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which an indictment was never heard of, and that the allowed it, and that they were the same who made that the plaintiff ought to have brought his action in object, which may be said to be the procurement the order.
covenant upon the deed. Wherever the covenant of well-qualified men to act as attorneys, is provided Greenwood (with him Merirale) in support of the upon which the plaintiff proceeds is a covenant to for by the other remedies given, and consequences order.—This indepture of apprenticeship in every re- perform any act beyond the simple payment of money arising from the statute, it is too much to say that it spect agrees with the requisites of the statute. It from the one party to the other, debt will not lie on is also an indictable offence.
recites the consent of the justices, and the date of the deed; the action must be in covenant. Here the The Attorney. General (with whom was Bodkin) the order, and then the allowance is dated the same covenant is collateral, to pay the insurance others; contrà, were not called upon.
day, and signed by two justices, bearing the same and therefore debt will not lie. (Harrison F. Met. Lord DENMAN, C.v.-The defendant is indicted name as those by whom the order was made, and theros, 10 Mee. & W. 768; Randall v. Rigby, 4 M, for acting as attorney, not being qualified, in con- purports to be by two of her Majesty's justices, and to & W. 130.) And no agreement between parties can docting an appeal at the Court of Quarter Sessions, have been allowed before the execution of the deed by vary the proper form of action. (Ker v. Osomat, which is forbidden by the 2nd section. I am clearly any of the parties. It is clear that in fact they were 9 East, 378; Marshall v. Hopkins, 9 East, 313; of opinion that the clause relates to a matter of a the same justices who made the order ; and no form Lindon v. Hooper, Cowp. 414.) public nature, and that the offence, as described, is of allowance is required by the statute. It only re. Crompton, contrà.-Debt will lie where by dead indictable. I quite agree that, if the same clause quires that the indenture be allowed by such justices; upon a particular event a sum certain is to be pard; which prohibits the doing a particular act affixes a that is, the justices who made the order of appren- and that is the case here. The annual premium is a penalty, then the only remedy is by enforcing that pe ticeship ; and it is a question of fact for the Sessions sum certaio ; for id certum est quod certum reddi nalty. It is as if the legislature said you shall not do to determine. It might as well be objected that the potest ; and the plaintiff proceeds upon the implied this upon pain of so and so. But where the prohibi deed is not good, because not signed by the overseers covenant to repay contained in the words “it sai tion is in general terms, then I think that an indict. as such. (PATTESON, J.-It cannot be necessary to be lawful for him to sue for and recover the same, ment will lie, although a separate and additional pe. aver that they are the said justices.] Yet they must &c." (Hooper v. Shepherd, 2 Strange, 1099; lasinda nalty may be added in a subsequent clause. We contend for that, for even if ihcir jurisdiction had been v. Cripps, 2 Lord Raym. 814; Com. Dig. * Debt;" cannot draw any inference from the provisions of stated, it could not have been shewn they were the A. 4.) In Randall v. Rigby, and Harrison 5. Me. other Acts, but I may observe both upon the 22 Gco. same identical justices mentioned in the indenture. thews, the covenants were collateral ; and therefore 2 and the present Act, that many unnecessary clauses Rex v. Hinckley (1 B. & Ald. 327); Rex v. Countes- debt would not lie; but in Erans v. Jones (5 Me. & are introduced; for it is obvious that no costs could thorpe (2 B. & Ad. 487), were referred to.
W. 295) it was held that debt would lie upon : be recovered for doing wbat is prohibited by statute ; Rove, contrà. --There are two fallacies in the argu- covenant by the defendant to pay a sum certies, and also the assuming to act as an attorney without ment on the other side. It is assumed that the word though the same sum was by the same deed seiere being so, is clearly a hiyh contempt of the Court. such in the Act means the same justices who make the by a mortgage. (Lord DENMAN, C.J. mestad Acting without the qualifications required by the Act order. But this is not so, for any justices having the case of Yates v. Aston, 4 Q.B. 182.] is a factitious offence, but it is necessary for the jurisdiction might sign the allowance, and it is sup- Petersdorff, in reply. In the cases cited, the on. general good that these regulations should be observed. posed not to be an act of jurisdiction. But this is nants were direct covenants between the parties to I cosider t'e true rule to be that laid down in Rex clear. [PATTESON, J.-They must sign together. the action ; but here the covenant is to pay the office; v. Wright, and, if this were not so, there would be a See R. v. Hamstall Ridware, 3 T. R. 380). That and a tender to the plaintiff of the amount of the prohibition which would have no effect. Crofton's being so, their authority to do the act must distinctly premium, or even payment of it to him, would be case may be said to be an infamous one, for it is appear as in jurats. (Reg. v. Shipston-upon-Stour, no answer to an action for the breach of the quite clear that where the punishment is inflicted by 6 Q. B. 119.) The identity of name is not sufficient, covenant. the same section that creates the offence, no indict- nor that like allowance took place upon the same day. Lord DEXMAN, C.J.-I entertain no doubt that ment will lie, unless there be also a gente al prohibition. (Reg. v. St. Anne's, Westminster, 2 New Sess. Cas.; this action is maintainable. A deed is set out, which
PATTESON, J.-It may be that there is no express Reg. v. Bloxham, i New Sess. Cas.) The question shews that the defendant ought to have paid mode; decision upon this principle; but I think that the law is open here, for the objection was, that the allowance that it was not paid; and that he had agreed tha: is as laid down in R. v. Dickenson (1 Saund. 135). by justices did not legally appear upon the face of the the plaintiff should pay it, and recover it from him a WILLIAMS and WightMAX, JJ. concurred. documents, wbich the Sessions overruled. It should money paid to his use. It seems only necessa?
Judgment for the Crown. have stated that they were acting in and for the county. to state the case to shew that debt will lie. The Solicitor-General then prayed leave for the de- (Reg v. Stockton, 2 New Sess. Cas.; 1 New Mag. WILLIAMS, J. and COLERIDGE, J. concurring, fendant to plead, stating that there were affidavits Cas.) Or at least words of reference should have
Judgment for the plainti. which would shew that the offence was committed, been inserted, so as to show they were the justices if at all, under very mitigating circumstances. whose jurisdiction is set out in the indenture.
BUSINESS OF THE WEEK. Lord DENMAN, C. J.-I think the request unrea- Lord DENMAX, C.J.-This is no doubt an act of
Thursday, April 23. sonable ; and if the facts are as stated, that may be jurisdiction, and I am very unwilling to favour any
Doe dem. DARK v. BOWDITCH.
Cur, ads, melt. BARCLAY O. KEMP.
Cur, adr. matter for us to consider in determining the punish- laxity of practice in these matters, and have some
DOBSON T. BLACKMORE.
Pars kcard. ment. Application refused. doubt whether this is a sufficient statement, but the
R. v. HURST.-The Attorney-General mored for a criable rest of the Court think otherwise.
Saturday, April 25
Cur. adr. tut. churchuardens appointed for the whole, they cease to then it would be necessary to shew the jurisdiction of
Tuesday, April 28.
Crer, ode, but be necessary parties to uppeals, and it suffices if the the justices who make it. But taken with the docu
SCADDING v. LORANT.
Cur, ade. . notice of appeal is signed by the orerseers. ments it suffices. Such must mean the same justices;
Monday, April 27. This was a case stated, which involved the old then it is stated that prior to the execution of the DOBSOX V. BLAKE MORE. - Shee, Serit. Peecock, aed question as to the signature of the church wardens indenture the allowance was signed. And the pre- Pigott were heard in support of the rule. Cur, ade.. heing necessary to the notice of appeal, where the sumption of omnia rite acta applies. The indenture
Doe dem. EGREMONT 0. COURTENAY-Crouder, Q.C. parish has been divided into townships, with separate also refers to the order of the justices who are of the (with whom was Butt, Q.C.) was heard against the rule.
ddjourned It arose upon a removal from one of the same name as those who sign the allowance, and it is
WHITE v. CoE-Dowling, Serjt. mored for a rule sisi to townships into which Wrexham is divided to another, executed upon the same day after the allowance; then reduce damages. and the facts found were nearly the same as those in it is clear that the documents shew that they had
Rule nisi, not to go into the New Trial Paper, Reg. v. Acton (6 Law T.), which was a question from jurisdiction
Written judgments were delivered in the following cases : the same parish. The Quarter Sessions had over- WILLIAMS and WIGHTMAN, JJ. concurred.
