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HUFFER V. ALLEN AND ANOTHER-IN RE OLIVER.
has been obtained. I understand Willes, J., to If the plaintiffs in the original action (the mean by “ought” that it was the plaintiff's present defendants) or their attorney, well knowmoral duty to sign judgment only for the balance ] ing that the £10 band hopp puiit, had nevertheless The judgment in this case was clearly signed | signed judgment for the larger vum, and then without reasonable or probable cause, and ma- proceeded to issue execution. I see no reason why liciously (Bramwell, B.--The regularity or ir- the present plaintiff should not muintir ais regularity of the judgment does not depend action against them after having the judgment on the bona fides or mala fides of the party reduced sigoing it ] The plaintiff is, at all events, It is a necessary preliminary that he should entitled to maintain this action to recover the do away with, and correct the judgment before £10. The law of estoppel is clearly subject he can maintain this action. to this qualification — that if some matter has
BRAMWELL, B.-I agree with what my Lord either not been raised or not determined in
has stated, except in the regrets that he has exa suit, the judgment, as far as that matter is
pressed at the position of the present plaintiff, concerned, does not act as an estoppel. The
which is entirely owing to the course he bas judgment in this case does not state whether the
thought fit to pursue. It is quite clear that the money was paid before judgment was sigged, or
plaintiff cannot attack any of the proceedings of whether credit ought not to have been given for the defendants unless be first attack the judgit, and although the plaintiff is estopped as re- ment. He should bave gone before a judge at gards the payment of the sum of £28, he is not
chambers and had the judgment set aside. Until estopped from recovering the sum of £10; Gild
that is done, it is contrary to all precedent and ing v. Eyre, 9 W. R. 946, 10 C. B. N. 8. 592, 81
all principle to say that what it contains is LJ. C. P. 174, is in point for the plaintiff. As erroneous It is alleged by the plaintiff that tbe plaintiff cannot recover the £10 as money the demurrer admits that the judgment was bad and received (De Medina v. Grove, 10 Q B. signed wrongfully, as it adınits the payment of 152, 172, 15 L. J. Q. B. 287) he will be without the £10. But that is not the case. The dem& remedy unless he be allowed to maintain this
urrer of the defendants is equivalent to their say. action.
ing. • We decline to enter into the question with Hoyes Serjt., was not called upon to reply. you while that judgment remains on the record KELLY, C. B.--I am of opinion that this action
unaltered, and until you attack it ” I am not is not maintainable. I say so with great regret,
sure even whether the plaintiff would be entitled for if the act done by the plaintiffs (the present
to bave the judgment set aside, as in my opinion defendants) was knowingly done, and if the time
it is very questionable whether he ought not to that they signed judgment for the whole debt of
have pleaded the payment of the £10. That £28 0s. 9d., they were aware that the debt bad
question, however, is immaterial, and not in issue been reduced from £28 Os. 9d. to £18 Os. 9d.,
now, and it is unnecessary to decide it On the their conduct was altogether unjustifiable. But
broad principle that wbile the judgment remains we must decide according to the law of the case
as it does, it cannot be impeached by either and the question for us here is whether a judg.
party, I think that the demurrer must be
allowed. ment which, in contemplation of law, is an act of the Court, does not estop either party from
CHANNELL and PIGOTT, B.B., concurred. allegiog a state of facts at variance with it. The judgment of a Court of competent juris
IN RE OLIVER (A SOLICITOR) diction, to use the language of the old books, “imports incontrovertible verity” as to all the
Election agent— Taxation-Solicitor employed as Canvassing
agent. proceedings which it sets forth, and it is not com
Where, for a Parliamentary election, a solicitor was employo petent, for either the plaintiff, or defendant, to ed as canvassing agent, other persons being employed as introduce into it anything impeaching its accu
legal agents. racy.
Held, that his bills were not liable to taxation. I am of opinion that we are bound to act
(M. R., Jan. 22, 24, 1867.] According to the well establisbed principle which
This was a motion to discharge an order for I have just mentioned, and that we must take
the taxation of a solicitor's bills. the facts to be as stated in the judgment, which,
Mr. Fenwick was a candidate for the reprein a manner not to be contraverted or impeached sentation in Parliament of the borough of Sunby either of the parties, says that the debt at
derland at the general election in the year 1865. the time of the signing of the judgment was
and at the election in the year 1866 He £28 Os. 9d., and not £18 (s. 90.
employed two persons who were solicitors, as
bis legal agents, and had also district canIt has been urged by Mr. Matthews, that if
vassing committees with agents at their head. we hold that the plaintiff is not entitled to main
The head agent of each district was a solicitor. tain ihis action, he will be left without a remedy.
