not
his own, to Weston, for six years. Rawlins, who owned
the land, demised it to Cartwright for twenty-one years ;
and Carttoright re-demised it to Rawlins for ten years.
It was resolved that the lease by Cartwright, when he had
nothing in the land, was good against him by conclusion,
and that when Rawlins re-demised to him, then was his
interest bound by the conclusion; and that when Cart-
wright re-demised to Rawlins, then was Rawlins concluded
also. Rmalins, indeed, was bound as privy, because he
came in under Cartwright; but the. purpose for which I
cite this case is, to shew that as soon as Cartwright got
the land, his interest in it was bound. In Wealev, L<noer{b),
die case was thus : Thomas, a contingent-remainder-man
in fee, demised to Grylls for five hundred years, and levied
a fine to Grylls for five hundred years, and died. The con-
tingency happened, and the remainder vested in the heir of
Thomas, and whether this demise was good as against the
heir of Thomas was the question. It was argued before
Hek, C. J., and his opinion was, that the fine did operate
at first by conclusion, and passed no interest, but bound
the heir of Thomas ; that the estate, which came to the
(tf) 4 Co. Rep. 5?. (h) Pollexf. 54.
CASES IN THE KINOES BENCH^
heir when the contingency happened, fed the estoppel ;
and then the estate by estoppel became an estate in in-
terest, and of the same effect as if the contingency had
happened before the fine was levied : and he cited Rawlins's
case, 4 Coke, 53, in which it was held, that if a man leased
land in which he had nothing, and afterwards bought the
land, such lease would be good against him by conclusion,
but nothing in interest till he bought the land ; but that as
soon as he bought the land, it would become a lease in
interest. The case was again argued before the Lord
Chancellor, Lord Chief Justice Hale, Wild, Ellis, and
Windham, justices, and they all agreed that the fine at first
enured by estoppel ; but that when the remainder came to
the conusor's heir, he should claim in nature of a descent*
and, therefore, should be bound by the estoppel ; and then
the estoppel was turned into an interest, and the conusee
had then an estate in the land. In Treviban v. Lawrence {a),
Lord Holt cites 39 Ass. 18 (b), and speaks of an estoppel
as creating an interest in or working upon the estate of the
land, and as running with the land to whoever takes it.
In rick V. Edwards (c), cited by Mr. Preston, Lord Talbot
must have considered a fine by a contingent-remainder-
man as having the double operation of estopping the
conusors till the contingency happened, and then of passing
the estate. There lands were devised to A. and B. and the
survivor, and the heirs of such survivor, in trust to sell.
Upon a reference to the master, he reported that they
could not make a good title, because the fee would vest in
neither till one died. On exceptions to the master's report.
Lord Talbot held that a fine by the trustees would pass
a good title to the purchaser by estoppel; for though
the fee was in abeyance, one of the two trustees must be
the survivor, and entitled to the future interest; couse-
quently, his heirs claiming under him would be estopped
(a) S Ld. Raym. 1048; 6 Mod. man brings a writ of error, and
S58. then purchases the land, he is
(b) Fol. 287, where it was said ousted of the error for ever,
by Cavendish, arguendo, that if a (c) 3 P. Wins. Sri.
I
MICHAELMAS TERM, X GEO. iV. 209
by reason of the fine by the ancestor, from saying quod partes 1829.
fatis tdkil habuerunt, though he that levied the fine had at
tbe time no right or title to the contingent fee. On the
following day, he cited the case of Weale v. Lower {a),
which I have before cited. Now, whether Lord Talbot
was right in treating the fee as being in abeyance, and the
limitation to the survivor and his heirs as a contingent
remainder, or not, it is evident he did so consider them ;
and he must have had the impression that the fine would
have operated, not by estoppel only, but by way of passing
the estate to the purchaser, because, unless it had the
latter operation as well as the former, it would not pass a
good title to the purchaser.
Mr. Fearne, in his work on Remainders, c. 6, s. 5, says,
"We are to remember, however, that a contingent re-
mainder may, before it vests, be passed by fine by way of
estoppel, so as to bind the interest which shall afterwards
accrue by the contingency ;" and after stating the facts in
fVeale v. Lower, he says, " It was agreed that the contin-
gent remainder descended to the conusor's heir ; and though
the fine operated at first by conclusion only, and passed no
interest, yet the estoppel bound the heir ; and that, upon
the contingency, the estate by estoppel became an estate
in interest, of the same effect as if the contingency had
happened before the fine was levied."
Upon these authorities, we are of opinion that the fine
in this case had a double operation — that it bound Mr.
and Mrs. Stephenson by estoppel or conclusion so long as
the contingency continued ; and that when the contingency
happened, the estate which devolved upon Mrs. Stephenson
fed the estoppel ; the estate created by the fine, by way of
estoppel, ceased to be an estate by estoppel only, and be-
came an interest, and gave Mr. Chandless, and those having
a right under him, exactly what he would have had in caqe
tbe contingency had happened before the fine was levied.
Judgment for the Plaintiff.
(a) PoUexf. 54.
vol*. T. P
210 CA$£S IN THE KINO's BENCH,
MusKETT and others. Assignees of Taylob, a Bankrupt,
^^?\ V. Drummond,
by the^as- XrOVER by the plaintiflfs, as assignees of Taylor, to
signeesofJ.y recover certain goods and chattels, the stock in trade and
IV here ihe pe- .
titioning ere- household furniture of the bankrupt, alleged to have been
f isne^TofB ^^^^ *"^ converted by the defendant after the bankruptcy.
the proceed- Plea, n6t guilty ; with notice of disputing the petitioning
wmm?Miof * ^ creditor's debt, the trading and the act of bankruptcy,
are not evi- At the trial before Lord Tenterden, C. J., at the London
6Geo!4,c. 16, adjourned sittings after Hilary term, 1828, a verdict was
8. 98, of the found fof the plainiiflFs, damages 427/., subject to the
of B. opinion of this Court upon the following case : —
by^helord ^^^ bankrupt Taylor, for several years previous, and
Chancellor down to the time of the issuing of the commission of bank-
4"cri6, 8. 18, ^"P^ against him, carried on the trade and business of a
substituting a builder, at Balham Hill, in the county of Surrey. On the
ing creditor's Idth November, 1826, and two or three days previously,
debt for one jj^ committed two several acts of bankruptcy. On the
alleged in the *^ ^
petition to 18th November, 1826, one Samuel Rothwell issued ^ fieri
x^'^^^'nT f^^^^ directed to the defendant, then sheriff of the county
commission, of Surrey, commanding him to levy 440/. 4s. on the goods
direct the ^^^ chattels of the bankrupt, under which writ the defend-
commissioners ^^^ q^ ^j,g ^^^^ igth November, seized, and afterwards
to inquire only , /
as to tlie suffi- sold, the goods and chattels mentioned m the declaration.
new^JebL^and "^^^ commission under which Taylor was adjudged bank-
is silent as to rupt issued on the 9th December, 1826, and the plaintiffs
cy of the old. ^^^^ afterwards duly chosen assignees, and the usual
"y^hethera assignment was made to them on the 29th December,
under that 1826. The commission issued on the petition of the
section made assignees of one James Kenworthy, a bankrupt, to whom,
lite, would prior to and at the time of his bankruptcy, Tai/lor was
^t^fa""* indebted in the sum of 150/. and upwards. The commis-
partj^ who . sion, adjudication, and assignments, and other proceedings
of such order, in the bankruptcy of Kenworthy, were given in evidence,
quare. du]y entered of record. That commission was dated 6lh
Drummond.
MICHAELMAS TERM, X GEO. IV.
November, 1826, and the assignment to the provisional
assignee was on the same day, and that to the plaintiffs m'T^t
oathe£5th November, 1826; but no other evidence M'as _ v,
given of the petitioning creditor's debt, trading, or act of
bankruptcy, than by the production of such proceedings.
The present action was commenced on the 24th January,
]8£7. The notice to dispute was given on the 17th Fe-
broary, 18£7> An order of the Lord Chancellor was put in
and proved, dated 25th February, 1828. The order was
made under the statute 6 Geo. 4, c. 16, s. 1 8, (a) on the
petition of the plaintiff Muskettf which it set forth. That
petition stated, that the commission against Taylor had
bsued on the petition of the assignees of Kemvorthy; that
Taylor bad been declared a bankrupt ; that Muskett and
the other plaintiffs in this cause had been appointed his as-
signees ; that an action of trover having been brought, it
bad been found, on preparing for trial, that the petitioning
creditor's debt was not such a legal debt as would support
a commission, and that it would be necessary, in order to
support the commission, that there should . be another
/>etitioDing creditor's debt substituted in the place of that
of the assignees of Kenworlhy; that before and at the time
of issuing the commission, the petitioner was a creditor of
the bankrupt to the amount of 552/. ; that his debt was
incurred subsequently to that of the assignees of Ketmorthy,
and that he had proved that debt under the commission.
The prayer was, that the commission might be supported
hj, and the proceedings carried on, upon the debt of the
petitioner, instead of that of the assignees of Kenworthy.
(a) Which enacts, " that if after to support a com mission, (provided
adjadication the debt or debts of such debt or debts has or have
the petitioning creditor or creditors, been incurred not anterior to the
or aoj of them, be found intuffi- debt or debts of the petitioning
citni to support a commission, it creditor or creditors-,) to order the
shall be lawful for the Lord Chan- said commission to be proceeded
cellory Qpon the application of any in ; and it shall by such order be
other creditor or creditors, having deemed valid."
proved mnj debt or debts sufficient
P 2
CASES IN THE KING S BENCH,
The order then stated, that upon hearing the petition and
_ the affidavits filed in support thereof read, and what was
MUSKETT "^^
v. alleged by the counsel for the petitioner and the counsel
RUMMOND. f^^ ^jjg assignees of Kenworthy, the latter appearing and
consenting thereto, the Lord Chancellor ordered, that
upon the commissioners named in the commission being
satisfied that the debt proved by Muskett was incurred not
anterior to the debt of the assignees of Kenworthy, and
that it was an existing debt, and sufficient to support the
commission, the commission should be proceeded in ; and
his lordship referred it to the said commissioners to make
the inquiry.
The commissioners did find that MusketCs debt was an
existing debt, and sufficient to support the commission *,
and that it had been incurred subsequently to that of the
assignees of Kenworthy ; also that a debt amounting to
492/. was due to Muskett previously to, and at the time
of the committing of, the acts of bankruptcy by Taylor,
and the issuing of the commission against him, and is now
due. It was objected on the part of the defendant, first,
that the title of the assignees of Kenworthy to become
petitioning creditors was not sufficiently proved ; and,
secondly, that the order of the Lord Chancellor, and the
proceedings under it, were not sufficient proof of a debt to
sustain the present action.
Hutchinson, for the plaintiffs. The first objection taken
to the right of the plaintiffs to recover in this action is,
that there is not sufficient evidence of the title of the as-
signees of Kenworthy to be petitioning creditors. Now,
by the 6 Geo. 4, c. 1 6, s. 92(a), where the bankrupt has
(a) Which enacts, <' that if the United Kingdom) within twelve
bankrupt shall not (if he was with- calendar months after the adjudi-
in the United Kingdom at the cation, have given notice of his
issuing of the commission) within intention to dispute the commis*
two calendar months after the ad- sion, and have proceeded therein
judication, or (if be was out of the with due diligence, the depositions
MICHA£LMAS TERM, X GEO. IV.
Bot giveo notice to dispute tlie commission, the procedinge
before the commissioners are made conclusive evidence of
. , . . , . „ . . . MUSKETT
toe matters therein contamed, m all actions at law, or suits v.
inequity, brought by the assignees for any debt for which Dr^'mmond.
tbe bankrupt might have sued. Here the proceedings
uader KentDorihy*s commission were produced, and the
debt was one for which Kenworthy might have sued,
therefore the proceedings are sufficient evidence. [Parke,
J. Is a commission of bankrupt an action at law, or a suit
in equity (a), within the meaning of the statute ?] Ken-
woHhy*s assignees might have sued Taylor: and if they
had, Skaife v. Howard (b) is an authority to shew that the
proceedings would have been sufficient evidence in that
suit. [Bayley, J. No. That case only decided that the
depositions which were made evidence by the statute 49
Geo, S, c. 121, s. 10, were primd facie evidence of the
facts contained in them.] Secondly, it is objected, that
the Lord Chancellor's order, substituting Muskett as peti-
tioning creditor instead of the assignees of Kenworthy,
having been made after the present action was commenced,
could not have a retrospective effect, and therefore could
not furnish evidence of a petitioning creditor's debt suffi-
cient to support the action. But the very object of the
statute 6 Geo. 4, c. l6, s. 18, seems to be, by substituting
a new petitioning creditor's debt, to render the commission
valid ab initio, in order to prevent the just title of assignees
from being defeated upon objections beside the merits.
If that be so, (and if it be not so, the provisions of s. 18,
taken before the commissioners at for which the bankrapt mi^ht
the time of^ or previous to the ad- have sustained auy action or suit.''
jodicatioD, of tbe petitioning ere- (a) As an authority that a com-
ditor*s debt or debts, and of the mission of bankrupt is not an ac-
trsding and act or acts of bank- tion or suit, see the case of OtfM-
nipccy, shall be condosive evidence rk ▼. Fitk, 5 D. & R. S4; SB.
of the matters therein respectively & C. 178.
contained, in all actions at law, {b) 4 D. & R. 37 ; S B. & C*
or nu9 in equUy, brought by the 560.
assignees for any debt or ('emand
MUSKETT
CASES IN THE KING S BENCH,
would seem to be wholly nugatory^) this commission is
rendered valid ab initio, and all the proceedings under it are
v.' as regular as if it had been originally sued out upon the
Drummomd. p^titi^^n of Muskett, whose debt is now substituted for that
of the assignees of Kenworthy*
I^siger, contrs^, upon the second point, to which Uie
Court desired him to confine his attention. The Lord
Chancellor's order cannot have a retrospective operation ;
and if not, it cannot support the present commission. The
assignees have no right to use the order for the purpose of
maintaining the present action ; for they had no title at the
time when they commenced the action, and therefore can-
not be allowed to support it by a title subsequently acquired.
The power given to the Lord Chancellor by s. 18, is con-
fined to the working the commission^ and does not extend
to the carrying on actions at law or suits in equity. The
dates in this case are not unimportant; the notice to dis-
pute the petitioning creditor's debt is given on the 17th of
February, 18279 and the order for substituting the new
debt is obtained on the 25th of February, 1828, an interval
of somewhat more than a twelvemonth. [Parke, J. It was
held in Hull v. Pickersgill {a) that an uncertificated bank-
rupt could not maintain an action of trespass against subse-
quent creditors for breaking open his house and seizing his
after-acquired property, although his assignees did not
ratify the seizure, and were unknown to the defendants
until after the commencement of the action.] To give thb
order a retrospective effect would be to fix the defendant
with the costs of an action, which the plaintiffs in the first
instance had no right to bring, and which he might believe
he had good grounds to defend. [Bayley, J. He might
have applied to the Lord Chancellor.] He had no notice
of the proceedings before the Lord Chancellor, and had no
means of knowing of the existence of the order for substi-
tuting a new petitioning creditor's debt until it was pro-
(d) d J. B. Moore» 612; 1 Brod. & B. 283.
MUSKETT
MICHAELMAS T£RM» X G£0. IV. 215
duced at the trial. Besides, the Lord Chancellor's order 18S9.
does not find the fact upon which alone he had jurisdiction
to make it. It is no where found by him that the original v,
petitiooing creditor's debt was insufficient. His order ^*^*'''^^^*
merely recites that the petition presented to him asserted
that fact ; and in the reference which he directs to the com-
Dussioaers, be does not require them to examine into the
alleged insufficiency of that debt« but merely into the suf-
ficiency of the debt proposed to be substituted. The
order, therefore, does not shew that the Lord Chancellor
bad jurisdiction, within the words of s. 18, to make if, and
is consequently bad in to to. lParke,J. There is certainly
DO evidence that the Lord Chancellor found the original
petitioning creditor's debt to be insufficient. Bayley, J.
And there may be a great difference between a petition
founded on the insufficiency of the debt, and on the mere
difficolty of proof. The jurisdiction of the Lord Chancel-
lor certainly seems to be confined to the former.]
Hutchinson, in reply. The Court will presume that the
Lord Chancellor was satisfied of the truth of the facts
stated in the petition, before he made his order. That
order was never appealed against, nor were any attempts ever
made to reverse or alter it ; the present objection, therefore,
cones too late. Unless when made, it bad a retrospective
effect, it would be altogether inoperative. To hold it now
inoperative would be productive of great inconvenience ;
for the proofs of debts, the choice of assignees, the assign-
ment to them, and all conveyances by them, would be
thereby invalidated; and many questions would also arise
as to the effect of the prior examinations of the bankrupt.
The case was argued at the sittings in Banc after Easter
temiy 18299 when the Court took time for consideration*
Jodgment was now delivered by
Baylet, J. — This was an action brought by the assig-
nees of James 2'ayhr^^ bankrupt, and the defendant having
216 CASES IN THE KINg's BENCH,
1829. given notice to dispute^ among other things, the petitioning
^^"^^ creditor's debt, there were two questions: one, whether
MVSKETT ... . ,
V. there was sufficient proof of the petitioning creditor s debt,
Drummond. ^jjg Qijjgy^ whether the plaintiffs had entitled themselves to
resort to a debt due to Muskett, one of the assignees, to
support the commission, under the 6 Geo. 4, c. l6, s. 18.
The commission against Taylor was sued out by the as-
signees of James Kenworthy, a bankrupt, and the debt to
Kenworthy and the assignment to his assignees were duly
proved ; but there was no evidence to support the commis-
sion against him, except the proceedings under his com-
mission : and whether they were sufficient evidence of the
debt from him to his petitioning creditor, or of bis trading
and act of bankruptcy, was the first question in this case.
The Court intimated an opinion during the argument that
they were not, and that opinion is confirmed by the con-
sideration we have since been able to bestow upon the
point. It is clear that these proceedings are not evidence
except as far as they are made so by act of parliament, and
it is only by the ninety-second section of the late bankrupt
act, 6 Geo, 4,c. 16^ that they are made evidence in any case.
The ninetieth and ninety-first sections having provided, that
in actions by or against assignees, or in actions against
commissioners or persons acting under their warrant, or in
suits in equity by or against assignees, no proof shall be
required of the petitioning creditor's debt, the trading, or
act of bankruptcy, unless upon notice ; the ninety-second
section enacts, that if the bankrupt shall not have given
notice, the depositions taken before the commissioners of
the petitioning creditor's debt, the trading^and act of bank-
ruptcy, shall be conclusive evidence of the matters therein
contained in all actions at law or suits in equity brought by
the assignees for any debt or demand for which the bank-
rupt might have sustained any action or suit. It is only,
therefore, in actions or suits brought by his own assignees
for a debt or demand for which he might have sued, that
the depositions under a commission against a man are made
evidence; and as this action was brought, not by Ken-
MICHAELMAS TERM, X GEO. IV. 217
«or%'s assignees^ but by Taylor* s, and for a demand for 1829.
which Taylor alone^ not Kenworthy, could have sued, the '^■^*v*^-^
depositions under T'aylor's commission were within the v.
provision, and would have been evidence, the depositions Drummond.
under Kenworthy'a commission would not.
The second question depends upon the 6 Geo. 4, c. 16, s.
18, and the right of the plaintiffs to resort to it in support of
this action. By that clause it is enacted, that if after adju-
dication, the debt of the petitioning creditor be found insHf-
dent to support a commission, it shall be lawful for the
Lord Chancellor, upon the application of any other cre-
ditor having proved any debt sufficient to support a com-
mission, and incurred not anterior to the debt of the
petitioning creditor, to order the said commission to be
proceeded in, and it shall by such order be deemed valid.
Muskett had proved a debt under the commission, that debt
was sufficient to support the commission, and was incurred
after the debt to Kenworthy, and he petitioned the Lord
Chancellor for an order under this clause. The Lord
Chancellor made an order, that upon the commissioners
being satisfied as to Muskeit's debt in the several particulars
which the clause specifies, the commission should be pro-
ceeded in ; and the commissioners were satisfied. That
petition was not produced, nor the affidavits on which it
was grounded; but according to the recital of it in the
Lord Chancellor's order, which was produced, it stated that
the debt was not such a legal debt as would support a
commission, and the prayer of it was, that the proceedings
therem might be supported by and carried on on MusketCa
debt instead of Kenworthy's. The Lord Chancellor's
order says nothing as to the insufficiency of the debt; but,
upon reading the affidavits, hearing counsel for Muskett
and the other assignees of Taylor, and the petitioning
creditor consenting thereto, it orders that, upon the com-
missioners being satisfied as to the sufficiency of Muskett^s
debt, and the time it was contracted, (as to which the
commissioners were afterwards satisfied), the commission
218 CASES IN THE KING's BENCH,
1829. should be proceeded in. It does not appear that the Lord
''■^'^^^ Chancellor was apprised, when he made the order, of the
MUSKETT r t • 11 t -
V. existence of the present suit, so as to call his attentioQ to
Dbummond. jjjg propriety of making any provision as to giving it in
evidence in this suit. No notice of the application to the
Lord Chancellor appears to have been given to the defend-
ant, against whom this suit was pending, so as to give him
an opportunity of interposing in the Court of Chancery, to
prevent its being improperly used to his prejudice.
It is not necessary in this case to give any opinion whe-
ther a valid order of the Lord Chancellor, under the above
mentioned act, would support a commission by relation in
an action already commenced, and especially when the
opposite party in the suit had no notice of «uch a proceed-
ing, because we are satisfied that this order is not valid.
The statute gives a special power to the Lord Chancellor
to make an order of this nature only where the debt of the
petitioning creditor '^ Ufound insufficient ;*^ but in this case,
that insufficiency of the debt is not found as a fact by the
jury, nor does it appear that it was so found by the Lord
Chancellor, the order containing no adjudication by him on
that subject. It appears to us, therefore, that the order
was not valid.
The Lord Chancellor's order does not import that the
debt had been found insufficient before the petition vras
presented to him; he pronounces nothing as to its suf-
ficiency ; and there is no fair ground for presuming that he
examined into its sufficiency. The petition does not pray
that he should. The order is made upon the consent of
Muskett and the assignees on the one hand, and the
petitioning creditor on the other : the defendant, against
whom it is to operate is no party to it, and does not appear
to have known of it until it was produced against him at
the trial; and the conduct of the plaintiffs, in relying upon
the debt to Kenworthy at the trial, is a pretty strong ground
for believing that the Lord Chancellor had not passed any
judgment upon its sufficiency. Without entering, therefore.
MICHAELMAS TERM, X GEO. IV. 219
iDto the question bow far an order by the Lord Chancellor, 1829.
when he pronounced upon the insufficiency of the original ^"^""^^
debt, or when such debt had otherwise been judicially v.
found insufficient, would operate upon a depending suit, Dbuumond.
espedaliy against a party who had no notice of such order,
lod was not apprised that he would have to meet the sub-
stituted debt, we are of opinion that the order in this case
is iniafficient for that purpose, and that judgment of non-
suit ought to be entered.
Judgment of nonsuit.
Hawkins and others, Assignees of A. Morton, Rodick,
and C. Morton, Bankrupts, v. Written.
Assumpsit on the money counts. Plea, non as- in an action
•ompsit, with notice of set-off. At the trial before Hol^ l^hS^""^
rojfef, J., at the Northamptonshire Spring Assizes, 1827, the defendant
tlie case wa» this :— The action was brought by the plaintiffs ^^^^^ q q^q^
as assignees of the bankrupts, who had carried on business ^^ c- ^M- ^^f
as bankers at Wellingborough in Northamptonshire, to aebt due to
recoTer a sum of 75/. the balance of an account, admitted bim from the
bankrupt, if,
to be due from the defendant to the bankrupts before their when he gave
bankruptcy* It was also admitted that the defendant was b^nkJap/he
entitled to set off a sum of 10/. for goods sold and delivered had no notice
by bim to the bankrupts before their bankruptcy ; and the of b^kruptcy,
oaW question in the cause was, whether he was.entitled to though he had
«.*. i.^1 1 ii.li' - notice that the
set off a further sum of Oo/. under the followmg circum- bankrupt had
stances. On the l6th of December, 1825, the defendant "^PP*^ Pay-
ment.
got possession of potes of the Wellingborough bank to
that amount, after taking some trouble to procure them.
On the 14th of December the bankers had stopped pay-
ment, and issued the following notice, addressed to the
debtors and creditors of the house : — '' Messrs. Morton^
Rodick & Co. hereby give notice, that owing to the alarm-
ing state of nx>ney matters in London, their agents cannot
possibly remit them the funds which are in their hands :
220 CASES IN THE KINg's BENCH,
18S9. they are therefore under the painful necessity of suspending
^"^^^^ their payments for a short time." This notice was printed by
xf, the defendant, who was a printer and stationer at Welling-
Whitten. borough. On the same 14th of December, the bankrupts
ordered their bank to be closed at half past ten in the morn-
ing, which was done accordingly. A. Morton, tlie senior
partner, who was eighty years of age, was so much affected,
that he became very ill, and was confined to his bed in his
dwelling-house, which was distinct from the bank. C.
Morton stationed one of the clerks at the dwelling-house
of A, Morton, to inform those who might call why the bank
was closed, and then retired to his own dwelling-house in
Wellingborough. Rodick also retired to his dwelling-house
in Wellingborough, but desired the clerk to inform those who
might inquire for him, that he should be glad to see them
there; and he went to the bank on the 15th of December.
The bank continued closed, and many persons applied
there for money, but none were admitted ; some received
no answer, and others were told that they could not be
paid. Some persons who called at A. Morton's house
were told that he was too ill to be seen, which vi*as true,
and that the other partners were at their own houses.
Upon this evidence it was contended on the part of the
plaintiffs, first, that all the partners had committed an act
of bankruptcy on the 14th of December, by absenting them-
selves from the bank ; and, secondly, that as the defendant
knew when he took the notes that they had stopped pay-
ment, he must be presumed to have also known that they
had so committed an act of bankruptcy. For the defendant
it was insisted, first, that there was nq evidence that the
three partners had each committed an act of bankruptcy,
because the elder Morton had not voluntarily absented him-
self from the bank, but had been compelled to do so by
illness ; and, secondly, that assuming an act of bankruptcy
had been committed by all the partners, still as there was
no distinct proof that the defendant knew of any act of
bankruptcy, or of the circumstances supposed to constitute
it, at the time when he took the notes, the mere knowledge
(
MICHAELMAS TERM, X GEO. IV.
ofihe insolvency of the bankers did not deprive him of his
right of set-off. The learned judge directed the jury to
find a verdict for the plaintiffs, but gave the defendant leave
to move to enter a nonsuit, if the Court should be of
opioioo that he was entitled to set off the notes. A rule
nisi having been obtained accordingly,
Clarke and GauUmm shewed cause. First, the three
jMrtners all committed an act of bankruptcy on the 14th of
December, for their closing their bank, and absenting them-
selves from it on that day, constituted an act of bauk-
niptcy by all, Judine v. Da Cossen (a), though the same
act done by one only might only have been evidence of an
act of bankruptcy by that one ; Mills v. Bennett (6). Se-
condly, the defendant, under the circumstances of this case,
most be presumed to have known of this act of bankruptcy,
and is therefore deprived of his right of set-off. It is clear
that be knew at the time when he got possession of the
notes that the bankers were insolvent and had stopped
payment. Under the old bankrupt acts that degree of
knowledge would have been sufficient to bar his right of
set-off; Hodson v. lowwg (c), Dickson v. Eoans (d), Ex parte
Stone (e). But admitting that under the late bankrupt act
it was necessary, in order to deprive the defendant of his
221
1829.
Hawkins
V,
Whitten.
(c) 1 N. R. 834. There, a trader,
laTing a couoting-house in town
aod a dweUing-hoase in the coun-
ti7, left the former, to which he
never retamed, taking his books
vitb biiD, and slept at his dwelling-
bome a few nights, when he finally
left that also. It was held, that
having quitted his connting-house
witboot the oiitimit revertendi, he
began to absent himself from that
dajp within the meaning of the 13
£/ii. c. 7, 8. If and thereby com-
mitted an act of bankruptcy. That
case does not. appear to support
the position for which it is cited.
See the cases of Spencer v. Billings
3 Campb. 313, and Capper v.
Desangesy 3 J. B. Moore, 4 ; Deffle
V. Desanget, 8 Taunt 671, which
appear more applicable. See also
Bemasconi v. Farebrother, pott;
Goto on Partnership, 268, 3d ed.
(6) 2 M. & S. 556. And see
Ex parte Mavor, 19 Ves. 543;
6om on Partnership, 259, 3d ed.
(c) E. T. 1814. Archbold's
Bankrupt Laws, 88, cited.
(rf) 6 T. R. 57.
(«) 1 Glyn,&J. t91.
CA8£S IN THE KING's BENCH,
right of seUoff, that he should have had notice of an act of
Hawkins bankruptcy committed by all the bankrupts before he took
V. ilie notes^ the facts of the case supply that notice. He
took the notes on the l6th ; he knew that the bank was
closed on the 14th ; he must have known that in the in-
terval, creditors holding notes had applied at the bank for
payment of them, and had been unable to obtain it ; he
must have known, therefore, that all the partners were
insolvent and had absented themselves from the bank
before the l6th, . and had thereby committed an act of
bankruptcy.
' AdamSf Serjt., conti*d. Unquestionably the defendant
was aware at the time he took the notes that the bank had
been closed and the business suspended. But that was
an equivocal act. The notice to creditors stated that the
bankers were obliged to suspend their payments ** for a
short time ;*' and the defendant might reasonably believe
that after a short time the bank would be reopened and
its business resumed, without any act of bankruptcy having
been committed. In. point of fact, no act of bankruptcy
was proved to have been committed by all or any of the
partners between the 14th and the l6th of December; it
was impossible, therefore, that the defendant could have
notice of any. But the late bankrupt act, 6 Geo. 4, c. l6,
s. 50, gives the right of set-off in all cases where the party
claiming it has no notice, at the time when the credit is
given, of an act of bankruptcy by the bankrupt committed.
It was incumbent upon the plaintiffs, therefore, to prove
actual notice to the defendant of an act of bankruptcy
committed ; a constructive notice will not satisfy the
statute, though even that is wanting here. [Lord Ten-
terden, C. J. If the defendant took the notes, knowing that
the bankers had suspended their payments, intending
thereby to get twenty shillings in the pound on his own
debt, and so defeat the object of the bankrupt act, is not
that a fraud upon the statute ?] There is no proof that be
Whitten.
MICHAELMAS TERM, X GEO. IV.
bad any such intention $ but even if there was, the law
allows a creditor to do that which the defendant did, and „
Haweiits
that can hardly be termed a fraud upon a statute which v.
the statute allows to be done.
The case was argued in the course of Michaelmas term,
1827, when the Court took time for consideration. Judg-
ment was now delivered by
Bayley, J. — The plaintiffs in this case were the as-
signees of the partners in the Wellingborough bank, and
the question for our decision depended upon the right of
the defendant to set off certain notes of that bank, which
he had industriously Obtained after the bank had stopped
payment, against a debt due from him to the bank. This
tamed upon the construction of the 6 Geo. 4, c. I6, s. 50.
fiy that section, where there has been mutual credit given
by the bankrupt and any other person, or where there are
nrntual debts between the bankrupt and any other person,
the commissioners are to state the account between them,
and one debt or demand may be set against another, not-
withstanding any prior act of bankruptcy committed by
such bankrupt before the credit given to or the debt con-
tracted by him, and what shall appear due on either side
OD the balance of such account, and no more, is to be
claimed or paid on either side respectively, and every
debt or demand thereby made provable against the estate
of the bankrupt may also be set-off in manner aforesaid
against such estate ; provided that the person claiming the
benefit of such set off had not, when such credit was given,
notice of an act of bankruptcy by such bankrupt committed.
Before this statute passed, there were three provisions for
setting off mutual debts and credits in cases of bankruptcy;
one by the 5 Geo. £, c. SO, s. 28, another by the 46 Geo.
3, 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
224 CASES IN THE KIKG*S BENCH,
1839. second gave the rights notwithstaDding the existence of a
„ prior act of bankruptcy, in the same manner as if there had
9. been no prior act of bankruptcy, provided the credit were
HiTT£N. gjyg„ (Q ^iig bankrupt two calendar months before the date
and suing out of the commission, or provided the person
claiming the benefit of the set-off had not, at the time of
giving such credit, notice of any prior act of bankruptcy
committed by such bankrupt, or that he was insolvent, or
had stopped payment. The 5 Geo. 4, which repeals
the 5 Geo. 2 and the 46 Geo. 3, consolidates the two
provisions which I have mentioned in those statutes, but,
instead of the concluding provision in the 46 Geo. S,
excludes from the benefit of the set-off such persons only
has had, when they gave credit to the bankrupt, notice,
either actual or constructive, of an act of bankruptcy by
the bankrupt committed, or that he had stopped payment;
and the two provisions contained in the 46 Geo. 3, were
in terms confined, as they probably would before have
been confined in construction, to those cases in which
there had been a prior act of bankruptcy. At the time,
therefore, when the 6 Geo. 4, was passed, every man was
entitled to the benefit of a set-off, if the credit between
him and the bankrupt were given, or the debt between them
existed, before any act of bankruptcy had been committed ;
and he was also entitled, notwithstanding an act of bank-
ruptcy, if the person claiming the set-off had not, when he
gave his credit or trusted the bankrupt, notice of an act of
bankruptcy by the bankrupt committed, or that he had
stopped payment. The 6 Geo. 4, takes away the latter
part of this qualification, namely, the notice that the bank-
rupt had stopped payment, and gives the right of set-off
in all cases where it existed before any act of bankruptcy
committed, and gives it also where there has been a prior
act of bankruptcy, if the party claiming the set-off had no
notice of the act of bankruptcy.
Notice of insolvency, therefore, or notice of having
stopped payment, are no longer ingredienta upon this
MICHAELMAS TERM^ X GEO. IV.
poiot. Notice of an act of bankruptcy is alone the cri-
terion or dividing pointy and before this period, the de-
fendant takes the notes he claims to set off, and thereby
becomes a creditor of the bankrupts and makes them his
debtors. It may be true, and we believe is, that he took
the notes for the very purpose of making them the subject
of his set-off, and of getting, in substance, twenty shillings
in the pound upon them ; but as this is not prohibited by
the statute, we cannot say that it js illegal. As the set-off,
therefore, must be allowed, and covers the debt, the rule
for entering a nonsuit must be made absolute.
Rule absolute.
225
1829.
Hawkins
v.
WuiTTEM.
Smith v. Shaw.
Case for injury done to plaintiff's vessel. Plea not A dock act au-
guilty, and issue thereon. At the trial before Lord IV/i- '!!!!l**^f *,^
^ ^ company to
teritn, C. J. at the London adjourned sittings after Michael- make and
mas term, 1828, a verdict was found for the plaintiff^ docks and to
subject to the opinion of this Court upon the following appoint a
dock-master,
Cise : — who should
The plaintiff was the owner of the ship Rebecca, of 313 ^f^'^^^e*''^ '"^
tons, llic defendant was the treasurer of the Commercial mooring, un-
Dock Contipany. The Rebecca, on her homeward voyage movi"g^and
from Dant2ig, arrived in the River Thames the latter end removing of all
o/June^ 1 827, and in the afternoon of the 28th of June in the docks,
was made fast to the buoy belonging to the company, it *°^ should
being the plaintiff's intention to discharge his cargo in their over the space
dock. In the same afternoon an attempt was made by the froJiuhe*en-
company's servants to take the vessel into dock; and in trance into the
docks, so far
as related to
the transporting of vessels in and out; the company to be sued in the name of their trea-
surer ; and every action brought against any person for any thing done in punuance of
ike met, to be commenced within six calendar months after the fact committed. In an
action brought against the treasurer for damage done to a vessel by means of improper
directions given by the dock-master in transporting her into the ducks : — HM, that
giviiig soch directions was a thing done in pursuance of the act, and that the action
should bave been commenced within six calendar months after those directions were
pven.
▼OL.'V. Q
22ff
1899.
Smttb
V.
Sbaw.
CA9» IN TH£ ii;iN0 8 BENCH.
the course of sttcb attempt, owing to the negUgenoe ((f the
persons employed by the company in that behalf ^ tbe iojufy
detailed ia the declaration was sustained. More thaa «iK
months intervened between tbe time at which tbe injvrjr
waa sustained and the commencement of the action.
By 50 Geo. 3, c. 207, intituled, " An act for maintaining
and improving the docks and warebouaes called tbe Com«
mercial Docks, and for making and maintaining other docks
and warehouses to communicate therewith, all in tbe parish
of St. Mary, Rotherhitfae, in the county of Surrey," the
Commercial Dock Company was established as a joint
stock company, and certain powers were conferred upon
the company, which are more particularly set forth in the
act (a). And by s. 94 it is enacted, " that if any action or
suit shall be brought or commenced against any person or
persons, bodies politic or corporate^ for any thing done in
pursuance of this act, every such action or suit shall be
brought or commenced within six calendar months after
the fact committed, or in case there shall be a continuation
of damages, then within two months after the doing or
(a) By s. 68, the company were
authorised to sue and be sued in
the name of their treasurer for the
time being.
By B, 71, the dimclora of the
compaoy were authorised to ap-
point a dock-master, who should
have authority to direct the moor-
ing, unmooring, moving and re*
moving of all vessels entering into,
lying, or being in the docks, as to
the time and manner of their en-
trance into, lying in, or going out
of the same, and their position,
londing and disehaq^of; therein;
and the time of opening and shut-
ting the gates; and in case the
owner, master, &c. having the care
of aoy vessel, should refuse orneg*
lect to moor, unmoor, move or re-
move the same according to such
direction, within two bours aRer
notice, then it diould be Vclw(oI
for the dopk-iQaster to mpor, &c.
such vessel, and the charge t\iere-
of respectively shoal d be repaid,
together with the sam of 10/. for
each ofbiice, by the owner or
master of Boch vmei.
By s. 7S, no vessel should be
moored or anchored within the
distance of 100 yards of the eiH
trance of the docks, and over that
space the dock-master should have
control, so far as rriated to the
transporting vessels coming in or
going out of the docks.
Shaw,
IfilCHAZLMAS TB^Mj X G«0« iV. 227
f
cAuiioitting such damage sball buve c^^od, and not afteiv .18^9.
wards '* "^^N^W
\ By 51 Geo» S, Cp 66, tbe powers of tiie company Wfer« ^ v.
eolaiged, and w«re extended to certaiq pr^mie^i not con^
frised in the former act, 3y a. 20, of the h»t act, it is
eoac^ed^ that in case any person or persons shall at any
tiaie or times, by or through tbe negligence, carelessness* or
I omission of tbe company, or tbeir servants or workmen,
laSer or susuin any damage or injury exceeding the sum
f Qf 5if thep and in every such case the whole of the damages
10 suffered or sustained shall and may be recovered from
|he company or their treasurer for the time being, in any
of his majesty's Courts at Westminster, by action of debt,
or on the case, or by bill| plaint, or information^ together
I with costs of suit And by s* 97 it is enacted, that all the
I powers, provisions, penalties, forfeitures, clauses, matters
} and things in the ^0 Geo* S, shall extend to, and be exer
f cated, applied, used and put in force to all intents and
purposes as to this act, and the several matters and things
therein contained, and all the clauses, powers and provi-^
lioQs of tbe 50 Geo. 3 and this act shall be put io force,
sod used and applied for carrying into execution the pur^*
; poses of the said act and this act ; and the said act and thia
act shall be construed together as one act, as fully and
effectually as if all the powers and provisions^ matters and
thmgs in the said act were repeated and re-enacted in this
9Ct, and made part thereof.
The question fgr the opiniou of this Court is, whedier
I this action was commenced by the plaintiff against the
'^ defendant in proper time.
R. F. Richards, for the plaintiff. This action was com-
menced in proper time. The question is, whether the injury
complained of was a '^ thing done in pursuance of the
statute/' 50 Geo. 3, c. 207. The injury is found to have
arisen through negligence ; the defendant, therefore, has
heen guilty of a nonfeasance merely, and that cannot be
q2
228 . CASES IN THE KINO's BENCH,
1829. considered as a thing done in pursuance' of the statute.
Even if the directions given' by tl:e dock-master can be
considered as a thing done by him, still the question is,
whether that was such an act, that he might reasonably
suppose that the statute gave him authority to do it ; be-
cause if it were, he is within tlie protection of the statute :
otherwise not. That is the rule of construction laid down
in Cooke v. Leonard {a), and does not operate in favour of
the present defendant, for there was nothing here to lead
the dock-master to suppose that he was acting under the
authority of the statute, inasmuch as he might have acted
precisely the same if no such statute had ever been passed.
Edge V. Parker (6) is in principle very like the present ease,
for there it was held that an entry by assignees into the
house of a third person to take the goods of the bankrupt,
was not " any thing done in pursuance of " the bankrupt act,
6 Geo, 4, c. 16, s. 44. In Wallace v. SmUh{c), which may
perhaps be cited on the other side, the words of the statute
were " in pursuance, or under colour** of the act ; which
are much more general and comprehensive than those of
the act in question. The cases in which questions of this
nature have arisen upon actions against magistrates and
constables, do not apply, because a very liberal construc-
tion is given to clauses protecting persons of that descrip-
tion. Pratt v. Hillman (d), and Gaby v. The Wilts Canal
Company {e), were cases upon awards, where the Court
was concluded by the finding of the arbitrator. Weller v.
Toke (f) and Prestidge v. Woodman (g), were actions
(a) 9 D. & R. 339 ; 6 B. & C. had authority from the act of par-
351. ^ Where an act of parlia- liament to do it." FerBayle^^J.^
nient provides that in case of any 9 D. & R. 343.
action brought against any person, (6) 3 M. & R. 365 ; 8 B. & C.
for any thing done in execution or 697.
in pursuance of the act, the de- (c) 5 East, 115.
fendant shall be entitled to certain (d) 6 D. & R. 360 ; 4 B. 3c C.
privileges, the true meaning », 269.
that the act done must be in its (e) 3 M. & S. 580.
nature such, that the person doing (/) 0 East, 364.
it may reasonably suppose that he ^) 3 D. & R. 43 ; 1 B. & C. 19 »
MICHAELMAS TERMf X GEO. IV.
•gainet magistrates. Parton v. Williams (a), was an action
against a constable. Wright v. Wales (b) was an action
against a fen-reeve. These cases shew that the protection
has been generally considered as given only to persons who
£11 some public situation. In this case^ the proper con-
struction of the statute seems to he, to confine the proteo-
tion which it gives to things done for the purpose of effec-
tuating the principal object of the act^ namely^ the making
and maintaining the docks. The legislature never can have
intended to give the company, who derive a profit from
carrying on the business of wharfingers and warehousemen,
protection in cases where they are guilty of negligence in
the conduct of their business. Besides, by the 51 Geo. 3,
C.66, S.20, the company are subjected to a general liability,
without any limitation of the time within which an action
must be commenced. Under this clause the action seems
clearly maintainable.
F. Pollock, contri. The general object of the clause of
iiffljtation was, to protect the company from all claims in
respect of any act done by them in pursuance of the act,
unless such claims were enforced within a reasonable time,
namely, six months after the act done. In order to eifec-
tnate that object, the protection ought to be extended to
all cases where the company have acted bon& fide, sup-
posing themselves to be within the authority of the statute,
although they have in fact exceeded that authority ; and
that is the principle laid down in Blakemore v. The Glamor-
ganshirt Canal Company (c). The decision in Edge v.
Pariter (d) does not at all affect the present case, because
that proceeded on the ground that the assignees in seizing
the goods acted in virtue of their ownership, and not in
pursuance of the statute. Here, the very form of the
record shews that the act complained of was done in pur-
(«) 3 B. & A. 830. (e) 3 Yonnge & J. 60.
(&) 5 Bing^. 336; 2 MoorB& ((f) 3 M. & R. 365 ; 8B.&C
P. 613. 697.
330 CASES IN THE KINQ's BEKCH, .
1829. stiance of the statute. TbedefendtiDt is irned as treasurer:
of the company^ and it was only by virtue of the statute
that the plaintiff was enabled to make him defendant. Tbe
plaintiff himself, therefore^ as was said by Lord JEtfen-
borough IB Wallace ▼• Smith (a), has recognised tbe act of
which he complains as done under the statute. The 61
Geo. 8 does not vary the case, because that re-enacts all
tbe provisions of tbe former statute, and provides that tbe
two statutes shall be construed and applied as one. StUkk
V. Smith (6) is decisive of the present case. That was an
action of trover brought against tbe treasurer of the West
India Dock Company, for refusing to deliver articles depo-
sited in tbe West India Docks. It was held by Bezt, C.J*
at nisi prins, and afterwards by the whole Court of Com-
mon Pleas, that the defendant was entitled to the protection
of the dock act, which required that actions for any thing
done in pursuance or under colour of that act should be
brought within three months. There the company were
^barged with a misfeasance, but so in effect they are lidre,
tor the directions given by the dock-'master, which caused
tbe injury, must be considered as an act done by him whilcL
acting ib the discharge of his duty as a servant of tbe conw
pany. Agar v» Morgan (c) also is a strong authority ia
favour of the present defendant. That was an acten
brought against a canal company for acts committed iia
pursuance of an act of parliament, which provided that no
plaintiff should recover in an action for any thing done m
pursuance thereof, without notice to the defendants «yf
such intended action; and it was held, that a deviation
from the line df canal described by the act of parliaraenf^
did not deprive the defendants of their r^ht to notice befbvo
action brought, on the ground that such deviation mtsui
not an act done in pursuance of tbe act of pflrliament. The
declaration in this case states that the defeddant's servanta
.(a) 5 East, 115. (c) 2Pnce» 186.
(b) 2 Carr. & Payne, 284.
MICttAtLMA&TBflMi X OKC. IV. 231
Imi die care ftiid tUftoagemetit of the plaintiiTs vessel by ^^^^'
tirtne of the aet of parliamenC ; and aniens that were w, jgHiTa
the company could not, under any circomstances^ be an- *•
sweraUe, nor the defendant^ as their treasurer, be liable to
be sued.
Richards, in reply. Great incontenience, and even in-
jostice, may follow, if the company are held to be protected
IB a case like the present. A foreign owner might find it
impossible to give instructions to his agent to commence
an actian within six months. The decision in Sellick v.
Smiih(a) cannot be supported. Its authority seems to
have been doubted in Carruihen v. Payne {b)*
Cur. adv.vulL
Batley, J., now delivered judgment-^This was an
action brought ag^ainst the treasurer of the Commercial
Dock Company, for damage done to the plaintiff's vessel.
The damage resulted from improper directions given by
the dock-master of the company, upon an attempt by the
vessel to enter the docks, within the limits in which the
dock-master was authorised by the dock act to give direc*
tioiu ; and the question before us was, whether the action
was commenced in time, or whether, under the provisions
in the statute which regulate these docks, and give the right
to sue the company in the name of their treasurer, it ought
not to have been commenced within six calendar months after
the directions were given, and the injury done : and we are
of opinion that the action was not commenced in time, but
that it ought to have been commenced within those six
calendar months^ The language of the provision in the
Commercial Dock Act, 50 Geo. 3, c. 207> s. 94, is, that if
tny action shall be brought against any person, or body poli*
tic, for any thing done in pursuance of that act, such action
shall be brought within six calendar months next after the
(a) 8 Carr. & Payne, 884. (5) 5 Bingb. 270 ; 2 Hoore & P. 429.
232
1899.
CASES IK THE KING S BENCH/
fact committed ; or io case there shall be a continuation of
damages, then within two months after the doing or com-
mitting such damages shall have ceased; and the action
shall be laid and brought in the county where the matter
in dispute shall arise, and not elsewhere. Now, according
to the decisions upon similar words, a thing is to be con-
sidered as done in purmance of the act, when the person
who does it is acting honestly and bon& fide either in
execution of the powers which the act gives, or in discharge
of the duties which it imposes. Though he may errone-
ously exceed the powers the act gives, or inadequately dis-
charge the duties it imposes, yet if he acts bon&fide in order
to execute such powers, or to discharge such duties, he is
to be considered as acting in pursuance of the act, and is to
be entitled to the protection conferred upon persons while
so acting. This is established by Gaby v. The Wilts and
Berks Canal Company (a), Theobald v. Crichmore (6), and
Parton v. Williams (c) : and Smith v. Wiltshire {d) and
Cooke V. Leonard (e) establish the same point as to- consta-
bles and other persons acting in obedience to a magistrate's
warrant. Indeed this position was not controverted upon
the argument ; but the points insisted upon were, first, that
the first of the Commercial Dock Acts, 50 Geo. 3, c. 207»
s. 94, gave the protection in those cases only in which the
act done was done for making and maintaining the docks,
and did not extend to the conduct of the dock-master in
giving directions for transporting vessels into the docks ;
and, secondly, that the 51 Geo. 3, which gives the remedy
by action against the company for the negligence, careless-
ness, or omission of themselves, their servants, or workmen^
when the damage exceeds 5/., though it contains a clause
which virtually re-enacts and applies to the cases within the
latter act, the protection given by the former act, s.94, did
not mean it to apply to actions against the company like
(a) S M. & S. 580.
{b) 1 B.& A.897.
(c) 3 B. & A. 330.
(d) 2Bro.&Bingh. 619.
(e) 9b.&R.339; 6 B. ic C.
351.
MICHAELMAS TERM, X GEO. IV. 233^
the present for negligence, but meant to confine it to what 18'29.
was done under the powers of that act, towards maintaining
and improving the docks. Upon an attentive considera-
tion, however, of the two dock acts, it appears to us, that
if the second act had never passed, the protection given by
8, 9^ of the first act would have applied to any action which
might have been brought for the injury in question ; and
that if this action is to be considered as founded on the
second act, the re-enactment in the second act of what
forms s. 94 of the first act, will also apply to it.- By 50
Geo. 3, many powers are given for making and maintaining
the docks, and no doubt the protection given by s. 94,
would apply to any action which might be brought for an
excess in the execution of those powers ; but it does not
follow that it would be confined to them. By s. 7 1, the
company are to appoint a dock-master^ who is to have
power to direct the mooring, unmooring, moving and
removing of all vessels into or being in the docks, 8cc.
Bjf 8. 72, he is to have the control over the space of 100
jards from the entrance into the docks, so far as relates to
the transporting vessels coming in or going out. It was
from impropriety in the directions which the dock-master
gave, and from the improper exercise of this control, that
the injury in question happened. But was not the dock-
master actings in giving those directions and exercising that
control, in pursuance of the act ? It was only under the
act that he had authority to give any directions; but for the
act, the captain and crew of the vessel might have disre-
garded those directions. Supposing, then, that the 51
Geo. 3 had never passed, and that the case had stood upon
the 50 Geo. d, and that an action had been brought against
the dock-master for the injury which his improper direc-
tions had occasioned, would he not have been entitled to
the prote<:tion given by s. 94 ? Would he not have been
entitled to say, " I acted under, and therefore, in pursuance
^ the. statute. I should never have acted but for the
statute. The statute made it my duty to act; and if I
SmTtt
V.
234 CASta m I'fie rti^6"B AtHCti,
1820. acted erroneously, I nm entitled to the protection the
itatufe meant to gire to an boneat but erroneons exercise
of ita powers*'*
Shaw. Then, if in an action against tbe dock->maftter nnder 50
Oeo. 3, s. 94 of that act would have applied to him, tbe
argument which would deprite the company of tbe like
protection when they are soed under 51 Geo. 3, fails.
They are, under 51 Geo. 3, in at least as farourable a
situation as the dock-master was under 50 Geo. 3, and what
woald have been a defence for faim» will be also a defence
for them. Wallace v. Smith {a) seems to us at least as
strong a case as the present. There tbe ground of com*
plaint was, that the West India Dock Company had wrong-
fully prevented the plaintiffs, as brokers or agents, from
landing goods from vessels in the docks, and delivering
them to tbe owners ; and tbe question was, whether the
99 Geo. 3, c. 69» s. 185, which required fourteen days'
notice before any action was brought against the company
for any thing done in pursuance or under colour of that act,
was a bar to the action, no notice having been given; and
after takiug time for eonsideration, tbe Court held that it
was* The defendant's counsel immediately agreed to
waive the advantage, and to refer the injnry complained of
to arbitration. In deciding this cade, it is not necessary
to go the length of Selliek v. 8mith{b), which was cited at
the bar, rtor to say whether a mere nonfeasance would be
an act done within the meaning of this and similar statutes ;
a point much doubted in Blakemore v. The Olamarganskire
Canal Company (c). In the present case, tbe statuta
authorises the giving directions, and giving directions is
doing an act. There must, therefore, be a nonsuit*
Judgment of noaaint^
(a) 5 East, 115. (c) 3 Youngs & J. 60.
(6) S Cftir. & Payne, 884.
MlCrfAfiLHAS n.ViU, X oeo. iV. 236
Wise o. Metcalfe, Executor of Metcalfe, deceased.
Case by the plaintiff^ rector of the church of the parwh The incam-
of Barky, in the county of Hertford, againat the defendant, ;^ \^ bound"
eiectttor of the Ute rector, William Metcalfe, the imrne^ to keep the
pareonage-
diate predeceaaor of the plaintiff, to recover the aoioaut of (jouse, build-
tlie dilapidationa of the rectory-bouse, bama, stables and j.^^^^^
out-bonsea thereto belonging, of the said rectory^ and of good and
the cbancsl of the said church, which had ariaen at die jl^MiTrastor-
timeof the death of the said William Metcalfe. At the ing and re-
trial before Garrow, B., at the Herts sununer assizes, id^S, when neces-
a verdict was found for the plaintiff, damages 999i* ^Bs. Qd*^ ^^> accord-
Sttlgect to the opinion of this Court upon the following onginal form,
^>^P ,_^ wiuiout addi-
tion or mo-
The deceased^ William Metcalfe, became rector of the dem improve-
cbarch of the parish of Barley, in 1814, and soon after- |^ o'l^t'b^und'
wards received from the personal representative of his im^ to supply or
,. - , , i. / f • . , maintain any
mediate predecessor the aum of 1 I5i<, bemg the amount thing in the
of the dilapidations of the rectory-house, out4iuildings and nature of or-
chanceU at the death of hia said predeceasor; Mr. Metcalfe painting (un-
continued to be rector until hia death, which happened on t^^!^e*^
the l6th of May, 1827, at which period the annual value of eiposed tim-
tbe said rectory, waa 600/., out of which the sum of 46/« ^y\ and
was payable annually for Iand*tax. .In the month of July, whitewashing^
1827> the plluntiff became the rector of the church of the and man ac-
said parish, and has so continued ever sroce. The rectory<« ^-^^tkuis b^'
house is an ancient structure, built with timber and plaa-* the successor
tared on the outside, and has upon it the date of 1624« The ^^^^11^^'
bams are also old, but not of equal age with the rectory^ of a deceased
. r«i i-i . 1 . ^ . 1 « rector, the da-
bouse. The dilapidations of the rectory-house, bams, mages are to
stabka, oul-buildings, and of the chancel of the church, ^ ^^jj^*^^
aaDonoted to 890/* 169. 6d., provided the principle upon principle.
uhicb the estimate had been made was correct. That
principle waa, that the former incumbent, William Met*
tatftf ought to have left the rectory-house, buildings and
chancel io good and substantial repair ; the painting, pa^^
236 CASES IN THE king's BENCH,
1899. pering and whitewashing being in proper decent condition
for the immediate occupation and use of his successor ;
that such repairs were to be ascertained with reference to
the state and character of the buildings which were to be
restored where necessary, according to their original foroii
without addition or modern improvement. It was proved
by the several surveyors of experience, examined on the
part of the plaintiff, and also of the defendant, that they
had invariably estimated the dilapidations between an in-
cumbent of a. living and the representatives of his predeces-
sor upon the above principle.
If, however, the rectory-house, buildings and chancel
were to be repaired in the same manner only as buildings
ought to be left by an out-going lay tenant, who is bound
by covenant to leave them in good and sufficient repair,
order and condition, the expense of such reparations
amounted to 310/., the painting, papering and whitewash-
ing not being included in the last estimate.
And if the former incumbent, William Metcalfe, was
only bound to leave the rectory-house, buildings and chan-
cel, wind and water tight, or in that state of reparation
which an out-going lay tenant of premises, not obliged by
covenant to do any repairs, ought to leave them in, then the
expenses of repairing the rectory-house, buildings and
chancel, amounted to 75/. lis.
The question for the determination of the Court is,
which of the above principles of valuation is the correct
one; and according to their decision the damages will stand
at 3gg/. ISs. 6d., or be reduced either to 310/., or to
76/. 1 1*.
Brodrick, for the plaintiff. The first principle of valua-
tion stated in the case is the correct one, and ac(x>rding to
that the plaintiff is entitled to retain his verdict for the full
amount of damages given at the trial. The action for dila-
pidations is a branch of the common law ; for it is founded
on the custom of England, which is the common law.^ Now
MICHAELMAS TERM, X GEO. IV.
by that custom, as it will be found to be described in all the
aocient authorities upon the subject/ the incumbent of a
living is bound to leave the premises in the same state of
repairs as he is bound to keep them in. In Degge{a) the
rule is thus laid down : — '* Omnes et singuli prebendarii,
rectores, vicarii regni AnglisB pro tempore existentes, omnes
et singulas domos et edificia prebendaruni, rectorianim, et
Ticarianim suarum reparare et sustentare, et ea successori-
bus suis reparata et sustentata dimittere teneantur/' That
language clearly shews that the premises ought to be left to
the successor in the same state of repairs in which they
ought to be kept by the predecessor. In Gibsort's Co-
^{b)j there is given a legantine constitution of Cardinal
Othobon{c), by which it is ordered that none through co-
vetousness may neglect the house, nor suffer it to go into
ruin or dilapidation. It is in these words : — ** Improbam
quorundam avaritiam prosequentes, qui ciim de suis ec-
clesiis et ecclesiasticis beneficiis multa bona suscipiant,
dofflos ipsarum, et cstera edificia negligunt, ita ut integra
ea non conservent et diruta non restaurent; propter quod
ecclesiaram ipsarum statum deformitas occupat et multa
Jocommoda subsequuntur : statuimus et praecipimus, ut
universt clerici, suorum beneficioruni domos, et caetera edi-
ficia, prout indiguerint reficere studeant condecenter."
lAfndewode, in his comment upon this constitution (e/),
particularly notices the term *' prout indiguerint/' and says,
** necessariam refectionem importat ; non ergo loquitur hie
de refectione preciosa* pictune Parrhasii vel Apellis, immo
oec de aliis voluptuosis impensis.'' Still the term *' studeant*'
implies that care is to be taken from time to time to keep
the premises in decent and becoming repair. The word
^ dilapidations" means the neglect of such repairs as are
necessary to make the house habitable — habitable, that is,
(«) D€gge*8 Parson's Counsel- (d) Lyndewode's Provinciole.
lor, p. 138, pi. 94. Constitutio Obothokii, tit. 17. De
(^) Gibs. Cod. Jus. Eccl, 751 . Domibus Ecclesiarum Reficiendis,
(c) A. D. 1368; 52 Heo. 3. p. 112, £d. Oion.
238 ^ASES IN THE KTNG'b BENCH,
1829. with a reasonable degree of respectability and conveqitfiicfl
•r-regard being had to the value of the bene6ce to vbicb
the house belongs. Gibson, in the appendix to the Qh
deje(a)f gives directions for parochial visitations, and eau**
merates among the things to be inspected, the mai|sionw
bouse of the rector, and other houses and buildings thereto
belonging, all of which, he says, ought to '' be kept in good
and suflScient repair; and particularly that the mansion op
dwelling-house (over and above the repairs which aro
deemed necessary) be kept in such decent manner as is
suitable to the condition of the rector, vicar or curate/' and
be refers to the words in the constitution of OihobotSf ** re^
ficere studeant condecenter." In the present case the
rector derived an income of 600/. a year from his rectory ;
surely then he ought to have devoted a portion of that io«
come to the keeping the premises in repair, and in a stats
generally, with respect to painting, papering and whitewash-
ing, suitable for the convenient occupation of a man of that
income. In GodolphitCs Repertorium it is said (6), that in
the injunctions of King Edward the Sixth to all his clergy,
it is required '^ that the proprietors, parsons, vicars and
clerks, having churches, chapels^ or mansions, shall yearly
bestow upon the same mansions or chancels of their
churches, being in decay, the fifth part of their benefices,
till they be fully repaired, and the same so repaired shall
always keep and maintain in good estate." That the exe-
cutors of a deceased incumbent are liable by the common
law for dilapidations, is clear upon all the authorities (c);
though it is not so clear in what state the premises must
be in order to make it necessary to put them intp repair*
The true principle, however, seems to be, that every incum-
bent ought to leave the premises in the same state of repair
in which be is bound to keep them, that is, in a state fit for
the occupation of a person holding such a benefice. The
(a) P. 1554. tit. Dilapidations ; Watson's Cler*
(b) P. 176, ed. 1689. gyman'i Law, p. 409 ; Y^9mg v.
(c) See Bum'9 £ccl. Law, ^ Mani^, 4 V * 4c S, 18^.
UlCHAKhMAS TERM, X GEO. IV.
die of Perdval v^ Cooke (a) will be relied upoq b; the other
side. That was an action similar to the presenti upon the
trial of which Best, C. J. expressed his opinion^ that the
executors of a deceased incumbent are not bound to put
the rectory*4iouse into a finished state of repair ; but are
otJjbpund to restore what is actually in decaj, and to make
Mich repairs as are absolutely necessary for the pre^rvation
of the premiaes. The parties in that case deferred to the
learned jiidge's opinion and compromised the suit> so that
diere was no opportunity or occasion to discuss the pro*
priety of the rule by him laid down; but it is not too much
to observe that it is a mere nisi prius dictum, and as such
eatitled to little weight. An authority of quite as much
weight might be cited in an opinion given by Lord Slowell,
when at the bar, upon this subject, which goes all the
kngth of the arguments used in behalf of the plaintiff in
the present case, and which has been very generally acted
upoo by surveyors in estimating the amount of dilapida*
tion8(A). An incumbent may be compelled, under the
.239
1699.
(fl) S C. & P. 460.
(b) The following is a copy of the
case kid before Sir William Scottj
and of hb opinion referred to io
the text.
Cabb.
"IHere being a difference of
opinion between tbe Rector of
•i. in the connty of York, and the
necutor of the late incumbent
thereof, respecting the sense of the
irord * dilafttdations,' and a very
wide difierence, in consequence,
between the estimates of the work*
men employed by the same par-
^; Sir William Scoii is desired
to give the l^gal acceptation of
the word ' dilapidations,' that is,
irbetber it implies the same as,
or more than, what is generally
ondentood by the words ' com-
plete repair/ in common tenancy;
Wisa
METCALrib
and if more, how far he thinks it
extends beyond them.**
Opinion.
'^ I am of opinion that ' dilapi-
dations' go beyond what is gene*
rally understood of * complete re-
pairs' in common tenancy ; at
least, beyond what I understand
by thut expression. I understand
by dilapidations, apd I think I am
fully supported by the decisions of
competent Courts in understand-
ing so, such repairs and renewals,
and, if I may use the won)^ reno-
vations, if necessary, of the house
and its appendages, as will enable
the incumbent to enter upon and
inhabit them at the period the law
entitles him to take possession, or
as soon after as may be, allowing
reasonable time for the repairs^
(lc. Dilapidations, therefore, will
240
1890.
CASES IN THE KINGS BENCii,
ecclesiastical law, not only to repair but to rebuild; Dr.
Wood^s case {a) ; where a bishop (Jb) was suspended for di-
lapidationSy and the profits of his bishopric sequestered,
until the episcopal palace was rebuilt out of them. So, the
profits of a benefice may be sequestered by the ordinary,
and applied in such repairs as the ecclesiastical law re-
quiresy or the incumbent visited with ecclesiastical censures,
even to deprivation^ if necessary (c). And the statute 57
Geo. Sf c. 99i requires non-resident incumbents to keep
their houses in good and sufficient repair; and provides ((/),
that where curates are appointed by incumbents, and receive
the entire profits of the benefice, they shall allow any sum
not exceeding one-fourth of the profits that may have been
expended in repairs.
Thesiger, contrsl. It is immaterial to consider what has
include not only all repairy merely
substantial, but likewise some of a
more ornamental liature. Hie
house must be in proper condition
as to whitewashing and paint, be-
cause it cannot otherwise be de-
cently inhabited.
^ I do not mean that it is to be
new whitewashed and painted, if
the whitewashing and painting be
fit for use; but if ic is not so, tlie
eiecutor is bound to whitewash
and paint it anew. I need not
add, that the floors, ceilings and
cornices, must all be in good con-
dition, as likewise windows,
frames, doors and locks, and every
part of the apparatus of a decent
habitation. When I say in a good
condiiion, I mean that each should
be in a sound and proper condi-
tion fit for its respective use. Their
being plain is no sufficient objec-
tion against them. It would be
endless for me to particularize the
articles to which * dilapidations'
applies; nor could I do it from
mere memory, without having the
several articles proposed to roe
with an inquiry upon each : but I
may lay down the general princi-
ple to be this — that dilapidations
are such repairs and renovations as
are proper to make the house ha-
bitable with decent convenience,
respect being had to the value of
the benefice to which the boose
belongs.
** I take this to be the strict
principle of law apply ing to dila-
pidations. I need not add, that in
practice this principle ought not to
be acted upon with a niinute and
sordid rigour, but ought to be mo-
derated in the adjuscment by a li-
beral disregard of things trifling in
their own nature and value.^
(a) Cited in IS Mod. 237.
(6) Litchfield and Coventry.
(c) See Burn's Eccl. Law, 9,
tit. Dilapidations, and the cases
there collected.
(d) In section 63.
MICHAELMAS TERM, X GEO. TV. 241
been the prevailing custom or practice in estimating dilapi- ^^^^*
dations hitherto ; the Court are now called upon to esta- ^j^^
blish a legal principle upon which such estimates shall be v.
made in future. Of the three principles stated in the case,
(he last is that upon which the estimate in the present instance
ought to have been made, namely, that the incumbent is
bound to leave the buildings belonging to his benefice in
such a state of repair only, as an outgoing lay tenant, not
bound by covenant to repair, ought to leave his premises
in. Dilapidation may be almost called a synonymous
tenn with waste. Damages are recoverable at law for di-
'apidations upon the same principle that they are recoverable
for permissive waste. The definition of the word given by
the best authorities fully supports this argument. Cozre//,
in his Dictionary, calls it *' a wasteful spending or destroy-
ing, or the letting buildings run to ruin and decay for want
of due reparation.*^ J^^gg^f in his Parson's Counsel lor {a),cM9
it| '' the pulling down or destroying, in any manner, any of
(be houses or buildings belonging to a spiritual living, or the
chancel, or suffering them to run into ruin or decay, or wast«
ing and destroying the woods of the church, or committing
or suffering any wilful waste in or upon the inheritance of
the church." (&) Blackstone, speaking of dilapidations,
99ys{c), ** It is also said to be good cause of deprivation, if
the bishop, parson, vicar, or other ecclesiastical person, dila-^
pidates the buildings, or cuts down timber growing on the
pitrimony of the church, unless for necessary repairs;''
(a) P. 134. to repair the same; and it likewise
(^) Riackstone, in his Com- extends to his committing, or suf-
mentaries, iii. 91, calls it, ** a kind fering to be committed, any wilful
of ecclesiastical waste, either vo- waste in or upon the glebe-woods,
laotary by pulling down, or per- or an^ other inheritance of the
mi^ire by suffering the chancel, church :** and he cites Ayliife's
parsonage-house, and other build- Pnrcrgon as his authority. Cham-
ings thereunto belonging, to de- hers, in his Cyclopaedia, calls it,
cay." Johnson, in his Dictionary, " a wasteful destroying, or letting
calls it, ** the incumbent's suflfcr- buildings, especially pnrsonnge-
ing the chancel or any other edi- houses, run to ruin and decay, for
6ces of his ecclesiastical living, to want of necessary reparation/*
go to rain or decay, by neglecting (c) 3 Bla. Comm. 91, 18th ed.
VOL. V. R
242 CASES IN THE KTNG's BENCH,
18«9. and he cites I lioL Bep. 86, 1 1 Rep. 96^ and OodboU, ad9)
as authorities. And those cases are good authorities for bis
position. In Stockman ▼« Wither {a), the very point was
so decided^ and there waste and dilapidation were treated
as synonymous terms. In The Bishop ofSaliiburp^n ca»e(A)
it was held, that if a bishop, parson, or ecclesiastical person,
do cut down trees upon the lands, unless it be for repara-
tions of the ecclesiastical house, or do or suffer to be done
any dilapidations, they may be punished for the same in the
Ecclesiastical Court, and a prohibition will not lie, and the
same is good cause of their deprivation of their ecclesiftstieal
livings and dignities. But yet for such waste done, tbey
may be punished also at common law, if the ptrty will site
there. In Lifortts case(c) it is said, if a bishop or arch-
deacon abates or fells all the wood he has, as bishop, be
shall be deposed as dilapidator of his house* In other
cases, prohibition has been resorted to, as a milder mode
of restraining ecclesiastical persons from committing dilapi*
dation or waste ; Knowle v. Harvey {d), The Bishop of Dar'
ham's case(e) ; though in one case the Court of Common
Pleas held that they had not power to award a prohibition :
Jejersony, The Bishop of Durham{f), In addition to the
modes already noticed, of deprivation and prohibition, % third,
namely, sequestration, seems to have been founded upon
the constitution of Cardinal OMo60M(g), cited on the other
side. By that bishops and archdeacons are required to ad-
monish their clerks decently to repair the houses and buildiogB
of their benefices ; and if they neglect for the space of two
months, the bishop is to cause the same to be effectually
done at the costs and charges of the clerk, out of the profits
of the church and benefice, causing so much thereof to be
received as may be sufficient for such reparation. Originallyp
the amount to be sequestered was in the discretion of the
(a) 1 Rol. Rep. 86. (e) Cited in Lifordth case, 1 1
(6) Godbolt, 259. Rep. 49.
(c) 11 Rep. 49. if) 1 B. & P. 105.
(rf) 1 Rol. Rep. 335 ; 3 Biilstr. (g) A.D. 1?68,5« Hen. 3, Gibs.
158. Cod. t5l.
MICHAELMAS TERM, X GEO. IV. 243
ordinary, but by injunctions in the reigns of Henry 8, EtU 1099.
nmrd 6, and Etizabeih (a), the amouul was limited to one
iifthi which was afterwards by the Reformatio Legum Ec«
cleiiaiticarum reduced to one seventh. This last mode of
repairing dilapidations in the life-time of tbe incumbent
still prevails, and the amount usually allowed by the Ecclesi*
aatical Court is one fifth; North v. Barker (A). It is to be
obwrved, that all these modes of proceeding, deprivation,
prohibition, aod sequestration, assume a species of waste
as their foundation. Such was, and still in part is, tbe law
respecting repairs done during the incumbency. The next
step if to consider what provisions have been made with re-
gsrd to dilapidations existing at the time of the resignation
or deceue of the incumbent. The first is a canon of Ed^
mmd, archbishop of Canterbury, in the reign of Henry
5, in these words : — ** Si rector alicujus ecclesise decedens
domos ecclesiflB reliquerit dirutas vel ruinosas, de bonis
ejai ecclesiaaticis, tanta portio deducatur quae sufficiat ad
reparandum hsec, et ad alios defectus ecclesiae supplendos :
semper, tamen, rationabilis consideratio sit habenda ad facul-
tates ecclesiae, cum hsc portio fuerit deducenda" (c). Lynde*
wodt'i gloss upon this Canon is-^on the word ^* dirutas, "
"totaliter prostratas"— on '' ruinosas," ''de proximo vel
verisimili casuras, *' — on ''ad reparandum," ''et intellige
banc reparationem fieri debere, secundum indigentiam et
qualitatem rei reparandas, ut scilicet impensae sint necessarise
000 voluptuosaa, " — on "facultates ecclesias,*' secundum
quarum considerationem haec reparatio est facienda ; quia
in beneficio pinguiori requiruntur edificia magis sumptuosa,
quam in beneficio minus pingui." This is the first autho-
nty touching the nature of the repairs, and it is observable
that it eipressly refers to the value of the living. At com-
nuMi bw, probably, there always existed a remedy against
the executor of a deceased rector, though Gibion (d)
(a) Gibs. Cod. 753, in nocis. p. Q50, ed. Oxon.
0) 1 Phill. Rep. 309. (d) Gibs. Cod. 753.
(c) Ljodew. Prov. lib. iii. tit. S7,
r2
244 CASES IN THE KING's BENCH,
1839- mentions Degge as the first author who suggested the pos«
tT"" sibility of maintaining such an action in the common law
V. CourtSf and cites Jones v //?'// (a) as the first instance o(
Metcalfe. ^^^^^1^ ^^ action being entertained. Degge gives the custom
upon which the action is founded, in these words : — '' Et si
hujusmodi prebendarii| rectores, et vicarii domos et edificia
hujusmodij successoribus suis sic, ut praemittatur, reparata
et sustentata, non demiserunt et deliquerunt ; sed ea irre**
parata et dilapidata permiserunt, executores sive administra-
tores bonorum et catallorum talium pragbendariorum, rec-
torum, et vicariorum, post eorum mortem de bonis et catallis
decedentium successoribus talium prcbendariorum, recto*
rum, et vicariorum, tantam pecunia3 summam quantam pro
necessari& reparatione et ediiicatione hujusmodi domoruni
et edificiorum expendi aut solvi sufficiet, satisfacere tenean*
tur *' (b). This shews the measure of damages to be re*
covered against the executor, namely, so much only as is
required to repair and sustain that which is out of repair
and dilapidated, and which it is necessary should be repaired
and sustained. Now that is the very principle of permissive
waste. The foundation of this action is a tort, and it is an
exception to the general rule of law, *^ Actio personalis cum
personft moritur. " In SoUers v Lawrence (c), Wi/les, C. J.
gives as a reason for the action being maintainable, ** be-
cause it is not considered as a tort in the testator, but as a
duty which he ought to have performed, and therefore his
representatives, so far as he left assets, shall be equally liable
as himself" (r/). But "the action is in form an action on
the case in tort, and could not possibly be framed in as-
sumpsit, as on a contract, for the plaintiflf must be the
succeeding rector, who cannot be known until after the
death of his predecessor, and of course could not contract
with him " (e). Then as the action is founded on the breach
of a duty cast by law upon the incumbent, it becomes ne-
(a) 3 Lev. 268. (c) Willes, 413.
(6) Degge's Pars. Couns. 138; (d) Id. 421.
and see 1 Lutw. 116. (e) 1 Saund, 216, note, last ed.
UICHAELMAS TERM, X GEO. IV. 245'
cessary to consider in wliat relation tlie incumbent stands to ^ 1829.
the benefice. Now he is considered as having the fee,
when it is for the benefit of the church tliat he should be so
considered ; when otherwise, he is considered as tenant for
life. He is in the condition of a tenant for life, with im-
peacbment of waste, or like tenant for years, or from year
to year, not bound by covenants. Such persons were not
originally liable for waste at all, and though they have been
made so liable by the Statute of Marl bridge, still that is to
a limited extent only. It is quite clear that an outgoing lay
tenant is not bound to do more than merely necessary re-
pairs. In Rollers Abridgement it is said (a), ''if a tenant
permit a chamber to be in decay for default of plastering,
whereby the great timber becomes rotten, and the chamber
becomes very foul and filthy, an action of waste lies,"
So, if the lessee permit the walls to be in decay for want of
daubing, whereby the timber becomes rotten (b). Ferguson
V. (c), Russell V. Smithies {d J, and Horsfallv. Mather (e),
are all authorities shewing that the liability of a tenant,
oot bound by covenant, extends to necessary repairs only.
No case can be found expressly defining the nature and ex-
tent of this liability in ecclesiastical persons. In North v.
Barker (/), Sir John Nichol expressed himself of opinion
that the executors of a deceased incumbent are not bound
to renovate a building, even in its ancient form, much less
in its pristine beauty, and that the thorough repair of the
old building is not to fall on one incumbent. Assimilating
tbe liability of an ecclesiastical person with that of a lay
tenaoC for life or years^ the rule laid down by Best, C. J. in
Perdval v. Cooke (g), appears by no means unreasonable.
The statute 13 Eliz, c. 10, declares what dilapidations the
executor of a deceased rector shall be liable to pay for. It
recites, that persons endowed of buildings belonging to ec-
(«) II. 816, tit. Waste, pi. 36. (e) Holt's N. P. C, 7.
(*) Id. pi. 37. (/) 3 Phill. Rep. 307.
(O 2 Esp. 390. ig) 3 C. & P. 460.
(<0 1 Aii5tr. 69.
346 CASES IN THE KlNO's fi£NCH»
1829. clesiastical beaefices had not only suffered the same, for
want of due reparation^ to run to decay, converting the tim-
ber, lead, and stones to their own benefit, but had also made
deeds of gift and other conveyances of their goods and chat-
tels in their livestiaie, to the intent, after their death, to
defeat and defraud their successors of such just actious and
remedies as otherwise they might have had for the same
against their executors of their goods by the laws ecclesi-
astical : and then enacts, that, if any incumbent of any
ecclesiastical living, whereunto belonged any house, &c.
which by law he was bound to repair, should thenceforth
make any conveyance of his goods, to the intent above men-
tionedj his successor may have remedy in the Ecclesiastical
Court against the person to whom such gift had been made,
for the amendment and reparation of so much of the dilapi-
dations and decays as hath happened by his fact or default^
iQ such sort as he might have had if the donees were eae-
Ctttors of the last incumbent Thb confines the liability of
the fraudulent donee to such dilapidations as happen by the
fact or default of the incumbent. Now dilapidations oc-
casioned by the hand of time, as the wear and tear of a
house, cannot be said to happen by the feet or default of the
incumbent ; the words of the statute iticlude so act whicli
would not be waste in a tenant for life or for years : aottd if
this is the measure of damages fixed by the statute to be
paid by a fraudulent donee, it is a fair inference that the
legislature intended to cast upon him the same burthen which
the common law had already cast upon an incumbent who
had been guilty of no fraud. Again, by the statute 1 7 G.
3, c. 53, the incumbent, where there is no house, or wheiB
the house is so ruinous and decayed that one year's prodiioe
of the living will not suffice to repair it, may have «ai esti-
mate made, and, with the consent of the ordinary, borrow
money to rebuild upon mortgage of the glebe, tithes^ &c. ;
and the statute goes on to charge the living with (he iiKMBMes
so raised, and to direct that all sums recovered by sttit, or
secured by composition of any former incumbent, sliall be
M1CHA£LMAS TERM, X GEO. IV. 247
applied in part of the payments under the estimate. Now, I82d.
if the argument on behalf of the present plaintiff be correct,
this statute can never apply, except in cases where the in-
cumbent dies insolvent ; for if his executor is to supply and
restore >vh«tever he leaves deficient or decayed^ the house
never can become ruinous or decayed, because if it should
be destroyed by lightning or prostrated by tempest, it must
be rebuilt by the incumbent under his common law obliga-
tion. Every incumbent is entitled to the fair use of all
the property attached to his living, and should be allowed to
deal with it in the same way as a prudent man having a per-
petual interest would do. Tlie property must be in a
gradual course of decay ; but if it be in such a state of pre-
servation that tlie incumbent might fairly take another year's
wear out of it, the mere circumstance of his dying in the
course of that year ought not to throw upou his executor
the burthen of repairing it sooner than the iucumbent him-
self need have done; the succeeding rector will have his
proportion of the profits, and should injustice bear his pro-
portion of the expense.
Cur. adv. vuH.
BAYtEY J. now deli^rered JMlgnent. — This was an action
for dibpidaliotts, broiigliit by the successor against tlie exe-
cttlor of tke deeeated rector, and the question was, foy what
rule the ^ikpidations as to the rectory-hou«e, buildings and
rhwmrti, vere to be estimated. Tkree rules were pcoposed
for our coaaaderataiMi. First, that the predecessor ought to
have left die pretnises in good aiid aubstaiitiai repair, the
peiniaig, pampering and whiteweshing being iii proper and
dnoent conditioa for the immediate oecufMtion and use of
his enccetsor, and tliat auch repairs were to be a«certamed
wilk tmkmmem io the etate and dmracter of the buildings,
which were to be restored, where neceemry, according to
their origiMl fanny witboot nddkton or modern improve-
ment, and the eattmnte, according to this rule, came to
9001. lftt.&2.
CASES IN THE KINGS BENCH,
The second rule proposed was, that tliey were to be left
as an outgoing lay tenant ouglit to leave bis buildings, where
he is under covenant to leave them in good and sufficient
repair, order and condition, and the estimate, by tliat rule,
was 310/. the painting, papering and whitewashing not being
included.
llie third rule was, that they were to be left wind and
water tight only, or, as the case expresses it, in such condi-
tion as an outgoing lay tenant, not obliged by covenant to
do any repairs, ought to leave them, and by that rule the
estimate would be 7o/« 1 Is,
We are not prepared to say that either of these rules is
precisely correct, though the second approaches the most
nearly to that which we consider as the proper rule.
The law and custom of England, or, in other words, the
common law, as stated in some of the earliest precedents,
p. 12 and 13, Henry 8, Rot. 12G, C. B., and others which
we have searched, and in 1 Lulw, 116, is as follows: —
<' Omnes et singuli prebcndarii, rectores, vicarii, &c., pro
tempore existentes, omnes et singulas domos et edificia pre-
bendariorum, rectoriarum, vicariarum, &c., reparare et sus^
tenlare, ac ea successoribus suis reparata et sustentata
dimittere etrelinquereteneantur, et si hujusmodi prebcndarii,
rectores, viearii, &c., hujusmodi domos et edificia successo-
ribus suis, ut prasmittatur, reparata et sustentata non dimi-
serint et reliquerint, sed ea irreparata et dilapidata per^
miserint, eidem prebendarii, 8cc., in vitis siiis, vel eorum
executores, sive administratores, 8cc., post eorum mortenn^
successoribus prebendariorum, &c., tantam pecuniae sum-
mam, quantam pro reparatione, out necessarid re-^di/ica^
tione hujusmodi domorum et edi6ciorum expendi aut solvi
sufficiet, satisfacere teneantur." An averment in terms
nearly similar has been usually introduced into all declara-'
tions on this subject.
From this statement of the common law, two propositions
may be deduced. First, that the incumbent is bound, not
only to repair the buildings belonging to his benefice, but
also to restore and rebuild them, if necessary. Secondly
MICHAELMAS TERM, X GEO. IV. 249
that he is bouud only to repair, and to sustaitiy^ and to 1B29.
r^ildf when necessary. Both these rules are very reason-
able, die first, because the revenues of the benefice are given
as a provision^ not for a clergyman only, but also for a suit-
able residence for that clergyman, and for the maintenance
of the chancel : and if by natural decay, which, notwith-
sUnding continual repair, must a^ last happen, the buildings
perish, these revenues form the only fund out of which the
means of replacing them can arise. The second rule is
equally consistent with reason, in requiring that which is
useful only, not that which is matter of ornament or luxury.
It seems naturally to follow, from the first of these propo-
sitions, that the third mode of computation proposed in the
case cannot be the right one, because a tenant, not obliged
by covenant to do repairs, is not bound to rebuild or re-
place. The landlord is the person who, when the subject
of occupation perishes, is to provide a new one, if he thinks
fit. And if the second proposition be right, a part of the
charges contained in the first computation must be disal-
lowed ; for, papering, whitewashing, and such part of paint-
ing as is not required to preserve wood from decay, by
exposure to the external air, are rather matters of ornament
and luxury, than of utility and necessity.
The authorities which have been cited from the canon
law, agree with that which we consider to be the rule of
the common law.
The earliest provision on this subject is the provincial
constitution of Edmund, archbishop of Canterbury, made
A. D. 1236, 21 Henry 3. It is in the following terms : —
'^ Si rector alicujus ecclesiae decedens domos ecclesiae reli-
querit dirutas vel ruinosas ; de bonis ejus ecclesiasticis
tanta portio deducatur, quae sufficiat ad reparandum haec, et
ad alios defectus ecclesise supplendos." That constitution,
therefore^ directs the repairing *' domos ecclesise dirutas
vel ruinosas.*' And Lyndewode*s commentary upon the
word^ ** ad reparandum" is, " scilicet diruta vel ruinosa.
Et intellige banc reparationem fieri debere secundum
iDdigeotiam et quaiitatem rei reparandse ; ut scilicet, im^
260 CASES IN THE KIKG's BENCH,
laeo. pensae sint iiecessaris non volupUiosae/* Tba next autho-
^'^^ rijty cited from the cauon law, was the following legaoUoe
V. constitutioo of Otbobonf promulgated A. D« 1£68» 52
Man;Ai.ni. ffmry 3 :— '* Improbam quorundam avaritiam pro6«-
quente^i qui cum de tui« ecclesiis et ecclesiasticis beneficiii
multa bona auscipiaoty domo» ipsarum, et castera edificia
negligunt» ita ut Integra e^ non cooservent, et diruta noa
reataurent." That ia the imputation againat the ckfgy.
The conatituUon then proceeds : — '^ atatuimas et prvcipi*
muf ut universi ckrici auorum beoeficiorum domoii et
eastern edificia prout indiguerint reficere atudeant cgode-
center^ ad quod per epiacopos auos vel arcbidiacoQaa aoUi-
cit6 mooeantur. Cancelloa etiam accieaia^ per eos qui ad
hoc ieoeotur refici faciaot, ut superiua est eapreaauoi* Ar*
cbiepisGopos vero et apiscopoai et alios ittferiorea praelatoa,
domos et edificia sua aarta tecta, et io atatu auo eonserrare
et tenere^ aub divini judicii attestatioue pradciptmoa^ «it ipsi
ea refici faciant^ quae rafiacUooe noveriut iodigere/'
The statute 13 Eti24ibeih^ c, 10, speaks of occleaiaaUcal
peraoos au&riag their buiUingap for want of due reparation,
partljr to run to ruiu aad decay, and im $ome part vtierkf io
fall io the graaudp which, by law, they are bound to keep
and maintain in repair ; and maizes the fmudulent donee of
the goods of aa incumbent liable for aueh ditopidalkm as
hath happened by his fiuct and default. If die iacttAbeni
was bound by law to keep and maintain the dweUiiig-l»Mi«e
in repair, any breach of liis duty an that respect would be a
default. The statute 57 George 5, c. 99, a. 1^ enacia,
that a uoo-resideBt spiritual person shall keep the boiiae of
residence iu goad and sufficient repair ; and directs, dsat if
it be out of repair, and remain so, the parson ia Io be IwUe
to the peualOes <^ nooHfesiileiice, until it is put into goad
and tifffide/U repair, to the aatiafactian oi the basbop^
Tlieie is «olJung, eilJber an the authorities eiled froan die
canon law^ or in tlM^ acta of parliaaieat, to ^bew ihiai tlu^
obJigatioo of an iacumbent to repair is e(tber iJben that wkaeii
I. have already ateted the coaiukmi law east afma Jbii%
namely, to austaii^ 4«^io Md rebuild* when necessary.
MiCUAELMAS TEHUf X GSO. IV.
Upon tbe wbole, therefore, \ve are of opioion that the
iacttmbeot was bound to maintain the parsonagei (which
we must afsuoie upon this case to have been suitable in
point of mty and in other respectSi to the benefice,) and
abo die chancel, and to keep them in good and tubttantial
lepair, rtttoring and rebuilding, when necessary, according
to the originml form, without addition or modern improve*
neatf but that he was not bound to supply or mainlatn
wf tking in tho nature of ornament, to which painting,
(onieM necessary to preserve exposed timbers from decay,)
and whitewashings and papering belonj^; and that the
<laauges in this case should be eetimated upon that footing.
It wSI be found that this rule will oorrespond nearly with
the second mode of compnlation, and probably wtii be the
Miae as if the terms ** order and condition" are meant, as
(hey most likely are, not to include matters of ornament
and luxury.
Judgment for tbe plaintiff.
261
tM9.
Wna
MarcAi^ftf
It was afterwards referred to the master to calculate tlie
dtsM^es upon this principle, and to report for what snm
the jadgaaent sbooM be entered ap ; and he directed it to
be for SGgL IBs. fid, for which sum the plaintaff ultimately
bad jwdgment.
M'Pherson 17. Damikls*
L/ASE for slander. The declaration stated^ that the plain-
tiff, before the time of committing the grievances therein-
after mentioned, and from thence had been and stiTI was a
coach proprietor, and sold and disposed of cattle for divers
persons for commission, and that he had never been sus-
pected to be insolvent, or unable or nnwilKng to pay bis
jaaA debts; that flie defendant contriving, and wickedly
atrf naaliciottsly intending to injure tlie plaintiff, and to cause
n*o>«d ; he mast also shew that he repeated them upon a justifiable
that he believed them to be true.
A defendant .
cannot justify
the repetition
of slanderous
words, by
merely shew-
ing that at the
time when he
repeated them,
he stated that
he had heard
them from ano-
ther, whom he
occasion, and
M*Pberson
Dahiels.
CASES IN THE KING S BENCH,
it to be suspected and believed by liis neighbours that the
plaintiff was poor and in indigent and bad circumstances,
If. and incapable of paying his just debts^ and debts to be by
him contracted, and thereby to injure him in his trade and
business, falsely and maliciously spoke and published, in the
presence and hearing of divers good and worthy subjects of
this realm, of and concerning the plaintiff, and of and con-
cerning and relating to him in his trade or business of a
coach proprietor, the false, scandalous, malicious and defa-
matory words following, that is to say : — '^ His (meaning
the said plaintiff's) horses have been seized from the coach
(meaning the said plaintiff's coach), on the road, he (mean-
ing the said plaintiff) has been arrested, and the bailiffs are
in his (meaning the said plaintiff^s) house," thereby then and
there meaning and intending that the said plaintiff was in
bad and indigent circumstances, and incapable of paying
his just debts. By means of the committing of which
said grievances by the defendant, he the plaintiff was greatly
injured in his good name, &c. ; and also, by means of the
premises, one Morrison, who before the committing of the
said grievances was about to send, and otherwise would have
sent, divers, to wit, eleven head of cattle to the plaintiff, for
the purpose of being sold and disposed of by the plaintiff'
for Morrison, for commission and reward payable to the
plaintiff in that behalf, to wit, on the day and year aforesaid,
wholly refused and declined so to do, and thereby the plain-
tiff lost and was deprived of the commission which would
have been payable by Morrison to the plaintiff. Plea, that
before the speaking and publishing of the several words in
the declaration mentioned, and therein supposed to have
been spoken and published by the said defendant, of and
concerning the said plaintiff, and of and concerning and re-
lating to him in his trade or business of a coach proprietor^
to wit, on &c., at &c., one T. W. Woor, of Swaffhatn^ in
the county of Norfolk, spoke and published the following
words to the defendant, of and concerning the plaintiff, aud
of and concerning and relating to him in his trade or busi-
MICHAELMAS TERM, X GEO. IV.
iiess of a coach proprietor, that is to say : — " His (tne'aniitg
the said plaintiiTs) horses have been seized from the coach
(meaning the plaintiff's coach) on the road ; he has been
arrested, and the bailiffs are in his house ;" thereby then
and there meaning that the plaintiff was in bad and indigent
circumstances, and incapable of paying his just debts. And
the defendant further saith, that at the time of speaking and
publishing the said several words in the declaration as
therein mentioned, he the defendant also declared, in the
presence and hearing of the same persons in whose presence
and hearing the said words were so spoken by him the de-
fendant, that he had heard and been told the same from and
by the said T. W» Woor, of Swaffham, in the county of
Norfolk; wherefore, he the defendant, at the said time
when &c., in the said declaration mentioned, did speak and
publish, of and concerning the plaintiff, the said several words
in the said declaration mentioned, as he lawfully might for
the cause aforesaid. General demurrer to the plea, and
joinder in demurrer.
^53
1829.
F. Kelly, in support of the demurrer, was stopped by
the Court.
Plaltf in support of the plea. It is a good plea to a
declaration for slander originally uttered by a third person,
that the defendant mentioned the name of that person at the
time he repeated the slander. It is said in the fourth reso-
lution in Lord Northampton's case (a), " In a private action
for slander of a common person, if J. S, publish that he
hatti heard J. N. say that J. G. was a traitor or thief; in an
action on the case, if the truth be such, he may justify. But
if J. S. publish that he hath heard generally, without ^
certain author, that J. G. was a traitor or thief, there an
action sur le case lietli against «/. S., for this, that he hath
not given to the party grieved any cause of action against
(a) la Rep. 134.
264 CABES IN THE KINO's BEKCH,
1M0. any, but against himself^ who publiahed the wordsi although
J^^^^ that hi truth he might hear them \ for otherwise this might
1^. tend to great slander of an mnocent/ [Parke i. But this
DAHietfl. pi^i^ Jq^^ j^^ come witbio the terms of that resolution.
That resolution requires that the party repeating the slander
shall give the party slandered a complete cause of action
against the original author* That is not done here. This
plea does not shew that the words were spoken by Waor
under circumstances which would give the plaintiff any
cause of action against him* It does not aver that fVoar
spoke the words falsely and maliciously. It does not shtWj
therefore^ that the plaintiff has any cause of action against
TFoor.] If the words were false> it is submitted that the
plaintiff has a cause of action against Woor ; if true> he has
no claim to a cause of action against either party. It is
not necessary in an action for words to allege malice ; if
the words are actiounble. the law implies malice : Mercer
V. Sparh (a). [Parke J. That was after verdict, and
malice must have been proved at the trial.] In La4y iU or-
rison v. Cade (6), the report is this : — " Action for words :
Whereas she was a widow, and in communication with the
Earl of Kent about her marriage. That the defendant
said^ Askot had reported that he had had the use of her
body (inuendo that he had had carnal copulation with her),
ubi revera he never made any such report." ** And it
was moved in arrest of judgmenti that the words were not
actionable ; for the first words may have a good intend*
ment| as a physician may have the use of her body, Scc«
And the inuendo cannot alter the words : sed non alloon*
tur ; for the words in themselves cannot have any reasonnble
constructioui and they shall be taken according to the uaunl
and common sense of them, which is very slanderous to a
lady of such reputation t Wherefore it was adjudged for the
plaintiff. And this judgment was afterwards affirmed in a
writ of error." [Parke J. It is alleged there that Aekoi
(a) Owen, 51 ; Noy, 3I»« (6) Cro. Jac. 162.
MICHAEtllAd TEtlM^ X 0C0« IV. 256
Mter iiNide any sdcb report, which is equiimtent to an 18^.
illegation that the defcodant spoke the words falsely.] juip^^^^n
Is Imf V. Walter {a), it was held thai the report of the v.
sptecb of anotberi who never used such words^ is ac- akibls.
tionible. [Bajfky^ J. The plea ought to confess and
ivoid the cause of action stated in the declaration. Tlie
charge io the declaration is^ that the defendant spoke
irordi amounting to an unqualified assertion. The answer
in the plea is, that Woor first spoke the words, and that
tlis defendant afterwards repeated them, adding, that he
had heard and been told those words from and by Woor*
So that, according to the plea, the defendant first made
ibe assertion as of his own knowledge and authority, and
then qualified it by alleging that he had previously heard
itfiom Woor. The plea, therefore, does not confess and
atoid the cause of action stated in the declaration.] It
clearly confesses the cause of action, by shewing that
die defendant spoke the words charged in the declaration,
and, it is submitted, it then avoids it, by shewing that he
named the person from whom he heard the words. The
principle upon which the naming of the first publisher of a
iibel constitutes a defence is, that the defendant thereby
negatives malice. In Dam v. Lewu (A) it was held, that
it is no justification to an action for slander to plead that
such an one told the slander to the defendant ( but, that if
the person repeating the slander at the same time mentions
die name of the person from whom he heard it, that may be
pleaded in justification to an action brought against the
former. The present is the very ease there put, which
supports the fourth resolution in Lord Northampton's
c«se(e)» which was there spoken of by Lord Kenyon without
disapprobation. A defendant cannot justify the repeating a
report which he knows to be falaei by shewing that he heard
it from others, Maitland v. Goldney (ef) ; from which it
(«) Cro. Jac. 406. (c) 1« Rep. 134.
(^) 7 T. R. ir. (i/) a East, 408.
CASES IK TH£ KING'S BENCH,
would appear that if be had not known it to be false^ the
hearing it from others would have been a justification. The
same rule is laid down, without any qualification, in RoUts
jibridgement (a). The decision in De Crespigny v. ffe/Zes-
ley (b), that it is no justification for the publishing of a libel,
that, at the time of publishing it, the name of the person
who communicated it to the defendant was also published,
applies only to cases of written slander. There is a mate-
rial distinction between written and oral slander, Maitland
V. Gold/tey (c), where it is said, '^ Quaere^ whether a defend*
ant can, by naming the original author, justify the publish^
ing in writing slanderous words spoken by such other;
especially after knowing that they were unfounded ?" There
are many instances where an action may be maintained for
written slander, which could not be maintained if it were
spoken.
Bay LEY, J. — I am clearly of opinion that this plea is
bad. The declaration charges, &c. (Here his lordship
stated the declaration as set out at the commencement of
this case). Now, that imputes to the defendant an unqua-^
lified assertion ; and if he had pleaded the general issue
only^ it would have been necessary for the plaintiff to have
proved that the defendant in fact made such an unqualified
assertion : and if he had failed in that proof, and had proved
only that the defendant said that Woor had told him that the
plaintiff had been arrested, &c., the defendant would have
been entitled to a verdict or a nonsuit. The defendant,
however, has pleaded specially ; it was, therefore, his duty^
according to the first principles of pleading, to confess the
charge which he undertook to answer, and then to aver
some matter amounting to an answer. The charge is, that
the defendant made an unqualified assertion that the plain*
tiff had been arrested^ &c. Unless the plea, therefore,
contains an admission that the defendant spoke words bear-
(a) P. 46. pi. 9. (b) 5 Biiigh. 392. (r) 2 East, 426.
M^Phersoit
MICHAELMAS TERM, X GEO. IV. 257
mg that unqualified meaning, it is bad. Now the plea does 1829.
not admit that the defendant spoke the words in an unqua*
lified sense ; therefore it is bad because it does not confess «.
the charge stated in the declaration. Another objection I^anibls.
]x>inted out by mj brother Parke is, that the plea does hot
give the plaintiff any cause of action against Woor ; and
that, e?en according to Lord Nort/iampton's case {a) a per-
son, in order to justify the repetition of slander by naming
t&e original author^ must give the party slandered a cause
of action against the party he so names. Now this plea
merely states that the words were spoken by Woor; it
does not state that they were spoken falsely and mali-
ciously. For all that appears, they may have been spoken
kj Woor upon a justifiable occasion^ — as by way of a confi-
dential communication to a creditor, or in a court of justice.
Woor may upon some occasion have been examined as a
witness, and the words may have been extracted from him
upon cross-examination. Assuming, therefore, that the de-
fendant might rely upon the fact of his having heard the
words first spoken by Woor, and having named him at the
time when he repeated them, as an answer to the action,
atill he ought to have shewn by his plea that the words
were spoken by Woor under circumstances which did not
jnadfy the speaking of them.
Upon the general question, — whether it is a good defence
10 an action for verbal slander, to shew that the defendant
heard it from another, and named the author at the time, — I
101 of opinion that it is not. It has been already very pro-
perly decided that such evidence is no defence to an action
fof written slander (6); and I am of opinion that the rule
ooght to be extended to cases of verbal slander. It is true
that IB Davis v. Lewis {c)^ Lord Northampton's case{d) was
alluded to without disapprobation by Lord Kenyon, a
(•) 12 Co. Rep. 134 a, in the Payne, 695,) where all the authors
Scar Chamber, foarth resolution. ties upon the subject are collected.
(h) In De Cretpigny v. Welles- (c) 7 T.R. 17.
/^, (5 Bii^. 392, and 2 Moore & (d) 12 Rep. 132.
VOL. V. S
258
1829.
M'Pherson
V.
Daviels.
CASES IN THE KING S BENCH,
nan of powerful mindi acute discriiniQatioD| and deep learn-
ing. But much as I respect the memory of that noble and
learned judge, I cannot carry my respect so far as to sur-
render my own judgment to bis. Let us examine the terms
of the resolutiouj and try it by the simple test of reason and
common sense. '^ It was resolved that if A. say to B., did
you not hear that C. is guilty of treason, &c. i this is tan-
tamount to a scandalous publication ; and in a private action
for slander of a common person, if J. S. publish that he hath
heard J. N. say that J. G. was a traitor or thief; in an ac-
tion on the case, if the truth be such, lie may justify •** Now,
assuming that it is not there stated, as a qualified proposi-
tion,— that a person may justify if he believes the slander to
be true, and repeats it on a juUiJiable occasion, — but as a
general proposition, that if be in fact heard the report from
another, and named that other at the time he repeated the
slander, that is in all cases a justification : I (hink that
is a proposition which cannot be supported. I very nMtck
doubt whether the repetition of slander is justifiable in a^y
case, unless the party really believes it to be true. A per*
son who repeats slander, even though he states at tbe time
that he heard it from another, gives it a certain degree of
credit; for the mere act of repetition imports a degree of
belief in the truth of the slander. It seems to me, therefore,
that a person cannot be justified in repeating slander, unless
he really believes it to be true. But I think that is not
enough* I think it must be repeated tq^m. a justifiable OC'-
casion. Every publication of slanderous matter is^ prim&
facie, a violation of the right which every person poaaeaaea
in his character and reputation. The law^ upon grotmds of
public policy and convenieacej allows, under certaki cir-
cumstasces, the publication of slanderous matter, although
it may be injurious to a particular individual. But tbe act
being prim& facie unlawful, it properly lies upon the person
charged with uttering slander, whether he be the origioal
utterer or not, to shew that he uttered it upon some lawful
occasion. Upon the whole, 1 am of opinion that a man
MICHAELMAS TERM, X GEO. IV.
cumot by law justify the repetition of slander by merely
Muning the person who first uttered it ; he must also shew
Aat be repeated it on a justifiable occasion, and that he
htheeed it to be true. Upon this view of the law, the plea
is this case is bad, and the plaintiff is entitled to judgment.
LrTTLEDALE, J. — For the reasons stated by my brother
Bay%, I agree that this plea is bad; and upon that part of
the subject I do not feel it necessary to add any thing ; but
with reference to the fourth resolution in Lord Northamp^
tons case (a), I think it right to make a few observations.
That resolution has been frequently referred to during the
hst thirty or forty years, and though never expressly over-
ra/ed, has been generally disapproved of. The latter branch
of it is extra-judicial, fen- it was not necessary to come to any
resolution respecting private slander in the Star Chamber.
It is in some degree inconsistent with the third resolution ill
the same case, which lays down, '* that if one hear false and
horrible rumours, either of the king, or of any of the gran-
dees, it is not lawful for him to relate to others that he heard
J' S, say sach false and horrible words, for if it should be
lawful, by this means theif moy he published generally. **
M^ow the inconvenience there pointed out, namely, the
general publication of slander, though differing^ in degree^
would follow from the repetition of slander in every case,
whether of king, lords, or commons ; therefore the distinc-
ioa taken in*the two resolutions seems to involve some in-
consistency. Perhaps, however, the fourth resolution may
be considered as not going the length of saying, in terms,
thsii a defendant may justify the repetition of slander gene-
rally, bat only that he may justify under certain circumstances.
If it mast be taken as importing that a defendant may justify
^ repetition of slander generally, by merely shewing that
be named the original author, I am of opinion that it is not
haw.
A brief consideration of the form of the record, and the
(a) 12 Co. Rep. 134 a.
S 2
S59
18129.
M'Pherson
V.
Daniels,
26a
1829.
M'Pberson
V.
Daniels.
CASES IN THE KING S BENCH,
nature of the evidence proper to an action for slander^ will,
I thinky prove this opinion well founded. The declaration^
which is a technical statement of the facts necessary to sup*
port the action, alleges that the defendant falsely and mali-
ciously uttered the slander, to the plaintiff's damage. In
order to support that statement, there must, in general, be
proof of malice in the defendant, of damage to the plaintiff,
and that the words are untrue. Where, indeed, words falsely
and maliciously spoken, as in this case, are actionable in
themselves, the law presumes a damage ; in other cases, an
actual damage must be proved. Such an action can only be
answered, — where the publication of the slander is not in-
tended to be denied, — by the defendant's refuting the charge
of malice, or shewing that the plaintiff is not entitled to
recover damages. The charge of malice may be refuted,
under the plea of the general issue, by shewing that the
words were spoken upon au occasion, or under circum-
stances, which the law, upon the grounds of public policy,
allows, — as in a parliamentary or judicial proceeding, or in
giving the character of a servant. Where the truth of the
words is relied upon as a defence to the action, the defend-
ant must plead that matter specially ; and for this reason^
that the truth is an answer to the action, not because it
negatives the charge of malice, (for slanderous matter, though
true, may be uttered MTongfuUy and maliciously, so as to
render the utterer liable to an indictment,) but because it
shews that the plaintiff is not entitled to recover damages:
for the law does not allow a man to recover damages for au
injury to a character which he either does not possess, or
does not deserve. Now a defendant, by shewing that, at
the time when he published slanderous matter of a plaintiff,
he stated that he had previously heard it from another, whom
he named, does not negative the charge of malice, for one
person may wrongfully and maliciously repeat that which
another may have uttered upon a justifiable occasioa. Such
a plea does not shew that the slander was published upon
an occasion, or under circumstances which the law, on
M'Phersok
MICHAELMAS TERM, X GEO. IV. 261
grounds of public policy, allows; nor, that the plaintiff ha«i '1839.
j)ot sustained an injury, or is not entitled to recover damages.
^8 much mischief may be done by the wrongful repetition "' * V/
of a slanderous tale, as by its original publication ; for the Daniels.
6rst utterer may have been a person insane, or of bad cha-
racter. Every person who repeats a slander gives it some
additional weight and credit. A plaintiff is not the less en-
titled to recover damages for slanderous matter published
concerning him, because another person previously pub-
lished it. That shews, not that the plaintiff is a man of
such conduct or character as deprives him of the right to
recover damages, but that he has been wronged by another
person as well as the defendant ; and that he may, conse-
quently, if the slander was not published by the first utterer
upon a lawful occasion, have a good cause of action against
that person as well as the defendant. It seems to me, there^
fore, that such a plea is not an answer to an action for slander,
because it does not negative the charge of malice, and does
not shew that the plaintiff is not entitled to recover damages.
Parke, J. — It is not necessary, in disposing of this case,
to decide whether the latter part of the resolution, so often
alluded to, is good law or not ; because, assuming it to be
good, this plea is bad, for two reasons. To be a good plea it
JDust confess and avoid the cause of action stated in the
declaration. This plea either does not confess^ or if it con-
fesses, does not avoid, that cause of action. It appears from
the case of Bellv.Bt/me{a)f that if a defendant has not
made an assertion as his own, but has merely alleged that
some other person had made it, it must be so averred : and
that an averment in a declaration, that the defendant used
slanderous words, must be taken to mean that he used them
as bis own words, and as a substantive allegation of his own ;
and will not be supported by proof that he used them as th^
words of another person. Applying the principle of that de*
cision to the present case, if the plea be understood to confess
that the words were spoken as those of another person, and
(a) IS East, 554.
CASES IN TH£ KING 8 BENCH^
Bot as a direct assertion of the defendant himself, it does
not properly confess the charge made in the declaration ; if,
o. on the other hand, the plea be considered as confessing the
DAjvi£ts. words to have been used as those of the defendant himself»
and as a substantive allegation of his own, it does not coi^
tain any proper avoidance of the matter so confessed : for
if one roan makes such an assertion of slander as his own,
it can be no answer, even admitting the latter part of the
fourth resolution in Lord Northampton's case to be law,
if in the same conversation he adds that another man has
also said the same thing. Secondly, the plea is bad, because
it does not give the plaintiff any cause of action against
Woor, It does not allege that Woor spoke the words
falsely and maliciously; and though malice may be implied
of words actionable in themselves, still the defendant ought
to have stated in his plea, (as it must have been stated in a
declaration against IVoor,) that Woor spoke the words falsely
and maliciously.
But assuming that the plea was not bad for the reasons
I have mentioned, I am clearly of opinion that the latter
part of the fourth resolution in Lord Northampton's case is
not law. The twelfth part of the Reports was never much
looked up to as a book of authority. Mr. Hargrove {a)
deems it of small authority, being not only posthumous^ but
apparently nothing more than a collection from papers
neither digested nor intended for the press by the writer (ft).
Mr. Serjeant Hill, in his copy, refers to folios 18 and 19(c),
as shewing that the twelfth part is not fit to be allowed.
Mr. Justice Holroyd, in Lewis v. Walter (d), gives an opinion
unfavourable to its accuracy. Besides, the language of the
resolution itself is equivocal. It does not say, in direct
terms, that if the defendant gives a cause of action against
another, it will be in all cases an answer to an action for
slander ; and if it is to be understood as importing generally
(a) 1 1 St. Tr. 30. were printed early in the reign of
(b) It is obserrable, that 12 James 1, in Frejich.
Rep. was printed in 1658 in Eng- (c) Case of Non Ohtante,
lish, whereas the previous parU ((/) 4 Bam. & Alders. 614.
MICHAELMAS TERM, X GEO. IV.
thit tbe repetition of dftiider is lawfoh provided the pm*!;
at the time he repeats it mentions the name of the author^ M*Pheiwow
I tUak that upon no principle can such a proposition be v,
1 J • . ^ ,,..... Daniels.
supported, and I see uo satisfactory distinction, m this re*
tpecty between oral and written slander. A man's reputa*
tion is entitled to the protection of the law against those
slanders which it deems injurious ; and as every one who
publishes such slander injures that reputation, he is guilty
ofa wrongful act, and is, upon principle, liable in a civil
action for any damage arising to another from that wrong*-
fal act Lord Chief Justice Be$t, in De Crespigny v. Tfir/-
ksky, says, '' because one man does an unlawful act to any
person, another is not to be permitted to do a similar act to
tbe same person; wrong is not to be justified, or even
excused, by wrong "(a) : and I entirely agree with the senti-
ment. Every repetition of slander is a wrong done, for
which an action lies ; and the repeating of a slander cannot
be less a wrong because the person who repeats it is not
the same who first uttered it. The degree of injury may
vary greatly, according to the character and condition of the
individual who utters the slander, and the number and cha«-
ncter of the persons in whose hearing it is uttered. Tbe
original utterer may have been a person of bad character,
or may have uttered it when in a state of intoxication (6).
Slander uttered by such a person, or under such circum-
stances, would find little credit ; but if a person of good
character, and in a sound state of mind, were afterwards to
repeat that slander, he would thereby not only circulate it
more widely, but he would give it credit by his repetition
of it, even though he stated at the time that he heard it
from another. Every wrong to property is the subject of
a civil action, and upon what principle can it be said that
every wrong done to a man's reputation is not equally so i
A wrong to property cannot be justified by shewing that
another person has previously committed a similar wrong,
and why should it be otherwise in the case of a wrong to
reputation i In this case, moreover, the plaintiff alleges
(o) 6 Bingb. 404. (fr) 12 Co. Rep. 134 a.
264
18«9.
M'Phbrsoh
V, .
Daniels.
CASES IN THE KING S BENCHj
that in consequence of the words spoken by the defendant
he sustained a special damage, by the loss of a customer,
and non constat that any such special damage would have
accrued from the original uttering of the words, if they had
not been repeated by the defendant. In every point of
view, therefore, it is clear that the plea is bad.
Judgment for the plaintiff (a).
(a) See Maitland v. Gcldney^ S
East) 426 ; Woolnoth v. Meadowsy
5 East, 463, and 8 Smith, 88; Lane
V. Howman, 1 Price, 76; MUU v.
Spencer, Holt, N. P. C. 583 ; Saun-
der§ ▼. Mills, 6 Biogh. 813, and
3 Moore & P. 580.
A private book
kept by a de-
ceased collec-
tor of taxes,
cot as a mat-
ter of dut^,
but for his
own conve-
nience, con-
taining entries
by him, ac-
knowledging
the receipt of
sums of money
in his charac-
ter of collec-
tor, is admissi-
ble evidence
in an action
against his
surety, — al-
though the
parties who
iiad made
the payments
were alive,
and might
have been
called as wit-
MiDDLETON and another v. Melton.
Debt on bond. The declaration stated that the defend-
ant, in the life-time of Thomas Squire^ deceased, (who was
the collector for the Second Part of the Bishop's Liberty,
appointed by the commissioners acting for the Second Divi-
sion of East Brixton, in the county of Surrey, in execution of
certain acts of parliament, passed in the 4Sd, 48th9 ^^» ^^^
o9th years of Geo* 3, and the 1st, 2d, and 3d years of Geo. 4,
relating to the duties under the management of the commis-
sioners for taxes,) on the 10th of October, 1 8£5, as surety for
Squire, as collector of taxes, by his certain writing obligatory,
became bound to the plaintiffs in the sum of 3226/., being
a sum equal to the amount of the whole duty and sums of
money (including compositions under the act of 3 Geo. 4)
assessed, and to be collected by Squire as such collector,
and that the bond was subject to a condition; which con-
dition, after reciting that Squire had been appointed collec-
tor of the rates and duties granted by the above-mentioned
acts of parliament, and that one of the duplicates of assess-
ment and of the abstracts of such of the said rates and
duties as had been compounded for under the act of
59 Geo. 3, had been delivered to Squire with warrants for
MiDDLBTON
V.
MICHAELMAS T£RM, X GEO. IV. 265
collecdog the same, and that Squire bad been required by i829.
the plaintiffs to give security iu pursuance of the first-men*
tioned act of 43 Geo. 3, — was, that if Squire, and the defend-
ant, and one Frosi, or either of them, should pay, in pur- Melton.
suaoceof the directions of the said statutes, all such sums
of money assessed and to be collected in the said Second
Part of the Bishop's Liberty, by Squire as such collector;
aod \{ Squire should duly enforce the powers of such acts
against such as should make default, — then the bond was to
be void, otherwise to remain in full force. Breach : that
Squire collected large sums of money on account of the
rates and duties granted by the said several acts of parlia-
ment, but that Squire, Frost, and the defendant, in the life-
time of Squire, had not paid, nor had Frost, or the defend-
ant, since the death of Squire, paid the said sums of money
collected by Squire, or any part thereof. Plea : that Squire
in bis life-time paid the sums collected by him. The re-
plication denied the payment.
At the trial before Alexander, C. B., at the last Kingston
assizes, the case on the part of the plaintiffs was this : —
A duplicate assessment was delivered by the commission-
ers for taxes to Squire, in which he occasionally made entries
of tbe sums received from the persons assessed. From the
entries there made, it did not appear that Squire had received
any moneys which he had not paid over to the commissioners.
It did appear, however, that for his own convenience he
l^ept a private book, containing entries (which were appa-
rently copied from the duplicate assessment) of the names
of the persons, and of the sums in which they were respec-
tively assessed, and that it was his usual habit to collect by
that private book, and to mark with ticks all the sums he
received from the several persons therein mentioned. This
book was inspected by two persons on the day after
Squire*s death. They stated that they found in it entries
with ticks against them, denoting the sums received from
tbe persons against whose names those ticks were placed,
for which there were not corresponding entries in the du-
266
1829.
MlDDLETOV
Melton.
CASES IN THE KING S BENCH,
plicate assessment It was proved tbat this prifate book
bad been delivered by Sfuire*s daogliter to the defendant,
and that the defendant had had notice to produce it The
sums which appeared to be due from Syaire^ by the entites
he had himself made in the private book, over and above
what appeared by the duplicate assessment to have been
collected by him, amounted to 996/. For some of those
sums the plaintiffs further produced receipts given to seve-
ral persons for taxes paid to Squire, and signed by bim.
On the part of the defendant it was objected that the re-
ceipts were not admissible in evidence, because the parties
who paid the money might have been called; and that
although entries made by Squire in any book which he, in
the course of his duty as collector, was bound to keep,
would be evidence against the surety, still entries made by
him in a private book, kept for his own convenience, were
not receivable in evidence to charge the surety. The Lord
Chief Baron received the evidence, reserving to the defend*
ant liberty to move to enter a nonsuit, if the Court should
be of opinion that neither the receipts nor the entries in the
private book were evidence; or to reduce the verdict to a
proper proportionate amount, if they should be of opinion
that the entries in the private book were not admissible in
evidence, but that the receipts were. A verdict was there-
upon found for the plaintiff, and damages were assessed
upon the breach assigned in the declaration at 996/., the
full amount claimed.
In Easter term, 18£9» a rule nisi was granted, pursuant
to the liberty reserved for that purpose, against which
Andrews, Serjt. and Hutchinson now shewed cause.
The entries made by Squire, the deceased collector, in his
private book, were, in effect, declarations made by him
against his own interest ; for by means of them he charged
himself with the receipt of various sums of money, which
he was liable in point of law to pay over to other persons.
As such, the entries would clearly have been admiasible in
evidence against Squire, the principal; and as the defendant.
JUICHAELMAS TERM, X GEO. IV.
when he became his sorety, undertook that Squire should
6ithfuily perform his^Juty, he was bound to know and must
be presumed to have known in what manner Squire kept
his sccountSy and to have been aware of the existence and
coDteots of the book; and if so, the entries in that book
were equally admissible in evidence against the defendant,
the surety. Upon the same principle the receipts also
were admissible in evidence against the defendant; the
plaintiff was not bound to call as witnesses all the persons
who had made payments to Squire. It however seems
unnecessary to labour this point, for if the entries in the
book were evidence, they were sufficient to entitle the
phintiff to a verdict for the full amount of damages given
by the jury.
267
1829.
MlDDLETON
V,
Melton.
Spankie, Serjt. and Chitty, contraL First, the entries
made by Squire in his private book, were not evidence
against the defendant as his surety. If they had been made
by Squire in the regular and necessary discharge of that
duty for the faithful performance of which the defendant
had become surety, it seems that they would have been
evidence against the latter; Goss v. Watlington{a), Whit"
Hash V. George {b); but that was not the case, for these
entries were made in a private book kept by Squire for his
own convenience only, and which he was not under any
obligation, in the discharge of his duty as collector, to keep.
It is true that the defendant, when he became surety, un-
dertook that Squire should faithfully perform his duty ; but
it was no part of that duty to keep the book in which these
entries appeared. Squire's duty consisted in making entries
in the public book, on the duplicate assessment, of all sums
of money which he received as the collector; and such
entries would clearly have been evidence against his surety;
but where no such entries appeared in the public book, the
presumption was that no money had been received. The
(«) 9Bro. &Bingh. 1SS; 6 B. pernom* Whitmashv. Genge^ ante,
Moore, 356. iii. 42. And see Stothert v. Opod-
(b) 8 Bam.& Cressw. 556; S. C. fellow, 1 Nev.&Man.202, 204,(tf).
268
1889.
MiDDLETON
V.
Meltov.
CASES IN THE KING S BENCH,
entries in the public book did not shew that Squire had
received any money which he had not paid over. Entries
made by a principal, privately and gratuitously, for his own
convenience, may be evidence against himself, but cannot
be received to charge his surety. They are not the best
evidence; and the best evidence must be adduced in order
to charge a surety. An express admission by a principal
is not, in his life-time, sufficient to charge a surety; Cutler
V. New/in {a\ In Goss v. WailiNgion{b), the entries were
held admissible upon the ground that the book in which
they were made was a public book, and one which it was
the duty of the principal to keep and make entries in. In
Ifhitnash v. George {c), the entries were admitted, not
altogether as entries made by the principal against his own
interest, but because they were made in accounts which it
was his duty to keep, and which the surety had contracted
he should keep faithfully ((/). In the case of a guarantee,
it has been held, that on a guarantee to pay for goods sold
and delivered to a third person, the admission of such third
person that he has received the goods, is not evidence to
charge the guaranteeing party; the delivery of the goods
must be proved; Evans v. Beattie{e). There seems to be
no case in which it has been held that the mere admission of
a principal is evidence to charge a surety even after the death
of the principal. The book in this case was a mere copy
of the duplicate assessment; and the only evidence to charge
the defendant consisted of certain ticks made by Squire in
that book. That was extremely loose and uncertain evi*
dence, such as it would be highly dangerous to act upon.
The ticks by no means certainly indicated that the sums to
which they were annexed had been paid; they may have
been made by Squire as indicating only that he expected that
such sums would be paid; they may even have been made
(a) MannifiG^'s Digest, Sded. 137.
(b) 3 Bro.&Bingh. 139; 6 B.
Mcx>re, 355.
(c) 8 B. & C. 556 ; ante, iii. 42.
(rf) See 2 Stark. Ev. 777.
(e) 5 Esp. N. P. C. 26. And
see Bacon v. Chetmy, 1 Stark. N.
P. C. 192.
MICHAELMAS TERM, X GEO. IV.
to indicate that such sums were in arrear, and required
collectioo.
Secondly, the receipts were not admissible in evidence
against the defendant. They were not sufficiently explained
to render them admissible as evidence at all. It did not
appear whence they came. The parties who made the
payments ought to have been called as witnesses to prove
the fact. That was the best evidence; and no supposed
inconvenience can control the rule of law which requires
its production. Besides, the bond in this case was given
in conformity with the provisions of an act of parliament.
Now, if the commissioners had done their duty under that
act, (as the surety had a right to presume they had,) no de-
fault could have been made by Squire: for they are required
to call the collectors before them, and to examine them upon
oath as to the moneys collected by them. If that course
had been pursued, no difficulty could have arisen.
269
1829.
MiDDLETON
V.
Melton.
Bayley, J. — The question in this case is, whether the
contents of a private book, kept by a collector of taxes,
(being entries whereby he purports to acknowledge the
receipt, in bis character of collector, of certain sums of
money,) can be received in evidence against a surety, the
collector having been appointed to collect the taxes men-
tioned in the bond executed by him as principal, and by
the defendant as surety, pursuant to the provisions of an act
of parliament. Squire, the deceased, was the collector,
and after his death the book in question was found by his
daughter, and was by her delivered to the defendant.
There was, therefore, evidence to shew that the book when
last seen was in the defendant's possession, and he having
failed to produce it at the trial, after notice so to do,
secondary evidence of its contents was admissible, if the
book itself would have been so. It was proved that Squire
was in the habit of collecting the taxes by this private book,
and of marking with ticks the sums which he received, and
that these ticks were used by him to denote that he had
270 CASES IX THE KIXg's BENCH,
1889. receiTed those snms*. There v/as also a questioB whether
^/^^"^^^ certain receipts were admissible in evidence; but as ibc
MiDOLETON ... . .
V. entries in the book, if they were admissible to shew that
JMeltok. Squire had received those sums, will be sufficient to entitle
the plaintiff to retain the verdict for the full amoant, that
second question will not necessarily arise. It was coo-
tended on the part of the defendant, tliat the entries in the
book were not receivable in evidence against him, upon
the ground that it was a private book which it was not the
duty of Squire in his character of collector to keep, and
which he kept merely for private purposes ; and it was said
that the decisions in Go$s v. WaiHftgioH {a) and WhitwnK
V. George {b), proceeded on the ground that the entries in
those cases were in books which it was the duty of the
principal, by the very terms of the bond, to keep, and to
keep faithfully. The principle laid down in those cases
was quite sufficient to support the decisions. But as the
book in which the entries in the present case were made,
was one which the collector was not, as such, bound to
keep, it becomes necessary to inquire whether the rule
established in those cases may. not safely and properly be
further extended; and whether the entries made in this pri-
vate book may not be evidence against this defendant, con-
sidering him as a stranger, and without reference to his cha-
racter of surety, in respect of which he may be identified
in interest with his principal: and the question then will be,
whether such entries, made by an individual against his
own interest, may not be evidence, against a third person,
of the fact of the receipt of the money. Now, it is a
general and well-established rule of evidence, that decla^
rations or statements of deceased persons are admissible
where they appear to have been made against their own
interest. Thus, an entry in a book, by which the person
making it charges himself with the receipt of money on
account of a third person, or acknowledges the payment of
(a) 3 Bro. & Bingh. 1S2, and 6 B. Moore, 355.
(b) Ante, iii. 42; 8 B. & C. 556.
MICHAELMAS TER&l, X GEO. IV.
mtmy doe to himaelf, haa been held good evidence of the
receipt or payment of such money. The case of Warren
i»GrtamUe(ja) is an early authority upon this subject, and
does not appear to have been considered in the case of
Go» V. Wailington (ft). There, upon a trial at bar in 1740,
the lessor of the plaintiff claimed under an old entail in a
frfflilj settlement^ by which part of the estate appeared to
be in jointure to a vridovr at the time when her son suffered
acommoo recovery* which was in 1699; aad the defendants
sot being able to shew a surrender of the mother's estate
for life, it was insisted that there vras no tenant of the
precipe for that part« and that the remainder, under which
tbe lessor claimed, was not barred. Oa the other hand it
was said, that at that distance of time a surrender should
be presumed ; and to fortify this presumption, the defend*
tot offered to produce the debt-book of Mr. Edward*^ an
attoroey, long since deceased, in wbich there was a charge of
S^L for suffering the recovery; two articles of which were,
for drawing a surrender of the nM>tber's interest 20s.»and for
engrossing two parts thereof 20f. more; and it appeared
by the book that the bill had been paid. ** And this being
objected to as improper evidence, the Court was of opinion
to allow it, for it was a circumstance material upon the
in4uiry into the reasonableness of presuming a surrender^
and could not be suspected to be done for this purpose; that
if Edufards was living, he might undoubtedly be examined
to it, and this was now the next best evidence. And it was
accordingly read." Now tbe principle upon which that
case was decided was, that, upon looking at the deceased
allomey's book, it appeared that he had made a charge for
the surrender, and acknowledged that he had been paid the
charged (c). So it was held in the case of Stead v.
<«) 2 Stn. 1 199; infrd, 972. and the Court said that they would
(6) S Bro. & Bingh. 132, and 6 have presumed a surrender after
B^ Moore, S55. such a length of time, without this
(c) Bat this was forty years additional evidence. In Gifodiiile
^fter tbe time of the surrender, v. The Duke of Chanehs, 9 Burr.
272 CASES IN THE KING's BENCH,
1829. Healon (a), that an entry in the parish books, made by the
, '^'^^''^^*^ officers of one township, of the receipt of a proportion of the
MiDDLETON ^, ^ ,«. .., ,.
V, church-rates from the officers of another township, was evi-
Melton, dence to charge the latter with the payment of the same sums
in future, and that the title at the head of the page, stating
the customary proportion to be so paid, was also evidence :
and it was there said by Ashhurst, J., that the last entry of
the payment by the officers was clearly admissible, because
the officers thereby charged themselves with the receipt.
In Barry v. Bebbington (b) the right to the soil was in
issue, and the plaintiff, who derived title under Lord Bar^
rymofCf offered in evidence several items contained in a
book, in the handwriting of one Ashley, who had many
years before been steward to Lord Barrymore, and who
was then dead. The items were memoranda of receipts of
money by Ashley from different persons by name, but
whose situations were not mentioned, for trespasses com-
mitted on the common in question, paid on account of
Lord Barrymore. The evidence was rejected ; and a rule
for a new trial was obtained on the authority of Warren v.
GreenvUle{c), upon the ground that the evidence was im-
properly rejected; and that rule was afterwards made
absolute. And Lord Kenyan there said, '' It is clear that
where a steward charges himself with the receipt of money,
it shall be received in evidence before a jury, to shew that
such sum was received by him." In Higham v. Ridg-
way{d) it was held, that an entry made by a roan-midwife
in his book, of having delivered a woman of a child on a
particular day, referring to his ledger in which he had made
a charge for his attendance, which was marked as paid, was
evidence upon the trial of an issue as to the age of such
child at the time of his afterwards suffering a common
1079, Lord Mansfield says, that presume a conditional surrender,
the Court did not rely upon the 1 Stark. Ev. Sd ed. 31S, (6).
entry ; but he also states, from his (a) 4 T. R. 669.
own note, that the Court said, (b) 4 T. R. 514.
that after forty years they would, (c) 9 Str. 1199.
without any other circumstances, (</) 10 East, 109.
MICHAELMAS TERM, X GEO. IV.
recover^^ (a). These cases establish, as a general principle^
that where a person makes an entry charging himself with
the receipt of a sum of money, that entry is evidence of the
fact of the receipt of that money against a third person.
The question as to the receipts then becomes immaterial.
Bat if the entries in the book are admissible in evidence,
because the ticks annexed to them denote that the collector
had received the money, the receipts signed by him must,
apoD the same principle, be evidence of the fact of the
receipt of the money by him. For these reasons I am of
opinioQ that all the documents objected to in this case
were properly, received in evidence, and, consequently, that
this rule must be discharged.
273
1829.
MlDDLCTOir
Meltov.
LiTTLEDALE, J. — I am of the same opinion. For some
time I entertained considerable doubt whether entries
made in a private book, kept by an individual for his own
coDveoience, could be evidence against a third person. In
Goii V. Watlington {b) the books in which the entries were,
made by the deceased collector were public books, delivered
to him by his predecessor in office ; and in Whitnash v.
George (c), the book in which the entry was made was one
which the principal was bound to keep in performance of
the very duty for which the surety had become bound.
The rule established by those cases is a limited one, and I
have felt some doubts as to the propriety of extending it to
a case like the present. If, however, a private book ought,
for this purpose, to be regarded in the same light as a pub-
lic book» these . entries were receivable in evidence. The
(«) But the evidence seems to
htve been received in that case
principally upon the ground that
the entiy was made, of a fact with-
lA the peculiar knowledge of the
V^'^Jf against bis interest; and
LeBhnCyJ.^ seems to have found-
ed his assent, partly at least, on
the particular nature of the fact,
as being matter of pedigree. 1
Stark. £v. 319.
(b) 3 Bro. & Bingh. 132.
(c) 8 Bam. & Cressw. 656;
antCt ^1* iii< 42.
CASES IN THE KING S BENCH,
receipts, which were entries made on separate pieces of
paper, would also be receivable upon the same principle ;
V, because the book is nothing more than piecea of paper put
Meltok. together. The cases referred to by my brother Bayly
certainly establish this general principle, that where an
individual, having peculiar means of knowing a fact, makes
a declaration, verbal or written, of that fact, it being against
his interest at the time, it is evidence of the fact, as between
third persons, after his death. Those cases, however, are
distinguishable from the present. There, the entries coa-
stituted all that the party making them intended to do.
Here, the party evidently intended to make further entries
in the public book; so that his acts were incomplete.
Still, looking to the principle established by the several
cases which have been referred to, I think the entries made
in this private book were receivable in evidence; and if
they were receivable as acknowledgments of the receipt of
money, for which the party making them would otherwise
have a claim, it follows that the receipts themselves must
equally be receivable upon the same principle.
Parkb, J. — I am also of the same opinion. Secondary
evidence of the contents of the private book was properly
received, the defendant, who had the possession of it, not
producing it after notice. Then the question is, whether
the book itself, if produced, would have been receivable in
evidence-— that is, wliether entries made in a private book,
acknowledging that the party making them had received
certain sums of money, are, after his death, admissible evi-
dence against third persons, to prove the fact of the receipt
of the money. The general rule undoubtedly is, that facts
must be proved by testimony on oath. But there is an
exception necessarily engrafted on that rule, within which
the present case falls, namely, that an admission of a fact
made by a deceased person against his own interest, is evi-
dence of that fact as between third persons. Upon that
MICHAELMAS TERM, X GEO. IV.
ground entries made by receivers, stewards, and agents of
varioos kinds, charging themselves with the receipt of
money, have been held good evidence, after their death, to
prove the fact of the receipt of such money,— without refer-
ence to the particular character of the person making the
entries. Thus, in Warren v, Greenville {a) the person
making the entry was an attorney ; in Manning v. Lech--
mere{b), a baiiiiF; m Higluim v. Ridgway{c), a surgeon.
In Haddow v. Parry (d), where a bill of lading had been
signed by a master of a vessel, since deceased, for goods to
be delivered to a consignee or his assigns, on his paying
freight, the document was held to be evidence to shew that
the consignee had an insurable interest in thet goods (e).
Having then established that such admissions are evidence
d the fects admitted, it can make no difference that the
same facts might have been proved by other means, as, for
mstance, by a living witness; and accordingly there are
cases in which the admissions of deceased persons have
been received, though the testimony of living persons might
have been given. Thus, in Barry v. Bebbington (/), which
wu tried in 1791> one of. the entries was of the receipt of
a sum of money so recently before as 1 785. The fact of
that payment, therefore, could doubtless have been proved
by the person who paid the money, and yet it was held
that the entry made by the deceased steward, charging
himself with the receipt of the money, was evidence of the
275
1829.
MiDDLETON
Melton.
(a) 2 Str. 1129.
(() 1 Atk. 453. It was held in
that case that old rentals, by ivhich
bailiflb bad acknowledged the re-
ceipt of moneys, were evidence of
the pajment of such rents, and of
ihit n^t to receive them, if the
bmUff or recover were dead.
{e) 10 East, 109.
{€) 3 TaonL SOS.
(e) ** But if, in such case, the
should guard his acknow-
ledgment by saying — 'contents
unknown/ so that he does not
charge himself with the receipt of
any goods in particular, the bill of
lading, it is said, would not be
evidence either of the quantity of
the goods, or of property in the
consignee." 1 Stark. £v. 309, 2d
ed. referring to an observation of
Lawrence, J., 3 Taunt. 305. Tamen
qiutre as to the latter position.
(/) 4 T. R. 514.
T 4
276
1829.
MiDDLKTON
V.
Melton.
CASES IN THE KING S BENCH,
fact of such receipt, without calling the person who paid
it. Upon the same principle, the entries made in thi»
case by the deceased collector were evidence of the fact
of the receipt of the several sums of money, without
calling the persons who paid them. In Goss v. IVatUng'
ton (a) and Whitnazh v. George (6), the ground upon whicb
the entries were held admissible undoubtedly was, that
they were made in a book which it was the duty of the
principal to keep, and for the performance of which duty
the surety was responsible. But it seems to me that those
decisions may be supported on the more general principle,
that an entry made by an individual cognizant of the fact,
and having no interest to make a false entry, whereby he
charges himself with the receipt of money, is evidence of
the fact of the receipt of such money. It is unnecessary
to consider the question as to the receipts, because the
entries in the book being admissible, they are sufficient to
entitle the plaintiff to the full amount of damages which he
has recovered. But I cannot help thinking that they were
admissible ; and I doubt the propriety of that part of the
decision in the case of Goss v. Watlington (a), by which
the receipts of the deceased collector were held inadmis-
sible.
Rule discharged (r).
(a) 3 Bro. & Oiugli. 132; 6 B.
Moore, S55.
(6) 8 Barn. & Cressw. 550;
ante, vol. iii. 42.
(c) And see Bullen v. Michel,
2 Price, 399, 413 ; Rawe v. Bren-
ion, (fii'ih day) ante, vol. iii. 268;
H^le V. Maggie, 1 Jacob & Walk.
234 ; Short v. Lee, 3 Jac.& Walk.
489 ; Doe d. Gallup v. VawUs, 1
Udood. & Rob. 261; Spires r.
Morris, 9 Biogh. 687, and 3 Moore
& Scolt, 124; Flaxton v. Dare,
ante, 1, and 10 Bam. & Crc;ssw.
17 ; Wright v. Doe d. Taiham, 3
Nev. & Man. 268.
MICHAELMAS TERM, X GEO. IV.
271
1829.
fl£Y5HAM, Esq. V. JoHN FoHSTER| the Treasurer of the
Commissioners appointed for putting in execution a cer-
tain Act of Parliament, passed in the Forty-fourth Year
oftbe Reign of his late Majesty King Geo. 3, intituled,
*^ An Act for Lighting the Streets, Lanes, and other public
Passages and Places, within the City of Carlisle, in the
County of Cumberland, and the Suburbs of the said
City, for Paving the Footpaths of the Streets of the
said City and Suburbs, and for otherwise Improving the
said City." (a)
The declaration stated, that a messuage, situated in a A local pRTing
certain street, called Watergates Lane, on the south side of coramission-
ere, at a meet-
happen that there shall be no ad- ipS'?*'*^*"*'^
(a) B; this act, sect. 1, certain
<0(DiDJ&sioners are appointed.
By sect. 4, " The said commis-
siooers, or any five or more of them,
shall meet together in the Guild-
kail of the said city, or at »uch
other place within the said city as
the; shall appoint for that purpose,
00 the 26th day of June, 1804,
between the hours of ten and twelve
oftbe dock in the forenoon of the
same day, and shall then proceed
to pot this act in execution, and
tbsH and may then, and from
time to time afterwards, adjourn
themselves to and meet at the
place aforeaaid, or at any other
convenient place within the said
city of Carlisle, as they or any five
ormore of them shall appoint; and
if it shall happen that there shall
not appear at any »uch meeting a
sufl&csent number of the said com-
fflissionera to act or to adjourn to
another day, or in case the com-
missioiiers so assembled shall omit
Of neglect to adjourn themselves,
er in case it shall hy any means
. ; " " „ for that pur
joumment made, or if there shall '^^^^ ^^ order
be any special occasion for any footpaths to
meeting, between the time of any be raised &c.,
meeting or any adjournment there- ^, directs
r • .u *• .u J that the en-
of, or at any other time, then and • • ^^^
in any of the said cases, any three commissioners
or more of the said commissioners, books may be
or their clerk, shall and may ap- '^■d in evi-
point a meeting to be holden at ^*"^®: ;^"
, , ... entry >" the
the place where the last meeting |j„oj[j statine
was appointed to have been held, that such an
or at some other convenient place order was
within the said city of Carlisle, or ™^^® *' *
the suburbs thereof, as they or he ^^p,JJIfjc no-
shall think proper, between the ^ice, does not
hours of ten in the forenoon and prove that the
four in the afternoon of such day |?®,®'*J°S r**
on which such meeting shall be g"iioi^Ri.
called, notice thereof being given \^ ^^e order,
as hereinafter mentioned ; and It should ap-
that at all meetings to be held in pea»* by the
pursuance of this act, the said ejitry, or be
'^ . „ jj r shewn auund^,
commissioners shall pay and defray ^i^^^ notice
their own charges and expenses.^ was given of
By sect. 5, " Previously to any the purpae
meeting of the said commissioners, for which the
, , ,j . r.i_- meeting was
to be held in pursuance of this act, r,a\\»^
278
1829.
CAS£S IN THE KINO S BENCH*
the said street, in the parish of St. Cuthbert, Carlisle, in
the county of Cumberland, was in the possession and oc-
cupation of Isaac Bell, as tenant thereof to the plaintiff,
the reversion thereof then and still belonging to plaindff,
subseqaent to snch 6rst meeting as
aforesaid, notice tliereof in writing,
signed by the clerk to the said
commissioners, of the time and
place of every such meeting, shall
be affixed on the Market Cross of
the said city of Carlisle, and upon
such other places or buildings as
the said commissioners shall from
time to time direct or appoint, at
least three days before every such
meeting.*'
By sect. 6, " No act, order or
proceeding of the said commission*
ers, shall be valid, unless made or
done at some meeting to be held
in pursuance of tliis act.*'
By sect. 8, " Fair and regular
entries shall be made in a book, to
be provided for that purpoee,of all
the acts, orders, and proceedings
of the said commissioners, relative
to the execution of this act, and of
the names of the commissioners
who shall be present at the respec-
tive meetings; and one or more of
the said commissioners, who shall
be present at such meeting, or their
clerk, shall always subscribe bis or
their name or names at the end of
the proceedings of the respective
meetings; and all such entries, be-
ing so signed, shall be deemed ori-
ginals, and shall be allowed to be
read in evidence in all causes,
suits, and actions, to u ching any
thing done in pursuance of this act,
and that such book shall at any of
the meetings of the said commis-
sioners, and ai all other reasonable
times, be open to the inspection of
the said commissionert, and of all
persons rated or assessed for the
purposes of this act.**
By sect. 55, " The said commis-
sioners shall and may from time
to time, and at all times, after the
passing of this act, direct and or-
der the present or future pavements
of the footpaths of such of the
streets and lanes within the said
city of Carlisle, aud the suburbs
thereof, (except the footpaths within
the abbey of the said city, and the
precincts thereof) as the said com-
missioners, at any meeting or meet*
ings to be called for that purpose,
shall think proper, to be taken up,
nnd the said footpaths to be raised,
lowered, altered, and repaired, or
new paved, or to be laid with flaf:
or paving stones, as to them shall
seem fit; and the persons to be
appointed by them, for the purpose
aforeswd, shall and have hereby
full power and authority to do
and perform the same; and if any
person shall at any time wilfully
obstruct, hinder, or molest any sur-
veyor or other officer or person
whatsoever, employed by virtue of
this act, in the performance or ex-
ecution of his duty or work, every
person so offending shall for every
such ofience forfeit any sum not
exceeding SO^ nor less thao SLi
provided always, that the breadth
of the flagged or broad pavements
to be laid on any of the said foot-
paths shall not exceed in any oo9
place seven feet.** (Local and per-
sonal acts, cap. Iviii.)
MICHAELMAS TERM, X GEO. IV. 279
vhicfa messuage then fronted and doth front the said street, i8^9.
and had sod of right ought to have a door and passage from
the groDod floor thereof into the said street. Yet defend-
lotvell knowing Su:., but contriving and intending to injure
plaintiff in his reversionary estate and interest of and in the
aid messuage, whilst the same was so in the possession
and occapation of Bell, as tenant thereof to plaintiff, and
whilst plaintiff was so interested as aforesaid, to wit, on 28th
Maj, J828, and on divers &c., wrongfully and unjustly,
without the licence and against the will of plaintiff, raised,
aod caused to be raised, a certain footpath in and upon
tbe said street, on the south side thereof, of great breadth,
U> wit, of &c., and before and in front of the said messuage,
ad extending along the whole front of the same, by placing
aod laying divers great quantities of earth &c. in and upon
the said street, to a much greater height than the said street,
or the soil and pavement thereof, on the south side thereof,
before were raised, and to the height of one foot higher
than the level of the ground floor of the said messuage or
dwelling-bonse, and so near and so close to and against the
mi front of the said messuage or dwelling-house, towards
the said, street, that the aforesaid door and passage of the
iiid messuage or dwelling-house, from the ground floor
thereof into the said street, became and was and still is
greatly blocked up and obstructed, so that the said tenant
and occupier of the said messuage or dwelling-house could
not pass through or go out of the same door and passage
thereof into the said street, nor from thence back again into
the said messuage or dwelling-house, in so free, easy, and
beneficial a manner as he might and would otherwise have
done, and still of right ought to do, but was and still is ob-
structed, hindered and prevented, by the means aforesaid,
from so doing. By means of which said several premises
he the said plaintiff hath been and is greatly prejudiced, in-
jured, and aggrieved, in his reversionary estate and interest
of and in the said messuage or dwelling-house, with the
appurtenances, so in the possession and occupation of the
280 CASES IK THE king's BENCH,
1899* said Isaac Bell, as tenaot thereof to the said plaintiff as
aforesaid, to wit, at &c. Second count, for wrongfully
continuing a raised footpath theretofore wrongfully placed
and raised in the said street. Third count, as the second,
but in respect of a house occupied by another tenant.
Plea : not guilty. At the trial before Hullock, B., at the
last spring assizes, the injury stated in the declaration was
proved, and the book of proceedings kept by the commis-
sioners, which is made evidence by the statute, being called
for by the plaintiff's counsel, was produced by Vfilloughbyy
the present clerk of the commissioners ; from which it ap-
peared that on the Sd of March, 1828, an order had been
made by them for flagging the footpath in question. Hie
following is a copy of the entry: — " City of Carlisle, to wit.
At a meeting of the commissioners, for putting into execu-
tion an act of parliament intituled ^ An act for lighting
the streets Sec.,' held by public notice at the Town-hall, on
Monday, the Sd day of March, 1828: Ordered, that the
footpath leading from the top of Watergates Lane be
flagged, to join the raised pavement made, by Mr. John
Brown, and also that the footpath be flagged from the top
of Watergates Lane to the top of the brow. (Signed)
James Bowstead, clerk." On the part of the plaintiff it
was urged, on the 5th section, that the commissioners had
no jurisdiction affecting footpaths, except at a meeting
called for that purpose, which ought to have appeared on
the face of the book. The learned judge was of opinion
that the objection could not be sustained, inasmuch as the
4th section, which requires notice, is general, — and that as
the beading of the proceedings stated the meeting to have
been held iy public notice, at the Town-hall, he was bound
to presume that notice had been given in the form required
by the act, and that if a special notice of the object of the
meeting were necessary, he would presume that such a no-
tice had been given. He therefore nonsuited the plaintiff,
giving him leave to move to enter a verdict with nominal
MICHAELMAS TERM^ X GEO. IV.
In Easter term last, £. H. Alderson obtained a rule nisi
for a new trial, or for entering a verdict for the plaintiff, upon
three grounds ; first, that the meeting at >vhich the order
was made was not a legal meeting; secondly, that the no-
tice for convening the meeting should have specified the
object for which it was to be held ; thirdly, that the order
was not for ra'ning^ but for flagging the footpath.
281
1829.
Patteson shewed cause. The only question is, whether
the order was made at a legal meeting, so as to give the
commissioners jurisdiction, for if the act complained of was
within the scope of their authority, no action lies for the
consequential damage; Sutton v. Clarke {a). Governors and
Company of the British Plate Glass Manufactory v. Mere-
dith{b). By the 4th section, if the commissioners do not
adjouro themselves, no subsequent meeting is to be held
withoat notice, which must be given in the form prescribed
by the 5tb sectiod. It was contended, that under the 55th
sectioD, it was necessary to state in the notice that the ob-
ject of the meeting was an alteration of the pavement ; and
it was said that there was no proof of any notice; but it is
snboiitted that it lay on the plaintiff to prove the negative.
The declaration states that the defendant, contriving to in-
jure the plaintiff, raised a footpath in the street, whereby
the plaintiff's interest in the house was injured. The action
is brought against the treasurer of the commissioners in
that capacity, which mode of proceeding assumes that the
act complained of was done by the commissioners in pur*
mance of their authority, for if that were not so, the action
should have been brought against the party who did the act.
In Williams v. The East India Company (c), it was held.
(a) 6 Taant. 29; 1 Marsh. 429.
(4) 4 T. R. 794.
(c) 3 East, 192. And see At-
kiun y. Hunter, 2 Lutw. 1359;
12 Vio. Abr. Evidence, (S. b.) 3;
^^ionby V. Tomenon, Sir T. Rayro.
400; Fotocl V. MUhunk, 2 W. Bla.
851, 853, and 3 Wils. 355, 366;
Eefv. r.Rtfgerf, SCaropb. 654;
Smith V. Htaoit, 1 Phillimore, 387 ;
Calder v. Rutherford, 3 Bred. &
Bingh. 309, and 7 B. Moore, 158;
Morris v. Hvnty 1 Chitt. R. 453 ;
Doe d. Jame$ v. Price^ on/e,i. 683.
282 CASES IN THE KING's BENCH,
18S9. that where the omitting to do a particular act would be cri-
minal, the proof lies upon the party asserting such omission.
[Bayley, J. Putting the oil of fitriol on board without no-
tice, would clearly be criminal.'] So here, it would be a
wrongful act to make the order in question, if not made
at a legal meeting. In Williams v. The East India Com^
panjff Lord Ellenborough says that the rule of law is, that
where any act is required to be done on the one part,
so that the party neglecting it would be guilty of a crimi-
nal neglect of duty in not having done it, the law frt-
sumes the affirmative, and throws the burden of proving
the contrary, — that is, in such case, of proving a negative,—
on the other side. [ Bayley, J. A criminal neglect of duty.]
The cases cited by Lord JEUenborough are not of so cri*
minal a nature as the act of putting oil of vitriol on board
without notice, which might have endangered the lives of
every person in the ship. Monke v. Butler (a) was a suit
for tithes in the Spiritual Court, in which the defendant
pleaded that the plaintiff had not read the 39 articles, and
the Court put the defendant to prove that he had not done
it. [Bayley, J. There the rector was in possession, and
unless the possession be shewn to be illegal, it will be pre-
sumed to be legal.] Lord Ellenhoraugh also refers to Lord
Halifax^ $ ca8e{b), where, upon an information against Lord
Halifax for refusing to deliver up the rolls of the auditor of
the Exchequer, the Court of Exchequer put the plaintiff
upon proving the negative, viz. that he did not deliver them,
for a person shall be presumed duly to execute bis office
until the contrary appears; and to Rex ▼. Coombs{c)i
where the defendant having sworn an affirmative, and an
information having been exhibited 'against him, tbe Court
directed that the prosecutors should first give their pro-
bable evidence of the negative, and that the defendant
should afterwards prove the affirmative if he could ; and to
Gilbert's Law of Evidence ^ in which it is said(<f)y that
(a) 1 Roll. Rep. 83. (c) Coraberb. 57.
(h) 13 ViD. Abr. Evidence, 209, (i) Page 148. And see Rex v.
(S. b) 3, and Bull. N. P. 298. Leake, 2 Nev. & Mann. 583.
MICHAELMAS T£RM» XGEO. IV. 283
when the law supposes the matter contained in the issue, 1829.
(ben the opposite party, that is, the party who contends for
t&e contrary of what the law supposes, must be put unto
proof of it by a negative. Here, in order to prove that
the commissioners did this wrongful act, the plaintiff, not
coDteot with shewing that the pavement was raised by the
order of the commissioners, put in their books, which are
made evidence by the 8th section, and which contained the
order in question. This evidence, thus produced by the
plaintiff himself, proved that proper notice had been given.
Iq answer to the first objection, therefore, the defendant
says, that the plaintiff was bound to prove the negative ;
and he further says, that the evidence produced by the
plaintiff himself did, in fact, prove that affirmative, which
he contends the defendant was bound to establish. But
the statute requires a general, not a special, notice. It
does not say that the commissioners shall be convened by a
notice specifying the object of the meeting. The person
who drew this act was aware of the form necessary to be
osed when a special notice was to be required ; for in the
7th section such a notice is directed to be given, and no
similar direction being in the 55th section, no special notice
is required. The legislature did not mean that the notice
under that section should mention the occasion of the
meeting. This brings us back to the question, whether
a general notice was given. The meeting in January broke
vp without adjourning. A subsequent meeting was held on
the 4th of February, at which time an adjournment took
;>lace to the 3d of March, when the order was made. No
person was called to prove the notice of the meeting of the
4th of February, but it appeared by the books that the
meeting held on the 4th of February was adjourned to the
3d of March; that being a meeting by adjournment, it
would be questionable whether a notice was necessary.
The books put in by the plaintiff state, that the meeting
was held by public notice. Bowstead, the clerk, had ab-
sconded, so that he could not be called to prove that the
284
1899.