REG. v. DOUGLAS.
Rule for net trial refused.
ALPRED 7. FARLOWE. ruled the objection, subject to the present case. The
Order of Sessions confirmed.
Rule refused. Court called on
SOLOMONG LAWSON } Rules, absolute in errest of juego Whately, Q.C. and Phillimoreto distinguish the case.
Tuesday, April 28.
Wednesday, April 29. - Reg. v. Acton is different, because there the town
Pleading-Debt on a deed-Corenant.
Reg. 6. BRADFORD.--Hodges
and Fitzgerald, in support ship was partly in one county and partly in another, Debt. The declaration set out a deed which, after reciting of the order of Sessions. Pashley, contrà. and it was found there that churchwardens were in the assignment, by the defendant to the plaintiff, of a
Order of Sessions quested. some cases appointed separately. Here the church. policy of insurance, contained a corenant by the de, the order of Sessions. Hall and Ingham, coatra.
Reg. v. KEIGHLEY.-Pashley and Operend, in support of warders are stated to have been appointed for the fendant to pay to the insurance office the annual
Order confirmed. whole. Then they are church wardeos for each part.. premiums, and provided that, if he should neglect or These two cases will appear next week. [WILLIAMS, J.--No, they are churchwardens for no refuse to do so, it should be lavoful for the plaintiff The following cases were disposed of without argument, part. This was decided in Rex v. Nantwich (16 to pay them, and recorer the same in an action as the parties not appearing :
REG. V. Bond. East.)] R. v. Marsh (5 A. & E. 468) is an autho. for money paid to the defendant's use. The declara.
REG. 0. PAYNTER. rity the other way. There would be no inconve. tion then alleged the nonpayment by the defendant,
REG. 0. ST. GENNYS. nience, as suggested, in their being parties on each and the payment by the plaintiff of a certain premium, REG. v. FOSTER. side, or the majority of the parish officers might act whereby (the defendant not having repaid him) an without them.
action had accrued, 80. Held, upon demurrer, that V. Lee, contrà, referred to Rer v. North Riding (6 the declaration was good, and that it was not neces- COURT OF COMMON PLZAS. A. & E. 803 ; Rex v. Derbyshire (ib. 885); Rex v. sary for the plaintiff to sue in corenant. Warwickshire (ib. 873) ; Reg. v. Acion (6 Law T.) Debt on a deed, which recited that a policy of in.
April 21 and 22. Lord DENMAN, C. J.-Suppose this were a new surance had been effected in the Caledonian Insurance
BENTLEY v. CARVER. case; if the parish is divided, and overseers appointed Office, on the life of the defendant, for 9991. and that
Costs-Practice. separately, they are overseers for all purposes. the defendant, being indebted to the plaintiff, it had the costs incurred by a cause being made a remanet,
PATTESON, WILLIAMS, and WIGHTMAN, JJ. been agreed that he should assign the policy to the are costs in the cause, and are therefore not chargeconcurred.
Order confirmed. plaintiff ; and that he had so assigned it. The deed able upon a defendant obtaining a neto trial on the
then contained a covenant by the defendant that he payment of costs. REG. v. ASHBURTON.
would pay the annual premiums, and all sums neces. This was a town cause, originally entered for the Apprenticeship deed-- Allowance by justices. sary to keep the policy alive; and an agreement by sittings after Trinity Term, 1844. In consequence A deed of apprenticeship, under 56 Geo. 3, c. 139, which him, that if he should at any time refuse or neglect of the length of the cause list, it had been made a
in the body of it accords with the requirements of the to pay such premiums, &c. it should be lawful for the remanet, and not tried until the sittings after Mistatute is good, although the allowance does not state plaintiff to pay the same, and “to sue for and re. chaelmas Term in the same year. A verdict was then affirmatively, or by distinct words of reference, that cover the same in an action at law as for money paid found for the plaintiff, which was afterwards set the justices who siyned it were the same as those who to the use of the defendant. The declaration then aside, and a new trial granted upon payment of costs made the order, or were acting in and for the county alleged that an annual premium had become due ; that by the defendant. In taxing these costs, the Master, at the time the allowance was made.
the defendant had neglected and refused to pay; and upon the authority of Robinson v. Day (2 N. & M. On appeal, the Sessions confirmed the order, sub- that the plaintiff had paid the same ; whereby, and 670), allowed to the plaintiff the costs of the cause ject to a case, the single point in which was, whether by reason of the defendant not having repaid the being made a remanet. A rule had been obtained for the allowance by justices to an apprenticeship deed, same to the plaintiff, an action had accrued, &c. To the Master to review his taxation, against which under 56 Geo. 3, c. 139, must shew distinctly, or this declaration the defendant demurred.
cause was now shewn by by reference, the jurisdiction of the justices who Petersdorff, in support of the demurrer, contended Channell, Serjt. -The rule was settled, after con.
R. v. Cory RDA. *
siderable deliberation, in Robinson v. Day. There partners as aforesaid, to wit, &c. the said plaintiff, 1301. ; for the fifth and following years, 1501.: a pointed distinction was made between town and M. F. G. with the privity and concurrence of the and I also agree, in case of the death of either of us, country causes. In the latter it is admitted the other plaintiffs, applied to and requested the defend to return 1501." It appeared in evidence that, upon earlier decisions are to the effect that, in the case ants, who then carried on, and still continue to carry the occasion of this memorandum being signed, the of a new trial, the party to whom it is granted is not on in partnership together the trade and business of plaintiff had said to the defendant that it would suit liable for the expense of making a cause a remanet. auctioneers and appraisers, and also then retained him to receive his salary quarterly; and it was shown [TINDAL, C. J.-Why should there be any difference and employed them, the defendants, as such auc. that that had been the uniform mode of payment between them ?] In town causes, the expenses are tioneers, to put up to sale and dispose of certain pro. between the parties. At the time of action brought often incurred several times as the Court proceeds perty of and belonging to the plaintiffs, as such co the plaintiff had served for more than three, but less from sittings to sittings. The cause in the country partners as aforesaid, which they, the said defendants, than four, years. All payments due to the end of the has to be re-entered, and then a fresh notice of trial then agreed to do; and they, the said defendants, third year had been made, and the plaintiff now claimed given, and has no priority ; whereas in town it is further say, that at the said time, wben the said M. a quarter's salary. continued in the list until gradually finds its way F. G. applied to and requested them to sell and dis.. Under these circumstances Coltman, J. nonsuited to the top, and no fresh notice of trial is requisite. pose of the said property, and also at the time of the plaintiff, upon the ground that he could sustain
Wilde, Sir Thos. Serjt. in support of the rule.- selling and disposing thereof, and at the time when no action until the end of the fourth year, reserving The case of Robinson v. Day was decided without re- the debts and moneys hereinafter mentioned to have leave to move to enter a verdict for 461. A rule hay. ferring to the old decisions. In practice none of the become due from the said M. F. G. to the defendants, ing been obtained for that purpose, officers of the other courts, or even of the Queen's became and were due as hereinafter mentioned, the Byles, Serjt. now shewed cause. The plaintiff was Bench, act upon the principles of that case. Costs defendants believed that the said M. F. G. was the rightly nonsuited. The contract only provided for a upon a new trial granted, and costs of the day, stand sole and exclusive owner of the said property, and had yearly payment. It is like the case of a yearly rent upon the same footing; and in the latter the costs full power and lawful and absolute authority to sell reserved which is only payable at the end of the year. occasioned by a cause being made a remanet, are not and dispose of the same, and receive the proceeds (Bacon's Abridg. Rent F. Lutwych, 231; Spain v. included. (Waters v. Weatherby, 3 Dowl. 328; Brett thereof, as and for his own property, and for his own Arnott, 2 Stark, 256; Turner v. Robinson, 5 B. &
V. Stone, i D. & L. 140.) The proper costs to be sole use, benefit, and advantage, they, the defendants, Ad. 789). This is not like the case where a contract e allowed in both cases are those to which either party then having, and they in fact say, that they had no is rescinded by mutual consent, upon an under
has been put in preparing for trial. Where either notice or knowledge whatsoever that the said other standing that payment should be made pro rata. party in an earlier stage of proceedings has obtained plaintiffs, or any other person whatever, had any right, (Thomas v. Williams, 1 A. & E. 685). Unless, costs of the day, still the party ultimately successful title, estate, or interest whatever in the said property, therefore, this contract could be varied by parol, has the costs of the cause being made a remanet. or any part thereof, and the defendants further say, the nonsuit must stand. But this is an agree
There is no reason why a party should be in a worse that the said defendants afterwards, to wit, &c. sold ment “pot to be performed within a year," within app position as to the costs of the cause, because a verdict and disposed of the said property for certain sums of sect. 4. of the Statute of Frauds, and therefore could
has been found which the Court thinks ought not to money, being the same identical moneys in the declara- not be by parol at all. There is in it, moreover, stand, and which may perhaps be upset at the second tion above-mentioned, and for which this action is no contingency. Written agreements would be trial.' (Gibbons v. Phillips, 8 B. & C. 437; Saddler brought; and that after the said M. F. G. had so valueless if they could be varied by parol. (Goss v. V. Evans, 4 Burr. 1986.)
