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The MASTER of the Rolls said, he could not order under an order obtained for that purpose, the record found due to Smith, on the bills, the sum of the purchase-money to be distributed till the pur. is altered. It is not like a case in which an answer 2,832. 53. 3d. In pursuance of this finding. Smith, chaser had got a conveyance of the legal estate. The is put in, and then the bill is amended, and precaution on the 18th of July, 1845, presented a petition for purchaser could not be supposed to know what con- is taken that the defendant is not subject to any pro- payment of what was due, and of costs in the struction the Court would put upon the Act, nor, cess, but is left to himself to answer or not as he various proceedings, and Husband afterwards pretherefore, that there was no jurisdiction to direct a pleases. But in this case there is an amendment, and sented his petition for liberty to except to the conveyance. There did not appear to be any way of no intimation contained in it, but only a notice ac- certificate, and the two petitions now came on to be getting over the difficulty but by an Act of Parlia. companying the service that the defendants were not beard, Husband's petition being opened first. The ment; and, if they should think proper, the plaintiff required to answer the amendments. Well, this notice petition complained of frauds being committed by might have a reference to the Master, to inquire is given, and the answers are actually ready if there Smith, alleging that he had charges in bis bills for whether it would be for the benefit of all parties that an was a fitting opportunity of sending them, the mes. disbursements never made for counsel's fees, &c. and Act should be obtained.
senger's oath being required; but they are not to the that in the course of taxation many of these were
amended bill, but to the original bill ; and yet they paid, and vouchers produced which would not otherThursday, Feb. 26.
are asked to file them, or have a traversing note filed wise have been paid ; and that, after all, ninety-five RIGBY v. PINNOCK.
against them. My impression is, the answers, if items amounting to 1071. 179. 10d. for counsel's fees Practice- New Orders of May 1845- Amendment-tendered, would not be received, becaue they are to a were disallowed, and 222 items, amounting to Traversing note-Time.
bill not now on record ; and, if so, the motion is 1731. 9s. 100. overcharges, were reduced or dis. A commission to take the answer of several defendants mistaken, because the answers are to the original bill; allowed ; that all the bills had not been taxed, but
who were abroad was obtained, and the answers were and in that case to file a traversing note would be that about twenty had been allowed on the mere to be sent over, but, to save the expense of a special against all principle. I will not dispose of it until I voucher of Smith of the several sums charged therein, messenger, they were kept back for an opportunity to inquire.
on the ground that these bills bad been paid to Hussend them; under the circumstances the plaintif ob. His lordship, in the course of the day, communi. band by his clients. It appeared that they were in tained an order to amend and served it upon the de- cated with the clerk of the records and writs, who bankruptcy, and had been taxed by the proper officer. fendants, and on taking an office copy it was found said he would receive the answers, notwithstanding But the principal objection arose out of the payments that they were required to answer the interrogatories, the amendments, if no other answer had been put in. alleged to have been made in respect of the bills, that though, as to some of them, a notice accompanied the This, however, did not dispose of the motion ; and the being the only extent to which the Taxing Master service of the order to amend, that they were not re- Court then decided on the application of the Orders, was directed to go into the cash account. quired so to answer. On the eighth day after serrice and was of opinion that the motion was premature peared that the cash account was not taken into conof the order the plaintiff mored that the defendants, and fruitless, the defendant having six weeks to sideration till January, 1814, and that Mr. Smith had who had been so noticed, should either file their an answer, under the 14th rule of the 16th Order.
been allowed all his cash disbursements, whether in swers or allow the plaintiff to file a traversing note
relation to professional business or not, but that two against them, and the motion was refused, the de. Thursday, Jan. 15, and Thursday, March 5. particular items had been disallowed to Husband fendants having six weeks to answer under the 14th
amounting to 500l. each ; and the disallowance of rule of the 16th Order, and not being confined to Taxation-Constructive payment-Jurisdiction in cases these formed the principal ground of complaint. It
eight days under the 38th rule of the same Order. of taxation-Special directions to taxing Master- appeared that in August, 1835, Husband and one The 38th rule of the 16th Order applies to the case of Ilis duty when no such directions.
Malachy were at the office of Smith, and Malachy amendments after answer, and the 14th rule of the In ascertaining what payments have been made on ac- being in possession of a large number of shares in the same Order to that of amendments before answer. count of bills, questions of law and of fact may Wheal Brothers Mine, sold Smith twenty-five of If no answer has been put in, the clerk of records arise which may require to be determined eren in the them for 5001. which he requested Husband (as be and writs will receive an answer to the original bill, limited jurisdiction under which bills are tared, but alleged) to pay, an i he would credit the same against though it has been amended before the answer is pre- whatever the Court itself might feel to be its duty in the bills of costs, and Husband accordingly agreed to sented.
such cases, the Master's duty is to confine himself, in do so. At the same time, also, Sinith bought twentyIn this case the bill was filed on the 14th July 1845, a case where he has received no special directions five shares of Husband at 5501. and agreed, as was and an appearance was entered for the defendants from the Court, to simple payments plainly proved alleged, to give him credit for 5001. part thereof (against whom the present motion was made) on the to hare been made on account of the bills, and not to against his bills of costs, the odd 501. being paid by 28th of the same month, and, tberefore, the time for take upon himself to certify whether a certain alleged a cheque, which stated the circumstances under which answering expired on the 22nd September. On the transaction, not amounting to actual payment, is or it was given. Smith also, as was alleged, made at 3rd November a motion was made for a commission is not a transaction which a court of law or equity the time an entry of the sums in his cash book, to to take the answers of these defendants who were would, under the circumstances, adjudge to constitute the credit of Husband, and gave a receipt for 1,0001. abroad, their solicitor stating that the answers were a debt or payment.
which was produced to the Master. When the mat. then engrossed, and undertaking to use all expedition ; An order being made, on the petition of a country ter came before the Master, he thought the evidence and, the commission having been executed, the an. solicitor, for the taxation of all his town agent's bills, insufficient as to the payment of the 5001. to Malaswers were detained for the purpose of being sent by the taxing Master taxed all the bills except those chy, and as to the other 5001. he thought the consia the first opportunity without the expense of a special which had been preriously taxed or paid, and as to deration of it did not come within the terms of the messenger. The pratitir, howover, was dissatisfied these he called upon the town agent merely to prore order of reference, and he disallowed them both. The with the delay, and gave notice that if the answers tots alleged disberoemento. it was held that charges entries in the book of Smith were not in evidence; and were not filed by the 21st of February, he would apply in a petition for leave to except to the report were as he would not produce them, the Master refused to to the Court for leave to file a traversing note against without foundation, no specific error being alleged to compel him. The points then were, whether Mr. them. On the 18th of February the plaintiff served have been made.
Husband should be allowed in account the two sums the defendants with an order to amend, and on taking In this case two petitions were before the Court, of 5001. and whether the Master was right in refusing an office copy of the amendments they found that they one praying leave to except to the taxing Master's to tax the twenty bills already mentioned. were required to answer the interrogatories; notice, certificate, and the other that it should be confirmed. Turner (with hin Cole), for the petitioner, cited however, had been given to those defendants against It appeared that Mr. George Smith was the town Oakeley v. Pasheller (10 Bligh, 548); Thompson v. whom the present motion was made, that they should agent of Mr. James Husband, a country solicitor, Percival (5 B. & Ad. 925), to shew that the credit not be required to answer. On the 26th of February from the year 1825 down to the close of 1840, during given by Smith amounted to payment to him. the plaintiff moved that the defendants should either all which time there had been no taxation of his bills, Kindersley and Daniel, contrà. file their answers or allow him to file a traversing note nor any settlement of accounts in relation thereto. March 5.-The Master of the Rolls stated the against them.