CASES INT THE KIK6 S BENCH,
provisions of the act had been complied with. But the books
were evidence of all the circumstances stated in them. In
Rex V. Martin (a) the indictment averred, that Best had been
appointed treasurer of the parish of Greenwich, and that
the management of the poor in Greenwich was regulated
by a local act, which provided that notice should be given,
in a certain manner therein specified, of a vestry to be held
on a certain day for the election of a treasurer. To prove
the appointment of Best, there was offered in evidence an
entry in the vestry-book, stating that at a vestry duly held
in pursuance of notice, Best was appointed treasurer for
the year ensuing. Macdonald, C. B. held, that due notice
of the holding of the vestry was proved by the recital in
the vestry-book. That was a stronger case than the pre-
sent, because the Greenwich local act contained no clause
to make the books evidence. If the act complained of
here had been done without authority, the proper person to
be sued would have been the party who did the wrongful
act, and not the clerk of the commissioners. The books
being put in by the plaintiff, he must take them for better
and worse. [Bayley, J. The act was done by a person
employed by the commissioners. Parke, J. The commis-
sioners are not bound to act personally in the execution of
the orders which they make. This is therefore unlike the
case of a sheriff, who, being bound by law to act himself,
is responsible for the misconduct of the person whom he
may choose to employ. Littledale, J. Since the case of
the Governor and Company of the British Plate Glass
Manufactory v. Meredith, actions have been brought against
commissioners for consequential damage, as for not shoring
up a wall.] With respect to the third objection/ the order,
upon the face of it, imports that the footpath was to be
raised. If, therefore, it were open to the plaintiff to take
this point, it would not support the action.
(a) 2 Carapb. 100. And see
Rex V. Manning, 1 Burr. 377;
Rex V. Mayor^ ^, of Uterpeolf
4 Burr. 3^44, third point.
MICHAELMAS T£RM, X GEO. IV.
DundaSf on the same side. The third point was not
Ukeo at the trial. The nonsuit proceeded upon the over-
niliog of the first two objections. With respect to the
first pointy it was admitted that the meeting would have
been good if notice had been duly given. Upon the se-
cood point, the learned judge thought that it would have
been better if a notice had been given signifying the object
of the meeting, in order that the attention of persons in-
terested might be drawn to it ; but he said, that whether
the notice should have been special or not, the entry on
the book was evidence that a proper notice had been
giveo. Graham J the inspector, is not dead, and might
luve been called.
285
1829.
Courtenay, contr^. The plaintiff's house was injured by
the raising of the pavement. This was not an action of
trespass for entering and flagging the plaintiff's land, but
case for the injury to the. reversion. The 77th section of
the act is that under which the defendant must justify.
The plaintiff's first point is, that by the 6th section it
was necessary to shew that the meeting was held in pursu^
ance of the act. The 4th section regulates the meeting.
The book is made evidence of what it contains, that is, of
acts done, but it is denied that it is evidence of all that is
there stated. But supposing the book to be evidence of
every thing that appears on the face of it, it does not prove
that the forms required by the act have been complied with;
it only proves that a public notice had been given. If a
witness had been called, and had said that a public
notice had been given, that would have been insufficient,
for such a notice may have been given by sending a bellman
about the streets. Rex v. Martin is very distinguishable.
There the entry was, " at a vestry duly holden pursuant to
notice."
Then the order is not for the raising of the footpath,
which is the specific injury of which the plaintiff com-
plains. The flagging alone would have occasioned no in-
jury. If the case had been within the act, the plaintiff
286
1889.
CASES IN THE KINO'S BENCH,
would have had no right of action, his remedy would have
been by appeal within six months ; but he sees an order for
flaggings and does not suppose that any appeal was neces-
sary. [ParktfJ. That would have been a very good argu-
ment if the action had been brought against the party who
did the act.] The commissioners forbade us to interfere.
[Parke^J^ That is, certain individuals took upon them-
selves to forbid you. That might give you a remedy as
against them.] If the plaintiff had indicted the parties for
what they have done, he must have shown them guilty of
criminal negligence. But here, the plaintiff is in possession,
and it lies upon the party who intermeddles with that pos-
session to prove his right so to do. [Parke^ J. It does not
appear that any person had a right to be present except
the commissioners ; but that does not remove the plaintiff
from his argument, because if he had had notice of the
object of the meeting, he might have petitioned, and he
may have been lulled into security by the entry in the book.]
£. H, Alderson, on the same side. Public notice is
necessary after an adjournment. Taking the whole toge-
ther, it does not appear that due notice was given. [Bay-
letf, J. Did you produce any evidence that notice had not
been given ? Parke, J. In Rex v. Haslingjield{a) the rule
is stated to be (b), " that where a person is required to do
an act, the not doing of which would make him guilty of a
criminal neglect of duty, it shall be intended that he has
duly performed it, unless the contrary be shewn." Would
it not be '' a criminal neglect of duty" to hold a meeting
without due notice in this case, just as much as in the case
of commissioners of inclosure in Rex v. HaslingfieldT]
Armstrong, on the same side. Here, an act injurious
to the plaintiff, is done under the order of the commission-
ers. The defendant was therefore bound to shew clearly
that the commissioners were justified in making the order.
Cur. adv. vult»
(a) 2 Maule & Sel. 558. {b) Ibid. 561.
MICHAELMAS TERM, X GEO. IV,
On a subsequent day the judgment of the Court was
proDoanced by
BayleTi J. in favour of the plaintiff, on the ground,
tbat as the act required a special notice to be given, and
the eutry in the book was in the form usual in the case of a
mere common notice^ a doubt was raised whether the com-
musiooers had done their duty by giving the proper notice, —
Old that the defendant was therefore bound to prove that
tbej had done so.
Rule absolute to enter a verdict for the plaintiff.
287
1899.
Price v. Isaac Edmunds.
Assumpsit, by payee against maker of two promissory ^„'jP^"^^P^l;
notes for 150/. each, payable at three and four months from gnve their pro-
ibe 3rd July, 1827, tried before Park, J., at the Gloucester "o 'a'^C.'iues
city spring assizes, 1829. The note produced purported to ^n ""^ ^fi^*:^
be the joint note of the defendant and Abraham Edmunds, payable by in-
Thc defendant had siirned the note as a surety for his bro- Jtalments, the
r« • •«• • J » » first instalment
ther Abraham. The plamtiff havmg sued Abraham, had, to be paid on
on 28th March, 1828, just before the assizes, accepted a Ihattif ^itlT
cognovit from him, payable by three instalments ; 70/. on C. might have
the twenty-eighth of April, 70/. on the twenty-eighth of jjj^lment'in
May, and the residue on the twenty-eighth of June, with the action if
liberty to issue execution for the whole in case of default, had been gi-
Had no coirnovit been taken, and the plaintiff had obtained ^^"> ^*^^.
® . power to i3sue
a verdict in that action, he could not, according to the execution for
practice of the Court, have issued execution until the JiebruTcase
of default.
A. makes default at the day: Held, that fi. is not discharged (a).
Whether JB. would have been discharged if the first instalment had been duly paid,
tod (be further instalmeots had thereby stood deferred to a day subsequent to that on
whicfa final judgtaDeDt coold have been signed if no cognovit had been given, quare.
(a) 5«2oi<l« port, 292 («).
288 CASES IN THE KING's BENCH,
1829. twenty-ninth of April (a). Defaalt was made in the pay-
ment of X}ie first instalment.
Under the direction of the learned judge a verdict was
found for the plaintiff, leave being reserved to move to
enter a nonsuit. A rule nisi having been obtained.
First point: Campbell now (&) shewed cause. This rule ought to be
o ime given. Jigdjarged on two grounds. First, no time was in fact
given by this cognovit. The first instalment was payable
on the 28th of April, and if any default was then made, the
whole would become due. Now, Easter term, 1828, having
begun on Wednesday the 2dd of April, the plaintiff, if he
had tried his cause at the assizes, could not have had exe-
cution until Monday the 28th, or Tuesday the £9th of
April ; and as the condition was not complied with, the
parties are in the same situation as if the further extension
of time had never been granted. [Littkdale, J. I rather
think we must look to the time when the cognovit was
given, without reference to what took place afterwards.}
The condition was not performed, and therefore no time
was given. It is perhaps unnecessary to inquire what the
effect would have been if the first instalment had been
Second point : paid on the 28th April. But, secondly, supposing time
time imniate- ^^^ '^^^^ given, the nature of the contract which this de-
^^^' fendant entered into, by signing the promissory note, was
such as to entitle the plaintiff to give time to the other
maker, without discharging the defendant. The ruling of
Lord EUenborovgh, in Laxton v. Peat(c), is certainly
against this position ; but this case has often been cited,
and as often overruled: Ragget v. Axmore{d), Fentum v.
Pocock (e). So, in the earlier case of Dingwall v. Dan-
st€r(f), it was said by j4slihurst,3; and Buller,J., that
(a) The sixth day of Easter Change, partie 1, chap. 6, No.
term. 177, 178.
(b) 13th December, 1899, in the {d) 4 Taunt. 730.
Outer Court. (e) 5 Taunt. 198, and 1 Maiab.
(c) 2 Campb. 185. And see 14.
Pothier, Traits du Contrat de (/) 1 Dough 347.
MICHAELMAS TERM, X GEO. IV.
aotfaing but an express agreement can discharge an ac-
ceptor; and in Kerrison v. Cooke (a), Gibb8,C.J., was of
opioioD that the acceptor was not discharged by time given
to the drawer, for whose accommodation the acceptance
had been given. In Anderson v. Clef3ela7id {b). Lord
Mamjield said, " The acceptor of a bill, or the maker of a
Dote, slwajs remains liable." [LiUkdale, J. No time was
given there.] But the proposition that an acceptor is
absays liable was laid down without qualification.
289
1899.
Russell, Serjt., and Busby, in support of the rule. Time
vas clearly given. With regard to Raggett v. Jocmore, the
rule is correctly stated on the other side, provided it be
onderstood to refer to the rights of third persons, and not
to tnmsactions between the surety and the party who gives
the time. It is not necessary here to decide whether an
acceptor of an accommodation bill is to be considered as
a mere surety, as in Laxton v. Peat{c\ and in Collott v.
Ha^h ((/), which is to the same purpose. Fenton v. Po^
cock, if attentively considered, is in favour of the defendant.
[By ley y J. Does not the maker of a note, by signing the
Histroment, make himself absolutely liable at all events?
If you had wished that the defendant should be merely a
surety, you should have made the defendant payee of the
iiote, and his liability would have been only a collateral
liability upon his indorsement Parke, J. Have you any
case where the party was allowed to shew that he stands
m a different position from that in which he would appear
to be on the face of the bill ? Here, you are seeking to
shew that the contract expressed in the note is not the
real contract between the parties.] If a bill or note be
made payable at a certain day, you are not allowed to say
that there was an agreement between the parties that the
bills shouki be renewed, but you may shew, as between the
(a) 3 Cunpb. 362.
(i) 13 East, 430, n.
VOL. V.
(c) SuprH, 288, (c).
(d) 3 Campb. S81.
I
L
290
1899.
PRICB
Edmunds.
CASES IK THE KINGS BENCH,
immediate parties, that no value was received, thoagh the
bill is expressed to be drawn for value. In the case of a
bond, it is competent to a co-obligor to shew that the
plaintiff was merely a surety. [Bayley, J. The contrary
was held in Davey v. Prendergrass (cr). LiUledale, J. In
Rees V. Berrington (b), it was held that the surety was eati-
tled to relief; but that was in equity.] Garrett v. Jull(c)
shews that the Court may look to see who is the principal
and who the surety. [^Bayley^ J. That case goes no fur<
ther than this, — that if you receive from the principal a
smaller sum in lieu of the whole, you cannot sue the surety
for the residue, as he might be entitled to say*-I have aright
to be put in a situation to sue my principal. So, if you sue
one of two partners, and discharge the partus whom you
sue.] It must be admitted that if the Court think that the
effect of the agreement now set up is to alter the written
contract, the defence cannot be supported. [Boylry, J.
Suppose a joint liability to exist, as in the case of two part-
oers, one of whom obtains time,— >will the other partner be
discharged ? Parke, J. Shewing the party to be a surety
does not shew that he is discharged from the contract by
which he engaged as a principal.] The cases as to the dis-
charge of sureties are collected in a note to Maltby ▼.
Carstairs {d), Laxion v. Peat (e) is still law. In Ragget
¥• Axmore, it was not made out in evidence that the bill
was accepted as an accommodation bill. The cases there-
fore are not parallel in two respects: first, the plaintiff
there, when he took the bill, was not aware that it was an
accommodation bill. Indeed, it did not there appear that
the defendant knew it at any time. So, in Fenttm v. Po'
cock, the defendant did not know that it was an accoramo-
dation bill. In Carstairs v. RoUiston {/), Gibbs, C. J.,
flays that he would give no opinion upon this point This
(a) 5 B.& A. 187; 9 Chit. 336.
(b) 9 Vesey^ jun. 540.
(c) B. R., M. e2 Geo. 3, Se!w.
N. P. 7th cd. 377.
{d) Ante, vol. u 568(a).
(0 Supnl,a88(c), S89(c).
(/) 5 Taunt. 55t; 1 Marsh.
207.
I
MICHAELMAS T£RM, X GEO. IV.
WIS after the decision of the cases of Ragget v. Axmort
aod Fenion v. JPocock, The point may be considered as res
iDlegre. [Bayleyj 3. Might not a party be continually sur*
prised by evidence to shew that the defendant was merely
a surety, and that he had notice of that fact, although in
realily no such suretyship ever existed ?] A party may be
surprised vrith false evidence in any case. After the giving
of this cognovit, the plaintiff could not have received the
debt from the surety without a breach of the contract, for
iodolgence entered into with the principal. \^Bayley, J.
Suppose the surety willing to pay, his right so to do would
oot be superseded.] It would be a fraud upon the prin-
eipal. [Parke, J. It is entirely a new case.] Every ac-
ceptince purports to be an acceptance for value. No
person ever thought of accepting a bill, expressing in
such acceptance that it was for the accommodation of the
drawer: — Yet, in an action by an indorsee against the
drawer, it is competent to the former to excuse himself
from presentment for payment and notice of dishonour, by
sbewiog that the bill was accepted for the accommodation
of die payee. Again, an accommodation acceptor may sue
the drawer for any damage he may have sustained by rea-
son of the bill's not having been taken up, when it became
doe, by the drawer. English v. Darley(a), Claridge v.
Aa//ofi(6).
Cur. adv. vult.
Batley, J., now (c) delivered the judgment of the
Court. — ^The first question in this case is, whether the de-
fendant is at liberty to shew that he was only a surety. If
l>e is at liberty to do this, then he contends that time was
given to the principal, and that he is thereby wholly dis-
charged. The first question, namely, whether the defend-
wt ia at liberty to deviate from the form of the instrument
(«) 2 Bos. & Pull. 62. (c) 15th Decembor, 1839, in the
W 4 Maole & Selw. 226. Outer Court.
U2
i
V
292
1839.
CASES IN TH£ KING S BENCH,
which he has signed, would render it necessary to decide
upon the conflicting cases of Laxton v. Peat^ Garrett v.
Ju/l, &c. I reserve to myself full power of considering
that point when it shall become necessary. But we are all
of opinion that the foundation here fails. It is said that
time was given to the principal by the cognovit, the terms
of which were to pay 70/. on the ^8th of April, with a pro-
viso for giving further time for the payment of the remain-
der of the debt, if the 70/. were paid on that day. Time
therefore was given, at all events, until the 28th April.
Whether any further time should be given depended upon
the contingency of the payment of 70/. on that day. The
first instalment was not paid. The bargain was, to surcease
until the 28th of April. Then we are to consider what was
the fair intent of that bargain. The principal debtor bad a
right to keep the plaintiff* out of his money until the 29th
or the 30th of April. He had pleaded the general issue;
the effiect of which was to prevent the plaintiff obtaining
finaf judgment until the fifth day of the folio wii^g term.
This question has frequently arisen as between principal and
bail, though not in the form in which it was here presented
to the Court. Here is a defendant, who has a right to
postpone {a) the payment till a certain day ; but he says he
Diatinction be-
tween time
given to the
principal debt-
or, in cases
where the surety
is immediately
liable, and time
given in cases
where the liabi-
lity of the sure-
ty does not
arise until the
expiration of
jucb time.
(a) Where the time given to a
defendant, by cognovit or otherwise,
does not extend beyond the period
at which final judgment could have
been signed in case no time bad
been given, neither the position of
the bail (whose liability cannot
attach until final judgment has
been signed and a ca. sa. issued,)
with respect to the plaintiff, nor
that of the defendant cowards the
bail, is in the slightest degree
altered or affected. Whether a
cognovit be given or not, the
plaintiff cannot^ by attackiog the
bail, set the bail in motion against
the defendant. The case would
be the same with respect to aoy
other surety, whou liabUUtf did
not attach before the day on wkk^
by the terms of the cognovit, tkt
plaintiff would be at liberty to pro-
ceed against the defendant. But
where the default for which the
surety is answerable is complete
at the time the cognovit is taken,
or at any time before the daj to
which the payment is postponed,
the position of the surety with re-
spect to the plaintiff, and of the
defendant towards the surety, ap-
pears to be altered in the very
^sk f
tlsi;!
•. T.
It:.?
|>. •
t:.'!
MICHAELMAS TERM, X GEO. IV.
will withdraw bis plea if the plaintiff will not put him in a
wone situation, but will give him till the 28th of April;
He bad a right to indulgence up to that time. It was
oolj that which the defendant had a right to insist upon ; a
benefit which be possessed and had a right to keep. It was
therefore not a giving of time to the principal.
LiTTLEDALE, J. — I am of Opinion that this was not
ibat sort of giving of time which will discharge the defend-
ant. If, when the note became due, the bolder had en-
tered into an absolute engagement to give six or twelve
months, the case would have been very different. Here,
an action is brought, and there is a proposal of a cognovit.
If the time specified in the cognovit for the payment of the
money is earlier or the same as that on which the payment
woald have otherwise been enforced, it is all right ; for
why should the creditor be put to the expense of trial and
execution, when he can obtain the same objects without.
Here, the principal had shewn his intention of taking that
293
1829.
poiDt which forms the ground of
the discharge of the latter, viz.
that if the surety were not dis-
diarged, it would be competent
to the plaintiff to enforce imme-
£ate payment from the surety,
who would have his remedy over
Bgaiosc the defendant before the
fogmmit became due, in violation
of the terms of that cognovit. <* If
a bolder e^ter into an agreement
with a prior indorser, in the mom-
ioft not to sue him for a certain
period of tiQie, and then obliges a
subsequent indorsee, in the even-
ing, to pay the debt, the latter
must (may) iromediateijr resort to
the very person for payment, to
whom the holder has pledged his
iaith that he shall not be sued.**
Per Lord Eldon, C. J., in Eng/isA
T. Barley, 2 Bos. & Pull. 62.
In the principal case, if the cog-
novit given by Abraham Edmunds
did not discharge bis brother
Isaac, it would have been compe-
tent to Pricey the plaintiff, to ar-
rest Isaac the hour after the cog-
novit was given; and if Isaac paid
the money, (which it would be bis
duty and interest to do,) it would
have been competent to him to
arrest Abraham by return of the
mail from London ; and Abraham,
who had waived his defence to
the action in order to purchase his
liberty till the 28th April, would
find himself in custody on the 30th
March, — precisely as if no cogno-
vit had been given, and no indulg-
ence had been stipulated for as
the price of his submission in the
action.
294
1899.
CASES IN THK KING S BENCH,
time which the forms of the law would have allowed him
to take, whether the plaintiff had assented or not Here
time was not given, because the condition was not com*
plied with. Though this is not precisely the s^me as the
case of bail, we ought not to enter into nice distinctioDS.
Bail are not discharged if the same time is given which the
principal would otherwise have been entitled to.
Whether, upon an instrument in this form, thie defendant
could set up such a defence, is a question of more difficulty
and of great importance. Upon this point there is a dif-
ference of opinion upon the bench.
Parke, J. — I concur in thinking that the defendant is
not discharged, because no time was given. Bail would
not be discharged under such circumstances.
Upon the other point there is a difference of opinion in
the Court. I have already intimated a strong opinion
upon it I think Fenton v. Pocock very good law.
Rule discharged (a).
(a) And tee Bank rf Irdand r,
Bererfordy 6 Dow, 854; Dunn v.
She, Holt, N. P. C. 399; EUiMon
V. DtxeU, Selw. N. P. 7ch ed;
355; EngUih v. Barley^ % Bos.
& Pull. 61, 3 Esp. N. P. C. 49,
and Bayley on Bills, 159; Ex
parte Gifford, 6 Ves. 807 ; Gould
V. Robion, 8 East, 576 ; Harriton
V. Courtauid, 3 Barn. & Adol. 36;
Hewet V. Goodrich, 8 Carr. &
Payne, 468; HUl v. Read, DowL
k %1. N. P. C. 26; Jay ▼. War-
ren, 1 Carr. & Pajne, 532; Lee
V. Levy, 6 DowL <& RyL 475, 4
Barn. & Cressw. 390, 1 Carr. &
Payne, 553, 675 ; NtMbei v. SmUk,
S Brown, C. C. 570; Orme t.
Young, Holt, N. P. C. 84; PAii-
pot V. Bryant, 4 Bingh. 717, 1
Moore & Payne, 754, 3 Carr. h
Pajrne. 346 ; PUe v. Ford^ S Chit.
Rep. 125; Pring ▼. Clarksan, 3
Dowl. & R^rl. 78, and 1 Bam. &
Cressw. 14; 7^»£lri/ ▼. Brown, 1
T. R. 167 ; Withali ▼. Masierman,
9 Campb. 179 ; Sievens ▼. I^nch,
ibid. 333, and 12 East, 38.
MICHAELMAS TERM, X OSO. IV.
Stannard 17. Harper.
tiSE. The second count charged the defendant with Slanderous
kiviflg slaudered the plaintiff by defamatory words, ad- ]^s"^d^'J2d "^
dressed by the defendant to the plaintiff in the second to the plaintiff
persoo. At the trial before Vaughan, B., at the Suffolk i^ion.Tr"*
spring Maizes, 1829, the words proved were words defama- "<>* supported
,..,.._ , . , . .11 1 ^y evidence of
10701 the plaintiff, used m his presence, but addressed to words spoken
one J. S.,and in which the plaintiff was spoken of in the g^.^'"* '^J^®
tiird person. A Terdicl was found for the plaintiff, the though so
leinied judge giving leave to the defendant to move for p?^|^*"ce^ **"
kive to enter a nonsuit* jP. Kelly having accordingly ob-
iuoedaiule,
Storhf Serjt., now shewed cause. As the plaintiff was
ptwii when the defamatory charge was made, the change
^pmon does not vary the sense. There can be no sub-
•Untial difference between saying to A. — " You are a
^ef/*and saying to B. of A., in the presence and hearing
ofJ."" He 11 a thief/'
Pabke, J. — ^The rule is, that you must prove the pre'
^ words laid in the declaration ; not indeed all the
vords which are charged, but so much of them as will
constitute a sufficient cause of action.
liiTTLEDALB, J. — No distinction can be made as to
vlttther the party, of whom the words are spoken, is pre*
Kntor absent. It would be introducing quite a new rule.
Batley, J., concurred.
Rule absolute (<f)«
(•) Contii per Lord Hmrdwkkef have sUted the law of defamatioB
CJ^ at nisi prias, in NeUon v. in the manner in which be is
IHne, Cas. temp. Hardw. 305. there represented to have done.
B«t it Mens to be impossible to And see Cro. £1. 645, 857 ; 3
bctieve that the learned judge can Mod. 72 ; 8 Salk. 601 .
CASES IN TH£ KING S BENCH,
Borough v. Moss, Gent.| one &c.
A debt doe ASSUMPSIT on a promissory note, bearing date I3tb
sola, cannot February, 1826, whereby the defendant promised lo pay
be set oflf jQj^n Fearne, by the name of Rachael Feame, or order,
against a note ,.,. - t e • ju
given to the \50L, With mterest, at nme months after notice, and by
rii^Vff thT*^ ^^^^ jFeame indorsed to the plaintiff. Plea: non assump-
husband elect sit. At the trial before Burrough, J., at the last Derby
SJ)te'*M his^se- «P"ng assizes, the following facts appeared:
▼eral property. Rachael Harrison^ the holder of a promissory note for
sues upon it in 200/., made by one Birchj having married Feamey Feame
bis own name, requested the defendant to enforce payment from Birch,
Or indorses -.., , ^ , . , V.
it over to a The defendant, as an inducement to Feame not to sue
*5uiS*U?°* ^*''^*' ^^^ ^*' ^^^ client, paid Feame 50/., and made and
immaterial delivered to Feame the note in question for 150/.
joinVin the ^^ April, 1826. Feame gave notice to the defendant to
indorsement, p^j off the note at the end of nine months,
debt could January, 1827. The defendant paid 50/. with the interest
have been set then due.
off man action ...
brought on the March, 1827. Feame and his wife indorsed the note to
busband'and ^^® plaintiff, who paid Feame the amount then remaining
wife, qyare, due for principal and interest.
of an over-due ^^^ defendant gave evidence of two professional bills,
bill or note, is one for 51/., due to him from Rachael Harrison, dum sola,
affected by all , , ^ «. i. t^ i • i^.
equities at- aud another for 28/. from Feame himself.
taching to the rpjjg learned judge was of opinion that these sums could
bill or note ; .
but not by a not be set off, and directed the jury to find a verdict for the
^^l have^ plaintiff for 100/. and interest ; but gave the defendant leave
been available to move to reduce the verdict, if the Court should be of
ij^rser.* opinion that either of the bills of costs ought to have been
allowed. A rule nisi having been obtained,
Balguy now showed cause. This note operates, b point
of law, as if it had been made payable to Feame only, and
his wife had not been noticed; Barlow v. Bishop {a), BufL
(o) 1 East, 432.
MICHAELMAS TERM, X GEO. IV.
M P. 1799 Boehm v. Stirling (fl). At the time when this
note was indorsed, there was nothing upon the face of it
denotbg that it had been reduced, either by payment or by
let-off, beyond the sum of .50/., which the defendant had
ptid in January, 1827*
^'. JL Clarke, on the same side. There is no case in
iriiich it has been held that the indorsee of a bill or note
takes it subject to any right of set-off' which may have ex-
isted against the indorser; Charles v. Marsden{b). In
Broivn v. Davies (c), the note had been paid ; Boehm y»
&tr/tRg is to be taken with reference to a question of
fraud; Tinson ▼. Francis {d), was the case of an accommO'
dation note. In all the cases in which this defence has pre^
vailed, there has been something to affect the note itself.
The latest case is Colknridge v. Farquharson (e). In that
case, a bill was indorsed over by a party with whom it had
been deposited merely as a security, and the only point de-
cided was, that the books of the indorser were inadmissible
to shew the state of the accounts between him and the
party by whom the bill had been deposited. The question
there raised was, not as to the point of law, but as to the
mode of proof. The objection would apply to notes payable
on demand. [JBayley, J. No, it would be laches to keep a
banker's cheque.] No notice of set-off was given. [LtV-
tltdale, J. That only applies to actions between the parties.]
Coppin V. Craig (/) shews that such a set-off may be pleaded.
[Uttledakf J. It may be pleaded, but it would be admis-
sible in evidence under the general issue.] Secondly, if the
defendant is to be placed in the same situation as if he had
pleaded a set-off, he ought to have given some notice of hia
intention to set up these cross demands, and not to have
taken the plaintiff by surprise.
(«) 7 T. R. 42S. (d) 1 Campb. 19.
(4) 1 TauDL 2^4. («) 1 Stark. N. P. C. 259.
(c) 3 T. R. 80. (/) 7 Taunt. 243; 2 Marsh. 501.
BOROUGB
298 CASES IN TH£ KING's BENCH,
1899. AdamSf Serjt. contri. The statutes of set-oflf may always
be evaded by the holder of a note, if by indorsing it over,
""vr^" after it has become due, a right of action can be transferred
Moss. iQ iii^ indorsee discharged of the set-off. Husband and
wife may sue jointly on a note given to the wife duriog
coverture, Philliskirk v. Pluckwell (a), and if the husband
had died first the right of action would have survived to her,
and the debt due from her before marriage might have been
set off* And if Fearne had sued in his own name, either
during the coverture or after his wife's death, the debt due
from him might have been set off. If Ftame had brought an
action in the joint names during the coverture, the debt due
from her before coverture might have been aet off, and also
the debt due from him, inasmuch as the money recovered
in such joint action would enure to the benefit of the
husband.
Baylby, J. — I am of opinion that the defendant has no
right of setoff in respect of the 5 1 /. The note being made
payable to the wife, it was optional with the busband to
treat it as jomt property or as his own exclusively. If be
had elected to treat this note as their joint property, a sett-
off in respect of the 5lL, due from her before coverture,
might perhapa have been let in; but by indorsing the note
over, he has elected to treat it as his several property, and
die bill of costs due from the wife before coverture cannot
be set off. With respect to the 28/., I wish to consider the
case further.
LiTTLBDALE, J. — If Ftamt had brought an action on
the note in his ovni name only, no debt could have been set
off except that due from Fearne himself. And if a joint
action had been brought, I do not think it olear that the
51/. could have been set off.
{a) 9 Maule & Selw. 393.
MICHAELMAS TERM, X GEO. IV* 299
Pabke, J. — ^Ao agreement, %q which the holder is a i8f29.
partj, affecting the note, creates an equity which attaches
itself to the note, and is binding upon any person who takes it
after it is over-due. It does not however follow that a right
of le^^ would also be available against such an indorsee.
If aoj set-off can be claimed, it can only be hi respect of
tbe 28/., the husband having 4:learly elected to treat the note
as being his own, and not the joint property of himself and
wife.
On a subsequent day, Bayley, J. saic^ that upon dis*
OisaiDg the pobt as to the 28/., with Lord Teaierden and
tbe two other judges, they were all of opinion that the in-
dorsee of an over-due bill of exchange or promissory note,
was affected by such equities only as attached on the bill or
note itself, and not by claims in respect of collateral cir-
Cttmstances (a).
Rule discharged.
(a) QHiere, if tbe indorsee had notice of tbe matter of set-off.
Sertante and others v. James.
Covenant. The first coi^t stated, that by articles a covenant
of agreement, made 30th August, 1815, between defendant q^^^J®/^^"
ol tbe one part, and Elizabeth Servante, £. James, M. Ste- sbip, and tbeir.
phens, T.Brilton, and J.BuU, the plaintiflfe, W. Bakery^^^f^^
71 Read, R. Russell, and W. Slocombe, since deceased, of ecuton &c.,
tbe other part, after reciting that the defendant was com- ^ i^rue^ibr^'
mander of the Lady Hobart, employed in the service of the ^jj? hire of tbe
Postmaster-General, and that the plaintiffs and fV.B., T.R., of goods and
A. K,, and fV. S., were owners of the vessel in the shares ^?^ compensa-
. , tion for tbe
set opposite their names, the defendant, for hamself, his use of tbe
sbtp's tackle
&c, to tbe covenantees, tbeir and every of their several and respective executors &c.^
at a certain banking-house, in such parts and proportions as were set against their
several and respective names, is a several covenant, and cannnot t>e sued upon by tbr
covenaotecsjomtly.
300
1829.
Servante
V,
James.
CASES IN THE KING*S BENCH,
executors See, covenanted with the several other persons,
who should execute the articles, and their several and re-
spective executors &c.» that during so long time as the
vessel should be so employed, and he should continue to be
commander thereof, he the defendant would pay unto the
owners of the vessel| and to their and every of their several
and respective executorsi administrators and assigns, the
yearly sum of 480/., or such other sum as should be allowed
to the owners of the vessel by the Postmaster-General for
the time being, for the hire of the vessel, to commence
from 25th August then instant, and to be paid to them at
See., and In such parts and proportions as were set against
their several and respective names, and would pay half-
yearly, at 8cc., unto the owners, and to their several and
respective executors &c., one-third part of the freight of all
coin 8cc., for which freight should be paid, as should be
conveyed in the vessel, during so long time as she should
be so employed, and he should continue commander. And
it was thereby mutually covenanted by and between the
parties thereto, that when the vessel should be discharged
from such service, or the defendant should die, give up, or
quit the vessel, the cables &c. should be appraised by two
sets of tradesmen, one set to be chosen by and on the be-
half of the defendant, his executors &c., and the other by
and on the behalf of the owners, their executors &c., and
the difference of value between such appraisement and the
original cost of such cables 8cc., or the cost of the like
articles, if to be purchased new at the time of such appraise-
ment, should be made good to the owners, their executors
&c., according to their shares and proportions aforesaid, by
the defendant, his executors &c., which difference the de-
fendant thereby covenanted to make good and pay accord-
ingly, immediately after such appraisement. Averment:
that the plaintiffs and the deceased subscribed their names
and affixed their seals to the articles in manner following;
that is to say, R. J., H. S., W. B., T. B., T. R., R R.^
MICHAELMAS T£RM« X GEO. IV. 30L
ukI J. B.f as respectively being each the owner of one 1899.
liiteentb share of the vessel, the said W, S. as the owner
of two siiteenth shares, and the said E. S. as the owner of
six siiteeoth shares ; that the vessel continued to be em-
ployed in such service from 25th August, 1813, to 8th
October, 1828, during which time the defendant continued
to be commander ; that the Postmaster-General, during all
that time, allowed 480/. for hire &c/
Second count, for non-payment of a penalty of 1000/.
vpon non^performance of the same covenant Breaches
vere assigned in non-payment of the money allowed for
liire of the vessel, of one-third part of the money paid for
freight of coin &c., and of the difference between ttie valu-
ation of the cables &c., when defendant gave up the com-
maod, and the original cost.
General demurrer, — and joinder.
Campbellf in support of the demurrer. The plaintiffs D«c- ^ i-
baTe declared jointly upon alleged breaches of three cove-
nants; but as by the terms of the articles all moneys now
sought to be recovered are made payable to each of the ship-
owners who should execute the articles, no such joint action
can be maintained. The question who are to be plaintiffs
in an action of covenant, must be determined by the nature
of the interest of the parties suing. The cases are collected
with great care by Seijt. Williams, in his note to Eccleston v.
Clip$ham{a). It is immaterial whether the language of the
covenant is joint or several. It is true, that in the case of
t several action against one of two joint covenantors, the
omission of the other covenantor can only be taken advan-
tage of by plea in abatement; but in the case of covenantees
suing, there is no option; the form of the action must
pursue the legal interest in the subject-matter of the cove-
nant. If the action may be brought by three, it cannot be
maintained by one. Here, a separate action might have
been maintained by each ship-owner. It was originally
(<i) 1 Wms. Saund. 154, note (1).
:302
1689.
CASES IN THE KING's BENCH,
contemplated, that all the owners might possibly not eie»
cute the articles. The defendant therefore covenants to
pay them in such parts and proportions as are set against tfteir
several and respective names. Suppose all the ship-owners
to be paid except one, it is clear that such unpaid owner
would have a separate and distinct interest. The right
accrues to each owner, according to his share in the vessel*
The covenant is with their respective executors^ administro'
tors and assigns, whereas if the right of action is joint, it
would survive, and the executors and administrators of ihe
deceased covenantees would take nothing. The plaintiffs
must contend, that if all had been paid except one, and that
one had died, his executors could.not sue. Owston v. Ogk{a}
is directly in point, and differs no otherwise from the present
case than in this, that the contract there was not under seal.
But that circumstance is immaterial with reference to the
present question. The law as to joinder of parties is the
same in assumpsit as in covenant. That was an action for
not accounting and dividing the net profits. Lord EHen-
borough says, ** each of the adventurers was to derive from
the ship's husband the account of the ship's proceedings;
what had been disbursed, and what she had earned ; in order
that he might have the means of ascertaining the amount
of his own share. Is it not then reasonable that the cove-
nant to account should be several ?** [Bay ley, J. In Owston
V. Ogle it was held, that the action might be several. In
Ponds V. Smith (6), Abbott, C. J., in delivering the judg-
ment of the Court, said, '* I take it to be quite settled, that
where there is a joint lease by two tenants in common,
reserving an entire rent, the two may join in an action
brought to recover the same; but that if there be a sepa-
rate reservation to each, there must be separate actions (c).
(a) 13 Easty 538. in 1 Dowl. & Ryl. 491, the wor^s
(b) 5 Bam. & Alders. 850, and are given thus: ** I take it lobe
1 Dowl. & Ryl. 490. quite settled, that where there is a
(r) 5 Bam. Bt Alders. 85 h Bat joint lease by tenants in common,
MICHAELMAS TERM, X GEO. IV.
/Mf, J. The question is here upon the construction of
this particular covenant. Littledale, J. In Collins v. Proth
ur{a) the Court held, that under the words ** for which
paymeDt we bind ourselves, and each of us for himself, for
the whole and entire sum of 10/. each" the parties were
lisUe separately, but not jointly.']
303
1829.
£, H, Jlderson, contrd. In this case the interest in the
coveaant is joint. The defendant does not covenant to
pay separately to each, but to pay the whole into a bank,
on the joint account of the covenantees. [Parke, J. In
order to comply with the covenant, must not the defendant
psj the money into the bank to the credit of the respective
owners, according to their respective shares and interests ?]
It would be a breach of covenant if the portion of Jl. were
paid in without the portion of B. The interest in the cove-
nant is joint. Then the question arises, whether it is not
optional here to sne jointly or severally. There is nothing
in Owston v. Ogle to shew that a joint action would not
have lain.
Bayley, J. — To make this a joint covenant, it would
be necessary to strike out the words " according to their
respective shares and proportions." The defendant might
pay one share in at one time, and another at another, spe-
cifically to the use of a particular owner. If the defendant
paid one man in full, the remedy as to the residue would
be to be enforced by the parties who had not been paid.
Each sustains a separate and independent injury. By the
terms of the covenant, the defendant is not to pay the whole
to the surviving covenantees.
reserfing a joint and undivided
reoc, they may both join in an
action for the renty^Hmd the same
frndpie teems to govern where the
letae is joint and the rent is reserved
separalefy,'*
(a) 3 Dowl. & Ryl. 112, and 1
Barn. & Cressw. 68S.
304 <:as£S in TflE king's bench,
1829. LiTTLBDALEy J. — ^Though the Covenant purports to be
with the ship-owners jointly, its legal operation must ensue
the nature of the interest. The rule is correctly laid down
in Eccleston ▼• Clipsham (a), and the notes — in which the
cases are collected. Supposing one of the covenantees,
who had been paid his sixteenth share, had survived the
rest, could it have been contended that he would be the
person to sue for the share due to the representatives of the
deceased covenantees ?
Parke, J. — It was settled in Slingsby^s case (6), that
*' where it appears that every one of the covenantees hath or
is to have a several interest or estate there, when the cove-
nant is made with the covenantees et cum quolibet eorum,
these words, cum quolibet eorum, make the covenant
several in respect of their several interests (c)" Here, the
interest was clearly several. The money ought to have
been paid in to the separate credit of each part-owner (d).
If it had been paid to one joint account at the banker's,
it could not have been drawn out without the concurrence
of all the parties. This inconvenience it was probably the
object of these articles to avoid.
Judgment for the defendant (e).
(a) 1 Saund. 154, and note (1), words ^ et cum qaolibet eorum"
in the fourth and fifth, and note (a) appears to be immaterial; vide
in the fifth edition. Etvidetupri, note(c) to 1 Wms. Sauod. (fifth
301. edition) 155.
(b) 5 Co. Rep. 18 b. (J) Vide 1 Nev. & Mann. 594,
(c) But as tlie right of one or of note (a).
ieveral parties to bring an action (e) And see Jtatice Windham's
of covenant, must in all cases en- case, 5 Co. Rep. 7 b.; Broamii^
sue the nature of the estate or v. BeitoH, Plowd. 140 b.; Lee y.
interest of the covenantees, the Nixon, 3 Nev. & Mann. 441.
insertion or the omission of the
MICHAELBIAS TERM, X GEO. IV.
305
Harper v. Hayton, Esq.
Assumpsit for money had and received against the late
sheriff of the county of Hereford. At the trial before
Park, J,, at the Hereford Spring Assizes, 1829| the fol-
lowing facts appeared :
The plaintiff having entered into a recognizance in 40/.
coDditioned for her appearance at the quarter sessions, and
having made defaulti the recognizance was forfeited and es-
treated. A copy of the estreat roll, including the estreat
of the plaintiff's recognizance^ being sent to the defendant,
as sheriff^ with the writ of distringas, fieri facias, and
capias, as required by the second section {a) of 3 Geo. 4,
{a) Which enacts ** that all fines,
issues, an]erciaments,yor/et7ec^ re-
ctgnizancet, sum or sums of money
pnd or to be paid in lieu or satis-
/action of them or any of them,
(sare and except the same shall by
nrcoe of any act or acts of (Mr-
Hament made or to be made, be
otherwise directed to be levied,
recovered, appropriated or dis-
posed of,) which already are or
Kereafter shall be set, imposed,
k>sf, or forfeited, by or before any
jasdce or jostTces of the peace in
that part of the United Kingdom
called JBogland, shall be and are
hereby required to be certified by
the justice or justices of the peace
by or before whom any such fines,
isniea^ amerciaments, forfeited re-
cognismstceM^ sum or sums of money
fid or to be paid in lieu orsatisfac-
tioo of them or any of them, shall
be see, imposed, lost, or forfeited, to
the cierfc ef the peace of the
coanty, or town clerk of the city,
borough* or place, in writing, con-
taining the names and residences,
trade, profession, or calling of the
VOL, V. X
parties, the amount of the sum
forfeited by each respectively, and
the cause of such forfeiture, signed
Dv such justice or justices of the
peace, on or before the ensuing-
general or quarter sessions of such
county, city, borough, or place re*
spectively; and such clerk of the
peace or town clerk shall copy on*
a roll such fines, issues, amer-
ciaments, forfeited recognizanceSy'
sum or sums of money paid or to
he paid in lieu or satisfaction of
them or any of them, together
with all fines, issues, amerciaments,
forfeited recognizances, sum or
sums of money paid or to be paid
in lieu or satisfaction of them or
any of them, imposed or forfeited
at such Court of General or Quai>
ter Sessions; and shall within such
time as shall be fixed and deter-
mined by such Court, not exceed-
ing twenty days, after the adjourn-
ment of such Court, send a copy
of such roll with a writ of distrin-
gas and capias or fieri facias and
capias, according to the form and
efiect in the schedule marked (A.)
18^9.
Where upon a
recogniiance
forfeited at
quarter ses-
sions, the she-
riff has levied
part of the pe-
nalty, and has
the defendant
in execution
for the residue,
the sessions
have jurisdic-
tion over the
whole repogni-
zance, and if
the sheriff has
notice that
they have dis-
charged the de-
fendant wholly
therefrom,
before the
money levied
had been paid
over to the
treasury, an
action for mo-
ney had and
received lies
against the
sheriff for the
amount.
Whether
any notice of
the order, or
any demand of
repayment is
necessary.
306
4899.
Harper
H^LYTOV.
CASES IN TH£ KINOS 9ENCH«
c. 46 (6)9 the defendant levied to the amount of 1/. 8i. Id.,
and took the plaintiff in execution for the residue. She was
afterwards discharged from her recognizance by the Court of
Quarter Sessions, under the sixth section (c) of the act.
The defendant had not, previously to the discharge of the
plaintiff, passed his accounts at the Exchequer, but he had
returned the I/. 85. Td. 99 levied under the estreat and writ.
The learned judge, upon being pressed with the authority
annexed to this act, to the sberi£f
of such county, or the sheriff,
hailifl^ or officer of such city, bo-
rough, or place having eiiecution or
process therein respectively, as
the case may be, which shall be
the authority to such sheriff of
such county, or the sheriff, bailiff,
or officer, as the case majr be, for
proceeding to the immediate levy-
ing and recovering of such fines, &c.
CIO the goods and chattels of such
several persons, or for taking into
custody the bodies of such persons,
in case sufficient goods and chat-
tels shall not be found whereon
distress can be made for recovery
thereof; and every person so taken
shall be lodged in the common gaol
until the next general or quarter
sessions of the peace, there to abide
the judgment of the taid Court, ^
(b) Amended by 4 G. 4, 0. 97.
(c) Which enacts ^that the
Court of General or Quarter Ses-
sions, before whom any person so
committed to gaol or bound to
appear shall be brought, is hereby
authorized and required to inquire
into the ctrcumstniices of the case,
and shall, at its discretion* be em-
powered to order the discharge of
the whole of the forfeUed recogni-
zance, ftr turn of money paid or to
be paid in lieu or satisfaction
thereof or any part thereof; and
such order shall be made in the
form or efiect of the schedule
marked (C.) to this act annexed,
aod shall be signed by the clerk of
the peace, which said order shall
be a discharge to such* sheriff,
bailiff, or officer, on the passing of
his accounts at the Exchequer, or
before any auditor or other proper
officer duly authorized to pass the
same; and in all cases where the
party shall have been lodged in
the common gaol by such sheriff,
&c. the justices of the peace so
assembled are hereby empowered
either to remand such party to the
custody of the sherifl^ &c., or, upon
the release of such party firom the
whole of such forfeited rccogni*
zanoes, to order such party to be
discharged from custody; and
such order shall be a full and suf-
ficient discharge to the said sheriff,
&c. on passing of his accoonts at
the Exchequer, or before any au-
ditor or other proper officer dul;
authoriaed to pass the same; and
it shall and may be lawful to and
for the said Court of Geoeral or
Quarter Sessions to award such
costs, charges and expenses, to be
paid by either party ts^ the other,
as to the said Court shall seen
just and reasonable. '^
^ Sie in the act, though the sheriff
it not neatioiied before.
MICHAELMAS TERM, X GEO. IV.
of Haynes v. Hayton (a), was of opinion that the Court of
Quarter Sessions had no authority over the recognizance^
307
(a) This was aa action of as-
iom]Mit for money had and received,
bimght against the present de-
fendant to recover back a payment
made to him, as sheriff of the
ooimty of Hereford, on accouot of
tvo foifeited recognizances of 40/.
each. At the trial before BouLn-
fui, Serjt at the Hereford Spring
Anizes^ 1827» it appeared that an
indictnient for a forcible entry bad
been found against the plaintiff and
his wife at the Easter sessions,
1824; that the plaintiff entered
into the recognizances in question
bt the ttppetnnce of himself and
wife respectively; that the indict-
Bient was immediately removed
hj eertioran, at the instance of the
indictccB; that at the July sessions
1824^ the recognizances were es-
tieated; that at the Spring assizes,
1825, the indictees were acquitted;
tiiat on the 25th August, the derk
«f die peace prepared and sent to the
dieriff a writ containing a copy of
(inter aHa) the two recognizances
sf the ]Jainti£^ together with a writ
sf distringas, fieri ftcias, and ca-
|iss; that the defendant having
idled the pbiintiff's goods imder
•ndi writ for the 80/., and having
icftaed to take securities, the plain-
tiff paid the amount to the defend-
>Bt in redemption of his goods,
vhidi were thereupon restored to
him; that the defendant returned
theatreatraU and the writattbefol-
Waing Michaelmas sessions; when
tiist Court, upon the application of
Aeplamtiff, made an order miti-
fitiog each recognizance to 13f . 4c/.,
nd requiring the derk 6f the peace
*B make out the necessary orders
for discharging the sheriff on pass*
ing his account from the residue;
that the clerk of the peace duly
transmitted the orders of sessions
to the defendant; that the defend-
ant had, on passing his accounts at
the Exchequer, been discharged
from the amount of the recogni-
zances, except the two sums of
13f. 4d, ; and that the defendant
had Bubsequentiy promised to re-
pay the residue to the plaintiff on
being allowed to retain his pound-
age.
It was contended by ToMniom,
fbr the defendant, that from the
language of the enacting part of
the statute, and the form of the
writ, the sessions had power to
order the recognizances to be dis^
chaiged only where the party was
in custody or had given security,
and not where execution had been
executed on his goods, upon which
the money levied belonged to
the crown, and must be paid as
directed in the act. The learned
judge, however, being of opinion
that the amount received by the
defendant was "a sum of money
paid in satisfaction of a forfeited
recognizance," and that the se^^
sions had authority to make the
order, directed a verdict for the
plaintiff, recommending that the
• poundage should be deducted, in
order to avoid a motion for a new
trial. A verdict was accordingly
taken for 74/. 15f . 8</.
A rule nisi having been obtained
by Taunton for a new trial, cause
was shewn by MatUe and WkUcoa^^
who again niged, that under thei
discretionary power given to tlie
182d.
HARPBa
V.
Hayton.
Where upon a
reco|Di]sance
forfeited at ses-
sions, the de-
faulter has paid
the penalty to
the sherilf, in
order to prevent
a sale of bis
goods taken in
execution, the
sessions have no
power of miti-
gating the pe-
nalty, under
S Geo, A, c. 46,
s. 6.
308
CASES IN THE KING S BENCH,
liAUPER
V.
ilAYTOK.
and nonsuited the plaintiff,
was obtained by Maule for a
justices at sessions by section 6,
not only over the forfeited recogni*
zance, but over money fKtutf or to
be paid in satisfaction thereof, the
Court of Quarter Sessions had, not-
withstanding the payment, autho-
rity to mitigate the recc^izances.
They also urged, that supposing the
quarter sessions had executed their
authority, the defendant, by retain-
ing the 74/. 15c. Bd. from the
crown, and expressly promising the
plaintiff to return that sum to him,
liad admitted that he held it for the
plaintiff's use.
On the part of the defendant it
was contended by W. E. Taunton,
that the authority of the sessions
was confined to two cases: viz.
where the defendant was actually
in custody, or where he had given
the security required by sect. 5.
The Court [HayUy, J., Little-
iaU, J^ and Parke^ J.,) having
taken time for consideration of their
judgment,
Bay ley f J., after stating the tacts
of the case, proceeded as follows : —
It has been insisted that the plain-
tiff was entitled to recover; first, on
the statute,— secondly, on the un-
der«heriff's promise, — and thirdly,
on tiie ground that the sheriff
took credit in the Exchequer for
tiie two sums of 39/. 6s. 8(/., and
39/. 6j. Bd. As to the latter
ground, it appears to us, that if the
sessions had no authority to make
l!he order in question, that order is
wholly void, and the sheriff's omis*
aion to- insert these sums in his
accounU delivered into the Exche-
qu8T does noj. alter the case ; for he
In last Easter term a rule nisi
new trial ; against which
is still accountable there; and if
that be so, there was no comidera-
thn for his promise to pay the
plaintiff, and it becomes nudoni
pactum. The question depends
upon this, whether the 3 G. 4, c.
46, s. 6, authorizes the sessions to
discharge the recognizance in ail
cases, or in those cases only where
the party has been committed to
gaol or become bound in sureties to
appear at the sessions. If a gene-
ral jurisdiction is given to the ses-
sions, then the plaintiff is right;
otherwise he is wrong. It was ad-
mitted by the plaintiflTs counsel,
that the sessions had no other ju-
risdiction than that given by the
3 G. 4, c. 46. By section 2 of
that act, it is enacted, '' that all fines,
forfeited recognizances, sum or
sums of money paid, or to be paid
in lieu or satidaction of them, shall
be certified by the justices of the
peace, by or before whom such
fines, forfeited recognizances, &c.,
ihall be imposed or forfeited, to
the clerk of the peace; and that
such clerk of the peace shall copy
on a roll such fines, forfeited recog-
nizances, &c. and send a copy of
such roll, with a writ of distringas
and capias, or fieri fecias and ca-
pias, to the sheriff, which shall be
the authority to such sheriff for
proceeding to the immediate levy-
ing of such fines, forfeited recogni-
zances, &c. on the goods and chat-
tels of such several persona, or for
taking into custody the bodies of
such persons, in case auifident
goods and chattels shall not be
finind." Then section 5, (which is
very inaccurately worded,) protide*
MICHAELMAS TERM, X GEO. IV.
TaufitoM, now shewed cause. The plaintiff must reco-
ver by force of his own title. It is no matter whether the
309:
1599.
"that if any person on whose
goods and chattels suchsherifl' shall
be authorized to levy any such
Wwted recognizance, or sum of
nooe? to be paid in lieu or satia-
fcction thereof, shall give security
to the sheriff for his appearance at
the next general or quarter sessions,
there to abide the decision of the
Coor^ and also to pty such for-
feited recognizance, or sum of
money, &c. together with all ex-
peotes, as shall be ordered and
adjudged by the court, it sluUl be
Isvibl for such sheriff to discharge
>i^ person, so giving such secu-
rity, out of custody; provided also,
that in case such party so giving
nch security shall not appear in
pumiance of his undertaking, it
ihsO be lawful to the Court to issue
a writ of distringas and capias, or
fieri fadas and capias, against the
nrety or sureties of the person so
boond as aforesaid." I think that
dsnae does not extend to cases
wbere the party pays the money, or
where the sheriff /Itvief on the goods,
hot is confined to cases where the
iheriff has taken ike body. Then
comes section 6, under which alone
the plaintiff bad power to apply to
the sessions, and they had jurisdic-
tioo. That section enacts, ''that the
Court of Quarter Sessions, before
whom any person committed to
gaol or bound to appear shall he
hrought, is authorized and required
to inquire into the circumstances of
the case, and shall, at its discretion,
be empowered to order the dis-
charge of the whole of the forfeited
recognizance, or sum of money
paid in lieu or satisfaction thereof,
or any part thereof; which order
shall be a dischai^ to the sheriff,
&c. on the passing of his accounts
at the Exchequer.*' The power
given to the sessions to order this
discharge of a forfeited recogni-
z^ce is, therefore, confined to
cases in which a party brought be-
fore the sessions has been com-
mitted to gaol or been bound to
appear. If it had been intended
to give the sessions a general dis-
cretion in all cases, it is impossible
to suppose that this language would
have been used. By the second
section, the plaintiff might be com-
mitted to gaol. By the fifth sec-
tion, he might be hound to appear
at the next quarter sessions; but
in this case the party was nei-
ther committed to gaol nor bound
to appear at the next sessions. He
paid the money. Therefore, it
seems to us, that as the authority
of the sessions was limited to those
cases only, they had no power to
make the order in question. The
4 G. 4, c. 37, s. 3, (which is a
legislative exposition of the former
statute,) enacts, **that where »
party subject to any fine, forfeited
recognizance, &c. shall reside or
shall have removed from or out of
the jurisdiction of • the sheriff in
which such fine, &c. shall have
been incurred, &c. it shaU belawfiil
for such sheriff to issue his war*
rant, together with a copy of the
writ, directed to the sheriff acting
for the county or plaoe in which
such person shall then reside or be^
or in which any goods or chattels
shall be found, requiring such she-
riff to execute such writ \ and th^
CAS£S IN THE KINO 8 BENCH,
sberiflF wrongfully retained the money, unless he also wrong-
fully received it, or retained it to his own use. In Haines
V. HaytoHy the plaintiff was not committed and did not
give the security. Here, the plaintiff did not pay the
whole : 1/. 85. Id. only was paid instead of £0/., and the party
was committed for non-payment of the residue.
It is submitted that though the magistrates had jurisdic-
tion, it was a limited jurisdiction, and they had no power to
order the discharge of the plaintiff from the whole recogni-
zance. As soon as the 1/. 85. Id. was paid, it was money
had and received to the use of the crown, and ought to be
paid over to the treasury. It was not competent to the ma<
gistratea to arre^ the money and prevent its reaching the
treasury. The magistrates having exceeded their authority
in ordering a general discharge, their order, according to
Haynes v. Hayton, was void. But supposing the Court of
Quarter Sessions had power to discharge the plaintiff from
the whole of the recognizance, even then the case does not
become the same as if no recognizance had ever been exe*
cuted, and no levy made. If so, the imprisonment would
be a wrongful act, for which there is no justification.
The sheriff must, at all events, withhold the money, sub-
j)sct to the direction of the treasury. The course for the
plaintiff to take should be either to present a memorial or a
petition to the king. If this action is maintainable, the
Raid sheriff, &c. within thirty days have received the same. " Ifthesbe-
after the receipt of the warrant, is riff is to make that return, it shews
required to return to the sheriff that the party had no power to go
from whom he shaU have received to the sessions unless such secuii^
ihe same, what he shall have done were given; and as the sessions
in the execution of such process, have power to award costs under
and whether the party $hall have the fifth section of the 3 G. 4, c.
ghen good and tufficient iecurity 4<S, that power would he nugatory
to appeal at the enming general or unless the security were given.
quarter sessions to he held for the Upon the whole we are of opinicA
county from which the writ issued ; that the sessions had no power orer
and in case a levy shall have heen the recognizance. The rule for a
made, to pay over all monies re* new trial must therefiore be made
oelved in pursnance of the warrant absolute,
to the sheriff ftom whom he shall Rule abaohite. .
Mauk, contra. Tbe justices bad jurisdiction to make
^^^ the order for discharging the plaintiff from the recogni*
zasce, and money had and received is the proper remedy.
[Parke^J. The justices have an absolute discretion. It
was competent to them to bate ordered the money to re*-
nain in tbe hands of the sheriff to the U9e of tbe croitn.]
The liability of the sheriff to the trown arises from the
estreat, and that being doubtful, it stands as if no forfeiture
had been incurred and no estreat made. Here be was
stopped by tbe Court*
Batlby, J., after adverting to the provisions of 3 Geo.
^t c. 46, sect. ^, 5, and 6, proceeded as follows: — In
Hoyuft V. Hayton the Court decided, that^ except in the
two cases of commitment and security^ the justices at
lessions bad no jurisdiction. The authority given is not a
general but a limited authority. In this case tbe party has
been committed. The sessions had, therefore, no donbt,
^me jurisdiction. We must go on further and see whether
soy limitation is imposed. It is quite clear that the justices
were enUtled to take something into their consideration.
It would be singular if the party were bound to seek his
IIarpbk
Hayton.
MICHAELMAS T£RM, X GEO* IV. 311
ing^l plaintiff might have sued tbe sheriff tbe very moment that 1829.
/fj^ tie recognizance was discharged. [Bay ley, J, Must not
gi the sheriff be served with an order? The sheriff cannot
p3| ^ be accountable to the plaintiff until be has bad notice of
1,^^,^ the discharge from the recognizance. That point, however,
does not arise here ; tbe sheriff is not answerable to the
^^ aown if the recognizance is discluirged by a competent
^,jr' suthority.] There is no proof of notice oh the sheriff.
^^, [Baykf,J. In this case the sheriff m6st have bad notice.]
^^ It is not shewn that the defendant was authorised by
.^.,; the treasury to return tbe money to the plaintiff; or that
^|.j, be was actually discharged from the estreat. {Bayley^J.
The statute does that. Parke, J. After tbe order, the sheriff
ns Dot answerable to tbe crown.]
»12
1899.
CASES IN THE KING S BENCH,
discharge partly at the sessions and partly at the treasury;
the statute uses the words *' paid or to be paid.*' They
may therefore discharge money paid. But they have juris-
diction over the whole matter. If the sheriff continued to be
accountable to the treasury, he would clearly not be bound
to pay the plaintiff. But the act says '^ that the Court of
Quarter Sessions shall at its discretion be empowered to
order the whole of the forfeited recognizance, or sum of
money paid or to be paid in lieu or satisfaction thereof, or any
part thereof, and such order shall be in the form or to the
effect of the schedule marked (C.) to this act annexed." Then
the order framed according to the form giveu by the act
distinctly says that he is to be discharged as to the whole.
Then the recognizance being out of the way the sheriff is
not accountable to the treasury, but to the party. No tender
having been pleaded, it is immaterial to consider whether
the defendant was authorized to make a tender.
LiTTLEDALEy J. — There does not seem to be any good
reason why there should not be jurisdiction where the
money has been paid. Here, however, the party is brought
before the sessions, and therefore that Court has jurisdic-
tion. The sessions are authorized not only to discharge
the whole recognizance, but by express words that Court
has jurisdiction over any part paid or not paid. The ques-
tion is, whether the defendant is to pay to the treasury or
to the plaintiff, the defendant having levied part of the
money, and taken the party in execution for the remainder.
The sheriff having levied part, would not make his payments
into the Exchequer by piecemeal, but would wait to see
what was done as to the residue (a). The sessions might
not have discharged the plaintiff, who then would have been
bound to pay the remainder. Here, the sheriff is forbidden
to pay into the treasury.
(a) But if the sheriff had to pass ration of the defendant, he woold
bia accounts before any further be bound to account for so much tf
sum was obtained by the incarcc- he had received.
MICHAELMAS T£RM» X GEO. IV.
Pkymeut was demanded of the sheriflf, though I doubt
\ili€ther any demand was necessary. It was the duty of the
defendant to know what was doing at the sessions; knowing .
that an order might be made, it was the defendant's duty to
ascertain whether any order teas made.
313
1829.
Parke^J. — lam of the same opinion. The plaintiff
was brought before the sessions, and that Court had juris-
diction to discharge in whole or in part. The defendant
was originally bound to account to the Court for the sum
which he had levied. But from this he was discharged by
the order. It is not necessary to say whether any notice or
demand was necessary.
Rule absolute (a).
(«) Since the pasdng of 3 G. 4,
c. 46, the Court of Exchequer has
ceased to have jurisdiction under
4 G, 3, c. 10, or the standing writ
of privy seal, (whereby the barons
«e empowered to discharge, miti-
gste, or compound forfeitures or
penalties estreated into the Exche-
quer from other courts,) over re-
cognisances forfeited at quarter ses-
BODi, whereof the yearly duplicate
or certificate required by 3 G. 4,
c 46, s. 14, has been delivered
into that Court. Therefore, where
• recognizance for appearing and
pfeferring an indictment at sessions
had been forfeited and certified into
file Court of Quarter Sessions, and
the forfeiture had been levied by
the sheriff, the Court of Exche-
quer Held, that they were not au-
tiiorized to order the discharge of
the Rcog;ni2ance, although the jus-
tice of peace, before whom the re-
cosoiance had been taken, had
notcompfied wiUi the fourth sec-
tim of the statute, by giving the
y^ bound, notice of the time and
place at which the sessions were
holden, and although the party
had unsuccessfully applied for re-
lief at the ensuing sessions. Rex v.
Hawkinty Macleland & Younge,
27.
An indictment for an assault had
been traversed by the indictee, who
with two sureties entered into a
recognizance conditioned for his
appearing, entering, and trying the
traverses at the next sessions. The
traverser gave the prosecutor no
notice of trial before the next ses-
sions, but moved there to respite
the recognizances to the following
sessions. The application was re-
fused, and the recognizances were
ordered to be estreated. A dis-
tringas, fieri facias, and capias issued
against the traverser and his sure-
ties. On motion to bring in recog-
nizances, estreats, and warrants
into the Court of Exchequer, it was
held, that inasmuch as the estreats
were not returned into the Exche-
quer, that Court had no jurisdic-
tion, and that relief could be granted
314
1839.
CAS£S IN THE KINO S BENCH,
by the quarter teadons only. Rex
y. Thompwn, 3 Tyrwh. 33.
But where forfeited recognizances
have in fact heen estreated into the
Exchequer, that Court is not ousted
of its jurisdiction by 3 G. 4, c. 46,
or by 4 G. 4, c. 37, and such re-
cognizances may be discharged or
compounded by that Court aococd-
ing to the circumstances of the
particular case. PelloWf in re,
13 Price, 299, S, C, per nomen Pel-
lem, Ex parte, MadeUmd, Ul.
Daubney^ Gent, one &c. v. Cooper and others.
A conviction TRESPASS. Tbe declaration stated tbat the defendaoU
tra^eT, ^poiT assaulted and beat the plaintiff, and forced him out of a
aninforniaiion room called the Justice Room, in a certain inn called the
under the • wt m.r t t* • • •
game laws, is White Hart, at Market Raisin, in the county of Lincoln,
ceedln^^at"^ '" which room the defendants, as justices &c., assigned 8u:.,
which all the were then holding a court of petty sessions, whereby the
for whoro?here plaintiff was prevented from exercising, following and trans-
is room, and acting his lawful and necessary business as an attorney ia
there rests no ^he said room. Plea : not guilty. At the trial before
special ground ^^^ Q^ J ^t the last Spring assizes for the county of
for exclusion, ' .
have a right to Lincoln, the following facts appeared:
be present. ^^ information, under 5 Ann, c. 14, was laid against
James Preston, for using a gun to kill game, not being qua-
lified. Preston requested the plaintiff, who is an attorney,
to appear for him upon the information. Upon the plain-
tiff's presenting himself accordingly, at the petty sessions,
he was informed by the magistrates that it was their rule
not to admit attorneys, and that therefore he would not be
allowed to appear for Preston. The plaintiff withdrew,
but no conviction took place. Another information was
afterwards laid against Preston^ upon a similar charge, for
an offence alleged to have been committed on the Sd Janu*
ary, 1828, On 14th February, Preston was summoned to
appear on this information on the 18th. Preston again
employed the plaintiff to appear for him, and did not him-
self attend tbe sessions. The plaintiff again presented
himself at the justice room, at Market Raisin, at the time
MICHAELMAS T£RM, X GEO. IV« 315
lod place oq which the sumoions was retaniable. The 1889.
defendant. Cooper, who was one of the magistrates present,
being infonned that the plaintiff attended on behalf of
PreUott, told him that the magistrates had resolved not to
aHow an attorney to appear for parties summoned before
them, and desired him to leave the room. The plaintiff
insisting upon his right as an attorney, to appear for PreS"
Urn, opoo the information, refused to leave the room ; upon
vhich Cooper directed the constable to remove him, which
ns accordingly done. It was urged on the part of the
defendants, that the plaintiff bad no right to insist upon
attending before the magistrates as an attorney for the de-
fendant in the information; that this was a sufficient justi-
icition for the defendants, — who were proved to be magis-'
Iratea, — upon the general issue, under 7 Jac. 1, c. 5. A ver*'
diet was entered by consent, for U. damages, against all
tbe defendants, leave being reserved to them to move to
enter a nonsuit. A rule nisi having been obtained accord-*
inglj, in Easter term,
Demnan now shewed cause. The question to be con- Dec. 15, 1829*
iidered is, whether, upon the evidence given at the trial,
the learned judge ought to have nonsuited tbe plaintiff.
I am not disposed to inquire whether the objection could
be raised on the general issue. [Bayletf, J. Were they
attending at tbe Petiy Sessiom?"] Tbey were. An attor-
ney has generally a right to be present during the proceed-
ins^ against his client (a), Gilman v. Wright (A). In The
Quern V. Simp$on{c)t whch was a case of deer-stealing, it
vas held that a party duly summoned might be convicted
in his absence. As in the case of deer-stealing, Preslon was
(«) March, 141, pi. S14, where ron for refusing to suffer a defend-
the Cooit said, " that an attorney ant to put in any otheratcorney than
at common law is an attorney in one of the attorneys of that Court,
em; inferior Court, and therefore (6) 1 Ventris, 1 1 ; 3 Keble, 477;
ooglit not to be refused," and emit' 1 Siderf. 410.
mitUi the steward of a Court Ba- (c) 10 Mod. 344; 1 Stra. 44.
316
1829.
CASES IN THE KINGS BENCH,
not bound to appear in person (a). [Liitledale^J. The mv*
gistrates had authority to issue the usual summons.] llie
magistrates may convict in the absence of the party charged;
it is a privilege belonging to the attorneys of the superior
courts to be entitled to practise in any inferior court.
The Statute Westm. 2, c. 10, was cited at the trial as an
authority for the defendants, but it appears on the contrary
to establish the plaintiff's right to appear for his client.
In jRex V. A. B. and C. £)., Justices of Staffordshire {b).
Bay ley, J. is reported to have said, ** an attorney in all
events has no right to appear." Rex v. A. jB. and C. D.,
Justices of Staffordshire^ was cited in the argument of
Cox V. Coleridge (c); but in the latter case Bay ley, J. dis-
claimed being bound by the obiter dictum which he is re-
ported to have used on the former occasion. The decision
in Cox v. Coleridge proceeded on the ground that what
had taken place before the magistrates, was merely a preli-
minary inquiry (<i). The decision proceeded entirely upon
that ground. The Court pointed out the inconvenience
which would result from giving publicity to such previous
inquiry. [Bay ley, J. I believe that in that case a distinc-
tion was taken between a preliminary inquiry and an
inquiry upon which there may be a conviction.'] Lord
Tenterden there says {e), " This being only a preliminary
inquiry, and not a trialy makes, in my mind, all the diffe-
rence.*' The question here is, whether the proceeding
before these defendants was not a trial, and whether
(fl) Vide Rex v. Hall, 6 Dowl.
& Ryl. 843; Rex y. Commins, 8
Dowl. & Ryl. 344.
{b) 1 Chit. Rep. 219. And see
the notes to that case.
(c) 1 B. & C.37, 2 D. & R. 86.
Id) But see Rex v. Whately,
ante, iv. 437 n., 438 n., and the
observations there made upon the
eircumstance, that in Cor v. Cole^
ridge, the attention of the Court
does not appear to have been
drawn to the cases in which it has
been held, that if a witness eza-
mined under 1 & 9 P. 4^ Af. c. 13,
and 2 & 3 P. 4-. Af. c. 10, die
before the trial of the felony, bis
examination may be received iu
evidence against the prisoner, he-
caute the prisoner had an opportu-
nity of cross-eiamining him. And
see Hale, P. C. 262, «63 ; Sir Tbo.
Jones, 53; Kelynge, 18.
(e) t Bam. & Cress%v. 50.
MICHAELMAS TERM, X GEO. IV.
k was necessary, for the purposes of justice, that the
defendants should have such professional assistance as he
deemed it expedient to engage and employ. Was the
plaiotiff lawfully present i He might be there for several
lawful purposes; one such purpose might be to state an
acute for the non-appearance of his client upon the sum-
mons. He might plead guilty, and pay the amount of the
penalty instanter, for the purpose of avoiding an execution;
be might plead not guilty^ and examine witnesses to esta-'
Ush a lawful defence. Much injustice might be done, if
tbe party were liable to be convicted without being heard
through the person whom he had employed to appear for
kim. It is said that as the party was not present, he had
10 right to appear by attorney, even assuming that if he
bad himself attended, he might have had his attorney by his
tide. Upon further consideration, the circumstance of the
absence of the party charged, will be found to strengthen
the argument in favour of the right of his attorney to appear.
He can never be in a worse situation, as to the right of
being represented, by not being able to attend in person*
[ParkeyJ. There is a third question not touched upon,
namely, whether the plaintiff was entitled to be present as*
one of the king's subjects.] In Garnett v. Ferrand (a),
which was the case of the coroner, that defence was pleaded
specially. [Bay ley j J. The coroner's court is a court of
preliminary inquiry {b),] In this case, the nature of the in-
quiry which was going on at the sessions, was not perhaps
much considered. The justices were judges of record,
sitting in judgment upon the question, whether the then
defendant had incurred a forfeiture or not, — and their judg-
ment was not traversable.
317
1829^
Fynes Clinton, on the same side. Cox v. Coleridge is an
(a) 6 Bam. & Cressw. 611, and
9 Dowl. & Ryl. 657.
(h) The decision however pro-
ceeded on the s^round that no ac-
tion lies against a judge of a court >
of record, for an act done in his
judicial ctLpfkchy, In the present
case that poini was not raised.
318
1899.
Daubmbt
V.
CooPfiB.
CASES IN THE KING S BENCH^
autborifj for the plaintiff. IParke, J. The decision in
Cox V. Coleridge turoed upon its being a case of prelimi-
nary inquiry. The other point was not decided either one
way or the other.] The first point to be considered is,
whether a party brought before magistrates, upon a charge
in a case in which the magistrates have power to convict,
is entitled to professional assistance ; the second point is,
whether, when the party charged is absetH, it is competent
to him to depute another person to appear for him. The
cases which have been cited appear to leave no doubt upon
that point. Under 5 Jnn. c. 14, the party may, upon
proof of service of the summons, be convicted, though he
do not appear (a). Suppose the case of a person duly sum-
moned and unable to attend, it would be a great hardship
and injustice to exclude the defence which his attorney was
ready to make for him. The mode in which attorneys were
formerly appointed, rests in much obscurity; 2 Inst. 376*
IParke, J. Are there any statutes authorizing the appoint-
ment of attorneys in all sorts of actions i Bayley^ J. A
deaf and dumb person may appoint an attorney in all ac-
tions.] There are many cases at common law in which a
man may appoint an attorney to appear for him ; F. N. B.
156. This, however, appears to be mere matter of anti-
quarian research. The general inference of law is, that in
all inferior coiu-ts the attorneys of the superior courts are
entitled to appear. In most courts of requests acts, a
clause is introduced to exclude attorneys* The object of
this clause is to avoid expensive costs. The exclusion may
be considered as a legislative recognition of the rights
[Parke, J. That does not follow. The attendance before
courts of requests, which the legislature thought it right to
prevent, may, in the absence of such a legislative power,
have been matter of right or matter of favour only. Such
an enactment may have been necessary for the purpose of
excluding an admission of the attorney by favour. It can
(a) The Queen ▼. Simpion, 10
Mod. 345; Res v. Hmii, 6 Dowl.
& Ayl. 84; Rex v. Cmmmh 8
Dowl. k Ryl. 344.
MICHAELMAS TERM, X GEO. IV.
hardly be said that the petty sessions were not a rotfit.]
The petty sessions did not exist at the time when this statute
passed. The lirst acts empowering to convict by summary
jurisdiction, passed in the reign of Charles 2. \^Bayley, J.
The statute of Anne does not require that the conviction
should take place at the petty sessions.] Every magistrate
acting under that statute is a judge, and the room in which
he sits is a court. It cannot be contended that a man may
be coKcicted of a misdemeanor iu private* The power
entrusted to the magistrates by the statute, is in derogation
of the common law, and at variance with all the princi-
ples of that law. This makes it the more necessary to
adhere to rules of the common law in every particular not
expressly taken away; more especially when it is considered.
that under some of these statutes the magistrates have
power, upon conviction, to inflict two years* imprisonment.
[Byky, J. The Court cannot look into the question of
more or less jurisdiction.] A party summoned to appear
before magistrates on such a charge, ought to have the
nine means of defending himself as in any other Court.
The question is, whether, when called upon to make his
defence, a party charged with such an offence is not entitled
to professional assistance. [Parke, J. And to see what is
proved against him.] In cases of misdemeanor, the de-
fendant may be convicted without being present. The
defence may be conducted by counsel, or where no counsel
is employed^ by an attorney, not qui attorney, but as an
advocate, as in criminal proceedings there is no attorney on
the record, [ficry/ey, J. How would you draw up the con-
viction ?] The conviction might set out the fact specially,
or state the appearance of the defendant generally. In the
crown office it is not necessary that any appearance should
be entered; the attorney merely goes to the crown oflice
and enters the defendant's plea. There is no statute en-
abling such defendant to appear by attorney. As far as
appears by the record in the crown office, the defendant
nay have been in Court the whole time. The plaintiff may
Dakjbncy
V.
320 CASES IN THE KINo's BENCH,
1889J have come for the purpose of stating his client*s inability/
by reason of sickness, to attend. By this statute, if the
money is not paid immediately, the justices are to imprison
CoopBn. ^|jg defendant for three months, and they have no power to
relieve against such imprisonment, although the money be
paid on the very next day. It appears from GlanviiU, that
at common law the defendant in a real action might send
4xnif person to excuse his non-attendance {a). In Cox v.
Cokridge{b)j Abbott, C.J. says, *'The nature of the pro-
ceedings also shews that this cannot be demanded properly
as a right. What is it? It is only a pre/tmi/iary inquiry^ —
whether there is sufficient ground to commit the prisoner
for trial." Holroyd, J. says(c), ** A magistrate, in cases like
the present, does not act as a court of justice. He is only
an officer deputed by the law to enter into a preliminary
inquiry" Best, J. 8ays(d), *' So far was this examination
(under 2 & 3 Phil. 4r Mary, c. 10,) from being a judicial
inquiry, which means an inquiry in order to decide on the
guilt or innocence of the prisoner, &c/' Here, the proceed-
ing was an inquiry to decide on the guilt or innocence of the
party. Even where the evidence is set out upon the face
of the conviction, it is not competent to the party convicted
to raise any question as to the character or the credibility
of the witnesses. The justices perform the functions of a
jury, but their decisions are not, like those of a jury, subject
to revision. In modern acts of parliament, a summary
form of conviction is commonly given, which by excluding
all mention of the evidence upon which the justices pro-
ceed, renders the correction of any improper decision still
more difficult; and when the grossest errors in law are
committed, it is almost impossible to set the matter right.
Garnett v. Ferrand{e) decided nothing more than this,—
that a coroner being a judge of an ancient court of record,
(a) And see Com. Dig. Exoine, (d) Ibid. 53, r*4.
(B. 4.) (e) 9 Dowl. & Ryl. 657, aud 6
(6) 1 Bam. & Cressw. 49, 50. Barn. & Cressw. Oil.
(f> Ibid. 51, 52.
MICHAELMAS TERM, X GEO. |V.
00 action lies against him for an act done in his judicial
capacity. Assuming that his conduct has been as corrupt
as po!»8ibIe, no action lies, — the remedy, or rather the punish-
ment, must be by a criminal prosecution. Ganiett v. Fer^
rW is in effect an authority for the plaintiff, as shewing
that this defendant had no power to exclude him. It was
coDleuded there that the coroner's court was a court in
which Bideodand might be forfeited; but the answer given(£r)
is conclusive, namely, that the inquest is traversable in every
particular. [Farke, J. I do not consider that the Court
decided that. The judgment of the Court in Garnett v.'
Ferrand proceeded on the ground, that the judge of a Court
of record must be invested with a discretionary power, and
that the exercise of his discretion cannot be made the sub-
ject of inquiry in an action of trespass,]
Adams, Serjt., in support of the rule. It may be matter
of regret that the question intended to be raised by th/e
parties cannot properly be raised in this action. It is a
question which has created a great deal of agitation in the
country, but the point cannot be decided upon this motion.
If any doubt existed as to the conduct of the plaintiff, the
case might go to a new trial. IBayteif, J. Upon the evi-
dence, there is no ground for saying that the plaintiff mis-
conducted himself] The question is, whether a party can,
without any cause being assigned, appear before justices by
attorney. At common law, every man was bound to appear
in person, and not by attorney; Beecher's case (A), 2 Inst.
249, 377, 378; F. N. B, 25; Page v. Tnlse(c), Tidd,
9% n.(c2). By 6 Geo, £, c. 27, s. 2, any person admitted an
attorney in any of his majesty's Courts of record at West-
minster, is made capable of being admitted to practise as
an attorney in any inferior court of record^ " provided such
person be in all other respects capable and quali6ed to be
admitted an attorney, according to the usage and custom of
(a) 6 Barn. & Cressw. 616.
W 8Co. Rep. 68.
▼OL. V.
(c) S Mod. 83.
(d) 9tb edition.
322
182d.
Daubney
t;.
Cooper.
CASES IN THE KINO S B£NCH,
such inferior court" This enactment is extremely im-
portant^ as regulating the admission of attorneys in inferior
courts. They are to be Courts of record ; but the pettj
sessions is not a Court of record. An attoniey can only be
appointed by matter of record. [Parke, J. What do you
say to the court-baron?] Even in criminal proceedings an
attorney may be appointed in all cases below treason and
felony^ but this is by the indulgence of the Court; Bac,
Abr, tit. Attorney^ B. [Clinton* That is because the in-
dictee is under recognizance to appear in person."] Here,
the public has no security for the appearance of the party
charged, which makes this case stronger than where a recog-
nizance has been entered into. This is a much graver
offence than many cases of misdemeanor; yet in cases of
misdemeanor, the indictee must appear in persou, unless
he is out upon bail. Here, no bail is given. [Bayley, J.
Suppose you convict the party, what can you do? In
cases of misdemeanor the defendant, upon conviction, is
liable to immediate imprisonment.] It is submitted that
the distinction cannot be taken between cases in which the
proceeding is against the person, and where it is against
the goods. Upon conviction for a misdemeanor in dis-
turbing a meeting-house, there is no power whatever to
proceed against the person ; the sentence is limited to the
imposition of a penaltyof 20/. (a). It is true that in the pre-
sent case the conviction is final. But that circumstance can-
not form a ground of distinction. This is the only case in
which a case may be brought directly into this Court, with-
out going through the sessions. [Bayley, J. Now sup-
posing there had been a right to appeaPto the sessions in
this case, how would the party have known whether he
had any ground for appealing ?] The evidence is set out,
and appears upon the face of the conviction. [Parht, J.
Suppose the party could not write, and that he wished to
indict witnesses who had given false evidence against him?
Bayley, J. If the party charged is not bound to attend
personally f why should he not be allowed to appear by an
(a) Toleration Act, \ W. ^ M, sess. 1, c. 18, s. 18.
IIICHAELHAS TERM, X GEO. IV.
attorney f] It is not contended that this is not a public
court [Parke, J. There are two statutes of Elizabeth
atttboriziDg the appearance of defendants by attorney to
answer informations on penal statutes (c/). The defend-
ants seem to have considered, that if the party charged was
Bot entitled to appoint an attorney, they had a right to turn
the plaintiff out of the justice-room. Does that follow ?]
Gintlburfi, Serjt. on the same side. The first point to
be decided is^ whether a party summoned to appear before
magistrates is entitled to attend accompanied by an attor-
^J' The next point is, whether, supposing him to be
eotided to the assistance of an attorney, when he is himself
present, he can refuse to appear in person, and send an.
attorney in his stead. In Hex v. Justices of Siaffordshire{b),
this Court held that an attorney has no right to be present
OB the hearing of an information of$ the game laws* But it
^ said that the rule laid down in Cox v. Coleridge, and in
Ferraml v. Garnett, applies only to cases of preliminary
inquiry. The reasoning of the judges in those cases is not
confined to that narrow point Lord Tenterden\ judgment
in particular proceeds upon general principles. Though
the act here complained of was done at petty sessions, it
(a) By 29 Elix. c. 5, s. 91, after
reciting that ** divers her majesty's
kmog sabjects, • dwelling in the
itnoce parts of this realm, are
many times maliciously troubled,
QpoD informations and suits exhi-
bited in the Courts of K. B., C. P.
snd Eicbeqaer, upon penal sta-
Co(es,and are drawn up upon pro-
cess out of the counties where they
dwell, and desire to attend and put
ia bul, to their great trouble and
ondoiDg^'' it is provided and en-
acted, « that if any person or per-
Mos shall be sued or informed
>g^Dsty opoo any penal law, in
aoj of the several Courts of K. B.,
C. P., or Exchequer, where such
person or persons are bailable by
law, or where by leave or favour of
the Court such person or persons,
so to be impleaded or sued, shall
and may, at the day and time con-
tained in the first process served
for his appearance, appear by at*
torney of the same Court where the
process is returnable, to answer
and defend the same, and not be
urged to personal appearance, or
to put in bail for the answering
such suit." By 31 FMm, c. 10,
s. so, this indulgence is limited to
natural-bom subjects and denizens.
(b) Supri,S16.
323
1829*
DAt^BNET
V,^
COOFEB.
Y 2
324
1829.
Daubket
Cooper,
CAS£S IN THE KINg's BENCH/
ivas not done by them as sitting in petty sessions* Thtf
question therefore is simply whether, when parties are
summoned to appear before a justice of the peace, any
person may come in and say that he is sent by the party
summoned to appear in his stead. [Bayley^ J. At present,
I am disposed to think that this was a court at which every
person had a right to be present* It is very desirable that
the public should see what is passing in Courts of Justice.
Parkej J. Especially where the same person is performing
the functions of judge and jury.]
Cur. adv. vult.
On a subsequent day, the judgment of the Court was
delivered to the following effect, by
Bayley, J. — ^The Court has already intimated an opi-
uion upon the right of the public to attend upon the hear-
ing of an information before magistrates, under a penal
statute, and after having had an opportunity of giving far-
ther consideration to the subject, and of conferring with
Lord Tenterden, we adhere to the opinion which in the
course of the argument we threw out. One of the ques-
tions which the parties were desirous of agitating was—
whether, upon a summary conviction under the game laws,
the party informed against had a right to appear by attorney.
In this case the party himself was not present, but he in-
sisted upon a right to appear by his attorney. We do not
think it at all necessary to give any opinion upon that point.
Whether it may be matter of right, whether it may be mat-
ter of indulgence or not, or whether the magistrates have or
have not a right to exercise a discretion upon that subject,
are questions upon which we say nothing (a). The ground
upon which our opinion is formed in the present case is,
that the magistrates were proceeding in a case of summary
conviction, and therefore exercising a judicial authority,
constituting a court of justice for that purpose; and we
are of opinion that it is one of the essential qualities of a
(a) Vide CoOkr v. Hicks, 2 Bam. & AdoU 663.
MICHAELMAS TERM, X.OEO. IV. 325
court of justice, that its proceedings should be public/ and 1899.
that all parties who are desirous of hearing what is going
on have a right to be present, provided there be sufficient
room for them, that no interruption is offered to the pro-
ceedings, and that no specific reason exists for their exclu-
sion. Here, the defendant Cooper, and without any offence
given by the plaintiff, ordered him to be turned out of the
room. The plaintiff had come into the room as the friend
of Preston, the party charged, but was entitled to be there
as one of the public. As the friend of Preston, he might
be desirous of knowing by what witnesses and by what
evidence the information was supported; and it might be
of great importance to Preston, with a view of ulterior pro-
ceedingSy if the witnesses misconducted themselves and
stated what was not true. Preston should have the oppor-
tunity of knowing what had been proved against him, and
of calling the witnesses to account for that misconduct.
Tbe point which we decide is, that the magistrates, in the
exercise of their duty, in summarily convicting, are a species
of court, and exercise a judicial function, and that on this
ground their proceedings ought not to be private, but pub-
lic; and that therefore the removal of the plaintiff was not
warranted. Cooper being the only defendant who inter-
fered in turning the plaintiff out of the room, in which trans-
action the other defendants took no part, the verdict ought
to stand against Cooper only; and a verdict ought to be
entered in favour of the other two defendants.
Postea to the plaintiff (a).
(•) The verdict in thif case be- been obtained on behalf of the ^" tretpass for
ing onder 40t., nnd ihc learned plaintiff, calling upon the Master pfiinliff o^t ©f
jtidi^e befort* whom this cause was to review his taxation, ■ mom per
tried not having certified under Adnmt, Serjt., in shewing canse, <J""<* '"* TJ*
ttk 23 Car. 2, c. 9, s. 136. the relied u|K>n the 29 & 93 Car. 9, J.^^J'^i^ j,™"
faster refused to allow ihe plain- c. 9, s. 136, which enacts, '' that in boftineM of an
tiffany further costs than U., that all actions of trespass, assault and f"*JJT[J ^^\^
l^eing the amount of the danuiges battery, and other personal ac- iiffobMiina^Ter-
foand bt the jorv. A rule bavins tions, wbereia the judge at the diet for lets
^ ^ than 401. be is
not entitled to full costs without a judge's certificate, under t9 & f5 Cor. 2, c. 9» s. 136L
326
CASES IN THE KING's BENCH,
1899.
trial of the cause shall not find
and certify under his hand, on the
back of the record, that an assault
and battery was sufficiently proved
by the plaintiff against the defend-
ant, or that the freehold or title of
the land mentioned in the plain-
tiff's declaration was chiefly in
question, the plaintiff in such ac-
tion, in case the jury shall find the
damages to be under the value of
40s., shall not recover or obtain
more costs of suit than the da-
mages so found shall amount to;
and if any more costs in any such
acuon shall be awarded, the judg-
ment shall be void, and the de-
fendant is hereby acquitted of and
from the same, and may have his
action against the plaintiff for such
vexatious suit, and recover his
damages and costs of such his suit,
in any of the said Courts of record."
Denman and Clinton^ contr^
The plaintiff is entitled to full costs.
The action was brought not for the
assault and battery only, but also
for preventing the plaintiff from
exercising his profession. [Bay-
lefff J. That is only laid as a con-
seguential damage.] Where the
consequential damage would of it-
self support an action, the plaintiff
is entitled to full costs without any
certificate. In Anderton ▼. Buck-
ton, 1 Stra. 19?, which was an
action of trespass, for entering with
diseased cattle upon the plaintiff's
land, whereby his cattle were in-
fected, upon not guilty pleaded, a
verdict was found for the plaintiff,
damages SOf., and it was said by
the Court, "The true distinction
is, where the matter all^d by
way of aggravation, will entitle the
party to a dittinct uititfactum^ he
is entitled to fuU costs.'' In Car-
ruthert v. Lamb, Barnes, 120,
which was trespass for an assault
and tearing the plaintiff's clothes,
it was held that the plaintiff was
entitled to full costs, although the
damages were under 40t. •
Lord TenUrden, C. J.— In Car-
ruthert v. Lamh^ the tearing of the
clothes was laid as a distinct tres-
pass, and not as an aggravation of
the assault. I certainly was not
aware of the case of Anderson v.
Bucktofiy nor can I consider it as
good law. It has never been acted
upon or referred to in modefv
books of practice. (But see Hall.
Costs, 2d ed. 7 1 .) There is hardly
any action of trespass without a
per quod the plaintiff was put to
expense, Ice. &c. The general
opinion has been, that if the con-
sequential damage is laid as an
aggravation of the trespass, and
the verdict is under 40s., the plain-
tiff can recover no more costs thaa
damages, and in that opinion I
fully concur.
Bayley, J.— Where less dian
40f. damages are found in actions
for slander with special damages,
and the words are actionable in
themselves, and the damages are
less than 4O5., the plaintiff cannot
recover more costs than damages,
but if the words are actionable
only in respect of the special da-
mage, the plaintiff is entitied to
full costs. So in an action for a
trespass accompanied with special
damage, if the verdict be under
40«. the costs cannot exceed the
amount of the damages found by
the verdict.
IMikdaUj J. concurred, and re-
ferrtsd to Bannuter v. Yuker, \
Taunt. 357.
Rule discharged.
MICHAELMAS TERM, X GEO. IV. 327
1829.
Power and another. Assignees of Fulton, v. Butcher ^^^s/'m^
and Capet.
Assumpsit, upon an indebitatus to Fulion before By the custom
his bankruptcy for work and labour, in making out policies premiums of
of insurance and effecting insurances, — for money paid for ^"'"fance are
® . . matters of ac-
premiums, — and for money due to Fulton in respect of his count between
having underwritten and procured to be underwrit tea divers [gr and^the""
policies of insurance for the defendants. The declaration broker, and
ilso contained counts for premiums paid fdr insurances, broker and the
for work and labour, for money paid, for money had and assured, with-
out any privity
received, and upon an account stated with Fulion before between the
his bankruptcy. wsurtjd and
■^ •' .^ the underwn-
Both the defendants pleaded the general issue. ter. The bro-
Bu/cAer (a) pleaded further, that in Easter term, 1827, the fore^a^cUi^
phindffs impleaded him on the same causes of action; that upon the as-
in Trinity term, 1827, he pleaded the general issue in that amount of the
action: that in the same term he obtained a rule to pay 5/. 15s. P"*™"™ as
loto Court; that this sum was accordmgly paid mto Court; policy is eflfect-
that under that rule the plaintiffs* cosU were taxed at h^i ^^^^d^^^he®
8/1 OS. &/.; that the plaintiffs agreed with Butcher to take underwriter or
the 5/. 15s. out of Court under the rule; that Butcher paid J^heihwfhe
the 8/. 5$. 6J. costs to the plaintiffs, who accepted and re- underwriter
cehed of Butcher the 51. 15s. and 8/. 5s. 6d. costs, in satis- policy ,^con*
faction and discharge of the causes of action mentioned in the ^^^^ the pre-
o ^ -^ mmm to be
declaration in that cause. Averment : that the causes of paid ; or has
action are the same, and that the money now sought to be **^®° r^% ^?'
' ^ •' ^ ® venant of the
recovered might have been recovered in the former action, broker to pay
Replication: that the plaintiffs did not agree to take *^'in assump-
sit, the de-
(c) It would seem that both the action Butcher was the only party fendant pays
tldeodants might have joined in sued, the cause of action would be money into
this pica; for though in the former discbaiiged, if at all, against both, Court, and the
to take the iDoney and his costs. The costs are taxed, and paid by the defendant and
nioeiredby the plaintilf. The plaintiff, altering his mind, does not take the money out of
Court, aad offers to return the costs, which the defendant refuses to take. The plaintiff
<iiKootinoes the action, and the costs of the discontinuance are taxed and paid to the
defendant. These facts will not support a plea in another action for the same demand,
alleging that the plaintiff received tne money paid into Court, and the costs, in full dis-
cha^e of the cause of action.
328
1889.
Power
V.
, Butcher
and Capet.
CASES IN THE KING S BENCH,
the said 5/. 15s. out of Court under the rule, and did
not accept and receive the 5L 15s. with the costs io
satisfaction and discharge of the causes of action mentioned
in the said declaration. At the trial before Lord Ttiiterden,
C. J.y at the sittings at Guildhall after Michaelmas term,
1828, a verdict was taken for the plaintifls, subject to the
opinion of this Court upon the following case: —
Fulton, an insurance-broker, carrying on business at
Lloyd's coffee-house, was employed by the defendants to
effect, and did effect for them, policies of insurance, at the
premiums mentioned in the following account: —
October 22, 1825, losiiniice
November 2,
November 14,
£.
£. «.
£. 1.
3000
Huotcliffe at
12 0 ..
360 0
eoo
2000
2 5..
12 0 ..
13 10
Jalius Cesar
240 0
100
Fame
15..
I 5
300
St. Lawrence
1 10 ..
4 10
500
Fame .
1 10 ..
7 10
The policies, which are under the seals of two directors
of, and were effected by Fulton with, the Indemnity Mutual
Marine Assurance Company, recited that Fulton, upon his
representing that he was interested in, or duly authorized as
owner, agent, or otherwise, to make assurance upon, the
vessels mentioned in each policy, and desirous of making
such assurance, had covenanted with the Company to pa;
them the premiums. The names of the defendants do not
appear in the policies. . Fulton, who was a member of the
Company, paid the Company I/. 5s. and 4/. 10s. in respect
of the policies of 100/. on the Fame and of 300/. on the St.
Lawrence, but has not paid any of the other premiums.
The defendants never were members of the Company.
The commission in respect of the policies amounts to
31/. Is., which Fulton would have been entitled to deduct
and retain from the premiums.
In 1826, the plaintiffs being ignorant of the joint liabi-
lity of Capets commenced an action for the amount of the
premiums against Butcher alone.
Trinity term, 1826, Butcher pleaded the general issue.
find Capct.
MICHAELMAS TERM^ X GEO. IV. 329
Ist June, 1826, Butcher paid 51. Ids., the amount of the i82P.
premiums of the Fame and of the St. Lawrence, into Court, ^^^>^^^^
nodcr the recent rule. The plaintiffs' costs, up to the time ^^^"
of paying the money into Court, were taxed at 8/. as. 6d. Butchek
2d June, 1826, the plaintiffs received their taxed costs
aforesaid, but the money paid into Court was not, though
it might at any time afterwards have been, taken out of
Court by the plaintiffs.
Sd January, 1828, the plaintiffs' attorneys gave notice to
Bellf {Butcher* s attorney,) that he would not take the sum
of 5/. 15s. out of Court, but that he should take out a rule
to discontinue on payment of costs ; and at the same time
left at Belfs office 8/. 5$. 6d., which had been received as
before mentioned, as the costs incurred by the plaintiffs up
to the time of paying money into Court, but which Bell
refused to accept as a repayment of the said costs*
Ist February, 1828, a rule was taken out by the plaintiffs
to discontinue the action against Butcher on payment of
costs. A copy of this rule was served on Bell with three
appointments to tax; Betl not attending these appointments^
the master marked the costs of such defaults at 3s. 4d.
2d February, 1828, the plaintiffs' attorneys received from
Bell the following note: —
''Gentlemen, — Mr. Bell will feel obliged by your letting
the appointment to tax tliese costs stand over till after the
term, he being very busy now."
To this proposal the plaintiffs' attorneys assented, and in
May following Bell delivered to the plaintiffs' attorneys a
bill of costs from the beginning of the action, as upon a
rule to discontinue. This bill amounted to 18/. 12^. 4d.
From this l6s. Bd. was deducted on taxation, which taxation
Bell attended, and the balance was on the ISth May paid
to Bell by the plaintiffs* attorneys.
The Company knew soon after the bankruptcy of Fulton^
diat the policies had been effected by him on behalf of the
defendants, and proposed that the defendants should pay
the premiums remaining due.
330
1839.
POWEK
V.
Butcher
and Capet.
CABES IN THE KING S BENCH,
The question for the opinion of the Court is, whether'
the plaintiffs arc entitled to recover the whole or any pari
of the 621/. I0s.(a)
R. F. Richards, for the plaintiffs. In this case two
questions arise : £rsty whether the plaintiffs would be entU
tied to recover, supposing the former action had not beetf
brought: and if so, secondly, whether the proceedings id
the action against Butcher are a bar to the present action
This action is brought in form by the assignees of aii^
insurance-broker, but in substance it is the same as if \h&
broker himself were the litigating party. An insurance-
broker may sue the assured for the amount of the pre*
miums, although he may not have paid those premiums to j
the underwriter, according to the practice at LloycFs. The i
present case, however, differs from the common form.
Here the contract is under seal, and contains no direct ac-
knowledgment of the payment of the premiums, but a
covenant is taken from the broker that he will pay the pre-
miums. In Dalzell v. Mair{b) it was held, that in an
action by the assured against an underwriter for a ritum of
the premium, the policy, whereby the underwriters confessed
themselves paid the consideration due unto them for that
assurance by the assured, was conclusive evidence of the
receipt of the premium by the defendant. That case, it
must be admitted, differs from the present, as there can be
no estoppel here arising out of conclusive evidence of pay-
ment Lord Ellenboroughy however, in giving judgment,
says, '' it is well known that there are running accounts
kept between the insurance-broker and the underwriter;
(a) At the conclusion of the
case it was stated that it had been
agreed '^ that the Court should be
at liberty to draw aay conclosion
from the facts stated, which a jury
ought to have drawn/' The Court
always has this power upon a spe-
cial cote, though it is otherwise upon
a special verdict. But the Court
has, of late, frequently said that
conclusions of fact ought to be
stated in special cases, and that
they ought not to be called upos
to decide both on the law and tb«
fact.
(6) 1 Campb. 532.
Power
MICHAELMAS TERM* X GEO. IV.
and Lord Kenyon held that the former^ before paying the
premiams to the latter, might maintain an action against
the assured to recover the amount of them as for money v.
paid:' In Airyv. Bland {a). Lord Mansfield MovieA the ^JJcrpw.
assignees of a broker to recover premiums which the latter
bad not paid. The opinion of Lord Ellenborough in Da/-
zell V. Mair, and that of Lord Mansfield hi Airy v. Bland,
are decisive to shew that if no covenant had been taken in
diis case, the defendants would have been liable to pay the
premiums to the bankrupt. It is evident how the differ-
ence arises between the case of premiums of insurance and
other cases where no action for money paid will lie without
proof of actual payment. It will be said that the differ-
ence arises from the recital of the payment contained in
the policy, but in an action against the assured they would
not be bound by the acknowledgment made by the under-
writer. The true ground of distinction is this, that the
insurance-broker is the agent of both parties; in respect of
the premium he is the agent of the underwriter. In Minett
and another, assignees of Barchardv. Forrester {b). Sir James
Man^U in delivering the judgment of the Court, says,
" The broker is agent for the assured, and also for the un-
derwriter; he is agent for the assured, first, in effecting the
policy, and in every thing that is done in consequence of it;
then he is agent for the underwriter as to the premium, but
for nothmg else; and he is supposed to receive the premium
from the insured for the benefit of the underwriter, but
the whole account with respect to the premium after the
insurance is effected, remains a clear and distinct account
between the underwriter and broker. Exclusive of fraud
and other similar circumstances, there is an end of every
thing with respect to the premium, I mean between the in-
surer and the insured. The insurer, with respect to the
insured, is supposed to have received the premium; the
broker in fact gives the underwriter credit for it in his books^
and the underwriter debits the broker for the amount of
(a) Mareb« Insurance, 309. (6) 4 TaunL 541 n.
Power
V.
332 CASES IN THE KING's BENCH,
1899. the premium in his books, and there is a running account
between them.'' If the Court should hold that the practice at
LloytTs, in the cases cited, ought to be discontinued, a diiB-
BuTCHER culty would arise to the underwriter in obtaining payment!
In De Gamifide v. Pigou (a), it was held, that an under-
ift'riter sued by the assured for a loss, could not set oflf the
amount of the premium, although such premium had never
been paid. In Grove v. Dubois, Buller, J., said that it
made no difference, whether at the time of the policy the
underwriter knew the principal or not, and that he gave
credit only to the broker. In Edgar and another, assignees
of Earden v. Fowler, it is considered as acknowledged law,
that the underwriter may sue the broker. It follows that
the assured cannot be sued by the underwriter, but must
be liable to the broker. This is much stronger than the
ordinary and common case. Ordinarily the underwriter
cannot be sued, because credit is given him by the broker-
that is merely an inference.
Here, the underwriters have taken a covenant under seal
They not only give credit to the broker, but they obtain from
him a security of a higher nature. This is much stronger
than the ordinary case, for this reason, that Fulton was a
member of the Company. [Baykif, J* It does not appear
that a member was, by the rules of the society, entitled to
(effect insurances upon property not being his own.] Such
insurances were allowed to be made. Foy v. Btlliff), ^
Mavor v. Simeon (c), will perhaps be relied on by the de-
fendant ; but those cases were decided on the ground of
fraud. [Parke, J. The case might be put thus: — The
broker has done more than is usually done, he has given the
defendants the full benefit of the insurance, he has per-
formed a service, in the course of which he has entered into
a covenant and discharged the assured from their lialNlily to
pay the premium to the underwriters, and they are in the
«ame situation as if the premiums were actually paid.] The
broker never has paid and never can pay, and the assured
(a) 4 Taunt. 246. (5) 3 Taunt. 498. (c) Ibid. 497.
MICHAELMAS TERM^ X GEO. IV.
would ride off without any payment. [Littledale, J. The:
particulars contain no specific claim for the 3\L iOs.] The.
POWEH
31/. \0s, is contained in the premium, and would be a de<- v,
duclion to be made by the underwriters out of the pre-* - ^od'cAPET,
niums in favour of the broker or his assignees.
If. It is contended that what took place in the former
action was a bar to any further proceedings. If the money
bad been paid and nothing further had been done, the
former action might have been a bar. The payment, how**
ever, has been long since waived. That took place in June^
J827. In January, 1828, the rule to discontinue waa
served. If the defendants had meant to insist that the
previotts payment had put an end to the action, they should
lave repudiated the rule to discontinue. They should
not have acquiesced in it, and taxed and received their costs.
So far from repudiating the rule to discontinue, they write
in February to request a postponement of the taxation. It
does not stop there. Beil attends the taxation. But if the*
money had even been taken out of Court by the plaintiffs,
tbe subsequent proceedings would have set the matter at
'•fge- [Parke, J. That should have been replied,] The
whole matter was in fieri. Nothing was taken iu sati^ae^
tiott of the former debt. A former judgment is no bar
where the plaintiff sues upon two causes of action and re-
covers upon one only; Seddon v. Tutop (a). It is otherwise if
the demand is one and the same in both actions. [ParAe, J.
Does not your replication admit that the causes of action
are the same ?]
Broderick, contri. The principle is not disputed, that
an action cannot be maintained for money paid where no
money has been paid; but it is said that though this is so
in general, it is not so here. It has however been held, that
(«) 6 T. R. 607, and 1 Esp. Campbell, 3 Wils. 304, and 2 W.
N.P. C.401. And see M. 11 R. Bla. 897; Bradford v. Bryan^
S,Firi.Abr./</. Trespass, pi. 207; Willes, 268, and 7 Mod. 349;^
Xdcdav. Barnard, Cro. Car. 35; Ravee r. Farmer, 4 T. E. 146;
Winch, Eot. 62, ^9; Kitchen v. Smith v. Johnson, 15 East, 213.
334 CASES IX THE KINO's BENCH,
1829. an agreement to pay is not sufficient to support such an
^"T^"^^ action. In Taylor v. Higgins (a), a note had been received
V. in payment and satisfaction. [^Bayky, J. Does it appear
Butcher ^i^^^ ^\^^ Court considered that the principal was discharged 1]
Maxwell V. Jameson {b). Where an agent intervenes, he
always acts for both parties. The intervention of an agent
is therefore not the true ground upon which the assured is
discharged from his liability to pay the premium to the
underwriter^ in the case of an ordinary policy. The true
ground of his discharge is the estoppel arising out of the
receipt. IParke, J. Here, the underwriter insures in con-
sideration of a covenant f and not in consideration of money,]
He case of an ordinary policy is an exception from the
general rule, which does not apply here* It is not pre-
tended that in this case there wi6 a running account be-
tween the broker and the underwriters. Airy v. Bland
does not go the length which has been contended. Jn^
drewv. Itobinson(c). {^Bayley,J. It is material to con-
sider whether the underwriters could have called upon the
defendants for payment of the premium.] They were not
estopped by what had taken place between them and the
broker. In Peterson v. Gandasequi (d) it was held, that if
at the time of a contract made by an agent, the principal is
unknown, the other party may, as soon as the principal is
discovered, sue either the principal or the agent — at his elec-
tion. Here, the underwriters made their demand upon the
assured, as soon as they were known. But supposing that
the underwriters could not recover against the defendants, it
does not follow that the assignees of a broker are entitled
to recover in the present state of things. The assignees
of the broker may pay the premiums to the underwriter and
then sue the assured. The plaintiffs are.proceeding against
the defendants for money paid, and not for work and labour
done by the bankrupt. The commission of 31/. lOs. is
payable by the Company. Between the Company and the
(a) 3 East, 169. Wilkinson v. Clay, 6 Taont. 110,
lb) 3 Barn. & Alders. 51. and 4 Campb. 171.
(c) 3 Campb. 199. And see (d) 15 East, 62.
MICHAELMAS TERM, X GEO. IV.
bankrupt it is a partnership transaction. {^Parke, J. Al->
though the bankrupt be a partner, yet if he enters into a
covenant with his partners he may be sued upon such
covenant, l^he broker says to the assured, *' I have got
the policy underwritten, which is as valuable as if the pre-
mium had been actually paid."] Where no money passes
for effecting a policy, it is difficult to say how much the
broker is entitled to receive.
The issue raised by the replication is found for the defend-
ut [Bayley, J. The 5L 1 5s, was never received by the
plaintiffs. There was no entry on the record to shew that
the suit was put an end to.] The taxation of costs is as
between these parties tantamount to an actual receipt and
acceptance of the money. If the plaintiffs relied upon
any thing which took place afterwards, they should have
replied such matter specially. The officer signs the receipt,
and after the taxation of the costs he becomes, in respect
of the money paid in, the agent and banker of the plaintiffs,
who are therefore in the sanae situation as if the money
were in their own possession.
335
1829.
Power
o.
BUTCUER
and Capet.
Bickards, io reply. It is said that the discharge of the
assured from the premium in the ordinary case arises from
the language of the receipt. [Parke, J. And the account
between the broker and the underwriter.] No such estop-
pel can arise where the action is not against the underwriter.
[UttledaUfJ, Could not a count have been framed to meet
the bets of this case ?]
Bayley, J. — I am of opinion that the plaintiffs are en-
titled to recover the whole sum claimed in this action,
which is brought by the assignees of Fulton, an insurance-
broker, for work and labour, and premiums, against ship-
owners^ by whom FuUon was employed to effect certain
policies with a company of which he was a member. Ge-
nerally speaking, according to the course of business, the
assured does not himself pay the premiums immediately to
the broker, nor the broker to the underwriter, but it is con*
386
1829.
Power
o.
Butch EB
and Capet.
CASES IN THE KINO S BENCH^
sidered as if they were paid instanter. The underwriter
looks for payment to the broker, not to the assured, of
whom he often knows nothing. The broker is the parly
who, as principal, is to receive of the assured, and pay to
the underwriter. The policy in the present case departs
from the ordinary form. The policy is by deed, and by it
the underwriters take the broker's covenant to pay the pre-
miums. This action is brought on the ground that the
broker was entitled to call upon the assured for payment
of the premiums. If the assured are not liable to be
called upon by the underwriters, the failure of the broker
could not destroy the right to call on the assured. It
seems impossible to say that the underwriter has any claim
on the assured. In ordinary cases the underwriters would
not have any claim, because, by the form of the policy,
they would have confessed that the premiums had been
paid. No promise can be raised by implication where the
parties have entered into jii\ express contract. Here (a)i
there is an express covenant. The assured has the same
benefit as if money had been advanced by the broker on
his account. If the defendants cannot be called upon to
pay the underwriters ; they ought to pay some one. The
broker, if he has assets, is liable to the underwriter for the
full amount of such premiums, and his estate is now liable
for the full amount of such premiums. A difficulty arises
upon the form of the action, whether it is rightly brought or
misconceived. This cannot be treated as money paid.
Though the assured are no longer liable to the under-
writers, yet in point of fact the premiums have not been
paid to the underwriters. A case has been put by Mr.
Richards, where notes were considered as money. Here
nothing is paid, but security is given. If the 6£l/. had
beeu paid, the broker would have been entitled to deduct
31/. Is. This 3i/. \s. would be considered as compensa-
tion for the broker^s trouble. The count for work and la-
bour clearly covers this part of the demand. With respect
(0) No promise however was here ^ho were partk* to the txpreu
fought to be implied between those contract.
MICHAELMAS TERM, X GEO. IV.
to the grounds on which the plaintiffs are entitled to the
residue. In the latter part of the first count, the words
" Qoderwritten and subscribed'' may be rejected, and if
enough remains, the plaintiffs may recover upon the words
" cause and procure to be underwritten." The plaintiffs
are not bound to prove the entire count. These latter
words seem fairly and exactly to meet this case.
Upon the special plea, the affirmative lies on the defend-
iDts. In that plea it is alleged, that not only the 8/. 5s. 6d.
bot also the 5L [5s. were accepted and received by the
plaintiff. In fact the 51, \5s. remained in court. There
may be cases in which the money brought into Court
would be at the risk of the plaintiff, in case he refused to
take it out after receiving the costs. But the payment into
Court is not of necessity payment to the plaintiff. If the
plaintiffs abandon the claim and discontinue the action
they are at liberty to do so. I do not think that the
money paid into Court was effectually received by the re-
ceipt of the taxed costs.
LiTTLEDALE, J. — The first point is, whether the plain^
tiffs have launched themselves, and have made out a case
to recover any thing. The term " insurance" in the parti-
culars of demand may mean any thing to which the broker
was entitled by reason of his having effected these policies.
The 3l/. Is. commission, I think, may be recovered, inas-*
much as the broker was entitled to retain it out of the pre-
miums which he had covenanted to pay. In the common
form of a policy the broker is entitled to recover against
the assured by usage, otherwise it would be difficult to say
that the principle was well founded. Here, instead of
being liable to pay over the premiums to the underwriters,
as matters of account, the broker has bound himself by cch
venant to pay those premiums to the underwriters. If the
premiums had been actually paid, the assured would have
been bound to repay the amount. Here, they are not ac-
tually paid, but by the usage they are to be considered as
vou V. z
"336 CASES IN THE KING's B£KCH,
18«9. ff^id; and I think the pltii»Uffs might have dedared m
'^"'^^ upon a apecial undeitaking lo indennify Fulton againit htt
y, covenant. I have no doubt whatever ihaC if a «pecifti
•Ifd'crpCT ^^^^' aUtiug the form of the policy; and that Fultou bid
covenanted at the request of the astnred, and a promise to
pay the broker before actual payment by him to the undeN
writers, would have been anpported by the usage. I wiU
not| however* say that the count in the present action is
bad, as my learned brothers are against me. In the first
count, the claim for work and labour ia confioed to com*
mission, aad for divers sums of money before that time ad-
vanced and paid by Fulion for the defendanta, at their re-
quest, to divers persona, as and for certain prenunms and
rewards for underwriting and subscribing the said policies.
Then comes the part upon which the plaintiffa are said to
be entitled to recover, " and for divers sums of money due
and payable to FuUou, for and in respect of Fukon's having
before then underwritten and subscribed, and caused and
procured to be underwritten and subscribed, divers policies
of insurance for the defendants at their request*' That
part of the count cannot be separated, because it has no
meaning apart from the rest. It appears to me that tke
words '* divers premiums" can apply only to policies un-
derwritten 6y the j»Aitit<s^^ which are out of the ca»e. The
amount may in some sense be said to be due to Fulton,
but it is not a direct debt due from the defendants to Ful^
tan. If this objection prevailed, the assignees wouU have
to bring another action.
There would have been e\idence to go to a jusy that
the plaintiffs chose to leave the money m Court, aad thit
is the same thing as if they bad actually received the mooej.
Afterwards the plaintiffs take out a rule to discontifitie
on payment of costs; — the costs are taxed aad paid; — the
defendant jBn/cAcr assents to the discoatiauaoce. It is said
that the plaintiffs ought to have replied the wmver. It
seems to me that that was unnecessary. If the fact had
been that the two sums had been accepted and received ia
MiCHAELMAS TERM, X GEO. IV. S^^
Ml salisfaetioii, and the phihtiffs had afterwards didtdfi- iQ^t^^
faadi the action, it frould have been iiecessarjf to rteply ^'^^^'^
the vaiveh Here, the acquiescence in the discontinuance ^'^^
is no otherwise material than as fonniiig some evidence ^utcher
tfat the p?atrttiff^ nevftr intended to take the tlidney in full
^tisftction.
Parke, J. — I am of opinion that the aiitioli t!annot be
mtontaiiied fot money paid. Without proof of payisienti
Of of tfiflt wtHtb lis Equivalent to paymeflt, tto actioti fof
nosey puti tkn be tHaiAtained 5 Taylor v. Higginh{a\ Mtix-
^11 V. Jameson (A). In the case of art ordinary policy, it h^i
^ i^ld th^t an action for money paid lies, bnt that t^M
opw f*ro grdfttrds, whicfa do not occur id the present case.
First, the receipt as for money paid, — and, secondly, the
ptssing the amount in account, the effect of which may be
to entitle the broker to treat the amount of the premiums as
money paid by him to the underwriter, and re-lent to him*
Iq the ordinary case, the claim for ntoney paid rests on the
fonn of the policy, (which contains an ackhotvled^inetft
of the (>ayment of the premium,) — and on the accodht
betweeo the broker and (he underwriter. Neither that form
>or the aeooarnt are t6 k^ found in the |[>resent case. The
plaintift could no doubt recovfer 31/. Is. for work and la-
hour. The plaintiffs claim in respect of divers policies of
nuoraoce which Fulton bad cati«ed and procured to be
QDderwritten and subscribed. He has caused them to be
underwritten and subscribed in as beneficial a manner for
the defendants, as if the premiums had been actually paid
to the underwriters. The declaration would, perhaps,
hare been better in a diffierent shape. If it had contained
^ special count, such count would have been on the im-
pbed undertaking to indemnify the broker against his co-
venant; if an indebitatus count had been framed to meet
(«) 3 East, 169 ; et vide suprd, (6) 2 Barn. & Alders. 51 ; suprd,
^' 334.
z2
340
1829.
CASES IN THE KING S BENCH,
the circumstances of the case^ it would have been a count
for work and labour bestowed by the bankrupt in effecting
the policies. The objection only amounts to an imper-
fection in the description.
The plea is, in substance, a plea of payment and accept-
ance in satisfaction (a). If the payment of the money into
Court operated of itself as a discharge, the defence should
have been so pleaded. Under the present plea, the de-
fendant has undertaken to shew that the plaintiffs actu&l\]f
received the money. If the defence of a discharge by pay-
ment of the money into Court, is to be considered as
having been given in evidence by the defendants under the
plea of the general issue, non a8sumpsit(&), what took
place after the alleged payment would amount to a com-
plete waiver of such a defence.
Postea to the plaintiffs.
(a) And see Francit v. CryweU,
5 Barn. & Alders. 886; S. C by
its proper title of Francis v. Cry
idly 1 Dowl. & Ryl. 546.
(b) Payment made and accepted
in satisfaction, whether made by
one or by all of several promisors,
might, previously to the Rules of
H. T. 4 W. 4, (which see 3 Nev.
6 Mann. 7,) have been given in
evidence under die general issue,
non assumpsit After those rules
had come into operation, sacb
a defence must have been pleaded
specially. It would not, however,
have been necessary to confine the
defence, as was done here, to the
exoneration of the party nuking
the payment, as the acceptance in
satis&ction would dischar^ the
cause of action as against all tbe
promisors.
END OF MICHAELMAS TERM.
CASES
AAGUED AND DETERMINED
nr THE
COURT OF KING'S BENCH,
IV
HILARY TERM,
IK THE TBMTH YBAR OF THB REION OF QfOBOB IV.
MEMORANDUM.
In the coarse of last Vacation the Honourable Sir James
Burrough, Knt« resigned his office of one of the Justices of
ibe Common Pleas (a).
Id the course of this term he was succeeded by Mr.
Serjt Bosanquet, who took his seat on the bench on the
3d of February, and afterwards received the honour of
loigbthood.
(a) To which be had been appointed in Easter term, 1816.
WabE V. CaNN. 1830.
•By an order of Sir L. Shadwell, V. C.« a case was stated A, devises
for the opinion of this Court upon the construction of the his heirs but
foUowing devise in the will of one William Reynell: ^ All in case B. dies
the rest, residue, and remainder of my personal estate and then to C. and
laads in South-Tawton and in Sampford-Courtenay, I ^^ heira, or in
. . case B, ofiers
give unto Richard Ware, and to his heirs for ever; but to mortgage or
levy a &e, or
nSttz recovery,upon the whole or any part thereof, then to goto C.and his heirs — B, and
^ ue strangers in blood. The fee vests in B., and the executory devise to C. is void.
342 CASES IN THE KING's BENCH,
1830. ^° c^s^ Richard War^ dies i)irit||ou| }^em, then to John
Powlesland and bis heirs ; or if in case Richard Ware
offers to mortgage or suffer a fine or recovery upon the
whole or any part thereof, then to go to the said John
Powlesland and his heirs." Powlesland was a stranger in
blood to Ware.
The queatioos «t9ted for th^ opii^ion of this Court
were —
First : What estate and interest Ware took.
Secondly, Whether, if Ware conveyed a part of the de-
vised lands to a purchaser in fee, the purchaser's title could
be affected by IVare's afterwards mortgaging the residue, or
levying a fine, or suffering a recovery thereof.
Thirdly. Whether, if Ware conveyed the whole of the
devised lands to a purchaser in fee, the purchaser would
have a good title to the fee against all persons claiming
under the will (a).
ff. Rogers for the plaintiff. Two principal questions
are raised, — the first is, whether Ware took an estate tail
or a fee. This is disposed of by the fact stated^tbat
Powlesland, to whom an estate is limited after a devise to
Ware apd lys heirs, was a stranger in blood to Ware.
[Parke, J.. That point was abandoned in the Court of
Chancery.] If that point was abandoned, it \yill still be
necessary to send a special certificate stating such aban-
donment. Right V. Hamond (A). The point is rendered so
clear, that in Tilburgh v. Basbut (c), the Court would not
allow it to be argued.
The second point is one of greater importance. The
estate is.giveu oyer not^upo^. s^iooatv>9^ b^ut if Ui&teu^l
offkrs to. moitagage,, 8^c. It i^ ^ ckar e^taWsbe^ pnncipl^)
(ft) Lord Tdfa^ewioi,, C. J^, pJh case s^t by. th« VU>q. Ch#mcellor
served, th^t the 2d ai^d 3d q^ues- should have slated U^e facts oat
dons were not properly raised, — of which those questions arose,
that it was irregular to propound (6) 1- Stra« 4S9.
specuktUve questions for th^ opi- (c) % Ve^ sen. 89.
Hipp of the Cour^ — and that, the
HILABT TERM, X GEO. IV.
tbi thmigb a restriction upon mi act may he good, jet a
nitrictkNi apoR aa offer to do soinethiiig, u too vagae;
Aflcordtiig to the oM eases, tbia is bd4 an iasuaUe fact;
Pinxf V. Win (a)* In that ease* the devise over was
difected by the will to take effect, is case the devisee
ii tail sbottW " go about or attenpt to alien or sell the
stid nwssaages^ &c. ;" and it was held that a feoffment by
tbe devisee in tail did not onke his estate void. The
(Unctioa as to the validity of conditions prohibiting
attempts to do an act, and of those which prohibit the act
it»lf,is clearly hid down in Miidmay*»cmBe (^). In Brad-
kfi.PdxolQic), the words of the Condition were very
simibr to tbe present, bat the Master ol the RoQs held
tint the coadition was of no effect (d)* Tliere is no case
wkere a condition restmining a right6il alienation has
beta sustaioed. Bat an alienation by an infant may be
restrained ; so, a fine by tenant in tail* because it is a
wroogful conveyance, which not only destroys the estate
ttil, bat also devests the reversion and the remainder, if
aiij(f). [BayleyJ. Tenant in tail cannot be restrained
boa aoffering a recovery.] Becanse that is a rightful eon-
vejaoce. In the present case, the restriction against levy-
ing a fine is void, because that is a lawful conveyance for
tcsim in fee Mmple. Upon tbe grant of a oMUor in fee,
the gnuitee cannot be restrained from making grants of
copyhoUs. [Bayky J. A copyholder has a right vested
ii kirn.] The condition wooU be void though it merely re-
343
i8sa
(a) 1 Vcntr. 321, and 3 Keble,
787. PoOerfen has reported the
cne Bore folly, and has stated bis
own aijomeot at length; but he
kasDot given the judgment of the
CoQit. Poll. Rep. 435.
(^6Co. Rep. 40.
(0 S Vesey, jno. 324.
(if) In Brodley v. Peixoto, the
vords were "I will and roost
^cdj ordain, that if my wife o^
uj oDe of roy children shall at-
tempt to dispose of all or any part
of the bank stock, such an attempt
shaH exclude them, him, or her
from any benefit in this will, and
shall forfeit the whole of thei
share, &C.'' Nothing turned in
that case upon the distinction be-
tween the act and the attempt,
(«) As to the effect of fines and
recoveries in devesting estates, see
tbe notes to Doe d. Cooper v. Finch,
1 Nev. & Mann. 130.
CA9E8 IN THE KING S BENCH^
strained the lord from regranting after the escheat of a
copyhold. Littleton says, sec. 360, '^ If a feoffment he
made upon such condition, — that the feoffee shall not alieo
the land to any one, this condition is void, because, when
a man is infeoffed of lands or tenements, he has power by
law to alien them to any person." And, s. 36l, '' But if
the condition be such, — that the feoffee shall not alien to
such a one, naming him, or to any of the heirs or issue of
such a one, &c., which conditions do not take away all the
feoffee's power of alienation, such condition is good." Also,
s. 362| " If tenements be given in tail upon such condition,
— that the tenant in tail and his heirs shall not alien in fee,
or in tail, or for the term of any other life except their own,
such condition is good." Upon which Lord Coke says,
** And therefore, if a gift in tail be made upon condition that
the donee, &c. shall not alien, the condition is good to some
intents and void to some ; for, as to all those alienations
which amount to any discontinuance of the estate tail, or
are against the statute of Westminster 2 (a), the condition
is good without question, but as to a common recovery,
the condition is void, because this is no discontinuance, but
a bar, and this common recovery is not restrained by the
said statute, and therefore such a condition is repugnant
to the estate tail.'' Here, the devisee is restrained from
mortgaging, levying a fine, or suffering a recovery, all
which are lawful conveyances for tenant in fee simple.
A condition requiring the tenant in tail not to leat>e for bis
own life is void, Sheppard's Touchstone, 133. In Doe d.
Mitchinson v. Carter (Jb\ Lord Kenyon, in giving the judg-
ment of the Court, says, '' A grantor, when he conveys an
estate in fee, cannot annex a condition to his grant — not to
alien; nor, when he conveys an estate tail— a condition not
to bar the entail. Such restrictions are imposed to pre-
vent perpetuities." The same rule was laid down and
acted upon by Grant, M. R., in Bradley v. Peixoto (c) ;
(<i) IS Edw. I, r. 1, (the statute (6) 8 T. R. 57.
tie donU.) (c) 3 Vcsey, jun. 324.
HILARY TERM, X GJ^O, IV.
Ems v. Ross (a), is another authority to the same effect
{Here he was stopped by the Court.]
Preston, contri^. The first pointy namely, as to the
quantity of estate which passed to Ware by the devise, is
quite settled : it is too clear to be disputed. But there is
a shorter answer. This is not a condition^ but a condi-
tional limitation, an executory devise. [Bayhyt J. Who is
the executory devisee f] The person who would take the
remainder, supposing the estate limited to Ware had been
an estate tail. It may be doubted whether Littleton has
act stated the rule too broadly. A restraint is not void, if
imposed for a reasonable time or the life of the party. It
is conceded, that a man may annex a restraint upon alie-
nation to a particular estate. The condition cannot be
considered as repugnant to the estate conveyed, except in
the case of an estate tail or an estate in fee. The real
ground upon which conditions prohibiting attempts at
alienation are void, is, that where you cannot restrain the
alienation itself, you cannot restrain the attempt, and
thereby produce the same effect in defeating the aliena-
tion. Bradley v. Peixoto and Ross v. Ross cannot govern the
present case, because those were cases of personal estate,
which is governed by the civil law, Beachcroft v. Broome {b).
Eveiy testator who has devised a fee may affix a qualifica*
tion,(the benefit of which he may reserve to his heirs, or give
to strangers,) by way of executory devise. The king may-
impose a restriction upon his grants, prohibiting alienation
generally, even at the present day, Com. Dig. Condition, (D.)
His power of imposing such a restriction is derived, not from
his prerogative, but from his interest in the estate. Here^
there are two limitations, one of which is admitted to be
void; the second is good as an executory devise. The
testator might have good reason for restraining his devisee
from executing a mortgage. He might say, I will not give
(c) 1 Jac. & Walk. 164. {b) 4 T. R. 441.
CASES IN THE KING S BENCH,
my estate ta a oian who would be aiicb a fool as ta iiiort«
gage it. Then there is 90I aa abaolule restraint upon an
alienation. It is open to the party to convey by feoffment,
or by lease aad release. If the testator had said that the
estate should go over upon the party's goiag to ibe top
of St. PauFsy sucb a limitation would have been good.
The next question is» whether the mere ofkr ta morlg^e.
is open to the objection which lias unexpectedly been
taken. It is said| tliat an attempt cannot be put in issue.
That may have been law in the reign of Elizabeth, but
cannot be so in that of George th« Fourth. What is said
in Mildmays case must be takea cwn grano seUis, and with
reference to the restriction then, under the consideratioa
of the Courts What is an offer is matter of evidence
for a jury. If a man actually mortgage, it cannot be
doubted but that he has offered to mortgage. If a bribe
ts offered tq a voter, tlie crime is compkte, although the
bcibe be not accepted (a). Ware took an estate in fee,
subject to an eaecutory devise, — and that devise over is
lawful, reasonable, and, depending upon a fact, capable of
uiaU
Rogers 'm reply. A man cannot convey property and
withhold the itucidtnis to that property. An act which
cannot be restraiaed by condition cannot be restrained by
aift executory devise over,, where the conditian would be
contrary to law, Shepp. Touchsi, 133, In one of the cases
referred to by Lord Coke, in the margin of Co, Li/^
namely, IS If. 7, 23 (fi\ tbe Court would not bear it argued
(a) Vide tamsn Heruloa v, Faw- if the donee, or any of the heirs of
eeiif 4 Ner. & Mann. 585. his body, shoold alien in fee, or
(6) P. 13 H. 7, fo. 82, 25, pL in fee tail, or for term of lifii, «•
9. That was a case of formedon should grant in any other maoner
in the remainder, in which the a greater estate than they bad,
tenant pleaded that his ancestor then the donor and hts heirs might
was seised and gave the manor in relator ; and that eocb a person,
tail, remainder to the right heirs issue in tail, being sdsed by force
of the donee, upon condition that of the entail,, dieoooiiaued tbe
HILARY TERM, X GEO. IV.
that such a restraint could be annexed to aa estate in fee
mfi%. Lord Coke also cites 21 H. 7, 11(a)* and 91
H.6{b), Shepp. Touchst. 129, ISl.
against law» it seeco3 to be void
altogether. Wherefore, &c.*' Kcble^
conlri. *'It seems to roe that one
may make a condition with a fcoflfee
in fee 9iniple that he shall not alien."
Here Brian J. interrupted him, say-
ing— ^Xhat they would not hear
him argue to this purpose (a cest
conceit) f ** because it is merely con-
trary to our common erudition,
and is now become in a mcuiner
a principle; for by this means
we should disturb (transpoier) all
our ancient precedents. Where-
fore say no more of this point.''
(a) H. 21 H. 7, fo, 11, pi. 12.
That was a case in the Common
Pleas to this effect. A man seised
in fee made a gift in tail, upon
condition that if the donee died
without issue, or if he or his issue
aliened in fee, then his estate
should ceasei and the land should
remain to a stranger. Tbe donee
aliened in fee, had issue« and died.
And the question was, whether
he in tj^ remainder might enter
or not. Kingtmil — In tbe firsic
place* when a.man has land whereof
he wishes to create a particular
estate, he may make it. conditional.
As if I give land in tail, — u^a
condition that neither the donee npj
his heirs shall alien in fee>.— ^a
condition is good; for,.if he aliens
in fee, he does wrong to me who
am in the reversion : so that this
condition is good, to restrain him
ftom doing an act contrary to
law. And if I make a lease
for teim of life, apon con<i^tion
that he shall not alien over his
to a stmnger in tail, re-
mainder to the ancestor of the
demaodant in fee, and because
this discontinuance was against
the condition, he, as heir, entered,
lasqpporting a demurrer to this
plo. Rede says,—" The condition
B contraiy to the estate, because
te donee is tenant not only of
tk esute tail, but also of the fee
siipple. For where there is a
feoffinent in fee upon condition
that the feoffee shall not alien,
thf QooditioQ is void, because it
is ©crely contrary to the estate ;
for the condition, goes in de-
feasance of all his estate. Where-
fon it should be taken as void
io respect of the remainder in fee,
bat being void in part it is void
in all; and suppose that I make
a lease for a term of life, upon
coodiiion that if I grant the re-
▼enioo, the tenant shall have fee,
I say that this condition is void,
be^iW by the grant of the revei^
sioo, a third person has a rightful
iflCtrest before the condition caa
take ellecc So. here, by the grant
of toe remainder of the fee simple
Mf tbe donee hijopsell^ by rea^oA
of tbe interest which be had ia the
fee sinipJie> tbe condition, annexed
to the estate tail cannot take
cSect, becaase i( goes in destruc-
tioB of both. And ijt is clear
tbat this fee. simple can lawAiUy
he aliened, ootwitbstanding such
CQocfitioQ, faiecaMse it; is contcaiy
to.iheeKate of fee simple. Aad^^
tktifetqne, becaase tbe condition
is io pait contnuious, and in pait
348
CASES IN THE KINGS BENCH,
1830.
Waeb
V.
Cakn.
estate, the condition is good^for
I may make such condition as I
like, with every one who will take
such an estate from me. And
therefore it seems to me, that if
I infeoff one, upon condition that
he shall not alien to any one, the
condition is good. And if I make
lease for term of life, upon con-
dition that if he die the land shall
remain to J. S., this remainder
does not take effect by the condi-
tion but by the livery. And the
law is the same of a gift in tail,
upon condition that if the donee
die without issue the land shall
remain over. But the case at the
bar is, that if the donee alien in
fee, then his estate shall cease,
and the land shall remain to a
stranger; so that here the re-
mainder can only take effect upon
the condition. Then it is to be
seen whether this condition be
good, and it seems to me that it
is not, for the condition is in itself
repugnant; for when the donee
has made feoffment in fee, then
the feoffee has a fee in him, and
the land cannot remun over when
another has a fee therein in pos-
session. And therefore the con-
dition is in itself impertinent and
repugnant. As in this case: I
make a lease for term of life, re-
mainder over, and there was a
condition that if the 6rst lessee
pays to me a certain sum, &c.,
J. S. shall have the land in fee
immediately after the death of
the first lessee ; I say that this is
void and repugnant in itself, for
there is a mesne estate which can-
not be defeated by the condition
which comes afterwards; for it
cannot be that he shall have the
remainder for the term of his life,
and that the other shall have the
land immediately after the death
of the first tenant. So here, by the
feoffment, the feoffee has fee sim-
ple, during which the remainder
cannot so take effect, for another
has a mesne interest ; and a stran-
ger cannot enter in this manner.
And the common case proves this ;
if I make a lease for term of life,
reserving a rent to a stranger, the
reservation is void, because he
was a stranger to the lease. The
law is the same, if I say that for
non-payment a stranger shall
enter ; the entry is void. So here,
notwithstanding that such entry
might be reserved to the donor,
still to a stranger it cannot be
reserved ; and if the donor enter,
he cannot give the land to a
stranger by this entry. And thus
it seems to me, that in no way
can this remainder take effect; for
there is a case in our books which
proves this case. In quid juris
clamat against a tenant for term
of years, he said that the lessor
leased to him upon condition that
if he granted over his remiunder,
the tenant should have for the
term of his life — and thus he
claims for term of his life ; and it
was adjudged, that because this
condition was repugnant in itself,
he should only have for term of
years, for when the reversion of
the freehold was granted, then
the lessee could not by the con-
dition have freehold, for this was
in the grantee of the reversion by
the fine. So here. Frowiche — It
seems to me, that he shall not
have this remainder in this form,
and still the condition is good, for
the condition is, that if he die
without issue or aliea in fee, the
HILARY TERM, X GEO. IV.
349
estate shall cease; so this re-
mainder is dependeot upon both
the one condition and the other,
and therefore if any words in the
deed can make the condition and
the reinaioder dependent thereon
to be good, still that condiUon is
good, and the condition is in the
disjunctive; and for one part it
is good, that is to say, if he die
without issae, and although it be
Toid for the other, yet the con-
dition is good But 1 think that
no one by such a condition can
grant any action or entry to a
stranger, but only a chose in pos-
session. As of a lease for term of
life, remainder after the death of
the tenant for term of life to
another in fee, there he has the
remainder in possession ; but if
I make a lease, rendering a certain
rent to a stranger, the reservation
of rent is void, because he cannot
have the rent unless he enter and
distrains for it, and I cannot ^ve
distress to one who is a stranger
to the lease. The case here is,
the g^ft was in tail upon condition
that if he discontinued in fee, hia
estate should cease; and I have
taken it, that an estate of ioherit-
snce cannot cease by force of the
condition broken only, but there
most be an entry together with
this. But of a particular estate,
ss for term of life, the law is other-
vise. And the reason is, that
such estate may cease and be de-
tenuioed by par^l as well as by
wrrender, and therefore it may be
detennined by the words of the
condition in the same manner, for
heto€k this at first with the con-
dition, which is understood to be
to agreement that he shall sur-
fcoderhis estate if the condition
be not performed. So that such
a condition for the taking of the
estate countervails a surrender for
the non-performance of the con-
dition. As if I make lease for
term of life, or of years, upon con-
dition that if I pay him 20^ on
such a day, his estate shall cease.
Now, by the performance of the
condition, the estate determines
without any other entry; but of
an estate of inheritance, the law
is otherwise, for this cannot be de«
termined by naked words; nor
can it pass by such means, but by
livery. And therefore if I make
feoffment upon condition that if
I pay certain money upon a cer-
tain day the estate shall cease,
and I pay the money, still the
estate is not determined until I
have entered. The difference is
apparent. But if I make lease for
term of years, upon condition that
if I alien the reversion in fee, he
shall have for term of life, the
condition is good. And the cause
is, that the fee remains in me who
made the condition; and when
the fee remains in me I may con-
didon it in such manner as I like.
And I will not agree with the case
which Kingsmil has put, —of quid
juris clamat,^{oT when the fee re-
mains in the lessor, he may bind
this >yith condition in whatever
manner he wills. And if I make
lease for term of years, upon con-
dition that if I enter upon him
he shall have for term of life, the
condition is good; for thereby I
have restrained myself firom com-
mitting a tort; for if I do so, I
have bound my land with the con-
dition, which is good ; but, on the
other hand, I cannot diminish the
interest of a stranger by my con-
1830.
dfio
OA^ES IN THE KING'S BENCH,
lOOl
rfitlooi WheM nothing Vftuiaiiied in
me^ but all in di« strkajget. And
Vark m>w in chji ctMi here the ctmdi-
Q^* tion is, thiit if he aliened in fee,
it sbCNjld remain, kt. But if he
doee alieni the alienee will have
the fee. Ilien *ben the alienee
has thelee^ thie hm^ eannot re-
main by Che oendition, for it is
Mpagnabt that the alienadon
sboaM be made^ and tiial y^ the
remainder tboatd take eflfeet, and
that for the catHe aforesaid. And
for other eanse it seems void, for
the rase is, that his estate shall
cease faid the land remain, and a
remainder cannot be without a
precedent estate. Then when
the estate upon which the re-
mainder fthoald cease is deteN
mined, the remainder cannot take
effect, for it must be taken upon
some estate. And for this cause,
it seems, that the condition is as
to this point Toid." The reporter
adds, ** Note and qa. — for Vavisor
was of the seme opinion.**
(*) H. 21 H. 6, fo. 33, pL 21.
"Note, that this question was
moved among the justices — New-
ton being absent. A lease is made
for a term of years, upon condition
that the lessee shall not grant over
his estate. A nd whether that condi-
tion be void or not was the ques-
tion. Faiton, — The condition
seems clearly void, for in making
the lease is included that the lessee
may grant over his estate ; for sup«
pose that a feoffment be made in
foe simple, upon condition that
the feoffee shall not do waste, the
condition is void, because it is in-
cluded in the feoffment that he
may do waste; so that it is but
eppatkmm in offjetio. Ytlverton, —
In year case, when a feoffment i»
made in foe, upon coiidition that
he shall not do waste, or that he
shall not alien, t admit that the
condition is void, because, at the
time of the feoffment the fee and
(he right pass out of the person of
the feoffor, so that he has no right
reserved in him, and thus the con-
dition by him reserved is void;
but, in the case now moved, the
freehold and the fee do not pass
out of the person of the lessor, so
that he may well reserve this con-
dition, &c. Paiton, — Suppose a
lease be made for term of lifei
upon such condition that he shall
not commit waste, I say that this
condition is void, and yet a rever-
sion in fee simple still remains in
Ae lessor; and I say that in sudi
a case the condition is void, but
this is not on account of the da-
mage which may arise, but for
the inconvenience (inconsistency).
AiftA.— Suppose that one gives
land in tail, upon condition that
the donee shall not discontinue
tfte entail. Is this condition void ?
I think not-^for Thitning^ vrho
was chief justice, here gave his
land to his eldest son, upon such
condition that if he aliened, &c. it
shouhd remain to his younger son,
and thus he made the remainder
to two or three over. Astke, — I
think that such a gift in tail, with
the condition, is good and effec-
tual; for Thiming made such a
devise by the advice of the justices
of his time, &c. Patton. — ^No,
truly— and this I know, that it was
done by the assent of such justices,
but he said, that he would have
the gift openly notified in the
Common Pleas; and Hank, said
that he might well do it, and
laughed, and said that tSie whole
HILARY TER^, X GEO. IV.
The neat point is» that the cffer is net bsutbte. la Pierce
V. Win, after an elaborate argument, it was decided that
sach a condicion was void, both for uncertainty and because
it was not issuable^ It was urged by Pottexfm, who has
sported his own argument at great length, that the condi-
tio Dot to attempt or offer to alien, operated as a restriction
upon the act of alienation itself; but the Court thought '
that tliey must look at the express words of the will, and
that they had no power to frame a different condition. In
Beechcroji v. Broome the facts of the case did not call for
any decision upon the point now before the Court. That
case was not pnt npon the point, that an alienation by a
lawful act would necessarily pass the estate to the pur-
chaser. The true distinction is, that a condition to restrain
legal acts is void — illegal, good. No restriction can be
imposed upon any particular mode of alienation, unless
that mode be illegal. Then, as here the first devise passes
an estate in fee, the condition is ¥<^id. [Buyley, J* Sup-
pose an estate tail granted to A., with a proviso that if A.
should attempt to alien, the land shonid go over.] Upon the
authority of Mildmay*s case> this condition would be void.
Cur. udv. TuU.
The following certificate was sent to the Vice-Chan-
cellor.
This case has been argued before us by counsel. We
are of opinion — First : That Ware took an estate in fee
condition was void, and so it
Mems to me. And note, that in
Assize 24, pi. 8, there was found
»di a fph in Xajil, upon sik^ eon*
<htiQD as is meotiooed by FuUh,
aad Atcue ; and there the coodi-
tioB was held good by all the
Court; but it was said, that with
tttpect toyi;« strnpicy the contrary
» Ukw. And note, that this was
after averment; and also note,
that such gift in tail was made
with great deliberation upon the
cooclu8k)n of an accord between
Lord Fkz-Uugk and the Loiti
Lescrope.'*
The reporter adds, « Vide 13 H.
4, which accords with what PaMon
has said, in a writ de eftctione
Jirma, fee."
352
18S0.
GASES IN THE KIKG'S BENCH,
in the devised lands, under the will, with an executor;
devise over, to take effect upon conditions which are void
in law. Secondly: That if Ware conveyed a part of the
devised lands to a purchaser in fee, the title of the pu^
-chaser would not be affected by Ware's afterwards mort-
gaging or levying a fine, or suffering a recovery of, the
residue. Thirdly: That if Ware conveyed the whole
estate to a purchaser in fee, such purchaser would have a
good title to the fee against all persons claiming under the
will.
Tenterden.
J. Bayley.
J* LiTTLEDALE.
J. Parke.
Where a
trader, afler
liaviQg obtain-
ed his certifi-
cate under
three commis-
sions of bank-
rupt, under
none of which
auy dividend
had been paid,
was arrested
for a debt con-
tracted be-
tween the
second certifi-
cate and the
third bank-
ruptcy, the
Court refused
to discharge
him out of
custody on
filing common
bail.
And such
third commis-
sion was said
to be a nul-
lity (c).
Fowler v. Coster.
A Commission of bankrupt issued against the defendant in
1814^ under which be obtained his certificate; a second
commission issued in 1826, under which he also obtained his
<;ertificate; and in 1829 a third commission(a) issued, under
which he also obtained his certificate. The defendant
being arrested upon mesne process for a debt which had
accrued in 1828, Piatt in last Michaelmas term obtained
a rule under 6 Geo, 4, c. 16, s. 126(6), calling upon the
plaintiff to shew cause why the defendant should not be
discharged out of custody on filing common bail. By the
plaintiff's affidavits in answer, it appeared that no dividend
had been paid under any of these commissions.
Corny n shewed cause in the same term. The plainuff is
(a) Since superseded, Ex parte
LanCf in re Fowler, Mont. 12.
(6) Which enacto, ^ That any
bankrupt who shall, after hb cer-
tificate shall have been allowed,
be arrested, (or have any action
brought against him,) for any debt,
claim, or demand hereby made
provable under the oommissioa
against such bankrupt, shall be dis*
charged upon filing common bail.''
(e) Vide lumai Ex pairte WM, U re Merrtftoeaiher, Mont. 276, rviifrd.
HILARY TERM, X GEO. IV.
not barred of his common law remedy by action. Both
the last commissions issued since the present bankrupt act
came into operation. The debt is not provable under the
second bankruptcy, inasmuch as it had not accrued at the
tiine when the second commission issued. The plaintiff
could not prove under the third bankruptcy, because the
third commission was a nullity, on the ground that as 15s.
in the pound had not been paid under the second^ the after-
acquired property (a) of the bankrupt vested in the assignees
uoder that commission by 6 Geo. 4, c. l6, s. 127(b), and
353
1880.
(c) A right of action accruing
to the bankrupt against his assig-
nees, by virtue of an express con-
tnct with them, (CoUs v. harrow,
4TaaDt 754 ; Chippendale v.Tom-
linom, Cooke's B. L. 6tb ed. 446 ;
5itt V. (hb(fm, 1 Esp. N. P. C.
J 40;) would not, however, vest
in those assignees.
So, if the bankrupt, with the
consent of his assignees and cre-
ators, trade for his own benefit, it
woold be a fraud upon subsequent
creditors to seize the property with
which they bad entrusted him,
spon the fiiith of such assent, and
distribute it amongst the old ere*
diton.
Aootherspecies of property which
covld not vest in the assignees
nnder a precedent commission, but
which might be rendered available
to creditors under a new commis-
BOO, would be goods which, sub-
lequently to the awarding of such
pneedent commission, are in the
possesnoQ of the trader, by con«»
sent of the true owner (such owners
not being the former assignees,
^«&MiT. CkerreUj 7 Bingh. 663,
s&d 5 Moore fc Payne, 680.) Such
Swds could not vest in the ex-
i<tiog assignees under 6 Geo. 4,
c. 16, s. 197, as part of the fu-
ture estate of the bankrupt — since
the bankrupt himself would have
no estate or interest therein — and
yet the possession of these goods
may have been the sole cause of
the credit given.
So, if the bankrupt, having paid
lOi. in the pound, received 500/.
from the estate as his albwanct
under 6 Geo. 4, c. 16, s. 128, such
allowance could not be seized for
the benefit of the former creditors;
but there seems to be no reason
why this money should not be
made available towards satisfying
debts contracted in the course of a
tubtequent trading.
(6) By which it is enacted,
" That if any person who shall
have been so discharged by such
certificate as aforesaid, or who
shall have compounded with his
creditors, or who shall have been
discharged by any insolvent act,
shall be or become bankrupt, and
have obtained or shall hereafter
obtain, such certificate as aforesaid,
unless his estate shall produce
(after all charges) suflScient to pay
every creditor under the commis-
sion fifteen shillings in the pound,
such certificate shall only protect
VOL. V.
A A
GASE^ IN THE KIKG S BENCH,
•consequently the bankrupt could have acquired no property
upon which a third commission could operate. Till v.
Wilson (a) and cases there cited (5), Robinson, Ex parte, (m
the matter of Freer (c). [Litiledale,J. A commission msy
be taken out against an insolvent debtor whose effects are
vested in the assignee (<f).]
Gurney, contri. The third commission may have been
snpersedable, but it was not absolutely void. In Robinsonj
'Ex parte, the Court was merely unwilling to expose the
parties to the risk of being turned round for want of a suf-
ficient petitioning creditor's debt, where the doubt might be
removed by substituting the name of the petitioner RoMn"
son. To hold that the third commission was an absolute
nullity, would render all acts of the commissioners and assig-
nees void. [Parke, J, Under the old acts, after-acquired
property is not vested in the assignees, but is made liable
to judgments. Bayley, J. The defendant has obtained bis
certificate, but it is obtained under a commission under
which the plaintiff could not have proved.]
Piatt on the same side* Till v. Wilson is the case that
bis per<of» from arrest and im* who, under a second commission,
prisonment, but his future eitoto has not paid ]5«. in the pound,
and effects, (except his tools of cannot be a petitioning creditWy
trade and necessary household his propertjf being vested io tbe
furniture, and the wearing apparel assignee ander the second oomtus*
of himself, his wife and children), sion. This would not, howe?er,
shall vest in the assignees under prerenc such bankrapt (inom suing
the sfdd commission, who shall be out a commission of bankrupt a-
antitled to seize the same in like gainst an assignee under the second
manner as they might have seiaed commission, who had since be-
property of which such a bank- come indebted to tbe bankrapt bj
rupt was possessed at the issuing eapress contract. F«fe wtprij
the commission.'' 358 n.
. (4) wiM<(?»i.580; 7B»fcC.684. (d) As to which, see Jcl/tf t.
(() Tliese cases are all noticed MotiiUfitrd, 4 B.& A. 356; Skd-
in the judgment, pof^, 356. ileworth, Ev parte, 2 CAyn k
, (c) Montague & M'Arthur, 44, Jameson, 68.
where it was he]d> that a bankrupt
HILARY TERM, X G£0. IV.
fi«sMB mo8l Strongly against the defendant. In that case^
however, no certificate had been obtained under the first
eonunission before the second commission issued. A writ
of extent (a) may issue against the lands, goods, and person,
akbough the extendee has neither lands nor goods. If the
baakrupt had secreted goods under the third commission
he would have been guilty of felony, and would have been
estopped from saying that the third commission was void,
sod not merely voidable, if such commission had not been
ID fact abandoned. [Day ley, J. The submitting to the
secood commission raises a presumption. Parke, J. It is a
•trong argument for the defendant that the certificate is
Dide conclusive evidence of the trading, Slc If the cer-
tificate cannot be avoided by shewing that there was no
tiading, &c. why should it be avoided by shewing a prior
coounissioo ?]
Cur. adv. vulU
In this term. Lord Tenierden, C. J. after stating the facts
and the arguments, delivefed the judgment of the Court.
We are of opinion that the 126th section of 6 Geo, 4, c. l6,
Bttkes the certificate conclusive evidence only of theyoc^ of
the trading* act of bankruptcy, commission, and other pro-
ceedings, leaving untouched the vahdky and gff^ect of those
proceedings, and the manner in which they may be ques-
tiooed. Iq Martin v. OHara (6) it was held by Lord
Man^iekif that an uncertificated bankrupt is incapable
of trading or contracting for his own benefit: that all
the property which he acquires belongs to his creditors,
(a) The Court of Eicheqner, in legal impowhiliiy of the tnider>
ivuding the writ of capias extendi having any property upon which the
/mi, has tio jndicial knowledge eomtaisBion criuld operate. T6
that the extendee has no goods or make the analogy from the writ of
laiHhyStiU less that he will have extent applicahle to this view of the
DODe before the retnin of the writ, case, that writ should be supposed
Tlie dedsioo in Till y. Wilton, to issueagainsta party under a &^/
(«/«, vol. i. 580, and r Bam. St impauibUUy of possessing properly.
Cfosw. 684,) proceeds upon the (6) Cowper, 893.
A AS
3^6 CASES IN THE KING's BENCH,
1850. and that as he cannot trade for himself he cannot be thtf
object of a second commission ; and it was said by Bulkr.i*
to be perfectly clear, that a second commission cannot be
taken out against an uncertificated bankrupt. Lord Hard^
wicke, in Proudfooty Exparte{a), and Lord Loughborough/m
Nunn, Ex parte (b), have stated that a second commission
before the trader has obtained a certificate under the first,
is void at law. The same opinion has been expressed by
Lc^d Eldon on several occasions (c). In HoUingsworih,
Ex parte {d). Lord Thurlow appears to have entertained
a different opinion; and in Butts v. Bilke (e), Thomson,
C. B. doubted, and the Court of Exchequer desired that
the question might be stated in a special verdict. In the
very recent case of Till v. Wilson (f), this Court, however,
decided that a second commission issued before a certificate
had been obtained under the first, was absolutely void at
law ; and from that decision we see no reason to depart.
We consider that it is fully settled by the above authorities
that the great seal has no power to award a commission for
the purpose of distributing effects already vested in as-
signees under a prior commission, and that a commission
so awarded is void. A third commission, where 1 5s, in the
pound has not been paid, appears to us to be equally void.
The 6 Geo, 4, c. 16, s. 127, differs from 5 Geo.% c. dO,s.5»
which directs that the future effects of the bankrupt shall
remain liable to creditors, that is, to individual creditors.
This, according to Hovill v. Browning {g) and Todd v. Max-
Jield{h) did not prevent such future effects from vesting in
the assignees under a subsequent commission. But by the
present act, the property is expressly vested in the assignees
under the former commission, who are therefore entitled to
all the effects of the bankrupt ; so that there is nothing upon
(a) 1 Atk. 951. (e) 4 Price, S40.