retained and employed them as aforesaid, and before Lord Nugent, 5 B. & Ad. 58; Marshall v. Lynn, 6. TINDAL, C. J.-If this were res nora I should be the said defendants had any notice that the said M. M. & W. 109). Neither can they be varied by the disposed to make this rule absolute, but we will speak F. G. was not the sole and exclusive owner of the conduct of the parties. The mere fact that the payto some of the judges of the other courts.
said property, or the proceeds thereof, or any part ments have been made quarterly will not affect the
Cur, adr. rult. thereof; and before the commencing of this suit, &c. question. Ridgway v. Hungerford Market Company On the following day TINDAL, C. J. said :-We the said M. F. G. was indebted to the defendant, &c. (5 A. & E. 171) has no bearing upon this case. have mentioned this case to some others of the judges. shewing a set-off in the usual form.
Talfourd, Serjt. in support of the rule.-The writThey agree with us that Robinson v. Day was decided To this plea there was a replication, which was ten contract only defines the rate, not the time or upon some misapprehension, and must be over-ruled. specially demurred to. The argument, however, was mode of payment. The year is only mentioned to In cases of this kind no costs are to be allowed but confined to the validity of the plea.
facilitate the calculation. In the absence of an excosts of the day; the rest are to be costs in the cause. Byles, Serjt. (with him Willes) for the defendants. press contract, services done entitle the plaintiff to
Rule absolute. - The plea is good upon general demurrer. The ef- payment. There is no analogy between this case and WHITE 1. JAMES HANCOCK.
fect of it is, that the defendants knew no one in the that of rent. The latter is an entire matter, very difDebt may be maintained upon an obligation for a sum transaction but M. F. G. In ordinary cases, it is ferent from personal service. This is more like the to be paid to A or his attorney, or to B.
true, that there is no set-off of a debt due from one case of use and occupation, with the debt aceruing Where a declaration upon such an obligation described member of a firm against a debt due to the whole de die in diem. [CRESSWELL, J.--If there were no
it as for a sum to be paid to A: Held, that if this firm. But these partners are in the nature of undis. evidence but the written contract, would the plaintiff were a variance, it was cured by selling out a bond closed principals. They allow M. F. G. to be the after a day's service, be entitled to require pay,
sole and exclusive owner of the goods ; he has pos. for that day?] I think he might. Then it is not Debt on a bond in the common form
session of them, and deals with them as his own, consistent with this case that there was a substituted The defendant set out the bond on oyer, "know all exactly as a factor might do. [TINDAL, C. J.-It agreement for quarterly payments. That would bring men, &c. that we, James Hancock and John Han- does not appear clearly that M. F. G. had posses. it to the case of Riilguay v. Hungerford Market. cock, as sureties for J. B. are severally held and sion.] (Carr v. Hinchliff, 4 B. & C. 547) At all That supposition is helped by the evidence that the firmly bound in 1001. each to J. White, to be paid to events the other partners lie by. The defendants had payments were always made quarterly. But even J. White or his certain attorney, executors, &c. or to do notice. All is said to be done with the privity and without this, it may be argued that the time of paythe treasurer of the
Company for the time concurrence of the co-partners. It is a well-esta- ment is left entirely open and unsettled. [Cressbeing, &c." It then set forth the condition, which blished rule of law, that partners who do not appear, WELL, J.-Then you come to this. If the time of was for the faithful performance of his office by J. B. and undisclosed principals are to be placed upon the payment is material, there is a material term of the to the company.
The defendant then demurred, as- same footing. (Sims v. Bond, 5 B. & Ad. 393; Stacey contract pot provided for, and as the contract extends signing for causes that the action of debt was not v. Ross, 1 Esp. 470.) All that the plea need aver is, over five years, the Statute of Frauds puts you out of maintainable on this bond, that the declaration did that the other partners did not appear to the defend. Court]. not set forth the legal effect of the bond, that it didants. The fact that the defendants knew of the part. TINDAL, C.J.-It appears to me that this connot shew that the money was not paid to the trea. | nership at the time of the employment should come tract binds the parties for five years, and is therefore surer, &c.
from the other side. (George v. Clagett, 7 T. R. within the Statute of Frauds. It is an agreement Byles, Serjt. in support of the demurrer.—The ac- 359 ; Rabone v. Williams, 7 T. R. 360, note a.) For- that cannot be performed within a year. The work tion of debt will not lie, unless there is a simple duty merly this defence might be set up under the general and labour was done either under this contract or to pay some one person. (Viner's Abridgt. Debt D. issue. Now, it will suffice on general demurrer, if under none. Then this contract must have the same Pl. 3; Wentworth's office of Executor, 123; Harri- | the plea state, in substance, that whep M. F. G. em. construction as a lease, reserving a yearly rent, and son v. Matthews, 10 M. & W. 768.). [TINDAL, C.v. ployed the defendants, he employed them as the true the salary must be regarded as a yearly salary, pay- That was a covenant that the defendant or some and sole owner.
able at the end of every year, and at no other time. one else would pay. In this case the defendant is to TINDAL, C. J.-No, that will not do, unless it Were we to interpose any other terms we should viopay at all events. The same objection might be made shews some concurrence on the part of the other late the statute. But the plaintiff wishes it to be in. to every bond, as the form always is to pay A B, or partners. Here there is no allegation, nothing what- ferred, from the conduct of the parties, that quarterly his attorney. Here a particular attorney, viz. the ever to shew any default by the other partners. This payment was contemplated. The actions, however, treasurer of the company, pointed out.] Then is a mere plea of set-off against one partner.
of the parties cannot carry it further than parol evi. there is a variance. The bond now appears not to Channell, Serjt. (with him Borill), for the plaintiffs, dence would. Both are alike inadmissible, to alter or be in the terms set forth in the declaration.
were not called upon. Judgment for the plaintiffs. vary a written contract. That is clear from Goss v. CRESSWELL, J.-You have corrected that by set.
Nugent. The case of Ridgway v. Hungerford Market ting out the bond for the plaintiff. His declaration
Thursday, April 23.
Company was quite different. There the nonsuit was shows a good cause of action, and you cannot now
GERAUD ¥. RICHMOND.
directed upon a different point, and there was no decidemur. Tindal, C.J. referred to Anon. (3 Salk. 119;
Yearly salary-Statute of Frauds.
sion upon any point like the present. Dyer, 350, a.); you are out of Court upon this ob- 1. An agreement to receive a person as clerk, and to COLTMAN, CRESSWELL, and ERLE, JJ. con. jection. Judgment for the plaintiff. pay him a salary at rates rarying each year until curred.
Saturday, April 25.
