Plea, non assumpsit.

bell v. Fleming, 1 A. & E. 40; Small v. Attwood,
6 Cl. & Fin. 232); that the form of action was
wrong. (Bates v. Edwards, 7 M. & G. 590; Filmer
v. Burnby, 2 M. & G. 529; Pasley v. Freeman,
3 T. R. 51; Haycroft v. Creasy, 2 East, 92.) On
the question of fraud, they cited Shewsbury v. Blunt,
2 M. & G. 475; Taylor v. Ashton, 11 M. & W. 401;
Mason v. Ditchburn, 2 C. M. & R. 720 (note);
Foster v. Charles, 6 Bing. 396; Selway v. Fogg,
5 M. & W. 82; Vernon v. Keys, 12 East, 632.
Cur. adv. vult.

was

JUDGMENT.

the

tion contract under seal, which gave power to the The action was brought to recover from the de- committee to pay the expenses which had been or fendant as one of the committee of management of might thereafter be incurred out of the sum thereby the "Direct London and Exeter Railway Company, subscribed. The plans and sections deposited in the the sum of 824 10s. paid by the plaintiff as the deposit Parliamentary Office on the 30th of November were upon sixty shares, allotted to him in the concern. imperfect. The whole money paid up had been exThe case was tried before Erle, J. at Guildhall, at pended except 4001. and the committee had no funds the sittings after last Trinity Term, when the follow- to make the requisite deposit to comply with the ing facts appeared in evidence. In the autumn of Standing Orders. On the 15th of December a meet1845 a prospectus was issued, of which the material ing of shareholders was called, at which the plaintiff parts were as follows:- Direct London and Exeter attended. It then appeared for the first time that Railway Company, with Extension to Falmouth and only 58,000 shares had been allotted. A resolution of Penzance. Capital, 3,000,000l. in 120,000 shares of confidence in the concern and in the committee of 251. each. Deposit, 17. 78. 6d. per share; a further management, and that a further allotment of shares WILDE, C. J. now (May 8th) gave judgment; and deposit of 11. 5s. per share to be paid after the Bill should be made to raise the sum required for deposit after going through the facts, as above set out, prohas passed the House of Commons, with power to was proposed. The plaintiff moved an amendment that ceeded--The case was recently argued before us, raise 1,000,000l. more, if necessary." It then con- as 58,000 shares only had been allotted, the deposit when it was contended, as at the trial, on the behalf tained a list of the provisional committee, and of the already received should be returned to the parties who of the defendant, that the letters constituted a bindcommittee of management, in both of which the de- had paid them: the chairman did not put the amending contract, and that the payment by the plaintiff fendant's name appeared. It then stated, "the ment, and the original resolution was carried by a must be ascribed to his legal liability, and not to the plans, sections, and books of reference will be ready large majority. A few days after this, the committee advertisement; and that the advertisement contained within the time prescribed by the Standing Orders of found it impossible to proceed with the undertaking, no misrepresentation, for that it did not import that Parliament;" and, "application will be made for a and on the 6th of January this action was commenced. the whole number of shares had been allotted, or if it Bill to incorporate the company early in the next At the trial the judge gave no opinion as to whether did, the representation was manifestly addressed to Session; and, in case Parliament shall not sanction the letters of application and allotment constituted a disappointed applicants, and not to those who had the undertaking, which every active means will binding contract or not, but left it to the jury to say received allotments of shares. And if the money be taken to secure, the money deposited, deduct- whether the defendant had made a fraudulent mis- not obtained by fraud, the deed which the ing the necessary expenses attending the projec- representation, which was a material inducement to plaintiff had executed expressly authorised tion, will be returned. The deposit of 11. 75. 6d. the plaintiff to pay his money; whether the consider- application of it to the payment of the expenses; but per share will be sufficient to comply with the Stand-ation had failed, the company being at an end; and it was admitted that if the payment was obtained ing Orders of the House of Commons; and after the whether the deed executed by the plaintiff was so from the plaintiff by fraud, the deed would be no Bill has passed the Commons, a further deposit of executed under the same belief as operated on his answer to the action. It was further contended that 11. 58. will be made in order to comply with the regu-mind when he paid his money. The jury answered all the plaintiff, by attending the meeting of the 15th of lations of the House of Lords. The committee are these questions in the affirmative, which the judge said December, and acting as a shareholder after he knew unwilling to require the whole deposit earlier than is was a verdict for the plaintiff for the full amount, that only 58,000 shares had been allotted, had preabsolutely necessary. Prospectuses and plans of the which was entered accordingly. A rule nisi had been cluded himself thereby from claiming the return of line, with forms of applications for shares, may be obtained in Michaelmas Term last for entering a non- his deposit on that ground, for which Campbell v. had at the offices of the company." It then contains suit or a verdict for the defendant, or for a new trial, Herring, 1 A. & E. 40, was cited as an authority. a form of application for shares, directed to the pro- on the ground of misdirection. Upon the first of these points we are of opinion that visional committee of management on the Direct Knowles, Q. C. and J. Brown now shewed cause, there was no contract binding on the plaintiff to London and Exeter Railway Company. "Gentle- and contended that this was money paid under a false part with his money at the time when he paid men, I request you will allot me shares of 251. representation, and might therefore be recovered in the deposit. He had applied for sixty shares in each in the above railway; and I undertake to accept this form of action. (Pope v. Wray, 4 M. & W. 451.) a concern which was to have a capital of 300,000l. the same, or such less number as you may appropriate The advertisement was calculated to induce the plain-raised by the sum of 120,000 shares. The committee to me, subject to the regulations of the company, and tiff to pay his money, and the defendant must be taken allotted to him a very different thing, but professed to also to pay the necessary deposit of 11. 79. 