Mr. Husband having been, as he alleged, defrauded facts, and proceeded :- The first observation to be Cairns, for the motion.
by Mr. Smith in a great variety of transactions, dis- made on the case is this, that the sums of 5001, each Kindersley (with him Hallett) for Edward and continued him as agent in the latter end of 1810, and formed part of the petitioner's complaint on his first Thomas John Pinnock, two of the defendants, said employed Messrs. Bourdillon and Sons; and in May, petition, in which it was stated that Smith omitted to tbat if the plaintiff would dispense with a special 1841, presented a petition praying (see Re Smith, 4 credit him in account with a sum of 1,0001, for which messenger, he might have the answers immediately. Beav. 309,) for the delivery by Smith of papers, &c. be ought to have been credited in 1835, and for which The order to amend was served on the 18th of February of his further bill of costs, and his cash account dur- the petitioner held Smith's receipt in his own hand, after the answers were prepared and ready to be sent, ing the years 1830, 1831, 1832, 1833, and 1834 ; and dated 5th August, 1835. That petition contained no and on taking an office copy of the amendments the praying a reference to the Master to tax the bills allegation of an agreement by Smith to give credit defendants found they were required to answer the in- from 1825 down to 1840 inclusive, to settle and ad. for this sum of 1,0001. but only asked for relief on the terrogatories, though notice was also served that they just the cash account, and to take an account of all general account, which I refused; and the order was would not be required to do so. Besides, Thomas dealings and transactions between them ; and that in made that the Master should have regard only to such Joho Pinnock is an insolvent, and his assignees must the taxation the Master might be ordered to have re- sums as were paid on account of the bills. To meet have time to answer. [The MASTER of the Rolls.- gard to an agreement stated in the petition as to the the terms of the order, this petition states an entry in Would the clerk of records and writs receive an answer employment of Smith as agent. The order made on a book, in the presence of the petitioner and Malachy, to the original bill after amendment?] It is not likely this petition was, that the petitioner paying into Court crediting the petitioner
with 1,000l. as against the he would ; the answer must be not to the original bill the sum of 1,000l. and undertaking to pay what bills of costs, but the affidavit of Husband omits the which does not exist, but to the amended bill. should appear to be due on taxation of his bilis, Mr. words “as against,” &c. There is, however, both
Turner, for other defendants, contended that as the Smith should deliver his further bill of costs, from averment and alleged agreement, supported by affiplaintiff had amended by adding parties, viz. the assig- the foot of the last bill delivered ; and that the Master davit, that Smith did agree that the two sums of 500M nees of the insolvent, they must have time to answer, should tax the bills and ascertain the amount due each should be credited against the bills. Smith in. as they could not answer without answering the thereon to Smith, “having regard to the sums of sists that the transaction as to the shares was fraudu. amendments; it was the same as if an original answer money which have been paid by or on behalf
of Mr. lent and void, and that the sums alleged to be paid to was required, and they must have six weeks. Besides, Husband to Mr. Smith on account thereof." But the Malachy were, in fact, never paid, and that there the 38th rule of the 16th Order clearly applies to Court refused to entertain the question of the agree. was no such agreement as that alleged, and that the amendments after answer, as the 14th rule of the ment, or to order an account of dealings, &c. for the Master was right in not allowing the sums. Notsame Order applies only to those before answer. purpose of adjusting the general cash account, on the. withstandiog the importance of keeping the jurisdic
Cairns, in reply, contended that the defendants, not ground that there was no jurisdiction to do so on a tion in cases of this kind within its proper limits, and being required to a swer the amendments, had only petition for taxation. The papers, &c. were also the propriety of directing the Master to have regard eight days, under the 38th rule of the 16th Order, not ordered to be delivered to the new agents. Accord. only to sums paid on account of the bills, yet it is six weeks, under the 14th rule of the same Order, in ingly, on the 19th November, 1841, Husband paid not improbable questions may arise as to what paywhich to answer, unless they took out a warrant for into Court the 1,000l. and on the 6th Dec. Smith ments have been so made, both of law and of fact, further time; and as they had not done so, and it delivered his further bill of costs, and on the 7th the which may require to be deterınined even in this juwas then the eighth day, after service of the order deeds, papers, &c. and soon after the taxation com. risdiction; and when they should so arise, it would be to amend, the motion was quite regular.
menced, and was not completed till July 1845, when right to settle them according to law and justice. The Master of the Rolls.--The question is, the taxing Master certified that Smith's bills of costs, But when the Master has received no special direcwhether the motion can be granted. The plaintiff amouuting to 9,1761. 6s. 8d. had been laid before him, tions from the Court, it is his duty to confine himself baying, since the answers were taken (though, per- and he had taxed them at 8,7511. 175. 10d. and that, to simple payments plainly proved to have been made haps, 1 ought to take no notice of that), amended having regard to the payments on account thereof, hé on account of the bills. Upon a conflict of evidence,
he may have to certify that a payment has been made, pursuant to the 4 Vict. c. 94, and 4 & 5 Vict. c. 52. cause being whether one T. A. of Eresham, in but he ought not to take upon himself to say whether (Calvert v. Gandy, 1 Phil. 518.) The difficulty in the cestershire, from whom the lessor of the plaing i a particular transaction, not amounting to actual pay- present case had not been removed by the 8 & 9 proved his descent, was the same person ki te ment, is such a transaction as either a court of law Vict. c. 105, which was relied upon in Medhurst v. T. A. carrying on business in London as a heter. or of equity would adjudge to constitute a debt or Allison.
dasher in partnership with his brother twelve year payment. And in this case, considering the form and The Vice-ChanCELLOR.–The case of Medhurst before ; a bill in Chancery, filed by that brode manner in which the plaintiff's claims to this and the v. Allison is an authority for a convenient and rea- alone as a trader, was offered in evidence to sheet two sums of 5001, each were discussed and disposed sonable construction of an Act of Parliament, and, dissolution of the partnership; and the are of on the former petition, and the absence of any ex- without expressing any opinion of my own, I shall thereto, and another bill and answer in Chartery, a planation of the circumstances under which he seeks follow it.
a suit in which a member of the same family is to establish his claim on a different footing ; consi. Rolt applied for his costs.
defendant, were offered as declarations with reg? dering the form of the order, directing regard only to The VICE-CHANCELLOR said, that the defendants to the condition in life of that family. Held, wd. be had to the sums paid on account of the bills, and might elect whether they would then take 41. or let missible. the absence of special directions as to the sums the costs be reserved.
Ejectment, tried at the last Surrey Assizes bei claimed in the petition; and further, having regard to
Lord Denman, C.J. when a verdict was found is the claim of the 5001. alleged to have been paid, and
the defendant. The lessor of the plaintiff claimed te the 5001. which it is alleged ought to be deemed to
property in question under a will, whereby it was do have been paid, I am of opinion the Master has pro
vised to the inale heir of Wm. Angel, tbe first par perly disallowed these sums, and that in respect of
chaser of Crowhurst, and he claimed as a desert them there is no ground for giving the petitioner
Friday, March 20.
from the youngest son of John, the eldest song in leave to except to the report. I am further of opi
DELWAR v. ROGERS.
Angel, the first purchaser of Crowhurst. Tee less nion that the charges made in this petition, that the Cankrein moved, under the 24th Order of August of the plaintiff at the trial satisfactorily traced the Master has not fully taxed all the bills which he was 1831, for leave to enter a memorandum of service of family of the testator at Crowhurst down to Thoses, ordered to tax, is without any just foundation. All copy of the bill in this cause upon one of the defen- the sixth son of John Angel, who held the end of the bills not previously taxed or paid were fully taxed; dants, and supported the application by an affidavit caterer or purveyor to the court until his desin it as to the others, Mr. Smith was called upon to of a copy of the bill having been served, and stating 1670; and the question in the cause was streer prove his alleged disbursements, and I do not find the time when the service was made, as required by the lessor of the plaintiff was the male beir or that that the petition contains any allegations of any spe- the above Order.
Thomas. In support of his claim, the lessor cific error. On the whole, therefore, I am of opinion The Vice-CHANCELLOR.- Does the affidavit state plaintiff proved his descent from a Thomas de that the petition must be dismissed, with costs. that the bill prays no direct relief against this defen- who, in 1682, was married at Evesham, in the can
dant, and that the copy served was a correct copy of of Worcester, and who, in the marriage register, tu the bill ?
described as of Cleeve Priors, in the county of Tu. VICE-CHANCELLOR KNIGAT Cankrein.-It does not.
cester, a tailor, and about the same age as the Thons BRUCE'S COURT.
