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Full text of "Reports of cases argued and determined in the Court of King's Bench, during Michaelmas term, eighth Geo. IV.[-Easter team, eleventh Geo. IV. 1827-30] ... By James Manning ... and Archer Ryland ... With an index and table of principal matters"

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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.