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Act for building a church ; for the payment of which, that if he was misinformed as to his rights, he did and which the Court seemed to think bad, was in the and interest thereon (when borrowed at interest), the not go voluntarily. To this it was objected, that the form given by Mr. Chitty, who supports it by a statute gave the church-rates as a security.
officer was not to be liable in this action for mere reference to Comyn's Digest, and also to Clift's Judgment for the demurrer. misinformation ; and that also it appeared clear that Entries, where the same form is to be found.
the statute had been complied with ; a place had been
Saturday, May 30.
venient. He was bound to know his legal rights, and Reg. c. THE INHABITANTS OF HOLME. There is no absolute rule binding the Court to give the officer was not bound to ask him where he would Settlement by apprenticeship-Notice of binding, what
costs to the successful party, although it is not usual go. (Simpson v. Renton, 5 B. & Ad. 35; Dewhurst sufficient under 56 Geo. 3, c. 139, s. 2-What exa. to do so where the subsequent proceedings have arisen v. Pearson, i C. & M. 365 ; Pitt v. Middlesex (she. minations to be sent with order of removal. from the mistake of the judge or inferior court. riff), 4 M. & P. 726, 1 D. P. C. 201, were re- A notice of the intended binding of a poor person us er Upon appeal, the Sessions had confirmed the order upon ferred to.)
apprentice, under 56 Geo. 3, c. 139, S. 2, is suf. a frivolous objection to the notice of appeal ; and a Patteson, J.-I think all was rightly left to the cient, if sent to one only of the overseers of the rule nisi for a mandamus to enter continuances and jury by the Lord Chief Justice, according to the law parish in which the master lives. hear the appeal was subsequently obtained. The as laid down in Simpson v. Renton (5 B. & Ad. 35), y If upon the application to justices for an order of re. parish officers of the respondent parish instructed which expressly decided that it is the duty of the moval, evidence is tendered on the part of the parish counsel to oppose the rule; but it was made absolute, officer to request bim to nominate some place. Here' to which the proposed removal is to take place, and
and the appeal was subsequently heard and the order this was not done. The plaintiff saying “May I not be the justices hear it, but it is not taken down in • quashed : Held, that the appellants were entitled to taken to some sponging-house?” is not nominating it
writing, or transmitted with the order to the oppel. more the Court calling upon the parish officers to within the Act. The question as to his voluntarily lant parish, that is no ground of objection to the pay the costs of the mandamus ; and, under the cir- going was left to the jury, and decided in the negative. order of removal. cumstances, the Court made the rule absolute.
Io Silk v. Humphrey (4 Ad. & E. 959), the facts Upon appeal against an order of removal, the order Baldwin shewed cause against a rule calling on the stated in the plea were beld to be equivalent to a re- was confirmed, subject to a case, which submitted the parish officers of Oxted to pay the costs of an appli. fusal.
following questions to the Court :-1. Whether a cation for a mandamus, to enter continuances and WILLIAMS, J. concurred.
notice of the intention to bind a poor person apprenhear an appeal. (See the facts supra, vol. 6.) The Lord Denman, C. J.-The rule that a person is tice, under the provisions of 56 Geo. 3, c. 139, s. 2, parish officers had no doubt opposed the rule for a bound to know his legal rights cannot possibly apply is sufficient, if directed to all the overseers of the mandamus in vain, and the justices did not appear. here. It has been expressly decided that the officer parish in which the master lives, but sent to one of [Lord DENMAN, Č. J. Why should they not pay the must inform him and put the question. To these cases them only. 2. Whether it was a sufficient ground of costs?] They only supported the decision of a com- we adhere.
objection to the order that the examinations of three petent Court in their favour, and ought not to pay
persons, whose evidence had been offered before the costs. It is like a rule for a new trial for misdirec
Thursday, May 28.
justices on the part of the appellant parish, and retion. Under 1 Wm. 4. c. 21, s. 6, also, the costs
GODCHILD V. PRITCHARD.
ceived by them, had not been taken down in writing "are discretionary with the Court, and the Court will
Practice-Summons at chambers.
and sent to the appellants with the order of removal. not inflict them in cases of this kind. (Reg. v. The An application at chambers refused for insufficient Greenwood, in support of the order of Sessions.-1. Sheriff of Middlesex, 5 Q. B. 365.)
materials cannot be made upon amended materials, Where notice is required to be given to overseers, noPashley, in support of the rule.-There are two either at chambers or to the Court.
tice to one is generally sufficient (R. v. Warwickshire other decisions which bear upon this question. In An application for particulars must be upon affidarit Justices, 6 Ad. & Ell. 783; 2 Nolan, P. L. 527, n.; * Reg. v. Justices of West Riding (6 Q. B. 1), the Court that none or insufficient particulars have been deli- and R. v. Staffordshire Justices, 4 Ad. & Ell. 482); did not doubt their power to give costs; and so also vered.
and the words
at the termination of sec. 2 of 56 Geo. in Reg. v. Nerobury (I Q. B. 751); which last case Miller moved for a rule calling upon the plaintiff 3, c. 139, "unless one of such overseers shall attend shows that a substantive motion is the proper course. to give particulars. The declaration contained counts and admit such notice," make no difference. 2. It If ever there was a case in which costs ought to be for work and labour, money paid, and account stated. is not to be disputed, that all the examinations upon inflicted, it is this, where the objection was of a It appeared that he had applied to Williams, J. at which the order is made must be sent to the appelmost frivolous and absurd character. Yet not only chambers, but without any affidavit that particulars lant parish. (R. v. Outwell, 9 Ad. & Ell. 836; R. v. did the parish officers appear, but the rule was en had not been delivered. It was then asserted that Black Callerton, 10 Ad. & EL. 679.) Even copies of larged from one Term to another. Inflicting costs particulars had been delivered, and the summons was documents are to be sent, but this rule is confined to will put a wholesome restraint upon frivolous ob- dismissed. A second summons was then taken out, evidence taken down by the magistrates. It does not jections at Sessions.
and an affidavit produced, and Williams, J. refused mean that every idle word which a witness might Lord DENMAN, C.J.-There is a general rule, that it, because they did not come right at first. An affi. utter is to be taken down and sent. If the magis. costs of intermediate proceedings follow the event of davit was now produced. [PATTESON, J.-You trates in any case neglect their duty, and refuse to the cause; but there is also a general rule in the op- have been a second time at chambers.]
take evidence which they ought to take, then the re. posite direction, that costs are not granted where the Lord DENMAN, C.J.-You ought to have gone medy is against them by mandamus ; but here the mistake has been the mistake of the Court. For my properly prepared at first. We cannot interfere now. evidence was offered on the part of the appellants, and part, I do not think that we are at liberty to give up PATTESON, J.-It is a well-understood practice they were clearly not bound to take the least notice any portion of our jurisdiction ; and although the that such an application ought to be accompanied by of it. practice should be certain, still we are not bound to an affidavit.
Merivale, contrà.-1. Generally, notice to ORD observe either of these rules in every case. I think
overseer is sufficient; but this is a particular case; this was a most frivolous objection, and one which
Friday, May 29.
and the proper construction of the Act is, that notice the justices should not have allowed. Then the par
ROBINSON V. HAWKESFORD.
must be given to all, “unless one shall attend and ties think proper to defend and endeavour to keep pos- There is no time fixed by laro within which a cheque admit the notice." The object is to insure the prosession of what they Lad thus gained. I think, in the must be presented so as to charge the drawer, where tection to the apprentice; and great care is taken exercise of our discretion, it is a most proper case for no loss or damage has been sustained by him from the that the notice shall reach some of the overseers. granting costs against them.
