1881 Goffin v. Donnelly. Q.B.D. MANISTY, J.: It was held in Dawkins v. Lord Rokeby () that statements made before a military court of inquiry, which could not administer an oath, were as much privileged 309] as evidence given *in a court of justice. I think this is an a fortiori case, it being admitted that the select committee has power to enforce the giving of evidence by committal. There is no case directly in point, but there are authorities of the strongest character to establish the principle upon which the claim of privilege in this case is founded. For these reasons I agree that our judgment must be for the defendant. Judgment for the defendant. Solicitors for plaintiff: Baker & Nairne. Solicitors for defendant: Hare & Fell, for Solicitors to the Treasury. (1) Law Rep., 7 II. L., 744; 14 Eng. R., 127, affirming 5 id., 212. See 22 Eng. Rep., 830 note; 26 id., 788 note; 26 id., 157 note; Moak's Underhill on Torts, 152 et seq. As to the liability of a party or witness for conspiracy to injure, testimony as a witness, etc., see Spooner v. Spooner, 26 Minn., 137. A judgment will not be enjoined for facts which existed at the time of its rendition, merely because the defend ant was ignorant of them. It must appear that his ignorance was not due to any lack of diligence on his part, or that it was caused by the act of the opposite party: Carolus v. Koch, 72 Mo., 645. A surety is not bound by a judgment or order against his principal, made in a proceeding to which the surety was not a party, unless the surety has so contracted explicitly. For this purpose a bond, conditioned that the principal shall obey any order of the court, is enough to make such order conclusive on the surety; but under a condition merely that he "shall henceforth faithfully discharge the duties of his trust," an order charging him with a balance made upon an accounting to which the surety was not a party, and which included a period antecedent to giving the bond, is not conclusive on the surety; but the surety is entitled to show that the liability occurred before the bond was given: Schofield v. Churchill, 72 N. Y., 565, distinguished; Thompson v. MacGreg or, 9 Abb. N. C., 138 and note; S. C., 81 N. Y., 592. Will-Attesting Witness-1 Vict. c. 26, s. 15—Marriage of Devisee after Attestation to attesting Witness. Under the Wills Act (1 Vict. c. 26), s. 15, the marriage, after attestation of a will, of a devisee to the attesting witness, does not affect the validity of the devise. ACTION to recover possession of a house at West Hill, Derby, devised in 1865 by Jeremiah Bestwick to his niece Ann Rebekah Wolstenholme, who in 1868 married the plaintiff Thorpe. Defence: That A. R. Wolstenholme married the plaintiff Thorpe before the death of the testator, and that at his death the marriage was still subsisting; and that Thorpe was one of the witnesses to the execution of the will. Demurrer. Graham, in support of the demurrer: The fact that the devisee married the attesting witness after the date of the will cannot affect the devise. The material sections of the Wills Act, 1 Vict. c. 26, are s. 15 and s. 24 (). Sect. 15 enacts that devises to an attesting witness, or his or her wife or husband shall be void, and s. 24, that a will is to speak from the death of the testator. But it has been expressly held, in Bullock v. Bennett (), that s. 24 does not apply to the objects of the testator's bounty, but only to the estate comprised in the will, Lord Justice Turner saying that he understood the section to mean that the will is to speak as if executed immediately before the testator's death, not with reference to the objects of his bounty, but with reference to the real and personal estate to be taken by those objects. And in Jarman on Wills, 3d ed., vol. i, pp. 65, 66, it is explained that the rule *before the Wills [312 Act was that, when an attesting witness was disqualified by reason of his being a devisee under the will, the disqualification must exist at the period of the attesting act. The (1) By 1 Vict. c. 26, s. 15, if any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, &c., shall be thereby given or made, such devise shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person, or wife or husband, be utterly null and void. By s. 24, every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. () 24 L. J. (Ch.), 512. 1881 Thorpe v. Bestwick. Q.B.D. cases cited in the note at the bottom of the page do not affect this principle. J. F. B. Firth, for the defendant: Sect. 14 of the act, enacting that if any person who shall attest the execution of a will shall, at the time of the execution or at any time afterwards, be incompetent to prove the execution, such will shall not on that account be invalid-contemplates that the witness may become incompetent after the execution of the will and before the death of the testator. To uphold the present devise would enable an attesting witness who took a devise under the will to secure himself by antedating it. Graham, was not heard in reply. MATHEW, J.: I think the plaintiffs are entitled to judgment. The policy of the Wills Act, 1 Vict. c. 26, in depriving the attesting witness of any legacy given by the document of bequest, is not to allow wills to be proved by the evidence of persons benefited by them, and it makes void any devise to an attesting witness, or to his or her wife or husband. In the present case the plaintiff, at the time when the will was attested, took no benefit under it, but he subsequently married the devisee, and I am asked to hold that the result of this marriage is to destroy the validity of the devise. But there is no such provision in any part of the act; the only section which could be referred to is s. 24, by which every will is to take effect as if it had been executed immediately before the death of the testator. This section has been commented