The Vice-CHANCELLOR.-Unless you can assure Angel of Crowhurst. The cause turned entirely opce
me of the truth of those facts of your own knowledge, the identity of the Thomas Angel, so married # Saturday, March 7.
from having drawn the pleadings, the motion must Evesham, with the Thomas Angel, descended fra Scott v. BROADWOOD.
stand over to have the affidavit amended to satisfy the testator; and in order to prove that they are Pleading-Statute of Limitations--Bill of discovery. the Court upon those particulars.
the same person, a copy of an entry in the register si To a bill of discovery in aid of an action of ejectment, The affidavit was amended, and the rule was then the parish of Evesham was produced, but the rethe Court held a plea of the Statute of Limitations made.
gister itself was not produced. The entry was of to be good.
HAMMOND v. Smith.
burial of that Thomas Angel, and contained, in adé. This was a bill of discovery filed in aid of an action
tion to the usual entry, these words, “desceodai of ejectment brought by the plaintiff, Joseph Scott, Where a will admits of a double construction in conse from Crowhurst." The witness who produced te for the recovery of a brewery and houses at West- quence of events which subsequently happened, the copy of the entry was cross-examined as to the sta2 miaster. The bill stated the claim of the plaintiff as Court will give effect to that construction which will of the original register, and stated that it was disoheir-at-law to Sir Andrew Chadwick, who was seised nearest carry out what was apparently the intention loured and crumpled. The counsel for the defeadas, of the property in question, and died in March 1768; of the testator, had the event which raised the con- in his address to the jury, imputed fraud to the entry, and it was alleged that the property was, at the time struction not occurred.
and commented upon the non-production of the of Sir Andrew Chadwick's death, held of him on John Hill, by his will, dated in October 1810, be original register, which he stated to have bea leases which expired in June 1826. To this bill the queathed the interest of 800l. Consols to Hester in court; and the learned judge, in summiag defendant, by leave, filed two pleas as to a portion of Fox, for life, and after her decease, to his cousin, up the case, said that the entry appeared opes the property; first, of a fine levied by Sarah Law, as Robert Smith, for his life, and after their decease to a good deal of suspicion; and tbat though be heiress-at-law of Sir A. Chadwick, and - Taylor, bequeathed as follows :—“The said capital, or imputed no fraud to the present lessor of the plain. in Hilary Term, 20 Geo. 3 ; and, secondly, of the principal sum of all such money in the Three per tiff, they could not doubt that somebody had to Statute of Limitations. The first plea contained the Cent. Consols, that I may be possessed of or en. with the register I ne proved that, in 1664 and usual averments in a plea of fine and non-claim, and titled to at the time of my derende, to the two caid later, Thomas Angel, the sixth son of Joho,
had beca was accompanied by an answer denying that the children of my said cousin, namely, Robert Smith in partnership with his brother Justinian as haberproperty was comprised in any of the leases alleged in and Ana Smith, equal share and share alike, if both dashers ; and in order to shew that that partnership the bill. The second plea was of the 3 & 4 Wm. 4, of them be living, or the whole to the survivor on his had been dissolved, a bill in Chancery, filed in 1677 c. 27, and contained the usual averments in support or her attaining the age of twenty-one years; and by Justinian alone, described as a baberdasher, of it.
the reversionary interest of the said children shall against one Toworoe, and his answer, were offered in Teed and Schomberg, in support of the pleas, cited become a vested interest, and transmissible interest evidence, and rejected as being the declarations of Gart v. Osbaldiston (1 Russ. 158); Cholmondeley v. in them respectively at the age of twenty-one years." other persons, not on a question of pedigree. Upon Clinton (Turo. & Russ. 107); Macgregor v. East. The testator died in 1814. Robert Smith, the the same ground were rejected the bill (filed 1701), India Company (2 Sim. 349), and Chadwick v. Broad younger, died in the lifetime of the tenants for life of and the answer thereto, in a suit of Angel v. Smitk; wood (3 Bea. 308 and 530).
the fund, having attained twenty-one years of age, offered for the purpose of shewing that Justinian and Roli and Welford, for the bill, contended that the and assigned his reversionary interest to the plaintiff ; his family at that time had been in comparative po. plea of a legal bar to a bill of discovery was not good and the question was, whether Robert Smith took a verty. (Hindman v. Taylor, 3 Bro. C. C. 483; Mendizabel vested or contingent interest in the fund under the Shee, Serjt. now moved for a rule to shew cause v. Machado, i Sim. 68; Robertson v. Lubbock, 4 Sim. will.
why the verdict should not be set aside, and a new 173; Bailey v. Sibbald, 15 Ves. 185; and Leigh v. Romilly and Robinson, for the plaintiff, cited Perry trial granted, on the grounds of the improper rejetLeigh, 1 Sim. 349); and that the statute not having v. Wood (3 Vesey, jun. 204), Brown v. Biggs (7 tion of evidence and misdirection, and that the verdict been pleaded in the action of ejectment, it could not Vesey, jun. 279), Moral v. Sutton (1 Phillips, 533). was against evidence. First, the bill filed by Jas. be pleaded to this bill. (Macgregor v. East-India Walker, for the defendant Ann Smith, who claimed timian is admissible, and evidence of the fact that at Company, 2 Sim. 349.)
the whole fund by survivorship, the last tenant for that time he was suing alone as a trader; and the The Vice-ChanCELLOR said that he could con- life having died, cited Cripps v. Walcot (4 Mad. declaration upon oath of Townroe, the defendast, ceive cases in which to a bill of discovery in aid of an 11), Faber v. Beverley (1 Collyer, 108).
was admissible to shew the condition of the parties at action at law, the Statute of Limitations would not The Vice-Chancellor.--The words “trans- that time; being made without any interest to misbe a good plea. He was, however, of opinion that missible interest," in the second clause in this will, represent, and on a matter analogous to a question the present bill was so framed, that the second plea must weigh strongly in the decision of this case for of pedigree. T'he same observation applies to the was a good plea to the extent it went, and must be the plaintiff ; the words used in the first clause are bill and answer in the second suit of Angel v. Smilk; allowed with costs. It was not, therefore, necessary more flexible, and cannot be construed as shewing and although these documents do not come precisely to give any opinion as to the first plea, subject to the an intention in the testator to deprive one of those within the rule upon which such declarations are hearing of the defendant's counsel upon the question parties who should attain twenty-one years of age, usually admitted, still they do fall within the broad of costs.
marry, and bave children; but in case he died in the principle upon which that rule rests. That principio The second plea was allowed, and no order was lifetime of the tenants for life, his children should is, that the best evidence which can be obtained is to made as to the first.
have nothing. To construe the will in that manner, be admitted. [COLERIDGE, J.-Then the letter of
it must follow, that in case both Robert and Ann a deceased witness, giving an account of a transacWednesday, March 25.
had died in the lifetime of the tenant for life, there tion, would be admissible.] But this is so closely ATTORNEY-GENERAL v. GARDNER. would have been an intestacy. I am strongly of connected with a question of pedigree, that the rules Practice-Orders of August 1841.
opinion for the prior construction, and that these of evidence applicable to pedigree cases ought to preJurisdiclion or discretionary power of the Court, by children took a vested interest on attaining twenty- vail in this; and in pedigree cases nearly all the the effect of the 8*9 Vict. c. 105, to relax the terms one years of age, and therefore give judgment in evidence is hearsay, -inscriptions on monuments
, of the Orders of August 1841.
favour of the plaintiff, and order the costs to be costs entries in Bibles, and so forth; and the reason Russell and R. Palmer, on behalf of the plaintiffs in the cause.
given by Gilbert (on Evid. 212) is, that no better in this case, moved that they might be at liberty to
evidence can be obtained. (COLERIDGE, J.-The set down the cause for argument upon the objections taken by the defendants for want of parties, notwith
Common Law Courts.
evidence in pedigree cases is the exception; you
are making it the rule. Besides, in pedigree standing the expiration of fourteen days (allowed by
cases evidence of reputation is received, although beto the 39th Order of August 1841) from the filing of the COURT OF QUEEN'S BENCA, ter evidence is also given.] In Gleador v. Älkia (1 respective answers. They cited Medhurst v. Allison
Cr. & M. 424), Bayley, J. rests these cases upon the (4 Hare, 479).