2. Under an agreement whereby A undertakes to pay TOMLINSON, CLERK, v. BOUGHEY AND OTHERS.
Practice-Costs. Where, in an action by partners, the defendant recoverable as a rateable proportion for part of a In carrying out 6 4 7 Wm. 4, c. 71, s. 46, the Court seeks to set up the defence that the partnership year.
will follow the general rule of giving costs to the sucu as a secret one, and that he dealt with one of the Assumpsit for wages or salary for services done and cessful party, or against the party making default, partners, relying upon a set-off between himself and performed by the plaintiff, &c.
unless there be some special circumstances to justify a that partner, he must shew distinctly by his plea, Plea, non assumpsit.
departure from that general rule. that the other partners concurred in something which At the trial it appeared that the action was brought This was a feigned issue under the Tithe Commuinduced him to suppose that he was dealing with a to recover wages for services performed by the plain- tation Act, 6 & 7 Wm. 4, c. 71, in which Talfourd, person who had no partners.
tiff. On the 2nd of May, 1842, the plaintiff entered Serjt., had obtained a rule for judgment, as in case Assumpsit for money received to the use of the into the service of the defendant upon the following of a nonsuit. The plaintiff' was rector of Stoke-uponplaintiff, and upon an account stated.
memorandum being signed by the defendant: “1 Trent, in Staffordshire; the defendants, owners of Plea, that before the said money was had or re- agree to receive you as clerk or book-keeper in my lands within the parish. Proceedings being taken ceived, and before the stating of the account, &c. to establishment, in consideration of your paying me a before an assistant tithe-commissioner, under the stawit, &c, the plaintiffs carried on their trade and premium of 3001. and to pay you a salary at the fol. tute, the defendant set up fourteen several moduses. basiness in partnership as copartners, and thereupon lowing rates, viz.: for the first year, 701.; for the Of these ten were found in their favour. The rector while the plaintiffs continued to be and were such second, 901. ; for the third, 1101. ; for the fourth, commenced his action in order to try bis right, pur
suant to section 46. The defendants having refused signed by a serjeant in his behalf within a week, the an agreement, and the case where it is to be used as a to accept the issue, the matter came before the Court postea should be delivered to the plaintiff.
procuration] in Easter Term 1845, and the Court decided that upon
This action was tried before Tindal, C. J. in August Dowling, Serjt. in support of the rule. - This iostre all the moduses found for the landowners, except two, 1845 ; a verdict was found for the plaintiff, subject to ment is either an agreement, or a power of attoracy, the decision of the commissioner was final. *(Tomo a special case, to be settled by a person named in the If merely an agreement, then the plaintiff most fail linson v. Boughey, 1 C.B. 663.) Issue was joined as order, at Nisi Prius, and therein called an arbitrator. upon the issue as to the indorsement. In most cases, to these two in Trinity Term 1845. The plaintiff The order provided that "the costs of the cause and if a party chooses to rely upon ao implied agency, that then made a fruitless attempt to change the venue. of the reference should abide the event of the said may be established by matter in paix ; but, if the No further steps having been taken, the present rule award,!' but it gave the arbitrator no power finally to agency is sought to be proved by an iostrument in had been obtained, against which
determine the cause. The special case bad been ac- writing, it can only be by power of attorney. In the Channell, Serjt. shewed cause.
cordingly settled and signed by a serjeant, on behalf latter case, it must be stamped according to the It is doubtful whether this is the proper form of of the plaintiff. The defendant had been requested, statute. The latter part of this document is a brez procedure to obtain the costs, which, by sec. 46 of but had refused, to procure the signature of a ser agreement by Harrison to do what the law roda the statute, are left in the discretion of the Court in jeant on his own behalf.
compel him to do, and may be rejected as surplasage. which proceedings are taken. The cases of Wick v. Channell, Serjt. after referring to Mostyn v. | Rejecting it, the remainder is a simple pora of Colton, 1 D. & L. 227, and Sandys v. Beverley, 12 Champneys (1 Scott, 57) and Jackson v. Hall (8Taunt. attorney, in no very extraordinary form.
Case F. M. & W. 568, are contradictory. It is agreed, how. 421), upon the suggestion of the Court, took a rule Barnard is merely a nisi prius decision, come to at a ever, that no objection shall be taken to the form of ordering that unless the defendant caused the case to time when the stamp laws were not well understood. the rule. All the more important matters of dispute be signed by a serjeant in his behalf within a week, In that case, and in the Monmouthshire Canal Cor. between the parties have been already decided in fa- the postea should be delivered to the plaintiff. panyv. Kendal, the evidence disclosed matters ratbero vour of the defendants, without costs. Tomlinson v.
Rule accordingly. agency than of attorney. Here, Herbert is entroid Boughey, 1 C.B. 672. It now appears, by his affida
Monday, April 27.
with discretionary power, and the discretia se vit, that he has declined to proceed, upon the ground
WALKER V. REMMETT.
allowed bim tends to make him the attorney of Ha. that the prospect of a verdict is insufficient to war.
Letter of attorney-stamp.
rison. Reg. v. Kelt (12 A. & E. 559) was a case rant the expense of a trial.
A document in the following form : “I do hereby much considered by the Court, and is in favou Talfourd, Serjt. in support of the rule.—There is authorise you to indorse, or cause to be indorsed, my the defendant. (He referred also to 7 & 8 Vict. c. 21 nothing to take this case out of the general rule, name to three sereral bills of exchange, now in your s. 1, and sched.) that the defendant should have his costs where the possession (describing them), which said indorsement TINDAL, C. J.-It appears to me that this instruplaintiff declines to proceed. It is of no consequence I do hereby undertake shall be binding upon me, is ment falls within the words of the Stamp Act, wä. to inquire wbat were the plaintiff's motives for fol- a leller of attorney within the meaning of 55 Geo. after describing certain special letters of attorney, lowing his present course. The defendants have 3, c. 184, sched. part 1, and must be stamped accord- adds, “ A letter or power of attorney of any ouiz been put to expense in preparing for their defence, ingly.
kind." Under that sweeping description, I canadt and are entitled to be reimbursed.
Assumpsit—Indorsee against Acceptor of a bill of ex- help including any delegation in writing to another te TINDAL, C.J.“ Under 6 & 7 Wm. 4, c. 71, s. 46, change, drawn by Harrison to his own order, and perform an act in one's own name. That is the a we may vary from the usual rule if we please. But indorsed to the plaintiff. Plea : that Harrison did pointment of an attorney. In Comya's Dig. it is said, I think, in this case, there is no sufficient reason for not indorse. It appeared that the bill being in the “An attorney is he who is appointed to do anything departing from that rule. The form, however, of the hands of one Herbert, Harrison wrote to him the fol- in the place of another. And he has a general autho rule, now made absolute, had better be that of an lowing letter :-"I do bereby authorise you to in rity, or a special one, for some particular purpose : as order under the statute that the defendants should dorse, or cause to be indorsed, my name to three to make livery; to deliver a deed, &c.;" and from Core have their costs.
Rule accordingly. several bills of exchange, now in your possession Littleton, 52 a, it appears, that he may be appointed
(describing them, and one of them being the bill upon either by simple letter, or by deed. Then, in this case, Smith r. Unett.
which the action was brought), which said indorsement he was appointed by letter. But it is said on the RUMBALL r. UNETT.
I do hereby undertake shall be binding upon me; and other side, that this is an agreement only, and there. Practice-Waiver.
I do further undertake to pay you the amount of the fore the stamp of a power of attorney is uonecessary. The defendant, an attorney, being serred with process several bills as they shall become due, if they shall not To this it may be answered tba! there is no agreement,
out of the county for which the urit was taken out, be duly honoured wben mature." At the trial if ap- but what the law would imply from the circumstanca. thanked the party serring him for certain acts of peared that the bill had been indorsed by Herbert in Besides, as an agreement it would be bad, for do courtesy in the mode of serrice, and promised to Harrison's name, and this document, stamped with consideration appears in it. All is to be done on one attend to the writ. Held, a waiver of the irre- an agreement stamp, was offered in evidence to prove side. We have no authority to take this case oat of gularity.
that Herbert acted with Harrison's authority. It was the operation of the Stamp Laws. In these cases the writs described the defendant of objected that tbis was a letter of attorney, and required COLTMAN, J.-This case must be governed by hea. a certain place in Staffordshire, at which he resided. to be stamped as such, and that therefore being v. Kelt. In that case, the Court seems to reis a He had, however, an office in Birmingham, more merely stamped with an agreement stamp it was in- little upon the discretion entrusted.