upon and fully interpreted in Bullock v. Bennett ('), and it is clear that it does not apply to those benefited by the devise, but only to the property to be taken by them. There is, therefore, nothing to affect the validity of this devise. Judgment for the plaintiffs. Solicitors for plaintiffs: Peacock & Goddard, for Clark & Huish, Derby. Solicitors for defendant: Watson, Sons & Room. (1) 24 L. J. (Ch), 512. See 14 Eng. Rep., 536 note; 15 id., 720 note; 18 id., 779. A devisee is a party to the will, and not a witness within the meaning of the statute. Witnesses must be competent at the time of the execution of the will to authenticate it by their testimony: Camp v. Stark, 10 Philadel phia R., 528. A testator devised freehold lands to his son A. for the residue of the lease under which they were held, but directed that A. should not marry without the consent of the testator's ex ecutors; and that in case of his marriage without their consent, the lands devised to him should go and become the property of the testator's son J. Q.B. D. Stevens v. Woodward. 1881 He married within three years of the Held (affirming the decision below), [6 Queen's Bench Division, 313.] *RICHARDSON, Appellant; SAUNDERS, Respondent. [313 Elementary Education Acts-Attendance Order-Child attending Board School without Fees-Liability of Parent-39 & 40 Vict. c. 79, ss. 10, 11, 12; 33 & 34 Vict. c. 75, 8. 17. A parent who, under an order by a court of summary jurisdiction that his child shall attend a board school and that he do see that the order is complied with, causes the child to attend the school but without the school fees, is not liable to conviction under the Elementary Education Act, 1876 (39 & 40 Vict. c. 79), s. 12, for non-compliance with the order, although he may have failed to apply to the guardians under s. 10, to pay the fees, and refused to obtain a remission of them under 33 & 34 Vict. c. 75, s. 17. [6 Queen's Bench Division, 318.] Feb. 25, 1881—Q.B.D. *STEVENS and Another v. WOODWARD and Others. [318 Negligence-Master and Servant—Solicitor and Clerk-Scope of Authority. The plaintiffs occupied premises beneath the offices of the defendants who were solicitors. One of the defendants had a room of the offices, and in it was a lavatory for his own use exclusively, and his orders to his clerks were that no clerk should come into his room after he had left. A clerk went into the room to wash his hands at the lavatory after his employer had left, turned the water tap, and negligently left it so that water flowed from it into the plaintiffs' premises and damaged them. In an action for negligence: Held, that the act of the clerk was not within the scope of his authority, or incident to the ordinary duties of his employment, and that there was no evidence of negligence for which the defendants were liable. APPEAL from the Lord Mayor's Court. Action for negligence. At the trial before the Recorder it appeared that the plaintiffs occupied premises beneath the offices of the defendants who were solicitors. Evidence was given for the plaintiffs that a quantity of water had come from the offices of the defendants, and it was found to have escaped from a tap left open in a lavatory there. It damaged the property of the plaintiffs. At the close of 1881 Stevens v. Woodward. Q.B.D. the plaintiffs' case, counsel for the defendants submitted that there should be a nonsuit as there was no evidence that the defendants or any servant of them had been guilty of negligence, and he cited Ross v. Fedden ('). The learned judge declined to nonsuit, whereupon evidence for the defendants was given, and one of them said: "The lavatory is in my room, and is for my own use exclusively, and my 319] orders are *that no clerk shall come into my room after I have left. I left the office on the 12th of August, at 5.45, after washing my hands and turning off the tap." A clerk of the defendants said, "I went into the room of the last witness to wash my hands. I turned the tap and the water did not flow, and then I went out." The jury found a verdict for the plaintiffs for £15, and leave was reserved to the defendants to move for a nonsuit if the court should be of opinion that there was no evidence of negligence, or that under the circumstances the defendants were not liable. A rule having been obtained accordingly, Candy showed cause: The learned Recorder was right in refusing to nonsuit, and also in leaving the case to the jury. They have decided the question. If the master himself had left the tap open he would have been undoubtedly liable. The clerk to a solicitor is more than a servant, he acts for his employer in his absence. Here the clerk was in the office during working hours, and it was part of the routine of the day's work to wash his hands. It is the general practice for such clerks to wash their hands in the offices where they are employed. Here the clerks' room contained a lavatory for their use, but the water failed there, and so the clerk went to the other room. That he was forbidden to do so is irrelevant: Whatman v. Pearson (). He was acting within the scope of his employment: Venables v. Smith (3). This case is not like Storey v. Ashton (*), where the defendant's carman after business hours drove a clerk out on business of his own, and was negligent while on the independent journey. In such cases no doubt the master is not liable: Mitchell v. Crassweller (). The question is whether the subordinate is acting within the scope of his authority if he be an agent, or in the course of his employment if he be a servant. The clerk here was so acting. Petheram, Q.C. (De Witt, and G. G. Kennedy, with him), in support of the rule: The principle is well stated in Whatman v. Pearson () by Montague Smith, J. Here the (1) Law Rep., 7 Q. B., 661; 3 Eng. R., 254. (2) Law Rep., 3 C. P., 422. (3) 2 Q. B. D., 279; 20 Eng. R., 345. |