Tuesday, April 21.
principle above mentioned. [He also referred to R. · Rolt, for the defendants, contended that the Orders
Doe dem. ANGEL v. ANGEL.
v. Erith (8 East, 542); Higham v. Ridgway (10 East, of August 1841 had acquired the force and effect of Ejectment - Evidence-Bill and answer in Chancery- 120); Warren v. Grenville (2 Stra. 1129; 2 Selw. N. an Act of Parliament, and could only be varied or
P. 754); Herbert v. Tuckal (T. Raym. 84); Lloyd rescinderl by two or more of the judges of the Court, Ir an action of ejectment, the sole question in the v. Wait (Turn. & Phil. 65); Monckton v. Altorney.
General (2 Russ. & M. 156.)]. Secondly, it was shares in the Oxford, Worcester, and Wolverhampton v. Brown, 1 Taunt. 381 ; Harmer v. IVestmacott, 6 a misdirection on the part of the learned judge Railway. Breach : the refusal to accept. Pleas; Sim. 284.) to tell the jury that there could be no doubt that ist, the general issue ; 2nd, that the plaintiff was not Welsby, contrà, was not called upon. the register had been dealt with; the presumption ready and willing to transfer, &c. within a reason- Lord DENMAN, C. J.-This is exactly the same being that the entry was genuine, until impeached able time; 3rd, a denial of notice; tried before Cole- case as if the parties had said, “ we will go before by evidence; and, thirdly, the verdict was against ridge, J. at York, when a verdict was found for the witnesses, and pretend to buy and sell, but will really the evidence, because there was no evidence given to plaintiff. It appeared that the defendant had in- not do so." Then if either party repents, and can get impugn the authenticity of that entry; and taking structed Mr. Barr, a sharebroker at Leeds, “to buy peaceable possession of the thing given up, he has a it to be genuine, the plaintiff's (ase was clearly made for him” the shares in question; but that the contract right to retain it. The only case at all at variance out.
between them was in these terms :-“ 16th Oct. with this view is that of Montefiori v. Montefiori ; PATTESON, J.-I think mylord wisq uiteright in the Bought of John Barr ten shares, &c." and "sold to where Lord Mansfield, C. J. said that “no man shall rejection of this evidence. First, a bill in Chancery was Mr. Walker, &c. at so much per share, payable on the set up his own iniquity as a defence any more than as offered, to prove that a certain par'ne ship was dis- 16th day of Nov. &c.” On the same 16th of Oct. Barr, a cause of action ;' but in that case, the party who solved ; but how could it be evidence of that fact? It acting under similar instructions, bought for one Hay had made the fraudulent representation was seekis well settled that a bill in Chancery is no evidence'ten shares in the same railway on the same terms. ing to enforce a claim founded upon it; and I think of the facts stated in it; and the reason is obvious; it There was a similar contract between the plaintiff, that the authority must be limited to such cases. is the mere statement of counsel. Then the answers who was also a sharebroker at Leeds, for the sale to PATTESON, J.-The cases cited of colourable are the declarations of strangers, which would not be Barr of certain shares in the same railway.
Barr did qualifications to kill game, &c. are distinguishable in admissible on a question of pedigree, which this was not dislose the name of the plaintiff, and the question this respect, that they are carried out by means of not; for the only question in the cause was one of was, whether there was any evidence to fix the de. conveyances, which having a well-known legal opera. identity. I hardly understand the ground of misdirec- fendant with the liability; and whether Barr was not tion, cannot be rendered so merely formal as the tion. It might be a prudent course on the part of the the principal. When the period for transfer arrived, transaction in the present case. counsel not to put in the original register; but it was an application was made by the plaintiff to Barr for The other judges concurring, Rule absolute. certainly a course open to observation, considering the his principal; and he referred the applicant to Hay
Practice. extraordinary nature of the entry. Lastly, as to the as well as the defendant, saying that he might go to Lord DENMAN, C.J. at the commencement of the verdict being against the evidence, it was entirely a either of them; and in the first instance the plaintiff argument in the above case, suggested a slet procesquestion for the jury. On the one hand, certainly, applied to Hay; but evidence was given that it was sus, which being declined, on the part of the plaintiff, there were strong coincidences of time and age ; but the well-known practice of brokers during the cur- his lordship added, that parties must fully understand on the other hand there were matters calculated to rency of an agreement to deliver shares by a certain that when they sought to set aside verdicts, they did excite suspicion ; and all haviog been left to the jury, time, to enter into several contracts for the sale of so at the risk of paying costs, even though the verdict I think we should not be justified in disturbing their them in the meantime, and not to disclose the name should be set asiile. The Court reserved to itself the verdict.
of their principal until the close of the transaction. right of considering the circumstances of each case, WILLIAMS, J.-The argument of the learned Watson, Q. C. now moved for a rule to shew cause and did not by any means treat it as a matter of counsel on the point of evidence amounts to this, why the verdict should not be set aside, and a nonsuit course that if the verdiet was set aside, the party that because there is a necessity for the evidence, entered, or for a new trial; first, because there was succeeding would be entitled to his costs. therefore it ought to be given. Evidence of reputation no evidence to fix the defendant; and, secondly, on Welsby, though the rule had been made absolute, in pedigree cases is admitted as an exception to the the ground of misdirection. Barr was clearly the consented to a slel processus. general rules of evidence, as ancient as the rule principal; he was so treated in the written contracts; itself. It would be very dangerous if the commen- there was no privity between the plaintiff and defend
Friday, April 24. tary of the learned judge upon a case, not any mis- ant, as is clear from the fact, that when the plain
CHRISTIE and OTHERS (Assignees) v. Pickford. statement of it, should be considered a ground for tiff applied to Barr for his principal, the answer was : Trorer bg assignees of bankrupt. Goods in the order a new trial. As to the last point, I agree that the “ You may take your choice between the defendant
and disposition of the bankrupt. non-production of the original register, and the very and another person." The learned julge, therefore,
Trover for thirty chests of soap, by the plaintiffs, unnsual dature of the entry itself, meeting the very ought to have told the jury that there was no evidence as assignees of a bankrupt. difficulty of the case, were circumstances of suspicion, against the defendant,
Pleas: first, not guilty ; second, not possessed ; which might properly weigh with the jury; and i must By the Court.--It was a matter proper for the third, that plaintiffs were not assignees. At the trial add that it is a remarkable fact that no intercourse decision of the jury upon the evidence.
before Tindal, C.J., at the last Warwick Assizes should have been shewn between the two supposed
Rule refused. the last issue was found for the plaintiffs; the two branches of this samc family ; that the poor should
former for the defendant. It appeared that the bankhave shewn no appetite for the rich during forty
Thursday, April 23.
rupt, before committing an act of bankruptcy, by TRIX AND WIFE r. HORY.
leaving the country, had ordered Messrs. Pickford, COLERIDGE, J.-If the entry were genuine, it Frivolous demurrer-Replication in action on bond. the defendants, to deliver a large quantity of soap to would be conclusive of the cause; but I cannot M. Smith moved for a rule nisi to rescind an order the British Alkali Company; but that a portion reagree that it must be taken to be genuine until the of Cresswell, J. setting aside the demurrer as fri. mained undelivered when he left ; that immediately contrary was proved; there being circunstan... to volous. The action was on a bond given to the wife, after he had left the country, one of the plaintiffs, a excite suspicion, I think it was quite open to the dum solu, conditioned for the payment of money by a principal creditor, requested Vessrs. Pickford to take counsel for the defendant, or the learned judge, to day certain, with a general breach. Plea: setting out possession of te remaining casks; and gave them comment upon them. As to the rejection of evi the bond on oyer, and alleging performance generally. afterwards a written notice that they were his prodence, it is admitted that the evidence offered in this Replication, assigning breaches; and special demurrer perty, and directing then to hold them to his use. case did not fall within the general rule; because thereto, on the grounds, first, that it did not appear Notice of the intention to open a fiat was also this was not strictly a question of pedigree; but it is that the cause of action accrued before the commence. served upon them ; but the defendants delivered the contended that it comes within a principle, laid down ment of the action, all the dates being under a ride- soap to the British Alkali Company, who were submuch too broadly, that the best evidence which can licet: as to which he cited Parkinson v. White- stantially the defendants in this action.