6d. per to have intended what was the natural consequence of allot him that which he had asked for; and the deed share, and to sign the parliamentary contract and his act. (Polhill v. Walters, 3 B. & Ad. 114.) The of allotment as well as the prospectus described the subscribers' agreement when required." On the 25th payment must be ascribed to this false representation, capital as 3,000,000l. and the number of shares as of September the plaintiff sent a written application, for there was no binding contract before, as the letter 120,000. Now it might be reasonable to expect that in the prescribed form, for thirty shares, substituting of allotment introduced terms and conditions which such an undertaking would succeed with a capital of only the words "necessary legal documents," for were not in the letter of application. (Holland v. 3,000,000l. but absurd to suppose it could be accom"parliamentary contract and subscriber's agree- Eyre, 2 S. & S. 194; Routledge v. Grant, 4 Bing. 653; plished for less than half that sum. The plaintiff, ment," and signed it, with a reference, "W.R 1 Sugden's Vendors and Purchasers, 10th edit. 165; therefore, having asked for shares in a practicable Esq." On that paper there was also written, Smith v. Surman, 9 B. & C. 561.) The letter of allot- scheme, received shares in one that was imprac"perfectly good for thirty shares, W. R." The plain- ment was headed "not transferable," which was a ticable, and which was rendered so by the act of the tiff subsequently applied to have the number increased new term, and not merely what the law would intend, committee in refusing to allot more than 58,000, from thirty to sixty. To these applications the follow-for the law against transfers does not apply to railway although more than the whole 120,000 had been aping answer was sent, "Not transferable." "The companies. (Young v. Smith, 15 M. & W. 121; Law-plied for by responsible persons. That which was alDirect London and Exeter Railway Company, with ton v. Hickman, 16 L. J., N. S. 20, Q. B.; Mitchell lotted not being, in truth, that which the plaintiff extension to Falmouth and Penzance, provisionally v. Newhall, 15 M. & W. 308.) The party would, but asked for, he was not bound to take it again. The registered, capital 3,000,000l. in 120,000 shares, of for the introduction of this term, have been entitled allotment was not absolute but conditional only; and 251. each, deposit 11. 7s. 6d. per share, number of to sell his prospective right to shares. (Hibble- on that ground also we think the application of shares 60. Sir,-The committee have at your re- wight v. M'Morine, 5 M. & W. 426; Mortimer v. allotment does not constitute a valid contract, the quest allotted to you sixty shares, of 251. each, in M Callan, 6 M. & W. 58.) Also the condition of letter of allotment not being a simple acceptance of this undertaking, on condition that the deposit of re-allotting the shares if payment was not made the plaintiff's proposal. Such being our opinion as 17. 7s. 6d. per share thereon be paid on or before the by a certain day, was a new condition which the law to the alleged contract, we must enquire whether 18th of October instant, in default of which this allot- would not have implied. (Martindale v. Smith, 1 there was any evidence that the plaintiff was induced ment will be forfeited, and the shares disposed of to Q. B. 389; Greaves v. Ashlin, 3 Camp. 426.) But to pay his money by any fraudulent misrepresentation: other applicants. The bankers will give a receipt in assuming there was a binding contract to pay on if he was not, the plaintiff ought to have been nonexchange for this letter, which must be left with the 18th, there was none to pay on the 21st, when suited, or a verdict found for the defendant. We them. I beg also to inform you, that the scrip for shares he did pay, and therefore it must be taken that he think there was ample evidence of such misrepresen will be delivered to you in exchange for the banker's elected not to accept the new contract, and the pay-tation; and, if we are to construe the advertisereceipt, on your executing the parliamentary contract ment must be ascribed to the fraud. Then, the whole ment, we think it means after the shares have and subscribers' agreement, of which due notice will number of shares not being allotted, the plaintiff was been allotted, and that as it was a public adbe given. Be pleased to observe that the banker's not bound to pay his deposit (Fox v. Clifton, 6 Bing. vertisement, it must be taken to have been adreceipt must be produced when you attend to execute 776; Pitchford v. Davis, 5 M. & W. 2; Flight v. dressed to all who were interested in the subjectthe deed," signed by the secretary and directed to the Booth, 1 Bing. N. C. 370); and the scheme being matter, of whom the plaintiff was undoubtedly one. plaintiff. Before the day appointed for payment of abortive, the plaintiff is entitled to have his whole To him it represents that he had got what he asked the deposit, the following advertisement was pub- deposit returned. (Nockells v. Crosby, 3 B. & C. for, that is, sixty shares of the 120,000 in the prolished:-"The Direct London and Exeter Railway, 814; Walstab v. Spottiswood, 15 M. & W. 501.) posed adventure; the jury were therefore warranted with Extension to Falmouth and Penzance.-The The fact that in this case the plaintiff had signed the in finding the representation was a material induceCommittee of Management hereby give notice that deed which authorised the defendant to spend the ment to the plaintiff to pay his money. If the meanthey have completed the allotment of shares, and that money, can make no difference, as the jury have ing of the advertisement was for the jury, they appear the usual letters are this day issued. In the arduous found that he signed the deed under the same misap- to have construed it as we do; either way, there is duty of deciding on claims, unprecedented, it is be- prehension as he paid the deposit. The plaintiff did ample evidence to be left to the jury on this point, lieved, in their number and respectability, the com. not waive his right to repudiate the contract, by at- and there is no ground for either a nonsuit or a vermittee have been obliged to give a preference to ap- tending the meeting on the 15th of December. [On dict for the defendant on this point. The next point plicants locally interested, or likely to bring to bear this point they were stopped by the Court.] made for the defendant was, that the plaintiff, by for the company a large share of legitimate influence. attending and acting as a shareholder at the meeting The numerous persons of undoubted claims on the of the 15th of December, when he knew only score of wealth and social standing, whose applica58,000 shares had been allotted, had precluded himtions have either been passed over or cut down, are self from making any claim to his deposit on that desired to accept this reason as the committee's ground. But the evidence disposes of this point: the apology. The committee desire to add that while only act done by the plaintiff at the meeting was to attestations of public support are daily reaching them propose that in consequence of the allotment of only from the most influential quarters, the engineering 58,000 shares, all the deposits should be returned; preparations under Mr. Braithwaite are so far adand the argument comes to this, that having tried to vanced that the project cannot fail to be placed before induce others to join him in claiming the deposit, and Parliament in a manner most satisfactory to the failing in the attempt, he shall not be permitted to do shareholders." Some evidence was given from which so by himself. No such doctrine as that is to be it might be inferred that the plaintiff had seen this adverfound in the case of Campbell v. Fleming, or in tisement. The deposit was not paid on the 18th, but on any other decided case that we the 21st, the plaintiff paid 827. 10s. as the deposit on The plaintiff did no act at the meeting shewing his sixty shares. At that time the committee had, in fact, his assent to be treated as the holder of sixty allotted only 58,000 out of the 120,000 shares. On the shares, and we think that, notwithstanding his 4th of November the plaintiff executed the subscripattendance at the meeting, he is in a condition to