(6) 1 Rose, 3««. if) Ante, 285(6).
(c) 15 Vc8. 114, 543; 16 Ves. (g) 7 East, 154.
«36,478;lRose,13tf,^85;2Ro9e, (A) 5 Dowl. & Ryl. 258; 5
159, 17S. Bam. & Cressw. 932.
ift) Cooke B. L. 10.
HILAHT TERM, X CEO. IV. 357
irfcich a subsequeot commission can operate (a). In this 1830.
respect the present case is brought precisely within the
proper ground of the decision in Martin v. G'Hara. We
caoDot think that, for the purpose of enabling a party to
obtain his discharge, we are bound to give effect in a Court
of Law to a commission which for any other purpose is
wholly ineffectual. Frequent discharges under the bank-
rupt laws are injurious to the honest tradesman. Under a
second commission, therefore, \5s. in the pound is required
to be paid before the bankrupt is enabled to trade again.
We must follow the spirit of that enactment, by deciding
against the validity of a third commission where no such
pajment has been made. The consideration of the bank-
rupt's discharge is the giving his property up to his cre-
ditors. Here, the defendant had nothing to give up — and
kafiog nothing,' he, in some sort, committed a fraud upon
every person from whom he obtained credit.
Rule discharged (A).
(«) Std vide ante, 353 (a).
W Aod fee Phillips v. Hopwood, ante, 15; 1 Bam. & Adol. 619.
Doe d. Mann v. Walters.
Ejectment for lands in the parish of Mawgan iq An agent to
Mcneage, in the county of Cornwall. At the trial before has no implied
BttTrough,J. at the Bodmin Assizes (c), 1829, the following n?«hority to
r _ ** give notice to
lacts appeared : — quit.
The lands in question were part of the glebe of the , Wherenotice
^ ^ ^ o to quit 1ft given
parish of Mawgan in Meneage, and had been demised by byana|;ent,the
tic lessor of the plaintiif^ who was the rector of the parish^ sucbaijentmust
to the defendant from year to year. The lessor of the he complete a
half year be-
(c) Coanael for the plaintiflfy Wilde, Segt. and Coleridge ; for the fore the expi-
^efakdaoty FoUeii, ration of the
notice, or at
M«t before the day of the demise laid in a declaration in ejectment^ brought in re-
1*«t of such nouce.
CASES TS THE KINg's BENCH^
plaintiff being non-resident^ the defendant's rent was ptid
from time to time into a banking-house in the neighboaring
town of Helston, upon the following receipts : —
'' Union Bank, Hebton,25th January, 1823.
*' Received of Mr. Joseph Walters, twenty-five pounds
to account of Rev. Horace Matm.
" For Grylb * Trevenem,
£25. ^ John Kendall, junior.*'
" Union Bank, Helston, 10th January, 1824.
" Received of Rev. Horace Mann, seventy-five pounds
to account.
25 rent. " For Grylls Sf Trevenem,
50 cattle, corn, &c . ** R. Edmonds, junior.*^
£75.
The receipts for the two following years were in the
same form as that of 25th January, 1823. On the 22d
June, 1 827, the following notice was served on the defend-
ant's wife at his dwelling-house : —
'* Mr. Joseph Walters,
^^ I do hereby, as the agent for and on the behalf
of the Rev. Horace Mann, your landlord, give you notice
to quit and deliver up, on the twenty-fifth day of December
next, the possession of the dwelling-house, farm lands, and
premises, with the appurtenances, which you now bold of
the said Horace Mann, situate in the parish of Mawgan in
Meneage, in the county of Cornwall, or at the end of the
current year of your tenancy, which shall expire next after
the end of one half-year from the time of your being served
with this notice. Dated the 22d day of June, 1827.
" Yours, 8ic. H. M. Grylis,
" Agent for the said Horace Mann*'
HILARY TEAM, X GEO. IT. 358
H. M, Grylb was an attorney residing at Helston^ and 1830.
was also a parser ip the Helston bank. It was contended ^^^
for the defendant, that the notice was void for want of d.
authority. The learned judge was however of opinion that ^
H, M, Grylh, as a receiver, had authority to determine the Waltsm.
tenancy, inasmuch as it had been repeatedly held that a
rtceiver has such an authority (a) ; and the jury, under his
lordsbip a direction, returned a verdict for the plaintiff.
Id Michaelmas term, 1829> Folleii obtained a rule nisi
/or a new trial ; against which,
Coleridge now shewed cause. It will not be necessary
to rely upon the cases in which a receiver appointed by the
Court of Chancery, has been held to be an agent sufficiently
authorized to give a notice to quit. In Goodtitle d. King v.
Wooiward{b), where the notice was signed by an agent, and
purported to be given by him as agent for all the lessors of
the plaintiff, (who were trustees for the repair of a highway «)
it appeared that at the time that the notice was served,, the
Mtbority to the agent had been signed by part only of the
trustees, and that the rest had signed it subsequently ; and
it was held that the subsequent recognition gave effect to
the authority. So here, the bringing of this action is a
fufficient recognition of the authority of the agent. The
distinction is between a recognition of the notice, which
would not be sufficient, inasmuch as the lessee must receive
inch a notice as he can act upon at the time, and a recog«
aitioQ of the agency, which is sufficient upon the principle
adopted in Goodtitle v. Woodward — omnis ratihabitio retro*
traUtur et mandato aquiparatur. In Right v. Cuthell{c)
ikt notice was insufficient, because by the terms of the
lease it waa required to be given in a particular form.
(•) Tdt WiOdmon ▼. CoUey, (c) 5 East, 491; 5. C. differently
S Ban, $694; Doe d. Marsack v. reported as to the proviso in the
lUid; IS Bast, 57 ; H^nne v. Lord lease, 9 Smith, 83, 84 n. ; 5. C. 6
JStBienmgK 1 Ves. jan. 165. Esp. N. P.C. 149.
(i) 3 Bam.& Alders. 689.
<360 CASES IN THE KINg's BENCH^
1830. Here, the notice upon the face of it, appears to be good,
and the only question is as to the agency, which is suf-
ficiently ratified here by the adoption of the act in bringing
the ejectment. Rotoe d. Dean and Chapter of Rochester v.
Pierce {a).
Follett contr^. In Goodtitk v. Woodward, the notice
was read to the tenant and not objected to by him. Here,
the service was on the wife. The defendant could not have
safely acted upon this notice. Nor was there, indeedi any
evidence that the lessor of the plaintiff had authorized the
bringing of iht present action.
Bayley, J. — ^There must be a new trial. The autho-
rity to give the notice to quit is a question for the jury. I
at present give no opinion whether Goodtitle v. Woodward
was rightly decided or not; but supposing that case to have
been rightly decided, it does not make out the plaintiff's
proposition, as no recognition of the agency before the daj
of the demise laid in the declaration is shewn, which at all
events is essential.
LiTTLEDALE, J. — ^There must be a new trial. Upon
this evidence, if I had been on the jury I should have
found for the defendant. There was no proof of authority.
The supposed recognition is clearly insufficient here. But
my present impression is, that the notice to quit would be
invalid unless it were ratified full six months before the
day on which the notice would expire.
'Parke, J. — I am not prepared to say that if the notice
had been delivered personally to the defendant, and he had
assented to the statement of Grylls^s being agent; the notice
would not have been sufficient ; but it appears to me that
there is no proof that the lessor of the plaintiff delegated
any general authority to Grylls*
{a) 2 Campb. 06.
HILARY TERM, X GEO. IV. 361
A persoo entrusted by the landlord to receive rents has isso.
DO power to give notice to quit. ^^^"^"^^^
Rule absolute (a). <r.
•Maitv
(«) See the cases collected and exanuDed in Doe d. EUioU v. HuUne, ^*
Ha*mmond v. Blake.
Debt upon 6 Geo. 4, c. 125 (A), for a penally incurred
by the defendant for acting, himself, as pilot of a vessel of
which be was master, and of which a duly licensed pilot
had offered to take charge. Plea : nil debet.
At the trial before Lord Tenterden, C.J. at the sittings at
Guildhall after last Michaelmas term, a witness proved that he
oflfered bis services to the defendant, who knew that he was a
pilot, and refused to employ him, and continued to pilot the
vessel himself, though navigating within the limits where
he was bound to take a pilot, if one duly qualified should
tender himself. It was not proved that the witness prth-
duced his licence, and no question was asked about it.
The master of
a vessel does
not incur the
penalties im-
posed by
6 Geo, 4, c.
126, B. 58, for
refusing to
take a pilot on
boar(1,Sinless
it distinctly
appear that the
pilot at the
time ofoffering
his services
produced hit
licence.
(h) By which it is enacted (sec-
tioo 58) " that every roaster of any '
sliip or vessel, 'who shall act him-
9tif at a pilot f or who shall em-
ploji or continue employed, as a
pilot, any unlicensed person or
»nj licensed person acting out of
the limits for which he is qualified,
or beyond the extent of his quali-
fication— after any pilot licensed
tad qualified to act as such, within
the limits in vrhich such ship or
vessel shall then actually be, shall
have offered to take charge of such
ship or Tessely or have made a
signal for that purpose, shall for-
feit for every such ofience double
^ amount of the sum which
would have been legally demand-
able for the pilotage of such ship
or vessel ; and shall likewise for-
feit for every such offence an ad-
ditional penalty of £d for every
fifty tons burthen of such ship or
vessel, if the corporation of Tri-
nity House, of DeptfordStrondy
as to cases in which pilots licensed
by or under the said corporation
shall be concerned, or the said
lord warden for the time being, or
his lieutenant for the time being,
as to cases in which the cinque
port pilots shall be concerned,
shall think it proper that the per-
son prosecuting should be at li-
berty to proceed for the recovery
of such additional penalty, and
certify the same in writing/'
Hammond
362 CASES IN. THE K1NG*S BENCH,
18S(K For the defendaDt it was contended, that it was necessary
to prove that the licence had been produced by the pilot,
on the ground that a penalty is imposed by 6 Geo. 4, c. 125,
Blaxs. 9. 66 ^£|)^ Qn pilots acting in that capacity without producing
their licence. Lord Tenterden, C. J. adopted this con-
struction of the statute and directed a nonsuit, which
Scarlett, A. G. now moved to set aside, and contended
that the production of the licence was unnecessary. The
defendant thought fit to pilot the vessel after he had re*
ceived an offer of the witness's assistance. It was proved
that the defendant knew that the witness was a pilot The
provisions of the sections 58 and 66 are separate and dis-
tinct. If the defendant had demanded to see the licence
under a doubt of the witness being a pilot, it might have
been an excuse. But if he does not chuse to ask for it, the
case must be decided according to the real fact. Where a
provision is accompanied with a qualification in the same
clause, the plaintiff is bound to negative the qualification.
But if the clauses be distinct, the qualification is matter of
defence to be proved on the part of the defendant. This
may be illustrated by a reference to the game laws. In a
declaration you must negative the exception, because it is
(a) Which enacts, ^ that no be desirous of employiDg him as a
person shall take charge of any pilot, or to whom he shall offer his
ship or vessel, or in any manner services, on pain of forfeiting a
act as a pilot, or receive any com- sum not exceeding 30/. nor less
pensation for acting as a pilot, un- than 10/. for the first offence; and
til his licence shall have been re- for the second or any subsequent
gistered by the principal officers offence, a sum not exceeding 5QL
•f the custom-house of the place nor less than 30/., and upon lor-
at or nearest to vhich such pilot ther pain as to any person U-
shall reside, (wliich officers are censed as aforesaid, of forfeiting
hereby required to register the his licence or being suspended
same without fee or reward), nor from acting as a pilot by and at
without having his licence at the the discretion of the corporation
time of his so acting in his per* or other authority from whidk
sonal custody, and producing the such pik>t's licence was derivsd,
same to the master of any ship or either for the first, second, or any
vessel, or other person who dull sabsequtnt offence."
HILARY TERM, X* GEO. IV*
coDtaiDed in the same clause (a). If it had been meant that 1830.
the master should not be liable unlesa the pilot produced
his licence, it would have been easy to have said so.
Lord Tenter DEN, C. J. — ^We cannot say that a master
is liable to a penalty for refusing to allow the pilot to do
an act which would have rendered the latter liable to a
penalty.
Batley, J. — Though the 58th section contains no pro-
I'ision for the production of the licence, the 70th section
provides that no person shall take charge of a ship without
producing his licence.
LiTTLEDALE, J. — The Subsequent section contains a
prohibition restraining all persons from acting as pilots
without producing their licence.
Parke, J. — Upon the evidence it must be taken that
the licence was not produced. This is required by the act
to be done before the pilot can take charge of the vessel.
It is of great consequence that the master should have the
means of knowing whether the person to whose care the
ship is to be trusted is duly qualified.
Tbe 66th section containing no provision requiring a de-
mand of the production of the licence; the pilot must pro-
duce it, whether demanded or not.
Rule refused.
U) But io a declaration for pe- evidence. Jelfs v. Ballard, 1 Bos.
oalties (broSeoces against the game & Pol. 468, 469.
lawB a general averment of want As to the course pursued with
ofqualiScatioo is sufficient, without respect to negativing qoalification
specially negativing the particular in cases of summary conviction
^wKBcations mentioned in 32 St before justices, see Rat v. Stone,
J«3 Car. 2, c. 35, Bhet v. NeedSf . 1 East, 639, 649; Ret v. Tyrner,
3 Conyiis, Kep. 524. 5 Manle & Selw. 806; Rex v.
Nor is it incumbent on the plain- Marsh, 4 Dowl. & Ryl. 360, and
^towfsktart the qualiiications in 3 Bara. & Cressw. 717.
363
364 CASES IN THE KINO's BENCH,
s^^?^ Beknasconi and others v, Farebrother» Winchesteh,
and Wilton.
A trader does 1 HIS was an action of trespass, for breaking and entering
not commit an . , . ^ . V . .«- , • • •
act of bank- the house and lands of the plamtinB, and seizing and carry-
7g7o r'c ''' '"8 "^"^ ^^^^^ Soo^s and chattels.
16, sect. 3, by Plea by Farebrother and Winchester, first, not guilty,
STunlCTshT secondly, a justification as sheriff of Middlesex, under a
absent him- fieri facias against J. II. Chambers the elder, at the suil of |
place at which ^^^ defendant Wilton^ under which they entered the dwel-
1 '*'?S'^' '" ling-house in which &c., the door being open, in order to
course of his seize the goods of A. H. Chambers the elder then being
life and busi- therein, and did seize and carry them away. Replication:
ness, ne ex*
pected to be de injuria su& propria, absque tali caus&. i
whShehas The defendant Wilton pleaded, first, not guilty; and
appointed to secondly, that in Easter term, 8 Geo. 4., he obtained judg-
lar creditors, ment against A, H. Chambers the elder, for 1828/. debt,
A comrais- ^^^ 7/^ costs, whereupon he issued a fieri facias directed
sionofbank- . "^ .
rapt, describ- to the sheriff of Middlesex, which writ was delivered to
Ls*«^ban^kere^* ***® defendants Farebrother and Winchester, then being
being traders such sheriff, to be executed ; and that he, the defendant
the^romion ^H^on, as the servant of the defendants Farebrother and
of the suitute Winchester^ and by their command, entered the said dwel-
tituled, &c." ling-bouse in which, 8cc., the door being open, and seized
is good, ^uj carried away certain soods of A. H. Chambers the
though they -^ ...
had ceased to elder, then being therein. Replication, de injuria sua,&c
b^fore^hat ^^ ^^^ *"** **®'^°''® ^^^^ Tenterden, C. J., at the ad-
statute passed, journed Middlesex sittings after Hilary term 1829* the ^^^
for the word . .
'•bankers "is was this :—
descriptive of The goods in respect of which the action was brought
only, and bad been the property of A* H. Chambers the elder, wba
!!*f d**"^"ig a bad carried on business as a banker in partnership with his
sufficient alle- son, A. H. Chambers the younger, until the year 1824,
Sey°were,'as ^^^^ ^^^y 'topped payment. In November 1825 a com-
snch, liable to
the bankrupt laws.
Such a commission may be supported by evidence of any species of trading carried
on by the bankrupu after the passing of the statute.
HILARY TERM, X GEO. IV. 365
loission of bankrupt issued against them, under which the 18S0.
present plaintiffs were chosen assignees, and in February r^^^^^^^^
1826 an assignment was executed to them :. but they did and others
Dot declare in the present action as assignees of the bank- v ^' h
rupts((i}. Subsequently to this assignment, the defendant andothersi
Wilton had brought an action against A. H. Chambers Xhe
elder, for an alleged debt of 1828/., in which action judg-
ment was suffered to go by default, and a writ of fieri
facias afterwards issued, under which the defendants Fare^
brother and Winchester, then being Sheriff of Middlesex^
seized the goods now in dispute. The commission, which
was produced on the part of the plaintiffs, described the
bankrupts as *^ bankers, being traders, according to the pro-
visions of the act, 6 Geo. 4, intituled/' &c., upon which it
was objected on the part of the defendants, that the Bank-
rupt Act not having passed till 1825, and the bankrupts
baTJng ceased to trade as bankers in 1 824, they had never
traded as such since the act came into operation ; that it
was necessary to shew a trading, such as that described in
the commission, carried on since the passing of the act ;
(ff) See the case, entitled Ber^ though they act as trustees for the
MieoM atui others v. Farebrotker general creditors. Chambert be'
ud Wincketter, Sheriflf of Middle- came a bankrupt in 1825, and the
sex, and Henry Wilton, 7 Barn. plaintiffs were chosen assignees
h Cress. 379, where a motion to immediatelj^ afterwards. Tliey
stay the proceedings in thU action have been in possession of the
ttotil the sheriff was indemnified, farm and stock ever since; they
was refused, on that very ground. have renewed part of the stock.
Lord Tenterden, C. J., there said, and have brought in fresh stock of
"Ifwe were to stay this action of their own. After such a posses-
tJespsss, we should take from the sion, the sheriff is to be deemed
piaiDtiffit that ordinary protection prim& facie a trespasser if he
to which they are by law entitled, levies upon it. He may, perhaps,
In the first place, the plaintiffs do be able to defend himself in the
notbriog this action in the charac- present action, by shewing that
ter of assignees, but upon their the commission against Chambers
owQ possession. If they had sued is invalid, but even such a case
as assignees affirming the commis- would only protect him as to the
sioojic would have opened another seizure of stock which had pre-
consideration. They claim the viously belonged to Chambers^*
property legally as their own,
CASES IN THE KING S BENCH,
and that for want of such evidence the present commiuioB
^^^y^ could not be supported. It was answered^ that it was uii*
^d others necessary for the commission to describe the trading at all;
Farebrotheb ^^^^ ^^® general term " traders " used in this comniissioo
and others, was sufficient, and that the word '* bankers " might be taken
as a description, not of the trade, but of the persons of the
bankrupts; and that evidence of a subsequent and different
trading, which it was proposed to give, would support the
commission. Lord Tenierdeng C J. was of that opioion,
and received the additional evidence, from which it ap*
peared that the bankrupts, since the passing of the act, had
carried on business, in conjunction with one White, as
pozzolana manufacturers. An act of bankruptcy by Cham*
bers the elder was clearly proved, and not, indeed, disputed.
To prove an act of bankruptcy by Chambers the younger^
which was alleged to be by abunting himself from bis
usual place of abode^ with intent to delay his creditors, the
following facts were given in evidence. After Messrs.
Chambers had stopped payment as bankers, a committee of
their creditors was appointed to wind up the affiairs of the
concern, which committee hired a house for that purpose in
South-Molton Street, where they met and carried on the in-
vestigation of the accounts. A letter of licence was granted
to Messrs. Chambers to protect them from arrest, and they
undertook to attend the committee in South-Molton Streeti
and to assist them in winding up the affairs, whenever thej
should be required so to do. The committee continued
their investigation up to the 9th of November 1825, and
up to that time Chambers the youi^er did attend them
whenever he was required to do so. Upon that day the
committee was dissolved, and the letter of licence revoked,
and Chambers the younger was never afterwards seen in
South-Molton Street. Between that day and the 19th of
November, a sheriff ^s officer, who had a writ against him,
frequently searched for him there, but always unsuccess-
fully ; and it was afterwards discovered that, during thst
interval, he was residing in a house in North Cresceat,
HILARY T£RM> X 0£0. IV. 367
Tottenimiii-Court Rosd, which be had occupied for two 1830.
jcars. It was contended on the part of the defendants^ that S^^^^^^
Bernasooni
this was not aufBcient evidence of an act of bankruptcy bj and otben
Chambers the jounger ; but Lord Tenterden was of opinion p-^^BBaoTHE*
that there was some evidencey though slight^ of an ab^ andotben.
anting himself, and that it ought to be left to the jury. It
was further contended, that Chambers the elder, having stfi-
mtted to the commission and received the benefit of it,
was estopped from disputing its validity in a Court of
Law {a) ; and that Wilton had acted in colUisioa with him
in obtaining his judgment, end was therefore estopped in
like manner. Lord Tenterden was of opinion, that even if
Wihon had acted collusively, (which was a qaestson for the
jory), and was thereby estopped> the other defendants
dearly were not; and left the case accordingly to the jury,
who found a verdict for the plaintifKu In Easter term
18^9, Gumejf obtained a rule nifi for a new triaU on the
ground of the invalidity of the commission, and of the in*
efficiency of the evidence of an act of bankruptcy by
Chambers the younger. Lord Tentetdin referred to Small,
Ei parte (b).
Scarlett, A. G., F. Pollock, and Hutchinson shewed
cause. First, the description of the bankrupts in the com*
mission was sufficienti and the plaiotiffs were properly al-
lowed to give evidence of a trading by them as pozsoiana(c)
manufacturers. The commission described them as *^ bank-
ers, being traders within the meaning of the statute
t> Geo. 4, c. 16." The secofkl section of that statute con*
tains an enumeration of the persons who shall be deemed
traders liable to become bankrupt, and it was sufficient to
shew that Messrs. Chambers came within the description of
one or other of those persons. The word '' bankers " is
descriptive, not of the trade, but of the person, and may be
either treated as mere addition^ or rejected altogether as
(a) See Watton t. Yf ace, 7 Dowl. cited.
k Rjl. eSS; 5 Barn. & Cress. (6) 2 Wils. Chancery Cases, 85.
15S, — end the authorities there (r) A sort of cement.
368 CASES IN TH£ KINC'S BENCH^
1830. surplusage; and then the bankrupts will stand described
„ ^'^^'^^ simply as *' traders/' which is quite sufficient. If they had
BERNASCONf ,'^, ., , , .. ,, ....r
and others heen described as '' traders, being bankers, instead of
^* *• bankers, beinir traders," there micht have been some
rABEBROTRER .
and others, ground for the objection. In Hale v Smali (a), a commis-
sion of bankrupt was issued against a trader, describing
him as *' a dealer in cattle, and seeking his trade of living
by buying and selling/' without the words ''dealer and
chapman/' At the trial of an action of trespass brought
by him against his assignees, evidence was received of a
dealing in hops, and a verdict was found for the defendants.
That verdict was afterwards set aside, and a new trial
granted, not upon the ground that the evidence was inad-
missible, but that it might have operated as a surprise upon
the plaintiff. On the second trial the same evidence was
again received, after objection, and was held to have been
properly received, as the words '' dealer in cattle " were
descriptive of the person only ; and the general statement
that the bankrupt got his living by " buying and selling,"
was sufficient to let in evidence of any trading whatever.
Upon the same principle the language of the commission
here, '' being traders according to the provisions of the
statute," forms a sufficiently general statement to render
evidence of any species of trading admissible (6). In £i
parte Herbert (c) the bankrupt was described as ''a water-
man, dealer and chapman," and Lord JEldon, C. held, that
the general allegation which followed, of '* seeking a living
by buying and selling/' was sufficient to render the com-
mission valid. In Smith v. SandilaMds{d)t where the bank-
rupt was described as *' money scrivener" o///y, it was held,
by Holroyd,J.f that the plaintiff, in an action to try the
validity of the commission, was not precluded by that
limited description from proving any species of trading.
(a) 4 B. Moore, 415; 9 Brod. (c) 9 Ves. & B. 399; 9 Rose,
& Bingh. 25. Reported also in 8 248.
Taunt. 730 ; 3 B. Moore, 58. (rf) Cow's N. P. C. 171. And
(6) Vide Bemasconi v. Lard see Tanner, ex parie^ 1 Mont, k
Clengall, nntty vol. i. p.S27,n.(&). Bligh, 391.
* HILARY TERM, X GEO. IV. 369
In Bemasconi v. Lord Glengall(a), where the commission 18S0.
stated that A. and JB., bankers, being traders according to Bebvascoki
the provisions of the 6 Geo. 4, c. l6, some time since nad others
became bankrupt, within the intent and meaning of that Fj^bebrothbb
statute, it was held that it was sufficiently alleged that the and others,
bankrupts had traded, and had committed an act of bank-
ruptcy, since the passing, and within the operation of that
statute. And Lord Tenterden, C. J./ in the course of his
judgment, said, '' The use of the word ' bankers ' only ih
this commission, without the words 'dealers and chapmen/
upon which an objection has been founded, presents in
reality no difficulty at all ; because that word is descriptive,
not of the tr<ide of the bankrupts, but of their persons only.
The commission is awarded against them as ' being traders
according to the provisions of the statute/ which is a per-
fectly sufficient allegation of their being traders."(^) That
seems decisive of the present case upon the first point.
[Parke, J. Might not a commission of bankrupt issue
against J. B. without^any description ?]
Then, secondly, there was evidence to go to the jury of
an act of bankruptcy having been committed by Chambers
the jounger, by absenting himself from the house in South-
Molton Street, and the jury having been satisfied with that
evidence, the verdict ought not to be disturbed on that
point. It was clear thzi Chambers the younger did absent
himself from the house in South-Molton Street, and it was
for the jury to say with what intent he did so.
Gurney, on the following day, in support of the rule.
The Court ought not to be called upon to make good the
blunders of the parties. In Smith v. Sandilands (c) the
parties had omitted to draw the legal .result. In Bemasconi
v. Lord Gler^aU(d) this objection, was not taken, and the
Court was therefore not called upon to decide the point.
(a) Jnte, vol. i. p. 326. (c) Suprd, 368.
(6)r6irf.830. (d) AnU/u S26.
VOL. V. B B
870 CASES IN THE KINO*S BBNCH^
18S0. In Hak v. Small (a) the party was described as seeking his
^^^^"^^^ living by buying and selling. Here« the manufactaring of
and others cement would have been a particular instance of such
^- trading. \Bayley, J. You do not notice the ChanceUor's
and othen. order of 18X6, which directs that no commission shall be
issued in which the bankrupt is described only as ''/crrmer,
grazier, drover ^ or underwriter** {p\ and that, where no other
description is given in the bond and affidavit, the words
'' dealer and chapman" should be added in the petition sod
commission.] That order does not apply since the late
act. \^Bayley, J. The object of that order was to obviate
objections on the ground of the non-appearance of the
liability of the party to the bankrupt laws, and the conse-
quent jurisdiction of the Chancellor to issue a commission.
The only use of referring to it now is to shew that the
Chancellor thought a specific order necessaiy.]
Campbell, on the same side. As to the tradipg as poz-
zolana manufacturers, the understanding of the profession
has been, that in all cases where a different trading from
that set out in the commission has been admitted to be set
np, the commission has had the words dealer and chapman,
or the party has been described as carrying on one of the
trades mentioned in the act. This was the case in Herbert,
Ex parte {c), and Hale v. Smalt. In each of those cases,
the description of '* persons using trade of merchandize"
occurs. To shew the general understanding of the pro-
fession upon this point, Mr. Eden*s book(d), though not an
authority, may be adverted to. In the case referred to bj the
L#rd Chancellor, in Small Exparie{e), evidence of a trading
of a different description from that mentioned in the com-
mission was admitted under the general words ; because it
(a) 8 Brod. & Bingh. 85, and 4 at that time brii«r the parties who
R Moore 415, after a lecond trial, eiercised then, wiriim the ope-
overruling S, C, upon a former ration of the bankrupt laws,
trial, 8 Taunt. 730, and 3 B. (c) Sujtrd, 368, w/ri, 3T2.
Moore, 58. (rf) Eden, B. JL first ed. 53.
(b) Which occapations did not (e) Stqnri, 367.
HILART T£RM, X 0£0. IV. 371
was necessary for the plaintiff, vfho, by bringing an action 1830.
complaining of a commission^ admitted that he was the per* n^^^*^^*^^
son against whom it issued, to shew, not merely that the and others
commission was supersedable, but that it was absolutely » ^'
void at law. As to the suggestion thrown out yesterday and others,
by Parke, J. as to whether any trading at all was necessary
to be stated, and whether a commission might not issue
simply against A^ B,^ — it is to be considered that the power
^veo by the commission" is enormous, extending tb the
body, lands, 8lc. of the party : — In the exercise of such
a power, it is necessary that the jurisdiction should be
shewn. This is very analogous to the case of warrants
granted by magistrates, in which it is necessary that it
should appear upon the face of the instrument that the
magistrate is acting within his jurisdiction, and that the
party has been charged with an offience witliin his cogni-
zance. In an award, the authority of the arbitrator need
not perhaps be recited (a), — not so here. It is sub-
mitted that it would not be enough to say ** being a
trader." The second section enumerates the trades which
subject and which do not subject the party to the opera-
tion of the bankrupt laws. Both classes may be con«
sidered to be traders, but the commission should shew that
the party comes within the first division. It should state
precise facts, or at least allege that the party was a dealer
UKi chapman. Then the Court cannot strike out the word
" bankers". The words '• bankers being traders" must
mean traders as bankers. It would have been different, if,
instead of "bankers/' the word "esquires'* or ''gentlemen''
had been used. Suppose the commission had stated that
the Chancellor had been informed that Chambers had com-
mitted an act of bankruptcy by publishing a declaration of
insolvency in the London Gazette, such a commission could
not have been supported by proof of any other act of
bankruptcy. [^Parke, J. The commission does not state
the petitioning creditor's debt, nor does it state the nature
(«) The parties maat take notice of the terms of their own sobnussioa.
BBS
CAS£S IN THE KINGS BENCH,
of the act of bankruptcy.] It states that the party has
become bankrupt; but it is submitted that the commission
Beanasconi
and others would be good« if instead of reciting that the party had
^- become bankrupt, it had said '* provided he has committed
and others, an act of bankruptcy, &.c/' A decision in favour of the
present commission would lead to great looseness of de*
scription. Before the Vice-Chancellor the point respecting
the manufacture of pozzolana never arose, nor did it arise
in Bernasconi v. Lord GkngalL \Scarleltt A. G. The
trading as pozzolana- manufacturers was before the Chan-
cellor.] The case went before the Chancellor upon the
second point, — whether thp act of bankruptcy was sufficient.
No act of young Chambers after the alleged act of bank-
ruptcy can be given in evidence to support this commission.
It might be said that Wilton is affected by the act of the
elder Chambers in surrendering to the commission. It
was necessary to prove an act of bankruptcy between
the 1st of September and the 19th of November. The
sheriff's officer proved a going to South-Molton Street, and
that young Chambers was not found there, but there was
no occasion for his being there after the committee for
l^rinding up the affairs had ceased to act. {_Bayky, J-
There was an accumulation of letters in South-Molton
Street.] It must be a place from which he absents him-
self. Where a trader breaks an appointment to meet a
party at a particular spot, that is an absenting himself; but
the usual case of absenting proved, is an absenting from the
dwelling-house. Young C/uimbers*8 dwelling-house was
in North Crescent, where no one went to inquire after
him. There was no reason to suppose that he might not
have been found there at any hour. The not going from his
dwelling-house to South-Molton Street, where he had no
business to transact, was not an absenting himself. Chant'
bers had carried on business in Bemers Street. In 18^4
Chambers ceased to carry on the business, and it was con-
ducted under inspectors, who employed other bankers.
This is not like the case which has been referred to of a
' HILARY T£RM, X GEO. IV. 373
limber-merchant winding up his business. The office in isso.
South-Molton Street was taken by tht trustees. Young J^^"^^^
y„ . 1 1 i. • • ..... Bernasconi
tnamben attended from time to time to assist m winding and others
up the concern until the deed was executed, after which ^ ^'
• 1 1 . -TT Farebrother
te would have been an intruder and trespasser there. He and others.
had no licence to go to South-Molton Street after the 9th
of November. If a person changes his chambers in the
Temple he would send for letters to his former residence,
but it would be verj hard to say that he committed an act
of bankruptcy in not going there. [Scarlett, A. G. The
Cbaocellor has given judgment upon this very pointy as ap*
pears fi-om the short-hand-writer's note. Lord Tenterden,
C.J. It does not come to us properly accredited.]
F. Kelly, on the same side. By the 8dd section of tho
late statute^ the issuing of a commission is made notice to
all the world for several purposes. Many questions in-
volving property to a great extent have been decided upon
this clause^ or upon similar provisions in former statutes.
This might work great injustice ; for how can persons take
notice, that the commission issued in the present form was
in reality a commission not against Chambers and Co. the
bankers, but against fVhite and Co. the pozzolana-manu-
facturers? A commission might thus have the effect of
directing the attention of the public to quite different per-
sons from those against whom it was really taken out (a).
In Herbert, Ex parte, the allegation of " seeking his living
hj buying and selling" was the statement of a particular
node of trading pointed out by the act. That is a matter
of fact. Here, if the trading can be made out at M, it
most be a conclusion of law.
The alleged act of bankruptcy is open to this observa-
tion—that the motive of the absence of young Chambers
from the office in South-Molton Street is explained by the
clause in the deed. He had nothing to do there but to
come when he was required by the trustees. After the re-
location of the letter of licence he had no business there,
(a) Vide Sievem v. EUzie, 3 Campb. 956.
374 CASES IN THE KING's BENCH,
1880. IBayky, J. He went for the letters. Lord Tenterden, C.J.
^ ^'-^^'^ He leaves his books and papers there.] There was no cove-
Bebkasconz , ,,.,., ,^, , J
and others n&ot by young Chambers, as by old Chambers, to attend.
c ^* The difference between the effect of the acts of old Cham-
jrAREBBOTHEB
and others, bers and young Chambers was not pointed out to the jury*
The learned judge told them that although any thing accom-
panying the act of bankruptcy would be evidence against
all the world, and that the conduct of the parties since (be
commission, as the claim of protection by young Chambers
immediately after the bankruptcy, might be taken into con-
sideration^ yet what he said after the time of the supposed
act of bankruptcy is not evidence for the defendants (a)»
Scarlett, A. G. It is an important question whether a
bankrupt^ by contracting new debts, shall enable creditors
to dispute a commission which the bankrupt himself could
not have disputed.
Cur. adv. vult.
Lord Tentbrden, C. J. afterwards delivered the judg*
ment of the Court. After stating the objection to the form
of the commission, his Lordship said '' We think that the
word " bankers" as there used, may be considered as a
description of the person ; that it is not necessary that the
particular species of trading should be set forth ; and that
the commission would have been good, if *' esquires" or
" gentlemen" had been substituted for *' bankers.'* This
objection therefore fails.
The second ground of the application for a new trial is,
that no such evidence was given of an act of bankruptcy
committed by Chambers, junior, as ought to have been left
to a jury. The plaintiff's answer to this objection at the
trial waS| that the connection between Wilton and Chambers
senior was such as to preclude Wilton from disputing the
commission as against Chambers, senior ; and that be was
therefore equally estopped from disputing the commission
(a) Vide Smallcambe ▼. Bruges, M'Oel. 45, more ftiUy repotted
13 Price, 1S6.
HILARY TERM, X GEO. IV. 375
IS tgtiast Chambers, junior. We think tbat however this 1830.
fflay be with respect to fVillon, the other defendants, who ^
are not bound by any such estoppel^ have a right to require and otben
(he plaintiffs to establish a valid commission, by shewing FAj^xBrnoraEa
acts of bankruptcy committed by both. If Chambers, and others,
junior, committed an act of bankruptcy, it must have been
bj absenting himself; but this has been hitherto confined
to the case of a party absenting himself from his regular
place of business, at which a man would be expected to be
found, or from one or more particular creditors ; for in-
stancei the Royal Exchange^ where he expected to meet
the persons to whom he was indebted ; going behind the
Kenesat the theatre to avoid them; and so on. Now
there was, at the time at which this act of bankruptcy is
supposed to have been committed, really no place of busi*
oess, properly so called, to which the younger Chambers
could have occasion to resort. The business of the bank-
ing-bouse had, for a considerable time before, been placed
under the management and control of a committee ; and
10 long as the committee continued to act, so long the
7onnger Chambers attended upon them at their meetings
whenever they wanted him. The committee, under a
clause in the deed, put an end to the trust, and revoked
the deed; the consequence of which certainly was, that
the books and all the concern would return and devolve
>gain upon the two Chamberses, But it does not appear
that there was any business for either of them to transact
at this place in South-Molton Street. It is true, their
names were over the door, but there does not appear to
hare been any thing they could have done, or had occasion
to do, by attending at that house. Inquiries were made
for the younger Chambers there, and it appears that no
person there could say where he was. Inquiries were also
made for bioi at his father's, but there no information could
be obtained respecting him. There is no proof, however,
that he directed any person to either of those places, but
that they inquired there in consequence of not being aware
376 CASES IN THE KINg's 3ENCH,
1830. what .was his place of abode. . It appears that, after somet
^•^^^'^^^ time^ a person came to the house in South-MoUon Street,
and others ^^d fetched away such letters as had in the interval been
^' left there for Chambers and Son; but what was his autho-
f AREBROTHER
and otbera. rity for so doing. does not appear, nor whether it was at all
under the direction of the younger Chambers. It further
appears^ that long before the time at which he is supposed
to have committed an act of bankruptcy by absenting faim-
selfy he had a house in one of the Crescents in the neigh-
bourhood of Tottenham-Court Road. He had been re-
peatedly seen in that house for some period previously to
that. One sheriff's officer had known where to find him,
and had arrested him there some time before; and other
sheriff's officers, in whose hands writs were placed (for
there were many writs out against both the father and the
son), not being aware that he lived at that place, knew not
where to look for him ; and it appears further, that as sood
as the commission issued he made bis appearance, and
took the benefit of it. Still we cannot allow the verdict to
stand, if this evidence was not sufficient to justify the
jury in coming to the conclusion that this party had com-
mitted an .act of bankruptcy, within the meaning of the
statute ; and he not having absented himself, as far as we
can judge from the evidence, from any place in which, in
the ordinary course of his life and business, he would be
expected to be present, namely, his place of abode, or any
place in which he had business to transact, we tbiuk that
the second objection ought to prevail, and that upon that
objection, and that alone, there ought to be a new trial.
Rule absolute for a new trial (a).
(a) And see Woodmason, Ex Ex parte, «6u/. 995; Bemdlesy Ex
parte, 1 Cox, 308; Stevens v. parte, ibid, 943; Hortlejj Ex
Elizce, 3 Campb. 956, and 1 parte, 9 Madd. 11; Day, Ex
Rose, 360; Schofield, Ex parte^ parte, Mont. & Mac. 208; SM-
2 Rose, 946; Beckwitk, Ex parte, bolt, Ex parte, MonL 89; Sam-
1 Giyn & Jameson, 20; Smith, bourne, Ex parte, 2 Deacon &
Ex parte, ibid, 956 ; H^ride, Ex Chitt. 22 ; Farebrother v. ITors-
parte, 9 Olyn & Jam. 99 ; Parri/, ley, 1 Crompcon & Jervis, 549.
HILARY TERM, X GEO. IV.
Isaac V. Impey and others.
Trespass, for false impriaoDment: Plea, not guilty, and Commission-
issue thereon. At the trial before Lord Tenterden, C. J. at ^^^^ ^^y^ ^^
tbe London adjourned sittings after the last term, the case authomy to
. . commit au
wu this : — ^The defendants were commissioners under a examinant for
commission of bankrupt, issued on the 13th of June, 1827i ^f(»>ng>upon
• rcc|uc9tj to
against one Samuel Owen. The plaintiff had been sum- read an entry
mooed before the defendants, as a person capable of giving *" ^ exami*
iDformation concerning the person, trade, dealing,. and estate nant being
of the bankrupt. It appeared by the defendants' warrant j^the com-
of commitment that the plaintiff had been examined several missionen to
, - , . , ... "^^^ an entry
tunes before them, m order to ascertain whether certam in a ledger,
securities were affected with usury. At the last meetine an^^^^iog
•^ . ^ to do so, was
he had been examined touching certain sums of money bjr them corn-
entered in his books of account, amounting together to "fu^jnJ ^
9000/., which was, as he had stated, composed of two sums, answer a^
the proceeds of Russian stock, the property of a Mr. Leon. ^dd,*^hatthe
Tie examination then proceeded as follows : — request to read
was neither in
^ Q. Does the account headed " Russian Stock '' in ledger form nor sub-
G., p. 101, contain an account of all the purchases and *^"^Vat"the
sales of Russian stock, for Mr. Leon's account, made by commitment
fou? was illegal;
^ "" and that an
A. Yes, it does ; — as well as of those purchased by action of tres-
Mr. Leon himself. thTc^f^
Q. Do you mean to state, that in such account there are sio"^" ^^^ ^^
imprisonment
entries of Russian stock purchased and sold — or purchased was maintun-
or sold, — by Mr. Leon. himself, on his own account? ***^®*
A. Yes ; — both bought and sold by Mr, Leon himself.
Q. Refer to ledger G. and to the account in it headed,
''Russian Stock."
A, I have now referred to it.
Q. You are now requested to read all the entries in that
account,
A. Acting under the advice of my counsel, I demur to
answer the question, inasmuch as the matters in that account
Isaac
378 CASES IK THE KING's BENCH,
laao. are not relatiDg to the bankrupt, Owen. It is, therefore, I
submit, with the advice of my counsel, that I am not bound
to read the entry ; and I request the commissioners to allow
d^^hl ^^ ^^ consult my counsel on the propriety of the question
put, so that I may give a proper and legal answer to it.
But in case the commissioners refuse, I request that my
counsel may be allowed to enter, for me, such proper pro-
test as he may see necessary. When I say that 1 demur to
answer the question, I mean to say, that I refuse to comply
with the request to read the entries contained in the account
alluded to."
The warrant then concluded in these terms :—
** Which last question the witness having so refused to
answer, these are, therefore, &c. him to keep without bail
&c., until such time as he shall submit himself to us, the
said commissioners, and full answer make, to our satisfaction,
to the said question"
Lord Tenterden was of opinion, that the request to the
plaintiff to read the entries was not a question either in
form or substance, and, therefore, that the warrant, which
purported to commit the plaintiff for not answering a legal
question, and to require his detention until such supposed
question should be answered, was illegal.
The jury having found a verdict for the plaintiff, with
250/. damages,
JP. Pollock now moved for a new trial. First, this action
is not maintainable at all against these defendants. It was
decided by this Court, in the case of Doswell v. Impey (a),
that trespass will not lie against commissioners of bankrupt
for committing a witness to prison for not satisfiactorily
answering questions put to him while under examination,
even though the questions may appear to the Court to have
been satisfactorily answered. [Lord Tenterden, C. J. The
objection here is, that the plaintiff was committed for not
(a) S D.& R. S50; 1 B. &C. 163.
HILARY TERM, X GEO. IV.
answerkig a question^ when^ in fact, no question was asked
of him.] It is submitted that the commissioners did, in
sabstance, ask the plaintiff a question, when they desired
liffl to read the entries in a particular account. The ex-
pression of that desire must have given the plaintiff to
onderstaDd that the commissioners required information re-
specting that account ; and the mode in which that infor-
mation was sought for, though not strictly in the form of a
question, was really one in substance* It is clear that the
plaintiff so understood the language of the commissioners^
for be says expressly, '' I demur to answer the question."
[Bayky, J. He explains that by adding, " When I say that
I demur to answer the question, I meun, that I refuse to
comply with the request to read the entry." The com-
missioners had done no more than request the plaintiff to
read an entry, which they might equally well have read
themselves (a).] The language of the warrant, namely, that
the witness refused to answer a question, is satisfied^ if it
appears that the mind of the witness was informed that the
commissioners required information, and he withheld it.
Here, the plaintiff must have known that the commissioners
did not want him to read the entry, but to give them an ex-
planation of its contents. The refusal to comply with that
request, was a refusal to give the commissioners the infor-
mation they required, namely, an explanation of the entries
in the account. In Davie v. Mitfordip) a bankrupt who
had been committed for not producing a balance-sheet, was
heM to have been properly committed. Although his was
not, in strictness, a commitment for not answering a question^
that case is analogous to the present, and seems to justify
the application which is now made.
37*
18S0.
Isaac
t;.
Impey
and ochen.
Lord Tbkterden, C. J. — ^The authority of commissi-
oners of bankrupt to commit persons summoned before
(a) The examinaot woald rather
^)pear to have been directed to
vMd the entries to himself as pre-
paratory to farther qaestions being
pnt with respect to such entries.
(b) > Bam. & Alders. 356.
-380
1830.
CASES IN THE KINGS BENCH^
them to give evidence touching a bankrupt's estate^dependf
entirely upon the Bankrupt Ac t^ 6 Geo. 4^ c. l6; and to that
we must look for the purpose of seeing m what cases they
are authorized to commit. Now, the onlj two cases in
which that statute authorizes them to commit witnesses are,
firsty for a refusal to answer lawful questions respecting the
bankrupt's estate; and, secondly, for a refusal to produce
books or other documents (a). It is impossible to say that
the plaintiff in this case came within either of those pre-
dicaments ; he did not refuse to answer any question ; he
did not refuse to produce any book or document. All that
he did was, to refuse to reaid an entry in an account which
he had produced, and which the defendants might have read
for themselves (6). The Bankrupt Act does not give the
commissioners power to compel a witness summoned before
them to read documents; much less does it give them
power to commit such a witness for refusing to read an
entry from a document which he has produced before them.
It seems to me that no man of plain common sense can
contend that requesting a person to read an entry in an ac-
count, is asking him a question.
Ba YLEY, J. — If the plaintiff, iafter notice, had refused to
produce his ledger, and had thereby prevented the commis-
sioners from reading the entries, they might have cooimitted
him, and he would not have been entitled to his discharge
until he had produced it. The warrant of commitment
states that the plaintiff was committed for refusing to answer
a question f the examination, on the contrary, shews that
the commissioners requested him to read certain entries in
a book, and that he refused to do so. It is quite impos-
sible to say that the requesting the plaintiff to read those
entries was, either in form or substance, putting a question
to him ; and if so, the commitment was clearly illegal, — for
he has been committed for refusing to answer a question
which was never asked him.
(fl) Vide section S4. (b) Vide tupri, 379 (a).
HILARY TERM, X GEO, IV. '
LiTTLBDALE, J. and Parke, J concurred.
Rule refused (a).
(a) See Ex parte ItaaCy in re illegal. That Coart discharged
OiKx, a bankrupt, 3 Y. & J. 38, the applicant out of cutody, hold-
«hich was an application to the ing, that cqpimissioners of bank-
Court of Exchequer to discharge nipt ha^ no authority to commit
the plaintiff in the principal case a witness for refusing to read an
Ml of cnstody, upon the ground entry in a book; and holding also,.
rl»t bis commitment, (the same that refusing to read an entry was
stated in the principal case,) was not refusing to answer a quesUoo.
Robertson v. Kensington and another.
1 ROVER^ for coffee-warrants. Plea : not guilty ; and The right
issue thereon. At the trial, before Lord Tenterden, C. J., unjer^e G* 4
It the London adjourned sittings after Michaelmas term c. 94, s. 5, to
lo^i/^ 1 1 • pledge the
1828, the case was this : — ^ds of his
The plaintiff was a merchant at Pertb^ where he carried pnnt^ipalf d«-
on business jointly with the firm of Young, Ross &. Co., in the question
which he was a partner, and also separately on his own ac- thlTface'o*^^
county and was in the habit of consigning to Fennell & Son, whoU account
commission-agents in London, various goods for sale on thel>rfncipar'
commission, some belonging to his firm jointly, and others! » indebted to
belonging to himself separately. The goods, when re- a factor,
ceived by Fennell & Son, were, at the plaintiff's desire, ^7 ^^V^. °^,
.... . . his pnncipal,
distinguished by them by marks in their accounts-sales, the kept separate
accounts of
sajles, m some of which the principal was solely, and in others but partly, interested ;
bat be regularly posted all tlie items of both those accounts into one general account.
The factor pledged goods consigned to him on the joint account, for the purpose of
neeciog a draft drawn on him by his principal against that account At the time of
the pledge, the factor, upon the general account, was indebted to his principal in a
larger sum than the amount of the draft; but upon the separate account, against
which the draft was drawn, and to which the goods pledged belonged, the principal
was indebted to his factor. Held, that the factor had no right to pledge, and that the
pkdgee could not retain the goods against the principal.
Where, in such a case, the principal for some time after notice of the pledge, for-
bore to make any demand upon the pledgee: — Held, that such forbearance was not an
ioqaiesoence in the pledge,— and that in the absence of any evidence to shew that the
dfect of such forbearance had been to alter the situation of the pledgee for the worse,
or that of the principal for the better, the right of the principal against the pledgee
remained entire.
Robertson
382 CASES IK THE KING's BENCH,
1830. goods beloDging to the firm being carried to an account
called the H. JR. account, and those belonging to the
plaintiff to one called the H. F. account. Both, however,
Kensington ^ere posted up into one general account with the plaintiff,
and another, n *f o *-. i i i- . , .•
Fennell& Son had no direct correspondence or dealing
with any other of the firm of Young, Ross & Co. In 1826
Fennell & Son received a consignment of coffee on the
joint, or H» K., account, for which they procured the
delivery-warrants, the subject of the action, in the usual
course. Shortly afterwards they received a letter from the
plaintiff, in which he said, ''To reimburse Mr. Hunter for
some payments, I have this post sent him my draft on you
at three months for 1278/. 105., on account of the if. R.
account; which please honour: if you are not in funds
when it becomes due, it can be renewed.'' The bill there
mentioned was accepted by Fennell & Son, and became due
on the first of May, when they, not being in funds, applied
to the defendants, who were brokers in London, for an ad-
vance of money to meet the bill, offering to deposit with
them as a security the coffee-warrants in question. The
defendants thereupon gave their acceptance for IdOO/. to
Fennell & Son, who got it discounted, and with the pro-
ceeds paid the bill due to Hunter; and Fennell fl Son de-
livered to the defendants the coffee-warrants in question.
The defendants were informed that the advance was wanted
to take up the plaintiff's bill, and it was stated to them by one
of the FennelU, that it would be a great injury to tbem if
that bill was not taken up. At this time Fennell & Son
were indebted to the plaintiff on the whole account, in
1500/. ; but if the two accounts were separated, there was,
npon the H» JR. account, a small balance due from the
plaintiff to them. Fennell & Son afterwards became bank-
rupts, and in September 1827| they, for the first time, in-
formed the plaintiff of their having pledged the ^varmnts
with the defendants. The plaintiff then desired that no
demand should be made on the defendants for the warrants
until he had settled accounts with the FennelU i and no
such demand was in fact made till the end of October
HILARY TERM, X GEO. IV. 383
1887; and then oo offer was made by the plaintiff to isso.
satisfy aoy supposed lien of the defendants. In April
1824 the plaintiff had written to Fennell & Son, saying,
"For the account of the H. R. I inclose the following, per Keksinoton
and aDother.
Alfred, iu:. I inclose two bills of lading for a different
iccouDt, say H. F., and these you will keep entirely sepa-
rate and apart, taking my instructions and holding the
proceeds at my disposal." In point of fact, the accounts of
sales had been kept distinct before the receipt of this letter,
and DO alteration was made afterwards in the mode of
posting the accoants, the whole being brought into one
general account with the plaintiff as before.
It was contended on the part of the defendants, first,
tkat as the goods consigned to Fennell & Son belonged to
two aets of persons, whose distinct interests in them were
known to the consignees, who were expressly required, by
the plaintiff himself, to keep separate and distinct accounts
for each, they, as factors, had a right to do so, and to insist
OB their lien for the balance due to them on the account to
which the coffee belonged at the time of the pledges, (which
was Ike H. R» account), and, consequently, that the de-
feodants were entitled, under statute 6 Geo. 4, c. 94, s. 5 {a),
to Hi up that lien as a defence to the action ; secondly,
that the plaintiff was by his own conduct estopped from
<^jing the right of the defendants to set up such lien, be-
caase by neglecting to demand the warrants as soon as he
knew of the pledge, he had in effect assented to and
airmed it ; that, at any rate, his demand came too late, for
that he had no right to lie by for a period during which the
(fl) Which enacts, 'Hhat it shall said goods, &c., than was posses-
^ lawful to and for any person to sessed or coold have been enforced
vcepc and take any goods, &c., hy the said factor or agent at the
in deposit or pledge from any fac- time of such deposit or pledge;
toror agent, notwithstanding such but that such person shall and
posoQ shall have notice that the may acquire, possess, and enforce
posoo jnakiog snch deposit or such right, title, or interest, as was
pledge is a factor or agent; but possessed and might hate been
^ in that case snch peison shall enforced by such factor or agent,
icqiore no farther or other right, at the time of such deposit or
<>t^ or inCerest ib, upon, or to the pledge.*'
384
1830.
Robertson
V.
Kensington
aud another.
CABES IN THE KING S BENCH,
situation of the parties, either way* might have been mt»
teriallj altered.
Lord Tenterden, C. J., was of opinion, — first, that as the
dealings of Fennell & Son were with the plaintiff alone, as
it was for his use only that the goods were distinguished by
separate accounts, (apparently for convenience,) which were
all, as between the factors and the plaintiff, brought into
one general account, upon which they were indebted to the
plaintiff, the plaintiff had as against them, and, therefore,
as against the defendants, the legal title to the whole; and
that the defendants had no right to insist upon a lien as to
a particular portion of them ; — secondly, that the mere neg-
lect of the plaintiff to demand the warrants for some time
after he was informed of the pledge, could not be taken as
an assent to or affirmance of the pledge, — at least without
evidence to shew that the situation of the defendants had
been made worse, or that of the plaintiff better, by means
of the delay : and no evidence of that sort being given on
the part of the defendants, the jury, under his Lordship's
direction, found a verdict for the plaintiff. A rule nisi for
a new trial having been obtained in the following term
upon both points,
Scarlett, A. G., and Campbell, now shewed cause. It is
clear that the statute (a) gave the defendants no authority
to hold the warrants against the plaintiff, unless Fennell &
Son, the factors, who pledged them, had themselves a lien
upon them against the plaintiff, at the time of the pUdge.
Now Fennell & Son had no lien at the time of the pledge.
It was in evidence that at that time Fennell & Son were in-
debted to the plaintiff, upon the whole account between
them, in a larger sum than that for which the warrants were
pledged. By what right can the defendants assume to dis-
sect that account, distributing some of the goods toff, i!.,
and others to H, F,, merely to snit their own purpose in
saying, '' these warrants belonged to H. R. f*" As against
(a) 6 Geo. 4, c. 94, s. 5. See the preceding note.
Robertson
HILARY TERM, X GEO. IV. 385
ttnntU & Son, and, consequently, as against the defendants, 1830.
who can stand only upon the rights of Fetmell & Son, all
the goods were the property of the plaintiff| by whom, ex- v.
dusifcly, Fennell & Son were employed ; though it might fnTano^heJ!
be necessary, for his own convenience, that he should
direct his agents to distinguish the several accounts. If the
warrants had remained in the possession of Fennell & Son,
the plaintiff might have sued them for them in his own name
only, and they would have had no answer to the action.
Then it is said that the plaintiff has acquiesced in the
pledge, and cannot now dispute its legality. There is
no evidence to support such a proposition. All that the
plaintiff did, was to delay demanding the warrants from the
defendants, until he had, by an investigation of the accounts
between himself and Fennell & Son, ascertained whether
the latter had any lien upon the warrants, which could by
means of the pledge have passed to the defendants ; and
having satisfied himself tliat no such lien existed, he made
a demand of his property, and upon a refusal brought the
present action. It is impossible to hold that this amounted
to an acquiescence in the pledge, and therefore, upon both
the points made at the trial, the plaintiff is entitled to
retain the verdict.
Denman and Hibbert, contri. It is admitted on the
other side that the accounts were kept distinct by the ex-
press direction of the plaintiff himself; therefore it cannot
be nrged as an argument in his favour, that those accounts
were afterwards posted into one general account. He had
always the means of ascertaining at once what was the
exact state of each account, though both might be transmitted
to him upon one sheet of paper. The subsequent reduc-
tion of the two accounts into one general account, cannot
alter the legal character of the original arrangement. The
plaintiff had the benefit of the 1300/. advanced by the de-
fendants upon the warrants ; and his bill, to provide for
which that money was so advanced, was drawn specifically
▼ou V. CO
386
1830.
ilOBERTSOIl
V.
Kewsinotoh
and another.
CASES IN THE KINGS BENCH^
ttgahiBt the M. R. irccounty to which tfafe goods repre^
seated by the warrants belonged ; and, bat for the m6\tq
procured by means of the pledge, the plaintiff must have
paid that btl) himself. [Lord Tenterden, C. J. The F^nnelh
clearly considered that they wete borrowing the money for
their own accommodation, for they said at the time, that it
would be a great injury to them (a) if the bill was not paid.]
The Fennelk had once a lien as against the plaintiff upon
the H. R. account, and nothing having been done to satisfy
or destroy that lien, it passed to the defendants by opera-
tion of the statute. As to the affirmance of the pledge,
the plaintiff, by not interfering after he knew of the pledge,
must be taken to have acquiesced in it. Whether the situa-
tion of either party was improved or otherwise, is not the
question ; the plaintiff had no right, by his silence, to lead
the defendants to suppose that he acquiesced in the pledge;
and having done so, he must not now be allowed to evade
the consequences of his own neglect.
Lord Tenterden, C. J. — I am of opinion that the
plaintiff is entitled to retain the verdict in this case. All
the goods that came to the hands of Ftnnell & Son, came
to them directly from the plaintiff. He was the only per-
son with whom they had any correspondence or dealing
with relation to the goods, or with whom they kept any
account. At his desire they made a distinction as to par-
ticular goods coming by particular ships. That was done
in order that he might know how to charge or give credit
to other persons jointly interested with him in those goods;
but they also kept one general account with him ; they
made him debtor and creditor for every item, whether the
goods came by one ship or another ; in short, he was the
only person with whom they dealt Such being the rela-
tive situation of these parties^ it is perfectly clear that fen-
fiell & Son could have no right to separate the account, for
(a) The injury to the FenmdU
would have been the disclosure of
their insolvency, — to the plaintiff
the liability to take up his dis-
hoooured draft, — finom which he
was redeemed by the advance
made by the doleiidaiits oo the i
coflnse-wanants.
HUJiKT TERM, X QEp. IV* 387
the pttrpof e of giving themselves a lien od a particular part issQ.
of it; but that, as between tbem and the plaintiff, they ^'^^^^
codM look only to the whole account, and that if, upon the 9.
bee of that, they appeared indebted to the plaintiff, they Kbotihoton
bid DO lien, and consequently could transfer none to the
persons to whom they professed to make the pledge.
But it has been urged on the part of the defendants, that
the plaintiff, by forbearing to give notice that the goods
were his as soon as he heard of the pledge, acquiesced in
and affirmed it. The doctrine that a mere nonfeasance can
operate as an act of confirmation, unless it be followed by
cerlun consequences, I cannot concur in* If it had ap*
peared in this case that the consequence of the plaintiff's
forbearing to give notice had been an alteration in the de-
faidants' situation for the worse, or even in his own for the
better, there might have been ground for the argument;
but nothing at all of that sort appeared upon the evidence*
That being so, it seems to me that there is no ground for
contending that the plaintiff by his forbearance acquiesced
io the pledge.
He present rule, therefore, must be discharged.
Batlby, J. and Iattlkdalb, J, concurred.
Rule discharged (a),
(a) Parke, J. was gone to chambers.
Cooper v. J. Meyer and W. B. Meyer.
Assumpsit, by the plaintiff as indorsee, against the By acceptina
defendants as acceptors, of three bills of exchange, one of ^^/^^^
which purported to be drawn by Edmund Woodman, pay- er*B order,
drawn and
todoned in a fictitious name, the drawee undertakes to poy to the signature of the
fine persoo as indorser, who signed as drawer.
The indoraee of such a bill suing the acceptor, may, by comparison of the signatures^
iWw that the diawing and the indorsement are in the same hand-writing.
c c £
CASES IN THE KING S BENCH,
able to his order, indorsed by him to John Darby & Co.,
and by them to the plaintiff; the others purported to be
drawn by Henry Vllock & Co., payable to their order, in-
dorsed by them to Johi Darby & Co., and by them to the
plaintiff. Plea : non assumpsit, and issue thereon. At the
trial before Lord Tenterden, C. J., at the London adjourned
sittings after Michaelmas term, 1823, the case was this:—
John Darby was a tradesman, carrying on business under
the firm of John Darby & Co. The defendants were in
partnership as American merchants. The bills in questioa
were, in point of fact, drawn by Darby. There was no
person in trade of the name of Edmund Woodman. There
was a person of that name, a relation of Darby^ but be,
being examined on the trial, stated that he had never autho-
rized Darby to use his name. There was no firm of Hinry
UllockSi Co,; there was a firm of Ullock, Lancaster & Co.,
but a member of that firm being examined, stated that
Darby never had authority to use their names. The bills
thus drawn by Darby, were accepted by J. Meyer, one of
the defendants, in the name of the firm, for the accommo-
dation of Darby. Being accepted. Darby indorsed them:
the bill payable to the supposed Edmund Woodman he first
indorsed in that name, and afterwards in the names of
John Darby & Co.; the bills payable to the supposed
Henry Vllock 8l Co. he first indorsed in those names, and
afterwards in the names of John Darby 8l Co. Tbe bills
thus indorsed were taken to a person named Green, a re-
lation of the plaintiff, and were by him discounted for, and
with the money of, the plaintiff. The defendant J. Meyer
afterwards admitted to Green, in the presence of Darby,
that neither he nor his firm ever had any dealings with the
supposed drawers of the bills, and that he did not know of
such a firm as Henry Vllock & Co. When this admission
was made, the other defendant was abroad. A witness, called
for the defendants, stated that he did not believe that the'
drawers* and indorsers* names were written by Darby. Ooi
cross-examination, he was asked, whether he believed thel
bills to have been signed and indorsed by the saaie person.
HILARY T£RH, X Q£0. IV. 389
This was objected to as a comparisoo of hand-writing (a), i^^*
but Lord Tenterden allowed the question to be put, and the
witness answered it in the affirmative. His lordship then
(old the jury, that as there was no proof of the existence of
such persons as Woodman and Ullock & Co.« in whose
names the bills were drawn, it was sufficient^ as against the
acceptors, to prove the indorsement to be in the same hand-
writing as the drawing, which had been done; but he de-
sired them to say, whether, upon the evidence before them,
tbej believed the bills to have been drawn and indorsed by
Darbif. The jury said they did, and found a verdict for
the plaintiff. In Hilary term, 1829^ a rule nisi for a new
trial was obtained, on the ground, first, that the question
objected to at the trial should not have been allowed to be
put; and secondly, that the case was not correctly left to
the jury, inasmuch as it was competent for the defendants,
as the acceptors, to dispute the regularity of the indorse^
nunU, although they admitted the bills to be regularly
draum^ and although the bills appeared to be drawn and
indorsed in the same hand-writing.
Scarlett, A. G. and Campbell, now shewed cause. It
must undoubtedly be admitted as a general principle, that
a mere comparison of hand-w*riting cannot be allowed as
evidence of a particular written document ; but this is a
very peculiar case, and must be considered as excepted out
of the general rule. But the question objected to in this
case, was not strictly a comparison of hand-writing. - The
bills were evidently drawn in fictitious names, and the ques-
tion asked of the witness was, not whether the bills were
indorsed by one person or by another, but whether they
were drawn and indorsed by the same person. That ques-
tion seems unobjectionable; and the question left to the
jury was equally so, for they were only asked whether they
believed the bills to have been drawn and indorsed by
Darby; and there certainly was ample proof to justify them
(fl) Vide 2 Stark. Evid. 9d cd. 374, 6; 1 Phill. Ev. 7th ed. 490, S.-
390 CASES IN THE KING'S BENCH^
1830. in finding that they were so. Under the circumstances of
this case^ it was not competent for the defendants, as ac*
ceptors of the bills, to dispute the validity of the indorse-
ments. If a bill is drawn in favour of a fictitious payee,
and that circumstance is known to the acceptor as well at
the drawer, and the name of such payee is indorsed on the
bill, an innocent indorsee, for a valuable consideration, may
recover upon it against the acceptor; Gibson v. Minet{a),
Gibson v. Hunter (6). So here, the defendants, by accept-
ing the bills so drawn, recognized the authority of Darby
to draw them in fictitious names, and also gave him autho-
rity, as against themselves, to indorse them in those names.
Besides, here there was the admission of one of the defend*
ants, (which was equally binding on both,) that he had
accepted on the credit and for the benefit of Darby, and
that he knew there were no such persons as the supposed
drawers.
Gumey and F. Pollock, contrA. The bills were accepted
by one of the defendants in the name of the firm in which
they were partners ; but they were drawn in fictitious names,
and were in fact forgeries; and one partner cannot bind
another by his acceptance of a bill which is a foi^geiy*
Neither ought the admission made by one of the defend-
ants to be held binding upon the other, who was not pre-
sent when it was made, but out of the country, and entirely
ignorant of the transaction. The admission itself amounts
to very little; it only shews that at that time the defendant
J. Meyer knew of no such persons as the drawers, which
is not inconsistent with the fact of his believing, at the lime
of the acceptance, that such persons existed. Although the
defendant J. Meyer has by his acceptance precluded him-
self from disputing that the bills were duly drawn, it was
still competent for him to dispute that they were duly in-
dorsed; for the acceptance of a bill of exchange admits
(a) 1 H. Bla. 569; 3 T. R. 481; (b) 2 H. Bla. 888; 6 Bro. P. C.
2 Browo, P. C. 60, Sd edition. 395, 2d edition.
HILARY T£IUr, X GEO. IV. 391
merdy the drawing, but not the indorsement of the drawer; 18S0.
Rdimon v. Yarrow {a)i where it was held, in an action by c"
the indorsee against the acceptor of a bill, drawn and in- v.
dorsed by procuration, that the indorsement by procuration MEYEa,
not being proved, the plaintiff was not entitled to recover.
That is an authority to shew that the indorsements in this
case should have been proved in the regular way. The
eyidence that the drawings and indorsements were in the
same hand-writing should clearly not have been admitted.
If it were admissible in this case, it would be equally admis-
sible in all others; for the acceptor is always precluded from
disputing the hand-writing of the drawer.
Lord TsNTEBDEN, C. J. — I am of opiniop that both the
defendants are bound by these acceptances, for the know-
ledge and the act of one of them must, in such a transaction*
be taken to have been the knowledge and the act of both*
Now it is dear that the defendant John Meyer knew that
be was accepting on the credit and for the benefit of Darby f
aad the jury have found as a fact that the bills were both
drawn aod indorsed by Darby, The acceptor of a bill is
bound, and must therefore be presumi^d, to kuow the hand-
writing of the drawer, aad is consequently precluded from
disputing it. But it is said that he may, nevertheless, dispute
the indoraement. Where the drawer is a real person, he
may do so; but where there is in reality no such person as
the drawer, I think the fair and proper construction of the
acceptor'a undertaking is, that he will pay to the signature,
as indorser, of the same person who signed as drawer.
For these reasons I am of opinion that the verdict in this
case was right, and that the rule for a new trial ought to be
discharged*
Batlet^ J. — The defendants ought not to have accepted
the bills without ascertaining whether or not there were
sach persons as the supposed drawers, and if they chose to
(a) 1 B. Moore, 150; 7 Taunt. 455.
CASES IN THE KING 8 BENCH,
accept without making that inquiry, I think they must be:
considered as undertaking to pay to the signature of the
person who actually drew the bills.
Parke, J. (a) concurred.
Rule discharged.
(a) LUtledaUt J. was gone to chambers.
Harrison v. Hodgson.
Under pard- X HIS was an action of trespass for an assault and false
»tances*'onr" '"nprisonment, to which the defendant pleaded, first, not
man may be guilty; and secondly, that the plaintiff had first committed
laying hands ^° assault upon him, whereupon he gave the plaintiff into
upon another, tijg custody of a peace-officer, who was present. The
for the purpose , . .-« i« i • • • i i i
of serving him plaintiff replied, that he was employed to serve the de-
with process, fendam ^jth process, and in order to do so, necessarily laid
hands on him, which was the same assault mentioned in
the second plea. The defendant rejoined that the plaintiff
had used more violence than was necessary; and there-
upon issue was joined. At the trial beford Lord Tenter-
den, C. J.« at the adjourned Middlesex sittings after the
last term, a verdict having been found for the plaintiff,
J. Williams now moved in arrest of judgment(&), con-
tending that the replication was bad, inasmuch as it could
not have been necessary for the plaintiff to lay hands on
the defendant for the purpose of serving him with process;
and that, at all events, if any special circumstances bad
existed which did render that necessary, those special cir-
(b) Qucrty whether the objec- $hent 9 Vide Anon, March, 78,
tion, if valid, would not have been pi. 125 ; Plomer v. Rou^ 5 Taant.
ground for awarding a repleader, S86, and 1 Marshall, 95; Com.
rather than for arresiing ihejudg- Dig. Pleader, (R) J8.
HILARY T£RM, X GEO. IV.
cumstaQces nbould have been fully set forth in the replica^
tioo.
Lord Tenterden, C. J.— The defendant, by rejohiiog
excessi has admitted, that if, in any supposable case, it can
be necessary to touch a party in order to serve him with
processi it was necessary in this case ; and I am not pre-
pared to say that it may not, under particular circum-
stances, be necessary and lawful to do so. There seems
to me, therefore, no ground for arresting the judgment.
393
1830.
Harrisoit
V.
Hodgson.
The other Judges concurred
Rule refused (a),
(a) Vide ante, vol. i. S15 (a).
HoLDswoETH V. James Hunter the younger.
Assumpsit by the plaintiff as indorsee, against the A set of foreign
J r . r /.•-•.. ^ , bills, drawn
defendant as acceptor of two foreign bills of exchange, one abroad, was
for 5000/., the other for 4399/. \9s. Id., drawn by M'Ken^ dTral^ ^who
de and Co. in the following form : — was also the
"<£5000.
Calcutta, leth July, 1825.
!)avee,) the de-
ei ■
fendaiit, who
''At six months after sight pay this our first of ex- parts, and in-
cfaange, (second and third not paid,) to the order of dorsed one to
Messrs. William Hunter and Co, the sum of five thousand value, prior to
pounds sterling, value in account per advice. othlerhad^^
" T. M. M^Kenxie and Co. indorsed by
^'To Messrs. James Hunter, Jun. and Co., London.'' ^^ y^\^ father
. . * • . conditionally,
Flea: non assumpsit; — and issue thereon. At the trial bat who had
before Lord Tenterden, C. J., at the London adjourned sit- "n'^J^Iy')^^^^^^
tings after Michaelmas term, 1828, the following appeared but gave it tip
^ i_ <^i. • • 1 r -^ • ^i_ on the substi-
to be the principal facts m the case:— tu,;^„ of other
The bills in question were drawn by M*Kenzie and Co. securities:— .
^ "^ Held, that the
plaintiff was entitled to recover, and that the bill did not require a stamp; held, also, by
Lord Tenterden, C. J., and Parke^ J.— dubitante Littledale, J. — that \t would have
been the same if the first part had been indorsed and delivered unconditionally^
394 CASES IN THE KING'S BENCH,
1830. at Calcutta. In December, 1895, the defendant, Jamt$
jS"^^^^"^^ HurUer, who carried on business in London under the firm
9 of James Hunler/}\xn. & Co., and was also a partner in the
HuMTER. firm of William Hunter 8c Co., who carried on business in
Glasgow, received the second parts of these bills, which he
accepted and indorsed to his father, to whom the firm of
William Hunter & Co. were largely indebted. In Ja«
nuary, 1826, the defendant received the other parts of the
bills, which he also accepted, and indorsed the first parts
to one Fennell, who indorsed them to the plaintiff for
value. The acceptances were ante-dated 14th November,
1825. At the time of the actual acceptance and indorse-
ment of these last-mentioned parts, the parts first accepted
were in the hands of the defendant's father; but other bills
were afterwards substituted for them, and they were given
up to the defendant. Upon these facts it was contended
by Scarlett, A. G., on the part of the defendant, that the
plaintiff could not recover, upon two grounds : — First, that
the party who first obtained the acceptance of any one part
of a set of bills, was entitled to the whole of them, all the
parts of a set constituting, in fact, only one perfect bill;
and, consequently, that the plaintiff had no right to those
parts upon which the action was brought; and in support
of this proposition he cited a case of Pereira v. Jopp and
another (fl): — Secondly, that if, on the other band, the de-
(a) Tried at Gaildball, before which appeared to be ihe second
Lord Kenym, in 1793, bat not re- of a set of bilk drawn in favoor of
ported. The case, as stated by Maa, dated the 5th of December,
Scarlett, A. G., from a note taken 1799, and which was indorsed u
by himself at the trial, appeared stated in the declaration. It was
to be this: — proved, that on the 2 1st of Octo-
** The plaintiff declared in tro- ber, 1793, more than ten months
ver for a bill of exchange for after the date of the bill, it wu
iOOO/.y drawn by certain persons presented to the defendants for
in Jamaica upon the defendants, acceptance, and that they, apon a
in favour of one Mm, and by him subsequent demand, refused to re-
indorsed to the plaintiff. Notice turn it. It was then proved, on
had been given by the plaintiff to the part of the defendants, that
tha defendant to produce the bill, one Lieven had absconded in Sep
HILARY T£RH, X GEO. IV.
feDdant was to be held boand by his acceptance of the
second part, and consequently was estopped from saying
396
tember^l792; that after he. had
abscooded, the plaintiff purchased
a debt doe from LUven to Hunter
fc Co. ibr ten shiUings in the
ponnd, and obtained the necessary
power for attaching certain pro-
perty of Lieven\ then in Jamaica^
b the bands of MaU; that before
tbe attachments were laid against
Mait in Jamaica, namely, on the
5th December, 1792, Mais had
transinitted the first of the sec of
bdls of which the second was now
sought to be recovered, indorsed
loLieven; that in consequence of
heven's absconding, the letter in-
doiing such first bill did not
reach other bis hands or those of
his assignees, he having been
made a bankrupt, until the 8th of
Nof ember, 1793; that in the
BMsntime the fdaintlff having
heard of the transaction respecting
the first bill of the set, and that it
bad not come to hand, sent out to
Januuca, and prevailed upon
JUftf, on receiving an indemnity,
to indorse and transmit to him
the second bill of the set, which
anived on the Slst of October,
179S, and was, when presented to
the defendants, retained by them,
in consequence of a notice given
to them by the assignees of Lie-
veaofthc circumstances; and that
a few days afterwards, the letter
containing the first bill of the set
indorsed to Ueven, was disco-
vered. This bill the defendants
prodoced, and it appeared to be
the first of that set of bills of
which the plaintiff claimed the
second. Upon this evidence Lord
J^cmfon was of opinion that the
defendants were entitled to a ver-
dict, because the sum which the
bill represented had never been
attached in the hands of Mais, he
having indorsed and transmitted
the first bill to Lieven before the
attachment could operate; conse-
quently the property represented
by that bill, and in the hands of
the defendants as the drawers, was
vested in Lieven or his assignees,
and Mais, the indorsee, could not
divest that property by indorsing
the second bill to the plaintiff;
the plaintiff, therefore, had no title
to the money which these bills re>
presented.*
Minga^f who was of counsel for
the plaintiff, then submitted, that
if the plaintiff was not entitled to
the 1000/., the sum expressed
npon the bill, he was at least enti-
tled to the piece of paper which
he had left in the possession of
the defendants, and which they
had refused to deliver up. But
this Lord Kenyon denied, and
cited a case of Miller v. Hace,
tried before Lord Mamfiddy in
which this very point was con-
tested in an action of trover for a
promissory note; and in which
Lord Mansfield said, he could not
bring himself to think for a mo-
ment that the man who had no
title to the value of a bill or note,
could recover in an action of tro-
ver for the paper merely, which
was of no value whatever. Upon
this, Lord Kenyan continued, Sir
Richard Lloyd put this case to
Lord Mansfield, whether if, instead
of a piece of paper, a diamond ring
had been given for a promissory
1830.
HOLDSWOBTB
V.
.HUNTEB.
HOLDSWORTH
V*
396 CASES IN THE KING's BENCH,
1630. that all the parts constituted only one bill, it must follow
that such second part must be treated as altogether a se-
parate bill, drawn, as well as accepted, in England, and
HuMTBR. therefore requiring a stamp; and that as the bills in ques-
tion were not stamped, they were invalid. For the plain-
tiff it was answered, by i**. Pollock, that it was a question
to be left to the jury, whether there had ever been, in fact,
a perfect unconditional assignment to the defendant's father
of the parts first accepted, or whether they bad merely
been deposited with him until other bills could be substi-
tuted ; because, in the latter case, as soon as those parts
Mere restored to the acceptor, the right of the father
ceased, and could not be set up in answer to this action.
Lord Tenter den, C. J., concurring, left that question to the
jury, directing them to find for the plaintiff if they were of
opinion that the parts of the bills first accepted were depo-
sited with the defendant's father only as securities till
other bills could be substituted. The jury were of that
opinion, and found a verdict for the plaintiff. In Hilary
term, 1829, a rule nisi for a new trial was obtained, upon
note, the pereon who possessed stolen out of the mail, in the night
the ring, though without title to the of the 11th of December, llbG,
value it represented, might not and on the 12th came to the
bring trover for it? To this Lord hands of the plaintiff for a fbll
Mansfield replied, that the case and valuable consideration, in the
was very ingenious, and that he usual course of his busiuess, and
might not, perhaps, without some without any knowledge that it
consideration, be able to answer had been taken out of the mail;
it satisfiictorily; but yet it did not he afterwards presented it at the
shake his opinion that the plaintiff bank for payment, and the de*
ought not to recover for the piece fendant, being one of the clerks,
of paper under the circumstances stopped it; upon which an iccioo
of the case before him. Mingay of trover was brought; and upon
then elected to be nonsuited." a case reserved upon the point,
The case of Miller v. Race, as whether the plaintiff had a saffi-
reported in 1 Burr. 459, does not cient property in the note to eo-
seem very well to answer the de- tide him to recover, the Court
scription above stated to have were dear in opinion that he bad,
been given of it by Lord Kenyan, and that the action was well
There, a bank note, payable to brought.
William Finney or bearer, was
HILARY TERM, X GEO. IV. 397
the grounds urged at the trial, and also upon the ground 18S0.
that the point ought not to have been left to the jury as a ^^,^^^5^^^,^^^
question of fact. Against that rule, v.
. HUNTSR.
F, Pollock and Patltson now shewed cause. The case
of Pereira v. Jopp, which was cited at the trial, and will
now be relied upon by the other side, has no analogy to
the present case. In that case, the first part of the bill had
passed to an indorsee for value; and the acceptor was al-
lowed, on the indemnity of that indorsee, to resist the pay-
ment of the second, because he was considered to have ac-
cepted it for the benefit of such indorsee; therefore that
action, though defended by the acceptor, was substantially
an action between the holders of the two parts of the bill.
It is material to observe, also, that in that case but one
part was accepted, and that no intention was expressed or
evinced by the acceptor to make himself liable upon more
than one. Here, the defendant has accepted both parts of
the bill; and he is defending the action, not on the bon&
fide title of a holder for value of one of them, but on the
ground that he has fraudulently deposited one part with
his father, with a power of redeeming it, having, in fact,
redeemed it. He cannot be allowed to set up his own
fraudulent act to defeat his own acceptance. Besides, the
jury have found that the bill was deposited only till the de-
fendant should redeem it, and substitute other securities
for it, and not for the purpose of payment to the father.
The defendant has, in fact, been charged only once, for the
other parts of the bill have never been paid. Whether the
drawer, if sued, could set up this defence is not the pre-
sent question ; it is enough that the acceptor cannot, for he,
by his acceptance, has estopped himself from doing so.
Secondly, there is no weight in the objection respecting
the stamp* A bill drawn in Calcutta, for acceptance in
England, does not require any stamp. In order, therefore,
to make a stamp necessary in this case, the bill must be
considered as one made entirely in England. But it can-
3d8 CASES IK THE KlKo's BENCH,
1880. not be 80 considered, without making the defendant gniit;
of forgery, and he cannot be allowed to set up his own
guilt as a defence to the action,
Scarlett, A. G., and Campbell, contri. It is a principle
recognized in the case of Pereira v. Jopp, that all the se-
veral parts of a foreign bill constitute togeUier but one bill,
and that the party who first acquires title to any one part
has also a right of property in the other parts« In this
case, one part of each bill was indorsed by the defendant
to his father, for a valuable consideration; and though it
was left to the jury, as a question of fact, whether they
were so indorsed in order that the father might sue upon
them, or only that he might hold them until other securities
should have been substituted, Uiere was no evidence before
the jury of any agreement having been made one way or the
other. In point of fact those parts remained in the father's
hands, and he had the legal right to them at the time when
the other parts were indorsed to the plaintiff. The pro-
perty, therefore, in both was in the father, and it is unma-
tarial that he afterwards exchanged the parts in his posses-
sion for oUier securities. The only way in which the
plaintiff can get over this difficulty, or set up any right at
all, is, by treating the two parts of the set of bills as sepa-
rate and distinct bills, and even by doing that, he falls into
an equal difficulty, though of a different kind. If the parts
uow sued upon are treated as separate and distinct bills,
they must also be treated as bills manufactured entirely by
the defendant in this country, not as forgeries upon the
drawers in Calcutta, for it is not necessary to go that
length, but. as drawn in England in a fictitious name; uid
if so, they cannot be sued upon for want of a stamp. The
case will then come within the princif^e of the decision in
Bathe v. Taylor{a), where it was hdd, that a bill drawn on
die l8t of August, at two months, by A» on jB., payable to
(a) 15 East, 413.
HOLDSWORTS
V.
HILART TEEM, X GBO. IV. 399^
tte order of the drawer, aiMi aeoepted and re-delif ered by isdo.
S. as a security for a debt, and kept by ji. for twenty
days, coQld not be altered in its legal effect, by bringing
forward the date twenty days, without a new stamp, HtynTEii.
though with the consent of the acceptor, and before in~
dorsement and delivery to a third person.
Lord Tentebden, C. J. — ^The verdict of the jary, after
my direction to them, must be taken to find as a fact, that
the delivery of the first parts of the bills by the defendant
to his fiither was not an absolute delivery, but conditional
only, that the father would re-deliver them upon receiving
other securities ; and in my opinion that finding was well
justified by the facts of the case. Those parts, there-
fore, which were the first accepted were not in fact paid,
»d cannot be considered as having constructively been
ptid, for tbey were redeemed by the substitution of other
secarities. What was diere then %o prevent the defendant
from potting into circulation other parts of the bills? In
that view of the case it seems to me quite clear that the
plaintiff is entitled to recover; but I am inclined to go fur-
ther, and to say that the plaintiff would have been entitled
to recover, even if the delivery to the father had been ab-
solate and unconditional. Suppose this case:— Two parts
of a foreign bill come to the hands of the party who is at
ODce drawee and payee. He accepts both, and indorses,
first, one part to A., and afterwards the other part to B,
In a question between ihem, as to the right of property in
the bills, A. might be entitled to both; but here the ques-
tion is, whether the acceptor and indorser of both parts
shall be allowed to defend himself against the holder of
one party on account of the previous circulation of the
oAer. I am not aware of any principle of law upon which
such a defence can be supported. But then it is con-
tended that these bills must, by construction of law, be
considered as drawn in England, and therefore liable to the
stamp duty. To hold that, would be to place the law in
direct opposition to the fact, for we know that the bills
•400 CASES IN TH£ KING's BENCH,
1830. were actuallj drawn io Calcutta; aod I thiok we ought not
^^'"''^'^'^ to strain the stamp act to favour such an objection as thii.
HOLDSWOETB . ,
V. If the bills .had been actually drawn in England, though
Hunter. purporting to be drawn in Calcutta, the case would have
been different. I think this rule must be discharged.
Baylby, J. — There can be no doubt on which side the
justice in this case lies, and I think there is no real dif-
ficulty in point of law to. prevent our carrying that justice
into effect Where a bill is drawn in sets, the party claim-
ing as holder ought to have all the parts, for the paymeot
of any one part to another person may defeat him. In this
case there were three parts, and it happened, from the cir-
cumstance of the same person being a partner in two
firms, and at once the drawee and payee of the bills, that
all the parts came into his hands, and he had the opportu-
nity of dealing with them in these several characters. Of
that opportunity he availed himself; for he accepted two of
the parts, and the plaintiff claims as indorsee of one of
them. The other was indorsed by the defendant to his
father, and that indorsement had priority in point of time;
and if it had been followed by an absolute and uncondi-
tional transfer of the bill, and payment had been actually
made to the father, there might have been a difficulty in
« the case which does not now exist, — for the jury have
found, and I think properly, that the indorsement and deli-
very to the defendant's father were conditional only; and as
he did not insist upon payment to himself, but returned
the bill to the defendant, upon receiving other security, the
subsequent indorsement to the plaintiff is clearly available.
The defendant, by his acceptance, undertook to pay that
. first of exchange, the second and third not being paid; they
have not been paid, nor is there any person that has a valid
claim upon them; it follows that the plaintiff is entitled to
recover on the first.
LiTTLEDALE, J. — I coucur in the opinion that the plain-
.tiff is entitled to recover. In the. first place, T think that a
HILARY TERM, X GEO. IV. 401
stamp was not necessary for these bills. They were bon& 1830.
iidedrairn in Calcutta as foreign i>ills: they were intended ' ^
° "^ HOLDSWORTH
to be treated as such, and what was done by the defendant v,
in England cannot make them otherwise. Even if they are "unter,
to be considered as binding upon the defendant by estop-
pel, 88 separate bills^ they still cannot be treated as drawn
in England. I feel, however, some difficulty in putting the
case on this ground, for I doubt whether the doctrine of
titoppel czn be properly imported into a transaction taking
effect according to the usage and custom of merchants.
The three parts of each bill originally formed but one bill,
and I do not see how the defendant could convert one bill
ioto two or three. Still, upon the other ground, I think
tbe plaintiff is entitled to retain the verdict. The defend-*
ant has accepted and indorsed two parts. He cannot be
iield liable upon both of them; but he must be liable upon
one or the other. If the part first indorsed had been de-
livered unconditionally to the father, and the amount paid
to bio], the defendant would not have been liable upon the
part subsequently indorsed to the plaintiff. But as the de-
lirefy to the father was conditional, and he afterwards
vaived his claim and gave up the bills, the indorsement of
the other part to the plaintiff is binding.
Parke, J. — I have no difficulty in concurring with the
rtil of the Court, that the plaintiff is entitled to recover.
The action was brought upon two foreign bills accepted
by die defendant, and the defence was, that he had before
accepted another part of each bill, and indorsed it away for
valae. Assuming that to be so, (and I, for one, am of opinion
that it was so,) I still think that, although the defendant
had no power, after so doing, to create a fresh -liability in
tbe drawer, he might create a fresh liability in himself, and
that he is estopped from disputing the regularity of his
own acceptance. I cannot agree that the doctrine of es->
«oppel is inapplicable to bills ; for the general rulie is, that
the acceptor of a bill is estopped from disputing that the
FOL. V. D D
HOLDSWORTB
CASKS IK THE KING S B£N^,
bill was regularly drawn. The simple question then it,
whether there is any provision in the Stamp Act« 55 Geo.
V. 3, c. 184, under which these bills are liable to stamp duty.
nuNTER. Now they were clearly not liable as foreign bills, for they
were not '' drawn in, but payable out of, Great Britain;"
nor were they liable as inland bills, for they were bon& fide
drawn out of Great Britain. Snaith v. Mingay{a) seemi
in point, where Le Blancj J., said, *' Whether this was s
perfect bill in Ireland, is not so much the question as whe-
ther it was a bill drawn in England/' So here, the ques*
tion is, whether these bills were drawn in England; they
clearly were not; and I agree that we ought not to eitend
Che provisions of the Stamp Act to meet such a case, and
favour such a defence as this.
Rule discharged.
{a) 1 M. ^ S. 87. There, a bill negociated. It was held, tbat thU
9vas drawn in Ireland, and blanks was to be considered as a bill of
lefl for the date, sum, time when exchange from the time of signing
payable, and the name of the and indorsing it io Ireland, and
' drawee, and transmitted to £ng- that an English stamp was «ot oe-
j land, where it was completed and cessary.
Waeo v. Co^st.
of a hous?*' I^EBT for 31/. 5s. for five quarters^ rent of a messuage
which, in con- fcc, demised by the plaintiff to Jefferson by indenture 29th
jSm"p2d^ September, 1799, and for 15/. {a) due from the defendant
to the lessor, to the plaintiff on the 55th March, 18«8, for two yearly
and a cove- *r*i,r^- ... •• />
nant to repair payments of 71, \0s. issuing out of the said messuage &c,
and finish, had piea : nil debet. At the trial before Lord Tenterden, C. J.,
been oemised
lISiifunt'ingTr (fl)Thatcfc6^istheproperformof demand, see UnderhiU v. EUi^
less than the '^^^^ '" respect of the part of the comber Madeland & Younge, 452.
annual valae,
redeems the land-tax thereon, under S8 Geo. 3, c. 5. A> is entitled to an anaaal pay-
ment from B, in respect of the difference between the rent and the annual value, vif.
an annual payment bearing the same proportion to the whole land-tax redeemed, wbidi
the difference between the rent and the annual value bears to the annual valae.
BILAmr TEBH, X OSO. IT. 403
al the littiogs at Westminster, in December, 18fi8| the laso.
phiotiff was nonsuited, with leave to move to enter a ver* ^'
dkt Oo the motion being made, it was agreed that the v.
6cts should be stated in a special case, which case was Co****
to the affect following:—
The plaintiff being seised in fee of a messuage &c., by
iodenture made on the 29th September, 1799, between
the phiotiff and Jeffenon, the plaintiff, in consideration of
Ml. paid by Jeffenon, and of the other charges wUcb
J^enon would be at in repairing and finishing the pre*
niset, demised the same to Jejfenon, habendum for 09 years,
tt the yearly rent of 25/. ; and Jefferson thereby covenanted
vith the plaintiff and bis heirs, that Je/ferion, his executors*
ftc. would pay to the plaintiff and his heirs the said rent
of UL The indenture contained the usual covenants to
repair, and to deliver up in repair; but no covenant, con-
dition, or stipulation respecting taxes or rates of any de*
Kfiption. At the date of the lease the premises were
metied to the land-tax in 10/. being two shillings in the
pound apon an estimated annual value of 100/. In I8OO4
the Isod-tax valuation was reduced to 90/.; this valuation
continued at the time of the redemption of the land-tax
thereon, at which time the assessment was ?/• lOi., being
1<« BcL in the pound.
ilst February, 1800, by deed poll duly registered, the
cpamissionera appointed under 42 Geo. 3, c. 116^^ for the
citj and liberties of Westminster, certified that they ha4
Mtttneted with the plaintiff for the redemption by him for
W5/« tbee per cent, consols of 7/. lOi. land-tax, being the
hnd-tax charged upon the premises, which premises were
nted in the assessment for 1803 as follows: —
** Geot^e Ward, esq. proprietor — Received, Joseph Jef*
firm, occupier, 71. 10s."
The 275/. consols were duly transferred.
In 1819-22-23, Jefferson paid the plaintiff 7/. lOf. in
^tion to his rent. Jejfferson dying in 1824, his personal
^presentatives continued to pay the iL IO5. until die sale
dd2
404 CASES 13^ THE KING's BENCH,
1830. of the term by them to the defendants in May, 18S6. The
rack rent value of the premises in 1799 was 120/., and they
are not now of greater value, if any thing be payable by
the defendant in respect of the redemption of the land-tax*
Two years of such payment were in arrear on the 25th
Marcb, 1B28.
Patteson for the plaintiiF. By the first land-tax act,
4 TT. 4r M. c. }, after reciting (sect. 5,) that many of the
manors, messuages, lands, tenements, and premises in*
tended by that act to be charged with a pound rate* stood
incumbered with or were subject and liable to the pay-
ment of several rent charges or annuities issuing out of
the same, or to the payment of divers fee-farm-rents, rents-
service, or other rents thereupon reserved or charged, by
reason whereof the true owners of such manors &c., did
not in truth receive to their own use the true yearly value
6f the same, for which nevertheless they were by that act
charged to pay the full pound rate of fqur shillings for
every twenty shillings of the true yearly value; it was en-
acted (sect. 6), that it should be lawful for the landlords
and owners of such manors 8cc. as were charged with the
pound rate aforesaid, to abate and deduct, and to retain
and keep in their hands four shillings in the pound for
every fee-farm-rent or other annual rent or payment charged
Upon or issuing out of the premises or any part thereof, or
thereupon reserved; and all and every person and persons
Entitled to such rents and annual payments were thereby
required to allow such deductions and payments upon the
receipt of the residue of such moneys as should be due
and payable to them, for such rents or annual payments
yeserved or charged as aforesaid. Thus each party inter-
ested was to bear the tax in proportion to bis interest.
The last annual land-tax act, 38 Geo. S, c. 5, shews that
the landlord is to pay only in respect of that sum which he
actually received. The first land-tax-redemption act (a)
(a) 38 Geo. 3, c. 60.
BILARt TERM, X GEO. IV.
gives to landlords the option of extinguishing thd tax^ or
continuing it as a charge on the land. By 42 Geo. S, c.
1 16, no such option is given, but the plaintiff is entitled to
recofer under sec. 123(a) of that act. Where premises
ire improved, the landlord is liable only for so much of the
land-tax as would have been payable in the state in which
the premises were demised. Yeo v. Leman{b), Hyde v.
flt//(c), Whitfield V. Brandwood{d), Watson v. Home {e).
The 520/. consideration is to be considered, not as rent
paid in anticipation, but as the purchase-money of an
interest of which the purchaser becomes the owner, and in
respect of which he is liable to be assessed as the party
beneficially interested. Before this land-tax was redeemed,
the tenant was entitled to deduct from the rent such part
405
1830.
(a) By which it is enacted " that
wbere any person having any estate
or interest, otiier than an estate of
mfaeritance, in any lands &c., shall
ndeem the land-tax charged there-'
00 out of their own absolute pro-
perty, such manors, messuages, &c.
duD be and become chargeable for
tile benefit of inch persons, their
execntoTs, &c. with the amount of
the three per cent Bank annuities
vliich shall have been transferred,
or with tiie amount of the moneys
psid as the consideration for the
ndemption of such land-tax, as
the case may be, and with the pay-
ioeot o{ a yearly sum or sums of
anoey by way of interest thereon,
e^Qsl in amount to the land-tax
redeemed. Provided always, that
BO penon or persons in remainder,
revoiioD or expectancy, or having
aoy future interest in such manors,
iBessoageiy Sec, who shall after-
wards, in order of such succession;
eoBie into the actual possession, or
be beneficiaUy entitled to the rent
and profits of any such manorSi
messuages, lands, tenements, or
hereditaments, shall be liable to
the payment of any yearly sum or
sums of money by way of interest
as aforesaid, save only for the time
they shall respectively come into
possession or be beneficially enti-
tled as aforesaid: Provided also',
that where the land-tax charged on
any manors, messuages, &c. shall
be redeemed by any persons having
any estate or interest in remainder,
reversion, or expectancy; such
persons in remainder, reversion, or
expectancy, shall in the meantime,
until their respective estates and
interests vest in possession by rea-
son of the determination of the
preceding estate, be entitled to
have a yearly sum issuing out of
such manors, messuages, &c. equal
in amount to the land-tax so re-
deemed."
(6)2Stra.ll91, S.C. lVVil8.21.
(0 3 T. R. 377.
(<i) 2 Stark. N. P. C. 440.
(e) ^nte, vol. i. 191 ; 5.C. 7Bami
& Cress. 285.
Waid
406 CASES IN THE KIN6*8 BENCH,
laso. only of the laod'tax as bore the aame pfoporlieii to
the residtte of such land-tax, as %5L, the rent resened,
bears la 100/., or 90/., the amount at which the premises
^^^^^' weiv valued. The landlord is not bound to pay kod-tti
i» fespeet of the premiani. By 42 Gea» S, c Il6» s. 10
and ]9> A tenant for a term of years, granted on a fine or
premkmv is treated as a person interested in the redeap*
tion of the land-tax, which he could not be if he were not
Ike party Kable to /Niy sueh portion of the tax.
FMM contriL Before the redemptiott of the hnd^tax
|ha tenant was not bouad le pay any part of this assess*
■enl, and no new liability can be thrown upoA Uia kj the
hoMllerd's ehoossng lo redeem. The foffmer part ef sec-
tion 123 (a) of 42 Geo* S, c. 1 16, applies to redemption bj
tenants of particular estates, and the latter part of the sec-
tion applies to persons in remainder, reversion, or ezpec-
tmcy, and not to persons in the actual possession or imme-
diate receipt of the rents and profits, otherwise the wAofe
burthen would be thrown on the tenant, whether a fine
were paid or not. If the plaintiff is entitled to any thing
under this statute he is entitled to the whole assessments
which would be absurd. [Parke, J. The land-tax can be
considered as redeemed by the plaintiff in his character of
veftrsioner in respect of that part of the assessment onlj
which the defendant might have redeemed under 42 Geo,
S^ c. 1 16, s. 123.] The fine was not paid in respect of
a particular and distinct portion of the property. Neither
the 123d nor 12dth section applies to a redemption by a
party entitled to receive rent. By 4 IF*. ^ M. c. 1, s. 4(6),
(a) Suprd, 405 n. of Berwick upon Tweed, or within
lb) Which enacts ''that all ma- any of the counties, dfjea, bo-
Qon, messuages, &c., quanies, &c. loughs, towns, divisional ndingi^
and all hereditaments of what nar hundreds, lathes, wapentakm,
ture or kind soever they be, situate, parishes, and places AereoC
lying, and beings happening or aris- well within aoeient dememe and
ing within die kingdom of Eng- other liberties andprivOi^^^ilaoea
landy dominion of Walei^ ortown as without^ ■'Y^Hmrisrnhiiahj
HILARY TERM, X GEO. IV.
the land-tax was laid on the owner. The tenant is not
chvgeBbk, except where the value has been increased after
tki granting of the kaies, and the assessment has been
made upon a value exceeding the value of the premises of
the laudbrd. In the cases cited such improvement had
been made. Here no such improvement appears.
Cur. adv. vuU.
Oo (lie following day the judges delivered their opinion
seriatim.
407
1830.
Baylet, J. — There are two questions in this case; first,
io what condition did the lessee stand in respect of the land-
tu assessed on these premises, when the lease was exe-
cttted? Secondly, whether, supposing tlie lessee to have
been then liable to pay any part of the assessment, the
plaintiff, after having redeemed the whole, has a right to
sue for such proportion as the lessee was previously liable
to pay.
dmgeiifermie year only, and no
^ger, with the sum of four ahil-
Bngs for every twenty sliillings of
die foil yearly value, and so in
pnportkm for any greater or leaser
rahe; and all and every person and
pencils, bodies politic and corpo-
rate, guilds, miateries, fraternities,
od brotherhoods, (whether corpo-
rate or not corporate) hamng or
folding any manors, messuages, &c.
liuiO yield and pay unto Their Ma-
j^es die sum of four shillings by
cveiy twfntf dullings by the year,
which the said manors, messuages,
^c. are now worth to be leased,
7 the same were truly and bon&
Me leased or demised at a rack
ittt, and aooordmg to the fall true
7»iiy value thereof without any
i^eipect had to the present rents
i^Mted fhr flie nme, if such rents
^ hem leaenrtd upon such
leases or estates made, for whidi
any fine or income hath been paid
or secured, or have been lessened,
or abated upon consideration of
money laid out, or to be laid out in
improvements, and witiiout any re-
spect had to any former rates or
taxes thereupon imposed, or mak-
ing any abatement in respect to
reparations, taxes, parish duties, or
anyotherchaiges whatsoever; which
said sum of (four and twenty shil-
lings for the yearly profits of every
100/. value of all personal eafatss
as aforesaid, and) four shillinga for
every twenty shillings by the year
of the said true yearly value of all
other the premises, shall be assessed,
levied and collected in manner
hereinafter mentioned, and shall be
paid into the Receipt of, &c. by quar-
terly payments, the fint payment
thereof ftc."
408 CASES IN THE KING's BENCH,
1880. I. The situation of the lessee before the redemption, de-
pends upon the land-tax act in operation at the time when
the land-tax redemption act passed, viz. 3S Geo. S, c. 5,
which provides that all lands, and all persons having or
Si'tuaiion'of ^^'^'"g lands, shall be charged, with as much equality as
lessee before possible, with a pound-rate. It was suggested by Mr.
iand™ax!^" ^ Follett that the tax was imposed on the landlord. There
are no words imposing it on the landlord, but on lands and
on persons having and holding such lands. These words
would apply to persons receiving rents, and I think the
right construction would be, that if, instead of being entitled
to the whole, one person is entitled to a limited extent only,
and another to the residue, (and the words are sufficiently
accommodating,) to bring in both. Immediately after this
lease was granted the lessee had land of the annual value
of \2i)L on paying ^5L And it might be said that the
landlord was the person '^ having and holding," as to €5/.,
and the tenant as to the residue. The 4 TV. ^- 31. c. 1, imposed
the burthen on the land ; and persons ** having and holding'*
are directed to pay. The law would be the same if the
lease had been made whilst that act was in operation,
at the rent of a peppercorn. Mr. FoUelt says, that, to a
certain extent, the landlord is liable : that is not so, the
land has to pay, and the party who pays must have the
rents and profits to pay it with. If, when there is a nominal
rent, the tenant is to provide the fund, the argument mnst
equally hold where the rent, though not nominal, is below
the real value. It is only a question of degree. Here,
justice would require that the landlord should pay in the
proportion of ^5 to 05. This does not, however, stand on
these words alone ; it is clearly explained by SS Geo. 3,
c. 5, s. n, by which the several tenants of all houses, lands,
&c., rated by virtue of that act, are to pay such sum as
shall be rated thereon, and to deduct out of the rent so
much of the said rate as the landlord ought io pay, and
the landlords, mediate and immediate, are to allow such de^
duction upon payment of the residue of their respective
HILARY TERM, X GEO. IV. 409
rents. The tenants of the land are required and authorized ^gso.
to do two things, — required to pay, and authorized to de-
duct (a). The deduction should be, not of the whole, but y^
of 80 much as the landlord, in respect of the rent, ought to Cowst.
bear upon receipt of the residue of the rents — put the case
of lord, mesne, and tenant — the lord receiving ^0/. rent, the
mesne 40/., and the tenant '' having and holding" land of
(he annual value of 100/., each would have to pay in pro-
portion to his interest. So no doubt, on the execution of
this lease, Jefferson was liable to contribute in respect of
95/. and Ward only in respect of £5/.
II. This principle being established, no difficulty re« Second point:
mains, provided the statute under which the plaintiff re- Remedy of re-
... . . deeming
deemed contains sufficient words to support this action, lessor.
It seems to me that the plaintiff is entitled under 42 Geo* 3,
c. 1J6, s. 123 (6) ; but that, under that enactment, he cannot
claim more than a proportion. The plaintiff having carved
out this interest cannot complain of this payment, because
it was made for his benefit : the words of the section are,
'* that where the land-tax charged on any manors, mes-
suages, 8cc. shall be redeemed by any person having any
estate or interest in remainder, reversion, or expectancy,
soch person in remainder 8cc. shall in the meantime, until
his estate and interest vest in possession, by reason of the
determination of the preceding estate, be entitled to have a
yearly sum issuing out of such manors, messuages, &Cj
equal in amount to the land-tax so redeemed,'' No
doubt the plaintiff, when he redeemed this land-tax, was a
penon " in reversion'* (c). The difficulty pressed upon our
consideration was, that the plaintiff would be entitled to a
sum equal in amount to the land-tax redeemed ; but he is
himself made liable to the payment of part, and therefore
could not claim from the tenant repayment of that part.
(a) And see Bex v. Mitcham, v. Clarkcj 4 Nev. & Mann. 671.
Caldec. 276; 3 Bum, 194, 24th (b) Vide iuprit, ^5 n.
edition. Andes to the power of dis- (c) Sed vide suprd, 406, per
tKttgirenby this section, see Jkir ParkCfJ.
L
$}6 CASES lUf THE KINO's BENCH,
1^. Looking at tke substance of At transaction, tke tedemption
bas €xlingHi»hed that portion of the land-tax which the
party redaeming wouU have had to pay, and injustice tbe
.9^"- land-tax should be considered as redeemed as far as the
landlord was liable^ and as subsi$iing as far as the tenant was
liable, and the landlord should receive from the tenant a
sum equal in amount to thai portion of the land-tax from
which the tenant was liberated by the purchase. I think,
tkereforei that the plaintiff is entitled to 10/., that sum being
two-thirds of the whole assessment. This is exacdy ia
conformity with the cases of Yeo v. Leman{a) and Hyde ▼.
HiU{b\ though in those cases the assestment to the land-
tax was increased. The language used by the judges in
those cases shews that the landlord was considered as liable
to bear the tax only in proportion to the rent which he re-
ceives.
LiTTLEDALE, J. — ^The first question is, wljether this is
a landlord's tax or a tenant's tax. It has generally beea
considered as a landlord's tax ; it is, however, incorrect to
consider it wholly so. By 4 W.Sf M.c. I, s. 13, *^ the seve-
ral and respective tenants of all and every of the manors,
messuages, &c. which, by virtue of this act, shall be charge-
able with any pound-rates as aforesaid, are hereby required
and authorized to pay such sum or sums of money as shall
be rated upon such manors, messuages, &c., and to deduct
out of their rents so much of the said rates as in respect of
the said rents payable for such manors, messuages, &c. the
hindlord should and ought to bear." There is uo material
difference between 4 W. Sf M. c. I, and 38 Geo. 3, c. 5.
The words ** having and holding" are applicable to all es-
tates whatever, from a fee-simple to a lease for a year.
The tenant is thereby authorized and required^ that is, he is
authorized to deduct the proportion which the landlord
ought to pay in respect of the rent It seems to be a legis-
lative enactment that the tenant is to pay^ though not di-
(d) SHprd, 4b5. (b) Ibid.
HILART TKEM^ X GEQ. IT. 4U
fifllfy. It is a bodlord'a tax only jb raspect. of tlie rent
wUch the lamBord has to receive. Any other coostmction
woaid laake the enactmeDt lureasoiiable. There might be
10/. to pay, and only 5l. to reeeite; so, if the amoont ot
the tn it increased by inproTenieDt of the ^ne^ WnJUom
T. JiMNe(a), WkUJieli y. Bramdwood{b). The 49 Geo^ S,
c ll6w s^ 10, directs^ ^' thit il AaU be hnrfnl for aH other
pcnons faafiDg any estate or interest in any sunors, nea-
s, ko., wbareoD any land-tax shall be .churged^ except
at rach-rent for any term of years^ ei froaa year to
year, or at will, to contract and agree for the redemption of
mch hnd-tax, or any part thereof." By the 19dd sen.(c)
of tint stnlvie (upon which il is said that the plmatiff is ear
btlsd to recoTer)» it is provided " that where the.land-lm
chsiged on any manors^ aMssnages, 8ic. shall be redeemed
by aay person having any estate or interest in remainderi
Mversion^ or expectancy hereon, such person shall in the
B, until his estate and interest vest in possession, be
to receive a yearly sum issuing out of such manors,
s, kc. eq)ttal in amount to the land-tax so re-
deemed.'' I entertain, however, considerable doubt whether
the plaintiff iaUs within the 12Sd section, and can be consi-
dirsd aa a rweraiontr {d). It seems to me rather to apply
la those who have merely future interests. A distinction
i» amde betvseen persons being entitled to rents and persons
having » reirersion : it would rather appear to me that a
person being in the beneficial enjoyment of the proper^
is not a reversioner within the meaning of this section^
This does not signify much, because it may be considered
as a general purchase of the land-tax by the plaintiff beyond
his own pn>portion ; it would MI within the equity of the
I24th section (e), and die plaintiff would be entidisd to Ae
remedies of a landlord on a leate.
(o) Suprt, 40S. (a) Which enacts <' that the i«*
(6) Ibid. lipective purefaasenr of such kncl-
(c) 9kpri,4Q$n, tBt, and their heirs, Miccesaora,
(^ Sedvidem^^ 400. and aangtn, sball^ fiom soch pe^
CASES IN THE king's BENCH,
The next question is, whether the action is brought
against the proper defendant. This is a point not made in
the argument ; it appears to me that the action ought to be
brought against the person in possession of the land. At
Third point: . " . . ,
Whether pro- common law a party may recover upon a lease setting out
per defendant, the special circumstances of the reservation. So here, the
plaintiflf might have made his statement according to the
special circumstances of the case. Jefferson was not liable
to pay as lessee, but as occupier of the land. [Bay%, J.
The defendant is in possession.] If so, that objection fails.
tint point. Parkb, J. — The first question is, what was the relative
situation of the parties at the time of the redemption of tbiB
land-tax. The act then and still in force, 38 Geo. 3, c. 5,
8. 4, directs that certain sums shall be raised amounting
together to a fixed sum, and that towards the raising that
sum, all manors, lands, and annuities, yearly profits, apd
other real property, and all persons having and holding the
same, shall, in respect thereof, be charged, with as much
equality and indifference as possible, by a pound-rate.
The 17th section authorizes a distress, and directs that the
tenants of houses, lands, &c. rated shall pay such sums as
shall be rated, and shall deduct out of the rent so much of the
said rate as, in respect of the said rents of any such houses,
lands, Sec. the landlord should and ought to pay and bear,
but there is no provision that the whole shall be deducted.
Looking at these clauses, the object of the legislature seems
to have been that each party should pay according to his
interests Whether a lessee is to be considered as a pro-
rtod of exoneration, be entitled to her, or them, free of all chai^i
demand, have, and receive, for and deductions whatever, to be i»-
their, his, or her own use for ever, soing and payable out of the ma*
and shall, by virtue of this act/ be nors, messuages, lands, tenements,
adjudged, deemed, and taken to or hereditaments, vrhereoii the
be in the actual seisin and posses- land-tax so purchased was cborg*
sion of a yearly rent or sum as a ed, on the same days as'sach land-
feerfarm rent, equal in amount to tax was pajpaUe at the time of the
the land-tax so purchased by him, puicbase thereof!
»>
HILARY ^»M, X <5E0. IV. 41*
prietor subject to the payment of rent uDder section SX^)i 1830,
or as a tenant under section 17(6), all that the. lessor is
ultimately to pay is such a proportion as the rent received 9.
by bim bears to the entire annual value of the premises. Const,
It 18 immaterial for what reason he ceased to have a title to
a certain portion of rent* But it could not be contended
that be continued to be chargeable with the whole of
the land-tax. Supposing that the lessor assigns part of the
rent to a stranger, it can make no difference whether he bb-
signs the rent to a stranger or discharges the tenant. Nor
can it be material for what consideration he gives up the
rent, whether money is paid down, or money is to be ex^*
pended in improvements. None of the cases cited appear
to be in point, except that from Siarkie (c). The dicta in
Hydev, Hill{d) are in favour of this construction of the
act, and it is most reasonable that the lessor should pay
such proportion only of the tax as the rent which he re-
ceives bears to the total annual value. The amount of the
annual value is in this case conclusively fixed by the form
of the declaration.
II. What was the effect of the redemption of the tax Second point:
by the plaintiff? The act of 42 Geo. 3, c. II6, is compli- f^^^^^^
cated, and not clear, but the plaintiff is clearly entitled
either as a reversioner or as a stranger. The 123d sec-
tion (e) admits of this construction, in my judgment, and
was, I thinks intended to meet this case. No power is
given to the person who is seised in fee, because upon the
redemption of the land-tax he only exonerates himself. To
a certain extent the plaintiff here exonerates himself; as
to the other part he exonerates the defendant. He has a
right, therefore, to have, as against the defendant, a rent-
charge equal in amount to the lessee's proportion of the
land-tax redeemed. The defendant must be considered to
(«) Suprd, 408. suprit, 405.
(*) IWd. (d) 3T. R-377.
(c) WkUfield v. Brandwood, (e) SuprH, 405 n.
Wabd
be in poMeiiioo^ he being the leisee, and no olber penon
being steted to be in possesiion.
Postea to the plaintiff (n).
(ii) AadieoBrYMttwyT. Wright,
e J>Qfi§ji. 694 i Stubb$ V. Panom, 3
Bvfi, & Aid. 516; Watson v.Ai-
kbUf ibid. 647; Spragg v. Ham'
mmd, t Biod. k Bingb. 69, iind 4
B.Moore^ 431; Dmotom t. Xia-
fon, 5 Barn. & Aid. 591, and 1
Dowl. & R^l. 117; Sparket, Ex
parte, Maolel. 518; Bennett ▼.
Wmm€lh ealc^ >• 644^ 7 Bam. fc
Crw. 087, ani 3 Car. Ik Pb/at,
96; tTamer v. Potchett, 3 Bern.
&AdoU9Sl; AmJUld w. WkUt,
Ryan & Mood. 946.
See ako Jlw V. JltfdkoMb 1
Doug). S26 o., and Caldecott, 976 :
In re St, Lamrence, YTtn/pn, Cald.
379; Rex w, Folkestone, 3 T. R.
S05;Do$d.Stmu^ufyr.Arkmrigkif
1 Ne?. k Maim, 731.
ii. and B.,
joint tenants
of aeopjhold,
maka paitition
by paral with-
out tbe assent
of the lord,
and afterwards
occupy in
severalty.—
A. surrenders
to C. by gene-
ral words. —
C. is not enti-
tled to be ad-
mitted to the
parcels occu-
pied bv A, in
seyerelty.
The King v. Thomas Southwood, Esq. Lord of the
Manor of Taunton-Deane {b).
A Customary estate (c), parcel of the manor of Taun-
ton-Deane {(i), in the county of Somerset^ was aurren-
dered to the use of Richard Staple and I'hamas ValetUine
Stapki their heirs and assigns for even according to tbe
cuftom of the manor. Richard Staple paid more than
one half of the purchase-money. This estate waa pw«
^fiased by the Staples in pursuance of a parol agreeoient
between tbem» that Thomae V. Staple should have aucli part
as was situated on one side of tbe river (which intersected
the estate,) and lay contiguous to his own lapds, Richard
(b) This case was aigoed in
Trinity term, 1827.
(e) The properly was dasoribed
in tha a^svits on whidi the role
was obtained as a customary free'
hold; but it was admitted that
this estate, e?en if properly so
designated, beloQged to that class
of customary freeholds which are
within and parcel of the manor,
and of which the frmehoid is in
tha lord. See the disUactifm b^
tweea this spades of teoMW and
freehold in ancient demesney Man-
ning's Exch. Praot ed ad. 369,
360, 361.
(d)A3 to die pacnliar tonitras
in this manor, tfide ibitL 364 n. (r).
SOUTHWOOP*
aiLABr T1MX, X 6S0. XV. 415^
StapU taking tbe oilier part of the estate, which wa« more l^M*
than ooe half thereof, and which lay contiguous to his TVeKiHo
own lands. The respective parts were accordingly entered ^ v«
upon, and occupied and enjoyed in severalty. Rkhard
Staple occupied his part of the estate until his death, and
eiercised acts of ownership on the same as the sole pro-
prietor thereof. The rates and tases were divided between
tbe purchasers according to the parts of the estate which
they so respectively occupied and enjoyed.
la this state of things Richard Staple made a dormant
ffarrender(a) of ail his messuages, &c. within the manor, to
the use and behoof of Lee, his heirs and assigns for ever,
aeoofding to the custom of the said manor; to be holden
spon condition that Lee, bis heirs or assigns, should pay
til bequests contained in the last will and testament of the
said Richard Staple, which on the part and behalf of Zee,
his heirs or assigns, out of, for, or in respect of the pre«n
mises therein mentioned, were to be paid, performed, ful-
fifled, and executed; and upon a further condition that
if Richard Staple should happen to die before Lady-day,
18%, and should not in the meantime dispose of or sur-
render the premises, or revoke that surrender, then such
last-mentioned surrender was to be and remain in full force
and virtue. After the dormant surrender, Richard Staple
omde bis will, and thereby gave all his messuages and par-
! oeb of the manor, 8cc. to certain trustees^ their heirs, 8lc.
\ apos certain trusts therein mentioned.
(«) A itomumt surrender in this self the present possessioq and in«>
is s sorreoder made ^* for terest of the lands so surrendered.
the purpose of settling his land In every of which surrendefs there
opoo aoy person or persons whom must be a condition inserted, by
the snrreoderor intends to make which a power is reserved to the
bfs heir or heirs, or, to charge the surrenderor to revoke, frustrate,
with may sum or sums of and make void tbe same surrender
y, or, for the performance of within the space of seven or eight
b» last will and testament — such years, according to the custom of
surreoders to be published and the manor/' — Ancient Customs
take efiect after the death of the of the Manor of Taunton-Deane,
saocnderor, be leaving in him- (Taunton, IBSl,) 9th Custom.
Tfie KiKO
V.
411^' CABIES JJT THE KING*S BENCH,
I8d0. Within the time limited by the custom for "making en-
tries" or being admitted tenant to the lord, Lee applied to
W. Kinglake, gent*. Clerk of the Castle of TauntoD| and
SortHWooD. steward or agent of Thomas Southwood, esq., lord of the
said manor, and requested Kingtake to allow him to make
the psual Entries (a) in respect of a certain messuage, &c.
which had been so occupied and enjoyed by Richard Slapk
in severally » and also to admit him tenant to the same pur-
suant to such dormant surrender. Kinglake refusing so to
do, a notice (b) was addressed to Southtvood and Kinglake,
and served on Kinglake, stating the surrender. Lee
afterwards attended at the law-day court, (or court-'leet(c),)
of the manor, in order to make the usual Entry or Entries,
and gave notice of his being there for that purpose; but
neither Kinglake nor the lord^ who was then present,
would then or at any tin^e since make or allow such Entries
to be made^ or admit Lee as such tenant.
Bayly obtained a rule calling upon the lord and steward
to shew cause why a writ of mandamus should not issue^
commanding them or one of them to admit Lee tenant to
the said customary lands; against which.
Manning shewed cause. Copyholders cannot make
partition without the licence of the lord. Fuller v, Terry (d)]
apd even if copyholders could make a valid partition, to
(a) An to which, vide pott, session of the said Rkhard SiapU
(6)'' I, the undersigned Richard at the time of his death, and partt
Xee, the dormant surrenderee of an estate lately belonging to
-named in the dormant surrender John Dyer, situated in the sud
of Richard Staple, late of Corfe, parish of Corfe, and parcels of the
in the county of Somerset, yeo- . manor of Taunton-Deane, and
roan, deceased, do hereby, as such also to admit wc tenant of the
dormant surrenderee, request and same, pursuant to such dormant
' require you immediately to allow surrender. [Here follow the par^
mo to make the usual Entries in eels.] Dated the 93d April, 18^.
respect of the undermentioned (Signed) Richard Lee.^
messuage or site of a house, closes (c) Vide ante, 143 n.
of innd, and hereditaments, which {d) Hai^gr. Co. Dtt. 59 a, noie
belonged to and were in the po8« 395.
The Kino
HILARY TERM, X GEO. IV. 41*^
endare whilst the existing grant continued, it would be un- 1830.
reasonable to require the lord to make re-grants in seve-
ralty, as the lord would thereby lessen his remedy for his *"" i?
rent. At present every part of the copyhold is liable for the Southwood.
whole rent; whereas after a severance assented to by the
lordf he could distrain only pro particul^ ill^. Besides
whicb^ if this mandamus were to issue, by whom is the rent
to be apportioned between Lee and the surviving brother?
It is not disputed that the effect of the dormant surrender
was to sever the joint- tenancy, and create a tenancy in
common; and the lord has always been ready to admit Lee
to an undivided moiety of the whole tenement. The notice
confounds the legal severance of the joint-tenancy by the
dormant surrender, and the actual severance of the parcels
by an occupation in severalty of distinct parts of the cus-
tomary lands.
Bayly, in support of his rule, cited Snag v. Fox (a), iu
which a copyholder aliened part of his copyhold to one
and part to another, and retained part in his own hands,
and no question was made as to the right of the copy-
bolder 80 to deal with his estate ; and the only doubt was,
whether the lord was entitled to more than one heriot {b).
[Bey ley, J. There the lord assented to the alienation.]
He also referred to Wase v. Pretty (c).
Lord Tenterden, C.J. — Two persons are joint te-
nants of the copyhold. They occupy in severalty, but
tfaeir esiaie is joint. One of the joint-tenants surrenders to
the lord by words capable of passing the whole. That
(«) Palm. 343 ;&C.S Roll. Abr. heriot; HoUoway v. Berkeley, 9
514; SO Vjn. Abr. ^43. Dowl. & Ryl. 83, and 6 Barn.
{b) Where the lord has become & Cress. 2 ; unless during the se-
eotitled to several heriots by the ferancethe lord has, by perception
sererance of a heriotable tene- of the several heriots from the re*
laent, and the different parts of spective tenants, obtained actual
the severed tenement are after- seitin of such new heriots. Man-
wards re-united in the same tenant, ning's Exch. Prac. 2d ed. 341.
ibe lord is only entitled to one (c) Winch, Rep. 3; Hetley,150.
VOL. V. E E
CA8E6 IH THE KlNO's BENCH,
Mvers th« joint-tenaney* The suironder can only Dpente
_, _, upon that which the party has, and can pass. .
The KiHd
v.
SocTHwooD. B^YLfiY and HoLROYD, Js., concuwcd.
LiTTLEDALE, J. — ^Thc Only course which Lee cati ado^t
seems to be to procure the surviving tenant in common to
join in a surrender of the whole, and then to apply to the
lord to grant out the parcels in severalty.
Rule discharged.
Mumnng applied for the costs of the motion, which the
Court refused^ on the ground that it did not appear by afii-
davit, that when Lte applied to be admitted in aevcralC)
any oifer was made to admit him to an undivided tnoiety.
RiCKARDS t). MuRDOCK aud another.
A. at Sydney, XHIS was an action of covenant, upon a policy of indar-
JB.'^l^t L^ndolT *^"^® ^" g^^^® ^y ^^^ ^ Cumberland, at and from Sydney
by the ship C, to London, effected by the plaintiff as agent for one Camp-
next ship ^^^A ^nd f<>r his benefit, with the Mutual Marine Insurance
writes to him, Company, of which the defendants were directors. The
directing mm, , •, r i mL
if the letter claim was for a total loss by perils of the seas. There
the C* to^ wntt ^^^^ several special pleas, but the questions in the cause
thirty days, in arose upon two only, the fifth and the seventh. The fifth
every chantTe P'^* Stated, that before the making of the pcJicy, to wit,
for her arrival, on the 28lh May, 1827, Campbell sent from Sydney to one
and then to "^ ...
insure the goods. £. receives the letter, and after waiting thirty^ix days, insures the
goods, telling the underwriter when the C. sailed and where the letter was written, but
not telling him when he received the letter. The C. never arrives. This is a materUI
concealment, and avoids the policy.
In an action on the policy, under such circumstances, the om'nion of undervrriters as to
the materiality of the matter concealed, was held to be admissible evidence (a).
(a) Coatri Camj^tll t. Bichirdt, 2 Ney. & Mann. 543.
HiLAilT TERM, X 0£0. IV. 419
Ibrm^X Londoo a letter, containing tbe order for effecting 1830.
the policy, by another ship called the Atutralia^ which had ^^^^^
sailed from Sydney a long time, to wit, more than a month «.
after tlie Cumberland had sailed from thence on her voyage ^*'**^tk^,
meatioDed in the policy ; that Campbell thereby instructed
Harris to deliver the said letter to one Emmett, who had
before then sailed from Sydney to London on board tbe
Cumberlafidf in case Emmeit should have arrived in England
viieD Harris should receive the said letter ^ but if Emmett
Wiould Bot have then arrived, Campbell thereby instructed
Harris to retain the said letter in his possession for the
i^ce of thirty days after be should receive it, and at tbe
«ipiration of that time to deliver the same to the plaintiff,
^ Campbell^ having in the said letter intimated that he had
directed Harris not to deliver the same to the plaintiff,
until the exf^iration of thirty days after the arrival of the
Australia in London, in order to give every chance for
Enmeii's arrival in England before the said letter should be
delivered to the plaintiff, (he, Campbell, thereby meaning,
tiiat ttoiess Emmett did arrive in England before the expi-
ntion of thirty days after tbe arrival of the Australia m
Loadoo, be, Campbell, bad little hope that the Cumberlaud
would arrive in safety at LoadcMi with Emmett on board ;)
that the said letter was dated at Sydney on the 2Bth May,
1827, and stated that the Cumberland sailed on her voyage
ODthe e.5th April, 1827; that before tbe making of the
poBcy^ to wit, on (he 8tb October, 1827, the Australia did
VHTe at London from Sydney with the said letter, and that
Harris did receive and detain the said letter in his posses-
noB for tbirtf days and more after tbe receipt thereof, and
at the expiration of (hat time did deliver the same to the
pUatiff, who thereupon caused tbe policy to be effected ;
dnt tbe plaioliff did not disclose, aor was it disclosed to the
^fandsnls or tbe said company, before or at tbe time of
nalui^ tine policy, tdbat the said letter came by (he Australia,
or that tbe Australia bad sailed from Sydney so lo^g or at
*B after tbe Cumberland, or that Campbell bad so requested
E E 2
CASES IN THE KING S BENCH,
the said letter containiDg the said order to be so detained
by Harris, or that the same had been so detained by bim,
V. or that Campbell had so intimated in his said letter the pur-
oDd another. P<>8e for which he so directed the said letter to be so de-
tained by Harris, or that Campbell had so intimated that be
had little hope of the safe arrival of the Cumberland at
London with Emmetl on board, in case she did not arrive
within the space of thirty days of the arrival there of the
Australia ; that the several matters and things so concealed
from the defendants and the said company at the time of
making the policy, and not disclosed, materially affected and
increased the risks, touching which the funds of the said
company were by the policy intended to be made liable;
and which matters and things, if the same had been ilis-
closed, would have materially affected and increased the
premium or consideration for the said insurance. The
seventh plea stated, that the plaintiff, before and at the time
of making the policy, concealed from the defendants and
the said company divers facts and matters which, at the
time of making the policy, materially affected and increased
the risks, touching which the funds of the said company
were intended to be made liable, and were thereby made
liable ; and which facts and matters^ if disclosed, would
have materially affected and increased the premium or con-
sideration for the said insurances. Replication : to the fifth
plea, de injuria su&, 8cc. : to the seventh, that the plaintiff
did not, before or at the time of making the policy, conceal
from the defendants and the said company any fiicts or
matters which, at the time of making the policy, materially
' affected or increased the said risks ; or which, if disclosed,
' would have materially affected or increased the premium or
' consideration for the said insurance. At the trial before
' Lord Tenterden, C. J. at the London adjourned sittings
after Hilary term, 1829(a), the following facts appeared:—
Mr. Robert Campbell was a merchant at Sydney, and the
person interested in the policy in question. He had been
(a) Vide 1 Dans. & Lloyd, 221, and I LI. & W. IS«.
HILARY TERM, X GEO. IV.
for some years a correspondent of the firm of Rtckards,
Mackintosh, & Co., in which the plaintiff was a partner.
In April, ]827> he shipped on board the Cumberland, then
about to sai] from Sydney for London, vi& Hobart-Town, a
lai]ge quantity of seal skins, (the goods insured by the policy
in question,) under the care of a Mr. Emmett, who was
going as a passenger in that vessel.
The Cumberland, with Emmett and the skins on board,
sailed from Sydney on the 27th of April, 18«7, and upon
hearing of her safe arrival at Hobart-Town^ Campbell wrote
and forwarded the following letter: —
" Sydney, New-South-Wales, 28th May, 1827.
" In case of the non-arrival of Mr. Emmett per ship
Cumberland, you will herewith receive the seconds of ten
sets of treasury bills, amounting to SOOO/., and the second
of exchange, Elizabeth von Bibra on Henry Powell, for
BO/.y making 3080/. ; which amount I will thank you to in-
vest agreeably to the accompanying instructions.
" I will also thank you to effect insurances, at market
price, on forty-nine casks, containing 4175 New-Zlealaud
far seal skins, shipped to the consignment of Mr. Emmett per
Cumberland, or, in case of death, to your house ; for which
IHirpose I inclose you the bill of lading. The Cumberland
left Port-Jackson for London, vi4 Hobart-Town, on the
25tfi of April, 1827, and by letters received from Mr.
Emmett, was at Hobart-Town on the 10th of May, 1827,
and was expected to sail from thence in ten or fourteen
days from that date.
" Insurance to be effected on the goods shipped to my
consignment, and the freight payable in New-South-Wales.
I wish the goods to be shipped by two or three oppor-
tunities, and, if practicable, by vessels coming direct to
Sydney.
** To give every chance to Mr. EmmetVs arrival in Eng-
biKl, I have directed my friend Mr. Harris not to de-
liver this until thirty days after the arrival of the Australia
in London ; and should Mr. Emmett arrive after you have
421
1830.
Rtckards
V,
MURDOCK
and another.
422
i8sa
RiCKARDB
MOIIDOCK
and another.
CASES IN TttE kino's BENCH,
fulfilled these instructions, you will communicate to him
what you hate done, it having been mutually agreed upon,
previously to his leaving New-South-Wales, that in case of
any accident to him you should be appointed agent of this
concern/*
This letter was inclosed in an envelope, which bore the
following address : —
" This letter is to be delivered by Mr. Harris to Mr.
Emmett, if he has arrived, and if not, to be retained in Mr.
Harris's possession thirty days from the date he receives it,
and then to be delivered to Messrs. Richards^ Mackintosh,
8c Co., London."
This letter was forwarded by the ship Australia, which
sailed from Sydney on the 2d of June, I827> and arrived io
London on the 6th of October, ISd?^ and was delivered ia
London on the Bth of October, i827y to Mr. Harris^ who
retained it in his possession thirty-six days ; at the end of
which time, namely, on the 13th of November, 1827, no
news having been received either of the ship Cumberland
or of Mr. Emmett, he, Harris, handed over the letter to
Messrs. Richards, Mackintosh, 8c Co.
Messrs. Richards, Mackintosh, & Co., on the same day
that they received the letter, delivered it to their clerk, Mr.
Towers, for the purpose of hk effecting the insurance
therein ordered. Towers first went to Lloyd* s, where be
was asked a premium of 70s. per cent. He then went to
tihe office of the Mutual Marine Insurance Corapavy, where
he saw the managing clerk, a Mr. Ellis, to whom be read
the second paragraph of the letter, and no more; but he
stated the date of the letter and the place from whence it
was written ; and no further particulars being inquired into
by Mr. Ellis, Towers and he agreed upon a premiuiD of
60s» per cent., and the policy was effected on those terms.
Tbe Cumberland was never afterwards heard of, and was
presumed to have foundered at sea. Two vessels that had
saikd from Sydney after the Australia, arrived in EagiaDd
two or three days before the policy was effected, aod their
RiCKARPS
Hii^av TERM, X Of o, IV, 4^3
anivsil was annouiic^d in X'/oyfiTs Uft ^ Ul9 HK^rning of tb^ 1830.
(iaj when the policy was eifect^d^ Several Maderwriter-i,
who were called as witnesses on the part of the defendants, v.
stated, that in their opinion the whole of the letter ought aJd^nuaih^r.
to have been read to Mr. JEJln, af^d that the pi^fft omitted
was material. This evidence was; objected to, but wa9
admitted by the Lord Chief Justice, who left the question
of materiality to the jury. The aame witnesses stated upon
cross-eiamiiiatioii, that if on^ underwriter refuses a risk,
that circumstance is never communicated by the broker to
9,uy otiier underwriter to whom the risk is afterwards of-
fered. The jury having found a> verdict for the defendants^
Scarlett, A. G., in Ei^ster term^ ] S2Q, obtained a rule
nisi for a new trial, on two grounds ; first, that evidence of
tbe opinion of the underwriters ought not to have been ad*
naitted ; and, secondly, that the part of the letter which had
not been read could not properly be deemed material, inas*
mueb as it did not relate to any facts, but only to the
apprehensions of the writer, and that the party effecting an
iosurance was not bound to communicate any thing but
facts, unless questioned by the underwriter: Haywood (or
Eaystard) v. Rodgers (o), and Freetand v. Glover (6).
F. Pollock and Tomlinson shewed cause. First, evi«
d^ce of the opinion of the underwriters was properly
admitted in this case, for the purpose of shewing that the
Blatter withheld from the insurers was material, and ought
to have been communicated. It was decided in Lindenau
V. Desborough{c\ that it is tbe duty of a party effecting an
insurance on life or property, to communicate to the under-
writer all tbe material facts within bis knowledge, touching
(a) 4 East, 590; 1 Smith, 289. vol. iii, 45. And 8«e the note ante
(&) 7 East, 457; 3 Smith, 424; iii, 47(fl), in which are cited
6 Esp. N . P. C 14. And see Ctmrt Maynard v. Rhodez, 5 Dowl. & Ryl.
▼. MorfiaeoifyS Dougl. 161. S66, and Everett v. Detbaroughf
(c) 8 Barn. & Cress. 586; ante, 5 Bingh. 503, 4 Moore & P. 100.
424
1830.
RiCKARDS
V.
MURDOCK
and another.
CASES IN THE KINO's BENCH,
the subject-matter of the insurance^ M^hether he believes
such facts to be material^ or not ; and that it is a question
for the jury whether any particular fact was or was .not
material. Upon that question the judgment of the jury
must be aided and guided by evidence ; and the opinion of
persons conversant with the subject-matter of the inquiry,
is efficient and proper evidence for that purpose. In Ber-
thon V. Loughman (a), where the defence was, that material
information, as to the time when a ship sailed, had been
withheld from the underwriter, Holroyd, J. held that a wit-
ness, conversant with the subject of insurance, might give
his opinion, as a matter of judgment, whether particular
facts, if disclosed, would have made a difference in the
amount of the premium. In Durrell v. Bederley {b), Gibhs,
C. J. said (c), ** It is the province of the jury, not of indi-
vidual underwriters, to decide what facts ought to be com-
municated," and he received the evidence of underwriters
with hesitation ; but the question there asked was, — not
whether the matter in dispute was material, — but whether
the witnesses would have accepted the risk.
Secondly, the part of the letter not read was material,
and ought, therefore, to have been communicated. Hay-
ward V. Rogers (d), and Freeland v. Glover (e), — the cases
cited when this rule was obtained, — are very different from
the present case. In the former of those it was held, that
a letter stating that the ship insured had been surveyed on
account of her bad character, need not be communicated ;
but the ground of that decision was, that the assured always
impliedly warrants the ship insured to be seaworthy. In
the latter, two letters had been received by the assured re-
specting the state of the ship, and the second only was
communicated to the underwriter; but as that expressly
referred to the first, so that the underwriter knew that
further information had been received, and might have
(a) 2 Stark. N. P. C 258.
(b) Holt, N. P. C. 283.
(f ) Ibid. 286.
(rf) 4 East, 590; 1 Smith, S8P.
(e) 7 East, 437 ; 3 Smith, 424;
6 Esp. N. P. C. 14.
RiCKARDS
HILARY TERM, X GEO. IV.
called for it, it was held that bis omitting to do so was an
answer to the objection. Jin the present case the insurer
had no means of knowing that the plaintiff had received any v.
information respecting the Cumberland beyond that which ^j^^j^^^'r
was read to him ; nor could he know that the letter was not
brought by one of the two vessels which arrived imme-
diately before the policy was effected : but the plaintiff was
aware of both those facts, and therefore the whole of the
letter ought to have been read, and the fact that the letter
came by a vessel which sailed after the Cumberland, and
arrived a month before the policy was effected, ought to
have been distinctly communicated. In Kirby v. Smith (a),
where a ship had sailed from Elsineur, on her voyage home,
six hours before the owner, who followed in another vessel
on the same day, and who, having met with rough weather in
his passage, arrived first, and then caused an insurance to be
eflfected on his own ship, it was held, that these circum-
stances were material to be. communicated to the under-
writer, and that it was not sufficient to state merely that the
ship msured was '^all well at Elsineur on the 26th. of July,"
the day of her sailing. In Willes v. Glover {b), the plaintiff,
the consignee of goods, received a letter from the consignor,
dated SOth November, stating, *^ I think the captain wUl
sail to-morrow; but should he not be arrived in your port,
you will be so good as to make the insurance as low as you
possibly can for my account :" — This letter arrived on the
12th December, and on the following day the plaintiff ef-
fected the insurance, without communicating the letter; and
it was held that this was a material concealment. In
M'Andrew v. Bell{c) the insurance was on a ship from
Lisbon to London : — On the 24th of November the plaintiff
ia London received a letter from Lisbon, dated the 8th,
informing him that the ship would sail on that day :^On
the 2d of December, and after the arrival of another ship
which sailed at the same time, the plamtiff effected the in-
(a) 1 Barn. & Alders. 672. (6) I N. R. H. (f) 1 Esp. N. P. C. 373.
42<^ CASKS IN THE KMO & BENGV,
1890. 8iiraiiee» but wiihoiMi coDnnimicfttin^ to the underwriter the
J^*""^^^^ letter that he bad receivedl. Lord Kawon held that this
V. was a material cancealaieiit, a»d obeerved, that " rt ap-
a^^t^Ir P^^r^^ ^^^^ ^^^ pkaintiff did not intend to inaure Hotol he
believed hef to be a misemg shipv^-a» he did not effect the
policy for ten da^rs after the letter arrived, and not until
another ship wUcb had saikad at the same time with hi*
own had arrived in safety." That case is not, in substance
or in principle, distinguishable from tlie- present; for it is
clear that Campbell did not intend to have the insurance
upon the Cumberlcmd effieeted, unii), in bis c^imoBi aU
hope of her safe arrival would have ceased.
ScarkU, A. 6«, Campbtll, and Maule, contri. All the
facts which it was necessary for the fair protection of the
underwriter that he should know, were communicated to
him at the time when this policy was effected ; it was not
necessary that he should be informed of mere matters of
opftiriVvf. It is not pretended that wf fraud was practised;
and therefore the case last cited has no bearing upon the
present. It is not even pretended that the Cumberland
was in fact a missing ship when she was underwritten, but
only that Campbell the owner must have thought her to be
so, and that his opimon on that point ought to have been
communicated to the underwriters. There is no authority
for that argument. The underwriter is always presunsed
to know the general nature and ordinary duration of the
voyage for which he insures ; and he is entitled to be in-
formed, where the means of such information exist, of the
time when the ship sailed, or was expected to Mail^ and of
all other facts which would in any degree vary the general
character of the risk. Beyond this the assured is not
bound to volunteer information, and if the underwriter
wishes for further infoirmatioB, it is bis duty to ask for it.
This distinctiou is stroqgly pointed out by Lord EUtU"
borough in Haywood v. Rodger${a). The defendants in
{a) 4 East, 590; Hayward v. Rodgert, 1 Smith, $89.
HILARY T£Rlf, X GEO. IV. 427
this case had as good means of fbrroing ao opinion a& to issa
the probability of the safe arrival of the Cumberland, as ^"^vW
the owner had ; and the opinion either of the one or the 9,
other could not by possibility vary the real nature of the ^^"''^^
risk. It seems admitted that if the letter had arrived only
a day or two before the policy was effected, it would not
have been necessary to mention it. The material fact
opoB which the calculation of the underwriter always
depends, is the date of the ship's sailing; and that waa
truly communicated in the present case. The argument
OD the other aide must go this length — that a party about
to iasure is bound to communicate to the underwriter all
the fears which he himself entertains. Suppose CamjAeU
himself bad been in England ; had received information of
the Cumberland having sailed from Sydney on a particular
day; bad neglected to insure her for thirty days; had then
become alarmed, and employed an agent to effect an in-
surance, stating to him the alarm he felt — would the agent
have been bound to state that circumstance to the under-
writer? If so, a policy may be good or bad according to
the strength or weakness of the nerves of the ship-owner,
or according to his habit of expressing or concealing the
anxiety or alarm he feels about the safety of his property.
The opinion of an underwriter as to the probable safety of
a ship upon a particular voyage, roust be at least as import**
aat as that of the owner; and yet it was in evidence in
this cause, that where oae, underwriter refuses a risk, that
circumstance is never mentioned to any other underwriter
to whom the same risk is afterwards offered. In Bell v.
Bell (a), the assured upon a policy from Riga to London
had received a letter from their correspondents at Riga,
stating that the papers of all vessels arriving in that port
had been ordered to be sent to Petersburgh, and that the
order had produced a great sensation, on account of the
detention occasioned by it, and expressing considerable
apprehension for the safety of the ship. This letter was
(a) 3 Caropb. 479. And see 3 Dougl. 41.
428
1830.
RiCKARDS
v.
MU&DOCK
and another.
CASES IN TH£ KING*S BENCH,
not shewn to the underwriter when the policy was effected,
but he was informed by the broker that the ship's papers
had been sent to Petersburgh. It was contended that this
was a material concealment, which rendered the policy
void, but Lord Ellenborough ruled otherwise, and said,
'• The assured are only bound to communicate yac/«. The
broker did communicate the fact of the ship's papers being
sent to Petersburgh for examination. He was not bound
to communicate the sensations and apprehensions which
that fact produced at Riga;" and this ruling was after-
wards supported by the whole Court. Carter v. Boehm {a)
had previously decided that the apprehensions or opinions
of a party insuring need not be stated, and that case is also
a strong authority to shew that the opinions of the under-
writers upon the materiality of the matter not communi-
cated, ought not to have been received in evidence in this
case. There, the broker who effected the insurance was
allowed to state at the trial that, '^ in his opinion certain
letters ought to have been shewn, or their contents dis-
closed, and that if they had, the policy would not have
been underwritten {b) :*' — After argument upon a motion
for a new trial, Lord Mansfield, referring to this evidence,
said(c), '' We all think the jury ought not to pay the least
regard to it. It is mere opinion, which is not evidence.
It is opinion after an event. It is opinion without the
least foundation from any previous precedent or usage. It
is an opinion which, if rightly formed, could only be drawn
from the same premises from which the Courts and jury
were to determine the cause, and therefore it is improper
and irrelevant in the mouth of a witness." And the judg-
ment of Gibbs, C. J., in Durrell v. Bederley (d), is to the
same effect. He there said, '' I am of opinion that the
evidence of the underwriters, who were called to give their
opinion of the materiality of the rumours, and of the effect
they would have had upon the premium, is not admissible
(fl) 3 Burr. 1905.
(b) Ibid. 1914.
(c) Ibid. 1918.
(d) Holt, N. P. C. 283.
HILARY TERM, X GEO. IV. 429
evidence. It 18 the province of the jury, not of individual 1830.
underwriters, to decide what facts ought to be communi- J^"^^"^^^
n«*^J T* • • - . ^ RlCKAUBS
caiea. it is not a question of science, on which scientific v.
men will mostly think alike, but a question of opinion ^SSer.
liable to be governed by fancy, and in which the diversity
might be endless. Such evidence leads to nothing satisfac-
tory, and ought on that ground to be rejected." Lindenau
y. Desborough (a) cannot be regarded as a conflicting au-
thority; for there the opinions given did relate to a question
of science.
Cur. adv, vult.
Judgment was now delivered by
Lord Tentehden, C. J. — This was an action on a po-
licy of insurance on goods by the ship Cumberland, at and
from Sydney to London. A verdict having been found for
the defendants, a rule nisi for a new trial was granted; and
on the argument, the main question was, whether a certain
letter, which had been received by the piaintiflf, was material
and ought to have been communicated to the defendants.
One part of it, stating the time when the Cumberland sailed
from Sydney, and when she was ei^pected to sail from Ho-
bart-Town, was stated, but the residue was not. The part
which was not stated contained this expression: — " To give
every chance for Mr. Emmetfs arrival in England, I have
directed my friend, Mr. Harris, not to deliver this until thirty
days after the arrival of the Australia in London.^' The Aus--
tralia did arrive, the thirty days elapsed, and Mr. Emmett,
who was on board the Cumberland, did not arrive; and in
tbe meantime two other vessels that sailed from Sydney
after the Australia, had arrived. The question was, whe-
ther this part of the letter was material, as altering the risk
and the premium that the assured would have to pay. It
was contended, for the plaintiff, that this fact of the letter
having arrived so long before the insurance was effected.
(a) 8 B. & C. 586; 3 M. & R. 45.
CASES IN THE KlNO's E£IfCH,
was not of siicii a nature as tfaat, if it had be«n commum-
catedy it M^oald have affected the risk; that» at ail events, it
V. would only go to affect the araount of the premium. But,
^^^''^^ in our opinion, nothing can affect the amount of the pre-
mium, without also affecting the risk. That was the wiy
in which the point was put in Lynch v. Handlton{a)y where
Man^dd, C. J., said, ** A person insuring is bound to
communicate every intelligence he has, that may affect the
iMind of the underwriter in two ways — first, as to the point
whether he will insure at all; and secondly, as to the point
at what premium he will insure." At the trial of this cause
some witnesses stated that they thought that the letter
was material and ought to have been communicated* It has
been contended that no such evidence ought to have been
received. I know not how the materiality of any matter is
to be ascertained but by the evidence of persons conversant
with the subject-matter of the inquiry. If such evidence is
rejected, the Court and jury must decide the point according
to their own judgment, unassisted by that of others. If they
are to decide, all the Court agree in thinking that the letter
was material and ought to have been communicated, and
tliat a jury would have been bound to come to that conclu-
sion. The case is somewhat peculiar. The abtp was at
Hobart-Town. The owner, who was a resident at Sydney,
and who must be taken to have known the character of the
ship, wrote to his agent here by another vessel sailing from
that place at about the same time that the Cumheriand was
expected to sail from Hobart-Town, and directed him, after
the receipt of the letter, to give his ship every chance of
arriving before he effected the insurance. If the fact that
the letter had been so long received and detained by his
direction before the insurance was effected, bad been made
(a) S Taunt. 37, where it was choice, whether be will iasnre «c
held, that it ^ is the duty of the all, and at what premium he will
assured not only to communicate insure, but likewise aTl rumours
to the underwriter articles of in- and reports which may tend to eo-
telligence which may affect his hance the magnitude of the risk/'
HILARY T£lial> X &£d. IT.
known to the uitilerwfiter, it nwaM ranH probability hwe
bad some influence on bis tnind. Mid l¥Ould -have induced
biro, as was said in Lynch v. Hamilton (a), either not to
underwrite at all> or not to iMMkrwriCe ^xtept upon an in-
creased premiuin* There \v%n another fact iiiso not imma-
terial—two ships had arrived from Sydney M^ithm two or
direfe days before the insarance was m/Btde, and the utider-
writer might natorally suppose that the letter Aad come by
one of tbem; he should therefore h»e htm informed of
tbe true time at which it had been received^,
For these reasons we are of opintevi that the verdict
found for tbe defendants was right, «md dfai this nile for n
new trial ought to be discharged.
Rule discharged (&).
431
1890.
Rtckahd/s
t.
and another.
(a) 9 Taant. 37.
(b) Vide Selw. N. P. 085, 7th ed.
Harrison, 'Executor of Harbison, v. Dowbiggin, Ad-
niinistratrixy cum lestamento annexo, of Dowbiggin.
dCIRE facias on a judgment of nonsuit in an action in
which tbe now defendant was plaintiff, and Harmon, the
testator, was defendant. The nonsuit took place 15lh
December, 1827* Before Hilary term, viz. 5th January,
1828, the testator died. In the following October an appli-
cation was made in the name of the testator by his executor
(tbe now plaintiff) to tax the testator's costs, %i4ich the master
refused to do. This Court granted a rule niai for directing
tbe master to tax the costs, which after argument (in the
course of which no allusion was made on either side to
tbe circumstance of the testator's having died), was made
absolute (c). The costs having* been taxed and the master's
allocatiir given, judgment was, on the llth November,
1829« signed in the name of the testator; a scire facias
s)id an alias sci. fa. were sued out calling upon the defend*-
(c) jtnie, Tol. iv. 699, and 9 Bam. & Cress. 666.
A suit abates
by the death of
either party
between a non-
suit and judg-
ment, notwith-
standing 17
Car. 2, c. 8.
So, if the
death occur
between r^r-
divt and judg-
metft, unless
judgment be
nntuaily signed
within two
terms after
verdict.
432
1830.
Harrison
V.
DOWBIOOIN.
CAS£9 IN THE KING S BENCH,
ant to shewcause why the plaintiff, as executor of Hamson,
should not have execution upon the judgment.
Godson, in this term, obtained a rule to shew cause why
the writs of sci. fa. should not be set aside. The motion
was made on the ground of irregularity, the alleged irregur
larity being that the action had abated by the death of
the testator, it being submitted that the statute of 17 Cor.
2, c. 8, which authorizes the entering up of judgment within
two terms after verdict, does not apply to a case in which
the plaintiff has been nonsuited, or to any case in which three
entire terms have been suffered to elapse before the signing
of the judgment.
Campbell Tkovf shewed cause. The Court will not favour
the defendant's application, for she is now setting up a new
objection, after having been already before the Court since
the death of the testator, to take her chance of success
upon another question. At common law no doubt all
suits abated by the death of either party before judgment,
but by 17 Car. 2, c. 8, it is enacted, that in all actions the
death of either party, between the verdict and the judg-
ment, shall not be alleged for error. Although this in its
very words applies only to cases in which a verdict has been
given, yet the mischief which the statute was intended to
remedy is the same in the case of a nonsuit. Even if it be
doubtful whether this construction is correct, the Court
will not give the defendant a summary relief, but will leave
her to plead to the scire facias, or to bring a writ of error(a).
Godson, contr^ It is now usual for the Court to relieve
a party in such a case as this upon motion. The Court
(a) So, although the Court will
interfere upon motion where a
party is clearly entitled to a writ
of audita querel^ ^et if the right
to the relief be dcubtful, either
upon the facts or upon the law,—
the Court will leave the party to his
remedy by audita quereU. Sy-
mom V. Blake, 2 CrompL Mees. &
Rose.
HILARY TERM, X GEO. IV. 433
will interfere in a summary way instead of putting parties isdO.
to the expense of a writ of error, or of pleading to the sci. ^■^^'-^^
fa. With respect to what is said in allusion to the plain- «.
tiff's having already been before the Court, the answer is, I>o^»«aa'»»
that the defendant's representative is not injured by the
discussion of the question respecting the plaintiff's liability
to pay costs. Supposing that instead of a nonsuit there
hid been a verdict in this case, the right of the defendant
to avail himself of the provisions of J 7 Car. 2, c. B, would
have been lost before that discussion took place, by reason
of bis having omitted to enter up judgment within two
terms; Copley ▼• Day{a). But the statute of Car, 2,
clearly does not apply to cases where the action has been
terminated by a nonsuit.