There was be attained may always be given. The only doubt head (2 Jan. & G. 329); Skinner v. Lambert some conflicting evidence as to the question, upon I have at all entertained was, whether the bill might (4 M. & G. 477); Tucker v. Webster (10 M. & whose behalf the defendants consented to hold the not be received as evidence of the fact that the plain- W. 371); secondly, that the replication was bad goods after the bankruptcy; and the learned judge tiff had sued as a trader and alone ; but, upon con- for not' concluding to the country: citing Roakes left that question to the jury. sideration, I think that that would be to receive the v. Manser (1 C. B. 531); Bush v. Leake (3 Doug. Humfrey, Q.C., on Saturday, April 18, moved for contents of a bill as evidence of a fact; which would 255); and \1 Wm. Saund. 103, n.); thirdly, that a new trial, on the ground of misdirection, contendcertainly be wrong.
the replication was double, in assigoing a breaching that the goods in question were clearly in the Lord Denman, C. J.-I entirely agree with the of the condition to pay the principal together with the order and disposition of the bankrupt, at the time of rest of the Court as to the rejection of this evidence; interest, the principal and interest being separate debts: the bankruptcy, with the consent of the true owner ; and as to the point of misdirection, I doubt whether citing Dickenson v, Harrison (4 Price, 282.)
and that that was a pure question of law, upon which I used, without qualification, the words ascribed
Rule nisi. the learned judge ought to have expressly directed the to me. I cannot agree with the learned counsel that
STEWART v. WILKINSON.
Cur, adr, rult. every presumption was to be made in favour of the Trover-Colourable sale between plaintiff and defen. Lord DENMAN, C.J., now stated, that they had entry. That might be the case if it were an ordinary
consulted the Lord Chief Justice, and found that he entry; but if the clergyman himself chooses to In an aclion of trorer for a heifer, upon a plea of not had left the case to the jury precisely as counsel step out of his way and add to an entry the statement possessed, an apparent sale and transfer of the heifer wished. There would therefore be no rule. of a fact quite out of his knowledge, that alone would from defendant to plaintiff haring been proved,
Rule refused. be sufficient to excite great suspicion against it. But Held, that the defendant was at liberty to shew that
Friday, April 24. here there were other circumstances. The disappear- that sale and transfer was merely colourable, and that
OLIVERSON *. BRIGHTMAN. ance of the family from Crowhurst was at the root of the jury hariny so found, the verdict could not be dis
BOLD v. ROTHERHAM. the case ; but how can we tell that they did disappear, turbed.
Insurance. for from the register of that parish, 16 pages, from Trover for a heifer. Pleas: 1st, not guilty, 2nd, A policy of insurance contained clauses permilling the 1680 to 1701, had been cut out. And, further, there not possessed. At the trial it appeaared that the ship to go to any of certain ports mentioned, Canton was a total absence of any evidence ofintercourseor con- heifer originally belonged to the defendant, but that being one, with liberty to ship, transship, and renection between the two alleged branches of the family an agreement had been entered into, which the defen- ship as should be necessary, and continuing the risk from 1784 to 1837. In my opinion, the present state dant contended was merely colourable, with a view to until the ship reached the final port of destination. of the case is quite satisfactory; and ought to be so its agistment on some common lands, for the sale of The ship arrived at Hongkong when hostilities were to all parties concerned. The case is perfectly dead the heifer to the plaintiff, and an actual transfer of the going on between the Chinese and the English ; and and lifeless; it is not possible that any reasonable heifer, and a payment of a sum of money as the price, the cargo having been put on board a ship, not a carmind can now suppose that the lessor of the plaintiff were, in fact, made. The jury, however, found that rying ship, the loss ensued. has any connection with the family of William the sale was merely colourable, and gave a verddict for Held, that this was a risk insured against. But, secus, Angel, the first purchaser of Crowhurst.
the defendant. A rule nisi having been obtained to where the policy did not contain the clause as to ship.
Rule refused. set aside that verdict, and enter a verdict for the ment, transshipment, and the acts done shewed that ASSER v. WALKER.
plaintiff, on the plea of not possessed, or for a new the removal of the ports was not a mere temporary Contract for sale of shares through a broker-Principal trial,
and necessary remoral, but intended to be a final and agent.
Chilton, Q. C. and E. 1'. Filliams now shewed remoral from the ship, in which they had arrived. A party who instructed a broker to buy shares for him, cause, and contended that, though an agreement, These were two special cases as to the liability of
held liable to the party from whom the broker bought fraudulent and colourable, will not operate against the underwriters upon two policies upon goods in the the shares, though the several contracts were made third parties, yet that a party to it could not avail him- Penang. The question in each way, whether the goods wilh the broker by nume; and though, when applied self of his own wrong, as a defence to an action. (Doe had reached their final destination, according to the to for his principal, he gave another name, as well as v. Roberts, 2 B. and Ald. 367; Brackenbury v. Brack- terms of the policy. The policy in the first allowed that of the defendant.
enbury, 2 Jacob and W.391 ; Montefiori v. Montefiori, the vessel to go to any one of numerous ports menAssumpsit on an agreement to buy and accept ten W. Black, 363 ; Curtis v. Perry, 6' Ves. 739 ; Šteele / tioned (Canton and liongkong being two of them),
with leave to ship, re-ship, and transship the goods, upon orerseers omitting to furnish a copy of a rate rent-book, produced by the defendant in obedience to the risk to continue until the goods reached the final forthuilh after demand, is not repealed by 6 8 7 a notice, in order to shew that no allowance had bers port of destination. The policy in the second case IVm. 4, c. 96.
made in the rent. Held, admissible eridence for that did not contain this clause as to re-shipment and Greg moved (April 20), in arrest of judgment in purpose. transshipment. It appeared, upon the facts stated, this action, in which the plaintiff bad sued the de- Assumpsit for money lent, money paid, and on az that, on the arrival of the Penang at Hongkong, there fendant, as overseer, for a penalty under 17 Geo. 2, account stated. were hostilities going on between China and the c. 3, s. 2, for not delivering copy of a rate forth with. The bill of particulars contained various items, all British forces, but no war had been actually pro. The jury had found that four days was not “ forth- for money lent, and concluded tbus : “ Above are the claimed by the Queen; that in consequence of some with,'' but it appeared to be open to great doubt particulars of the plaintiff's demand, for the recovery repairs being needed by the Penany, the goods were whether the 17 Geo. 2, c. 3, was not incidentally whereof she will avail herself of all or any of the counts placed on board a species of receiving vessel, and, repealed' by 6 & 7 Wm. 4, c. 96, the Parochial of the declaration.” At the trial it appeared that the whilst there, the loss ensued. It appeared, also, that Assessment Act. The 17 Geo. 2 was passed when plaintiff lived with her brother in a house, which be this vessel had been prepared prior to the arrival of the duties of the overseers were very much less rented of the defendant's mother-in-law; thattbe plais. the Penang, and that the agents to whom tbe Penang onerous than now. A rate then was usually made tiff's attorney went to the house of the motber-in-law, bad been consigned had advertised her as to sail in four columns, it was now made in sixteen. Under where defendant also lived, and made a demand of the almost immediately after her arrival.
the 6 & 7 Wm. 4, c. 96, any one may inspect the money sought to be recovered ; that the defendant The Solicitor-General (with whom was Crompton), rate. [WIGHTMAN, J.- Are not the acts different? denied the debt, and thereupon the plain tiff's attorney, on behalf of the underwriters in the first case, sub. One gives a penalty for refusing to deliver a copy, the read several items from a paper, one being an item of mitted that the facts shewed that the final port of other for refusing inspection.] The whole subject. 401. ; that the defendant having said, “I don't owe destination had been reached ; for that by reason of matter has been altered, and publicity, the object of you 401." the mother-in-law interposed, and said, "I the war Canton could not be reached, so that the the first Act is now obtained in another way. (Reg. agree to the 401. but it was allowed in the rent;" and risk was at an end, and the voyage having been put an v. St. Edmunds, 2 Q.B. 72; Reg. v. Suffolk, 2 Q.B. the defendant added, “If any thing has been adranced end to by a peril not insured against (citing 12 East, 85, were cited.)