Sir F. Kelly, Q.C., Channell, Serjt. and Fitzherbert, contrà, contended that the plaintiff was bound to pay the money under the contract; that the condition said to be introduced must be construed as a clause of forfeiture in a lease, and only gave the committee a right to rescind the allotment if they thought proper. The letter of application undertakes to accept the shares, subject to the regulations of the company, and this was one of them. The misdirection complained of is, that the judge should have asked the jury, not whether the advertisement was false, and was a material inducement to the plaintiff to pay his money, but whether he was, in point of fact, thereby induced to pay it (Moens v. Heyworth, 10 M. & W. 147); and that he gave no opinion on the point of whether or not the letters constituted a binding contract: that the plaintiff had waived any right to rescind the contract (Richardson v. Dunn, 2 Q. B. 218; Camp

are aware of.

maintain the present action. The motion, therefore,
for a nonsuit, or to enter the verdict for the defend-
ant, fails.
But it was further contended by Mr.
Fitzherbert, counsel for the defendant, that the de-
fendant was entitled to a new trial, because the
learned judge did not tell the jury whether the letter
of application and allotment did or did not constitute
a binding contract. It is impossible to make that a
ground for a new trial; whether it constituted a con-
tract or not, is a question of law and not for the jury;
and if a new trial were granted, the same question
that the learned judge submitted to the jury must
be again submitted to them. However, it appears
that after taking their opinion upon the question of
fraudulent misrepresentation, the judge said the plaintiff
was entitled to a verdict, which must be taken as a
direction to the jury to find such verdict. If, in order
to give that direction, it was necessary to decide that
the letter did not constitute a contract, the learned
judge, in giving that direction, must be taken to have
so decided; and if we had considered those letters did
constitute a contract, we must have considered the
direction incorrect, and made the rule absolute for a
new trial. Inasmuch as we think the direction right,
the rule obtained for the defendant fails as to this, as
well as to the other point, and must therefore be
discharged. My brother Williams, having been con-
sulted at this bar in this case, has taken no part in
the consideration of the question.
Rule discharged.

May 27, June 9, 1846, and May 8, 1847.

NIAS v. DAVIES, Esq.

5 & 6 Vict. c. 116, s. 1--Residence-Escape-Sheriff. It is sufficient to constitute "residence" within the meaning of 5 & 6 Vict. c. 116, s. 1, if the petitioner during the preceding twelve months has only been absent from the district for a temporary purpose, with an intention of returning, and has left his family in occupation of his dwelling-house within the district, even although he himself has for the last three or four months been a prisoner in a gaol in a different district.

A sheriff having a prisoner in custody in a foreign county, where he has no gaol of his own, is not liable for an escape, merely because he suffers his prisoner to go about to different places in that county, attended and closely watched, day and night, by a sheriff's officer.

This was an action tried before Erle, J. at the Sittings in London after Easter Term 1846. A verdict was then found for the defendant, which Channell, Serjt. in the following Term, moved to set aside... Dowling, Serjt. (with him E. V. Williams) on June 9, 1846, shewed cause.

Fortescue appeared in support of the demurrer, and upon the first point cited Myn v. Cole, Cro. Jac. p. 87; Bell v. Tuckett, 3 M. & G. 785; 11 L.J.C.P. 92; Gwynne v. Burnett, 6 Bing. N. C. 453 and 530. The Year-book, 21 Hen. 6, fol. 47; upon the second point, 3 & 4 Wm. 4, c. 27, s. 2 & 3 ; Doe dem. Evans v. Page, 5 Q. B. 767; Doe dem. Dakes v. Sumner, 14 M. & W. 39.

Keating, contrà.-2 Wms. Saunders, 219, note b.;
Stephens on Pleading, 419-21; 12 Adol. & E. 715;
11 East, 66; 7 M. & W. 572; 4 Q. B. 823; and
Holmes v. Newlands, 11 A. & E. 44.
Cur. adv. vult.

JUDGMENT.

POLLOCK, C.B. delivered the judgment of the Court.- On the argument of this case we intimated our opinion that if a new trial of the issue should be awarded, Mr. Keating should have liberty to amend. Having determined that the rule nisi for a new trial should be discharged, so that no amendment can now take place, we must give judgment on the demurrer. To a declaration in trespass there is a plea of liberum tenementum from Thomas Holt, and a justification of the trespasses by the defendant as his servant and by his command. The replication to this plea is, that the defendant, did not, as the servant of the said T. Holt and by his command, commit the alleged trespass; and then there is a special demurrer to this replication, assigning various causes, amongst others that the replication is a negative preg that the doctrine of negative pregnant might be nant. On the argument before us it was contended