Lord Tentbbben, C. J. — If the case of a nonsuit were
within the statute of 17 Car. 2, c. 8, the judgment must be
signed within two terms. The words of the statute are,
*^ So as such judgment be entered within two terms after
such verdict." This must mean that no greater time is to
intervene between the verdict and the time when judgment
is actually signed. But as a nonsuit is not mentioned in
the statute, the case of a nonsuit is left as at common law.
Rule absolute*
(a) 4 Taaot. 703.
Bbbtt v» Bealbs and others.
Assumpsit for tolls. Plea: nou assumpsit. At the Liability to re-
trial (6) before Lord Tenterden, C. J., at the sittings at ^^''^f^^''
Westminster after last Michaelmas term, the following town, is not a
bet» appeared : The plaintiff is lessee of the tolls in ques- gideracion foe
tion under the mayor and burgesses of Cambridge^ who toll-thoroagh
have immemorially repaired all the quays and bridges and thevAo/etown.
(f) The trial occopied three days.
tOL. V. F F
434 CASES IN THE KfNO's BENCH,
18S0. oie of the streets of the town. The modern perosptioD
of the tolls was proved, and it was shewn by Domeadij*
Book that iiwsuetudines{a) were paid to the king, to Mrhom
the town then belonged. From the Pipentdis of 31 flint. I,
( 1 1 84,) and 1 Joham. ( 1 IdSy) it appeared that the bargemt
had held the town at farm, and by a charier 8 Joham
the town, with the appurtenances, was granted to the bar*
gesses and their heirs, habendum of the king and bis
heir8{&).
A composition deed, temp. if. 8, between die Corpon*
tion of Cambridge and the University, reciting and confirah
iDg an award made between the same partiesi one of the
provisions of which fixed the rate of the tolls to be taken
by the corporation, was admitted as evidence of repntatioo
as to the existence of the tolls, though the modem payments
had not been made in perfect conformity with the deed,
A table of tolls in the possession of the corporationi fron
which copies had been delivered out to officers who had
collected under such copies, was received in evidence.
The plaintiff also tendered in evidence an old hock pro*
dttced from the muniments of the mayor and baifesses,
called the ** Common Day Book/' containing entries of tke
proceedings of the corporation. From this book the plain-
tiff had proposed to read orders made by the corporation
directing the collection of tolls (c). This evidence was
(a) As to this temi, vide Mad. had in demepie; and a seigniory
£xcb. 525; F. N. B. 151; ante paramount in respect of the pro-
iii, 340 n; Ducange, Ghaar. in peity (the burgage tenares), as to
verbo. which he had previously to the
(b) The effect of this grant (in- grant, an immediate seigniory,
dependently of the question as to (c) The following is a copy of
the tolls,) was to pass from the one of the orden:-^*< 1617, Aug.
king to the corporate body Uie let- 25. It is likewise this day agieed
lift of the lands and hereditaments that a letter of attorney be made
which the king or lord of the tothefo«rbaili6l,aeithoniuiglbm
borough had in demesne, and the to receive all lawful tolls and on-
immediate seigniorjr over the bnr- toms belonging to the ooipontioo.
gage tenures (vide Litt. s. 162), The same to be drawn up by the
leaving to the king a seigniory in advice of the recorder «nd then
respect of that which he before sealed with the town seal."
IIILAHt TERM, X GEO. IV. 436
okjMfed to ott tbe part of the defendant* on the ground isso.
dm! Aese of&etn were merely private memoranda^ Lord
Tenierden, C J»> npon the authority of Marriage v. Law^
tmceiu}, r^eeted the evidence.
For the defendant, it was contended thai thei*e was no
evideDce to support a claim for toll-traverse, and that there
WM to «ODSidenition to support a claim for toll-thorongh,
for which IVtiiRm V. Wafgham(h) was cited.
The learned Judge elated to the jory that the law recog-
ines two aocts of loliy-^toU-tliorovgli and tolKtraverse ; toll-
dNMtMigh, wfaet« % pBttf is enlMed to take tM in considera-
fiM of a liabiHlyto repair public highways; toU-traverse,
there tlie toil is dedicated by tlie owner to the public, sub-
ject «a the retervaiioa of a t^U to be paid by those who pass
over k; that in this ease, Ihotigh the ptaintifF bad proved
dnt the corporation repaired one of the streets, he had
ftiied to prove thai all the roads and streets in Cambridge,
(ia Inspect of the passifq; through any part of which the toH
ii daimed,) were repaired by the corporation ; that the eon-
fldcmtioK therefore was not co-extensive with the toH
diuned) that bis was iberefore of opinion that the claim
kt tM-th^rougk could not be supported :-^hat with re-
spect to tolUtr4nm^ it appeared that at the time of the
CMBpilaCibn of Domesday-Book(c)i the town of Cambridge
Hfts put of the possessions of the crown, and that at that
time there appeared to have been a town and highways at
Cambridge; thai as the reservation of toll-traverse must
be made eo instanti with the dedication of the soil to
tk pttbtic, the dedication in Ibis case must have been
u early as the reign of William the Conqueror; that if
the king wws ^eieed of toll-traverse prior to the grant of
Iht town, ^ ^iritb its appurtenances,*' in the charter of J ohm
dkose words would be sufficient to pass the right to such
isl, bat tiMit k was for the jury to say whether, from the
(^3BankfcAldm.l4d. Aud 573.
« mU y. Manchater and SaU (6) 3 Wils. 296.
W WatermorkM, t Nev. & Mwrn. (c) A.D. 1086.
F F 2
Brett
V.
bal;
and othen.
436 CASES IN THE KING's BENCH,
18S0. term " eonsuetudine$'' in the Domesday-Book, and from the
modern usage, tbey were satisfied that such toll-traverse
was reserved upon the original dedication of the soil of
n^'^tk!!. ^^^ highways to the public. The jury having found a ver-
dict for the defendants,
W. E. Taunton now moved for anew trial, oti the ground
of the improper rejection of evidence and of misdirection,
(the Court expressing a strong opinion upon the former
point, he confined himself to the point of misdirection.)
The repairs done by the corporation prove their title to toll-
thorough. It was not necessary to shew that the repairs
had extended over the whole town. Truman v. Walg-
ham {a) cannot be supported. That case is at variance
with former decisions. In Rex v. Boston {b), a toll-
thorough was supported upon the consideration of re-
pairs done to a bridge, the pavement of a street, and to a
sea-bank. In Smith v. Shepherd (c), it was said that the
maintaining of a way or a bridge was a good consideration
for a toll-thorough. In Crisp ^> Bellwood{d), the repair-
ing of a certain wharf for the landing of merchandize was
held to be sufficient consideration for toll upon merchan-
dize landed within any part of the manor. The repairs
done afforded evidence of a general liability to repair,
which general liability would, at all events, have supported
the claim.
Cur. adv. vult.
On a subsequent day the judgment of the Court was
delivered by
Lord Tenterden, C. J. — After stating the form of the
action and the evidence, bis lordship proceeded thus:—
Being of opinion that the decision in Truman v. Walg-
ham was correct, and that it had been so considered, I pre-
sented the case to the jury as a question of toll-traverse,
having its origin at the same time as the streets. A new
(a) 2 WiU. 296. (c) Cm. Eliz. 7 10.
(6) Sir W. Jones, 162. (d) 3 Lev. 424.
HILARY TERM, X GEO. IV- 437
trial was moved for^ on the ground that the case ought to 1830.
have been left to the jury as a case of toll-thorough. Since
the case of Truman v. Walgham, the same question has
arisen in Hill v. Smith{a). There the defendanU justified
under the title of the mayor, aldermen, and citizens of
Worcester, for toll of goods and corn sold by sample in
the market-place, and afterwards delivered within the city.
In Hill V. Smith, one of the pleas stated an immemo-
rial custom for the corporation to hold a market. One
plea stated that the corporation repaired the pavement of
the corn-market, and certain highways and streets, and had
immemorially taken a reasonable toll for corn sold by sam-
ple. The jury found a verdict in favour of the toll for
corn sold by sample. This Court refused a new trial.
Some allusion was made to this claim on the part of the
corporation in respect of the repairs of the pavement of
the corn-market. That Lord Ellenborough dismisses very
lightly, and says, that the objection is on the record. A
writ of error being brought in the Exchequer Chamber the
judgment was reversed, that Court being of opinion that
the pleas were bad as to the corn sold by sample. Sir
Jame$ Mansfield, C. J., in delivering the judgment of the
Court, says, " the defendant pleads a right under the cor-
poration of Worcester to take a toll upon what is called
in the pleadings a sale by sample. The sole question is,
whether the prescription is such as can be sustained in law.
If claimed as toll-thorough, it cannot be supported, for it
is not alleged that the corn passed over any street which
was repaired by the corporation, therefore there is no pre*
tence for calling it toll-thorough." That is precisely to this
point. Mr. Taunton pressed the authority of Smith v.
Shepherd, in which Popham, C. J., says, " One may have a
totl-traverse by prescription, and so he may have toll-
thorough, but it ought to be. for some reasonable cause
which must be shewn, viz. that he is to maintain a cause-
way, or to repair a way, or a bridge, or such like; and the
(a) 4 Taunt. 6S0.
CASES IS TIi£ KIKG'S BENCS,
queeq at Ais day may grant such toll, being but a pf Uy
thing, in respect it shall be a greater benefit or ease to the
people for the repairing of a dangerous way, or the like/'
Mr. Taunton says, that the language of PopAnm^C. J., doea
not imply that it roust be a particular way, or particular pbfie*
in respect of which the toll is claimed; but I think it niust
be so understood even upon that report alone ^ but &e
same case is reported in Sir F. Moore {a\ wl^re it is wd,
" the prescription is not good or reasonable for any to take
toll for passage in vi& regi&, and the inheritance of each
man in the passage in viis regiis is precedent to all pre*
scriptions; but if the party shows a cause for the toll» as ii
he is bound to repair the bridge or the causeway Scc, there
may be a reasonable cause for the commencement of the
toll and prescription; but that is not shewn in the principle
ease; but for toll-traverse it is clear that a man may pre-
scribe, because this is for passage over his own fiieehold; it
is otherwise for toll-thorougb» as this is in the caae at bar.**
According to that report the right is put upon the liabibtj
to repair the particular road« In ^ RolL Abr. Prerogatifei
£• p\,20{b), it is said that the king cannot ehargo hie sub-
jects by an imposition, unless it be for the benefit of the
subjects who shall be charged, and where they shall have
quid pro quo. A person passing along one street cannot be
benefitted by the liability of the corporation to repnir some
other street;-^such liability therefore cannot be sttflksicwt
consideration to support a claim for toll*thorougb. We
are not called upon to say in what cases a claim for toll*
thorough can be sustained.
Rule refused*
(a) Page Bfi, No. 793. inclose my town, and grants diat
(6) Translated 16 ViD.Abr.580y I may take a halfpenny or ocber
citing 13 If. 4> 14 b, and 11 Co. sum of every horae»load or csit*
Hep. 86 b, (which merely re/erj to loud which passes through die
13 H. 4.) In ff. 13 H. 4, fo. 14, town, to have the money to in*
pi. 1 1, Gascaigne, C. J., says, '' If close the same; and also the king
the king grant to me that I may grants to me pontage, and that I
BILART TERM, X GEO. IV.
43d
Dttf taU of trwy load a cerlaia
sun for the making the bridge
with the same money, the grants
are good, because the king may
cbaip bb people of the realm
witboot spedal aseent of the
CommoiiS) to a thing which may
be to the profit of the common
people. Bet if the king grant such
fflonp to a many and grants
fartber that he may take a certain
custom of every load when I and
mj tenants shall pass through the
sdd towB) altfaoi]^ two or more
of my Maants pay to him rent or
custom for their loads, I may well
Ustiub him from taking such cus-
una when I pass through the town
vitb my loads; for the grant is
void ia such case, because no man
shall be charged in special in such
case/' And Skreney J., says, (fo.
5 a.) "Thorough-toll is a toll
which is taken ftom persons who
pass with carriages through a town
from time inmiemorial, and he
who is now lord of the towa for-
feits the seigniory to the king,
and afterwards the king by his pa-
tent grants that I may collect his
toll; now this is an office whereof
there was no officer before. And
so it is where murage is granted
to a man, and by the same patent
the king grants that I may GoUe<)C
it, and moreover a writ issues to
the sheriff to proclaim the said
patent in the county. After
that is done it is a good office in
me. And also to the other extent
I say that I may have a ferry over
a certain water adjoining my own
land, and that 1 may take of every
man a farthing (un mail), or more
or less, the grant is good." Euk,
J., says, *' In your case of thorough*
toll it is not marvel, because such
toll was not due before the patent
made to you ; and of your case of
the ferry it is not marvel, because
those who make the payment have
quid pro quo»^*
1860.
Watts v. Friend.
Assumpsit. The declaration stated that on the 28th An agi«ement
May, 18«7, in consideration that the plaintiflf would supply ^^^rto^^fumish
the defendant with turnip-seed to sow certain land of the B. with turnip-
defeodant, the defendant agreed to sell to the plaintiff j^j^ i^„^^ ^^
Ac whole of the turnip-seed which should be pro- B. was toseU
fluced from the land, at the price of one guinea per Wiff tumip^eed
diattr bushel, and deliver the same to the plaintiff at the ^j^^J^^"5[^
luoa] time after harvest and thrashing. Averment, that is. per bushel,
the piaktiff supplied the seed, and that the defendant J^^^Ji^
note in writing
nder the If th section of the statute of frauds, the value of die crop having in fact
nonded 102.
Whether under 5 Geo, 4, c. 74, s. 15, an agreement to sell seeds by the Winchester
Inshel, without expressing the ratio or proportion which such Winchester bushel bears
to the standard measure, is void, qu^re.
440
1890.
Watts
V,
FftlEVD.
CASES IN THE KIKG'S BENCH,
sowed ]t» and harvested the crop, which prodaced 240
bushels of turnip-seed. Breach: that the defendant did
not within 'such several times, or at any other time, deliver
the turnip-seed to the plaintiff, but delivered it to some
other person, whereby . plaintiff was obliged to purchase
at a higher price in order to enable him to deliver the same
tp persons to whom he had sold. Plea: non assumpsit.
At the trial at the last Maidstone assizes before Lord
Tenterden, C. J. the following facts appeared :
28 May, 1827. A verbal agreement was entered into
between the parties, to the effect stated in the declaration*
The price of turnip-seed having afterwards risen, the de-
fendant refused to deliver the seed according to his con-
tract, and the plaintiff was obliged to make purchases else-
where to enable him to complete contracts of sale which
he had made in anticipation of receiving the defendant's
seed. The defendant contended that the contract was
void under the 17th section of the statute of frauds, and
also under the Uniformity of Weights and Measures
Act (a). A verdict was found for the plaintiff, and the
learned judge gave the defendant leave to move on both
points. A rule nisi for entering a nonsuit having been
obtained,
Gurney (with whom was Comyn) shewed cause. At
(a) 5 Geo. 4, c. 74, which
enacts (s. 15), '' that from and
after the first day of May, 1895,
all contracts, bai^ains, sales, and
dealings which shall be made or
had within any part of the united
kingdom, for any work to be done,
or for any goods, wares, merchan-
dize, or other thing to be sold,
delivered, done, or agreed for by
weight or measure, where no spe-
cial agreement shall be made to
the contrary, shall be deemed,
taken, and construed to be made
and had, according to the stand-
ard weights and measures ascer-
tained by this act; and in all
cases where any special agree-
ment shall be made, with refer-
ence to any weight or measure
established by local custom, the
ratio or proportion which every
such local weight or measure shall
bear to any of the said standard
weights or measures shall be ei-
pressed, declared and specified ia
such agreement, or otherwise such
agreement shall be null and void.'*
HILARY T£RH^ X GEO. IV.
the trial two objections were raised. The first rests upon
the late statute respecting weights and measures, (5 Geo. 4,
c. 74, s. 15.) The answer to that objection is 'simply this,
that the clause in question refers to local measures only,
and not to sales by the Winchester bushel, which, at the
time when the statute passed, was not a /oca/ -measure, but
general throughout the kingdom. The second objection js,
that the contract was not reduced into writing and signed
at the time, though it was reduced into writing imme-
diately afterwards. The cases which have been decided
with reference to the 17th section of the statute of frauds,
shew that a written contract was not necessary ; Towers v.
Osborne (a), Clayton v. Andrews {b). Rondeau v. fVyatt(c\
Cooper V. jElsion {d). In Groves v. Buck (e), a contract
for the delivery of oak-pins which were not then made,
was held not to be within the 17th section, because '' the
subject-matter of the contract did not exist in rerum na-
taiiy — it was incapable of delivery and of part acceptance,
and when that is the case, the contract has been held not
to be within the statute of frauds." So here, the seeds to
be delivered had no existence at the time of the contract,
Garbutt v. Watson(f), Crosby v. Wadsworih(g), Parker \.
Stamland (A), Warwick v. Bruce (i), {Bayley, J. referred
to Mayfield v. Wadsley{k), and Evans v. Roberts (I).) It
has been held that growing crops are seizable under a fieri
facias; they are therefore goods and chattels which go to
the executor, and not to the heir.
441
18S0.
Wato
v.
Friend.
Spankie, Serjt. contrsi, was stopped by the Court.
(a) J Stra. 506.
(^) 4Barr. 210].
(e) » H. Bla. 63.
{d) 7 T. R. 14.
(e) d Maule & Selw. 178.
(/) 5 Barn. & Aid. 613; and
iDowL&Ryi. 219.
(g) 6 East, 602.
(A) 11 East, 362.
(t) 3 Maule & Selw. 205.
(k) 3 Barn. & Cressw. 357, and
5 Dowl. & %1. 224.
(/) 5 Barn. & Cressw. 829, and
7 Dowl. & Ryl. 611. And see
Smith V. Sumian, ante, vol. iv, 455,
and 9 Barn, & CressVr. 561;
iMiva.
442 CASES TV THE CIN^gV BEKCH,
im^. Im4 Tehterdbn. C. J.r-*Thi8 rale most be made
^ al^sohite. We need not decide tke question upoa the
«. sMute of weigbto ami meaMires, which is a very important
oae. If persons may kwfiiUy eontraet by the Winchester
measore, the statute wiH be in a great neasitre nugatoty.
in every sense of the words, whether we look to their
legal construction or to their eomoion accepti^on, dua is a
contract respecting the sale of goods. Being a contract for
the sale ol goods above (a) the value of 10/. it is void by
the 1 7th section of the statute of frauds, for want of a note
in writing.
Rule absolute.
(a)».6.notnepefliart/^9butbythe therefore, whether the originil
event. If the quantity of seed pro- agreement was a " contract for the
duced had not exceeded 9 bushels sale of any goods, wares, aod mer-
the price would have amounted, not ehandicee Jm* tk$ prke of 102. or
to U)/* but to QL 9«. ooly* Quicyv^ upwards."
Berkeley v. Demery and White.
Where fi. TRESPASS fioi entering the close of ibe plaintiff)
trespass on *i>^ Giittiog. fjifzo and heath there growing. Plea: not
the land of il. milty. At the trial at the last summer assizes for the
by the direc- -^, . ,, .i^, ij
tion and for county of Gloucester, it appeared that the defendants bad
the benefit of ^^^ ^,,6 furze and heath by the direction of one Hilii
C, and A, • •'
sues B. alone, by whom they were afterwards used. Verdict for the
no^t oide?a^^ plaintiff. Judgment having been signed for 41 IL 13$. 6d.
to pay 2[/s damages and costs, and the defendants being unable to
costs. °
pay the same>
Taunton now moved for a rule calling upon ffifl to
sfaaw causo why he should not pay to the plaintiff die
amount of the judgment, and r^rred to Thmstout ^.
tihen(oH{a).
(a) Pot/, 443 b;
HILART TERli, X GSO. IV» 443
Lord TBirrRSDBN, C. J. — There is a imtorwl distine- l^sa
tion between an action of trespass quare clansum fregit g^jy^juiy
and an action of ejectment In ejectment no person is «•
allowed to defend as tenant but the party in actual pos- f^J^^
sesMon; in trespass, all the parties may be sued. Before White.
tliewrit issues the plaintiff should take the trouble to
inquire what parties are chargeable with the trespass of
which he complains. If this rule were granted applications
of this nature would be without end.
LjTTLBDALEi J. — Granting this rule would be opening
tdoor for a simiUr motion in every species of action.
Rule refused (a).
(a) Thhustovt d, JoMEs sad another v. SasiTTOir.
Sbtaeatb dedazaftiona in ejectment were served upon the defendant, upon Separate eject-
HflijM, and upon Wright. Wright occupied part of the pemises ?®°^.^j*^ .
might to be recovered, and the remainder was in the occupation of the agai^t Bl and
defendant and of Hmvford respectively, as tenants to Wright. Wright, C. tenants in
iuiesdof dtfrniling as tenant for part, and as landlord for the remainder, possession re-
obtained a rule ordering that the three causes should be consolidated and ^^ ^^ j).
abide the event of the trial of the action against Shenton. The defence who is tenant
was conducted by Wriehfs attomer. A verdict having been found and *? possession of
. , , - , 1 . .«.. <! . . «, 1 the remainder
judgment entered up for the plamtiff m the action agamst Shenton, at the ^f ^^ premises
Stafford spring assizes 18299 the lessor of the plaintiff executed a writ sought to Be
of habere &cia8 possessionem, and was put into possession of all the pro- ^^^®T^.> ^^
peitf. A rule nisi having been obtained, calling upon Wright to ^w be landlo^
cause why he should not pay the costs of the action tried against Shentan of B. and C,
wd the costs of the application^ obtaioa a rale
^*^ to consolidate
the causes^
Gwn^ and Whatde^t in shewing cause, contended Umt the lumat ef the ejectmaots
tbe pUintiff had mistaken his course,— that if he waa apprehensive of Jf ^^*|,.^" ^
looDg bis costs io case he succeeded against Shenton, whom he knew to event of th^ trfal
be insolvent^ he might have required as a term of the consolidation rule, of tbe action
te flwaelftonagaiBsSllVki^dundd be selected as the aetion to be tiM; '^^^ ^
^^ ^ verdict being
found for 4*
Caufhell and W. J. Akxander contrk. Wright is the person benefi- against C. tbr
dalhr mterested in o/^ the property, and as such du^cted the defence. 5®^** oidared
JD. to pay to ii.
his costs of the
action tried ; but refused to order him to pay the costs of tbe application to the Court.
SembU, that J/s proper course would have been to have brought only one ejectment against
As thict,— «r to have moved to set aside tbe appearance and pleas, unless D. would defend as
Uadloid,— or to have obtained a consolidation rule in which D. should have been directed
^ ptj tbe oasts in all ths adions^ ia ease a veidiet should be found for the plaintiff.
444
1830.
CASES IN THE KING S BENCH,
The eonaolidatioii rule wai a mere contriTanoe for the pmpoee of ending
die payment of the costs of an action which his wrongful occupation, by
himself and his tenants, of the property helonging to the lessor of the
plaintifi^ rendered unavoidable.
Bayley, J.— The action against Shenton having been defended by tbe
durection of Wright and for his benefit, he ought to pay the costs of the
action. But Wright ought not to be required to pay the costs of thii
application. If one action only had been brought, an order might hsre
been obtained to include all the three tenants in possession in the dedsr
ration, in which case Wright might have been called upon for the oosti,—
or after appearance a rule or order might have been obtfkined cslling
upon the defendants to shew cause why the appearances and pleas should
not be set aside, and judgment signed against the casual ejector, unles
Wright would defend as landlord in respect of the premises in Uie pos*
session of Shenton and Hawford, — or a consolidation rule might have been
obtained on behalf of the pUuntifi; directing that the gectments brought
against Shenton and Hawford should abide the event of the verdict in
the action against Wright, and that Wright should pay the costs of sU
the actions in the event of a verdict being found for the pUuntiff. As the
lessors of the pUuntifi* chose, however, to proceed against Shenton snd
Haitfbrd, without making any application to the Court or a Judge, I
think they are not entitled to the costs of this motion.
Rule absolute without
A wairant-of-
attomey sub-
ject to a de-
feasance
which is not
written upon
the same
paper or
parchment, is
valid between
the parties,
though it
would be void
agunst the
assignees of a
bankrupt or of
iln insolvents
B&NNETT V. Daniel.
Upon a reference to the Master, of a rule for setting
aside a warraDt-of-attomey, an objection was taken that the
defeazance was not written upon tbe same paper with tbe
warrant-of-attomey, and that the instrument was therefore
void under 3 Geo. 4, c. S9| s. 4, and the case of Morris f .
MeUin(a) was left with the Master. The Master holding
tbe instrument to be void, reported in favour of the defend*
ant| without entering into tbe merits. In Michaelmas term
Coleridge obtained k rule for the Master to review his re-
ports In the same term,
Folkti shewed cause. The Master was right in coDsi«^
(a) 9 Dowl. & Ryl. 508, and 6 Bam. & Cress. 406.
HILARY TERM, X GEO. IV. 445
daiDg the warrant-of-attoraey as void^ under S Geo. 4, c. 18S0.
59. Having seen the affidavits, and read the case of Mor--
fit V. MelUn, he had a right to form his own conclusions.
If he had all the facts and the law before him, the Court
will not send the case back to him. The Master has not
decided od the ground of the instrument being void, but if
he had so decided, it is submitted that such decision would
have been right. The defeazance should have been written
on the warrant-of-attomey before it was filed. Morris v.
MelUn was the case of an insolvent| Shaw v. Evans (a),
sodSansom V. Goode{b). The two clauses (of the Act)
apply to distinct matters. The clause on which the Master
has acted is that contained in the latter part of the fourth
section. The first section gave liberty to file the warrant-
of-attomey vrithin twenty-one days. The second section
makes warrants«of-attomey, which have not been so filed,
void as against the assignees of a bankrupt conusor. The
third section puts cognovits upon the same footing. [Bay*
%y J. The third section is compulsory.] It b difficult to
see that the third section is compulsory. The fourth sec-
don makes the warrant-of-attomey void, where the defeaz-
ance is hot upon the same paper or parchment, not as
agamst the assignees, but to all intents and purposes. The
introduction of the latter words shews that the intention of
the legislature was to make a difference between omitting to
file the warrant-of-attoraey and omitting to enter the defeaz-
ance. \Parkef J. The object seems to be to compel the
creditor to give a trae account] It is said that this must
be understood to apply only to cases of bankruptcy, be-
cause it is extended by the Insolvent Debtors' Act to
persons taking the benefit of that act. Such a provision
was necessary, because the second and third sections are
confined to cases of bankruptcy. The word such, relied ou
in Moms v. MelUn, means that the judgment must be
confessed in a personal action.
(a) 14 East, 576.^ (&) 2 Ban. & Alders. 568.
446 CASES i«r toe king's bench«
1630. Coleridge, contfd. Ttus rule nnist be insde absohrte on
^' two grouads: — Fir»t, the merits were never iovestigairi,
9. Secoad^ the Master was botind by the decisioii of tins
Dakibl. q^^^ Iq ji^^^ ^ jf^.^ [Bay^, J. He is bouad by
the Ime, and not by the mistahe rftke Carni. He ihoald
have beard the law diacitssed,] The wairant^^f-attoreey
need not be filed where the judgaaeot i» ealered ap wttUo
the twenty^ae days. It is unnecessary to write Ifae defcte-
ance where it is unnecessaiy to file the wamnt^of-at-
toraey, I
Ciir.«dp.twft.
Lord TsNTEnDBK, C. J^ now delivered jadgonat^^ I
This oasa was bn>«ght before ns for the purpose of r»-
viewng the jodgaftent of thb Court in Morrii ▼. MeUin. I
am of opiaioo that the constniction there put au the sUtate,
3 Geo, 4f c. 39, by the majority of the judges, was oonect,
and that this mstrument is not void as between the psitie^
firom onutting to put the defeazance upon the same paper.
The act is intituled, '< An act for preventing finuds apoa
creditors by secret warrsnts»o£4ittoiiiey to ooafess jndg-
meat/' The preamble of die act recites (hat iajastioe ii
finequendy done to creditors by secret wwvants-ofcutlonMy;
and the first section enacts that every warrant^of^rttoniey
(o confess judgment in any personal acdou, or a inie copy
thereof, and of the attestation thereof, and the defeaanoe
and indorsements thereon, shall, if the holder think fit, be
filed widiin twenty-one days after the execution thereof
The second section enacts^ that '' if at any time after the
expiration of twepty-one days after the execution of suck
warrant-of««ttomey, (extended to cognovits by section S,) s
commission of bankrupt shall be issued against the penoa
who shall have given such wsrrant-of-attomey, under whidi
he shall be duly found and declared a bankrupt, then sad
in such case, unless such warrBnt-4>f4itton]ey, or a copy
thereof, shall have been filed as aforesaid, within the said
space of twenty-one days from the execution thereof, or un-
BJLARY TXftMi X HEO. IT. 447
kn jttdgfliMt shall bave been signed, or execatioa issued, i8Se.
so such warraDl^-attorney within the same period^ sncfa cTT^
wsmnt-of-attorney, and the judgment and exeonlioD v.
AereoB^ shall be deemed fraodolent nnd void against the «s- I>aaiti.
i^^nsei under «iich commisston, «id such asstgnees shall be
SBtided to recover back and receive, for the nse of the era-
ditsrs of Buch bankrapt at fange, aU and every the moneys
levied, or effects seized, imder and by virtue of such judg^
jaent and execution." Then comes the fourth saclaon, on
nhich the question arises, '< That if aoch wammt-olHat-
tarnsy or cognovit shall be given^ sabject to any dofeannce
orcsnditioa, such defeazance or condilaon dmll be writton
on the same paper or parchment on which ouch warranMiC-
attoroey or cognovit actionem shall be written, before the
tifiM when She same or a copy llvereof respectively shall be
filed, otherwise such warrant-of-attomey or cognovit no-
tiooem shall be null and void to all intents and purposes.^'
It was oanSended^ that by reasen of the generality of the
latter words, all warrants-of-attomey are included hi the
foarth sQetioUi But even this section only says that the
defeazance shall be written on the warrant-of-attomey or
cognovit, '' before the time ^en the same, or a copy
thereof, shall be filed** It does not therefore extend to
warraots-of-attovney not filed. This seems to restrain the
generality of the words in question. The fourth section
spedLs of such warrant-of-attomey or cognovit This is a
donMe reference to the securities mentioned in the preced-
Bg sections, and it appears, by 7 Geo. 4, c. 57^ s. 3d, that
Ae S Geo. 4, c. 3% s. 4, was miderstood by the legislature
to lie applicable to those securities only which are men-
tioned in the second and third sections. I therefore think
tet the Master was mistaken in supposing that he was re-
stricted from inquning into the merits of the case.
Parke, J. — My opinion is at variance with the opinion
pronounced by my Lord^ in which my learned brothers, I
imderstand, also concur. The fourth section declares the
448
1830.
CASES IN THE KIKO S BENCH,
securities to be absolutely void. The only safe mode of
construing an act of parliament is to take words in their
plain and ordinary sense, unless a different intention clearly
appears. There is not, I think, sufficient in this act to au-
thorize our construing these words in any other sense. It
is true, that in some cases words may be construed othei^
wise. Gifts and grants declared by 1 Eliz. c. IQ, s. 5, to
be '' utterly void and of none effect to all intents, construc-
tions, and purposes,'' have been held to be good against the
lessor, though granted for a longer term than twenty-one
years, or three lives. There, however, it appears from the
language of the statute that its object was to protect and
benefit the successor.
Baylby, J., expressed his concurrence with the judg-
ment of Lord Tenterden.
Little DALE, J., concurred, and referred to the reason
stated in Morris v. Mtllin.
Rule absolute.
Wilson v. Bagshaw and another (a).
wJlSS of Trespass for breaking and entering a close called
Whiteacreand Burr's Hill, at Great Hucklow, in the county of Derby,
ways used a* ^nd depasturing cattle there. Pleas: first, the general
wf ^'^^ issue; secondly, that long before the plaintiff had any
Blackacre,and thing in the said close in which &c., to wit, on the lOtb
^w'ed* "^P"'' ^®^''' ®°® ^^^^ Remington, and one Barnard John
Blackacre, Wahe, at one and the same time, were seised in their
illTa^s^Md demesne as of fee of and in a certain close, called Black
appurtenances
wnatsoever,**
to B., is not a
sufficient justificadon of an entry into Whiteacre by B.
If at the time of the conveyance A, had no access to Blackacreby a way appoiteoaDt
in niieno solo, that circnmstanoe should be alleged.
Or it should be pleaded as a^onr of the \Tay.
(a) Aligned in the Bail Court, 25th April, 18S9.
HILARY TERM, X GEO. IV.
Titcb, whereof the said close in which 8cc. then was parcel,
and of and in certain other closes called Lou re Greaves and
Wilson
Fox Burrs, and the said J. R., and B, J. W., by themselves^ v.
their farmers and tenants^ occupiers of the said last-men- ^nd another,
tioned close, during all the time they were seised of the
said several closes as hereinbefore mentioned, and until and
at the time of the alienation thereof by the said J. R. and
B. J. W., as hereinafter mentioned, used and enjoyed a
certain way for themselves and their servants to go, return,
pass and repass on foot, and with cattle, carts, carriages,
and waggons respectively, from and out of a certain common
highway, into, through, over, and along the said close called
Loure Greaves, unto, into, over, and along the said close
called Black Titch, unto, into, through, over, and along the
said close in which &c., so being part and parcel thereof
as aforesaid, unto and into the said close called Fox Burrs,
and so back again from the said close called Fox Burrs, in
and along the said way, unto, and into the said common
highway, every year and at all times of the year, for the
more convenient use and occupation of the said close called
Fox Burrs. And the defendants further say, that the said
JR.andB.J, W., being so seised of the said several closes
as hereinbefore-mentioned, and so using, having, and enjoy-
ing the said way in this plea mentioned, afterwards, to wit, on
&c., at Sec., enfeoffed defendant Bartholomew of the said
close called Fox Burrs, together with all ways and appur^
tenances whatsoever to the said last<*mentioned close belong-
ing, habendum unto defendant Bartholomew, his heirs and
assigns; by virtue of which feoffment defendant Bartholo-
fnew afterwards, to wit, on &c., at See, became and was
seised of the said close called Fox Burr^, with the appur-
tenances^ as hereinbefore-mentioned, in his demesne as of
fee, and became and was entitled to such way as in this
plea mentioned, there being before and at the time of the
said feoffment no other way to the said close called tlie Fox
Burrs from the said common and public highway, and which
VOL. V. GO
450 CASES IN THE king's BENCH,
1830. last-mentioned way hath from time to time since been used
^IP'^^^ accordingly by the defendant Bartholomew and his tenants,
V. ' occupiers of the said last-mentioned close. And the defend-
Bagshaw ^pjg^ jjj f^^^^ ggy jjjjjj iijg defendant Bartholomew^ being so
seised of the said iast*mentioned close, and being so enti-
tled to the said way as aforesaid, afterwards, and at the
said several times when &c. having occasion &c.
The third plea, instead of claiming the way a^ all times
of the year, stated the right to be '* at certain periods of
the year, ss. at those periods when the close called Black
Titch was not under the plough or sown with com."
The fourth plea stated, that J. R. and B. J. fV. having
no other way to Fox Burrs, used the said way as a way of
necessity, and that the defendant Bartholomew has, since
the alienation, used it as a way of necessity.
The plaiutiff demurred generally to the second and third
pleas, and took issue on the fourth plea.
The plaintiff also newly assigned trespasses on other oc-
casions, and with unnecessary violence.
To the new assignment the defendant pleaded, first, not
guilty; secondly, leave and licence; and thirdly, a plea simi-
lar to the third plea to the declaration.
The plaintiff took issue upon the leave and licence
alleged in the second plea to the new assignment, and de-
murred to the last plea.
Holroydf for the defendant, in support of the demurrers.
The question here is, whether, under this feoffment, a right
to a way used by the feoffor over his own land passed.
[Bayley,J. The pleas do not negiitive there being any
other way to get at the close. Parke, J. Where there arc
ways in alieno solo, these words of conveyance will be
satisfied.] In Harding v, Wilson (a) it was held, that by
a demise of land, ** with all ways thereunto appertaining," t
road over the soil of the lessor would not pass; but that it
(a) 3 Dowl. & Ryl. 987; S Barn. &Cressw. 96.
451
1830.
HILARY TERM, X GEO. IV.
vould ba?e been otherwise if the lease had contained the
words " heretofore used/' (a) In this case the feoffor could
not have a way appurtenant, being seised of the whole.
The words " belonging to or appertaining/' will not operate ^nd anIoSier.
as a Dew grant, Grymes v. Peacocke (6).
Wightman, contrd. This plea was framed upon the au-
thorit^ of the case of Morris v. Edgwgton{c), where it was
held, that if a party having used a way from his close over
other land of his own adjoining, demises the close with alt
Wtti/s appurtenant, such way passes to the lessee. The
language of the deed is to be taken most strongly against
the party whose words are to be construed (^.
Bayley, J. — In Morris v. Edgington, it appeared that
the lessor had no way appurtenant in alieno solo, and it
was taken as a question of fact, whether, under the cir-
cumstances, the way passed under the words of the demise.
In pleading a deed the party pleading it is bound to state
the deed according to its legal operation(e). If the defendant
had pleaded that he was enfeoffed of the close and way,
the jury might have found that he was so, if the whole of
the facts taken together would have warranted such a con*
elusion. The rule fortius contra proferentem does not
apply to a case where the adverse party has pleaded accord-
ing to the legal operation of the deed. Here, the Court
are bound to consider whether the way was appurtenant at
the time of the conveyance.
L1TTLEDALE9 J., concurred.
Pabkb, J. — To bring himself within the case of Mor-
ris s. Edgington, the defendant might have alleged that
(a) And see Wkalle^ v. Thomp-
s«m Bos. & Pull. 371.
(6) 1 Bulstr. 17.
(c) 3 TaunL S4.
(d) Vide 1 Wms. Saund. 258 a.
(0 Vide ib. «35, b. n. (9); 2
Wms. Saund. 97, b. n. (3); Com.
Dig. Pleader (CS7),
GG 2
CASES IN TUB KING S BENCH,
there was no way appurtenant in alieno solo, or he might
have pleaded a grant of the close and way (a).
^d^^otTer. Judgment for the plaintiff(ft).
(a) Under an issue taken upon (b) And see Saundeys v. OUfe,
the former allegation, it would Sir F. Moore, 467 ; Ciements v.
lie upon the plaintiff to prove the Lambert, 1 Taunt. 205; Barwkk
existence of an appurtenant way; v. Malthewt, 5 Taunt. S65; Kooy-
Hliereas under an issue taken on Mtra v. Jjucas, 1 Dowl. & Ryl. 506,
the grant, the defendant must prove 5 Bara. & A.lders. 830; Barkm v.
the grant before he could require Rhodet, 1 Cxompt. & Mees. 439,
proof of the way. This would, 3 Tjrwh. 680; Plant v. James, i
however, give to the defendant the Nev. & Mann. 517, 5 Barn. &
opening and the reply. Adol. 791.
Furnish r. Swann.
Where an ac- TROVER in the Court of the Guildhall of the citv of
tion of trover, ^y , . rr* • • • "
in which the Norwich. The damages were laid m the declaration at
fa*i™under*20/ ^^'" '^'*® defendant removed the cause by certiorari, but
is removed by omitted to enter into the recognizance for payment of the
from an infe- ^^^^ ^^^ costs in case the judgment should pass against him,
riorinto a su- which is required by the 7th and 8th Geo. 4, c. 71, s. 6,
without entei^ upon the removal of actions in inferior Courts where the
ing into a re- cause of action does not amount to ttO/. After the return
cognizance to . . .
pay the debt to the Writ of Certiorari had been filed, a rule was obtained
8uanUo7^8 ^^"'"8 upon the defendant to shew cause why a writ of
Geo. 4, c. 71, procedendo should not be awarded.
8. 6, the plain-
tiff is entitled
to a proceden- Austin now shewed cause. This being an action of tro-
do. ...
So, though ver, It was unnecessary to enter into the recognizance men-
thc return to jjQned in the act. That recognizance is for payment of the
the certioran , ^ ^ ^ *^ \
has been filed, debt and costs; but in trover^ uhich is an action brought
to recover damages resulting to the plaintiff from the
wrongful act of the defendant, in appropriating to his
own use certain specific chattels belonging to the plaintiff.
HILARY TERM, X GEO. IV.
there is no debtia), or at all events none of an assignable
amount.
Another objection to making this rule absolute is, that it
was obtained after the return had been filed; and therefore,
according to the rule of practice, the record cannot now
be remanded (6).
F. Kelly, contri. The act of 7 & 8 Geo. 4, c. 71, ex-
tends the provisions of IQ Geo. 3, c. 70, s. 6, to all actions
in inferior Courts where the cause of action shall not
amount to 20/., exclusive of costs (c). This enactment is
general in its terms, and applies equally to actions of trover
as to all others. A positive enactment of the legislature
cannot be nullified by a rule of practice ; and therefore the
rule which has been referred to, if any such there be, can
furnish no answer to this application.
By the Court. — llie enactment requiring the recogni-
zance to be entered into, is general, and applies equally to
actions of trover as to other actions. The record having
been brought into this Court in direct contravention of the
terms of an act of parliament, which says, that no such
record shall be removed unless the defendant shall have
entered into the recognizance, cannot be retained ; it must
go back to the inferior Court,
Rule absolute.
(d) It was ruled by Lord Ellen-
horougkf C. J., that an action of
trover brought to recover damages
for the convenion of goods by
means of a wrongful sale, may be
described, even in pleading, as an
actioQ brought to recover the par-
ticular sum for which the goods
were sold. And the Court of
King's Bench confirmed this ruling,
sod refused to grant a rule nisi for
a new trial. Baickellor v. Salmon^
i Campb. 525. So, e converso, n
dtmand of the " amount of goods
which you have disposed of»** and
a refusal to pay, are a good de-
mand and refusal to constitute evi-
dence of a conversion in trover.
Thompson v. Shirley, per Lord
Kefiyon, C. J., 1 Esp. N.P. C. 31;
Rookeby*9 case, Clayton, 129, pi.
114.
(6) Vide Walker v. Gann, 7
Dowl. & Ryl. 769.
(c) But not to ejectment. Vide
Doe d. Stamfield v. Shipley, 3
Duwl. P. C. 408.
454
1830.
Under 43
EHm. c. 6, a
judge may
certify to de-
prive of his
costs, a plain-
tiflF who re-
covers less
than 40s., even
where the de-
fendant is pri-
vileged to be
sued in the
superior
Courts only.
So, where
the defendant
is not anaena-
ble to an infe-
rior Court by
reason of his
not residing
within the
jurisdiction
within which
the cause of
action arose,
aemble.
CASES IN THE KINg's BENCH,
Wright, Adoiinistratrix, r. Nuttall, Gent., ooe&c.
Assumpsit for work and labour done by the intestate,
who was a sherifTs officer, brought to recover the balance
of an account for caption fees. Plea : non assampsit as
to all but 105. 6d., and as to that sum a tender to the plain-
tiff'as administratrix. Replication ; denial of the tender.
At the trial before Alexander, C. B., at the last Notting-
ham assizes, the plaintiff obtained a verdict negativing the
tender, (which had been made before administration granted,)
damages lOs, 6d,; and the learned judge certified under 45
E/iz.f c. 6, to deprive the plaintiff of her costs. In Michael-
mas term a rule was obtained by White, calling on the de-
fendant to shew cause why the Master should not tax the
plaintiff's costs, notwithstanding the certificate, on the
ground that where the defendant is an attorney the statute
does not apply.
N. R. Clarke, on a former day in this terra, shewed
cause (a). By 43 Eliz,, c. 6, s. 2, " If upon any action
personal, to be brought in any of Her Majesty's courts at
Westminster, not being for any title or interest of lands,
nor concerning the freehold or inheritance of any lands,
nor for any battery, it shall appear to the judges of the
same Court, and be so signified or set down by the justices
before whom the same shall be tried, that the debt or da-
mages to be recovered therein in the same Court shall not
amount to the sum of forty shillings or above, the judges
and justices before whom any such action shall be pur-
sued, shall not award for costs to the party plaintiff any
greater or more costs than the sum of the debt or damages
80 recovered shall amount unto, but less, at their discre-
tions." The reference, in the preamble of the act, to suits
" which, by the due course of the laws of this realm, ought
to be determined in inferior Courts in the country,*' will be
(a) Before Bayify, J. and Parke, J., 6 Feb. 1830.
HILARY TERM, X GEO. IV.
relied on for the plaintiff; but where the enacting part of
a statute is clear, it is not to be controlled by the preamble.
Here, the enacting clause is clear, and extends to attorneys
as well as all other defendants. [Bayky, J. The plaintiff
cannot know that the defendant, if sued in the County
Court, will not set up his privilege. Parke, J. In many
cases the County Court may not have jurisdiction, — as where
the cause of action arises in one county, and the defendant
is resident in another.] That is a case in which a judge,
in the exercise of the discretion given him by the statute,
would refuse to certify. This, which is a statute for the
prevention of vexatious litigation, has been always cousi->
dered to be very beneficial to the public, and therefore en-
tilled to receive a liberal construction. For this reason it
has been held that the large words of the enacting clause
are not to be narrowed by the more limited expressions of
the preamble. Dand v. Sexton {a), Pyeburn v. Gibson{b).
White, contri. Had the plaintiff sued in the County
Court, the proceedings in that Court would probably have
been defeated by the defendant's privilege. It cannot be
said that the defendant is entitled to be sued in a superior
Court only, and yet that the plaintiff was boand to sue in
the inferior Court. The defendant could not have pleaded
to this action that he was resident in an inferior jurisdic-
tion, and that the debt sued for was recoverable there.
Gardner v. Jessop (c), Wiltshire v. Lloyd (d). This there-
fore is not an action ** which, by the due course of law,
ought to be determined in an inferior Court.'* The privi-
lege of an attorney is considered as the privilege of the
client, whose business ought not to be delayed by with-
drawing the attorney from the Court of which he is an
officer, to a»remote jurisdiction. Harper v. Tahourdin{e).
455
18SIK
(fl)dT.R.S7.
(6) 8 B. Moore, 450.
(c) 3 Wils. 43.
(cO 1 Doiigl. 381.
(e) 6 Maule & Selw. 383. And
see Bac. Abr. tit, "Attorney"(0).
Waioht
Ndttali:..
456
1830.
WmoHT
V,
NUTTALL.
CAS£S IN THE KING S BENCH,
Attorneys are therefore not liable to be sued in Courts of
Conscience, unless brought within the jurisdiction by
express enactment. And in analogous cases, arising on
other statutes, the like construction has prevailed. Armng-
torC% case(a), Board, oneSfc. v. Parher{J}\ Johnson, oneSjC.
V, Bray{c).
Car, adv, vult.
Bayley^ J.y after stating the facts and the argument,
now delivered the judgment of the Court as follows: —
No costs were recoverable at common law. Costs were
first given by the Statute of Gloucester (J). The right
created by that statute is limited by 43 Eliz. For the plain-
tiff it was contended, that as an attorney is privileged to be
sued in the Court in which he is admitted, and the pream-
ble of the statute refers to suits ** which ought to be deter-
mined in inferior Courts in the country,'' suits which can-
not be so determined are to be considered as impliedly
excepted out of the enacting clause, notwithstanding the
generality of the language there used. Dand v. Sexion is
an express authority against such a construction of the
statute ; and we are of opinion that it ought not to be so
construed. If the objection founded on the attorney's
privilege were to prevail, there would be the same reason
for excluding the power of certifying in the case put
by my brother Parke during the argument, of a defendant
residing in a different county from that in which the cause
of action accrued; for then the plaintiff would not have the
means of summoning the defendant in any inferior Court.
Lord Tenterden, C.J. — I entirely agree with the
judgment which has just been delivered. The statute of
Eliz. ought to receivts a liberal construction, so as to pre-
vent the bringing of actions in the superior Courts for
(a) Palmer, 403.
(6) 7 East, 47.
(c) S Brod. & Bingh. 698, and
5 B. Moore, 699.
(rf) 6 Edw. 1, c. 1.
Iiisc. 288.
And see 3
HILARY TERM, X GEO. IV.
small lums and for trifling causes. Where less than forty
shillinis is recovered in a superior Court, no benefit can
tccru^ to the plaintiff. Such suits can be commenced only
from liodictive motives (ir), or for the benefit of those per-
SOD/ by whom they are professionally conducted.
Rule discharged.
457
(a) A trader may perhaps, with-
out vindidive motives, find it ex-
pedient, with reference to his ge-
nenl dealiiigs, to sue a customer
who refuses to pay a debt of SOf .,
solely and avowedly because it
would cost bis creditor five times
as much to pioceed agunst him.
1830.
WaiOBT
V.
NUTTALL.
William, Lord Bishop of Exeter and George Pyke
DowLiSG, clerk, v. Jenefer Gully, Jeremiah
Trist, John Hearlr Tremayne, and Thomas
Gbaham, in Error.
J^RROR upon a judgment in quare impedit, given by the A presentation
Court of Common Pleas, for Gully and others, the plaintiffs fiJi^'tV«»e«-
below, (now defendants in error,) against the Bishop and &ion to sup-
Dowling, the defendants below, (now plaintiffs in error). impedit by £.,
The declaration stated, that Richard Roberis.Esq., on the ? party claim-
ing under
^rd May, 160S, being seised of the advowson of the rectory the youngest
and parish church of Berrynarber, in the county of Devon, ^ohw of ^^
and diocese of Exeter, in gross by itself, as of fee and of after sever-
ance amongst
the coparceners, by reason of their disagreeing in presentation.
In qaare impedit by B. a party claiming under the fourth daughter and coheir of il ,
the declaration alleges, that after severance by disagreement, the eldest daughter pre-
sented in the first turn, and that unknown persons successively presented a$ tn the
turns of the second and third coparceners. Held, that these presentations must be taken
to bare been by rights and not by usurpation i — but that if made by usurpation, they
would not destroy the effect of the presentation by the common ancestor, as sufficient
to topport the pdteuory right of all the coparceners.
A conveyance of the purpart v of the youngest of four coparceners, when the church
is full upon the presentation o^ the eldest, expressed to be made *' in consideration of
^. aod of faithful service done to the grantor, as also for divers good and valuable
ouset and considerations him thereunto moving," is not necessarily fraudulent as
•gainst a subsequent purchaser for value.
A Court of Error will not inquire into the propriety of a rule made by one of the
Superior Courts for amending the declaration; or of a rule for setting aside a rule to
Rwsd several matters, and for striking out pleas filed in nccordance with such rule,; —
orof a rule for setting aside a nonsuit, although the nonsuit has been obtained in a form
of action (quare iinf«dit) in which a nonsuit is made peremptory by statute.
458
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
CASC:S IN THE KING S BJ£NCH,
right, pr^seuted to the said church, then being vacant by
the death of the then last incumbent thereof, one Wm.Searle,
his clerk, who, on the presentation of the said JRkhard
Roberts, was afterwards, to wit, on the day and year afore-
said, admitted, instituted, and inducted into the same in time
of the peace of the Lord James 1, late king of England ;—
that Richard Roberts died intestate on the 25th December,
1622, whereupon the advowson descended in coparcenary
to his four daughters, viz. Mary the wife of Thomas West-
cott, Jane the wife of William Squire, Prudence the wife
of John Amory, and Grace the wife of Francis Isaac:
whereupon the said Thomas Westcott and Mary his wife,
in right of the said Mary, the said William Squire 2nd Jane
his wife, in right of the said Jane, the said John Amory
and Prudence his wife, in right of the said PrudencCj and
the said Francis Isaac and Grace his wife, in right of the
said Grace, became and were seised of the said advowson, in
gross by itself as of fee and of right; — that the said church,
on the 27th of January, 1630-1, became vacant by the death
of the 9aid William Hearle, whereupon it belonged to the
said Thomas Westcott and Mary his wife, in right of the
said Mary, the said WiiUam Squire and Jane his wife, ia
right of the said Jane, the said John Amory wad Prudence
his wife, in right of the said Prudencej and the said Franch
Isaac apd Grace his wife, in right of the said Grace, to
present a fit and proper person to the said church, so then
being vacant; but because they did not agree among them-
selves jointly to present, it belonged to the said Thomas
Westcott and Mary his wife, in right of the said Mary, as
eldest daughter of the said Richard Roberts, to present a
fit person to the said church, so being vacant, for that turn,
being the next and first avoidance after the death of the
said Richard Roberts; whereupon the said Thomas Westa>tt
and Afary his wife presented, in the first turn, one George IFes/-
cott, their clerk, who was thereupon admitted, instituted, and
inducted; — that Francis Isaac and Grace his wife, on the Ist
November, I66O, died so seised of the said purpart/, or
HILARY TERM, X GEO. IV.
one-fourth part of the said Grace, of the said advowion^
upoD whose death the same purparty, &c. descended to
Robert Isaac, her son and heir (a); thereupon the said Jio«
bert Isaac became seised of the said purparty, or one-fourth
part of the said advowson as of fee and of right ;-^ that on
tbe 10th July, 1674, the said church became vacant by the
death of the said George Westcott ; that thereupon one
Grace Westcott afterwards {b)^ as in the said second turn
which was of the said Jane Squire, on the 1 1th July, 1674^
presented to the said churchy so being vacant, one Thomas
Westcott, her clerk, who was thereupon admitted, instituted/
tnd inducted; — that on the 10th September, 1674, the
church became vacant by the death of the said Thomas
Westcott; that thereupon one Edward Gihbors and Frances
his wife, as in the third turn, tvhich was ofthf said Prudence
Amory(c), afterwards, on the 24th Sept. 1674, presented
to the said church, so being vacant, one Henry Chichester,
their clerks who was thereupon admitted, instituted, and
inducted ; that the said Robert Isaac, being so seised of
the said purparty, &c. formerly of the said Grace Isaac,
of the said advowson, on the 29th April, 1672, by deed-
poll, sealed with the seal of the said Robert Isaac, (prolate
in curiam,) tit consideration of the sum of twenty shillings
vnto him Robert Isaac y by Lewis Stevings o/Braunton, in the
county of Devon, gentleman(d), and for true and faithful ser--
vice{e)done nnto him the said Robert Isaac, by the said Lewis'
Steoings, as also for divers other good and valuable causes and
considerations him thereunto moving, did freely and clearly
give and grant unto the said Letois Stevings the same pur-
party or fourth part of the advowson of th^ said chuTch(f),
habendum to the said Lewis Stevings, his heirs and assigns
for ever; whereby the said Lezns Stevings became seised as*
(a) The declaration had origi-
naiij stated the descents from the
three elder sisters also.
(b) As to the necessity of shew-
ing III what right the presentations
were made during the first, second,
tod third turns, see poit, 485.
459
IBSO.
Bishop of
Exeter
and another
V.
GOLLT
and others.
(c) The descent to Frances Gib-
bon had been originally stated in.
the declaration.
(d) Not said « paid."
(e) Vide 5 Bingh. 171, and 2
Moore & Payne, 366.
(/) Vide poit, 470.
460
1830.
Bishop of
Exeter
and another
V,
Gully
and others.
CASES IN THE KING 8 BENCH,
of fee and of right of the same purparty 8cc.» formerly of
the said Grace Isaac ; that being so seised, the said Lewis
Stevings died, leaving John Stevings, bis eldest son and
heir, to whom the same purparty &c. thereupon descended,
and who thereupon became seised thereof as of fee and
right ; that the said John Stevings being so seised, on oth
January, 1699-1700, (the said church being then filled by
Henry Chichesier,ihe then incumbent thereof,) by indenture
delivered to Henry Chichester, and therefore not in possession
of the plaintiffs, who produce counterpart (a), made be-
tween the said John Stevings of the one part, and Henry
Chichester of the other part, the said John Stevings granted
to the said Henry Chichester, his executors &c., the ad-
vowson &c. of the said church, for the first and next avoid-
ance thereof; by means of which indenture the said Henry
Chichester became possessed of the right of presentation to
the said church for the next turn only, the reversion of the
said purparty &c. formerly of the said Grace Isaac, belonging
to the said John Stevings; that the same reversion, so belong-
ing to the said John Stevings, the said church, on the 1st No-
vember, 1714, became vacant by the death of the said Henry
Chichester; that thereupon one Sir Nicholas Hooper, on the
8th November, 1714, as in the fourth turn, formerly of the
said Grace Isaac as aforesaid, presented to the said church, so
being vacant, one Edward Chichester, as the said Sir Ni-
cholas Hooper's clerk, who, upon such presentation, was
admitted, instituted, and inducted into the same: that the
said John Stevings, on the 1st January, 1719-20, died seised
of the said last-mentioned purparty 8cc., having first de-
vised the same purparty (6) &c. to his brother, Richard
(a) After the presentation had
taken place, or at all events after
the death of tlie presentee, the in-
denture would belong to the re-
versioner, to whom the grantee
ought, and to whom he would
be presumed, to have returned it;
as in \he case of a lease which,
after the expiration of the tenn,
belongs to the lessor, who theuce-
forwards is entitled to both lease
and counterpart as muniments of
his title. P. 38, II. 6, fb. 84, pi. 1 ;
Brewttery. Setoelt, 3 B. & Aid. 301.
(6) The language of the will was,
** all my landt and tenements."* An
ad vowson in gross will pass by
the word '' tenement*' in a devise,
4 Bingh. 290, and 12 B. Moore,
591; so k fortiori it will pass^by
HILARY TEEM, X GEO. IV.
Stevings, (who died in the life^tinie of John Slevings^
if be should be living at the time of the death of the
said John Sievings, otherwise to the children of the said
Richard Stevings, as tenants in common ; whereupon Ka^
therine, afterwards Katherine Boweti, Thomasine, afterwards
Thomasine Maunsel, Susarmali, afterw^ards Susannah Burgh,
Jane, afterwards Jane Burgh, Grace, afterwards Grace
Ridgate, and Elizabeth, afterwards Elizabeth Atidreios, who
at the time of the making of the said will, and from thence-
forth, until and at the time of the death of John Stevings,
were the only children of Richard Stevings, became and
were seised of the said last-mentioned purpartj &c., for-
merly of the said Grace Isaac, in gross by itself, as of fee
and right, as tenants in common thereof (a). The declara-
tion then stated a conveyance by the nieces and their hus-
bands, in 1719 and 17^0, by bargain and sale iurolled, fine
and recovery, and declaration of uses, to Thomas Maunsel
the word "hereditament," West-
faling V. Westfalmg, 3 Atk. 460;
Httsetwood V. Pope, 3 Peere Wins.
Sti; but before the statute of 3 &
4 ^iU. 3, c. 74, it woald not have
passed by the word " land."
(a) Though the six nieces were
hein at law of John Sievingi, yet
the limitatiou to them expressly as
tenants in common in the will,made
them take by purchase as tenants
in common, and not by descent as
coparceners.
The will of John Sievings, after
limiting several estates for life,
de?ised the residue to his brother
Rkkani, if living, otherwise to the
children of Richard, with a proviso
that three of those children should
hare 200/. more than the others.
It was held, that a fee passed to
the children of Richard under this
devise, 4 Bingh. 293 ; 12 B. Moore,
591. Ill order, however, to avoid
any question as to the effect of
461
1830.
Bishop of
EXBTER
and another
V.
Gully
and <»thers.
the will upon the second trial, a
rule was obtained to amend the
declaration, by adding a count,
stating that the children of Richartt
took a life estate by devise as
tenants in common, and the r0-
version in fee by descent as copar-
ceners. This rule was made abso-
lute upon Argument, 4 Bingh. 595,
and 2 Moore & Payne, 105. The
necessity for this amendment was
afterwards obviated by the re-
scinding of the rule to plead several
matters, and by the refusal of
leave to insert a plea taking issue
upon die devise by the four nieces,
in addition to the pleas impugning
the deed-poll. Ibid.
As to amendments of the decla-
ration in Quare impedit, see Rep-
pington V. Tamtcorth School, 2
Wils. 1 18, 150. As to the inser-
tion of a second count, see Shep'
herd v. Bishop of Chester, 6 Bingh.
435, and 4 Moore & Payne, 130.
462
1890.
Bishop of
Exeter
aod another
V.
GULtY
and otliers.
CASES IN THE KING S BENCH,
and Robert Andrews, (the husbands of two of the nieces,)
and Robert Incledon and Edward Fairchild, in trust for
sale; the death of FairchUd, and a conveyance by lease
and release from the surviving trustees, in November, 1731,
to John Davie; — that in 1770 Jehu Davie died, having
by his will devised the said purparty &c. to bis eldest sod
John in tail male, other than the next presentation in his said
fourth tum» which he devised to his second son, William;
that in April, 1777» William Davie conveyed his next pre-
sentation, by lease and release (a), to John Davie, the en-
tailee; that John Davie dying in 1790| the said pMrparty
&c. descended to Joseph, his eldest son and heir male of
his body, whereupon the said Joseph Davie became seised
in tail male ; that on the 5th May, 1731) the church became
vacant by the decease of Edward -Chichester ; that there-
upon one Richard Hill, as in the said first tarn, which was
formerly of the said Mary IVesicott, presented one Robert
Bluett, his clerk, who was admitted, instituted, and in-
ducted;— that on the 27lh February, 1749, the church again
became vacant by the death of the said Robert Bluett^
whereupon one James Pearce and Mary his wife, as in
the second turn, which was of the said Jane Squire, pre-
sented one John Seddon, their clerk, who, upon the pre-
sentation of the said James Pearce and Mary his wife, was
admitted, instituted^ and inducted; — that on the 4th Fe-
bruary, 1780^ the church again became vacant by the death
of the. said John Seddon, whereupon one Thomas Edvcardsj
as in the third turn, which was of the said Prudence Amory,
presented one Powell Edwards, his clerk, who was admitted,
instituted, and inducted ; — that the said Joseph JDavie, being
so seised as aforesaid, on the 6th July, 1814, by a certain
other indenture, for the considerations (6) therein mentioned,
granted unto the said William Slade Gully, his executors,
&c., the first and next advowson or avoidance, and donation,
collation, right of nomination, presentation, and free dis-
(a) The word « grant" in this
indenture of release would operate
by way of^ surrender. Ante, 461.
(6) As to which see post, 487.
HILARY TERM, X 0£0. IV.
position of the churchy when the same should first and
next bappeti to become void by the death, resignation, ces-
sion, or deprivation of the said P. Edwards^ or by any
other ways or means whatsoever; by means whereof W» S.
Gulfy became entitled to and was possessed of the then
next avoidance and right of presenution to the said church,
upon the death &c. of the said Powell Edwards^ the then
incumbent; — that being so possessed, the said. W. S.
Gully, on the l6th of November, 18 16, died, having de-
vised the said then next avoidance and right of presentation
to the plaiijtiffs (below); — that the said church, in the life-
time of the said Joseph Davie, on the 30lh of October,
18^, again became vacant by the death of the said P.
Edwards, and yet is void ; that such avoidance was the first
and next avoidance of the said church, after the said grant
to the said W. S. Gully, and after the said devise by the
said W. S. Gtilly to the plaintiffs (below), to whom it there-
fore belonged to present a fit person to the said church, so
being vacant as last aforesaid, as in the said turn formerly
of die said Grace Isaac as aforesaid; but that the defend-
ants (below) unjustly hindered them.
The bishop disclaimed.
Bowling craved oyer of the deed poll, 20th April, 1672,
which was set out in haec verba: — '^ To all Christian people
to whom tliese pr*nts shall come, I Robert Isaac, of West-
downe, in the counly of Devon, gent., the true and un-
doubted patron of the parish church of Berrynarber, in the
county of Devon, in the diocesse of Exeter, send greetinge
in our Lord God everiasteinge. Knowe yee that I the fore*
said Robert Isaac, for and in cons'eracon of the sume of
twentye shillings of lawefu II money of England, unto me the
said Robert Isaac, by Lewes Stevings, of Braunton, in the
county of Devon aforesaide, gentleman, and for true and
faithful service downe unto me the saide Robert Isaac by
the said Lewes Stevings, as ailso for flivers other good and
Talluable causes and consideracous me hereunto moveinge,
have given and graunted, and by these presents doe freely
463
1830.
Bishop of
£XET£R
and another
V,
Gully
and others.
464
1830.
Bishop of
Exeter
and another
V.
Gully
and uthers.
CASES IN THE KING S BENCH,
and clearely give and graunt unto the said Lewes Stevingx,
the advowsioni donacon, free disposition and right of patron-
age, and presentation of the rectorye and parish church of
Berrynarber, in the county of Devon : To have and to holde
the said advowson, donation, free disposition, and right of
patronage, and p^sentation of the said rectory and parish
church of Berrynarber aforesaid, unto the said Lewes Ste-
vings, his heires and assignes forever: To the onely use,
benefitt, and behoofe of the said Lewes Stevings, his heires
and assignes for evermore. In wittness whereof, I, the said
Robert Isaac, have hereunto set my hand and sea(e, the nine
and twentyeth day of April^ in the fower and twentyeth yeare
of the raigne of our souveraigne Lord Charles the Second,
by the grace of God, of England, Scotland, Fraunce, and
Ireland, Kinge, Defender of the Faith, Sic. Annoque
Domini 1672.
(Signed) Robert Isaac" (l.s.)
Endorsed, ** Sealed and delivered, p*sence of us,
Robert White, Ralph Perrin, John Tucker."
Dowling then pleaded, — first, that Robert Isaac did not
give or grant the said purparty of the advowson to Lewis
Stevings, — secondly, that the deed-poll was made to defraud
persons who had purchased, or should thereafter purchase,
the said purparty, — that Robert Isaac, upon his marriage
with Elizabeth Skiffe, in I692, conveyed such purpart; to
the use of the issue of that marriage in tail, — that JR. Isaac
and his wife died, leaving a daughter, — that in 1714, Sir N*
Hooper presented in right of the daughter, or in right of
R. Isaac, accruing after the fraudulent deed poll, — the plea
then deduced a title to Dowling, aa issue in tail (a).
(a) The pleas were originally
forty-three; by which Dowling put
ID issue every link of the title, from
the deed-poll downwards, and de-
nied the execution of the deeds
stated in the declaration, and also
the operation of the same deeds,
in distinct pleas. As Dowling was
not party or privy to those deeds,
the former course appears to ha\'e
been irregular^ vide 3 Nev. &
Mann. 50 (e).
After attacking the title thos in
detail, Dowling also pleaded "diac
neither W. S. Gully, nor any of his
ancestors, nor any person under
HILARY TERM, X OEO. IV-
The replication joined issue upon the first plea, and took
issue upon the allegation in the second plea that the deed-
wbom he claimedi afler Robert
hauc was or were seised of the
said propertj — wiihout tku that
the piaintiffi became or were pos-
sessed of the next avoidance and
right of presentation on the death
of the said TaweU Edwards, raodo
et formft,** thus putting the whole
title io issue by one sweeping tra-
• verse of the legal result of the
matters stated in the declaration,
la The Grocers' Company v. The
JrekhUhop of Canterbury, as re-
ported, 3 Wils.214, 234, DeGrey,
C. J., is stated to have said, '< As
to the traverse, we think matters
of law, or rather matters of right
(as this is), resulting from facts,
are traversable: whether one ob-
tained a church by simony, is tra-
versable; Rase. £nt. 532; orwhe-
tiier one is seised in fee, or in tail,
is traversable ; Yelv. 140, Ewer
V. Moik. It is the common aver^
wn/ m a quare impedit, * that it
hhmged to A. B. to present to the
chaxh a^<ii the same became va-
^nt* whkh may, or rather must,
^tpend upon both law and facts,
«^ the some is traversable:* The
^ords in italics are omitted in the
nport of the same case in S W.
Bla. 770, 776, and the judgment
of the Court proceeded, not upon
the sufficiency of the replication
cootuning the traverse, but upon
^ insufficiency of the plea. As
tbe Court however goes on, though'
QDDecessarily, to pronounce an
opinion in favour of the sufficiency
f'f the replication, it may be de-
sirable to shew the state of the
pi«ading8.
VOL. V,
The declaration set forth the
following title.
The plaintiffs, being seised in
fee of the advowsonof Allhallows,
Honey Lane, presented Hutchin-
son, The Archbishop of Canter-
bury, being seised in fee of the
advowsons of St. Mary-le-Bow and
St. Pancras, Soper's Lane, collated
Smallwood and Dillingham, The
three churches were destroyed by
the Great Fire. By 22 Car. 2,
(c. II, s. 63,) it was enacted, that
the three parishes should be united,
and that Bow Church should be
the parish church ; that the respec-
tive patrons should present by
turns to that church only ; the first
presentation to be made by the
patron of the church, the endow-
ments whereof were of the greatest
value. By virtue whereof the Arch-
bishop and the plain tiflfs became
seised of the advowson in fee, and
entitled to present to Bow Church.
After the statute the church be-
came vacant by the death of Small-
wood, and the Archbishop collated
Puller, The church became va-
cant by the death of Puller, and
the Archbishop, as in his second
turn, collated Bradford, who was
afterwards created Bishop of Ro-
chester, and the church thereby
became vacant; whereby King
Geo, 1, by his prerogative, pre-
sented Lisle, who was afterwards
created Bishop of St, Asaph;
whereupon King Geo. 2 presented
Newton, who resigned. By reason
whereof ii belongs to the plaintiffs
in their turn, being the third turn,
to present, &c.
U H
465
1830.
Bishop of
EXETEU
and another
9.
Golly
and others.
466
1830.
Bishop of
£XETER
and another
V,
Gully
and othera.
CASES IN THE KlPfGS BENCH,
poll was made to defraud persons who bad piirchasedi or
should purchase, the said property.
The plea admits the seisin of
the advowsonsy &c., the presenta-
tion and collations before the fire,
the burning of the three churches,
and the statute of Car. 2, and that
thereupon the Archbishop and the
plaintiffs became seised and enti-
tled to present, and that Bow
Church became vacant b/ the
death of Sntallwood; but says
that Bow Church was of greater
Talue than the other two, and that
AllballowSy H. L., was of greater
value than St. Pancras, S. L. ; by
reason whereof the Archbishop
became entitled to present to Bow
Cbnrch in the first turn, the
plaintiffs in the second, and the
Archbishop in the third turn.
That true it is that the Archbi-
shop, on the death of Smalkoood,
did in his first turn collate Puller,
and that the church became vacant
by the death of Puller; but that
thereupon, according to the statute,
it belonged to plaintiffs to present
in their tecond turn ; but that the
Archbishop collated Bradford by
usurpation; that Bradford, being
in the said church, was created
Bishop of Rochetter ; that Geo. 1
presented Lisle; that iii/e was
created Bishop of St. Ataph, and
Geo. 2 presented Newton, who re*
signed ; by reason whereof it be-
longed to the Archbishop to pre-
sent in his third turn, and that he
collated the defendant Backhouse.
Replication: That the church
became vacant by the resignation
of Newton, and it belongs to plain-
tiffs to present in their third turn,
yet the defendants hinder them.
Without this that it belonged to
the plaintiffs to present at the
second turn, when the church be-
came vacant by the death of Ful-
ler, as alleged in the plea.
Demurrer to the replication,
shewing for cause that the plain-
tiffs have traversed not any znatter
of fact, but matter of law.
It therefore appears that though
the declaration contained the usual
allegation that it belonged to the
plaintiffs to present, yet no tra-
verse was taken upon that allega-
tion (as, according to the state-
ment in the report in Wilson, the
Chief Justice thought might have
been done), but that the traverse
in question was taken by the
plaintiffs upon their own tide to
present in the second turn. The
argument for the plaintiffs (3 Wils.
229) was, that the question be-
tween the parties was, whether
the plaintiffs were entitled to the
second or to the third turn; thai
the relative value of the three
livings was merely evidence of the
turns, and that the plaintifi might
possibly have waved the second
turn, if it was theirs, and by agree-
ment with the Archbishop have
taken the third turn. Neither
these reasons, nor the analogies
relied upon by the Court, may
perhaps be thought quite satis&c-
tory ; but as the Court held that
the declaration was good and that
no title was made out by the plea,
the question as to the traverse in
the replication became wholly im-
materiaL Nor could the defend-
ants have raised the question in a
court of error without first satisfy-
ing the court of error that they
HILARY TERM, X GEO. IV.
In the rejoinder the defendant joined issue upon the repli-
cation to the second plea.
467
bad conveyed a good title to tbem-
selres by their plea. The position
sUted in the judgment of the Lord
Chief Justice, as reported by Wil-
son,—that the common averment
in a quareimpedit, that it belonged
to A. B. to present to the church
when it became vacant, is travers-
able,—appears to be at variance
with the established coune of
fieading in quare impedit, and
•gainst principle. The case in
Bastall, referred to in the above
jttdgmeat, was an action of quare
impedit, by W. B,, against the
Bishop of Salisbury, for refusing
to admit his clerk, J. L. The Bi-
shop pleaded that he refused be-
cause J. L., ante prsesentationem
hctam obtained the rectory from
1^. B. per simoniam; and the
pbiotiff replies, quod J. L. ante
prasentationem factam non obti-*
nuit rectoriam praedictam per si-
moniam. Here simony was a dis-
tinct substantive allegation, not
<lepeDdent upon any antecedent
natement of fiicts. In Ewer v.
MoUe (reported also Cro. El. 771,)
the plaintiff declared in waste,
Qpon a seisin in fee, against the
^efimdanty as his lessee for years.
^ defendant pleaded that he,
heii^ seised in fee, conveyed to
the plaintiff^ — ^habendum to the
plaintiff and bis heirs so long as
A. B. should have issue of his
body; that the plaintiff demised
to the defendant, and afterwards
i. BL died without issue of his
body. This plea was held bad for
Qot traversing the unqualified seisin
a fee, npon which the plaintiff
^ declared. Here, again, the
seisin of the plaintiff was a simple,
original fact, not founded upon
any precedent matter, and which
fact would be equally true whe-
ther the seisin of the plaintiff were
acquired by descent, conveyance,
or disseisin. But whether, in the
principal case, the plaintiffs below
were possened of an expectant
presentation, was not a matter of
fact, but a mere legal inference
from the precedent matter, upon
which a jury are not qualified, and
cannot be called upon, to decide.
Willion v. Berkley, Plowd. 230 b,
231a; JJCeniror v.Bqgan, Yelverton,
200. Thus, if it be alleged that
A, was seised in fee, and that A,,
being so seised, conveyed by lease
and release to B. and his heirs,
whereby B. became seised in fee,
the adverse party may traverse the
seisin of A., that being an allega-
tion of fact; but he cannot traverse
the seisin of B., because that seisin
is a mere inference of law, result-
ing from the prior seisin of A. and
the execution by .^. of a convey-
ance capable of passing the fee.
In GrUU V. Mannell, Willes,
378, the avowry stated a convey-
ance by lease and release from the
avowant to the plaintiff and his
heirs, in consideration of a rent
charge of 7L 10s., by virtue where-
of the plaintiff entered and became
seised of the premises in his de-
mesne as of fee. The plaintiff
pleaded that he never was seised
of the premises in his demesne as
of fee. Upon demurrer, it was
objected that the plea denied what
was before (impliedly) admitted,
and that the traverse was only of a
H H 2
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
468
1830.
Bishop of
Exeter
aud another
V.
Gully
and others.
CASES IN TU£ KING S BENCH,
The return theo stated the venire and habeas corpora
juratorum — the postea, finding both issues for the plaiatiSii
consequeDce of law. Willet, C. J.,
in delivering the judgment of the
Court, said, ** We are of opinion
that the first plea is bad in both
these respects; first, because the
plaintiff has denied that he was
seised in fee by virtue of the lease
and release, though he has in ef-
fect admitted it before; for in this
plea he has not denied, not even
by way of protestando, that Mary
MannM (the avowant) was seised
in fee at the time of making the
lease and release ; and as he has
admitted in this plea that Mary
Mannell was seised in fee, and
that being so seised she made a
lease and release to the plaintiff
and his heirs, the necessary conse-
quence of that is, that he must be
seised in fee by virtue of such
lease and release ; for I defy any
one to put a case where a person
seised in fee makes a lease and
release to another and his heirs,
and yet the grantee shall not be
seised in fee ; and yet this is the
very thing denied by this plea.
Secondly, If there could be any
doubt of. this (but there certainly
is none), the only doubt would be,
whether this be the necessary con-
sequence in law, that is, whether
these deeds of lease and release
have this operation in law or not.
And it is a certain known rule,
never that I know of once contro-
verted, that a man cannot traverse
a conteqnenct of law ; and for this
plain reason, because it is a matter
of law and not of fact, and therefore
not proper to be tried by a jury."
In Beal v. Smpion^ 1 Lord
Haym. 408, 410, (see the plead-
ings, 3 Lord Raym. 314, 1 Lutw.
627,) the same principle was re-
cognized. Trehyj C. J., differed
from the other judges as to the
propriety of the traverse upon the
virtute cujus in that particular
case. Tliis difference in opioioD,
however, was not as to the general
rule of law, but as to its applica-
tion, the Lord Chief Justice being
of opinion that the case fell within
the general rule, and the three
other judges holding that the Ti^
tute cujus in that case did not
serve, as in ordinary cases, merely
to collect, and draw an inference
from, facts previously alleged, but
that its operation there was to as-
sert substantively, as a new fact,
that the act stated under the vir-
tute cujus was done in assertion
of and with reference to the parti-
cular authority to which the virtute
cujus referred. A similar doubt
as to the operation of the virtute
cujus in the particular case (and
no question as to the general rule)
created the difficulty in the recent
case of Lucas v. Nocktlls, 4 Biogh.
729, 1 Moore & Payne, 783; S.C
in dom. proc. 10 Bingh. 157, 3
Moore & Scott, 627, 7 Bligb, New
Series, 140. And see PriddU and
Napper's case, 11 Co. Rep. 30 a,
(the dictum in which case upon
this point is adopted in Doctr.
Plac 351, and cited and approved
in The Protector v. Halt^ Ilaidr.
70;) Archbishop of CoHlerbury's
case, S Co. Rep. 48; Knightity
and Spencers case, 1 Leon. 333 ;
Benton v. Troty Sir F. Moore, 530,
534; Clampe v. CUnmpe^ Cro. El.
29; Foster v. Jackson^ Uob. 5-:;
HILARY TERM, X GEO. IV.
below, and that the church was not full and had become
void 25th October, 1825, and that the yearly value of the
church was 6OOL, and that the quare impedit was sued out
within six months after the avoidance (a)— rand the judgment
of the Court of C. P., (signed IQth November, 1828,) in
accordance with the verdict for the plaintiffs below, to re-
cover their presentation against the defendant G. P. Dow-
ling, and also their damages (A) to the value of the said
church for half a year, which, as assessed by the said jurors
in manner aforesaid, amount to 300/., as and for the damage
sustained by the plaintiflFs below, by reason of the said
disturbance.
The errors assigned were.
First: That the plaintiffs had not merely stated defectively
their title to present, but had shewn a defective title to any
separate purparty or fourth part of the advowson, and no
title or right in themselves.
Secondly: That the declaration was insufficient.
Thirdly: That there was a material variance between the
deed-poll and the statement of it in the declaration.
Fourthly : That the deed-poll does not support the alleged
title.
Fifthly. That by the record it appeared that the deed-poll
CoUkorpe ▼. Heyton, 2 Mod. 55;
Rex V. Blagdon, cited 2 Stra. 841 ;
HkkardMOn ▼. Mayor of Orford, «
H. B]a. 182 ; Eobson ▼. Middleton,
9 Dowl. & Ryl. 249, 6 BarD. &
Cressw. 295; 1 Wms. Saund. 23,
c, (5); Ibid. 298, n, (3); Stephens,
Plead. 3d ed. 191.
The Court of C. P. reduced the
record to its present form, by re-
minding the rule to plead several
(natters, although the declaration
^ad been amended twice, and afcer
tbe plaintiffs had been erroneously
ijOTfSU J ted . Vide 4 Bi ngh. 525, and
2 Moore & Payne, 105.
(a) As to the obligation on the
jury, where a verdict is found for
the plaintiff, to inquire ex officio
whether the church is full — if full,
of whose presentation— the annual
value of the church — and how Jong
vacant, see Larke v. Kyme, Kcilw.
57 b.
(6) By statute Westm. 2, (13
Edw. 1, St. 1, c. 5,) if the six months
are nut past, (and the plaintiD* has
tlierefore not lost his presentation,)
damages are to be adjudged to the
plaintiff to the half-year's value of
the church, or as the expression is,
to the value of a moiety of the
church for a year — ad valorem
medietatis ecclesia per annuoi.
4C9
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
470
1850.
Bishop of
Exeter
rikI another
V.
Gully
and others.
CASES IN THE KING S BENCH,
was fraudulent, and void in law as against purchasen, as
stated in the plea of the defendant Dotolingf and that there-
fore the Court below ought to have given judgment for
Dowling non obstante veredicto {a).
Sixthly: That judgment ought to have been given for the
defendant below.
Seventhly : That before the making of the said count or
declaration, in the form contained in the said record, in
Easter term, 7 Geo. 4, the plaintiffs below counted and de-
clared against the defendants below, on the same writ in the
plea aforesaid, in another and different form, and upon ano-
ther and different title to present to the said church, from the
form or title set forth in the count or declaration contained in
the record now before the Court, as appears by the court
rolls of that term, now remaining of record in the Court
of the Bench ; to which count or declaration so contained
in the said court rolls, other and different pleas were pleaded
than those contained in the record now before the Court ;
and that such other proceedings were had on the said pleas
so pleaded to the first count or declaration in the Court of
Common Pleas, that afterwards, in Hilary term, various
issues in fact to be tried by the country and by the record
respectively, and also an issue in law on a demurrer to the
replication to one of the said last-mentioned pleas, were
joined, as appears by the issue-rolls of that term remain-
ing of record in the Court of C. P.; that to try the said
last-mentioned issues, a venire issued; that a record of nisi
prius was made in the same suit, in order to try the said last-
mentioned issues; and that afterwards, on the 21st day of
March, at the Castle of Exeter, in the said county, a jury was
sworn to try the said last- mentioned issues, but before they
had given their verdict, the plaintiffs below being solemnly
(a) As the replication does not
confess the plea, it would seem that
there could be no judgment non
obstante veredicto, and that sup-
loosing the issue taken by the repli-
cation to be improper, and Dot
cured by verdict, the Coart below
ought to have merely aw&rded a
repleader; Phmerw, RotSy 1 Marsb.
95; 6 Taunt. 386; on/e, 392, (a).
HILARY T£RM, X GEO. IV.
cilledcame not, and were nonsuited at that trial| upon the nisi
prius record; which nonsuit was duly entered; and although
anoosuit in quare impedit is by law final, yet by a certain rule
of the Court of Common Pleas made in Easter term« 1828, it
was erroneously ordered by that Court, that the defendants
below should shew cause why the nonsuit entered on the trial
of the said cause should not be set aside, and a new trial had
between the parties ; that afterwards, in Trinity term,
8 Geo. 4, by a certain other rule of the Court of C. P., on
reading the former rule and hearing counsel, it was errone-
ously ordered by the same Court, that the nonsuit should
be set aside, and a new trial had between the parties; that
the said rules did not appear to have been granted on the
ground of any irregularity, misconduct, or mistake, or on
aoy affidavit, but on reading the said record of nisi prius
and hearing counsel only, as will appear by the said rules
when certified to the Court here; that after it had been so
ordered by the Court of C. P., that a new trial should be
had between the parties, by a certain other rule of the same
Court, made on the '22d day of November, in Michaelmas
term, 8 Geo. 4, it was ordered, that the defendants should,
on the second day of Hilary term then next, shew cause
why all the pleas in the record should not be struck out,
except those which referred to the deed of the 29th April,
1672, or why the plaintiffs should not be at liberty to amend
their declaration in the said cause; that the rule was eu-
lafged, and that it was erroneously ordered by the Court of
C. P. that the rule for pleading several matters obtained in
3Iicbaelmas term, 7 Geo. 4, should be vacated, or that the
plaintiff should be at liberty to amend the declaration as
the Court should direct, upon payment of certain costs (a) ;
that the said last-mentioned rules do not appear to have
been granted for any irregularity, misconduct or mistake,
but only on the supposed grounds therein mentioned, and
which will appear by the same rules and affidavits, when
certified to the Court here ; that by another rule of the said
(o) Vide 4 Bingh. 5^5, and 2 Moore & Pa^ne, 105.
471
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
472
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
CAS£S IX TH£ KINGS BENCH,
Court of C. p. made in the said cause, it was ordered that
the two last-mentioned rules should be discharged^ and that
without payment of costs.
Eighthly : That by another rule of C. P., it was errone-
ously ordered, that the defendants below should shew cause
why the plaintiffs below should not have leave to amend
their declaration, according to several amendments thereof
mentioned in the said rule of 1st May, upon payment of
certain costs. And by a certain other rule of the Court of
C. P., made on the 12th of May, 9 Geo, 4, it was errone-
ously ordered, that the plaintiffs should be at liberty to
amend their declaration, as the Court should order and
direct, upon payment of certain costs; and that if the said
G. P. Dowlifig should be minded and desirous to resign,
tod would actually resign to the plaintiffs below, and aban-
don all his right, title and interest to the rectory, and would
consent to the plaintiffs below signing judgment, the plain-
tiffs below should pay to the defendants below, all their
costs of and occasioned by their defence, the said G. P.
Dowling having until the last day of that term, to signify to
the Court of C. P. his assent thereto or dissent therefrom.
Ninthly: That by a certain other rule of the Court of
C. P., made the gth of May, 9 Geo. 4, it was erroneously
ordered, that the plaintiffs below should have leave to amend
their declaration, according to certain amendments thereof
mentioned in the rules, upon payment of certain costs; and
that a rule for the defendants below to plead to such decla-
ration, when amended, should be given ; by and under the
authority of which erroneous rules, or some or one of them,
the plaintiffs below were permitted by the Court of C. P.
to amend, alter, and depart from their said first count or
declaration, and to count or declare, and did count or de-
clare in the form contained in the said record now before
the Court here ; and after the declaration was so amended,
the same in the said amended form was entered of record in I
the said Court of C. P. i
Tenthly: That after the plaintiffs below had declared as|
HILARY TERM, X GEO. IV.
hst aforesaid, it was erroneously ordered by the Court of
C. P. that the defendants below should plead to such
amended declaration on or before the 23d of May, in the
ninth year aforesaid.
Eleventhly : That it was ordered that the plaintiffs below
should shew cause why the defendants below. should not
ha?e leave to plead to the amended declaration, the several
matters specified in the rule; that on the 17th of June, it
was ordered that the said G. P. Dowling should, within three
days, elect whether he would plead to the amended declara*
tion, that the deed of the 2gth April, 1672, was fraudulent
against subsequent purchasers, and a plea of non concessit
as to that deed only, — or plead some other single plea alone
to the amended declaration; and that he should, within three
days, plead either those two pleas, or such other one single
plea, as he should elect; and the said rule, as to all the other
pleas therein specified ' was discharged {a) ; that the said
G. P. Dowling, under the authority of the Court of C. P.,
and of such rule, and in order to prevent judgment being
signed, or incurring contempt by repleading the same pleas,
was compelled to plead, and did plead the two pleas con-
tained in the record now before the Court only (6).
473
1830.
Bishop of
Exeter
and another
V.
GULI.Y
and others.
(o) The collateral matters here
alleged not being stated in the re-
torn to the writ of error, the plain*
ti& in error made several appli-
cations to this Court and to the
Coart of Chancery, a statement of
»hich applications will be found
pott, 499, 501, 502.
{h) The marginal points submit-
ted to the Court by the plaintiffs
io error, were these:
First: That in case of parceners
entitled to an advowson in gross,
and being married women, disa-
greemeot between them to present
io the first set of turns, and pre-
.lentatioD by the eldest and her
Husband in her right in the first
turn of that set, is not sufficient to
sever the inheritance of the advow-
son, so as to entitle an assignee
claiming under the youngest par-
cener to present separately in the
second set of turns, without any
disagreement to present jointly in
ihat set, or any partition, compon^
tioriy or agreement between the
parceners, or their assigns, to pre-
sent by turns. Vide Mallory Quart
Impedit,7U pl« ly ^; ib. 7S; Anon,
Co. Litt. 166, n. 13.
Secondly : That mere disagree-
ment between the husbands of the
parceners and their wives, to pre-
sent jointly in the first set of turns,
could not sever the inheritance of
474
1830.
Bishop of
Exeter
and another
o.
GCLLY
and others.
CASES IN THE KINGS BENCH,
Twelfthly: That the several rules for amending the declft'
ration and pleading de novo, amounted in law to the order-
the wives, the latter not being sai
juris at the timey — and chat nothing
but partiiion could effect such
severance, which, if it had been
made, ought to have been stated in
the declaration; and that the im-
perfect allegation, " that the said
Francu ItaaCf and Grace his wife,
died so seised of the same one
fourth part of the said Grace of the
said advowson,'' cannot help the
declaration. (5 Bingh. 173; 8
Moore & P. 376.)
Thirdly: That no presentation
subsequent to that by the eldest
parcener and her husband appear*
ing to have been made by right,
and all the subsequent ones ap-
pearing to have been made by
strangers, such presentations must
be taken to have been made by
usurpation^ — which deprived the
plaintiffs below of this possessory
remedy by quare impedit, whatever
they may have by writ of right of
advowson.
Fourthly: lliat the declaration
professing to state, that by the
deed-poll of the 37th April, 1672,
Robert Isaac, in consideration of
the sum of 20s. and for service
done, and other considerations,
granted to Lewis Slevings the same
purparty or fourth part of the ad-
vowson in fee, and that deed on
the oyer appearing to be a grant
by Robert Isaac, as patron of the
church, for that same sum and
those same considerations, of the
fee of the whole advowson, the
deed does not support the title as
set out in the declaration, and the
defendant is entitled to judgment
on the plea of non concessit.
Fifthly: That the deed of the
29th April, 1673, is on tlie faoeof
it fraudulent in law and void hj
the statute of Eliz^ (the conside-
ration of 20s. being merely noni-
na/, and the service not appareotlj
done on any contract,) and that do
evidence could be admitted to-
contradict or explain the deed or
the consideration of it, as expressed
in the instrument; and that the
defendant is therefore entitled to
judgment non obstante veredicto
on tlie special plea.
Sixthly : That the plea of in ndio
est erratum to an assignment of
errors out of the body of the re*
cord, is a confession of the matters
assigned for error, and operates as
a demurrer to their legal efficac/,
as in the case of an assignmeat of
error in fact; and that the Coart
of Common Pleas could not legally
grant a new trial, and afterwards
alter the record, so as to prevent
the trial of issues originally joined,
without objection either at com-
mon law or by any of the statutes
of amendment, and that the roles
granted in the present case amount-
ed to an improper granting of are-
pleader.
The points submitted to the
Court by the defendants in error
were these:
First : The defendants in error
mean to insist that a severance of
the estate in coparcenary in an
advowson, is the necessary conse-
quence of disagreement in presen-
tation, in whatever way that dis-
agreement may have arisen, or by
whatever acts it may have been ma-
nifested. A severance ouce made
HILARY TERM, X GEO. IV.
tng of a repleader, in a case where the awarding of a re-
pleader was altogether unauthorized by law.
bj parties having the right at the
time, must go on; othenvise the
mt will be prejudiced, as also the
party preseotiDg in the first turn,
or her representatives ultimately.
Secondly: That the act of the
husband and wife, seised in right
of the wife, binds the wife and her
heirs until disagreement to such
act.
Thirdly : That since the statute
of 7 Aim, c 18, an usurpation is
no bar to a quare impedit.
Fourthly : That the plaintiff was
bound to plead the deed according
to its l^al effect, anie^ 451, (e);
and that the legal effect of a deed,
professing to grant the entirety in
consideration of a sum of money,
executed by a party who has only
one-fourth, is, to pass to the ven-
dee all that the vendor had in the
entirety, viz. one fourth; so that a
deed purporting to be a grant of
on advowson generally^ eiecuted by
a party who appears by the plead*
ings to be seised ofapurparty only,
enores and is truly pleaded as a
grant of that purparty.
Fifthly: It having been found
opon the issue, by the verdict upon
that record, that Robert Itaac
granted for the considerations ex-
pressed in the deed, and those con-
siderations being valuable in point
of law, the grant could not be
defeated by a subsequent convey-
ance in consideration of marriage.
Sixthly: That a plea of in nuUo
est erratum, even in ordinary cases,
only admits such matters of fact as
ne properly pleaded; but in this
particular case, where in nutlo est
erratum was not pleaded until after
the alleged erroneous matter of
fact bad been disproved by the non
return to the writs of certiorari,
the plea of in nullo est erratum
would not amount to an admission
of the truth in fact of the matters
so alleged and not verified.
The Court of C. P. had a right
to regulate the course of its own
proceedings, and to set aside an
improper nonsuit, if it saw it to
be reasonable so to do. Such non-
suit, when set aside, is no nonsuit
within the statute of Westm. 2,
(13 Edw. 1, St. 1,) cap. 5, but has
become an absolute nullity.
Seventhly: That the sixth and
subsequent assignments of error
relate to matters not assignable
for error.
Eighthly: That the matters so
assigned for error form no part of
the record.
Ninthly : That the sixth and sub-
sequent supposed errors relate to
matters of practice not cognizable
by any other authority than that of
the Court in which they arise.
Tenthly: That supposing these
matteis of practice were cognizable
in this Court, the several matters
alleged as error were perfectly war-
ranted by the course and practice
of all the superior Courts.
Eleventhly: That supposing the
proceedings in the Court of C. P.
had been irregular, such irregula-
rity would have been waived by
the plaintiffs in error joining issue
and going to trial upon the substi-
tuted record.
Twelfthly : That supposing no
effectual disagreement and nu se-
verance to have taken place, before
475
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
V.
Gully
and others
476 CASES IN THE KING's BENCH,
1830. Tbirteenthly: That the said rules do not, nor do any of
^'^''^'^^^ them, authorize any amendment or alteration in or from the
Exeter court rolls, or issue rolls, or nisi prius record, or any rolls
and another or record of proceedings in the said cause; nor were any
such amendments or alterations authorized by law^ especially
after the cause had been once tried on the said issues in
fact, and the new trial ordered, which could only be of the
same issues of fact before joined and carried down to the
said assizes for trial, and contained in the said nisi prius
record.
Fourteenthly: That the jury on the last trial gave no ver-
dict, nor has the Court of C. P. given any judgment, upon
the several issues originally joined between the said parties,
and contained in the said court rolls, issue rolls, and record
of nisi prius, whereon the said first trial was so bad as
aforesaid (a). All which before-mentioned rolls, record of
the conveyance from Robert Isaac
to Lewit Slevings, on the 27th
April, 1672, that conveyance would
enure as a severance of one-fourth
part of the coparcenary estate, and
the subsequent presentation of Ed-
ward Chichester in rif^ht of Robert
Isaac\ turn, and the following pre-
sentations of three clerks in the
turns of the three remaining copar-
ceners, would vest the right to the
next turn in the party claiming
under Lewis Stevings, as tenant in
common of the advowson with the
three remaining coparceners.
(a) The last eight assignments of
error appear to be quite a novel ex-
periment, and to admit of several
answers :—
First: That these rolls' &c. nei-
ther are nor can be parcel of the
record: That the chief justice
and the officers of C. P., to whom
the writ of certiorari is prayed to be
directed, have no power to certify
the matters which they would by
such writ be required to certify;
as the former pleadings and the
fonner postea are no longer in the
legal custody of those persons, and
these matters have no legal exist-
ence, or they may be taken to be
proceedings in another cause be-
tween the same parties; Tysonn
V. Uiflyardy 2 Lord Raym. im:
That nothing can be certified which
will not stand with the record fine
returned by the Court below, in
obedience to ^the writ of error;
Lloyd V, Bethelly 1 Roll. Rep. 200;
FUnfd V. Bethell, 1 RoU. Abr. 764,
1. 22, S. C. (translated, 9 Vin. Abr.
552); Com. Dig. tit. Pleader, (3 B
16).
Secondly : That the Court of
C. P. had full authority to make
the several rules and orders com-
plained of.
Tliirdly: That the power of ibe
Court of C. P. to make such rules
and orders must depend upoo the
practice and course of that court,
HILARY TERM, X GEO. IV.
nisi prius, writs, panels, posteas, entry of nonsuit, rules,
orders, a£Bdavits and proceedings, above mentioned, will
appear to the Court here, when duly certified to the said
Court.
And hereupon the said G. P. Dowling prays the writ of
our lord the king to be directed to the Right Hon. Sir
William Draper Best, Knt., his majesty's chief justice of
the Bench at Westminster, to certify to our said lord the
king the said court rolls, and issue rolls, now remaining of
record in the same Court, before the said chief justice and
his companions, justices of the Bench aforesaid, and also to
certify to our said lord the king the said record of nisi prius,
with the postea» or entry of the said nonsuit, thereon, men-
tioned in the said rule of the said Court of the Bench, made
in Easter term, in the eighth year of the reign aforesaid,
together with the writ of venire facias and writs of habeas
corpora jurat orum, and panels of jurors annexed thereto,
and the entry or minute of the said nonsuit, and all other
things belonging to the laid last-mentioned record, and the
proceedings had thereupon, or otherwise relating to the
matters aforesaid, above assigned for error, in his custody
or power: and also another writ of our said lord the king,
to be directed to George Watlingion, Esquire, H. JB. Raj/,
477
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
of which the Coartof King's Bench,
as a court of error, has no judicial
knowledge, every Court being enti-
tled to regulate its own practice.
Fourthly : That it is not compe-
tent to the defendant below to
join issue^ go down to trial, and
take the chance of a verdict, and
then say that such issues ought
not to have been tried: That by
so doing be has assented to all
d)at has been done, and consensus
tollit errorem, if error there had
been: That though a defendant in
«rror, by pleading in nullo est erra-
tum, admits the facts assigned for
error, provided they are not incon-
sistent with the record, yet where
errors are assigned, which are not
by law assignable, the defendant
in error may either demur to the
errors so improperly assigned, and
plead in nullo est erratum to the
other errors, or may plead in nullo
est erratum to the whole, which
plea is in the nature of a demur-
rer, and refers the matter to the
judgment of the Court; Hudson v.
Banks, Cro . Jac. 28 ; Binvsse v. Car^
rington, ib.244; Hay don v. Mynn,
ib. 521 ; King v. Cosher, Yelv. 58;
Cole V. Greene, 1 Lev. 311.
478
1830.
Bishop of
Exeter
and another
V,
Gully
and others.
CASES IN THE KING S BENCH,
Esquire, and Thomas Hudson, Esquire, prothonotaries of
the said Court of the Bench, and to George Griffiiht,
Esquire, Jonathan Hewlett, Esquire, and John Henry Can*
cellor, Esquire, secondaries of the said Court of the Bench,
to certify to our said lord the king the said several rules,
and all other rules and orders of the said Court of the Bench
in the said cause, and touching or in anywise relating to all
or any of the matters aforesaid above assigned for error,
together with all aflBdavits and things relating thereto, affiled
of record, in the custody or power of them, or any of them,
^nd such writs respectively are granted to the said G. P.
Dowling, &c.(a).
And he prays that the judgment aforesaid, for the errors
aforesaid, and other errors in the record and proceedings
aforesaid, may be reversed, annulled, and altogether held for
nothing, and that he may be restored to all things which he
hath lost by occasion of the said judgment, and that a writ
to the bishop may be granted to him, &c.
E. Lawes, Serjt., for the plaintiffs in error.- Neither the
presentation by Grace Westcott, in J 674, nor the presenta-
tion by Sir Nicholas Hooper, in 1714, are connected by
the declaration with the title set up by the plamtiffs below.
The second plea states that the presentation by Sir N.
Hooper was made in right of R. Isaac's daughter, or in
right of R. Isaac himself, through some right derived from
him under the execution of the fraudulent deed of l67S.
And that statement not being traversed, the plaintiffs below
must be taken to have admitted that this was the true cha-
racter of that presentation. It was therefore adverse to the
title of Stevings, and a usurpation upon him, supposing him
to have been then entitled under the deed of l672{b). This
(a) These writs were taken out
in the usual course sub silentio,
but the plaintiffs in error were un-
able to get any return to them.
Vide post, 501.
(6) The plaintiffs below had no
opportunity of trarersing this state-
ment. To do so, they must citlier
have replied double, or have ad-
mitted the allegation that the deed
HILART T£RM, X GEO. IV.
is a possessory actioD, as appears by the statute of West-
minster 2 {a), which recites, that of advowsons of churches
there are but three original writs^ one of right and two of
possession, viz. darrein presentment and quare impedit.
Though the action is brought in respect of a possessory
interest only, yet the plaintiff is bound to shew a title to
the advowson, or to that turn of the advowson which he
claims (6). A declaration on a right to present by turns to
an advowson in gross, must shew a presentation in that
turn in which he claims, where that is possible ; and also,
in such a case as this, the conveyances &c. constituting the
title to present in the other turns, must be shewn as at
common law. This appears from the language of Lord
Hobart in Digby v. Fitiherbert (c\ Lord Chief Justice
Vaughan in Tufton v. Temple {d). Lord Loughborough in
Thrale ▼. The Bishop of London (e), and also from Watson^ s
Clergyman^s Law^ 245, 267» which is most full in shewing
the sort of title which a plaintiff in quare impedit is bound
to disclose upon the record. The plaintiff must possess
the same estate, — it must be the same estate, or parcel of
the same estate, — in respect whereof the presentation was
made.
The distinction between a defective title and a title defec-
tively set out is admitted (J^. Here, however, the declaration
is bad in substance, because it sets out a title which is
equally defective, whether the inheritance be taken to be
divided or not, by the non-agreement of the coparceners
in the first turn. For assuming that the tenure in copar-
cenary was severed by the non-agreement, the declara-
tion is insufficient, in not alleging any presentation by right,
by those under whom the plaintiff derives title in the fourth
479
of 167S was fraudulent. The title
set out in the second plea was
merely in the nature of a tuggek-
tkmj for the purpose of entitling
ibe defendant, G. P. Dcwling^ to
a writ to tLe bishop, in case one of
1830.
Bishop of
Exeter
iind another
V.
Gully
and others.
(a) IS Edw. 1, Stat. 1, c. 5.
(6) Com. Dig. Pleader, (3 I 4).
(c) Hob. 101.
Id) Vaugh. r & 8.
(e) 1 H. Bla. 409.
(/) Vide Cromkr v. Oldjkld,
the issues had been found for him. 1 Salk. 365^ 2 Lord Rayni. 1225.
480
1830.
Bishop of
Exeter
and another
V.
Gully
and others.
CASES IN THE KINGS BENCH,
turn in which he claims, or any conveyance or descent
under which any of the six previous presentations were
made. In Shireburne v. Hitch {a), the plaintiff claimed
the second turn, but in his declaration did not lay any pre-
sentation in the second turn. He also admitted a tide in
the defendant to the first turn, but did not set out the
mesne conveyances to the defendant. The declaration in
that case, (the decision in which gave rise to the statute of
Anfie{b)t) was held to be insufficient, because it set up a
title to present in the second turn, and shewed no presen-
tation in that turn. [Parke J. That case is distinguish-
able from the present, on two grounds: no presentation by
the ancestor was alleged, nor a presentation by any person
who claimed title to the advowson in such a way as that
the Court could take notice of it. The declaration averred
a presentation by a person whose title was not shewn. No
seisin by actual presentation was alleged. Here, both are
found ; the common ancestor is stated to have presented,
(which presentation is analogous to seisin by taking the
esplees in a real action,) and after the non-agreement the first
coparcener presented.] The ground of the decision in Shire-
burne v. Hitch was stated to be, that the declaration con-
tained no allegation that any person entitled to the advow-
son had presented. But seisin .of the manor is equivalent to
a presentation. [Bayley, J. Seisin of the manor, without
actual presentation, would not be sufficient.] Seisin of an
advowson appendant to a manor may be gained by obtain-
ing seisin of the manor; but an advowson in gross, as here,
cannot be acquired without that which is an actual seisiiii
viz., presentation ; per Lord Hardwicke, in Rex v. Bishop
of Landaffic). In Hargrove's note to Co. Liit. 15 b, it is
said, that seisin of a manor is a good seisin of an advowson,
common, &c. IBayley, J. If appendant or appurtenant.]
The Year Book, 18 Hen. 6, and Hale's MSS. are there re-
ferred to; and in Watson, 130, it is said, that an advowson
(a) 1 Bro. Pari. Ca. 2d edit.
J10;pat^, 481, 489,493.
(6) 7 Ann. cap. 13.
(c) 2 Stra. 1012.
HILARY TERM, X GEO. IV.
may be regained, after usurpation, by re-entry into the land
to which it is appendant. There can be no possessio fra-
trisof aa advowson in gross. In Shireburne v. Hitch (a),
although no presentation was alleged to the whole advow-
son, it was stated that 1{. N. and his wife were seised of the
manor and advowson to which &c. ; and that was equiva-
lent to the statement of R. Roberts % presentation in this
case. Secondly, in that case paHilion was alleged. But
though the advowson became an advowson in gross, that
was held not sufficient to create a severance of the inherit-
ance. . Thirdly, presentation in the first turn was alleged,
and that a presentation by right. Here, there is no such
allegation. In that case it did not appear that any op-
portunity had occurred of presenting in the second turn,
which turn the plaintiff claimed. Here, an opportunity had
occurred, to present in the fourth turn. . Independently of
the decision in Shireburne v. Hitch, this declaration would
have' been bad for want of an allegation of seisin ; for a
presentation, in a case of an advowson in gross, is as essen-
tia! as possession is in an action of trespass, since, in the
case of an advowson in gross, there can be no seisin or
possession, but by presentation. Rex v. Bishop of Lan-
^ff{b) shews, that the want of an allegation of a presen-
tation is error, unless the plaintiff declare on the seisin of
the crown (c). Here, the several presentations alleged
negative any presentation in the right of the plaintiffs below
in the fourth turn, and shew that «7. Stevings and his devi-
sees could acquire no seisin. [Bayley, J. Put it as seven
usurpations — what then ?] The usurpations before the sta-
tute are not cured. \^Bayiey, J. These would be usurpations
on parceners. If there be four parceners, and a stranger
presents in the third turn, that does not affect the right of
the fourth parcener to present when his turn arrives; Thrale
(a) 1 Bro.P. C. 2d ed. 110.
(6) 2 Stra. 1006, 1012; 5,C. 2
Barnard. B. R. 72, 189, 371.
(c) As to the effect of the pre-
VOL. v.
481
1830.
Bishop of
Exeter
and another
r.
GuLi.Y
and others.
sumption in farour of the crown,
in giving to the crown in that very
case a title whicli it never possess-
ed, vide ante, vol.i. 286, n.
1 I
482
1830.
Bishop of
Exeter
and another
Gully
and othen.
CASES IN THE KING S BENCH,
V. Bishop of London (a).] The declaration is bad, inasmuch
aa these presentations must be taken to have been made
by usurpation, and thus to have creatdd a seisin io the
usurper. IBayle^f J. referred to 2 Inst. 365 (6), and
2 Roll. Abr. 346, (G),(c).] The 7 Anne, c. 18, was passed
to obviate the inconvenience of requiring, an allegation of
title, and may be considered as a legislative recognitian of
the authority of Shirebume v. Hitch. By that statute it
is enacted, '' that no usurpation upon any avoidance in
any church, shall displace the estate of any person entitled
to the advowson or patronage thereof, or turn it to a right,
but he or she that would Jiave had a right if no usurpation
had been, may present^ or maintain his or herquare iropedit,
.upon the next or any other avoidance; and if coparcenen,
joint-tenants, or tenants in common be seised of any estate
of inheritance in the advowson of any church, &c., or other
ecclesiastical promotion, and a partition is or shall be made
between them to present by turns^ every one shall be taken
and adjudged to be seised of his or her separate part of the
advowson, to present in his or her turn; as if there be
two and they make such p^rtition^ each shall be said to be
seised, the one of the one moiety to present in the first
turn, the other of the other moiety to present in the second
turn ; in like manner if there be three, four, or more^ everj
one shall be said to be seised of his or her part, and lo
.present in his or her turn/' As the plaintiflFs have not the
•estate of ii« Roberts, his presentation, on the death of his
clerk, ceased to operate. Supposing the possession to have
been severed for the first set of turns, it cannot be inferred
that the parceners did not agree afterwards to present
jointly. IBayley, J. No joint presentation took place in the
Jifth turn. Lord Tenterden, C.J. Is there any autfaonty in
the books for saying, that after a disagreement and severance
the parceners may present jointly.] Upon all the authorities
it is necessary to state disagreement for each set of turns.
Translated, 17 Vin. Abr.
(ft) I H. Dla. 37G.
(6) Post, 4«7.
(0.
395.
and others.
HILARY TERM, X GEO. IV. 483
Supposing that JoAn StevingSf or bis grantee, were entitled, i830.
be might have presented in the fourth turn, and the plaintiff ^T^''^^^.
might have claimed the title by it; Countess of ^orthum* Exetea
berland's case (a). This was not done, and John Stevifigs *"<^ another
had no actual seisin, but a mere right (b). He could not Gully
therefore devUe it; for a mere right cannot be the subject
of conveyance, or pass by will; but it descends, and the
tirle is to be madcf under the heir at law; per Lord Eldon, in
Attorney-General v. Bishop of Litchfield {c). [Bayley, J.
Then where there has been one usurpation upon a single pre^
seotation, the patron cannot afterwards convey his interest.
The statute of Jlnne says, that no usurpation shall displace
the estate, or turn it tq a right. Littledale, J. In Co* Lit.
166 b, it is said, " If there be divers coparceners of an ad-»
vowson, and they cannot agree to present, the law doth give
the first presentation to the eldest; and the privilege shall
descend to her issue; nay, her assignee (d) shall have it."]
A party cannot convey a mere chose in action; Goodright
V. Forrester {e). . [Bayley, J. In Barker v. Bishop of Lon^
don{f) there was a usurpation upon the first avoidance, the
third daughter devised, and the devisee presented {g) : — that
was an advowson in gross.] Doe d. Lidgbird v. Lawson{h).
There it was decided, on the authority of previous cases,
that an advowson would not descend in a new family with-
out a seisin, and the 3 H. 7, fo. 5, pi. 19, was referred
to, as shewing that there could be no possessio fratris.
[Bayley, J. There must be a taking of the esplees. One
coparcener cannot know what is done with the others*
shares, and therefore cannot know whether the presenta-
tions are rightful or wrongful.] That was urged in Sher^
home V. Hitch. [Lord Tetderden^ C. J. There it was not
(fl) 5 Co. Rep. 98.
(h) i. e. a right of act ion,
(c) 5 Ves. 831.
(<0 Vide Butter r. BiMliop of
heUr, 1 Vez. sen. 340.
if) 8 East, 552.
C0Willes,69d; I H. Bin. 412.
(g) But the devisee who pre-
sented, (or mther who recovered
in that quare impedit,) was enti-
tled also to the second turn by
descent,
{h)AntejV\l \H, Doe (i, Lidgbird
V. Besty 8 Barn. & Cressw. C06.
I I 2
484
18S0.
Bishop of
Exeter
and another
V.
Gully
and others.
CASES IN THE KING S BENCH,
shewn bow the presentation was made; a coparcener would
know that she had no right to present until her turn came;
she would know how the right originally vested, but she
cannot be required to know how the presentations were
made in the other turns. Lex neminem cogit ad impossi-
bilia.] The coparceners are privies in estate. [Baylet/f J.
One coparcener does not claim under the others (a).]
The second objection is, that the declaration does uot
state any conveyances by which any presentation, subse-
quent to that of the eldest coparcener in the first turawas
made, or even that the subsequent presentations were made
by title at all. To entitle the plaintiffs below to avail them-
selves of the provisions of 7 Ann. c. 18, it would be neces-
sary to shew seisin; Birch v. Bishop of Litchjield{b). And
if the declaration be not upon the statute, it must be framed
agreeably to the principle of the common law. All the pre-
cedents deduce a title to each turn. Tufion v. Tempkic),
Thrale v. Bishop of London (d), Barker v. Bishop of iow-
don{e)f Birch v. Bishop of Litchfield(f). This is ne-
cessary upon two grounds; the plaintiffs below are privies
in estate with the parties entitled in the preceding turns;
and it was necessary to negative usurpation before the
statute of Anne\ secondly, the present claim is in the
second round of turns, and the declaration, instead of pur-
suing the form given by the statute, shews two such usurp-
ations without any subsequent presentation; and thirdly,
the mere fact of presentation, without shewing in what right,
is a matter wholly indifferent, as, for any thing that appears,
it may be founded upon a title in the defendants (g).
But supposing non-agreement to present jointly to enure
as a composition to present by tunis, a third objection to
the declaration is, that the presentations in the second and
(a) Sed vide Doe d. Strode v.
Seatotif 4 Nev. & Mann. 81, as to
claiming through^ but not under,
(6) 3 Bos. & Pul. 444.
(f ) Vaugli. 7 & 8.
(J) 1 II. Bla. 376.
(e) Ibid. 412; WiUes, 659.
(/) 3 Bos. & Poll. 444.
(g) Hob. 109; Mallory, Q. I.
200; Vaughan, 57, & P.
HILARY TERM, X GEO. IV.
third turns being usurpations/all the parceners were put out
of possession. [Lord Tenterden, C. J. The allegation is,
that the presentations were '' as in the second and third
tuni8."J It is like shewing possession in another in trespass;
Anon. £ Ventr. ^9; Watson, 1^24; Degge, I9. Composi-
tion would not have severed the estate; Fitz. Abr. 54,
pi. 196; ib. tU. Darrein Presentment, pi. 11. Usurpation
on a grantee of the first of two avoidances is a usurpation
of the second, and reduces it to a riglit of action; Ellis v.
Taylor {ay^ and on tenants in common, turns their right of
entiy to a right of action ; Co. LUt. 1 98 a. At common law,
usuqmtion operates more strongly upon the seisin of an ad-
vowson, than disseisin upon the seisin of land. The provi-
sions of 7 Annej c. 1 8, are not retrospective, and do not affect
usurpations then exuting; Duke of Dorset v. Sir Thomas
Wiison{b). These usurpations prevented any subsequent
title being acquired by purchase from John Sievings; Wat*
urn, 125, 129; as there can be no conveyance of the pos-
sessory right after a usurpation; Leak v. Bishop of Coven^
try{c). After a usurpation the fee is in the usurper, and
any conveyance must be pleaded as a grant of the right.
In qoare impedit, a presentation by usurpation is a sufficient
title; 16 H. 7, B{d); Show. P. C. 213. If the declaration
is good, the plea is good. [Lord Tenterden^ C. J. But the
plea is found against you. Parke, J. Have you any autho-
rity to shew that the right of presenting in the subsequent
turns does not go on, notwithstanding a usurpation upon a
prior turn?] Co. Lilt, 18 a(e). [Liitledale, J. It stands
485
1830.
Bishop of
Exeter
and another
V.
Gully
and olbifrs.
(a) 3 Roll. Abr. 373, pi. 11;
translated 17 Vin. Abr. 405.
(h) Cited 5 Ves. 828.
(c) Cro. £1. 811. But in that
C2$e it wai held, that a usurpation
upon one tenant in common .should
not prejodice his companion ; as
^iost wtiom this was to be con-
^densd as a nerving of the turn,
altlmugh it was not and could not
be alleged that the presentation
was in right of the turn ; Sir Wii-
liam Etvit V. The Archbishop of
York, Hob. 322.
(d) Margaret, Countest of Rich-
mond V. The Bean of WintUor, T.
16 H. 7, fo.7, 8, pi. IJ.
(e) " But if there be two copar-
ceners, and they agree to present
hy turn, each ut' thero \n truth has
and otlien.
486 CAS£S IN THE KING*8 BE^CH,
18S0. Upon the same ground as if, instead of a disagreement to
^y'^^P present, there had been a partition of the advowwn.]
Exeter Bishop of Salisbury v. Phillips (a) was the case of an agree-
nnd mioth^r ^^^^ j^ present by turns. [Bayley, J. In ^ Just. 364, dis-
Gully agreement to present jointly is put upon the same footing
as an agreement to present by turns. Have you any autho-
rity that where three coparceners agree to present by turns,
usurpation upon one turn shall be deemed usurpation upon
the subsequent turns ?] Here, the plaintiffs are not copar-
ceners. [Bay ley, J. They are assigns of a coparcener.]
The fourth objection is, tliat the declaration does not
allege any non-agreement to present jointly upon the. first
vacancy occurring in the second round of turns, and present-
ation by the eldest sister in the first turn of that round,
could not afiiect the subsequent turns in that round, or
sever the inheritance of coparceners who were not sui juris.
The allegation that Francis Isaac, and Grace his wife, died
so sei^eAofthesame one fourth part of the said Grau of the
advowson, is bad even aft^r verdict. The authority of the
dictum in Keilw, 49, to the contrary, has been since disputed.
Co. Litt. 166 n. £. An advowsoh is entire. lb. 164 b,
169 a; Mirror, 107; « Boll. Abr. Partition, (B), pi. I (6);
^ Inst. 365 'j Corbet's c^e{c); Harris v. Nichols (d). [ffciy-
ley, J. It was not necessary to prove non-agreement.]
Then as to the principal question. The deed must fail
on the face of it: This is ^ voluntary deed. [Lord Tenter-
den, C.J. The jury have found that the deed was not fraudu-
lent.] Upon this plea, as it is framed, the allegation of
fraud and covin raised a question of law only ; White v.
Hussey{e), Doe d. Ottley v. Manmng{f)^ Pulveriqfi v. Pul-
but a moiety of the church; but (a) 1 Salk. 43; Carih. 505.
for that there is but one incumbent, (b) Translated, 16 Vin. Abr. 19-
if either of them be disturbed, she (c) 1 Co. Rep. 87.
shall have a qunre impedit &c. (d) 1 Anders. 63, cited, Cro.
prffisentare idoneam personam ad Eliz. 19.
ecclesiam; for that ihere is but one (c) Prec. in Ch. 14.
rhiirch and one incumbent." (^f) 9 East, 59.
HILARY TERM, X GEO. IV.
tutoft(a). Doe v. Rouiledge {b)^ [Bayley, J. How can it
be cootended that as a point of law, '' services, — 208., — and
other good and valuable considerations/' could not form a
suiScient consideration for this deed of grant. It would be
competent to the plaintiff to shew by evidence what those
other considerations wej^.] There were no other consi-
denoioni. [Bayley^ J. That should have been pleaded,
Parke, J. After verdict, th^y will be presumed.] There can
be no distinction ^ade between a consideration of SOi.
and a consideration of 5s., both are merely nominal. [Lx)rd
Tihterden, C. J. This was a conveyance of the third turn
after the subsisting incumbency. Can we, at this distance of
time, say, that tiie consideration for the sale of this remote
isterest was n^cesMiWfy. insufficient?] The jury have only
found that there was no fraud in fad* [BayUy, J. This
graat would be fraudulent as against the second deed, if
there were no valuable consideration.] Hill v. Bishop
of Exeter {c). It was a mere question of construction.
[Bayley i. In Hill v. Bishop of Exeter^ die deed pur-
ported to have been given in consideration of natural love
and affection; and it was adtnitted on the pleadings that
there was no other consideration except those which were
OD the face of the deed. That was :B good but not a valu"
able consideration* JParke^ J. Here, the jury have found
that there was a valuable consideration. Here, too, the
coosideratioo of the conveyance is stated in the deed to be
for services performed.] The services would not constitute
a valuable consideration, unless they are shewn to have been
such as the party was bound to pay for, [Parke, J. Sup-
pose 501. to have been then dte for services. Bayley^ J. Can
ve say that the master was not bound to pay his steward
for bis services ?] Vernon^ case, 5th Resolution (rf).
W 18 Ves. 84.
(*) Cowp. 705. See Juckion v.
Hff«, 15 Johns. (American) Rep.
263; Jackton v. Garnsey, 16 Johns.
Kcp. 189. Secnlso Sterryw Arden,
1 Johns. Chanc. Rep. 261, in which
the leading English cases are re-
marked upon hy AV^^ C.
(c) 2 Taunt. 09.
{d) 4 Co. Rep. 3 a.
487
1830.
Bishop of
EXETRR
aad another
V.
Gully
and others.
488
18S0.
Bishop of
Exeter
and another
w.
Gully
and othera.
CASES IN THEKINO'S BENCH^
Then as to the errors assigned dehors the record returned
here by the Court of Common Pleas. Matters contained
in collateral records. are specially assigned for error. The
defendant, by pleading in nullo est erratum, instead of deny-
ing those records by pleading nuls tiels recordsi admits their
existence, and refers it to the consideration of the court of
error whether the existence of those records makes the prio-
cipal record erroneous; Rex v. Andrews (a). [Bayltyyi.
There the trial was without authority.] The question whe-
ther the Court below was authorized, either at common law
or by statute, to amend the declaration, or to strike out pleas,
or to grant a new trial, after a nonsuit, was a question of law*
At common law, amendments could only be made during the
same term ; and though under 4 /lnn> c. 16(6), the Court has
a right to grant or refuse leave to plead particular pleas, jet
where leave to plead such pleas has been obtained, and
issue has been joined on those pleas, the Court is functus
officio under the statute, and w^ithout power to vacate that
rule (c). [Lord Tenterden, C.J.I feel great pleasure io read-
ing the report of the proceedings in the Court of Common
Pleas id). It was a most wholesome exercise of authoritj.]
But in quare impedit, the Court has no potoer to grant a
new trial after a nonsuit; a nonsuit being peremptory by the
statute (f). [Lord Tenterdeny C. J. So it is while it stands;
and the party can bring no other action; but it does not
follow that the Court may not, as in the case of a verdid,
in furtherance of justice, set aside the nonsuit, and grant
a new trial.]
(fl) Yelv. 57.
(6) Sect. 4.
(r) As to the jurisdiction of the
Courts over the costs of such pleas,
where some are found for the
plaintitT and some for the defend-
ant, vide Spencer v. Hamerton, 6
Nev. & Mnnn. ^^. That the
judge at nisi prius, where one issue,
which decides the whole action.
has been found, may, of his own
authority and independentlj of an/
consent of parties, discbarge tl*
jury from inquiring into the other
issues, vide ibid. 95 (a), 36.
(rf) Gulfy V. Bhhop of EitUr
and DowUngj 4 Bingh. 5^; ^
Moore & Payne, 105, S. C
(e) Westm.2,(l3£rf«'.l,st.1,)
c. 5.
.HILARY TERMi X GEO. IV.
Mannwgf contrd, was stopped by the Court (n).
Lord Tenter DBN| C.J. — I am clearly of opinion. that
this judgment ought to be affirmed. I believe this to be
the first .time in which a court of error has been asked to
reverse a judgment, on the ground that the Court below has
made rules which ought not to have been made. It is
competent to every superior Court to grant a rule for a new
trial. Whether in this particular case ^uch a rule was
granted on sufficient grounds or not, is a matter into which
we cannot inquire. It must be assumed that sufficient
grounds were laid before the Court of Common Pleas for
granting a new trial. So with respect to the rules for amend-
ing the declaration, and for vacating the rule to plead seve-
ral matters, and imposing upon the defendant the terms of
not pleading more than two pleas (6). The course adopted
hy the Court of Common Pleas, has given me very great
satisfaction. The defendants below had pleaded thirty
pleas, which were quite beside the merits of the case.
Here, both parties claimed under Robert Isaac, and the real
question between them was, whether the first or the second
conveyance made by that person was valid.
In support of the objections to the declaration, it is
said that the plaintiffs below did not shew a title to present
in the turn now claimed, — that they ought to have shewn a
presentation in that turn by themselves, or in those under
whom they claim. Sliireburne v. Hitch (c) was cited in sup-
port of this objection. In that case the declaration alleged
no presentation by any person under whom the plaintiff
claimed. Here, the declaration contains a distinct allega-
tion that Richard Roberts, under whom both parties claimed,
was seised and presented. That presentation by him was
quite sufficient. It is impossible for the person claiming
in the second turn to shew presentation in the first turn by
483
1830.
Bishop of
Exeter
and another
V.
GULLT
and others.
(a) The arguments intended to
Have been used fur the defendants
in error, mny be collecird from the
points stated ante, 470, n., 472, n.
(6) Vide pott, 499, 500,
(f) Ante, 480, 481.
490 CASES IN THE KlNO*S B£NCH,
I830i himself. It is mifficient for him to shew seisin aod presen-
^^ry^^"^^ tation in a party under whom he claims.
Bishop of * , . .
ExBTER Another objection, to the declaration was this^ — thatthere
aod anoUier ^^^ jj^g^ ^^ severance of the interests of the coparceners, it
Gully appearing only that the sisters did not agree to present on
the first vacancy, whereupon the eldest sister presented,
and that between that presentation in the first turn aod
the vacancy at which it would be the turn of the fourth
sister to. present, two usurpations intervened; the effect
of which was to convert the estate of the party who
claimed to present on the fourth turn, into a mere right,
and therefore a possessory ACiion vf^n no longer maintaio-
able« I do not think it necessary to inquire whether a
usurpation would, under thesa circumstances, have had that
effect, for here it does not appear that any usurpation took
place. We are not to presume a wrong. The declaration
states that one Grace WesUottfViherwurds, as in the second
turn^ which was of the said Jane Squire, on the 1 1th July,
1674, presented to the said church, so being vacant, one
Thomas fVestcott, her clerk, who, upon such presentation,
was admitted, instituted, and inducted into the same. If
that presentation was 6y vsurpation^ and tlie eflfect of such
usurpation was as contended, it was for the defendant below
to. prove the usurpation (a). The declaration then states a
presentation as in the third turn, in similar terms. With
respect to the first presentation in the fourth turn, — taking
place after the conveyance by Robert Isaac, under whom
the plaintiff claims, it is alleged that one Sir Nicholas Hoo*
per, on the 8th of November, 1714, as in the fourth turn^
which was of the said Grace Isaac, presented to the church,
so being vacant, one Edward Chichester, as his the said Sir
Nicholas Hooper's clerk, who upon such presentation was
admitted &c. Supposing that to have been. a presentation
by usurpation, yet it being after the 7 ylnne, c. 18, such
usurpation would not affect the title.
(a) To let in such evidence, would have been equally fatal to
the usurpation should have been the title of G. P. Dooflingf under
pleaded. But such a plea, if good, the marriage seulcment of 1692.
. HILARY T£RM, X GEO. IV.
Another objection is, that the plaintiffs below have not
shewn the presentation of the other sisters^ in the first and
second set of turns^ to have been made bj persons having a
right to present. That objection would amount to this^ — that
a party claiming the fourth turn could not recover unless
those persons who presented in the second and third turns,
presented by good title, although it is not to be supposed
that be can have any knowledge whatever of the state of
their title; and it would therefore require him to shew their
title, which, according to all human probability^ he would
be unable to do.
The main point in the case relates to the operation of
the two deeds. The conveyance by Robert Isaac to Letvis
Stevings, is in cofisideratiou of ^5. by Lewis Stevings paid,
and for true and faithful service done unto Isaac, and also
for divers other good and valuable causes and considera-
tions. To this there are two pleas : one is, that Isaac did
not grant, &c. : the second is, that twenty years afterwards,
Isaac being about to marry, executed a deed of settlement,
by which he conveyed the fourth turn for the benefit of his
wife and children. And the plea alleges that the convey*
ance by Isaac to Lewis Stevings was a fraudulent convey-
ance, and void. The issues joined on both these pleas were
found against the party pleading theip. But it is said that
the jury only fqund that there was no fraud in fact, and that
here, on the face of the conveyance, there is fraud in law;
that the Court, looking at the terms of the conveyance and
the considerations therein mentioned, must see that it was
a voluntary conveyance, and consequently void ; that is, vie
roust of necemtif see that the conveyance in 1672, of a fourth
part of the advowson, — the turn of presentation not being to
take effect until after three incumbencies,— was void, — that
the sum of 20s., and the services performed, could not be a
sufficient valuable consideration. The distinction between
good and valuable consideration is this, that a good consi-
deration means a consideration good as between the parties ;
491
1830.
Bishop of
Exeter
and another
V,
Gully
and otberSb
492
1830.
Bishop of
Exeter
and another
V.
Gully
and othera.
CASES IN THE KING 8 BENCH,
but a valuable coosideration makes the conveyance good
against a subsequent purchaser. Without relying oo the
words, ''other good and valuable causes and considerations/'
I am not prepared to say that the sum of $0s., and tlie service
performedi were not in themselves a suflScient valuable coo-
sideration for a right such as this (a), which, according to
the probable duration of human life, could not come to be
exercised for more than half a century (//). That being so,
and the jury hzvmg found that the deed was not frauduleoti
I think we cannot say that it is so.
Bayley, J. — I agree that a quare impedit is a posses-
sory action, and that a presentation must be shewn. Here,
we have the presentation by Richard Roberts^ the common
ancestor; and I think that it would have been suflScient to
state the presentation made by the eldest sister, without
shewing the presentation by Roberts, because if Roberts was
seised in fee, but had no possession, and the advowson had
descended from him to his four daughters, the presentation
by the eldest would have vested the right in all (c) ; which
distinguishes this case from Shireburne v. Hitch. It has
(a) Ace. per GoMtlee^ J., 5
Bingh. 175.
(Jb) The price at which W, S,
GuUy, in 1814, hoaght the pre-
sentation at the then next avoid-
ance, was 3000/., of which 2000/.
was paid down, and lOOO/. was
covenanted to be paid upon the
induction of the presentee of the
purchaser. The church became
vacant in 1825; the induction
took place in 1830. Nothing of
this, however, appeared on the re-
cord ; for though profert was made
of the deed of grant of 1814, no
over was craved of it ; and though,
as the pleadings originalljr stood,
the defendant G. P. DowUng
stated, in his 30th plea, that the
deed of 1814 was not the deed of
Joseph Davict and in his 31st plea
that Joseph Davie did not grant by
the deed, (vide ante^ 464, n.) upon
which pleas issues were joined, the
plaintiflls were nonsuited before
they came to that part of their
case, and upon the second trial the
grant from Joseph Davie to IT. &
Gtdfy was admitted by the defeud-
ants' pleas being restricted to the
deed of 1673. All that the court
of error could know on the subject
of value therefore would be, that
600/. had been found hj the jury
to be the annual value in 1825.
Ante, 469.
(c) Sed vide post, 496.
HILARY TERM, X GEO. IV.
been insisted that the right of presentation was destroyed,
or its continuity interrupted, by two usurpations which took
place in 16*74. In the first place, we are not at liberty to
say that there has been any usurpation. When coparceners
present separately, a separate right accrues to each copar-
cener, in her own respective turn, and they become to a cer-
tain degree strangers. The fourth coparcener may not know
in what right persons have presented to the second or third
turn. That is a matter with which she, who is entitled in
the fourth turn only, has no concern. It cannot affect her.
I agree that the 7 Afme^ c. 18, is not retrospective; but
in order to ascertain whether the presentation in 1674 was
a presentation by usurpation, (and if it was so, the fact
ought to have been pleaded (a),) that would displace the other
coparceners, I must look to the authorities. Lord Coke
sajs(6), '' By the common law, if an advowson descend to
divers coparceners, if they cannot agree to present, the eldest
sister shall have the first turn, and the second the second turn,
et sic de caeteris, every one in turn according to seniority; and
this privilege extends not only to their heirs, but to the seve-
ral assignees, whether he hath (c) the estate of them by con-
veyance, or by act in law, as tenant by the curtesy, he shall
have the same privilege by presenting in turn as the sisters
had. Therefore albeit the, coparceners do make composition
to preseut by turn, this being no more than the law doth
appoint, expressio eorum quae tacite insunt nihil operatur;
therefore they remain coparceners of the advowson, and the
inheritance of the advowson is not divided ; and notwithstand-
ing the composition they may join in a quare impedit, if any
itranger usurps in the turn of any of them; and the sole
presentation out of her turn did not put her sister out of
possession in respect of the privity of estate, no more than
if one coparcener taketh the whole of the profits. If one
joint-tenant present alone, this doth not put the other out of
possession, in respect of the unity of the title; but the ordi-
493
1830.
Bishop of
Exeter
ftnd another
V.
Gully
and others.
(a) Tide ante, 485 {n), {h) S Inst. 365. (r) i. e. the^ have.
494 CAS£S IN THE KING*S BENCH,
1830. r^ary might have refused his presentee, as he might the pre-
^^'y^^^ sentee of one tenant in cominoni in respect of some varying
Exeter opinions in old books; therefore this act doth declare the
and miother j^^^ ^^ i,^^^ j^ appeareth. This law doth extend to usurps-
GuLLT tions by one coparcener upon another, as well before parti-
fin o ers. ^j^^ ^^ after." This was considered as the rule of law io
Barker v. The Bishop of London (a).
Before 17099 (in which year the statute of Anne took
effect,) nothing had occurred capable of affecting the right
of the fourth coparcener. The vacancy in that coparcener's
turn did not arise till 1714- The statute was then in full
operation, and it seems clearly to apply to the present case.
The language of the statute is *' that no usurpation upon auy
avoidance in any church, vicarage, or other ecclesiastical
promotion, shall displace the estate or interest of any person
entitled to the advowson or patronage thereof, or turn it to
a right ; but he or she that would have had a right if no
usurpation had been, may present, or maintain his or her
quare iropedit, upon the next or any other avoidance, if dis-
turbed, notwithstanding such usurpation ; and if cvparcentn
or joint-tenants or tenants in common be seised of any
estate of inheritance in the advowson of any church &c., and
a partition is or shall be made between them to present by
turns, that thereupon every one shall be taken and adjudged
to be seised of his or her separate part of the advowson to
present in his or her turn." If, therefore, at the fourth
turn, when a vacancy occurred, there was a usurpation on
the turn claimed by the plaintiff, that would not displace
the estate or interest, or turn it to a right, but would leave
it as it was, except with reference to that turn ; and when
a fourth turn again occurred, the party entitled in that turn
might exercise his right of presentation. In this case the
period at which that fourth. turn again occurs has now
arrived. The plaintiffs below therefore have shewn a pos*
session by presentation in the person under whom they
(a) VVilles, 659, and 1 H. Bla. 412.
HILARY TERM, X GEO. IV.
claim ; because although there should have been one usur-
patioo upon the fourth turn, the right as to future turns was
protected by the statute of Anne.
Another point made is, — that the deed-poll of 1672 is, as
matter of Icno, fraudulent and void. This deed purports to
be a grant in consideration of 20s. and of faithful service
performed, and of divers other good and valuable causes
and. considerations; and i^t/mer v. Gott(a) is an authority
for saying that in such a case a party is entitled to shew, as
matter of fact, the existence of other considerations besides
those which are expressed in the deed. The defendant be*
low pleaded that this was a fraudulent deed; and if there
were no consideration for it, — if the 20i. was not paid, and
no services were rendered, and there were no other conside-
rations of a valuable nature, — the deed would be fraudulent;
bat the jury having found that the deed was not fraudulent,
we cannot, as matter of law, say that it is fraudulent.
LiTTLBDALE, J. — The plaintiffs below have clearly
shewn a title, by descent and by conveyance, to the undi«
vided fourth part of thir advowson, in the party who granted
the next presentation to their testator; and the question is,
whether they, being grantees under the owner of that undi-
vided fourth part, can maintain quare impedit.
It is first objected that the declaration contains! no allega-
tion of a presentation in the fourth turn ; but I apprehend
(«) Brown^ P. C. l0t edUion,
roJ.vii. 70; 2d edition, vol.iv. 230.
Whatever is wanting to shew
^bat the consideration is, and from
»bom it moves, may be snpplied by
etidence dehors the deed, provided
such evidence does not contradict
the deed; Hartopp v. Hartoppf 17
Ves. 183, 192; Peacock v. Monk,
2 Ves. sen. 128. Thus, where a
conveyance purports to be made
^in consideriition of esteem for A*,
and for diven other good cmuex and
comideratioJM^ it may be shewn
that the deed was executed in con-
sideration of an intended marriage ;
TuU V. Farktty Mood. & Malk.
472. And see iler v. Scdfliinondlpn,
3T.R. 474.
But where one consideration
only is mentioned, and it is not
said also ** and for other consider-
ations/' no other consideration can
be shewn.
495
1880.
Bishop of
Exeter
and another
v.
Gully
and others.
496
1830.
Bishop of
£XETER
and another
V.
GULLT
and others.
CASES IN THE KING S BENCH,
that it 18 quite sufficient to shew a preseutation by the owner
of the entire advowson. In Comym's Digest, tit. P leader ^
(3 1 5.) it is laid down, that " the plaintiff in quare impedit
ought always to allege a presentment by himself or ancestor,
or some other under M'hom he claims (a) ;" and afterwards,
*' and regularly a presentment ought to be alleged to have
been by him who has the inheritance (by In the case
there cited the plaintiffs declared as coheirs of Lord Lath
mer, '' and it was moved that the declaration was insuffi-
cient; for the plaintiffs in. their declaration entitled them-
selves,— that Lord Lathner was seised of the advowson in
fee, and granted the next avoidance to Dean Carew, and
afterwards the church being void, Dean Carew presented''
It would have been, no doubt, sufficient to lay a presenta-
tion in Lord Latimer; but the allegation was held sufficient,
because the presentation was shewn to be in the right and
title of the grantor. Suppose a quare impedit brought in
1714, after the third presentation, for theirs/ turn of the
fourth coparcener, I know no other way in which presenta-
tion cou/d have been alleged than in the person who had been
once seised of the entirety (c). It would have been clearly
sufficient for the owner of the fourth part to shew that the
owner of the fee had presented, and that the other copar-
ceners had presented in their turns. That does not differ
from. the present case.- But it is said that there have been
several usurpations, and that the plaintiff, therefore, has now
a mere right. With regard to the second and third presen-
tations,— which were in J 674, — ^it does not appear that they
were usurpations, — that they were not made by persons re-
gularly entitled as coparceners ; and although not by the co-
parceners themselves, they may have been made by persons
claiming under them ; and if the defendant bad meant to
(a) Citing Vaughan, U^^Tufton
V. Temple,) and 57, (Rex v. Bishop
of Worcester),
(b) Citing the Countess of Nor-
thumberland's case, 5 Co. Rep.
97 b; also reported in Cro. £1.518,
Sir F. Moore, 455, 2 Anders. 48.
(a) Vide ante, 499.
HILARY TERM, X GEO. IV.
insist that the persons who made the second and third
presentations had no right, he ought to have alleged that
those presentations were made by usurpation, upon which
allegations the plaintiff might have taken issue. It seems
to me quite clear upon this record, that these presentations
caonot be treated as usurpations.
The presentation in the fourth turn was after the statute
of Anne.
The question then is, whether the grant contained in the
deed-poll of 1672, is to be considered fraudulent and void
as against purchasers. That grant purports. to be made in
coBsideration of a nominal (a) sum of money, and also in
consideration of service and for .divers other good and valu<-
able considerations. The defendant did not demur on the
ground that these considerations were not stated. The
matter went to a jury, who found that the deed was made
for a good and valuable consideration. That finding cannot
DOW be questioned. I think, therefore, that the judgment
ought to be afiirmed.
497
18S0.
Bishop of
Exeter
and another
V.
Golly
ond others.
Parke J. — This appears to me to be a very clear case.
Numerous objections have been taken to the form of the
declaration^ which resolve themselves ultimately into very
few.
The first objection is, that the declaration contains no
all^ation that anyone presented in right of the fourth turn;
and much reliance was placed on Shireburne v. Hitch. From .
the marginal note of that case, it would appear that some
such proposition was laid down. But the case of Shire*
hume V. Hitch is distinguishable from the present upon two
groundf. In that case there was no allegation that any
person had been seised of the entire advowson, .or of any
(a) Notwithstauding the proba-
bilitj that the right of presentation
m the then next turn would not
conie to be exercised for '' half a
ceotarj," (ante, 487,) 20*. could
lordly be considered as any thing
VOL. V.
more than a nominal sum, even in
1672, with reference to the fourth
part of the advowson in fee of a
church, of which the (minimum)
value in 1896 was assessed at
600/. a year, {anttt 469.)
K K
498 CASES IK THS KINo's BENCH^
1830. right or interest in the advowson, so as to have that seisia
Bisho of ^^^^ ^^^ '^^ requiresi and which is analogous to the taking
Exeter of esplees in a writ of right or other real actions. There,
anot er ^^ person previonsly seised of the advowson, had presented
GuLtT Here, the declaration contains two averments; first, that the
party seised in fee of the advowson presented ; secondly, that
the eldest coparcener also on non*agreeinent presented.
The next objection proceeds on the supposition- that tht
second and third presentations were by usurpation, and many
authorities were cited to shew the effect of a presentation
by usurpation. The foundation of this objection fails, for
upon this record we cannot take it that any of those presen*
tations were 1^ usurpation. It is said| that the first pre-
sentation in die fourth turn must be taken to have been by
usurpation, inasmuch as an allegation to that effect in the
second plea (a) is not traversed. Assuming this to be so(i)y
that usurpation was after 7 Ann. c. 18(c), and therefoie can
have no effect in displacing the possessory title, upon which
the writ of quare impedit is founded. •
A third objection is, that although non-agreement in pre*
sentation may operate as a partition of the advoWson for a
number of turns equal to the number of coperceners, yet it
cannot have that effect afttncariit and tbat it ought to
have appeared that after the fourtli turn, the coparceoen
ugam disagreed. For this no authority has been cited; and
the effect of dUagreemeni by coparceners, as Lord Coke
states (cJ), is the same as if they had made pariUian of the
advowson; and the effect of that, as he also states (e),
would be to give to each coparcener an interest in an tin*
divided portion of the advowson, — ^which must continue until
altered by all the parties by some fresh deed or sotne new
agreement.
The next objection is disposed of by the verdict, the jury
having found that the deed-poll of 1672, which imported
(a) Ante, 464, 405. of quare impedit in S & 4 Wdl. 4,
(6) Sed vide ante, 478 (b). c. S7, ss. 80, 31, 39, 33, 34.
(c) And see the proTision9 as to (d) 2 lost. 365; anie, 493.
the times of limitation in actions (e) Co. Dtt. 18a.
HILARY TERM, X GEO, TV. 499
on the face of it to be for money and for service performed, 1830.
(which may be a valuable consideration,) and for other ^^^^r
valuable causes and considerations besidesj was a deed made Exeteb
for valuable considerations. We cannot upon a writ of error ^^^ another
lay, that that finding of the jury was wrong. Gully
The other objections relate entirely to collateral matters ^^ ®"'
which were disposed of upon motion in the Court of Com-
mon Pleas. This is the first time in which any objection
arising out of collateral matters has been taken on a writ of
error, and probably it will be the last.
Judgment afihtned (a).
(a) The following application had been uDsuccessfuUy made to the The Coart of
Court of Chancery. Chancery will
Lincoln's Inn Hall, Saturday, 25 July, 1829. "f d?mUiation "*
Mr. Seijt. Edward Lawes moved upon notice " that his Majesty's requiring one
writ might be issued out of and under the seal of the High Court of 9^^^ sapcrior
Chanceiy, directed to the Right Hon. Sir N, C, Tindal, knt. Lord Chief h^^v^ a '
Justice of his Majesty's Court of Common Bench at Westminster, requir- judgment upon
ingthe said Chief Justice to send the residue of the record andproceu T'hich error
in a certain action of quare impedit, lately depending in that Court^ ^ ceitKv the
whereupon a writ of error has been brought, and which is now depend- residue of the
iDg in his Majesty's Court of King's Bench at Westminster, wherein Wil- record and pro-
Hem Lord Bishop of Exeter^ and George Pyhe Dowling, are plaintiffs gestlonsupport-
io error, and Jenefer Gully, Jeremiah Trist, John Hearle TremaynCf and ed by affidayit,
Tkmoi Graham, are defendants in error, and all other things touching Jj*** *"*^^ Court
the same now remaining of record in the same Court of the Bench." ^n original re-
Ihis motion was founded upon an affidavit made by the agent of the cord existing in
plaintiffe in error, in which the following facts were stated: — the cause, for
''That the writ of error was brought upon a judgment given by the Court returned has
tit Common Pleas in an action of quare impedit, wherein the plaintiffs in been substituted
error were defendants, and the defendants in error were plaintiffs, which }^ '°*^^ d°"^i
action was commenced in the early part of 1826, and first tried before ordered to be
Park, J., at the Devon Spring Assizes in 1827, on a nisi prius record made by rule of
coDtainiDg various issues of feet, chiefly on facts stated in the declara- •n^Court.
tion as constituting the title of defendants in error, and several issues in j^^^ ^ o^ct-
law triable by records, and one on a demurrer to the replication; and ing to such
on that trial the defendants in error were nonsuited, the judge being of "mendments is
opinion that they had failed in proving that one John Stevingi devised |,||| ^f ezcep-
a purparty of the advowson in question, as stated in the declaration ; tions.
which question turned on a point of law, whether an advowson in gross
passes in a will under the word '< tenements ;" and the Court of Com-
mon Pleas, in the following Trinity term, made a rule absolute for
KK 2
500
18S0.
Bishop of
Exeter
and another
GULLT
and others.
GASES IN THE KING S BENCH,
setting aside the nonsuit and granting a new trial, on the grotiod that
the judge*s opinion was wrong in point of law, and the Court aAerwanb
made various rules for giving the defendants in error leave to alter theii
declaration in the statement of their title in many material respects, on
which issues had been before taken and joined, and made other rales
compelling the plainti£Fin error, G. P. Dov/tng, to plead de novo, and
refusing him leave to plead so as to enable him to take the opinion of a
Court of Error on the construction of the devise, or to plead any other
of the pleas on which issues had been before joined, except two, whidi
were confined to one point, namely, the validity or efficacy of a certain
alleged deed of grant, of 6th April, 1672, stated in the declaration, and
that a new record of Nisi Prius was made, and the cause tried again at
the last Devonshire Summer Assizes before the same learned judge,
when a vexdict was given for the defendants in error.
That all the said matters will appear from the court-rolls, issue-rolls,
record of nisi prius, panels of jurors, and postea or entry of nonsuit, and
writs of venire &cias and habeas corpora juratorum, relating to the Bist
trial, and the subsequent rules of Court and affidavits filed of record in the
Common Pleas, which, or some of which, this deponent is advised fay the
counsel of the said Geo. Fyke Bowling are erroneous in point of
law, and material to be certified to tlie Court of King's Bench on the
writ of error there now depending, but that the record certified therpoo
contains the last declaration, and the pleadings and proceedings thereon
only; that for the obtaining a reversal of the said judgment for divers
errors in the body of the record so certified, as well as for other errors of
the Court of Common Pleas in not giving judgment on the said non-
suit, and in the subsequent rules and proceedings of the said Court abo?e
suggested, errors were assigned and diminution alleged on the writ of
error in the Court of King's Bench, in Hilary term last, and a writ of
certiorari awarded and issued thereupon, directed to the Right Hon.
Sir William Draper Best, krt'ighij then His Majesty's Chief Justice of
the Court of Common Pleas at Westminster, to certify to our lord the
king certain court-rolls and issue-rolls, then and now remaining of re-
cord in the same Court in the cause, and also a certain record of nisi
prius, with a certain postea or entry of nonsuit thereon, and certain
writs of venire facias and habeas corpora juratorum in the same cause,
and all things belonging to the said record of nisi prius, and the pro-
ceedings had thereupon, or otherwise relating to the matter so assigned
for error, in his custody or power, — ^which writ of certiorari was so
issued out of and under the seal of the Court of King's Bench on tbe
4th of May last.
That the writ of certiorari was by this deponent delivered to and left
with Mr. Charles Harden, then the principal clerk of the said Lord Chief
Justice, at his chambers in Serjeant's Inn, Chancery Lane, on the 5ih of
the said month of May, when this deponent pointed out to Mr. Harden
the several records required by the writ to be certified, and informed
him what officers bad the custody of them.
. HILARY TERM, X GEO. IV.
Tbat another writ of certiorari was awarded and issued on the said
asngnment of errors and allegation of diminution^ directed to George
Wailingion, esq., Henty Beliwood Ray^ esq., and Thomas Hudton,e9q.,
prothoontaries of the Courtof Common Pleas, and to George Griffith, esq.,
Jonathan Eemktt^ esq., and John Henry Cancelhr^ esq., secondaries, to
certify to our said lord the king certain rules and orders of the Court of
ConuDon Pleas in the said cause, touching the matters assigned for error
therein as aforesaid, together with all affidavits and things relating
thereto filed of record, in the custody or power of the said prothonotaries
and secondaries, or any of them j which last-mentioned writ of certiorari
vas ddiTered to and left with Mr. Sherwood, the principal clerk to the
said prothonotaries, on the 4tfa of May last, at the prothonotaries* office
in the Inner Temple, London.
That the defendants in error having given rules in the Court of King's
Beoch to return the said certiorari, this deponent applied to the officers
whose duty he conceived it was to forward the preparing of the copies
of the several documents required to be certified, respecting the same,
when this deponent was informed by such officers that the said late Lord
Chief Justice had received the said first-mentioned writ of certiorari.
That a rule for returning the same having been given and expired, and
00 return having been made to either of the said writs of certiorari, this,
deponent, on Friday 29th May last, waited upon the said late Lord Chief
Justice, at bis chambers in Serjeants' Inn aforesaid, and respectfully
requested of his lordship to make a return to the said first-mentioned writ
of certiorari ; but his lordship was pleased to declare to this deponent
that he should not make any return to the writ.
That on application to the said Jonathan Hewlett to ascertain if it
was intended to make a return to the said other writ of certiorari, this
deponent was informed that such. return was intended to be made; and
being advised by the counsel of the said George Pyke Bowling that it
was material and necessary to procure the said first^mentioned writ of
certiorari directed to the said Lord Chief Justice to be returned in sup-
port of the said assignment of errors and allegation of diminution, this
deponent instructed the said counsel to move the said Court of King's
Bench for that purpose, and an application was accordingly made to the
said Court on Uie part of the said G. P. Dowling^ on or about the 30th
May last, being the last day but one of the last term, for an alias wrrit of
certiorari, directed to the said late Lord Chief Justice, but the said
Court did not then grant a rule for such alias writ.
That he hath not yet been able to procure any return to be made to
either of die said writs of certiorari, the prothonotaries and secondaries
also having since tefus^ to make 4ny returns to the said writ of certio-
nri so directed to and served on them as aforesaid.
That since last term Sir NicoUt Conyngham Itndal, knight, hath
been appointed and taken his seat as Lord Chief Justice of the said
Court of Common Pleas, and that no motion or application hath at any
time been made by or on the part of the said defendants in error to
501
1830.
Bishop of
Exeter
and another
v.
GULLT
and others.
502
laso.
Bishop of
£XETBR
and aooiher
V.
GuLLr
and otlien.
CASES IN THE KINO 8 BENCH^
quaah or let'aside or vacate the said writa of oertiorari or eithar of them,
and that all the records and matters stated in the aaid assignnoitQf
erron and allegation of diminution eaist in fiioty and are therein tnly
and bonft fide stated, and he is advised by the coansel of the wid
George Pyhe BowUngy that it may be very important to the inteiests of
the said G. P. DomHng that the several matters and things allesed ai
diminution of the said record now before the said Court of King's Beocb,
or such of them as he may be by law entitled to, should be certified (0
the said Court.