I must say than a mile from the boundary of the county of admissible. The evidence was, however, received, and do not see here that any diceretion is giren; bat it is Stafford, at which he was in the habit of attending a verdict found for the plaintiff. In last Torin a rulo by no means necessary to constitute one man attore daily. On April 1st, a clerk to the plaintiff's attor- had been obtained for a new trial, upon the ground of ney for another; that discretion should be allowed him. ney called upon him at his office, and was admitted the improper reception of evidence, against which, In the case of a letter of feoffmnent, the attorney is to to see him in his private room. It appeared that the Byles, Serjt. Dow shewed cause. - This docu. make livery, and has no discretion whatever. plaintiff's attorney and the defendant were on terms ment is not within the meaning of 55 Geo. 3, CRESSWELL, J.-I am of the same opinion. I of intimacy, and that upon the occasion referred to c. 184, sched. part 1. There three different special quite agree with the principle upon which it is said the clerk of the plaintiff's attorney, after expressing kinds of letters of attorney are mentioned : the first, that the Stamp Laws are to be construed, and if I his regret at the unpleasant nature of his errand, as to the receipt of prize money; the second, as to thought this case doubtful I should hesitate to bring and his desire that tbe matter might be transacted as wages; the third, as to the sale of stock, &c. Then it within them. But it seems to me to fall directly quietly as possible, served the defendant with copies fellows “letter or power of attorney of any other kind, within the words of the Act. It is certainly ao part of the writs. The defendant said that he was much or commission or factory in the nature thereof." The of the definition of an attorney, that he should have a obliged for the consideration shewn him in the mode latter part of this description belongs to the laws of discretion to exercise. of service, and that he would attend to it. On April Scotland, and factory, in Scotch law, is “one species ERLE, J.-I concur with the rest of the Court so 7th, a summons was taken out to shew cause, before of mandale or agency where the agent is paid far as to say that a written authority to indorse a bill Cresswell, J. at Chambers, why the service of the for his trouble." (Bell's Principles of the Law of exchange is within the provisions of the Act. I writs should not be set aside for irregularity. Cress- of Scotland, sec. 80.) The letter of attorney here only wish to guarl against this decision being thought well, J. discharged the summons, with costs, upon intended is, therefore, something analogous to factory, to extend the provisions of the statute further than the ground that the application should bave been the former part of the description belongiog to Eng- we intend. It appears to me that the judgment must made within four days. On the first day of the lish, the latter to Scotch law. That shews that some be confined to the case of authorizing oas's bane to present Term Byles, Serjt. had obtained a rule for kind of formal instrument is intended. The Courts be put on a bill of exchange. Tescinding the order of Cresswell, J. and for setting will put a liberal interpretation upon any Acts of Par
Rule absolute for a new trial aside the service of the writs.
liament imposing duties, so as not to make any inTalfourd, Serjt. now shewed cause. The circum. struments liable to them, unless manifestly within the
Tuesday, April 28. stances amount to a waiver of an irregularity that may intention of the legislature. Warrington v. Furbor LUARD and OTHERS P. BUTCHER and OTHERS. have been committed, and the defendant, having ac- (8 East, 242), per Lord Ellenborough ; Tomkins v. A feigned issue in the form employed prerious to the cepted the service, cannot now set it aside. As an at. Ashby (6 B. & C. 541), per Lord Tenterden. There passing of 8 & 9 Vict. c. 109, is not * a suit fer re. torney, he must have known at the time of service are ouly two cases directly in point. Case v. Barnard corering any sum of money alleged to be UoR spor that he had the power of objecting, if he thought fit. (8th Jan. 1827, G. H.), reported in the notes to any wager," within the meaning of 8 & 9 l'ist, ca
Byles, Serjt. - The observation of the defendant, “I “ Chitty on Stamps," 186. There it is said, “ A paper 109, s. 18. will attend to it," only meant, “I will defend myself authorizing A to sell certain property, and thereout 8 & 9 Vict. c. 109, s. 19, is an enabling, not a compul. as well as I can." There is nothing to shew that at pay rent and expenses, and his own commission, sory enactment, and therefore feigned issues may the time of service the defendant was aware of the designed by B, does not require a stamp." Monmouth- still be stated in the form of wagers between the fect. He might not know exactly where the boundary shire Canal Company v. Kendal (4 B. & A. 458) plaintiff and the defendant. of the county was, and whether the room in which he raised a similar point without deciding it. Reg. v. This was a feigned issue, in the usual form of a was sitting was within 200 yards of the borders or Kelt (12 A. & E. 559) was a much stronger case than wager of 51. between the plaintiffs and the defendants. not.
this. This is not a letter of attorney, according to It was tried before Maule, J. at the first sittings in By the Court. It is impossible, under the cir- the ordinary use of language. In such ordinary use London, in the present Term, and a verdict found for cumstances, to think that the defendant did not know a formal instrument is always contemplated. If this the plaintiff, damages Is. the boundary over which he must have passed every be decided to be a letter of attorney, there is no em- Kinglake, Serjt. applied for a rule to shew cause day on his way to his office. Whether he did or not ployment of one person by another, down to the case why there should not be a new trial, upon the ground is not very material, as he took the writ for better or of a lady authorizing her servant to buy a skein of of misdirection, or why the judgment should not be worse, and was very grateful for the courtesy exbi. silk, which will not, if in writing, require to be arrested. The misdirection was alleged to consist in bited in the mode of serving it. There was a plain ac- stamped. Suppose the letter had been, "I'll bear you telling the jury that there was sufficient evidence to ceptance of the service.
harmless, if you indorse the bills," and he had then warrant a verdict for the plaintiff, and the Court Rule discharged, uilh costs. failed to indemnify the person to whom such letter was having heard what the evidence was, refused a rule
sent, would there be no remedy against him, unless upon this point. Doe dem. Phillips v. Rollins.
the letter were stamped as a power of attorney? Or if Upon the second point, Kinglake, Serjt, submitted, Where a verdict was found for the plaintiff, subject to a A writes to his attorney, “You may sell my estate for tvat, by the recent Act, the declaration was bad in
special case, to be settled by an arbitrator, and the so much," and there is an action for breach of con- arrest of judgment. By 8 & 9 Vict. c. 109, s. 18, arbitrator haring settled the case, the defendant re. tract, would that require more than an agreement “ All contracts or agreements, whether by parol or in fused to obtain the signature of a serjeant, the Court stamp? [TINDAL, C.J.-Is there not a difference be- writing, by way of gaming or wagering, shall be pull ordered that, unless the defendant caused the case to be tween the case where the instrument is to be used as and void ; and no suit shall be brought or maintained
in my court of law or equity for recovering any sum that he is a free suitor as well as steward. The made for the regularity of the proceedings. As to the of money or valuable thing alleged to be won upon same state of things must be presumed to continue last point, that all the names of the suitors are not any wager." [CRESSWELL, J.-There is no real unless there is an allegation to the contrary, and then specified, no authority has been cited to shew that contract here.] [TINDAL,
C. J.-It is not a wager why should he lose the privilege of a free suitor, you must set out all the names. You must shew the in the sense of the Act. The Act relates to a real merely because he is also steward?) It is stated Dames of two freeholders, because there can be no wager. Here, everything is based upon fiction.] that he is a free suitor at the commencement of the court unless there are two. There is a case, too, ia
Then sec. 19, together with the 2nd schedule, pro proceedings in 1843, there is no subsequent allega. Willes' Reports that tliey must be two old freeholdvides a new form in which questions of this sort are tion to the same effect, and judgment is not until the ers, and that it is not sufficient to make a new one. to be tried. The marginal comment on that section end of 1844. There is no inference in favour of Why we should encourage prolixity, and perhaps misis « Proceedings under feigned issues abolished," and these proceedings, because it is not a court of takes, by requiring any thing so inconvenient as the the section itself, after reciting that “many im. record. The capacity in which he is everywhere names of all the suitors, without autbority, I cannot portant questions are now tried in the form of feigned said to be present is as steward. There is no dis. sec. issues, by stating that a wager was laid between two tioction as to this point between the county court CRESSWELL, J.-With regard to the third objec. parties," and "that such questions may be as satis- and the court-baron. In both the judges are the tion, it is not usual in these inferior courts to set out factorily tried without such form," enacts, “That in suitors only. (4 lost. 268 ; Brooke's Abr. " Court the nature of the claim in the plaint. If it were neevery case where any court of law or equity may desire Baron," pl. 11 ; Ibid. “Judgment,” pl. 118 ; Jones cessary, the omission would only be an irregularity, to have any question of fact decided by a jury, it shall v. Jones, 5 M. & W. 523; Holroyd' v. Breare, 2 B. & which the defendant cures by appearance and plead. be lawful for such Court to direct a writ of summons A. 473 ; Kingsley v. Nassau, M. & M. 52.) Thirdly, ing. to be sued out, by such person or persons as such the plaint is merely levied against the defendant in a
The rest of the Court concurring, Court shall think ought to be plaintiff or plaintiffs plea of 393. 11d. That does not shew what the cha. Judgment for the defendant in error (the plaintiff against such person or persons as such Court shall racter of the plaint or the form of action was. below). think ought to be defendant or defendants therein, in Fourthly, the names of all the free suitors present the form set forth in schedule 2, and thereupon all ought to be stated. The judgment may have been
BUSINESS OF THE WEEK. the proceedings shall go on and be brought to a close given by some of those whose names do not appear.