a dead letter in accordance

sex, Surrey, and London for twelve months, occa- under it; to which the plaintiff replied, and the desionally absenting himself, but always with the inten- fendant specially demurred to that replication on the tion of returning; and that he had lodgings kept on ground of its being a negative pregnant. 2nd. A plea during all that time, and down to March 1846, where deducing title, hereafter more particularly noticed. his wife lived, within the London district. Under Replication,—that defendant entered after the passing that state of circumstances, it appears to us that of the 3 & 4 Wm. 4, c. 27, and that the special right to although absent for some temporary purpose from the enter did not accrue at any time within twenty years London district at the time of his arrest, still it is previous to such entry, whereby the supposed right clear he must be considered, in point of law, as a was extinguished. There was also a special demurrer resident within the London district, within which he to this replication. had a permanent lodging where his wife was residing, and to which it was his intention to return. The petitioner was therefore, we think, authorised to petition the Court of Bankruptcy, and the commissioner before whom he was brought had jurisdiction to act in the matter of the petition. And this ground of complaint, therefore, fails. But it was further contended by the plaintiff that, admitting the bringing of the prisoner up was justifiable by virtue of the commissioner's warrant, still the subsequent conduct of the officer when in town had made the sheriff liable for an escape. It appeared in evidence that the prisoner was brought to London, under the warrant of the commissioner, on Saturday, the 24th of January, and about two o'clock on that day the petition was dismissed; and on the same day a writ of habeas corpus issued, which was lodged with the town-agent of the sheriff of Radnorshire before five o'clock on that day, and served on the bailiff who had the prisoner in custody. The original writ was sent down to Radnor, and the return sent up to London, where it arrived on Monday; and on that day the prisoner was taken before a judge, and by him committed to the Queen's Bench prison. The prisoner was at that time in a bad state of health, and could not have been taken back to Presteign on Saturday without much inconvenience and risk. It was not contended at the trial, that the bailiff was chargeable with any unreasonable delay in remaining in town until the Monday. But as it appeared that in the interval the prisoner had been taken to different places in London and Middlesex, and particularly on Sunday to an ion at Hampstead, called "The now considered as Spaniards," where he had passed the day, it was with the opinion Lord Chief Justice Tindal expressed contended, that on that account the sheriff was liable in Bell v. Tuckett, 3 M. & G. 602; that it has as for an escape. It was, however, proved, that the not been much regarded of late;" and by reason of prisoner, during the whole time he remained in Lon- several decisions where the objection has not predon and Middlesex until he was committed to the vailed, namely, the case of Pigeon v. Osborn, 2 Å. & Queen's prison was accompanied and closely watched E. 715; Bennison v. Thelwall, 7 M. & W. 512. In by the sheriff's bailiff, by day and by night. The those and many other cases the Courts follow the docprisoner therefore was kept in as close custody as it trine laid down in that of Robinson v. Raley, 1 Bur. was possible for the sheriff to keep him in a foreign 316, and explained in De Wolf v. Bevan, 13 M. & W. county, in which he had no prison of his own; and 160." Having allowed several facts constituting one such custody alone is sufficient to prevent the sheriff point of defence to be included in one traverse, and in from being liable as for an escape, as appears in Bay- carrying into effect that very convenient doctrine, have ton's case, 3 Rep. 43, a. That case was adverted to not very strictly followed the rule which forbids a negain the case of Hawkins v. Plomer and Another, Sheriff tive pregnant; for they certainly have not decided that Stat. 5 & 6 Vict. c. 116, s. 1; 7 & 8 Vict. c. 96. of Middlesex, 8 Wm. Black. 1048. Lord Chief Justice the rule does not now prevail. Many cases, on the conss. 1, 7, Schedule (A. No. 1.); 1 & 2 Wm. 4, c. 56, De Grey, in giving the judgment of the Court, re-trary, in the case of Bell v. Tuckell, 3 M. & G. 806, my 8.1; The Case of the Marshalsea, 10 Rep. 68, b; ferred to several cases and resolutions, which he said brother Maule says, that the doctrine does not apply to Andrews v. Morris, 1 Q. B. 3; Thomas v. Hudson, obviated the inconvenience of the doctrine laid down that case, where it was understood that the replication 2 D. & L. 873; Boyton's Case, 3 Rep. 43, a; Bur- in 3 Rep. 44. These resolutions shew that the doc- puts alone the proof of all the allegations comprised ton v. Andrewes, Moor, 299; S. C. Bacon's Abridg- trine applied except where it was limited by them, and in the plea, and he distinguishes the cases of negative ment, Escape in Civil cases, B.; Rolle's Abridgment, therefore "where a sheriff had one in execution for pregnant, which are cited in the argument. Those Escape, C.; Ibid. D. 9; 2 Inst. 381; Brown v. Comp- a debt, and a habeas corpus issued out of the King's cases so distinguished very closely resemble the preton, 8 T. R. 424; Watson v. Bodell, 14 M. & W. 57. Bench to have the body of bim who is in execution in sent, and appear to us to govern it; and in the case The facts and arguments fully appear in the judg- the same court on a certain day, by force of which of Michael v. Myers, 6 M. & G. 702, the defendant by writ the sheriff, before the return of the writ, brings no means treats the doctrine of negative pregnant as his body to an inn in Smithfield, towards Westminster, the plaintiff states it. Negative pregnant is objectionMay 8.-COLTMAN, J. delivered the judgment of and the prisoner of his own head goes, without any able on the ground of ambiguity. it is a form of nega the Court. This case was argued before the late keeper, to Southwark, in the county of Surrey, tive expression which rather supposes an affirmative Lord Chief Justice, whose opinion upon the subject and the next morning comes again to the sheriff to than the contrary, and every plea ought to contain is not known, and before my brothers Cresswell, Smithfield; and at the return to the writ, the sheriff a certain affirmation or negative of every single point Erle, and myself. It was an action against the delivers his body in court; this was no escape." in question. Thus Lord Coke says (Co. Litt. 126, a.) ne sheriff of Radnor for suffering one Carroll, who was These resolutions settle the doctrine for which they dona per le fait is bad, because it implies a gift by parol, in his custody on a capias ad satisfaciendum, to go at are cited in Sir William Blackstone's Report. And and it is not a direct negative. The case in the Yearlarge. The defendant had pleaded not guilty," even upon habeas corpus, the Warden and Marshal book 21 H. 6, folios 46, 47, and referred to in Bacon's with other pleas not material to be adverted to. It shall have only a convenient time to bring the prisoner Abridgement, Pleader 1. 6, and which was cited in appeared in evidence, that Carroll, being in custody into court and back again; but if they exceed that, the case of Bell v. Tuckett, was another instance. In of the sheriff of Radnorshire, by whom he had been it is an escape-which are the authorities for hold. Waste, the plea was, they had been cut down by the arrested in the month of November, 1845, petitioned ing in the present case, after the prisoner's petition command of the predecessor of the plaintiff; and the the Court of Bankruptcy in London for protection was dismissed, he was bound to take him back to replication that he did not cut the trees by his comagainst process, and the Commissioner before whom gaol within a convenient time. But, subject to this mand, was held. Sylvester says, that it ought to have his petition was brought, issued his warrant to bring restriction, the doctrine established in Boyton's case, been that the predecessor did not command. In Myn up Carroll before him for examination. Carroll was v. Cole, Cro. Jac. 87, the replication to the plea accordingly brought up to town on Saturday, the 24th justifying, under the license of the plaintiff's daughters, of January, and taken before the Commissioner on traverse, that he entered per licentium, was held that same day, aud at about two o'clock on the same bad as a negative pregnant. This traverse might, as day his petition was dismissed. It was contended Serjt. Stephens observes (and the same remark ap. on behalf of the plaintiff, that inasmuch as the petitiplies to the case in the Year-book), imply that a oner, Carroll, was not residing within the London license was given, though the defendant did not enter district at the time of the petition, the Commissioner had no jurisdiction to issue his warrant to bring him by it it is therefore pregnant with the admission that the license was given, and yet it is not expressly adup; and that the bringing him up in obedience to mitted; and it is in doubt whether the plaintiff means the warrant, made the sheriff liable as for an escape. to deny the license, or the entry by virtue of it. The It is not necessary for us to decide whether a case of Aubery v. James, 1 Vent. 70, where the repliprisoner in custody on execution can apply to pregnant-cation of non moderate castigavit was held bad on a any other Court than that within the district similar ground. in which he has resided for the last preced. is clearly open to the same objection: it implies an In the present case the replication ing twelve months; since, upon the facts proadmission that there was a command, and yet does ved in this case, we do not think that question not expressly admit it, and leaves it uncertain arises. It appears from the report of my browhat the question is. Further, it would be true ther Erle, before whom the case was tried, that if the defendant did not enter at all and therefore the prisoner was taken, in custody, to Presteign on would be a denial of the very fact which both the 10th or 12th of November, 1845, and that he had parties previously admitted. We must, therefore, resided before that time in several places in Middlehold that to be ill pleaded, unless we are prepared to