Hiat since the applications so made to the said Court of King's Bendi
in last term as aforesaid, the said defendants in error have pleaded is
nullo est erratum in this cause, and have moved, and obtained a rale,
for a concilium, and have set down the said cause for argument
That a renewed application was, on Friday 1st July instant, made to
the Court of King's Bench for leave to issue other writs of certiorari,
but the said Court of King's Bench refused to grant permission to istoe
either of the writs of certiorari prayed.
Hiat on the 8th day of July instant a motion was made by eouDiel
on ,the part of the said George Pyke Dov/iii^, before the Right Hoo«
the Lord High Chancellor of Great Britain, for leave to issue out of
and under the seal of thii Honourable Court, His Majesty's writ of diiu-
nution, directed to the Bight Hon. the Lord Chief Justice of Hii Mi-
jeaty's Court of Common Pleas, commanding the said Chief Justice (o
send into this Honourable Court, under his seal, distinctly and plainly,
the residue of the record and process of a plaint which was in the said
Court of Common Pleas before the Right Hon. Sir WiUiam Ihoftr
Best, knight, late Chief Justice of the same Court, and his associates, jas-
tices of the said Court, between the said Jenejkr Gulfy^ &&, phuntifi,
and the said WiUiam Lord BUhep of Exeter, and the said George P^
Jhwling, defendants, in a plea of quare impedit, for not permittmg the
said Jtnrfer Gully, &c. to present a fit person tn the rectory and paiiih
church of Berrynarber in the county of Devon, which was void and in the
gift of the said Jentfer Gully, &c. and also all other things touching then
which, as it was said, remained in the said Court of C. P. to be sent
That upon such motion being made, the Lord Chancellor was pleased
to state that he considered it to be quite of course that the said writ of
diminution should issue, and directed application to be made to (be
proper officer of the said Court, and stated that if he made any difficulty
about it, or refused to issue the same^ then thai the counsel fbr the said
George Fyke DaetUug was to be at liberty to apply tpeoisiUy to (his
Honourable Court
That in consequence thereof this deponent did, on Hiundi^y the 9lh
day of July instant, apply to Mr. Jppleyard, who b or acts as conitor id
this Hon0urabl6 Court for the county of Devon, in which the said paridi
of Berrynarber is situate, for the said writ of diminution, and at the
same time this deponent acquainted him with what had passed in this
Honourable Court upon the aforesaid inotioD, and requested him te
HILART TERM, X GEO. IV.
iwie the nid wrk of dimhratioo, which die said Mr. JppUyard did not
theo object' to do, but at he had never had occasion to iMue such a writ
in his pnotice as a cursitor, he requested deponent to bring to him the
dnk or form of the said writ.
That in consequence of snch request tliis deponent did get the form of
rach writ dmwn by the counsel of the said 6. P. Damlingf and on Friday
the lOih day of July instant delivered a fair copy of the said form so
drawn by the counsel for the said G. P« DowUng to Mr. Appieyardp
and Again requested him to issue the said writ, but the said Mr. Apple'
jfortf at that time declined to issue the said writ until he had an oppo^
tunity of consulting with the secretary of the Lord Chancellor thereon,
io oonsequenee of the inftequency of such writs being issued, and pro*
miied this deponent that he would take an early opportunity of seeing the
nid sscntary upon the subject, and of informing this deponent thereof.
That the said Mr. AppUyard hath since caused a message to be coo-
veyed to deponent that ho could not issue the said writ until an order
ferthat purpose was obtained from the Right Honourable the Lord
Chancellor.
That a true copy of the errors assigned and dimfaiution alleged by
the said G. P. Dsv/Jn^,in the said Court of King's Bench, in tbe said writ
of error, so Ihr as relates to the motion intended to be made before the
Lord Chancellor, on Saturday the 25th day of July insUnt, is set forth
in the eihibil or paper writing, marked with the letter A., produced and
shewn to this deponent at the time of swearing this his afiidavit."
603
1880.
Bishop of
£XBT£R
and another
.«.
GvhLX
and otben;
£ Lames, Seijt, in snpport of the motion. The writ for which the
pisktiib in error now apply is to be found in the Register. It is
trae, as was thrown out by the Court upon the former application,
that DO precedent for such a motion can be referred to. The reason is
obvious, namely, that the issuing of such a writ has been considered a
mttter of course, and it might issue without motion, and no case can
be foand in which such a writ has been denied. The usual mode has
been to take the writ from the office as a matter of course. It was»
however, thought more decorous to apply to the Court* The only
qiMfltion now is, whether the writ shall be refbsed or not. The form of
the writ was sent to the office with no other deviation from that in the
ngister than the nature of the action rendered necessary. When the
spplication was made In the King's Bench, the Court said, ** You ought
to lUege diminution.'' I said, ** I had alleged diminution," and I now
spply fof the writ moved for in the Court of King's Bench. [Lord
JjfMmnifC. The writ prayed for recites that it is skeem to the king that
Mme part of fiie leeord and process, and certain other things touching the
Mne^ still remain in the Court below. You are bound to satisfy me
that the proceedings are part of the record.] From the alteration which
has been made in the record, the plaintiflT in error is prevented from
^iog (he opinion of the Court of King's Bench as to the construction
of <he devise-. Error is assignable upon every part of the record, 1 1
504 CASES IN THE KING*8 BENCH,
1830. ^' ^^- 3^» ^^' ^^ ^^^ ^^^ '"'^y ^ ^<^^ ^® ^^^ '^^
vi^s/i^^ ought to be returoed. Here are two declarations and two rolls upon
Bishop of the same original. In Style, 292, it was held that the imparianoe roll
Exeter ought to be returned as part of the record. [Lord Lyndhuntf C. Hie
and another ij^parfance roll and the plea roll are part of the same recotd.] Hie
Gu I LY plaintiffs in error are entitled to have the two declaiationsy and the pleu,
and others. a°<1 ^^ issue roll, and the nisi prius record; 2 Nels. Abr. Err0r,(D);
10 Vin. Abr. Error, (I c. 4.)
The documents which it is the object of the present motion to get
returned, are records, and ought to be certified. The plaintiff in enor
wishes to raise the point, whether the Court has authority to grant a new
trial upon a point of law. Th^ law is not altered by the mere drcnm-
stance of there not having been any occasion to resort to the particolv
remedy for a considerable length of time* Thus the Courts hare lately
recognized the right of the subject to insist upon wager of law, Xiii^ r.
William^ 4 Dowi. & Ryl. 3 ; and wager of battle, Askfotd v. TkamUm, 1
Bam. & Alders. 405. [-^rd Lyndhurst, C Can you cite a case in ivhidh
a Court of Error has inquired into the interlocutory proceedings of the
Court below ?} In Greene v. Cole, 2 Saund. S52, the granting of a new
trial was expressly assigned as error. [Lord Lyndhurstf C. Tbtt was
the case of an inferior Court.] In the Palace Court, which is an iDfi^
nor Court, it is a matter of every day's occurrence. In 1 Jicv. SIC, it
was said that the proper course was to return the two verdicts in the
first instance, because being an inferior Court dimnution could not be
alleged. If, therefore, it had not been an inferior Courts it follows that
the omission to return the first verdict upon the writ of error might
have been alleged as diminution. [Lord Lyndkurst^ C. They were
bound to return the two verdicts, and they had no power to grant a new
trial.] In Lovedays case, 8 Co. Rep. 65 6. error was assigned upon
the granting a venire de novo. The rules of the Court are often ai
important as its judgments. How is a nonsuit in quaro impedit peremp-
tory, if it can be set aside at the pleasure of the Court? A nonsuit in
quare impedit is a bar to another action. [Lord Lyndhursi^ C Why
should not the Court set aside a nonsuit or a verdict in quare impedit,
as in any other action? A learned judge says at nisi prius ^ that the
action cannot be maintained," and he turns out to be mistaken. Cannot
the Court set this right? A nonsuit is mere machinery in modern times.
The Court of King's Bench, upon the application for the alias certioian,
according to the note which has been furnished me by Mr. MmKKȤi
thought that the granting of such a writ would introduce great oonfii-
sion. The amended record is not, in fact, a second record, but a is^
etUuted record. The Court of Common Pleas had power to amend the
record upon a summary application.] Where is the power of a Cooit
of common law to substitute one record for another? [Lord lysd-
hunt, C. They have power to grant leave to the parties to amend.] If
the plaintiffs below had any objection to make to the pleas, they sbonld
have shewn cause against the rule to plead several natters. - Ihts writ
HILARY TERM, X GEO. IV.
biods the Chief Justice to certify the original record. [Lord I^d-
kuntj C. The effect would be to carry before the Court of Error all
the mass of interlocutory matter. Have you ever seen an example of
fuch a writ? llie Court of Common Pleas assume the right to make
these rules, and act upon it. If you thought they had not the right, you
might have tendered a bUi of txceptimt. In Grune v. CoUy the only
case which has been referred to upon this point, a new trial was granted
by an inftrior Court which had no power to grant one.]
limmingf conttk. In Greene v. Cole a venire de novo was granted, which
is very distinguishable from a new trial. The award of a venire de novo
is always founded upon some irregularity or miscarriage apparent upon
the hot of the record ; whereas a rule for a new trial is an interpositioU
by the Court in the discretionary exercise of its equitable jurisdiction,
for the purpose of relieving the party against a latent injustice. After
a new trial has been had, the record is in the same state as if no trial
except the last had taken place, whereas, upon a venire de novo, the
iact of the first trial and the circumstances under which that trial be-
came nugatory, and rendered a second trial not a matter of ditcretion,
btttofnj^A^ necessarily appear on the record. When that distinction
is adverted to, Greene ▼. Cole will be found to have no bearing upon
the present case.
Lamet^ Serjt A venire de novo is always awarded upon a new trial.
[Lord L^ndkurstf C. I think no ground has been laid to induce me to
interpose and give any special direction to the officer.] In MelUsh v.
Rkhardtonf 7 Bam. & Cressw. 819, the Court of King's Bench granted
a writ of certiorari to bring up rules from the Common Pleas for the
purpose of putting them on the record in the King's Bench. [Lord
I^fndkwttf C. In Melluk v. Richardson rules had been granted in the
Common Pleas for amending the record, which had been sent up to the
King's Bench without those amendments. The Court of King's Bench
directed these rules to be sent up, for the purpose of enabling them to
make corresponding amendments in the King's Bench. {Vide 1 Clark
& Finn. 244.)] Office copies of rules are received in evidence, which
proves that they are records. The plaintiffs in error wish to have an ofH
portanity of trying whether the Court has the power to grant a new trial
in quare imped it, and whether, after granting leave to plead several
matters, they have power to withdraw that leave, and make such rules
tf they have done, without the party's having any power of appeal.
Lord Ltsdbubst, C-^My judgment is, that the plaintiffs in error
have not made out a case for having this writ. After an amend-*
ment is made, the amended record is the record. No sufficient ground
has been laid for my interference^ and I give no direction on the
subject The Court of King's Bench have refused an application, whiclr
though not for a writ of diminution, was similar in effect, and was
movtd for on the same grounds, and I entirely concur with that Court
605
1830.
Bishop of
Exeter
nnd another
Gully
fln(l others*
608 CA8» IN THE KlVO'f B£NCH,
1830. in thinking that suoh a coane would iotiodiice the gieatait covhaaa io
^■^'w'^^ the administration of juitioa.
Bishop of Eule refilled*
and another ^^^ ^^ ooneoit being obtained at the first irial upon the lecord u
GuLLT i^ originally stood, K Ltua, Serjt«y applied for a writ to the Biihop to
yuid o(hen, admit the defendant under the provision in Westm. 3t c. 30, " excepto
... quod assises ultinwe ptsesenUitionis et inquisitiones super quare impedit
justices of assise ^^tei^incDtur in proprio comitatu coram uno justiciario de banco et uno
to giTe j ttdg- milite» ad certos tamen diem et locum in banoo stfttutoe, sire deleadeiu
inentBnd Bwaid ^Qaentiat, sive non ; et ibi tiatim reddatur judicium,
the defendant ^® application was heard and discussed at the judges' lodgiogi at
upon a nonsuit £xeter, before Parkf J* and LitiUdakt J*, the former (as obserred by
in^quare impe- the learned judges) being jas/icuirJM de bmco and both being milUes.
B.X«0n^8erjt» for the defendant. In quare impedit a nonsuit ii pe*
remptoryand finals Com. Dig. tit. PUader{3 1 11). The statute diredi
that judgment shall be given immediately; and Lord Cofte^ in can*
menting upon this statntOy says, *' And this brandi giving to the justioM
of nisi prius power to give judgment, they have thereby power, inda*
dedly as incident, given to award execution, that is, a writ to lbs
bishop; but that writ is not returnable." S Inst 424. .
Bajfy and Mankingf ooattk, Tliough the judges are oMikariMeihy
Westm. 9, c. 30, at nisi prius to pronounce judgment and award a writ
to the bishop, they are merely placed in the situation of the Court above,
and are not required to deprive that Court of the opporttini^ of ooo*
sidering the eorreotnees of the Tiew of the law taken at the trial, and ths
propriety of the verdict or nonsuit. That statute has passed more than
500 years, and no instanoe is shewn in which the diseretionaiy power
it gives has been acted upon, though eases, both of verdicts and (tf noo-
suits, must often have occurred in which the titio of the defendant to tbe
presentation has been perfectly dear. Here, on the oontraiy, the plain-
tifis have been nonsuited on a point which at least is sufficiently doubt*
ful to require the examination of the Court out of which the record oones;
for though a nMmii in quare impedit is pertmptorjfy it is not more to
than a fterditi. No evidence has been given in support of the title which
the defendant has thought proper to set out on tho record, but whkb
the plaintifis have had no opportunity of controverting. {Ante, 4f 8((»
It may be difficult to say what is meant in the books by the defendsot*!
making title, yet whilst a defendant's title rests upon his own simple
unsupported aesettloili the Court sdll febt interfere in this eitmefdiiisiy
The learned judges thdught that this was not a case in wbish tbaf
%ere called upou to etercise the p^wer given by the statdtCi
' Writrefhsed.
HILARY TBBMi », QJiQ. IV. fi07
18S0.
The King v. Robert P£Asfi(a).
iHE defendoqt was convicted, b; a justice of the p^cc^ A timber-tner-
of having, on the 6tb day of November, IMS. within the chant, residing
,.,,.. * Jt . • at the town of
extni-paiochial limits of the castle of Nottingham, as a a., and send-
hawker, exposed to sale c^rtaiq goods, wares and mercbanr fro„J*5he*town
diies, to wit, a quantity of timber, without having any of B. to the
licence so to do, contrary to the form of the statute, whereby ^h!^^^ is'
the defendant had forfeited for the said offence the sum of >old by auc-
10/. At the Epiphany setsionsi 1889, the Court of Quarter hawker re-
Sessions quashed this order, subject to the opinion of this q^i^ng a
^ 'J r licence under
Court upon the following case ;--^ 50 Geo. 3,
The appellant is a timber-merchant, residing and carrying ^* ^' aithougb
on husinesa at Leeds. Barly in November last he bought the place of
a large quantity of mahogany at Hull, which he caused to ^g^,
be conveyed by water through Nottingham, and deposited
oa a wharf situate withm the extra^parochial limits of the
castle of Nottmgham. On the 6th November the appel-
lant employed an auctioneer to sell the mahogany by public
suction, and a considerable quantity of it was sold by auo*
tion on that day. The appellant attended the aale, and
assisted thereat. The appellant had no hawker's licence*
and had no place of residence or business at. Nottingham*
Su^^, in support of the order of seasions quashing tbo
coDTiction. This case depends upon the construction of
^Geo.3, 0.41. s. 7; and the' question is, whether/ up6n
the facta stated in this case^ the Court can say that the de-
fendant is a hawker, or a person trading from town to town*
The Court of Quarter Sessions have held that the defendant
did not come within either of these descriptions. This is
Qot the description of person* nor is it such an a^t pf selling,
as was contemplated by the legislature. I| is diflScult to say
tbat this defendant was a hawker; but it will probably be'
(a) This ta^ was decided in kst Michaoln^ss term..
CAdES IN THE KINO S BENCH,
contended that he was a trader from town to town. No
act of trading is stated, except the consignment of goods
from Hull. Only one town is mentioned. The goods
merely passed through Nottingham. [Lord Tenterden, C.J.
A village would do. The place of sale need not be a cor-
porate town.] Rex v. Utile (a). The prosecutor ought to
3how an act of trading before the doing of the act com-
plained of; as otherwise, not having become a trader till
then, he would not have been under any previous obliga*
tion to take out a hawker and pedlar's licence. It ii pro-
per to state to the Courts however, that in The AUormtf
General v. Tongue (6) and The Attorney-GeHeral v. Wool-
house (c), it was held that one act of selling was sufficient.
This timber was a raw material, and, not a manufacture.
[Lord Tenterden, C.J. — Fruit and vegetables are excepted^
but there would have been no necessity for such an excep-
tion if the general prohibition had been restricted to manu-
factured goods.} The object of the statute was to protect
the resident dealer. [Bay ley, J. Here, to protect the resi-
dent timber-merchant.] The cases which have been decided
upon this statute are all of small retail dealers. The cases
are all where the goods are manufiictured or in a state for
immediate consumption. The expression^ ''selling from
house to house," shews that the goods contemplated by the
legislature were goods ready for immediate use. The tim-
ber described in this conviction must be taken to be the raw
(a) 1 Burr. 609; 5. C* 8 Ld. Zoucb,where he employed an anc
Keayon, 317. tioneer, and sold the goods by auc-
(b) Cited 1 Younge & J. 466, tion; it was held that he was a
frt)m a Bum's Just. 785; since le- trading person, travelling from
ported 12 Price, 51. town to town, within 50 Geo, S,
(c) 1 Younge & J» 463, and 12 €• 41, s. 7, and that it was not
Price, 65. In that case a cabinet- necessary, in an information for
maker, who resided at Ldeester the penalties thereby incurred, to
and had a shop there, sent certain state that Uie defendant sold b;
goods to Ashby-de-Ja-Zouch in a auction, &c. by opening a room or
cart, which he accompanied on shop, and exposing to sale hiit
foot part of the way, and then goods, &c. by retaih
went by coach to Ashby»de-la-
The Kma
HILARY TERM, X GEO. IV. 509
commodity in bulk. Instead of injuring the retail dealer, 1830.
such a sale would be likely to benefit him. It seems to
have been thought unnecessary to except any articles in '"v.
bulk, on the ground that none such were within the purview I^^P^ase.
of the act. {Bayley, J. This is not the case of a sale by
accident of goods not originally intended to be sold there.]
K R, Clarke and CUnton^ contri, were stopped by the
Coart.
Lord Tenterden» C.J.*^I cannot distinguish this
case from that of The Attomey^C^eneral v. Weolhouse.
The other judges concurred.
Rule absolute to quash the order of sessions (a).
(a) And tee Moore y. EdwardSy AdoK 875; Simton v. illoft, 3
2 Chit Rep. 213 ; Hex ▼• Sdwm/, Barn. & Adol. 643 ; Rex v^Mam-
\h. 522; Rex v.Websdell,^ DowL waring^ ante, 36, 10 Barn. &
k Ry). 360, 2 Barn. & Cressw. Cressw. 66; Rex v. Hodgkinton,
136; Rex v. Farady^ 1 Barn. & aii/e,162» 10 Bam. & Cressw. 74.
CocKBBBLL and another v. Cholmelby.. (In Error.)
CiRROR upon a judgment in formedon. The count set out Land with the
a portion of the will of Sir Henry Englefield, Bart., by which wM^detSS**
to A. and his
beiTs for the use of B. for life, without impeachment of watte, with remainders ower,
with power to ^., at the request of the successive cetteux que use, to sell the estate;
and to that end A, was empowered by deed to revoke the uses in the will, and by the
same or any other deed to convey the estate to the purchaser. A. sold the estate, ex-
clusive of the timber upon it, and by deed revoked the uses in the will, and conveyed
the estate to the purchaser; and by the same deed B. sold and conveyed the timber
to the purchaser :— Held, that the power was not well executed, and that the revocation
was void.
Where, in formedon, the demandant succeeded upon a demurrer to the replication,
aod obtained a verdict upon the trial of an issue in fact, and judgment was given
thereon that he should recover his seisin against the tenant, and upon writ of error brought,
the common errors were assigned, and judgment was affirmed :-^Held,that the demand-
ant was entitled to double costs under 13 Car. 2, st. 9, c. 2, s. 10.
610 CAfiM {N TH^ KlVa'f BEKCH,
1830. he dovised certain mtoors and tenements^ with the appurte*
CocKERBu ^^°^* therein mentioned^ to Lord Cadogan and Sir Charla
and another Buck, and their heirs, upon trust (a)» — for the eldest son
CholmeIey. ^^ ^^^ ff^rjf Engl^ld for life^ without impeachment of
waste; remainder to the trustees* to preserve, contingent
remainders) remainder to the first and. other sons of his
eldest son, in tail male ; remainder to his second son for
life, without impeachm^Hit of waste; remainder to trustees,
to preserve contingent remainders ; remainder to the fint
and other sons of his second son, in succession in tail male;
rei»aiikder to the demandant's mother for lifoi without im-
peachment of Waste; reouiinder to trustees, to preserve
contingent remainders; remainder to her first and otber
sons, in succession in tail male. The eount then alleged
the death of the testator (6), the death of his two sons with-
out issue, the death of the demandant's mother^ and that the
demandant was her eldest son, and as such entitled to the
estate, as entailed in remainder.
The eighth plea (c) stated that the testator^ bj his will,
declared '' that it should be lawful for the trustees and the
survivors of them* at tb^ request and by the direcuonand
' appointment of the person who for the time being should
be in possession of, or entitled to, the rents and profits of
the manors and tenements aforesaid, with the appurtenances
above demanded, by virtue of the limitations therein con-
tained, signified by any deed' or writing under his or her
band and seal, attested by two or more witnesses, to make
sale and dispose of, or to convey ip exchange for otber
manors, lands, tenements and hereditaments, any part or
parts of the manors and tenements aforesaid, with the ap-
(a) i. e. '^ tp the me of;'' these
trutii being executed by the sta-
tute.
(b) The count also alleged the
death of the testator's wife, fot
whose benefit a term had been
created, which had determined by
her death.
(e) There were other pleas npoo
which i^ues were joined and the
demandant proceeded to trialyaod
had a verdict, but the question be*
(bre the Court turning exdosivdy
upon the eighth, it is unnecessaiy
to set out the rest
HILAftT TSRH, X GEO. IV« dH
piirtemiDcefl above deoiaud^dy to aoy person or person^ isao.
whatsoever, either together or in parcels, for such price "^^^^^^
... . . , , , COOREIIBLI
and pnces in moaey or any other equivalent, as to them the and another
triiitees. or the survivor of them, or the heirs of such sur- ^ ^
mor, ibould seem just and reasonable, and to that end for
the said trustees or th^ survivor of theip, or the h^irs. of
loch survivor, by any deed or deeds, writing or writings,
Moder dieir hands and seals, senled and delivered in th^ pre*
lence of two or more witnesses, to revoke, determine and
make void all and every or any of the uses, trusts, powers,
provisoes and limitations thereinbefore limited, createdi
provided and declared, of and concerning the manors and
teaements aforesaid vyitb the Appurtenances above de*
madded, to be sold, disposed ofj or ei[changed, aiid by the
•ame or any other deed .or deeds, Writing or vrritingsi to be
Msled and attested as aforesaid, to limit end appoint the
manors and tenements aforesaid, with the appurtenances
above demanded, whereof the uses should be so revoked,
either unto such purchaser or purchasers, qr to the person
or persons making such exchange, and his, heri or their
beirs or otherwise, and to limiti direct or appoint such new
or other use or nses» trust or trusts, of or concerning the
manors and tenements aforesaid, with the appurtenances
above demanded, as should be requisite and necessary for
the executing and effecting of such salesi disposals or es-
ehsoges; end opon payment and receipt of the money
ariiiog from the sale of the said premises, or any part or
parts thereof, which should be absolutely sold as aforesaid,
to give and sign proper receipts for the money for which
the same should be so sold." The plea then stated that Lord
Cadogan^ in pursuance of this power, after the decease of
Sir Charhs Biick, at the request of Sir Henry Charles
t^UfUldf tho first tenant for life, sold the estate to Byam
Martin for 13,400/., which Lord Cadogan judged to be a
reasonable price for the same, and then set out so much of
the deed from Lord Cadogan to Byam Martin as revoked
the original uses of the will, and conveyed the estate to
512 CASES I^f the kino's bench,
1830. trustees for Bt/am Martin, in fee, for the sum of 13,400/.^
^^■^^''^^ making profert of that deed ; and then deduced title froni
and another Byam Martin and his trustees to the tenant.
^ ^' The replication to this plea craved oyer of and set out
the deed of conveyance from Lord Cadogan to Byam Mar-
tin. By that deed — reciting the power, and that Lord
Cadogan had contracted to sell the estate, exclusive of' the
timber growing upon it, to Byam Martin, for 13,400/., and
that Sir H, C. Englefietd had contracted to sell the timber
to Byam Martin for 2448/. — Lord Cadogan appointed the
estate, exclusive of the timber, to Byam Martin and bis
heirs; and Sir H. C. Englefield sold and assigned the tim-
ber to Byam Martin and his heirs, and acknowledged the
receipt of 2448/. for the same, both in the body of the deed
and by a receipt on the back of it. The replication then
set out the will of Sir Henry Englefield, and the power
therein contained as stated in the plea, and alleged the exe-
cution of the power to be imperfect, inasmuch as the trustee,
Lord Cadogan, htid sold the land on\y, and had allowed die
tenant for life. Sir H. C. Englefield, to sell the timber grow-
ing thereon and to receive the price of such timber.
To this replication there was a general demanrer, and a
joinder in demurrer.
The case was argued in the Court of Common Pleas
in Michaelmas term, 1825 (a)» when judgment was giten
for the demandant. There were other pleas upon which
issues were joined, and the demandant proceeded to trial,
and obtained a verdict. The record being removed by writ
of error into this Court, the case was now again argued by
Peake^ Serjt., for the plaintiffs in error. The questioa in
this case is, whether the deed of conveyance from Lord
Cadogan to Byam Martin was a good execution of the
power of sale contained in the will of Sir Henry Englefield*
The objection taken is, that Lord Cadogan sold the land
only, and permitted Sir Henry Charles Englefield to sell the
(a) Exported B. Moore, vol. x. 246, xi. 17; Bingh. liL 307, ▼. 48,
HILARY TERM, X G£0. IV.
timber aiid to receive the money for it. Notwithstanding
this objection, it is submitted that the deed is a good and
sufficient execution of the power. Sir H. C. Englefield,
being tenant for life without impeachment of waste, would
have been entitled, if tlie estate had not been sold (and it
could not be sold without his consent), to cut down the
timber and receive the value of it; and if he preferred to
waive his right tp do so, and to consent to the estate's being
sold, together with the timber, he was equally entitled to
take that coarse, and to receive from the purchaser of the
whole so much of the purchase money as was the actual
value of the timber. If that be so, the trustee, in permit-
iag him to receive that money, has not deviated from the
power. This, like every power, must be construed with
reference to the objects which the testator had in view in
creating it. His ficst and favourite object was to keep the
estate m the family, giving the timber to the tenant for life ;
his second object was, in the event of its being found more
beneficial to the family to sell or exchange the estate, to
empower the trustees to do either the one or the other, at
the request of any person in possession as tenant for life.
The power to sell the estate, therefore, was made dependent
upon the request of the tenant for life for the time being ;
and it is dear that no tenant for life would ever make that
request, unless he was to have at least the same advantages
as he would have had if the estate continued unsold. One
of those advantages was, that while the estate continued
nnsold, he might at any time have cut down the timber,
and have applied the proceeds of it to his own use. To
have done this would not only have lessened the estate in
value to the amount of the money for which the timber was
sold, but would also have taken from it that imaginary and
yet marketable value which invariably attaches to estates
upon which old and ornamental timber is standmg. It was
therefore clearly for the interest of all parties that the tim-
ber should stand, and be sold together with and as part of
the estate; and if the tenant for life consented to that
VOL. V. L L
513
1830.
COCKERELL
and another
Cbolmeley.
514
1830.
COCKEJIELL
and another
t.
Cbolmeust.
CASES IV THE KIKO's BENCH.
course^ upon ivhat priocipb of jastice can it be said tbat he
was 'not entitled to receive the money which that timber
was worth i In The Counteu of Plymouth v. Ladt/
Ar<^er(a)t where lands were devised to trustees to be told,
and odier lands were to be purchased in their stead, and A.
was to be tenant for life, without impeachment of waste, of
the lands to be purchased, and the rents and profits of the
lands to be sold were to be to the same uses, it was held
that A. could not cut down timber on the lands to be sold;
but the reasons were^ first, that A. had no interest in the
lands to be sold, as they were givpn to the trustees in the
first instance ; and secondly, that as A. was to be tenaat for
life, without impeachment of waste» of the lands to be
purchased, if he might cqmmit waste upon the other estate
before it was sold, he would have the benefit of doable
waste. But, even if the tenant for life was not entitled to
the value of the timber, still the pow^r was well executed
by the deed, so fer as it revokes the uses of ^he wilL The
power, in express terms, authorises the revocation of the
old uses by one deed, and the conveyance of the estate and
creation of new uses by another. Now, if the old uies
have b^en revoked, (as they have been, — for the conveyance
of the estate operated as a revocation of the usee of the
wUI,) the demandant cannot sue in formedon, for his estate
is thereby divested. This case is perfectly distinguishable
from that of Doe d. WillU v. Martin {i), by whieh it was
contended in the court below it must be governed ; for, ia
the first place, that case was decided principally on the
ground of fraud ; and, in the second. Lord Ketytm there
said, *^ the revocation and conveyance were necessarily one
act, and must be done by one and the same deed." Here,
no fraud is or can be imputed ; and the applicatiDn of the
money produced by the sale is a distinct and separate act,
to be done after the sale of the estate. Even if the pay-
ment by the trustee to the tenant for life of a part of the
(fl) 1 Bro. Ch. Rep. 159,
(6) ♦T.R,39.
HILARY TERM, X GEO. IV. 515
purchase money, namely, the price of the timber, is con- 1830.
lidered a misapplication pro tanto, still it was done bonii ^ ^^'^
fide, and th^re is nothing to shew that it shall affect the and another
porchaser: on the contrary, payment to the trustees b ^ '^'
made a discharge for such money as is paid, and the re-
jnainder-man can have at most only an equitable lien as
against the tenant for life for such money as has been im-
properly paid to him. Roper v. HaUifax (a).
Cvm, Serjt., contri, was stopped by the Court.
Lord Tbntbbden, C. J. — I am of opinion diat the judg-
ment of (he Court of Common Pleas, in this case, ought to
be affirmed. Tn forming that opinion, I have not treated this
case as one of fraud, but as a case of failure of compliance
with the condition upon which alone the uses mentioned in
the testator's will could be revoked, and the estate applied
to other uses. It has been argued, that the revocation of
the OSes may be good under the power, though there may
not have been a valid sale according to the power. That
argument rested mainly on the observation, that the old
uses may be revoked by one deed, and the estate conveyed,
and new uses created, by another, — which is certainly not
imMNisistent with the language of the wUl. But looking at
die whole of the language of the power contained in the
testator's will, it seems to roe quite clear, that there can be
no valid revocation of the uses mentioned in the will, unless
that revocation is made, (to use the very words of the
power,) <« to the end** that a conveyance may be made of
the estate. A conveyance of the estate must be the very
end and object of the revocation. The question, therefore^
is, whether, looking at the whole of this deed, the end and
object of die revocation was a conveyance of the estate.
Now it appears, as well by the contract made prior to the
revocation, as by the deed of conveyance, that the trustees
(a) 8 Taunt. 845 ; and Sugd. Pow. App. No. 4.
hh2
616
1830.
CoCKERELL
and another
V.
Cbolmelbt.
CASES IN THE KIN6*S BENCH,
contracted to sell the land " exclusive of the timber growing
upon it/' for a certain specific sum of money ; and that the
tenant for life, by the same instrument, contracted to sell
the timber growing upon the land, for another specific sum
of money; and wheii these contracts were executed by
the deed of revocation and conveyance, the trustees con-
veyed the land in consideration of one sum of money, and
the tenant for life conveyed the timber in consideration of
another sum of money paid to him. This, it is said, might
lawfully be done, because the tenant for life, being without
impeachment of waste, might lawfully have cut down all
the timber, and converted the proceeds to his own use. It
does not seem to me material to consider, whether he could
by law have cut down timber to the extent of that which be
sold, because I am of opinion that, according to the terms
of the testator's will, if the tenant for life thought fit to con-
sent that the estate should be sold, he was bound to suffer
it to be sold in the same state in which it was then« and not
to sever the timber from it, but to let the whole go toge-
ther. There would then be one entire sum to be received
for the whole, part of which would be applied to the inte-
rest of the tenant for life, and the residue would go to tbe
remainder-man. It is said that the mode of dealing with tbe
estate, adopted in the present case, was beneficial to thefimulj,
because, if the tenant for life had cut down the timber be-
fore the estate was sold, it would afterwards have fetcbed
much less money. And probably that would be so; hot
still I think the testator clearly meant, that if the tenant for
life consented, to a sale at all, he should consent to the estate
being sold with all that was on it, as it then stood. That
18 the ordinary sense and meaning of the words, '' sale of
an estate ;*' for diough, in estimating the price, tbe land
and timber are sometimes valued separately, still the whole
Slim is paid at once, and it is considered as one price, and
that is, in my opinion, what the testator in this case intended.
That being so, the intention of the testator has not been
complied with, therefore the power given by his will bas
HILARY T£RM» X GEO. IV. 517.
not been well executed, the uses have not been revoked, 1830.
and the demandant is entitled to recover. We may regret. J"'^^'^^
... . . COCKERELL
and 1 certainly do for one, that a transaction which, so far and another
as we can judge of it, appears to have been fairly intended, ^ olmelet
should fidl in its e£fect ; but whatever regret we may feel,
we are bound to decide according to law. In that view of
the case, I think we are bound to say, that the power has
not been well executed ; that the demandant is entitled to
recover ; and, consequently, that the judgment of the Court
of Common Pleas must be affirmed.
Batlbt, J. — I am of the same opinion. I think it clear
beyond all doubt, that the deed was not a good execution
of the power. The power was to sell tf^e estate. The
estate, at the time of the sale, consisted of land and of
timber growing upon it. The trustees were to sell it in
the condition in which it was at that time. The timber
was part and parcel of the estate at that time, and the
tnistees had no authority to divide one part from ano-
ther. It is said that the tenant for life might, if he had
chosen, have severed the timber from the land, and have
thereby acquired to himself a distinct interest in the former.
It is sufficient in answer to observe, that the tenant for life
had not acquired such a distinct interest ; and having not
done so, but allowed the timber to continue parcel of the
estate at the time when the conveyance was made, the
whole of the purchase-money of the estate, comprising the
timber as well as the land, went by law to the person in
whom the estate was vested.
With respect to the revocation, if any authority were
wanted upon that subject. Doe d. Willis v. Martin (a) is in
point. It was there held, that the power to revoke was
conditional, that is, a power to revoke, and to sell, and to
substitute other land, and therefore there could be no valid
revocation without a sale and a substitution, as parts of the
same transaction. In the present case, indeed, as was sug-
(o) 4 T. 11.39.
518 CASES IN THE KING*S BENCH,
1830. gested in argument^ the trustees might have revoked by one
p^"*"*""^^ instrument, and have sold by another ; but if they revoke
aud another by an mstrument which shews that the sale which they in-
Cholmelet ^^^^^ *^ effect would be in its nature a defective sale, and
not a valid execution of the power, such a revocation can-
not be supported. Here they had a right to revoke,— but
only to the end that they might sell, and that they migbt
Hell pursuant to the power, that is, the entire estate toge-
ther. Such a sale would put into the possession of the
remainder-man, the whole of the money resulting from it;
but here, before they revoke, they state, by way of recital
in the deed, that there had been a bargain, by i^hich the
land was to be sold for one sum of money, and the timber
for another, the purchase-money of the timber to be applied,
not for the benefit of the remainder-man, but for that of the
tenant for life. Now that is a revocation, not for the pur-
pose of making a valid sale, but for the purpose of making
a sale which the power does not authorize. I am therefore
of opinion that the judgment of the Court of Common Pleas
ivas right.
LiTTLEDALE, J.^-The power giveti to the trustees is to
sell and dispose of the estate. That can only mean, to sell
Imd dispose of the estate with every thing on it, as it stood
at the time. They had no power to divide the land and
the timber growing upon it. It was not d good execution
of the power, therefore, for them to sell the land, and then
for the tenant for life to sell the timber. But then it is
said they have at all events revoked the uses in the will
Now a valid revocation could only be made " to the end"
that they might make such a sale and conveyance as tbej
were authorized to make; and if they have made a sale and
conveyance, but not such a one as they were authorized to
make, the end of the revocation is not accomplished,
and the revocation itself fails. Though they might make
the revocation and the conveyance by separate deeds, it
must all be considered as one act. If they made the
HILART TERM, X G£0. iV. 619
refoetttoa to-daj, they might make the conveyance to* isso.
morrows still they would be parts of the same transaction; ^^"^^
and u toe conteyance in this case cannot be carried mto wid anodier
cfccl, the vocation iaUs also. Cholmilit.
Pakkb, Ji^-^I am of the same opinion* To the second
|K)int madei that the revocation had taken place, and there*
fore that the demandant's estate had been ditestedi the
answer is, dmt the power of revocation is given only to
the end that such a sale shall be made as is permitted by the
power; a revocation made for any other purpose is, there»
fore^ void. That brings us back to the first question —
whether the sale made in this case was such a sale as is au**
thorized by the power f Now, I thmk it cleari from the
terms of the power, that the trustees were not authoriaied
to sell the estate without the timber,--tbat they must sell
both together. But they have sold the estate without the
timber ; tbat^ therefore, is not such a sale as is authorized
by the will creating the power; and the power of revoca*
tion, having been executed for the purpose of making a
sale not warranted by the power, is void.
Judgment affirmed.
Cross, Serjt. then applied for, and obtained a rule for the
plaintiffs in error to shew cause why the defendant in error
should not recover his damages and costs against the plain*
tiffs, m error, pursuant to the statutes in that case made
and provided ; against which
Pedhtf Serjt. afterwards (a) shewed cause. This appli-
cation is founded upon two statutes, S H. 7, c. 10, (con-
firmed by 19 S. 7» c. 20,) and Id Car. 2, st. £, c. 2. The
former statute directs the Justices (that is the Court, (6) )
(a) This rale was argued and (6) The Court of Error. See
decided ia Easier term, 1880, but Salt t. Richards^ 7 East, 111.
from its immediate connection with Where the House of Lords af-
tiie foregoing case, it was deemed firmed the judgment, and remitted
advisable to insert it here. the record without awarding costs
520
1830.
COCKERELL
and another
V.
Cholmelby.
CASES IN THE KING S BENCH,
before whom a writ of error is sued, to give damages and
costs for the delay and wrongful vexation, according to his
discretion (a). It has been sometimes doubted, whether
this statute extends to cases where no damages are recover-
able in the original action (&)• In Henslow v. The Bishop
of Salisbury (c), one of the earliest cases upon the subject,
it was held, that costs were recoverable in a writ of error
in quare impedit, though no costs could be recovered in
the original writ ; and there have been subsequent decisions
to the same effect. In Graves v. Short {d), costs were
allowed in a writ of error in formedon ; but in Smith t.
Smith ie)f a directly contrary decision was come to ; and in
Wiimev, Lloyd (f)f costs were refused on a writ of error
to reverse a recovery. However, in Ferguson v. Rawtin'
son ig), it was decided that the plaintiff in a qui tam action
was entitled to costs; and it must be admitted, that since
in parliament, it was held that the
Court of King's Bench could not
order the Master to allow the costs
in parliament. Beale v. ThompiOMf
9 Maulo & Selw. 249.
(a) The 3 H. 7, c. 10, recites,
** that where oftentimes plaintiffs
or demandants that have judg-
ments to recover, be delaj^ed of
execution, for that the defendants
or tenants against whom judg*
ment is given, or other that havo
been bound by the said judgment,
sucth a writ of error to annul and
reverse the saidjudgment, to the in-
tent only to delay execution of the
saidjudgment ;*' and enacts, *' that
if any such defendant or tenant,
or if any other that shaU be bound
by the said judgment, sue, afore
execution had, any writ of error
to reverse any such judgment, in
delaying of execution, that then
if the said judgment be affirmed
good in the said writ of error, and
not erroneous, or that the said
writ of error be discontinued to
the default of the party, or thic
any person that soeth such writ of
error be nonsued in the sane,
that then the said person agaimt
whom the said writ of error is sued
shall recover his costs and damage,
for his delay and wrongful vexf
tion in the same, by discretion of
the justice afore whom the said
writ of error is sued,"
(6) " It seems that it does ei«
tend to cases in which the plaintiff
is not entitled to costs in die ori-
ginal action ; Ferguson r.Ramiinr
son, Andr. J 13; 3 Str. 1064;
(accord. Cro. Eliz. 616,) over-
ruling Smiih y. Smithy Cm. Car.
425; Winney.Llcyd, lLev.i46;
Raym. 134,contrJi.'' 1 Chitt.SuU.
«r4,(f.)
(c) Dyer, 76 b.
(d) Cro. Eliz. 616.
(e) Cro. Car. 4S5.
(/) 1 Lev, 146; Raym. 134.
(g) Andr. ItS; 2Str. 1064.
HILARY TERM, X GEO. IV.
tbat decisioD the statute has been considered as applying to
all cases ; so that^ perhaps^ it cannot now be successfully r ^"^"^^
contended, tbat the defendant in error in this case is not and another
entitled to costs under the statute 3 H. 7, c. 10. But the QaoLiiBLEr.
present application does not stop there^ for it is contended
on the part of this defendant in error^ that he is entitled to
double costs under the statute 13 Car. 2, st. 2/c. 2, s. 10 (a).
To these it is submitted he is clearly not entitled, as this
statute extends only to writs of error after verdici, which
most mean writs of error on a judgment founded on a ver-
dict; whereas this writ of error is not on the judgment
founded on the verdict of the jury, but on the judgment
founded on the facts admitted by the demurrer to the eighth
plea. Thisris, therefore, not a writ of error *^ after verdict"
within the fair meaning of those words, as applied in the
statute. Besides, the statute is directed only against vex-
atious writs of error (6), brought for the purpose of delaying
execution upon judgments after the jury have decided a
question of fact, and not against a case like the present,
which involved a serious and important question of law.
Crou, Serjt. contrs^. It is conceded that the defendant
in error is entitled to his ordinary costs under the statute of
Henry 7, and it is equally clear that he is entitled to double
costs under the statute of Charles 2. The latter statute is
general in its terms, for it speaks of '' any writ of error for
reversal of any judgment whatsoever, given after any ver-
dict." That it refers to vexatious writs of error is true ;
but it comprehends all writs of error after verdict; and
(a) Which enacts, ** that if any error, his double costs, to be as-
penoD shall sue or prosecute any sessed by the Court where such
wiit of error, for reversal of any writ of error shall be depending,
jodpnent whatsoever given, after for the delaying of execudon.'^
anj verdict, in any of the Courts (6) The sUtute is intituled ^ An
aforesaid, and the said judgment act for prevention of vexations and
shall afterwards be affirmed, then oppressions by arrests, and of de-
every such person shall pay unto lays in suits of law.*'
the defendant in the said writ of
5B2 CA8£S IN THE klKO's BENCH,
16io. etery writ of error^ brouf^ht after verdict^ nmat be
CocKfeKiBtL ^^^^^ vexatioust Id tbis case^ it appears by the record,
and Bflotber that the writ of error wa« brought after a Terdict found
CaoLKBLtr. ^P^" ^^® issues id fiict^ aUd therefore it falls moat strictly
within the scope of the statute.
The Court took time to esamme the assigometit of errors,
and to consider of their judgmentj -which was afterwards
thus delivered by
Lord TftNTBRdBK; C. J.-^We have examined the as-
signment of eiit>rs in this case, and find the first to be, diat
the count or declaration is insufficient. Upon that ground,
had it been well founded^ the judgment ought to have been
reversed, notwithstanding the verdicti The writ of enror,
therefore, was brought for the reversal of a judgment after
verdict^ within the meaning of the statute 13 Car. 8, St. 8,
C. % s, 10, and is not as if it had been brought merely to
reverse the judgment on the demurrer to the replicatioD.
This rttle> therefore, must be made absolute.
Rule absolute.
HuNTBB and others v. Lbathlby.
l^aI"^^tMSn Assumpsit on a poHcy of insurance at and from
of a policy, Singapore, Petiang, Malacca, and Batatia, all or any, to
which he
effected, and on which he has a lien^ is compellable to produce it under a subpceos
duces tecum, on the part of the assured, on the trial of an action against the ondei^
writers.
And he is a competent witness, notwithstanding his lien, to prove aU matteis eoo-
nected with the poHcjr.
Policj of insurance on goods bj ship ** at and from Singapore, Penang» Malacca, and
Bata?ia, all or any, to the ship's port of discharge in Europe, with leave to touch, itij,
and trade at all or any ports and places whatsoever and wheresoever in th^ East India,
Persia^ or elsewhere^ &c., beginmna the adventore upon the goods fh>n the loading
thereof on board the ship as above. The ship took in some goods at Batavia, then went
to Sourabaya, a port in the East Indies, but not in the direct course from B^taria to
Europe, and took in other goods, then returned to Batavia, and afterwards sailed froin
thence for Europe, and was lost by perils of the sea. Held, that the going to Sonn-
baya was no deviation, and that the goods taken in there were protected by the policj.
HILAE7 TERM, X GEO. Vt.
the ship's port or ports of discharge itt Great Britain^ or to
any port or ports in the United Netherlands, or to Altona
or Hamburgh, or to all or anj, with leave to tbacfa, stay
and trade, at all or any ports and places whatsoever and
wheresoter, in the Bast Indies, Persia, or elsewhere, as
well beyond as at and on this side of the Cape of Good
Hopei in port or at sea^ at all times and in all places^ and
ualil safely arrived and landed at the ship's final port br
place of discharge ; upon any kind of goods and tnerchan*
dize, and also upon the body, &c., of the good ships or
fessels called the Albimi Bolivar, Jai)a PackH, and Blose,
beginning the adventure upon the said goods and mei^
chandize from the loading thereof on board the said ships
as above, with leave to call at or off any ports or places in
Great Britain, and wait for orders, 8tc. And it should be
lawful for die said ships, &e., in that voyage, to proceed
and sail to, and touch and stay at any ports or plaeeft whaU
loever and wheresoever^ in any direction) and for any pur*
pose, necessary or otherwise, particularly Singapore^ Pe->
nang, Malacca, Batatia, the Cape of Gckni Hope> and
St Helena, with leave td take on board, discharge, reload>
or eicbange goods and passengers, without being deemed
any deviation from, and without prejudice to that insur*
ance. By a memorandum, the policy Was declared td b^
on goods, as interest might appear^ with leave to declare
the same thereafter. Averment: that afterwards> to witi on
&c., the interest in the said goods and merchaudtste so in^
tended to be insured by the said policy, was duly declared
to be all in the Java Packet on coffee, and that the defend^
ant subscribed the policy for 300/., at a premium of 6/. 651
per cent. That afterwards, to wit, on ka, at Batavia, itl
the policy mentioned, coffee to the value of 10,000/w had
beea and was shipped and Idaded in and on bodrd of the
said ship tailed the Java Packet, to be carried therein oti
the voyage in the policy mentioned, to wit, towards and
onto Antwerp, being a port in the United Netherlands ;
and that also afterwards, to wit, on 8lc., to wit, at Sourabaya^
dOd
1880.*
HuKtSA
fltid oHien
524
1880.
Hunter
and others
V.
Leathlby.
CASES IN THE KINO S BENCH,
being a certain port or place which the said ship proceeded
and sailed to^ and touched and stayed at» under and by
virtue of the said policy^ to take on board other goods,
divers other goods* to wit, 10,000 peculs of coffee, and
10,000 bags of coffee, of great value, had been shipped and
loaded in and on board of the said ship, to be carried and
conveyed therein to Antwerp aforesaid. Averments of
interest, and of a total loss by perils of the sea. Plea : noa
assumpsit. At the trial, before Lord Tenierden, C. J., at
the London adjourned sittings after Hilary term, 1828, the
broker who had effected the insurance, and who had been
served with a subpoena duces tecum to produce the policy,
was called as a witness on the part of the plaintiffs for that
purpose, but objected to produce it, on the ground that he
had a lien upon it, for premiums advanced, the value of
which would be lost by his producing the policy, as it
would no longer be the interest of any one to take it ajK
Lord Tenterdm, however, was of opinion that the witness
was bound to produce the policy, and that he would nof
thereby be deprived of his lien. It was then objected on
the part of the defendant, that the witness, having a lien,
was interested, and therefore incompetent, and that be
could not be examined. Lord Ten^^rdm overruled the
objection, and the witness was examined. The jury found
a special verdict, in substance as follows :— -
The policy of insurance mentioned in the declaration
was effected by John M^jlUan, as agent for the plaintiffs,
and was subscribed by the defendant for 3O0L The in-
terest intended to be insured was duly declared^ to hfi all in
the Java Packet, on coffee. At Batavia, coffee to the
value of 9^8/. 3«. 6d. was loaded on board that vessel,
by the plaintiffs, to be carried to Antwerp. Batavia is
a port in the island of Java, which is one of the islands
in the East Indies. The vessel proceeded from Batavia
to Sourabaya, which is another port in the island of Java^
where coffee to the value of 5865/. l6f. 6d. was loaded on
board her by the plaintiffs, to be carried to Antwerp. The
HILARY TERM, X GEO. IV.
total value of the coffee loaded on board at Batavia and
Soarabaya was 6^9%L 65.; the amount insured by the po-
licy was 7500/.; no other goods were shipped by the
plaintiffs on board the vessel, in respect of the insurance
effected by the policy. The vessel returned from Soura*
baya to Batavia, and afterwards sailed from Batavia for
Antwerp. Sourabaya is not in the direct course from
Batavia, Singapore, Penang, or Malacca to Europe, nor
in the direct course from any one to any other of those four
places, but is directly out of the course from each of those
four places to Europe, and from each of those four places
to any other of them, and is distant from Batavia four
hundred miles eastward. Singapore, Penang, Malacca,
and Batavia are not, according to the order in which they
are mentioned in the policy, in the direct course of a voyage
therefrom to Europe ; but the direct course of a voyage
from those four places to Europe, is according to the fol-
lowing order : — Penang, Malacca, Singapore, and Batavia*
Any port or place in Persia is more than 1000 miles out
of the course from any one of those four places to Europe.
The whole of the coffee was the property of the plaintiffs,
who were interested therein, as mentioned in the decla-
ration. The vessel was, before her arrival at Antwerp,
wholly lost by perils of the sea, and the coffee thereby
whoUy lost to the plaintiffs.
526
1880.
Hunter
and others
V.
Leathlet.
In Easter term, 1828, JP. Pollock, on behalf of the de-
fendant, moved for a rule nisi for a nonsuit or a new trial,
OD two grounds : first, that the broker ought not to have
been compelled to produce the policy ; and, secondly, that
he was not a competent witness. First, the broker was
not bound to produce the policy. He had a lien upon it,
and he had a right, at his own discretion, to refuse to ex-
hibit it, until that lien was satisfied. It was for him to de-
termine, whether it was prudent to submit the instrument
to the inspection of the plaintiffs, as it might turn out
to be utterly worthless. [Lord Tenierdm, C. J. Then he
528
1850.
HVHTEB
aodothcm
V,
l4SATHLBr.
CASES IN THE KING 8 BENCH,
would have made a worthless paper the means of obtaibiog
a large sum of money.] He was entitled to render his
security available if he could. [Bajfky, J. Suppose I
have a lien on goods in my custody, and the owner withes
to shew them to a customer, or to inspect them for the
purpose of ascertaining their value, can I refuse him this?]
There is no case which decides that a party so situated is
compellable to produce the goods. A lien is a right to keep
the goods or papers of another, and to compel paymeet of
a debt, by reason of the inconvenience to which the owner
may be thereby put. The owner of a document, upon
which another has a lien» may wish to inspect it, in order
to judge whether it is worth his while to redeem it; but it
seems no more than just that the party claiming the liea
should have it in his power to exercise his paramount right
by denying the inspection. The contract between the
parties upon which a lien arises, is» that the one shall keep
the goods until his lien be satisfied by the other. [Btgle^t
J. But the production of a document, as evidence, does
not teke it out of the possession of the witness.] Its pro-
duction puts it into the possession of the Court The case
of Lofd V. WiiTnddg1U&n{a\ seems much in point In that
case the defendant having died, his solicitor claimed a Uea
for his costs upon the papers in the cause^ which had been
revived against the executors of the defendant who em-
ployed another solicitor. The executors moved, that the
former solicitor might be ordered to permit an inspection
of the papers, and to produce them when necesaary for the
purposes of the cause. Lord Eldon, 0. said, ** I think it
would be a greater hardship on him, to make him produce
them, than on the client to refuse it My present impres-
sion is, that he ought to be al|le to make use of the non-
productbn of the papers in order to get at what is due to
him ;'* and his lordship having afterwards conferred widi
the Master of the Rolls and the Vice Chancellor, in order
that the point might be settled, reAised to make the order
(a) 1 Jacob, 480.
HILAR? TERM, X 0^0. IV.
prayed* Secondly* Ibe broker wm qoI an admissible wit-
(Here he was stopped by ibe Court.)
527
0688.
1830.
Xiord TENT^RQBKy C. J.— We are all of opinion that
th« broker was compellable to produce Ibe policy, not-
withstaqdiifg bis lien upon it. The case cited was essen-
tially different from the present* That was an application
to the dmretion of the I^ord Chancellor) a discretion
slways exercised in the way most likely tg do justice
between tbe parties. In ibia case the witness oame into
Court under a subpcnna duces tecum, a writ which the
psr^ requiring tbe production of a document baa a fight to
tske Qutj and to insist that it shall be obeyed. The policy
bsTipg been once brought into Court, if we were to allow
the broker to withhold it on account of bis lien, we should
permit that which would work great inconvenience and in-
justice, and should enable brokers to assist the undei^
writers in defeating the juat claims of the assured. We do
not, by this decision, deprive the party of bis lien ; he still
has the policy in his possession, and has the same right in
re8pect of it as before. Whether the broker was a com-
petent witness, is a question worthy of further considera-
tion) and upon that there may be a rule to shew cause.
Bay LEY, J.-rTbe lien of an attorney is different from
liens in general, as there is an understanding between him
aad his client, that if the dient shall think proper to change
his attorney, the papers shall be retained until the bill of
costs is paid. The attorney looks not so muek to the
V9ht of tbe papers be holds to secure payment, as to the
mooimenitntt that mi|y be produced by his detaining them
until his bill is paid ; but where goods or papers are in tbe
hands of an ordinary creditor, there is no understanding
that be is to have more than the possesnon, and the pro-
ducing those goods or papers to the owner, or to a third
person, or in evidence at a trial, does not take them out of
his possession. The distinction between the two cases is
528
1830.
Hunter
and others
V.
Leathucy.
CASES IN THE KING S BENCH,
this, that in the one the value is the security for the debt,
and in the other the inconvenience.
LiTTLEDALE, J. — Whether the witness was entitled
to the lien which he claimed, it seems to me it was not
for the Court to inquire. He claimed a lien upon a docu-
ment be had in his possession, and which he objected to
produce, unless the Court would impose terms upon tbe
party calling for it. I think It was not in the discretion of
the Court to impose any terms, but that the witness was
bound to produce the policy under the subpoena duces
tecum. If it were held that a witness ought under such
circumstances to have his lien discharged, it might be im-
possible to ascertain the amount of it at the moment in a
satisfactory manner ; and at all events, long and irregular
discussions would arise. Or the plaintiff might be non-
suitedy and the statute of limitations^ or some other matter,
set up in defeat of a future action, and the broker would
have it in his power to prevent the success of the plaintiff
whenever he thought proper.
Parke, J. — A lien is a mere right of possession, and
does not relieve the party claiming it from the necessity of
producing the instrument which he holds, when regularly
required to do so for the purposes of a cause. The lien
of carriers, of manufacturers, of warehousemen^ or wharf-
ingers, gives them only a right of possession; and tbe
owner of the goods may inspect them himself, or shew
them to others, so long as he does nothing to interfere with
that possession. The case cited is applicable only where a
solicitor is called upon to produce papers; and the true
distinction between that case and tlie present has been
pointed out by the Court.
Rule refused on the first ground.
Rule nisi granted on the second ground ; against which
Scarlett, A, G., Campbell, and Joshua Evans now shewed
HILARY TERM, X GEO. IV.
caDse» The single question now before the Courtis, whether
the broker, having a lien on the policy, was a competent wit-
ness. If he is incompetent, no attorney or agent can be a
competent witness for his employer. Every attorney has a
lien upon tlie judgment obtained by his client^not merely for
the costs of the particular action, but for his general bill of
costs; but that has never yet been held to render him in-
competent* Now the broker hds a lien, '•ot upon the
judgment, but upon the policy only, therefore his interest
is much more remote than that of the attorney. Indeed,
lie bas no direct legal interest in the event of the suit, and
consequently he is competent. In Dixon v. Cooper (a), a
fMtor who sold for the plaintiff, and was to have a shilling
io the pound for himself, was held a competent witness to
prove the contract and sale. So, in Benjamin v. Porteus (6),
a person who was employed to sell goods, and was to have
for himself whatever money he could procure for them
beyond a certain sum, was held a competent witness to
prove the contract between the seller and the buyer* Be-
sides, servants and agents are, in all casesi competent wit-
nesses ex necessitate. Barker v. Macrae {c)»
52d
1830.
Hunter
and others
V,
LEATflLET.
F. Pollock, Monk, and Paiteson, contri. The broker in
this case cannot be considered as a witness ez necessitate,
for he was not called to prove a mere matter of form, ne-
cessarily within his knowledge as agent, but to prove the
substantive allegation in the declaration of the interest of .
tbe plaintiffs in the goods insured. In Gevers v. Mainwar^
isg(i), in an action against the principal for negligence
tod misconduct in a purchase, the broker, who made the
contract for him, was called to prove that there was no
negligence or misconduct ; and it was held that he was not
competent without a release from his principal. \Parke,
i' There the verdict would have been evidence against
him,] The lien claimed in this case was not of the ordi-
(o) 3 Wilson, 40.
(&) 3 H. Bl. 590.
VOL. V.
(c) 3 Campb. 144.
(rf) Uolt, N. P. C. 139.
M M
aod others
LEATBLSr.
CASES IN THE KIK6 8 BENCH,
Dary nature, and the witness admitted that he looked for piy-
ment of his claim solely to the funds to be derived from the
action. [Lord Tetsterden, C. J. Suppose as attorney ad*
mitted that his client could not pay his costs unless he
recovered a verdict, would that render him incompeteat?]
Even witnesses ex necessitate may be incompetent by res*
son of their interest. Where the interest of the witness
may be got rid of by the payment of money due to him,
that ought to be done. If a servant, for instance, is inoom*
petent by reason of wages being due to him, the maslw
ought to pay him, and so destroy his interest, befove be hss
the. benefit of his evidence. . So here, the plaoitiffii ought
to have paid the broker what was due to him, and then
there would have been no objection to bis testimony*
Lord Tenterbbn, C. J. — We have already decided that
the broker in this case was compellable to produce the
policy itself; and I am also of opinion that he was compe-
tent to prove the facts and circumstances connected with
the policy. I cannot distinguish this case from that of sa
attorney who has a Hen upon the judgmeQt. Besides, the
broker here was a witness ex necessitate, for he made the
contract between the parties. In Beigwnin V. PixrUiu{a),
a factor was, under such circumstances, admitted to prove
the contract, although he was to be paid according lo the
price obtained for the goods.
Bayley, J«— The plaintiffs might, by paying off the bro-
ker's demand, have destroyed his interest and removed aH
objection tohipi; but i do not thifik they were bound to
do so. He was a witness ex necessitate, and as such the
plaintiffs were, notwithstanding his intereat, entitled to his
evidence, do far as the necessity extended.
LiTTLBDALE, J. — I am of the same opinion. The bro-
ker was the agent of both parties, for they had both em-
(a) 9 H. Bl. 590.
Hit ART T£ft^f| X GEO. IV.
ployed hiiD in tho management of the policy; neither of
tfaeoii therefore, can be permitted to object to his compel
tenc; to prove the matters connected with the policy.
Pabib, J. — I think the broker was a competent witness.
The fini objection is, that he was a creditor of the plain*
tiA; but I cannot spe that the (ijefandant has any thing to
do with that. Next, it is said that he was interested as
ageat; but it is clear that an ageqt is admissible ex neces*
titate rei to prove all matters relating to a contract made by
bimseif. Lastly, it is said, that he had such a special inters
eit in the policy as rendered him incompetent. If he had
b^ the assignee or mortgagee of the polioy, that objection
night hav^ b^en available, but that did not appear to be the
cise; he had a mere Hep } and an attorney, though he has a
lieoonthejudgment, is competent; and I take the reason of
the niie to be, that whatever may be the result of the action',
bis legal rights remain the same. If he looks lo the judg^
meat alone for payment, that may affect his credit, but nOI
bii competency.
Bnle disph^ged, .
T1|0 special verdict was now urgued by
JdiJkM MPttfii, for th0 plaintiffs, Two objectiop^ will,
U is suppoaedf be taken to the plaintiffs* right to re^y^Frr-
firat, tbiit the going to SpurabayA wi^s » devjatipp; ^qd
^mmily, ibat the coffee tbwe tpH^n on.bofird wa9 apt proi-
Iccted by the policy, The fMc of both those objectiops
villilepeiKl upon the construction tp bp put upon the policy*
IV mlo of construction, M laid down by Lford Elhnbo^
'^A ill U^rt9Qn v* Fnnch (a), and cited with approba-
tion by tiord Ttnimt^n in L^ng v. Anderdon{h), is this —
Ib^t the wpfds of a policy are tp be construed in their plain,
Mytioaryf and popular sense, unless they have generally, in
reipecl tci the subject-matter, as by the known usage of
(s) 4 East, 130. (6) 5 D. &' li. 397; 3 B. & C. 500.
M M 2
531
1830.
HUVTSE
and othen
a.
532
iBSO.
HUNTEll
and othen
V,
Leathley.
CASES IK THE KING S BENCH,
tradei or the likci acquired a peculiar sense distinct from
the popular sense of the same words; or unless the context
evidently points out that they must, in the particular in*
stance, and in order to effectuate the immediate intention of
the parties, be understood in some other special and pecnlisr
sense. The description of the voyage in the present policy
is — '' at and from Smgapore, Penang, Malacca, and Bata-
via, all or any, to the ship's port or ports of discharge b
Great Britain, or to any port or ports in the United Nether-
lands, or to Altona or Hamburgh, or to all or any, with I
leave to touch, stay, and trade at all or any ports and places
whatsoever and wheresoever in the East Indies, Persit, or
elsewhere, as well beyond as at and on this side of the Cape
of Good Hope." Such a description clearly proves that
the parties contemplated what may be termed a roving or
seeking voyage; and independently of authorities, it is diffi*
cult to understand how any serious doubt can be suggested,
of the run to Sourabaya being within the '< leave*' given by
the policy. Nor does there seem any reason to doubt that
the coffee taken on board at Sourabaya was protected bj
the policy. After the enumeration just adverted to, of the
places at which the vessel was at liberty to touch, stay, and
trade, the policy proceeds thus — ** beginning the adventure
upon the said goods and merchandize from the loadmg
thereof on board the said ships a$ abovei^ which can odI; |
mean a loading at any of the ports or places above mea- |,
tioned, as those at which the vessel was at liberty to touch, .'
stay, and trade. It may be said that the vessel ought to |
have gone to the several places mentioned in the policy is
their geographical order, and could only touch at other
places in so doing. [Lord Tenlerden, C. J. That siirel;
will not be contended, after the finding in the special ver*
diet upon that subject.] If it should, the Court has antici-
pated the short but conclusive answer, which is, that it is
impossible to go to those places in the order in which thej
are mentioned in the policy. Without authorities then, the
natural and obvious meaning and construction of the policy
HILART TERM, X GEO. IV.
is dearly in favour of the plaiotiffs; but in case of any
doubt upon that point, the authorities are as clearly in their
&vour^ In Bragg v. Anderson {a), it was held that a policy
^' at and from Martinique, and all and every the West India
Islands/' warranted a. course from Martinique to islands
not in the direct homeward voyage. Lambert v. Liddard (6),
Metlish V. Andrews {c)^ and Metcalfe v. Parry {d), are all
decisions to the same effect; for it was held in all those
cases, that vessels touching at places out of the direct course
of their voyage from the ports where the policies attached,
were protected by those policies; and the policy in this
case is quite as general in* its terms and comprehensive in
its operation, as any one of those referred to. As to the
object of the vessel's going to Sourabaya, it is clear that
she went thither bon& fide in the prosecution of the adven-
ture, and with a view to the ultimate accomplishment of the
voyage to Europe, and therefore she was protected; Warre
y.MiUer{e), BoltomJUy v. BovilHf). Secondly, the coffee
taken on board at Sourabaya was protected by the policy.
Upon thia point there are some cases which will probably
be relied on for the defendant, but they are all distinguish-
iUe from the present. In Hodgson v. Richardson (g), a
policy << at and from Genoa" was held not to cover goods
previously laden at Leghorn ; but that was upon the ground
ibat there had been a concealment of the true port of load-
ing, which vitiated the policy. In Spitta v. Woodfnan{h) it
was held, that '' if a policy be effected on goods on a voy-
sge defined from A. to B., the risk to commence ' at and
from the loading thereof on board,' not saying where, it
most be intended a loading at the place at which the voyage
commenced." And in Mellish v. Allnutt (t) there was a
533
1830.
HUNTBR
and otbers
V.
Leatblby.
(«) 4Tannt. 2^9.
(h) 5TauDt. 480; 1 Marsh. 14d.
(c) 5 Taunt. 406; il^ M. & S.
57; 16 East, 319.
(<0 4 Campb. 1$3.
1 C. & P. 237.
(/)rD.&E.70^; 5B.&d.
210.
. (g) 1 W. Bl. 463.
{h) 8 Taont. 416.
(0 7 P. & a. 1; 4 B. &C. 538; (i) 2 M. & S. 106«
634
1830.
HOWTEII
And others
V.
LEAttlLET.
CASES IN TH£ Rlko's BENCH,
ditnilar decision upon pi-etisely the sariie principle; The
distikiction between M these cases and the present iS| that
here tlie policyi after enumerdting the various places al which
the vessel may touch, declares that the risk shall cotrimeoce
from the loading of the goods as ahoi^l cleaHy tneabittg.t
loading at any of the places before enbmerat«d> The rule
of construction adopted in the clises last referred to, hM
been since (considered as one not to be favoured of ekteod*
ed(a); lind any oircumstance, however slight, wiH silflSte
to tak« a cdse out of it. Thus^ in OlddHMi v. Cithf{b\
the introduction of the word ** wheresoever/' After the wonh
V from the loading thereof on board the ship)'' Was heM
sufficient for that purpose. But the cUse of Vwki r. AH-
nmt (c)i is expressly in point for the presetit piaiiltiffSj for
k was there held> that liberty to touch At a port for Any pur-
pose whatever, includes liberty to toueh fdr th^ purpose of
taking on board part of the goods insured \ and that hoMing
was confirmed in Barclay v. Stirlitig{d)^ which WAS tb the
same effect, except that there the hisuraiiceWAA on freight
instead of goods.
Pniteson^ control There at^ threA objectfoiM lo die
plaintiffs' right to recover in this case— first, the VAisCl ttem
sailed on the voyage insured; secottdlyi If the did ssil os
that voyage^ the going to Sourabaya was a de^hlioni sod
thirdly^ the policy does not cover the gilods tttken on board
at that place*
First— *The voyage insured was " at and ftom Sibgaporr,
Penangi Malacca^ and Bataviai tiH or aH^i to tbA ships
(a) See the observations bf I^ord
ElUnborough on the decision in
SpiUa v. Woodman, in Bell v. Uolh
son, 16 East, S40.
(6) 1 Milule&Selw^41d.
(c) 3 Taunt. 419. The policy
there was on' goods at and from
Pl^rnoath to Malta, with liberty
to touch at Penzaiice; or any port
hi the Clkannel tb the wcstwanl,
for anv purpose whatever, ** ban-
ning the adventure ftom the \o^'
ing of the said goods on houi the
l^^id ship as choice :^ and it was
held, that goods loaded at Pen-
zance were protected by the policr.
And see post, 541, 549.
((0 6 Maule & Selw« 6.
HILARY T£RM| X GEO. IV.
port or ports of discharge in Great Britain, or to any port
or ports in the United Netherlands^ or to Altona or Ham-
burgh| or to all or any." There the description of the voy-
age ends. The words which follow, '' with leave to touch,
stsyi and trade/' ftc, form no part of the description of the
foytge; they merely give a liberty to touch at the places
there mentioned, without the doing so being deemed a de-
riation from the voyage before described as the object of
die insurance 3 the voyage insured was to commence from
one of the four places originally named. If those places
were not to be considered as distinguished from the other
places mentioned in the general words, for some purpose
or other, there seems no reason for mentioning them at all;
•lid the otily imaginable purpose for which they could be
inteoded to be so distinguished is, that one of them should
form the terminus a quo the voyage to Europe should com-
mence. Now the ship did not sail from any one of those
four places ob a voyage to Europe; she sailed from Bata-
f ia to Sourabaya, four hundred miles out of the course of
a voyage from Batavia to Europe, for the purpose of pro«
curing a cargo. She did not, therefore, sail on the voyage
iosured at all, consequently the policy was discharged;
WooUhdge v. BojfdeU{a), Way v» Modigliani (6). Bottom'^
fey V. Bavill{c)f which was citfed on the other side, belongs
to a class of cases very different from the present. That
wts a policy on a voyage from London to New South Wales
and back{d), with liberty to go to certain places in the
535
1880.
(a) 1 Dougl. 16) where it was
heM, that if a ship insured for
oM voyage smls upon another,
dmig^ she is taken before reach-
ing the dividing point between the
two vojages, the policy is dis-
cbii|^d.
{h) 9 T. R. 30, where it was
held, thai if a ship, insured from a
ccftaia lime, sails before that lime
00 a different voyage from that in-
sured, the asBttted cannot recover,
HUNTiR
and othen
V.
though she afterwards get into the
course of the voyage described in
the policy, and is lost after the day
upon which the policy was to have
attached.
(c) r D. & R. ro«; 5 B. & C.
910.
(d) The policy in that case was
not from London to New South
Wales and hack. It was " from
London to New South Wales, and
frbm thence to all ports and places
536
1830.
Hunter
and others.
V.
LSATBLET.
CASES IN THE KING*S BENCH,
East Indies. The vessel did sail from London to New
South Wales, and the question in the cause arose upon a
subsequent loss (a). But the present was not an insurance
on a voyage out and home, to the East Indies and back,
but at and from four particular places named in the policy,
or any of them, to Europe. The argument on the other
side must go this length — that if the vessel bad taken in the
whole of her cargo at Sourabaya, and bad never gone to
any one of the four places named, the policy would still
have attached; for that argument in substance and effect is,
that all the places included in the leave to touch, &c., are
embodied in the description, and made parts of the voyage
insured* Unless that is so— unless the policy would attach
even under those circumstances — it is quite immaterial that
the vessel had been at Batavia before she went to Sourabaya,
because she did not go there in the course and for the pro-
secution of her voyage to Europe, but out of her course
and for a different purpose, namely, to take in goods and
then, to return to Batavia, In order to protect such a
course, the policy should have been ** at and from Java /'
not " at and from Singapore," See.
Secondly, if the ship did sail upon the voyage insured,
and the policy ever attached at all, the going to Sourabaja
was a deviation by which it was at once discharged. The
permission to touch and stay at porta and places in the East
in the East Indies, or South Ame-
rica, with liberty to take in and
land goods and passengers, and to
frade backwards and forwards, and
forwards and backwards; premium
SOf. per cent, to return 29<. 6d*
if the voyage ends at New South
Wala, and 15i. 6d. if the voyage
endi at South America.'* On ar^
riving at New South Wales, the
captain was ordered by the owners
to proceed on a trading voyage to
New Zealand, and from thence di"
red to South America. He pro-
ceeded to New Zealand with JM^
sengere, and was returning from
thenu to New South WaleSy whea
the ship was totally losL It was
held, that the sailing from Nev
Sooth Wales to New Zealand and
backf was a deviation from tht
voyage insured, by which the in-
surers were dischaiged; 7 D. ft
E. 702. It seems difficult to see
how that decision has any bearins
upon the principal case on one ttde
or the other,
(a) See the last note*.
HILARY TERM, X GEO. IV.
Indies and Slsewhere, means only a touching or staying in
the course and prosecution of the voyage insured, %vhicb
was, a voyage at and from Singapore, Penang, Malacca,
aad fiatavia, all or any of them, to Europe ; whereas the
toucbiog and staying at Sourabaya was not in the course or
prosecution of a voyage from Batavia to Europe, but of a
voyage from Batavia to Sourabaya and back.
Thirdly, the goods shipped at Sourabaya are not pro-
tected by the policy. The expression, '' beginning the
adventure upon the said goods and merchandize, from the
loading thereof on board the said ships as above" refers to
the description before given of the voyage, to the four spe-
cified places, at and from which the goods were insured ;
and, ia order to be covered by the insurance, the goods
must have been loaded at one of those four specified places.
In SpiUa V. Woodman, (a), the insurance was on goods on
a voyage at and from Gottenburgh to the ship's port of dis-
charge m the Baltic, beginning the adventure, *' from the
loading thereof on board the said ship;" and it was held to
cover only such goods as were loaded at Gottenburg. The
absence in the policy there of the words *' as above," and
their presence here does not vary the cases, for those words
cannot extend the operation of the instrument. The policy
in this case: would have been equally extensive if it had
omitted those words, and bad stated only, in general terms,
that the adventure on the goods should commence from the
loading of them on board the ship ; and in that view of
this case. Grant v. Paxton (6), SpUta v. Woodman (c). Con-
^ble V. Noble (d), and Mellish v. Allnutt(e), are direct au-
thorities in favour of the defendant. Nor is Gladstone v.
Clay (f\ an authority against him, because there the policy
was made to attach upon the goods *^ wheresoever-' loaded,
upon the insertion of which one word that whole case turned^
9nd which wholly distinguishes it from the present. In
537
1830.
Hunter
and others
V.
Leathlev.
(a) S Taunt. 416.
(*) 1 Taunt. 463.
(e) 2 Taunt. 416.
(<l) 2 Taunt. 403.
(e) 2 M. & S. 106.
(/) 1 M. & S. 418.
538
1880.
HUMTEE
and others
V.
LlATHIiBY.
CAS£S IN THE KtNG's &EMCH»
Orani v. Delacaar {0), the policy was on goods on ft voyage
from London to the East Indies and back, beginning die
adventure on the goods *' from the loaditig thereof on bosnl
the said ship at London.'* That was held to protect goods
not loaded on board at London, add necessarily so^ for to
bold otherwise would have been to decide that the policy
applied only to goods carried fit)m London to Indisi and
brought back again from India td London ; which Would
have been absurd on the face of it. The only cases that
can at all be regarded as authorities for the plaintiffs are
those of Violet v. AUntUi{b)t wd Barclay v. Stitlmg{c).
As to those it is enough to say of the first, that it was but little
considered, and that the goods there were taken on board
in the prosecution of the voyage insured ; of the second,
that it was decided entirely upon the authority of the first,
and that there also the goods were taken on board while the
vessel was prosecuting the voyage insured.
The Court took time to consider of their judgmenti
which was afterwards delivered by
LordTfiNTBRDBN, C. J.| who, after stating the hcU
found by the special verdict, thus proceeded. It is obvious,
on the perusal of this policy, (in which So many places of
departure and four ships are mentioned, with liberty to de-
clare and speciiy the particular ship and goods ttflerwardS))
that at the time of the insurance the assured must have been
ignorant of the particular port in the East at which goods
for them would be shipped, as well as of the name of the
ship and the species of the goods; and must, therefore, have
intended to protect themselves from loss, whatever might
be the sort of goods, by whichsoever of the four shipa socfa
goods might be sent, and at whatsoever place or placea in the
East they might be put on board t and the defendant, by
subscribing such a policy, must be understood to hftve in-
tended to afford a protection equally extensive, if the tenns
(a) 1 TauDt 466.
(6) 3 Taunt. 419.
(c) 5 M. & S. 6.
HILARY T£RM^ X GEO. IV.
of the pdii<9 will admit of such Aki effect being given to
Ihe instrument*
The mli^ for the construction of marine poltciea is tery
well laid doWn by Lord Etlenborough in the case of Robert*-
mn V. jFVericA (a)> which was cited in the argument. Hia
lordship there said^ " Jtt the course of the argument it
seems to have been assumed that some peculiar rules of
eoastrttction apply to the terms of a polioy of insurance^
which are not equally applicable to the terms of other in-
^tniments^ and in all other cases ; it is therefore proper to
state oil this head> that the same riile of eonstraetion ap-
plies equally to this instrument of a policy of insurance $
namely, that it is to be construed according to its sense and
meanings as collected, in the irst place^ from the terms used
in it; whith terms are themselves to be understood an their
plain^ Dlrditaaryi and popular sense, unless they have gene«>
rally) in respect of the subject-matter, as by the known
usage of trade>or the like, acquired a peculiar sense distinct
iiroljli the popular sense of the same words ; ori unless the
conteit evidently points out that they must) in the pardcukr
instance and in order to effectuate the immediate intention
of the parties to that conduct, be Understood m some other
spetifti and peculiar sense*''
Such, theUi being the object bf the assured^ and such the
rale of construction, we ere to look to the policy, in order
to gather from thence whether or no the whole or any part
of the plaintiflfs' interest can^ consistently with such de€i«
sions as have taken place on similar subjects^ be cbnsidered
it protected. The plaints contend that their entire in*
Uerest) as well it) the goods shipped at Sourabayaas in those
shipped at Batavia> is protected: the defendant insists
that no part -is protected; or^ supposing the goods
shipped at Batavia to be protected^ that the shipment at
Soarabaya is, nbt% The grounds on which it was contended
that no part was protected were, first^ that the policy did
BOt attach ; the goods shipped at Batavia being, As it Wall
urged, shipped, not for a voyage to Antwerp^ but for a voy-
(a) 4 East, ISO.
539
\9S0.
HottTsa
aad others
LBAtStiat.
540
1880.
Hunter
and otlien
liEATHLBr.
CASES IN THE KING S BENCH,
age to Sourabaya and back to Batavia ; from ivhence a
distinct voyage to Antwerp commenced. Secondly, tbat|
supposing the policy to have attached on those goods while
the ship remained at Batavia, yet the voyage to Sourabaya
was a deviation. The ground on which it was contended
that the goods shipped at Sourabaya were not protected,
was, that Sourabaya could not be considered as a port of
loading, or terminus a quo, within .the meaning of the
policy.
We are of opinion that the goods shipped at Batavia
were hi reality shipped for a voyage to Antwerp by way of
Sourabaya, and that the ship^s first departure from Batavia
was on such a voyage. And considering the very extensive
powers given by this policy, both in the first and last clauses,
we think the sailing to Sourabaya was not a deviation ; it could
not be so deemed without a direct contradiction to the terms
of the policy, it being clear that the ship sailed to Sourabaya for
the purpose and in the prosecution of the original adventure
contemplated by the policy. Upon these points the princi-
ple of the decision in Melluh v. Andrews (a), is applicable
to the present policy; the only difference between the two
case sbeing, that in MelUsh v. Andrews, the places of i&-
charge or termination of the voyage, and the course of sail-
ing for that purpose, were left undefined, by reason of the
uncertain state of commerce in the Baltic; and in the pre-
sent case the places of shipment or commencement of the
voyage, and the course of sailing for that purpose, are left
undefined, by reason of the ignorance of the assured as to
those particulars. The order in which the fonr places
named stand in the policy, shews plainly that a voyage in
the direct geographical or nautical course was not thought
of, it. being clear that it was thought possible that goods
might be laden at each of those places.
With regard to the goods shipped at Sourabaya, theqnei*
tion is, whether that place can be considered as a loading
port or terminus a quo within the meaning of the policy*
(r) 5 Taotit 496; 8 M. & S. 27 ; 16 East, SIS.
HILARY TERM, X GEO. IVi
Soambaya is certainly a place in the East Indies, and so
within the meaning of the words used in that part of the
policy wherein the voyage is described. But it is said that
the words '' ports and places in the East Indies, Persia, or
elsewhere,*' not following directly after the four places first
named as the termini a quibusj^ but after the places named
as the termini ad quos, and being introduced by the words
'' with leave to touch, stay, and trade,'^ cannot be under-
atood to designate places of shipment; but only places to
which the ship might be permitted to sail for some other
purpose. On the other hand, it was contended that those
words might, according to two decided cases which I shall
presently mention, be considered as designating places of
shipment, and that in this particular policy they must be
so considered, because the places to which the ship might
sail without deviation or prejudice to the insurance, are
afterwards mentioned and provided for by the policy in a
dutinci clause, of which the language is more loose and
comprehensive than the language of the first clause. Now,
if we suppose that a shipment of goods by the plaintiffs at
some place that might be imagined, as, for instance, on the
coast of Brazil^ would not be a shipment within the first
clause, and so not be protected by the policy ; but that,
nevertheless, if the ship, after receiving the plaintiffs' goods,
had sailed for that coast for some other lawful purpose, the
benefit of the policy would have been saved by virtue of
the latter clause; the two clauses will have each a distinct
and appropriate sense. And without determining what
efiisct the latter clause might have on a question as to the
places of shipment, we are clearly of opinion that the words
'Sports and places," Sec., in the first clause may and ought to
be understood as designating such places. And the two cases
of Violet V. Attnutt(a), and Barclay v* SHrling(fi), are plain
authoritiet to shew that a place mentioned after the words
''with leave to touch," Sec, may be understood as designat-
ing a loading port. The first of those cases was an insurance
on goods by a ship at and from Plymouth to Malta, with
(fl) S Taunt. 419. (6) 5 M. & S. 6.
18S0.
Hunter
and others
V.
LSATHLSY.
1830.
Hunter
and others
1?.
liSATBLBT.
CASES IN THE KING S BEVCH,
liberty to touch at Pensance, or any port in the diaimel to
the Westwfirdy for any purpose whatsoeTer. The ship, after
receiving some of the plaintiff's goods at Plymouth^ sailed
to Penaance, and there received other goods of the plaintiff}
after which a loss happened* The only question was^when
ther the insurance attached on the goods shipped at Pen-r
sanee. The verdict had been taken in respect of those
goods ; and the Court was cleiirly of opinion that the in-
surance did attach upon |hem| and refused even a rule nisi
for setting aside the verdict.
The case of Barclay v. Stir Hug (a) arose out of an ii|9ur*
ance on freight The voyage described in the fiolicy wa%
'^ at an<| from her port or ports of loading in Jamaica to
her port or ports of discharge in the United |[ingdpni>
with leave to call at all, any, or every one of the Bri-
tish and foreign West India Islands^ to seek, join* and ex-
change convoy, beginning the adventure upon the goods
from the loading thereof on board the said ship as afore-
said.*' In a subsequent part of the policy, after the psual
declaration that it should be lawful for the ship in diat
voyage to proceed and sail to, and toqch and stay at any
ports whatsoever, the following words were iBtM)diiced>
^^ and wheresoever, with leave to dischaige, exchange^ and
take on board goods at any ports pr places she may call
at or proceed to, without being deemed any deviilito from
and widiout prejudice to this insurance.'' That was an in-
surance^ not on the goods of any particular person, bot
on thfi freight lo be earned by conveying tl^e gqodl of
any person; but the question was the same as on a
policy on goods, ^he ship took in a cargo Ht Jamaica,
got on shor§ off the island of Cuba, and grM part of
her cargo was there lost. Sjie was afterwards taken to
the Havannab and repaired, and tbere took h aome freak
goods for London « and the question was, whether the
freight of these latter goods was proteoted by tha policy.
The Court held that it was protected, considering the peHcy
to attach on die freight qf goods laden fit any intermediate
(b) 6 Maule & Selw. 6.
HILARY TERM, X GEO. IV.
place in the course of the voyage, and not to bv confined to
the freight of goods shipped al Jmiraica.
For these nasene^ and upon these authorities^ we think
die ylsiiliffii entitled to lecover in respect of all their goods*
No question was made as to the short interest, the actual
valoe of the goods being less than the value mentioned i|i
the policy ; and therefore the judgment will be, that the
plaintiflfs recover the sum of 254/. 145.
Judgment for the plaintiffs (a)
(a) On error broaght, this judg-
ment was affirmed; Leathley v.
Hva/^r, 5 Moore & P. 457; 7
Bingh. 517; 1 Croinpt. & Jery.
423; 1 Tyrwh. 355; Dans. & LI.
232; LI. & Welsb. 125; 4 Nev. &
Mann. 545.
543
1880.
Hdvtbr
and others
V.
LSATBLET.
Tb^ KiNQ V, The Scriveners' Company.
Mandamus. This was a mle calling on the defend- ^^^^^^
9Qts, the incorporated Company qf Scriveners of the City prentice to a
of Ii>Ddoi]. to show cause why a writ of mandamus should ^^^^?1^
not issue, directed to them, commanding them to admit and during the
Alexander Fox Ridgway to thp freedom of the Company, term acted as a
The afiidavits upon which the rule nisi was granted, ^.?"^®'^® f^**
^ o ' jjjl £yg oclock
stated, m substance, as follows: — in the afler-
That by an indenture of apprenticeship, dated 19 June, 3" h^'^^ent
18S2i fU^waji had l>ound himself clerk of apprentice ^p to the notary's
one Drake^ a notary pi^blic, to learn the art, trade, busi- pio^aThe ^°^"
ness, profession, or mystery of a notary-public and scri- evening in pre-
i- 11 i. 1 • 1 1 i. «i renting bills of
veneri tq serve from the date of the mdenture unto the full exchange and
end find term of sev^p yevs; tha^t J^i^g^aj/ did, by virtue preparing pro-
tests, IS not a
of the indenture, actually and really serve, and was em- person who
plo^ei] by Drake, i^s his clerk or apprentice, for and during ^^ emproyed
the i|fhQ]e |im^ and terip of seven ye^rs thereip specifiec] ; by the notary
that lUdgway being desirous on the expiration of bis ap- Jhob term,
in the proper
biifioesi pf a noUiy, withip the rpeaning of the statute 41 Geo. 3, c. 79, s. 7, and is not
entitled to act as a nptary.
Nor is such a person entitled to be admitted to the freedom of the Scriveners' Com-
pany, for the purpose of being enabled to apply for a faculty to practise as a notary,
within s. 13 of the same statute.
644
1830.
TTie KivG
Scriveners'
COMPAVT.
CASES IK THE KING S BENCH^
prenticesbip^ to be sworn, admitted, and inroUed as t
notary public, with a ^iew of practising in such professkn
within the City of London and liberties thereof, Drake, on
25 June, 1829* made the affidavit of the due ^nrice of
Bidgway under the indenture, to the purport tnd effect
prescribed by the stat. 41 Geo. 3, c.79t intituled ^ An Act
for the better Regulation of Public Notaries in England" (a),
(a) By that Act, s. 1., reciting
*' that it is expedient for the better
prevention of illiterate and inexpe-
rienced persons being created to act
as, or admitted to the fiiculty of,
public notaries, that the said faculty
should be regulated," it is enacted,
" that no person shall be created
to act as a public notary, or use
and exercise the ofllce of a notary,
or do any notarial act, unless snch
person shall have been duly sworn,
admitted, and inrolled in man-
ner hereinafter directed, in the
Court wherein notaries have been
accustomarily sworn, admitted,
and inrolled."
By s. 2, <' No person shall be
sworn, admitted and inrolled as a
public notary, unless such parson
$hall have been bound by contract
in writing, or by indenture of ap-
prenticeship, to serve as a clerk or
apprentice for and during the
space of not less than seven years
to a public notary, or to a person
using the art and mystery of a
scrivener, according to the privi«
lege and custom of the City of
London, such scrivener being also
a public notary, duly sworn, ad-
mitted and inrolled, and that such
person, for and during the said
term of seven years, shall have
continued in such service."
By s. 6, " No public notary, or
scrivener being also a public no*
taiy, shall take, have, or receire
any dak or apprentice, who shiU
become bound as aforesaid, qftet
such public notary, or scnveneT
being also a public notary, ifaaU
have discontinued or left off, tf
during such time as he shall not
actually practise or cany on, the
bu»ness of a public notaiy."
By 8. T, " Every person irbo
shall become bound by coatraa is
writing, or indenture of appieo-
ticeship, to serve any public no-
tary, as hereby directed, shaB
during the whole time and tens
of service to be specified io ndi
contract or indenture, or doiiog
the time and space of seven yens
thereof at least, if bound for i
longer term than seven yeuti
continue and he actualfy o^p^
by tuch public wdmry, or terhcMir
being alto apMie notary^ t» t^
proper 6ttsiaeu, practice^ or emfitf
ment of a public notary."
By s. IS, reciting, that die is-
corporated Company of Scrivenen
of London, by virtue of its chiitff
had jiuisdiction over its membtis
being resident within the City of
London, the liberties of Westmin-
ster, the borough of Southwari, or
within the circuit of three miles ot
the said City, and had power to
make good and wholesome laws
and regulations for the gotern-
ment and control of such membcfs
HILARY TERM, X GEO. IV. 545
ibat Ridgway, in order to enable himself to apply for a i83o.
faculty, aa directed by that act, ou 29 July, 1829, applied ""^^^^^
CO the Scriveners' Company, at a meeting of the said Com- v.
pany, to be allowed to take up the freedom of the said Scriveners'
^ . , . Company.
Company, as directed by the said act; but that on such
occasion the said Company refused to admit Ridgway to
the freedom of the said Company, without assigning any
reason; and that, by reason of such refusal, Ridgway was
prevented from applying, or founding any application, to
the Court of Faculties, as prescribed by the said act.
The affidavits in answer to the rule contained the fol-
lowing statement: —
That the freemen of the science, art, or mistery of scri-
veners of the city of London, and suburbs thereof, were,
bj letters-patent of King James the First, bearing date the
28th of January, in the fourteenth year of his reign, incor-
porated by the name of the Master, Wardens, and Assist-
ants of the Society of Scriveners of the City of London;
that by the said letters-patent it was ordained, that at all
times thereafter there should be one master and two war-
dens of the said Society, and twenty-five other persons of
ind the said Company of Scri- payment of sach and the like fine
reners practising within the afore- and fees as are usually paid and
said limits, and that it is there- payable upon the admission of
fore expedient that all notaries, persons to the freedom of the said
Ksident within the limits of the Company, and shall, previous to
said charter, shall come into and the obtaining such faculty, be ad-
be under the jurisdiction of the mitted to the freedom of the said
^d Company, it is enacted, Company, and obtain a certificate
** that all persons who may here- of such freedom, duly signed by
after apply for a faculty to become the derk of the same Company
apablic notary, and practise with- for the time being; which certifi-
in the city of London and the cate shall be produced to the
iiherties thereof, or within the cir- master of faculties, and filed in
cuit of three miles of the same his office, prior to or at the time
citj, shall come into and become of issuing any such faculty to such
membeis, and take their freedom person to enable him to practise
of the said Company of Scriveners, within the jurisdiction of the said
according to the roles and ordi- Company."
ttoces of the said Company, on
VOL. V. N N
^46 CASES IN THE KINOES BENCH,
18S0. the laid Society, Darned asaktants; tliat they, the master,
The King ^"**^***» "°<* assistants of the Society, should make bjfe-
V. laws for the better goversmeDt of the Society; that they,
CoMPAMT. ^^^ master, wardens, and assistants, had divers ancient
rules by their predecessors established, and some others
by themselves, for the better government of the Society,
and, among others, the following: — '* That no person
thereafter should be enfranchised or admitted into the free^
dom or liberties of the said Society, to make open profes-
sion of the aforesaid science or art, until sach time as he
should have fio'st been duly eiamined touching his soffici-
ency and ability to use and exercise the same, before the
master, wardens, and assistanto of the said Society, or any
six of them, and should have been, by the said master,
wardens, and assistants of the said Sodety, or such six of
them as aforesaid, upon auch examination, declared and
approved to be of sufficiency and ability, and should have
taken an oath as was thereinafter appointed :'* That these
bye-laws, and the oath thereby prescribed, were, with the
other bye-lawa of the master, wardens, and assistants, (in
pursuance of an act of the 19 Hmry 7,) duly approved
and allowed by the Lord Chancellor and two Chief Justices
in the 16 James 1 ; that they remained unaltered, and bad
from time to time been observed; that since the passing of
the statute 41 Geo. S, c. 79» the master, wardens, and as-
sistants had, previously to the admission of any person
applying for the freedom of the Society, for the purpose of
obtaining a faculty to practise as a notary-public, required
all such persons to produce evidence before them of the
actual service of all such persons respectively to notaries-
public for the full time and term of seven years, according
to the tenor and effect, true intent and meaning of the said
act. That at a Court holden on the 29th July then last, the
indenture of apprenticeship between Drake and Ridgeat/
was laid before the master, wardens, and assistants bj
Ridgway, and he then applied to be admitted to the free-
dom of the said Society, for the purpose of obtaining a
HILARY TERM, X GEO. IV. 547
ftcolty to practise as a notary-public within the city of IBSO.
London and the liberties thereof; that being interrogated _,. ^
as to bis service under the indenture of apprenticeship^ he, v,
in answer to several questions put to him by the roaster. Company.*
wsrdens and assistants, stated, that previously to, and at
the time of the execution of the indenture, and during the
whole of the term of seven years mentioned in the inden-
ture, he, Ridgway had been and then was a clerk in the
service and employ of Messi's. Hopkinsons, bankers, in Re-
gent Street; that the hours of business at their banking-
house were from nine o'clock in the morning until five
in the afternoon; and that he, Ridgway, had been accus-
tofDed to attend at the office of Drake to transact and be
employed in the business of a notary after the hour of five
o'clock in the afternoon of each day; that the master,
wardens, and assistants, considering such alleged service
colourable, and an evasion of, and contrary to the tenor and
effect and true intent and meaning of the said act of 41 G.3,
c. 79, and calculated to defeat the intention thereof, by
the admission of unqualified persons to the freedom of the
said society, and thereby enabling them to obtain faculties
as notaries-public, refused to admit him, Ridgway, to the
freedom of the said society.
Campbell, Denman, C. S., and Piatt, shewed cause.
This rule must be discharged. The service with Drake
die notary was merely colourable, and did not satisfy the
requisitions of the act of parliament. The real service
was with Messrs. Hopkinsons, the bankers. If this person
is entitled to the freedom of the Company, every banker's
clerk in the metropolis, who occasionally employs his even-
ings in presenting bills for payment, must be equally enti-
tled. Unless every thing has been done which the act of
parliament requires, the party is not qualified to be ad-
mitted to practise as a notary. Here Ridgway was bound
apprentice to a notary for the term of seven years ; but he
did not '^ continue and be actually employed 'n the proper
N N 2
Hie Kino
S48 CASES JN THE KING's BENCH,
1830. business and practice of a notary during the term of seven
years ;" which the seventh section of the statute expressly
V. '**' required him to do. A very small portion of his time daily
^RfVENERs' ^38 employed in the service of the notary; the great bulk
of his time and attention was given to the business of the
bankers. Such a course of life would not enable him pro-
perly to qualify himself for practising as a notary, and he
must have been, therefore, one of those ** inexperienced
persons" whom, it is clear from the preamble of the act, it
was the object of the legislature to exclude from so prac-
tising. The provision in this statute, as to service with
notaries, is very similar to that in 2,2 Geo. 3, c. 46, s. 8, as
to service with attorneys, which is, that every person bouad
to serve any attorney shall, during the whole term and time
of service, continue and be actually employed by such
attorney, in the proper business, practice, or employment
of an attorney. Under that act it was held, that a derk to
an attorney, who, during the term for which he was bound,
held the office of surveyor of taxes, could not be considered
as having served his whole time and term in the proper
business of an attorney, within the meaning of the act;
In re Taylor {a). Now that case is precisely in point,
therefore Ridgway has not duly qualified himself to prac-
tise as a notary, and the Court will not compel the Com-
pany to admit him to the freedom.
Scarleii, A. G. and Manning, contrjl. First, the service
with the notary was sufficient. The provision, that the
clerk shall be employed in the business of a notary ** during
the whole time and term of service," does not mean that
he shall be so employed every hour of every day, during
the term for which he is bound; but that he shall be so
(a) 5 B. & A. 538. S. C. 6 D. and that the statute was not com-
& R. 428; 4 B. & C. 341 . And plied with by the derk serving ptrt
see £r pArte HtU^ 7 T. R. 456, of the time with another attornev,
where it was held, under the same though with his master's consent,
act, that the clerk must actually and the rest of the tinne with bis
serve the five years under articles, master.
The King
HILARY TERM, X GEO. IV, 549
employed during those hours in which the business of a 1830.
notary is usually transacted. Now the business of a notary
at the present time, whatever it may have been formerly, ©.
consists solely in presenting, during the evening after bank- Scriveners
ing hours, such bills and notes as the drawers have refused
to accept or pay during the day, and to prepare the protests
in respect of them. The whole of that may be done, and
in point of fact is done, during the evening, commencing
after 6ve in the afternoon, when the banking-houses close,
and till when dishonoured bills and notes do not find their
way from the bankers, or other holders, to the notaries.
Therefore Ridgway% employment with the bankers, during
tie morning, was perfectly consistent with his being employed
by the notary for the remainder of the day, which comprised
the usual and regular hours for transacting the business of
a notary; and it is not denied that he was so employed
regularly in the evening. Then, secondly, if he has served
bis apprenticeship pursuant to the provisions of the act, he
is entitled, as of right, to be admitted to the freedom of the
Company. The act is imperative. The Court of Assist-
ants have but one thing to do, namely, to admit; they have
no authority to examine the applicant as to his fitness.
That power is vested in other hands ; the Court of Faculties
is the place where the qualifications of a party applying for
a faculty are to be inquired into and judged of: and the
admission to the freedom of the Company by the Court of
Assistants does not enable the party to practise, but merely
places him in a condition to present himself before the
Court of Faculties, who are to decide whether he shall be
allowed to practise or not. Upon both these grounds it
seems clear that this rule ought to be made absolute.
Lord Tenterden, C.J. — I am of opinion that this rule
ought to be discharged. The act of parliament cannot be
considered as imperative upon the Company to admit any
person who applies: the utmost effect we can give to it is
550 CASE3 IN THE KINg's BENCH,
1830. to say, that it is imperative upon tbeni to admit every per*
fr^T^^C^ son who has duly served such an apprenticeship as the act
V. of parliament requires. The act requires that he shall,
^CoMprN^y" during the whole term, be in the employ of his master as a
notary. It is conceded that Mr. Ridgvmy was a bankers
clerk during the whole term, and employed as such daily
until live o'clock in the afternoon; that after five o'clock in
the afternoon be went to the ofiice belonging to Mr. Drah,
where, it seems, he made some entries in a book of the
bills he had to present, and then took them out and pre-
sented them : and it is suggested that the whole buaiaess
of a notary consists in presenting bills of exchange ami
drawing up protests. Even if that were so, it would be
very difficult to make out that this young man, between
five o'clock and bed-time, could draw up the protests upon
the bills he had presented in that interval ; but it is by no
means correct to say that that is the whole business of a
notary. A notary in the city of London has many more
duties. Almost all the charter-parties are prepared by no-
taries, as appeared in a very late case in a trial before me
at Guildhall. The ship's broker prepares the minutes of
the contract, which is afterwards put into form by a notary.
There is another part of the duty of a notary, which is, to
receive the affidavits of mariners and masters of skips, and .
then to draw up their protests, which is a matter requiring
care, attention and diligence. Besides that, many docu-
ments pass before notaries under their notarial seaU which
gives effect to them, and renders them evidence in foreign
courts, though certainly not in our courts of common law.
There is a great deal, therefore, to be done by a notary,
perfectly distinct and independent from this mere matter
of presenting bills of exchange and drawing up protests.
It seems to me, that to bring a person within the terms of
this act of parliament, he should be apprenticed to a notar)
who can and does employ him in that which is the proper
business of a notary, and not to one who is to employ him
HILART TERM, X GEO. IV. 651
only in going about late in the evening and presenting bills 1830.
of exchange, which was the case in this instance. ^T*"!!^^
° The Kino
V.
LiTTLEDALE, J. (o) and Parke, J., concarred. Scriveners'
' ^ ^ * ' Company.
Rule discbarged.
(a) fiffyl0y» J., was gone to cbamben.
Bbkjanin Wood and Gboboe NoTTiifOE the younger,
Assignees of Isaac Briohtwen, Robert Briohtwen,
and Isaac Bbiohtwen the younger. Bankrupts, v.
Grimwood.
i ROVER by the plaintiffs, as assignees of the bankrupts, A.9 having
Brightfoens, for title-deeds. The first count was upon the chaseaDestate
possession of the bankrupts, Isaac Brightwen and Robert ?^ ?•» *"^ .
D-i t*. t*»i • having receiv-
nngntwen, before their bankruptcy : the second count was ed the title-
upon the possession of the assignees. Plea : not guilty, ^IJ^on'^'^'''
and issue thereon. At the trial before IjOTdTenterderifCJ., C., and depo-
at the adjourned Middlesex sittings after Hilary term, 1829, J^. wtih'*'*"
the case was this : — him as a se-
The plaintiffs were the assignees under a commission of j^g to murt-
bankrupt, which issued on the 22nd of May, 1828, against gsgotheesuite
the three Brightwens^ under which they were duly declared ever he should
bankrupts. Isaac Brightwen carried on, at Coggeshall in Jl^'^^Jf^^n.
Essex, the business of a brewer, in partnership with the veyance. A.
other two bankrupts, his brother and son, and also the ^{J^fromT
business of a maltster and corn-dealer on his own separate B. ihe deed of
account. The derendant was a considerable farmer in the ||,e estate,
which he then
dfJirered to C as a farther securitf . In the interval C. refused to oomplete the mort-
pige unless A. woald pay usarious interest on the money lent, to which A, agreed. A,
afterwards became bansropt, and his assignees brought trover against C. for the deed
tif conveyance: — Held, that the original possession of the tide-deeds being good, gave
C. a right to the estate whenever it should be conveyed to A,^ and therefore that C
«as entitled to retain the deed of conveyance of the estate against the assignees of ^.
Orimwood.
552 CASES IN THE KINg's 0ENCH5
1830. same neiglibourhoocL In the year 18^ the tMinkruptf
were indebted to the defendant in the sum of 5000/. for
Wood
V. ' money lent, secured by the mortgage of an estate belonging
to Isaac Brighlwen, which he having agreed to sell to Mr.
Alderman Bridges, he gave the defendant notice of his
intention to pay oflf that mortgage. In May, 18^59 Isaac
Brightwen agreed to purchase of a Mr. Tabor of Colches-
ter, for tlie sum of 16,000/., an estate partly freehold aod
partly copyhold, comprising a brewery and several public*
houses, and applied to the defendant to advance him 8000/^,
proposing to secure 5000/. by a mortgage on the freehold
part of the estate purchased of Tabor, and the remaining
3000/. by the bond of himiielf, bis brother and son. On
the 31 St of August, 18^, Mr. Alderman Bridges completed
the purchase of the estate he had agreed to buy of Isaac
Brightwen. The parties met at the office of the defend-
ant's solicitor, and the defendant was there. The 5000/-
was paid over to the defendant by the solicitor of Alderman
Bridges, and the defendant re-lent it to the BrighiwenSt
who gave him their promissory note for it as a security until
the purchase of Tabor*s estate could be completed, and
the mortgage deeds of the freehold part of that estate could
be executed. In the month of September, 18^5, the de-
fendant advanced the Brightwens a further sum of 5000/.
On the 19th of April, 1826, the title-deeds of Tabor's
estate were, with his consent, delivered to the defendant's
solicitor, who signed a memorandum in writing, acknow-
ledging that the Messrs. Brighlwen had deposited with
him, as solicitor to the defendant, the several dtle-deeds
relating to the estate therein mentioned, and which was
intended to be mortgaged to the defendant, for securing the
sum of 5000/., immediately upon the conveyance of such
estate to Messrs. Brightwen. On the 28th of September,
1826, the defendant having previously claimed to have the
copyholds as well as the freeholds included in the mortgage
deeds, Isaac Brightwen went to the defendant, and re-
minded him that by the agreement between them the free-
HILARY TERM, X O£0. IV.
hold part of the estate only was to be mortgaged to him.
The defendant said he had a quantity of beans and barley,
which he wished the BrightweM to purchase* Hie pro-
duced a sample of each, and . asked 558, a quarter for the
beans, and 48s. a quarter for the barley, which was much
above the market price. Isetac Brightwen said, ^* It was
100/. more than they were worth, and he could not afford:
to lose so much money." The defendant said, ** He knew
it waS| but that was the price he meant to have for them.*'
Isaac Brightwen said, ** Then you mean to have a bonus?"
The defendant said, " Yes, it is worth something for the
risk." Isaac Brightwen said, " It will be well to take care
of usury." The defendant said, ** He thought he could
manage that, but he did not know he should have anything
to do with it;" and afterwards added, ** He would let it
stand over till Braintree fair, in the next week, and then
Brightwen must give him an answer." It was agreed
among the Brightwens, that as the loan would be for their
joint use, the loss upon the transaction should be a joint
coocem. On the 4th of October, 182G, Isaac Bright-
wen met the defendant at Braintree fair, when the conver-
sation about the beans and barley was renewed. The de-
fendant said, ** He would not take any less than the price
be had mentioned." Isaac Brightwen said, " He (the de-
fendant) knew it was more than the market price." The
defendant said, '^ / mil have that price, or I will not com-
plele the mortgage.*^ Isaac Brightwen said, " If it must be
so, I will take them ; but I must have six month«^' credit,
for it will take some time to turn them into money." The
Brightwens accordingly had the beans and barley at the
price named by the defendant, and they sold them at a loss
of 81/., though the market price was higher when they sold
them than it was when they bought them of the defendant.
On the 2nd of September, 1826, the brewery and public-
bouses were conveyed by Tabor to Isaac and Robert
Brightwen, and on the 25th of October, 1826, the mortgage
from them to the defendant was executed, and the convey-
553
1830.
554
1830.
Wood
V.
Grimwood.
CASES IK THE KINGS BENCH,
ance to them from Tabor ii?as at the same thne handed
over to the defendant's solicitor, and the transactions be-
tween the parties closed.
Upon this evidence. Lord Tenterden left it as a question
of fact to the jury, whether the bargain respecting the beans
and the barley was made as the price of accepting the
mortgage and continuing the loan, directing them diat if
they thought it was. that was a corrupt contract, which
would vitiate every thing done afterwards, -and the plaintiffs
would be entitled to recover in respect of the deeds depo-
sited with the defendant on the 25th of October, 1821,
after the completion of the contract respecting the beans
and the barley : if they thought otherwise, the defendant
would be entitled to a verdict. The jury found a verdict
for the plaintiffs, with nominal damages, the defendant un-
dertaking to deliver to the plaintiffs the deeds deposited
with him on the 25th of October, 1826.
In Easter term, 1829, Tindal, S. 6., obtained a rule nisi
for a new trial upon two grounds : first, that the plaintiffs,
in order to entitle themselves to maintain an action for the
recovery of the deeds, ought to have tendered to the defend-
ant all the money really advanced; and for this he cited
Fitzroy v. GwilHm {a): secondly, that by the deposit of the
title*deeds of Tabor^n estate in April, which was prior to
the making of the usurious contract, the defendant became
the equitable mortgagee, and was entitled to have the legal
estate conveyed to him, and the deeds, which were the evi-
dence of the legal estate, delivered to him, upon the com*
(a) 1 T. R. 153, where it was
held, that where goods have been
pawned to secure an ad\'ance of
money on an usurious contract,
the owner cannot recover the goods
in trover without tendering the
money and legal interest, — upon
the general equitable principle that
he who seeks equitable relief must
do equity. And see Bomtqtui v.
Doikwoodt Cas. temp. Talbot, 38;
Vin. Abr. tit. " Usury," p. 315, to
the same effect. It was, however,
agreed on all hands, upon the ar-
gument of the principal case, that
the decision in Fitzroy v. GmUim
could not, upon any legal prioci-
pie, be supported.
HILARY TERM, X GEO. IV. 555
pletioo of the purchase and the perfecting of the title ; and 1B30.
that the deeds deposited in October were in fact deposited
in pursuance of that contract, and not in pursuance of the
usurious contract
In the same term ScarUti, A. G., obtained a cross rule
for extending the verdict for the plaintiffs to all the other
deeds.
Scarktt, A.G., and Fallett, on a former day in this term,
shewed cause against the rule for a new trial. The case of
Fitzroy v. GwUlinif which wjis cited when this rule was
moved for, cannot be supported upon any principle of law.
It is, indeed, a decision against all legal principle; for a
person can have no title, legal or equitable, to the possession
of deeds obtained under a contract founded upon an usurious
consideration. The mortgage here was founded upon an nsu^
rious contract, and is therefore void; and the mortgage itself
being void, the defendant can have no right to the possession
of the deeds by which Tabor conveyed to the bankrupts, and
which were delivered to the defendant on the very day the
mortgage was executed. [Brougham^ who was to support the
rule, here admitted that he could not rely upon the decision
iu FUzrojf V. Gtoillim, and must therefore abandon the first
ground upon which the rule was obtained,] Then, as to
the second ground. Assuming that the deposit of Taboi's
title-deeds in April gave the defendant an equitable title,
from that time, to the deeds of conveyance from Tabor to
the bankrupts, still the subsequent corrupt contract ren-»
dered him a party in delicto^ and prevented him from setting
up that title as an answer to the claim of the assignees.
That the mortgage was ultimately accepted in pursuance of
the corrupt contract is clear, for the defendant refused to go
on with the original bargain : he is told that the price he
asks for the barley and beans is more than the market price,
which he does not deny, but says in answer, '' I will have
that price, or I will not complete the mortgage.** [Parke^i.
The only question in the case is this — Had he, or had he
CASES IN THE KING S BENCH,
not, an equitable title to the deeds of conveyance from
Tabor to the bankrupts before the mortgage was executed?
If be had not — if his title first accrued at the time of the
execution of the mortgage, — it is quite clear that it cannot
be supported, because of the usurious contract; but it
seems to me that he had an equitable title to those deeds
prior to that usurious contract : and if he had, such a title
is certainly a good answer to an action brought by the
assignees of a bankrupt. Suppose those deeds had been
handed over to the defendant at the time when this usurious
contract was made, — he would then have had a legal title to
them ; — would he lose that title by any subsequent usurious
transaction, as by refusing to continue the loan without a
bonus i If he would not, neither does he lose his equitable
title in this case ; and if he does not, he is not answerable
to the assignees. He did not acquire his equitable title bj
the corrupt bargain : he had it before. If, when he threat-
ened not to complete the mortgage unless he had a particu-
lar price for the com, he meant to abandon his right to
have a mortgage at all, and no longer to enforce the con-
tract for that mortgage made in April, — in that case he has
lost his equitable right by his own act. If, on the other
hand, which seems to me the real effect of the transaction,
he meant, not to abandon his existing right, but merely to
say that he would not allow the money to remain any longer
on loan, — in that case he has not lost his equitable right;
and that right is an answer to this action.] The deeds de-
posited in April were not intended as a security for the
5000L advanced, but were deposited for the specific pur-
pose of completing the mortgage security; and having been
deposited for that purpose, and the person with whom they
were so deposited having refused to complete the mortgage,
he could no longer have any equitable right arising out of
the deposit, because he had refused to perform the specific
purpose for which the deposit was made.
Broughdm, F. Pollock, and Wightman, contri. The
HILARY T£RM, X GEO. IV. 567
plaintiflfs cannot recover the deeds deposited with the de- i830.
feodant subsequently to the alleged usurious transaction,
because the execution of the mortgage by the party depo-
siting those deeds was not voluntary. The deeds deposited
with the defendant in April, prior to the alleged usurious
traosaction, as a security for the advance of the 5000/.,
gave him an equitable right from that moment; in fact,
he then became the equitable mortgagee ; Russell v. Rus-
sell (fl) : if so, he had then a right to have the legal estate
conveyed to him as soon as that was feasible, for the deposit
of title-deeds upon a loan of money, or for any legal con-
sideration, gives the pledgee a right to have the legal estate
conveyed to him : Ex parte Wetherell (Jb). Upon a contract
for the sale of an estate, the title and abstract to be made
at the vendor's expense, the purchaser is entitled to the cus-
tody of the abstract until either the purchase is finally
rescinded by consent, or is declared impracticable by a
court of equity : Roberts v. tVyatt (c). In this case the
defendant had nothing to complete : he had performed his
part of the contract by the advance of the 5000/. But the
borrower of that money had something to complete; he had
partially secured the lender by depositing with him Tabw*9^
titlenieeds, and thereby giving him an equitable right to the
estate which was to be mortgaged as the security for the
loan ; but it still remained for him to secure him entirely,
by giving him Tabor^% deeds of conveyance, and thereby
clothing him with the legal right to that estate. The con-
tract made in April gave the defendant a right to the con-
veyance made in October, and he did not lose that right by
agreeing in the interval to give an illegal consideration for
the conveyance, because his right existed before the agree-
ment for that illegal consideration was made. In Barnes v.
Hedley (d) it was held, that after usurious securities given
for a loan had been destroyed by mutual consent, a promise
by the borrower to repay the principal and legal interest
(a) S Bro. Ch. Ca. 990. (c) 9 Taunt. 268.
(6) 11 Vesey, 401. ((i) 9 Taunt; 184.
558 CASES IN THK KIKO'S BENCH,
aaaa was founded on a Mifficieot coondenilkm and blading. As
to die other deeds, which were deposited with the defendant
Wood
Gbiuwood.
V. before the alleged usurious transaction, the plaintiffs cannot,
at all events, recover those ; for they were deposited in pur-
suance of the original contract made in April, which was a
perfecdy valid contract, upon which the subsequent corropt
contract conld not have a retrospective effect.
Cur. adv. vali.
The judgment of the Court was now delivered by
Lord Tenterden, C.J. — We are of opinion that the
rule for a new trial in this case ought to be made absolute.
The defendant had, in April, 1826, obtained the possession
of the title-deeds of an estate about to be purchased of Mr«
Tabor by two of the Brighiwem, npon a good and valid
consideration, unmixed and untainted with any usury what-
ever ; and the question is, whether or not he is entitled to
retain the deeda of conveyance of that estate from Mr.
Tabor to the Brightwens, which were deposited with him in
October in die same year. The objection taken to his
right to do so was. that in the interval between the depoAt
of the titie-deeds in April and of the deeds of conveyance iu
October, there had been conversations between one of the
Brighhoens and the defendant, in whicdb the defendant had
insbted upon having a bonus, *^ otherwise" — according to
his own phrase— '^ he would not complete;** and it was con*
tended, on the part of the plaintifiEs, that the deeds of coo-
veyance having been delivered after that conversation, that
conversation being evidence of an usurious contract, the
defendant could not retam those deeds* We are, however,
of opinion that the original possession of the title-deeds
being perfectly good, and free from any vice or any kind of
usury, gave him a right to the estate whenever Mr. Tabor
should convey that estate to the Brightwem; and that be,
having a right to the estate itself whenever it should be con-
veyed, had a right also to the deeds of conveyance of that
HILARY T£RM, X 0£0. IV. 559
estate. The verdict takeo was cpnfioed to those deeds; 1830.
and we think the deCendant is entitled to those deeds» aiic|»
coasequently, that the rule for a new trial ought to be
made absolute. The rule obtained on behalf of the pbua-
tifiiiy that the verdict should stand as a security for the
delivery up of the other deeds, must, of course, be dis-
Rule for a new trial, absolute.
Rule to extend the verdict, discharged.
The King v. The Inhabitants of Great Bentlet.
Upon appeal an order of removal from little Clacton to Under 6 Geo,
Great Bendey, in Essex, was confirmed, sul^ect to the fol- ^^'^V WUL
lowing case : — 4, c. 18, a set-
Tfae pauper (Johu PeUiag) hired a tenement, consisting Ja^^byrent-
of a separate and distinct dwelling-boose and a field of two |ng<^ dwelling-
acres, in Little Clacton, from 25th December, 1826, for land at a rent
two years, at 13/. 10». a year. In March, 1827, the pauper ^JJ|^,'"^ ^j'"
sold the grass in the field from that time till Michaelmas^ provided the
for 10 guineas, to JoAii Taumsend, to be mowed or fed, ^ent^fl^JToc-
during which time the pauper discontinued turning a cow cupied under
and an ass into the field, as he had before done, because although me
be did not consider that he could feed the grass after the ^^ were not
. occupied by
sale to Tawnsend. The pauper asked and obtained Toioits* the renter him-
€Mf s leave to stack some clover in the field, and abated one '^^.i^^^of
shiUmg from a claim which he had against Tawnsend for the land.
labour, as an acknowledgment for damage done to the grass
by the clover stack. The pauper sold the grass to Totms-
end m the same way in 1828. The court of quarter ses-
sions held, that no settlement was gained, inasmuch as
during the pauper's agreements with Totcmetid, he did not
occupy the field under his yearly hiring in the manner re-
quired by 6 Geo. 4, c 57.
fi60 CASES IN THE KING^S BENCH,
18S0. Knox and Brodrkkf in support of the order of sessions.
The occupation of the house aud the occupation of the
V. land were distinct, aud if ejectment had been brought to re-
" Great^ cover both, there must have been a separate service of a
BBNTLEr. declaration in respect of each, upon the pauper and open
Townsend. So each would have been separately liable to
assessment to the poor-rate. This distinguishes the present
case from Rex v. Ditcheai{a), where the tenement consisted
of a house only. Besides which that case is of doubtful
authority. The decision was not unanimous, aud one of the
learned judges, who concurred in the judgment, thought that
the intention of the legislature would be thereby defeated.
By this statute it was intended to place houses on the same
footing as land, and not to place land in the situation of
houses under 59 G, 3, c. 50. Rex v. North Collingham{h\
Bex V. Toubridge (c). The 59 Geo. 3, c. 50, expressly
requires the occupation for a year to be by the person fairing.
The latter words are not found in 6 Geo. 4. c. 57* which
requires the occupation to be for a year under such yearlv
hiring; but the omission of these words ought not to be
allowed to defeat the clear intention of the legislature. The
words even of the latter statute are, however, not satisfied.
No person but the lessee and his assigns can be said to
occiipy under the original yearly hiring, the occupation of
a sub-lessee being referable to the sub-letting. A sub-lessee,
therefore, does not occupy under the original yearly hiring,
and here the original lessee does not occupy at all. The
agreement with Townsend amounted to a sub-lease. Rex v.
Stoke (d).
Mirehouse control. The 6 Geo. 4, c. 57, requires an
occupation under the yearly hiring ; here the tenement was
occupied by the pauper or his sub-lessee. The pauper was
(a) ilnfo. vol. iv. 151; 9 Bam. (c) 9 Dowl. & Ryl. 1S8; 6
& Cressw. 176. Barn. & Cressw. 88.
(b) 9 Dowl. & Ryl. 745; 1 (d) 8 T. R. 451.
Bam. & Cressw. 578.
The King
HILARY TERM, X GEO, IV.
the legal tenant, he was rated and was liable to a distress,
and. to an action for use and occupation. By omitting the
words ''by the person hiring the same;" the late statute v.
dispenses with an actual occupation by the lessee, and occu- ^"^^ORErr* °^
pation under the yearly hiring will be satisfied by the occur Bent let.
pation of a sub-lessee. The Court will not do violence to
the words of the statute in order to give effect to a sugges-
tion as to the intention of the legislature. Rex v. Bar^
kam{a\ But the agreement between the pauper and
Townsend was not a sub-lease, it was merely a sale of the
grass (i).
Cur. adv. vult.
Lord Tenterden, C. J. — We are of opinion that every
thing required to be done by 6 Geo, 4, c. 57, s. 2, was done
in this case, and that the pauper gained the settlement in
question. That statute enacts, that no person shall acquire
a settlement in any parish or township maintaining its own
poor, by or by reason of settling upon, renting, or paying
parochial rates for, any tenement not being his or her own
property, — unless such tenement shall consist of a separate
and distinct dwelling-house or building, or of land, or of
both, bona fide rented by such person, in such parish or
township, at and for the sum of 10/. a year at the least, for
the term of one whole year, — nor unless such house or build-
ing, or land, shall be occupied under such yearly hiring,
and the rent for the same, to the amount of 10/., actually
(d) 8 Bam. & Cressw. 99. Selw. 205; Waddington v.Btiiiow,
(b) That an interest in the soil 2 Bos. & Pull. 452; Majffield v.
passes upon the sale of growing Wadtky^ 5 Dowl. & Ryl. 224, 3
grass, ^etCroiby v. WadtwoHhyCi Bam. & Cressw. 357; Eoam v.
£ast, 602, and 2 Smith, 559; RoberiSf b Dowl. & Ryl. 611, 5
Skelion r. Livins, 2 Crompt. & Barn. & Cressw. 829; SrnUh v.
Jerv. 4tl, 2 Tyrwh. 420. As to Surman, ante, vol.iv. 455, 9 Bam.
other growing crops, see Parker v. & Cressw. 561 ; Scorell v. Boxali,
SlanUmnd, 11 Rist, 362; Pauller 1 Younge & Jerv. 396; Earl of
y. Killhobeck, 1 Bos. & Pull. 397; Falmouth v. T/wwiflf, 1 Crompt. &
^fantrum v. HteliSf 2 Taunt. 38 ; Mce?. 89, 3 Tyrwh. 26.
Wanckk V. Bniff, 2 Maule &
VOL. V. O O
CASES IV THE KIKg's BENCH,
paid for the tenn of one whole year at the least. Here the
The Kino ^^'^ question was, whether there was an occupation of (he
I h b'^* f ^^^^^ ^^ ^^® tenement under the yearly hiring ? It wa« ob-
Gbeat jeeted that the pauper did not occupy the whole under the
Behtlby. yearly hiring; that he let oflf the land; and that this cltuse
of the act of parliament, therefore, was not satisfied.
There is a difference between the language of the statute
6 Geo. 4, c. 57, s. ^, and that of the 59 Geo. S, c. 50. The
last-mentioned statute required that the house should be
held, and the land occupied, by the person hiring the iame;
but the latter words are omitted in the 6 Geo. 4, c. 57*
The legislature, when they passed that statute, must be pre-
sumed to have bad in their minds the very act (59 Geo. S,
c. 50,) which they were repealing. We cannot, therefore,
but consider that those words were left out by design.
Then the only question is, whether the whole was occupied
under the yearly hiring i It is clear that it. was. That
being so, every condition of the act of parliament has been
complied with, and the pauper has gained a settlement
We think it much safer to adhere to the words of the
statute according to their ordinary import, than to eater
into any inquiry as to what may have been the intention of
the persons who framed it. The order of sessions mosl
therefore be quashed.
Order of Sessions quashed (a).
(a) Bat now, by 1 Will. 4,0 AS, the same. And see JRer v. 8L
no person shall acquire a setde- Nicholai, Rochetier, S Nev. &
ment by reason of each yearly Mann. 91, 5 Bam. & Adol. 319;
hiring of a dwelling-house or build- Rex v. Baubwy, S Nev. & MtDs.
ing, or of land, or of both, unless 292, 1 Adol.k Ellis, 136; Jttf v*
such house or building, or land, Wooitam, 3 Nev. 5c Mann. 312, 1
shall be actually occupied under Adol. & Ellis, 239; Ru V' SL
such yearly hiring by the penon John, Hackney, 4 Nev. & Maoo.
Airing the iame, for the term of 336; Rex v. Si.NUh6la$,Cokka'
one whole year at the least, and ter, ib.499, 2 Adol.&EUis,599;
unless the rent for the same, to Rtx v. WiUoughky, 5 Nev. &
the amount of 10/. at the least, Mann. 457 ; Rex v, St. Gilet in
shall be paid by tlie person hiring the Fklds, 6 Nev. & Mann. 5.
HILARY TERK, X GEO. IV. 563
1830.
DoEj dem. John Alfred Wig an v. Thomas Jones.
Ejectment for lands at Mayfield. At the Sussex ConveTance
Summer assizes^ 1828, Garraw, B. nonsuited the plaintiff, J^s^ ghalU
giving him liberty to move to enter a verdict. Upon the point; inde-
iDotioD the Court directed a special case, with leave to nfe^ remainder
either party to turn it into a special verdict. to a dower
Michaelmas term, 1822, a judgment was entered up at wf^^ remainder
the soit of the defendant Jones against Thomas Baker, clerk, ^ ^' ^° ^'^-
. B' recovers
for 0000/., on which Jones issued an elegit into Sussex on judgment
15th December, 1827. Under an inquisition finding Baker X"afte1-'
seised, the sheriff delivered the premises to Jones as his wards appoints
freehold (a), according to the statute (6), until he should fee to c! Iliis
thereof have fully levied the debt and damages. appointment
The title and seisin of £ailcer commenced by indenture th^ judgment,
bearing date 29th and 30th November, 1826, whereby the andenutlesC.
' "^ to enter upon
premises were conveyed to such uses, and for such estates B/s posses-
tnd interests, intento and purposes, and upon such trusts, u^jep^^e^t
aad charged and chargeable in such manner, and subject issued subse-
to ittch powers, provisoes, conditions, limitations, declara- apTOintment^
tioQS and agreements, as Baker, at any time or times, and
from time to time thereafter, by any deed or deeds, mstru-
ment or mstruments in writing, with or without power of
revocation and new appointment, to be sealed and delivered
bj Baker, in the presence of, and to be attested by two or
more credible witnesses, should direct, limit or appoint,
and in default of, or until such direction, limitation or ap-
pointment, or in case any such should be made, then sub-
ject thereto, and when and as the estate or estates, interest
or interests thereby directed, limited, appointed or created,
should respectively end and determine, and in the mean
time subject thereto, and as to such part or parts of the
same several hereditaments and premises, and all such
(a) The tenant by elegit, not- interest. Vide 9 Inst 396; Mann,
withstanding these words, follow- Excb. Pract. Sd ed. 39, 43, 46^n.
iag the statute, has only a chattel (6) 13 Edm, 1, (Westm. 2) c. 18.
ooS
664 CASES IN THE KIKG's BENCH,
i830. estate and interest therein, of which no such direcUoD limi-
tation, or appointment should be effectually made as afore-
saidy to the use of Baker and bis assigns, for and during
the term of his natural life, without impeachment of waste;
and from and after the determination of that estate by any
means in his lifetime, to the use of Beriah Drew and his
executors and administrators, during the life of Baker, in
trust, nevertheless, for Baker and his assigns, and to permit
and suffer him and them to receive and take the rents and pro-
fits thereof to his and their own use and benefit, and also to
prevent any wife of Baker from being entitled to dower out
of or in the premises, or any part thereof; and from and
after the determination of the estate so limited in use to
Beriah Drew, and his executors and administrators, during
the life of Baker, in trust as aforesaid, and in the mean
time subject thereto, to the only proper use and behoof of
Baker, his heirs and assigns for ever.
By indenture, dated SQth March, 1827, and made between
Baker, of the one part, and Wigan, the lessor of the plaintiifi
of the other part, and duly executed and attested according to
the said power, after reciting the said indentures of lease
and release, and stating in that recital the said power, and
also reciting a loan of 4000/. from Wigan to Baker, and
after reciting that Wigan, being satisfied that the heredita-
ments thereinafter described were a sufficient security for
the repayment of the said sum of 4000/. and interest, had
agreed to accept a mortgage of the same, and to release
other hereditaments situate at West Mailing and East
Mailing from the charge or lien created by the therein re-
cited bond ; and by such deposit of the title-deeds relating
thereto, as in the said bond mentioned, it was witnessed,
that in pursuance of the therein recited agreement, and in
performance of the condition of the bond, and in consider-
ation of 4000/. so due to Wiganfrom Baker rs aforesaid, aud
for a nominal consideration, he. Baker, pnrsuant to and in
execution of the said power or authority, and of all other
powersor authorities, did direct, limit, and appoint, tliat the
HILARY TERM, X GEO. IV.
messuages, lauds, and iierecHtaiuciits thereinafter described,
with their appurtenances, should thenceforth remain, con-
tiuue and be, — and that the thereinbefore recited indenture
of the 30th November, 18'26, should thenceforth operate
aud enure, — to the use of IVigan, his executors, administra-
tors and assigns, for the term of 500 vears, to commence
and be computed from the day of the date of the then re-
citing deed, and fully to be complete aud ended, without
impeachment of waste, subject, nevertheless, to the pro-
viso for cesser thereinafter contained. And it was thereby
further witnessed, that in further pursuance of the said agree-
ment, and for the consideration aforesaid, Baker did grant,
bargain, sell, and demise unto Wigati, divers hereditaments,
situate at Mayfield, and including all the lands in question,
to hold the same unto Wigan, his executors, administrators,
and assigns, for the said term of 500 years, to commence
and be computed as thereinbefore mentioned, without im-
peachment of waste,, with a proviso for cesser of the said
term, if Baker, his heirs, executors, administrators or as-
signs, or some of them, should pay to Wigan, his executors,
administrators or assigns, the sum of 4000/. on the 11th
day of October, I829» with interest, at the rate of 51. per
cent, per annum, to be paid half-yearly, on the 6th day of
April and 11th day of October, in the meantime, without
deduction or abatement. And it was agreed that until
default should be made in payment of the said sum of
4000/., and interest, or some part thereof, contrary to the
true intent of the deed, it should be lawful for Baker, his
heirs and assigns, peaceably and quietly to hold and enjoy
the premises, and to receive the rents thereof for his and
their own use, without any hindrance, suit, eviction, claim
or demand whatsoever by IVigan, his heirs or assigns, or
any other person or persons claiming by, from or under
hiin, them, or any of themi The said Baker made default
iu payment of the interest before the 12th April, 1828, on
vf hich day the demise to the nominal plaintiflf is laid.
566 CASES IN THE KINOES BENCH,
1830. Preston (with whom were Broderick and Manning) for
the plaintiff.
The question in this case is, whether priority belongs to the
mortgagee, or to the judgment creditor. It may be admit-
ted that the judgment attached upon the life estate and apoo
the ultimate fee. But consistently with principle and with
the rule of law and rule of property, the debtor, by executing
the appointment, defeated his own life estate and ultimate fee.
It may be admitted, that if he had made a demise wiAout
mentioning the power, the judgment would have had pri-
ority over the demise. The appointee is enabled to claim
without noticing the ulterior uses. So, in pleading (a)i
[Bayley, J. Being in, as you say, paramount.] The judg-
ment creditor does not come in under the conveyance.
There is no law to prevent a debtor from defeating his cre-
ditor by executing an appointment, provided the act done
be not contrary to good faith. In Sir Edward CUr^i
case (6) an attempt was made to avoid the restriction in the
statute of wills, as to devises of land held by knight's ser-
vice. The only question there was, whether the devise
took effect by virtue of the power, or by virtue of Ae
(a) Iftwojointteuantsbeseised hold the laod charged is, for dot
of an estate in fee simple, and the he claimeth the land from thefint
one grant a rent-charge by his feoffor, and not by his comptDiony
deed to another, out of that which which is Littleion*B meaning vbto
to him belongs ; in this case, dur- he saith '* that he claiaietb bj sor-
ing the life of the grantor, the vivor,'' for the turwoing fta§tt
rent-charge is effectoal ; bat after may plead a feofment to kaue^f
his decease the grant of the rent- wUhoui mentioning his joint fetftt;
charge is void as to charging the and this is the reason, that if two
land, for he who has the land by joint tenants be in fee, and cbe
survivor, shall hold all the land one maketh a lease for yearty re
discharged, and the course is, serving a r«nt, and dieth, die su^
that he who survives has the land viving feoffee shall have the met-
by surviving, and has not, nor can sion bjr survivor, but he shsll oot
he claim any thing thereof by de- have the rent, because he daimeth
scent from his companion, &c.^ from the first feofR>r, which is,
litt. 286 ; upon which Lord Coke paramount the rent. Co. litt. 195,
says, '< Here ag^in Littleton shew- a ; 1 Tho. Co. Lite 750.
eth the reason; and the cause (6) 6 Co. Rep. 18^ a.
wherefore the survivor shall not
HILARY TERM, X GEO. IV.
ownenbip. It was admitted, that if the devise operated by 1830,
virtue of the power, it would defeat the prohibition of the
statute. In Ray v. Pung (a) the question was, whether the
wife was dowable of a fee of which the husband had seisin?
It was admitted, that there was a time when she was dow-
able; but the power of appointment was exercised, and
the Court decided that the fee was defeated, so that the
title of dower which had attached was defeated. If dower
can be defeated, why not a judgment creditor? at least as
far aa the appointment goes. That case runs upon all
fours with the present ; or if there be any difference, it is,
that dower is more favoured. In Roach v. Wadham{b),
the question was, whether a covenant was so knit to
the estate that an appointee could not take advantage
of it. It was held, that the appointee was in, not by the
donee of the power, but by the donor, and by title inde-
pendent of the covenant. AH these cases are directly in
point. So, in Maundrell v. Maundrell{c). In WUham v.
Bland{d) it was held, that a sequestration was over-*
reached by the execution of a power. There is no differ-
ence between the effect of a sequestration and of an elegit.
No doubt was entertained in that case as to the operation
of a limitation taking effect under the power, supposing it
to be duly executed. If the estate had continued in the
same state, the sequestration would have been available.
The only question was, whether a donee of a power to re-
voke uses had an implied power to create new uses.
Richmond, contr^. This mode of defeating judgment
creditors is a perfect novelty, and cannot be supported. It
is usual in practice, for conveyancers to direct searches
to be made for judgments. It has never been considered
that protection from judgments could be obtained by this
(a) SBarD. & Aid. 561; 5 {d) Finch, 136; since also re-
Madd.SiO. ported from Lord Nottingham's
(6) 6 East, 889; 2 Smith, 376. MSS. 3 Swanst. 877 n.
(c) 10 Ves. 846.
667
568
1830.
CASES FN THE KINGS BENCH,
short course. Lord Eldon has repeatedly said, tliat the
practice of conveyancers is evidence of the state of the
law (a). The absence of express autliority on this point is
(a) Perhaps the oiost remark-
able instance of judicial deference
shewn to the practice of convey-
ancers is afforded by the doctrine,
that dower may be excluded by the
assignment of a prior legal term to
a trustee for a purchaser, with full
notice; and that, although the term
may have been previously assigned
to attend the inheritance gene-
rally, yet there must be a fresh
assignment in the particular trans-
action ; a doctrine which appeared
to Lord Eldon so contrary to
principle as to produce from that
learned judge the strong declara-
tion, that if the point were res In-
tegra, the proposition, that the
purchaser should get in the term,
and with full notice, not squeeze
out any other incumbrancer^ but
exclude the dower, would be mon-
stroui. His lordship was at first
inclined to treat the assignment to
u new trustee as '*an idle cere-
mony,'* but he afterwards admit-
ted the distinction between the
effect of a term assigned, and not
assigned, in excluding the dow-
ress, to be established, though " it
had prevailed upon no principle,
but merely upon the practice of
conveyancertf** and stated that the
Court was bound, " not by a prin-
ciple, upon which it can well rea-
son, but by a practice of convey-
ancers, found to be inveterate,
to confine the protection against
dower to the case of an actual
assignment/' Maundrell v . Maun-
drell, 10 Ves. 262, 271, 272 ; and
see Lord Hardwicke*s observations
in Swannock v. lAfford. fiutl. Co.
Litt. 208 a, n. (105.) From Lord
Hardwickes judgment in that case
it appears, that in Lor*d "Radnor v.
Vandebendtf^ where Lord Samm
had reversed a decree of Lord
JefferieSf setting aside the assiga-
ment of a term, assigned to a
trustee for the purchaser for lire
purpose of defeating a claim to
dower, of which the purchaser
had notice, '' there was a great
inclination in the House of L(irds
to reverse that decree of Lord
Somen ; but when the counsel
came to the bar, the Lords asked
whether it was usual for convejf'
ancers to convey terms for years
to attend the inheritance to pre
vent dower; and the counsel, with
great candour, saying that it wa»,
the Lords affirmed Lord Somersi
decree."
On other occasions convey-
ancers have been less favourably
treated. Their doctrine and prac-
tice as to inalienable trusts for
married women, was not, as in
the former case, an inveterate
abuse, but reserved, as Lord EldoUy
in 1805, says, {Parkes v. WkUt,
11 Ves. 221,) upon true principle,
and originated in the suggestion
and practice of Lord ThurlatCy C,
conveyancers merely adoptingwbat
the Court had sanctioned. In
1817, Lord Eldon, addressing him-
self to the clause against antidpa-
tion, said (in Jackson v. HobkoAV,
2 Mer. 1487,) " Lord Altanky,
who followed, thought it a valid
clause, and so it has been con-
sidered ever since. It is mm
too late to contend against the
HILARY TERM^ X GEO. IV.
in the defendant's favour. By the statute of Westin. 2,
cap. 18 Judgments bind the land, and in 30 Ed. S, 24, a (a),
569
1830.
validity of a clause in restraiut of
aoticipatioo.'* Nearly twenty years,
bowever, after the decision in Jack-
ion y, HMoHse, the whole system,
which, after being established by
Lord Thurioze, has formed so im-
portant a branch of modern con-
vejaociog, appeared to be menaced
with destruction. See Newton v.
Unrf, 4 Simons, 141; Brown v. Po-
foc*, 3 Sim. 663 ; Ma!i%ey v. Parker^
3 Mylne& Keen, 174. But see
Anderson v. Anderson, ibid. 4t7 ;
Daviesv. Tliomycrofl, 6 Sim. 420;
Johnson V. Frecth, ib. 423, n. ; Sloffe
f. Everett, 1 My Ine & Craig, 37.
The doctrine upon this point,
as long receired and acted upon
by conveyancers, is stated to be,
that a gift to the separate use of
a female, expressly without power
of anticipation, was effectual, as
well to confer the sole enjoyment
as to restrain alienation, whenever
the restricted gift and the state of
coverture coexisted; but that, as
without coverture there cannot be
separate estate, and as the right
of disposition incident to property
cannot, even with reference to u
life interest, be denied, except in
the instance of separate estate, it
was competent to the object of
the gift, whilst discovert, to dispose
of her interest absolutely. — Vide
Hayes, Separate Estate, 39.
(fl) M. 30 E. 3, fo. 24. " A
man had recovered a certain debt
against Sir John de Mokyns, and
had an elegit; the sheriff returns
that JaAn has nothing.
"MowiJ. [John de Mowbray,
Kng's Serjt.] prayed a capias.
^'Fuk. \Eiihide.'] Since you
had execution at your electioui
and you elected an elegit, you can-
not now have another execution.
** il/om6. After fieri facias, if
the sheriff returts that he has no-
thing, a man shall have an elegit.
"&/on, [King's Seijt.]. Every
elegit includes a fieri facias.
''Finch IFinchden'l, If at the
time of judgment rendered he had
some land, but has since aliened
it, you may have execution of that,
and if he purchases land after-
wards, you shall have execution of
that, for you shall have elegit sicut
alias et sicut pluries. And if you
have no land at the time of judg-
ment rendered, it was your own
folly that you would pray an elegit,
when you were informed that he
had nothing; wherefore there is no
mischief although you have not the
capias," &c.
In abridging this case, Filzfier^
bert adds,—" and Thorpe, (C. J.
of C. P.) says, that the cause is,
because tlie entry is, that such a
one comes et elegit executionem
suam de medietate, &c., which is
the highest execution, &c." It was
afferwards, however, held, that if
an elegit be returned nihil within
the year, the party may, within
ibe year, have execution by ca. sa.
or fi. fa. Andrews v. CopC, 1 Roll.
Abr. 904, 905. And upon further
consideration of statute West ra. 2,
c. 18, it was adjudged, that neither
the entry of a prayer of the elegit,
or even an award of the writ upon
the I oil, should, without the she*
riiTs return of the delivery of
land according to the exigency of
the writ, be any bar to an exccu-
CASES IN THE KING 8 BENCH,
it was heldy that where a debtor agaiost whom jodgmeat is
recovered, aliens his lands, such lands are liable to execa*
tion, as are also lands acquired after the judgment The
second statute for the rejection of uses (a) made them sub-
ject to judgment creditors. The judgment binds the use,
and the elegit is in the nature of a grant. [Bayley, J. Sup-
pose that Baker, without referring to the power, had
granted an estate for life, would that have prevented the
execution of the power ?] A lease granted by tenant for life
cannot be defeated by the subsequent execution of a power
vested in him. Snape v. Turton(b)f YeUand v. FicUi{c\
Bullock V. Thome (d), Goodright v. Cater (e). Powers are
but a modification of uses, and uses were expressly made
subject to an elegit by 19 Henry 7, cap. 15, which remedy
is extended by the Statute of Frauds (/). It is said
that these statutes do not affect powers of appointment
The abstract idea of a power had no existence at common
law. It would have been thought strange that a person
tion by fi. fa. or ca. sa. KnomUi
V. Palmer^ Cro. £1. 160; Coaper
V. Limgwortht ib. 608, and Sir F.
Moore^ 545; Foster v. Jackton^
Hob. 57, 58; Pilmer v. KnoaUu,
1 Leon. 176 ; Qlatcock v, Morgaut
iLev. 93; Lancaiter v. Fielder, 2
Lord Ra^m. 1451.
(a) 19 H. 7, c. 15, which, after
reciting that divers and many per-
sons be defrauded of their eiecu-
tion, as well of and upon recog-
nizance, statutes of the staple,
statutes merchant, to them made,
as of their debts and damages re-
covered in action of debt, tres-
passes, or other actions, enacts,
** that it shall be lawful for eveiy
sherifF or other officer to whom
any writ or precept is or shall be
directed, at the suit of any person
or persons, to have any execution
of any lands, tenements, or other
hereditaments, agaiitst any person
or persons, of, for, and upon any
condemnation eetatate-mercfaant,
estatute of the staple, recogniianoe
hereafter to be made or had, to
do, make, and deliver eiecation
unto the party in that behalf suta^
of all such landa and teoements,
as any other person or persons be
in any manner of wise seised, or
hereafter shall be seised in any
wise, to the only use of him against
whom execution is so sued, like as
the said sheriff or other officer
might or ought to have done, if
the said party against whom exe*
cution hereafter shall be so sued,
had been solely seised of to his
use at the time of the said execu-
tion sued.''
(6) W. Jones, 398.
(c) F. Moore, 788.
(d) Ibid. 618.
(e) 8 Dougl. 477.
(/) 89 Car. 8, c. 5, s. 10.
HILARY TERM) X GEO. IV. 671
should have lui estate^ and a power of conveying a differeni 1830.
estate from that which he had. Sir Edward Clerks ca«c shews '^"^^^
Dob
that a statute may be defeated^ but even then it was only held d.
that the acts of the appointor superseded the power pro Wiqar
tanto. The doubt was^ whether such acts did not suspend the Jokbs.
power altogether. It was held that it was not in the nature
of a condition, and therefore entire. In Lang v. Rankin {a),
Abbott, C. J., in delivering the opinion of the judges in
the House of Lords, says*^" It is true that Robert Craw^
fard could not, after having conveyed his life^estatCi dero**
gate from the effect of that conveyance by an execution of
his power; and the inability to derogate from a prior con«
veyance, works what is usually called a suspension of a
power. As if land be granted to A. and his heirs, to such
uses as B. shall appoint, and in the meantime to J3. for
his life or any greater estate, here B» has a power to limit
and appoint the uses of the fee; but if he makes a lease
for years or for life, before he executes that power, common
jyttice requires that he should not derogate from his own
grant by a subsequent appointment of the fee; and his power,
therefore, is suspended as hr as regards the lease and the
interest of the lessee, and his appointee must take subject
to the lease. Lord Chief Baron Gilbert says (6), ' If
tenant for life, with power to make leases or revoke, grants
a rent<harge, and then makes a lease according to his
power, the lessee shall hold it charged during the life of
the tenant for life^ for he hath power to charge his own
interest, which| by his own act, cannot be avoided. And
if in this case he covenant to stand seised to the use of a
stranger, be cannot, by any after*act, revoke the uses; for
since the execution of this power falls within the compass
of the estate, (so that, unless it be executed during the con-
tinuance of the estatCi it can never be executed;) therefore^
whatever act passes away the estate, hinders the execution
of this power of demising; for a man cannot demise that
estate which he hath passed away to another J " Here, the
(a) Sttgd. Pow. App. No. 3. (h) Glib. Uses, 14S.
672
1830.
CASE3 IN THE KING S BENCH,
power is appendant, and not simply collateral; Sachewrtll
V. Dale (a). That was the case of a lease; but what sub-
stantial difference is there between an interest created by
lease and an interest created by elegit (6) ? In either case
the power must be suspended pro tanto; and if the power
can be suspended by the act of the party^ ^ fortiori may it
be suspended by the act of the law. It may be said that a
judgment is a proceeding in itvoUumic). But it is not
always so ; a judgment may be entered up on a cognovit,
or on a warrant of attorney, and it does not appear upon
this special case whether the judgment was obtained by
consent or in an adverse suit (d).
(a) Latch, 268. equity, {po$t, 580,) because by
(6) Ante 563, (a); 566 ; posl, 576. means of ao elegit, the lands may
(c) Videpoityb^^,
(</) The judgment was in truth
upon a warrant of attorney, but
this fact not being stated in the ad-
missions upon which the trial took
place, was not introduced into the
special case. But though an execu-
tion of a power of appointment for
the purpose of defeating an elegit
upon a judgment by consent, is
in derogation of the party's own
act, it has been since held, that
the appointment shall have pri-
ority over the execution, whether
the judgment be in invitum or
by consent, and whether the ap-
pointee has or has not notice of the
judgment. Eaton v. Sanxter, 6
Sim. 517. Yet, in equity, a judg-
ment is considered a present lien
upon a trust estate, such trust
estate being rendered liable to exe-
cution by the Statute of Frauds,
(25 Car. 2. c. 3,) 8. 10. But a
mere equity of redemption, unac-
companied by any legal reversion,
or any express trust for sale, is
not subject to execution {LyiUr
V. Ddlandy 3 Bro. C.C. 478,) but
the judgment creates, a lien in
be equitably put in charge. And
therefore, like any other speci-
fic charge upon the property, it
may be lacked to a prior mortgage,
(Fonbl. Treat. Equity, 5th ed. S70;
Coote, Mortgages, 393, 422, 423;
Sugd. V. & P. 9th ed. 542.) Where
however the land is not liable to
process by elegit, as in the case
of a copyhold, the judgment cannot
be tacked to the mortgage. (C«iMa
V. Fork, 6 Vin. Abr. 222, <i(. Copy-
hold, (O. e),.pl. 6 ; and see Jfor-
r» V. jGne$y 3 Dowl. & RyL 60S.)
But an equity of redemption may
be taken by the Crown, under an
extent. Rex v. Coomba^ I Pnce,
207; Rex v. Delamotte, Forrest,
162. In Smithy. Wkeeler, 1 Vent.
128, it was found by a special
verdict in ejectment, that in 1643
Simon Maine, being possessed of a
rectory for a term of eighty years,
assigned it to A. nndB., in trust for
himself for life, and after his death
for payment of debts, &c., and for
his issue, with a proviso, that if
Simon Maine should be minded to
make void the indenture, or fms^
trate any use. or trust tbereiOf or
HILARY TEEM, X GEO. IV. 573
By 21 Jac. 1, c. IQ* s. Ifi, commissioners of bankrupts isso.
are authorized to convey '' any manors, lands, tenements,
or hereditaments, whereof any bankrupt should, is, or shall
be in any manner seised."
By 13 EHz. c. 7 (a), commissioners of bankrupts are
authorized *' to take by their discretion such order and
direction, with all his or her lands, tenements, heredita-
ments, as well copyhold or customaryhold as freehold,
which he or she shall have in his or her own right before
he or she became bankrupt, and also with all such lands,
tenements, and hereditaments, as shall have been purchased
or obtained for money or other recompence, jointly with
his wife, children, or child, to the only use of such offender
or oflfendcrs, or of or for such use, interest, right, or title,
as such oflfender or offenders shall then have in the same,
which he or she may lawfully depart withal, or with any
person or persons of trust to any such use of such offender
Of offenders." Under this enactment it has been held, that
the bargain and sale inrolled, though in invitum, destroys the
power; Doe d. Coleman v. Britain (b). That is a case
create any new, or to dispose the made a grant to the plaintiff
estate in any other way, and such Smith, It was held in Common
his purpose should declare by writ- Pleas and King's Bench, upon er-
ing, &c., then the trusts therein, ror, that the term was not for-
or so many of them, &c., should feited, notwithstanding the power
be roid, &c. ; that in 1644 he had of revocation. Simon Maine, the
issae, a son ; that he took the cestui que trust of the term for
rents and profits during his life, life, not having jut disponendi,
and made leases ; that Simon though in a qualified manner, and
Mtune committed treason in 1648, to be executed with certain cir-
of which he was afterwards at- cumstances, he had potestatem dis-
rainted ; that be died in 1661 ; that ponendi. And see Sir Christopher
A. and B. had no notice of the HaUon*B ca^e, post, 578, 58 j.
assignnoent till after the death of (a) Sect. 2. And see 6 Geo. 4,
Simon MaiiUf when A, assented c. 16, s. 13; Doe d. Sham v. Stew-
and B. dissented to the assign- ard, 3 Nev. & Mann. 372; 1 Adol.
meat ; that by 12 Car. 2, c. 30^ & Ell. 300.
all manors, lands, &c., leases, &c., (b) 2 Barn. & Alders. 93. And
which Simon Maine, or any to his see Thorpe v. Goodall, 17 Ves. 388,
use, or in trust for him, had, 85th 1 Rose, 40, 270 ; Badham v. Mce,
Mardi, 1646, or at any time since, 7 Bingh. 695, 1 Moore & Scott, 1 4 ;
forfeited; that the king iinon. LofTt, 71.
674
i8sa
Doe
d,
WlOAH
V.
JOVBS.
CASES IN THE KIKO 8 BENCH,
expressly in point. In Bro. Abr. tit Feoflfemeatfl si aies,
pi. 25 (a), it 18 said cestui que use is bound in a statute
(a) Citing 7 H. 76. " One T. L.
broaght a writ of trespass against
W, de S.t and said, that /. 8. made
a feoffinent of the same land to
the said W, sur confidence, and
afterwards he made the recogni-
sance in statute merchant to the
plaint! ffy who by force thereof sued
execution against /. S. And ail
the matter was pleaded in certain,
and the trespass is supposed to be
done in the time of the now King
(H. 7), and execution was in the
time of King Edward 4; and the
defendant said, that in the time of
EdmardA, after the said execu*
tion, he entered upon the plaintiff
and ousted him, and afterwards,
in the time of King Rkkard, the
plaintiff entered upon him, and
shews the year and day, which was
after the statute of Bkhard^ de
feoffment sur confidence, and the
defendant re-entered.