Thursday, April 23. in the same manner as is now practised in proceedings (Levis v. Weeks, Carth. 85, 7 Dowl. 844 ; Rex v. leave reserved, to enter a nonsuit or for new trial, upon the
BOWLBY V. Bell.-Channell, Serjt. moved, pursuant to under a feigned issue.” The fair inference is, that Mein, 4 T.R. 480.)
ground that the verdict was against evidence. even in feigned issues a wager is void, and that it is Channell, Serjt. for the defendant in error, the
Rule to shew cause. for that reason a new form is substituted, which form plaintiff below.-Jones v. Jones bas no application : EVERETT 9. SMALLPIECE.-Channell, Serjt. moved for all parties are bound to employ. [Tindal, C.J.- there the declaration was held bad on special demur. leave to plead puis darrein continuance, and that the affidavit The 19th section only says, that the Court may order rer, for not describing the county court according that the matter of the plea arose within
eight days might be it to be in that form; it does not say, that you must to the old precedents. Lord Coke (4 Inst. 55) de disposed with pecited Reg, Gen. H.T.AWm. 4; Chitty's employ that form and no other.]. (CRESSWELL, J. scribes the county court “as the court of the sheriff Hill (11 M. &'W. 470.)
Rule to shew cause. - The plaintiff makes up a completē issue, and de- held at B;' but at page 57 be describes the court.
Friday, April 24. livers it to the defendant. The defendant returns it baron as held “ before the steward and suitors."
BEARD v. EGERTON AND OTHERS.-Wild, Sir Thos. Serjt. with his consent; they both agree to try a particular The expression in the judgment, it is considered by with him Webster and Ogle) in support of the demurrers. question in a form based upon a fiction.j. Tindal, the Court,"' means the Court'above described : if Channell, Serjt. (with him Groves and J. Brown) contrà.
Cur, adv. vult. C.J.-You assent to it upon the chance of succeeding, that description be, as it is, correct, the question is HARRIS 0. ROBINSON.-No cause being shewn against and when you fail you come here and object.]
at an end. By 4 Inst. 56, it appears that in the the rule obtained by C. Jones, Serjt. Rule absolute. Rule refused. court of the hundred, the suitors are the judges in
COOPER v. SHEPHERD.-Dowling, Serjt. in support of the
ROBINSON v. WHITE.--Talfourd, Serjt. moved for a rule 1. To entitle the steward of a court baron to preside hundred court as being held “ coram seneschallo et ordering - an attorney of the court, to pay the costs
over its proceedings, it need not appear that he is sectatoribus," it was objected that it should have been occasioned by his acting for an assumed client without also stevard of the manor.
coram seneschallo per sectatores," the description authority, and the costs of this application. Rule nisi. 2. A court-baron is properly described, as being held was held good. Holroyd v. Breare decided that the
Saturday, April 25. " before A. B. esq. the sterrard of the said court, steward was not a mere ministerial officer, but a con- RICKETTS AND OTHERS 0. ARSCOTT AND OTHERS.and C. D., E. F. and others, suitors of the said stituent and essential part of the Court. With regard Channell, Serjt. . moved for a
rule to sign judgment court."
to the last point, only a sufficient number of suitors against certain of the defendants, who had been served with 3. After pleading and judgment in an inferior court, to give the Court jurisdiction need be named. This notice to appear to a sci. fu. in this case, and had not ap
Rule nisi. it cannot be objected, that the plaint by which pro principle is adopted in the description employed for
Monday, April 27. ceedings were commenced did not disclose the form of Courts of Quarter Sessions. R. v. Main is a very Hunter v. CLARKE.- Dowling, Serjt. (with him Bram. action.
different case. That was a quo warranto, and the de. well), shewed cause against the rule obtained to enter a 4. It is unnecessary that the names of more than two of fendant rested his case upon the validity of a parti. nonsuit, or to reduce the damages. The question turned
upon the admissibility of a certain agreement, but as it apthe suitors should appear upon the judgment or other cular election. The title which he set up failed him.
pcared that the objection had not been taken at the trial, the proceedings of a court-baron.
Kinglake, Serjt. in reply.
rulc was discharged as to the first point. As to the second, This was a writ of false judgment, upon the judg. TINDAU, C.J.--It appears to me that the judgment it was consenied that the damages should be reduced.-C. ment of the court haron, of R. Mattocks, esq. lord of of the inferior Court ought to be affirmed. Four ob-Jones, Serjt. in support of the rule. Rule discharged. the manor of Taunton Dean, in the county of Somerset. jections have been taken to the regularity of the pro. BENNETT v. DURLAND.-Wilkins, Serjt. moved for a rule The roll of proceelings described the court as a court. ceedings. First, that the steward of the court does tion, and why an order of Coltman, J. for allowing the de.
to shew cause why the Master should not review his taxa. baron holden at Castle Hall, in and for the said ma- not appear to be also steward of the manor; and that fendant all costs incurred subsequent to a summons to stay nor, according to the custom of the said court and he is not competent to be present, unless he is also proceedings, should not be rescinded. Rule refused. manor from time immemorial, before William King- steward of the manor. But there is nothing in the Doe dem. - V. Roe. - Channel!, Serjt. moved for lake, esq. the steward of the said court, a free suitor style of the court to shew that it is necessary that judgment against the casual ejector. The notice to appear thereof, and William Upham and William Eardley the steward of the court need be steward of
was served on the 22nd of March. Mulford, and others, free suitors of the said court. the
In Comyn's Digest, “Copyhold " April 22nd, but required the party served to appear next
It was subinitted that this might be regarded as an It then set out, that on the 28th day of November, (R. 5), referring to Co. Lit. 61, b, it is said, impos date, and that the case was similar to Doe dem. A.D. 1843, came James Gill, and levied his plaint · A steward may be retained by deed, or by Woodroop v. Roe (5 Scott N. R.800), and Doe dem. Sanders against John Brown, in a plea of 393. 11d. and a parol, and a retainer by parol may be for a court. . Roe, (12 M. & W. 556.)
Rule absolute. particular day was given for the appearance of both (leet as well as for a court-baron. A retainer by parol
Tuesday, April 28. parties. On the appointed day, the proceedings continues till it be discharged." That does not speak Doe dem. ATKINSON v. FAWCETT.-Sir T. Wilde, Serjt. shewed the appearance of both parties by their attor of the steward of the manor, but of the court.
We concluded his argument against the rule. Channell, Serjt. neys, and a declaration by J. G. against J. B. in an know in practice, that stewards of 'the courts are
in support of it.
Cur. adr. vult.
Wednesday, April 29. action of debt. Then followed an imparlance. A often appointed by particular deputation. The second long series of proceedings were then set out, always objection, and that upon which most reliance is Cooper 4. SHEPHERD.-Argument concluded. alleged to be before W. K. esq. steward, and w. placed, is, that it appears upon the face of the pro
Cur. adv. rult. 0., W. Ë. M., and others, free suitors. The judg. ceedings that the court was held before, improper and Kinglake, Serjt. for the plaintiff.
