Chan. Cham.]

sanction of the court to a renewal of a lease made by the infant's ancestor and containing a covenant for renewal, Held, that none of the circumstances being alleged under which the court is empowered by the statute to act, the court had no authority to make any order. Semble, the court has authority under Imp, act 11 Geo. IV. and 1 Wm. IV. cap. 65, sec. 16, to sanction such a lease, but the lease must be produced to the court, in order that it may judge of the propriety of its terms.

[Chambers, January 16, 1867.]

G. Murray presented a petition in the matter of the above named infants, and in the matter of 12 Vic. cap. 72, and 29 Vic. cap. 28, setting forth that the infants were seized of certain lands, which had been leased by their ancestor for twenty-one years, with a covenant for renewal for a further term of twenty-one years; that the lessor, their ancestor, had died intestate; that the term granted by the first lease had now expired, and praying the sanction of the court to a renewal lease in accordance with the covenant therefor, and the appointment of a guardian to the infant heirs, to execute the same on their behalf.

THE JUDGES' SECRETARY-This is not a case for applying under the 12 Vic. cap. 72. This court can act under that statute, and sanction sales or leases of an infant's estates only when itis of opinion that a sale, lease, or other disposition of the same, or of any part thereof, is necessary or proper for the maintenance or education of the infant, or that by reason of any part of the property being exposed to waste and dilapidation, or to depreciation from any other cause, his interest requires or will be substantially promoted by such dispositions," and none of those circumstances are alleged to exist in the present instance. Nor has the act 29 Vic. cap. 28, any bearing on the subject.

Under the Imp. act 11 Geo IV. and 1 Wm. IV. cap. 65, sec. 16, the Court of Chancery has power, "where any person, being under the age of twenty-one years, might, in pursuance of any covenant, if not under disability, be compelled to renew any lease made or to be made for the life or lives of one or more person or persons, or for any number or term of years absolutely, or determinable on the death of one or more person or persons," to authorise such infart, or his guardian, by an order, "to be made in a summary way, upon the petition of such infant, or his guardian, or of any person entitled to such renewal, from time to time to accept a surrender of such lease, and to make and execute a new lease of the premises comprised in such lease." (McPherson on Infants, pages 313 and 314) and this act is in force here. On the petition being amended, and styled in the matter of the infants and of this statute, an order may be made; but the proposed lease must be submitted, that the court may judge whether its terms are proper.

GAULT V. SPENCER.

Security for costs-Plaintiffs out of jurisdiction possessed of real property within.

A plaintiff, who is resident out of the jurisdiction, will not be ordered to give security for costs if he is possessed of unencumbered real estate of sufficient value, situate within the jurisdiction.

[Chambers, January 26, 1867.]

Moss moved on notice for an order setting aside two orders for security for costs obtained

[Eng. Rep.

on præcipe by the defendants, it appearing by the bill that the plaintiffs were resident out of the jurisdiction. He read affidavits showing that the plaintiffs were the owners of unencumbered real estate of the value of $800, situate within the jurisdiction, and cited White v. White, Ch. R. 48.

Spencer contra, cited Lillie v. Lillie, 2 M. & K. 404; Lord Lucan v. Latouche, 1 Hogan, 448; Lord Auldborough v. Burton, 2 M. & K. 401.

Smart, for defendant Ketchum, cited Marsh v. Beard, Ch. R. 390; and Harvey v. Smith, Ch. R. 892.

THE JUDGES' SECRETARY, after consideration, granted the order setting aside the orders for security for costs. Costs of the application to

be costs in the cause.

ENGLISH REPORTS.

MITCHELL V. Lee.

Attachment-Rent-Prejudice of collateral securities-Common Law Procedure Act, 1854.

A debt may be attached under the Common Law Procedure Acts, although there may be collateral remedies for its recovery, which are extinguished or kept in abeyance during the attachment.

[Q. B, Jan. 17, 1867.]

This was an interpleader under the following circumstances:

The plaintiff, a judgment creditor, obtained an order calling on a tenant of the judgment debtor to appear and show cause why he should not pay to the plaintiff the rent due to the judgment debtor.