Mr. Oliver, on whose behalt the present applicaThat is not so. As soon as the plaintiff had
tion was made, was duly retained as Mr. Fenascertained that the judgment was signed for
wick's agent for one of the districts. Oliver had £28 0s. 93., it was competent for bim to apply either by motion to the Court, or by summons
sent in some bills made out on the principle that
he was employed as canvassing agent and not before a judge at chambers, to be let in to ap- as solicitor, and bad brought an action for the pear and defend, or to bave the judgment set
amount, and Mr Fenwick bad obtaine i an order aside or reduced.
for taxation, which stopped the legal proceedAg he has failed to adopt such a proceeding, inge. Persons not solicitors had been appointed the judgment stands unaltered.
to act with Oliver in his district.
Druce, Q. C., applied to discharge the order for taxation. He contended that Oliver was not employed as solicitor, and the fact that bis legal knowledge might be useful in his occupation of canvassing agent, did not make bim 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 bad a legal ngent at the head of it, and Oliver was one of these last.
Jan. 24.- LORD ROMILLY, MR. —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 cap.city. This, however, is not a case in which it will be proper to give costs.
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. Husey, Law Rep. 1 Eq. 488. See APPEAL, 1; DECLARATION OF TITLE; EQUITY
PLEADING, 3; INTERROGATORIES, 5 ; PATENT;
SERVICE; VENDOR AND PURCHASER, 4.
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
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; Exkcu
TOR DE SON Tort; LIMITATIONS, STATUTE
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. Curtir,
1 Law Rep. Eq. 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.-Sec CONFIDENTIAL RELATIOX. 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 differ. ence, that, by the usual practice in letting gas.
Digest of English REPORTS.
works, the tenant would have to purchase all the above property.—The Queen v. Lee, Law
Rep. 1 Q. B. 241. FRAUDS, STATUTE OF.
1. Previously to a marriage, the intended husband and wife agreed in writing, that the husband should have the wife's property for his life, he paying her £80 pin-money, and that she should have it after his death. They gave instructions for such a settlement, which was prepared accordingly, when they agreed to have no settlement; the husband promising, as the wife alleged, to make a will giving her her property. The marriage took place, and the husband made a will accordingly; but afterwards made a different will. Held, that there had been no part performance to take the case out of the statute of frauds.-Caton v. Caton, Law Rep. 1 Ch. 137.
2. If a landlord verbally agrees to grant his tenant a lease for a new term at an increased rent, but dies before executing the lease, payment of a quarter's rent, at the increased rent, before his death, is sufficient part performance to take the case out of the statute of frauds.Munn v. Fabian, Law Rep. 1 Ch. 38.
? The plaintiff having contracted to supply goods to C. for cash, the defendant promised the plaintiff, that, if he would supply the goods to C., drawing upon C. at one month, and would allow the defendant three per cent on the amount of the invoice, he would pay the plaintiff cash, and take C.'s bill “without recourse," --that is, buy the bill of him,-held, that this was a promise to answer for the debt or default of another within the 4th section of the statute of frauds.—Mallet v. Bateman, Law Rep. 1 C. P. 163.
4. A letter, written by A. to his agent, referring to letters of the agent, stating the terms on which the latter has made a contract on A.'s behalf for the purchase of goods, is a sufficient memorandum to bind A. under the 17th section of the statute of frauds.—Gibson v. Holland, Law Rep. 1 C. P. 1.
5. A written contract was made for the sale of goods, to be delivered within a specified time. Before the time for delivery, the parties agreed orally to extend the time for delivery. Held, that the oral agreement was not “good” under the 17th section of the statute of frauds, and could not operate as a rescission of the written contract; which might therefore be
enforced.— Noble v. Ward, Law Rep. 1 Ex. 117. Heir.
A. gave by will real and personal property to B. for life, remainder to B.'s sons in tail,
remainder to his own right heirs. B. died without issue, and, claiming to be A.'s heir, disposed of the property by will. A.'s sole next of kin then diled a bill to recover the personal estate from B.'s executors, alleging that A. left no heir; or that, if he did, it could not be ascertained who was such heir. B.'s executors er.tered into evidence to prove that B. was heir. The evidence did not establish this, but shewed that A. must have left an heir. The plaintiff offered no evidence. The court refused to direct an inquiry whether there was an heir, and dismissed the bill. ---De Beauvoir v. Benyon, Law
Rep. 1 Ch. 212. Highway.
1. On a bill filed by the vestry of a parish to remove a building over a way, alleged to have been dedicated to the public for forty years, it appeared that for the first twenty years there had been a lease from the owner with a right to build over the way; that then the lease became merged in the inheritance; and that, since, the vestry had claimed the way as belonging to them for the exclusive use of the parish. Held, that the suit could not be maintained on its merits.-Bermondsey v. Brown, Law Rep. 1 Eq. 204.
2. Horses grazing on the side of a turnpike, under control of a man in charge of them, cannot be impounded as “wandering, straying, or lying,” about the road, under 4 Geo. IV., c.