Cur, adı, rult. to me, it has been allowed in the rent, as the book 283 ; Phillips on Insurance, American edition). In On a subsequent day (April 25) the Court refused will shew." Notice to produce that book bad beea the second case they were not called on.
the rule, briefly expressing their opinion that the given, and it was produced accordingly. It appeared Martin, Q. C. (with whom was Tomlinson), contrà, 17 Geo. 2 was not repealed. Rule refused. to be a book containing entries as to the reats be. contended that there was no war, in the sense which
longing to the mother-in-law, but some of them in the would have rendered it illegal for the Penang to have
Saturday, April 25.
defendant's handwriting; and it was used by the gone to Canton, and therefore the case cited was no SIR F. RoE r. TAE MARQUIS OF WESTMEATH. plaintiff to shew that there was no entry of any al 37. authority. (Hution v. Evans, 4 M. & G.) In the Obstruction of ancient lights-Misdirection. ance against the rent due from the plaintiff's brother second case it was contended, that, notwithstanding In an action for obstructing ancient lights, in which it in that book. Verdict for the plaintiff, 1451. the absence of the trans-shipment clause, the goods appeared that the building causing the obstruction Allen Serjt. (on Saturday, April 18) moved for a role had not reached the port of final destination; and was separated from the windous obstructed by a to shew cause why a nonsuit should not be entered, or that, whatever the intention of the consignees might public street in the metropolis, the learned judge left a new trial granted. First, the book, if evidence at all, have been, no actual deviation from the terms of the it to the jury to say whether there had been any sub- was evidence of an account stated, not of money leat: policy had taken place.
stantial diminution of light, obserring that whether and the plaintiff by the particulars of demand vs Lord DENMAN, C.J.-I have no doubt in either of the interrention of a public street would be a good confined to evidence of money lent. (Roberts v. Eis. these cases. In the first, I am of opinion that the ground of defence was a question of law :-Held, no worth, 2 Dowl. N.S. 456.) Secondly, the book was policy was framed exactly to meet the circumstances misdirection.
improperly received. It was not the defendant's book, which took place. There was great uncertainty as to This was an action on the case to recover damages but the mother-in-law's rent-book, and there was so the relation between England and China, and there for an obstruction of the plaintiff's ancient lights, tried proof that the defendant had any custody or control fore permission was given to go to any of the nume. | before Mr. Justice Wightman at the last sittings at of the book. rous ports mentioned. Then it expressly appears, | Westminster, when it appeared that the plaintiff and PATTESON, J.-The plaintiff proves an admissies that although it would have been inexpedient to have the wife of the defendant were possessed of houses by the defendant that he had had the money, accon. gone on to Canton, it would not have been illegal. separated at their sides by a small street called White panied with a statement that it had been allowed for in No war had been actually proclaimed. The goods Horse-street, the front of each house being in Picca- the rent ; and then be uses the book to negative the might also have been reshipped and sent elsewhere, dilly. At the rear of Lady Westmeath's house the statement as to the allowance. Cur. adr. rull. as, for instance, to Singapore. The underwriters are buildings were originally low, and she wishing to in- Lord DENMAN, C.J. now stated that they bad therefore liable. In the other case, it is equally clear crease the accommodation in her house, built some seen the learned judge, and were of opinion that there that they are not liable. The policy contained no additional rooms, which reached from thirty to forty ought to be no rule.
Rule refused. clause allowing the trans-sbipment, and the goods were feet above the street. These additional rooms had taken out of the Penang, and under circumstances the effect of darkening the rooms at the back of Sir
Vincent r. Dore. which go far to shew that the agents had made Hong. Frederick Roe's house. He therefore brought the Promissory note - Action against surety-Arrangement kong the place of final destination ; but, at any rate, present action. The learned judge told the jury that
with creditors-Delireru un of unkn it was a deviation not provided for in the insurance. whether the intervention of a street between the two Assumpsit on a promissory note, made by the de.
Judgment for plaintiff in the first case, and for the buildings amounted to a satisfactory excuse for the fendant's testator as surety for one Mary Baldry. defendant in the second.
defendant's building, was a question of law, and left Plea (amongst others), that the said Mary Baldry
to them only the question whether the light had been being in embarrassed circumstances, the said note Scott v. HARTLEY.
substantially diminished. The jury therefore found, bad been given as a collateral security for advances Covenant-Quiet possession.
on the fact of the obstruction of light, a verdict for the made to her by the plaintiff, &c. That afterwards The eviction of the sub-lessee, for rent due from the plaintiff.
an arrangement was entered into between the said lessor to the superior landlord, is a breach of the Sir F. Kelly, S.G. on Saturday, April 18, moved for Mary Baldry and her creditors, of whom the plaintiff, lessee's corenant for quiet possession, against all a rule nisi, for a nonsuit, or a new trial, on the ground Messrs. Nicholson, and Messrs. Combe and Delafield, claiming under, by, or through him.
of misdirection. This is the first case of an action were the priocipal, whereby they agreed to accept 10s. Covenant, demurrer to plea, which, however, being for obstructing lights on the opposite side of a public in the pound upon money lent, and 55. in the pound admitted to be bad, the question was the goodness of street in a great town; and it will be productive of upon goods sold; and no proceedings were to be the declaration.
great inconvenience if such actions can be main- taken on the note. The plea concluded by alleging Peacock in support of the declaration.This is co- tained. The principle of law is undoubted, that no that just before and at the time of making the agreevenant for breach of the covenant for quiet posses. man is to use his own property to the injury of his ment, an account was stated with the plaintiffs of the sion. It states the covenant to be, that the plaintiff neighbour ; but that must be qualified by the con principal and interest due on the note; and then al. should quietly have, hold, and enjoy, all and singular ficting principle, that every one may make a reason. leging payment of the composition. Upon the con. the demised premises, free from all eviction or claim able use of his own property in a convenient place; struction of that plea the learned judge (Lord Dedman, from any claiming througb, by, or under the defend. and in a crowded city it is unreasonable to complain C.J.) at the trial thought that the plaintiff was bound ant. The breach was, that the defendant did not of an erection on the opposite side of a public street. to prove that the other two creditors named in the plea suffer and permit the plaintiff to hold, &c. without But even if there is no abstract principle of law, pro- were parties to the arrangement for the delivering up any let or bindrance from, &c.; but, on the contrary, hibiting an action under these circumstances, still it the note ; but the evidence was, that that part of the that after the making of the covenant, and during is a matter of great importance to be considered by the arrangement was made with the plaintiff's agent, the demise, and whilst, &c. a distress was made in and jury; and was in this case improperly withdrawn from after the agents for the other creditors had left. Ver. upon the plaintiff's goods, then being in and upon the their consideration by the learned judge. In a recent case dict for the plaintiff, 1001. said premises, for and on behalf of a certain person, of Rich v. Baston, tried on the 6th Feb. Erle J. in Petersdorit, on Saturday, April 18, moved for a to wit, &c. for the sum of 601., in respect of rent be- summing up a similar case, told the jury,“ that the rule nisi for a new trial, on the ground of misdirecfore then due to him, as superior landlard, &c. It is law was clear, that no man had a right to use his pro- tion, and that the verdict was against evidence. The said that this is a paramount title, and not a claim perty to the injury of his neighbour; but that it was arrangement as to the note was quite immaterial to under the defendant, but this is not so. It is in re- equally clear that any man might make a reasonable the other creditors; because they accepted a compospect of a contract between the defendant and the use of his own property in a convenient place, though sition in full discharge, and were paid at the time; superior landlord. Then it is objected, that it is not it were to the detriment of his neighbour ; and tbat and the plea does not allege that the other creditors sufficiently averred that this rent was due, or how it though the value of the plaintiff's premises was were parties to that arrangement. Cur. adr. nult. was due. But this, although possibly a ground of clearly lowered, still no action could be maintained if Lord DENMAN, C.J. now said that they thought special demurrer, is good after pleading over and the injury proceeded from a reasonable use by the de. there ought to be a
Rule nisi. upon general demurrer.
fendant of his own property in a convenient place ;" Flood, contrà, cited Woodhouse v. Jenkins (9 B. referring apparently to Com. Dig. Cur. adv. vult.