Channell, Serjt. supported the rule.

The following authorities were referred to :

ment.

JUDGMENT.

Cur, adv. vult.

as to the degree of strictness with which a sheriff is
to guard a prisoner during the time he is necessarily
beyond the limits of the sheriff's county, has not yet
been overruled. We think, therefore, in this case, the
custody was sufficient, and the rule for a new trial
ought to be discharged.

Rule discharged.

COURT OF EXCHEQUER.

Wednesday Jan. 27.
JONES v. JONES.

Pleading-Special Demurrer-Negative

3 & 4 Wm. 4, c. 27.
A plaintiff who is admitted to be in possession, and who
seeks to displace the title under which the defendant
claims, on the ground that it is barred by the Statute
of Limitations, 3 & 4 Wm. 4, c. 27, need not shew
what that title was, and how it was barred.
This was an action of trespass quare clausum fregit,
to which there were two pleas only requiring notice,
the first setting up title in a third party and justifying

Friday, April 16.
JENKINS and OTHERS v. MORRIS and OTHERS.
Bill of exchange-Acceptance.

Where a bill of exchange is drawn upon five persons,
not a trading partnership, but jointly contracting for
this particular occasion, and the bill is accepted by
one of them only, in his own name, this is a sufficient
acceptance to bind the others.

This case was tried before Rolfe, B. at Liverpool, and a verdict obtained for the plaintiff for 351.

would not be adverse, and the entry must take place
within five years after the passing of the Act. But if
the defendant wished to avail himself of the right of
entry under this clause, he ought to plead it in a re-
joinder; for the clause is by way of proviso or de-
feasance on the prior clause, and by the rules of
pleading ought to come from the party seeking to
avail himself of it. If the possession of the brother
or the tenant at will had ceased at the time of the
passing of the Act, though for a short time, and some
one else had got into possession, the possession was Crompton now moved for a rule for a nonsuit, or
then adverse: the 15th section would not apply. to enter the verdict for the defendant. The action
Whether the defendant Jones's title would in that was brought to recover the amount of a bill of ex-
case have been totally barred, is a question. If it change drawn upon the defendants, trustees of the
would, it would be on the ground that it fell within Clarence Temperance Hall at Liverpool, and accepted
the enactments of the 2nd section, limiting the twenty by Edward Munday (one of the defendants) only. It
years after the first title accrued, and not within the was contended, that this was not an acceptance of the
proviso in the 15th, and so the replication would persons upon whom the bill was drawn, and that al-
be supported; if it would not (and assuredly every though the signature of Edward Munday would bind
endeavour should be made so as to avoid such a con- himself, it would not bind the others; that this was
sequence), it would be by holding that the title did not not the bill of a trading partnership, but that the
first accrue till the end of the occupation of the parties had merely a joint interest in the matter,
brother, or of the tenancy at will, and if so, the re-and that if the signature of Munday would bind the
plication would equally be sustained. For these other defendants, it would bind all the other trustees
reasons we think the replication sufficient, and there- of the society. [ROLFE, B.-It is quite clear here
fore the judgment of the Court must be
that the trustees meant are the parties who contracted
For the plaintiff on the demurrer to the replica. as trustees.] In Byles on Bills, 136, it is laid down
tion on the fourth plea, and for the defendant that "if a bill be drawn on several persons, not in
on the demurrer to the other replication.
partnership, it should be accepted by all; and if not,
it may be treated as dishonoured. Acceptance, how-
ever, will be binding on such as do make it." [POL-
LOCK, C.B.-Is that distinction any more than this,
that parties who are in trade are understood to have
authority to accept bills, yet persons not in trade,
are not understood to do so; but if there is a distinct
authority by contract, is it not the same thing? If
he had merely written "accepted," I think it would
have been sufficient; and putting his own name af-
terwards, cannot render it bad. (Messer v. Ramsay,
shaken by later cases. (Kirk v. Blurton, 9 M.& W.
1 Campbell, 384.)] That case was considerably
284.)

Friday, Feb. 12.

SHOOSTER and OTHERS v. COOPER.
Guarantee-Construction of- Whether continuing or
limited.

The following guarantee was construed to be a limited
one:-"I agree to guarantee the due payment of
any amount of purchase Mr. John Barton may make
of you not exceeding the total value of 500l. sterling."
Goods exceeding 5001. in value had been sent in, and
500l. paid; more goods were also subsequently sup-
plied:

Held, that the above guarantee was not a continuing
guarantee, and one 5001. having been paid for goods
since such guarantee was given, that the defendant
was not liable for any subsequent supply.