95, 8 75.- Morris v. Jeffries, Law Rep. 1 Q.B. 26. HUSBAND AND Wife.
1. A recital in a marriage settlement of an agreement to settle after acquired property of the wife, does not control a covenant by the husband alone without the words “it is hereby agreed,” and the wife is not bound.— Young v. Smith, Law Rep. 1 Eq. 180.
2. If the husband of a woman who has become entitled to property for life, under a will which provides that on her death without children the property shall go to her personal representative, covenants in a a post-nuptial settlement, that all the property which may thereafter, during the period of the joint lives of himself and his wife, devolve on her, shall be her separate property, the above-mentioned property, on the wife's death without children, is not subject to the covenant, and does not go to the executor named in the wife's will, but to the husband as general administrator.- Wyndham's Trusts, Law Rep. 1 Eq. 290.
3. A legacy, to which a woman becomes entitled during coverture, may be settled so as to give her husband a life-interest, determinable
Digest OF ENGLISH REPORTS.
on bankruptcy or alienation. — Mont-fiore v. Behrens, Law Rep. 1 Eq. 171.
4. The plaintiffs, husband and wife, sued for goods supplied by them in carrying on the business of the wife's father, whose administratrix the wife was. The goods were made of materials purchased from moneys out of the intestate's estate. Held, that the wife was wrongly joined, and the husband must sue alone.—Bolingbroke v. Kerr, Law Rep. 1 Ex. 222.
5. An order enabling a married woman, without her husband's concurrence, to dispose of her revisionary interest in stock, on her affidavit that she was living apart from her husband by mutual consent, will not be rescinded, after the rights of third parties have intervened, on an affidavit of the husband, that, though he generally resided apart from her on an allowance out of her estate, he occasionally visited and slept with her.-In re Rogers, Law Rep. 1 C. P. 47.
See MARRIAGE; Power, 5; SEPARATE USE. ILLEGAL CONTRACT.-See Contract; LEASE, 3. INDICTMENT,
An indictment for refusing to aid a constable, and to prevent an assault on him by persons in his custody, with intent to resist their lawful apprehension, need not show that the apprehension was lawful, nor aver that the refusal
adultery and cruelty, the court, being of opinion that neither the father nor mother were fit to be intrusted with the custody of the children, gave it to interveners, relatives of the husband; but directed that the parents should be allowed reasonable access. — Chetwynd v.
Chetvynd, Law Rep. 1 P. & D. 39. INJUNCTION.
1. A mandatory injunction may be granted where the injury is completed before the filing of the bill, whether the injury is to easements or to other rights; but such injunction will be granted only to prevent very serious damage. -Durell v. Pritchard, Law Rep. 1 Ch. 244.
2. A claim of a writ of injunction cannot be pleaded to.-Booth v. Taylor, Law Rep. 1 Es. 51. See CARRIER, 5; COVENANT, 1, 2; LEASE, 4;
Light, 2; MORTGAGE, 1 ; NUISANCE; Patent;
PRINCIPAL AND AGENT, 4; Trade Mark, 3. INNKEEPER.
A licensed victualler cannot be convicted of opening his house on Sunday for the sale of wine, &c., “the same not being for the refreshment of any traveller," if he has opened his house for the bonâ fide supply of refreshments to travellers by a railway train, from the mere fact that refreshment has been supplied to persons residing within a mile of his house who did not come by the train.—Peache v. Colman,
was on the same day as the assault
, nor that Law Rep. 1 C. P. 324.
the assault which the defendant refused to prevent was the same as that which the prisoners made on the constable, nor is it an objection that the assault is alleged to have been made by persons already in custody; and a warrant of a refusal, without an allegation that the defendant did not aid. is sufficient. - The Queen
v. Sherlock, Law Rep. 1 C. C. 20. INFANT,
1. A father, a beneficed clergyman of the Church of England, appointed his widow and a clergyman, guardians of his two infant children. The widow became a member of the sect of Plymouth Brethren. On the application of the other guardian, the court ordered the children, twelve and fifteen years old, to be brought up as members of the Church of England, and restrained their mother from taking them to a chapel of the Plymouth Brethren. The court paid no regard to the fact, that the father was well affected towards dissenters, and associated with them; nor was it influenced by the wishes of the infants.-In re Newbery, Law Rep. 1 Eq. 431; and S. C. on appeal, Law Rep. 1 Ch. 263.
2. After a decree absolute for the dissolution of a marriage, on the ground of the husband's
1. A vessel insured “at and from” Havana was injured by coming in contact with an anchor after entering the harbor of Havana, and whilst passing over a shoal to her place of discharge. Held, that the policy had attached. Haughton v. Empire Marine Insurance Co., Law Rep. 1 Ex. 206.