(R. v. Threlkeld, 4 B. & Adol. 229.) Patteson. J.-The general role is, that costs go This was a special case, in which the simple point By the COURT.-There is no doubt that the ser. to the successful party, and ought so to do. There raised was whether the drawer of a cheque was dis- vice of the notice is good; and, as to the other point, may be a strong case for an exception, but this is charged from his liability upon the cheque by the it cannot be said that the order was made upon the nothing of the kind. Here the officers contested the delay of a fortnight in the presentment, all other cir. examinations, which were not sent. If the evi. rule of their own accord. It is said, that it is like a cumstances remaining the same, and he having suf-dence had been offered by the removing parish, per. verdict being set aside for misdirection, but it is to be fered no injury by the delay. The Court called upon haps, in that case, the justices would have no discre. recollected that not in every case of a mistake by the Cowling, on behalf of the defendant. - He cited tion; but here some evidence was tendered to the judge or Court are costs withheld, for the Court of Alexander v. Burchfield (8 Sc. N. R. 555); Moule v. justices by the opposite party, not on which, but not Error gives costs. So here the Sessions were no Brown (4 B. N. C. 266); Serle v. Norton (2 M. & withstanding which, the order was made. doubt wrong, but costs ought to be given. R.).
Order confirmed. · WILLIAMS, J.-The resistance to the mandamus Atherton, contrà, was not heard. was at all events an unnecessary act, for if proper By the COURT.-Where any loss may have oc
Reg. v. SAFFRON WALDEN. attention had been directed to the objection, the curred from the delay, then we may consider the Settlement by estale- Residence within ten miles officers must have seen that there was nothing in it. question as stated bere ; but upon the bare question
Measurement of distance.
in the presentment does not discharge the drawer of tlement by estate, renders necessary a residence within Arrest-Duty of officer-32 Geo. 2, c. 28. the cheque.
Judgment for the plaintif. ten miles of the estate: Held, that the distance is to It is the duty of a sheriff's officer, under 32 Geo. 2, c.
be calculated by the length of a straight line draur 28, s. 1, expressly to request his prisoner to nominate
SPRINGETT v. MORRELL.
from one point to the other. some convenient place to which he may be taken.
On appeal against an order of removal, founded M. Chambers, Q.C. moved to set aside the ver. Replevin-Avowry for rent in arrear.
upon evidence of a settlement by estate, gained since dict, and enter a nonsuit for a new trial. It was an Pleas in bar-First, as to 145. 6d. parcel of the the passing of stat. 4 & 5 Wm. 4, c. 76, the Court of action under 32 Geo. 2, c. 28, s. 1, for conveying the rent-riens in arrere, concluding to the country; Quarter Sessions confirmed the order, subject to a plaintiff to gaol within twenty-four hours, without secondly, as to 221. 6s. the residue of the said rent, case; which stated that the house in which the his consent, though he did not refuse to be carried to a tender before the distress.-Verification.
pauper dwelt was situate in one parish, and more some other convenient house. The facts were proved Demurrer, assigning for cause that the pleas in than ten miles from the estate situate in another, in mainly by the plaintiff's broker. It appeared he was bar improperly divided the avowry, which only shewed respect of which the settlement was claimed, if the arrested on January 29th, in the morning, and at his one answer to the grievances complained of by the distance were to be measured by the nearest mode of own request was taken to the officer's house or declaration, and could not be divided in the manner access, but within ten miles it the distance were to office, while some negotiation was going on with the attempted; that each of the pleas by itself raised an be measured from the boundary of one parish to the plaintiff in the action. In the evening he asked the immaterial issue, and was no answer to any part of boundary of the other, or by a straight line drawn officer to allow him to remain there until he could ar- the avowry, and that two issues were tendered where from one point to the other. The proper mode of range matters. The officer said he must go, as they only one was necessary.
measurement was submitted to the Court. were going to close the house. The plaintiff then Aspinall, for the demurrer, was heard, and the M. Chambers, Q.C. and Wordsworth, in support of asked if there was any private house or sponging- Court then put it to Bramwell, contrà, whether he the order of Sessions, contended that the proper house, and was told they were all given up. The would amend, which he elected to do, the Court mode of calculating the distance was from boundary plaintiff wrote a letter while there, to the execution having expressed a strong opinion.
to boundary, or by drawing a straight line between creditor, in which he said, “If you will not arrange, Authorities cited :-Virian v. Jenkin (3 A. & E.); the estate and the place of residence. The latter was I intend to go to Whitecross-street Prison.” Some John v. Jenkin (1 C. & M.); Com. Dig. tit. Pleader, the mode prescribed by statute as to the parliamentary thing also passed about the arrest being illegal, and K. 30 ; Clift's Entries ; Chitty on Pleading. franchise, and is spoken of as reasonable by one of heavy damages. It was left to the jury to say whe
accordingly. the Court in Leigh v. Hind (9 B. & C. 774); though ther he went to prison for his own purposes ; and Note.--In this case the mode of pleading adopted, in that case a different mode of calculation was
adopted, because the question there arose on the of law, because it does not set out the evidence upon c. 122, s. 14; and that therefore no act of bank. construction of a covenant in restraint of trade. If which it is founded. The prisoner, therefore, is en- ruptcy was committed, although the fulfilment of the the distance were to be calculated by the nearest titled to his liberty.
terms of the agreement was not complete until some mode of access, the distance would be constantly PATTESON. J.-I am of the same opinion. This days after the 14th. shifting ; one day the estate would give a settlement, is also bad, because, after professing to convict, it This was a feigned issue to try the right of the and the next day not. Further, in a case of doubt, does not adjudge an imprisonment, but calls upon the plaintiffs, as the assignees of one James Bradshaw, the Court will lean in favour of the settlement. officer to apprehend, and the jailer to receive. to certain goods which had been seized in execution Marsh, contrà.-Admitting that the boundary of WILLIAMS, J. concurred.
by the defendants. The verdict was taken for the the parish, ia which the estate is situate, is the ter.
Conriction quashed. plaintiffs by consent, subject to the opinion of this minus à quo, the question is, what is the terminus ad
Court upon a special case. The case stated the fol. quem, and how is the distance to be measured? The
lowing facts: the fiat against James Bradshaw issued statute is clear, that the party must inhabit within ten
Masters and Servants Act.
on the 27th March, 1844 ; and the bankrupt was in. miles; and a party inhabits at the house where he An information under the Masters and Servants Act, debted to the defendants in the sum of 1491. 48. from lives. If the distance is to be measured to the boun. for absence and neglect thereby to fulfil the contract, the 5th Feb. to the 3rd March in the same year, and dary of the county, the estate and the place of resi. must arer that it was without the consent of the thence hitherto, save as therein after mentioned. dence might be fifty miles distant; and then the master, or without legal excuse within his knowledge, The defendants proceeded under stat. 5 & 6 Vict. c. object of the statute, which is, that the settlement The information ought to shew the nature of the con- | 122, for the recovery of that debt; and on the should only be gained where the estate is under the tract, for it is not every contract of service that is sth February, 1844, obtained a summons from personal control of the owner, would be defeated. within the statute, and non constat that there may the Court of Bankruptcy, containing the usual Then as to the mode of measurement, tbat by the not be an exception.
endorsement of the notice to the party summoned ; Dearest mode of access is the most reasonable; it Quære, whether a contract binding a serrant to work whereupon, on the 15th February following, the does not follow that it should be by a public road; for the master absolutely for eleven months, in certain bankrupt signed the following admission, which was but the ordinary meaning of the words of the Act is, mines, on receiving a certain remuneration by the on the same day filed in the Court of Bankruptcy :a distance of ten miles by the nearest possible mode piece for his work, but not binding the master to find “I, the undersigned, James Bradshaw, of &c. in the of access. No person could go in a straight line from him a certain amount of work in each reek, nor county of Middlesex, do hereby confess that I am in. one place to the other without trespassing. The dis- to find him any work in case of accidental or unavoid. debted to Messrs. Rhodes and Crucknell, of, &c. in tance between two livings, held by one incumbent, has able damage or obstruction to any engine, gearing, the sum of 1491." No further or other admission, been declared by legislative construction to mean the or machinery, or to the said mines, or any of them, deposition, or other proceeding, whatever, was had, distance according to the nearest mode of access ; or to the workings thereof, is a valid contract, so as made, or entered into, and no further or other step and Leigh v. Hind (9 B. and C. 774), is in favour of to bring him within the Act ?
was taken in the said Court of Bankruptcy by the the appellant.