The present defendant, who was a mortgagee of the property, gave notice to the tenant to pay the rent to him, and now applied to set aside the order.

Tomlinson for the defendant.-This 'case is not within the 61st section of the Common Law Procedure Act, 1854, which contemplates ordinary debts and not rents. The remedy against the garnishee was not intended to interfere with the ordinary relation of landlord and tenant, for in such case the rent is not only recoverable by an action for use and occupation, but there is also the right of the lord to distrain, which may be prejudiced by being suspended. In cases of collateral remedies for debts these would not be transferred and must be either extinguished or held in abeyance while the debt is bound. Nothing can be attached that the judgment creditor cannot hold as beneficially as the judgment debtor: Newman v. Rook, 4 C. B. N. S. 434, per Willes, J., "the operation of the statute is to give the judgment creditor the same rights exactly as the judgment debtor himself had." All the authorities show that rent is not attachable by the custom of London, to which this Act was assimilated. Com. Dig. tit. Attachment D; Locke's Practice of Foreign Attachment, p. 40; Brandon's Law of Foreign Attachment, p 35.

Manisty, Q. C., for the plaintiff, contra.

COCKBURN, C. J.-Though it may be hard on a person who has a collateral security for a debt that his power of enforcing it should be lost while the debt is tied up, the language of the Act is too strong to allow us to take into considera

Eng. Rep.]

tion such a result in construing the words used. The Act says that "All debts owing from the garnishee to the judgment debtor may be attached, and this is a debt, although the landlord has also, in addition to his right of action, certain summary and extraordinary remedies. Possibly it may be inconvenient that he should be prevented from putting them in force, but we cannot consider this in our interpretation of the Act.

BLACKBURN, J.-I am of the same opinion. Mr. Tomlinson has been unable to shew any specific lien or claim on these sums of money, so as to bring the case within the 29th section of the Common Law Procedure Act, 1860; and therefore, as far as that point is concerned, his client must be barred. Besides this, the objection is raised, that such a proceeding does not apply to rent on the ground that there is in such a case a collateral remedy for its recovery by distress. No doubt inconvenience may arise, not only in this case but in others, such as a warrant of attorney to sign judgment. In this and similar instances, there is a collateral remedy which is not transferred, but only suspended, and inconvenience may arise from such remedy being suspended, but all we have to consider is the working of the Act, and that, I quite agree, embraces the present case.

MELLOR and LUSH, J. J., concurred.

Rule absolute, the claim to be barred and execution to issue against the garnishee.

GLADMAN V. JOHNSON.

Dangerous animal-Scienter-Evidence-Knowledge of hus band inferred from notice to wife. The plaintiff was bitten by a dor belonging to the defendant; the dog had, four years before, bitten a boy, and, on another occasion, torn a person's dress. These facts were communicated by the aunt of the boy bitten to the defendant's wife, on the defendant's premises, but there was no evidence that the wife had communicated them to her busband.

Held, that there was some evidence'from which a jury might infer that the defendant knew of the savage nature of the dog. [C. P., Jan. 11, 1867.]

Declaration. For wrongfully keeping a savage dog, which bit the plaintiff, knowing the same to be of a fierce and savage nature.

Pleas.-1. Not guilty

2. That the dog was properly secured in a place where the plaintiff had no right to go; that the plaintiff was trespassing and came within reach of the dog; aud that the injury complained of was occasioned by the negligence of the plaintiff

Joinder of issue.

The cause was tried before Smith, J., when it appeared that the defendant occupied premises which consisted of a house fronting the road, at the back of which was a yard, where there were some sheds and outbuildings. He carried on the business of a dairyman in the house, which was ordinarily entered by his customers through a door fronting the road. The defendant carried on the business of a corn-dealer in the yard at the back of the house, and the entrance to the yard was from a lane at right angles to the main road.

The plaintiff had been in the habit of purchasing milk at the defendant's shop, and went to the

[Eng. Rep.

shop one Sunday morning He attempted to enter the shop by the front door, but finding it locked, he went through the yard to the back door. As he was leaving the house and crossing the yard, a dog belonging to the defendant flew at him and bit him, and did the injuries complained of.