Ke^ Serjt. It appears to me
that this plea is not good, for two
causes. One, because the statute
is as well of a thing done before as
of a thing done after the statute,
and then such execution was good
by the statute, for the statute is,
<< of feoffments, leases, grants, re-
leases, made or to be made," and
although it does not speak of exe-
cutions by statute merchant, still
this shall be taken within the letter
of the statute, for this is a dis-
chaige, and is in effect but a lease ;
and so held all the Court, that the
tenant by statute merchant or sta*
tute staple shall be taken within
the case of the statute, so that ex-
ecution cannot be sued; and also
the tenant by elegit, ^ Then
when by the statute since made
this was a good execution, althoogfi
be could not enter before the its-
tttte, yet when the statats was
made, he who had the execocioQ
might enter again, which execotioo
is good, because it is in certMD, bj
the issuing of the execntion bslbce;
and the defendant has shewn ia
his bar the re-entry by the plaiotiflf
after the making of the statute, for
which entry upon the (whole) mat-
ter he cannot be punished. As
suppose that the lessee taking un-
der a demise by the feoffor, before
the statute enters upon the fooffae,
and the feoflee ooats him, u ba
well may, and afterwards the star
tute is made, and then the lessee
enters again; now this entry is law-
ful, and he cannot be pnnisbed for
it: so here.
Jmf, J. It seems to me the coo-
trary, for allhoo^ the feoflbr had
entersd before the statute of Bkk,
and made a (second) feoffinent in
fee, and the feo£fee sur ooafidenoe
had re-entered upon the (second)
foe. Now thb (second) feoff-
ment is utterly Trad, and now al-
though the statute is made after-
wards, (and enacts that) as well
a thing done before as afterwards
shall take effect, still the statute
shall not make that (second) feoff-
ment good, because by the eotzy
of the (first) feofiee the (second)
feoffinent is void. Quaerabbene.'
In GoodeU v, Brigham, 1 Bos.&
P. 19d, Le Bhnc, Serjt. says» ''The
word * power^ in law may be tbeie
defined, viz. an authority §i»ea to
one person to be eserdsed oxr tie
estate rfanother^ which defiaition,
HILARY TERM, X GEO. IV.
merchant, and the Court held that execution should be
sued of the land in use, and that the same law is of statute
675
183a
though adopted bj BuUer^ ibid.
196; has since been exploded.
MmadreU v, Maundrell, 10 Ves.
265. This definition^ however, ap-
pears to be strictly applicable to
the power given by 1 iUeh. 8, c. 8,
to feofibn sur confidence, (or ra-
ther to cestui qoe use,) to create
a legal estate without being them-
selves seised. Thus in M . 5 H. 7,
ib. Site, pl« 11, a question was
demanded by Fineux of the jus-
does. If a man has enfeoffed sur
coofideooe, and the feoffor makes
a lease for term of years, whether
the iwanion is in the feoffor or in
the MSdi^ and the opinion of all
the Court, except Davers^ {Dan'
ten, Just. C. P.) was, that the re-
version vras in the feoffee. And
this was their reason: because at
the conunon law the feoffor would
have been a disseisor, and now the
itatute says, that the lease or the
feoffinent shall be good against the
Mht and tha feoffee, and their
heirs. The statute gives authority
to the tefibr to create such estates,
sad therefore the feoffor shall not
he a dissmsor, if he enter and make
a lease or feoffinent, because the
statnte gives power to him to do
tlus lawfully, and that for the sole
advantage of the lessee, and not
for the advantage of the feoffor.
Then notwithstanding the statute
pves a lavrful power to make the
lease, yet it does not (give power)
to have the reversion thereby. As
the statute of Marlebridge^ c. 6, is,
that the lord lecoTer the wardship,
still the reversion remains in the
feoffee. And also by the common
bw and cnstom need, executors
may make a feoffment or a lease,
by the will of their testator, of
lands devisable. And if they make
a lease, the reversion is not in
them, but in the heir. So one may
make a gifl, a lease, or a feoffment
of land, although he has nothing
in the land when he makes it; and
so inasmuch as the statute is made
for the advantage of the lessee, so
that the feoffor may make a lease
by authority of the statute, and he
shall not be a tort-feasor therein,
but may lawfully enter to make a
lease, still they shall have nothing
in the reversion causft quft suprc^.
Also because this statute was made
for the advantage of the lessee or
donee, and not for the advantage
of the feoffors sur confidence. Still
he shall not be a trespasser by the
entry and making the lease or feoff-
ment. And this lease or feoffment
must be made immediately upon
the entry, otherwise he is a dis»
seisor, as if he enters, and a long
time afterwards makes a lease or
feoffment, that lease or feoffment
shall not pui^e the tort, but not*
withstanding that the feo£be shall
have assize, quod Brian and others
concesserunt expressly and clearly,
and the opinion of all the Court
was, that if the lessee do waste,
the feoffee (sur confidence) shall
have an action of waste, notwith-
standhig that he has no privity, for
he has no mean to make any pri-
vity, as the lord shall have an
action of waste after the reversion
is escheated &c.
Brian (C. J. of C. P.) said, that
if a rent be reserved to himself,
(i. e. to the feoffor sur confidence,
676 CASES IN THE KING S BEKCH»
1830. Staple and elegit by the statute of 1 Rich, 3, for that is in
effect a lease. Thus the lien of the judgment creditor is
expressly assimilated lo an estate created by the party. It
is to be regretted, that the reasons upon which the judges
of this Court decided Ray v. Pttng do not appear. It may
have been thought that dower only created an inchoate lien.
But a judgment is an immediate absolute lien upon the
lands of which the debtor is then seised, and becomes a lien
upon after-acquired lands from the moment that they vest
in the debtor. It is true that in some respects dower is
favoured. It is nevertheless looked upon with jealousy, as
forming an impediment to the free alienation of property.
[Lord Tenterden, C. J. A good many contrivances have
been resorted to for defeating dower.] Even in equity the
title to dower is allowed to be defeated by the assignment
of a terra though with notice (a). And in Mole v. Smith {b)t
a woman was compelled to assign a term for the express
purpose of barring her, own dower.
The statute of fraudulent devises (c) expressly meets the
case of a power. That statute, after reciting '^ that it is
not reasonable or just, that by the practice or contrivance
of any debtors their creditors should be defrauded of their
just debts: and nevertheless it hath often so happened that
where several persons having, by bonds or other specialties,
bound themselves and their heirs, and have afterwards died
seised in fee simple of and in manors, messuages, lands,
tenements, and hereditaments, or had power or authority to
dispose of or charge the same by their wills or testaments,
have, to the defrauding of such their creditors, by their last
wills or testaments devised the same, or disposed thereof,
the cestui que use.) because he deed, but with deed he can. And
Imtli not die reversion, as before so can the feofibr sur confidence,—
said, it is void without deed, and quod alii justiciarii coocesscniot.
to the feoiTee it cannot be reserved, (a) Vide aalCt 668.
because he is a stranger, and thus (b) Jacob, 490; 1 Jac. & Wall,
the rent is void, unless it be by 66o; tamenquert,
deed. Since the statute of quia (c) 3 (or 3 & 4) WULS, c 14,
omptorcs terrarum, a man cannot altered by 11 Geo. 4 and 1 WilLi^
reserve to himself rent without c. 47, s. C, and 3 & 4 Wili.4, c. 104.
HILARY TERM, X GEO. IV. 577
in such manner as such creditors have lost their said debts/' isao.
enacts and declares, that all wills and testaments, limita-
tions, dispoiilions, or appointments, of or concerning any
manor be, shall be deemed and taken as against such cre-
ditors to be fraudulent and void. It is evident that at the
time of the passing of this statute, an execution could be
defeated by the fraudulent execution of a power of appoint-
ment. It cannot be supposed that the legislature would
have omitted to provide for judgment creditors, if they had
been within the mischief, as, according to the plaintiff's
argument, they certainly would have been. It will hardly
be cootended, that if the estate had been actually vested
in the judgment creditors, under an extent upon an elegit,
laeh estate could have been divested by the execution of
the power. The principle would extend to protect the
estate against a process of extent issued by the crown.
Unfortonately for the plaintiff he is met with a direct
authority, which deprives him of that protection. In Rex
V. Smith (a) it was expressly decided, that an outstanding
term does not protect a purchaser against the claim of the
crown, in respect of debts due from the seller (ft). In Sir
(a) Sug4. Vend. & P. 4th ed. secure the unpaid portion of the
347. And see the Pleadings, purchase-money upon a sale by a
Mano. Excb* Pract. 2d ed. 235. former proprietor to Lacy; that
(6) Upon Rex v. Smith being upon a sale by Lacy to Turton,
cited upon the aiguroent in Rex v. Turton paid off the portion of the
Lamb, Mann. £xch. Pract. 39 n., original purchase-money secured
S47, a copy of the record in the by the term, and took a convey-
fonner case was produced, by ance of the freehold to himself,
which it appeared that to a plea and an assignment of the term to
of an outstanding term, the A ttor- Lamb; that^at the time of the
ne;-Geoeral replied, that it was n payment of the money, Turton had
itti^ed term held in trust for the do notice of the debt to the crown,
debtor, and that the case was ar- ^x v. Lamb was argued upon s
gaed upon a demurrer to the demurrer to the plea and mon-
replicatioD. In Rex v. Lamb straunce de droit filed by Idunb,
it appeared that the land of one in assertion of his claim to the
locy, seized under an extent, property during the term. In
"^a» claimed by Lamb^ under support of the demurrer '.t was
a term of 1000 years, created to insisted, on the part of th% crown,
VOL. V. P P
578
1830.
Doe
d.
WlGAN
V.
JOITES.
CASES IN THE KIKG'S BENCH,
Christopher Haiion^n case (a) it was resolved, that the lawis
of the crown debtor, though subject to a power, were liabk
to execution. There A., before he became indebted to the
crown, being seised of the land in fee, covenanted to sttod
seised thereof to the use of himself for life, remaioder for
ten years to the covenantee for payment of debt, re-
mainder to the issue of A. in tail, with power of ret oci-
tion. A. died indebted to the crown; it was agreed by
the judges and decided by Crawford, Master of the G>uit
of Wards, and the whole Court, that the lands were liable
to an extent notwithstanding the power of revocatioa.
It is true, that for feudal purposes the appomtee is consi-
dered as a party coming in under the donor of the power,
and not under the immediate appointor, the donee of that
power. But for many purposes he is treated as a party
taking by conveyance from the appointor. Thus, an ap-
pointment of real estate, under a power, is within die
statute (6) against fraudulent conveyances, DukeofMarU
that the title set oat by the claim-
ant in his plea and monstraunce
de droit, did not affect the right of
the crown to take the absolute and
unincumbered fee. For the claim-
ant it was urged, that the out-
standing term never having been
held in trust for Lacif, the crown
debtor, the property could only be
taken by the crown, subject to the
estate and interest of the termor.
And the Court held accordingly,
that although where the term is a
satisfied term attendant upon .tlie
inheritance, the crown, by acquir-
ing an interest in the inheritance,
acquires a corresponding interest
in the term, the crown's debt does
not aflect a term in grou, whether
legal or equitable, until the teste
of the extent, that being the period
for which the chattel interests of
the crown debtor are* bound. And
that here the daimaiit was entided
to judgment, inasmuch as the tenn
of 1000 years was Tested not id
or in trust for Lacy^ the crown
debtor, but in the original vendor,
Lacy never having discharged the
incumbrance, by paying o£f the re-
sidue of the purchase-money, sixl
by such payment placing the term
in the same state as the tenn in
Rtx v. Smiik, Mann. Exch. Prac.
350.
(a) Godb. 399; & C. 3 Roll.
Rep. 394. In Hob. 3S9, it is said,
that in Sir C. HaUan*s case it was
resolved that the lands were sub-
ject to the debt at common law,
without any avermeot of fiaod.
And see Waiter dc Ckartom'^CMatj
Godb. 293, Dyer, 160a; Etrlcf
Devon»hire*s case. It Co. Rep.
98, 93.
{b) 13 Eliz. c. 5.
HILARY TERM, X GEO. IV.
boroi^h V. Godolphin{a), and is subject to the other inci- 1830
deats of coDveyaoces. Lord Hardwkke says, (6)/' Every
person claimiDg under the execution of a power must claiin«
not only according to the power, but according to the nature
of the instrument by which that power is executed, and
therefore a will, in execution of such a power (supposing it
was of lands,) would be alienable or revocable, according
to the Statute of Frauds, by cancelling, or any of those
methods as a proper will would be, because it is the nature
of the instrument which causes that." In Scrafton v. Quin-
eey(c) a deed of appointment of lands, in Middlesex, was
postponed to a mortgage executed subsequently, but re-
gistered before the appointment (d). In Hurd v. Fletcher (e)
sfioe was levied of the estate of a feme covert, with a power
to husband and wife to declare uses. Uses were declared,
under which an estate in remainder was limited to A.
in tail. The husband made a lease, and covenanted for
quiet possession gainst any person or persons claiming
or to claim by, from, or under him. The lessee being
evicted by A., it was held, that the representatives of the
husband were liable in covenant, as for an eviction, by a
person claiming under him. [Lord Tenterden, C.J. Mr.
Preston concedes that a man cannot defeat hii own grant
by the execution of a power.] Lord Hardwicke, in a sub-
sequent part of his judgment saysC/"), '* I admit the prin-
ciple, that where a person takes by execution of a power,
whether of realty or personalty, it is taken under the autho-
(«) 2 Ves. sen. 61. jection was taken on this ground ;
(ft) Ibid. 77. '^^^ ^^ ^® circumstance noticed
(c) Ibid. 413. in the judgment.
{i) The deed creating the power («) 1 Dougl. 43. But see 2
bore date in 174'i; the appoint- Sugd. Vend, and Purch. 9th ed.
meat was in 1744: the mortgage 78, as to covenants in appointments
in 1746. The mortgage was re- to uses not running with the land,
gistered in 1746, and the appoint- And see Itherwood v. Oldknowy 3
meDtinl748. The deed creating Maule & SeKv. 382; 5 Nev. &
tbepower, does not appearto have Mann. 518, (a) ; «nte, 200, (o).
bfen registered at all, but no ob- if) 2 Vcz. sen. 78.
PP 2
579
580
1830.
CASES IN THE KINGS BENCH^
rity of that power ; but not from the time of the creation of
that power. There is no case that the relation shall go back
for that which is quite of another nature, and (that is the
point which must be contended for here,) that they must
take by relation so as to make them take from the time of the
creation of the power, for which there is no authority, aod
that would be unreasonable. The meaning of the expres-
sion, that the persons must take under the power, or as if
their names had been inserted in the power, is, that they shall
take in the same manner as if the power and instrument exe-
cuting the power had been incorporated in one instrument;"
that is, of the date of the latter instrument, <' then they shall
take as if all that was in the instrument executing had been
expressed in that giving the power. So is it in appointments
of uses. If a feoffment is executed to such uses as he shall
appoint by will, when the will is made, it is clear that the
appointee cestui que use is in by the feoffment but has
nothing from the time of the feoffment, so as to vest the
estate in him. The estate will vest in him, — according to
the nature of the act done, and appointment of the use,—
from the time of the testator's death. This, therefore, is
not a relation so as to make things vest from the time of
the power, but according to the time of that act exe-
cuting that power ; not like the referring back in case of
assignment in commission of bankruptcy, that is, by force
of the statute, and to avoid mesne wrongful acts." A
judgment creditor is a purchaser for a valuable considers*
tion, and in equity it is considered as an actual chaise upon
the land {a). In Ren, lessee of Hall, v Bulkele^ (6), it was
held, that if a tenant for life, with power to grant leases in
possessidn for twenty-one years, at the best rent, convey his
life estate to trustees to pay an annuity for his life, aod the
surplus to himself, the power is not thereby extinguished,
but he may still grant a lease agreeable to the terms of the
power. In giving judgment in that case Lord Mamjitld
says, *^ It is contended, that by granting away his life estate,
(o) Vide ante, 512 n.
{h) 1 Dougl. 292.
HILARY TERM, X GEO. iV.
he (Lord OnsioWf the tenant for life,) extinguished the
power. Certainly, when the whole life estate is conveyed
away, by the intention of the parties, the power must be at
an end, and cannot afterwards be executed to the prejudice
of the grantee. But the conveyance here was only to let in
a particular mortgage, subject to which the rents and profits
still belonged to Lord Onslow. Roper v. IIallifax{a).
581
1830.
Preston, in reply. It is admitted, that if the plautiff had
done any act to encumber the estate, he could not have
executed the power to the extent of derogating from that act.
With respect to the judgment of Lord Hardwicke, it is
sufficient to say, that in Maundrell v. Alaundrell, Lord
Eldon says, that '^ the fee vests until the execution of the
power, and the execution of the power is the limitation of
a ose under and by the effect of the instrument by which
the power was reserved," that '* when the tenant for life exe-
cutes the power, the effect is not technically, making a
lease ; but that lessee, in fact, stands precisely in the same
relation to all the persons named in the first settlement, as if
that settlement had contained a limitation to his use for
twenty-one years, antecedent to the life estate and the ultimate
limitations (6)." [Bayley, J. That is, as to persons named
in the first conveyance.] It is the same here as if the term
of 500 years had been created in the first conveyance. It
will be unnecessary to advert to the former statutes respect-
ing uses, these statutes being all repealed by £7 H. 8, c. 10.
The question is not affected by the remedies given to cre-
ditors by the Statute of Frauds, or by the rule of equity
framed upon that statute. In Sir Christopher Hatton^s
case there was no taking of the power in execution, but it
was held, that the settlement was void as against the Crowu^
because it was fraudulent, the fraud being evidenced by the
revocation of those uses, under which the property was
vested in the crown debtor (c). Under the bankrupt laws^
the commissioners execute a conveyance of the fee, which
(«) 8 TaoDt. 845; 5.C. Sugd.
Pbw. 5th ed. App. No. 4.
(6) 10 Ves. 855, 256
(c) Sed vide antCf 577 (b).
582
1830.
CASES IN THE KING'S BENCH,
relates back to the act of bankruptcy (a), and the act of
parliament seises the alienee, and will defeat a fee which
may have vested in the lord by escheat, as an act of the
party, by which he may have bound his own estate. No
conveyancer will advise a purchaser to abstain from search-
ing for judgments in the present (6) state of the law. If it
could be avoided, the convenience would be very great, as
the expense of making searches is immense. The usage is
to search for ten years (c). A purchaser and a judgmeot
creditor are in a very different position. The former may
protect himself by taking an assignment of a term, whidi
a judgment creditor cannot do.
In this term the judgment of the Court was delivered by
Lord Tentekden, C. J., who, after stating the fccts
found by the special case, proceeded as follows: — ^Tbe
question for the Court was, whether this conveyance,
under the power of appointment, defeated the judgment
creditor i It has been established ever since the time of
Lord Coke, that where a power is executed, the persoa
taking under it, takes under him who created the power,
and not under him who executes it. The only excep-
tions are, where the person executing the power has
granted a lease, or any other interest, which he may do by
virtue of his estate ; for then he is not allowed to defeat his
oum act {d). But a judgment is not within the exception as
an act done by the party, for it is considered as a proceed-
ing in invitum (e), and therefore falls within the general rale.
(a) Vide antCy bis.
(6) But where an over-reach-
ing power may be exercised, there
seems to be no reason why, wiu
the decision in the principal case,
any search should be made.
(c) This seems to be a mere ar-
bitrary period, as judgments may
be enforced at any time within
txoenty years ; and the correct and
the only to/e practice (if not the
usage,) appears to be to canry the
search back for 20 years, io afl
cases where a search is necessary.
{d) Vide ante, 571,579.
(e) So under the statutes of
usury it has been held, that usury
cannot be pleaded to a scire fiuaas,
or an action of debt on a j«d^
ment. Tbe8tatate(13£(a.c.8»)
which avoids bonds^ osntncts and
assurances, has been hdd not to
estead to a jadgpnenty Mpeoally
as it was Gompetent to diedefend*
HILARY TERM, X GEO. IV.
We are therefore of opinion that the nonsuit must be
set aside, and a verdict entered for the plaintiff.
583
1830.
ant to have pleaded the usury to
the original action, and not have
suffered a jodgment, which, in-
stead of a contract or aMurance, is
rtdditum in invitum. Middleton
y.UUl, Cro. £liz. 588; Goldsb.
128/ &C.; Bjoaey.Bdlatetft, 1
Siderf. 18S. In the case of a
jadgment upon a warrant of atcor-
oej, where the defendant has had
no opportunity of pleading the
itatote, the proper coarse is to
move to sec aside the warrant of
attorney, and vacate the judgment.
KmU^. Power ^ Cases temp. Hardw.
9SS, % Stra. 1043; EdmoMon^.
Fvphmy \ Bos. & Pal. 370. And
lee Emdlt ▼. (fBrien^ 1 Taunt.
413 ; Edmonson y. Hawkins, Peake,
N.P. Add. Cases, 173. And where,
upon the affidavits in support of,
and in answer to the motion, the
existence of a corrupt contract ap-
peared to be doubtful, the Court
of King's Bench directed an issue.
Cookie, Janes, Cowp. 7S7. Vide
Umen Mathews v. LewiSf 1 Anstr.
7. And see Scott v. Netbitt, $ Cox,
183 ; Scott v.Nieoll, 4 Dougl. 315 ;
Dalbmc V. Dmllnac, 16 Ves. 124;
Scruxner £x parte, 3 Ves. & Bea.
14 ; Roberts v. G(ff, 4 Barn. &
Alders. 93; Cole v. Gill, 7 B.
Moore, 353; Flight v. Chaplin, %
Bam.&Adol. 112.
\a) So where A. surrenders a
copyhold to sach ases as B. shall
appoint, and until appointment to
the use of B. in fee,the lord is bound
to admit the appointee of B. as the
wmedkUe surrenderee of i1., and
cannot reqaire th« admittance of
Postea to the plaintiff (a).
B, Rex \, Lord of Manor of Oundle,
3 Nev. & Mann. 484 ; 1 ^dol. &
Ellis, 283. And where lands
stand limited to A. for 1000 years,
and subject thereto, to B. for life,
remainder to C for 2000 years,
remainder to D, for life, remain-
der to trustees to preserve, &c.,
remainder to the issue of P. sue*
cessively in tail, with the nltimate
remainder to the heirs of D. ; and
the trusts of the first term are,
upon non-payment of 800/. lent
by /I. to D. to raise that sum by
sale, mortgage, &c.; and the trusts
of the second term are, to repay
to B. any interest paid by B. to
J., and to raise a further sum for
B. ; power to B. to demise for ten
years, or for seven years from B.'s
death, to take effect in possession,
reserving the best rent, &c., and
B. demises under the power, for
seven years from her death, to £.,
reserving rent toD., or to the person
entitled for the time being to the
freehold or inheritance : the lease
takes effect as an appointment
under the power, in advance of the
term for 1000 years. Rogers v.
Humphreys^ 5 Nev. & Mann, 511.
And see Lord Abergavenny* s case,
(J!Co. Rep. 78; Leonard LoMs
case, 10 Co. Rep. 78; Idle w.Cooke,
2 Lord Raym. 1150 ; Cholmondeley
V, Clinton, 2 Jac. & Walk. 40;
Campbell v. Sandyt, 1 Sch. & Lefr.
293; Harris v. Booker, 4Bingh.
96; 12 B. Moore, 283; ante,
195, (c) ; Harris y. Pugh, 4 Biogh.
335 ; 12 B. Moore, 577.
CASES IN THE KING S BENCH,
Wood and another v. Grimwood.
Where the DEBT for penalties under the Statute of Usury, 12 Jnn.
qui tnm'nction ^^' ^' ^* ^^' ^^^^ alleged usury was committed io April,
for usury, sued 1827. The writ was sued out in September, 1828. The
out his writ 10 J,. - ' r^ .i-j-
September, declaration, contammg nfty-two counts, was delivered m
e^hls dldal" '^""*^y ^^™' ^^^9* The plaintiff took down the record
ration in Tri- for trial at the summer assizes for the county of Essex, in
mprtwk the ^^^9' ^^^ withdrew the record. A rule nisi to amend the
record down declaration, by adding sixteen counts, Mas obtained in
summerns- Michaelmas term, 1829; against which
sizes, 1839,
and then with- „ j • t i . r - i ■ l
drew the re- JSrodrtck now shewed cause* it is a general rule that
refwedio X^ the Court will not permit any amendment to be made in
low him to a penal action, where the plaintiff has been guilty of delav
daration" ** in carrying on the suit; Rankin q.t. \. Marsh {a), Steeh.
Sowerby (6). This case is clearly within that rule, for the
plaintiff has suffered two assizes to elapse since the action
was commenced.
Scarlett, A. G., contrd. The rule referred to applies
only in cases where there has been great and unreasoDable
delay, as in Goff v. Pappletoell (c), where the action had
been depending four years. In Mace q. t. v. Locett{d), a
declaration in an action for usury was amended, after the
record was made up, carried down for trial, and withdrawn
by the plaintiff. In Cross v. Kaye(e), the Court allowed
a plaintiff to amend his declaration in a penal action, after
the time limited for bringing another action. He also cited
Maddock q. t. v. Hammeti {/).
(a) 8 T. R. 30. Pdre v. Craft, 4 East, 4SS ; DtfKf
lb) 6 T. R. in. V. Mataer, 4 East, 435, and 1
(c) 3 T. R. 707. Smith, 123; Woodroffey.WWiams,
(d) 5 BurR. 8833 6 Taunt. 19, 1 Marsh. 419; Soh-
(e) 6 T. R. 543. mqn$ ▼. Jenkins, % Cbitt. Rep. S3;
(/) 7 T. R. 55. And see ^fi- Anon. ibid. 45 ; Wright r. Affr^
field, q. t. ▼. MUner, % Burr. 1098; 5 B. Moore, 330.
HILARY T£BM« X GEO. Iv. 585
Lord T£NT£BDBN« C. J. — ^The statute has limited the isso.
time within which a penal action like the present shall be **^"^^
commenced; clearly intending also, that such an action shall and amither
be pro$ecttied without delay. 1 think a party who, after he ^ ^'
has commeaced such an action, has been guilty of any delay,
is not entitled to any indulgence. Here, the action was
commenced in September, 1828, and the plaintiff did not
declare till Trinity term, 1829^ and then did not proceed to
trial at the next assizes. The time which has elapsed is so
great, that I think this rule ought to be discharged.
The other judges concurred.
Rule discharged (a).
(a) And see further as to |4ead- Sdarle ▼. MehiUe^ ibid. 198 ; and
ings under the statutes of usury, the notes to those cases; anie, 589,
Butt T. Bidgood, anie, vol. i. 143 ; note (c).
END OF HILABY TERM.
CASES
ARGUED AND DETERMINED
IV THE
COURT OF KING'S BENCH,
IV
EASTER TERM,
IK THE ELEVENTH YEAR, OF THE EXIOK Of OIQEOB IT.
1830. WoRswiCK, Administrator of Wood, v. Beswick.
In an action 1 ROVER for household furniture, the property of the
ihiKir^l" plaintiflF as administrator. Plea: not guilty, and issue
Bench by bill, thereon. At the trial before Parke, J., at the last Laoca-
fhe piahniff, *''"''® assizes, the case was this : —
after the writ In August, 1829, the defendant had sold certain goods
declaration, which belonged to the plaintiff as administrator of Wood,
of a sum in ^^j j^^ ^ jj,g proceeds. On the 14th of December, 1829,
satisfaction ot .
the damages the plaintiff issued a latitat against the defendant, retoroa-
bfgiven'in"'*'^ ble in Hilary term, 1830, when the declaration was filed,
evidence un- On the l6th of January, 1830, the defendant, without coin-
issue, andTwUl niunicating with the plaintiff's attorney, paid over to the
be an answer plaintiff the amount produced by the sale of the goods,
to the action. - , , . , , ., , ,
after deducting expenses ; and there was evidence that toe
plaintiff was, at the time, satisfied with that payment It
was contended, on the part of the defendant, that evidence
of this payment was receivable under the general issue, and
that, being received, it was an answer to the action. For
the plaintiff, on the other hand, it was insisted that the
latitat was the commencement of the action, and that no-
thing done after that could be given in evidence under the
EASTER TERM^ XI GEO. IV.
general issue^ so as to defeat the action ; and> further, that
the supposed settlement of the cause was a fraud upon the
plaintiff's attorney^ and that, in either view of the case, the
plaintiff was entitled to a verdict for nominal damages.
The feamed judge was of opinion that the evidence was
receivable, and that, if the plaintiff received the money in
satisfaction of his claim for damages and costs, it was an
answer to the action, unless the jury found the transaction
fraudulent; and he directed the jury to find for the defend-
ant, if they thought that the money was received in satis-
faction, and that the transaction was not fraudulent, for the
purpose of depriving the plaintiff's attorney of his costs.
The jury found a verdict for the defendant ; but the plain-
tiff had leave to move to enter a verdict in his favour, with
nominal damages, if the Court should be of opinion that
the ruling of the learned judge was wrong.
Alderson now moved accordingly. The jury have found
that the money was received in satisfaction ; and they have
negatived fraud: still the question remains, whether evi-
dence of the settlement of the action brought ought to have
been received in evidence, in answer to the action, under
the general issue. It is submitted that it ought not. In
Lee V. Levy (a) it was held, that matter of defence arising
after action brought could not be pleaded in bar of the ac-
tion generally, and therefore could not be given in evidence
under the general issue. There Abbott, C. J., said, ''The
question, whether matter of defence arising after action
brought could be pleaded generally in bar of the action,
was very fully discussed in the case of Le Bret v. Papii"
lon{b). That case decided that no matter of defence,
arising after action brought, can properly be pleaded in bar
of the action generally, but ought to be pleaded in bar of
ike further maintenance of the suit; and it was founded on
(a) 6 D. & R. 475. S. C. 4 B. & C. 399; 1 C. & P. 555, 575.
{b) 4 East, 501.
587
18S0.
>^^/-^
WOBSWICK
V,
BeswicK.
588
1830.
CA5£S IN THE KING S BENCH,
the authority of Evans v. Prosser (a). [Parke, J. The
payment in this case was before declaration, which upon
the record appears to be the commenceinent of the action.]
The real question is, what is to be deemed the commence-
ment of the action i Where the time is material, the plain-
tiff is always at liberty to treat the issuing of process as
the commencement of the suit ; for instance, to shut oat a
tender between the writ and the declaration, or to prevent
the statute of limitations from operating. In Holland v.
Jourdine{b) it was held, that even payment of the debt
and costs, after the issuing of the writ, would be no answer
to the action under the general issue ; but that the plaintiff
would be still entitled to a verdict for nominal damages.
\LiUledale, J. That was a case in the Common Pleas,
where the writ is always considered as the commencement
of the action, and therefore does not apply to a case in this
Court, where the practice is different.]
Lord TfiNTEBDEN, C. J. — I think we ought not to
grant any rule in this case. In proceedings by bill in this
Court, the declaration is considered as the commencement
of the action, unless, for the purposes of justice, the plain-
tiff is allowed to shew an earlier commencement by the
suing out of the writ. The instances put, of avoiding a
tender after the writ, and of replying the writ to save the
statute of limitations, are only exceptions to that general
rule. In this case the jury have found that the money was
paid and received in satisfaction of the costs as well as the
damages; and they have negatived fraud. If, therefore^
we allowed the writ to be considered as the commencement
of this action, it would have the effect of defeating instead
of advancing justice. This is the same, in effect, as a plea*
(a) 3 T. R. 186, where it was
held that a plea of set-off, that the
plaintiff was indebted to the de-
fendant ^^ at the time of the plea
pleaded," was badi it should state
that he was indebted ''at the time
of the commencement of the ac-
tiODi''
(h) Holt's N. P. C. 6.
WORSWICK
V.
EASTER TERM, XI GEO. IV. 589
of accord and satisfaction as to damages and costs before 1830.
bill filed ; and in such a case, a replication of a latitat sued
out before satisfaction would be bad. I am, therefore, of
opinion that the ruling of the learned judge was right. Beswick.
Baylet, J., and LittlboalEi J;, concurred.
Parke, J. — The plaintiff may, if he pleases, treat the
writ as the commencement of his action; but if the defend-
ant in this case bad pleaded the facts which he proved in
bar of the action and costs generally, a replication that the
writ was sued out before the payment would have been
bad, for the plea would have disclosed matter which would
ba?e been an answer to the writ as well as the action. In
the instances put in argument, the plea is no answer to the
writ ; and, therefore, the replication is good.
Rule refused.
Thomas Fisher and Malachi Fisher, Assignees
of George Ord Houliston, a Bankrupt,
V. Boucher, Esq.
Assumpsit for money had and received. Plea: non ^^^^ ^^^^
^ ^o deny a
assumpsit, and issue thereon. At the trial before Gase' trader to a
ke, J., at the last assizes for the county of Dorset, it was ^^ ^jl^^Ji^^
admitted that a commission of bankrupt had issued against nial takes
HoulUtoii, under which he had been declared a bankrupt, ac^^ofconc^U
and the plaintiffs had been appointed his assignees, and ^^^^ >• done,
that the defendant, as sheriff of Dorsetshire, had seized stitute an act
certain effects of Houliston under a writ of 6. fa.: and the of Umkruptcy
by beginning
only question in the cause was, whether Houliston had or to keep house
with intent to
delay creditors.
A departing by a trader from his dvreUing-bouse with the intention not to return if a
given event occurs, which does not occar, whereupon the trader returns in the ordinary
coarse, does not constitute an act of bankruptcy, oy departing from the dwelling-house
with intent to delay creditors.
590 CA8E8 IN THE KING's BENCH,
1830. bad not cominitted an act of bankruptcy; as to wfaicb die
TT" evidence was as follows : —
Fisher
V. Houliston had been a grocer, carrying on business at
BopcHKR. Blandford, in the county of Dorset. On the 1 1th of Juae,
1829y he received a letter from Francis 8c Co., of London,
who had supplied him with goods, threatening to arrest
him unless a debt of 70/. were paid them. On the 15th of
June HouUsion wrote a letter to the plaintiff, Thomas
Fisher^ to whom he was indebted 600/., informing hioi
that, on taking stock, he found it was impossible for hioi
to meet his creditors in full, and that he feared his estate
would pay little more than 105. in the pound. He then
proposed to assign the whole of his property to Fisher io
trust for the benefit of himself and the other crediton,
adding, that it was of the utmost importance that some
arrangement should be made immediately, as he was
threatened to be arrested for 70/., which he was then iid-
able to pay, though he was confident of being able at some
future day to pay the full amount, if his affairs could be so
arranged as to prevent his property being wasted in law.
On the same day he called his shopman into the parlour
behind the shop, told him that Francis & Co. had threat-
ened to arrest him, and that he had written to Fisher, his
principal creditor, and that probably his goods might be
seized; and desired him, if Pitney, the sheriff's officer,
came to the door, to say that he {Houliston) was not at
home. On the 17th of June, being Wednesday, be toU
his wife that he was going out, and that if any thing parti-
cular happened, she was to send to him at the Shillington
turnpike gate« He then left home, for the avowed purpose
of going his journey through Durweston, Shillington, and
other places in the neighbourhood, to deliver goods which
had been previously ordered, and to take fresh oiders, in
the usual course of his business. It had, however, been
his habit on former occasions to take this journey on a
Tuesday morning, and to start between eight and nine
o'clock : on this occasion he started soon after seven on a
EASTER TERM, XI G£0« IV. 591
Wedoesdaj morning, before the London mail had arrived, 1830.
by which a letter might have been received by him from
his creditors, Francis & Co., or a warrant by Pitney^ the
sheriff's officer, to arrest him. He went on slowly through
Durweston, without calling at any house, and through the
Sbillington turnpike gate, and stopped at a house a short
distance beyond the gate, where he went in, left a small
parcel, and settled an account; and there he waited till the
mail cart came up, when the driver delivered to him a letter
from Francis & Co., which had been received at his house
after he left it. That letter contained the following pas-
sage : — '* We are not inclined to be unnecessarily harsh in
the arrangement of our account. You say you can pay
IDs. in the pound now, and the remaining lOs. at some
future time. Let us have a good guarantee for the pay-
ment of tlie first 10s. at as short a date as can be accom-
plished, and we will take your own note for the remaining
10s., payable some time hence, provided the time be not
too long.'' Having read this letter, HoulistoH wrote with
a pencil on the back of it, ** I shall now return with com-
fort to my wife and children/' and sent it to his wife by a
private messenger. He then went on to Tippy Oakford,
the next village to Shillington, called at one house there>
and then returned home by a different route from that
which he usually took. On the same morning, before he
left home, his wife had packed up some clothes for him in
a deal box, which he was in the habit of taking with him
when he went on a long journey. Upon this evidence it
was contended, on the part of the plaintiffs, that Houliston
had committed two acts of bankruptcy ; first, by beginning
to keep house, he having given orders to be denied to the
sheriff's officer; secondly, by departing from his dwelling-
house; — each with intent to delay his creditors. The
learned judge was of opinion that Houliston had not com-
mitted any act of bankruptcy by beginning to keep house
with intent to delay his creditors, the direction given to the
shopman to deny him to the sheriff's officer, if he called.
592 CASES xN THE KING's BENCH,
1830. being evidence only of an intention to delay his creditors,
and not of an actual beginning to keep house for that pur-
pose. Upon that point, however, his lordship reserved
liberty to the [ilaintiifs to move to enter a verdict in their
favour, in case the Court should be of opinion that the facts
proved amounted to a beginning to keep house. Upon the
other point, the learned judge was of opinion that the ques-
tion, whether Houliston had committed an act of bank-
ruptcy by departing from his dwelling-house, depended
upon the intention which he had at the time when he so
departed. If at thaftime he intended not to return unless
he should receive a letter from Francis 8c Co. and should
be satisfied with its contents, that might be a departure
with intent, in a given event, to delay his creditors, and
might, possibly, constitute an act of bankruptcy; but if be
departed from his dwelling-house to go his usual roonds in
the ordinary course of his business, intending to return,
that was not a departing with intent to delay his creditors,
and, consequently, not an act of bankruptcy : and his lord-
ship left it to the jury to say, whether Houliston departed
from his dwelling-house on the morning of the 17th of Jnne
with intent to delay his creditors, or merely to go his usual
rounds in the ordinary course of his business. The jury
found that Houliston did not depart from his dwelling-
house on the morning of the 17th of June with intent to
delay his creditors, but to go his usual rounds in the ordi-
nary course of his business. A verdict, therefore, was en-
tered for the defendant.
Wilde, Seijt., now moved, agreeably to the leave reserred,
to enter a verdict for the plaintiffs, on the ground that
Houliston had committed an act of bankruptcy by beginning
to keep house ; or for a new trial, upon the ground that
the finding of the jury, as to the intent with which Houliston
departed from his dwelling-house, was against the weight
of evidence.
First, there was a beginning to keep house, with intent
EASTER TERMj Xl GEO. IV.
to delay creditors, such as constituted an act of baukruptcy.
An intent to delay is sufficient, although no creditor is ac-
tually delayed ; Lloyd v. HeaihcoU (a) ; and the order here
given to be denied to the sheriff's officer, who vi as expected
to call with a writ at the suit of Francis 8c Co., was suffi-
cient evidence of an intent to delay them. A mere order
of denial given by a trader, though no denial may take
place, is evidence that he desires to conceal himself from
the creditor who is to be denied; and the desire to conceal
himself from a creditor can only be with intent to prevent
or delay that creditor from recovering his debt. In Harvey
V. Ramsbotiom (A) a trader ordered his servants not to let
any one into the house whom they did not know, stating
thai he was afraid of being arrested. The next day the
servants did not open the door without ascertaining from
the windows what persons required admittance, and the
outer gate of the house was kept locked. That was held
to constitute an act of bankruptcy, by beginning to keep
house, though no creditor was actually denied or delayed.
These cases shew that it is not necessary, in order to con-
stitute an act of bankruptcy by beginning to keep house,
that any creditor should be actually denied, or actually de-
layed : therefore Hoitlistofis order to be denied to the she-
riff's officer was of itself an act of bankruptcy, although the
sheriff's officer did not call.
Secondly, the finding of the jury with respect to the
intention with which Houliston left his dwelling-house, was
against the weight of evidence. The circumstances attend-
ing his departure clearly shew that he did not intend to
return ; and if he did not intend to return, he did intend to
delay his creditors. What are those circumstances ? Im-
pressed with a strong apprehension of being arrested — his
Wife having previously packed up his clothes — he sets out
upon a journey^ on an unusual day and at an unusual hour.
593
(a) 2 Brod. & Bingh. S88; 5
B. Moore, 129. 55.
VOU V. Q Q
(6) 3D.&R. 142; 1 6. & C.
18S0.
594
1830.
CASES IN THE KINGS BENCHt
Having gone a short distance, he waits till he receives a
letter, which relieves him from his apprehension of arrest;
he says, " I can now return in comfort to my wife and
children ;" and he then abandons his journey, and returns
home by an unusual route. The object, therefore, for
which he left home, was to avoid being arrested ; and to
effectuate that object his intention was, not to return home
unless the letter which he expected proved favourable, aod
enabled him to do so safely. That being the case, it is
clear that he departed from his dwelling-house on that oc-
casion with intent to delay his creditors.
Lord Tenterden, C.J. — I think we ought not to
grant any rule in this case. Two points have been made
before us : one depending upon a question reserved by the
learned judge who tried the cause ; the other depending
upon the propriety of the finding of the jury. The ques-
tion reserved by the learned judge is, whether Houliston
committed an act of bankruptcy, by beginning to keep
house. It appears by the evidence that he had given
directions to his shopman, if the sheriff's officer called at
the house, to say he was not at home. If he had followed
up that order by withdrawing himself to a part of the house
which he did not usually occupy, that would have been
evidence of a beginning to keep house with intent to delay
bis creditors, although no creditor was actually denied or
delayed ; but he did nothing of that kind. We should be
going much further than any authority will warrant us in
doing, if we were to hold that a mere direction given by a
trader to his servant to deny him to his creditors generallyi
or to any particular creditor by name, not followed up by
an actual denial, or by any other act which is evidence of
an actual beginning to keep house, was an act of bank-
ruptcy. Here the facts proved were evidence of an intent
to begin to keep house in case the sheriff's officer should
call, but not of an actual beginning to keep house. Then,
as to the finding of the jury with respect to the other sup-
EASTER TERM^ XI GEO. IV.
posed act of bankruptcy. Construing the evidence most
favourably for the plaintiffs, it appears that there was no-
thing more than an inchoate intention by Houliston to delay
his creditors, by not returning to his dwelling-house, in
case a particular event happened. That event not having
happened, he did in fact return to his dwelling-house, ac-
cording to his usual habits. That was a departure, not
with an absolute, but only with an inchoate intent to delay;
and I am not aware ttvat that has been ever held to consti-
tute an act of bankruptcy. Besides, there was ample evi-
dence to warrant the jury in finding that he departed from
his dwelling-house with an intent to go his rounds in the
usual course of his business, and not with an intention to
delay bis creditors ; and that being so, there is no ground
for saying that he committed an act of bankruptcy^ by de-
parting from his dwelling-house with intent to delay his
creditors.
595
1830.
Bayley, J. — Upon the second point, the departing from
the dwelling-bouse, the jury have found that Houliston de-
parted from his dwelling-house for the purpose of going his
rounds in the usual course of his business, and not with
intent to delay his creditors ; and I cannot say that they
were not justified by the evidence in coming to that conclu-
sion. But looking at the evidence independently of the
finding of the jury, and taking it most favourably for the
plaintiffs, I should doubt whether there was any departure
with intent to delay creditors ; for the bankrupt, at most,
only intended to delay his creditors in case a given event
should occur. That event did not occur; therefore the
intent was never more than inchoate. If the letter had
proved unfavourable, and he had delayed, even for a short
time after receiving it, to return home, that might have
been an act of bankruptcy, by absenting himself. How-
ever, the jury, by their finding, have negatived any such act
of bankruptcy; and I see no ground for disturbing that
finding.
Q Q2
596
1830.
CASES IX THE KING'S BENCH,
Then, upon the first point, the beginning to keep house.
I am not a\i'are that the mere giving directions by a trader
to deny him to a creditor, unless there be some act done to
shew that he began to keep house, is an act of bankruptcy.
If Houlistoftf to prevent his being seen, had retired into a
seduded part of the house or adjoining premises, or if
there had been an actual denial to a creditor, by his order,
then such acts would have been evidence of a beginning to
keep house. The two cases that have been cited were
very different from the present. In the first of them, Lloyd
V. Healhcote (a), there was an order to deny all creditors
generally, and an actual denial of a particular creditor, and
when that creditor called, and was denied by the bankrupt's
wife, the bankrupt retreated into the garden, which shewed
that he intended to withdraw himself from the view of per-
sons who called. In the other case of Harvey v. Rams-
bottom {b) there were not only directions to be denied, but
tbe doors of the house were kept shut, and no person was
admitted until it had been ascertained by the servants from
the window who he was. Moreover, in that case the
bankrupt removed from one apartment of his house to
another to avoid being seen by a person who called, and
whom he supposed to be a creditor ; so that he was not
conducting himself in his usual manner in his own house,
but was actually concealing himself from a supposed cre-
ditor. All the authorities concur to shew that a mere
direction given by a trader to deny him is not an act of
bankruptcy, unless that direction is followed by an actual
denial, or by concealing himself, or by some other act
which is evidence of a beginning to keep bouse. A locus
poenitentiae is allowed to the debtor; for notwithstanding
his direction, he may, before a creditor calls, revoke it, and
elect to see him ; and in that case there would be no begin-
ning to keep house. Unless the direction is followed bj
(a) 2 Brod. & Bingb. 888; 5 (&) 9 D. & R. 149; 1 B. & C.
B. Moore, U9. ^5.
EASTER TERM, XI GEO. IV.
some act done in pursuance of and consistent with the
direction, it is not an act of bankruptcy.
LiTTLEDALE, J. — I also think that the question, whether Boucher.
there was a '* departing from the dwelling-house within
the meaning of the bankrupt act, was properly left to the
jury, and that their conclusion was warranted by the facts
of the case. It appears by the evidence, that HouUsIon,
when he departed from his house, doubted whether he
should return. He probably intended, if the letter from
Francis & Co. was unfavourable, not to return ; and if so,
he also intended, in that case, to commit an act of bank-
ruptcy. But the letter having turned out favourably, he
did not carry that intention into effect. I cannot say that
this was a departing from the dwelling-bouse with intent ta
delay creditors.
As to the question, whether there was a beginning to
keep house within the meaning of the bankrupt act, — ac-
cording to the earlier cases on that subject it seems for
some time to have been considered that an actual denial
was indispensable to prove an act of bankruptcy by begin-
ning to keep house ; but it has since been settled that a
denial is not the only evidence of a beginning to keep
house, — that it may be proved by other circumstances. In
this case, if there had been any thing to shew that Houlis-
ion, after he had given directions to be denied, had not
conducted himself in his house in his usual manner, — that
he had withdrawn himself into a retired part of his house,
contrary to his ordinary habits, — I think that would have
been evidence of a beginning to keep house : but there
must be some act done by the trader to shew that he actu-
ally began to keep house. Here, the direction given by
Hottliston to deny him to the sheriff's officer, was evidence
of an intent to keep house, and thereby to delay the cre-
ditors ; but It was not followed up by any act shewing tha^
he had actually begun to keep house.
CASKS IN THE KING S BENCH,
Parke, J. — I am of the same opinion. As to the de-
parture from the dwelling-bouse, I think the question was
properly left to the jury, and that their conclusion was
right. Houliston may possibly have intended to do that
which would have amounted to an act of bankruptcy, if the
information he should receive at the turnpike proved un-
favourable. It was more favourable than be expected; he
returned to his dwelling-house according to his usual habit;
and there was no act done out of the ordinary course.
As to the other alleged act of bankruptcy, the beginning
to keep house, the authorities go no further than this;—
that an actual denial to a creditor is not necessary to con-
stitute a beginning to keep house, but that it may be shewn
by other circumstances. It may be sufficient if the creditor
is excluded from the debtor while he remains in or about
his house. Here the case slops at the fact, that Houliston
gave directions to his shopman to, deny him to the sheriff's
officer, if he called. That shewed an intention to delay
his creditors; but the mere intention to delay creditors,
without any act done, is not a beginning to keep house.
Rule refused.
Wood and another v. Grihwood.
il., having lent DeBT for penalties under the Statute of Usury, 12 Ann.,
B. a sum of '^ . . •'
money, agreed St. 2. c. lo. The first count m the declaration stated, that
lLTo"an"Jbr ^^^^'- ^^^ ^^^^ '^"^ ^^ ^^^ defendant to J. B.. R. 5., and
one year, from J. B., the younger, and secured to him by their promissory
182MO Sep- "^^^> ^"^ ^^^^ 3000/. had been lent by him to the same
tember, 1827,
on condition that JB. would pay a bonus in the first instance, and legal interest apoo
the sum lent half-yearly. jB. paid the bonus in January, 1827, and legal interest apoa
the money lent half-yearly, in April and October, 1827. In June, 1828, an action was
commenced against A. for usury : — Held, that the action was not commenced withio
one year after any offence committed, for that the only otfence committed was cooplete
in April, 1827, when the first paymerit of interest was made, and that the bonus coald
not be apportioned to the second payment of interest, so as to render that asurious.
EASTER TERM, XI GEO. IV.
persons, and secured to bim by their bond ; that it bad
been agreed that the 5()00/. should be further secured by a
mortgage to be granted by J. B. and JR. J5.; that the said
sums had been forborne by the defendant upon the note
and bond, before and from the gth of September and £8th
of September, 1 826, respectively, until the time of the con-
tract next mentioned ; that on the 4th of October, 1 826, it
was corruptly agreed between the defendant and J. JB., that
the defendant should sell certain beans and barley to J, B.,
at prices far exceeding their value, and should take, by way
of shift, the difference between the prices and the true
value thereof as a bonus for the further forbearing of the
said sums as next mentioned, over and above 5l, per cent.
to be also paid upon them while forborne ; such prices to
be paid at three months' credit : that the defendant, in pur-
suance of that contract, forbore the 5000/. upon the note
until the execution of the mortgage next mentioned, and,
from its execution, upon the mortgage, until the 8th of Sep-
tember, 1827, and forbore the SOOO/. upon the bond until
the 28lh of September, 1827 : that on the 25th of October,
1826, J. B. and R, JB, executed a mortgage, bearing date
the 9th of September, 1826, in which the 5000/. was men-
tioned as a sum lent by the defendant and one «7. C. to
J. B. and i2. J3., and was made payable to the defendant
and J. C, at the expiration of one year from the date, with
interest at 51, per cent., payable on the 8th of March and
8th of September ensuing the date: that on the 10th of
January, 1827, the defendant was paid the prices agreed
upon for the beans and barley, amounting to 760/. IO5.,
and took the said difference, amounting to 1 14/. 125. Sd. as
a bonus as aforesaid : that on the 25th of April, 1827> the de-
fendant and J. C. took from «7. JB. and R. £., 125/. for for-
bearance of the 5000/. from the 9th of September, 1826,
to the 8th of March, 1827, and the defendant took from
/. J5., R. B., and J. B. 75/. for forbearance of the SOOO/.,
from the 28th of September, 1826, to the 28th of March,
1827 : that on the 28th October, 1827, the defendant took
699
1830.
600
1830.
CASES IN THE KINGS BENCH,
200L, for forbearance of the 5000/. and the 3000/1, that is
to say, 125/. from J.J?, and R.B.^ for forbearing the 5000/.
from the 8th of March ,1827, to the 8th of September, 1827,
and 75/, from J, B,^ R. B. and J. J3., for forbearing the
3000/. from the 28th of March, 1827, to the 28th of Sep-
tember, 1827; and that the defendant, by so taking the
200/. over and above the bonus, and the other sums, took
above 5/. per cent. &c., contrary to the form of the statute,
&c. Plea : Not guilty, and issue thereon. At the trial
before Bay ley, J., at the last assizes for the county of
Essex, the counsel for the plaintiff stated the facts dis-
closed in the former action, between the same parties (a),
and also the following additional facts : — that the payment
of the 760/., the stipulated price of the beans and barley, in
January, 1827, exceeded the market price by 114/.; that
by the mortgage deed the 5000/. was payable at the end of
one year, with 5/. per cent, interest, payable half-yearly, on
the 8th of March and 8th of September ; that in pursuance
of that deed, 125/., half a year's interest, due on the 8th of
March, 1827, was paid in April to the defendant; that 126/.,
another half year's interest, due on the 8th of September,
1827, was paid to the defendant in October, 1827; and
that the present action was commenced on the 28th of June,
1828. The learned judge, after hearing this statement,
being of opinion that if all the facts contained in it were
proved in evidence, the plaintiffs would not be entitled to
recover, or even to call upon the defendant for an answer,
directed a nonsuit, which was submitted to. The ground
of his lordship's opinion was, that the action was not com-
menced within the time limited by the statute, namely, one
year after the alleged usury was committed, the usury being
complete in April 1827, when the first half-year's interest re-
served by the mortgage deed was paid, and the defendant
having received only legal interest in October, 1 827, when
the second half-year's interest was paid.
(a) Set out aniCf p. 551.
EASTER TERM, XI GEO. IV. 601
Stephen, Serjt. now moved to set aside the nonsuit, and isso.
for a new trial. The action was commenced in due time; ^■^•^v*^^
There were two offences of usury committed, and the action p.
vas brought within a jear from the commission of the Obimwood.
second of them. The bonus was taken by the defendant
as a consideration for the forbearance of the principal money
lent during the period of one whole year, and though the
whole of that was received at once, still, as the interest was
received half-yearly, a portion of the bonus must be consi-
dered as forming a. part of the consideration for the forbear-
ance during each half year. It follows, then, that although
the defendant committed one offence of usury, when he re-
ceived the first half-year's interest reserved by the deed, he
committed another distinct offence when he received the'
second half-year's interest. Wade v. Wibon {a), upon the
authority of which this case was disposed . of at nisi prius,
does not seem inconsistent with this view of the transaction.
There the contract was for the loan of 600/., for a year, re-
serving interest payable half-yearly, at the rate of 51. per
cent., but a premium of ten guineas was paid in the first
instance. The action was brought upon the payment of
the first half-year's interest, and it was contended, that the
loan being for a year, and the premium paid for that time,
the usury was not complete till the end of the year, when
the whole interest was received in addition to the premium.
But the Court held, that the usury was complete upon the
lender's receiving any part of the growing interest within
the year; Lawrence, J., observing, that there was a pre-
mium of ten guineas paid at first, which was to run through
the whole year : and Le Blanc, J. expressing his opinion,
that at least one moiety of the premium was to be appor-
tioned to the half-year's interest which was received, and
that the true spirit of the agreement was, that the premium
tpas to run through the whole year, in proportion as the in^
terest accrued. Now, though the decision in that case is
an express authority to shew, that one offence of usury was
(a) 1 East, 195.
602
1830,
CASES IN TU£ KINGS BENCH,
tommitted here when the first half-year's interest was re-
ceived, it is not at all inconsistent with the inference arising
from the opinions expressed by Lawrence, J. andZe BlanCf
J.p namely, that a second and distinct offence was committed
when the second half-year's rent was received. In Scurry i.
Freeman (a). A, lent JB. 500L upohhis bond, and an assign-
ment by way of mortgage of leasehold premises, and at the
time of the loan it was agreed that the latter should giye
something more than legal interest as a compensation, but
no particular sum was specified. After the execution of
the deeds, B. gave A, 50/., and paid interest at the rate of
5L per cent, on the 500/., for five years, at the end of which
an action was brought against^, for usury, founded on the
receipt of the last half-year's interest. It was held, that the
action was. not barred by lapse of time, for the loan was
subrtantially for no more than 450/., and consequently the
interest, at the rate of 5/. per cent, on the 500/. received
within the last year, was usurious. That case is an autho-
rity to shew that the present action is maintainable in re-
spect of the second half-year's interest received by the
defendant, that interest being, coupled with a portion of the
bonus, usurious ; because it shews, that a bonus originally
taken renders all subsequent payments of interest, though
not in themselves exceeding 5l. per cent., usurious, and that
every such payment constitutes a distinct offence.
< Lord Tentebden, C. J.-^I am of opinion that the
action in this case was not commenced in due time, and
that the nonsuit, therefore, was right. The facts of the
case .were shortly these: — Prior to September, 1826, the
defendant had advanced the Brightwens 5000/., which was
partially secured by their promissory note, and which it was
agreed should be further secured by a mortgage to be after-
wards executed. Before the time arrived for the execution
of the mortgage, the defendant gave the Brightwens to un-
derstand, that he would not complete it unless they wooM
(a) 3 Bos. & Pill. 381.
EASTER TERM, XI GEO. IV. 603
purchase of him. some beans aDcl barley, at a much higl^r 1830.
price than they would have fetched in the market; aodt^ey
agreed to do so. The mortgage de^d was executed on .the
eoth of October, 1826, but was dated on the 9th of Sep-
tember in that year. The dOOOL was payable at the end of
one year, with interest at oL per cent., payable half-yearly,
on the 8th of March and 8th of September. In January,
1827, 760/., the stipulated price of the beans and barley,
was actually paid to the defendant, exceeding the market
price by 1 14/. On the 25ih of April, 1827, 125/., the half-
year's interest, due by the mortgage deed on the 8th of
March, was paid to the defendant. On that day, therefore,
the defendant had actually received 239/* for the forbear-
ance of 5000/.. for half a year, and an action might then
have been broijight against him for the penalty, namely,
treble the amount of the money lent. ,No such action was
brought. On the 8th of September, 1827, another half-
year's interest became due, for which, on the 25th of Oc-
tober, another sun) of 125/. was paid to the defendant. The
present action was commenced on the 25th of June, 1828,
more than a year after the payment of the interest made in
April, but less than a year after the payment made in October.
It is clear, therefore, that no more than the legal interest was
received in October, 1827, unless we can consider part of the
bonus of 1 14/. as having beien then paid ; but as the whole
of diat was in fact paid in January, we cannot, especially
for the purpose of subjecting the defendant, to a penalty,
consider any part of it, contrary to the fact, as having been
paid in October. . Our present decision will not militate
against that in the case of Wadty* Wibon{a). It was not
decided there that an action for penalties was maintainable
in respect of the 5/. pier cent, interest received for the last
half-year ; but merely that the receipt by the defendant of
interest received for the first half-year, which, with what
he had before received, amounted to more than 5/. per cent.,
constituted usury : and in deciding that, the Court decided
(a) 1 East, 195.
604 CASES ly THE king's bench,
iBSOi. all that was necessary for that case. Scurry v. Freeman {a)
was decided on the ground that the amount of the actual
loan must be deemed to have been 450/. only, and not 500/.,
and that therefore the receipt of 25/. for one year's interest
was usurious. In this case the facts are very diflFerent, and
I think we should be doing great violence to the words of
the act of parliament, if we were to hold that in this case
more than 5/. per cent, interest was received withm the year
before the action was commenced.
LiTTLEDALE, J. — I think we ought not to grant any rule
in this case. Here is a contract for a loan of 5000/., se-
cured in the first instance by a promissory note, and agreed
to be afterwards secured by a mortgage. Before the mort-
gage is executed, the lender, the defendant, informs the
borrowers that he will not complete the mortgage unless be
has a bonus. They agree to give a bonus, and do give it by
paying him a sum of 1 14/. in January, 1827. The mortgage
deed, bearing date on the 9th of September, 1826, is exe-
cuted in October in that year. The first half-year's interest
reserved by that deed becomes due on the 8th of March, and
is paid on the 25th of April, 1827. By the payment of that
money the usury was complete, for the defendant had then
received a sum exceeding the amount of interest, at the rate
of 5/. per cent, upon the money lent. I think the 114/.
cannot be extended over the whole period for which the
money was lent, and apportioned to the several payments
of interest, in order to make the party receiving in regular
course the half-yearly payments of Icfgal interest, guilty of
- usury. But even if the bonus were divisible and could be
apportioned over the whole period for which the loan was
to continue, I doubt whether any action for penalties could
be maintained after the receipt of the first half-year's in-
terest, because the offence was complete at that time. The
defendant had then taken more than 5/. per cent, in respect
of the corrupt contract, and had thereby subjected himself
(a) 2 Bos. & Pul. 381.
EASTER TERM, XI GEO. IV.
to the penalty imposed by ihe statute, of treble the sum
lent ; and the statute does not subject a party to a second
penalty for taking usurious interest a second time, in respect
of one and the same contract.
605
1830.
Wood
V,
GrI¥WOOD.
Parke, J. — lam of the same opinion. The only sura
received by the defendant within one year before the coni-
mencement of this action, was 125/., the second half-year's
interest at 5L per cent, upon the original loan, due on the 8th
September, 1827. That was, prim^ facie, legal interest, and
no offence against the statute was committed by the receipt
of it. But it is said that the bonus of 1 14/. was paid for the
forbearance of the 5000/. for the whole year, and that a por-
tion of it must be considered as paid for the forbearance during
the last half-year, the interest for which was received within
one year before the commencement of the action. Upon
principle^ I cannot concur in that argument, and no autho-
rity has been cited in support of it, for it is founded entirely
upon some expressions reported to have fallen from LaW"
fence, J. and Le Blanc, J. in Wade v. Wilson (a), which can-
not be adopted as an authority, having been extra-judicial,
and not at all necessary to the decision in that case. But
even admitting that argument to be correct, I cannot agree
to the conclusion attempted to be drawn from it — that an
action for penalties is inaintainable against the defendant for
the receipt of that last half-year's interest ; because, looking
at the words of the statute, I am of opinion that after one
penalty has been incurred upon one bargain or loan, no
other offence can be committed in respect of the same bar-
gain or loan, by the lender receiving a further sum by way
of usurious interest. The statute 12 Ann. st. 2, c. 16, s. I,
enacts, in substance, that all persons who shall upon any
contract take, accept, and receive, by way or means of any
corrupt bargain or loan, for the forbearing or giving day of
payment for one whole year, of and for their money, above
the sum of 5/. for the forbearing of 100/. for a year, and so,
(a) 1 East, 195.
606
1830.
CASES IN THE KING S BENCH,
after that rate for a greater or lesser suniy or for a longer or
shdHer time, shall forfeit and lose for every such offence
the treble value of the money lent. The statute, therefore,
makes two things necessary to constitute the offedce of
usury : first, a corrupt bargain or loan ; and, secondly, an
actual receipt of a higher rate of interiest than 5L per cent,
for the forbearing or giving day of payment of the money
lent. As soon as these two things concur, the offence con-
templated by the statute is complete; The party who has
recefived the usurious interest in respect of the corrupt bar-
gain or loan, has then incurred the penalty, and, I think, the
only penalty attached by the statute to that bargain or loan,
and to the receipt of usurious interest upon it, by forfeiting
treble the value of the money lent or forborne. If this
were not so — if every subsequent payment of legal interest
on a loan, where a premium has been given which renders
the first payment, though legal in itself, usurious, would
constitute a distinct offence of usury — the consequence
would be, that if the lender received legal interest on such
a loan, at intervals, he would be liable to forfeit treble the
value of the money lent, not once only, but every time he
received the interest ; and if the intervals wer^ short, penal-
ties to the amount of many thousand pounds might be m-
curred upoti the loan of a single hundred pounds. I cannot
bring my mind to think that such a result was intended by
the legislature : I think their meaning must have been, that
no more than treble the value of the money lent should,
under any circumstances, be forfeited by the offender b
respect of one and the same transaction. In the case of
Scurry v. Freeman (a), it does not appear that this point was
pressed upon the attention of the Court
Bayley, J. — The offence of usury, as defined by the
statute creating it, consists in the receiving more than 51.
per cent, interest upon a corrupt bargain or loan. In de-
ciding this case, we must consider the provisions of the
(a) 2 Bos. & Pul. 381.
EASTER TERM, XI GEO. IV.
statalc as embodied in the declaration, and then we are to
see whether the defendant has received more than 5L per
cent upon his loan, within one year before the commence-
ment of the action. Now, in point of fact, two sums onlj,
of 1£5/. each, were received by the defendant within the^
jear before the action was commenced ; and they did not
exceed 5/. per cent, upon the money lent, provided the debt-
of 5000/. continued. Now, it has been decided, • that the
taking of usurious interest upon a pre-existing debt, does
not destroy that debt, although the party may be liable to
penalties (a). The 5000/., therefore, continued a debt, and
two payments only, not exceeding the legal rate of interest,
were made upon it within the year before the commence-
ment of the action. The decision in Scurry v. Freeman (b)
may be right, and would undoubtedly be so, if the lender
of the money, after the 50/. had been retained, had claimed
only 450/. as the debt.
Rule refused.
607
18S0.
(a) See the law upon this point
stated, and the aothorities col-
lected io Comyn on Usury, Part iii.
chap. J, sects. 2 & 3, page 183 to
195; an/f, 582,n., 584.
(b) 2 Bos. & Pul. 381.
MosELEY, Assignee of Robikson^ a Bankrupt, v.
Hanford.
Assumpsit, by the plaintiff, as assignee of a bank*
nipt, against the defendant as maker of a promissory note
for 233/., payable to the bankrupt or his order, on demand.
Plea, Don assumpsit, and issue thereon. At the trial be^
fore Alexander, C. B., at the last assizes for the county
of Derby, a prima facie case having been made out, on the
part of the plaintiff, by proof of the defendant's handwriting
to the promissory note in question, the following evidence
was given on the part of the defendant: — The defendant
and one Richardson, being in partnership as booksellers at
Derby, agreed to purchase of the bankrupt certain pre-
In an action
on a promis-
sory note
made payable
on demand,
parol evidence
of an agree-
ment entered
into when it
was made,
that it should
not be put in
suit until a
l^iven event
happened, is
not admissible.
60S
1830.
CASES IK THE KINGS BENCH,
mises belongiog to him, and of which he andertook to de-
liver up possession on the 1st of August. 1825, or to
paj for the time he should keep possession beyond that
day, a rent agreed upon between the parties. On the 1st
of August. 1825. Richardson and the defendant paid up
the whole of the purchase money, except 25SL (the amooot
of the promissory note.) and the defendant, with the con-
sent of the bankrupt, then gave his sole note for the
balance, it being expressly stipulated that it was to be paid
only on the bankrupt's delivering up possession of the pre-
mises, and accounting for the rent from the 1st of August
The bankrupt did not deliver up possession of the pre-
mises, according to his undertaking, and part of them con-
tinued in the possession of the bankrupt's sister down to,
and since the commencement of the action. The jury found
a verdict for the plaintiff.
Denman, C. S., on a former day. moved for a new trial,
on the ground that the verdict was against the weight of
evidence. [Lord Tenterden, C. J. But I have great
doubt whether the evidence itself was admissible. Have
you any authority to shew that a promissory note like this,
absolute on the face of it, can have its effect restrained by
parol evidence? Bayhy J. Is not the case of Wood-
bridge V. Spooner {a) an authority to shew that such evi-
dence is not admissible? Parke, J. The proper distinc-
tion I apprehend to be this. — Every bill or note imports
two things, value received, and an engagement to pay the
(a) 3 Barn. & Aid. 233; 1 Chit.
R. 661; where it is said " it is an
inflexible rule not to adroit parol
evidence to contradict a written
instrument, unless the considera-
tion be illegal ; therefore, where a
testatrix gave in her life-time to
the plaintiff a promissory note to
pay him or order * on demand,
the sum of 100/. for value re-
ceived, and his kindness to me,*
with a verbal engagement on the
part of the plaintiflf that the note
should not be demanded till after
her death: it was held, in an ac^
tion upon the note, that parol eri*
dence could not be received to
shew that it was not pven for a
valuable consideration."
EASTER T^RM, XI GEO. IV. 609
amount at a certain 8pe€ified time ; you may give evidence 18S0.
to disprove the receipt of any consideration, but not to ^^
vary the engagement.]
V.
H4NF0RD.
The Court, however, took time to consider of their
judgment, which was now delivered by
Lord Tenterden, C. J., who, after recapitulating the
facts of the case, thus proceeded: — When the applica-
tion for a new trial was made in this case, it occurred to
some of the Court that the evidence given on the part of the
defendant ought not to have been received, on the ground
that evidence of an agreement, that the note should not be
put in suit until a given event happened, was not admis-
sible, the effect of it being to contradict by parol the note it-
self, And upon consideration we are all of opinion that, upon
principle as well as authority, that evidence was not admissi-
ble. There are several cases in the books to that effect (a).
(a) See Campbell v. Hodgton^
Gow, N. P. C. 74; Hoare v. Gra-
hom, 3 Camp. 57; Rawton v.
Walker, 1 Slark. N. P. C. 361;
Rule refused.
Ridout V. BrUtow, 1 Tyr. 84, 1 C.
& J. 331; Woodhridge v. Spooner,
iupriif(a).
Garry v, Sharratt.
Assumpsit by the plaintiff, as assignee of Flowers, an
insolvent debtor, against the defendant, for money had and
received by him to the use of Flowers. Plea : non
assumpsit, and issue thereon. At the trial before Little-
dale, J. at the last assizes for the county of Stafford, the
following was the evidence on the part of the plaintiff: —
An indenture of assignment of 1 May, 1828, from Flowers
to Dance, provisional assignee of the Insolvent Debtors^
Court — a rule of that Court of 13 September, 1828, au-
thorizing. Dance to assign to the plaintiff-^an indenture of
VOL. V. R R
The assignee
of an insolvent
cannot recover
from a person
with whom the
insolvent has
deposited the
title-deeds of
an estate, as a
security fur a
debt, the rents^
of the estate
received by
such person
subsequently
to tlie assign
ment.
CAS£S IN THE KING S BENCH,
assigDment of 27 April, 1829* from Dance to the plaintiff,
of all the estate and effects of Flowers — tljat the defendant,
after the discharge of Flowers, had received 71. Is. on
account of rent of an estate belonging to Flowers — and that
Flowers, prior to his discharge, had always received the
rent of the estate himself. On the part of the defendant,
the insolvent, Flowers, was called, and stated, that in IB26,
being indebted to the defendant, he deposited with him
the title-deeds of the estate in question, as a security for
what he then owed, or might thereafter owe him, and that
he had, prior to his discharge, given to the defendant a
verbal authority to receive the rent of the estate. The
learned judge directed the jury to find for the defendant,
if they believed that he had received authority from Flcmer$
to receive the rent, and that that authority had not been
revoked. The jury said, they considered the deposit of
the title-deeds a sufficient authority to receive the rent,
and found for the defendant. The plaintiff had leave to
move to enter a verdict in his favour for ?/• \s,
Campbell now moved accordingly.' First, the defendant
never had a legal authority to receive the rents. Secondly,
if he once had, that authority was revoked by the assign-
ment to the plaintiff. The deposit of the title-deeds made
the defendant equitable mortgagee of the estate; but such
a mortgagee has not, necessarily, authority to receive the
rents. The legal estate was in the insolvent, as the
owner, up to the time of his discharge, and he was entitled
to the possession of the land and the perception of the
rents. The defendant, as equitable mortgagee, might in a
Court of Equity have compelled the conveyance of the
legal estate to himself; but he cannot, in a Court of Law,
set up his equitable title against one in whom the legal
estate is vested. But, assuming that the defendant once
had authority from the insolvent to receive the rents, that
authority was revoked by the assignment of the insolvent's
estate and effects to the plaintiff, and the legal estate iben
EASTER TERM, XI GEO. IV.
vested in the plaintiff, who thereby acquired a better title
than that of the defendant.
Lord Tenterden, C. J. — By the assignment of the
insolvent's estate and effects to the plaintiff^ all that the
insolvent was entitled to at law and in equity passed to the
plaintiff, and vested in him as assignee. Now, the insol-
vent was at law entitled to the land, but the defendant was
in equity as mortgagee entitled to the land, and to the
rents accruing from it. The assignment to the plaintiff,
therefore, could not give him any right to the rents, nor
any title to receive them. The verdict, consequently, was
"ght.
The other Judges concurred.
Rule refused.
Hunter i;. Wright.
Assumpsit, by the St. Patrick Assurance Company Policy of in-
in Ireland, in the name of their Secretary, to recover the ^uf^^J^e on a
•" ship (or a year,
balance of an account alleged to be due to the Company with a stipu-
from the defendant, an insurance broker, for premiums on proportionate
policies on ships effected by the Company. Plea: non return of pre-
assumpsit, and issue thereon. At the trial, before Lord every uncom-
Tenterden^ C. J., at the London adjourned sittings after nienced
, ! , , . ,. . . . , month if the
last term, it appeared that the policies in question contained ship should be
a stipulation for the return of a proportionate part of the **^'^, ^^^^^^
premiums " for every uncommenced month, if the ship ship was laid
should be sold or laid up.'' Under this stipulation, the ll^ IdisTuriSg
defendant claimed a return of premium for a vessel called the year, but
tlie Lord Stanley, which had been insured by the Company ^^^ds em-
ployed within
the year. Held, that the words " laid up" meant a permanent laying up, such as
woold pot a final end to the policy, and therefore that the assured was not within tb«
ttifHilation, nor entitled to any return of premium.
R R 2
612
1830.
CASES IN THE KINGS BENCH,
from Ladj-daj 18^6, to Lady-daj 1827, and which in the
course of that year had been laid up several months for
the purpose of repair. It was admitted that if the defend-
ant was entitled to this return, the plainUff was not entitled
to a verdict; but it was contended, that as the vessel was
laid up only during part of the year, and was employed
during the residue, it was not such a laying up as was con-
templated by the policy, and therefore did not entitle the
defendant to a return of premium. Lord TenUrden, C. J.
was of opinion that the words " laid i/p," connected as
they were with the word •* sold," in the policy, meant a
laying up of the vessel for the season or winter, without
her being employed again during the current year; and his
lordship therefore directed the jury to find a verdict for the
plaintiff, but gave the defendant leave to move to enter a
nonsuit, in case the Court should be of opinion that such
direction was wrong.
Campbell now moved accordingly. Policies of insurance
are to be construed liberally. In Sfevetison v. Snow (a),
Lord Mamifieldf speaking of them, says, ** These contracu
are to be taken with great latitude. The strict letter of the
contract is not to be so much regarded, as the object and
intention of it.*' (6) According to that rule the present
defendant seems clearly entitled to the return of premium
which he claims. By the stipulation in the policy the
assured was at liberty to lay up the ship, and to suspend
the policy, and the risk upon it, for any entire month; and
the fair effect of that would be, to suspend the payment
of premium during the same period. The meaning of the
stipulation is, '' no risk, no premium," whether for one or
more months, or for the whole year. The risk would
equally cease, and the payment of premium, therefore,
should equally cease, whether the policy were only sus-
pended or entirely put an end to. Unless this be so, the
(a) 3 Burr. 1237; 1 W. BI.315.
(h) S Burr. 1240.
£A$T£K TERM, XI GEO. IV. 613
Stipulation becomes useless, for it cannot be supposed that 1B30.
a party would insure his vessel for a whole year with the Hunter
intention of laying her up for the whole year. v.
Wright.
Lord Tenterden, C. J. — I am of opinion now, as I
was at the time of the trial, that the words 'Uaid up'* being
in company with the word ** sold," must mean a permanent
iajfing up, similar to that which would take place if the
ship were sold — ^in other words, such a laying up as would
put a final end to the policy. I therefore think we ought
not to grant any rule.
Bayley, J. and Littledale, J. concurred.
Parke, J. — I am of the same opinion. The meaning
of the parties may certainly have been, to stipulate in the
manner in which it is contended for the defendant that they
did stipulate, but they have not expressed themselves in words
capable to convey that meaning. The only true construc-
tion of the words '' laid up^^ as used in this stipulation, is
such a laying up as must put an end to the policy altoge-
ther.
Rule refused*
Gaussen and others v. W. Morton and E. Morton.
IRESPASS for breaking and entering two closes of the A power of
plaintiffs, situate in the county of Hertford. Pleas: first, 5"°'Xlt£*i"
not guilty; second, that the closes in which &c., were par- a creditor, an-
cel of the manor of Park, in the county of Hertford, and to^^eU an *°^
customary tenements of that manor, demised and demisable estate, and to
appi V tbe pro-
by copy of court-roll by the lord of that manor, or his stew- ceeds inliqai-
ard for the time being, to any person or persons willing to j^bt*",®^*'
aathority
coupled with an interest, and cannot be revoked.
614 CASES IN THE KINg's BENCH,
1830. take the same in fee-simple or otherwise, at the will of the
^ lord, according to the custom of the manor: that hefore the
Gavssen . .
and others said time when &c., to wit, on 8lc., the Earl of Essex, then
Morton being lord of the said manor, at his court then holden id and
and another, for the manor, before A. B., then his steward of the court of
the said manor, bj copy of the court-rolls of the said manor,
granted to one J. L. the said closes in which 8cc., in fee, at
the will of the lord, according to the custom of the said
manor; that by virtue of such grant, the said J. X. after-
wards and before the said time when &c., to wit, on tu„
entered into the said closes in which &c., and became and
was seised in fee thereof &c., and died so seised ; that there-
upon the same descended to one M. Z., as eldest daughter
and heiress of the said J. L., who thereby became and was
seised in fee of the said closes in which &c., and being so
seised, intermarried with W. Morton, (one of the defendants,)
and thereby the said W. M. and M. his wife, b right of the
said AT., became and were seised in fee of the said closes
V in which 8cc.; and that therefore the said W. M. in his own
right, and £. Morton, (the other defendant,) as his servant,
and by his command, broke and entered the said closes in
which 8cc. Replication : that J. L. at the time of his
death was not seised of and in the said closes in which &c.,
in manner and form as alleged by the defendants* Issue
thereon. At the trial, before Ttndal, C. J., at the last
assizes for the county of Hertford, it appeared that the
question whether J. L. had died seised in fee or not of the
premises in question, depended upon the legality of a power
of attorney which he had executed, authorizing the surrender
of the estate, and upon the question whether such power of
attorney had or had not been legally revoked. I1ie facts
proved in evidence upon that subject were as follows: — In
1787, J. L. became bound to W. F. & Co. for a debt of
230/., due to them from his son. The money not having
been paid according to the condition of the bond, J. Z., in
order to discharge the debt, being seised in fee of the cus-
tomary premises in question, executed a warrant of attorney
EASTER TEKM, XI GEO. IV. . 616
on the 3d of December, I787i authoriziug W, F. to appear 1830.
for biin at the then next or any subsequent court baron or n u n
customary court, holden in and for the manor of Park, and and others
surrender the premises to the use of such person or persons Moktom
as might become purchasers thereof; and he further autho- «««d another,
rized W, F. to sell the premises and receive the purchase-
money. Under this power W. F., on the 7th of February,
1788, sold the premises by auction for 105/., and received
20/. from the purchaser as a deposit. On the 12th of
April, 1788, J, Z. contending that PV. F. had violated some
of the stipulations in the agreement between them, executed
a deed-poll, revoking the power given to W, JF., and gave
notice thereof to the steward of the manor. In May, 1788,
W, F, applied to the steward to take his surrender of the
premises to the use of the purchaser. This the steward at
first refused to do, on account of the revocation of the
power ; but afterwards, on receiving an indemnity, he took
the surrender and admitted the purchaser, from whom title
was deduced to the plaintiffs. The plaintiffs being in pos-
session, the defendants entered and took away some hay;
Upon this evidence it was contended, on the part of the
defendants, that as J. Z. had revoked the power of attorney
before the surrender was made, he had died seised of the
premises as alleged in the plea. That point the Lord Chief
Justice reserved, and the plaintiffs had a verdict, with leave
to the defendants to move to enter a nonsuit.
Rrodrkky on a former day, moved accordingly. The
authority given by the power of attorney had not been exe-
cuted at the time when the alleged revocation took place ;
this case therefore comes within the principle of the rule
laid down by Houghton^ J. in Webb v. Paternoster {a), that
a licence, when executed, is not countermandable, but it is
otherwise while it remains executory. [Parke^ J. But in
Walsh V. Wkitcomb (6), Lord Kenyan held, that a power of
attorney, given as part of a security for money, was not
(«) Popham, 151. (6) 2 Esp. 565.
616
1830.
Gaussen
and others
V.
Morton
and another.
CASES IN THE KING S BENCHj
coontermandable; and in Watson v. King {a) j Lord £//eii-
borough expressed a similar opinion.] That certainly b so;
but in fValsh v. Whiicomb (6) the power had been executed
before the countermand; and in Watson v. King it became
unnecessary to decide this point, because the person giving
the authority died before it was executed.
The Court took time to consider of their judgment, which
was now delivered, after adverting to the pleadings, by
Lord Tenterden, C. J. — ^The question, whether J« L
died seised of the premises in which the trespass was alleged
to have been committed, depended upon this; whether he
could revoke the power of attorney which be had given to
W. F. Upon consideration, we think that that power of
attorney was not a simple authority to sell and surrender the
premises, but an authority coupled with an interest, for
W. F. was to apply the proceeds of the sale in liquidation
of a debt due to himself and his partner; and there are
several cases in which it has been held that such an autho-
rity cannot be revoked.
Rule refused.
(u) 1 Stark. 131; 4 Caropb. 272.
(6) 2 Esp. 665.
The duly
elected minis-
ter of a dis-
senting congre-
gation, wlio is
|>at in posses-
sion ofa cha-
pel and dwel-
ling-house by
trustees, in
Doe on the demise of Benjamin Jones v. Michael
Jones.
•■-EJECTMENT, to recover the possession of a chapel
and dwelling-house situate in the county of Merionedi.
Plea: not guilty, and issue thereon. At the trial before
Raine, C. J. at the last great sessions for the county of
Merioneth, the case was this : — By lease and release of
4th and 5th August, ] 783, a piece of land, therein partica-
whom they
are \e^\]y vested, in trust to |>erroit the chapel to be used for the purpose of religioos
worship, is mere tenant at will to such trustees, and his tenancy is determined bja
demand of possession, without any previous notice to quit.
EASTER TERM, XI GEO. IV.
larlj described, and the structure or lueetiDg-house thereon
erected and built, were conveyed unto Benjamin Jones,
and nine other persons therein named, and to their heirs
and assigns, to have and to hold the same, with their and
every of their appurtenances, unto the said Benjamin Jones
and the nine other persons therein mentioned, and their
successors, ministers of the respective meeting-houses or
places therein mentioned, for the time being, for ever, in
trust, and to the intent and purpose that the said structure
or building should be used as a meeting-place or house for
public and religious worship, by the society or congrega-
tion of protestant dissenters, called Presbyterians; and
that they should permit and suffer the same from time to
time to be used, occupied and enjoyed, as and for a meeting-
house, place, or house for such public and religious worship,
by such society or congregation of protestant dissenters, and
for no other use, intent, or purpose whatsoever. The de-
fendant had, sixteen years ago, been elected by the congrega-
tion, according to the usual practice, minister of the chapel,
and was then put into possession of the house and pre-
mises by officers acting under the authority of the tiustees.
At a meeting of the congregation in the year IB£8, it was
determined that the minister should be changed; but no
other minister was elected. Possession of the chapel,
dwelling-house, and premises was afterwards demanded of
the defendant, but he refused to quit. The lessor of the
plaintiff was the grandson and heir at law of another Ben-
jamin Jones, vfho hsid been the last surviving trustee of
those named in the deed. Upon this evidence it was con-
tended on behalf of the defendant, that he could not be
considered as a trespasser, and consequently that the lessor
of the plaintiff could not recover possession of the pre-
mises against him, so long as he continued minister of the
chapel — that by the very deed under which the lessor of
the plaintiff claimed, the trustees held the chapel in trust
to permit and suffer it to be used as a place of religious
worship — and that the defendant, having been duly elected
618 ' CASES IN THE KING^S BENCH,
1830. to fill the office of minister of the chapel, had an office
coupled with an interest, and must continue to hold that
office until another minister should be duly elected, accord-
ing to the usual course adopted on former occasions.
The learned Chief Justice, however, was of opinion that
the legal estate was in the lessor of the plaintiff, as heir at
law of the last surviving trustee named in the deed; and
he directed the jury to find a verdict for the plaintiff, re-
serving to the defendant leave to move to enter a nonsuit.
Campbell now moved accordingly. The defendant
having been duly elected minister of the chapel, continues
ao until another has been regularly appointed by the con-
gregation; and while he continues minister, the trustees
cannot treat him as a trespasser, and maintain ejectment
against him. The proper course would have been for the
congregation to have elected another minister; and then
the Court, by mandamus, would have compelled the de-
fendant to give him possession of the chapel and other
premises. So long as the defendant continues in his office
of minister, he has a possessory right to the house. In
Rex V. Baker (a). Lord Mansfield^ speaking of a case rery
similar to the present, says, '' The deed is the foundation
or endowment of the pastorship. The form of the instru-
ment is necessarily by yvay of trust: for the meeting-house,
and the land upon which it stands, could not be limited to
Eniy(b) and his successors. Many lectureships and other
offices are endowed by trust-deeds. The right to the
function is the substance, and draws after it every thing as
appurtenant thereto. The power of the trustees is merely
in the nature of an authority, to admit. The use of the
meeting-house and pulpit, in this case, follows, by neces-
sary consequence, the right to the function of minister,
preacher, or pastor, as much as the insignia do the office
of a mayor; or the custody of the books that of a town-
(a) 3 Burr. 136«. in the deed, and the mioisier
(A) One of the trustees named thereby originally appointed.
EASTER TERM, XI GEO. IV. 619
clerk." And Foster, J. added, ** Here is a legal right. ^^^o.
Their ministers are tolerated and allowed. Their right is
established, therefore, as a legal right, and as much as
any 'other legal right." [Parkey J. The result of that
case was merely this — that the Court granted a manda-
mus to admit the party elected to the use of the pulpit
as minister, preacher, or pastor. That is perfectly con-
sistent with the legal estate in the chapel being in the
trustees. The use of the pulpit is no more than an ease-
Dieot; it is like a right of common, or a right of way. In
this case the defendant had no other estate in the premises
than that of tenant at will, which has been put an end to
by the demand of possession. The right to the chapel is
clearly in the trustees. The defendant may possibly have
a remedy against them in equity, if they have improperly
turned him out, but at law he has clearly no title to set up
as against their's.]
Lord Tenterden, C. J. — The right to the use of the
pulpit, or to the pastorship, by no means leads to the con-
clusion that there is any legal right to the chapel, or to
the dwelling-house* The building, in cases like this, is
generally vested in persons other than the pastor. For
the reasons given by my brother Parke^ I think it perfectly
clear that the legal estate in the premises was in the lessor
of the plaintiff.
Bayley, J. — I am entirely of the same opinion. We
do not decide that the defendant may not have a right to
the use of the pulpit, but merely that he has no legal
estate in the buildings. The highest estate at law which
he ever had in them, was an estate at will, and that has
been determined by the demand of possession. If he is
aggrieved by the proceedings of the trustees, he must seek
bis remedy against them in equity.
Rule refused.
CASES IN THE KING S BENCH,
Doe on the demise of Nicholl and others v. M'Kabg.
The minister EjECTMENT, to recover the possession of a cbapcJ
congregation, ^^^ dwelling-house, situate in the county of York. Plea:
who is put in not guilty, and issue thereon. At the trial, before Park.h
possession of a T i ".r • • • rri
chnpeland at the last Yorkshire assizes, the case was this:— The
house"lw tras- ^®^®"^**"t ^^^ ^^^ minister of a dissenting congregation,
tees, in whom and, as such, in possession of the premises sought to be
gaily vested in recovered. They consisted of a meeting-house and dwcl-
trust to permit ling-house adjoining, both which had been conveyed to
the chapel to , ®, ^ . f • •«. ^ , •
be used for the uie lessors of the piamtitr as trustees for the congregation.
purpose of 'The defendant had been elected minister by the memberJ
religious wor- ^ . . i
ship, is mere of the congregation, and had been put in possession of the
to^s^udTtrus- P'®'"'*^* ^y the trustees. The congregation becoming
tees, and his dissatisfied with the defendant, came to a resolution to
termined remove him, and the trustees made a demand of possession,
inttanter by a which not being immediately complied with, they served a
posse&sion, declaration in ejectment. The defendant had an annual
without any g^j ^f ^q/. as minister, but paid no rent. No notice to
previous , "^ ^ » r
notice to quit, quit had been given. It was objected on behalf of the
defendant that he was a tenant of some sort, and entitled
to some notice to quit, and a nonsuit was pressed for on
that ground. The learned judge declined to nonsuit, but
reserved the point, and a verdict was found for the plaintiffi
with liberty for the defendant to move to enter a nonsuit.
JP. Pollock, on a former day, moved accordingly. The
defendant was entitled to some notice, and as no notice at
all was given, but the declaration in ejectment was served
immediately after the demand of possession was made, the
plaintiff ought to have been nonsuited. The defendant
was not, strictly speaking, a tenant at will — he was not like
a servant occupying by permission a part of his master's
house — he had the exclusive occupation of the house — be
occupied the house as part of his reward for doing (be
duties of minister to the chapel. He was, therefore, a
EASTER TERM, XI GEO. IV.
tenant of some sort, and was entitled to some sort of
notice. If he had been paid entirely by a salary, and had
rented the house of the trustees, it is clear that he would
have been a tenant entitled to a regular notice to quit. In
effect he stood in the same situation — the only difference
was, that instead of paying rent in money, he paid rent by
bis services. But, admitting that he was not entitled to a
regular notice to quit, he was surely entitled to some rea-
sonable notice, and was not liable to be turned out of
possession at a moment's warning, and driven with his
family and furniture into the street, upon peril of being
treated as a trespasser. In all cases of a continuing con-
tract, some reasonable notice must be given of putting an
end to it. What is such reasonable notice, it must be for
the Court or the jury to decide; but it seems most unrea-
sonable that the exclusive occupation of a dwelling-house
by a minister,, as a part of the reward for his services,
should be determined without some notice, and here there
was none.
The Court took time to consider of their judgment,
which was now delivered by
Lord Tenterden, C. J. — ^Tliis was an ejectment
brought to recover from the defendant, who was minister
of a dissenting congregation, a chapel and dwelling-house,
which be was put into possession of by the lessors of the
plaintiff, in whom the legal estate was vested, in trust to
permit the chapel to be used for the purpose of public
worship. The defendant was tenant at will to them. It
was contended that a demand of possession was not suffi-
cient to determine the tenancy in this case, but that a rea-
sonable time ought to have been allowed to the defendant
for the purpose of removing his goods. We can find no
authority in the law for such a position. The general rule
is, that where an estate is held at the will of another, It
demand of possession by that other determines the estate.
If we were to hold otherwise in this case, we should be
M<Ka£C.
622 CASES IN THE KING's BEl^CH,
1830. introducing a new rule, not to be found in the books, and
^^^"^^ which might be productive of great inconvenience; because
d, then, in every case of a tenancy at will, a question might
^d^"ih^^ arise, what was a reasonable time to be allowed for the
V, removal of the tenant's goods. If the tenant in this case,
after the determination of his tenancy by the demand of
possession, had entered on the premises for the sole par-
pose of removing his goods, and continued there no longer
than was necessary for that purpose, and without excluding
the landlord, perhaps he might not have been a trespasser;
but, however that may be, we are of opinion, that he being
a tenant at will, his tenancy was determined by a demand
of possession, and consequently, that the lessors of the
plaintifF were entitled to recover.
Rule refused.
Wood and another v. Grimwood.
The 6 Geo, 4, 1 HIS was a question of costs. The cause was first set
applies only to ^^wn for trial at the Essex summer assizes, 1829, when the
cases where a plaintiffs withdrew the record. At the spring assizes,
verdicrisac- * „^ • . #. - , i l
tuallyfoand: 1830, the cause was agam set down for trial, when the
therefore a plaintiffs were nonsuited. On both occasions a special
who has moved jury was moved for and nominated on the part of the de-
tafn^ a^spe- f"^°*l^^^ > ^^^ ^^ ^^^ second occasion the learned judge
cial jary, is certified that the cause was a proper one to be tried by a
under that ' special jury. On taxation, the Master allowed the defend-
section, to the ant the costs of both special juries. On a former day
costs of such *^
jury, where
the plaintiff Follett obtained a rule for the Master to review his tax-
«ither with-
draws the re- ation, and to disallow to the defendant the costs of both
«uii^d; ^al-^**" special juries. As to the first jury, he contended that the
though the record having been withdrawn before they were sworn, and
tified that the ^^^J having been afterwards unnecessarily paid by the
cause was
proper to be tried by a special jury.
But see 3 & 4 Will. 4, c. 42, s. 35.
EASTER TERM, XI GEO. IV.
plaintiffs, the Master was not justified in visiting the de*
feodant with that expense. Secondly, as to both juries^ he
contended that the judge had no power to certify, the
cause never having been tried. By the 24 Geo. % c. 18,
s.l, it was enacted, '* that the party applying for the special
jury shall pay the costs and expenses thereof, unless the
judge before whom the cause is tried shall, immediately
after the trials certify in open court, under his hand, upon
the back of the record, that the same was a cause proper
to be tried by a special jury." Upon that statute it had
been held, first, that it did not extend to a case where the
record was withdrawn; Clemen is v. George (a) ^ and, se-
condly, that it sb far limited the discretionary power of the
judge, that he could not grant a certificate on the day after
the trial ; Waggett v. Shaw (A). As to the nonsuit, in '
Orme v. Crockford{c), where the plaintiff was nonsuited
without any evidence being gone into. Lord Tenterden had
refused to certify, on the ground that the case had not been
gone into. Then the more modern statute of 6 Geo. 4,
c. 50, s. 30, contained a provision precisely similar to that
in 20 Geo. 2, c. 18, s. 1, except that it substituted the word
" verdict*' for the word *' trial,'" which made the present
argument still stronger; for even if it could be said that
there Mas a trial in this case, it could not at all events be
contended that there was a verdict.
623
1830.
Wood
V,
Griuwood,
Brodrick now shewed cause. The cause was, in effect,
tried. The plaintiffs, through their counsel, had stated to
the jury all the facts which they were capable of proving,
and the learned judge, being of opinion that if all the facts
stated were proved upon oath, and were unanswered, the
plaintiffs would not be entitled to a verdict, nonsuited the
plaintiffs, and immediately afterwards certified that the
cause was a proper cause to be tried by a special jury. It
is true that the statute 6 Geo. 4, c. 50, s. 30, does substitute
(a) 11 Moore, 510.
{b) 3 Campb. 316.
(r) 1 Car. & P. 537.
624
1830.
Wood
V.
Or I If WOOD.
CASES IN THE KING S BENCH,
the word verdict for that of trial in the former statute ; but
that is immaterial, for though the term is changed, the
meaning of the proviso and the intention of the legislature
continue manifestly the same*
Follett, contr^, was stopped by the Court.
Lord Tenterden, C.J. — We must construe the term
" verdict/' in the present act of parliament, in its ordinary
sense. Here, there was no verdict, and, consequently, the
learned judge had no power by his certificate to charge the
plaintiffs with the costs of a special jury, which was moved
for by the defendant. The rule, therefore, must b^ made
absolute.
Bayley, J. — I am of the same opinion. The term
*^ verdict" must be construed in its ordinary sense. Here
there was no verdict.
Parke, J. — I am also of the same opinion. We cannot
presume that the legislature have, in the present instance,
used the term verdict without some meaning ; and it seems
to me their meaning must have been, to give the judge a
discretionary power of allowing the costs of a special jury
to the party at whose instance it was obtained, in those
cases only where the jury have been called upon to exercise
their judgment by returning a verdict. They may have
intended otherwise; but we can only collect their intention
from the words they have used, construed in their ordinary
sense. The statute 49 Geo. 3, c. 121, s. 10, has received a
similar construction. That enacts, that in actions by as-
signees of bankrupts^ the commission and proceedings shall
be evidence of the trading, &c., unless notice shall have
been given to dispute ; and that where such notice shall
have been given, the judge may grant a certificate that the
matter disputed was proved, and the assignees shall be en-
titled to the costs occasioned by such notice, and such
KASTER TERM, XI GEO. IV.
costs shall, in case the assignee shall obtain a verdict, be
added to his costs ; and if the defendant shall obtain a ver-
did, shall be set off or deducted from the costs which such
defendant would otherwise be entitled to receive from such
assignee. It was held that assignees were not entitled to
costs upon a judge's certificate, under this section, where
they had been nonsuited; Atkins v. Seward {a).
Wood
V.
Grim WOOD,
Rule absolute (b).
{a) 3 Moore, 60i; I Bro. &
Bing, «75.
(b) Since the decision of this
case it has been enacted, by 3 &
4 Wilt, 4, c. 42, s. 35, that the
provision of the 6 Geo. 4, c. 50,
s. SO, and every thing therein con-
tained, shall apply to cases in which
the plainiilT shall be nonsuited, ns
well ns to cases in which n verdict
shnli pass agtiinst him.
Thomas i\ Williams.
Assumpsit. The second count of the declaration plaintiff's
(upon which the case turned) stated, that before and at *«"«*"^ be^pg
, . , . . 'n arrear for
the time of the maknig of the promises and undertakings half a year's
therein mentioned, one Thomas Thomas was tenant to the j^L.^L*'*
plaintiff of a certain farm with the appurtenances, and was defendant, an
indebted to the plaintiff in the sum of 17/. 10s. for rent in ^.^ in August
respect of such farm; that thereupon, in consideration about to sell
11 . . •«• 1 1 /- ■ /. 1- • • 1 - the effects on
that the plamtiff would forbear from distrainuig the goods the premises,
upon the farm, for the rent so due from Thomas Thomas, "^l^l"^^^^'^^^
the defendant promised the plaintiff to pay to him the rent threatened to
that would be due at the Michaelmas then next following from fjnda^?' ;„ ^
consideration
that plaintiff would not distrain, verbally promised to pay him the rent then due, and
the rent which would become due nt Michaelmas. In an action to recover both
amounts of rent: — Held, that plaintiff could recover neither; for that the promise to
pay the accruing rent was founded on a new consideration, distinct from the demand
which plaintiff had on his tenant, and was therefore void under the fourth section
of the statute of frauds; and that such promise being entire, and void in part, was
void altogether.
VOL. V.
s s
626 CASES IN THE KING's BENCH,
1830. Thomas Thomas to the plaintiff in respect of the fann.
^^T^^^"^ Averment, that the plaintiff did forbear from distraining;
V, that the rent due ai ihj Micliaelmas then next foUcmng
WiLLiAMg, yg^ 33^^^ j^jjj breach for non-payment of that sum. Plea:
non assumpsit, aad issue thereon. At the trial, before
GotJbum, i. at the spring great sessions for Carmarthen,
1899, the case was this: — Thomas Thomas was tenant to
the plaintiff of a farm in the parish of Llangudock, in the
county of Carmarthen, at a yearly rent of 40/., payable
half-yearly, at Lady-day and Michaelmas. The defendant
was an auctioneer, and in August, 1827, was employed to
sell off Thomas Thomases effects upon the farm. The
plaintiff went to the farm on the day of the sale, widi a
bailiff and a notice of distress for 1 7/-, being part of a half*
year's rent due on the Lady-day preceding, the rest having
been paid, and told the defendant that there would be
nearly a year's rent due to him at Michaelmas, and that
unless he, the defendant, promised to pay him the rent
that would then become due, he, the plaintiff, would put
in the distress. The defendant thereupon did verbally
promise that if the plaintiff would not distrain for the rent
then due, he, the defendant, would pay him the rent that
would be due at Michaelmas. The plaintiff did not dis-
train, and the sale proceeded. It was objected on the
part of the defendant, that the promise not being in writing,
the case was within the fourth section of the statute of
frauds, 99 Car. % c. 3, and the defendant was entitled to
a general verdict. The learned judge directed a verdict
to be entered for the plaintiff on the second count for
£2/. lQs.f a sum composed partly of rent due at the Lady*
day preceding the promise, and partly of the rent which
became due at the following Michaelmas, and for the
defendant on the other counts; but gave the defendant's
counsel leave to move to enter a verdict for him on the
second count also, in case the Court should be of opinion
that the promise ought to have been in writing. In Easter
term, 1899,
£AflT£R TERM, XI GEO. IV. 627
John Evam moved accordingly, and obtained a rule to 18SQ.
shew cause why a general verdict should not be entered t^^^^*^
for the defendant ; and at the sittings in banc after Hilary v.
term, 1830, Willums.
RuMseil^ Serjt. and £1* V. Williams, shewed cause. The
cases oi Lexington v. Clarke (a), and Chater v. Beckett (b)^
will be relied upon for the defendant as authorities to shew
that where part of a promise is within the fourth section
of the statute of frauds, and is thereby required to be in
writing, the whole is void if the promise is merely verbal.
Even if those cases can be considered as having esta-
blished that position, it will not apply to the present case,
because no part of the promise upon which the plaintiff
founds his claim is within the fourth section of the statute.
The plaintiff had an unquestionable right to distrain upon,
his tenant for the rent due at Lady*day. That right he
intended and was prepared to exercise, and he forebore to
do so in consideration of the defendant undertaking to pay,
not only the rent then due, but also the rent which would
become due at the following Michaelmas. The defendant,
on his part, gave that undertaking in consideration of the
plaintiff abandoning his right to distrain ; there was, there*
fore, a new consideration moving from the plaintiff to the
defendant, totally distinct from any contract between the.
plaintiff and his tenant. It follows, that the defendant's
undertaking is original and not collateral, and is not.
affected by the statute, which was meant to apply to such
only as are collateral. The case of Williams v. Leper (c),
is in principle this very case. There the defendant had
promued to pay the debt of the tenant, in consideration of
the plaintiff forbearing to distrain, and allowing the de-
fendant to have the goods which were liable to the distress;
and it was held that as there was a new consideration for
the defendant's promise moving to him, the statute did not
(a) 2 Vent. 923. (c) 3 Burr. 1886; 2 Wils. 308.
{b) 7 T. R. 201.
S S2
628
laao.
Thomas
V.
Williams.
CASES IN THE KIKG's BENCH,
apply. The principle there laid down is in conformity
with the decisions and the opinions expressed by the
judges in several other cases; as Read v. Nashua), Cast^
ling V. Aubert(b), Edwards v. Kelly {c), Bampton ▼.
PauUn (d), Houlditch v, Milne (e), and Tamlinson v.
Gill (J*). [Bayley.i. But in this case the promise ex-
tends far beyond that in Williams v. Leper{g), and there
Asion, J. was of opinion that the defendant was not liable
beyond the value of the goods.] That is certainly so; bat
there is no autliority which lays it down that the consider-
ation and the promise must be co-extcnsive, in order to
support the action.
Campbell and John Evans, contr^. In order to render
any promise to pay the debt of another binding under the
fourth section of the statute of frauds, there must be a new
consideration moving to the party making the promise; a
consideration merely moving from the creditor is not suffi-
cient. Nor is the fact of the original debtor continuing
indebted, sufficient; for that is in truth no consideration at
all. Williams v. Leper and all the other cases which
have been cited for the defendant, are perfectly distin*
guishable from the present. In each of those cases the
defendant received from the plaintiff, or was permitted by
him to receive aliunde, certain property on which the
plaintiff had a lien, which the defendant promised to dis-
charge upon having the property delivered to him. This
is the view taken of that case by Le Blanc, 3. in Castling v*
Auberij where he says, '* This is a case where one man
having a fund in his hands, which w'as adequate to tlie dis-
charge of certain incumbrances, another party undertook
that if that fund were delivered up to him, he would take
it with the incumbrances ; this, therefore, has no relstioo
(fl) 1 WiLs. 305.
(6) 2 East, 325.
(c) 6 M. & S. 204.
(d) 4 Bingh. 264.
(e) 3 Esp. 86.
(/) Ambler, 330.
(g) 3 Burr. 1886; 9 Wil5.308.
£A8r£R T£RM^ XI GEO. IV.
to the statute of frauds." Here, the plaiatiiF had no lien
whatever on the property delivered to the defendant, for
the rent which was to become due at a future time. It is
this circumstance which so broadly distinguishes the pre-
sent case from all the authorities cited on the other side.
As to that portion of the rent, therefore, the promise was
within both the letter and the mischief of the statute, and
was unsupported by any consideration : and if the part of
the promise relating to the rent which would become due
at Michaelmas, M'as within the statute and void, the cases
of Lexington v. Clarke {a), and Chalet v. Beckett {b), are
decisive to shew that the plaintiiF cannot separate the two
parts of the contract, and that the whole is void together.
The Court took time to consider of their judgment,
which was now delivered by
Lord Tenterden, C. J. — We are of opinion that this
action is not maintainable. The facts of the case were
shortly these:— One Thomas Thomas was tenant to the
plaintiff of certain premises, and indebted to him in a sum
of about 17/. for rent due at Lady-day. In August the
defendant, who was an auctioneer, was about to sell the
goods of the tenant upon the premises. The plaintiff
went to the premises, and was about to distrain for his
rent. The defendant then promised that if the plaintiff
would not distrain, but would suffer the sale to proceed,
he would pay him the arrears of rent then due, and also
the accruing rent up to Michaelmas then next. The
plaintiff did not distrain, and the sale proceeded. The
defendant's promise was by word only, without any writings
Some money had been paid, but not quite so much as the
amount of the arrears due at Lady-day. At the trial the
plaintiff bad a verdict for the whole difference between the
amount of the money paid, and the amount of the rent up
to Michaelmas, including the arrears of the rent due at
Lady-day. The question was, whether the plaintiff could
629
1830.
Thoicas
v.
\YlLLUMf.
(«) 2 Vent. Ti3.
{h) 7 T. R. 201.
630
1830.
CASES IN THE KING's BENCH,
recover the whole of that sum, or the difference between
the money paid and the arrears due at Lady-day, or whe-
ther the whole contract was void, within the fourth section
of the statute of frauds — and we are of opinion^ that the
whole contract was void. Several cases were quoted at
the bar in support of the plaintiff's claim ; but there is do
case in which the promise to pay has gone beyond the
amount of the right vested in the party to whom the pro-
mise was made, or beyond the assumed value of the fund
out of which the payment was to be made. In Edwarday^
Kelly (n), the landlord to whom the promise was made had
actually distrained the goods of his tenant, and delivered
them to the defendant to be sold in consideration of his
promise to pay the rent due for which the distress had
been made. In Castling v. Aubert {b), the plaintiff gave
up to the defendant policies of insurance, on which the
plaintiff had a lien, to secure himself against bills which he,
on the faith of that lien, bad accepted for the accommoda-
tion of the assured, and the person to whom he delivered
them promised to discharge the bills and give to the plain-
tiff the same indemnity that his lien had afforded him* In
those casetf, the promise was founded on a new consider-
ation distinct from the demand that the plaintiff bad against
the third person, although its performance w^ould have the
effect of discharging that demand, and releasing that
person. In Williams v. Leper ic), there was no actual dis-
tress, but there was a power of immediate distress, and an
intention to enforce it; and we think the judges must be
understood to have considered that power equivalent to an
•actual distress (d). It is not necessary now to decide whe>
(a) 6 M. & S. 204.
lb) 2 East, 325.
(c) 3 Burr. 1886; 2 Wils.308.
(d) It seems clear that three of
the judges did so consider. Lord
Mansfield said, << The landlord
had a legal pledge. He enters to
distrun. He has the pledge in
bis possession. The plaintiff had
a lien upon the gpods. X^per was
a trustee for all die creditors; and
was obliged to pay the landlord,
who bad the prior lieo." WU-
mot, J. said, " The plaintiff b in
possession of the goods; htinog
entered with ioteot to fistiaio
EASTER TERM^ ZI GEO. IV.
ther it was rightly so considered^ because supposing it to
have been rightly so considered^ the decision will not go
beyond the amount of the arrears then due^ and for which
the right of distress might have been immediately exer-
cised (a).
But this reasoning will not apply to the accruing and
future rent. The plaintiff could not have distrained for
. that rent The defendant, by paying all that was due at
Lady-day, might have proceeded to sell the goods. If
that sum were paid or secured, the plaintiff sustained no
loss or detriment by the sale of the goods. So that the
promise to pay the accruing rent exceeded the considera-
tion« and cannot be sustained on the ground on which the
cases referred to are to be sustained, but is nothing more
than a promise to pay money that would become due from
a third person, and is within the words of the statute, and
the mischief intended to be remedied thereby.
The next question then, is, whether the promise, being
void in part, can be held good as to the other part, namely,
the arrears of rent due at Lady-day, in respect of which
it might have been good, if confined to those arrears.
Upon this point the two cases of Lexington v. Clarke (6),
and Chater v. Beckett {c), which were quoted at the bar,
are direct authorities against the plaintiff. In each of
those cases the promise was held, as to a part, to be within
the statute, and as to a part to be not within the statute ;
and the action proceeded upon the part not within the
statute, the other part having been satisfied. But it was
631
1830.
them. I consider this distress as
being actually made. Leper be-
came the bailiff of the landlord;
and when he had told the goods,
the money was the landlord's, in
his own bailiff's hands." And
Yat€9f J. said, ''The defendant
was in possession of the good«»,
and aboat to sell them. The
plaintiff entered witli intent to dis-
train them for 45/. The defend-
ant says, ' let me go on to sell them
and I will pay you the 45/.' He
undertook to pay this, in bU re-
spects, peremptorily and absolute-
ly. This is an original considera-
tion in the defendant." 3 Burr.
1889, 1890.
(a) See Baylei/i J. on this pointy
citing Aston, J., ante, p. 698.
{b) 8 Vent. 223.
(c) 7 T. II. 20J,
632
1830.
Thomas
V.
Williams.
CASES IN THK KING S BENXH,
held that the promises were entire, and that, being in their
commencement void in part> they were void altogether.
For these reasons, and upon these authorities, M'e are of
opinion that the plaintiff in this case can recover nothing.
The rule for entering a general verdict for the defendant
must^ therefore^ be made absolute. ^
Rule absolute.
^ partial
lilure of i
failure ot con<
sideration
cannot be
ll^iven in evi*
dence in an-
swer to an
action by the
drawer, or his
Jejuni represen-
tative, against
the acceptor
of a bill of
exchange.
Obbard and Another, Assignees of Blofield, a Bank-
rupt, V. Betham.
Assumpsit on a bin of exchange, drawn by the bank-
rupt and accepted by the defendant. Plea non assumpsit,
and issue thereon. At the trial before Lord Tenterden, C. J.,
at the adjourned Middlesex sittings after Michaelmas term
1829, the case was this : — In the year \S25 the bankrupt,
a perfumer and cutler in London, furnished to the defendant,
the captain of an East Indiaman, a quantity of perfumery
and cutlery goods to carry out to India, They were de-
livered ready packed, and the defendant had no opportunity
of inspecting them until he arrived at the end of his voyage.
The price charged for the goods was 400/., of which the
defendant paid 250L in cash, and for the remainder the
bankrupt drew upon him the bill in question, which was
dishonoured when due. It appeared by a written contract
entered into by the parties, that the goods were to be
charged at a fair marketable price, and were to be of a
good merchantable quality, and it was proposed to prove in
defence to the action that they were of a very inferior
quality, not merchantable, and that they sold for 150/. less
than the price charged for them by the bankrupt, so that he
had in fact been already fully paid. It was objected for
the plaintiffs, that such evidence could not be received, in-
asmuch as it would constitute no defence, because a partial
failure of consideration was no answer to an action upon a bill
£ ASTER TERM, XI GEO. IV. 633
uf exchange : aud Tye v. GxDynne(a) was cited. The Lord leso.
Chief Juslice, being of opinion that the objection was well ^T^^^^
founded* rejected the evidence, and the plaintiffs had a ver- and another
diet for the full amount of the bill. In Hilary term 1830,
V.
Bbtuam.
Scarlett, A. G. movfd for a new trials upon the ground
that the evidence had been improperly rejected. This being
in effect an action by the drawer of the bill against the
acceptor, and they being the same parties between whom
the original contract was made, any defence which would
have been available in an action founded directly on the
contract, seems equally available in an action on the bill,
which is indirectly founded on the contract. The mere act
of giving a bill of exchange for a part of the price of the
goods, cannot vary the situation of the parties, or affect
their respective rights. It was therefore competent to the
defendant to prove, in answer to this action, that the bank-
rupt bad been fully paid. The decision in Tye v.
Gwyntte must be taken with this qualification, namely,
" unless the failure of consideration arises from fraud in the
first instance/' Fleming v. Simpson (b)\ and it seems not too
much to say that a delivery of goods under this contract,
which realised little more than half the price charged for
them, must have been fraudulent in the first instance. In
that view of the case the evidence was clearly admissible,
Solomon v. Turner (c), where it was held, that though a de-
fendant, who had given his note for the stipulated price of a
picture, could not give in evidence the inadequacy of the
consideration, with a view to diminish the damages, he
might do so for the purpose of shewing fraud, to defeat the
(a) 2 Campb. 346, where ic was
held, b^ Lord EUenhoroughy that
" it is no defence to an action by
the drawer and payee of a bill of
exchange against the acceptor, that
the consideration has partially
failed on account of the badness
of the quality, and improper pack*
age, of the goods delivered.^ And
see, S. P., Morgan v. Rkkardtonf
1 Campb. 40, n. ; 7 East, 48S ; 8
Smith, 487.
(6) 1 Campb. 40, n.
(c) 1 Starkie, 51.
634 CASES IN THE KINO*8 BENCH,
1830. contract altogether. In Lewis v. Cosgrave (a), in an actioo
^T^'^^'^ on a bill given for the price of goods sold under a warranty,
and another it was held, that proof of a breach of the warranty was an
Beth AM ^^^^^ ^ ^^^ plaintiff's demand, the defendant having ten-
dered back the goods, though the plaintiff refused to rec^ve
them. Here the goods were sold under a warranty, and a
breach of that warranty could have been proved ; and the
fact of the goods not having been tendered back is not ma-
terial, because the situation of the defendant rendered Im
doing so impossible, he having had no opportunity to in-
spect the goods until he arrived in India, and beii^ there
obliged to sell them for the best price he could obtab.
Cur. adv. tuli.
Judgment was now delivered by
Lord Tentbrden, C. J. — We have considered this
case, and are of opinion that we ought not to grant a rule
for a new trial. The case of Tye v. Gwyntie (6), which
was cited at the trial, and other cases, which are all col-
lected in my brother Bayley's work upon Bills, the fourth
edition, pages 395 and 396, are authorities to shew, that
though a total want of consideration may be given in evi-
dence in answer to an action upon a bill of exchange, a
partial failure of consideration only cannot. The deciiioB
at nisi prius, therefore, was right.
Rule refused (c).
(a) 2 Taunt. 2. Moore, 159; Archer r. Bamfrrd,
(b) 2 Campb. 346. 3 Stark. 175; 1 Car. &P. 64.
(c) And see Ihnf v. Nix, 9
£AaT£R tKKU, XI GEO. IV. 635
1890.
The King v. The InbabitanU of Cheiv Magna.
JBY an order of two justices, James Nai$h and Joanna his A f^h of land
wife were removed from the parish of Ubley to the parish f^^^- ^
of Chew Magna, both in the county of Somerset. Oli estate at will;
appeal, the sessions confirmed the order, subject to the turbed posses-
opinion of this Court upon the following case :— "«>° ^^^ ^^^^
William Bath, about 179^, being seised in fee of a close no setUemeat
of land in the parish of Ubley, gave a small piece thereof ^ ^^'f Jj^
by parol to his nephew James Naisht the pauper, whereon will, upon an
to build a cottage. NaisA, who had no settlement in ^^^an^
Ubley, took possession of the spot, and built his cottage, lo/. a year,
and inhabited it with his family* In Octoberi 1800^ while ^^ent.
he so resided in Ubley, his wife and children became ill,
and he applied to the overseers of that parish for relief, and
obtained the same; and on their complaint, an order for
the removal of Uaish, his wife, and their children, to the
parish of Chew Magna, was made by two justices, and
NatiA was, under that order, removed and delivered to the
overseers of Chew Magna, who relieved 'NatsA from time
to time, tiaish slept in that parish one night only, and the
next day returned to the cottage in Ubley, from whence
neither his wife nor children, on account of their illness, had
been removed. Haisk continued to reside there till about
1810, when Bath told him that he had sold the ground to
one Carpenter f and asked NatsA to give him free possession,
and to sell him his right. Naish was unwilling to do no^
but before he said any thing, Bath proposed that NatsA
should receive d/« for giving such possession, and should
also take away the materials of the cottage. JVotiA never
paid Bath any acknowledgment. Bath paid the SL to
Naish: and Naish pulled down the cottage, carried away
the materials, and delivered possession to Carpenter. No
writing passed on the occasion* The question for the
opinion of the Court was, whether the pauper, James
Naish, had gained a settlement in the parish of Ubley.
636 CASES IN TU£ KING's BENCH,
1830. Jeremy f in support of the order of sessioas^ was stopped
^l^^ by the Court.
The Kino "^
V.
a rightful possession, though not, in the first instance, a
legal title to the land ; and long possession under such a
gift confers a legal title from the beginning: Rex v.
Cah}w{a). That was a very similar case to the present;
and Bay ley, J., there observed, ** It cannot be said that the
father was in without any pretence or title, for the case
states that he had b gift of the land ;" and Dampier, J.,
added, *' The subsequent possession legalises the fonner
possession* and shews that it was of right." The mle of
presumption is, *^ ut res riti acta est;*' Keene v. Deardon{by,
and that rule is always applied where the possession is
rightful to give that possession a legal title ; and is always
construed liberally where the object is to support aright:
Eldridge v. Knott (c). In this case the pauper was in pos-
session for fifteen years under the gift, which was as long as
the period of possession in Rex v. Calow {d). But besides,
in tliis case, at the end of fifteen years' possession by the
donee, there is an express recognition of his title by the
donor, the only person competent to question it; for at that
time Bath tells the pauper he has sold the land to Carpeif
ter, and asks him to give him free possession and to sell
him his right. This was in 1810; and as the owner then
admitted that the person in possession had a beneficial and
saleable interest in the land, (the quantum of interest being
(a) 3 M. & S. 22. son ceased to be a part of his fa-
(6) 8 East, 863, per Ix>rd £/• mily, had been io possession of
lenborougky C. J. the estate for fifteen years (cndIjf);
(c) Cowper, 214, per AttaiifJ. bat he was in under some citJe or
(iQ 3 M* & S. 22. The period other, under which he has conti-
of possession in that case was nued the possession for fifteen
thirty ^rears and more, but the years more, and up to the piesetit
Court presumed a title at the end time; therefore, looking at the
or fifteen ^ears, Lord Ellenborough^ whoky we must infer a title in him
C. J., observing, " It is true that at the former period.*
the father, at the time when the
EASTER TERM, XI OEO. IV. 637
for this purpose immaterial^) which interest it appears had jsso.
been acquired fifteeu years before, — there is an unbroken
possession for thirty-five years — fifteen years by the pauper,
the vendor, and twenty years since by the vendee ; for the Jjihnbuants of
, . ChewMaoka.
possession of the vendee is the possession of the vendor :
fiftr v. Baton {a).
But, secondly, the pauper was the donee of an estate at
will, and gained a settlement by residing on his own estate.
There are only two exceptions to the established rule of the
common law, that a man is irremovable from his own
estate, and gains a settlement by forty days' residence upon
it; and the pauper is not within either of them. The first,
introduced by the statute 13 & 14 Car. 2, c. IS, of persons
coming to settle upon tenements under the yearly value of
10/., has been held to apply only to persons taking tene-
ments by contract of renting ; 'SUx v. Bowness (A), Hex v.
St, JohiCsj Glastonbury {c); and not to persons taking
tenements by any other title, as executors. Rex v. Stone (d);
or by marriage, Hex v. Yvyacynhaiarn (e) ; or by purchase,
9 Geo. 1, c. 7, s.o. Rex v. Hartley (/)• The pauper here
did not come in by contract of renting. The second excep*
tion, introduced by the statute 9 Geo. 1^ c. 7» of persons
purchasing estates for a less sum than 30/,, has been held
not to apply to gifts of estates from natural love and affec-
tion ; Rex V. Marwood (g). Rex v. Ingleton (A), Rex v.
Vpton{i). Here, the estate was given from that considera*
tion. The gift by parol, therefore, passed an estate which,
though reduced by the statute of frauds to an estate at will,
is, nevertheless, sufficient to confer a settlement ; Cranky v.
St. Mary, Guildford {k).
{a) Burr. S. C. 631; 2 Bott, (g) Burr. S. C. 386; 2 Bott,
624. 615.
(6) 4 M. & S. 210. (A) Burr. S. C. 560; S Bott,
(c) 1 Bam. & Aid. 481. 621.
(d) 6 T. R. 295. (•) 3 T. R. 251.
(0 1 M. & R. 16; 7 B. & C. (k) 1 Str. 502. And see Rex
233. V. Duns Tew, Burr. S. C. 398;
(/) 5 East, 40. Rex v. Fillongly, 1 T. R. 458;
638 CABES IK THE KING's BBH CH,
1880. Lord TenteedbMi C. J.— As to the first pobt»— there
jT^^ w n<> giound for contending that Carpenier*s possession is
V. to be considered a continuance of the pauper's, becaase
CwewMaov (^^*T^^^^ purchased^ not of the pauper, but of the pauperis
uncle. That being the case, the utmost period of posses-
sion has been fifteen years. In the cases cited, the advene
possession contbued for a period of more than twenty yean.
As to the second point, — there is no authority to shew that
a residence upon an estate at will, of a less value than 10/.
a year, can confer a settlement.
Bat LEY, J. — Undisturbed possession for twenty yean
is held to confer an estate, because it is evidence from
which a court or jury may presume a grant. Here, there
was only possession for fifteen years. It is said that Car-
perUer^s possession was the possession of Naith ; but that
is not so, because Carpenter came into possession, iM>t
under NuiiA, but under his uncle, Bath.
LiTTLEDALE, J.-^NassA was no more than tenant at will
to his uncle; and there is no authority to shew that a mere
tenant at will can gain a settlement by residing upon an
estate of a less value than 10/. a year.
Order of Sessions confinned.
Rex V. Lakenheath, 2 D. fr R. 81 6, those were all cases of oocupedoii
1 B.&C. 51; Resv.Chedision,^ o£ k teaemtal ^ the MmuJ vahe
D. & R. S69, 4 B. & C. S84. It of 10/. ; and therefore do not seem
IS, however, to be observed, that applicable to the priodpal case.
EASTER TERM, XI GEO. IV. 639
1830.
The King v. The Inhabitants of St. Andrew the Less,
Cambbidge.
Two justices, by their order, removed Henry Unwin, his A person rent-
wife, and three children, firom the parish of St. Andrew the ^^^^ re^sidin^i;
Less. Cambridge, to the parish of Fen Ditton, both in the j" ^^^ ^^^j^-
county of Cambridge; and the sessions, on appeal, quashed vigation, is
that order, subject to the opinion of this Court upon the foU ^^^l^^^lnP*^®'
lowbg case : — 54 G. s, c.
The conservators of the River Cam, acting under the au- ^^ot thereby
tbonty of an act of parliament passed in the first year of the gain a settle-
reign of Queen Anne, intituled, '' An Act for making the thoagh he
River Cam, alias Grant, in the County of Cambridge, more "»®« the house
. , . as a pubhc-
navigable from Clay Hithe Ferry to the Queen's Mill, in the house, and it
University and Town of Cambridge," and of another act of j^o^'r^'Jall'iot
the fifty-third of George the Third, intituled, " An Act for a year to be
amending and extending an Act of Queen Anne, for making panx[se.
the River Cam more navigable from Clay Hithe Ferry, to
the Queen's' Mill, in the County of Cambridge,** are em-
powered, by the latter of the said acts, to let to farm the
tolls, duties, and rates by the said act made payable, or any
part or parts thereof, and also the messuages, buildings,
yards, gardens and premises belonging, or which shall
belong to the said conservators. In pursuance of this power
die said conservators, on the 14th of July 1825, duly de-
mised and by lease to farm let unto one Thomm Nutter,
common brewer, for the term of three years, all those the
tolls, duties, and rates which, by virtue of the said acts, or
one of them, and the orders of the conservators of the said
river, were then payable at Baitsbite Sluice on the same
river, and which tolls, duties, and rates were specified in the
schedule first thereunder written, and all and singular the
powers and authorities by the said acts, and each of them,
created and given for collecting and recovering the same ;
and also the messuage, sluice-house or tenement, out-
buildings, yards and gardens belonging to the said sluice-
640 CASES IN THE KlNo's BENCH,
1850. house, together with the use of the several filatures and
^HT^'C^^^ effects then remaining and being in, upon, or about ihe
V, said messuage, sluice-house or tenement, out-buildings,
Inhabiuiiits of y^^ds and gardens^ and which were specified in the schedule
oTa Andrew
THE Less, secondly thereunder written, at the annual rent of 56/. Us.
Cambuidoe. ^^j j, Nutter did thereby covenant, at his own cost, to
pay and bear all taxes, rates, assessments, charges, and im-
positions whatsoever that should or might be charged upon
the said thereby demised premises, or on the occupier or
occupiers, owner or owners thereof, in respect of the same,
by authority of parliament, or otherwise howsoever, for or
by reason or in consequence of the said sluice-house being
used or kept open as a public-house. And the conservators
did covenant, at their own cost, to pay and bear all taxes,
rates, assessments, and impositions whatsoever upon the
thereby demised premises, by authority of parliament, or
otherwise howsoever, save and except those taxes, rates, as
iessments, charges, and impositions which should or might
be charged on the thereby demised premises, or on the oc-
cupier or occupiers, owner or owners of the same, in respect
thereof, by reason or in consequence of the said sluice-
house being used or kept open as a public-house. Nutter
afterwards entered into a written agreement with Vntrin,
dated the 6th of February 1826, whereby it was agreed
between them as follows : — *' T. Nutter having hired Baits-
bite Sluice, and the tolls thereof, of the conservators of the
River Cam for three years from Midsummer last, hereby
agrees to let the same to H. Uuwin ; and //. Unwin hereby
agrees to hire the same of 71 Nutter from this day for and
during the remainder of the three years, at the annual rent
of 42/., payable half-yearly (but the said /f. Unwin to be
allowed to receive from the conservators the annual salary
of 10/. for looking after the sluice and water), the rates and
taxes to be paid by H. Unwin.** The agreement also sti-
pulated that Unwin should purchase all the beer and liquors
which he might use or sell at the said sluice-house of
"Nutterj under a penalty. Baitsbite Sluice is part of the
EASTER TERM, XT GEO. IV. 641
lioe of navigation under the control of the aforesaid conser- 1830.
vatorsy and is situate between Clay Hithe Ferry and the ^^^^^^
Queen's Mill. Unrein, under this agreement, entered upon y,
all the premises so demised by the said conservators to Inlja^»tant» of
, .St. Andrew
Nutter. He occupied them upwards of a year, and paid a the Less,
year's rent for them. It was proved that the messuage and Caiibridoi:.
premises had always been used as a public-house, as well
88 for the collection of the tolls belonging to the conserva-
tors, and that they consisted of a dwelling-house, garden,
paddock, and stable, and were worth 251, a year if let as a
public-house^ without the tolls, but only 4/. a year if not let
as a public-bouse. It was also proved that Vnwin was rated
to the parish of Fen Ditton for the same as for a public-
house and garden, at a rental of 4/. 105. a year, and no
more, but was not rated for the tolls; but that it was
usual in Fen Ditton to rate property much below the rack .
rent It was also proved that the house in question had no
name except the Baitsbite Sluice House, and had no sign ;
that there was no high road connecting it with the village of
Fen Ditton ; and that the towing path was the only road
passing by it.
Gunning, in support of the order of sessions. The
Court of Quarter Sessions have come to the right conclu-
sion, for the pauper acquired no settlement by this occupation
in the parish of Fen Ditton. The statute 54 G. 3, c. 179,
8. 5, enacts, "That no gate-keeper, or toll-keeper, of any
turnpike-road or navigation, or person renting the tolls and
residing in any toll-house of any turnpike-road or navigation,
shall thereby gain any settlement in any district, parish,
township, or hamlet." There was a similar provision in
the statute 13 G. 3, c. 84, s. 56, which was considered in
the case of Rex v. Denbigh {a). The pauper in that case
resided in the toll-house, but acquired a settlement by rent-
ing a tenement distinct from the toll-house ; it was argued
(ii) 5 East, 333.
VOL. V. T T
Cambridge.
642 CASES IN THE KIN6*S BEKCH,
1830. upon the statute, that the word thereby bcluded the rtd-
J^XT^ dence in the tollhouse, and that such residence shoaM not
The KiKG , . . , , . n» « I
V, be contributable to the seulement : but Lord EUtHwmmgk
^si'^A^D^w^ said, the oieaDing of the statute was, that a setdement
^TUB Lbss, should not be gained by keeping the gate, or renivig the
tolls, and residing in the toll-house, but not that a settle-
ment should not be gained aliunde in the same parish where
the toll-house is situate. In Hex v. Ngrth Dyffield(a), tbe
principal question in discussion was, whether the tolls bad
passed, there being no deed ; and there is a dictum of Lord
Ellenborough that " the residence in the toll-houae, if it had
been of sufficient value, might have answered the purpose
of a settlement :" but the statute of 13 G. 3, was not there
adverted to. Here the words and the object of the statute
are clear, to prevent any person from throwing a burthen
upon the parish, by renting the tolls and residing in the toll-
bouse. Here the pauper did rent the tolls, and did reside
in the toll-house, of a navigation. He is, therefore, within
the very words as well as within the object of the act of
parliament. \Bayley, J. Independently of the question
upon the 54 G. 3, 1 doubt whether this occupation wouM
confer a settlement under 6 G, 4, c. 57. Here the subject
of the renting is the house, the land, and the tolls; and for
these one entire rent is to be paid.] Probably that objection
might be raised successfully, but the objection upon the
statute being deemed conclusive, is now alone relied on.
Alderson, contrd. The tolls were not the subject of de-
mise from Nutter to the pauper, though they were from the
conservators to Nutter: they should not, therefore, be in-
cluded in the consideration of this case. The true meaning
of the fifth section of the 54 G. 3, is to be found in tbe
word thereby. By the construction contended for on the
other side, that word must be rejected. The case finds
that the messuage and premises had always been used as a
(fl) 3 M. & S. 247.
The King
EASTER TERM, XI GEO. IV. 643
public-house^ and that they were worth 251. a year if let as 1630.
a public-house^ but only 4/. a year if not so let. The pau-
per may be considered as having taken the house as a ' \.
pablic-bouse, and he would gain a settlement by renting it Inhabitants of
when applied to that purpose, whether it was used as a the Less,
toll-house or not. The observation of Lord Ellenhorough C^*'*^'^°^-
in the case of Rex v. North Di{ffield{a), which has been
alluded to, seems favourable to this view of the present
case.
Lord Tenterden, C. J. — I am of opinion that the
pauper acquired no settlement in the parish of Fen Ditton.
He seems to me to be a person coming strictly within both
patts of the description in the prohibitory clause of the
statate, for he rented the tolls, and resided in the toll-bouse
of a navigation. I think we ought not to inquire into the
value of the toll-house to be let as a public-house, that
being, in my judgment, immaterial, considering the express
words of the statute. We should defeat the object of the
legislature, if we were to decide that the pauper gained a
settlement by residing in the toll-house. By deciding other-
wise, we abide by the words of an act of parliament, taken
10 their ordinary and popular sense, which is a safe rule of
construction.
Tile other judges concurred.
Order of Sessions confirmed.
(a) 3 M. & S. 247.
TT 2
644 CASES IN THE KING's BENCH,
1830.
The King v. Ivie M'Knight.
Where a per- -^ KNIG HT was convicted by two justices of the petce
da" w"en" the *^' *^* county of Worcester, under the Hawkers and Ped-
roandofa lars act, 50 Geo. 3, c. 41, of hawking without a licence,
horn] solicit- ^° appeal, the sessions quashed the conviction, subject to
inp and ob- the opinion of this Court upon the following case:—
for tea, but '^^ appellant was a servant of Ifilliam Gray^ a licensed
having no tea tea-dealer, residing at Dudley, about four miles distant
with him; and -^ „ T • .
on a sabse- from Cradley, both m the coimty of Worcester, and was
quent day ^^^^ ^y j^j^ m^gter from time to time (once a for^iffhl)
went the tame •' ^ "^^ '
round, deli- round the neighbourhood to ask for orders for tea, and be
cels'ofteapre^ was subsequently sent by his master to deliver tea in pur*
viouily or^ suance of the orders which he received when he so went
dered: — Held, • , • , • , ,. i
that he was round; but it was not his practice to deliver any tea at the
not a person time he 80 received the orders for it. On the 8th of April,
■* carrj^mg to
tell," or *< ex- 1829, he was sent round by his master with forty-four small
Mle "^tM parcels of tea, containing each a quarter of a pound, for
within the which he had previously received orders in one of his
oTdO^G. 3 former rounds. He was sent to deliver them to the persons
c. 41, so as to who had given those orders, and when taken into custody
penalty for ^^ Cradley, at three o'clock in the afternoon of that day, he
trading as a iiad only seventeen of the parcels in his possession. Kei-
out a licence, ther he nor his master had any hawker's licence at any of
the times of his so going round, either for orders or to
deliver tea. The question for the opinion of the Court is,
whether, upon these facts, the appellant was properly con-
victed of having, as a hawker and trading person goin;
from town to town, and to other men*s houses, carried to sell
and exposed to sale packages of tea on the said Sth of
April, 1829, and of being found trading as aforesaid, with-
out a licence, within the meaning of the statute 50 Geo, ^f
c. 41, he not having otherwise carried to sell, or exposed to
sale, than as aforesaid.
Godson, in support of the order of sessions. Tlie con-
EASTER TERM, XI GEO. IV. 646
viction was clearly wrong, and the sessions were right in 1830.
ordering it to be quashed. The charge against the appel-
lant is, that he carried out tea to sell; and exposed it to
sale. Upon the evidence, as stated in the case, it is clear
that he did neither the one nor the other. [Bayleify 3. At
any rate he did not carry out to sell — ^he carried the tea out
to deliver — it had been sold before.] Exactly so : and for
the same reason, namely, that the tea had been sold before,
be did not expose it to sale. All he did was to carry out
packages of tea, which he delivered in pursuance of orders
previously received. He carried, therefore, to deliver, not
to sell, much less to expose to sale. In Rex v. APGill{a)f
the case stated that the defendant, on a certain day, '* car-
ried to sell several packages of tea ; and then, at the house
of one H. G., sold one of the said packages;*' so that there
the ofFence was complete; for the defendant carried out
the tea to sell, and actually sold and delivered it, all at the
same time. (He was here stopped by the Court, who
called upon)
Shuti and M'Mahon contrfl. The course pursued by
the appellant is an ingenious attempt to evade thie provi*
sions of an act of parliament, which he has, nevertheless,
violated, both in the letter and in the spirit of it. First, he
is within the letter of the act, for when he carries the
article in pursuance of the previous order, he literally
" carries to sell,*' and '* exposes to sale." The mere soli-
citing and receiving an order for goods, does not constitute
a sale of the goods, for *' sale is a transmutation of pro-
perty from one man to another, in consideration of some
price or recompence in value." (6) A sale passes the pro-
perty; but here no property passed, and consequently no
sale took place, until the tea was actually delivered ; all that
occurred before was an offer to sell, on the one hand, and a
promise to buy, on the other ; and they were both condi-
(u) 3 D. & R; 877; 2 B. & C. 142. (6) 3 Bl. Com. 4i6i
M^Kkight.
646 CASES IN TH£ KING's BENCH,
18S0. tional — the one on the price beiDg (Mid — the other or the
The Ki ^^i<^lc being brought and approved of« [JSoy&ry, J. Whca
9. that promise was once given could it be revoked? Can a
man who has given an order for goods refuse to take them
when they are brought?] He may refuse to take, aa ^
other may omit to bring, without subjectiug himself to la
action. All that passes in the first instance is mere nattef
of treaty; wben, in pursuance of that treaty, the article ii
brought and delivered, then, and not till then, is the sale
complete; and then the bringing is a *' carrying to sell,"
and the delivery is an '* exposing to sale," within the
very words of the act [Baylt^, J. If going round the
country to collect orders is a case within the act, eveiy
traveller for a London house must have a hawkers' sad
pedlars' licence.] Secondly, this case is within the spirit
and mischief of the statute, which, like all statutes of a
similar nature, must be so construed as to advance tbe
remedy and prevent the mischief, Heydon*s case (a). The
mischief was, that hawkers and pedlars were enabled to
carry on profitable trades in the country, without cootri-
buting to any of its burthens, and to the great prejudice of
the resident trader, upon whom these burthens attached (6>
The act of carrying to sell after orders receivedj difievs from
that of carrying to sell without orders received ooly in this;
that in the one case the hawker has rather a more certain
expectation of selling than in the other. But the mischief
is precisely the same in both cases, for he carries on a pro-
fitable trade in the towns through which he passes, without
contributing to tbe burthens of those towns, and to tbe great
prejudice of the resident trader.
Lord Tentebden, C. J. — The sale and the deliveiy of
goods are two distinct acts. The charge agaiBSt this
defendant was, that he carried to sell, and exposed to sale,
(a) 3 Co. Rep. 7 b. Tongue^ 12 Price, 60; sod of Bsy-
(6) See tbe observations of Gra- ley^ J. in Ker v. M^GiU^ 3 D. & A>
htmy B. in Attom^General v. 381; 2B.&C. U7.
The Kino
V.
£AST£R TERM, XI GEO. IV. 647
certain packages of tea. Tbe proof was, that on one occa- 1830.
sioo iie received orders from several customers^ and on a
stthseqnent occasion carried the packages for tbe purpose
of delivering them to tbe customers who had given those mTuiioht.
orders. I am of opinion that was not either a carrying to
mU, or an exposing to sale^ within either the words or the
spirit of this act of parliament.
Bayley, J. — I am of the same opinion. The case is
clearly not within the words of the act of parliament, and I
can only collect the spirit from the words. The legislature
nuiy have intended to make a distinction between a person
canying goods with him for the purpose of selling them#
and one who delivers goods in pursuance of a previous
order. If the defendant had taken the tea with him in the
first instance, so as to enable his customers, by an inspection
of it, to judge whether they would buy or not, that would
have been both a carrying to sell and an exposing to sale;
hoi going a round to apply for orders, without having the
goods with him, he is in a very different situation. There
is a difference between a bargain for and a delivery of
goods. A man who carries goods for the purpose of deli-
vering them in pursuance of an order previously given, has
a vigbl to have the price paid if the goods correspond with
the order^ and may enforce that right in an action for goods
bargained and sold. Here, the defendant did not carry to
sdl, but to deliver goods previously bargained for.
LiTTLED ALB, J. — The charge against the defendant is,
that he carried to sell, and exposed to sale, certain parcels
of lea. There is no pretence for saying that there was any
exposing to sale, nor do I think that there was any carrying
to sell^ Those words import a future contract, but here
the bargain to sell had been made before the goods were
cafriedk The defendant had contracted to sell and deliver
the goods, and he was carrying them to the persons who
had contracted to buy and pay for them. The question is^
648
CAS£S IN THE KINGS BENCH,
1830. not whether the property had passed, but whether the
The Kijso ^®''^°^***^ <^>" be said to have carried to sell withb the
V. meaning of this act of parliament, and I am of opinioo that
M*«icBT. te cannot.
Order of Sessions, quashing the convictioni conBrmedi
The King v. The Inhabitants of Edingale.
A master By an order of two justices, Henru Brown, his wife aud
having said to , . , ., , , ^ , • . i. t» i-
a pauper, he ^heir children, were removed from the township of £>diii-
thought he gaje to t|,g township of Clifton and Haunton, both in the
would suit ® .
hiiDy the pau- county of Stafford ; and the sessions, on appeal, quashed
Mother would *** order, subject to the opinion of this Court upon the
like to make following case : —
prentice, x'he ^^^ pauper, Henry Brown^ before the death of his
master said, father, which took place about thirty years ago, when the
he would not ' ^ - / s »
take him ap- pauper was ten or eleven years of age, had used to work
SITuw'if'h'e' Witt his father at his trade of a tailor. After the deadi of
did he should his father, he was put by his mother from time to time to
farniers;\e ^^^^ ^^^^ ^^^^^ tailors, who paid him for the work he did.
would take At the age of fourteen he went to live with John Tridde-
him 00 an . , ., • ,. . , . • ^ -^..^ j
agreement for oank, a tailor residing in the township of Clifton and
w "V^ft" ^ Haunton, under an agreement, the circumstances of which
wards it was were as follow : — ^The pauper first saw Trickkbank when
twcen the pau- ^^ ^^"^ ^^^^ ^^ '^^ ®'^^P ®" *"* errand for a suit of black,
per's feiher- Trickkbank said the pauper was just such a one as he
roaster, that wanted ; he thought he would suit him. The pauper said
the pauper his mother would like to make him an apprentice. IWdWe*
should serve . , . , . .
him four years, bank said he would not take him apprentice, because, if be
Irade,To have ^*^' ^^ ""^^"'^ ^"^^"^ ^^^ farmers; he would take him od
meat, drink,
washing and lodging the whole time, and 2«. arf. a week for the last two yean:— Held,
that the pnucipal object of the parties being that the pauper should learn the trade of
the master, this was a defective contract of apprenticeship, and not a contnct of
hiring and service.
£AST£R TEEM, XI GEO. IV. 649
agreement for four yeiirs. A week after this, ThorntOM, the 1830.
pauper*8 father-in-law, and the pauper^ went over again to
Tricklebaiik, and Thornton agreed with him that the pauper
should serve him four years. He was to go to him to ^"2"^^^"^^°^
learo his trade ; to have meat, drink, washing and lodging,
ihe whole time; to receive no money for the first two
years, but Qs. 6d. a week for the last two years. It was
said, at the time when the agreement was made, that the
pauper was to go to hini to learn his trade. When the
pauper had lived with Tricklebank under this agreement
about a year and eight weeks, his father-in-law having
neglected to supply him with clothes, Tricklebank agreed
with the pauper to give him Is. 6d. a week from that time
for the remainder of the term, instead of £s. 6d. a week for
the last two years. In the third year the pauper, having
quarrelled with his master, ran away, and went to his mo-
ther at Tamworth ; upon which he was taken by Trickle*
bank before a magistrate, who made him return to his
master, with whom he continued to live until the expiration
of the four years, and remained four days over to make up
the lost time. During the whole time that he thus lived
with Tricklebank he worked at his trade of a tailor, and
did nothing else. He slept in the township of Clifton and
Haunton all the time.
Whateley, in support of the order of sessions. The
Court of Quarter Sessions were of opinion that the facts
appearing upon the face of the agreement in this case, con-
stituted an imperfect contract of apprenticeship, and not a
contract of hiring and service : and they were right. The
reported cases upon this subject are very numerous, and it
is perhaps impossible to reconcile them all (a); but the
(tf) See jRdr v. Tipton^ 9 B. & per, an adolt, contracted to serve *
C. 888, 4 M. & R. 703, where a plumber as an articled servant
^5^» J«, said, '< We despair of for four years, to learn his trade,
reconciling all the cases upon this at weekly wages; to bd considered
inbjecL*' In that case the pau- as an out-door apprentice ; to do
6fi0 CASES IH THE KIKO^ft BENCH,
^J^^ rule recently laid down in Rex v. Si. Mitrgartfi, Km^9
The King I^f'^i^)* ^^^ subacquently acted upon in Rear v. Comic (i),
^ , , .V* ^ must now be taken at tbe sovernine rule upon all qucatioas
Inhabitants of . , . , . , , . . . . ^ . » •
Edinqale. of tbifl kind, and i6 dectflive o( tbe present case, it »
this :— '' Where it appears, from all tbe circumalaneei, that
tbe parties, at tbe time of making tbe contract^ intendtd to
create the relation of master and apprentice^ the contract
must be construed as one of apprenticeabip; and thea, if it
is a defective apprenticeship, no settlement can be gained
by service under it. Where, on the other band» it appears
that tbe parties intended to create tbe relation of mister
and servant, tbe contract must be coAstmed as one of hiriag
and service, and a settlement will be gained by service
under it"(c). Here, the object of the parties was, that the
pauper should learn tbe business of a tailor; therefore their
intention was to create the relation of master and apprca-
tice; and the contract must be construed as an imperfect
contract of apprenticeship.
gardening or any other work bis
master set him about ; and, when
iU, not to receive wages; the mas-
ter agreeing to teach bim his
trade: and that was held to be
not a contract of hiring and ser-
vice, but an imperfect contract of
apprenticeship.
(a) 9D.&R. 160; 6 B. & C.
97. There a shoemaker proposed
to the mother of a boy to take
bim to learn his basiaess. The
bo> was to serve four yeais, was
to board and lodge witli bis mas-
ter, and was to have half of what
he earned. The mother conseated,
and the boy served fonr years
upon those terms. No indentures
were executed, on accoaot of the
poverty of the mother; and no
premium was paid.. It was held,
that thi9 was not a contract of
hiring and service, but a defective
contract of apprentioesfaip.
(») S M. & R. aO; 8 & ft C.
88. There tha paaper was biied
by his uncle, a carpenter, to leva
his trade, and was to do aojr other
work as well as that of a carpea*
ter. His uncle was to Bnd him
part of his food and ckthtag, hot
he was to lodge with his father.
The pauper served his ancle oo
these teiflM five yaaas. Atlbaead
of two years it was piopoied is
draw up indentoree, to exempt the
pauper from tbe militia; bat i
ever were drawa ap. It wi
that this was not a caalwrt ef
hiring and service, bat an impei^
feet CQDtract of appreatice9hip»
(c) Per Ba^eji^J.! 9 D.kB.
EASTER TERM^ TiJ GEO. IV. 651
CampbeUt Shutt and M'M^hon, cootri. It is cletr from t83o.
the facts stated in the case« that the intention of both par- ^"^v^^
tiea to this contract was« that it should be one of hiring and ,;.
semce, and not one of apprenticeship. The pauper* in- Injj*h»«»nto of
deed, proposed in the first instance to serve as an appreiH
tice, but the master refused to take him as an apprentice,
aatigning a reason for his refusal ; the pauper acquiesced,
sad no more was said upon the subject. That sufficiently
distinguishes this case from those of Rex ?• Sl Margaret't,
King*$ Ljfnn (a)» and Hex v. Combe (6) ; and then Rex v.
Burbach{c) is an authority for holding that the contract
here was one of hiring and service. There the father of
the pauper contracted with J. S. that bis son should bo
with him, and should work with him for two years, and
have what he got, and should allow 2s« a week out of his
gains to J. &'., viz. Is. for teaching him the business of a
frame-knitter, £kl. for the rent of a frame, and 3d*, for the
standing: and it was held that this was a contract of hiring
and service, and not of apprenticeship.
Lord Tenterden, C. J. — The question is, whether
the contract between the master and the pauper is to be
conBidered a contract of apprenticeship or of hiring and
service. If that was a question of fact, as it may be, the
sessions have decided it; and we cannot disturb their deci-
sion. If it is a question of law for our decision, I am ol
opinion that the contract was one of apprenticeship, and
not of hiring and service. We must form our judgment of
the nature of the contract from the substance of the bargain
between the parties. It appears that when the pauper
first saw the master, the latter said he would not take him
as an apprentice, because if he did he should offend the
fanners ; but at the time when the agreement was finally
made between the master and the pauper's father-in-law, it
(a)9D. &R.160; 6 B. & C. (6)2M.&R.30; 8B.&C.8S.
97. (c) 1 M. & S. 370.
652 CASES IN THfe KING*S BEKCH,
1830. was stated that the pauper was to go to him to learn his
Jl^" trade. That being the object of the parties, expressed it
V. the time of making the agreement, I cannot distinguish this
^ EMiforw.*'^ from the case of Rex v. Combe (a), which followed shortly
after that of Rex v. St. Margaret's, Kwg*s Lynn{b), in
which the master offered to take the pauper to leani his
business; and that being the object for which he was to be
taken, the Court thought that there was not sufficient to
warrant the sessions in finding that the relation of master
and servant subsisted between those parties. In Rex v.
Burbach (r) there was no express contract that the master
should teach the pauper his trade, and besides, that case
was decided, as was observed by my brother Bayley in
JRex V. St. MargaretX King's Lynn{d), upon the ground
that there was nothing to shew that the parties had intended
to create the relation of master and apprentice. I am,
therefore, of opinion that the order of sessions in this case
ought to be confirmed.
The other judges concurred.
Order of Sessions confirmed.
(a) 9 M. & R. 30; 8 B. & C. 88. (c) 1 M. & S. 370.
(b) 9 D. & R. 160; 6 B. & C. (d) 9 D. 5e R. 164.
97.
EASTER TERlffi XI GEO. IV. 653
1880.
HoBSFALL and another v. Fauntleroy and another.
Assumpsit for goods sold and delivered, with the Plaintiffs,
_, , , . , merctiRnts at
money counts, flea: non assumpsit^ and issue thereon. Liverpool, cir-
Ai the trial before Parke, J., at the last assizes for the f"^*^^*^^ J^ta-
' ^ ^ logue8 of
county of Lancaster, the case was this: — The plaintiffs goods to be
were importers of ivory at Liverpool; the defendants were ^j^^^ contain-
dealers in ivory at London. The action was brought to »ng ^his condi-
, . tioii:— " Pay-
recover the value of eight lots of ivory, alleged to have meat on deli-
been purchased of the plaintiffs by Messrs. Lloyd and ""^^^^b*"* ''^
WilHams, who were brokers at Liverpool, for and on good bills on
account of the defendants, under the following circuni* ti,e°sat?sfac-
stances: — The plaintiffs had circulated catalogues an* tjonofthe
nouncing that a quantity of ivory would be sold by auction ceeding three
by Shandmd Horsf all on the 9th of May, 1829, subject, ^^^^^^^^'
among others, to the following condition of sale:—-'' Pay- equal to cash
ments to be made on delivery of bills of parcels by good ^^* '^H^ „
bills on London to tbe satisfaction of the sellers, not ^x- X. & PT.,
ceeding three months date, to be made equal to cash in j^erpod, sent
four months from this date.'* Lloyd and Williams, who a catalogue to
bad been frequently employed by the defendants to pur- merchants m
chase ivory for them, sent one of these catalogues, with l^ndon, who
t ... , I . i. 1 r . directed L. &
the conditions annexed, to the defendants, and m return w. to buy
received from them directions to buy certain lots, which ^^hiclTthey*
they did accordingly, to the amount of 1081/. 25, 2d. bought ac«
Before the sale began, the auctioneer, in reading the con- Befbre^t^esale
ditions of sale, made the following verbal alteration as to b^gan the auc-
the mode of payment: — *' Payment, by known buyers, the that "pay-
usual credit of two and two months. By strangers, on f^^i'^by
, ' o ' known buyers
delivery of the bill of parcels, by good bills on London to was to be
" the usual
credit of two and two months.'* X. & W.^ being known buyers, obtained the goods
without giving bills, and forwarded them to defendants in London, with an invoice,
suting that *' payment" was to be '' equal four months cash," and drew on defendants
for tbe amount by a bill at four montlis from the day of the sale, which defendants
accepted and paid when due. Within two months after the sale L. & W. failed, never
having given plaintiffs bills for the price of the goods, whereupon plaintiffs sued defend-
ants for the price; — Held, that plaintiffs could not recover, as tney had by their own
catalogue led defendants to believe that L. & W, had given them bills for the goods,
and had thereby induced defendants to accept and pay the bill drawn on them by L.& If'.