2. A ship-owner effected a policy on freight from a colonial port. The master, without the knowledge or privity of the owner, stowed a portion of the cargo, which was timber, on deck; and sailed without any certificate from a clearing officer, that the whole cargo was below deck, contrary to 16 and 17 Vict. c. 107, SS 170-172. Held, that no authority could be implied in the master to load the cargo, so as to violate the statute ; peither was it an act of the master which the owner must be presumed to have assented to; that the ship’s having sailed without the certificate did not render her unseaworthy so as to prevent the policy attaching; and that therefore the insured could recover on a loss by a peril insured against.Wilson v. Rankin, Law Rep. 1 Q. B. 162.
DIGEST OF ENGLISH REPORTS.
3. A policy of insurance, written on the common printed form of a marine policy, contained the following words :—“At and from I to N., the risk to commence at the lading of the cable on board, and to continue until it be laid in one continuous length between I. and N., and until one hundred words shall have been transmitted each way. The ship, &c., goods, &c., shall be valued at £201 on the Atlantic cable, value, say on twenty shares, at £10 per share;” and also, “it is agreed, that this policy, in addition to all perils and casualties herein specified, shall cover every risk and contingency attending the conveyance and successful laying of the cable.” The attempt to lay the cable failed, through its breaking while being havled in to remedy a defect in insulation; but half the cable was saved. Held, that the policy was on the “adventure," and the plaintiff could recover for a total loss.— Wilson v. Jones, Law Rep. 1 Ex: 193.
4. By an insurance policy, plate-glass in the plaintiff's shop front was insured against damage
originating from any cause whatsoever, except fire, breakage during removal, alteration, or repair of the premises,” none of the glass being “ horizontally placed or movable.” A fire broke out on premises adjoining the plaintiff*s, and slightly damaged the rear of his shop, but did not approach the part where the glass
While the plaintiff was removing his stock to a place of safety, a mob, attracted by the fire, broke the window for the purpose of plunder. Held, that the proximate cause of the damage was the lawless act of the mob, and that the damage was not within the exception. - Marsden v. City and County Assurance Co., Law Rep. 1 C. P. 232.
6. An insurance policy on plate-glass windows, effected through L., the local agent of the defendant company, was subject to a condition, that, in case of loss, notice must be given to some known agent of the company. After the making of the policy, but before loss, the defendants transferred this branch of business to another company. Held, that notice of loss by the plaintiff ( who did not know of this transfer) to L., who made his report thereon to the latter company, was sufficient. — Marsden v. City and County Assurance Co., Law Rep. 1 C. P. 232.
6. A mere agent having no lien on goods for advances, commission, or otherwise, nor the possession or custody of them as carrier or other bailee, nor any liability to account for their loss by perils insured against, has no insurable interest in them, though he is named as shipper and consignee in the bill of lading.
-Seagrave v. Union Marine Insurance Co., Law
7. An insurance company paying under a decree on a lost policy are not entitled to any indemnity from the persons to whom payment is made.-- England v. Lord Tredegar, Law Rep. 1 Eq. 344.
See PARTICULARS. INTEREST,
See MainTENANCE; MORTGAGE, 3; PARTNER
SHIP, 3; VENDOR AND PURCHASER OF REAL
ESTATE, 7. INTERROGATORIES.
1. In ar action of trover, an interrogatory to the plaintiff, how, when, and from whom, he obtained the property, was disallowed; as was also an interrogatory as to the plaintiffs's dealings with the person from whom the defendant obtained the cotton, the defendant not making affidavit that there had been any dealings, or that he had made inquiry of that person. Finney . Ferwood, Law Rep. 1 Ex. 6.
2. To an action by surviving partners for goods sold, money lent to, and on accounts stated with, the defendant, by them and their late partner, and to a similar action by the executors of the late partner, the defendant having pleaded a settlement of the account between him and the deceased, by bill not due, interrogatories were allowed to be put to the defendant as to the circumstances of the alleged settlement.— Hawkins v. Carr, Law Rep. 1 Q. B. 89.
3. In an action for a breach of contract whereby the plaintiff's patent became void, laying as damages loss of profits, the defendants, who had paid money into court, were refused leave to deliver interrogatories to ascertain the probable value of the patent.-Jourdain v. Palmer, Law Rep. 1 Ex. 102.
4. It is irregular to demur alone to part of a bill when interrogatories have not been filed, and the time for filing them has not expired.Rowe v. Tonkin, Law Rep. 1 Eq. 9.
5. A bill may be dismissed for want of prosecution, though the plaintiff's enlarged time for answering interrogatories filed by the defendant has not expired.—Jackson v. Ivimey, Law
Rep. 1 Eq. 693.
If a a cause, brought in a superior court, is tried in a county court by a judge's order, the jurisdiction to grant a new trial remains in the superior court.-Balmforth v. Pledge, Law Rep. 1 Q. B. 427.