The defendant's wife assisted the defendant in the management of the milk business.

It was proved that, four years before this accident happened the same dog had bitten a boy named Gibson, and on that occasion Gibson's aunt went to the defendant's premises and gave an account of the accident to the defendant's wife. The defendant's wife denied that any such communication had ever been made to her.

It was objected by the counsel for the defendant that the communication could not be taken to have been made to the defendant, and that there was no evidence to prove the scienter. It was also proved that on another occasion the dog had torn a person's dress.

The learned judge thereupon nonsuited the plaintiff, with leave to him to move for a rule to enter the verdict for £15 (the damages agreed upon) if the Court should be of opinion that there was any evidence from which the jury could infer that the defendant was aware of the savage nature of the dog.

On a former day.

Prentice, Q. C, had obtained a rule accordingly.

T. Jones, Q. C., now showed cause, and contended that notice to the wife of what had taken place was not notice to the husband; that the Court could not infer that she had communicated what she had been told to her husband. If a person had stated to the defendant's wife that he served a writ on the defendant, that would not be evidence that the defendant knew that the writ had been served Nor could the defendant's wife have been asked whether she communicated this statement to the defendant: 16 & 17 Vict. c. 83, s. 3; O'Connor v. Majoribanks, 4 M. & G. 435. It must also be shown that the defendant knew that the dog was accustomed to bite mankind: Thomas v. Morgan, 2 Cr. M. & R. 496. Here the evidence only refers to two cases. [WILLES, J.-The plaintiff need only show that the dog indicated an intention to bite.]

Prentice, Q. C., in support of the rule.-There was some evidence that the defendant was aware of the savage nature of the dog; notice to the wife is always sufficient. The case is governed by the case of Stiles v. The Cardiff Steam Navigation Company, 12 W. R. 1080, 33 L J. Q. B. 310.

BOVILL, C.J.-I am not prepared to assent to the proposition put forward by Mr. Prentice, that notice to the wife would in all cases be sufficient. Here the wife attended to the milk business; the dog was kept in the yard, when Gibson was bitten by the dog on a former occasion his aunt went to the defendant's premises in order to make a complaint to the defendant; the defendant's wife appeared, and the formal complaint was made to lie; it was contended that that complaint should have been communicated to the defendant; but I think that there was evidence from which a jury might have inferred that that complaint had been communicated to the defendant, and that the scienter was proved.

[Eng. Rep.]

WILLES, J.-I am of the same opinion. If I had had to try this case, I should have taken the same course as that taken by the learned judge at the trial. There was some slight evidence to show the ferocious character of the dog, and that the defendant was aware of that character. I think the verdict must be entered for the plaintiff The dog had bitten one person before, and had torn the dress of another; those are the facts; and that is some evidence that the dog was accustomed to bite mankind. Then was there any evidence of the defendant's knowledge? the aunt of the boy who was bitten saw the defendant's wife, at the defendant's house, and communicated the facts to her, the wife in the absence of the husband was the proper person to lock up the dog. That complaint was delivered in the character of a message, and it was the duty of the wife to make known to her husband the circumstances of the case. I cannot say that there was no evidence to prove the scienter, and therefore the rule to enter the verdict for the defendant must be made absolute.

KEATING, J.-I am of the same opinion. The evidence was very slight, so slight that it appeared to my brother Smith that it ought to be withbeld; there was some evidence, and therefore the rule must be made absolute

SMITH, J.-I am glad that the Court can come to the conclusion that there was evidence; the only question is as to the defendant's knowledge of the savage nature of the dog. I regret that the law should make it necessary that that should be proved; but as that is the rule, I do not regret that its stringency should be to some extent mitigated. In my opinion there was some evidence from which the jury might infer that the scienter was proved.

Rule absolute.

HUFFER V. ALLEN AND ANOTHER. Practice-Common Law Procedure Act, 1852, s. 27-Payment before judgment-Estoppel.

An action for maliciously and without reasonable or probable cause siguing judgment for a larger sum than was due at the time when judgment was signed is not maintainable so long as the judgments has not been set aside. [Ex., Nov. 14, 1866.]