654 CA6E8 IK THE KINDTS BEITOH,
1830. the satisfaction of the sellers, not exceeding three months
^^1^^"^^^ date, to be made equal to cash in four months from this
and another date/' After the sale, Lloyd and Williams delivered to
p ^' the auctioneer the following bought note :
aod another.
** Messrs. Shand and HorsfalL
" Sirs, — We have this day bought from you the follow-
ing lots of ivory; viz. (the lots were then described) with
customary allowances. Payment two and two mouths.
(Signed) L/qydaud WiUiamr
Shand and Horsfall afterwards sent an invoice in thr
same form to Lloyd and Williams, to whom the ivory was
delivered^ and they forwarded it to the defendants, with an
invoice as follows: —
'' A. Fauntleroy and Son, per Lloyd and William.
** Bought of Horsfall and Tobin, per Shand and Hon^
fall,
'* Eight lots Elephant teeth. Payment equal four
months cash.*'
They then set out the particulars, charging the amount,
including brokerage and commission 12/. 7s, 4d», at 1093'*
9s. 6d.$ for which amount they, a few days afterwardi,
drew upon the defendants by a bill at four months, dated
the 19th of May, the day of the sale^ which bill the defend-
ants accepted and paid. Long before that bill fell due
Lloyd and Williams stopped payment, upon which the
plaintiflfs, stating that they had then for the first time
learned that the defendants were the real buyers, upon
which fact there was conflicting evidence, demanded pay-
ment of them. The defendants declined making this pt;-
menty stating as their reason, that they had already ac-
cepted a bill in favour of Lloyd and Williams for the
amount, which would be paid when due. The plaintiffs
waited till that bill had become due, and had been paid»
being more than four months after the sale, and then com-
EASTER TERM, XI GEO. IV. 655
menced the present action. It wrs contended for the 18S0.
plaintiffB, that as they were ignorant at the time of the ^^^^"^^^
sale that Lloyd and William$ purchased as agents and not and another
as principals, they had a right to resort to the principals as ^ ^*
soon as they ascertained who they were. But it was sug- and another.
gested by the learned judge, and contended by the counsel
for the defendants, that they had not authorized Lloyd and
Wiltiams to contract for them upon any other terms than
those contained in the catalogue and conditions of sale
transmitted to them ; that the only contract so authorized
by them was for payment on delivery of bill of parcels;
that the contract made by Lloyd and Ifilliams was for pay-
ment at two and two months ; that the two contracts were
essentially different; and that, under these circumstances,
the defendants were not bound by the latter, which was
the contract relied on for the plaintiffs. The learned judge,
being of opinion that this objection was fatal to the plain-
tiffs' right to recover, directed a nonsuit.
On a former day in this term,
F. Pollock moved for a rule nisi for setting aside the
nonsuit, and for a new trial. The plaintiffs were not con*-
eluded by their dealing with persons who were really on^y
agents, though they held themselves out as principals, but
had a right to resort to the real principals, so soon as it
wu ateertained who they were. The action, therefore, is
maintainable. Payment to an agent does not exonerate a
principal, unless it is an authorized payment. Here the
payment to the broker was an unauthorized payment, and
the principals should have looked to the application of the
bill which they accepted. The invoice sent by the auc-
tioneers to Lloyd and Williams mentioned the terms upon
which payment was to be made; and as the defendants
afterwards received and kept the ivory, they must be pre-
sumed to have received it upon the terms contained in that
invoice. [Parke, J. I cannot think so. It did not appear
that that invoice ever reached the hands of the defendants,
656 CAe£8 IN THE king's bench,
18dO» or that they ever had any knowledge of iU conteoU, anj
HoasFALi. *' contained a deviation from the only contract ibey bad
and another ever authorized their agents to make. Can they be bouud
Fauntleroy ^y ^ contract which they did not authorize their agents to
and another, make, and which they did not ratify after it was made:]
The deviation from the original mode of payment was oqI)-
as to time, and the time at which the payment was to be
made is not material; for in every case of goods bought, to
be paid for by a bill at a particular date, the vendor may
sue generally for goods sold and delivered, as soon as the
time arrives when the bill agreed to be given would
become due.
Cur» adv. valL
The judgment of the Court was now delivered, as
follows, by
Lord Tenterden, C. J.-— It appeared at the trial of
this cause, that before the ivory in question was sold, cata*
logues had been circulated by the plaintiffs containing cer-
tain conditions of sale. One of those catalogues was
transmitted to the defendants, who thereupon sent orders
to their agents to make certain purchases on their account
The agents made the purchases accordingly, and sent the
ivory to the defendants in London, with an invoice stating
the mode of payment in the same terms as those coo*
tained in the conditions of sale. It further appeared, that
before the sale began the auctioneer stated, that known
buyers would be allowed to pay, at the end of two months^
by bills payable at two months from that time; and Lloi/d
and Williams, the agents for the defendants, being known
buyers, were allowed to have the ivory without giving bills
at the time; and they immediately drew on the defendants,
who accepted their draft for the amount. My brother
Parke at the trial was of opinion that no other contract
could be substituted for that which the defendants in the
first instance authorized their agents to make, and on that
ground directed a nonsuit. That is a very important
EASTER TERM, XI GEO. IV.
question^ and, as it is not essential to the decision of this
case, we avoid giving any opinion upon it (a). But, inas-
657
(a) The nature of the difficulty
which pressed upon his lordship's
mind, with respect to the point
upon which the nonsuit proceeded
is not stated. It was probably
this. The defendant empowered
Uoyd and WUUam$ to purchase
ivoiy, to be paid for by good bills
on delivery. Uoyd and Williams
bought upon credit, viz. at two
months. This contract Lloyd and
Williams had no authority to
make, and the defendants might
have repudiated it. Bot they ac-
cepted the goods. That accept-
ance cannot be considered as an
acceptance upon the contract to
pay by good bills on delivery,
because the plaintiffs had never
sold on those terms. If, as be-
tween the plaintiffii and defend-
onts, the defendants were bound
to know what their agents JUojfd
and Williams had done, then the
acceptance of the goods would be
a ratification of the actual con-
tract at two and two mouths. See
lib. Ass. Anno 97, fo. 133, pi. 5;
Jtaiiger v. Fogassa, Plowd. 11 b.
If the defendants were not bound
to know what their agents had
done, then either the acceptance
of tlie goods without a previous
valid contract of sale, would
amoent to an implied sale upon a
qoantain valebant, or the pro-
perty would still remain in the
plaintifi, and the interfereuce of
the defendants with those goods
would have been a tortious con-
veraion, a»d the question then
would be, whether the plaiotifis
might not waive the tort, and
declare for goods sold and deli*
VOL. V.
vered. Vide Lightly y.Cloustim^
1 Taunt. 112; Hill v. PerroU, 3
Taunt. 274; Foster v. Stewart, 3
Made & Selw. 191 ; Abbott r.
Barry, 5 B. Moore, 98; Edmeads
V. Newman, 8 Dowl. & Ryl. 568;
1 Barn. & Cressw. 418; 1 Chitt.
Plead. 5th ed. 119; Ibid. 388.
The case in 27 Assise was this:
** A poor man sued a bill of
trespass in the Court of King's
Bench, then (in M. T. 1352)
held at Kingston, in Surrey, against
W. de W. Serjeant-at-Arms, of a
horse and an ux, wrongfully driven
away,^who pleaded not guilty.
And it was found that the bailiff
of W. had sold the horse to the
plaintiff for certain money, and
that W, when he came into the
country retook the horse. . And it
was asked of the jurors whether
the bailiff was known as his bailiff,
who (upon which the jurors) said.
Yes, and that he had sold* other
beasts at the market; and it was
asked if he had a special wan-ant
to sell the horse, wlio (upon which
the jurors) said, No.f With respect
to the ox, (in droit del boef,) it
was found that the bailiff had
pledged the ox to the plaintiff for
12 bushels of wheat, of the price
of 12 J., so that if he did not pay
&c. the plaintiff should have the
ox. And it was found that the
wheat came to the profit of the
* For which Lord Brooke, ia
abridging this case {tit. Trespass,
pi. 245,) puts ** had used to sell."
fSee distinction between a gene-
ral and a special agent, White-
head V. Tuckett, 15 East, 400, 408.
u u
1830.
HoasFALC.
and another
e..
Faumtlerot
and another.
658
1830.
HORSFALL
and another
V.
Fauntleroy
and another.
CASES IN THE KING S BENCl^,
much as the plaintiffs, by circulatinga catalogue with certain
conditions of sale, a copy of which was transmitted to the
master, and without payment
made.* And as well for the one
as the other, the plaintiff recovered
his damages." S. C. ahridged Fitz.
Abr. /{'/.Trespass, ^30; Bro. Abr.
tit. Contract, pi. 21; Ibid. tU.
Pledges, pi. 16; Ibid. tit. Trespass,
pi. 945.
Some confusion has arisen with
respect to the time at which upon
the sale of goods the property in
the speciBc articles sold is trans-
ferred from the seller to the buyer.
According to the Civil Law, and
the present, or at least the old
French Law, and all other sys-
tems of jurisprudence founded
upon the Civil Law, the property
remained in the seller until a de-
livery either actual or construc-
tive. But the right to the benefit
of accretions to the property, and
of any other improvements there-
in, on the one hand, and the lia-
bility to the risk of destruction
or injury to the property, (pericu-
lum rei venditas,) on the other,
were transferred to the buyer by
the very contract of sale, if the
subject of a sale were a specific
individual chattel (certum corpus),
or in the case of a bargain fur
quantity only, then iipun the sub-
sequent designation of a particular
article, by selection, by measure-
ment, or otherwise.
As after the transfer of the
property, the risk (periculum rei
venditx) attaches to the buyer,
the converse seems to have been
* £t son payment fait, in both
editions, but '* son" appears to be
mtsprinted for " sauns."
assumed by English lawyers, who
appear to have considered that
liecause the rigk passes upon the
completion of the contract, ac-
companied or followed by the
designation of a specific article
as the subject-matter of the sale,
therefore the property vested
also. This appears to be now
the settled law of England upon
this subject; and it may be traced
as far back as the reign of Edr
ward 4; for in H. 18 Eiv, 4,
fo. «J, pi. 1, Bryan^ C. J. of C.P.
whose opinion upon this poioi
•had been disputed in the preced-
ing year {antCj vol. ii. 568 n.) by
Liltkton, J. (the author of the
Tenures) says obiter, <* If I sell
my horse for 10/. it is lawful for
me to retain the horse until I am
paid; and yet I shall never have
an action of debt on the cootract
until the horse be delivered, end
it is clear that by the bargain the
property was in him who bought
the horse. But if the buyer ten-
der the money, and he (the seller)
refuses, then he (the buyer) nay
seize the horse, or have an action
of detinue, or an action of trespass,
at his pleasure.'* From this dic-
tum it appears that the action for
goods bargained and sold, hot not
delivered, was then unknown; and
yet if the property passed by the
contract, there would be no reason
why such an action of debt on the
contract as debt for goods bar-
gained and sold should not lie.
In the reign of Henry 2, the
Inw of England in this respect is
thus stated by Glanville,*'A pur-
chase and sale are efTectually com-
£ASTER TERM, XI <3E0. IV.
defendants, naturally led tliein to suppose that Lloyd and
Williams could not have obtained the ivory without giving
effect 80 important a change in
the law of France, it might have
been expected that the legislator!
would have expressed themselves
with at least as much distinctness
us in No. 938, (infr^) when merely,
adopting and re-enacting the estft-
blished law.
The rule of the Civil Law and
the old French Law upon this
subject, and the departure from
that rule in the English Courts, is
stated in a note to Baikif ▼. Cul-
venvell, ante^ vol. ii. 566 (</), and
to Diion V. Yatei, 1 Nev.& Mann.
202(6); but it was not intended,
by what is said in the former of
those notes, to deny that the law
of England had long been settled
upon this point.
With respect to gifts of chattels
inter vivos, the rule has been esta-
blished that gifts by parol are re-
vocable and incomplete, until ac-
ceptance (i. e. acquiescence in the
gift) by the donee, but that gifts
by deed are perfect and complete,
and vest the property in the donee
until disclaimer. And that after
acceptance in the former case and
until disclaimer in the latter, the
property vests in the donee with-
out any delivery of the subject-
matter of the gift. Perk, tit*
Grant, £7; 3 Roll. Abr. tit. Grants
(X.); Com. Dig. tit, Biens (D 2.)
So in the Code Civil, No. 938, it
is said, *' a donatio inter vivos duly
accepted, shall be perfect by the
sole consent of the parties; and
the property in the articles so
given shall be transferred to the
donee, without the necessity of
any other delivery."
D u 2
pleted when the contracting par-
ties have agreed upon the price,
frooided that a delivery of the
thing bought and told has taken
place, or that the price or part
of it has been paid, or at least
that earnest has been paid and
accepted." He then goes on to
state, that after delivery or pay-
ment, both parties are bound by
the contract, unless some power
of determining the contract, as
apon trial of the goods, kc, was
reserved ; but that where there is
only a payment of earnest the
purchaser may forfeit the earnest
and abandon the contract. Glanv..
lib. 10, cap. 14.
In constructing the Code Civil
the French legislators would at
first sight appear to have adopted
the modern English principle, as
in the case of Revendication, see
2 Nev. & Mann. 650 (c). See
Code Civil, No. 1588, where it is
said — ** the sale is perfect between
the parties, and the property is
acqoired.</e jure by the buyer as
against the seller, as soon as they
are agreed upon the thing, e,g. the
specific article, and upon the price,
although the thing has not been
delivered, nor the price paid,**
unless by the terms ** la pro-
priety est acquise de droit k Ta-
cheteur k regard du vendeur,'' we
are to understand that (as in the
Civil Law,) the buyer has acquired
merely jus ad rem and not jus in
re, and that the words ** acquise
de droitH* are used in contradis-
tinction to ** acquise de faitJ*
Ipdeed if the intention of No.
1388, of the Code Civil, was to
659
1830.
HORSFALL
and anotlier
V.
Fauntlerot
and another.
660 CASES IN THE KInVs BENCH,
1830. good biiig qh London, and that therefore they might safely
HoRSFALL accept the bill drawn by Lloyd and Williams for the
and auoLher amount ; if we held that the acceptance and payment of
Fauntleroy that bill did not exonerate the defendants from the present
and another demand, it Would be an exceedingly hard case; for they
have fallen into the difficulty, being misled by a document
put forth by the plaintiffs themselves. Upon thi^j^Wfad
we are of opinion that the plaintiffs are not entiu^to
recover, and, consequently, that the nonsuit ought not to
be disturbed.
Rule refused.
But upon a donatio mortis causft, tio mortis causft is not recognised
the property does not vest ui the in France, vtc/eCodeCml, No. 893.
donee without delivery. SmUh v. In Irofu v. Smallpieu^ 9 Btro.
Smithy 2 Stra. 955; Bum v. Mark- & Aid. 551, these distinctions ap-
ham, 9 Marshall, 53^. The dona- pear to have been overlooked.
Mann x;. Lent.
A boy was ASSUMPSIT, by the plaintiff, as indorsee, against the
bonnd appren-
ticeini827by defendant, as acceptor of a bill of exchange drawn hj
indenture, j^^^, Pullman, for 88/., dated 22d October 1827, pay-
upon a pre- ' .
miumofso/. able two months after date. Plea, non assumpsit, and
1^5*11^ tTbe "*"® thereon. At the trial before Lord Teaterden^CJ.,
paid, and for at the London adjourned sittings after Michaelmas term
was given. 1828, the plaintiff, by his lordship's direction, had a verdict.
The indenture subject to the opinion of the Court upou the foUowiag
Dore all.
stamp only. case : —
S^^thT'*^* The plaintiff, at the trial, having proved the buids-
master five writing of Pullman as drawer and indorsee, and of pi de-
months, when
a difference
arising between the master and the father, and it being discovered that the stapip «»
insufficient, the apprentice left the master. In an action by the indorsee against the
acceptor of the bill :^Held, that as the apprentice had been maintained and instructed
by the master for five months, and might nave enforced a continuance of that nuote-
nance and instruction, by causing the indenture to be properly stamped, under 90 0. ?,
c. 45, s. 5., there was not a total fiiilure of consideration for the bill, and the action
upon it was maintainable.
V
V
£A$T£R TERM, XI GEO. IV.
fedUant as acceptor^^f the bill; the defendant first proved,
bj way of answer, that on the 2d December, at half-past
nine at night, a notice was served at the office of the plain-
tiflf 's attorney, whereby he was required, on the trial of the
cause, to prove the time when he received the bill, and the
consideration paid or given by the plaintiff to Pullman for the
'^'same. The plaintiff, however, did not adduce any evidence
either as to the time when he obtained possession of the
bill or of the consideration given by him for the same.
The defendant then proved that his son had been bound
apprentice to Pullman by an indenture dated the 19th of
October, 1827 ; that a premium of SOL was agreed to be
paid as an apprentice fee, of which 2/. was to be taken out
in liquor; and that the bill in question was accepted by the
defendant, and handed over to Pullman in payment of the
residue. The indenture of apprenticeship was in the usual
form, and was on a 1/. stamp, the premium expressed in it
being 30/.; and the apprentice was to serve for seven
years* The apprentice entered into his master's service,
find served, in pursuance of the indenture of apprentice-
ship, for the term of five months and a little mor^, when
a difference arising between the master and the father, and
it having been discovered that the stamp on the indenture,
being but a twenty-shillings stamp, was insufficient, the boy
left his master's service.
Upon this state of facts, the defendant, contended that
the indenture, according to the stat 55 Geo, 3, c. 184,
sched. 1, tit. '* Apprentice," ought to have borne a 2/.
stamp; and that not being so stamped, the consideration
for the bill failed.
lliat the statute 8 Anne, c. 9, s. 38, requires that inden-
tures of apprenticeship executed within fifty miles of Lon-
don shall be brought to be stamped at the head office
within three months after the date thereof. That sect. 39
of the same statute directs, that unless the duties payable
were paid within the time aforesaid, the indentures shall
be void, and not available in any court or place, or to any
purpose whatsoever. That the statute 5 Geo. 3, c. 46, s.
CASES IN THE KING 8 BENCH,
19, requires the duty to be paid in one month, or the inden-
tures will be void ; and the master forfeits a penalty, and tbe
apprentice can acquire no right under the same.
That the duty payable on the indenture in the present case
was not paid within three months after the date thereof, and
was not at the time of the trial impressed thereon. That
the statute 42 Geo, 3, c. 23, s. 7, authorizing the stamping
indentures of apprenticeship after the proper time, was
a temporary act no longer in force.
That the statutes 9 Jnne, c. 2\, s. 66, and 18 Geo. 2, c.
22, ss. 23 and 24, make it tbe duty of the master, and not
of the apprentice, to get the indentures stamped in due time.
The plaintiff, on the other hand, contended that the
statutes 12 Anne, st. 2, c. 9, s. 23; 20 Geo. 2, c. 45, ss. 5
and 6; 37 Geo. 3, c. 136, s. 2; and 44 Geo. 3, c. 98, s.
24; modify the operation of the statutes relied on by the
defendant, and that the bill was not to be considered, even
«s between the drawer and the acceptor, as altogether
without consideration; and even if it were so, the plaiDtiff
contended that he was still entitled to recover, he not being
shewn to be cognizant of the supposed want of consideration,
or to have received the bill otherwise than in the ordinary
course of business, and not being bound by law upon so in-
sufficient a notice as he received to prove the consideration.
On a former day in this term the case was argued by
Coltman, for the plaintiff. First, the stamp was suffi-
cient. Where the premium does not exceed .SO/., the
Stamp Act(a) imposes a duty of 1/. only: here the real pre-
mium given was only 28/. for it does not appear that the
2/., said to be taken out in liquor, was for the use of the
master. Secondly, there was a sufficient consideration.
There may have been a partial failure of consideration;
but it is a settled principle, that a partial failure of tbe con-
sideration for which a bill or note is given, is no ground
of defence to an action on the bill or note (6). The
{a) 55 G. 3, c. 184, schedule, (6) See Ohbard v. Betham,9nir,
part 1, « Apprenticeship. " p. 632, and the cases there died.
EASTER TERM, Xt GEO. IV. 663
case of Jackson v. Warwich{a) may perhaps be cited on the 18S0.
other side as an authority to shew that in this case there is
a total and not a partial failure only of consideration ; but
admitting the propriety of that decision, which perhaps
might be questioned, there is a material distinction be-
tween that case and the present. There the premium was
not mentioned in the indenture at alli which was an incur-
able defect, that rendered the indenture absolutely and for
ever void. Here, the premium is correctly set out in the
body of the indenture, and the only defect, if any, is in the
stamp, which may be cured, by virtue of the statute 20
Geo. 2, c. 45, s. 5, by adding the proper stamp, and the
indenture be thereby rendered valid. It cannot therefore be
successfully contended that the consideration in this case
has failed in toto; more especially as the apprentice was
actually maintained by the master for a period of five
months and upwards, and then quitted the service of his
own accord. Thirdly, even if the drawer in this case
could not have recovered against the acceptor, still the
plaintiff, being the indorser, may. Every indorsement
primft facie imports a consideration. The acceptor can-
not, by merely proving that the bill was without considera-
tion as between himself and the drawer, impose upon the
indorsee the duty of proving the consideration which he
gave for it. The giving notice to the holder that he will
be required to prove the consideration given by him for a
bill, does not compel him to do so: the only effect of that
is to enable the acceptor to impeach the consideration,
which without giving such notice he is not allowed to do.
Where, indeed, a bill has been obtained from the acceptor
(a) 7 T. R. 121. It was there executed was void by the statute,
held that " no action can be main- for want of the insertion of such
tained by the plaintiff on a note premium therein, and of a proper
given to him by the defendant, as stamp in respect of the same; al-
an apprentice fee with bis son, though the plaintiff did in fact
who was to be lx)und to the plain- maintain the apprentice for some
tiff, if it appear that the indenture time, and until be absconded.
664 CASES IN THE KING*S BENCH,
18S0. bj force or fraud, the duty of proving consideration b im-*
posed upon the holder; but the rule has never yet been
V. carried beyond that pointy and its extension would be a
^'^'' serious clog upon the circulation of bills and notes, and
would materially diminish their utility for the purposes of
commerce. ^
Gumeyy contri. The indorsee of a bill or note stands,
for many purposes, in precisely the same situation as the
drawer, and is equally compellable, upon notice, to prove
that he or some preceding party took the bill or note bon&
fide and for value; Duncan v. Scott (a), Rees v. Marqum
of Headfort{b), Solomons v. The Bank of Ef^land{c\
In this case the apprentice served for five months under
the indenture, and it being then discovered that the stamp
was insuflicient, left his master's service. The indenture,
being void, there was no consideration for the bill as be-
tween the drawer and the acceptor, therefore it was in-
cumbent on the plaintiff, as the indorsee, to prove, after
notice, that he had given consideration for it. The means
of proof in such a case are in the plaintiff, and the burden
of proof ought, therefore, to be upon him; the defendant
cannot be called upon to prove a negative. In ThomKU v.
Netoton{d), which was an action by the indorsee against
the acceptor of a bill, the defendant having shewn that
there was originally no consideration for the bill. Lord
(a) 1 Campb. 100. It was if it appear that a prior part^ wu
there held, that << in an action by defrauded out of it, tbe plaiotifT
the indorsee against the drawer of a ii bound to prove what ooosidera-
bill, if it appear that the defend- tion he gave for it."
ant drew the bill without consi- (c) 13 East, 135, n. It was
deration, and under duress, it is there held, that <' the holder of a
incumbent on the plaintiff to prove bank note is primi facie entitled
ihat he gave value for it, although to prompt payment of it, and cu-
lt was indorsed to him before it not be affected by the previoas
became due/' fraud of any former holder in ob-
(6) 2 Campb. 574. It was taining it, unless evidence be gii^o
there held that " in an action by to bring it home to bis prifitj *
the indorsee of a bill of cxchanpc, (d) 2 Car. & P. 606.
BASTER TERM, XI GEO. IV. 665
Tenterden held that it lay upon the plaintiff to shew that he, 1830.
or some prior indorsee, had given value for it; and in
Dandridge v. Cordai{a), bis lordship again ruled the same
point. Assuming that the indenture might at one time
have been made valid by impressing a sufficient stamp
upon it» that cannot now be done ; and the indenture being
wholly void, there was no consideration for the acceptance,
lo Jackson v. Warwick (b), it was held that no action could
be maintained by the plaintiff upon a note given to him
by the defendant as an apprentice fee, if the indenture exe-
cuted was void; and Scoti v. Gillmore(c) shews that if a
bill or note is founded partly on an illegal consideration,
and partly on a good consideration, the illegality will taint
the whole bill or note, and will bar the claim of the holder
upon it in toto. As to the stamp, it was held in Rex v.
Chipping Norton j{d) that an indenture of apprenticeship
executed before the passing of the statute 44 Geo. 3, c. 98,
must be stamped with the premium stamp within the time
prescribed by the statute 8 Ann. c. 9 ; and that where
such an indenture was stamped at the time of its being
produced in evidence with the stamp required by the sta-
tute 55 Geo. 3, c. 184, but not within the time prescribed
by the statute 8 Ann. c. 9, the indenture was altogether
void.
Cur. adv. vuli.
The judgment of the Court was now delivered by
Lord Tentekden, C. J., who after recapitulating the
facts of the case, thus proceeded : — We are of opinion that
there was not, in this case, a total failure of consideration
for the bill. If the father had paid the premium in money,
instead of giving the bill for it, he could not, under the cir-
(a) 3 Car. & P. 11. (d) 5 Barn. & Aid. 419. And
(b) TT.n.m. see Res v. Preston, 3 Nev. &
(c) 3 Tannt. 226. Man. 31; 5 Barn. & Adol. 1088.
666 CASES IN THE KING's BENCH^
1830. cumstances of this case, have recovered it back; for the
son was not only maintained by the master for some time,
but might have compelled the master to continue his maio-
tenance and instruction, by causing the indenture to be
duly stamped. There Jivas not, therefore, a total failure of
consideration for the bill, and that being so, the circum-
stances proved would not have constituted a defence even
in an action brought by the drawer against the acceptor, and,
consequently, they are no answer to an action brought by
the indorsee against the acceptor. The plaintiff, therefore,
is entitled to judgment.
Judgment for the plaintiff(a).
(a) Where, since the new rules Lam v. Burrowz^ 4 Nev. & Mann.
of pleading, (H. 4 IT. 4, 3 Nev. & 366; 9 Adol. & Ell. 483. And see
Man. 1,) want of consideration is GraAam v. Pi/maii, 5 Nev. ft Mann,
pleaded to an action against an 58; 3 Adol. & Eli. 691; Bramak
acceptor, and the plaintiff replies v. Roberis, 1 Bingh. N. C. 469;
that the defendant bad a considera- Trindtr v. Smediey, 3 Adol. & Eil.
tion, which is set out, and concludes 522 ; Richards v. ITiomaSf 1 Cromp.
to the country, and the defendant Mees. & Rose. 773; Percwal r.
joins issue upon the replication, Framptonj 2 C. M. &: R. 180;
the plaintiff is not bound to shew Simpson v. Clarke^ ibid. 342.
consideration in the first instance.
Doe on the demise of John Grubb r. Edward Grubb.
lnl790,E.G.. Ejectment for an estate called Little Horsenden, in
being seised »«,..•
fee of an «s- the parish of Horsenden, in the county of Buckingham,
tate, died in-
testate, leaving two sons, J. G. and E. G. W, C. was then tenant in possession, and
so continued until the trial of this ejectment. In 1812 J. G. died intestate, leaving ao
only son and heir, J. G., the lessor of the plaintiff. After the death of £« G. the pui^
chaser, W. C. paid his rent to £. G. the yciunger son, and to his two sons J. G. sod
E. G. the defendant, in succession, up to the time of action broui^ht, with this exoep-
tioQ, that in 1804 J. G., the eldest son of the purchaser, demanded and received fmoi
W C. one half year's rent. In 1805 the same J. G. cnt down and disposed of, for bis
own benefit, certain timber upon the estate. In June 1813, J. G., the lessor of the plain-
tiff, demanded from W. C. the rent then in arrear, to which W» C, replied, that his cooncc-
tion as a tenant with J. G. had ceased for several years. This ejectment was commenced
in 1890, and the demise was laid on the 1st of May, 1813. Held, first, that there was
no adverse possession to bar the right of the lessor of the plaintiff to recover in eject-
ment; and secondly, that the reply of W, C. in June 1813 was sufficient evidence of ^
prior disclaimer tO support the demise in May, 1813, without proof of any notice to quit.
EASTER TERMj XI GEO. IV«
^t the trial before Garrow, B.» at the Buckinghamshire
bpring assizes, 1828, a verdict was found for the plaintiff,
with one shilling damages, subject to the opinion of this
Court upon the following case : —
Edward Grubb the elder, now deceased, purchased the
estate in question in the year 1788, and the same was duly
conveyed to him and his heirs by indentures of lease and
release, dated 30th and 3 1st January, 1788.
The said Edward Grubb the elder died seised of the
estate in question, intestate, 30th October, 1790, leaving
two sons, Johfif the father of the lessor of the plaintiff, and
Edward^ the father of the defendant, him surviving. John
Grubby the eldest son of the purchaser, died 1st Septem-
ber, 1812, leaving the lessor of the plaintiff his only son
and heir at law. Edward Grubby the second son of the
purchaser, died in July, 1817, leaving two sons, John, and
Edward the present defendant; and John^ the defendant's
elder brother, died in July, 1825, having devised all his
real estates to his brother Edward, the defendant. At
the time of the purchase in 1788, one William Cowdery
was tenant in possession of the estate, and so continued
until the time of the trial of this ejectment. From the
death of the first purchaser, with the exception hereinafter
mentioned, the said William Cowdery paid his rent for the
premises to Edward Grubby the father of the present defend-
ant, until his death in July, 1817; from that time to John
Grubb, the defendant's elder brother, until his death in July,
1825; and from that period, till the time of the trial, to the
defendant. The acts upon which the lessor of the plaintiff
relied as acts of ownership, in support of his claim, were
exercised by John Grubb, the eldest son of the first pur-
chaser, as follows; viz., by demanding and receiving by his
agent from William Cowdery, the tenant, about the end of
1804, half a year's rent, from which the land-tax was de-
ducted; and by cutting down timber, chiefly fire-wood, on
the estate in question, mostly round the hedges, which timber
Was marked at the end of 1804, and felled in the beginning of
1805. It appeared that at the same time the said John
667
1830.
668 GASES INT TH£ KING S BEIiTCU,
1830. Grubb wanted to raise « sum of money, for which purpose
a general fall of timber was made upon his other estates,
89 well as upon the estate in question. He himself ac*
companied the surveyors employed to mark the timber io-
tended to be cut down, and the same, including that taken
from the estate in question, was afterwards sold by aujptioo.
About the same time, by order of the said John Grubb, a
valuation was made of his propertyi in which the estate
in question was included. After the death of the said
John Grubb, the father of the lessor of the plaintiff, Mr*
Tindal, as agent of the lessor of the plaintiff, addres-
sed and sent a letter to William Cowdery, the tenant, of
which the following is a copy:*-^
" Aylesbury> June 18, 18 IS.
** Sir, — As Captain Grubb has employed me to collect
all moneys due to his late father, I have to request that you
will call on me and pay the arrears of rent due to the late Mr.
Grubb, and that you will at the same time bring with you
the last receipt for rent.
(Signed) Thomas Tindal.
(Addressed) " Mr» William Cotadery, Little Horsenden.**
In answer to which, Mr. Tindal received a letter, of
which the following is a copy : —
'* Bledlow, June 26, 1813.
'* Sir, — In consequence of having received a letter from
you as yesterday respecting the rent of Little Horsenden
estate, by the desire of my father I have to inform jou,
that his connection as a tenant with the late John Grubb,
Esq. has ceased for several years, and that he now pays his
rent to his brother*
(Signed) William Cotodiery, junior.
(Addressed) ** T. Tindal, Esq. Aylesbury, Bucks."
This letter was signed by the son of the said William
Cowdery, the tenant, who wrote, signed, and sent it to Mr.
£AST£R TERM, XI GEO, IV. 669
Tindal, by the direction and tinder the authority of his i$3o«
father. In 1814s the present lessor of the plaintiff com-
menced an action of ejectment^ for the recovery of the pre-
mises in question. The declaration in that action, with
the usual notice to the tenant to appear and pleads was Grvbb.
served upon William Cowdery, the tenant in possession^
who did not appear thereto; but Edward Grubb, the
father of the present defendant, as landlord, entered into
the common consent rule, and pleaded the general issue*
In this action, which was sent down for trii^I at the
spring assizes, 1814, the re^cord was withdrawn.- In Janu-
ary, 1820, the lessor of the plaintiff served a new declara*
tion in ejectment upon the said William Cowdery, the
tenant in possession, with the usual notice to appear and
plead, the demise being laid on 1st May, 1813, in the
name of the present lessor of the plaintiff. The notice at
the foot of the declaration required the tenant in posses-
sion to appear in the then next Hilary term. To this de-
claration the tenant in possession did not appear, where-
upon a rule for judgment against the casual ejector was
obtained, but John Grubb, the elder brother of the present
defendant, appeared as landlord, entered into the common
consent rule, and pleaded the general issue. The pro-
ceedings in this ejectment were delayed in consequence of
a suit in equity, and in 1825, the then defendant John, the
elder brother of Edward, the present defendant, died
abrdad, on which, under a rule obtained in the last-men*
tioned action, Edward, the devisee of his brother John,
appeared as landlord, entered into the common consent
rule, and pleaded the general issue, and was made defend*^
ant in the place of his brother, whereupon issue was
joined ; and by an order of Holroyd, J., dated 28th February,
1828, it was ordered that the said issue should be entitled
as of Hilary Term, 1820, and that an imparlance should
be entered up to the time of the plea of the said now
Edward Grubb; whereupon the said last-mentioned issue
was amended accordingly, and carried down for trial.
670
1830.
CASES IN THE KINO S BENCH,
At the trial before Garrow, B.» evidence was given, on
the part of the lessor of the pi a Ir tiff, of the above-men-
tioned acts of ownership, and of the sending of the letter
above set forth to William Cowdery^ and of the answer
thereto. On the part of the defendant, it was objected,
that by the demand and receipt of rent in 1804, John
Grubb, the father of the lessor of the plaintiff, had ac-
knowledged fVilliam Cowdery to be his tenant, and that
such tenancy not having been determined by any notice tu
quit, an ejectment could not be maintained on the demise
Isiid in the declaration; and, further, that the lessor of the
plaintiff was barred from bringing any ejectment in this
case, for that his ancestor, the eldest son of the purchaser,
had not made a sufficient entry within the time prescribed
by the statute of limitations. The learned judge resened
these questions, and left the case to the jufy upon the
evidence on both sides. If the jury thought there was an
adverse possession on the part of the defendant*^ ancestor
which defeated the present lessor of the plaintiff of his title,
then to find for the defendant; if not, for the plaintiff.
The jury found a verdict for the plaintiff.
The case was now argued by
Taunton, for the lessor of the plaintiff. First, there was
a sufficient entry by John Grubb, \ht father of the lessor
of the plaintiff, to take the case out of the statute of limi-
tations, and to prevent the defendant from setting that up
as a bar to the action. John Grubby the purchaser of the
estate, and the grandfather of the lessor of the plaintiff,
died in 1790; upon his death, the estate descended to
John Grubb, the father of the lessor of the plaintiff; and
it is to be contended on the other aide, that between 1790
and 1810 there was no sufficient entry by him. Now, in
the first place, it appears upon the special case that die
question of adverse possession was left to the jury; and it
was properly so left, for it is a question of fact; Doe deffl>
EASTER TERM, XI GEO. IV. 671
Thompson v. Clark {a)\ therefore the Court will not dis- isso.
turb their finding. But in the second place, admitting
that this question is not concluded by the finding of the
jury, but is now open to discussion, there still appears
upon the special case enough to shew that John Grubby
the father of the lessor of the plaintiff, died seised of the
estate; for it is stated, that in 1804 he claimed and re-
ceived a half-year's rent, which was an acknowledgment of
his title by the tenant, and that in 1805 he cut down tim-
ber, which was a clear and unequivocal act of ownership
by himself. Secondly, no notice to quit was necessary. To
this objection, as to the former, there are two answers. First,
the defendant is not entitled to insist upon the necessity of a
nutice to quit, because he defends as landlord, that is, as land-
lord of the tenant in possession, and he cannot say that the
lessor of the plaintiff was bound to give notice to quit to
his, the defendant's tenant. Secondly, if Cowdery had de-
fended as tenant, he could not have insisted upon the ne*
cessity of a notice to quit, because he, in 1813, disclaimed
holding under the lessor of the plaintiff, and the authorities
are express to shew that when the tenant does any act
M'hich amounts to a disavowal of the title of the lessor,
no notice to quit is necessary; Doe dem. Calvert v.
Frowd{b), It may, perhaps, be urged, that as the letter,
from Cowdery, relied upon as a disclaimer, was dated in
June, 1813, and the day of the demise in the declaration is
laid earlier, namely, in May, 1813, the disclaimer is too
late to support this action; but it will be observed, that
the letter states that Cotcdery's connection as tenant with
the lessor^s family had ceased for several years, thus carry*
(fl) 8 B. & C. 717. And see Gow's N. P. C. 195; Doe dera.
Doe dem. Jackson v. WUkifison, 5 Clun v. Clark, Peake's Add. Cas,
D. & R. 273; 3 B. & C. 413. S39. Sec also Rogers v. Pitcher,
(6) 4 Bingh. 557; 1 M. & P. 6 Taunt. SOS; 1 Marsh. 541; and
480. And see Doe dem. Williams Doe dem. Dillon v. Parker, Gow's
V. Pasquali, Peake's N. P. C. 196; N. P. C. 180.
Doe dem. Jefferies v. WhiUick,
672
1830.
^^^/-^
Doe
rf.
Grubb
V.
GnuBA.
CASES IN THE KING S BENCH,
ing tbc disclaimer back to a period long antecedent to the
day of the demise.
FoUetl, contri. The finding of the jury respecting an
adverse possession cannot be regarded as conclusive upon
the defendant, because it appears that the learned judge
had reserved that point for the opinion of the Court, as
matter of law, before he submitted that, or any other
point in the case» to the consideration of the jury, as
matter of fact. The question* therefore* whether the an-
cestor of the lessor of the plaintiff ever made a sufficient
entry to prevent the operation of the statute of limitations,
still remains open; and it is submitted that he neier
did. The case of jDoe dem. Thompson v. Clark (a) has
no bearing upon the present, because the question there
was, not whether a sufficient entry had been made, but
whether the relation of landlord and tenant had always
existed : here the question is, whether the father of the
lessor of the plaintiff made a sufficient entry between the
years 1790 and 1810. It i» said that the demand and re-
ceipt of rent in 1804, and the cutting of timber in 1805,
amounted to an entry. The first is clearly not suffident,
because it does not appear in what character that rent was
paid and received by the two parties. The second, even if
it constituted an entry, is still not sufficient, because it was
not followed up by any ulterior proceeding. Now bjr
statute 21 Jac. l,c. 16, s. 1, no person shall make any entry
into lands but within twenty years next after his right or
title which shall first descend or accrue to the same; and
by statute 4 & 5 Ann, c. l6, s. 16, no entry shall be suffi-
cient within the former statute, unless upon such entry an
action shall be commenced within one year next after the
making such entry, and prosecuted with effect. [Bayley^J-
The acts done in this case were not a mere entry, but
taking part of the profits.] Still, as the party making the
(a) 8 B. & C. 717.
EASTER TERM, XI GEO. IV. 673
entry did not continue in possession, he ought to have fol- 1830.
lowed up his claim by an action. Secondly, supposing the
possession not to have been adverse, and that a tenancy
subsisted, there ought to have been a notice to determine
that tenancy before ejectment was brought. It was part
of the case made by the lessor of the plaintiff, that Cowdery
was his tenant: without that he clearly could not have re-
covered; and Cowdery^a tenancy never was determined.
It may be admitted that the letter from Cowdert/ was a
disclaimer, but that will not assist the plaintiff's case.
The plaintiff is bound to make out a clear title subsisting
on the day of the demise laid in his declaration. Now the
day of the demise was in May, 1813, and the letter was
written in the following June; therefore it operated as a
disclaimer only from a time subsequent to the demise, for
a disclaimer cannot operate by relation back to a time
already gone by.
Taunton, in reply. Was there ever an adverse posses-
sion for twenty years? That is the real question in this
case. It is clear that there never was. When Edward
Grubb, the purchaser of the estate, and to whom Cowdery
was tenant, died, the reversion passed to John Grubb, the
father of the lessor of the plaintiff, as heir at law. If the
younger brother had then entered, which, however, he did
not do, even that would not have been an adverse posses-
sion; for '* where a person dies seised in fee, leaving two
sons, if the younger brother enters he does not enter to get
a possession distinct from that of the elder brother, but to
preserve the possessions of the father in his family." (a)
On the other hand, the acts done by John Grubb, the
elder brother, in receiving rent and cutting timber, were
suflScient to constitute a possessio fratris, or a seisin to
support a fine. Then the possession of Cowdery was the
possession of John Grubb and of the lessor of the plaintiff
until the disclaimer; and though the letter declaring the dis-
{fi) Giib. Ten. 28.
VOL. V. X X
674 CASES |N THE KINO's BENCH^
1830. claimer could not, strictly speaking, operate by relatioo
back, still it was evidence of a prior disclaimer, aDd sup-
ported the action.
FoUett, The entry by the younger brother, mentioned
by Gilbert, C. B., is meant to refer to the case where there
is a possession vacant on the death of the ancestor. In
this case the possession never was vacant, for^ there being
always a continuing tenancy, the elder brother became
seised immediately on the death of the father. . But there
was a subsequent attornment by the tenant to the younger
brother, the effect of which was to disseise the elder bro-
ther^ And to create a possession adverse to him. Co, UtU
£42; LfVr. ss. 396, 397.
Lord Tbnterden, C. J.— I am of opinion that the
lessor of the plaintiff is entitled to recover. The acts done
by the different parties between the period of the ances-
tor's decease and the year 1804, were all of an equivocal
nature. The receipt of rent by the younger son, may have
been on behalf of his elder brother, or may have been on
his own behalf, claiming adversely. But in 1804, there
were acts done of a decisive and unequivocal character, for
in that year the elder brother demanded and received rent
from the tenant, and not only made an entry upon the land,
but was allowed to mark and cut down trees, which he
afterwards sold for his own benefit. These were acts done
by a person claiming to be landlord, and the submission
to them by the tenant was an acknowledgment on his part
of the title of the claimant. Then, if the elder brother
was landlord in the year 1804, what has there occurred
since to alter his character, or to devest his estate? The
defence to the present action is made by a person claiming
under the younger brother, and aa landlord. In that cha-
racter it is clear that he has no title. Then he claims
a right to defend under Cowdery, the tenant. In setting
up that defence the defendant adopts the acts of Cowdery
as his own, and whatever would be evidence against QnC"
EASTER TERM, XI GEO. IV.
dety, 18 evidence against the defendant. Against Cowdery
there is bis own letter of June, IQ\3, in which he does not
say that he never was connected with John Grubb as his
tenant, but that the connection between them had ceased for
several years. If so, it must have ceased before May,
1813, the date of the demise, and then that disclaimer is
sufficient to entitle the lessor of the plaintiff to recover.
675
1830.
Bayley, J. — I entirely concur with my lord in the view
that he has taken of this case. When Edward Grubb, the
purchaser, died in 1790, Cowdery was in possession of the
estate, which then descended to John Grubby the father of
the lessor of the plaintiff. From that time John Grubb
was entitled to the rents, but for many years he did not
receive them; they were paid to Edward Grubb, his
younger brother. In what character Edward received
them — whether as agent, or for his own use, either ad-
versely to or by permission of John — did not appear. In
the absence of evidence upon the subjlect, are we bound
in point of law to say that such receipt of rent was adverse?
I think not. Was there any evidence to that effect?
There was none. Then in 1804, John demanded and re-
ceived half a year's rent from Cowdery the tenant, the legal
effect of which would be to remit him to his original right,
and to make Cowdery become his tenant again, if he had
previously renounced him as landlord. No complaint
was made by Edward of that payment of rent to John, and
his acquiescence in such an act may fairly be regarded as
evidence of an acknowledgment by him that his previous
receipts of rent were by the permission or as agent of John.
Then the cutting down and disposing of the timber by
John in 1 805, was a clear act of ownership by him, which,
coupled with the previous demand and receipt of rent, en-
tirely removed the case out of the operation of the statute of
Anne, which applies only where there is a naked entry or
claim, without any receipt of the rents and profits. With
respect to the other point, I think it clear that Cowdery^s
XX 2
CASES IN TH£ KING S BENCH,
letter of June, 1813, was not only a- disclaimer then, but
evidence of a previous disclaimery as, in an action of trover,
a present refusal to deliver is evidence of a previous con-
version; Morris y. Pvgh(a),
Little DA LB, J., concurred.
Parke, J., having been of counsel in the cause^ gave no
opinion.
Postea to the plaintiff.
(a) 3 Burr. 1«42.
The King v. The InhabiUnts of St. Nicholas,
Hereford.
The office of T WO justices, by their order, removed Sophia Halh
man for a dty ^^^^^9 ^^^ her six children, from the parish of St. Peter to
18 a public the parish of St. Nicholas, both in the county of Here-
within the ^^^^ \ which order the sessions on appeal confirmed,
"to*°'°3 &^* subject to the opinion of this Court upon the following
W. 4- Jf. c. case : —
cuiionV*^ TAonkw Hall deceased, the husband of Sophia HaU,\hs
which for a pauper, gained a legal settlement in the parish of St. Nicbo-
forty days* re- ^^^f Hereford, by renting a tenement. He quitted that
sidence within house on the 23rd of November, 1827, and lived inlhc
confer a'settle- parish of All Saints, Hereford, till the 23rd of June, iSSBi
ment; and if ^ij^,, j,g removed to St. Peter, Hereford, and resided in
the aty con- , .
tains several that pansh till the time of his death, the 29th of Decemberi
pllrt?«e?ut- ^^^^' ^° Monday the 2nd of October, 1826, he was ap-
ine the office pointed by the corporation of Hereford to the annual
in that parish P^hlic office of town crier and bellman for the citj of
in ^hich he Hereford, and was also sworn in a constable of the cilj of
during the last Hereford. He was re-appouUed and re-sworn on the 1st
forty Says of ^f October, 1827, and the J 6th of October, 1828, and be
his execuUon » ■ # j 7
of the office, execute^ the office of town crier and bellman in the city of
Hereford, of which the pansh of St. Peter forms a part,
EASTER TERM^ XI GEO. IV. 677
from the time of his first appointment on the 2nd of Octo- 1830.
ber, \S26f up to the time of his death, on the 29th of
December, 1828. He was also liable and ready to exe-
cute the office of constable, when called on, but never had Jn^»«|>»tant8 of
' ^ St. Nicholas,
acted as constable. There were other persons sworn in. Hereford.
as constables, who acted as such in the city. Thomas Hall
resided forty days and upwards, namely, from the 2drd of
June, 1828, to the 2gth of December, 1828, in the parish of
St. Peter, Hereford. The question for the opinion of
this Court was, whether the residence of Thomas Hall in
St. Peter's parish, for forty days and upwards, while exe-
cuting the annual public office of crier and bellman in all
the parishes in the city of Hereford, namely, from the 23rd
of June, 1828, to the 29th of December, 1828, was suffi-
cient to gain a settlement. If it be, his widow, Sophia
Hall, and family, have gained a settlement in St. Peter's
parish; but if that residence be not sufficient, their settle-
ment is in the parish of St. Nicholas.
Justice, in support of the order of sessions. No settle-
ment was acquired in the parish of St. Peter, by executing
the office, for two reasons ; first, because the party did not
reside a whole year in that parish while executing the
office; and, secondly, because his residence there com-
menced after he had entered upon the office. Mr. Nolan,
in his observations upon this head of settlement, states that
it has never been decided whether a residence for forty
days in a parish in which an office is executed is sufficient
to confer a settlement, or whether the party must reside
during the whole year; and he seems to doubt whether the
appointment to the office should or should not be prior to.
the party's coming to reside in the parish (a). It is sub-
mitted that this species of settlement cannot be acquired
Hnless the service of the office and the residence in the
parish have been contemporaneous and co-extensive; that
(rt) 1 Nolan, 629.
678 CASES IN THE KING*S BENCH,
1830. the service and residence must begin and end together;
J^T^t^ ^^^^ both of them must be not only for one whole yeir,
The Kino ^
V. but for one and the same whole year. The words of the
StI^nJcho^la^^ statute originating this kind of settlement (a), are, "If any
HsREro&D. person wlio shall come to inhabit in any town or parish
shalli for himself, and on his own account, execute any
public annual office or charge in the said town or parish
during one whole year, or shall be charged with and pay
his share towards the public taxes or levies of the said
tOM'n or parish, then he shall be adjudged and deemed to
have a legal settlement in the same/' The plain import of
those words is, that the person claiming the settlement
roust come to inhabit in the parish before he enters upoa
the office; that he must execute the office duriag one
whole year; and that he must continue to inhabit in the
same parish during the same one whole year. This ia the
construction which has been given to that part of the
statute which creates the settlement by payment of rates,
with respect to which it was held, that a person residing in
one parish of the city of Norwich, and being rated io an*
other, did not acquire a settlement in either; Rex y. St.
Michael at Thorn, Norwich {b). Why should a different
construction be put upon the preceding branch of the
same section? But, at all events, the residence in the
parish must be co-extensive with the service of the office,
if not concurrent with it. A year's service is expressly re-
quired, and sOy impliedly, is a year's residence; for the
words, '* during one whole year/' over-ride the whole sec-
tion. Rex V. Liverpoolif) may perhaps be cited on the
other side, where it was held, that if a church-yard lie in
two parishes, the sexton may gain a settlement in the one
in which he resides, although no part of the church lie
within that parish. But that decision does not militate
against the present argument, because there was in that
(«) 3 & 4 W,i^ M. c. IJ, 5. 6. (0 3 T. R. 118.
(6) 6 T. R. 5Se.
EASTER TEllM, XI GEO. IV. 679
case a year's residence in the parish. The requisites of
the statute must be strictly complied with» Rex v. Holy
CrosSf Westgate(d)p where it was held» that a pauper who
had beeu irregularly dismissed from his office gained no St. Vxcholas,
settlement. It may be matter of surprise that in the many Hbbefo&d.
cases which have come before the Court respecting settle*
ments by serving an office, this question has never yet
been discussed and decided; but the circumstance may
perhaps be accounted for upon the inference, to which
certainly it strongly tends, that it has hitherto been uni-
versally considered, that in order to constitute this species
of settlement, the service and residence must be co«e3ttea<
sive and concurrent.
Campbell and McLean, contrj^. The pauper acquired a
settlement in St Peter's, for he did all that the law required
of him for that purpose. He was duly appointed in Octo-
ber, 1827, to an office, the duties of which were to be dis*
charged in a district including the parish of St. Peter's; he
executed that office for one whole year, and he resided in
that parish forty days, part of that year; and the law re<*
quires no more. A very brief review of the statutes
bearing upon the subject will make this clear beyond all
doubt. By the IS & 14 Car. 2, c. 12, any person coming to
settle in a parish, and being likely to be chargeable thereto^
might be removed within forty days* But such person re-
siding there forty days without being removed, thereby
gained a settlement. Then the 1 Jac. 2, c. 17» s. 3, enacts,
** that the forty days' continuance of such' person in a
parish, intended by the said act(&) to make a settlement, shall
be accounted from the time of his or her delivery of notice
in writing (which they are hereby required to do) of the house
of his or her abode, and the number of his or her family, if
be or she have any, to one of the churchwardens or over-
seers of the poor of the said parish, to which they shall so
(a) 4 Bara. & Aid. 618. (6) 13 & U Car. 2, c. 1%.
CASES IN THE KING S BENCH,
Then the 3 W. fy M. c, 11, after eDactiog, by
'£^^^^^Q 8« 3, that such forty days' continuance shall be accounted
V. from the publication in the church of the notice, intro-
St. Nicholas ^"^^8, by s. 6, an exception to the operation of the pre-
Hereford. ceding statutes; for by that section it enacts, "that if any
person who shall come to inhabit in any town or parish^
shall, for himself, and on his own account, execute any
public annual office or charge in the said town or parish,
during one whole year, or shall be charged with and pay
his share towards the public taxes or levies of the said town
or parish, then he shall be adjudged and deemed to have a
legal settlement in the same, though no such notice in
writing be delivered and published, as is hereby before re-
quired." By that enactment the legislature substituted the
execution during a year of an office for the notice which
was previously required to confer a settlement upon a per-
son coming to settle in a parish. Now, in such a case, it
is clear that a person coming to settle upon a tenement
of the requisite value, would have gained a settlement by
residing forty days after publication of the notice. Then
s. 7 enacts, ** that if any unmarried person, not having
child or children, shall be lawfully hired into any parish
or town for one year, such service shall be adjudged and
deemed a good settlement therein; though no such notice
in writing be delivered and published as is hereinbefore
required." By that enactment the legislature substituted
the hiring and service for the notice in writing, and a party
gained a settlement in a parish by residing forty days, pro-
vided there was a hiring for a year; Brightwell v. WeUhaU
ley {a). It is true that the 8 8c 9 W. 3, c. SO, s. 4, reciting
that doubts have arisen touching the settlement of unmar-
ried persons not having child or children, lawfully hired
into any parish or town for one year, enacts, " that no
such person, so hired as aforesaid, shall be adjudged or
deemed to have a good settlement in any such parish or
(a) 2 Bott, 25 J.
. £A8T£R TERM, XI GEO. IV. 681
town, unless such person shall continue and abide in the laso.
same service during the space of one whole year; but ^. „
. . / . L , 1^ The Kino
even since the passing of that statute, where there has 9.
been a hiring for a year, and service for a year in several gU n*^*"ola
different parishes, the party has always been held to be Hereford.
settled in that parish where he resided the last forty days.
Upon the same principle the pauper in this case having exe-
cuted a public annual office for a year in several different
parishes* must be held to be settled in that parish where he
resided the last forty days of that year, namely, in the
parish of St. Peter's. It is not necessary in this case that
the appointment to the office should be subsequent to the
coining to inhabit in the parish ; as it is not necessary, in
the case of a hiring and service, that the hiring should be
subsequent to the coming to inhabit in the parish: the
same principle applies equally to both cases.
The case was argued on a former day in this term, when
the Court took time for consideration. Judgment was
now delivered by
Lord Tenterden, C. J., who, after recapitulating the
facts of the case, thus proceeded : — Upon these facts the
sessions were of opinion that the pauper's husband did not
acquire a settlement in the parish of St. Peter's, Hereford ;
we are of a different opinion — we think he did. The
question turns upon the statute 3 8c 4 TF. 4r Af. c. 1 1, s. 6,
which enacts, ** that if any person, who shall come to in-
habit in any town or parish, shall, for himself and on bis
own account, execute any public annual office or charge in
the said town or parish, during one whole year, then he
shall be adjudged and deemed to have a legal settlement in
the same, though no such notice in Writing be delivered and
published, as is hereby before required." Now the office
of crier is undoubtedly a public annual office, within the
meaning of the statute; it is not necessary that it should
be confined to one particular parish : an office in a city con-
CASES IN TH£ KINGS BENCH,
taining several parishes will clearly confer a settlement
j^^^Q By ^he statute IS & 14 Car. 2, c. 12, a party coming to settle
V. in a parish gained a settlement by forty days' residence.
St. Nicholas ^^ ^^^ statute 1 Jac. 2, c. 1 7, s. 3, the forty days* continuance
Hereford, in the parish intended by the former statute to makes
settlement, was to be accounted from the delivery of a
notice in writing of the house of abode, &c., to the
churchwarden or overseer of the poor. The effect of that
statute, therefore, was, to prevent a party from gaining a
settlement until he had resided forty days after the deli-
very to the parish officers of the notice thereby required.
Then the statute 3 & 4 W. 3^ M. c. 11^ after enacting, by
8. 3, that the forty days* continuance in the parish should
be accounted from the publication in the church of the
notice in writing required to be delivered to the parish
officers, substituted, by s. 6, the executing of a public
annual office for the notice required in the case of coming
to settle upon a tenement; and as in that case a party
would be settled in a parish by residing there forty days
after the publication of the notice, so, by analogy, he will
gain a settlement by the execution for a year of a public
annual office in any parish where he has resided for forty
days. Here the pauper's husband did execute a public
annual office in the parish during one whole year. He
comes, therefore, within the very words of the statute, and
it is a safe rule of construction to adhere to the words of a
statute. But the seventh section of the same statute
throws some further light upon this subject. It enacts,
that if any unmarried person, not having child or children,
shall be lawfully hired into any parish or town, for one
year, such service shall be deemed a good settlement
therein, though no notice in writing be delivered or pub-
lished. Now, although the subsequent statute, 8 8c 9 ^«
3, c. 30, s. 4, requires that there shall be a service for a
year as well as a hiring for a year, still it is clear that a
party will gain a settlement by a year's service under a
yearly hiring in that parish in which he has resided for the
£ ASTER TERM, XI GEO. IV. 683
last forty days; and it is immaterial in that case whether isso.
the pirty be hired before or after he comes into the parish, ^-^v-**^/
Again, therefore, by analogy, in this instance to the case of ^^
hiring and service, as in the former to the case of coming Inhabitants of
® , , , f St. Nicholas,
to settle upon a tenement, U seems to us that the pauper a Hereford.
husband having been appointed to his office before he
came to reside in the parish of St. Peter's ; having exe-
cuted that office for one whole year for that as well as the
other parishes in the city of Hereford; and having resided
in that parish for the last forty days of his execution of the
oiBce, gained a settlement in that parish, namely, the pa«
rishofSt. Peter's, Hereford. That being our opinion, it
follows that the order of sessions must be quashed.
Order of Sessions quashed.
The King v. The Inhabitants of South Killingholme.
Upon appeal against an order of twojustices, for remov- a pauper
ing Richard Robinson and his wife and family from the pa- ^^^^ ^^^H
rish of South Killingholme to the parish of Elsham, both in 51. wages,
the parts of Lindsey and county of Lincoln, the sessions ^his'tmnt^'
quashed the order, subject to the opinion of this Court on who occupied
, - ,, . six acres of
the followmg case :— land, and kept
The respondents proved a primi facie case of settle- ^^° ^^^!^ * ,
■^ "^ , "^ when his aunt
ment in the appellant parish of Elsham. The appellants had no work
then proved that the pauper, in 1823, being unmarried, [o'^j^il^kforr^
and without child, hired himself for a year, at 5L wages, bpdjr else for
and 5s. earnest, to his aunt, who resided in a third parish, ^^ . ^]^\^ \^ qqs
North Killingholme, and occupied six acres of land and a hiring for a
, yoar, but an
kept two cows there : when his aunt had no work for eiceptive
him, be was to work for any body else for his own benefit, ^-^undef i^*^
The pauper entered the service, resided, and worked with confers no
his aunt during the whole year, except that in harvest time ^^^ ^™^"
he worked for a fortnight with another person at 2s. a day,
which he received for his own benefit, sleeping every night
684 CASES IN THE KINg's BENCH^
1830. at his aunt\ and doing all the work she had for him to do
.^^^^^""^ every morning before he went to work, and generally in the
The Kino \ ^ ®^ ^ , . i tt
^. evening when he returned, unless it was too late* tie re-
Inhabitants of ceived his wages at the expiration of the year- The next
LiNOHOLME. year he was hired to another master at 9/. wages.
- N. iJ. Clarke and Whitehurst, in support of the order of
sessions. In Rex v. Chertsey (a), the pauper went to li?e
with her father to do the offices of a servant for a year, for
which she was to have her board and lodging, and such
profit as she could make by. keeping fowls, and what she
could earn by her own labour ; and if that did not produce
as much as she got in her former place, her father was to
make up the difference ; and that was held to be a good
hiring for a year, service under which conferred a settle-
ment. That case is expressly in point with the present;
and it has never been overruled. Indeed the facts of this
case are stronger in favour of the settlement than were those
of the case referred to. The parties there clearly contem-
plated from the first that there would be intervals m the
course of the year during which the father would not re-
quire the services of the daughter, for be expressly limited
the wages he was to give her to such an amount as, in ad-
dition to her own earnings, would be equivalent to her wages
in her former place. Here the wages agreed for were fixed
and certain, and the aunt might have insisted upon the pau-
per's serving her during the whole of every day in the year,
for it was only when his aunt had no work for him that he
was to work for any body else for his own benefit. If,
while he was so working for somebody else, any. thing had
occurred upon his aunt's fisirm which required his attendance,
he could not have withheld it. The aiint*s title to his ser-
vice was paramount to that of every other person ; and the
case finds that in fact he did serve her during the whole
yiear, which must mean every day in the year, except one
fortnight when he harvested for aiuother person, and that
(«) 2 T. R. 37.
EASTER TERBI, XI GEO, IV. 686
during that fortnight he did all the work which his aunt had i830.
for him to do, either in the morning before he went out, or JiT'^^^
in the evening after he returned home. The cases that p.
will probably be cited on the other side are all materially Inhabitants of
distinguishable from the present. In Rex v. Edgmond {a), linoholme.
which was relied on at the sessions, the hiring was at weekly
wages, and " the agreement/' as jibbott, C. J. observed,
"contained in substance an engagement to work only during
certain hoiirs of the day." That case, therefore, can have no
bearing upon the present. In Rex v. Po/esworth (6), the
agreement was to serve for three years, at one shilling per
day when the master had work to do, and when he had no
work the servant not to be paid. There the wages were
daily, and were to be paid only when the servant worked.
Here the wages were yearly, and were to be paid whether
the servant worked or not. There the master told the ser-
vant expressly, at the time of the hiring, that he should not
have work for him all the year round, particularly in the
winter, and that when he had not work for him, he might
get work from other people. Here the aunt merely con-
sented, as matter of indulgence, that if it should happen
that she had no work for the pauper, he might work for
other persons. There the ground of the decision was, as
stated by Abboli, C. J., that the master had the control
over the servant only so long as there was work for him ; as
soon as there was no work, the servant ceased to be under
the control of the master, and was at liberty to get work
elsewhere. Here the control of the aunt over the pauper
never ceased ; she retained it during the whole year, and
throughout every day in the year, though she might, if she
chose, occasionally dispense with his services. In Rex v.
Lydd (c), the pauper was hired for three years at 20/. a
year, in the capacity of a looker, his master expressly telling
him, at the time the contract was entered into, that he did
(a) 3 Barn. & Aid. 107. (c) 4 D. & R. 295; 2 B. & C.
(6) 4 D. & R. 358; 2 B. & C. 754; 2 D. & R. Mag. Ca. 205.
715; 2 D. & R. Mag. Ca. 202.
CASES IN THE KING S BENCH,
not think he should have full emplojoient for him; he
rpT^C^ served three years^ during which time he did other work for
V. his master, who paid him for it extra by the job, and he
South Kil- ^''^ worked for another master as looker when his leisure
LiNGROLME. suited. It wds held that the pauper did not acquire a setde-
ment, and upon the same principle already adverted to, for
Abbott, C. J. said, '^ It is quite evident from the facts of the
case, that Mr. Fisher (the original master) never stipulated
for^and in point of fact never had the control over the pauper,
or the right to his entire service, for one whole year." Upon
the whole, therefore, it seems clear that the sessions were
correct in thinking that the pauper in this case had acquired
a settlement by hiring and service in the parish of North
Killingholme.
Clinton and Hildyard, contrd. No settlement can be
acquired in any case by a hiring and service, uuless the con-
tract between the parties is such as to give the master the
absolute control over the servant during the entire period
of service. This is a well-established rule of settlement
law, the application of which to the present case at once
shews that no settlement could be acquired by service under
the hiring in question. The language of Abbott, C. J. in
Rex V. Lydd (a), just referred to, is expressly suited to the
present case, for the mistress here never stipulated for, and
in point of fact never had, and, it may be added, by the
very terms of the contract never could have, the control
over the pauper, or the right to his entire service^ for one
whole year; the pauper was bound to serve her so long
only as she had work for him. That case and Rex v. J&%-
mond (fi), and Rex v. Polesworth (c), are all expressly in
point As to Rex v. Chertsey (d), the only case cited on
the other side, it is to be observed that the prmcipai ques-
tion there discussed was, whether a child could acquire a
(a)4 D. & R.«95; 2 B. & C. (c) 4D.&.R.998; 9 B.&C.
754; « D. & R. Mag. Ca. S05. 715 ; 9 D. & R Mag. Ca. 203.
(b) 3 Bam. & Aid. 107. (<0 2 T. R. S7.
EASTER TERM, XI GEO. IV.
settlement by hiring and service with its parent. The deci-
sion in that case upon that point has been supported hy .^ j.
subsequent cases, and so far it may be considered as law ; 9.
but if upon other points that case militates against the more gJ^TR Ki\-
modem authorities, and especially those now relied on, linoholmb.
it cannot be deemed, when opposed to them, of any weight.
There is another view of the present case in which the set-
tlement cannot possibly be supported ; for according to the
distinction drawn and the rule laid down in Rex v.
Byher (a), which was very fully considered, the hiring here
must clearly be regarded as an exceptive hiring.
Lord Tentekden, C. J. — There are decisions for and
against settlements of this particular kind, which it is cer«
tainly not easy to distinguish from each other ; but it appears
to me upon the whole, that the present case comes nearer
in its facts to Rex v. Edgmond (6), Rex v. Polesworth (c),
and Rex v. Lydd {d), than to the earlier cases upon the
same subject. Looking at all the terms of this contract, I
cannot help thinking that the parties must have contem-
plated some portions of the year when the aunt would not
have employment for the pauper. If that were so, the cou-
tract did not extend over the whole year, but over such parts
of it only as she might have employment for the pauper,
which was not a hiring for a year.
Bay LEY, J. — ^It seems to me that the fair meaning and
effect of the contract in this case was, to limit the service
of the party hired, to that portion of the year during which
the party hiring might have occasion for it; and in that
view of it, it is impossible to say that it amounted to a hiring
for a year.
(a) 3 D. & R. 330; 8 B. & C. 715 ; 3 D. & R. Mag. Ca. 902.
114 ; 3 I>. & R. Mag. Ca. 15. {d) 4 D. & R. 995; 3 B. & C.
(5) 3 Barn. & Aid. 107. 754; 2 D. & R. Mng. Ca. 205.
(c) 4 I>. & R. 258; 2 B. & C.
The KiMO
V.
CASES IN TH£ KINGS BENCH,
LlTTLEDALE^ J. CODCUrred.
Parke, J. — If the meaning of the words used by these
Inhabitants of parties, when contracting, be taken to be, that the aunt, during
LivoHOLMB. any portion of the year when she did not need, or did not
chuse to employ the pauper, might decline doing so, the
contract of hiring was not for a year. Construing those
words according to their natural import, I think that was
their fair meaning, and that this was an exceptive hiring.
Rex V. Cherisey {a), was decided upon a different ground.
The pauper there was hired for a year, and was to *' have
her board and lodging, and such profits as she could make
by keeping fowls, and what she could earn by her own la-
bour;" and the latter words were considered by AshursifJ*
and Grose, J. to give her liberty to do such work on her
own account as she could do consistently with the service
which she was in the first instance bound to render to her
master. I see nothing in that decision inconsistent with the
present.
Order of Sessions quashed.
(fl) 2 T. R. 37.
The King V. The Inhabitants of Upton Gbay.
A parish certi- i^Y an order of two justices, 7". Woodman, his wife and
duc^^ fn^an children, were removed from the parish of Upton Gray to
appeal, bore
dace in April, 1748, and purported to be signed by two churchwardens and two OTer>
seers. It appeared by the parish books, that in May, 1747, five overseers hadl>eeD ap-
pointed, two of whom had signed the certificate. By an indenture of parish apprentice-
ship, dated in October, 1747, it appeared that the same five persons were at that time
overseers, and that four persons were at the same time churchwardens, two of whom bad
signed the certificate ; and by the parish books, in July, 1748, that five overseers were again
appoioted,and that four churchwardens had been regularly chosen from 1683 to 1829. By
the visitation books for 1746, it appeared that four churchwardens were then sworn in;
thosefor 1747 were lost; but by those for 1748 it appeared that in September in that year
four churchwardens were agam sworn in, hut that in about a dozea instances between
1683 and 1829, less than four churchwardens had been sworn in. Held, that tlie sessions
were not bound to presume, even for the purpose of giving effect to so ancient a docu-
ment, either that there had been a new and valid appointment of overseers between
October, 1747, and April, 1748, the date of the certificate; or tliHtat that date less than
four churchwardens were sworn in : and that they were, therefore, right in rejecting the
certificate as invalid.
EASTER TERM, XI GEO. IV. 689
the parish of Bishop's Waltham, both in the county of i8do.
Southampton. On appeal, the sessions quashed the order, S^^^"^^
. . . ' . ^ * , r ,. . The KiMo
subject to the opinion of this Court upon the following 9.
Q^^Q I Inhabitants of
Upton Gray.
A certi6cate was produced bj the respondents, from the
parish chest of their parish, signed by tvio churchwardens
and two overseers of the parish of Bishop's Waltham,
dated the l6lh April, 1748, by which it was acknowledged
to the former parish, that Peter Woodman, the great grand-
father of the pauper, was legally settled in the latter parish.
The certificate had never been discharged, so far as it re-
gards the pauper. On the part of the appellants it was
proved, from the parish books of Bishop's Waltham, that
on the 17th of May, 1747, five overseers were appointed
by and for the said parish ; their names were Harris,
Edtoy, Vernon, Stares, and Cowdery, of whom Harris
and Cowdery signed the above certificate, dated the l6th
of April, 1748. In an indenture of parish apprenticeship,
dated the 24th of October, 1787, it was recited, that at
that time the said five persons, namely, Harris, Edxvy, .
Vernon, Stares, and Cowdery, were overseers, and that at
the same time four persons, named Homer, Barefoot,
Hellyer, and Wateridge, of whom Homer and Wateridge
signed the above certificate, were churchwardens of the
parish of Bishop's Waltham. It was also proved on the
part of the appellants, from the parish books, that a church
rate for the said parish, for the year 1 747, was signed on
the 8th of May, 1748, by four churchwardens, whose names
were there stated to have been Homer, Barefoot, Hellyer,VLnd
Wateridge. It was also proved on the same part, from the
same books, that on the 8th of July, 1748, five overseers
were again appointed for the same parish, whose names
were there stated to have been Lacy, Parker, Troid, Edwy,
and Suett. It appeared also from the same parish books,
that from the year 1633 to the year 1829> four churchwar-
dens had been regularly chosen every year for the said
VOL. V. Y Y
690 CASES IN THE KING's BENCH,
1830. parish. By the proper visitation books for I746jtwa8
r^\^ proved that four churchwardens were sworn in for the
V. parish of Bishop's Waltham, for the year ensuing the date
Upton^Gr* ^^ ^^ ^^^^ swearing in. The visitation books for the year
1747 were lost. By the visitation books for 1748, it was
proved, that on the 19th of September, 1748, four church-
wardens were sworn in for the said parish, for the year en-
suing that date. By the same books it appeared, that in
twelve or thirteen different years, between the years l63S
and 1829} four churchwardens had not been sworn in for
the said parish ; but that in those instances less than four
had been sworn in. It was contended on the part of the
appellant parish, that, under the circumstances above
stated, the certificate granted by the appellant pariah was
void, it having been signed by two out of five overseers,
whose appointment as overseers was void as to all, inasmuch
as by the statute 43 Eliz. c. 2, s. 1, not more than four over-
seers can be appointed, and on the ground that the majo-
rity of the parish officers had not signed it. On the part
of the respondent parish it was contended, that after so
long a period, being more than eighty years, any possible
case by which the certificate might be supported ought to
be presumed. Hence, as it might be presumed, either
that a new and valid appointment of Cowdery and Harm
as overseers had been made for the appellant parish in the
interval between the 24th of October, 1747, when it is
recited, as above, that there were five overseers, and the
19th of April, 1748, the date of the certificate; or that at
that date there were not four churchwardens sworn in; in
either of which cases the certificate would be signed by a
majority of the parish officers : such presumption should
now be made.
Sclwyn and Ponlter, in support of the order of sessions,
were stopped by the Court, who desired to hear
Dumpier and Sir George Grey, contri. Every possible, or
The KiMO
V.
EASTKR TERM, XI GEO. IV. 691
at laast every reasonable intendment ought to be made in isso.
favour of a document so ancient as the certificate in this
case. Now it is possible^ and does not seem unreasonable
after a lapse of more than eighty years, to presume that inhabitants of
there was a re-appointment of four overseers between the
24th of October, 1747, and the 19th of April, 1748, or
that at the latter period two churchwardens only had been
sworn in. Rex v. Catesby (a), and Hex v. Whitchurch {b),
stem abundant authorities for making such a presumption
under such circumstances. It is true, the presumption
which is asked to be made in this case is one of fact and
not of law ; nevertheless it may be made, and therefore in
such a case ought to have been made, even though the pro-
babilities may be against the existence of the fact necessary
to render the certificate valid. In Hillary v. Waller (c)j
where the question was whether a conveyance of a legal
estate ought to be presumed, Sir W. Grant, M. R. saidj
that the ground upon which such presumption proceeded
was, that what ought to have been done must be presumed
to have been done; and that the presumption does not
always proceed upon the belief that the fact presumed has
acCually occurred ; for that grants are frequently presumed|
as Lord Manffield said in Eldridge v. Knott {d), merely for
the purpose and upon the principle of quieting possession.
Bayley, J.(e) — ^This case appears to me too plain for
argument. It is an attempt to carry the cases of Hex v.
Caiesby (f) and Rex v. Whitchurch (g) to an extent at once
cforeasonable and absurd. In the latter of those cases the
certificate described four persons as churchwardens and
(a) 4 I>. & R. 434; 2 B. & C. (0 Lord Tenlerden, C. J., was
614 ; 2 I>. & R. Mag. Ca. 278. sitting at nisi prius at Guildhall.
(b) 1 M. & R. 473; 7 B. & C. (/) 4 D. & R. 434; 3 B. & C
57S; 1 M. & R. Mag. Ca. 167. 814; 2 D. & R. Mag. Ca. 278.
(c) 12 Vcsey, juo. 862. (g) 1 M. & R. 478; 7 B. & C.
(d) Cowper, 215. 673 ; 1 M. & R. Mug* Ca. 167.
Y Y 2
692 CASES IN THE KING's BENCH,
1830. overseers of the parish, but was signed by only three of
^'^"^'^"^ them ; by one Piper, as churchwarden, and by two others
^ as overseers. It was proved by the visitation books, that
Inhabitants of in the year 17^8 the two churchwardens were swora in
' after the date of the certificate, and it was therefore con-
tended that Piper, the party who had signed the certificate
as churchwarden, was not at the time churchwarden de
jure, and therefore that the certificate was not binding upon
the parish. It was further proved, that from 1751 to 1758
no churchwardens were sworn in ; but the parish who had
granted the certificate had, from the year 1758, to the time
when the order of removal was made, treated it as valid,
for they had relieved the pauper while residing in another
parish* The sessions having found in favour of the certi-
ficate, this Court held, that it might reasonably be pre*
sumed that Piper, after his nomination in 1758, and before
he did any act as churchwarden, had gone to the commis-
sary, and had been sworn into office before him ; and, under
the circumstances of that case, such a presumption was
not unreasonable, for it was not inconsistent with any other
fact. In Rex v. Catesby {a), the certificate, which by law
should have been signed by a majority of the parish oflScers,
purported to be signed by only one churchwarden and one
overseer; therefore, if there were two churchwardens and
two overseers in the parish, that certificate was bad. The
sessions having presumed in favour of the certificate, it was
referred to this Court to say whether there could be any
state of facts that would make it a valid certificate, and
they decided that it might be valid on two grounds. By
custom there might have been only one churchwarden in
the parish, and the sessions might have presumed that only
one was appointed : or, they might have presumed, that
two overseers were originally appointed, and that one of
them had died before the certificate was granted. Either
(a) 4 D. & R. 434; 2 B. & C. 814 ; 2 D. & R. Mag. Ca. 278.
EASTER TERM, XI GEO. IV. 693
of these would have been a reasonable presumption under isso.
the circumstances of that case ; but what is the state of ^"^^"C^
- , . . , , , , . The Kino
facts here i Are they such that we must say the sessions 9.
were wrong in refusing to make the presumption which Inhabiiimts of
they were desired to make ? I think clearly not. It is
admitted that the presumption is one, not of law, but of
fact, which in an ordinary case it would foe for a jury to
decide; but it is contended that a jury ought to make such
a presumption, whether they believe the fact really to have
existed or not : and a dictum of Sir William Grants in
Hillary v. Waller (a), to that effect has been cited. From
that doctrine I, for one, ever did and ever shall dissent : I
would never sanction either a court or a jury in presuming
that which they really believe to be contrary to the fact.
Here the fact which we are called upon to presume is not
only* highly improbable in itself, but is totally inconsistent
with other facts which are proved to have existed about the
same time. On the one ground, we are asked to presume,
first, that the four churchwardens were not sworn in, which
would be presuming that they acted in violationof their duty,
when we ought rather to presume that they performed
their duty; or, secondly, that one of them died, — a pre-
sumption which, if to be made at all, ought to have been
made by the sessions, and not by us. But the other ground
is still more unreasonable. It is said, that there was a bad
appointment of overseers, and that, therefore, we ought to
presume a new and valid appointment of overseers before *
the certificate was granted. Now it appears that in the
very next year, a like bad appointment, namely, of five
overseers, was again made; so that if we presume any thing,
we must presume this — that the error in the number of
overseers was discovered and corrected between October,
1747, and April, 1748, and yet that the old erroneous
practice was again resorted to in October, 1748. I can
(«) 2 Ves.juii. 252.
694 CASES IS TH£ king's bench^
1830. see nothing in this case which warrants the presumption of
J^iT^^^ •ny fact necessary to give validity to this certificate, and I
y. cannot say that the sessions ought to have drawn from the
Inhabitants of fo^ts stated any of the conclusions^ which it has been insisted
Upton Gkay. '^
they ought to have drawn. I am, therefore, of opraioa
that the order of sessions ought to be confirmed.
L1TTLBDALE9 J. concurred.
Parke, J. — I am of the same opinion. The doctrine
attributed to the Master of the Rolls in the case oiHiUary
v. Waller (fl) may be correct as applied to the particular
subject-matter which had there been discussed before bim;
but may be utterly inapplicable to the present and many
other cases. A jury, probably, would be directed to pre-
sume, after a long lapse of years, the reconveyance by trus-
tees of a legal estate, without any specific evidence of the
execution of a deed of conveyance — provided there was no
fact in the case tending to rebut such a presumption : but
that would be a very different case from the present, and
here there are facts which rebut the presumptions which
we are asked to make.
Order of Sessions confirmed,
(a) «Ves.jun. 852.
EASTER TERM, XI GEO. IV. 695
1830.
The King v. The Inhabitants of Blackawton.
On appeal by the churchwardens and overseers of the A notice of
poor of the parish of Whitstone, in the county of Devon, a^u/jt^^^^^^
against such parts of the county rate as affected that parish under 55 Geo.
and the parish of Blackawton, the sessions ordered the rate ^yji- either '
to be amended, in the manner hereafter mentioned, subject state in ex-
i_ •• i^ \ • r^ irii- P""®** terms
to the opmion of this Court upon the foltowmg case : — that the ap-
More than fourteen days before the entry of this appeal pe.ll*'"^*^ »g-
■' ^ •' '^^ gneved by the
at the Epiphany sessions, a notice, of which the following rate, or state
is an extract, was served by the appellant parish upon the ^hUih^rfoI-
churchwardens and overseers of the poor of the respondent lowsofoeces-
parish, upon the clerk of the peace for the county, and g^;
upon the hundred constables : — Therefore,
• I 1 • I 1 I 1 s"^h a notice
'' lake notice that vi^e the undersigned, the church- of appeal, stat-
wardens and overseers of the poor of the parish of Whit- '"S' *! ^^®
'^ / ground of ap-
stone, within the hundred of Wanford, in the county of peal, << that
Devon, do intend to enter an appeal at the next general rate^s^un-
quarter sessions of the peace to be holden at the castle of equal and de-
Exeter, in and for the said county of Devon, against the ^uch as the
rate for the said county ; and that our objections to the said appellant pa-
. *' rish IS charged
rate, and our reasons for appealing therefrom, are, that the and assessed
said county rate is unequal and defective, inasmuch as our *"lj t ^^^^ ^\
said parish of Whitstone is charged and assessed in the said portion of the
rate at a higher proportion of the pound sterling, according according\o^'
to the fair annual value of the ratable property therein, than ^^^ fair annual
value of the
ratable pn)pert^ therein, than the respondent parish is charged and assessed in the rate,
in pruportion to the fair annual value of the ratable property therein," is defective and
bad, for not going on to state in the words of the statute, <' than has been fixed and
declared by the justices of the countv, in sessions assemliled, as the basis of the rate;*'
for both parishes might have been valued too low, nnd yet the appellant parish might
have no reason to complain with reference to the basis on which the whole rate was
made.
And where, upon such defective notice, the sessions received evidence of the annual
value of the ratable property in both parishes, and amended the rate by altering the
assessment upon the two parishes according to the annual value so proved, but left the
statement of the annual value of both to remain as before : — Held, that they had acted
without authority, and that their order must be quashed.
Semble, that the sessions might have corrected an inequality in the valuation of the
ratable property in the two parishes, if the notice of op{)eal had been so framed as to
authorize them to receive evidence upon that subject.
696 CASES IN THE KING's BENCH,
3830. the said parish of Blackawton is charged and assessed in
Th K ^"^^ ^^^^ ^" proportion to the fair annual value of the
V. ratable property in such parish."
BlackXtuv! **^'*® *^" fourteen days before the Easter sessions, a
second notice, signed by the churchwardens and overseers
of the poor of the appellant parish, was served upon the
churchwardens and overseers of the poor of the parish of
Blackawton, the clerk of the peace for the county, and the
hundred constables. This notice recited the delivery of the
former, and the entry of the appeal at the Epiphany ses-
sions; it then recited, that at the said Epiphany sessions an
application had been made to the Court to appoint certain
persons to enter upon, go over, and survey the whole of the
said parishes of Whitstone and Blackawton, for the purpose
of ascertaining the fair annual value of the said parishes re-
spectively, and of giving evidence thereof to the Court on
the hearing of the said appeal, and that the Court refused
to make such order, being of opinion that they had no au-
thority so to do. The notice then proceeded as follows : —
" Now we the undersigned, the churchwardens and over-
seers of the poor of the parish of Whitstone aforesaid, do
hereby give you this further notice, that we intend, at the
next general quarter sessions of the peace, to be holden at
the castle of Exeter, in and for the said county of Devon,
to prosecute and try the said appeal against the said rate
for the said county of Devon, upon the grounds and for
the reasons set forth or mentioned in the hereinbefore re-
cited or mentioned notice."
This notice then stated that the parish officers of Whit-
stone had appointed two surveyors (who were named) to
survey the property in their parish, as well as in that of
Blackawton, chargeable to the county rate, in order to
prove, at the trial of the appeal, the fair annual value at
which the parishes ought to be respectively charged id the
said rate ; and it required the parish officers and others of
the latter parish to permit the said surveyors to survey their
EASTER TERM, XI GEO. IV. 697
premises for that purpose, aud called upon them also to i830.
appoint surveyors on their part.
When these notices had been read, an objection was taken
on the part of the respondent parish, that it did not appear gLrcKATTOM^
upon the face of the notices that the appellant parish was
aggrieved by the rate; but the Court over-ruled that objec-
tion, and directed the appellants to proceed. They pro-
ceeded accordingly, and tendered the rate in evidence, for
the purpose of shewing the sums at which the contending
parishes were respectively assessed. The title of the rate
was as follows : —
*^ Devon new county rate of 943/. I4s, S^d., being one
farthing in the pound on the annual value of the county,
amounting to 905,984/. \2s. 4\d., as returned by the several
parishes in the county, pursuant to the 55 Geo. S, c. 5\f
settled and approved of at Epiphany sessions, 1827, and
then ordered to be printed."
The assessment in respect of the said parish of Whitstone
was 3/. 35. 10^., on an annual value of 3064/. ; and in re-
spect of that of Blackawton was 2/. Il5. 5r/., on an annual
value of 2468/. The appellants then called as witnesses
the two surveyors named in the second notice. They had
accurately surveyed the appellant parish. The one valued
the estates and ratable property within that parish at 3766/.,
the other valued them at 3680/. per annum. With regard
to the value of the estates in the respondent parish, one of
these witnesses, in the years 1824 and 1825, had been em-
ployed to survey the greater part of that parish by two or
three private individuals, with a view to the sale of some
property therein ; and he valued the whole parish at 6315/.
per annum. The other witness had surveyed the parish as
well as he could, by riding through the roads and lanes
which intersected it, and he valued it at 6952/. per annum.
No evidence being offered on the part of the respondentS|
the Court took middle sums between those fixed by the two
surveyors as the annual value of the respective parishes, and
amended the rate by equalizing the assessments according to
698 CAS£S IN THE KlNO's BENCH,
18S0. the proportions of the sums so taken (but leaving the an«
-7^" nual value on the rate to stand as before), by reducing the
V. sum assessed on Whitstone to 2/. 1 Is, 4fd.f on an annual
Bi^r^o^^^ value of 3064/,, and by raising the sum assessed on Black-
awton to 3/. 1 5s. 1 \d,, on an annual value of 2468/.
The questions for the opinion of the Court were. First,
whether the notice of appeal was sufficient? Secondlji
whether the Court of Quarter Sessions had any power to
make the amendment above-mentioned in the rate, and
whether they should not have required the fair annual value
of the respective parishes to be returned to them in the
mode prescribed by the statute 55 Geo. d, c. 5 1 ?
Croivder and Escott in support of the order of sessions.
The 6rst objection raised in this case is, that the notice of
appeal is insufficient for not alleging in express terms that
the appellant parish is aggrieved by the rate. There is in
reality no ground for this objection, though it will be en-
deavoured to be supported by two cases. Rex v. Justices of
Essex (a) and Rex v. Justices of West Riding of Yorkr
shire (h), which, however, have no application to the pre-
sent, for they were cases of appeals against orders for di-
verting and stopping up of roads, in which the statutes
giving the right of appeal expressly required the appellant
to state in his notice that he was aggrieved by the order
appealed against (c). The clauses in the statutes giving the
(a) 7 D. & R. 658 ; 5 B. & C. either case exprtttly required ihe
431 ; S D. & R. Mag. Ca. 483. appellant to state io his notice
(6) 1 M. ft R. 547 ; 7 B. & C. that he was a party injured and
678; 1 M. & R. Mag. Ca. 215. aggrieved ; it confined the right of
(c) Which were, in the first case, appeal to persons injured and ag-
the former public Highway Act, grie?ed, and required them to give
55 Geo, Sy c. 8, s. 63 ; and in the notice in writing, without speci>
second a local and personal act, fying the contents of such notice:
6 Geo. 4, c. 3, to which the pro- and the Court held that, under
visions of the late public Highway those circumstances, it was neces-
Acts, S Geo. 4, c. 126, 4 Geo, 4, sary for the appellant to describe
c. 95, and 5 Geo, 4, c. 69, were himself in bis notice as a party
extended. It cannot exactly be injured and aggrieved,
said that the appeal clause in
EASTER TERM, XI GEO. IV. 699
right of appeal in those cases differ from that which gives 1830.
the right of appeal in this case in another respect also, for j^T^"^^
they do not require the appellant to set out in his notice the v.
grounds and causes of his appeal, nor do they specify any qj^^ck^Iwt^^
particular grounds of appeal. But the appeal clause in the
statute bearing upon the present case (a) does specify se-
veral grounds of appeal, and if the appellants have stated
in their notice one of those, from which it must necessarily
follow that they are parties aggrieved, though they have not
in express terms alleged themselves to be so, it would seem,
both upon principle and upon the authority of Rex v. Jus^
tices of Somersetshire {b), that they have done sufficient to
satisfy the statute.
The second objection is, that the sessions had no power
to make the amendment in the rate which they have made,
altering the assessment, but leaving the statement of the
annual value of the two parishes unaltered. The answer to
this objection is, that all the clauses of the statute in which
any reference is made to the annual value of the ratable
property in the different parishes, relate to the power of
the justices to make a new rate for the whole county, and
not to the mode of their determining a question between
two particular parishes in an appeal against particular
portions of a rate. In a case of appeal, the office of the
justices is really no more than this, — to ascertain the just
amount of assessment upon the contending parishes, in pro-
portion to the annual value of the property within the pa«
(a) 55 Geo, 3, c. 51, s. 14. cient, although it was not stated
(h) 7 B. &C. 681, n. In that that the party intending to appeal
case " a notice of appeal against was a rated inhabitant of the pa-
fmerseen* accouniSy merely stating rish or a party aggrieved." It is
that the party intending to try his to be observed, that the case pro-
appeal against the accounts, on the ceeded upon the stat. 17 Geo. 2,
grounds and for the reasons there- c. 38, s. 4, which, in the case of
inafcer set forth, and then speci- ooerseeri accounts, gftve the right
fying the items against which he of appeal to any person having ant^
intended to appeal, and the ob- material objection to the said ac-
jectioo which he intended to make counts, upon giving reasonable no-
to each item^ was held to be suffi- tice.
700 CASES IN THE KING's B£NCH>
18S0. rishes, and to make the rate conformable thereto, — ^^rhich
^]^ " precisely what has been done in this case. It will be
V. said on the other side, that where the question is, whether
Inhabitants of j|,g assessments have been made upon a just estimate of
Blackawton. .
the value of the two parishes, or not, the justices ought to
require the churchwardens and overseers to furnish returns
of the true value of their respective parishes, in the manner
pointed out by the second section of the statute. It is difficult
to imagine how such a proceeding could be productive of
any beneficial result ; for if an appeal were brought upon
the express ground that the value originally returned by the
churchwardens and overseers was an incorrect one, the
calling for a new return would be referring back the same
question to the same parties against whose determination
upon it the appeal was brought* It would be useless, there-
fore, for the justices to call upon the respondents to make
a new return of the value of the ratable property in their
parish, and the appellants have no power to do so ; there-
fore it would be impossible for them, and useless, as has
already been shewn, if possible, to complain of the esti-
mate of that value. It is tlie assessment on their parish
by which the appellants are aggrieved, and their appeal,
therefore, is properly made against that assessment
Praed and Kekewich, contrtL. No answer has been given
to either of the objections arising in this case. First, the
notice of appeal is clearly bad for not stating that the ap-
pellants are aggrieved. They may be able to point out
some inequality in the rate, or some objection to it founded
upon one of the grounds of appeal enumerated in the fourteenth
section of the statute ; but it does not therefore necessarily
follow that they are aggrieved by that inequality, or by the
existence of that ground of appeal. But the statute con-
fines the right of appeal to such persons as have reason to
think that they are, in other words such persons as are»
aggrieved; therefore, upon the principle of the first two
cases cited on the other side, it is incumbent upon the party
■ EASTER TERM, XI GEO. IV. 701
appealing, first, to state that he is, or has reason to think isso.
himself, aggrieved; and secondly, to shew the nature of ^^^'-'^
that grievance. Now here, the appellants do not state that ^,
they are aggrieved, and the facts of the case shew that they Inhabitants of
~ , . , , .. , , / Blackawton.
are not. it appears that the annual value of the ratable
property in the appellant parish is, according to the lowest
estimate furnished by their own witnesses, 3680/. per annum.
The assessment upon them assumes the annual value to.be
only 3064/., and they are rated upon that value. Whatever,
therefore, may be the assessments upon other parishes,
they are not aggrieved, for they are under-rated ; the assess-
ment on them ought, in any view of the case, to be higher
than it is.
Secondly, regard being had to the ground of appeal stated
in the notice, the justices clearly had no power to make the
alteration, improperly called amendment, in the rate which
they did. The ground of appeal relied on is, that the ap-
pellant parish is rated at a higher proportion of the pound
sterling, according to the annual value of their ratable pro-
perty, than the respondent parish. Now the basis of the
rate was one farthing in the pound upon the annual value
of the several parishes in the county, and upou that scale
these two parishes were assessed in regard of their annual
value respectively, as returned upon oath to the sessions.
There is therefore no inequality in the proportion of the
pound sterling at which these parishes were assessed, and
the appellants have failed in making out the ground of ap-
peal stated in their notice : their ground of appeal should
have been, that the value of the ratable property in the re-
spondent parish was improperly estimated in the return,
and was in fact higher than that upon which they were as-
sessed : and. then, if that ground of appeal had been made
out, the justices should first have ascertained the real value
by ordering a new return, as they are empowered to do by
the second section of the statute, and then altered the assess-
ment in conformity with the real value so ascertained. That
and the other sections of the act which relate to the calling
702 CASES IN THE K[KO*S BENCH,
1830. for and making of returns of the annual value, are not con-
fined to the making of an entirely new rate, for they em-
power the justices to call for such returns from time to
Inhabitants of time, as often as they shall deem it expedient, and from
such and so maHj^ p^riibes as they shall deem expedient;
whereas, for the purpose of making an entirely new rate,
they must have returns from every parish in the county : the
object clearly was to give them the power to call for the
returns for both purposes, — for the correcting inequalities
in an assessment previously made, as well as for the making
a new assessment for the whole county.
Bayley, J. (a). — I am of opinion that both the objec-
tions raised in this case are valid, and that the order of ses-
sions, therefore, must be quashed. Upon the first point I
think that the notice of appeal ought either to state in ex-
press terms that the party appealing is aggrieved, or ought
to state that from which it follows of necessity that he b so.
In this case the appellants, by their notice, have not brought
themselves within any of the matters which are specified
in the appeal clause of the statute 55 Geo. 3, c. 51, s. 14,
as grounds of appeal. By that clause parties may appeal
against the rate, first, upon the ground that the proportion
assessed upon the respective parishes is unequal, that is,
not unequal as between any two particular parishes by
means of the ratable property being valued too high or too
loWy but on the ground of general inequality, or of no
fixed rule having been adopted in assessing the sums to be
paid by the several parishes in the county. It is not pre-
tended that this was the real ground of appeal in the pre-
sent case. The second ground of appeal is, that some one
parish has been altogether and without any just cause
omitted from the rate. That was not the ground of appeal ^
here. Then follows the ground of appeal upon which the
notice in this case seems partly, but not entirely or correctly,
to have been foundedj namely, on account of the appellant
(a) Lord Tenterdtn, C. J. was absent.
PQ
EASTER TERM, XI GEO. IV. 703
being rated at a higher proportion of the pound 1880.
sterling, according to the fair annual value of the ratable
property therein, — or on account of some other parish
being rated at a lower proportion of the pound sterling, Inhabitants of
according to the fair annual value of the ratable property
(herein, — than had been fixed and declared by the justices
of the peace of the said county in sessions assembled, as
the basis of the rate for the said county. This probably
was the ground of appeal intended to have been stated in
the notice, and to have been relied on at the trial ; but un-
fortunately the notice has not set out the whole, but a part
only, of this ground of appeal, as it is described in the
statute. It does not state that either the appellant or re-
spondent parish is rated at a higher or lower proportion of
the pound sterling, according to the fair annual value of
the ratable property therein, than has been fixed by the
justices in sessions as the basis of the rate, but merely that
the appellant parish is rated at a higher proportion of the
pound sterling, according to the annual value of the ratable
property therein, than the respondent parish. Now it may
be that both parishes are rated lower than they ought to be,
aud yet that the proportion of the pound sterling assessed
upon them is not unequal, with reference to the suras as-
sessed upon all the other parishes in the county; but that,
if it be so, forms no ground of appeal, because the object
of the statute is, that the assessment upon each individual
parish should be in an equal proportion of the pound
sterling with reference to the value of the ratable property
of all the parishes in the county. That object would be
defeated if the sessions, upon appeal, could alter the assess-
ment upon one parish, merely because the valuation of the
ratable property in that parish was higher than that of the
ratable property in another parish. To lower the assess-
ment on the appealing parish under such circumstances,
would be to do injustice to the other parishes in the county.
One parish is not necessarily aggrieved by being assessed
3t a higher valuation of the ratable property than another ;
704 CASES IN THE KING S BENCH^
18S0. for it may happen, and did in this case, according to the
^ ^ evidence^ that both parishes are rated at a lower sum than
y. they ought to be. The effect of what the justices have
Blackawton. *^^°® ^" ***** ^^^ "» *® make the assessment upon the ap-
pellant parish lower than it ought to be, and so to give a
ground of appeal to every other parish in the county. 1
think that no parish has a right to make a partial complaint
of this nature, and, looking at the facts of this particular
case, I cannot see that the appellant parish has any cause
of complaint at all.
LiTTLEDALB, J. — I am of the same opinion. Whit«
stone would undoubtedly have been aggrieved if it had been
assessed in a higher proportion of the pound sterling than
other parishes ; but that is not the fact : all the parishes in
the county are assessed in one and the same proportion,
namely, one farthing of the pound sterling. With respect
to the notice of appeal, as the fourteenth section of the statute
allows of only certain grounds of appeal therein specified,
the question is, whether there existed in fact any such ground
of appeal as that stated in the notice. The ground stated
in the notice falls within the third, if any, of those specified in
the appeal clause, namely, the parish being rated at a higher
proportion of the pound sterling, according to the annual
value of the ratable property, than that fixed by the justices
as the basis of the rate. Then what was the rate here,
and did there really exist any ground for such an appeal ?
In the rate, Whitstone was assessed at 3/. 3s. ICk/., and
Blackawton at 9,1. I \s. 5d. That was in an equal propor-
tion, one farthing, of the pound sterling, according to the
annual value of the ratable property in each, returned to
the justices. There was, therefore, no pretence for the ap-
peal upon the ground stated in the notice. The ground
relied on at the sessions was, that the valuation of the
ratable property in the appellant parish was too high, and
that in the respondent parish too low ; but that was not the
ground stated in the notice of appeal : therefore the jus-
EASTER TERM, XI GEO. IV. 705
tices were not authorized to enter into the inquiry they did. ibso.
If the notice of appeal had been so framed as to entitle ^-^^/^^^
the appellants to try that question, I think the justices ^.
would have had authority to amend the rate by altering the Inl^abitants of
annual value according to the fact.
Parke, J. — I agree that the order of sessions in this
case must be quashed. I think it is not necessary that the
notice of appeal should allege in express terms that the
party intending to appeal is aggrieved by the rate, but that
it is su£5cient, if it can be collected from the whole of the
notice, that he is in fact so aggrieved. But I am of opinion
that the notice in this case was not so framed as to entitle
the appellants at the sessions to go into the matters which
were relied on as the grounds of their appeal. Assuming
that one parish may appeal because it is rated upon a higher
valuation of its ratable property than it ought to be, it ap-
pears to me that that objection is not properly stated in this
notice of appeal. The appellants object that they are as-
sessed in an improper proportion of the pound sterling, ac-
cording to the annual value of their ratable property. Now
that is not true ; for assuming the valuation of the ratable
property returned to the sessions to be correct, which this
objection does not deny, both these parishes are assessed in
the same proportion of the pound sterling. I think the ses-
sions might, under the fourteenth section of the statute, have
corrected an inequality in the valuation of the ratable pro-
perty, if that question had been properly raised before them ;
and, therefore, if this notice of appeal had been correctly
framed, I should have thought that the sessions had done
right. Here, however, instead of altering the basis of the
assessment, they have altered the assessment itself, and
have thereby done that which, under the circumstances of
this case at least, they had clearly no authority to do.
Order of Sessions quashed.
VOL, V. z z
CASES IK THE KIK0 8 BENCH,
Doe, on the several demises of William Jackson aod
others, v. Roger Hilet.
The statute 59 CjECTMENT, to recover certain premises situate in the
s. 17' vesu in parish of St. Michael on the Mount, in the city of Lincoln.
wid^"^Md ^*^* • "^^ 8"*'^- ^^ ^^^ ^^» before Holroyd, J-, at the
oyeraeeraofa Leicestershire Spring assizes, 1827, a verdict was found
^**bd!>M^ for the plaintiff, subject to the opinion of this Court upon
ipe tosuchpa- the following case : —
applicable to ^^^ declaration contained several demises : one by
the relief of William J acksofi, on the 2d November, 1826; a second
the poor only, , . . , r , »^ n % ■
ar to the pai^ demise, on the same day, by oeth Bramham, churchwa^
Sr^hu'rdi'''*' den of the parish of St Mark, in the said city,. Job Cart-
rate is made Udgt, churchwarden of the same parish, and Samuel Con
wiie^er^oriei- ^^^ Jonathan Damson, overseers of the said parish of St*
Daily vested in Mark ; a third demise, on the same day, by the said parish
benefit of the officers, Seth Brandham, Samuel Carr and Jonathan Da-
parish or not. |,i^„^ omitting Job Cartledge ; a fourth demise, on the
same day, by the aforesaid churchwardens, omitting the
overseers ; and a fifth demise, on the same day, by SelA
Brandham, churchwarden aforesaid.
The following facts were proved on the part of the les*
sors of the plaintiff: —
By indenture of lease, bearing date the 2d of Januaiy,
1786, Richard Gibson the elder, Xti^ Ifti^cAtfuoii, Charles
Matthews, John Jackson, Thomas Stones, John WUkisison,
Joseph Lund, Ralph Bowring, and Jonathan Glenn, de-
scribed in the said lease to be inhabitants, pariabioners,
and feoffees of the parish lands and church lands of and
belonging to the parish of St. Mark, in the city of LiDColo,
and Joseph Smith, churchwarden of the said parish, do*
mised, granted, and leased to Robert Holmes, at well in
consideration of the surrender of the former lease, as for
divers other good causes and considerations therein de-
scribed, as surviving executor and trustee named in the
last will and testament of John Lamb, late of the city of
EASTER TERM, XI GEO. IV.
JLiiDcoln, gentleman, deceased, two messuages or tenements,
and ground thereto adjoining, situate in the said parish of
St. Michael on the Mount, to hold the same to the said
Robert Holmes^ and his assigns, from the 26th day of De-
cember then last past, for and during the term of forty years
then next ensuing, upon such trusts, nevertheless, as were
mentioned and expressed of and concerning the said pre-
miaes, in and by the last will and testament of the said John
Xomfry deceased, paying yearly, during the said term, the rent
of SOs, and two fat crammed capons, reserved by the said
lease to the said Joseph Smith and his successors, church-
wardens of the said parish of St. Mark for the time being.
Part of the said tenements so demised to Robert Holmes
were in the occupation of the defendant, and were sought to
be recovered in the said action. He came into possession
of the premises in 1815, and paid rent for them to Christmas
1825, when the said term expired. The said Seth Brandham
and Jo6 Cartkdge were sworn in as churchwardens for the
parish of St. Mark, on the 5th of April, 1826, and Samuel
Carr and Jonathan Davison were overseers of the said parish
for the year commencing at Easter, 1826. Thomas Sweeting
was tenant of the said demised premises under the lessee.
Holmes, and always paid the reserved rent for the said pre-
mises to the churchwardens of St. Mark for the time being;
and the defendant, Roger Hiley, in the year 1825, paid his
proportion of the said rent for that part of the said pre-
mises in his occupation which was sought to be recovered
ID this action, to William Atkinson, churchwarden of the
•aid parish of St. Mark, at the same time inquiring of the
aaid William AtUnson, whether he was churchwarden of
the parish. There was a churchwarden's book and an over-
seer*! book. The rents were always received by the
churchwardens for the time being, and credit given for them
in the churchwarden's book. Upon the production of this
book, the disbursements stated in it were payments usually
made by the churchwardens ; and the receipts stated were
various reserved out-rents received by the churchwardens,
z z 2
707
1830.
Dos
Jackson
and others
V.
HlLBT.
708 CASES IN THE KIN6*S BENCH,
1830. a sum of oL I7s. 3d*, collected as a church-rate, and a sum
N^^r%^ ^f Qi^ received from the overseers of the poor. .
(/. Ill the latter part of April, 18£6| possession of the pre-
Jackson mises in the occupation of the defendant was demanded in
and others ^
V. the name and on behalf of the. said churchwardens and
UiLET. overseers of the parish of St Mark, when the defendant
refused to deliver up possession, denying that he held any
property belonging to the said parish. All the lessors
mentioned in the said lease died before the. year .1826.
John Jackson survived the rest, and died on the. £7tfa of
March, 1825. John Jackson, by his will, dated the 14th
of February, 1825, previous to the death of one of the said
lessors, devised all his lands, tenements, hereditaments,
and premises to his brother, ffilliam Jackson, who is not
his heir at law, being of the half-blood, who is one of tbe
lessors of the plaintiff, his heirs, executors, administrators
and assigns, subject to the payment of his just debts.
The question for the opinion of the Court was, whether
the plaintiff was entitled to recover ; if so, the. verdict was
to stand ; if not, a nonsuit was to be entered.
The case was argued on a former day in this term, by
Amos, for the plaintiff. First, the second demise, by tbe
churchwardens and overseers of the parish for the time
being, is supported by the facts stated in the case; and
upon that demise, even abandoning all the others, the plain-
tiff is entitled to retain the verdict. By the statute 59 G. 5,
c. 12, s. 17, it is enacted, '^ that all buildings, lands, and
hereditaments, which shall be purchased, hired, or taken
on by lease, of the churchwardens and overseers of the
poor of any parish, by the authority and for any of the pur-
poses of this act, shall be conveyed, demised, and.asaared
to tbe churchwardens and overseers of the poor of every
such parish respectively, and their successors, in trust for
such parish ; and such churchwardens and overseers of the
poor and their successors shall and may, and they are
hereby empowered to accept, take and hold, in tbe nature
. EASTER TERM, XI GEO. IV.
of a body corporate, for and on behalf of the parish, all such
buildings, lands and hereditaments, and also all otl$erh\xM'
ings, lands and hereditaments, belonging to such parish."
.That section, therefore, vests all parish lands in the church-
wardens and overseers. It will be contended on the other
side, that the statute has reference only to lands held for
the benefit of the poor, and does not extend to lands ap-
plied in aid of a church-rate, nor, consequently, to the lands
in question. But the enacting words of the seventeenth
section are of the most general and comprehensive kind,
and cannot be controlled by narrower and more limited
expressions in the preamble and earlier sections of the act,
unless the mischief to be remedied were different in the
case of these two different species of parish property.
Now the mischief was precisely the same in both cases,
and the argument alluded to must fail. Besides, the lan-
guage used in the seventeenth section of the present sta-
tute, contrasted with that adopted in the twenty-first section
of the prior statute, '22 Geo. 3, c. 83, explains the force of
the general expressions now relied upon, and shews the in-
teation of the legislature in the adoption of them. In Phil-
lips v. Pearce{a), where it was decided that churchwardens
ahne, without tKe co-operation of the overseers, could not
grant a lease of parish lands under 59 Geo. 3, c. 12,s. 17, the
lands in question were church lands, the rents of which had
always been applied in aid of the church-rate ; but that
objection was not raised either at the bar or by the bench,
and Abbott, C. J., in his judgment, described the section
as applying to all lands belonging to the parish. It may
be. said that the lands now in question are trust property,
and that the statute ought not to be so construed as to in«-
terfere with property of that nature. But the facts stated
in the case do not go the length of proving that the donor
of these lands ever appointed trustees, for the parties to
the lease of 1786 are described as feoffees of all the parish
lands. Besides, even if these lands were originally vested
709
1830.
(a) 8D.&R.43; 5 B. & C. 433.
710
1830.
CASES IN THE KING S BENCH,
in trustees, it may be gathered from the statement of tlie
case, that all the trustees were dead, which would be a
very sufficient reason for giving as wide a coiistructioB to
the act as the obvious meaning of the words will justify ;
for the difficulty of finding the heir of the surviving tmsfeee
of parish property was a very just ground for the inter-
fereuce of the legislature ; and it appears from the year-
books, 12 H. 7, £9 b,, and 13 H. 7, 10, that traatees for
similar purposes had frequently been created in that reign^
the heirs of whom it would be extremely difficult to traos
at the present time.
But, secondly, the first demise may be suj^MMrted. The
case of Swifi d. Neale v. Roberts{a), which has generally
been considered as determining that the will of a joint
tenant is not good, though the joint tenancy be severed be-
fore the testator's death, and, that a joint tenancy b not
devisable, was decided upon several grounds perfecdy ap-
plicable to the circumstances of that case, but equal^ in-
applicable to those of the present. A joint tenant has a
valuable, though a contingent interest, and under the first
statute of wills, 32, H. 8, c. 1, his power of devising that
interest would appear indisputable. Then the second
statute of wills, 34 & 35 jFf. 8, c. 5, was merely explana-
tory of the first, and ought to be construed liberally, and
with reference to those existing customs upon whi^ at
models, the statutes of wills were framed. The custom in
this particular is recorded by Perkms(b), who gives it as
his opinion, that if a joint tenant makes his will, and after*
wards survives his companions, then, by custom, such de-
vise is good; and, in Bacon'* Jbridgemeni{c)y it is ex-
pressly laid down, that a joint tenant may devise die inSerest
which is contingent on his survivorship. With respect to
this devise being subject to the payment of the testator's
debts, from which it may be argued that trost property will
not pass under such a devise, the answer to such an argn*
(a) 3 Burr. 1488; Ambler, 617;
1 W. Bl. 476.
(b) 96 b. title, DevisCf s. 500.
(c) Tii3iQfJdiit'tenani.
EASTER TERM^ XI GEO. IV. 711
fluent 18, that it was for tbe defendant to shew that the tea- 1830.
tator had other lands^ besides trust lands, upon which the
detite would operate, before he could bring the case within
the operation of the authorities bearing upon this particu*
lar point.
N« M. Clarke, contrd, was desired b; the Court to con-
fine hii argument to the question upon the second demise.
-*The second demise cannot be supported. It appears
dearly, from the facts stated in the case, that the lands in
question, though parish property, were trust lands, vested
in specific feoffees or trustees ; and, that the proceeds of
those lands were not applicable to the maintenance of the
poor, or to tbe general purposes of the parish, but solely to
those purposes for which church rates are levied ; in either
of which cases the statute 59 O. 3, c. H, s. 17« under
which it is contended that this demise may be supported,
will not apply.
Rrst, the statute does not apply to parish property which
is vested in specific feoffees or trustees. A statute having
such an application would necessarily involve an interference
with the will and intention of the donor, who has selected
tbe persons whom he chose to be the trustees of his bounty;
there is nothing in this statute to shew that the legislature
contemplated such an interference, and it cannot be pre-
sumed that they did so. The object of this statute was,
lo remedy Uie inconvenience which had been often expe-
rteaced where persons were in possession of parish houses
and lands, to which no one could make a legal title, and
who conM not therefore be dispossessed. But in this case
tbere could no such inconvenience arise, for there could be
no difficult here in finding the heir at law of the surviving
feolKee or trustee, and bringing an ejectment in his name.
Secondly, the statute relates to such property only as
is applicable to the maintenance of the poor and the gene-
ral purposes of the parish. It is entitled ** An Act to amend
die lawa for the reUef of the poor" The preamble recites
712
1830.
CAJSES IN THE KINGS BENCU^
that It is *^ for the better and more effectual execution of
the laws for the relief of the poor.^ The eighth section
enables the parish officers to alter or enlarge any messuage
or tenement *^ belonging^^ to the parish, for the purpose of
making it a workhouse. The ninth section enables them
to sell and dispose of any houses or tenements, with the
site thereof, '* belonging*' to the parish, and to apply the
proceeds in procuring a new workhouse. The twelfth sec-
tion enables them to take into their hands any land or ground
which shall '* belong" to the parbh, or to the churchwar-
dens and overseers thereof, or to the poor of the parish, and
to employ the poor in cultivating it on account of the parish.
And the thirteenth section enables them to let any portion
of '* such parish land as aforesaid" to any poor inhabitant
Looking at these provisions, and the peculiar language of
them, can it be said that the legislature intended to autho-
rize the diverting from the use for which it was given to the
parish, property in which the parishioners have an interest,
but which was not intended by the donor to be applied,
and was never, in fact, applied to the use of the poor i Many
parishes have large funds which have been bequeathed to
them for the purpose of effecting specific public objects,
such as repairing churches, erecting and repairing bridges,
supporting schools, 8cc. Can it be contended that the
legislature intended to authorize the seizing those funds,
and applying them in ease of the poor-rate? If not; if
those questions must be answered in the negative, as they
must be, then the words '' belonging to the parish," must
mean belonging to it for the use of the poor: and the se-
yenteenth section, which is relied on for the plaintiff, only
vests in the parish officers property '' belonging to the
parish," which therefore means property belonging to the
parish for the use of the poor. Some reliance has been
placed upon the wording of the seventeenth section, which
vests in the parish officers, first, '* all such buildings, lands,"
See., and afterwards, ** all othet* buildings, lands,'* See. ^' be-
longing to the parish.*' But a reference to the early part
.EASTER TERM, XI GEO. IV.
of that section will clearly shew that *' all such buildings/'
&c.y means all buildings, &c., " which shall be purchased,
hired, or taken on lease" by the parish officers ; and con-
sequently, that *' all other buildings/' &c., must mean all
buildings, Sec., belonging to the parish, but neither ptir^
chased, hired, or taken on lease by the parish officers ; leav-
ing wholly untouched the question, whether the words
" belonging to the parish** do, or do not, relate exclusively
and solely to such property as belongs to the parish/or the
use of the poor.
Cur. adv. vult.
713
1830.
Lord Tenterden, C. J., now delivered the judgment
of the Court in the following terms : — We have considered
this case, and are of opinion that the lessors of the plaintiff
are entitled to recover upon that count of the declaration in
which the demise is laid to have been by the churchwardens
and overseers of the parish of St. Mark, in the city of Lin-
coln. The premises in dispute were, undoubtedly, held
by that parish for parish purposes. It was contended, on
the part of the lessors of the plaintiff, that the premises
were vested in the parish officers of that parish by the
statute 59 G. 3, c. 12, s. 17. On the other hand, it was
insisted, on the part of the defendant, that that statute did
not apply to this case, for two reasons ; first, because the
persons in whom the legal estate was vested were trustees
only ; and, secondly, because the rents and profits of the
premises sought to be recovered, were applicable, not to
the relief of the poor, but solely to those purposes for
which the church rates were levied. Upon the first of
these objections we are of opinion, that there is nothing in
the act of parliament to prevent property held by trustees
for the benefit of a parish from vesting in the officers of
that parish, and that it would be very inconvenient that it
should be so. It is often difficult for persons claiming
under an ancient trust, where the trustees are numerous,
to ascertain who was the last survivor of those trustees;
714
1830.
CASES IN THE KIKO's BENCHj
and eteD if they succeed in aBcertainiDg that fact, it is ofteo
no less diflSicuIt for them to shew who is the heir at law of that
survivor. Property vested in trustees for the benefit of the
parish seems to us to be equally within the mischief con-
templated by the legislature as property not so vested.
Upon the second question — whether the statute 5^
G. 3, c. 12, 8. 17> extends to property, the profits of which
are applicable to the purposes for which a church rate is
made, or is confined to those which are applicable solely to
the relief of the poor — it is undoubtedly true, that the
primary object of the statute, as appears from the title, the
preamble, and most of the early clauses, was the amend-
ment and better and more effectual execution of the laws
for the relief of the poor. But the seventeenth clause goes
much further. It enacts, that all buildings, lands and here-
ditaments which shall be purchased, hired, or taken on
lease by die churchwardens and overseers of the poor of
any parish, by the authority, and for any of the purposes of
that act, shall be conveyed, demised, and assured to the
churchwardens and overseers of the poor of every such
parish respectively, and their successors, in trust for the
parish ; and such churchwardens and overseers of the poor,
and their successors, shall and may, and they are thereby
empowered to accept, take and hold, in the nature of a body
corporate, for and on behalf of the parish, all such buildings,
lands and hereditaments, and also all other buildings, lands
and hereditaments belonging to such parish. The latter words
are most general, and comprehend all buildings, lands and
hereditaments belonging to the parish ; and although the
relief of the poor may be the primary object of the statute,
we think the safest course for us to adopt, in constming
this particular portion of it is, to give full effect to that ge-
nerality of expression ; there being nothing to shew that
lands or buildings applied in aid of the churcb-rtte, do not
require the aid of this provision, as well as those which are
applied to the relief of the poor. In both cases there
is die same difficulty in discovering in whom the hgA
EASTER TERM, XI GEO. IV.
estate in the premises belonging to the parish is vested, and
that was the mischief which, by the seventeenth section,
the legblature intended to remedy ; and we see no groand
for doubting that the operation of that section was intended
to be co-extensive with the mischief. This being our opi-
nion, the postea mnst be delivered to the plaintiff.
Postea to the plaintiff.
The Kino v. The Inhabitants of South Newton.
Two justices, by their order, removed Thomas Brown, his A pauper was
wife, and their three children, from the parish of Woodford ^^ for eleven
to the parish of South Newton, both in the county of months. At
Wilts; and the sessions, on appeal, confirmed that order, time he was
subject to the opinion of this Court upon the following biredforone
case : — the course of
The pauper, in 18«3, while single, was hired as shepherd ^^'^r^**)* ^
by the tenantry farmers of the manor of Lower Woodford, go on again
Sot eleven months, at 145. per week, and was to have a terms." He
piece of land called the *' Shepherd's Croft," which was to continued in
the service
make up money as good as l6s. per week, to keep cer- two years un-
tain sheep belonging to them, called the tenantry flock, J^^^i**?^'
Payment of his money wages was made quarterly by the the last was a
general hiring,
under which the pauper juainod a settlement.
A paaper was hired as shepherd by the tenantry farmers of a manor, to keep the
temmtry flock, at 14t. a week, and was to bare a piece of land, called the ** Shepherd's
Croft,'' which was to make up money as igood as ICU. a week ; and be served a year
under that hiring. Tlie tenantry farmers were leaseholders and copyholders of the
BMnor. By acreemeDt of 1799, between the lord of the manor, bis lessee of the manor,
and the leaseholders and copyholders of the manor, arbitrators were appointed for
dividing and allotting the open fields and downs within the manor, among the lessee
and the leaMholders and copyholders of the manor, in lieu of the lands they had in the
manor. Tlie arbitrators allotted to the lessee of the manor, in trust for the shepherd of
the tenantry flock, in lieu of lands in the manor held by custom by the shepherd, the
piece of laod called the '< Shepherd's Croft," which the pauper had when he was hired
as shepherd, and he occupied part, and let off part to a tenant, during ail the time he
served as shepherd : — Held, that the pauper took die land in his character of servant,
in Ilea of wages, and therefore that he gained no settlemflot by estate.
716 CAS£S IN THE KING's BENCH,
1830. teDaDtry fanners. The pauper, after serving eleven mouths,
Ji^*X^ was hired aeain for one month. Before the end of that
The King , , ^ , . ,
V. month, the pauper was hired ''to go on again upon the
^°^ &!^H^ ^^ '*™® terms." He served a year under this last hiring, and
NEWToy. slept the last forty nights at South Newton, the appellant
parish, having married in the course of that year. The
tenantry farmers above mentioned are leaseholders and
copyholders of the manor of Lower Woodford. By agree-
ment under seal, of i2th June, 1799» the parties to which
were the Bishop of Salisbury, lord of the manor of Lower
Woodford, the leaseholders and copyholders of that manor,
and William Beckford, of Fonthill Gifford, Esq., who then
held the manor under the Bishop for three lives, reciting
(among other things) that the leaseholders and copyholders
were entitled to divers lands within the manor, by virtue of
the several leases and copies to them thereof granted, arbi-
trators were duly appointed for dividing and allotting the
open and common fields and common downs within the
manor. The powers of these arbitrators were, to set out,
ascertain and allot the said opdn and common fields and
common downs, so intended to be divided and allotted as
aforesaid, unto and among the said William JBeckford, in
respect of such lands as he had in hand or at rack-rent, and
the several leaseholders and copyholders entitled to or
interested in the same, in proportion to their several and
respective shares, interests and properties in and over the
said open and common fields or downs. They were also
empowered to set out ways, and in some respects to direct
the course of husbandry. And it was agreed that the per-
sons to whom allotments should be made, should be pos-
. sessed of them for the same estates, terms and interests,
and subject to the same rents and services, as the several
lands in lieu whereof such allotments should be made, were
subject to. Neither the shepherd of the tenantry farmers
at that time, nor the pauper, Thomas Brown, was a party
to the agreement.
The arbitrators appointed by the agreement made an
EASTER TERM, XI GEO. IV. > 717
award, dated 10th October, 1808, Mphich has been acted on 1830.
ever since. 'tIT^^'^
By the award, among other allotments, they allotted to «.
WiOiam Beckford, Esq., lord or farmer of the manor, of ^"*'*^J,"^'|J*^^
Lower Woodford, in trust for the shepherd or keeper of Newton.
the common sheep flock of Lower Woodford, for the time
being, in lieu of lands in the common fields, held by cus-
tom by the said shepherd, *^ two allotments of land, that is
to any, one piece of inclosed pasture, marked V, containing
thirty perches, and one piece of inclosed arable land, marked
V, containing three roods and twenty-five perches; the
shepherd for the time being keeping the fences of the same
in repair."
This was the land which the pauper took when he was
hired as shepherd as above, and which had been possessed
by former shepherds . since the time of the award. The
pauper let part of the land to a tenant from year to year,
for about 5/., and received the rent: a part he always occu-
pied himself, but .never paid rates. He is still shepherd,
and at the time of his removal was resident in Woodford,
and had been so more than forty days. Becoming charge-
able, he was removed, by order of two justices, to South
Newton, without any objection on the part of his masters,
or any interruption to his service, or to his possession of
the said Shepherd's Croft, both of which he still retains.
Bingham and Awdry, in support of the order of sessions.
The sessions came to a right conclusion in this case.
First, there . was a settlement acquired .by hiring and
service in South Newton, where the pauper slept the last
forty nights of his second year's service ; for the hiring after
the eleven months' service and during the one month's
service, was a general hiring; Rex v. Macclesfield {a); the
only distinction between the two cases being, that there
the fairing was '' to stay on an end in the place,", and here it
was/^ to go on again upon the. same terms," which, as re-
(fl) 3 T. R.:76.
718 GASES IK THE KINO's BENCB,
1830. gards the acquisition of a settlement, was no distbction
n^rr^ at all.
The Kixo
V. Secondly, no settlement was acquired by estate in Wood-
^"'^^uTO* ^^^* '^^^ pauper occupied the land either as servant or
Nbwtqv. as tenant, and in neither character was his occupation such
as to confer a settlement. The policy of the law woold
dictate the considering his occupation as referable lo his
character of servant; Rex v. Kektem (a). There the pau-
per, a married man, agreed to serve $» for a year as
labourer, and was to have SO/, a year» a house and garden,
a piece of land for potatoes, the milk of a cow and feeding
of a pig, which were to run on a neighbouring field : he
had the exclusive occupation of the house ; the house was
about 100 yards from the house of &*•: the house was
necessary for the performance of the service, and if the
pauper had not had it, he would have had more wages. It
was held that this was not a coming to settle on a tene-
ment to confer a settlement. Independently of the deci-
sion, the observations of Lord Tenterdm, C.J* (then
Abboii, J.), in that case, are very strong to shew what is
the policy of the law of settlement on this subject He
said, *' I think it is clear that the panper did not come to
settle upon a tenement of lOL a year : and I am glad that
the Court is not compelled to decide that he did, because
such a decision would tend much to deprive a very merito*
rious class of persons, namely, servants in husbandry, of
many comforts which accrue to them from this species of
agreement. A cottage may, of itself, be not worth lOL a
year ; but if it is to be combined with other privileges,
such as are given to the pauper by this contract, in order
to bring the value to that amount, and thereby oonfer a
settlement, I am afraid that farmers will henceforth be un-
willing to grant those additional advantages to servants m
husbandry, lest they should bring so many additional bur-
thens upon the parish. I am very glad, therefore, to find
that the Court is not under the necessity of holding this to
(a)5lLApS«13a.
£A8T£R TERM, XI G£0« IV.
be a setflementi for no probable addition of wages would
afford an adequate compensation in point of comfort for
the loss of those advantages." With respect to the mode v^
of testing whether the occupation be in the character of ^^j^
servant or not, Bay ley, J., in the same case, said, *' I take Nbwton.
the distinction to be this; if the occupation be unconnected
with the service, it will confer a settlement; but if it be
necessarily connected with the service, as if it be necessary
for the due performance of the service, it shall not confer a
setdement**' The test of occupation in the character of
servant therefore is, that the occupation shall be necessarily
connected with the service ; but its conducing to the per-
formance of the service, though a general, is not the only
criterion of such necessary connection. In this case the
occupation was necessarily connected with the service, be*
cause but for the service the pauper would not have ob*
tained possession of the land; if he had not served as shep-
herd, he would never have occupied the land. But if the
pauper did not occupy as servant, he must have occupied
as tenant, — as tenant to those by whom he was hired as
shepherd, and to whom he paid rent in service of the value
of 2s. a week, a value insufficient to confer a settlement. It
cannot be said that be took any legal interest in the land
under the award ; for be was no party to it, and the award
itself was void for many reasons. His payment of rent in
the shape of service, which was equivalent to a payment in
money, shews that the land was not his own, and that some
other person had a beneficial interest in it. Whether that
other person were the lord of the manor, or the copy-
holders, is perfectly immaterial ; the pauper had still but
the same interest, namely, that of tenant from year to year.
The reversioner, whoever be might be, may be considered
as having offered to let the land, and the pauper as having
agreed to take it, at a rent of 2s. per week, payable in
shepherd's service. In that view of the case, the pauper
came to settle upon a tenement within the meaning of the
statute 13 8c 14 Car. 2 ; but the value of the tenement
720 CASES IN THE KING*S BENCH,
1830; being iosofficient, bis occupation of it bas conferred no set-
^^^s^^^ dement upon bim. •
The KtNo
V,
Inhabitants of Merewether, Serjt, and Everett, contrd. With respect to
Newton. ^^^ settlement by biring and service, there is one circum-
stance which distinguishes this case from that of Rex v.
Macclesfield {a), namely, that there the party was hired '' to
stay on an end in his place/' and here " to go on again upon
the same terms.'* Now, if all the terms of the first agree-
ment. were • incorporated in the last, the biring in this
case would not be for a year, but for eleven months only.
[Lord Tenterden, C. J. I think the period for which the
pauper was first hired cannot be considered as one of the
terms intended by the parties ; and then the last agreement
was a hiring for a year.] Then, as to the settlement by
estate, the^ real question is, not whether the pauper occu-
pied the land as servant or as tenant, but whether he had
not such an interest in it as made him irremovable. If,
under the agreement or the award, he had an interest in
the land in his own right, that made him irremovable; and
it is submitted that he had. The occupation of the land in
this case was not necessarily connected with the service; at
least, it was not necessary for the due performance of the
service ; and that is the distinction pointed out in Rex v.
Minster (6), and the case already cited of Rex v. Kel-
stem (c). Could not the pauper have maintained an action
of trespass in respect of his occupation ? It is submitted
that be might, and that is one criterion of his having an
interest in the land in his own right. The interest which
he took was under the award, not under the agreement for
hiring, for the award, and the interest which passed to him
under it, existed long before he came to. settle upon the
land: he took an estate under the award, defeasible upon
bis ceasing to act as shepherd under the hiring. The pau-
per here had at least an equitable estate in the land, and
(a) 3 T. R. 76. (c) 5 M. & S. 136.
(6) 8 M. & S. S76.
The Kma
EASTEK TERM, XI GEO. IV. 721
being resident upon it at the time of Lis removal, he was 1880.
irremovable: Rex y. Owenby le Moor (a). Again, — the
pauper here underlet part of the land, a circumstance, ac- v,
cording to the opinions of Abhoti, C. J., and Holroyd, J., ^^"^^I^^^^^* ""^
as expressed in Rex v. Laketiheath (6), strongly indicative Newton.
of his right to enjoy the property as his own. Still morey
the pauper here was bound to keep the fences in repair^
an obligation which would not attach upon any person
occupyiog merely in the character of a servant. At all
events, the pauper was tenant from year to year, and occu-
pied a year as such ; and that it would seem, upon the
principles laid down by Bayley, J., in Rex v. Herstmon^
ceux (c), would give him a settlement.
Lord Tentbrden, C.J. — I am of opinion that the ses-
sions have come to the right conclusion in this case. I
think it quite clear that the pauper took no interest by vir-
tue of the award or allotment in the land which he occu-
pied. The award itself was void for many reasons, so that
the pauper could not possibly have derived any legal
interest from it, even if he had been a party to it, which he
was not. The only interest which he had, he obtained in
bis character of servant from year to year. If he was
tenant at all, he was tenant only to those with whom he
made the bargain for his service as shepherd, and his enjoy-
ment of the land was in the lieu of wages, which he would
otherwise have received as the remuneration for that
service.
Bayley, J. — I am of the same opinion. The pauper
was clearly settled in South Newton by hiring and service,
and must be maintained by that parish, unless he acquired
a subsequent settlement by estate in the parish of Wood-
ford, which I think he, as clearly, did not. As to the first
(a) 15 East, 356. (c) 7 B. & C. 551; 1 M. & R,
{b) 2 D. & H. 816; 1 B. & C. 496 ; 1 M. & R. Mag. Ca. 140.
5S1; 1 D. & R. Mag. Ca. 433.
VOL. V. 3 A
722 CASES IN THE KINg's BENCH,
1830. settlement this appears; — the pauper was first hired for
eleven months, then for one month, and finally, during that
V, month, to go on again upon the same terms. That last
So^"!!* ^^* ^" indefinite hiring, and, consequently, a hiring for a
Newton, year; and as the pauper resided in South Newton the last
forty days, he was settled in that parish. As to the sup-
posed settlement in Woodford, there is the agreement of
June, 1799; — but what does it amount to? In the first
place, it was binding upon those only who were parties to
it ; and the pauper was not a party to it. Then the effect
of it, where binding, was only this, — that whenever a shep-
herd should be appointed, he should have an allotment of
land for his own use, so long as he continued shepherd : it
did not operate as a conveyance, but merely as an agreement
between the parties who signed it. When a shepherd was
appointed, he took the land, not by virtue of the agreement,
but by virtue of his appointment as shepherd. Such was
the pauper's case. He was hired as shepherd upon certain
terms and conditions, which were pointed out to him. One
of these was, that he was to have Shepherd's Croft, which,
with the money wages of 1 45. a week, was to make it as
good to him as 165. a week. The persons who hired hiro,
therefore, conferred upon him the right to occupy the land;
he did not take it under the agreement, and he had it only
for so long a period as he should faithfully perform the
office of shepherd. His right to hold the land was founded
entirely upon his contract of hiring and service; therefore
he had no estate or interest in the land to entitle him to a
settlement. His settlement, therefore, remains in South
Newton.
LiTTLEDALE, J., Concurred.
Parke, J. — I entirely concur in the opinion that the
sessions were right in the conclusion at which they arrived
in this case. I think it quite clear that the pauper did ac-
quire a settlement by hiring and service in the parish of
EASTER TERM, XI GEO. IV.
123
South Newton, and that he did not acquire a subsequent 1830.
settlement by estate in the parish of Woodford. It has
been argued, in support of the settlement in Woodford, v,
that the pauper took either a legal or equitable estate in ° South*
the land which he occupied by virtue of the award. I am Newton.
decidedly of opinion that he took neither the one nor the
other. The parties to the submission were the Bishop of
Salisbury, Mr. Beckford the lord of the manor, and the
lessees of the manor, the leaseholders and copyholders.
But the shepherd was not a leaseholder or copyholder of
the manor, nor a lessee of the manor. The arbitrators,
therefore, had no power whatever to make any altstment
to him, and pro tanto, at least, the award is void. There
was no occupation by the pauper in his own right. He
had a right, under the contract of hiring, to occupy the
land while he continued shepherd ; but that was not a set-
tlement by estate, but a coming to settle upon a tenement
of less than 10/. a year, by which no settlement could be
gained.
Order of Sessions confirmed.
The King v. The Inhabitants of Wooburn.
SY an order of two justices, Hannah Beal, widow, and a pauper aet-
her four children, were removed from the parish of Woo- a ; "ioJt!??
* A.|in loOO in*
bum to the parish of Chipping Wycombe, both in the closed a piece
county of Bucks; and the sessions, on appeal, quashed from a com-
mon io parish
B., and held and cultivated it till 1827, when he sold and conveyed it to a purchaser.
From 1800 to 1895 he resided out of parish B., but in 1895 he removed into that
parish, and in 1896 built a hut on the land, in which he lived a year and a half. In
1806, 1811, and 1817, the parishioners of B. perambulated that parish, for the purpose
of marking their boundaries, &c., on which occasions they pulled up a portion of the
fence of the land so inclosed by Uie pauper, dug up part of the bank, and rode through
the inclosure. In 1890 or 1892, a similar perambulation was made, and similar acts
done, by direction of ihe lord of the manor. No acknowledgment was ever paid to
the lord of the manor for the land. Held, that there was an adverse possession for
twenty years, and that the pauper gained a settlement by estate in parish B.
3 A 2
724 CASES IN THE KINO 8 BENCH,
1830. the order, subject to the opinion of this Court upon the
V. In the spring of 1800, Darnel Btalj the husband of
^"wwl^uiw**^ ^^^ V^^^^^Hannah Beal, and the father of the other paupers,
being settled in the parish of Woobum, inclosed a small
piece of waste land from a common in the adjoinmg
parish of Chipping Wycombe, and surrounded it by abank,
on which he planted a quick fence. He held and culti-
vated this land) subject to such interruptions as after-men-
tioned, until Christmas, 1827, when he sold it for 10/. and
conveyed it by deed to the purchaser. From the year
1800 to the year 1825, Daniel Beal resided out of the
parish of Chipping Wycombe. In the year 1825 here-
moved to a cottage in that parish, but not on the land in
question. In the year 1826, he built a hut on the land in
question, and was provided with straw to thatch it by one
of the overseers of the parish of Woobum ; and up to the
time of his building the hut he continued to receive relief
from the parish officers of Wooburn. He lived in the hut
a year and a half. In the years 1806, 1811, and 1817, the
parish officers and freeholders of Chipping Wycombe per-
ambulated the parish for the purpose of marking the
boundaries, and asserting their rights of common, by throw-
ing open encroachments on the waste. In the first year
they pulled up a large portion of the fence to the said land
inclosed by Beal, dug up part of the bank, and rode through
the inclosure. In the two subsequent years they made a
large gap in the fence, and again rode through the inclosure
with the same object. In the year 1820 or 1822, but to
which of those years in particular the witness could not
speak positively, a similar perambulation was made bv
direction of the lord of the manor, when similar acts were
done for the like purposes. It did not appear that Dam(*
Beal was present on either of these occasions, nor did i:
appear that any acknowledgment was paid by him to the
lord of the manor, or any other person, during his occupa*
tion of this inclosure, nor that either the commoners or the
£A$T£U T£RM, XI GEO. IV. 725
lord of the manor cooiinenced any action, or did any other isso.
act to assert their rights, except as before mentioned. The
question for the opinion of this Court was, whether, not-
withstanding the interruptions before stated, Daniel BeaL Inhabitants of
t>y his occupation and residence upon the land in question,
gained a settlement in Chipping Wycombe.
X). Pollock and S, Monro, in support of the order of
sessions. Beal did not acquire any settlement by estate in
the parish of Chipping Wycombe, by virtue of his occu-
pation of the land in question, because that occupation was
not uninterrupted, and he never had an adverse possession
for twenty years. The original taking of the land from the
waste was a wrongful act. Beal was interrupted in his
possession four several times; in 1806, 181 1, and 1817, by
persons making perambulations on the part of the parish,
and in 1820 or 1822 by persons making a perambulation
by direction of the lord of the manor. On each of those
occasions the inclosure was in part destroyed, and Beal
was in effect disseised of the land, (if the term disseisin
can be applied to a rightful ouster,) and each subsequent
occupation by him was a new taking, and equally wrong-
ful with the original taking. [Bayley, J. There is no
proof that the profits of the land were taken by the
persons who made any of the perambulations. The acts
done by them amounted to a mere entry, and that, even
if made within twenty years, by the statute 4 8c 5 Ann. c. 16,
8. \6, not being followed up by an action brought within a
year, is no bar to the statute of limitations. Lord Tenter-
den, C. J. If the lord of the manor had brought ejectment,
these acts of interruption would clearly not have been suf-
ficient to entitle him to recover. Parke, J. I doubt very
much whether the lord of the manor could take advantage
of the entries made by the parishioners in 1806, 1811, and
1817; for they were not made for his benefit, but for that
of the parish (a).]
(«) Vide Co. Litt. 245 a, ^8«; 3 Tho. Co. Litt. 18, 57, 72.
WOOBURM.
CASES IN THE KINGS BENCH,
Brodrick and Peake, contri, were stopped by the Court,
TheKiKo ^"^
V.
lohabitants of Per Curiam. — ^The case is too plain for argument There
has been a clear adverse possession for twenty years, and
Beal gained a settlement by estate in the parish of ChippiDg
Wycombe.
Order of Sessions quashed.
Tlie King v. The Inhabitants of Langriville.
A paaper was BY an order of two justices, Edward Ewer by and his
as labourer, at ^^^^ yitte removed from the parish of Langriville to the
thirty guineas parish of Stickney, both in the parts of Lindsey, in the
a year, to have "^ ^x- , . , • . . j
a house, two county of Lmcoln ; and the sessions, on appeal, quasbea
Trol^Id o * M- *® order, subject to the opinion of this Court upon the
utoes. After following case : —
was made" his '" ^^® ^^^^ 1800, the pauper became a confined labourer
master said he to a Mr. Dickenson^ in the parish of Langriville ; he was to
might have the ... . , . , .
milk of a cow, have thirty guineas a year, a house, two gardens, and a rood
and shortly Qf potatoes. After the bareain was made, his master said
after going "^ . . **
into the ser- he might have the milk of a cow ; and shortly after going
the^miTk of a ^°^^ ^^® service he had a cow, which was fed upon a close
cow, which of his master's during that season of the year when cattle
master's close ^^^ pasture fed. The value of the house, gardens, and the
during that tooA of potatoes was under 10/. a-year, but with the ad-
year when dition of the keep of the cow upon the land, amounted to
cattle are pas- more than that sum. The Court of Quarter Sessions were
turefed. Ihe .
value of the of opinion that the pauper gained a settlement in Langri-
a d*roud of"*' ^^^^* ^^ residing there more than forty days, and occupying
potatoes, was as above stated.
under \0L a
year, but with
the keep of the jv. R. Clarke and Hilduard, in support of the order of
cow upon the . . -^ • , - , , ,. . .
land was above sessions. Ihe sessions were right in holding that the
that sum :
Held, that the pauper did not acquire a settlement by the occupation of a tenement nf
the yearly value of 10/.; for it was no part of the contract that he should bsFC tlie
milk of a cow, and even if it had been, it was no part of the contract that the cow
should be pasture fed.
EASTER TERM, XI GEO. IV. 727
pauper acquired a settlement in Langriville. Rex v. Ben" 1830.
neworth(a) is a direct authority in favour of their decision. Ji^„
fr» . 1 ±ae Kino
There the pauper was hired for a year, and had by agree- v.
ment a house and garden, a rood of potatoe land, and the J^jJ^^j^^^
keep of a cow on his master's land. After the pauper had
served two years, his cow failing in milk, he had, in lieu of
the cow, two heifers kept for him, through the kindness of
his master, and not in consequence of any bargain. The
potatoe land and the two heifers were of the annual value
of 10/. ; but the potatoe land and the keep of the one cow
were of less annual value than 10/. It was held that the
keep of the two heifers was a tenement. It was no part
of the contract in that case that the heifers should be pas-
ture fed ; and it will be contended, on the authority of the
subsequent case of Rex v. Thornham (6), that the contract
in this case should have contained a stipulation for the milk
of the cow, and that the cow should be pasture fed. It
must be admitted that the decision in Rex v. Thornham does
go that length, and that if that case is to be considered as
over-ruling Rex v. Benneworth, it must be part of the
contract that .the cow shall be pasture fed. But Rex v.
Benneworth was decided after full argument and consider-
ation, and cannot be considered as over-ruled by Rex v.
Thornham^ for it is not mentioned in it. But admitting
that, for the purpose of a settlement in this case, it must
have been part of the contract that the cow should be
pasture fed, still it is not necessary that that should be
expressed in the contract. The contract must be presumed
to have been made in conformity with the usage of the
country ; and where that usage appears, must be so con-
strued. Now it is the usage in that part of the country
where this contract was made, that during a certain portion
of the year cattle shall be pasture fed, as appears by the
words in the case, " during that season of the year when
cattle are pasture fed." In hiring a servant, it need not be
(a) 4 D. & R. 355; 2 B. & C. (6) 9 D. & R. 752; 6 B. & C.
775 ; 2 D. & R. Mag. Ca. 319. 733; 4 D. ^ R. Mag. Ca. 494.
CASES IN THE KINGS B£NCH»
expressed that he is to be fed io bis master's house, for
that is taken to be understood, because it is customary.
9. For the same reason it is unnecessary to stipulate that the
L^woimtiR *^^^ ^^^^^ ^^ ^^^ ^° *® master's land, that being customary
also.
Fynes Clinton and Waddington^ contr^. In order to tc*
quire a settlement of this nature, the pauper most be of
right, that is, by the terms of bis contract^ in the enjoyment
of some interest arising out of land of the annual value of
10/. Here the pauper had, by his contract, an interest in
his master's land, but not of the requisite value, for the
permission to have the milk of a cow was a mere act of
favour on the part of his master, which was granted after
the contract was complete, and which might have been
withdrawn at any moment Rex v. Benueworth is perfectly
distinguishable from the present case, for there the two
heifers were merely substituted for the cow, which the
pauper was by his contract erititled to keep on his master's
land. Besides, there is nothing here to shew that the cow
was to be fed on growing produce ; whereas Rex v. SMon
St. Edmund's (a), Bex v. BardweH{b\ and Rex v. Thorn-
ham^ are direct authorities to shew that there must be an
agreement, or at least an undertaking, to that effect: and
this defect is not supplied by the fact found, that the cow
was actually so fed.
The case was argued on a former day in this term, when
the Court took time for consideration ; judgment was now
delivered by
Lord Tbnterden, C.J. — The question in this case
was, whether a settlement was acquired by the occupation
of a tenement of the yearly value of 10/. in the parish of
Langriville. In order to constitute this species of settle-
(a) 2 D. & R. 800; 1 B. & C. {h) 3 D. & R. 369; a B. & C.
656 ; 1 D. & R. Mag. Ca. 434. 161 ; 2 D. & R. Mag. Ca. 53.
£AST£a TEUM, XI GEO. IV. 729
pent under ihe statute 13 & I A Car. 2^ c. 1^ it is neces- 18S0.
sarj that the pauper should have an interest in the subject
of the occupation (such subject being of the requisite yearly v.
value), IIS tenant or occupier^ though it is not necessary that La^omvillb.
he should be under an obligation to pay rent, or that he
should have more than an estate at will ; Rex v. Fit*
longlejfia). It has also been established, by a series of
cases which were considered and confirmed in that of Rex
V. Benneworth (6), that it was a sufficient occupation of a
tenement if the pauper had an interest in a part of the
profits of the land, by perception, by the mouths of his
cattle. But it is essential, whether the subject of occupa-
tion be the land itself, or a part of its profits, that the
pauper should have an interest as tenant or occupier; a
possession by mere licence, without that interest, is not
enough. If a person were permitted by the owner of a
pasture to feed his cow or sheep upon it, for a time, with-
out any valuable consideration, and without reference to
any contract between them, but by a mere act of charity
or favour, no settlement would be gained by such a per*
missive enjoyment of the produce of the land.
But, if there had been a contract with the owner for a
sufficient consideration, by which the pauper had a right to
part of the profits of the soil, to be taken by his cattle, he
would have an interest ; and his occupation with that in-
terest (if those profits were of the requisite annual value),
would confer a settlement after a residence of forty days.
In the case of Rex v. Benneworth^ which was so much
relied on in the argument of this case by the counsel for
the appellants, as an authority to shew that a gratuitous
occupation was sufficient, it appeared that two heifers were
substituted by the consent of the master for the cow which
the pauper had a right, by his contract, to feed on bis
master's land. The pauper in that case, therefore, may be
considered as having had, by the act of the owner of the
(a) 1 T. E. 458.
(6) 4 D. & R. 355; 2 B. & C. 775; 2 D. & R. Mag. Ca.S19.
730 CAS£S IN THE KINg's BENCH,
1830. soil, as much interest in the land by the feeding of the
^^■^^'^'^^ heifers, as he had before by the feeding of the cow. The
The KiKO . ^,. . ^,^.^,r
ff, perception of the larger portion of the profits by the former
Inhabitants of ^^g equally referable to an interest in the land, as that of
Lamgriville. ^ •'
the smaller portion by the latter.
In the present case, however, the sessions have found
that the master gave permission to the pauper to have the
milk of a cow, after the bargain between them had been
completed ; and though it be taken that the cow was to be
fed on the land, and that the master meant at the time that
the cow should be fed on the laud (which, however, does
not distinctly appear, nor is there any thing to shew that be
would not have kept his promise, and even performed his
contract, by allowing the milk of a cow fed otherwise than
on the land), we think this must be considered as having
been done in consequence of a mere act of kindness or
favour on the part of the master, not referable to any con-
tract, and that no interest was thereby acquired by the
pauper in the profits of the land. It follows from this
that no settlement was gained by the pauper in Langriville.
Order of Sessions quashed (a).
(a) A8 to the right of a dairy- c. 45,) sea John Brenfs case,
man to vote as a 50/. occupier Manning's Notes of Revision, 183,
under the 20ih section of the Par- edition of 1836.
liamentary Reform Act, (2 W. 4,
Fisher r. Clement.
Whether CaSE for a libel. The declaration stated the following
OT*printrd"lJy^" matters of inducement, as applicable to all the counts :—
X, concenimg fhat the plaintiflF was a married man, having a wife and
depends not ' eight children: that one John Joseph Stockdate had printed
upon il'® >^ and published of and concerning plaintiff a certain false,
to injure B., &c. libel, containing, amongst other things, the false, &c.
tendency of^ matter following, of and concerning the said plaintiff, setting
the publica- out a libel upon the plaintiff, purporting to be written by
duce the injurious effect.
EASTER TERM, XI GEO. IV. 731
one Harriette Wilson, in which the plaintiff is charged isso.
with immoral and profligate conduct, and is called '' a dirty
nearly six foot Devonshire Lawyer and a wretch.'* That «.
Fisher impleaded Stockdale for the printing and publishing Element.
of such libel. That Stockdale pleaded not guilty. That
a verdict was found for the plaintiff, Fisher, damages,
700/. That the now defendant Clement, contriving to
injure 8cc. Fisher, and to cause it to be believed that he
had been guilty of the misconduct thereby imputed to
him, and that he being such husband and father, was an
abandoned and profligate man, and had been and was fre-
quently engaged in intrigues and immoral connections with
females, did print and publish, and caused to be printed
of and concerning the plaintiff, a certain false, &c. libel,
containing &c., the false, malicious &c. matter following
of and concerning the plaintiff, that is to say — (Here were
set out some doggrel lines, containing a supposed dialogue
between Harriette Wilson and Stockdale, entitled " St-ck-
d-le and Har-riette W-ls-n, a London Eclogue.") The
parts supposed to relate to the plaintiff were these : " With
recent verdicts out of tune — To Fisher** (thereby meaning
the plaintiff) '* Blore, large sums were given,-^To one
300/., t'other seven. — Much St-ckd-le feared lest such
a sample — Make others follow the example. Stockdale —
'T would be too hard to pay for truth. Harriette — But
truth has a far keener tooth — Than falsehood, for we may
despise — What we all know a pack-of-lies. — 1 wrote what
was not only new, — But also in its substance. ..." (There-
by meaning in its substance true.) The declaration also con-
tained two other counts.
The defendant pleaded not guilty, and upon the trial
of the issue before Sest, C.J. at the London sittings after
Michaelmas term, 1826, a general verdict was found for
the plaintiff, with entire damages, upon which judgment
was entered up in Common Pleas. A writ of error
being brought in the King's Bench, this Court reversed the
judgment upon the insufficiency of the second count, and
a venire de novo being awarded, the cause was tried at
732 CASES IN THE KING*S BENCH,
1830. the London sittings after Trinity term» 18£8. It was coor
tended on the part of the defendant, that the tendency
of the publication was to attack Harriette Wilson and
Siockdale, and not to injure the plaintiff. For the plaintiff
it was contended, that whatever might be the intention
of the defendant with respect to Harriette Wilson and
StockdaU, the statement represented in the libel to have
been made by the former — that she could answer Fisher*9
case, and thereby destroy his defence to the defamatory
charge made against him — tended to injure the character of
the plaintiff. In summing up the case Lord Tenterden,
C. J. said, that the question for the jury was, the
intention of the publication ; whether it was intended to
aver the truth of Stockdale*8 libel, and thereby to injure
the plaintiff, or whether the object of the publication was
to reflect on H. Wilson and Stockdale, and whether any
person reading the eclogue would receive an unfavourable
impression of the plaintiff. The jury found a verdict for
the defendant. In Hilary term, 1829» Campbell obtained
a rule nisi for a new trial, on the ground that the intention
ought not to have been left to the jury ; and that they should
have been directed to find for the plaintiff, if they thought
that the tendency of the publication was to injure him.
Scarlett, A. G. and Phtt, (with whom were Dtnman
and Brougham^ now shewed cause. The jury were told
by the learned judge, that if by the publication it was in-
tended to cast a reflection upon the plaintiff, they ought
to find a verdict for the plaintiff, but that if the intentioa
was merely to cast a reflection upon /f. Wilson and Slockr
dale, they ought to find for the defendant. It is true that
the intention of the publisher of a libel is in general an
inference of law, resulting from the nature of the publica-
tion itself. Here the tendency and the intention must be
the same, for the learned judge went on to say, if you
think that any person could receive an unfavourable im-
pression of the plaintiff from reading this libel, you are io
find the verdict for the plaintiff.
EASTER TEKMs XI GEO. IV.
This is no libel. AH that the plaintiff complains of is,
that the persons introduced are made to speak in character,
and be might as well have indicted the printers of the
Bible for saying '' The Fool has said in his heart there is
no God;*' or the publishers of Miltoris Paradise Lost, for
the blasphemous words which the poet has put into the
mouths of his devils. The whole case was before the jury,
and they found that the publication was not libellous.
733
1830.