Bodkin (with him Huddlestone) moved as in the said bankrupt, until the fiat issued ; and there was Lord DENMAN, C.J.-There are statutes wbich preceding case. 1. The information (which was no enlargement of the time for complying with the prescribe one mode of calculation, and others which framed as above) did not disclose any legal offence. above-mentioned summons, or for any purpose whatprescribe another mode ; and there is a case in which (Paley on Convictions, p. 108; R. v. Corden, 2 Burr, On the 8th Feb. an action was commenced by it was suggested by the learned judge, that the natural 2279; R. v. Jukes, 6 T. R. 536; R. v. Jerris, 1 Messrs. Rhodes and Crucknell against the bankrupt, mode was to measure the distance as the crow flies ; Burr. 148; Ex parte Aldridge, 2 B. & C. 600; to recover their debt; and on the 17th, notice of debut the object of the contract there being to prevent any Fletcher v. Calthorp, 16 L. J. 49, M.C.; Newman claration was served. On the 21st a letter was interference with the trade of one of the parties, a v. Earl of Hardwicke, 8 A. & E. 124.) 2. It does written by the bankrupt's solicitor, proposing to pay different mode was adopted. We are left, therefore, not shew the nature of the contract. It might be the debt by weekly instalments of 501. each; but that very much at large to decide this question ; and no not within the statute. (Harding v. Ryde, 9 B. & C. proposal was declined. On the 29th Feb. a meeting materials are presented to us, except the Act of Par. 603.) 3. As to the validity of the contract, 1 Smith, took place between Mr. Rhodes and the bankrupt; liament. Under these circumstances, we are bound L. Cas. 182; Hitchcock v. Coker (6 A. & E.)} at which the bankrupt offered a judge's order for the to lay down a fixed and arbitrary rule; and the rule, Horner v. Greaves (7 Bing. 743), and other cases amount due from him to Messrs. Rhodes and Cruckwhich, in the abstract, we think most reasonable is, were cited.
nell, payable by instalments of 501. per week, and also that the measurement should be made by a horizon. Cowling, Edward James, and Fry. As to the first to deposit with Messrs. R. and C. six bills of extal line drawn from one point to the other ; which we point, the following cases were cited: R. v. Chandler change, which the bankrupt then produced. Nothing assume can be done. By laying down that rule, (1 Ld.
Raym. 581); R. v. Speed (5 Ld. Raym. 583); was said about the odd money; all the costs were to difficulties will be avoided, the settlement will not be R. v. Cripps (2 Strange, 711; Bac. Abr. Indictment, be paid down, but the amount was not mentioned. constantly shifting, gained as yesterday and lost as H. 3); R. v. Marsh (2 B. & C. 772); Mann v. The bankrupt delivered the six bills of exchange to yesterday, as the road may be lengthened or Davies (3 B. & Ald. 103). As to the second point, Mr. Adams, who consulted with his client, Mr. shortened.
it is the same as the first, and involved in it. The Rhodes, as to their value; and Mr. Rhodes, then, Patteson, J.-We must lay down an arbitrary contract is valid. (Williamson v. Taylor, 5 Q. B. in the presence of his solicitor, Mr. Adams and of the rule. The words of the statute are " ten miles ;' 175; Young v. Timmins, i C. & J. 341; Morris v. bankrupt, agreed to accept the deposit of the bills, and I think it is the more reasonable construction to Smith, 3 Dougl. 277 ; Sykes v. Dixon, 9 A. & E. and acceded to the terms proposed. The bankrupt say that that means ten miles as the crow flies. 693 ; Aspdin v. Austin, 5 Q. B. 671.)
asked Mr. Adams whether the bankruptcy proceedings WILLIAMS, J.-Wbat can the statute mean but an Bodkin and Huddlestone replied.
would be stayed ; and he replied, that of course the actual distance of ten miles from the one place to the Lord DENMAN, C.J.-The question really is, does bankruptcy proceedings went for nothing. The bank. other As to the danger of trespasses being com- the information disclose any offence ? for if not, the rupt gave the six bills to Mr. Adams for the purpose mitted, we are spared that consideration in this case ; magistrate had no authority to commit. It never of bis keeping them for his clients, Messrs. Rhodes because the distance calculated in that way is ex- could have been the intention of the legislature that and Crucknell; but Mr. Adams delivered the six bills pressly found in the case. Order confirmed. mere absence should be an offence under this Act. of exchange back to the bankrupt, and said that, as a
It therefore is necessary that the absence should be matter of professional etiquette, he wished that the Monday, June 1.
shewn to have been without the consent of the master, bills should be delivered to him through Messrs. DaRe HAMMOND.
which was a fact to which the master could speak, vies, the attorneys of the bankrupt; but no time was Masters and Serrants Act.
or at all events, without lawful excuse to the know mentioned when the bills were to be sent by Messrs. Under the Masters and Servants Act, 4 Geo. 4, c. 36, ledge of the master, or the person authorized to com- Davies to Mr. Adams. On the same day the bank.
S. 3, an instrument, purporting to be at the same time plain. As to the second point, it was quite obvious rupt took the bills to his attorneys, and a letter was a warrant of commitment and a conviction, must set that the magistrate ought to be enabled to see whe. written containing the above terms. On the 1st of forth the evidence as in a conviction.
ther the contract contained any exceptions that with March following, a summons was taken out by the Per Patteson, J.-It must also adjudge imprisonment. drew the alleged misconduct from the operation of bankrupt's attoneys to obtain a judge's order in pur.
This was a motion to quash a commitment under the statute. It ought, therefore, to be set out. As suance of the said agreement; and on the 2nd of the Masters and Servants Act, returned upon habeas to the third point, I, for one, should be very slow to March the order was drawn up and sent to Messrs. corpus, on the ground that it did not set forth the deliver an opinion that would have the effect of re- R. and C. or their attorneys, the six bills being sent evidence. It recited the complaint and adjudication lieving persons from being amenable to the law into in a letter to their attorneys on the same day. In upon it, and did therefore commit, and called upon which they so voluntarily and deliberately enter. pursuance of that agreement two instalments were the officer therein named to apprehend, and the jailer Patteson, J. and WILLIAMS, J. concurred. paid ; but upon default in payment of others, final to receive.
judgment was signed, and execution issued on the Bodkin (with him Huddlestone), against the com
Tuesday, June 2.
23rd March. The question for the opinion of this mitment. This is in fact a conviction, not a mere PENNELL and OTHERS O. Ruodes and Another. Court was, whether the facts above stated disclose an commitment or order. (Re Gray, 1 N.S.C. 354 ; Stat. 5 & 6 Vict. c. 122, ss. 11-17.-Act of Bank- act of bankruptcy by the said bankrupt committed R. v. Richards, 5 Q.B. 296 ; R. v. Cheshire Justices,
ruptcy-Compounding for debt.
before the levying of the said execution, so as to ren5 B. & Ad. 439, were cited.)
Proceedings being taken against a debtor under stat. der the same invalid as against the plaintiffs, in Pashley, contrà.- This is not a conviction por an 5 & 6 Vict. c. 122, ss. 11-12, by obtaining a sum- which case the verdict was to stand for them. If order, but only a commitment. Convictions are re. mons from the Court of Bankruptcy, upon a debt of not, the defendants to have their execution satisfied cords, and ought to be on parchment. Every 1491. 45. the debtor filed an admission that he was thereout, and a nonsuit entered. ingredient necessary to make this valid is indebted to the creditor in the sum of 149l. : Held, Friday, May 29.-Watson, Q.C. for the defendants, here, – jurisdiction, offence, fact of conviction. that the omission of the 4s. being obviously accio contended that no act of bankruptcy bad been com(Daniel v. Philips, i C. M, & R. 668.) This is a dental, and not implying a denial that the 4s. was mitted ; and warrant. A commitment is not a record. (Whalley due, did not prevent that admission from constituting The Court, being of that opinion, gave judgment V. Jones, 5 East, 250; Cooper v. Jones, 2 M. & S. an act of bankruptcy.