April 18 and 25. 431), Ireland v. Burchell (2 B. N. C. 90), Spencer v. Lord DENMAN, C.J., now stated, that Mr. Jus.
ELLIS V. ABRAHAMS. Marriott (1 B. & C. 457), Stanley v. Hayes (2 G. tice Erle's ruling in the case referred to bad been mis. If a plaintiff declares that the defendant maliciously & D.-411), Noble v. King (1 H. Bl. 34), as to the apprehended, that that learned judge bad left the case and without probable cause preferred an indictment, first point. He also argued that the statement in in the ordinary way, and had not in any way afforded the averment is proved if one of the charges was malithe breach was insufficient, for not shewing when an authority for the present application. The rule cious and preferred without probable cause, although and how the rent was due.
must therefore be refused.
Rule refused. there was good ground for another of the charges By the Court.-It is clear that this is a breach
preferred. of the covenant for quiet possession. The superior
Hill ». HAYWOOD.
This was an action for a malicious prosecution. It landlord claims the rent through and under the con
was tried at the sittings in London after last Term, tract with his tenant, the defendant, and upon general In an action for money lent, eridence was given of an and a verdict passed for the plaintiff. The indictment demurrer the breach is certainly sufficient.
admission by the defendant that he had had the declared on charged the now plaintiff with perjury, Judgment for plaintiff. money, accompanied with a statement that it had been and contained two assignments of perjury; and at
" allowed in the rent." The rent was due from the the trial evidence was given which shewed that, as to TENNANT v. CRASTELL.
plaintiff's brother to the defendant's mother-in-law. one of the assignments of perjury, the indictment had The 17 Geo. 2, c. 3, s. 2, which imposes a penalty The plaintiff then tendered the mother-in-larc's been preferred without reasonable or probable cause.
The defendant's counsel proposed to give evidence to Crowder, Q.C. shewed cause against a rule for produced before the magistrates. It is not so shewn. shew that there had been reasonable and probable nonsuit obtained by Kinglake, Serjt. The point The case finds expressly that "the paper which purcause for preferring the indictment on the second as. was, whether an action for money had and received ported to be a certificate of chargeability appeared signment of perjury. It was, however, intimated by would lie, when, upon a settlement of accounts be- to be a copy; the signatures were copies, and the the learned judge who tried the case, that, in his opi- tween the parties, à sum had been twice allowed by place of the seal was marked with the letters L. S. nion, a verdict for the plaintiff could be supported, mistake, but no money had actually passed between How, then, is it proved to be the certificate produced ? though the jury should find that there was want of them. Wharton v. Walton (4 B. & C. 163) was dis. It is no exhibit, as it is called, for it does not authen. probable cause for one only of the assignments for tinguished, but
ticate it as a copy, but is only a copy of certain words perjury, and further evidence was not given.
The Court intimated that they felt a very strong attached to a certificate, which may or may not have Watson, Q.C. now moved for a new trial, on the opinion that the action could not be maintained, and been produced, pending the inquiry as to the settle. ground of misdirection.—The ground of action was, they deferred hearing the argument in support of the ment of these paupers. (Reg. v. Shipston-upon-Stour, that the plaintiff had preferred the indictment with rule.
6 Q. B. 119.) 2. The identity of the parties referred out reasonable or probable cause; that means the
Wednesday, April 29.
to in the certificate and those removed is in no way whole indictment. If the defendant preferred one of Reg. v. INHABITANTS OF High BICKINGTON, shewn. The mere fact that it is sent at the same the several charges included in the indictment with
Certificate of chargeability.
time is nothing (Reg. v. Shipston-upon-Stour); nor reasonable or probable cause, then the indictment The only eridence of chargeability taken before the re- is the identity of name any thing. (Reg. v. How, 11 was not in the wbole preferred without reasonable moriny justices was a certificate under 7.6-8 Vict. c. A. & E. 159; Reg. v. Stockton-upon-Tees, 2 New or probable cause. Delepert v. Toune (1 Q.B. 333) 101. A copy of this was sent with the other exami- Sess. Cas.) Then Reg. v. Tordoft (5 Q. B. 933) dis. is an authority so far as acts are concerned ; and the nalions, and at the end of the copy was written : poses of the cases cited as to intendment. So idenprinciple is well laid down in Johnstone v. Sutton (1 “ This certificate was receired in evidence by us, tuo tity must always be proved when a previous convicT. R. 547). Reed v. Taylor (4 Taun. 616) is a direct of her Majesty's justices of the peace for the county tion is brought forward against a prisoner. authority the other way; but Mansfield, C.J. put of Deron, and acting therein. Sept. 13, 1844." Lord DESMAN, C. J.-I have no doubt about it. that decision on the want of precedent for the appli- Then followed a copy of the signatures of two jus. The Sessions were quite right. Order confirmed. cation.
Cur, ado, rult. tices of the same name as the remoring justices. The Saturday, April 25.-Lord DENMAN, C. J.-The certificate referred, by name, to all the paupers re.
Reg. v. BUCHANAN. argument in supportof the application is based on a fal. mored. Held, that there was sufficient eridence that
Allorneys' and Solicitors' Act. lacy. If it be true that an indictment was not preferred the certificate was produced in the course of the in- Practising at the Quarter Sessions as an attorney with reasonable or probable cause, because, though quiry touching the selllement of the paupers, and that without being duly a milled is a misdemeanor, in. there was good ground for preferring one of the they were the paupers named therein.
dictable under 6 8 7 Vict, c. 73. Disobedience to the charges in it, there was not good ground for preferring On appeal against an order of removal from Athe- erpress prohibition of a statute is indictable as a the other, it must be equally true that there was rea- rington to High Bickington, the Sessions confirmed misdemeanor, although the offence is a new one, and sonable or probable cause for preferring it, because, the order, subject to a case. The only evidence of There is another punishment inflicted by a subsequent though there was no good ground for preferring one of chargeability produced before the removing justices section. the charges in it, there was good ground for preferring was contained in a certificate under 7 & 8 Vict. c. 101, Secus, if the prohibition and punishment are contained the other.
Rule refused. which was as follows :-“The board of guardians of in the same section.
the Barostaple Union, in the county of Devon, do This was an indictment against Mr. Buchanan, LAYTON v. HURRY.
hereby certify that on the 7th December, inst. Ann under 6 & 7 Vict. c. 73, for practising as an attorney 5 8. 6 Wm. 4, c. 59.