Declaration. That the plaintiff was indebted to the defendants in the sum of £28 0s. 9d., that the defendants commenced an action against him by serving him with a writ specially indorsed for that amount; that before appearance was entered, and before judgment was signed the plaintiff paid to the defendants the sum of £10 on account of the said debt; that after such payment the defendants wrongfully and maliciously, and without any reasonable or probable cause, caused judgment to be signed against the plaintiff for default of appearance for the full amount of the debt of £28 Os. 9d. with costs, without giving credit for the sum of £10, and thereby the defendants wrongfully, and maliciously, and without any reasonable or probable cause, caused a judgment to be signed for a sum exceeding £20 exclusive of costs, and wrongfully and maliciously, and without any reasonable probable cause, caused a writ of ca. sa. for the sum of £28 0s 9d. and costs, to be issued, and the plaintiff to be arrested; to discharge himself

or

[Eng. Rep.

from which arrest he was compelled to pay the sum of £35 19s. 3d.

To this count the defendants demurred. 2nd. count. That the defendants, by the judgment of the Court, recovered the sum of £28 Os. 9d., and £4 costs, making the sum of £32 Os. 9d., and that the plaintiff paid to the defendants the sum of £10 on account of the said debt and costs, and the defendants wrongfully and maliciously, and without reasonable or probable cause caused a writ of ca. sa to be issued for the sum of £32 Os. 9d., and the plaintiff to be arrested; to discharge himself from which arrest he was compelled to pay the sum of £35 19s. 3d.

To this second count, the defendants pleaded a 7th plea, that the plaintiff was estopped from alleging the payment of the sum of £10, because such payment was made after action brought, and before judgment was signed, and that after such payment it was considered by the judgment of the said Court in the said action that the defendants should recover against the plaintiff the whole of the debt and costs, amounting to £32 Os. 9d.

To this 7th plea the plaintiff demurred, and replied that the judgment was obtained by fraud.

This replication was demurred to by the defendants; but the replication and the demurrer were withdrawn.

Hayes Serjt. (Granthan with him) for the defendants. As the defendants recovered judgment for the whole debt subsequent to the payment of the sum of £10 by the plaintiff, he is estopped from averring the payment of such sum, or from denying that the whole amount was due. The course that he should have adopted was to have applied to have the judgment set aside, for, while the judgment stands uncontradicted, it shows conclusively between the parties that the whole debt of £28 0s 9d. was due.

Gilding v. Eyre, 9 W. R. 946, 31 L. J. C. P. 174, 10 Č. B. N. S. 592, is materially different from the present case, as there the payment was made after judgment was signed.

The plaintiff here might have appeared to the writ, and pleaded the payment of the £10, after the commencement of the action. [KELLY, C. B. -The plaintiff having failed to appear, judgment is signed, and properly signed, against him; you say then, that he cannot now come and complain of what has taken place, until he has, by due course of law, had the record corrected by the Court. The plaintiff is going against the established principle, that a judgment while it stands uncontradicted is conclusive.

Henry Matthews (J. O. Griffiths with him) for the plaintiff. This action is maintainable. The judgment which is alleged in the first count, is an irregular judgment, and the plaintiff is therefore not estopped from disputing it. The judgment should have been signed only for the balance due, and not for the whole amount claimed: Hodges v. Callaghan. 5 W. R. 532 2 C. B N. S. 306, 26 L. J. C. P. 171. Willes, J, there says, The plaintiff ought to represent the Court as pronouncing judgment in his favour only for the sum which is really due to him." [ [Bramwell, B.. This is not an irregular judgment except in point of morality; that is to say, it is warranted by the proceedings by which it

Druce, Q C., applied to discharge the order for taxation He contended that Oliver was not employed as solicitor, and the fact that his legal knowledge might be useful in his occupation of canvassing agent, did not make him a legal agent. He referred to Allen v. Aldridge, 5 Beav. 401; Re Osborne, 6 W. R. 401, 25 Beav. 353.

C. Hall, for Fenwick, contended that besides the general legal agents each canvassing district had a legal agent at the head of it, and Oliver was one of these last.