for the defendants, in the absence of Willes for the 283; Wood v. Fenwick, 10 M. & W. 295; Canadian On the fourteenth day after the filing of that admission plaintiffs ; but reserved to him the right of being prisoners' case, 9 A. & E. 731.) A conviction may (an action having been in the mean time commenced), heard, as he was engaged in another court. be produced at any time. (Re Reynolds, 1 D. & L. an agreement was entered into between the debtor and Willes was now heard accordingly for the plaintiffs. 846; Re Fletcher, ib. 726.) It would be absurd if he creditor, whereby the latter agreed to accept six bills -ist. An Act of bankruptcy was committed by the should be discharged to-day for this being bad, and of exchange and a judge's order for the payment of bankrupt, under s. 15 of 5 & 6 Vict. c. 122, which not have an action againt the jailer because a good the amount of the debi by weekly instalments. The provides that a trader signing an admission for part conviction is produced.
bills were handed by the debtor to the creditor's at only of a demand, and not making a deposition that he Lord DEMMAN, C. J.-We must deal with this as torney at the time, but were immediately restored by believes he has a good defence to the residue, if be we find it. There is nothing to shew that the original him, because, as a matter of professional etiquette, he shall not within fourteen days next after the filing of was not on parchment, and
we shall presume that it he wished to receive them through the hands of the such admission, pay, secure, or compound for the was. We cannot take notice of the means that may debtor's attorney; and on the next day but one the same ; and, as to the residue shall not, within fourteen exist for producing good convictions at another time, judge's order, containing the terms agreed upon, was days after personal service of the summons, pay, sewhen the question is whether this instrument is a suf. obtained, and the bills were sent by the debtor's to cure, or compound for the same, or enter into a bond ficient warrant for detaining. It professes to be at the creditor's attorney: Held, that the agreement to pay any sum recovered with costs, shall be deemed one and the same time a commitment and a state- entered into on the 14th day, was a “ compounding" to have committed an Act of bankruptcy on the 15th ment of a conviction. As the latter, it is bad in point of the debt within the meaning of the stat. 58. 6 Vict. I day after service of the summons. The present case
falls within that section; because the admission is of, of chargeability, but the 13 & 14 Car. 2, c. 12, does that any school to which a few persons subscribed, 1491. ; whereas the demand upon which the summons not require this; by that we are to be governed. and put in masters, would be exempt. Amongst the issued was of 1491. 48. [PATTESON, J.-The statute" There are also cases to the same effect. (Re Weston objects of this society is instruction in reading, and must mean an admission of part, as part; implying, Rivers, and St. Peter, 2 Salk. 492; (Rex v. South writing, and needlework; under wbat head would therefore, a depial of the residue. It cannot apply to Marston, 1 Strange, 189; Rex v. Inskipp (5 M. & S. these fall? Then the appeal is in time. The statute a case when clearly the intention is to admit the 299), was to the same effect. [PATTESON, J.-The gives two periods, either to date from the filing, or whole ; but 48. is accidentally omitted. 20d. Treat. Court decided that on the ground that the facts stated from exemption claimed. The barrister only decides ing this as an admission of the whole demand, an act amounted to a statement of a legal chargeability; it ex parte upon production of the rules, and if the of bankruptcy was committed under s. 14 of the same may be taken by implication that they were charge. society, lies by for a short time and exemption is not Act, because the bankrupt did not within fourteen able, for they were adjudged to be so.]
claimed, there would be no power to appeal. days after the filing of the admission,
pay or ten.
Lord Denman, C. J.-I think the statute gives der, and offer to pay to such creditor the amount of not regulate this ; for by the terms of that statute no two periods for an appeal against the certificate of the such demand, or secure, or compound for the same to express adjudication is necessary. But that is, and barrister : first, after the fling of the certificate at the satisfaction of the creditor." The 29th Feb. was always has been, held an essential part of the order. the Sessions; and secondly, as the inhabitants might the 14th day; and the agreement then entered into And it must shew that the complaint stated the pau. not know of the certificate beiog obtained, or whether was neither a paying, securing, or compounding for the pers to be chargeable. It has always been the prac. the society could act upon it, after the exemption ac. debt. It could not be a securing, because the bills tice to do so. The early cases are of no weight what. tually claimed. This appeal, therefore, was made in were not delivered until the end of March ; nor ever; for it is evident that the Court endeavoured to time. As to the main question, whether this is with. was it a compounding, because that word must be get rid of the objections without considering their in the terms of the Act, it is impossible to attempt to taken in its ordinary mercantile sense, which is that of legal value.
give an operation to the Act without lamenting the giving and receiving a part for the whole of a debt. He
Patteson, J.Even upon the statute it seems loose and unsatisfactory way in which it is drawn. It cited Ex parte Gooddy (1 M.D. & D. 677); Ex parte decessary by implication. But now it is clear that is scarcely possible to mention any institution as to Brown (16 Ves. 472); Ex parte Musgrove (3 M. D. & they must be shewn to have been actually chargeable. which great doubt might not be raised wbether it was D); and Smith's Compendium of Mercantile Law. WILLIAMS, J.-This has been the invariable prac. within the Act or not. The object is to exempt from
By the Court.-We have heard nothing to alter tice, and considered the origin of the jurisdiction as a general liability, and the words must therefore be our original impression. The language of the statute much as an information is the foundation of a con. plain. The title is to exempt “scientific and other is very simple ; and we think that the facts stated in viction. Rex v. Inskipp was, I dare say, right; but literary societies." I am inclined to think they point the case do not disclose an act of bankruptcy. 1st. it was because the facts amounted to chargeability.
rather to societies which have the least claim to such The admission of the debt was clearly intended to
Order of Sessions confirmed. exemption—those composed of opulent and learned apply to the whole demand; and the omission of the
men, meeting to discuss matters for advancing the 48. was accidental. This is a case, therefore, not
REG. v. Pocock.
koowledge of mankind generally; and not to assocoming within sec. 15; the obvious meaning of
Exemption from rates.
ciations of poor men of the humbler classes de. which is, that if a trader admit part only of the The buildings occupied by the Normal School belonging sirous of improving their minds, such as me. demand, with the intention of denying the residue, to the British and Foreign School Society is not chanics'institutes, which ought to be exempt then, unless he fulfil the requisites of that section, he wilhin the 6 & 7 Vict. c. 36, so as to be exempted from rates, and would bave been, if the atten. shall be deemed to have committed an act of bank. from rates.
tion of the legislature bad been drawn to the words of ruptcy. 2ndly. There is no ground for limiting the The sixth section gives two periods within which the statute. Even as to mechanics' institutes some meaning of the word “compound," as Mr. Willes a rated inhabitant may appeal ; first, four months difficulty might be felt, but, in the present case, I feel suggests. It is sufficient that on the 29th a bargain after the first assessment after the filing of the still greater difficulty, and must say that I think it is was entered into between the bankrupt and the cre. certificate, or four months after the first assessment not within the Act. It is not a society exclusively for ditor, with which the latter was satisfied. It may afler exemption claimed by the society.
literature, science, or the fine arts, although quite be that that arrangement could not properly be semble, that the society is not at any time protected as useful, and as much entitled to exemption. I can. called a securing of the debt, because the bills, from by the certificate alone, but must also shew that it is not help observing further that the statute does not a very proper adherence to professional etiquette, on within the other provisions of the first section.
make the certificate of the barrister final, or empower the part of the creditor's attorney, were not deli. This was a rule for quashing an order of the Surrey him to declare that the society is to be exempt; it only vered at the time; but the bargain was a binding Sessions confirming, on appeal, a certificate granted makes the obtaining of the certificate a sine qua nor, one at that time, though all the steps for completing by the barrister, under 6 & 7 Vict. c. 36, exempting with the additional difficulty of shewing that it is in it could not then be taken.
the Normal School belonging to the British and other respects within the Act. I do not give any de. Judgment for defendants. Foreign School Society from rates.
cisive opinion upon that, but trust that the deficiencies Martin, Q.C. (with whom were Wallinger and J. of the statute will speedily be remedied. Wednesday, June 3.
Clerke), in support of the order.-Upon this case PATTESON, J. and WILLIAMS, J. concurred. REG. 0. INHABITANTS OF ST. GILES'S IN THE there are two points; first, whether this is, within the
Order of Sessions quashed. Fields.
definition of the Act, “a building belonging to a Police magistrates-Order of removal-Complaint of society instituted for the purposes of science, litera
BUSINESS OF THE WEEK.