Campbell and Manning contri. The primary object
of the libel was obviously to attack H. Wilson and Stock-
dale, and from the manner in which the case was left to
the jury by thelearned judge, they would naturally consider
that they were to find their verdict for the defendant^
because, notwithstanding the necessary tendency of the
libel to injure the plaintiff, they may have thought that
such consequence was entirely overlooked by the defend-
anty whilst pursuing his main object of attacking H,
Wilson and Stockdale. With respect to the observation,
that the jury found that the publication was not libellous,
the answer is, that in civil actions the question of libel or
DO libel, is matter of law to be decided by the judge, and
not matter of fact to be ascertained by the jury, (a)
The malicious intention is also matter of law, resulting
from the decision of the question, whether libel or no libel.
Thus, in Bromage v.ProsseriJb), which was an action of
slander for words of insolvency, the jury \i*ere told, that
if they thought the words were not spoken maliciouslyi
though they might unfortunately have produced injury to
the plaintiffs, the defendant ought to have their verdict.
But this -Court granted a new trial, on the ground that a
((/) By S2 Geo. 3, c. 60, (Mr. ment or information. As before
Fox's Act,) it is declared and enact-
ed, that on the trial of an indktment
or information the jury may give
a general verdict of guilty or not
guilty, and shall doc be required
to firid the defendant guilty mere-
ly on proofof publication, and of
the sense ascribed in the indict-
the passing of the act the law was
the same in civil and in criminal
proceedings, guare, whether the
circumstance of its being a dccla-
raiory act makes its provisions in>
any degree applicable to rtW cases.
(6) 6 D.&R. S96; 4 B.&C.
847.
CASES IN THE KING S BENCH,
question of malice ought not to be left to the jury io cases
of slander or libel, except where the publication bears the
character of a privileged communication, which by de-
stroying the implication of malice, renders express malice
necessary to support the action, the existence of which is
a proper matter to be left to the consideration of the jury.
Lord Tenterden, C.J. — The direction to the jury
was substantially correct; and though not expressed with
strict accuracy, would be understood by the jury, who
were not accustomed to technical distinctions, as importing
that they were to find their verdict for the plaintiff if they
were of opinion that the tendency of the publication was to
injure his character. I did not leave the intention of the
publisher, as a distinct question and independent of the
tendency of the publication. I have always thought, and
have frequently expressed my opinion, that a person who
publishes that which is injurious to the character of ano-
ther, must in point of law be considered as intending to
produce the consequences which ordinarily result from
such a publication.
Bayley, J. — The jury were told to consider whether
it was the intention of the publication to injure the plain-
tiff, by representing that the prior libel was true. They
were afterwards directed to find a verdict for the plaintiff,
if they thought that any person reading the publication
would receive an unfavourable impression of the plaintiff.
The jury must therefore have understood that the inten-
tion was to have been collected from the publication itself,
and that was clearly a question for them (a).
LiTTLEDALE, J. coucurrcd.
Parke, J — The direction of the learned judge, though
not critically accurate, was substantially correct. It was
(a) But see Haire v. Wikoriy ante, vol. iv, 605; 9 B. & C. 643.
EASTER TERM, XI GEO. IV. 735
impossible for men of common sense, taking the whole 18S0.
of the direction together, not to understand that the matter
for their consideration was, whether the tendency of the
publication was to injure the plaintiff.
Rule di;scharged.
Mercer v, Oliver Saxby Davis.
Trespass against the high constable of the town and Where (before
parish of Maidstone, for distraining the goods of the ^^^ Municipal
plaintiff, one of the overseers of that parish, for 157/. I65. Id., Corporation
the amount of a rate of 1 Id, in the pound, made on all the 5^5 W.4
ratable property within the town and parish, as a town c. 76,) the
stock or rate in the nature of a county rate. Plea: not borough con-
guilty. At the Kent spring assizes, 1828, a verdict for J^Jroraitun""
nominal damages was taken, subject to the following case: clause, ex-
Maidstone is a corporate town, and was first incor- county magis-
porated by charter, 3 Edw. 6 (1549), and has been so trace, a rate in
, , • . ^ 1 1 - the nature of
contmued to the present time, by nve other charters; viz. a county rate
2 Eliz. (1559), 2 James I (1604), 17 James 1 (1620), "jf|j^jj,fo^^d
(a) Bat now, by 5 & 6 PT. 4, c. 76, s. Ill, ihc jusUces assigned lo keep the ^^ the borough
. magistrates
peace in and for the county in wliich any borough is situated, to which his y^j^r 55 G.
majestjr shall not have granted that a separate Court of Quarter Sessions of the 3 c. 51. (a)
Peace shall be bolden in and for the same, shall exercise the jurisdiction of
justices of the peace in and for such borough, as fully as bj law thej and each
of them can or ought to do in and for the said county; and no part of any
borough in and for which a separate Court of Quarter Sessions of the Peace
shall be holden, shall be within the jurisdiction of the justices of any county
from which such borough, before the passing of the act, was exempt, any law,
tUitute, letters-patent, charter, grant, or custom, to the contrary notwithstand-
ing." And by s. 112 it is enacted, " that within ten days after the grant of a
separate Court of Quarter Sessions of the Peace to any borough, the council of
such borough shall send a copy of such grant, sealed with the seal of the
borough, to the clerk of the peace of the county in which such borough or any
port thereof is situated ; and after the grant of such Court to any borough it
shall not be lawful for the justices of the peace of any county wherein such
borough or part of such borough is situate, to assess any messuages, lauds,
tenements, or hereditaments, within such borough, to any county-rate there-
after to be mode, but every part of every such borough shall thenceforward be
wholly free and discharged from contributing, otherwise than is beremafter
provided, to any rate or assessment of any kind, of and for the cottnt3' in which
*nj part of such borough is situated.*'
736
1880.
CASES IN THE KINGS BENCH,
34 Charles 2 (1682), and 21 Geo. 2 (1747), which hst-
meotioned charter was duly accepted by the inhabitaots
of the town and parish, and after therein reciting that the
town and parish was an ancient and populous town, aod
had enjoyed divers liberties 8cc. by virtue of certain
charters of former kings or queens of England, by the
name of the mayor, jurats and commonalty of the town
and parish .of Maidstone in tiie county of Kent, it was
granted and ordained that the said town and parish should
for ever thereafter be and remain a free town and parish
of itself, and that the inhabitants thereof should be a body
corporate in deed and name, by the name of *' The Mayor,
Jurats, and Commonalty of the King's Town and Parish
of Maidstone, in the County of Kent;" and for the better
preserving and keeping of the town and parish in peace and
good government, it was ordained that the mayor and
recorder of the town and three senior jurats should be
justices to preserve the peace within the town and parish,
and to do and execute all and singular matters and things
which belong to the office of a justice of the peace, in as
ample manner as other justices of the peace for the county
of Kent had been accustomed to do and execute, — that
no justice of the peace of the county of Kent should
in anywise intermeddle within the said town and parish
to do any thing which there belougeth or appertaineth to
the office of a justice of the peace, — that the major,
recorder, and justices of the town and parish, or any three
of them (of whom the mayor and recorder should be two)
should from thenceforth for ever have full power and
authority to inquire of, hear, and determine all trespasses
and misdemeanors whatsoever, arising within the town and
parish, as justices of the peace of the county, or any two
or more of them, might or could do or perform, as well in
as out of their sessions, by virtue of the commission to
them made for that purpose, — so as that they nevertheless
did in nowise proceed to the determining of any treason
or felony, or any other offetice touching the loss of life or
EASTER TERM, XI GEO. IV. 737
niember, without the special mandate of his majesty in that isso.
behalf: And that the said mayor, jurats and commonalty ^^^^^
might take and receive to their own use, all fines, forfci- t>.
tures and issues of jurors for their non-appearance, and Davis.
also fines and forfeitures for trespasses and other mis-
demeanorsi and contempts before the mayor, recorder and
three jurats, justices, from time to time happening, grow-
ing, or arising within the town and parish ; that the mayor
for the time being should be the coroner for the town and
parish; that the mayor, jurats and commonalty should take
and enjoy to their own use, wharfage and anchorage of all
ships and other vessels coming to the town and parish;
that the mayor, jurats and commonalty, or the major part
of them, for the better support of the charges of the town
and parish, or for other reasonable causes or respects, or
for the public good and benefit of the town and parish,
and of the inhabitants thereof, should and might lawfully
from time to time make, impose, and assess reasonable
taxes and assessments upon themselves, and every inhabit-
ant there, and might take and levy the same by distress,
or in any other legal manner as they had theretofore been
used and accustomed; and that the mayor, jurats and
commonalty should and might have, hold, and enjoy from
thenceforth for ever, all such lands, tenements, heredita-
ments, goods and chattels, liberties, powers, authorities,
franchises, immunities, indemnities and free customs, as
the said town and parish, or the then late mayor, jurats and
commonalty before the then late dissolution of the said
corporation or their predecessors, had lawfully had or
enjoyed by virtue of any charters or letters-patent of his
said majesty, or any of his progenitors, theretofore kings
or queens of England, or otherwise, by any lawful means,
right or title whatsoever, although the said franchises,
liberties, immunities, and free customs had not been there-
tofore used, or, it might be, had been abused by them or
their predecessors, and although some of them were, and
others were not, particularly enumerated therein.
VOL. V. 3 b
738
1830.
CASES IN THE KINO 8 BENCH,
The management of the poor of the parish of Maidstone
is by an act of parliament, 20 Geo. 3, vested in certain
trustees, of whom the major and the three senior jurats
(not being justices of the peace for the town), and the
churchwardens and overseers of the poor for the time
being, are part, by whom the rates for the relief of the
poor, and for any other purposes to which they are by
law applicable, are made, and the disbursements super-
intended.
The paving, watching, and lighting the town and parish,
and maintenance of the highways, are conducted by com-
missioners, and paid for by rates appointed and made
under other acts of parliament of 31 Sc 59 Geo. 3, and
those commissioners have erected a watch-house io the
town.
There is a certain bridge in the said town and parish
over the river Medway, the piers, arches, and side walls
of which have been hitherto supported out of the poor-
rates, but the foot and carriage pavements over the same
bridge, ever since the passing the first above-mentioned
Pavement Act, 31 Geo. 3, 179 If have been repaired by
the commissioners under that act, and before then were
repaired by the surveyors of the highways out of the high-
way rates.
Up to 1804 the town gaol consisted of two rooms at
the top of the town-hall, and, with the town-hall, was
maintained by the mayor, jurats, and commonalty, out of
the corporation funds, but in that year the trustees of the
poor erected (the expense of which erection was defrayed
from the poor-rates) a certain building within the walls
of the workhouse premises, and appropriated the upper
part of it to the purposes of a town gaol, and the lower
part to the use of the poor, and from that time the gaol at
tbo top of the town-hall was disused.
In 1824, this last-erected prison being found to be
insufficient for the purposes of the town as well as inse-
cure, the mayor and justices, under the powers aud autho-
rity of 5 Geo. 4, c. 85, entered into a contract with the
EASTER TERM, XI GEO. IV.
justices of Kent for the maintenance of the town prisoners
in the county gaol and house of correction, from the time
of commitment till the time of trial and conviction, or the
discharge of .the prisoners; and the sums payable under
such contract have been paid by the trustees out of the
poor-rates, and such maintenance, on an average of the
last three years, has amounted to the sum of 170/. a year.
And upon this contract being entered into, the above-
mentioned building was disused as a prison, and the whole
of it appropriated to the use of the poor, and no other
prison is now made use of than the above-mentioned
watch-house.
The expenses of prosecutions of prisoners, and of the
witnesses in cases of felony at the assizes, and at the Kent
quarter sessions for offences committed within the juris-
diction of the mayor and justices of the town (which is co-
extensive with the parish) were formerly and till the year
1820 always paid by the treasurer of the county of Kent,
out of the county rate; but about that period the justices
of the county, alleging that the county was not liable to
those expenses, and that they had been paying them in
error, refused to defray them any longer, and from that
time those expenses have been and still continue to be
paid by the trustees of the poor from the poor-rates, upon
the orders of the judges of assize and justices of the county
quarter sessions.
At a general quarter sessions of the peace duly holden
in and for the town and parish of Maidstone on the 26th
October, 1825, before the mayor, recorder, and three
justices of the town and parish, the said mayor, recorder, and
three justices, did order a rate and assessment to be made
upon all the ratable property within the town and parish, as
a town stock or rate, in the nature of a county rate, to be
applied and disposed of in such a manner and for such
purposes as such rate was then or might thereafter be
made applicable to by law, at the rate of three-halfpence
in the pound, upon the sum of 25,249/* 5$., the then
3 b2
739
1830.
740
1830.
CASES IN THE KINGS BENCH,
annual value of ihe said ratable property, amounting to
the sum of 157/. I65. Id.^ and that the constable of the
town and parish, which the defendant then was, should
collect and receive from the churchwardens jind overseers
of the poor of the said parish of Maidstone, the said rate
of 157/. 165. \d., and pay the same into the hands of the
treasurer appointed to receive the same, at or before the
* then next general quarter sessions of the peace to be
holden for the town and parish.
The defendant accordingly, and in pursuance of the said
order, and in the mode prescribed by the act of 55 Geo. 3,
c. 51 (a), s. 12, served a notice in writing upon the plaintiff
(who was then one of the churchwardens of the parish of
Maidstone), requiring the plaintiff, within 30 days of the
receipt of the said notice, to pay out of the money collected
by him for the relief of the poor of the parish of Maid-
stone, the sum of 157 1. iQs. Id. so rated and assessed upon
the parish of Maidstone as aforesaid.
The said sum of 157/. I65. Id. was not paid by the
plaintiff or the other churchwarden, or by the overseers
of the poor of the said parish, within SO days after the
receipt of the said notice.
A summons under the hand and seal of one of the jus*
tices for the town and parish was issued, by which the
plaintiff and the other churchwarden, and the overseers
of the poor of the parish of Maidstone, were summoned to
shew cause why they had neglected and refused to pay the
said rate or assessment, which summons was served upon
the plaintiff.
The plaintiff did not, nor did the other churchwarden
or the overseers of the poor of the parish, attend such
summons, or shew any good cause why they had neglected
and refused to pay the said rate or assessment ; and that
the said justice issued a certain warrant under his hand and
seal, commanding the defendant to levy on the goods and
chattels of the plaintiff, as such churchwarden, the said
(a) The County-Rate Amendment Act.
EASTER TERM, XI GEO. IV.
sum of 157/* 165. Id; so rated and assessed upon the
parish.
The defendant as such constable accordingly executed
the warrant, by seizing and taking the goods. For such act
of levying this action is brought.
Every thing done and executed by the justices and the
defendant, touching the said rate or assessment and levy,
was done and performed properly and legally, provided
the justices had power to make the rate.
Before this action was commenced, a demand in writing
of a perusal and copy of the warrant under which the
defendant acted, signed by thp plaintiff, was made on the
defendant (a); and the same was refused and neglected to
be given by the defendant for the space of six days, nor was
it given at any time before this action was commenced.
This action was commenced within three months from
the time of the making of such distress and levy.
The inhabitants of the town and parish of Maidstone
never contributed to the rates of the county of Kent, and
until the rate in question was made in 1825 upon the
parish of Maidstone, in the nature of a county rate, no
such rate was ever made within the town and parish.
The mayor, jurats, and commonalty have never taken
wharfage or anchorage for ships or other vessels coming
to the town, nor has the clause in their charter for making
rates and assessments upon the mayor, jurats, and com-
monalty, and other inhabitants, been ever acted upon.
741
18S0.
Mercer
V.
Davis.
Manning (with whom was Piatt) for the plaintiff. The 55
Geo, 3, c. 51, s. 24, under the supposed authority of which
this rate was imposed, applies only to particular districts not
being within the jurisdiction of the justices of the peace
appointed for the county at large. In Rex v. W, Clark (b)
{») Under 24 Geo. ?, c. 44>wV/c 67 1 ; 4 B. & Adol. 1 13; Barrons
Price V. Jiie$stvger, 2 Bos. &PuIl. v. Luscombe, 5 N. & M. 330.
158; 3 Esp. N. P. C. 96, 101; (b) 1 Dowl.&R)l.316; SBarii.
Slurch V. Clarke, 1 Nev. & Man. 8c Alders. 665,
742 CASES IN THE KINO's BENCH^
1830. it was held, that die inhabitants of the city of Bath were
liable to be assessed to the Somerset county rate, although
they had magistrates of their own, because those magis-
trates had no jurisdiction in cases of felony ; it was
therefore considered that the jurisdiction of the county
magistrates was not taken away by the charter. Here,
the borough magistrates have no jurisdiction in cases of
felony; such cases^ therefore, may be tried at the quarter
sessions of the county of Kent. Before the case of Rex v.
W. Clark, the Court put a similar construction on 13 Geo.
2, c. 18, s. 7, in Bates v. Winttanley {a). [Bayley, J.
In Rex V. W. Clark the Court only decided that a place
within the county having a separate commission of the
peace^ was not wholly exempt from contribution to the
county rate, except where the separate jurisdiction extended
to all matters to which a county rate is applicable* In JRer
V. Myers (b), which.w&s an indictment against the Secretary
of the division of Kesteven, in the county of Lincoln, for
disobedience of an order made upon the defendant by Mr.
Baron Hoiham, for the payment and expenses of a prosecu-
tion for an offence committed in the town of Stamford,—-
the justices of which had an exclusivejurisdiction, — the Court
held, that the indictment could not be supported, because
the order ought to have been made upon the treasurer of
the town of Stamford, So here, the expenses of prosecu*
tions at the assizes for felonies committed in Maidstone,
may be ordered to be paid out of the town rate* Parke, J.
The charter containing an absolute and unqualified non
intromittant clausci the justices of the county of Kent can
make no rate which shall include Maidstone ; this case is
therefore very different from the Bath case.] The Bath
case was decided on the ground that the city magistrates
had no jurisdiction to try felonies. A similar omission
occurs in the Maidstone charter. The chartered district
(ct) 4 Maule 8c Selw. 429. Rtx v. Treanurer ofBurreg, 1 Qiit.
(6) 6 T. R. S37; and see Rex Rep. 650.
V. Johmonf 4 Maule & Selw. 515;
£ASTER TERM, XI GEO. IV. 743
cannot be exempt from part of the county rale ; it must be teso.
exempt altogether, or liable to the whole, and if so liable,
it cannot be also liable to a rate within the chartered dis-
trict, in nature of a county rate.
Campbell contri was stopped by the Court. He after-
wards referred to Talbot v. Hubble (a).
Bay LEY J. — Weatherhead y» Dretpry (b) establishes, that
where a town corporate has an exclusive commission of
the peace, although it be not a county of itself, the local
magistrate may levy a rate in the nature of a county rate.
There are many purposes to which a county rate is appli-
cable. They are collected in Burn's Justice. Here you
have a charter containing a non intromittant clause. There
is no single act in the character of justices which the
county magistrates can do. If the case of Mex v. fV. Clark (c)
were applicable, we should be driven to consider whether
a rate, in nature of a county rate, could be raised for one
purpose only. But it seems to me that that case may be
distinguished from the present. The magistrates of Bath
had not a general jurisdiction. Here the justices of the
borough, not being county magistrates, were only entitled
to commit to the gaol of the borough. It is said, on the
part of the plaintiff, that the person so committed must
remain in prison for an indefinite time. But the borough
magistrates would have authority to remove such prisoners
to the assizes for trial, and they would be naturally anxious
to remove them ; the argument, therefore, from Rex v. fT.
Clark does not apply. If the town of Maidstone had a
treasurer and rates, — as it ought to have, — then, according
(a) 2 Stra. 1154, where it was 456. As ^o local jurisdiction in
Iield, that county magistrates can- matters of excise, see Xt7c, ex parte,
notactunder 12 Car. 2,0. 83, s. 31, 2 D. &R. 212; Kite and Lane's
and 15 Car.2, c.l 1, s.22, in matters case, 1 B. & C. 103.
ofezcise,within a district having an (6) 11 East, 168.
eicIusiFe commission of the peace. (c) 1 Dowl. & Il^l. 316; 5
And see Rex v. Sainsbury, 4 T.R. Barn. & Alders. 665.
744
1830.
CASES IN THE RINGS BENCH,
to Rex V. JHfi/ers, where expenses were incurred in the pro-
secution of felons, an order would be made upon suck trea-
surer for such payment. In that case, the town of Stam-
ford had exclusive jurisdiction, and it was held, that tbe
order for the payment ought to be made upon Stamford. So
here the order ought to be on the treasurer of Maidstone,
there being a non intromittant clause, and consequently no
power to issue a warrant to levy county rates.
LiTTLEDALE, J. — I am of the same opinion. James v.
Green {a) is an authority to shew that a rate, in nature of a
county rate, may be levied for a town incorporated within
the time of legal memory. That was the case of the town
of Nottingham, which is a county of itself ; but Weather*
heady, Drewry extends the rule to a town-corporate which
is not a county of itself. By the non intromittant clau.se
in this charter the county magistrates have no right to come
into Maidstone for auj/ purpose. All felonies committed
there must be tried at the assizes, unless a special commis-
sion be issued. It seems to me, that if the borough magis-
trates cannot make a rate no one can.
Parke, J. — Here, by charter, there is a commission of
the peace within the borough, and it is clear that the bo-
rough is not subject to the county commission for any
purpose. The words of the charter are very large. Rex v.
W, Clark certainly contains expressions which favour Mr.
Mantnug's view; but the case itself is distinguishable; tbe
Bath justices had no exclusive jurisdiction (6).
(a) 6 T. R. 228. •
{b) And see Hex v. George Shep-
hard(\\\gU constnbleofthe borough
of Marlborough), 4 Ne%'. & Mnnn.
185, 2 Adol. & Ellis, 298; Rex v.
Poslea to the defendant (c).
Theophilus Jeyes, 5 Ner. & Mana.
101, 3 Adol. & Ellis, 415.
(c) Tliis, and the last preceding
case, were decided in Hilary tenn.
EASTER TERM^ XI GEO. IV. 745
1830.
WiNGFiELD and Others v. Tharp.
IHE following case was sent by Sir L, Shadwell, V. C, By an inclo-
for the opinion of this Court :— sure act, com-
•^ ... inissioncrs are
Samuel Hunt was, at the respective times of making the authorized to
surrender and will, and until his death, seised to him and ^|,^ inciJ,Ted°
his heirs, according to the custom of the manor of Ken- l*"<^s »" com-
nett-within-Kentford, in the county of Cambridge, of a mes- rights of com-
suage or farm, house and homestall, and pasture land, con- "*°"' •'^"^ ^**°
taining 1a. 2r. 20p., and of certain open field lands, rights &c. in ex-
of sheepwalk, rights of common, and an old inclosure, otheHands
respectively parcel of and within (a) the said manor, and &c., provided
situate in the parish of Kennett, in the said county. Hunt i^ specified^fn
surrendered his copyholds to the use of his will. thejr award,
T» -11 • • , I « 111 and be made
1813. By will, beanng date 24th August, and duly ex- with the con-
ecuted and attested, Hunt devised unto the plaintiffs all his sent of the
' .... owners. The
copyhold estates; habendum to the plaintiffs and their heirs, commissioners
in trust to sell, with the usual powers for that purpose. uln'^allot-*'^
1813. By "An act for inclosing lands in the parish of »nent to ^. as
Kennett, in the county of Cambridge," — after reciting that in tjyn for his "
the parish there were certain old inclosures, open and com- "S*^^* of com-
% t . . . 1 1 V , '"0">and an
uion fields, common meadows, heaths, and other open and old inclosure
commonable lands and waste grounds, and further reciting %^^lhtf^
that the lands in the said open and common fields lay b^ the commit-
intermixed and dispersed in small parcels, and that the said chanJe!^Th\s
common meadows^ heaths, and other open and commonable award is bad,
lands and waste grounds, in their then state yielded but quires no title
little profit, and were incapable of any considerable im- ^" *^® **^^^"
provement, and that it would be very advantageous if the
same were divided and allotted amongst the several owners
thereof and persons interested therein, in proportion and
according to their respective estates, rights and interests in
the same, and if such allotments were inclosed so far as
was expedient, — Charles Wedge and Edward Gibbons were
thereby appointed commissioners for carrying the purposes
(a) Vide ante, 140 {a), i4^{b).
746
1830.
WiNGFIELD
and others
V.
TUARP.
CASES IN THE KING S BENCH,
of the General IncIo3ure Act and the said act into execu-
tion, subject to the regulations of the General Inclosure
Act (a) in all cases, except where the same were by the said
act varied and altered ; and after giving various directions
to the said commissioners relating to the execution of their
duties under the said act> it was enacted, that the said com-
missioners should then set out, allot and award unto the
several proprietors and owners thereof, and persons 'having
a right of common or other interest therein^ all the then
residue and remainder of the lands and grounds thereby
directed to be divided^ and allotted, in such quantities,
shares and proportions as the said commissioners should
adjudge and deem to be a just compensation and satisfac-
tion for, and to be equal to^ their several and respective
lands, grounds^ rights of common, rights of sheepwalk, and
other rights and interests therein. And it was thereby fur-
ther enacted, that it should be lawful for the said commis-
sioners to set out, allot and award any lands, tenements
and hereditaments, within the said parish of Kennett, in
lieu of or in exchange for any other lands, tenements or
hereditaments within the said parish, or within any adjoin-
ing hamlet, parish or place; provided that all such ex-
changes should be ascertained, specified and declared in
and by the award of the said commissioners, and should be
made with the consent of the owner or owners, proprietor
or proprietors, of the lands, tenements or hereditaments,
which should be so exchanged, whether such owner or
owners, proprietor or proprietors, should be a body or bo-
dies politic, or corporate or collegiate, or a tenant or
tenants in fee simple, in fee tail, or for life, or by the cour-
tesy of England, or for years determinable on a life or
lives, or having a beneficial lease for years, or with the
consent of the guardians, trustees, feoffees for charitable or
other uses, husbands, committees, or attorneys, of or acting
for any such owners or proprietors as aforesaid, who at the
(a) 41 Geo. 3, c. 109. And see the subsequent act of 1 & 2 Geo. 4,
C.23.
EASTER TERM, XI GEO. IV.
time of making such exchange or exchanges should be
respectively infants, femes covert, lunatics, or under other
legal disability, or who should be beyond the seas, or other-
wise disabled to act for themselves, such consent to be tes-
tified in writing under the common seal of every such body
politic, corporate or collegiate, and under the hands of the
other consenting parties respectively; and that all and
every such exchange and exchanges so to be made should
be good, valid and effectual in the law to all intents and
purposes whatsoever: Provided, nevertheless, that no ex-
change should be made of any lands, tenements or heredita-
ments, held in right of any church or chapel, or other eccle-
siastical benefice, without the consent, testified as aforesaid,
of the patron thereof, and of the lord bishop of the diocese
in which such lands, tenements or hereditaments, so to be
exchanged, should be situated. And it was further enacted,
that nothing therein contained should extend to revoke,
make void, alter or annul any will or settlement ; but that
the person or persons to whom any lands, grounds, or here-
ditaments should be allotted or given in exchange by virtue
of that act, should be seised thereof to such and the same
uses, and for such and the same estates, and subject to
such and the same wills, jointures, rents, charges, and in-
cumbrances, and no other, as the messuages, cottages,
lands, grounds, and hereditaments, whereof such person or
persons was seised or possessed at or immediately before
the execution of the award of the said commissioners, or
for which or in respect whereof such allotments or ex-
changes should be made, would have been subject to,
charged with, or affected by, iu case the said act had not
passed.
1814. Samuel Hunt iiied.
1820. The commissioners, pursuant to the directions of
the General Inclosure Act (a), executed their award in
writing under their hands and seals, dated the said 14th
day of July, 18^0; and they thereby awarded and allotted
(a) 41 Geo. d, c. 109, ss. 35, 37.
747
1630.
WiNCFIELD
and others
V.
Thabp.
748
1830.
WiNGFIELD
and others
V,
Thabp.
CASES IN THE KING S BENCH,
amongst other things, unto and for the plaintiffs in the
said award, described as devisees of the said Samuel Hunij
deceased, in lieu of and as compensation for their copy-
hold, open field lands, rights of sheepwalk, rights of com-
mon, and an old inclosure given up by them the said plain-
tiffs, to be allotted by the said commissioners in exchange,
(all of which were copyhold of the mdnor of Kennett-within-
Kentford,) two several allotments of land, therein particu-
larly described, containing respectively 21a. Sr. 37p* and
goA. ]R. iop.
The plaintiffs agreed to sell the two allotments made to
them to the defendant.
The question for the opinion of the Court is, whether
the plaintiffs can make a good title to these allotments.
Preiton, for the plaintiffs. The objection raised against
the title is, that the award of the commissioners is bad.
[Bay ley f J. Suppose this is an old inclosure, the commis-
sioners had no power to award it in exchange.] It is
another question whether the award is void in toto. The
objection amounts to this, that the commissioners had not
power to make an allotment to the plaintiffs in lieu of old
inclosures. But the plaintiffs ought not to be in a worse
condition than if an allotment had been made to them in
respect of their common rights, without reference to old
inclosures ; and supposing the allotment to have been too
large if the old inclosure is excluded, the parties injured by
such excess should have appealed, on the ground that the
allotment was larger than the plaintiffs were entitled to in
respect of their common rights. The award is final against
those who, having the power of appealing, neglect to take
that course. It would be contrary to all justice to contend,
that if one part was not duly allotted, and other parts were
well allotted, the whole should fall to the ground. It is
true that in Cooper v. Thorpe (a). Sir Thos. Plumer, M. R.,
was of opinion that an award under an inclosure act, if bad
(d) 1 Swanst. 105.
, EASTER TERM, XI GEO. IV, 749
in part, was bad altogether ; but in Rex v. Washbrooke (a) igso.
it was considered by Bay ley, i,, and not denied by the rest ^^^^/^^
of the Court, that the award of comuiissioners appointed to ^^^ others
fix and ascertain the boundaries of a parish, as well as to _ v-
. Tharp.
allot common fields, might be bad as to their ascertainment
of the boundaries, without affecting that part of the award
which related to the allotment. This award is not to be
construed strictly. In Rich v. Clarkson {b) it was held,
that no technical form is necessary in awards under inclo-
sure acts, but that it is sufficient if the commissioners sub-
stantially pursue Ihe power with which they are entrusted.
If this was a mistake of the commissioners, and no such
exchange could be legally made by them, that part of the
award may be rejected as surplusage. The Court will not,
upon this trifling error, overset an award upon which the
rights of 500 persons depend. If any person's rights are
improperly dealt with by this award, he has his remedy by
injunction (c). That would be the proper mode of disposing
of the question consistently with the justice of the case.
By setting aside this award, the titles in all districts where
inclosures have taken place would be unsettled.
Rolfe, contr;^. The defendant having contracted to
purchase from the plaintiffs an estate, constituting one
entire property, are advised to take the objection that the
award is not authorized by the act. It is plain, upon the
facts stated, that no title can be made to these allotments.
The plaintiffs have no title, unless the statute, and the
avi'ard purporting to be made in pursuance of the statute,
confer that title. Though this award is made by commis-
sioners having somewhat of a public character, it can be
regarded no otherwise than as the award of private indivi-
duals. So long as the commissioners obey the directions
of the act, their award is final ; but here they have made
an allotment which the act did not authorize them to make.
(a) 7 Dowi. & Ryl. 22 1 ; 4 Barn. (c) It seems difficult to consider
Sc Cressw. 732. that as n good title which requires
(fr) 2 W. Bla. 318. an injunction to support it.
760
1830.
WlNGFIELB
and others
9,
Tharp.
CASES IN THE KING S BENCH,
The act gave them no power to adjudicate upon the rights
of the proprietors ; and if Hunt had brought an ejectment
for the land taken away from him by the awards the action
could not have been defended. If the parties in possession
of the old inclosure were to allege that the commissioners
had awarded the land to the defendant, the answer on the
part of Hunt would have been, that the commissioners had
no authority to make such allotment. If Hunt or his
devisees could maintain ejectment for the old inclosure, it
is clear that the plaintiffs can have no title to the allotment
in lieu of such old inclosure. If the benefit intended to be
given to one party is void, the equivalent must be also
void. In Pope v. Brett (a), where the award was that
Pope should be paid and satisfied by Brett the money due
and payable to Pope as well for task work as for day work,
and that Pope should pay to Brett 251. in full satisfaction
of all demands, and that mutual releases should be executed,
the award was held to be void in toto, for not expressing
how much was to be paid for the task work.
There is no authority given by the act to allot old inclo-
sures, except under the exchange clause. But this allot-
ment to the devisees of Hunt is not really an exchange, —
which is where each of two parties gives his own, and
receives something from the other, — but it is an allotment
for and in consideration of something brought into the
mass.
Then the exchange clause directs that all such exchanges
shall be ascertained, specified and declared in and by the
award, and requires the consent of the owners. Here the
award does not shew how much the devisees take by way
of exchange, and how much as an allotment in respect of
(a) 3 Snund. 29S. And see Ith
gram v. Rauche, H. 18 £.4, fo. 22,
pi. 3, and M. 19 £. 4, fo. 1, pi. 1 ;
Wilmer f. Oldjkld, 1 Leon. 304;
Oldfield V. Wilmore, Owen, 153 ;
Samon v. Pitt, 1 Roll. Abr. 85,
(translated 3 Via. Abr. 85 ;) Bar*
fiey v. FairchiH ibid.; Muncky ?.
Smith, ibid.; Birkt v. Trippeltj 1
Saund. 32 ; Veak v. Warner, ibid.
394(2); Hod$den v. Harridge, 9
Saund. 64; Cqppin v. Humard,
ibid. 127; Cooke v. Whorwood,
ibid. 337.
V.
Tharp.
EASTER TERM, XI GEO. IV, 751
Hunfa rights of common. Then the consent of the re- isso.
spective owners does not appear on the face of the award. ^^^/-^^
This omission is fatal, because the parties may be persons ^^d others
under disability^ who, if the consent required by the statute
has been given, may have their remedy against parties from
whom such consent may have been improperly obtained,
and who, on the other hand, may, if such consent has not
been given, step in at a future period, and assert their
rights against the allottees and those claiming through
them. The Court will not presume consent in support of
the imperfect exercise of a limited authority. The diffi-
culty which presses upon the plaintiffs has long been felt;
and in several acts for inclosing lands in the neighbouring
county of Suffolk (a), clauses have been introduced for the
purpose of obviating the difficulty. The present is an
attempt to avoid the necessity of introducing such clauses.
Prestorif in reply. The plaintiffs do not rely on the
exchange clause. This is different from the case of an
award made between two parties. Who is to impeach the
plaintiffs' title ? If the Court can see enough upon the
face of the award to support it, they will do so. Here the
commissioners say that they make the allotment in respect
of two things ; in respeol of one of which the allotment
might be lawfully made : the Court will therefore presume
that the allotment was so made. [Parke, J. It is much
the same thing as if it was given for land, and a hundred
pounds paid down. It does not appear that there was a
power of appeal.] A power of appeal is given by this act,
though not stated in the special case. If this objection
prevails, the award must be void in toto. [Parke, J. Why
may not the exchange have been made, though not duly
stated on the face of the award ? Lord Tenierdeii, C. J.
The commissioners say there has been an exchange, — why
should we say there has not?]
Cur. adv. vult.
(a) Bartou Mills, Farnham, Freckingham, Higham,Icklington, Risby,
Warliogton.
762
1830.
WiNGFIf-LD
and niliurs
Til A III*.
CASES IN THE KING S BENCH,
The following certificate was afterwards sent : —
" This case has been argued before us by counsel. We
have considered it, and are of opinion that the plaintiffs
cannot make a good title to the allotments therein men*
tioned. Tenteuden.
J. Bayley.
J. Littledale.
I5lh May, 1830. . J. Parke."
Ahhouuh a
prencher at nn
endowed
mcetiii»-liousc
have such nn
interest in the
office and its
emoluments
as will entitle
him to a man-
damus if dis-
turbed in the
use of the
pulpit, he has
not such a
legal interest
in the endow-
ment as will
entitle him to
retain posses-
sion against
the trustees
of such en-
dowment.
Doe deni. Evans and others v. Jones and others.
ELlECTMENT for a chapel, dwelling-house, and stable,
in the parish of Llanwchllyn, ii| the county of Merioneth.
At the tiial at the Great Session for Merioneth, held
at Bala, before Mr. Justice Raine, on the 14th of April,
1830(a), the following facts appeared. By lease and re-
lease of the 4th and 5th August 1783, the release bemg
between John Kenrick and Lewis Rees, clerk, of the one
part, and Benjamin Jones and nine other persons, being
ministers of ten dissenting congregations, of the other part;
Kenrick and Rees, who were therein described as surviving
trustees, granted, bargained, sold and released, unto the said
Benjamin Jones and the nine other ministers, and their heirs,
all that piece or parcel of ground, with the building thereon
erected, 8cc. ; habendum unto the said Benjamin Jones and
the nine others, and their successors, ministers of the said
respective meeting-houses aforesaid for the time being, in
conjunction with the said Kenrick and Rees, during their
lives, and the life of the survivor of them for ever : in trust
and to the intent and purpose that the said structure or
building should be used as a meeting-house, place or house
for the public and religious worship and service of God,
by the society or congregation of Protestant dissenters,
(a) Counsel for the plainliflP, defendant, Whyatt, Aiiorney-Ce-
Cockerell and ; for die neralf and WiUiams.
EASTBR TERM, XI GEO. IV. 753
commonly called Prertiyterians, and that tbej should per- i8do.
mit and suffer the same from time to time (so long as the ^'^^'^^^^
laws of the land would admit) to be so used, occupied and ^^
engaged by such society or congregation as aforesaid, and £vans
for no other use, intent, or purpose whatsoever. The first Jones.
lessor of the plaintiff was the heir at law of the survivor of
the ten trustees, to whom the property in question was con-
veyed by the deeds of the 4th and 5th August, 1783. The
defendant Michael Jones had been for some years, and still
was, the minister of the chapel. Possession had been de-
manded on behalf of the lessors of the plaintiff, before the
day of the demise laid in the declaration. On the part of
the defendants it was urged, that the habendum to the ten
relessees and their successors^ only passed a life estate, and
that consequently nothing descended to the lessor of the
plaintiff, as heir of the surviving relessee ; and, secondly,
that the defendant, Michael Jones, as minister of the chapel
in possession, had a legal title to retain that possession
whilst he continued minister. The learned judge overruled
both these objections, but gave the defendant leave to
move to enter a nonsuit.
Campbell now moved according to the liberty reserved.
The first question is, whether the ten trustees took an estate
in fee under the conveyance of 1783. There is a discre-
pancy between the premises and the habendum. The
premises are to the relessees and their heirs, whilst the ha-
bendum is to them or their successors. As these persons
could not take by succession, the habendum gave only a life
estate. In Baldwin*s case (a), where the premises were
" to the said Ann, and Anthony Baldwin her son, and the
heirs of the said Anthony, habendum to them from the date
of the said indenture until the end of 99 years, and so from
99 years to 99 years, until 300 years be expired,'* the ha-
bendum was held to be repugnant and void. In the Earl
of JRutland^s case it is said (6), that it was resolved in
(fl) S Coke's Rep. 23 b. (6) 8 Co. Rep. 56 b.
VOL. v. 3 c
CASES IN TH£ KING 9 B£NCH,
auditor Ki^^'s case^ that where Queen Eliiabeth granted a
manor to jB. and his heirs, (in the premises of the letters-
patent,) to have and to hold the said manor to B. and his
assigns, leaving out heirs in the habendum, — the fee of the
manor passed by the premises, and the habendum was void.
But in AlthanCs case (a) it is said, that if a man gives land
to one and his heirs, habendum to him and the heirs of his
body, he shall have but an estate tail. Com, Dig-* Fait
(E. 9} 10;) this looks the other way. [Bayleyi. Where the
premises limit an estate which the law will allow« and the
habendum limits an estate which is not allowed by law, the
habendum is void ; the habendum will not control the pre-
mises where it is repugnant and cannot take effect.] The
weight of authority is certainly against this objection, and
therefore I will give the Court no further^trouble upon it.
The second objection involves a point of great import-
ance; namely, whether the right of possession is in the
minister or in the trustees. The objection to the defend-
ant, Michael Jones, was, that bis doctrine was not ortho-
dox, but no proceeding had been taken to oust him from
his office, and the question therefore is, whether a trustee
can maintain ejectment against a person who is in pos-
session of the office, and is entitled to the office. [ Baykif
J. You call it an office ?] It is an office coupled with
an interest. It is so described iniZfxv. Barker (b\ in
which case a mandamus issued to restore a dissenting
minister who had been removed. That case shews, that
whilst he holds the office he has [the possessory title.
Where a master allows a servant to inhabit a house as part
of his wages, he cannot bring an ejectment to turn him out
of possession whilst he continues in the service. The
mandamus in Rex v. Barker, (of which the defendant has
obtained a copy from the Crown Office,) commands the
parties to whom it is addressed, to admit the minister to
the use of the pulpit, with ail the liberties, privileges, pro-
(fl) 8 Co. lUp. 154 li. (6) 3 Burr. 1265.
EASTER TEKM, XI GEO. IV.
755
fits and advantages belonging to the same (a). In that 1830.
(a) The writ was in the follow-
ing form :
'^ Of Easter term, in the third year
of King George the Third.
** Plymouth. George the Third, by
the grace of God, of Great Bri-
tain, France and Ireland, king,
defender of the faith, &c.
«* To Pentecoit Barker, Richard
Dunning, Philip Cockey, and
Eliat Lang, and to every of them,
greeting. Whereas Chrittopher
Mends was duly nominated,
elected and chosen into the place
and office of a pastor, minister,
or preacher in a certain meet-
ing-house appointed for the reli-
gious worship of Protestant dis-
senters, commonly called Presby-
terians, in Plymouth, in Ourcounty
of Devon: And whereas he, the
said Chrittopher Mendt, by virtue
of such nommation, election and
choice, ought by you to be ad-
mitted to the use of the pulpit in
die said meeting-house, for the
due performance of his function,
well and faithfully to execute the
said place and office, and to have,
use, and enjoy all privileges, profits
and advantages of and belonging
to the said place and office : And
whereas he, the said Christopher
Mends, after such his nomination,
election and choice, did, in due
manner, desire and request to be
admitted to the use of the pulpit
in the said meeting-house: Yet
you, well knowing the premises,
but not regarding your duty in this
behalf, have absolutely neglected
and refused, and still do absolutely
neglect and refuse, without any
reasonable cause whatsoever, to
admit the said Christopher Mends
into the said place and office, and
3
to the use of the pulpit in the said
meeting-house, and have unjustly
obstructed him, the said Christo*
pher Mends, in the due perform- ^OHia,
ance of the duties of the said
pastorship, and have unjustly pre-
vented him from enjoying the use
of the said pulpit, and from pei^
forming the duties of the said pas-
torship,— in contempt of Us, and to
the great damage and grievance of
him the said Christopher Mends,
and also of divers others of Our
liege subjects, being dissenters,
commonly called Presbyterians,
dwelling and residing in and near
Plymouth aforesaid,— as We have
been informed from their com-
plaint made to Us in that behalf.
We, therefore, being willing that
due and speedy justice should be
done in this behalf, (as it is reason*
able,) do command you, firmly en-
joining you, that immediately after
the receipt of this Our writ, you do,
without delay, peremptorily ad-
mit, or cause to be admitted, him,
the said Christopher Mendt, to the
use of the pulpit in the said meet-
ing-house, as pastor, minister, or
preacher there, together with all
the liberties, privileges, profits and
advantages belonging to the same.
And in what manner you shall
have executed this Our writ, make
appear unto Us at Westminster, on
Monday next after the Morrow of
the Ascension of our Lord, then re-
turning to Us this Our writ. And
this you are not to omit on peril
that may fall thereon. Witness,
WUUam Lord Mansfield, at West-
minster, the 38th day of April, in
the Sd year of Our reign.
" By the Court,
*• Burroa)"
C2
766
1836.
CASES IN THE KINg's BENCH,
case Lord Mansfield says {a), that since the Act of To-
leration, the writ of mandamus ought to be extended to
protect an endowed pastor of Protestant dissenters from
analogy^ and the reason of the thing. The deed is the
foundation or endowment of the pastorship ; the form of
the instrument is necessarily by way of trust* for the meet-
ing-house, and the laud upon which it stands, could not be
limited to the minister and his successors. Many lecture-
shipsy and other offices, are endowed by trust-deeds. The
right to the function is the substance, and draws after it
every thing else as appurtenant thereto. The powers of
the trustees is merely in the nature of an authority to admit.
The use of the meeting-house and pulpit in this case fol-
lows, by necessary consequence, the right to the function
of minister, preacher, or pastor, as much as the insignia do
the 6ffice of a mayor, or the custody of the books, that of a
town clerk. This shews, that if the minister is duly ap-
pointed, and is not admitted, the Court will grant a man-
damus to admit; it fortiori, they will grant a mandamus to
restore. IParkeJ. The mandamus to admit to the use
of the pulpit is perfectly consistent with this, that the
land and chapel should be in the possession of the trustees.
Bayley J. If the argument could be supported, the minis-
ter would have a right to dispose of the whole of the pews
at his pleasure. Lord Tenterden, C. J. In the case of an
endowed lectureship, though there is a right to the pulpit,
there is no right to the possession of the church.]
Baylby J. — We are not called upon to decide whether
defendant is entitled to the pulpit or not
Parke J. — The defendant is only tenant at will; his re-
medy may be in equity.
Rule refused.
(a) 3 Burr. 1368.
EASTER TERM, XI GEO. IV. 767
1830.
Williams and Wife r. Goodtitle, Lessee of David,
in Error.
CRROR upon a judgment in the Court of Great Session, a. devised a
in the county of Glamorgan, upon a special verdict in eject- 5*J*"^ ^l^^
ment, in an action of ejectment on the demise of John after other de-
David against Rees Williams and Elizabeth his wife, for J^n ^^^ residue
the recovery of five messuages, five dwelling-houses, &c., of his real
situate and being within the franchise of the town of bwan- and his heirs.
sea, in the county of Glamorgan. The verdict stated that Afterwards A^
' ^ o ^ having pur-
before the making of the demise, and before the committing chased other
of the trespass and ejectment mentioned in the declaration, [h^g^coSJcil^
to wit, 24th April, 1795, David Thomas made his last will "Whereas I
and testament in writing, duly executed and attested to pass j^st wili and
real estates according &c., in the words following: that is to test«™nt,
say, — •' In the name of God — Amen. I, David Thomas, of &c., devise all
&c. do make, publish and declare this my last will and tes- j^^f;^^"^*^
tament in manner following: that is to say, I do give and poueitedqf'm
devise unto my friends and acquaintance John Hubbakuk, ^^ mentioned
of &c., and Thomas Jones, of &c., their heirs and assigns, &nd which
«. « «_ . » 1 1 1 « *''JI* I ratify
all that messuage oCc, situate &c., to hold the same unto and con6mi:'*
said Hubbakuk and Jones and their heirs, to the use of t'^^J*^» ^^^^
the after-pur-
Hubbakuk and Jones, during the life of my wife Elizabeth chased lands
Thomas: yet, nevertheless, to permit and sufier my said STdi^fi^N
wife and her assigns to receive and take the rents, issues
(a) Quod mirum videtar. By 1 Viet, cap. S6, i. S, it it enacted, *'Tbat it shall be lawful for
evcrj person to devise, bequeath or dispose of, by his will, ezecoted in manner hereinafter
required, all real estate and all personal estate which he shall be entitled to, either at law or in
eqoiiy, at the time of his death, and which, if not so devised, bequeatlied or disposed of, would
devolve upon the heir at law, or customary heir of him, or, if he became entitled by descent, of
his ancestor, or upon his executor or administrator, and that the power hereby given shall extend
to such of tlie same estates, interests and rights respectively, and other real and personal estate,
as the testator may be entitled to at the time of his death, notwithstanding that he may become
entitled to the same subsequently to the execution of his will/* And by s. t4 it is enacted,
" that every will shall be construed, with reference to the real estate and personal estate comprised
in it, to speak and take effect as if it had been executed immediately before the death of the
testator, unUn a amtrary intention ihall appear by the vnlt" Notwithstanding the decision in the
principal case, it would rather appear that even this enactment would not have given the effect
to the codicil contended for on the behalf of the lessor of the plaintiff, inasmuch as a eontrary
imteiUion might, it is conceived, be said to appear from the recital in the codicil, that recital
expressly referring to the real and personal estate of which the testator was pos!iessed it the
lime of the making of the original will.
768
1830.
Williams
V.
GoODTfTLB.
CASES IN THE KING S BENCH,
and profits thereof, to her and their own proper use and
benefit, and after her decease to the use of the said Hubba-
kuk and Jones and their heirs, and the survivor of them,
upon trust to lay out and expend a moiety or one half part
of the rents and profits of my said hereditaments and pre-
mises towards the support, maintenance, education, and ad-
vancement in life of my nephew, John Evatis^ until he shall
arrive at the age of twenty-one years ; and the other moiety
thereof towards the support, maintenance, education, and
advancement in life of my nephew. Job Phillip, until be
arrives at the age of twenty-one years ; and in case either of
my said nephews shall happen to die before he arrives at the
age of twenty-one years, without leaving any lawful issue of
his body, then in trust to lay out the moiety of him so
dying at interest, to accumulate for the benefit of the sur-
vivor of them, or to lay out the same towards his mainte-
nance and education, at the discretion of my said trustees
and their heirs, and the survivor of them, until the survivor
of them my said nephews shall have attained the age of
twenty-one years ; and if it shall happen that either of my
said nephews shall die before his arrival at the age of
twenty-one years, leaving lawful issue of his body, then and
in such case the moiety of the rents aud profits of him so
dying to be applied towards the support, maintenance and
education of the heirs of his body, in like manner as is here-
inbefore directed respecting my said two nephews, uotil
their arrival at the age of twenty-one years, and from and
after the arrival of the survivor of them my said nephews at
that age, then to the use and behoof of such survivor, bis
heirs and assigns ; and in case both of my said nephews
shall attain to their respective ages of twenty-one years,
then to the use and behoof of the said John Evans and
Job Phillip, as tenants in common and not as joint tenants,
for and during their respective natural lives ; and from and
after their respective deceases, to the use of the respective
heirs of their bodies lawfully issuing, as tenants in common
and not as joint tenants ; but if the said John Evafis sball
EASTER TERM, XI GEO. IV. 759
die without leaving any lawful issue, then I give and devise ^^SO.
all and singular the said hereditaments to the said Job yfu^i^fM^^
Phillip and his heirs ; and if the said Job Phillip shall die v.
without leaving any issue, then I give and devise the said
hereditaments unto the said John Evans and his heirs.
And I do hereby give and devise all that messuage situate
in High Street, &c., and also a house adjoining, fronting the
Back Lane, with the appurtenances, in as large and ample a
manner as I purchased the same of the said C. R. Jones
and others, together with all erections and buildings there-
on built, or hereafter to be built, unto my said dear wife
Elizabeth, for and during her natural life ; and after her de-
cease I give and devise the same to John Adams, the
nephew of my said wife^ and the heirs of his body lawfully
issuing ; and for want of such issue I give and devise the
same to such and so many of the sisters of him, the said
John Adamsy as shall survive him, as tenants in common
and not as joint tenants, and to their respective heirs. And
I do hereby give and devise all the rest of my real estate,
whatsoever and wheresoever situate (not hereinbefore parti-
cularly deviled J unto my said dear wife, Elizabeth Thomas,
and her heirs. And I do hereby give and bequeath all and
singular my personal estate, whatsoever and wheresoever,
and of what nature or kind soever the same may be, unto
my dear wife, Elizabeth Thomas, her executors, administra-
tors and assigns, absolutely for ever, subject nevertheless
to the payment of two pounds and ten shillings yearly, to-
wards the support, maintenance and education of Elizabeth
Thomas, the daughter of my brother Thomas Thomas, until
she shall arrive at the age of 6fteen years, and no longer.
And I do hereby nominate, constitute and appoint my said
dear wife, Elizabeth Thomas, sole executrix of this my last
will and testament. In witness," &c.
The special verdict further stated, that afterwards, and
before the said several times in the said declaration respec-
tively mentioned, and also before and at the times of the
making of the indentures of lease and release hereinafter
760 CASES IN THE KINo's BENCH,
1830. mentioDed, C. R. Jones, Esq., was seised id bis demesne as
WiLtxAMi ^^ ^^^ ^^ ihiee messuages, situate and being in Greenhilli
V. within the franchise of the said town of Swansea, in the
countj of Glamorgan, and also of a certain close, situate
and being within the said franchise : one of which
suages is one of the dwelling-houses in the said declaration
mentioned, and is described in the codicil hereinafter men-
tinned as an old thatched house or cottage ; and that the
said C. R. Jones, being so seised, did, by indentures of
lease and release, bearing date respectively 15th and l6th
March, 1799» and made between the said C. jR« /ones and
others, of the one part, and the said David Thomas of the
other part, for the consideration in the said indentures re«
spectively mentioned, grant, release and convey to the said
David Thomas and his heirs the said three messuages and
the said close, by virtue of which indentures, and by force
of the statute made, &c., the said David Thomas became
and was seised as of fee of the said three messuages and
the said close, and being so seised, did afterwards, and
before the date of the indenture of lease hereinafter next
mentioned, erect and build on the «aid close a certain mes-
suage, meeting-house or chapel, called, &c., being one of
the said messuages in the said declaration mentioned, and
did also erect, build and make thereon all the residue of the
dwelling-houses 8cc, in the said declaration further men-
tioned, and also several other messuages and dwelling-
houses, making altogether the %um of the bouses so erected
and built by the said David Thomas, together with the said
three messuages thereinbefore first mentioned, greater in
number than the sum of the houses in the said declaration
mentioned, together with the six houses by the codicil here-
inafter mentioned specifically devised to Jane PhOlip,
Elizabeth Thomas and Elizabeth Llo^d.
The special verdict further stated, that afterwards, and
before the several times in the said declaration mentioned*
to wit. on the 21st day of December, 1802, the said David
Thomas, being so seised of the said close and of all the
EASTER T3E:RM, XI GEO. IV. 761
said several dwelling^housesi messuages^ &c. with the ap- laso.
puitenaQces^ whereof all the said several tenements^with the
appurteoaoces in the said declaration meDtiooed, are parcel,
did, by indenture of lease bearing date the day last afore-
said, demise and grant unto Ebenezer Morris and four
others the said messuage, meeting-house or chapel, called,
&c., to hold to them for the term and upon the trusts
recited of and concerning the same in the said codicil here-
inafter mentioned ; and that the said last-mentioned lease
was not made or inrolled according to the provisions of the
statute passed in the 9th year of the reign of King George 2,
intituled '* An act to Restrain the disposition of lands,
whereby the same become unalienable."
The special verdict further stated, that afterwards, and
before the times mentioned in the declaration, to wit,
4lh June, 18039 the said David Thomas, being so seised
as aforesaid, made a certahi codicil to his said last will
and testament, the said codicil being duly executed and
atteated to pass real estates, according to the form. Sec, in
the words following: that is to say, ** I, David TAomas, of
$cc., do make and publish this present codicil, which I
heffeby declare to be, and order and direct to be, taken as
and for part of my last will and testament, as follows :— -
Whereas I did, by my last will and testament in writing,
duly execuled and attested, bearing date the £4th day of
April, 1795, give, devise and bequeath all the real and per-
sonal estate I was then possessed of, in the manner therein
nwHtiauedf and which will I do hereby ratify and confirm.
And whereas, since the date and execution of the said will,
I purchased of C. JZ. Jones^ Esq., and others, three mes*
auagos, situate in Greeahill, within the franchise of the town
of Swansea, together with the close adjoining to the back
part of the said houses, and which were conveyed to me by
indentures of lease and release of 15th and iGth March,
1799; and whereas, since the dale of the said indentures of
kase and rdease, a certain meeting-house or chapel, known
by the name, Sec., and several dweUiog-liouses or cottages,
762
1830.
Williams
V,
GOODTITLE.
CASES IK THE KING S BENCH,
have been erected and built on the said hereditaments and
premises ; and whereas, by indenture of lease bearing date
the dOth day of December last, I demised and granted the
said meeting-house or chapel unto JEbenezer Morris, of &c.,
minister of the Gospel, D. jR. of Sic., H. B. of &c., X). F.
of &c., and J. S. of &c. ; to hold unto them and the survi-
vor and survivors of them, and to the person or persons who
should from time to time be nominated and appointed, as is
therein set forth, trustee or trustees in the room or stead of
any or either of them, from the 25th day of December theo
next, for the terra of 999 years, upon the trust and con6-
dence ; and the said lessees, and the survivor or survivors
of them, and the several and respective person or persons
who should from time to time be nominated and appointed,
as is thereinafter mentioned, trustee or trustees in the room
or stead of any or either of them, from time to time and at
all times during the said term, if the law and statutes of this
realm would admit, should and would permit and suffer the
said meeting-house to be used, occupied and enjoyed as
and for a place or house for the worship of God by the
church society or congregation of Protestant dissenters,
called or known by the name of Methodists, and by such
others as should thereafter attend the worship of God in
that place, at the rent of one penny, subject to the several
clauses, provisoes and agreements therein contained : — Now
I do hereby give and devise all and singular the heredita-
ments and premises, so purchased by me of C\ IL Jona
and others as aforesaid, and all erections and buildings
thereon erected and built, and all the rents, issues, and pro-
fits thereof, unto my dear wife Elizabeth Thomasy for aad
during the term of her natural life, subject nevertheless to
the said last-mentioned indenture of lease ; and from and
immediately after the decease of my said dear wife, I give
and bequeath the two new-built dwelling-houses or cot-
tages, and one old thatched house or cottage (adjoining the
said meeting-house or chapel), now in the several tenures or
occupations of &c., together with such gardens as shall
EASTER TERM, XI GEO. IV. 763
belong thereto respectively at the time of my said \vife*s 18S0.
decease, unto my friends and brethren in the Lord, the said ^-^^v-"^
Williams
Ebenezer MurriSf D. R., H. B., D. F., and J. S. ; to hold ^.
the said three dwelling-houses or cottages and gardens, Goodtitle.
from the decease of my said wife, unto them and the sur-
vivors or survivor of them, and unto the several and respec-
tive persons or person who shall from time to time be
nominated and appointed trustees for the said chapel or
meeting-house, for and during and unto the full end and
term of 999 years ; in trust, nevertheless, that my said
trustees, and the survivors and survivor of them, and their
successors as aforesaid for the time being, shall and do,
from time to time, lay out the net rents, issues and profits
of the said three dwelling-houses or cottages and gardens
towards the support of the said chapel or meeting-house,
for and during the residue and remainder of the term thereof
granted, or other sooner determination of the said lease, by
forfeiture or otherwise. And I do hereby give and devise
unto Jane Phillip all those two dwelling-houses or cottages
(other part of the premises so purchased by me as afore-
said), adjoining &c., at Greenhill aforesaid, together with
such gardens as shall belong to the same at the time of my
said wife's decease, and which cottages are now in the
several tenancies or occupations of &c. ; to hold the said
two last-mentioned cottages and gardens, from the time of
the decease of my said wife, unto her the said Jane Phillip
and her heirs. And I do hereby give unto my niece, Eliza-
beth Thomas, the daughter of my brother Thomas Thomas^
all those two other dwelling-houses or cottages, other part
of the said premises, adjoining, &c., together with such gar-
dens as shall belong to the same at the time of my said
wife's decease, and which two last-mentioned cottages are
now in the several tenures or occupations of 8cc. ; to hold
the said two last-mentioned cottages and gardens, from the
time of the decease of my said wife, unto the said Elizabeth
Thomas and her heirs. And I do hereby give and devise
unto ray said wife's niece, Elizabeth Lloyd, all those two
764
18S0.
Williams
V.
GOODTITLE.
CASES IN THE KING S BENCH,
Other dwelling-houses or cottages (other part of the said
premises), adjoining the said cottages devised to my said
niece Elizabeth Thomas^ together with such gardens as shall
belong to the same at the time of my said wife's decease,
and which two last-mentioned cottages are now in the
several tenures or occupations of, &c.; to hold the said two
last-mentioned cottages and gardens, from the decease of
my said wife, unto the said Elizabeth Lloyd and her heirs.
In witness, &c/'
The special verdict then stated the death of David
Thomas on I9th July, 1814, leaving his niece (the defend-
ant) Elizabeth Williams^ then Elizabeth Thomas, bis heir at
law, — her marriage with Rees Williams, — that Elizabeth
Thomas, the widow, entered, and died seised, leaving the
lessee of the plaintiiF her heir; and that afterwards, and
before the demise in the declaration, the defendants entered
and were possessed. The verdict then finds the demise,
entry and ouster in the declaration. The record then states
the judgment pronounced by Clarke, C J., and Casberd,J^
in favour of the plaintiff below (a).
Upon this judgment the common errors were assigned (A).
Taunton, for the plaintiffs in error. The only question
is, whether, by the codicil, the will was re-published as to
(a) The ai^ument below (before
Nolan and Catherd, Js., at Cardiff,
nSept. 1827, and 14 April, 1828,)
was on a special case reserved at
the trial, with liberty to turn it
into a special verdict. Judgment
being pronounced in favour of the
plaintiff below (by Clarke, C. J.,
Presteign, 13 August, 1828), time
was given to the defendants to
consider whether they would avail
themselves of the liberty given to
turn the special case into a special
vei'dict. The opinions of Tindal,
S.G., Hart, Bell, and Spence, were
taken, and as they all concurred
in thinking that the lands in ques-
tion did not pass to the widow, a
special verdict was prepannl, od
which, without further aigument
below, judgment was entered for
the plaintiff.
(6) In the margin of the error
books it was stated that the ques-
tion intended to be raised was,
whether the codicil was such a re-
publication of the will as to ex-
tend the operation of the residuary
devise to the after- purchased
estates, so as to pass the chapel
and the three messuages.
Williams
V,
EASTER TERM, XI GEO. IV. 765
the after-acquired lands, not disposed of by the codicil. i83o.
The interest not disposed of by the codicil consisted of a
reversion after a term of 999 years, and of some other pro-
perty devised to the wife for life. The lease for 999 years Goodtitle.
was not duly inrolied according to the statute. Conse-
quently, the term thereby created was null and void. The
lease therefore fastened itself on the undisposed reversion.
On the part of the plaintiffs in error it is submitted that this
property did not pass, upon two grounds. First, the tes-
tator, by the codicil, specifically ratifies the residuary clause
in the will as to the estate of which he was possessed at the
time he made the will. This amounts to an exclusion of
property acquired since. Secondly, the devise of a particu-
lar estate to the wife confirms that construction as to the
first part. It may be admitted that where a testator gives a
limited interest, and makes the same devisee devisee of the
whole, he is not shut out from the benefit of the residuary
clause by reason of the devise of the life estate ; RidotU v.
Pain (a) ; but this being a mere question of intention, the
devise to the wife shews that that was all the interest that
she was to take. With respect to the question of re-pub-
lication, the history of the law seems to be this. Before
the Statute of Frauds, there might be a re-publication by
parol. In the earlier cases after the statute, it was held
that there could be no implied re-publication; Lytton v.
Viscountess Falkland (b), Penphrase v. Lord Lansdowne (c).
In Acherly v. Vernon (d) a new* rule was adopted for the
first time, which has been the leading and governing rule
ever since, subject to some qualifications. It is curious to
trace the alteration of the law. The general rule now is,
that the codicil brings down the will to its own date; Good"
title V. Meredith {e), Acherly v. Vernon has certainly been
(a) 3 Atk. 486. (d) 9 Mod. 78; 1 Corny ns's
lb) 1 Comjrns's Rep. 383; 8 Rep. 381.
Vin. Abr. 165. (e) 2 Maule & Seiw. 5.
(f) Ibid. 384; 8 Vin. Abr. 164.
Williams
V.
766 CASES IN THE KlNC/s BENCH,
1830. considered as establishing the rule laid down by Lord Ellen"
borough in Goodtitle v. Meredith, But the language of the
codicil in Acherly v. Vernon is prospective, and the terms
Goodtitle. ujgj g^e very peculiar. The case, however, has since been
accepted, not as turning on any particular circumstances,
but upon the general grounds laid down by Lord Ellenbo-
rongh. In Barnes v. Crowe (a). Lord Commissioner JEyre
remarks on the effect of prospective words, intended to
operate wholly upon after-acquired lands. It is now too
late to contend against the general rule which, in Pigot v.
Walter {b). Sir Wm. Grant, M. R., admits and regrets.
But the plaintiffs in error rely upon the authorities which
engraft a material exception upon the rule now received;
Htylyn v. Heylyn{s:^\ namely, that where the intent of the
testator in the codicil clearly is to pass only such property
as was disposed of by the will, the after-acquired property
is virtually excluded. [Bayley,J. And the will must have
words sufficiently ample to pass the after-acquired lands.]
Here the codicil is tied up by the particular words used.
It contains an express declaration that the intention of the
testator was to ratify the will in respect of the lands which
he possessed at the time at which that will was made. If
the codicil had ended with the first clause, the evidence of
intention would have been sufficiently strong ; but here the
testator goes on to recite the purchase of the very property
A'om Jones, and to make a particular disposition of it. The
plaintiffs in error rely principally upon the case of The Comt-
tessofStrathmore v. Bowes (d). There Lord Kenyon stopped
the counsel (e) who was to have argued against the opera-
tion of the codicil upon the newly purchased lands; and the
opinion of this Court was afterwards confirmed in the
House of Lords (/), though Lord Thurlow certainly dis-
(a) 1 Ves. jun. 486. (rf) 7 T. R. 482.
(6) 7 Ve». 98. {e) Erthne.
(f) Co«irp. 130. ( f) Bowes v. Bowes, 2 B. & P.
500.
EASTER TERM, XI GEO. IV.
sented, reading the codicil as if the word '^ all " had been
there. [Lord Ttnterden^ C.J. Lord Thurlow imports the
word " all ;" it is not in 7 T. R.]
Reynolds^ for the defendant in error. Where a codicil is
such a re-publication as to make the will speak from the
date of the codicil, the question is, not whether the testator
meant to re-publish, but whether he has expressed an in-
tention which would be defeated by such a construction of
the act of re-publication.
Here he was stopped by the Court.
Lord Tenterden, C.J. — I can find no intention to ex-
clude the after-purchased lands. Both these instruments
are to be read as of the date of the codicil.
It is admitted that if all this had stood in one will, the
lands would have passed. The words — ^' I did give all the
real and personal estate I was then possessed of* — rather
seem to indicate an intention that the lands should pass.
Bayley, J., and Littledale, J., concurred.
Parke, J. — It is clearly to be taken as one instrument.
767
1830.
WiLUAlfg
17.
GOODTITLE.
Judgment affirmed {a).
(a) But in Monypenny v. Bris-
tow, 2 RusAell and M^lne, 117, it
appears to have been held, that
where a codicil in its dispositive
part, is applicable solely and ex-
pressly to the property previously
devised by the will, such codicil
has not the eB'ect of re-publishing
the will, so as to carry after-pur-
chased property, notwithstanding
a more general intent indicated in
a recital contained in such codicil.
And see Hidme v. HeygaU, 2 Me*
rivale, 138; Guests. WiUoMey, 9
hm^\\. 429; 10 B. Moore, 228;
3 Bingh. C14; 12 B. Moore, 2;
Gibson V. Rogertf Ambler, 93;
Juchon V. Hurlock, ibid. 487 ; At-
torney General V. Downing, ibid.
571; Doe d. Pate v. Davy, Cowp,
158; Potter v. Potter, 1 Ves. sen.
437 ; Brown v. Higgs, 4 Ves. jnn.
709 ; Parker v. Biscoe, 8 Taunt.
699; 3 B. Moore, 24.
INDEX
TO THB
PRINCIPAL MATTERS.
ABATEMENT OF SUIT.
1. A suit abates by the death of
either party between a nonsuit and
judgment, notwithstanding 17 Car,
2, c. 8. Harrison v. Donhiggin,
431
2. So, if the death occur between
verdict and judgment, unless judg-
ment be actually signed within two
terms after verdict. Id, ibid,
ACT OF BANKRUPTCY.
1. A trader does not commit an act
of bankruptcy, wuhin ^Geo, 4,
c. 16, s. 3, by absenting himself,
unless he absent himself from some
place at which he would, in the
ordinary course of his life and
business, be expected to be found,
or at which he has appointed to
meet particular creditors. Bemas-
coni V. Farebrother, 364
2. A mere order to deny a trader to
a creditor, where no actual denial
takes place, and no act of conceal-
ment is done, does not constitute
an act of bankruptcy, by beginning
to keep house with intent to delay
creditors. Fisher v, Boucher. 589
. 3. A departing by a trader from his
dwelling-house with the intention
not to return if a given event oc-
curs, which does not occur, where-
VOL. v.
upon the trader returns in the
ordinary course, does not consti-
tute an act of bankruptcy, by de-
parting from the dwelling-house
with intent to delay creditors. Fish-
er V. Boucher, 589
ADMISSION.
See Promissory Note, 3.
ADVERSE POSSESSION.
See Ejectment — Settlement by
Estate, 6.
AGENT.
1 . An agent to receive rents has no
implied authority to give notice to
quit. Doe d, Mann "v, Walters, 357
2. Where notice to quit is given by
an agent, the authority of such
agent must be complete a half-year
before the expiration of the notice,
or, at least, before the day of the
demise laid in a declaration in
ejectment, brought in respect of
such notice. Id, ibid,
AGREEMENT.
Whether, under 5 Geo. 4, c. 74, s. 15,
an agreement to sell goods by the
Winchester bushel, without ex-
pressing the ratio or proportion
3d
770
ASSIGNMENT.
AWARD.
which such Winchester bushel
bears to the standard measure, is
void, quctre. Watts v. Friend. 439
AMENDMENT.
See Practicb, S, 4.
Where the plaintiff, in a qui tam ac-
tion for usury, sued out his writ in
September, 1828, delivered his
declaration in Trinity term, 1829,
took the record down for trial at
the summer assizes, 1829, and then
withdrew the record, the Court
refused to allow him to amend his
declaration. Wood v. Grimwood,
584
ANNUITY.
See Lbasb, 1.
APPEAL, NOTICE OF.
See CooNTT Rate.
APPRENTICE.
See Bill of Exchange, 5 — Notary
Public — Settlement by Appren*
TicESHip — Settlement by Hirino
AND Service.
ARBITRATION.
See Award.
ARBITRATOR.
See Award, 1, 3 — Settlement by
Estate^ 5.
ASSAULT.
Under particular dircumstances, one
man may be justified in laying
hands upon another, for the pur-
pose of serving him with process.
Harmon v. Hodgson. 892
ASSIGNMENT.
See Insocvbnt, 4^*Lea8B, 2.
ASSUMPSIT.
See Monby had and eecbivbd —
Pleading, 6.
** I believe the mare to be sound, but
I . will not warrant her." The
vendee may declare in assumpsit,
as upon a warranty that the mare
is sound to the best of the vendor's
knowledge. Wood^i.SmUk. 124
ATTORNEY.
See Costs, 4, 8 ^Joinder of Par-
ties, 1.
AWARD.
See Sbttlbment by Estate, 5.
1. An awlird made by a barrister
cannot be ^fuestioned on the ground
of any atatemeat not appnmg on
the face of the awaad, or annexed
to it. Williams v. Jones, S
18. Motion to set aside an award un-
der a reference at nisi prios, al-
lowed to be made after the first
four days of term, where the
award was published too late in
the vac^ition to take the necessazy
proceedings before. Bennett ?.
Skardon. ^ 10
3. Wh#re a cause is referred by a
judge*s order, empowering the ar-
bitrator to enlarge the time as be
shall appoint md a nidge shall
order^ an enlargement by uie arbi-
trator alone is irr^uhir, and an
award made after such enlarge-
ment is void. Mason v. WaOis, 85
4. By an inclosnre act, commissioners
are authorised to allot shares of
the inclosed lands in compensation
for riffhts of common, and also to
allot lands, &c. in exchange for
other lands, &c., provided such
exchanges be specified in the
award, and be made with th^ con-
sent of the owners. The commis-
sioners award a certain allotment
to i#. as a compensation for his
rights of common, and an old tnch-
BANKRUPT.
BANKRUPT.
771
sure gioen ftp by A. to he allotted
hu the conunissionere tn exchange.
This award is bad, and A. acquires
no title to the allotment. Wingfield
V. Tharp. 745
BANKRUPT.
iSee Commitment, 2, S — Evidence,
10, 11 — Practice, 1 — Repealed
Statute — Warrant of Atxor-
NET-
1. An order by the Lord Chancellor,
under 6 Geo. 4, c.l6, s. 18, substi-
tuting a new petitioning creditor's
debt for one alleged in the petition
to be insu£5cient to support a com-
mission, is invalid if it direct the
commissioners to inquire only as
to the sufficiency of the new debt,
and is silent as to the insufficiency
of the old. Muskett v. Drummond,
210
2. In an action by assignees of a
bankrupt, the defendant is entitled,
under 6 Geo, 4, c. 1 6, s. 50, to set
off a debt due to him from the
bankrupt, if, when he gave credit
to the bankrupt, he had no notice
of a prior act of bankruptcy, though
be had notice that the bankrupt
had stopped payment. Hawkins v.
IVhUten. 219
8. Where a trader, after having ob-
tained his certificate under three
commissions of bankrupt, under
none of which any dividend had
been paid, was arrested for a debt
contracted between the second cer-
tificate and the third bankruptcy,
the Court refused to discharge him
out of custody on filing common
bail; and such third commission
was said to be a nullity. Fowler ▼.
Coster. S52
4. A trader does not commit an act
of bankruptcy within 6 Geo. 4,
c. 16, s. S, by absenting himself,
unless he absent himself from some
place at which he would, in the
ordinary course of his life and
business, be expected to be found,
or at which he has appointed to
meet particular creditors. Ber-
nasconi v. Farebrother. 364
5. A commission of bankrupt, de-
scribing the parties as ^* bankers,
being traders according to the pro-
vision of the statute 6 Geo. 4, mti-
tuled, &c." is good, though they
had ceased to be bankers before
that statute passed, for the word
" bankers*' is descriptive of their
persons only, and the word *' tra-
ders*' is a sufficient allegation that
they were, as such, liable to the
bankrupt laws. Id. ilnd.
6. Such a commission may be sup-
ported by evidence of any species
of trading carried on by the bank-
rupts after the passing of the sta-
tute. Id. ibid.
7. A,, having agreed to purchase an
estate of B., and havine received
the title-deeds, borrowea money of
C, and deposited the title-deeds
with him as a security, agreeing to
mortgage the estate to him when-
ever he should receive the deed of
conveyance. A. afterwards receiv-
ed from B. the deed of conveyance
of the estate, which he then deli-
vered to C. as a further security.
In the interval C. refused to com-
plete the mortgage unless A. would
pay usurious interest on the money
lent, to which A. agreed. A. after-
wards became bankrupt, and his
assignees brought trover against
C. for the deed of conveyance :—
Held, that the original poasetcion
of the title-deeds being good, gave
C. a right to the estate whenever
it should be conveyed to A.^ and
therefore that C. was entitled to
retain the deed of conveyance of
the estate against the assignees of
A. fVood y. Grimwood. 551
8. A mere order to deny a trader to
a creditor, where no actual denial
takes place, and no act of conceal-
ment IS done, does not constitute
an act of bankruptcy by beginning
3d2
772 BILL OF EXCHANGE.
BROKER.
to keep house with intent to delay
creditors. Fisher v. Boucher. 589
9. A departing by a trader from his
dwelling-house with the intention
not to return if a given event oc-
curs, which does not occur, where-
upon the trader returns in the or-
dinary course, does not constitute
an act of bankruptcy, by departing
from the dwelling-house with in-
tent to delay creditors. Id, ibid.
BARON AND FEME.
See Husband and Wife — Set-
off, 1, 2.
BARRISTER.
See Award, 1.
BASTARD.
See Settlement by Birth.
BILL OF EXCEPTIONS.
See Practice, 4.
BILL OF EXCHANGE.
See Partners, 3 — Promissory Note
— Set-off.
1. By accepting a bill payable to the
drawer's order, drawn and indorsed
in a fictitious name, the drawee
undertakes to pay to the signature
of the same person as indorser,
who signed as drawer. Cooper v.
^Meyer. 387
2. The indorsee of such a bill, suing
the acceptor, may, by comparison
of the signatures, shew that the
drawing and the indorsement are
in the same handwriting. Id. ilnd.
3. A set of foreign bills, drawn
abroad, was sent to the drawer,
(who was also the payee,) the de-
fendant, who accepted two parts,
and indorsed one to the plaintiff
for value, prior to which the other
had been indorsed by the defend-
ant to his father cotuUtionallff but
who had never insisted on payment,
but gave it up on the substitution
of other securities: — Held, that
the plaintiff was entitled to reco-
ver, and that the bill did not re-
quire a stamp : Held also, by Lord
Tenterden, C. J., and Parke, J.—
dubitante Litlledale^ J. — that it
would have been the same if the
first part had been indorsed and
delivered unconditionally. Holds-
worth V. Hunter. 893
4. A partial failure of consideration
cannot be given in evidence in an-
swer to an action by the drawer,
or his legal representative, against
the acceptor of a bill of exchange.
Obbard v. Betham. eSZ
5. A boy was bound apprentice in
1827, by indenture, upon a pre-
mium of 30/., which was agreed
to be paid, and for which a bill
was given. The indenture bore a
1/. stamp only. The apprentice
served tlie master five months,
when a difference arising between
the master and the father, and it
being discovered that the stamp
was insufficient, the apprentice left
the master. In an action by the
indorsee against the acceptor of
the bill, — Held, that as the ap-
prentice had been maintained and
instructed by the master for hfe
months, and might have enforced
a continuance or that maintenance
and instruction by causing the in-
denture to he properly stamped,
under 20 Geo. 2, c. 45, s. 5, there
was not a total failure of conside-
ration for the bill, and the acdou
upon it was maintainable. Mann
V. Lent. 660
BOUNDARY.
See Evidence, 1, 3.
BROKER.
See Vendor and Vekdes, 2 —
Witness.
CHURCH RATE.
CONVICTION.
773
CANAL.
See Poor Ratb.
CERTIORARI.
See Costs, 3.
Where an action of trover, in which
the damages are laid under 20/., is
removed by certiorari, by the de-
fendant from an inferior mto a su-
perior court, without entering into
a recopiizance to pay the debt and
costs pursuant to 7 & 8 Geo, 4,
c. 71, s. 6, the plaintifT is entitled
to a procedendo; and that, though
the return to the certiorari has
been filed. Fwmish v. Swann, 4f52
CHAPEL.
See Mandamus — Notice to Quit,
3, 4— Tenant at Will.
CHURCHWARDENS.
See Church Rate, 2— Parish
Lands.
CHURCH RATE.
1. Old assessments to church rate
are evidence upon a question of
boundary, though the parish of-
ficers do not charge themselves
with the receipt of the rate, other-
wise than by crosses set against
the names of the parties rated.
Plaxton V. Dure. 1
2. The sutuie 59 Geo. 3, c. 12, s.l7,
vests in the churchwardens and
overseers of a parish all property
belonging to such parish, whether
applicable to the relief of the poor
only, or to the purposes for which
the church rate is made only ; and
whether originally vested in trus-
tees for the benefit of the parish
or not. Doe d. Jackson v. Hileif.
706
CLERGY.
See Dilapidations — Lease, 1 —
QuARE Impedit.
CODICIL.
See Demise, 4.
COMMERCIAL DOCKS.
See Limitation of Action, 1.
COMMISSIONERS OF
BANKRUPT.
See Commitment, 2, 3.
COMMITMENT.
See Justices, 1.
. A warrant of commitment for re-
examination for an unreasonable
time, as for fourteen days, is wholly
void. Davis v. Capper. 53
. Commissioners of bankrupt have
no authority to commit an examin-
ant for refusing, upon request, to
read an entry in a book. Isaac v.
Impey. 377
. An examinant being requested by
the commissioners to read an entry
in a ledger, and refusing to do so,
was by them committed ** for re-
fusing to answer a question:*' —
Held, that the request to read was
neither in form nor substance a
question; that the commitment was
illegal ; and that an action of tres-
pass against the commissioners for
the imprisonment was maintaina-
ble. Id. ibid.
CONSIDERATION.
See Bill of Exchange, 4 — Evi-
dence, 20.
CONVICTION.
See Justices, 2,
774
COSTS.
COSTS.
COPARCENERS.
See QuARE Impsoit.
COPYHOLD.
See Settlement by Estate, 5.
1. The lord of a manor is bound to
admit the customary heir of a co-
pyholder in fee, although there be
a surrender to the use of a will,
and a devise by* the surrenderor,
there being no claim of admittance
on the pan of the devisee. Bex v.
Wilson. 140
2. So, although it appear, upon the
return to a mandamus, that the
non-claim of admittance, on the
part of the devisee, is the result of
a contrivance between him and the
customary heir to deprive the lord
of the fine which would be payable
on the admittance of the devisee.
Id. ibid.
3. In the case of a devise of copy-
hold surrendered to the use of the
will, the estate descends upon the
heir, subject to the contingency of
being divested by the admittance
of the devisee. Id. ibid.
4. Therefore, no disclaimer by the
devisee is necessary to vest the
estate in the heir. Id. ibid.
5. A copyhold may be disclaimed by
parol, or by other matter in pais.
Id. ibid.
6. J, and fi., joint tenants of a co-
pyhold, make partition by parol
without the consent of the lord,
and afterwards occupy in severalty.
A. surrenders to C. by general
words. C. is not entitled to be
admitted to the parcels occupied
by A, in severalty. Rex v. South-
wood. 414
COSTS.
See Evidence, 18 — Insolvent, 1, 2
— Pleading, 6 — Practice, 2.
1. A plaintiff arresting for a larger
sum than is lesally due, though
without malice, is liable to pay the
defendant's costs under 43 Geo. 3,
c. 46, s. S. Doulan v. Brett. 29
2. Where a defendant is arrested
without reasonable or probable
cause, and the plaintiff recovers
less than the sum sworn to, he is
liable to costs, under 43 Geo. 3,
c. 46, though no malice be she wo.
Day V. PicUm. 31
3. Where an indictment for felony is
removed by certiorari, and tried at
nisi prius, neither the judge at nisi
prius nor this Court has authority
to award costs to the pfl^ecutor
under 7 Geo. 4, c. 64, s. 122, whe-
ther the indictment be removed
by the prosecutor or by the pri-
soner. Rex V. Treasurer of City q/"
Exeter. 167
4. In trespass for turning plaintiff
out of a room, per quod he was
prevented from exercising his
business of an attorney therein, if
the plaintiff obtain a verdict for
less than forty shillings, he is not
entitled to full costs without a
judge's certificate, under 22 & 23
Car. 2, c. 9, s. 136. Daubney v.
Cooper. 325
5. Where B. commits a trespass on
the land of A. by the direction and
for the benefit of C, and A. sues
B. alone, the Court will not order
C. to pay A.'b costs. Berkeley r.
Demery. 442
6. Separate ejectments being brotight
by A. against B. and C, tenants in
possession respectively of parts,
and D., tenant in possession of the
remainder of the premises sought
to be recovered ; and D., dliining
to be landlord of B. and C., obtains
a rule to consolidate the causes,
the ejectments against B. and Z>.
abiding the eretit of the trial of
the action against C: a verdict
being found for A. against C, the
Court ordered D. to pay to A. his
costs of the action tried, but refused
to order him to pay the costs of
the appiicatiOn to the Coorc.
Thrustout d. Jones v. SheiUon. 443
COSTS.
COUNTY RATE. 775
7. SenAkf that A*b proper course
would have been to oriog only one
ejectment agaioat the three, — or
to move to set aside the appear-
ance and pleas, unless X). would
defend as landlord, — or to obtain
a consolidation rule in which D,
should have been directed to pay
the costs in all the actions, in case
a verdict should be found for the
plaintiff. Thrvstout d. Jones v.
SkentOH. 443
8. Under 43 Eliz.t c. 6, a judge may
certify to deprive of his costs a
plaintiff who recovers less than
fortv shillings, even where the de-
fendant is privileged to be sued in
the superior courts only; and, f«m-
bUf where the defendant is not an-
swerable to an inferior court, by
reason of his not residing within
the jurisdiction within which the
cause of action arose. Wright v.
Nuttall. 454
9. Where, in formedon, the demand-
ant succeeded upon a demurrer
to the replication, and obtained a
verdict upon the trial of an issue
in fact, and judgment was given
thereon that he snould recover his
seisin against the tenant, and upon
writ of error brought, the common
errors were assigned, and judgment
was affirmed : — Held, that the de-
mandant was entitled to double
costs under 13 Car. 2, c. 2, s. 10.
CocktreU v. Cholmeley. 509
10. The 6 6rfo.4, c.50, s.30, applies
only to cases where a verdict is
actually found : therefore a defend-
ant, who has moved for and ob-
tained a special jury, is not enti-
tled, under that section, to the
costs of such jury, where the plain-
tiff either withdraws the record or
is nonsuited ; although the judge
has certified that the cause was
proper to be tried by a special jury.
IVood v. Grimwood. 622
(But see 2 & 3 IVill. 4, c. 42,
s. 35.)
COUNTERMAND OF
PAYMENT.
Where A. agrees to take certain
goods of B, at a price, partly to be
set against a debt due from jB. to
^., and the residue to be deposited
with C. for the purpose or being
paid over to D., when it should be
as<4rtained in what sum B, is in-
debted to D., it is not competent for
B, to countermand the payment to
D. ; and until the account is taken,
C. may hold the whole of such re-
sidue against JB. Bignell v. Ellis.
165
COUNTY RATE.
1 . A notice of appeal against a county
rate, under 55 Geo. 3, c.51, s. 14,
must either state in express terms
that the appellant is aggrieved by
the rate, or state that from which
it follows of necessity that he is
so.
Therefore, such a notice of ap-
peal, stating, as the ground of
appeal, " that the county rate is
unequal and defective, inasmuch
as the appellant parish is charged
and assessed in the rate at a higner
proportion of the pound sterfing,
according to the fair annual value
of the ratable property therein,
than the respondent parish is
charged and assessed in the rate,
in proportion to the fair annual
value of the ratable property
therein," is defective and bad, for
not going on to state in the words
of the statute, " than has been fixed
and declared by the justices of the
county, in sessions assembled, as
the basis of the rate;" for both
parishes may have been valued
too low, and yet the appellant
parish may have no reason to
complain with reference to the
basis on which the whole rate was
made.
And where, upon such defective
notice, the sessions received evi-
776
DEVIATION.
DEVISE.
dence of the annual value of the
ratable property in both parishes,
and amended the rate by altering
the assessment upon the two pa-
rishes according to the annual va-
lue so proved, but lefV the state-
ment of the annual value of both
to remain as before : — Held, that
they had acted without authyity,
and that their order must be
quashed.
Setnble, that the sessions might
have corrected an inequality in the
valuation of the ratable property
in the two parishes, if the notice
of appeal had been so framed as
to authorize them to receive evi-
dence upon that subject. Rex v.
Blackawton, 695
i. Where (before the passing of the
Municipal Corporation Reform
Act, 5 & 6 mil. 4, c. 76,) the
charter of a borough contained a
non-introraittant clause, excluding
the county magistrates, a rate in
the nature of a county rate might
have been enforced by the borough
magistrates, under 55 Geo, 3, c. 5 1 .
Mercer v. Davis, 785
COURT OF CHANCERY.
See Bankrupt, 1 — Practice, 4,
COURT OF ERROR.
See Costs, 9 — Practice, 3, 4.
COVENANT.
See Joinder of Parties, 2 — Land-
lord AND Tenant, 2.
DEPOSIT.
See Bankrupt, 7 — Insolvent, 4—
Ship's Registry, 2 — Trover.
DEVIATION.
See Policy of Insurance, 6.
DEVISE.
See Copyhold, 1, 2, S, 4— Execu-
tion OF Power, 1.
1. A, devises to jB. for life, remainder
to C. in fee, with power to B., in
case C. should die before B., and
B, should have no other child
livinff at her death, to devise as
she should think proper. C. sur-
vived A,, and died in the lifetime
of jB. The power of devising
given to B, is a limitation in fee to
her by way of executory devise
during the life of C, and upon the
death of C. it becomes a vested
remainder capable of being de-
stroyed by fine. Doe d. Harris v.
HoweU. 24
2, Devise of lands to A. for life, re-
mainder to the children of ^. living
at the time of ^.'s death. B. left
one daughter, who, with her hus-
band, in the lifetime of ^., levied
a fine to the use of C, The fine
operates by estoppel only during
the life of ^., but after ^.'s death
it operates upon the estate^ vesting
the right of possession in C. Doe
d. Christmas v. Oliver. 202
S, A, devises land to B. and his
heirs, but in case B. dies without
heirs, then to C. and his heirs, or
in case B. offers to mortgage or
levy a fine, or suffer a recovery,
upon the whole or any part there-
of, then to go to C. and his heirs —
B. and C. are strangers in blood.
The fee vests in J?., and the exe-
cutory devise to C, is void. Ware
V. Cann. 341
4. A. devised a messuage to B. for
life, and, after other devises, de-
vised all the residue of his real
estate to B, and his heirs. After-
wards A,f having purchased other
lands, made this codicil : — "Where-
as I did, by my last will and tes-
tament, bearing date &c, devise
all the real estate / was then pos-
sessed of in manner therein men-
tioned, and which will I ratify and
EJECTMENT.
EVIDENCE.
777
tonfirm:" — Held, that the after-
purchased lands passed by the
codicil. fVilUams v. Goodtitle,
757
DILAPIDATIONS.
The incumbent of a living is bound
to keep the parsonage-house, build-
ings and chancel, in good and sub-
stantia! repair, restoring and re-
building, when necessary, accord-
ing to the original form, without
addition or modem improvement ;
but he is not bound to supply or
maintain any thing in the nature
of ornament, as painting, (unless
necessary to preserve exposed
timbers from decay,) and white-
washing, and papering: and in an
action for dilapidations, by the
successor against the representa-
tive of a deceased rector, the da-
mages are to be calculated upon
this principle. fVise v. Metcalfe.
235
DISCLAIMER.
See Copyhold — Ejectment.
A copyhold may be disclaimed by
parol, pr by other matter in pais.
Rex V. mison. 140
DISPENSATION.
See Settlement by Hiring and
Service, S.
DISSENTING MINISTER.
Sdls Mandamus — Notice to quit,
3, 4 — Tenant at Will.
DISSOLUTION.
See Settlement by Hiring and
Service, 2.
EJECTMENT.
See Costs, 6, 7 — Mandamus — No-
tice TO QUIT — Tenant at Will.
In 1790, E, G.J being seised in fee
of an estate, died intestate, leaving
two sons, J, G. and E, G. W. C.
was then tenant in possession, and
so continued until the trial of this
ejectment. In 1812, /. G. died
intestate, leaving an only son and
heir, J, G., the lessor of the plain-
tiff. After the death of E. G.,
the purchaser, W, C, paid his rent
to E. G., the younger son, and to
his two sons J, G. and E, G., the
defendant, in succession, up to the
time of action brought, with this
exception, that in 1804, /. G., the
eldest son of the purchaser, de-
manded and received from W» C.
one half-year's rent. In i 805, the
same «/. G. cut down and disposed
of, for his own benefit, certain
timber upon the estate. In June,
1813,/. G., the lessor of the plain-
tiff, demanded from W, C. the
rent then in arrear, to which fV, C.
replied, that his connection as a
tenant with J. G. had ceased for
several years. The ejectment was
commenced in 1820, and the de-
mise was laid on the 1st of May,
1813: — Held, first, that there was
no adverse possession to bar the
right of the lessor of the plaintiff
to recover in ejectment ; and,
secondly, that the reply of fV. C,
in June, 1813, was sufficient evi-
dence of a prior disclaimer to sup-
port the demise in May, 1813,
without proof of any notice to quit.
Doe d. Grubb v. Grubb. 666
EVIDENCE.
See Bankrupt, 6 — Ejectment —
Pledge by Factor, 3 — Witness.
1. Expired leases, and counterparts
of expired leases, though cancelled,
are admissible in evidence upon a
question of boundary. Plaxlon v.
Dare. 1
2. Old assessments to church rates
are evidence upon a question of
boundary, though the parish offi-
cers do not charge themselves with
778
EVIDENCE.
EVIDENCE.
the receipt of the rate, otherwise
than by crosses set against the
names of the parties rated. Piax-
ton V. Dare, 1
3. A iDemoranduTn at the foot of a
promissory note, indicating a par-
ticular place of payment, forms no
part of the contract, though shown
to be contemporaneous with the
notice itself. IVilliams ▼. Wa-
Ttng* 9
4. Where, in an action by the rever-
dbner against the tenant of a house
tbt opening a door in a wall, with-
out the consent of the plaintiflT,
and thereby damaging the house
and prejudicing the plain tifTs re-
versionary interest, tne opening of
the door is proved and all actual
damage to the house is disproved,
the jury should be directed to in-
quire whether the reversionary
interest of the plaintiff has or has
not been injured. Young v. Spen-
cer. 47
5. A patent for a machine, invented
and first brought into use by the
patentee, is not avoided by evi-
dence of a similar machine having
been previously invented by an-
other, by whom it was never
brought into use in this country.
Lewis v. Marling, 66^ ^
(T. Where a party suing for a mali-
cious prosecution, had obtained a
copy of the indictment, by virtue
of the attorney-generars fiat,
granted under a mis-statement as
to the view entertained by the
judge, before whom the indictment
was tried, the Court refused to
stay the proceedings, or to prevent
the plaintiff from giving in evi-
dence, on the trial, the copy so
obtained. Bronm v. Cumming,
118
7. Where in trespass, the defendant
justifies under mesne process, and
the plaintiffreplies a detention afler
a bail-bond given, an actual arrest
must be proved ; proof of the ex-
ecution of the bail-bond, coupled
with the admission of the trespass
in the special plea, is not sufficient
Reece v. Griffiths. 120
8. In an action on a promissory note,
a declaration made by the plaintiff
before he became the holder, is
evidence to invalidate the note.
WilUams V. . 121
9. The appropriation of shares in a
mining company to a party at his
request — the payment of an instal-
ment on those shares — attendance
at the counting-house of the asso-
ciation, and there signing some
deed, not produced at the trial —
and subsequent attendance at a
general meeting of the share-hold-
ers, his conduct at which be is not
allowed to shew — do not prove a
party to be a partner. Dickenson
V. Valpy. 126
10. In an action by the assignees of
A., where the petitioning creditors
are the assignees of B.^ the pro-
ceedings wider B.'s commission
are not evidence, under 6 Geo. 4,
c. 16, s. 92, of the bankruptcy of
jB. Muskett V. DrumnunuL 210
11. Whether an order by the Lord
Chancellor, under 6 Geo. 4, c. 16,
8. 18, made pendente lite, would
be evidence against a party who
had no notice of it, qtuere. Id.
Und.
12. A defendant cannot justify the
repetition of slanderous words, by
merely proving that at the time
when he repeated them, he stated
that he had heard them from an-
other, whom he named ; he must
also prove that he repeated them
upon a justifiable occasion, and
that he believed them to be true.
Macpherson v. Daniels. 251
13. A private book kept by a de-
ceased collector of taxes, not as a
matter of duty, but for his own
convenience, containing entries by
him acknowledging the receipt of
sums of money in his character of
collector, is admissible evidence in
an action against his surety, al-
EVlDENCaE.
EXECUTION OF POWER. 779
though the parties who had made
the jNiyinetlta were alivei and might
have been called as witnesses.
Afiddietan v. Melion. 264
14. A local paving act authorizes
commissioners, at a meeting to be
called for thai purpose, to order
foot-paths to be rained, &c.t and
direcu that the entries in the com-
missioners' books may be read in
evidence. An entry in the books
stating, that such an order was
made at a meeting held by public
fioticef does not prove that the
meeting was duly holden, so as to
legalize the order. It should ap-
pear by the entry, or be proved
aUtrnde, that notice was given of
ike purpose for which the meeting
was called. Hey sham v. Forster,
277
15. Slanderous words, charged as
addressed to the plaintiff in the
second person, are not supported
by evidence of words spoken of
him in the third person, though so
spoken in his presence. Starmard
V. Harper. 295
16. The master of a vessel does not
incur the penalties imposed by 6
Geo. 4, c. 125, s. 58, for refusing
to take a pilot on board, unless it
distinctly appears in evidence that
the pilot at the time of offering his
services produced his licence.
Hammond v. Blake. 361
1 7. The indorsee suing the acceptor
of a bill payable to the drawer's
order, drawn and indorsed in a
fictitious name, may, by compari-
son of the signatures, shew that
the drawing and indorsing are in
the same handwriting. Cooper v.
Meyer, 387
18. In an action on a policy of in-
surance, where the defence is that
there has been a material conceal-
ment, the opinion of underwriters
as to the materiality of the matters
concealed, may, under certain cir-
curasunces, be admissible evi-
dence. Richards \, Murdoch, 418
19. In an action of trover in the
King's Bench by bill, payment to
the plaintiff*, aner the writ and
before the declaration, of a sum in
satisfaction of the damages and
costs, may be given in evidence
under the general issue, and will
be an answer to the action. Wors-
wick V. Beswick. 586
20. In an action on a promissory
note, made payable on demand,
parol evidence of an agreenient
entered into when it was n>ade,
that it shall not be put in suit until
a given event happened, is not
admissible. Moselty v. Hanford,
607
21. A partial failure of considera-
tion cannot be given in evidence
in answer to an action by the
drawer, or his legal representative,
against the acceptor of a bill of
exchange. Obbard v. Betham,
632
EXCISE DUTIES.
The breach of mere revenue regula-
tions, which tend to insure the due
payment of duties imposed upon
the manufacture of an exciseabte
article, does not render the trade
itself illegal, so as to incapaci|pe
the manufacturer from recovering
the price of such article, or from
suing upon a guarantee given for
the due payment thereof. Brown
y. Duncan. 114
EXECUTION OF POWER.
1 . Land with the appurtenances was
devised to ^, and his heirs for the
use of B. for life, without impeach-
ment of waste, with remainders
over, with power to A., at the re-
quest of the successive cetteux
que use, to sell the estate; and to
that end <^. was empowered by
deed to revoke the uses in the
will, and by the same or any other
deed to convey the estate to the
purchaser. A. sold the estate, ex-
780 FRAUDS, STATUTE OF.
GUARANTEE.
elusive of the timber upon it, and
by deed revoked the uses in the
will, and conveyed the estate to
the purchaser; and by the same
deed B, sold and conveyed the
timber to the purchaser: — Held,
that the power was not well exe-
cuted, and that the revocation was
void. Cockerell v. Cholmeley. 509
2. Conveyance to such uses as A.
shall appoint; in default, to^. for
life, remainder to a dower trustee
for A.'n life, remainder to A. in
fee. B. recovers judgment against
A.f who afterwards appoints the
immediate fee to C. Tnis appoint-
ment overreaches the judgment,
aud entitles C. to enter upon B.*8
possession, obtained under an ele-
git, issued subsequently to the
appointment. Doe d. fVigan v.
Jones. 563
EXECUTORY DEVISE.
See Devise, 1 , 3.
FINE AND RECOVER^,
See Copyhold, Z — Devise, I, 2, 3.
FOREIGN BILLS.
See Bill of Exchange, 3.
FORMEDON.
See Costs, 9.
FRAUDS, STATUTE OF.
1 . An agreement, by which A. was to
furnish B, with turnip-seed to sow
his land, and B. was to sell to A.
all the turnip-seed produced from
the land at 1/. Is. per bushel, was
held to require a note in writing,
under the 17 th section of the Sta-
tute of Frauds, the value having
in fact exceeded 10/. IVatis v.
Friend. 439
2. PlaintifTs tenant being in arrear
for half a year's rent, due at Lady-
day, defendant, an auctioneer, was
in August about to sell the effects
on the premises, when plaintiff
attended and threatened to distrain.
Defendant, in consideration that
plaintiff would not distrain, ver-
bally promised to pay him the rent
then due, and the rent which would
become due at Michaelmas. In
an action to recover both amounts
of rent : — Held, that plaintiff could
recover neither; for that the pro-
mise to pay the accruing rent was
founded on a new consideration,
distinct from the demand which
plaintiff had on his tenant, and was
therefore void under the fourth
section of the Statute of Frauds ;
and that such promise being en-
tire, and void in part, was void
altogether. Thcmas v. Williams.
625
FRAUDULENT PREFERENCE.
l£A. advance money to B., an insol-
vent trader, (or the purpose of
enabling B. to execute an order
for goods, upon the terms of being
repaid out of the price of the
goods, a payment made by B. to
A. out of the price when received,
is not a fraudulent preference.
Hunt V. Mortimer. 12
FRIENDLY SOCIETIES.
The proceedings upon the complaint
of a member of a friendly society,
under 49 G. 3, c. 125, must be aU
before two justices resident in the
county in which the society is held.
Sharp V. Aspinall. 71
GAME LAWS.
See Justices, 2. — Pleading, 1 .
GUARANTEE.
See Excise Duties — Illegal
Trade.
HAWKERS AND PEDLARS.
INSOLVENT.
781
HUSBAND AND WIFE.
!• A debt due from wife dum sola
cannot be set off against a note
given to the wife after marriage, if
the husband elect to treat the note
as his several property, as where
he sues upon it in bis own name,
or indorses it over to a third per-
son ; and it is immaterial that the
wife joins in the indorsement.
Borough V. Moss. 296
2. Whether the debt could have
been set off in an action brought
on the note by the husband and
wife, qu<ere. Id, ibid.
HAWKERS AND PEDLARS.
1. The exemption in 50 G. 3. c. 41,
8. 28, The Hawkers' and Pedlars*
Act, in favour of the real worker
or maker of goods, &c., or his
children, apprentices, and known
agents or servants usually residing
with him, does not extend to an
agent or servant residing in a sepa-
rate dwelling-house, though wholly
employed by such worker or
maker. Bex v. Mainwaring. 36
2. Yeast is a victual within the ex-
ception in 50 G. 8, c. 41, s. 23,
the Hawkers* and Pedlars* Act.
Bex v. Hodgkinson. 162
3. A timber-merchant, residing in
the town oiA,^ and sending timber
from the town of B. to the town of
C. where it is sold by auction, is a
hawker requiring a licence under
50 G, 3, c. 41, s. 7, although the
place of sale were a village. Rex
V. Pease. 507
4. Where a person on one day went
the round of a neighbourhood, so-
liciting and obtaining orders for
tea, but having no tea with him,
and on a subseauent day went the
same round, delivering the parcels
of tea previously ordered : — Held,
that he was not a person " carrying
to sell,** or " exposing to sale*' tea,
within the meaning of 50 G. 3,
c. 41, so as to be liable to a pe-
nalty for trading as a hawker with-
out a licence. Rex v. M'KnighU
644
ILLEGAL TRADE.
See Hawkers and Pedlars.
The breach of mere revenue regu-
lations, which tend to insure the
due payment of duties imposed
upon the manufacture of an excise-
able article, does not render the
trade itself illegal, so as to incapa-
citate the manufacturer from re-
covering the price of such article,
or from suins upon a guarantee
given for the due payment thereof.
Brown v. Duncan^ 114
INCLOSURE,
Set Award, 4. — Settlement by
Estate, 6.
INDICTMENT.
See Costs, 3. — Evidence, 6 —
Pleading, I.
INFERIOR COURT.
See Costs, 8. — Certiorari.
INFORMATION.
See Justices, 2.
INSOLVENT.
See Fraudulent Preference. —
Warrant of Attorney.
1 . A plaintiff in execution for costs
exceeding 20/., is not entitled to
his discharge under 48 0.9^ c.
123, after naving lain in prison
twelve months. TinmoiUh v. Tay-
lor. 44
2. SemhUt that the statute does not
apply to plaintiffs in any case. Id.
ibid.
3. The undertaking of the execution
creditor to pay 3s. Cd. a week to
the debtor under the Lords' Act,
is satisfied by payment to the
turnkey. Gainsford v. Marshall.
485
782 JUDGE'S CERTIFICATE. LANDLORD AND TENANT.
4. The aasignees of an insolvent
cannot recover from a penon
with whom the insolvent has de-
posited the title deeds of an estate,
as a security for a debt, the rents
of the estate received by such per-
son subsequently to the assign-
ment. Garry v. SharraU. 609
INSURANCE.
See PoucY of Insurance.
JOINDER OF PARTIES.
See Costs, 6, 7. — Husband and
Wife.— Sjst-Ofp, 1, 2.
1. An attorney carrying on business
under the firm of '* K. and Son,"
his son not being in fact his part-
rier, may sue alone for the amount
of his bill for professional business
done. Kell v. Namhy, 7Q
2. A covenant with the part-owners
o^ a ship, and their several and re-
spective executors, &c., to pay
money, to accrue for the hire of
the ship, for freight of goods, and
for compensation for the use of
the ship's tackle, &c., to the cove-
nantees, their and every of their
several and respective executors,
&c., at a certam banking-house,
in such parts and proportions as
were set against their several and
respective names, is a severid co-
venant, and cannot be sued upon
by the covenantees jointly. Ser-
vanie v. James. 299
S. Where B. commits. a trespass on
the land of A,, by the direction
and for the benefit ofC, and y^.
sues B. alone, the Court will not
order C. to pay A.*a costs. Berke^
ley V. Demery. 442
JOINT TENANTS.
See Copyhold, 6.
JUDGE'S CERTIFICATE.
See Co^Ts, 10.
JUSTICES.
See Commitment.— CouNiT Rate,
2. — Friendly Societies. — Ses-
sions.— Settlement.
1. A warrant of commitment for re-
examination for an unreasonable
time, as for fourteen days, is wholly
void ; and trespass lies asainst the
committing magistrate, though he
acted without any indirect or im-
proper motive. Davis Y. Capper, 53
2, A conviction before magistrates,
upon an information under the
game laws, is a iudicial proceeding,
at which all the king\ subjects
for^ whom there is room, and
a^inst whom there rests no spe-
cial ground for exclusion, have a
right to be present. Dauhney v.
Cooper, 314
8. Qtkpre— What shall be a wilfiil
detainer of the certificate of regis-
try of a ship, authorizing the inter-
ference of a magistrate under 6 G.
4, c. 41, s. 25. Bowen v. Fox. 4
LANDLORD AND TENANT.
See Ejectment.— Lease. — Settle-
ment BY Estate, 5.
1. Where in an action by reversioner
against the tenant of a house, for
opening a door in a wall, witliout
the consent of the plaintiff, and
thereby damaging the house, and
prejudicing the plaintiff's rever-
sionary interest, the opening of
the door is proved, and all actual
damage to the house is disproved,
the jury should be, directed to in-
quire, whether the reversionary
interest of the plaintiff has, or has
not been injured. A nominal ver-
dict for the plaintiff, without such
direction or inquiry, on the ground
that the defendant had no right to
make the alteration, was set aside.
Young V. Spencer. 47
2, A., the owner of a house which,
in consideration of a premium paid
LIBEL.
LIMITATION OF ACTION. 783
to the lessor, and a covenant to
repair and finish, had heen de-
mised to jB. at a rent amounting
to less than the annual value, re-
deems the land tax thereon under
38 Cr. 3, c. 5, A, is entitled to
an annual payment from fi. in re-
spect of the difference between
the rent and the annual value, viz.
an annual payment bearing the
same proportion to the whole land
tax redeemed, which the diflference
between the rent and the annual
value bears to the ^pnual value.
Wtofd V. Coiuf. 402
LAND-TAX,
5ee Landlord and Tenant, 2.
LEASE.
Stt Evidence, 1. — Landlord and
Tenant, 2. — Muniment Chest.
1. A demise of the glebe by the in-
cumbent of a benefice with cure
of souls, to secure an annuity, is
void by 57 G. 3, c. 99, reviving
13 Ehz. c. SO. Shan v. Pritchard.
180
S. A. agrees to execute to B, an ef-
fectual assignment of the two leases
of a house and shop for ;£4250,
'* as he holds the same for a term
of 28 years," and B. agrees to
accept "a proper assignment of
the leases as above described,
without requiring the lessor's title:*'
Held, that B. was bound to take
an assignment of the two consecu-
tive leases, though the second was
void, being executed under a power
which had not been pursued.
Spraitw.Jeffery. 188
LIBEL.
"Whether matter written or printed by
A, concerning B, is libellous, de-
pends not upon the intention of ^.
to injure B., but upon the tendency
of the publication to produce the
injurious effect. FUh^ v. Clement.
730
LIEN.
See Bankrupt, 7. — ^Insolvent, 4. —
Pledge bt Factor. — Ship's Re-
gistry, 2.-— Trover. — Witness.
LIMITATION OF ACTION.
1. A dock act authorised a company
to make and maintain docks, and
to appoint a dock-master, who
should have power to direct the
mooring, unmooring, moving and
removing of all \essels into or in
the docks, and should have con-
trol over the space of 100 yards
from the entrance into the docks,
so far as related to the transport-
ing of vessels in and out ; the
company to be sued in the name
of their treasurer ; and every ac-
tion brought against any person
for any thing done in pursuance of
the actf to be commenced within
six calendar months afler the fact
committed. In an action brought
against the treasurer for damage
done to a vessel by means of im-
proper directions given by the
dock-master in transporting her
into the docks : — Hela, that giving
such directions was a thing done
in pursuance of the act, and that
the action should have been com-
menced within six calendar months
afler those directions were given.
Smith V. Shaw. 225
2. A. having lent JB. a sum of money,
agreed to continue the loan for
one year, from September, 1826,
to September, 1 827, on condition
that B. would pay a bonus in the
first instance, and legid interest
upon the sum lent half-yearly. B.
paid the bonus in January, 1827,
and legal interest upon the money
lent h5f-yearly, in April and Oc-
tober, 1827. In June, 1828, an
action was commenced against A.
784
MANOR.
NOTARY PUBLIC.
for usury : — Held, that the action
was not commenced within one
year after any offence committed,
for that the only offence committed
was complete in April, 1827, when
the first payment of interest was
made, and that the bonus could
not be apportioned to the second
payment of interest, so as to ren-
der that usurious. fVood v. (74m-
wood, 698
LIMITATIONS, STATUTE OF.
See Promissory Note, 2.
LORUS' ACT.
The undertaking of the execution
creditor to pay 3s. 6rf. a week to
the debtor, under the Lords' Act,
is satisfied by payment to the
turnkey. Gainsford v. Marshall,
45
MALICE.
See Costs, 1, 2,
MALICIOUS ARREST.
See Costs, 1 , 2.
MANDAMUS.
See Copyholds, 1, 2, 6. — ^Notary
Public, 2,
Where a preacher at an endowed
meeting-house has such an interest
in his office and its emoluments as
will entitle him to a mandamus if
disturbed in the use of the pulpit,
he has not such a legal interest in
the endowment, as will entitle him
to retain possession against the
trustees of such endowment. Doe
d. Evans v. Jones, 752
MANOR.
See Copyhold. — Settlement by
Estate, 5.
MASTER AND SERVANT.
See Settlement by Estate, 5.—
Settlement by Hiring and Ser-
vice.
MONEY HAD AND RECEIVED.
See Sheriff.
Rent paid by A, to £., claiming as
devisee, the amount of which A,
is afterwards compelled to pay to
the heir, may be recovered back
by A, as money had and received
to his use, B, setting up no title
to the lands when the action is
brought, or at the trial. Newsome
V. Graham, 64
MUNIMENT CHEST.
The muniment chest of the lessor
and his assigns, is the proper cus-
tody for an expired lease. Plax-
ton V. Dare, 1
MUTUAL CREDITS.
See Bankrupt, 2. — Srt-off.
NEW TRIAL.
A plaintiff nonsuited for want of
formal proof, will not be allowed
a new trial upon payment of costs.
Swayne v. Ingilby, 125
NON-JOINDER.
See Joinder of Parties.
NONSUIT.
See Abatement of Suit. — New
Trial. — Practice, 2, 3, 4.
NOTARY PUBLIC.
1. A person who was bound appren-
tice to a notary for seven years,
and during the whole of that time
acted as banker's clerk till five
NOTICE TO QUIT.
PARTNERS.
785
o'clock in the afternoon daily, and
then went to the notary's office and
employed the evening in presenting
bills of exchange and preparing
protests, is not a person who was
actually employed by the notary
during the whole term, in the
proper business of a notary, within
the meaning of 43 Geo, 3, c. 79,
s. 7, and is not entitled to act as
a notary. Rex v. Scriveners* Com^
pany» 548
2. Nor is such a person entitled to
be admitted to the freedom of the
Scriveners' Company, for the pur-
pose of being enabled to apply for
a faculty to practise as a notary,
within s. 17 of the same statute. Id,
ibid.
NOTICE OF APPEAL.
See County Rate, 1.
NOTICE TO QUIT.
See Ejectmbmt.
1. An agent to receive rents has no
implied authority to give notice to
quit. Doe d.MannY. Walters, 357
2, Where notice to quit is given by
an agent, the authority of such
agent roust be complete a half-
year before the expiration of the
notice, or, at least, before the day
of the demise laid in a declara-
tion in ejectment brought in re-
spect of such notice. Id. ibid,
S, The duly elected minister of a
dissenting congregation, who is
put in possession of a chapel and
dwelling-house by trustees, in
whom they are legally vested, in
trust to permit the chapel to be
used for the purpose of religious
worship, is a mere tenant at will to
such trustees, and his tenancy is
determined by a demand of pos-
session, without any previous no-
tice to quit. Doe d. Jones v. Janes.
616
4. The minister of a dissenting con-
gregation, who is put in possession
VOL. V.
of a chapel and dweUing-house by
trustees, in whom they are legally
vested, in trust to permit the
chapel to be used for the purpose
of religious worship, is a mere
tenant at will to such trustees,
and his tenancy is determined tn-*
sianter by a demand of possession,
without any previous notice to
quit. Doe d. Nicholl v. M*Kaeg.
620
OVERSEERS.
See Church-Ratx, 2. — Parish
Lands.
PARCENERS.
See QuARB Impedit.
PARISH CERTIFICATE.
See Settlement by Acknowledg-
ment.
PARISH LANDS.
The statute 59 Geo. d, c. 12, s. 17,
vests in the churchwardens and
overseers of a parish, all property
belonging to such parish, whether
applicable to the relief of the poor
only, or to the purposes for wnich
the church-rate is made only ; and
whether originally vested in trus-
tees for the benefit of the parish,
or not. Doe d. Jackson v. niUff,
706
PARTITION.
See Copyhold, 6. — Quarb Im-
pedit.
PARTNERS.
See Evidence, 9. — Joinder of
Parties, 1, 2.
1 . To make a party liable to a third
person as a partner, he must either
be in fact a partner, or must have
held himself out to third persons
Se
786
PAYMENT.
PLEADINGS.
as a partner. Dickenson v. Valpy.
126
2» Whether A.^ who has been in-
duced by fraud to enter into a
partnership, can set up that fraud
against his liability to a party who
became a cr^ditor« without know-
ing i^. as a party, ^o^rr^. Id, ibid.
3. The directors of a mining asso-
ciation cannot bind the members
by accepting a bill of exchange,
unless they are authorized so to
do by the deed or instrument of
copartnership, — by the necessity
of such a power to the carrying on
of the business, — by the usage of
similar establishments, — or by the
express assent of the party sought
to be charged. Id. ibid.
4. Still less can the directors bind
the members by a bill drawn upon
the directors by their own ser-
vant, such a bin being in eff^t a
promissory note. Id. ibid,
PART-OWNER.
Quaere^ as to the power of one part-
owner of a ship to appoint a
master, and to displace a master
appointed by another part-owner.
Borven v. Fox. 4
PATENTS.
1. A patent is not avoided by the
specification claiming as part, but
not as a necessary part of the in-
vention, something which proves
to be useless. Lewis v. Marling.
66
2. A patent for a machine invented,
and first brought into use by the
patentee, is not avoided by evi-
dence of a similar machine having
previously been invented by ano-
ther, by Whom it was never brought
into use in this country. Id. ibid.
t>AYMENT.
See Evidence, 18. — Insolvent, 3. —
Lords' Act.
PILOT.
The mkster of a vessel does not in-
cur the penahies imposed by 6
Geo. 4, c. 125, s. 58, for refusing
to take a pilot on board, unless it
distinctly appear that the pilot,
at the time of ofi^ng his services,
produced his licence. Hammond v.
Blake. 861
PLEADING.
See Amendment. — Assault. — As-
sumpsit. — Costs, 9. — Practice,
S. — Quare Impedit, 2.
1. An indictment charging that A.
and others, on &c., at &c., to the
number of three together, did by
night unlawfully enter divers
closes, and were then and tkere^ in
the said closes, armed with guns,
for the purpose of destroying
game, does not sufficiently allege
that the defendants were, fry mghi
in the closes, armed, for the par-
pose of destroying game. 2>arief
V. The King, in error. 78
2. " I believe the mare to be sound,
but I will not warrant her." The
vendee may declare in assumpsit,
as upon a warranty that the mare
is sound to the best of the vendor's
knowledge. Wood v. Sndth. 124
3. In declarnig against the sheriff
for an escape upon mesne process,
it is sufficient to allege that the
writ was duly indorsed for bail,
without adding " by virtue of an
affidavit made and filed of record.*'
Nightingale v. Wilcockson. 169
4. A defendant cannot justifV the
repetition of slanderous words, by
merely pleading that at the time
when he repeated thdm, he stated
that he had heard them from ano-
ther, whom he named; he most
also plead that he repeated them
upon a justifiable occasion, and
that he believed them to be thie.
Macpherson v. Daniels. 251
5. Slanderous words, charged as ad-
dressed to the plaintiff in the se-
PLEDGE BY FACTOR.
POLICY OF INSURANCE. 787
cond person, are not supported by
evidence of words spoken ^ him
in the third person, though so
spoken in his presence. Slamnard
Y.Harper. 295
6. In assumpsit, the defendant pays
money into Court, and the plain-
tiff agrees to take that money and
his costs. The costs are taxed,
and paid by the defendant and
received by the plaintiff. The
plaintiff, altering his mind, does
not take the money out of Court,
and offers to return the costs,
which the defendant refuses to
take. The plaintiff discontinues
the action, and the costs of the dis-
continuance are taxed and paid to
the defendant. These facts will not
support a plea in another action
for the same demand, alleging that
the plaintiff received the money
paid into Court, and the costs^
m full discharge of the cause of
action. Power v. Butcher. 327
7. A plea that A.^ being seised of
Whiteacre and Blackacre, always
used a way over Whiteacre to
Blackacre^and afterwards conveyed
BlackacrCj "together with all ways
and appurtenances whatsoever," to
B.f is not a sufficient justification
of an entry into Whiteacre by B.
8. If, at the time of the conveyance,
J. had no access to Blackacre by
a way appurtenant in alieno solOf
that circumstance should have
been alleged.
9. Or i^ should have been pleaded as
a grant of the way. fVilson v.
Bogthaw. 448
PLEDGE BY FACTOR.
The right of a &ctor, under 6 Geo. 4,
c. 94, 8. 5, to pledge the goods of
his principal, depends upon the
auestion whether, upon the face of
lie whole account between them,
the principal is indebted to the
factor. Robertson v. Kensington.
381
5S. A factor, by desire of his jprinci-
pal, kept separate accounts of
sales, in some of which the prin-
cipal was solely, and in others but
partly interested ; but he regularly
posted all the items of both those
accounts into one general account.
The factor pledged goods con-
signed to him on tiie joint account,
for the purpose of meeting a draft
drawn on him by his principal
against that account. At the time
of the pledge, the factor, upon the
general account, was indebted to
his principal in a larger sum than
the amount of the driA ; but upon
the separate account, against which
the drafl was drawn, and to which
the goods pledged belonged, the
principal was indebted to his fac-
tor :~Held, that the factor had no
right to pledge, and that the pledgee
could not retain the goods against
the principal. Robaiion v. Ken-
tingion. 381
3. Where, in such a case, the prin-
cipal for some, time afler notice of
the pledge, forbore to make any
demand upon the pledgee : — Held,
that such forbearance was not an
acquiescence in the pledge, — and
that in the absence of any evidence
to shew that the effect of such
forbearance had been to alter the
situation of the pledgee for the
worse, or that of the principal for
the better, the riffht of the prin-
cipal against the pledgee remained
entire. Id. ibid.
POACHING.
See Pleading, 1.
POLICY OF INSURANCE.
See Witness.
1. Afier stoppage in transitu, the
vendee ceases to have an insurable
interest. Clay v. Harrison. 1 7
2. A policy of insurance, effected
before stoppage in transitu, be-
comes void by stoppage in transitu.
Id. ibid.
3e2
788 POLICY OF INSURANCE.
POOR RATE.
3. By the custom of UoydTs, pre-
miums of insurance are matters of
account between the underwriter
and the broker, and between the
broker and the assured, without
any privity between the assured
and the underwriter. The broker
has therefore a claim upon the
assured for the amount of the pre-
mium as soon as the policy is
effected, whether he has paid the
underwriter or not, — and whether <
the underwriter has, by the policy,
confirmed the premium to be paid ;
or has taken the covenant of the
broker to pay it. Power v. BtU»
cher. 827
4. ^., at Sydney, ships goods to B.,
at London, by the ship C, and by
the next ship writes to him, direct-
ing him, if the letter arrives before
the C, to wait thirty days, in or-
der to give every chance for her
arrival, and then to insure the
goods. B, receives the letter, and
after waiting thirty-six days, in-
sures the goods, telling the under-
writer when the C. sailed and where
the letter was written, but not tell-
ing him when he received the let-
ter. The C. never arrives. This
is a material concealment, and
avoids the policy. Rickardi v.
Murdoch. 418
5. In an action on the policy, under
such circumstances, the opinion of
underwriters, as to the materiality
of the matter concealed, was held
to be admissible evidence. Id.
ibid.
6. Policy of insurance on goods by
ship ** at and from Singapore, Pe-
nang, Malacca, and Batavia, all or
any, to the ship's port of discharge
in Europe, with leave to touch,
stay, ana trade at all or any ports
and places whatsoever and where-
soever in the East Indies, Persia,
or elsewhere, &c., beginning the
adventure upon the go<3s from the
loading thereof on board the ship
as above." The ship took in some
goods at Batavia, then went to
Sourabaya, a port in the East In-
dies, but not in the direct course
from Batavia to Europe, and took
in other goods, then returned to
Batavia, and afterwards sailed
from thence for Europe, and was
lost by the perils of the sea: —
Held, that the going to Sourabaya
was no deviation, and that the
goods taken in there were pro-
tected by the policy. Hunter yf.
Leaihley. 522
7. Policy of insurance on a ship for
a year, with a stipulation for a
proportionate return of premium,
'* for every uncommenced month,
if the ship should be sold or laid
up." The ship was laid up for
several months during the year,
but was afterwards employed with-
in the year: — Held, that the words
" laid up" meant a permanent lay-
ing up, such as would put a final
end to the policy, and therefore
that the assured was not within
the stipulation, nor entitled to any
returns of premium. Hunter v.
Wright. 611
POOR.
See Church Rate, 2 — Parish
Lands — Settlement.
POOR RATE.
See County Rate.
By the Oxford Canal Act, the pro-
prietors were authorized to take a
mileage tonnage for coals and
other goods, excepting coals for
two miles, in respect of which the
proprietors of the Coventry Canal
were authorized to take all dues
payable under that act, for all coab
carried from the Oxford Canal
within those two miles. By the
same act, the proprietors of the
Oxford Canal were authorised to
take all dues payable under the
Coventry Canal Act, for all goods,
except coals, carried upon tl^ Ox-
POWER OF ATTORNEY.
PRACTICE.
789
ford Canal, and afterwards upon
the Coventry Canal, within three
miles and a half of the point of
junction of the two canals. That
point of junction was in parish P.,
which contained one mile nine hun-
dred and sixty-three yards of the
Oxford Canal, part of the two miles
before mentioned, and two miles
and a quarter of the Coventry Ca-
nal, part of the three miles and a
half before mentioned.
By the Grand Junction Canal
Act, reciting that that canal might
be injurious to the proprietors of
the Oxford Canal, and that com-
pensation should be made to them
for such injury, they were autho-
rised to take ts. 9d, per ton for
all coals passing from the Oxford
Canal into the Grand Junction Ca-
nal, without regard to the distance
they might pass on the Oxford
Canal ; and 4s, 4d, per ton for all
other goods passing from any canal
into the Oxford Canal, and from
thence into the Grand Junction
Canal, or vice versd, without re-
gard to the distance they might
pass on the Oxford Canal.
Held, that the proprietors of the
Oxford Canal were ratable in
parish P. for all the dues received
by them, in the proportion in which
they were severally earned in that
parish, but that, in fixing the rate,
all the expenses incurred in main-
taining the part of the canal situate
in that parish must be first de-
ducted from the total amount of
dues received. Bex v. Oxford
Canal Company, 100
POWER.
See Execution of Power, 1.
POWER OP ATTORNEY.
A power of attorney given by a
debtor to a creditor, authorizing
him to sell an estate, and to a
the proceeds in liquidation ol
debt, is an authority coupled with
an interest, and cannot be revoked.
Gatusen v. Morton, G13
PRACTICE.
See Abatement of Suit — Amend-
ment—Award—Costs, 7 — Evi-
dence, 18 — Pleading, S.
I. Where the sheriff neglects his
duty, the Court would not (even
before the Interpleader Act) en-
large the time lor returning the
writ, although the judgment credi-
tor and the assignees of the defend-
ant refuse to indemnify. Colly v.
Hardy. 123
3. A plaintiff* nonsuited for want of
formal proof, will not be relieved
upon payment of costs. Swayne
V. Ingxlhy, 125
3. A court of error will not inquire
into the propriety of a rule made
by one of the superior courts, for
amending the declaration ; or of a
rule for setting aside a rule to
plead several matters, and for
striking out pleas filed in accord-
ance with such rule ; or of a rule
for setting aside a nonsuit, although
the nonsuit has been obtained in a
form of action (quare impedit) in
which a nonsuit is made peremp-
tory by statute. Bishop of Exeter
V. Gully % in error. 457
4. The Court of Chancery will not
award a writ of diminution, re-
quiring one of the superior courts
— which has given a judgment upon
which error is brought — to certify
the residue of the record and pro-
cess, upon a suggestion, supported
by affidavit, that such Court has
not returned an original record
existing in the cause, for which the
record returned has been substi-
tuted in such Court bv amend-
ments ordered to be made by rule
of such Court. The proper mode
of objecting to such amendments
is by tendering a bill of excep-
tions. Id, 499
790
PROCESS.
5. Where the plaintiflT, in a am tarn
action for usury, sued out his writ
in September, 1828, delivered his
declaration in Trinity term, 1829,
took the record down for trial at
the summer assizes, 1829, and then
withdrew the record; the Court
refused to allow him to amend his
declaration. Wood v. Grimwood.
584
PRINCIPAL AND AGENT.
See AoENT — Notice to quit, 1, 2 —
Plei>oe by Factor — Revocable
Authority.
PRINCIPAL AND SURETY.
See Evidence, 15.
1. A., principal, and B., surety, gave
their promissory note to C.. C.
sues J„ and takes a cognovit pay-
able by instalments, the first in-
stalment to be paid on the day
before that on which C. might
have signed final judgment in the
action, if no cognovit had been
given, with power to issue execu-
tion for the whole debt in case of
default. A, makes default at the
day:— Held, that B. is not dis-
charged. Price V. Edmunds. ZS7
2. Whether B. would have been dis-
charged if the first instalment had
been duly paid, and the further
instalments had thereby stood de-
ferred to a day subsequent to that
on which final Judgment could
have been signed, if no cognovit
had been given, qtuere. Id. ibid,
PROCEDENDO.
See Certiorari.
PROCESS.
Under particular circumstances, one
man may be justified in laying
hands upon another, for the pur-
pose of serving him with process.
Harrison v. Hodgson, 392'
PROMISSORY NOTE.
PROMISSORY NOTE.
See Husband and Wife — ^Partners,
3 — Principal and Surety — Set-
off.
1. A memorandum at the foot of a
promissory note, indicatiog a par-
ticular place of payment, forms no
part of the contract, though shewn
to be contemporaneoos with the
note itself. Williams y. fFaring. 9
2. A. gave his bankers, as a security
for advances, a note by which he
and B. jointly and severally pro-
mised to pay on demand, to the
bankers or order, 300/., with inter-
est. The bankers credited A. with
the amount of the note, and debited
him yearly with interest Upon a
change in the firm of the bankers,
the note, unindorsed, was, with
A.*s account, transferred to the
new firm. At one time A. had a
balance in the bankers' hands ex-
ceedinff the amount of the note.
A. paid interest on the note yearly
to the new as well as the old firm.
Held, first, that the note, being
a continuing security, might be en-
forced> notwithstanding the change
in the banking firm.
Secondly, that the note, not hav-
ing been indorsed, the original
payees, or the survivors of them,
were the proper persons to sue
upon it.
Thirdly, that the note was not
discharged by A/s having at one
time in the bankers* hands a ba-
lance exceeding its amount.
Fourthly, that payment, within
six years, of interest on the note
by A,t took the case out of the
Statute of Limitations as to B,
Pease v. HirsL 88
3. In an action on a promissory note,
a declaration made by the plaintiff
before he became the holder, is
evidence to invalidate the note.
WilUams v. . 121
4. In an action on a promissory note
made payable on demand, parol
RATE.
SESSIONS.
791
evidence of an agreement entered
into when it was made, that it
should not be put in suit until a
given event happened, is not ad-
missible* Moseteu v. Hanford.
607
QUARE IMPEDIT.
See Practice, S, 4.
1. A presentation by A, is a suffi-
cient possession to support a quare
impedit by B„ a party claiming
under the youngest daughter and
co-heir of A,^ after severance
amongst the coparceners, by rea-
son of their disagreeing in presen-
tation. Bishop of Exeter v. Gully,
457
2. In quare impedit by B., a party
claiminff under the fourth daughter
and co-heir of yf., the declaration
alleges, that after severance by
disagreement, the eldest daughter
presented in the first turn, and
that unknown persons successively
presented as in the turns of the
second and third coparceners: —
Held, that these presentations must
be taken to have been by rights
and not by usurpation ; but that if
made by usurpation, they would
not destroy the effect of the pre-
sentation by the common ancestor,
as sufficient to support the posses-
sory right of all the coparceners.
Id. ibid.
3. A conveyance of the property of
the youngest of four coparceners,
when the church is full upon the
presentation of the eldest, express-
ed to be made " in consideration
of 20«. and of faithful service done
to the grantor, as also for divers
good and valuable causes and con-
siderations him thereunto moving,"
is not necessarily fraudulent as
against a subsequent purchaser for
value. Id, ibid,
RATE.
See CHuacB Rate— County Rate —
Poor Rate.
RECOGNIZANCE.
See Certiorari — Sessions—
Sheriff.
RECORD OF ACQUITTAL.
See Evidence, 6.
Semble, that a party indicted and ac-
quitted, is entitled, as of right, to
a copy of the record of acquittal.
Browne V, Cumming. 118
REPEALED STATUTE.
Where a repealing statute is repealed,
the first statute is, after the day on
which the third statute takes effect,
revived ab initio, and not merely as
from that day. Phillips v. Hop-
wood. 15
REVERSIONER.
See Landlord and Tenant, 1.
REVOCABLE AUTHORITY.
A power of attorney given by a
debtor to a creditor, authorizing
him to sell an estate, and to apply
the proceeds in liquidation of nis
debt, is an authority coupled with
an interest, and cannot be revoked.
Gaussens. Morton, 613
RIGHT OF COMMON.
See Award, 4.
SCRIVENERS' COMPANY.
See Notary Public
SESSIONS.
^'ee Church Rate — County Rate—
Poor Rate — Settlement.
Where, upon a recognizance forfeited
at quarter sessions, the sheriff has
levied part of the penalty, and has
tlie defendant in execution for the
residue, the sessions have jurisdic-
792
SET-OFF.
SETTLEMENT.
tion o^er the whole recognizance.
Harper v. Hayton. d05
SET-OFF.
See Bankrupt, 2.
1 . A debt due from wife dum sola,
cannot be set off against a note
given to the wife after marriage, if
the husband elect to treat the note
as his several property ; as where
he sues upon it in his own name,
or indorses it over to a third per-
son ; and it is immaterial that the
wife joins in the indorsement.
Borough V. Mots, 296
2. Whether the debt could have been
set off in an action brought on the
note by the husband and wife,
ott^prf. Id. ibid.
S. The indorsee of an over-due bill
or note, is affected by all equities
attaching to the bill or note, but
not by a set^off^ which would have
been available against the indorser.
Id. ibid.
SETTLEMENT.
By Acknowledgment.
1. A parish certificate, produced in
an appeal, bore date in April, 1 748,
and purported to be signed by two
churchwardens and two overseers.
It appeared by the parish books,
that in May, 1747, nve overseers
had been appointed, two of whom
had signed the certificate. By an
indenture of parish apprenticeship,
dated in October, 1 747, it appeared
that the same five persons were at
that time overseers, and that four
persons were at the same time
churchwardens, two of whom had
signed the certificate ; and, by the
parish books, in July, 1748, that
five overseers were again appoint-
ed, and that four churchwardens
had been regularly chosen from
1683 to 1829. By the visitation
books for 1746, it appeared that
four churchwardens were then
sworn in; those for 1747 were
lost; but by those for 1748, it ap-
peared that in September, in that
year, four churcnwardens were
again sworn in, but that in about
a dozen instances between 1683
and 1829, less than four church-
wardens had been sworn io:—
Held, that the sessions were not
boimd to presume, even for the
purpose of giving effect to so an-
cient a document, either that there
had been a new and valid appoint-
ment of overseers between Octo-
ber, 1747, and April, 1748, the
date of the certificate; or that at
that date less than four church-
wardens were sworn in : and that
they were, therefore, right in re-
jecting the certificate as invalid.
Rex V. Upton Gray. 688
By Appreniiceslttp.
2. An indenture of apprenticeship,
to which parish oflicers are parties,
is valid it allowed by two justices,
under their hands only, though ex-
pense be incurred, (but not clan-
destinely,) by the parish funds,
under 56 Geo. 3, c. 139, ss. 1 to 10.
Rex V. St. Paul, Exeter. 94
3. Sect. 1 1 of that act, which requires
an allowance by two justices, un-
der their hands and seals, applies
only to cases where expense is in-
curred by the parish funds, and
the parish officers are not parties
to the indenture. Jd. Und.
By Birth.
4. A single woman, settled in A., was
removed from B. to C. The order
of removal was quashed, on appeal,
but she had been previously deli-
vered of a bastard child in C.:—
Held, that the child was not set-
tled in A. Rexv.Martksham. 82
By Estate.
5. An estate in remainder, though
vested, will not confer a settlement.
ftex V. fVUloughhy'with-Sloothby.
S2
SETTLEMENT.
SETTLEMENT.
795
6. A burgess receiving, by the allot-
ment of the burgesses, a portion
of the rent of lands held by the
borough, does not thereby gain a
settlement by estate. Rex v. Bel-
ford. 174
7. A gift of land by parol confers
only an esute at will, and an un-
disturbed possession for fifteen
years confers no settlement. Rex
V. Chew Magna. 635
8. Residence, by a tenant at will,
upon an estate of less value than
10/. a year, confers no settlement.
Id. ibid.
9. A pauper was hired as shepherd
by the tenantry farmers of a ma-
nor, to keep the tenantry flock,
at 1 4«. a week, and was to have a
piece of land, called the Shepherd's
Croft, which was to make up mo-
ney as good as 16^. a week ; and
he served a year under that hiring.
By agreement of 1799, between
the lord of the manor, his lessee
of the manor, and the leaseholders
and copyholders of the manor, ar-
bitrators were appointed for divid-
ing and allotting the open fields
and downs within the manor,
among the lessee and the lease-
holders and copyholders of the
manor, in lieu of the lands they
had in the manor. The arbitrators
allotted to the lessee of the manor,
in trust for the shepherd of the
tenantry flock, in lieu of lands in
the manor held by custom by the
shepherd, the piece of land called
the Shepherd's Croft, which the
pauper had when he was hired as
shepherd, and he occupied part,
and let off part to a tenant, during
all the time he served as shep-
herd : — Held, that the pauper took
the land in his character of ser-
vant, in lieu of wases, and there-
fore, that he gained no settlement
by estate. Rex v. South Newton,
7X5
10. A pauper settled in parish A., in
1800 inclosed a piece of waste
land from a common in parish B.,
and held and cultivated it till 1 827,
when he sold and conveyed it to a
purchaser. From 1800 to 1825,
he resided out of parish B., but in
1 825 he removed into that parish,
and in 1 826 built a hut on the land,
in which he lived a year and a half.
In 1806, 1811, and 1817, the pa-
rishioners of B. perambulated that
parish, for the purpose of marking
their boundaries, &c., on which
occasions they pulled up a portion
of the fence of the land so inclosed
by the pauper, dug up part of the
bank, and rode through the inclo-
sure. In 1820 or 1822, a similar
perambulation was made, and simi-
tar acts done, by direction of the
lord of the manor. No acknow-
ledgment was ever paid to the lord
of the manor for the land: — Held,
that there was an adverse posses-
sion for twenty years, and tnat the
pauper gained a settlement by
estate in parish B. Rex v. fVoo-
hum. 723
By Hiring and Service.
1 1 . Where, upon a yearly hirinff from
the 13th of May, the following
13th of May is excluded from the
service by a dissolution of the
contract, no settlement is gained,
although, hy reason of its being
leap-year, the service continue 365
days. Rex v. Roxley. 40
12. What shall be a dissolution of the
cofhtract, and what merely a dis-
pensation with the service, is a
question of fact for the Court of
Quarter Sessions. Id. ibid.
13. A master having said to a pauper,
he thought he would suit him, the
pauper said, his mother would like
to make him an apprentice. The
master said, he would not take him
apprentice, because if he did he
should offend the farmers ; he
would take him on an agreement
for four years. A week afterwards
it was agreed between the pau-
794
SETTLEMENT.
SETTLEMENT.
per's father*iB-law and the master,
that the pauper should serve him
for four years, to learn his trade,
to have meat, drink, washing and
lodging, the whole time, and 2s. 6d,
a week for the last two years :—
Held, that the principal object of
the parties being, that the pauper
should learn the trade of the mas-
ter, this was a defective contract
of apprenticeship, and not a con-
tract of hiring and service. Rex v.
Edingale. 648
14. A pauper hired himself for a year,
at 5L wages and 5t. earnest, to his
aunt, who occupied six acres of
land, and kept two cows; when
his aunt had no work for him, he
was to work for any body else for
his own benefit. This is not a
hiring for a year, but an exceptive
hiring, and service under it confers
no settlement. Rex v. South Kil-
linffhohne, 683
15. A pauper was hired as shepherd
for eleven months. At the end of
that time he was hired for one
month. In the course of that
month he was hired *' to go on
again upon the same terms." He
continued in the service two years
uninterruptedly : — Held, that the
last was a general hiring, under
which the pauper gained a settle-
ment. Rex Y. South NewUm. 715
By Holding an Office,
16. The office of crier and bellman
for a city is a public annual office
within the meaning of the statute
Sh^W.^M, c. 11, s. 6, exe-
cution of which for a year, with
forty days' residence within the
city, will confer a settlement. Rex
V. St. Nicholas, Hereford. 676
17. And if the city contains several
parishes, the party executing the
office will be settled in that parish
in which he has resided during the
last forty days of his execution of
the office. Id. ibid.
By Pmtmiagtn
1 8. A single woman, settled in A., was
removed from B . to C. The order
of removal was quashed on appeal,
but she had been previously deli-
vered of a bastard child in C. —
Held, that the child was not setded
in A. Rex v. Martiesham. 8S
By Renting a Tenement,
19. Under 6 Geo. 4, c. 57, and before
1 W. 4, c. 18, a settlement was
gained by renting a dwelling-house
and land at a rent exceeding 10/.,
actually paid, provided the whole
tenement were occupied under the
renting, although the land were
not occupied by the renter himself,
but by a sub-lessee of the Isnd.
Rex Y. Great Bentley. . 569
20. A person renting the tolls, and
residing in the toll-house, of a na-
vigation, is within the prohibition
in 54 Geo. 3, c. 1 79, s. 5, and can-
not thereby gain a settlement, al-
though he uses the house as a
public-house, and it is worth much
more than lOl. a year, to be let
for that purpose. Rex v. St. An-
drew the Lessj Cambridge, 639
£1. A pauper was hired in 1800 as
labourer, at thirty guineas a year,
to have a house, two gardens, and
a rood of pototoes. After the
bargain was made, his master said
he miffht have the milk of a cow,
and shortly after going into the
service he had the milk of a cow,
which was fed on his master's close
during that part of the year when
cattle are pasture-fed. The value
of the house, gardens, and rood of
potatoes was under 10/. a year,
but with the keep of the cow upon
the land was above that sum : —
Held, that the pauper did not ac-
quire a settlement by the occupa-
tion of a tenement of the yearly
value of 10/., for it was no part of
the contract that he should have
the milk of a cow, and even if it
had been, it was no part of the
SHIFS REGISTRY.
STATUTES.
795
contract that the cow should be
pasture-fed. Rex v. Langriville,
726
SHERIFF.
See Pleadino, 3.— Practice, 1.
1. Where, upon a recognizance for-
feited at quarter sessions, the she-
riff has levied part of the penalty,
and has the defendant in execution
for the residue, the sessions have
jurisdiction over the whole recog-
nizance. Harper v. Hayton, S05
2, And if the sheriff* has notice that
they have discharged the defend-
ant wholly therefrom, before the
money levied has been paid over
to the treasury, an action for mo-
ney had and received lies against
the sheriff* for the amount. Id,
ibid,
SHIP.
See Trover.
The master of a vessel does not in-
cur the penalties imposed by 6
Geo, 4, c. 125, s. 58, for refusin^^
to take a pilot on board, imless it
distinctly appear that the pilot, at
the time of offering his services,
produced his licence. Hammond v.
Blake. 361
SHIP-OVTNER.
See Joinder of Parties, 2. — Ship*s
Registry, 1. — Trover.
Qtutre, as to the power of one part-
owner of a ship to appoint a mas-
ter, and to displace a master ap-
S minted by another part-owner.
owen V. Fox, 4
SHIP'S REGISTRY.
See Trover.
1 . Qtfffff , what shall be a wilful de-
tention of the certificate of registry
of a ship, authorizing the inter-
ference of a magistrate under 4
Geo, 4, c. 41,8. 25. Bowenv,Fox, 4
2. Trover will not lie against a party
with whom the certificate of the
registry of a ship is deposited as a
security for advances, upon a re-
fusal to deliver up such certificate
without payment. Id, ibid,
SLANDER.
See Evidence, 12, 15. — Libel. —
Pleadiko, 4, 5.
SPECIAL JURY.
See Costs, 10.
STAMPS.
See Bill of Exchange, 3, 5.
STATUTES CITED OR COM-
MENTED UPON.
Philip and Mary,
1 & 2, c. 13, Examinations before
magistrates 57
2 & 3, c. 10, Examinations before
magistrates 57
Elizabeth.
13, c. 20, Clergy 180
43, c. 6, Costs 454
James I.
21, c. 3, s. 6, Patents 67
Charles II.
13, c. 2, s. 10, Double costs 509
13 & 14, c. 12, Settlement by rent-
ing a tenement 729
17, c. 8, Abatement of suit 431
22 & 23, c. 9, 8. 136, CosU 325
29, c. 3, s. 4, Parol promises and
agreements M5
— ^ — , — 17, Sales of goods by
parol 439
f§^iiUam and Mary,
3 & 4, c. 11, s. 6, Settlement by
office 676
796
STATUTES.
TENANT AT WILL.
Anne,
12« 8t. 2, c. 16, s. 1, Usury 605
George I.
24, c. 2$, 8. 2, Leap year 43
George IL
20, c. 45, 8. 5, Indenture of appren-
ticeship— stamp 660
24, c. 18, 8. 1, Costs of special jury
623
45
32, c. 26, Insolvent Debtors
George IIL
26, c. 44, Insolvent Debtors 45
32, c. 60, Libel 733
33, c. 5, Insolvent Debtors 45
38, c. 5, Land-tax redemption 402
39, c. 50, Insolvent Debtors 45
41, c. 79, 88. 7, 17, Notaries public
543
— , c. 109, General Inclosure 746
43, c. 46, 8. 3, Costs 29, 31
48, c. 123, Insolvent Debtors 44
49, c. 125, Friendly Societies 71
50, c. 41, Hawkers and pedlars, 36,
162,507,644
— , c. 207, Commercial Docks 226
51, c. 68, Commercial Docks 227
54, c. 179, 8. 5, Settlement by rent-
ing tolls 639
55, c. 51, 8. 14, County Rate — Ap-
peal 695, 7S5
56, c. 139, Parish apprentices 94
57, c. 99, Clergy 180
59, c. 12, 8. 17, Parish lands 706
George IV.
1 & 2, c. 23, General inclosure 746
3, c. 29, 8. 4, Warrant of attorney,
444
— , c 46, 8. 2, Forfeited recogni-
zances 305
4, c. 41, 8. 25, Certificate of ship's
registry 5
—, c. 94, 88. 131, 132, Distillers'
licences 115
5, c. 74, 8. 15, Weights and measures
439
6, c. 16, 8. 3, Act of bankruptcy 364
— t — 9 8* 18, Petitioning creditor's
debt 210
6, c. 16, 8. 34, Commitment of bank-
rupt 380
— , — -, 8. 50, Bankrupt — Mutual
Credits— Set-off 219
— , — , 8. 92, Evidence in suits by
assignees of bankrupts 210
— , — , 8. 126, Bankrupt's discharge
from arrest 352
— , c. 50, 8. 30, Costs of special jury,
62S
— , c. 57, Settlement by renting a
tenement 559
— ^, c. 81, s. 7, Distillers' licences,
114
— , c. 94, 8. 5, Pledge by factors 381
— , c. 125, s. 58, Ships— Pilots 361
7, c. 64, Esnminations before magis-
trates 57
— , , 8. 22, Costs of prosecutions,
167
7 & 8t c. 71, 8. 6, Removal of causes
452
9, c. 69, 8. 9, Poaching 79
mUiam IV.
1, c. 18, Settlement by renting a te-
nement 559
2, c. 45, 8. 20, Parliamentary Reform
730
5 & 6, c. 76, 88. 11 1, 1 12, Municipal
Corporations 755
Fictoria.
1, c. 26, 88. 3, 24, Wills 757
STOPPAGE IN TRANSITU.
After stoppage in transitu the ven-
dee ceases to have an insurable
interest. Clay v. Harrison, 17
SUBPOENA DUCES TECUM.
See Witness, 1.
SURETY.
See Principal and Surety.
TENANT AT WILL.
See Notice to quit, 3, 4— Settle-
ment BT Estate, 3, 4.
Where a preacher at an endowed
TRUSTEES.
VENDOR AND VENDEE. 797
meeting-house has such an inter-
est in his office and its emoluments
as will entitle him to a mandamus,
if disturbed in the use of the pul-
pit, he has not such a legal interest
in the endowment as will entitle
him to retain possession against
the trustees of such endowment.
Doe d. Evam v. Jones. 752
TOLLS.
See TOLL-THOROUOH.
A person renting the tolls, and re-
siding in the toll-house, of a navi-
gation, is within the prohibition in
54 Geo, d, c. 179, s. 5, and cannot
thereby gain n settlement. Rex v.
St. Andrew the Less, Cambridge,
639
TOLL-THOROUGH.
Liability to repair part of the streets
of a town, IS not a sufficient con-
sideration for toll-thorough ex-
tending over the whole town. Brett
V. Beales. 433
TRADING.
See Bankrupt, 5, 6 — Hawkbrs and
Pedlars — Illegal Trade.
TRESPASS.
See Evidence, 7— Justices, 3 —
Ship's Registry — Trover.
TROVER.
See Bankrupt, 7 — Certiorari, 1 —
Evidence, 18.
Trover will not lie against a party
with whom the certificate of regis-
try of a ship is deposited as a se-
curity for advances, upon a refusal
to deliver up such certificate with-
out payment. Bowen v. Fox, 4
TRUSTEES.
See Mandamus — Notice to quit, 3,
4 — Tenant at Will.
USURY.
See Amendment — Bankrupt, 7 —
Limitation of Action, 2.
VENDOR AND VENDEE.
See Assumpsit — Pleading, 2.
1. After stoppage in transitu, the
vendee ceases to have an insurable
interest. Clay v, Harrison, 17
2. Plaintiffs, merchants at Liverpool,
circulated catalogues of goods to
be sold by auction, containing this
condition : — " Payment on delivery
of bills of parcels, by good bills
on London, to the satisfaction of
the sellers, not exceeding three
months' date, to be made equal to
cash in four months." L. and W,,
brokers at Liverpool, sent a cata-
logue to defendants, merchants in
London, who directed L, and W.
to buy certain lots, which they
bought accordingly. Before the
sale began the auctioneer stated
that " payment by known buyers"
was to be ** the usual credit of two
and two months." Z. . and ^. , being
known buyers, obtained the goods
without giving bills, and forwarded
them to defendants in London,
with an invoice, stating that *' pay-
ment" was to be ** equal four
months cash," and drew on de-
fendants for the amount by a bill
at four months from the day of the
sale, which defendants accepted
and paid when due. Within two
months afler the sale L, and W.
failed, never having given plaintiffs
bills for the price of the goods,
whereupon plaintiffs sued defend-
ants for the price: — Held, that
plaintiffs could not recover, as they
had by their own catalogue led
defendants to believe that L, and
W, had given them bills for the
goods, and had thereby induced
defendants to accept and pay the
bill drawn on them by L, and fT,
Horsfall v. Fauntleroy, 653
798
WARRANTY.
WITNESS-
WARRANT OF ATTORNEY.
A warrant of attorney, subject to a
defeasance, which is not written
upon the same paper or parchment,
is valid between the parties, though
it would be void against the as-
signees of a bankrupt or of an in-
solvent. Bennett v. Darnel, 444
WARRANT OF COMMITMENT.
See Commitment.
A warrant of commitment for re-
examination for an unreasonable
time, as for fourteen days, is wholly
void. DamM v. Capper. 5S
WARRANTY.
*' I believe the mare to be sound, but
I will not warrant her." The ven-
dee may declare in assumpsit, as
upon a warranty, that the mare is
sound to the best of the vendor's
knowledge. Wood v. Smith. 124
WEIGHTS AND MEASURES.
Whether, under 5 Ga).4, c. 74, s. 15,
an agreement to sell seeds by the
Winchester bushel, without ex-
pressing the ratio or proportion
which such Winchester bushel
bears to the standard measure, is
yold^qiuere, Watte v. Friend. 4S9
WILL.
See Devise.
WITNESS.
See Evidence.
1. A broker, who has. possession of
a policy, effected by him, and on
which he has a lien, is compel-
lable to produce it under a sub-
poena duces tecum, on the part of
the assured, on the trial of an ac-
tion against the underwriters.
Hunter v. Leathley. 522
2. And he is a competent witness,
notwithstanding his lien, to prove
all matters connected with the po-
licy. Id, ibid.
END OF VOL. V.
C. Rowortb and Sons, Prinlert. Bell Yard, Temple Bar.