The action was tried at Liverpool before Mr. Justice
Cresswell, when the plaintiff obtained a verdict, with
leave reserved for the defendant to move to set the
same aside and enter a nonsuit.
Knowles, Q. C. having moved and obtained a rule
nisi,

Watson, Q. C. shewed cause.
JUDGMENT.

POLLOCK, C.B.-It is not because the person who accepts puts his own name to it, that it is to be cousidered that he intended to bind only himself. Cur, adv. vult.

JUDGMENT.

say that the rule that every traverse should be unambiguous, and not contain a negative pregnant, is exploded, which we certainly are not authorised to say. In this replication, the plaintiff should have pursued the ordinary form; he should have replied, admitting the liberum tenementum de injuria absque residuo cause; or generally, that he committed the trespasses de injuria, and without the command of Holt. We therefore think the judgment should be for the defendant on the demurrer to the replication. We have now to dispose of the demurrer to the replication to the fourth plea. This plea, deducing the title by the Enclosure Act, and the allotment of land, copyhold, comprising the locus in quo, to one Trusted, a trustee for the defendant Jones, states the entry and possession until just before the time of the trespasses, under the charter of demise, without livery; and the defendant justified the trespasses complained of, as the servant of T. Holt, and by his command. To this plea there is a replication that the defendant entered and committed the trespass after the passing of the Limitation Act, after the 31st of December, 1843, and averred that the entry was made for the purpose of recovering a close in which, &c.; and that the special right to enter did not first accrue from Trusted, or the defendant, or any person through whom they claimed the estate and interest, at any time within twenty years before making the entry, and that by reason thereof the supposed right of Trusted, and the defendant as his servant, was extinguished. To this replication there is a special demurrer, assigning various causes, and raising a question of considerable importance. That question is, whether the plaintiff, who is admitted to be in possession, and who seeks to displace the title under which the defendant claims, on the ground that it is barred by the Statute of Limitations, 3 & 4 Wm. 4, c. 27, must shew what that title was, and how it was barred. The statute provided that the twenty years should run from different dates, according to the nature of the title of the party in possession at the commencement of twenty years. That the plaintiff, the party in possession, need not shew title in himself, seems to me to be clear. The case is, that the estate under which the defendant claims has been extinguished; consequently his own possession, whatever it is, cannot be disturbed. He is not in a situation of a plaintiff, admitting the freehold still to be in the defendant, for such a plea must shew what estate he claims under him in his replication-as a term of years or the like. If this were a plea of liberum tenementum in the ordinary form, at the time Cur, adv. vult. of the trespass, a traverse of the averment of the freehold would have raised the question whether it had been May 8.-PARKE, B. now delivered the judgment extinguished at that time by the lapse of twenty of the Court.-The case was argued at the sittings years. But the form of this plea stating the convey- after last Term before my brothers Alderson, Platt, ance of an estate, and deducing it to Trusted, pre- and myself. This was an application to enter a nonvented that course. The estate must be shewn, by the suit upon a point reserved by my brother Cresswell pleadings on the plaintiff's side, to have ceased. Is it at Liverpool. The action was upon a guarantee, and enough, then, to aver that twenty years have elapsed the declaration stated the guarantee to be for the since the title accrued, so as to bring the case within payment of any purchases that one John Barton the 2nd section, which gives the rule, or must the might make, not exceeding 5001. sterling; and among special fact be stated to bring it within the other other pleas there was a plea of payment. It appears sections? As the fact whether the time has elapsed from the notes of what took place at the trial, that or not lies more within the defendant's knowledge persons of the name of B. and Co. had become than the plaintiff's, who is merely in possession, and insolvent, and it was agreed that their affairs were to may have been so for a day only, and does not neces- be put under the direction of inspectors; and before sarily claim under one who had been in possession be the deed of inspection was actually drawn up, it fore, we think that the general allegation, so as to became necessary for the works to continue [they bring the case within the 2nd section, is sufficient. were iron and copper rail-makers]; thereupon the The defendant will, on that issue, have to prove that defendant, who was one of the intended inspectors, he entered within the time limited, by shewing that gave a guarantee in these words:-"As chairman he was displaced, or discontinued his possession, of the company appointed by the creditors of W. B. within twenty years before; or otherwise bringing and Co. I agree to guarantee the due payment of any himself within the provisions of the Act. It is ob. amount of purchase Mr. John Barton may make of servable, the plea states possession by Trusted, just you, not exceeding the total value of 500l. sterling." before the time when, &c. but not that it was In consequence of this guarantee, the plaintiff sold to within twenty years before the subsequent entry the extent of considerably more than 5001. sterling, by the plaintiff. The averment, in its present and went on supplying articles from time to time for form, is immaterial; the plea would have been the use of the foundry carried on by the inspectors; good without it, and it may therefore be alto- but the first 500l. was paid. There was a plea of gether rejected in considering whether the replication payment, and the question there arose whether it was is good. It was, however, contended by Mr. For- continuing guarantee, or whether it was only a seWatson, Q.C. now moved for a rule for a new trial tescue, in his able argument, that it is not enough for curity for the first purchase amounting to 5007. Some or for a nonsuit. It appeared that the plaintiffs were the plaintiff to allege that the entry had not been within of us had a doubt after the argument, and we took assignees of George Bayley, a bankrupt. The protwenty years after the title accrued, because the case time to consider it. We are all of opinion now, ac-perty of Bayley had been seized under a writ of fi. fa. might be one in which that averment would be true, cording to the true construction, it was a guarantee and yet the defendant would be entitled to entry, If, for the first purchase of 500l. and that it is not a confor instance, the land had been in the possession of a tinuing guarantee. It appears to us to be the obvious younger brother of the defendant, the defendant construction of the instrument itself "I guarantee Jones being the heir, such possession he here had, the due payment of any amount of purchases which if the entry be after the Act, would not be the pos- B. and Co. may make of you, not exceeding the total session of the person entitled; but before the Act, it value of 5001. sterling." According to the ordinary would. If then a brother had been in possession mode of trading in such a contract, the limit is the during more than twenty years before the Act, though value of the purchase, and not the limit of the amount the heir's right of entry would have accrued more than of liability; and if so, as soon as he had made one twenty years (for during the whole of such possession purchase to the amount of 5001. or any number to he would have the right of entry), he certainly ought the amount of 5001. and it was paid, the guarantee not to be barred. The same observation must be was discharged. We are of opinion the words "the made if for twenty years before the Act the lands had total value" are according to the construction, an been occupied by tenants at will. The answer to the obvious construction, the limit of value of the pur. argument is, that the lapse of twenty years would, by chases, and not the limit of the ultimate liability of the express enactments of the second section, be a bar. the defendant. Therefore this rule must be absolute But if the possession of the brother or the tenancy to enter a verdict for the defendants upon the plea of at will continued at the passing of the Act, the payment, or a nonsuit. It is to enter a nonsuit. fifteenth section provides a remedy, as the possession Rule absolute to enter a nonsuit.