Tuesday, May 26.
HARROLD 0. WHITAKER. An order of remoral, in reciting the complaint of charge to the period within which the appeal was made.
Judgment for plaintif. DOLBY v. REMINGTON.
Prohibition granted. ability must shew that the paupers were actually The case finds all the other essentials mentioned in MAY V. BURDETT.
Rule discharged. chargeable.
the first and second sections; and if the barrister can WAKEFIELD V. BROWX. Judgment for plaintif. Therefore, an order reciting " that whereas complaint give this certificate, the order must be confirmed. BAILEY V. WALFORD.
Judgment for plaintif. hath been made that J. J. and E. J. are lately come | The building is used as a Normal school, attached to
PETCh 0. Lyox.
Rule discharged. into the said parish, endearouring to settle there, the British and Foreign School Society. The primary
Thursday, May 28.
Reg. o. Bluck.–Martin, Q.C. and Bramwell shewed contrary to law, and it appeareth unto me, the said object is to instruct persons in the science of teach cause." The Solicitor-General and Greares, contrà. police magistraté, &c. and I do adjudge that they are ing, and prepare them to act as teachers in branch
Cur. ade. tull. become chargeable to the said parish," &c. was held schools. This is done by means of lectures, and Petcu and Wife 0. LYONS.- Pashley and Bliss showed bad. other modes. To it is attached, also, an adult and cause. Knowles, Q.C. and H. Hill, contrà.
Cur. adv. vult. Quære, does an order made under 2 & 3 Vict. c. 71, children's school, to which a small sum is paid by
Reg. v. DOUGLAS8.-The COURT intimated to the Attor. by a police magistrate, sufficiently shew jurisdiction, those who frequent it; but the case finds that there is ney-General, that the Crown must elect upon which counts by describing him as one of her Majesty's justices no profit. The object of this Act was to exempt they would proceed, and then they would give judgment. , of the peace in and for the county of Middlesez ; mechanics' institutes, and other societies for the pur.
Friday, May 29. one of The police magistrates of the metropolis, sit. pose of spreading literature and knowledge, from PENNELL 0. RHODES.-Watson, Q.C. (with whom was ting at the Police Court, Great Marlborough rates. It was not designed for bodies like the Royal C. Saunders), was heard for the defendant. street ?" Academy and Royal Institution, which two societies
Judgment for defendant, to be opened if the
plaintif's counsel wish to argue it. Upon appeal the Sessions had quashed the order of were exempt, without the Act. Proper teachers are MAPLE 0. Greex.-Baines, Q.C. mored for a rule to set removal, subject to a case.
most especially needed, and the science of teaching aside verdict for misdirection. Prendergust and Howarth, in support of the order.- is quite a distinct pursuit and object of education. Decision postponed, to consult Mr. Justice Wight. There are three fatal objeetions to the order upon the [PATTESON, J.-Why might it not apply to any face of it, for defective allegations of jurisdiction. It school, then?] That would not be a society, and nical nature: Bramwell, for defendant. Petersdorf, for
SHARPE v. Watts.-Special demurrer, of a purely techis made by a single police magistrate, under 2 & 3 would be carried on for profit. Secondly, the appeal plaintiff.
Judgment for plaintif. Vict, c. 71, and he is not described so as to shew that was not in time. The certificate was obtained and
Tuesday, June 2. he had jurisdiction. (a) Then it does not state that filed on Sept. 9, and the first assessment was Oct. 1. WHITAKER T. RICHARDS, Judgment for the plaintif. any complaint bad been made that the paupers were Notice was given to the collector in November,
FROST V. LOYD.
Judgment for the plaintif. chargeable. The statement is as follows:--"Whereas and to the trustees, who make this rate, on Feb. 6,
WILKINSON O. GUSTON. Judgment for the plaintif.
These cases will be reported next week. complaint hath been made to me, one of her Majesty's The appeal was not entered till the Easter Sessions.
Saturday, May 30. justices of the peace in and for the county of Middle. The statute gives six months time to appeal after Reg. v. MILE-END.-This was a question as to the rate. sex (one of the police magistrates of the metropolis, the first rate, after the filing, or after the first rate ability of the East London Water-works Company, raised sitting at the police court, Great Marlborough-street, after such exemption claimed. This does not give upon a case stated by the Middlesex Quarter Sessions; but in the parish of St. James's, Westminster, within the two periods for the choice of the inhabitants, but the Court being of opinion that the case did not sufficiently metropolitan police district), by the churchwardens, means, that the certificate being filed shall operate whole matter to be
raise the points
for the decision of the Court, directed the &c. that James Jenkins and Elizabeth Jenkins are as notice ; then the time to appeal must date from
Referred to Mr. Smirke to state a case. lately come into the said parish, endeavouring to that; but if it be not filed, then from the period of Hill, Q.C. (with bim Pigott), for the company. Sir F. settle there contrary to law; and it appeareth unto the exemption claimed. [PATTESON, J. - Suppose Kelly, s.G. (with him Bodkin and Hodges), for the parish. me, the said police magistrate of the metropolis, and the certificate obtained and filed, but the society con- Reg. v. WELLAND NAVIGATION (Trustees).—Mandamies I do adjudge, that they are become chargeable to the tinued to pay rates, then by the lapse of a few months to repair and maintain a certain part of the channel of the said parish; and upon examination, &c.". The they would obtain exemption and bar appeal ; can (with him Webster), in support of the demurrer.
river. Return and demurrer thereto. Sir F. Kelly, s.G.
White. chargeability is a condition precedent to the jurisdic. this be so ?] It is not necessary to decide what the hurst, Q.C. contra. tion. Then it does not say that the adjudication of effect of that would be ; here it was filed. The filing Leave to amend within a week, and the case then ta chargeability does not shew the evidence was taken is not the act of the society, but of the clerk of the be brought on again. on oath, or indeed at all. (R. v. Great Bedwin, Burr. peace. The exemption claimed means if a delay takes S.C. 163; R. v. Angell, Cas. Hardw. 124.) place in the filing.
COURT OF COMMON PLEAS. M. Chambers, contrà, was directed by the Court M. Chambers, Q. C. and Hayes, contrà.-This is not to consider the second objection.—True, the ordinary a society instituted for literature, science, or the fine
May 26 and 28. forms shew that the complaint contained a statement arts exclusively. The society contemplates, as is shown
BOYDELL 0. HARKNESS. by its rules, the advancement of education generally where an action is brought, renue London, against the (a) This point was not decided, but Patteson J. observed, among the lower classes. It is to provide schools, and indorser upon a bill of exchange, drawn payable that in the 10th section, as well as in the form s given by the incidentally it trains teachers, for which purpose this in London, it is sufficient, after pleading orer, if Act, the same description was used.
Normal School was founded. It might equally be said the declaration allege a general presentment.
Semble, it would also be sufficient upon special de- ficiently applies to the presentment. The Rule of
Friday, May 29.
REYNOLDS v. Fenton.
Pleading-Foreign judyment. exchange, drawn by Leonard Simpson on J. Powiland shall be taken to be the venue intended by the To an action upon a foreign judgment, it is not sufston, whereby the said “ L. S. required the said J. P. plaintiff." That makes it absolutely necessary to ficient to plead “ that the defendant was not served to pay to the order of the said L. S. in London, 1981. state the name of the county in the margin; and then with process, nor had any notice of process, nor did value received, three months after the date thereof,'' | it goes on—"no venue shall be stated in the body of he appear in Court to answer in the said suit ;" indorsed by L. S. to the defendant, and by the defen- the declaration, or in any subsequent pleading." without sheuing distinctly that by the law in force in dant to T. R. and by T. R. to the plaintiff. The Now, wbat is venue? It is the place where a mate- the foreign court, proceedings in an action brought declaration went on to aver “ that the said J. Powil-rial fact stated in the pleadings is alleged to have there, of necessity commence with process. ston did not pay the same, although the same was taken place, and was formerly important to deter- Assumpsit, setting out a judgment or decree reco
presented to bim for payment on the day when it mine from what place the jurors were to be sum- vered against the defendant in the Tribunal of Com. became due,", and then concluded in the ordinary moned. The rule does require that the place where a merce, in Brussels, in the kingdom of Belgium, and form. The only plea was a denial of the notice of material fact takes place should be stated, because it in consideration thereof a promise by defendant to dishonour, the issue upon which was found for the requires the county to be named in the margin, and pay. plaintiff. The venue in the action was London. that place is to be taken to be the place where the Plea. That although the said judgment or decree in
In last Term, Byles, Serjt. had obtained a rule to plaintiff alleges every matter of fact to have happened. the declaration mentioned, was obtained by the plaintiff shew cause why the judgment should not be arrested, if it is immaterial to prove that the fact took place in against the defendant, he, the defendant, was not at on the ground that the declaration, as it shewed that London, the plaintiff need not prove it; if material, any time served with any process issuing out of the the bill was drawn payable in London, ought to have he must prove it. This declaration, therefore, does said Tribunal of Commerce in and of the said city of averred, not a general presentment, but a present. contain an allegation that presentment was made in Brussels, in the said kingdom of Belgium, in the dement in London. Gibb v. Malher (8 Bing. 214), London, and that allegation, being material, if tra claration mentioned at the suit of the plaintiff, for Lyon v. Holt (5 M. & W. 250), were mentioned. versed, must have been proved.