PRYCE v. BELCHER.- Talsourd, Serjt. for the defendant; ment was in the following form : “At which next judges, and that being so, the Court would be with court held in and for the manor aforesaid, and within out jurisdiction. If the style employed be the wrong
Argument adjourned. the jurisdiction aforesaid, on the 9th day of October, style, then the whole proceedings are irregular. It Doe dem. Dorey v. Ros.-Channell, Serjt. moved for a A.D. 1844, before Wm. Kinglake, esq. steward, and will not, however, be necessary to consider who are rule to show cause why service of the declaration and notice Wm. Upham, Wm. Eardley Mulford, and others, free really the judges of the court, since the description in ejectment upon the premises should not be good service. suitors of the said court, came, as well, &c.” Then of the court agrees with the usual style. Mr. King- He produced aflidavits, shewing several truitless attempts to came a description of the jury, the verdict for the lake does not necessarily put himself in the position serve the tenant in possession. plaintiff, &c.-"and hereupon all and singular the of a judge. He has a known definite duty to perform, premises being, &c. it is considered by the said Court, namely, to collect the suffrages of the suitors ; &c." on the other hand, the suitors have their de
COURT OF EXCHEQUER. Kinglake, Serjt. for the plaintiff in error, the definite duty, namely, to judge. Jones v. Jones, and fendant below. First, if right to insert the name of the other cases relate to county courts. But there
HARRISON v. Roscoe. the steward at all, it should be as steward of the is a difference between the style of the two courts, so In an action of assumpsil on a bill of exchange brought manor only, not as steward of the court. The that what might be law in one case would not be in the by a second indorsee against the drawer, the notice steward of the court may not even be a free suitor, other. The style of the county court is “ Essex to of dishonour prored was a notice by the plaintiff's and may have no right to be present. Secondly, the wit. The first county court of A B, &c. held at C." attorney (by the authority of the plaintiff), but who, steward of a court-baron, even though he may be a It might be usurpation to say that it was held before by mistake, gave the notice in the name of the first constituent member, is not a judge of the court. the sheriff; but in describing the court-baron you
indorsee, and not in the name of the plaintiff: Held, The judges are the free suitors. Here it is stated must say that it was held “hefore the steward and that this misrepresentation of the name did not make that the court was held before the steward and free the suitors." In the Year Book, 21 H. 6, p. 34, it the notice of dishonour void, for as the first indorsee suitors, and then follows an ideo consideratum. That seems to have been thought well to describe the might hare recovered on this notice, the defendant shews that it was the judgment of the steward and county court as held before the sheriff. As to the had every defence as against the plaintiff as he would free suitors. This court-baron is the court of the third 'objection, that the plaint does not specify the have had against the first indorsee. freeholders, and is incident to every manor : in it the form of action, that goes only to a matter of irregu. This was an action of assumpsit by indorsee against free suitors are the judges, and it is quite distinct larity, and the time is gone by for taking the objec. the drawer of a bill of exchange. The bill was dated from the customary court baron, which is the court tion. It has been said, indeed, that po intendment December 21, 1844, payable four months after date, of the copyholders, and in which the steward only is is to be made in favour of the proceediogs, because and was iodorsed by the defendant to one Vaughan, judge. The power of the court-baron is much more the court-baron is not a court of record; but in all and by him to the plaintiff ; the plea was no notice of extensive than that of the latter. [TINDAL, C.J.-inferior courts, when the matter is within the juris. non-payment. The case was tried before Mr. Wellsby, It is stated at the commencement of the proceedings diction of the Court, every intendment ought to be the Recorder of Chester, when it appeared that the bili
Rule to shew cause.
became due on the 24th of April, when it was dis. whose request it was given, nor who was the owner had been a prior mortgage for years of the market, bonoured; notice was given to the defendant of the dis of the bill.” It remains, therefore, to consider what and therefore that Parr could not have the writ. honour in the following form ;-—"Sir, I am requested by is the effect of not giving a true description of the This, it was contended, was not so ; for if they were Mr. Vaughan, of this city, to apply to you for payment of party in whose bebalf he gave this notice. This point sufficiently in possession to execute a lease, the rests the amount due on you and your brother, D. Roscoe's has not been decided; but in Chapman v. Keane (the could be taken in execution here they had a disposing dishonoured bill to him, and as Mr. Vaughan is very only case that bears upon it) it will appear the plain power over them. pressing for the amount, I trust you will immediately tiff's clerk was authorised, by the nature of his em- Rolfe, B.-If this was a mortgage for years, oblige me with the same, together with my charge as ployment as clerk, to give it on behalf of the plaintiff, surely the reversion might be taken in execution. under, I am, &c." By the evidence given at the trial and he was, by the express authority of the holder, to Authorities cited: Lyster v. Dollond (3 Brown, it also appeared that the attorney was not authorised give it for him. Here there is an untrue statement; Chan. Cas. 478, 1 & 2 Vict. 110).
Rule nas to give any notice of dishonour, and also that Vaugh. but made unintentionally, and by a mere mistake. No han's name was inserted by mistake instead of that of doubt there is a difference between the two cases,
MITCHELL 1. NEWARK. the plaintiff. Whereupon it was contended by the where the notice is given by an authorised person, In an action by a sharebroker against a party fer defendant's counsel that the notice was bad, as without stating on whose behalf it is given, and where accepting certain shares in a foreign railcay, it is Vaughan had given no authority to the attorney to an untrue intimation is given. In the one case the peared that there were no shares strictly so cardi) give the notice. The learned recorder, however, di- party is put upon inquiry, in the other he is misin- in the market, but that the plaintiff had bought chat rected a verdict to be entered for the plaintiff
, giving formed." What ought to be the result of a misin- was current in the market as shares in that company, the defendant leave to move to enter a nonsuit. formation? It is to be recollected that whether namely, a letter of allotment. Held, that the side Jerris, R.C. having obtained a rule nisi,
a party is misled or not as to the person give fied the authority to buy shares. Egerton and Unthank now (Feb. 9) she wed cause, ing the notice, the object of the notice is answered by This was an action brought by the plaintif, be and contended, upon the authority of Chapman v. the information of the dishonour of the bill: the per was a broker, to recover 1501. the price paid by za Keane (3 A. & E. 193), that the notice was sufficient, son to whom notice is given is entitled to withdraw for certain shares in the Belgian Easteta Justas it being enough if a defendant had notice of dis- from the effects of it, or take a remedy against the Railway Company. honour from any one who was a party to the bill, prior party; and we think it reasonable to hold, that At the trial it appeared that the authority givea ta although not the holder.