May 8.-POLLOCK, C. B.-This case was tried before my brother Rolfe, at Liverpool. A rule was applied for to shew cause why there should not be a new trial; and in this case there will be no rule. We have looked into the cases cited: the case in 1 Crompton, 384, and the case in 12 A. & E. 745. In this case a bill was drawn upon five persons, by the name of their office, and they had authority mutually to accept, so as to trust each other; and the acceptance was by one, and was drawn upon all, and it was accepted in the form with the name of one. It appears to be clear, from the authorities cited, that one acceptance in the handwriting of one of the parties without any name would have been sufficient; and we are of opinion that the name does not import that the party to be so drawn upon is one of the entire body; it does not import that he accepts alone, but that he accepts for all; he is the person who performs the duty, namely, of accepting; and we think that is so clear, that there ought to be no rule in this case. Rule refused.

Thursday, April 22. EDWARDS and ANOTHER v. MATTHEWS. Right to begin-Feigned issue. It is not a sufficient ground of itself for a new trial that the judge has directed the wrong party to begin; it must appear that the course of justice has been interrupted. In a feigned issue, which is merely to inform the conscience of the Court, if the Court is satisfied with the result, a new trial will not be granted on the ground that the wrong party has begun.

This was a feigned issue, tried before the Lord Chief Baron at Guildhall, and a verdict obtained for the plaintiff.

at the suit of the present defendant, and the question

to be tried was, whether or not the defendant was

entitled, as against the assignees, to the proceeds
arising or to arise from the sale of the property by
virtue of the writ of fi. fa. under an alleged judg
At the trial it was contended by each party
ment.
that he had the right to begin. The Lord Chief
Baron directed the plaintiff to begin. The onus pro-
bandi was upon the defendant. The plaintiff avows
that the defendant is not entitled, and the defendant
The affirmative was upon
avows that he is entitled.
the defendant; it was for the defendant to shew that
by virtue of the judgment and the writ he was enti-
[PARKE, B.-
tled to the proceeds of the sale.
There was a case in Lord Abinger's time, when the
Court said that they would grant a new trial when
without it justice would not be done, although the
judge had directed the party to begin who ought
to have begun, the onus probandi being on him.(a)]
(a) Hudson v. Brown, 8 Car. & P. 774.

The defendant was to shew that the seizure was such Van Diemen's Land Company.
that he was entitled to the goods against the as-
signees. (Ashby v. Bates, 4 Dowl. & Lowndes, 33.)

124. Local Acts-Report of Commissioners of Woods, 4s. 6d. on millboard; 68. on canvas, with frame; 7s. on canvas, glazed,

pearance, or refusing to answer, &c. under sec. 99. This section provides, that on defendant committing the acts or defaults thereindescribed, "it shall be lawful for such Judge, if he shall think fit, to order that any such party, &c. shall be committed, &c."

The Rules of Practice prescribe a form of Warrant of Commitment, but no form of Order, the Warrant being addressed to the High Bailiff, and reciting that "it was ordered by the said Judge."

Upon this it is a question whether a formal order is necessary, or if the mere verbal order

in court is not sufficient.

But when the importance of all the proceedings upon which execution is to be taken, or an arrest made, is considered, and that forms of order are prescribed for almost every other proceeding of the Court, it seems to us that there can be little doubt that a formal order should be made upon which to found the Warrant of Execution; and it is to meet this difficulty that the Forms, Nos. 53, 61, and 62 have been prepared, and by which the Order itself will be placed upon record.

Some other points of practice, of no immediate moment, are, for want of room, unavoidably postponed for the first number of the County Courts Chronicle.

THE SHEFFIELD COURT.

above all, to remember what is due to the dig-
nity and character of a Court situate in so
important a town as Sheffield, where the busi-
ness must be necessarily so extensive and so
various. We ask him, moreover, to take
some thought for the future, when, as doubt-
less will be the case, the jurisdiction of the
County Courts shall be enlarged, and when
the rule now adopted will be more difficult to
be rescinded, because it will have become
an established practice, and that which would
now be a trifling inconvenience to the ex-
cluded parties, will then be a grievous hardship.
We hope to learn next week that, having
thus considered the question, Mr. WALKER
will have resolved to adopt the universal rule,
and to admit none but Barristers and Attorneys
to practise in his Court.

CARDIGANSHIRE COUNTY COURT.
Lampeter, May 13.

(Before JOHN JOHNES, Esq. Judge.)
Eighteen causes were entered for trial.
EVANS v. JONES.
Service of summons.
Personal service in sufficient time by a sheriff's
officer not appointed an assistant bailiff of the court.
The assistant bailiff was absent on his duties when
the plaint was entered, and it would have been too
late for service when he returned; upon which the
assistant clerk sent out the summons by the sheriff's
officer.

The COURT.-Is this legal service? By sec. 33,
the officer of the court, the high bailiff or the bailiffs
appointed to assist him in the manner pointed out by
the Act, must serve all the summonses, &c.

Lloyd Hall suggested that the Court should make an order that no plaint should be received by the assistant clerk for any court day, unless brought to the clerk's office fourteen days, at least, before such make an order, this Court has power to regulate its court day. Where the five judges have omitted to own practice.

The COURT.-I will consider the matter.

WILLIAMS v. Davies.
Service of summons.