the causes of action for which the said judgment was Dowling, Serjt. now shewed cause.—The allegation CRESSWELL, J.-This case determined by the recovered, nor had he at any time notice of any such of presentment is, at all events, good after verdict. Rule of Court. Before the rule, every material and process, nor did he, the said defendant, at any time There is sufficient to shew a presentment to the traversable fact must have had a venue. Then the appear in the said Court to answer the plaintiff in the payee, which must be taken to have been such a pre- rule says, you are to read the margin in the body of said suit or action on which the said judgment or sentment as is required by the previous part of the the declaration. You are to construe the declaration decree was so obtained, as in the said declaration declaration. No other place besides London is men- as if the venue were inserted. Rule discharged. mentioned. 'tioned in the declaration. This form is in accordance
Verification. General demurrer. with the Rules of Court, T. T. 1 Wm. 4, and H. T.
Doe dem. GAISFORD 0. STONE.
Channell, Serjt., in support of the demurrer. The 4 Wm. 4. According to the former of these (see the At the trial of an ejectment a deed was put in which plea is bad for not shewing that the defendant was last form but one in the Schedule and Directions, 1), was a morigage of the premises from S. to the lessor not resident or domiciled in Belgium. (Douglas v. our declaration would have averred “ that the bili of the plaintiff. Indorsed upon the deed was a me- Forrest, 4 Bing. 686: Smith v. Nicolis, 5 Bing. N.C. was then and there presented to the said J. P. ;" but morandom of further charge of later date, signed 208; Cowan v. Braidwood, 1 M. & G. 882). He by Rule H. T. 4 Wm. 4, pl. 8, “The name of a county only by the defendant, in which he described himself may have had an agent at Brussels, or he may have shall in all cases be stated in the margin of a decla. as the purchaser of the equity of redemption of the waived the service; or the Tribunal of Commerce may ration, and no venue shall be stated in the body of the within-mentioned premises : Held, that he could not, be a mere Court of Appeal, and the defendant may declaration, or in any subsequent pleading." It was after this, set up in defence a prior mortgage to a bave been summoned to the inferior Court. Ferguson not intended by the rule to relieve the plaintiff from different party,
v. Mahon (11 A. & E. 179) was probably decided the necessity of proving every thing which he had to At the trial of this ejectment, before Erle, J. at the before Covan v. Braidwood was reported, and cannot prove before. If the presentation had been traversed, last assizes for the county of Somerset, the following be sustained. It does not appear that by Belgian the plaintiff would have been bound to shew present. deeds were proved and put in :-Aug. 28th, 1828. law a suit commences necessarily with process. The ment in London. Supposing such a traverse, and a mortgage of the premises by Robert Saunders to mere absence of a writ as the commencement of a isssue found for the plaintiff, the Court would not Alfred Prothero. May 5th, 1829. Mortgage in fee suit is not contrary to natural justice. (Buchanan v. have allowed this objection after verdict. A fortiori, by Saunders to the lessor of the plaintiff. An in. Rucker, 1 Camp. 62.) the objection cannot be made when presentation is dorsement upon the last-mentioned deed, dated May Talfourd, Serjt.,for the defendant. -The term "proadmitted. The presentment would have to be proved 21st, 1842, and signed by the defendant in the follow. cess' is not confined in its meaning to a mere written to have taken place in London, but a strict allegation ing words: “Memorandum, that by indenture of document; it will denote any method by which the of it is unnecessary. (Parks v. Edge, 1 Cr. & M. surcharge, bearing date the 5th day of May inst. proceedings in an action are commenced. This plea 429.)
the within-mentioned premises were charged by me, is identical with the plea in Ferguson v. Mahon (11 A. Byles, Serjt. in support of the rule.-First. This William Stone, the purchaser of the equity of re- & E. 179), and was framed upon it ; primâ facie, it declaration would have been bad before stat. 1 & 2 demption thereof, with the payment of the further furnishes a good defence to the action. If the neGeo. 4, c. 78. (Rowe v. Young, 2 B. & B. 165; sum of 300l. and interest from the said 5th day of cessity of process were waived, or there were any Saunderson v. Bowes, 14 East, 500.) Secondly. Sta. May." Erle, J. directed a verdict for the plaintiff. other excuse for its absence, that should be replied. tute 1 and 2 Geo. 4, c. 78, relates only to accept. In last Term, Channell, Serjt. had obtained a rule, The law, as laid down by. Lord Ellenborough in Bu. .ances. Here the bill was drawn specially payable at pursuant to leave reserved, for entering, the verdict chanan v. Rucker (1 Camp. 62), was afterwards upa particular place. Thirdly. The defect would be fatal for the defendant, on the ground that the title was held by the full Court (9 East, 192). A person who even upon general demurrer. It is not cured by ver shewn to be in Alfred Prothero, and not in the lessor seeks to enforce a foreign judgment, must shew either dict, because there is no issue, and therefore no of the plaintiff.
that the party was summoned, or that there was verdict, upon this particular part of the declaration. Manning, Serjt. (with him Bailey) shewed cause.— some excuse for the defect. (Cavan v. Stewart, 1 [MAULE, J.-It is not so much that there bas been according to the relation of inortgagor and mortgagee, Stark. N. P. 525 ; Becquet v. Mac Carthy, 2 B. à' verdict as that the defendant has pleaded over. it does not lie in the mouth of the defendant to say & Ad. 951).. [MAULE, J.-Your plea states merely Where matter defective on special demurrer is good that, at the time of the mortgage to the lessor of the that you had no notice of process; it is consistent after verdict, it is supposed that the judge has plaintiff, Saunders was not in possession. The de with that, that in Brussels proceedings commence directed the jury with a view to that sense of the fendant, by his memorandum, precludes himself from with a verbal summons from the plaintiff to the de. pleading which will sustain the action. If there be setting up any better title than Saunders himself fendant. You do not even say that you had no notice å general demurrer, the party treats the declaration could, and Saunders would be estopped from setting of the proceedings. Primâ facie, the plea must be as a thing requiring no answer ; if he pleads over, he up a title in somebody else, at the date of the deed of taken to mean that. This objection is on general detakes it in a sense that requires an answer. So in May 5th, 1829. He referred also to Slatlerie v.