Jan 24-LORD ROMILLY, M. R. This order must be discharged. In the case of Re Osborne the retainer was for professional services. Here that is not the case, and the fact that Oliver is a solicitor does not make his bills liable to taxation if, as appears here, he was employed in another capacity. This, however, is not a case in which it will be proper to give costs.

DIGEST.

DIGEST OF ENGLISH LAW REPORTS.

COMMENCING JANUARY, 1866.

(Continued from page 31.)

EQUITY PRACTICE (Continued).

6. When a receiver appointed in a suit passes his accounts, and the same solicitor appears both for the receiver and the plaintiff, only one copy of the account can be allowed between them on taxation.-Sharp v. Wright, Law Rep. 1 Eq. 634.

7. A defendant to whom a decree has given the conduct of a sale will not be ordered to pay, if there are no funds in court, the costs of a purchaser discharged from his purchase on the ground of bad title.-Mullins v. Hussey, Law Rep. 1 Eq. 488.

See APPEAL, 1; DECLARATION OF TITLE; EQUITY PLEADING, 3; INTERROGATORIES, 5; PATENT; PRODUCTION OF DOCUMENTS; SUBSTITUTIONAL SERVICE; VENDOR AND PURCHASER, 4. ESTOPPEL.-See RES ADJUDICATA. EVIDENCE.

1. Entries of pedigree in a family Bible or Testament, produced from proper custody, are admissible in evidence, without proof of handwriting or authorship.-Hubbard v. Lees, Law Rep. 1 Ex. 255.

2. Certificates of births, baptisms, &c., are admissible in evidence, without proof of the identity of the persons mentioned with the persons as to whom the fact recorded is sought to be established.-Hubbard v. Lees, Law Rep. 1 Ex. 255.

See BANKRUPTCY, 11; CONVICTION; MARRIAGE, 2; PAROL EVIDENCE; PRODUCTION OF DOCU

MENTS.

EXECUTOR.

1. A testator directed his debts to be paid, and then gave all his personal estate to trustees, to get in as they deemed expedient, and divide the proceeds among his children, except some furniture, which he gave a daughter. Held, that the trustees were executors according to the tenor.-Goods of Bayles, Law Rep. 1 P. & D. 21.

2. The Probate Court will act on an informal deed of renunciation which states in substance, though not in terms, that the executor has not intermeddled. Goods of Gibson, Law Rep. 1 P. & D. 105.

3. The fact that one who has unsuccessfully propounded a will is a nude executor, does not relieve him from liability for costs. Rennie v. Massie, Law Rep. 1 P. & D. 118.

See ADMINISTRATION; BANKRUPTCY, 2; EXECU-
TOR DE SON TORT; LIMITATIONS, STATUTE
OF, 1; TENANT FOR LIFE, AND REMAINDER
MAN, 1.

EXECUTOR DE SON TORT.

1. A settled account, by an executor de son tort with the rightful representative before suit, is a good answer to a bill in equity against him for an account.-Hill v. Curtis, Law Rep. 1 Eq. 90.

2. A person to whom an executor de son tort has handed property of the deceased, may perhaps be sued as a constructive trustee, but is not an executor de son tort.-Hill v. Curtis, 1 Law Rep. Eo. 90.

FALSE PRETENCES.

A person may be convicted of obtaining goods on false pretences, though he intended to pay when he should be able.-The Queen v. Naylor, Law Rep. 1 C. C. 4.

FIDUCIARY RELATION.-See CONFIDENTIAL RELATION. FIXTURES.

In ascertaining the gross estimated rental of gas-works, in assessing them to the poor-rate, a deduction should be made in respect of gasmeters belonging to the company, but put upon the premises of consumers, as they are mere chattels; but deductions should not be allowed in respect of retorts, purifiers, steam-engines, boilers, gas-holders, or such trade fixtures as pumps and exhausters, which are fixed to the freehold, but would be removable as tenant's fixtures; for all these, though capable of being removed, are yet so far attached as that it was intended they should remain permanently connected with, and permanent appendages to, the freehold, as essential to the purpose for which the works were made. And it makes no difference, that, by the usual practice in letting gas