It

WE perceive, with great regret, from a report we are compelled, for want of room, to defer to the County Courts Chronicle, that Mr. WALKER, the Judge of this Court, has taken time to consider whether he will exclude Sham Lawyers from practising in his Court. It seems that in Sheffield there had been previously a local court, which the County Court has superseded, and that in the old court Attorneys were prohibited from practising; that, accordingly, is very reasonable to make such an order, and if I there has sprung up in Sheffield,-or rather have the power I will do so. there has been forced up,—a race of Sham Lawyers, filling the place of Attorneys in the local courts, without their responsibility; and that it is from some qualms of tenderness towards this race, who call themselves "Debt Collectors," that Mr. WALKER hesitates whether he shall adopt at Sheffield the rule which prevails in all other parts of the country, and which he has himself adopted in the others of his courts. The dialogue between the Judge and the applicants is worth reading, and we must do the latter the justice to say, that it was conducted on their behalf with temper and moderation.

In this and all other cases where the service was at

the dwelling-house, on some person not the defend-
ant, the Court was satisfied with the assistant bailiff's
sleeping at home, and was expected home on the
night of the service.

statement that he found that the defendant was

JONES v. RODERICK.
Costs of counsel and attorney.
Defendant appeared in person. Judgment for plain-
Ejectment for premises of the annual rent of 61.
tiff. The COURT allowed the costs of the plaintiff's
counsel and attorney.

Aberayron, May 14.

REES v. EVANS.

Service of summons-Service at dwelling house on wife.
Tydvil, and was not expected to return home before
harvest time.

Defendant had gone to the ironworks at Merthyr

The COURT.-There is not sufficient to shew that defendant knew of the summons ten days before its return. Let the case be adjourned to the next

court day.

But we trust that no partial consideration of the peculiar circumstances of a solitary case Several plaintiffs in person were nonsuited from There were twenty-two cases entered for trial. will induce Mr. WALKER to depart, in the failing to prove their cases, although the defendslightest degree, from a wholesome rule which ants did not appear; and several others would have has been adopted by all his learned brethren, been nonsuited, if the defendants had not, by their after grave consideration, and which has been cross-examinations, established the plaintiffs' cases. received with unanimous approval. Nor more by the Profession than by the public, who have just begun to discover that Sham Lawyers are much more costly advisers in the long run than the real Lawyer. Besides, the spirit of concession to the changed wants and feelings of the age, which the Lawyers have exhibited, their cheerful co-operation in all Law Reforms which were really such, however affecting their own fees; their still declared readiness to adopt any reasonable arrangements which will secure them fair remuneration for the learning and time they bestow upon a case, whether it be in the County Court, in the Superior Courts, or in conveyancing, has undoubtedly produced in the public mind a much more favourable impression of the Lawyers as a class than long-cherished, and perhaps not quite unfounded, prejudice formerly permitted; and there is no inclination in the public to exclude them from the New Courts-no desire to see those Courts occupied by others.

We do, therefore, earnestly entreat Mr. WALKER not to open a door which it may be difficult to close again; not to set an example which may be converted into a precedent; and,

Lloyd Hall suggested that some general rule should be made relative to the notice to be given to a defendant who has not applied for the adjournment of his case.

The COURT.-I think it is not necessary: the
ordinary service of the order for the adjournment is
enough, and the proviso of the 80th section provides a
remedy for any hardship.

EVANS v. HANMER.
Particulars of demand.
Action for work and labour and materials to the

amount of 191. 2s. 9d.

Special plea, set-off.
Atwood, for defendant, objected that the particulars
of plaintiff's demand were all in Welsh.

The Court allowed the case to be adjourned to the
next court day to enable the plaintiff to amend his
particulars, the costs of the day to be costs in the
cause. The plaintiff to put in his amended particulars
eight clear days before the next court day.

POWELL. DOUGLAS,

Setting aside judgment. Judgment was given for plaintiff, defendant not applied in person to the Court to set it aside. appearing. In an hour after, defendant came in, and The plaintiff had in the interim gone away.

The COURT.-If you apply at the next court upon an affidavit of the facts of your detention, and of merits, and give the plaintiff notice of your intention known that I shall always require notice to be given to apply, I will hear you. I wish it to be generally to the other side of such applications being about to be made. Newcastle Emlyn, May 15. in person were nonsuited through failing to make out Forty.seven cases were entered. Several plaintiffs a prima facie case. The JUDGE told them, in answer to their applications to know how they were to make out their cases, that he sat there to adjudicate on the evidence laid before him, and not to advise either one side or the other. If they did not know how to prove their cases themselves, they must get professional assistance, the costs of which he should allow in all cases where he had the power to do so.

JONES v. DAVIES.

Costs of counsel and attorney.

In this case a jury had been summoned at the plaintiff's instance, but by consent of the parties the Court dispensed with their attendance. The case lasted upwards of four hours.

Judgment for defendant. Costs of counsel and attorney allowed.

YORKSHIRE COUNTY COURT.
Whitby, April 27.

(Before R. WHARTON, Esq.)

His HONOUR, in opening the court, stated he should allow barristers and attorneys only to argue cases for other parties before him, except in certain cases, or the relatives of parties; and that in all cases where attorneys appeared, he should look to the nature of each case in granting costs.

Sixty-six plaints entered. Few cases of interest to the profession occurred.

BELL v. UNDERWOOD. Debt for goods sold and money lent-Conflicting testi. mony-Adjourned for further evidence. Page, jun. for plaintiff, objected to set-off, no notice having been given. Set-off not allowed. Plaintiff and defendant only examined-Conflicting testimony.

Adjourned till next court for further evidence.

DAWSON V. TIPPER.
Proof of service.

Page, jun. for plaintiff. Summons served on wife at defendant's residence on last day-Defendant from home-No proof of coming to defendant's knowledge that night. Held not sufficient service, there being no proof of knowledge by defendant ten clear days before the hearing.

Order for summons out of the district. Page, jun. then applied to his Honour for an order for a summons to issue for service on a defendant living out of the district, the cause of action having arisen and the witnesses residing in Whitby.

His HONOUR thought an affidavit of the fact ne

cessary, and stated that as a general rule, on such an

affidavit being made, the application would be granted.

LEICESTERSHIRE COUNTY COURT.
Market Harborough, May 15.
(Before J. HILDYARD, Esq.)
TERRY V. STABLEFORD.
Production of books.

Case ordered to be adjourned, plaintiff not having brought his books; the judge declaring he would, in all cases after the notice he had given, adjourn the case where the plaintiff had books and did not produce them.