We cannot say that the issue of process is Hobson v. Middleton (6 B. & C. 295), Bayley, J. Pooley (6 M. & W. 664).
necessary to natural justice. Your plea might persays, “That after pleading over, an equivocal expres- The COURT called on
haps have sufficed, if it had said that the Court had no sion is to be taken in that sense which will support Channell, Serjt. (with him Filzherbert) in support jurisdiction, except in cases where process issued.] the previous pleading." That applies only where of the rule.-The lessor of the plaintiff was no party By the Court.-You had better amend. the part defective is pleaded over to. The law upon to the memorandum, and there would therefore be no Talfourd, Serjt. prayed leave to amend accordingly. the effect of pleading over is laid down in i Wms. estoppel for want of mutuality. Neither can the
The defendant to amend, otherwise Saunders, 228. Butt's case (7 Rep. 25), and Dr. memorandum operate as a declaration by the defend.
judgment for the plaintiff. Bonham's case (8 Rep. 120), are authorities to show ant against his own interests, as in Slatterie v. Pooley. that pleading over merely cures matters of form. He admits, indeed, that he came in under Robert
MESSENT O. REYNOLDS. See also i Chitty on Pleading, 7th ed. 704. [Colt. Saunders; but that may have been as a purchaser of
Pleading --Implied covenants. MAN, J.-What would you say, if “then and there" the equity of redemption under a mortgage prior to where the declaration in an action states an agreement, had been inserted with the allegation of presents that made to the lessor of the plaintiff. He would “ whereby the defendant agrees to let to the plaintif ment?] Even that would not do. This is not merely then be bound, as the owner of the equity of redemp- certain premises, subject to the same conditions as are an equivocal expression: it is an absolute defect. tion, to ascertain who are the mortgagees, and pay mentioned in a certain memorandum of agreement It is a mere accident that the venue is London, and, them off in their order. Besides, as a declaration, made between the defendant and A B," without with reference to this point, cannot place the parties the memorandum is imperfect, as it refers to some shewing what the memorandum is, the Court cannot in a better position than if the venue bad been some indenture not produced.
infer an absolute covenant for quiet enjoyment from other county. This is within the proviso of the By the COURT.-By the indorsement the defendant the defendant to the plaintiff. Rule H. T. 4 Wm. 4, pl. 8, “provided that in cases acknowledges that he has no better title than what he This was a special case stated by agreement for the where local description is now required, such descrip- derives from Saunders. He refers to the deed upon opinion of the Court. It set out a declaration in an tion shall be given."
which bis memorandum is indorsed, and speaks of the action by the plaintiff against the defendant, whereby TINDAL, Č.J.-It appears to me that this case is within-mentioned premises. What right has he to it appeared that, by a memorandum of agreement, decided by the new rule last referred to. It must set up any title which Saunders could not ?
“the defendant agreed to let to the plaintiff a certain now be taken as if the venue inserted in the margin
Rule discharged. house and premises, situate, &c. subject to the same were continued throughout the declaration; just as
Thursday, May 28.
conditions as were mentioned in a certain other me. if it had been in the old form, “afterwards on such
Doe v. ROE.
morandum of agreement, made between the defend. a day the bill was then and there presented, &c." I
ant and one John Flight, for the term of eight years; think that would have sufficiently averred a present- Talfourd, Serjt. moved for judgment against the it then stated the plaintiff's entry, mutual promises, ment in London,
casual ejector. The affidavit of service of the decla- and "that the defendant promised, undertook, and COLTMAN, J.-It is unnecessary to advert to the ration and notice in ejectment did not set out the agreed that the plaintiff should peaceably and quietly effect of pleading, over. It would bave been quite full Christian names of the tenant in possession, upon use, occupy, possess, and enjoy during the term ; " it sufficient in the declaration to allege that the bill whom it was served, but only
his initials and his sur- then proceeded to shew an eviction of the plaintiff, not was presented in London; then comes the rule, and name. It was submitted that in certaio cases it by Flight, but by some party having title paramount. probibits the insertion of that special venue as un would be almost impossible to ascertain the full The plea was non assumpsit, and the question raised necessary.
Christian names of the tenant upon whom it was for the Court was, whether the agreement between MAULE, J.-I think the venue ia the margin suf- necessary to serve.
Rule absolute. the plaintiff and the defendant raised such a promise
as was set up, and whether the plaintiff was entitled to dered is immaterial ; that the issue is taken on mat. Mary, Walthamstow. 2. That of James Pistor (pre
ters of inducement; that the traverse should have vious copyholder). 3. That of Webber and Budd. Talfourd, Serjt. for the plaintiff.—No doubt this been in the disjunctive, &c.
4. That of Stoker and Bailey. The defendant had agreement amounted to a lease. If it contained the On a former day, Channell, Serjt. had obtained a been let into possession of the premises under the word demise, that would have imported a warranty; rule to set aside the demurrer as frivolous, against following memorandum :-“ June 23, 1842-Memobut there is no magic in the word itself, and any words which Gaselee, Serjt. was to have shewn cause, but it randum of agreement between H. F. Gadsden, as of present demise, such as these, will import the was agreed that the case should be argued upon the agent for, and on behalf of, Webber and Budd, churchsame. The plaintiff assumes that he is able to demise validity of the demurrer itself.
wardens of the parish, &c. of the one part, and John for eight years, subject to a certain agreement. If Gaselee, Serjt.—The traverse in the replication is Foster, of the other part, the said H. F. G. provided that agreement contained any thing to prevent such a too large. It puts the defendant upon proof that the a licence can be obtained from the lord of the manor, promise as this being implied, the defendant should parties accounted concerning all matters in dis- but without any right for Foster to require the conhave shewn that. It is true that in Granger v. Collins pute, whereas it is sufficient if they accounted sent or sanction of the poor-law guardians, agrees to (6 M. & W. 458) the Court held that this kind of concerning the bill of exchange, and one other grant and execute, or cause to be granted and exewarranty was not implied from the mere relation of cause of action. It is no answer to say that the cuted, a lease of all that, &c. (describing the premises), landlord and tenant. But the distinction between replication merely follows the plea, for in Palmer to hold to the said Foster, for the term of 21 years, that case and this is, that here the agreement is v. Ekins (2 Strange, 818) it is said: “It is no an. from Midsummer-day next, at and under the clear specially stated. (CRESSWELL, J.-Is this agree. swer to say, that the defendant has traversed yearly rent of 301. payable quarterly, such lease to ment any thing more than evidence of the creation of in the words of the declaration ; for unless it be ma- contain the usual covenants, &c. and Foster agrees to the relation between landlord and tenant?]
terially alleged, he is not to follow it." (Stephens on accept the lease and sign a counterpart, and to pay Channell, Serjt. (with him Hoggins) for the de- Pleading, 282; Goram v. Sweeting, cum notis, 2 for the same, &c. and until such lease and counterfendant.--The plea of non assumpsit drives the plain- Saund. 207, a, last ed. ; Basan v. Arrol, 6 M. & W. part shall be executed, it is agreed that the said yearly tiff to prove not merely the agreement, but also the 559; Com. Dig. Pleader, G. 15.) Besides, the issue rent shall be payable or recoverable, by distress or covenant for peaceable and quiet enjoyment. The is immaterial. If the plaintiff accepted the 401. it otherwise, in the same manner as if the lease or counagreement to which the defendant's agreement is sub. is no matter whether they accounted. The proper terpart had been executed." This memorandam was ject not being set out, we may infer its contents to traverse would have been to deny the taking of the signed by the defendant. be unfavourable to the plaintiff's case. (Jackson v. 401. in satisfaction.
On the 24th December, 1844, a notice to quit, reCobbin, 8 M. & W. 790.) They were then stopped Channell, Serjt., was not called on.
quiring the defendant to give up possession of the by the Court.
TINDAL, c. J.—The plea, as it appears to me, premises at Midsummer-day next, but not saying to TINDAL, C. J.-The plaintiff is not entitled to re- consists of two matters of fact; the accounting and whom possession was to be given, was served upon
He wishes the Court to say, that in the de- the payment of the balance. Unless the plea con- the defendant, and purported to proceed from Messrs. fendant's agreement there is implied an absolute tained both these, it would furnish no answer to the Hindman and Howard (attorneys)" as agents for and covenant for quiet enjoyment. No doubt in a lease action. The plaintiff has a right to take issue upon on behalf of Webber and Budd, late churchwardens, such a covenant is implied by law in the word demise. either of these ;-upon the accounting, for instance, &c. and Stoker and Bailey, present churchwardens, I do not, however, rest on the point that here that as he does here. The defendant says, "We accounted and Wigram and Taylor, present overseers, &c.". A word is not used. At all events, there ought to ap- together concerning the bill of exchange, and all other verdict was found for the plaintiff at the trial, subject pear to be an absolute demise of the term in respect of claims and demands.” The plaintiff follows him, and to several objections, and a rule had been obtained by which the covenant is to be implied. Here the letting denies that any such accounting took place. But then the Byles, Serjt. for a nonsuit or a verdict for the defend is subject to conditions ; and how are we to say that defendant objects, “You have followed me too closely; ant, against which, it is not a conditional term ? Those conditions may you were bound to confine your answer either to the Channell, Serjt. (with him Bovilt) shewed cause. have been broken, and the eviction may have been the bill of exchange, or to that and some other subject All the demises but the third were now abandoned, proper and natural consequence of the breach. I of account.” To this there is a very short answer: if and the objections thereupon remaining to be agreed think the inference drawn by the plaintiff cannot be the plaintiff had so replied, the other party would were, first, that the memorandum of June 23, 1842, supported in law, and that there is no promise such as speedily have turned round upon him, and said, was an actual lease, and being merely stamped with is alleged in the declaration.