the misrepresentation of the name of a person on the plaintiff by the defendant was to buy fifty shera Jerris and Atkinson, contrà. Cur adr, rult. whose behalf notice is given ought not wholly to avoid in this company. By the prospectus which was put
Some time after, the judgment of the Court was the notice, but only to place the party giving it in the in, it appeared that no shares were to be issued by delivered by
same situation, as to the party to whom it is given, the company until three-tenths of the capital al PARKE, B.—This case was argued some time since as if the representation had been true. I therefore been paid up; but letters of allotment were issued before the Lord Chief Baron, my brother Platt, and think that the defendant ought to have every defence the persons to whom shares were allotted, and it a myself, on shewing cause against a rule to enter a against the plaintiff that he would have had if the peared that these letters of allotment were curreata nonsuit on a point reserved by Mr. Wellsby, the notice had been given and the party's name had been sale in the share market. The plaintiff bougtt a learned recorder for Chester. The question in this correctly described. This is in analogy to the law letter of allotment of fifty shares for the defendani u case is a perfectly novel one, never having been and of contract with factors in similar cases where a the price of 1501. and on the defendant's refusing to before the Court. It was an action upon à bill of contract is not avoided by a mistake that had been accept the same, brought the present action. exchange drawn by the defendant payable to his order, committed by the vendor. This was the case referred At the trial it was contended that the purchase ata and by the defendant indorsed to W. H. Vaughan, to in the judgment by my brother Alderson just deli- letter of allotment did not satisfy the authority to bring and by W. H. Vaughan again to the plaintiff. The vered. The other party has all the equity against the shares, and that therefore the defendant must have i defendant pleaded that there was no notice of dis. real as agaiost the apparent owner. If, therefore, in verdict. The jury, however, under the direction of honour. The bill was, in the body, made payable in the present instance, a notice by Vaughan would have the Chief Baron who tried the cause, found for the London, and it became due on the 24th of April. On been bad, as it would have been if he had been dis- plaintiff, damages 1501. the 26th an attorney at Chester, acting for the plain charged by laches, the defendant would have had a Humfrey, Q. c. now moved for a new trial, on the tiff, gave notice to the defendant of the dishonour, good defence, and the plaintiff would bave had no ground of misdirection, and contended that as the de. stating he was required by the drawer, Vaughan, to right of action on the bill against the defendant; if tendant had distinctly used the word "shares " in his desire payment of the defendant's dishonoured bill, he had taken it up, the defendant would have had a authority to the plaintiff, the word must be taken is but he swore he was not authorised by Vaughan to defence, and if good, as, on the evidence, it appears to its strict literal meaning, and that it could not be give that notice, and at the time that he gave the no us it would have been, the defendant has not been satisfied by a purchase of something which might be tice he gave it in a wrong name by mistake. Tbe sole injured, and has no right to complain of misrepresent. equivalent to shares. question is, whether this notice was sufficient. We ations. We think the ruling of the learned recorder Pollock, C. B.-I left it to the jury to say whehave already intimated our opinion that the notice right, and the rule ought to be discharged.
ther the defendant meant the plaintiff to buy shares
, was in sufficient time if it be considered as given by
Rule discharged. strictly speaking, or what was on sale in the market the plaintiff, and if it sufficiently referred to the bill in
Saturday, April 18.
as such, and they have found for the plaintiff. question. Since the case of Chapman v. Keane HUNTINGDON r. THE GRAND JUNCTION Rail- Humfrey.-But it is submitted that it was not for (3 A. & E. 193), it must be considered as per
the jury to decide that question, but the Court, ups fectly settled tbat a notice of dishonour need
the construction of the words of the Nubiact. NOW, not be given by the bolder, but it may be said to be This was an action brought by the plaintiff against if Newark lau orought an action against Mitchell fare suficient if a notice is given in due time by any the defendants to recover the value of three casks of not buying shares, would it not have been an answer one who is a party to the bill. The decision in pearl shells, which had been deposited in the store to the action to say that there were no shares in the the case that came before Chancellor Kent is referred houses of the defendants, at Liverpool, and stolen market? to in the 3rd volume of his Commentaries, p. 108, therefrom. There were two counts in the declaration, By the Court.—There is no rule of law to compel and by Mr. Justice Story on Bills of Exchange, s. one stating that the goods were to be taken care of us to shut our eyes to what really was the intention 304. The former states the rule to be general that the and safely kept by the defendants, and delivered to the of the parties, and it is clear they meant the thing notice may be given to any one who is a party to the plaintiff on request, for reasonable reward to be paid really bought: it was quite a question for the jury. bill; the latter states it more fully, and says that the to the defendants by the plaintiff in that behalf. The Here was an authority given to do something, and it notice would be sufficient, although not given by the second count was a count in trocer. A verdict was for them to say what was meant. They have deholder or his agent, if it comes through some person having been found for the plaintiff,
cided, and we do not think we should disturb that holding, or who is a party to the bill, or who will be Alexander, Q. C. now moved (pursuant to leave decision.
Rule refused entitled to require the reimbursement thereof. The reserved) for a nonsuit, on the ground that there was
CREMER v. Chuck. notice, by the terms of the rule, as laid down by the no contract for reward proved, so as to support the At the trial of a cause at Nisi Prius, a verdict tras Queen's Bench, must be given in due time by a party first count; but that it was a mere bailment without taken for the amount claimed by the plaintiff, subject to the bill-that is, in due time, as if he was the plain- reward; and as to the second count, there was no to a reference; the arbitrator to have power to make tiff himself, and was suing; and, consequently, the case conviction proved.
Rule nisi. an award, or to give a certificate as to the sum for where a bill has been discharged by the laches of the
which the rerdict was to stand; some months after holder, and is excluded; and so the terms of the rule, THE MAYOR OF POOLE v. WHITT.
the trial the arbitrator, instead of making an award, laid down by Mr. Justice Story, seem to exclude the
gare his certificate for the sum found by hin to be case of a party to the bill, who could not sue on it as This was an action of covenant for rent. The plea due: Held, that the plaintiff might immediately pro being a party to the bill, unless it is so understood; was eviction. Verdict for the plaintiff, with leave for ceed to sign judgment and tax his costs, and a nel otherwise the mischief would happen, pointed out by the defendant to move to enter a verdict.
obliged to wait until after the four first days of the Mr. Jervis, that there might be a bill having twenty Cockburn, Q. C. now moved accordingly. It ap- next Term. indorsees; the owner might retain the bill for twenty peared that the action had been brought to recover In this case a verdict had been taken at the trial days, and then recover against the drawer by a notice certain rents for a market, of which the defendant by consent for the plaintiff for the amount claimed, given by the first indorsee, which the indorsee himself was lessee to the corporation, and the facts set out in subject to a reference; the arbitrator to have power could not do. Such a notice as this would not be in the plea and relied on as a defence were, that some to make an award, or to give his certificate as to the due time if given by the first indorsee ; it would be time since a gentleman named Parr, who was the amount for which the judgment was to be sigued. bad, and would not support an action. The rule ex. town clerk of Poole, had been removed from that The arbitrator did not make an award, but two tends equally to a notice by an acceptor, who could office, under the Municipal Corporation Act, and that Terms after the verdict gave his certificate, wherenot sue himself on the bill after taking it up. The in- the corporation awarded him compensation for
the loss upon, on the 7th of April, the plaintiff signed judg. stances referred to in which a notice by an acceptor have of his office, which was secured by a bond for 4,0001. ment. been held good at nisi prius are in Mr. Chitty's book Some time in 1838, this bond was put in force by Jervis, Q.C. having obtained a rule, calling on Bills, 227 ; and Rosher v. Kieran, 4 Camp. 87, Mr. Parr, and an elegit was sued out against the plaintiff to shew cause why this judgment should not which is explained by Bayley on Bills, 259, and this is lands of the corporation on a judgment obtained on it. be set aside, on the ground that it was irregular
, explained under the supposition that the acceptor had At this time the market
was let by lease to a Mr. baving been 'signed before the first four days of the a special authority to do so. In the present case it Browne, who attorned to Mr. Parr and paid him the Term after the certificate was given had expired, appears the directions given were not such as can be rents, with the knowledge and without any objection Martin, Q.C. and Willes now shewed cause, understood to have given a discharge by the holder at on the part of the corporation. In 1840, his lease contended that the judgment was perfectly regular
. the time. The notice by him on the 26th would have expired, and a Mr. West became lessee, and paid the This was not like the case of an award; it must be been in sufficient time to have supported an action by rent to Parr as lessee until 1843, when his lease ex. taken that the verdict was given six months since, him, and consequently an action by the plaintiff'; pired, and the defendant, Whitt,' then became lessee ; and this certificate is given merely to settle the there is, therefore, no objection to the notice on this he also received notice from Mr. Parr, and paid him the amount for which the execution is to issue, the ground, nor, indeed, would there have been any if rents without objection from the corporation for the whole being done by consent of the parties. It is not the attorney had omitted or refused to state in whose first year of his lease. The corporation then thought contended that the defendant cannot come here within behalf he applied. That was held in the case of that they had discovered something which would avoid the first four days of the next Term after the certif. Woodthorpe v. Lawes (2 M. & W. 109). It had been the elegit, and gave notice to the defendant to pay cate is given, to set aside the certificate ; if there were previously so laid down in Kent's Com. 2 vol. 108, his rent to them; this being refused, the present ac any ground for such motion, all that is contended is, where he says, “ Any agent in the possession of the tion was brought. The ground on which the corpo- that there is no stay of proceedings, and that the bill may give the notice, and it need not state at ration said the clegit could not issue was, that there I plaintiff's hands are not tied from taxing his costs,