Ford, wife of John Ford, and Thomas, aged about at the Quarter Session at Canterbury, without being A plea justifying a trespass by conversion of seren nine years, Mary Ann, aged about seven years, Tri- duly qualified. It had been removed into this Court
horses and sale of tuo, under the provisions of 5 46 phena, aged about four years, and John, aged about by certiorari (see 5 L. T. 238), and the defendant Wm. 4, c. 59, must shew affirmatively that the sale one year, her children, became, and are now charge. having failed in an application to quash it, had de. of the two was necessary to pay the expenses in- able to the parish of Atherington, in the said union ; murred to the indictment. curred for the keep of all. A plea which omilled in testimony whereof the common seal of the said The Solicitor-General (with him Horne), in support this covenant was held bad afler verdict.
guardians is hereunto affixed, at a meeting of their of the demurrer.-- Tbis indictment is framed upon Trespass for seizing and converting scven horses, board this 13th day of September, 1814. (L.S.)--A. the 6 & 7 Vict. c. 73, s. 2, and contains no charge of and selling two of them. Plea, under the 5 & 6 Wm. S. Willett, presiding chairman of the said board. - an indictable offence. It never could have been in4, c. 59, that the seven horses were unlawfully seized, Countersigoed by J. S. Clay, clerk to the board of tended to make the acting as an attorney an indict. damage feasant upon the defendant's close, and that guardians of the Barnstaple union.” A copy of this able offence, since the deprivation of the power of rethey were duly impounded, and for the expenses in - was sent to the appellants, and to it was appended the ceiving fees, under sec. 26, and the liability to be curred io supplying them with food during the seven following uote :-" This certificate was received in punished for a contempt of Court under sec. 3), are days, the two horses were sold in narket overt after evidence by us, two of her Majesty's justices of the ample provisions against the evil intended to be put the requisite notice according to the statute had been peace for the county of Devon, and acting therein, down by the statute. Comparing this with the pregiven. There were other pleas upon which nothing the 13th of September, 1814.-J. Dene ; James vious statutes, the same inference will be drawn. now turned, as the fure optatood by Rules, Şerit. was Whyte." The other examinations were solely as to The 2 Geo. 2, c. 23, and 22 Geo. 2, c. 46, would apfor a new trial, or for judgment for the plaintiff, non the sottlement.
ply to parties acting before Courts of Quarter Ses. obstante veredicto upon this plea.
The grounds of appeal were, that the examinations sions, yet there is no single precedent of any inGunning and Couch now shewed cause. The inter. contained no sufficient evidence that the paupers, or dictment under those statutes. Applications have pretation to be put upon this statute is either that it any, or either of them, were, at the date of the appli- been made to punish for contempt, and parties is lawful to sell all beasts that are impounded for the cation for or making such order, chargeable to the have been prevented from receiving their fees, expenses of their keep, and the surplus is to be ren. parish of Atheringtoo. That it did not appear by but no indictment has been presented. If this dered to the owner, in which case the plea is good, the said examinations that any certificate of the defendant is indictable, then any person who ever for although it is not averred that the sale of the two chargeability of the said paupers, or any, or either of appears before a petty justice would be liable, for the was necessary, or that the overplus was given to the them, was produced or proved before the justices, at second section does not contain the exception which the owner, that omission does not make defendant a tres. the making of the said order of removal. The sessions 35th does as to plaintiffs and defendants. [PATTEpasser ab initio, being only an abuse of a statutory overruled the objections, and confirmed the order. son, J.--But how can a man act as an attorney for power. (Smith v. Egginton, 7 A. & E. 167; Shav. Greenwood (with wbom was Rowe), in support of himself?] The 26th section would be quite unneces. land v. Gorett, 5 B. & C. 485.). And the defendant the order of Sessions. The objection made is two- sary if fractising as an attorney is an indictable cannot be in a worse situation, because he has sold fold. 1. That the present examinations do not offence, for, according to all principles, no fees could only two instead of all. Or the statute may authorize shew that the chargeability was legally proved. 2. he recovered for acting in a way prohibited by statute. the sale of such as may in the discretion of the person That it does not appear that the certificate produced In addition to that, there is the penalty as to contempt who has impounded them be thought necessary, and if related to the paupers removed. As to the first point, of Court. (PATTESON, J.-That section does not this is done bonâ fide the defendant is justified. Here this exhibit, as it may be called, is unnecessary alto refer to practising before justices. Lord Denman, the omission of the allegation that the sale of two was gether. The statute 7 & 8 Vict. c. 101, s. 69, enacts, C. J.-And possibly not to Courts of Quarter Sesnecessary was only ground of special demurrer, and that the certificate shall be sufficient evidence of all the sions.] It certainly does apply to Quarter Sessions, the plea is, at any rate, good after verdict.
facts stated therein, and no further evidence of because it is a court of law, as has been determined as Byles, Serjt. contrà.- Whatever be the power given chargeability shall be required. Then the Poor Law to the taxation of costs. (Clarke v. Donoran, 5 T. R. , by this statute, that should have been strictly followed Amendment Act requires a copy of every examination 694; Sylvester v. Webster, 1 D. P. C. 708.) As to and pleaded ; but here the plea does not accord with to be sent, and here a copy was sent. But even as practising before justices the prohibition suffices, for any construction, and the averment that the sale of suming that an exhibit was necessary, it sufficiently the justices would not allow such persons to practise, the two was necessary is an essential averment, the appears here that the certificate was taken with re- and they could not recover their fees, and even money. omission of which the verdict does not in any way ference to and pending the inquiry into the pauper's paid could be recovered back. But the general ques
settlement. It purports to have been produced be. tion arises upon this indictment which has never been Lord DENMAN, C. J.-It is true that the statute fore the same justices who made the order, and upon judicially decided, and that is, whether an indictment gives power to sell the animals for the expense of the same day. It will be intended, therefore, that it will lie for doing something prohibited by a statute, their keep, but this must have a reasonable construc- was in the same proceeding. This intendment has / although there is a distinct penalty attached to it by tion, and a fair and proper discretion must be exer- been made as to convictions. (Rex v. Thompson, 2 another section of the statute. [PATTESON, J. recised in the sale. Then a plea justifying the sale of T. R. 18; Rex v. Bennett, 6. T. R. 75 ; Rex v. Swal. ferred to Reg. v. Price (11 A. & È. 727).] That was two for the keep of seven, must shew that it was low, 8 T. R. 284 ; Rex v. Crisp, 7 East, 389, 393) ; | an indictment under the Registration of Births' Act, reasonable and necessary to do so.
which cases are not overruled. 2. There was no ne- and no summary proceeding was given as there is The rest of the Court concurred. But,
cessity to have any one to identify the paupers as the here. No doubt the dicta of the judges are strong in Lord DENMAN, C. J. added.-We do not say that persons named in the certificate. Those to be removed favour of an indictment lying, but it is submitted that he was a trespasser ab initio, but that the sale of the are all the same name as those in the certificate, even there is no distinct authority for it, and to hold this as two horses is not justified.
to Trephina. It is solely a question for the magistrates, a general rule would tend to multiply criminal proRule absolute for new trial unless arranged.(a) How, indeed, could any proof meet this objection ? ceedings infinitely; as, for instance, all the numerous
Reg. v. Slovford (2 Q.B. 526), which may be relied prohibitions and directions contained in such Acts as LEE ». MERRETT.
upon on the other side, is clearly distinguishable. the Factory Acts, or the Merchant Seamen's Act. Money had and received.
That only decided that the grounds of appeal could not He then referred to and stated at length Castle's case Semble, an action for money had and received will not be held to refer to the examinations, merely because (Cro. Jac. 644); R. v. Harris (4 T. R. 205); R. V.
lie, where, upon a settlement of accounts between the there was one Jackman mentioned in each. He was Wright (1 Burr. 543); R.v. Gregory (5 B. & Ad. 555.) parties, there has been a mistake in the allowance of then stopped.
Each case must depend upon its own circumstances, and a sum twice over, but where no money actually passed Merivale (with whom was M. Whyte) contrà.- a mere prohibition is not sufficient to ground an indict. between the parties.
It is clear that, to support an order of removal, ment. But it must be of a public nature, and such as (a) This was necessary, as the plea being found bad atter evidence of the chargeability of the paupers is neces- reasonably may be considered an offence, and such as verdict, the plaintiff was entitled to damages in respect of sary, then the certificate is a mode of proof substi. we may suppose the legislature intended to make an the sale of the horses thus left unjustified, and only the tuted for the more usual one by witnesses. It must, offence. Here, looking at the Act itself, and that it jury wbo try the focues can assess the damages.
therefore, be shewn, that the certificate was in fact was a mere substitution for former Acts, under