There were other claims between us, and the an agreement stamp was inadmissible in evidence ; COLTMAN, J. concurred.
accounting respecting them reduced the debt to the secondly, as to the sufficiency of the notice to quit; MAULE, J.-The declaration does not even lay the small sum which I have stated in my plea." I think, thirdly, that the demise was improperly laid. promise to have been that the defendant should quietly however, that the issue is properly taken. All the On the part of the plaintif, the following cases enjoy, subject to the conditions in the other memoran- cases cited are where the traverse is to an allega- were referred to: Doe dem. Coore v. Clare (2 T. R. dum. Those conditions may have been to pay 5001. on tion in the declaration, not to its full extent material. 739); Hayward v. Haswell (6 A. & E. 265); Bicknell a certain day, which may not have been paid. The That has nothing to do with a distinct allegation in v. Hood (5 M. & W. 104); Hope v. Booth (1 B. & objection goes entirely to the merits of the case. It is the plea, upon which the defendant chooses to stake Ad. 498); Doe dem. Jackson T. Hiley (10_B. & C. clear that the defendant did not represent himself as his defence.
885); Doe dem. Higgs v. Terry (4 A. & E. 274); seized in fee, but that he really was and represented The rest of the Court concurring,
Gouldsworth v. Knights (11 M. & W. 337). himself to be a person having title under Flight, and
Judgment for the plaintiff. Byles, Serjt. (with him Ogle), for the defendant, willing to hand over his estate with all its conditions.
and in support of the rule, referred to Bacon's The assumption in the declaration is, that the defen
Tuesday, June 2.
Abridgment, Leases, K.; Pinero v. Judson (6 Bing. dant pretended to have the power to grant absolutely
HAMMOND 0. Colls.
210). what he only grants conditionally.
TINDAL, C. J.—The plaintiff is entitled to recover CRESSWELL, J.--There is no evidence of an ex- Where judgment had been given for the defendant upon on the third demise. This is not a lease, but an press promise, but it is said the law will imply one. a demurrer to a replication ficelve months ago, the agreement merely. There seems to have been some How can we assent to that, when the conditions an- Court refused to allow the plaintiff to amend upon doubt who were the lessors, and Webber and Budd nexed to the letting are not set out, and we know not payment of costs.
agree subordinately to receive the rent, in case a lease what they are ? Even if the word “let” would be This was an action of trespass. The declaration cannot be obtained. Webber and Budd being churchequivalent to a demise under seal, which I by no contained five counts. The eighth plea was pleaded Wardens, and having let the defendant into posses. means admit, yet when there are certain unknown to the first and second counts, and the tenth plea to sion, their right never shifted, and the tenant ought conditions to the letting, the plaintiff cannot assume the third and fourth counts of the declaration. The to have obeyed the notice to quit which was given an absolute unconditional covenant.
replication to each of these pleas was demurred to him. The defendant has shewn no other party in Judgment for the defendant. specially, and after argument the replication to the whom the legal estate vested.
tenth plea was held to be good, but judgment was COLTMAN, J.-The parties had some difficulty Monday, June 1.
given for the defendant upon his demurrer to the re- about a future lease, and in the mean time agree to SUTTON O. PAGE.
plication to the eighth plea, on the ground that the take the best terms they can get. They therefore To a declaration by the indorsee against the acceptor traverse in the replication was too large. These consent to a tenancy so long as they can agrec.
of a bill of exchange, the defendant pleaded, "That demurrers were argued and judgment given in Trinity Whatever title Webber and Budd had at the time the plaintiff and defendant accounted together of and Term, 1846. (See Hammond v. Colls, 14 Law j. they have now, because there has been no legal transconcerning the said causes of action in the declara. N.S. C.P. 288).
fer of their legal estate. Their title by estoppel is as tion mentioned, and all other claims and demands Manning, Serjt. now moved for a rule to show good as ever. then being between the plaintiff and the defendant,"' cause why the plaintiff should not be at liberty to MAULE, J.-The notice to quit was quite good, and then went on to allege a payment of what upon amend his replication to the eighth plea upon pay. although persons joined in it who had nothing to do the accounting appeared to be due. The plaintiff ment of costs, or why he should not be allowed to in with it. replied, “ that the plaintiff and defendunt did not sert another count in his declaration. He mentioned CRESSWELL, J. concurred. Rule discharged. account together of and concerning the causes of that under certain circumstances the Courts had action in the declaration mentioned, and of all other allowed amendments, even after writ of error brought.
Thursday, April 16. the claims and demands then being between the plain- TINDAL, C.J.-We do not allow additional counts Holden V. THE LIVERPOOL NEW GAS AND COKE tiff and the defendant modo ac forma:"--Held, that to be inserted two Terms after service of declaration.
COMPANY. the replication was good on special demurrer. We ought not to permit an amendment in the plead. Where a gas company were in the habit of supplying gas
Assumpsit.-Indorsee against acceptor of a bill of ings a year after the subject-matter has been dis- to a private residence, and there were inside the house exchange for 1201, 5s.
Rule refused. a pipe and a stop-cock, by means of which all the gas Plea.—That after the accruing of the causes of ac
could be prevented from escaping, the tenant left the tion, &c. and before the commencement of the suit, Doe. dem. BAILEY AND OTHERS v. Foster. house, giving notice to the company that no more gas the plaintiff and defendant accounted together of and A memorandum between A B and C D, " that pro- would be required, but omitting to turn off the stopconcerning the said causes of action in the declara. vided a licence can be obtained from the lord of the cock; the company took no steps to prevent the gas tion mentioned, and all other claims and demands manor, A B will grant, and C D will accept, a lease from entering the house, and an explosion took place : then being between the plaintiff and the defendant, of certain premiscs for 21 years, and pay the rent, Held, that the defendants were not liable in this case and then amounting to a certain large sum, to wit, &c. and that until such lease shall be executed, the for negligence for the damage occasioned to the owner 1,0001.; and that, on the said accounting, a certain said yearly rent shall be payable and recoverable, by of the house by the explosion, as it was the duty of the small sum, to wit, the sum of 401. and no more, was distress or otherwise, in like manner as if the lease tenant to have turned off the stop-cock. found to be due from the defendant to the plaintiff. had been executed," is not a lease but an agreement In this case a rule had been obtained for setting The plea then went on to aver payment of the sum of merely.
aside the nonsuit, against which, in Hilary Term last, 401. so found to be due.
Where a party is let into possession under such an Channell, Serjt. (Crompton with him), shewed cause; Replication.-That the plaintiff and the defendant agreement, a notice to quit, given by an agent, in the and Sir Thomas Wilde (J. Henderson with bim) sap. did not account together of and concerning the causes name of A B, E F, G H, and J K, is a good notice. ported the rule. of action in the declaration mentioned, and of all This was an ejectment to recover certain copyhold The case is fully stated in the subjoined judgment, other claims and demands then being between the property, in the parish of St Mary, Walthamstow, in which was now delivered by TINDAL, C. J. plaintiff and the defendant modo ac forma. the county of Essex. The declaration contained four
JUDGMENT. Special demurrer, on the grounds that the traverse demises : -1. That of Bailey and Allan, church. TINDAL, C. J. Dow delivered the judgment of the taken is improper and too large ; that the issue ten. werdens, and Collard and Janson, overseers of St. Court. The plaintiff in this case having been Rom